June 2018 SDR - Voice for the Defense Vol. 47, No. 5

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Tuesday, June 5th, 2018

Voice for the Defense Volume 47, No. 5 Edition

Editor: Michael Mowla

From Editor Michael Mowla:

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

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

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

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

Supreme Court of the United States

Sessions v. Dimaya, No. 15-1498, 2018 U.S. LEXIS 2497 (U.S. April 17, 2018)

        Under 8 U.S.C. § 1227(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), deportation for an alien who commits an “aggravated felony” after entering the U.S. is a virtual certainty, and the alien becomes deportable and is ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3) & (b)(1)(C), a form of discretionary relief allowing some deportable aliens to remain in the country.

        An “aggravated felony” is an offense under 8 U.S.C. § 1101(a)(43), one of which is a “a crime of violence” under 8 U.S.C. § 1101(a)(43)(F), which under 18 U.S.C. § 16 covers: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another (elements clause); or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used while committing the offense [residual clause, § 16(b)].

        To decide whether a person’s conviction “falls within the ambit” of the residual clause, courts use the categorical approach per Leocal v. Ashcroft, 543 U.S. 1, 7 (2004), which focuses on the nature of the offense, whether “the ordinary case” of an offense poses the requisite risk of the residual clause.

        In Johnson v. United States, 135 S.Ct. 2551 (2016), the SCOTUS held unconstitutional part of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which re­quires a 15-year mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a “violent felony,” defined as a crime punishable by prison for a term exceeding one year that: (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.

        The ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a hypothesis about the crime’s “ordinary case.”

        The prohibition of vagueness in criminal statutes is an essential of due process, required by both ordinary notions of fair play and the settled rules of law.

        Under Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972), and Kolender v. Lawson, 461 U.S. 352, 357–358 (1983), the void-for-vagueness doctrine guarantees that ordinary people have “fair notice” of the conduct a statute proscribes. It guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. It is a corollary of the separation of powers, which requires Congress and not the executive or judicial branch to define what conduct is sanctionable.

        18 U.S.C. § 16(b) violates the Due Process Clause due to unpredictability and arbitrariness where it requires a court to picture the kind of conduct that the crime involved in the ordinary case and to judge whether that abstraction presented some not-well-specified-yet-sufficiently-large degree of risk.               

Wilson v. Sellers, No. 16-6855, 2018 U.S. LEXIS 2496 (U.S. April 17, 2018)

        A federal court must “look through” a summary (unexplained) decision of a state court (i.e., look through down the chain to the decision that provided reasoning) to determine the reasoning of the state court when considering a petition under 28 U.S.C. § 2254. It should presume that the unexplained decision of the higher state court adopted the same reasoning of the lower state court.

        A State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

United States Court of Appeals for the Fifth Circuit

United States v. Garcia, No. 17-10862, 2018 U.S. App. LEXIS 8779 (5th Cir. April 6, 2018) (designated for publication)

        Under United States v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999), overturning a jury verdict for prosecutorial misconduct is appropriate only when taken in the context of the entire case, the prosecutor’s comments prejudicially affected the substantial rights of the defendant. The court considers: (1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.

        Prosecutor arguments that suggests that acquittal would require belief in a vast government conspiracy are improper.

        It is improper for a prosecutor to tell the jury that law enforcement witnesses should be believed simply because they were doing their job.

        Under Fed. Rule Evid. 803(8), a warrant of removal is properly admitted under the public records exception to the hearsay doctrine.

        A warrant of removal is nontestimonial and not subject to confrontation because they are kept in the ordinary course of business not produced specifically for establishing or proving some fact at trial.

        To establish a Brady violation, a defendant must show that the evidence was: (1) favorable to him; (2) suppressed by the prosecution; and (3) material.

        Regardless of whether the evidence was material or exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is lack of reasonable diligence, the defendant has no Brady claim.

Editor’s Note: The AUSA said during closing arguments, “It’s no different, as we talked about in testimony, when after September 11th, this department was created . . . We don’t require that the pilot then come through the plane, or the flight attendant, and recheck the boarding pass again, rescan everybody for any weapons, because we rely on the system in our country that people do their job because they care and that’s what they do.” A Mexican national named Garcia illegally crossing the border after being deported for a crime not related to terrorism has nothing to do with 9/11, an attack on one of our financial centers that killed over 3,000 Americans. This argument clearly was meant to prejudice the appellant by drawing a false analogy between mass-murdering terrorists who caused thousands of deaths and an undocumented alien. I disagree that mentioning 9/11 was “reasonable” regardless of the analogy to “TSA security,” an agency rife with incompetence. This AUSA should have just done this since during closing:

June 2018 SDR-1

United States v. Maturino, No. 17-10251, 2018 U.S. App. LEXIS 9177 (5th Cir. April 12, 2018) (designated for publication)

        Under 18 U.S.C. § 921(a)(3)(D), firearm means “any destructive device.” Under 18 U.S.C. § 921(a)(4)(A)(ii), a grenade is a type of “destructive device.”

        Under U.S.S.G. § 2K2.1(b)(1)(D), an 8-level enhancement is allowed if the offense involved 100 to 199 firearms.

        Under U.S.S.G. § 2K2.1 Note 5, to calculate the number of firearms or explosive devices under § 2K2.1(b)(1), the court counts those that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed. If a defendant attempts to obtain an explosive including the M433 40mm high-explosive grenade, even if it is a dud, it counts under the U.S.S.G. as though it were live.

        U.S.S.G. commentary that interprets or explains a guideline is authoritative.

Editor’s note: The M433 40mm grenade is not the type that is thrown after a safety pin is pulled. It is fired from a grenade launcher like the M203 that is attached beneath a rifle like the M16A2 (like the one pictured here). I am a staunch defender of the Second Amendment, but my defense is limited to revolvers, semiautomatic pistols, shotguns, bolt-action rifles, and semiautomatic rifles. Explosive ordnances like the M433 40mm grenade are restricted for good reasons and do not belong in general circulation.

June 2018 SDR-2-3

United States v. Mendez, No. 16-41057, 2018 U.S. App. LEXIS 7498 (5th Cir. March 23, 2018) (designated for publication)

        On review of an MTS, factual findings are reviewed for clear error and legal conclusions de novo. A factual finding is clearly erroneous if the court is left with “a definite and firm conviction that a mistake has been committed.” Voluntariness of consent is a factual inquiry that is reviewed for clear error. When the district court hears live testimony, review is particularly deferential. The appellate court must view the evidence most favorably to the party prevailing below except where the view is inconsistent with the trial court’s findings or is clearly erroneous considering all the evidence. The district court’s ruling should be upheld if there is any reasonable view of the evidence to support it. Evidence introduced at a suppression hearing is viewed in the light most favorable to the prevailing party.

        Although error not brought to the district court’s attention is subject to plain error review under Fed. Rule Crim. Proc. 52(b), under Fed. Rule Crim. Proc. 51(a), taking an exception to an adverse ruling like the denial of an MTS is not necessary to preserve the issue for appellate review.

        If a defendant fails to identify the search as a source of later statements, independent of the arrest, review of the separate claim is for plain error.

        Error raised for the first time on direct appeal that could have been (but was not) raised in the district court is reviewed for plain error, which requires showing: (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Error is plain only if it is so clear or obvious that the trial judge and prosecutor were derelict in countenancing it even absent the defendant’s timely assistance in detecting it. Establishing plain error requires a showing that the error was clear under the law in place at the time of trial. Plain error is not usually found if the court has not previously addressed the issue.

        Under Segura v. United States, 468 U.S. 796, 804 (1984), the exclusionary rule reaches evidence seized as a direct result of the violation and evidence indirectly derived from it, the fruit of the poisonous tree.

        When considering whether evidence should be suppressed as the fruit of the poisonous tree, under Nix v. Williams, 467 U.S. 431, 443–444 (1984), the exclusionary rule is subject to three safety-valve doctrines: (1) independent source, (2) inevitable dis­covery, and (3) attenuation.

        Under Brown v. Illinois, 422 U.S. 590, 599 (1975), the attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence. Evidence may be sufficiently attenuated from the Fourth Amendment violation even where the violation is a but-for cause of the discovery of the evidence if the evidence is obtained by means sufficiently distinguishable to be purged of the primary taint.

        Under Kaupp v. Texas, 538 U.S. 626, 633 (2003), the factors to be considered regarding whether custodial statements are the fruit of an unlawful arrest are: (1) provision of Miranda warnings (government bears the burden of proving voluntariness by a preponderance of the evidence: statement is voluntary if under the totality of the circumstances, the statement is the product of the defendant’s free and rational choice, and cannot be involuntary in the absence of coercive police activity); (2) temporal proximity between the unlawful arrest and the challenged statements (elapse time is not determinative. Where little time has elapsed, the determination turns on the conditions of custody; a shorter lapse of time is tolerated when circumstances of the detention are less severe); (3) intervening circumstances (development of independently procured probable cause following an illegal arrest is a critical factor attenuating the taint of the initial illegal arrest); and (4) purpose and flagrancy of the official misconduct (Suppression applied to deter police misconduct. To be purposeful or flagrant, must be more than negligent or merely the absence of probable cause. Misconduct is not “flagrant” just because officers violated the Fourth Amendment. Improper purpose or conscious wrongdoing is required, not merely advance planning).

June 2018 SDR-4

United States v. Perales, No. 17-40005, 2018 U.S. App. LEXIS 8112 (5th Cir. March 30, 2018) (designated for publication)

        On review of an MTS, factual findings are reviewed for clear error and legal conclusions de novo. A factual finding is clearly erroneous if the court is left with “a definite and firm conviction that a mistake has been committed.” Voluntariness of consent is a factual inquiry that is reviewed for clear error. When the district court hears live testimony, review is particularly deferential. The appellate court must view the evidence most favorably to the party prevailing below except where the view is inconsistent with the trial court’s findings or is clearly erroneous considering all the evidence. The district court’s ruling should be upheld if there is any reasonable view of the evidence to support it. Evidence introduced at a suppression hearing is viewed in the light most favorable to the prevailing party.

        Under Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), a search conducted by consent is excepted from the Fourth Amend­ment’s warrant and probable cause requirements. When the Government asserts that no search warrant was required be­cause of consent, the government must prove by a preponderance of the evidence that consent was freely and voluntarily given. Whether consent was voluntary or the product of duress or coercion (express or implied) is a question of fact to be determined from the totality of all the circumstances.

        Under United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993), the factors used to determine whether a defendant vol­untarily consented to a search are the: (1) voluntariness of the defendant’s custodial status; (2) presence of coercive police pro­cedures; (3) extent and level of the defendant’s cooperation with the police; (4) defendant’s awareness of his right to refuse consent; (5) defendant’s education and intelligence; and (6) defendant’s belief that no incriminating evidence will be found. All factors are relevant, and no single factor is dispositive.

United States v. Sealed Appellee, No. 17-50451, 2018 U.S. App. LEXIS 8979 (5th Cir. April 10, 2018) (designated for publication)

        Absent a statutory or constitutional exception, a district court cannot depart below a mandatory minimum sentence.

        The judgment of sentence is vacated, and the case is remanded for resentencing.

Texas Court of Criminal Appeals

Fowler v. State, No. PD-0343-17, 2018 Tex. Crim. App. LEXIS 124 (Tex. Crim. App. April 18, 2018) (designated for publication)

        Under Tex. Rule Evid. 901, to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Authenticity may be established with evidence of distinctive characteristics and the like, which include the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. Conclusive proof of authenticity before allowing admission of disputed evidence is not required. Rule 901 merely requires some evidence sufficient to support a finding that evidence in question is what the proponent claims.

        The proponent of a video may sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device.

        Under the “liberal standard of admissibility,” it is the jury’s role ultimately to determine whether an item of evidence is indeed what its proponent claims. The trial court need only make the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic.

        Although the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way. The video may also be authenticated by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

        Video recordings without audio are treated as photographs and are properly authenticated when it can be proved that the images accurately represent the scene in question and are relevant to a disputed issue.

Editor’s Note: What is the “zone of reasonable disagreement” is often in the eye of the beholder.

June 2018 SDR-5

Gonzalez v. State, No. PD-0181-17, 2018 Tex. Crim. App. LEXIS 121 (Tex. Crim. App. April 11, 2018) (designated for publication)

        Review of a trial court’s decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, is under an abuse of discretion standard. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. An appellate court may not substitute its decision for that of the trial court.

        Relevant evidence is generally admissible. It is evidence that has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Evidence does not need to prove or disprove a fact by itself to be relevant. It is sufficient if the evidence provides a small nudge toward proving or disproving a fact of consequence.

        Evidence of a defendant’s “other crimes, wrongs, or acts” is not admissible to prove the character of a person to show that he acted in conformity with that character. Evidence of such prior bad acts may be admissible if it has relevance apart from its tendency to prove character conformity. If evidence of prior bad acts is not relevant apart from supporting an inference of character conformity, it is inadmissible under Tex. Rule Evid. Rule 404(b). If the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the evidence is inadmissible under Tex. Rule Evid. 403.

        Evidence of drug-use is irrelevant if it does not apply to a “fact of consequence.” At some point, evidence of drug use could be so far removed in time from the commission of the offense that it would become irrelevant because it could not support any inference of intoxication during the commission of the offense.

        Under Gigliobianco v. State, 210 S.W.3d 637, 641–642 (Tex. Crim. App. 2006), in determining the admissibility of uncharged or collateral evidence, the trial court must examine and “balance” these factors: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any ten­dency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evi­dence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evi­dence already admitted.

        Evidence is unfairly prejudicial if it has the capacity to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged.

        Nonconstitutional errors that are harmful require reversal only if they affect Appellant’s substantial rights, which means that error is reversible only when it has a substantial and injurious effect or influence in determine the jury’s verdict. If the appellate court has fair assurance from an examination of the entire record that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction. In making this determination, an appellate court must consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence sup­porting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error.

Texas Courts of Appeals

State v. Davis, No. 05-15-00232-CR, 2018 Tex. App. LEXIS 2305 (Tex. App. Dallas March 29, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 38.23(a), no evidence ob­tained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the defendant on the trial of any criminal case. Under Tex. Code Crim. Proc. Art. 38.23(b), it is an exception to 38.23(a) that the evidence was obtained by a law enforcement officer acting in objective good-faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.

        Under McClintock v. State, No. PD-1641-15, 2017 Tex. Crim. App. LEXIS 291 (Tex. Crim. App. March 22, 2017) (designated for publication), Art. 38.23(b) applies when the prior law enforcement conduct that uncovered the evidence used in the affidavit for the warrant is “close enough to the line of validity that an ob­jectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct.” The dog-sniff, which occurred at the front door of McClintock’s single-dwelling upstairs apartment, was an unconstitutional invasion of the curtilage. However, at the time the officers used the trained canine to sniff for drugs at the door of the appellant’s apartment, the constitutionality of that conduct remained “close enough to the line of validity” for the court to conclude an objectively rea­son­able officer preparing a warrant affidavit would have believed the information supporting the warrant application was not tainted by unconstitutional conduct.

        Under Florida v. Jardines, 569 U.S. 1 (2013), curtilage is the area around the home to which the activity of home life extends, and a person has a reasonable expectation of privacy in the home and its curtilage. Only when the drug-sniff is conducted during a warrantless invasion of the curtilage does it constitute an unconstitutional search for Fourth Amendment purposes. The SCOTUS did not make this distinction “crystal clear” until Jardines.

June 2018 SDR-6

Ex parte Jones, No. 12-17-00346-CR, 2018 Tex. App. LEXIS 2718 (Tex. App. Houston [1st Dist.] April 18, 2018) (designated for publication)

        The free speech protections of the First Amendment are implicated when the government seeks to regulate protected speech or expressive conduct. It is the obligation of the person desiring to engage in allegedly expressive conduct to demonstrate that the First Amendment applies.

        Under Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014), photographs and visual recordings are inherently expressive. There is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message. A person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings.

        Because photographs and visual recordings described by Tex. Penal Code § 21.16(b) (“revenge porn statute”) are inherently expressive and the First Amendment applies to the distribution of such media in the same way it applies to their creation, the right to freedom of speech is implicated.

        Under Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994), laws that distinguish favored speech from disfavored speech based on the ideas or views expressed are content-based. Laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are content-neutral.

        Under Ex parte Lo, 424 S.W.3d 10, 15 fn.12 (Tex. Crim. App. 2013), if it is necessary to look at the content of the speech in question to decide if the speaker violated the law, the regulation is content-based.

        Content-based laws that suppress, disadvantage, or impose differential burdens on speech are reviewed under a strict-scrutiny standard. Content-neutral laws that govern expression but do not seek to restrict its content are subject to intermediate scrutiny.

        Under Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011), content-based regulations are presumptively invalid, and it is rare that a regulation restricting speech because of its content will ever be permissible. Under strict scrutiny, a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.

        Under United States v. Stevens, 559 U.S. 460, 468–469 (2010), unprotected speech is obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.

        Under Miller v. California, 413 U.S. 15, 23 (1973), and Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 576 (2002), the issue of whether a matter is obscene and constitutes unprotected speech has been a determination to be made initially by the trier of fact. Tex. Penal Code § 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene.

        Tex. Penal Code § 21.16(b) is an invalid content-based restriction and overbroad because it violates rights of too many persons by restricting more speech than the Constitution permits. To the extent that it proscribes the disclosure of visual material, it is unconstitutional on its face in violation of the Free Speech clause of the First Amendment.

Joyner v. State, No. 01-16-00775-CR, 2018 Tex. App. LEXIS 2517 (Tex. App. Houston [1st Dist.] April 10, 2018) (designated for publication)

        Under Tex. Rule App. Proc. 33.1, to raise error on appellate review, the record must show that the: (1) complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (2) trial court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule and the complaining party objected to the refusal.

        Under Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011), a complaint must be clear enough to provide the judge and the opposing party an opportunity to address and, if necessary, correct the purported error.

        Under Bitterman v. State, 180 S.W.3d 139, 144 (Tex. Crim. App. 2005), to preserve a complaint that the State breached a plea agreement, a defendant must bring the alleged breach to the trial court’s attention with a timely request, objection, or motion and seek a ruling on the issue. One may preserve a breach-of-the-plea-agreement argument by bringing the issue to the trial court’s attention as soon as the error can be cured either by objecting at the time of the breach or moving for a new trial to com­pel specific performance of the plea agreement.

        Under Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), there are three categories of rights: (1) those that are mandatorily enforced, (2) rights subject to waiver, and (3) rights subject to forfeiture. If an alleged error falls into category 1 or 2, it may be raised for the first time on appeal. All other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).

        A claim of error constituting a purported breach of a plea agreement must be preserved for appellate review.

        A claim of prosecutorial misconduct must be preserved for appellate review.

Editor’s Note: make those objections!

June 2018 SDR-7

Marcopoulos v. State, No. 01-15-00317-CR, 2018 Tex. App. LEXIS 2351 (Tex. App. Houston [1st Dist.] April 3, 2018) (designated for publication)

        Under State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013), a trial court’s ruling on an MTS is reviewed under a bifurcated standard: Provided the record supports the trial court’s determinations of historical facts, and mixed questions of law and fact that rely on credibility, those determinations almost require total deference. The trial court’s application of law to the facts are reviewed de novo.

        If the trial court does not make FFCL, the reviewing court upholds the trial court’s ruling on any theory of law applicable to the case and presumes the court made implicit findings in support of its ruling if the record supports those findings.

        Under Arizona v. Gant, 556 U.S. 332, 338 (2009), the search-incident-to-arrest exception to the warrant requirement derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. It allows officers to: (1) remove weapons the arrestee might seek to use and to prevent the concealment or destruction of evidence; and (2) search a de­fendant, or areas within the defendant’s immediate control, to prevent the concealment or destruction of evidence. It places a temporal and a spatial limitation on searches incident to arrest, excusing compliance with the warrant requirement only when the search is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. The area “within his immediate control” means the area from within which he might gain possession of a weapon or destructible evidence. Neither the possibility of access nor the likelihood of discovering offense-related evidence authorizes the search of a defendant’s vehicle where the defendant was already arrested.

        Under Gant, officers may order out the driver and passengers to perform a “pat-down” (Terry pat-down) upon reasonable suspicion that they may be armed and dangerous and conduct a search of the passenger compartment including any containers per a custodial arrest. But even when they conduct a search incident to a lawful custodial arrest, officers cannot search the vehicle when the arrestee is secured and not within reaching distance of the passenger compartment. Nor may officers pat down the driver or passengers without reasonable suspicion that they may be armed and dangerous.

        Under Colorado v. Bertine, 479 U.S. 367, 371 (1987), and Florida v. Wells, 495 U.S. 1, 4 (1990), inventory searches serve to protect an owner’s property while it is in the custody of the police to insure against claims of lost, stolen, or vandalized prop­erty, and to guard the police from danger. The inventory-search policy should be designed to produce an inventory, and standardized criteria must regulate the opening of containers found during the search. Nothing prohibits the exercise of police discretion so long as that discretion is exercised according to stan­dard criteria and based on something other than suspicion of evidence of criminal activity. The inventory search must not deviate from department policy and must not be a ruse for a general rummaging to discover incriminating evidence, a burden that the State may satisfy by showing that an inventory policy existed and was followed.

        Under Holmes v. State, 323 S.W.3d 163, 174 (Tex. Crim. App. 2010), when a trial court’s erroneous ruling on an MTS can contribute to the State’s leverage in the plea-bargaining process, harm is established.

State v. Martinez, No. 13-16-00659-CR, 2018 Tex. App. LEXIS 2590 (Tex. App. Corpus Christi April 12, 2018) (designated for publication)

        Under Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007), Texas has no pretrial procedure enabling a criminal defendant to challenge, or a trial court to determine, the sufficiency of the evidence on an element of the charged offense. Pretrial motions cannot be used to argue that the state cannot prove an element of the crime. A pretrial proceeding should not be a “‘mini-trial” on the sufficiency of the evidence.

        Under Crocker v. State, 573 S.W.2d 190, 204 (Tex. Crim. App. 1978), an indictment returned by a legally constituted unbiased grand jury, if valid on its face, is sufficient to mandate trial of the charge on the merits. A defendant may move to quash an indictment based on defects contained on the face of the indictment, not by evidence presented at a pretrial hearing.

June 2018 SDR-8

Quezada v. State, No. 08-14-00273-CR, 2018 Tex. App. LEXIS 1949 (Tex. App. El Paso March 15, 2018) (designated for publication)

        Under Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003), and Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002), the trial court is given wide discretion over the jury selection process and may impose reasonable limits on the questions asked. The trial court may determine the propriety of certain questions, and its decision will not be disturbed absent an abuse of discretion. A trial court abuses its discretion when it disallows a proper question about a proper area of inquiry. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case.

        A defendant is eligible for community supervision if before trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.

        Under Tex. Code Crim. Proc. Art. 28.01, a trial court may hold a pretrial hearing and mandates a defendant raise all preliminary matters at the hearing if the trial court exercises its dis­cretion to hold one. Any preliminary matters not raised or filed seven days before the hearing cannot be later raised or filed except by permission of the trial court for good cause shown. Preliminary matters include all pleadings of the defendant, and under Tex. Code Crim. Proc. Art. 27.02, pleadings of a defendant include an application for probation.

        A defendant has the right to question venire members to expose interest or partiality to use peremptory strikes intelligently. If counsel is unable to determine such material information, the defendant is unable to exercise his challenges and peremptory strikes intelligently and his ability to select an impartial jury is hindered.

        Under Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014), not all instances of improperly limiting defense counsel’s voir dire is constitutional error. The TCCA held that the right to counsel was not necessarily violated by impediments imposed on counsel’s ability to use peremptory challenges.

        Under Tex. Rule App. Proc. 44.2, under the harmless-error standard, an appellate court must reverse the judgment unless it can determine beyond a reasonable doubt that the error did not contribute to the result.

Editor’s Note: The district clerk in this case refused to file the application for probation because “she understood the application was to have been submitted at the Article 28.01 pretrial conference. She directed counsel to take the matter up with the trial court because she was busy going over the venire absences.” The job of a court clerk is to file pleadings, especially those submitted by licensed attorneys, not to check the pleadings for substance or timing as this clerk did. The duties and powers of district clerks are clearly set forth in Tex. Gov. Code § 51.303, Duties and Powers (of district clerks):

   (a)   The clerk of a district court has custody of and shall carefully maintain and arrange the records relating to or lawfully deposited in the clerk’s office.

   (b)   The clerk of a district court shall:

         (1) record the acts and proceedings of the court;

         (2) enter all judgments of the court under the direction of the judge; and

         (3) record all executions issued and the returns on the executions.

   (c)   The district clerk shall keep an index of the parties to all suits filed in the court. The index must list the parties alphabetically using their full names and must be cross-referenced to the other parties to the suit. In addition, a reference must be made opposite each name to the minutes on which is entered the judgment in the case.

   (d)   Repealed by Acts 1995, 74th Leg., ch. 641, Sec. 1.05, eff. Sept. 1, 1995.

   (e)   The clerk of a district court may:

         (1) take the depositions of witnesses; and

         (2) perform other duties imposed on the clerk by law.

   (f)    In addition to the other powers and duties of this section, a district clerk shall accept applications for protective orders under Chapter 71, Family Code.

Nothing in Tex. Gov. Code § 51.303 authorizes a district clerk to act as a “gatekeeper” to the substance or timing of a pleading. Nor is a clerk authorized to claim that she is “so busy” that she cannot file a pleading. Clerks need to do their jobs and leave the lawyering to the lawyers. Lawyers have enough to worry about, including ferreting out bias in the venire panel.

June 2018 SDR-9

Simpson v. State, No. 01-17-00158-CR, 2018 Tex. App. LEXIS 2513 (Tex. App. Houston [1st Dist.] April 10, 2018) (designated for publication)

        Under Tex. Penal Code § 19.02(d), at the punishment stage, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the evidence raises the issue of sudden passion, during either phase of trial, the trial court must submit the issue in the jury charge if the defendant requests it

        Under Tex. Code Crim. Proc. Art. 36.14, the trial court is re­quired to submit instructions only on “the law applicable to the case.” Under Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011), an unrequested defensive issue is not the law applicable to the case.

        Sudden passion is a defensive issue. For it to become the law applicable to the case, a defendant must request an instruction on it or object to its absence.

        A trial court has no duty to sua sponte instruct the jury on an unrequested defensive issue.

Editor’s Note: The opinion touches on the standard of review, but its explanation is incomplete. The standard of review for jury-charge issues is:

  • Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh.), and Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), if the defendant preserved jury-charge error, the appellate court will reverse if the defendant suffered “some harm.” Neither the State nor the defendant bears the burden of proving harm; the court of appeals must review the entire record to determine if the defendant suffered harm. To determine whether a defendant suffered “some harm,” a reviewing court considers: (1) the entire jury charge; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant factors present in the record, including voir dire and opening statements. “Some harm” requires a finding that the defendant “suffered some actual, rather than merely theoretical, harm from the error.”
  • Under Almanza, 686 S.W.2d at 171, if the defendant did not preserve jury-charge error, review is for egregious harm, which requires the appellate court to consider: (1) the entire jury charge, (2) the state of the evidence, (3) closing arguments of the parties, and (4) any other relevant information in the record. Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.
  • Under Tex. Penal Code § 19.02(d), at the punishment stage, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the evidence raises the issue of sudden passion, during either phase of trial, the trial court must submit the issue in the jury charge if the defendant requests it
  • Under Tex. Code Crim. Proc. Art. 36.14, the trial court is required to submit instructions only on “the law applicable to the case.” Under Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011), an unrequested defensive issue is not the law applicable to the case.
  • Sudden passion is a defensive issue. For it to become the law applicable to the case, a defendant must request an instruction on it or object to its absence.
  • A trial court has no duty to sua sponte instruct the jury on an unrequested defensive issue.
  • Judgment and sentence affirmed.

Spiers v. State, No. 14-16-00892-CR, 2018 Tex. App. LEXIS 1744 (Tex. App. Houston [14th Dist.] March 8, 2018) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 38.14, a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

        Under Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011), when reviewing the sufficiency of the nonaccomplice evidence under Art. 38.14, the reviewing court must decide whether the inculpatory evidence tends to connect the defendant to the commission of the offense. The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself but must link the defendant in some way to the commission of the crime and show that rational jurors could conclude that this evidence sufficiently tended to connect the defendant to the offense.

        There is no set amount of nonaccomplice corroboration evidence that is required, and each case must be judged on its own facts. To determine if the corroboration evidence is sufficient, the court eliminates the accomplice testimony and examines the remaining record to see if there is any evidence that tends to connect the defendant with the crime. The evidence is reviewed in the light most favorable to the jury’s verdict. When there are conflicting views of the evidence (that tends to connect the defendant to the offense and does not), the appellate court defers to the jury’s resolution. The appellate court may not take a “divide and conquer” approach but must consider the combined force of all the nonaccomplice evidence.

        Evidence of the defendant’s motive and opportunity is insufficient on its own to corroborate accomplice testimony, but motive and opportunity may be considered with other evidence that tends to connect the defendant to the crime.

        Evidence that the defendant was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the defendant to the crime to furnish sufficient corroboration to support a conviction. Even circumstances that appear insignificant may amount to sufficient evidence of corroboration.

        Under Hacker v. State, 389 S.W.3d 860, 870 (Tex. Crim. App. 2013), although insufficient by itself, motive is a significant circumstance indicating guilt and can be the “glue that holds the entire case together.”

        Under Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997), evidence that a defendant was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence to support a conviction.

June 2018 SDR-10

Voda v. State, No. 14-16-00857-CR, 2018 Tex. App. LEXIS 2133 (Tex. App. Houston [14th Dist.] March 27, 2018) (designated for publication)

        Under Barker v. Wingo, 407 U.S. 514, 530 (1972), in addressing a speedy-trial claim, a court must balance the following: (1) the length of delay (12 months between the time of the accusation and the time of trial is presumptively prejudicial); (2) the State’s reason for the delay (deliberate attempts by the State to delay the trial to hamper the defense are weighed heavily against the State. Neutral reason such as negligence or overcrowded courts are weighted less heavily but should be considered since the ultimate responsibility for such circumstances rests with the State rather than with the defendant. When the record is silent regarding the reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the de­fense nor a valid reason for the delay); (3) defendant’s assertion of his right to a speedy trial (although the defendant has no duty to bring himself to trial, he does have the responsibility to assert his right to a speedy trial); and (4) prejudice to the defendant because of the length of delay (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) most importantly, limiting the possibility that the defense will be impaired.

        Under Doggett v. U.S., 505 U.S. 647, 651–652 (1992), before a court engages in an analysis of each Barker factor, the defendant must “first make a threshold showing that ‘the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial’ delay.” Affirmative proof of prejudice is not essential to every speedy-trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify, but the presumption of prejudice to a defendant’s ability to defend himself is extenuated by the defendant’s acquiescence in some or all the delay.