June 2019 SDR - Voice for the Defense Vol. 48, No. 5

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Tuesday, June 4th, 2019

Voice for the Defense Volume 48, 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.

Editor’s note: No relevant criminal cases were handed down by the SCOTUS since the last SDR.

United States Court of Appeals for the Fifth Circuit

United States v. Campos, No. 18-50416, 2019 U.S. App. LEXIS 13057 (5th Cir. April 30, 2019) (designated for publication) [Mandatory minimum supervised release terms]

        Under 21 U.S.C. §§ 841(b)(1)(B) & 860(a), the minimum supervised release sentence for an underlying drug conviction is 8 years.

        Under 18 U.S.C. § 3583(h) and U.S.S.G. § 7B1.3(g)(2), when supervised release is revoked, the district court may order the defendant to supervised release after prison, which is subject only to a maximum of the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release less any term of imprisonment that was imposed upon revocation of supervised release. U.S.S.G. § 7B1.3(g)(2).

        Under Glover v. United States, 531 U.S. 198, 204 (2001), the risk of unnecessary deprivation of liberty undermines the fairness, integrity, or public reputation of judicial proceedings in the context of plain error because of the role the district court plays in calculating the range and the relative ease of correcting the error. Unlike cases where trial strategies might be criticized for leading to a harsher sentence, U.S.S.G. miscalculations result from judicial error.

        Supervised release terms constitute a substantial restraint on liberty.

United States v. De Nieto, No. 16-51142, 2019 U.S. App. LEXIS 13058 (5th Cir. April 30, 2019) (designated for publication) [Loss-amount reliability; disqualification of counsel]

        Under United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948), a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. But under United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010), there is no clear error if the district court’s finding is plausible in light of the entire record. Under U.S.S.G. § 2B1.1 cmt. 3(C), given the district court’s unique position to assess the evidence and estimate the loss amount, its loss determination is entitled to appropriate deference. The 5th Circuit gives wide latitude to the district court to determine the loss amount. The district “court need only make a reasonable estimate of the loss based on available information and need not be determined with precision. In making its loss-amount estimate, a district court may rely upon information in the PSR so long as that information bears some indicia of reliability. When a defendant challenges a PSR’s loss estimate, he bears the burden of presenting rebuttal evidence to demonstrate that the information in the PSR is inaccurate or materially untrue.

        Under U.S.S.G. § 2B1.1 cmt. 3(A), the loss amount is the greater of actual loss or intended loss. An “actual loss” is the reasonably foreseeable pecuniary harm that resulted from the offense. An “intended loss” is the pecuniary harm that the defendant purposely sought to inflict, even if that harm would have been impossible or unlikely to occur.

        The 5th Circuit will not reverse a district court’s disqualification of counsel for conflict unless the defendant can show the district court abused its discretion.

        A district court abuses its discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts.

        Under Wheat v. United States, 486 U.S. 153, 159 (1988), while the right to be represented by counsel of choice is comprehended by the Sixth Amendment, the aim of the Amendment is to guarantee an effective advocate for each defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. The right to choose one’s own counsel is circumscribed in several important respects, including where counsel has an actual conflict of interest or a serious potential conflict of interest that may arise during trial. The presumption that a defendant is entitled to counsel of choice may be rebutted by a showing of actual or potential conflicts of interest. Whether a party has met its burden to demonstrate these conflicts of interest must be left primarily to the trial court. Defendants may waive conflicts of interest in some situations, but the district court must be wary of the problems implicating the comprehension of the waiver to protect the integrity of the court and defend against future attacks over the adequacy of the waiver or the fairness of the proceedings. Even a valid waiver does not end the inquiry because the district court must ensure that trials are conducted within ethical standards and legal proceedings appear fair to all who observe them. Given the delicate balancing of a defendant’s Sixth Amendment rights with conflicts of interest that are hard to predict, the district court is allowed substantial latitude in refusing waivers where an actual conflict is demonstrated before trial and a potential for conflict exists that may burgeon into an actual conflict as the trial progresses.

        A court need not hold a hearing before granting a motion to disqualify counsel. A hearing is necessary only to uncover nuanced, hidden conflicts. Where actual and potential conflicts are apparent from the record, a hearing is not necessary.

United States v. Flores, No. 18-40334, 2019 U.S. App. LEXIS 13059 (5th Cir. April 30, 2019) (per curiam) (designated for publication) [Juvenile adjudication for aggravated assault is not a violent felony for an ACCA sentence enhancement]

        Under the ACCA, the penalty is increased to a minimum of 15 years if the defendant has three previous convictions for a violent felony if he is convicted of violating 18 U.S.C. § 922(g)(1) (committing a firearms offense after being convicted in any court of a crime punishable by imprisonment for a term exceeding one year).

        Under 18 U.S.C. § 924(e)(2)(B), a violent felony is any crime punishable by imprisonment for a term exceeding one year or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

        Under Descamps v. United States, 570 U.S. 254, 257 (2013), and Mathis v. United States, 136 S.Ct. 2243, 2251 (2016), to determine whether a conviction qualifies as a violent felony under the ACCA, the “categorical approach” is used, which examines the elements of the offense rather than the facts underlying the conviction or the defendant’s actual conduct to determine whether the enhancement applies. If the elements of the statute forming the basis of the defendant’s conviction are the same as or narrower than those of the generic offense, then there is a categorical match and the enhancement is proper. But a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. The categorical approach must also be used for prior juvenile cases.

        For a juvenile adjudication to constitute a predicate offense for an ACCA enhancement, it must involve the use or carrying of a firearm, knife, or destructive device.

        The elements Texas aggravated assault covers a greater swath of conduct than the elements of the relevant ACCA offense. Causing serious bodily injury does not categorically require the use or carrying of a knife, firearm, or destructive device. Per Tex. Penal Code § 1.07(a)(17), a deadly weapon is “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Thus, a deadly weapon could be anything, including a hand or foot. Thus, both prongs of Texas aggravated assault are broader and cover a greater swath of conduct than the relevant ACCA offense for juvenile offenses.

        Aggravated assault under Texas law does not categorically require the use or carrying of a knife, firearm, or destructive device, and cannot qualify as a predicate offense under ACCA for juvenile adjudications.

United States v. Ganzer, No. 17-51042, 2019 U.S. App. LEXIS 12203 (5th Cir. April 24, 2019) (designated for publication) [Good-faith exception to the exclusionary rule]

        Under United States v. Carrillo-Morales, 27 F.3d 1054, 1060–1061 (5th Cir. 1994), and United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998), when reviewing a denial of a motion to suppress evidence, the 5th Circuit reviews factual findings for clear error and the constitutionality of law enforcement action de novo. A district court’s ruling in a motion to suppress should be upheld if there is any reasonable view of the evidence to support it. The evidence must be viewed in the light most favorable to the party that prevailed.

        Under Davis v. United States, 564 U.S. 229, 231 (2011), the exclusionary rule was created by the SCOTUS to supplement the bare text of the Fourth Amendment, which protects the right to be free from unreasonable searches and seizures but is silent about how this right is to be enforced. It operates by generally barring the prosecution from introducing evidence obtained through a Fourth Amendment violation. Its purpose is to deter violations of the Fourth Amendment and not to redress the injury of the victim of an unreasonable search or seizure. Application of the rule is not a personal constitutional right. Nor is it automatic if there was a Fourth Amendment violation.

        Under United States v. Leon, 468 U.S. 897, 907–913 (1984), the good-faith exception allows admission of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but later invalidated. The exclusionary rule is designed to deter police misconduct and not judicial errors or misconduct. It cannot be expected and should not be applied to deter objectively reasonable law enforcement activity. Where the officer is acting as a reasonable officer would and should act in similar circumstances, excluding the evidence will not further the ends of the exclusionary rule. The costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate compels the conclusion that such evidence should be admissible in a prosecution. However, suppression remains an appropriate remedy where it is clear that the officer had no reasonable grounds for believing that the warrant was properly issued. The deterrence benefits of exclusion vary with the culpability of law enforcement conduct. When police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and outweighs the resulting costs. But when police act with an objectively reasonable good-faith belief that their conduct is lawful or their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force.

        The good-faith exception to the exclusionary rule can apply to warrants that are void ab initio.

        Under United States v. Leon, 468 U.S. 897, 923 (1984), there are four situations that indicate the presence of bad faith and require the application of the exclusionary rule despite a warrant having been issued: (1) the magistrate issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) the magistrate wholly abandoned his judicial role; (3) the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid.

United States v. Ricard, No. 18-30047, 2019 U.S. App. LEXIS 12598 (5th Cir. April 26, 2019) (designated for publication) [42 U.S.C. § 1320a-7b(b)(1)(A) (Medicare kickbacks); 18 U.S.C. § 1028(a)(7) (identity theft); 18 U.S.C. § 1001 (making a false statement to a federal agency); sufficiency of the evidence; deliberate ignorance instruction; Mandatory Victim Restitution Act (MVRA) (18 U.S.C. § 3663A)]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court views all evidence whether circumstantial or direct in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct. A preserved sufficiency claim is reviewed de novo but with substantial deference to the jury verdict.

        If a defendant fails to file motions for judgment of acquittal under Fed. Rule Crim. Proc. 29 after the close of the government’s evidence and after the verdict, review is under the manifest miscarriage of justice standard, in which a claim of insufficiency is rejected unless the record is devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking.

        To sustain a conviction under 42 U.S.C. § 1320a-7b(b)(1)(A) (Medicare kickbacks), the evidence must prove beyond a reasonable doubt that the defendant: (1) solicited or received renumeration, (2) in return for referring an individual for a service, (3) that may be paid under a federal healthcare program, and (4) that the defendant acted knowingly and willfully.

        Under 18 U.S.C. § 371, to prove a conspiracy, the government must show the defendant knowingly and voluntarily entered into an agreement with another person to pursue an unlawful objective and committed an overt act in furtherance of the unlawful objective.

        To prove a willful act under 42 U.S.C. § 1320a-7b(b)(1)(A) (Medicare kickbacks), the government must prove that the act was committed voluntarily and purposely with the specific intent to do something the law forbids (with bad purpose either to disobey or disregard the law). Under Bryan v. United States, 524 U.S. 184, 196 (1998), knowledge that the conduct is unlawful is all that is required.

        To sustain a conviction under 18 U.S.C. § 1028(a)(7) (identity theft), the evidence must prove beyond a reasonable doubt that the defendant: (1) knowingly transfers, possesses, or uses (2) without lawful authority (3) a means of identification of another person (4) with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.

        To sustain a conviction under 18 U.S.C. § 1001 (making a false statement to a federal agency), the evidence must prove beyond a reasonable doubt that the defendant: (1) made a statement (2) that was false (3) material (4) knowingly and willfully (5) falls within agency jurisdiction.

        When evidence is admitted under Fed. Rule Evid. 404(b), the abuse-of-discretion standard is heightened because evidence in criminal trials must be strictly relevant to the particular offense charged. A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. Evidence erroneously admitted under Rule 404(b) is subject to a harmless error inquiry so any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

        Under Fed. Rule Evid. 404(b)(1), evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. But under Fed. Rule Evid. 404(b)(2), bad-act evidence may be admissible for proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The test for admissibility requires a determination that the extrinsic-offense evidence: (1) is relevant to an issue other than the defendant’s character (such evidence is admissible if it is of similar subsequent conduct relatively closely linked in time and evidence of intent on that subsequent occasion allows inferences about the intent underlying the conduct); and (2) possesses probative value that is not substantially outweighed by its undue prejudice, which is based on: (i) the government’s need for the extrinsic evidence, (ii) the similarity between the extrinsic and charged offenses, (iii) the amount of time separating the two offenses, and (iv) the court’s limiting instructions, but should not be admitted if it is of a heinous nature (like a violent act) that would incite the jury to irrational decision by its force on human emotion, must be similar in magnitude to the charged crimes, and must not occupy a disproportionate amount of the jury’s time).

        A deliberate ignorance instruction serves to inform the jury that it may consider evidence of the defendant’s charade of ignorance as circumstantial proof of guilty knowledge. It guards against a defendant who chooses to remain ignorant so he can plead lack of positive knowledge in the event he should be caught. The danger of such an instruction is that when a defendant must have acted knowingly or willfully, the jury might convict for negligence or stupidity. A deliberate ignorance instruction should be given only when a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate ignorance. An inference of deliberate ignorance exists if there is evidence showing (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. The instruction may be proper if a defendant argues that he was not aware his conduct was illegal.

        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 that 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.

        Value of the improper benefit conferred used in U.S.S.G. § 2B4.1 equals gross value less direct costs.

        Restitution under the Mandatory Victim Restitution Act (MVRA) (18 U.S.C. § 3663A) is limited to the actual loss directly and proximately caused by the defendant’s offense of conviction. The burden to demonstrate the amount of the loss sustained by a victim is on the government. The MVRA approves burden-shifting based on which party is best able to satisfy those burdens and who has the strongest particular incentive to litigate the particular issues involved.

        In healthcare fraud cases, an insurer’s loss for restitution purposes must not include amounts that the insurer would have paid had the defendant not committed the fraud (defendant is entitled to have Medicare’s loss amount offset by the value of services provided to patients). A least a portion of the burden to establish an entitlement to a restitution credit should be transferred to the defendant in Medicare cases where the defendant claims that legitimate medical services were provided. The defendant has a burden to show entitlement to an offset against the amount of loss and meets it by establishing that: (1) the services he provided to Medicare beneficiaries were legitimate, and (2) Medicare would have paid for those services but for his fraud.

Texas Court of Criminal Appeals

Cauthren v. State, No. PD-0560-18, 2019 Tex.Crim.App. LEXIS 402 (Tex.Crim.App. April 17, 2019) (designated for publication) [DW finding in DWI cases]

        Under Moore v. State, 520 S.W.3d 906, 908 (Tex.Crim.App. 2017), in any felony offense in which it is shown that the defendant used or exhibited a deadly weapon, the trial court shall enter a DW finding in the judgment.

        Under Brister v. State, 449 S.W.3d 490, 493 (Tex.Crim.App. 2014), Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003), and Jackson v. Virginia, 443 U.S. 307, 319 (1979), a DW finding is legally sufficient if after viewing the evidence in the light most favorable to the finding, any rational trier of fact could have found beyond a reasonable doubt that a vehicle was used or exhibited as a deadly weapon. A motor vehicle is not a deadly weapon per se but can be found to be a deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury.

        All felony DWI cases do not warrant an automatic or per se deadly weapon finding. A deadly weapon finding in a DWI case is dependent upon testimony in the record about the manner of use.

        Under Sierra v. State, 280 S.W.3d 250, 254 (Tex.Crim.App. 2009), when assessing a defendant’s manner of driving, a court must examine whether the driving was reckless or dangerous. Evidence of the driver’s intoxication and the fact of a collision alone does not support a deadly weapon finding absent evidence that the vehicle was driven in a deadly manner during the commission of the offense. There must be evidence that the manner of driving was capable of causing death or serious bodily injury apart from the collision and intoxication.

Facts:

  • On June 16, 2012, at about 2:00 a.m., Appellant was driving on the Highway 6 frontage road near Tabor Road outside of Bryan when Elbrich stepped in front of his vehicle.
  • Appellant’s vehicle collided with Elbrich and Elbrich’s head hit the passenger-side windshield.
  • Elbrich had been walking on the right side of Tabor Road after leaving a bar nearby.
  • Appellant was driving about 30 mph on a lightly traveled frontage road when Elbrich stepped in front of his vehicle.
  • Appellant swerved to avoid Elbrich but was unable to avoid a collision.
  • Officers believe that by putting Elbrich in his vehicle and not driving to a hospital where Elbrich could get help, Appellant used his vehicle in a way that could have hurt Elbrich “real bad” or even resulted in death.
  • Appellant’s windshield was shattered with a spider web of broken glass. There was a large indentation in the windshield where it appeared Elbrich’s head stuck the vehicle, and the hood had minor damage.
  • Appellant stopped, got out of his vehicle, saw that Elbrich was bloody and unconscious, and put Elbrich in his vehicle to take him to the hospital.
  • Instead of going directly to the hospital, Appellant drove to a house located near downtown Bryan to exchange vehicles with his girlfriend.
  • While at this house, Appellant was involved in an altercation, and the police were called. Appellant smelled of alcohol, had slurred speech, his eyes were glassy and bloodshot, and was swaying as he moved.
  • Officers also noticed a bloody and incoherent Elbrich in the passenger seat of Appellant’s vehicle and the windshield of the vehicle shattered.
  • Appellant told officers that he had struck Elbrich when Elbrich stepped in front of his vehicle.
  • Appellant initially told officers that he had not had anything to drink that night, but later admitted to consuming two “Four Lokos.”
June 2019 SDR-1

 

  • At trial, Appellant testified that he drank the Four Lokos between 2:00 p.m. and 5:00 p.m. the previous day.
  • Appellant refused to perform SFSTs or submit to a blood draw.
  • Officers arrested Appellant for DWI.
  • Appellant was indicted and tried for felony DWI with a DW finding.
  • The jury found Appellant guilty as charged and found that Ap­pellant used or exhibited a deadly weapon (a motor vehicle) during the of the offense.
  • The jury sentenced Appellant to six years in TDCJ.
  • On appeal, Appellant argued that there was insufficient evidence to support the jury’s DW finding. The 13th Court of Ap­peals affirmed.

The evidence was insufficient to support the DW finding.

  • Under Tex. Penal Code § 49.04, a person commits an offense if he operates a motor vehicle in a public place while intoxicated. If the State proves two previous intoxication offenses related to operating a motor vehicle, the DWI becomes an F-3.
  • Under Moore v. State, 520 S.W.3d 906, 908 (Tex.Crim.App. 2017), in any felony offense in which it is shown that the defendant used or exhibited a deadly weapon, the trial court shall enter a DW finding in the judgment.
  • Under Brister v. State, 449 S.W.3d 490, 493 (Tex.Crim.App. 2014), Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003), and Jackson v. Virginia, 443 U.S. 307, 319 (1979), a DW finding is legally sufficient if after viewing the evidence in the light most favorable to the finding, any rational trier of fact could have found beyond a reasonable doubt that a vehicle was used or exhibited as a deadly weapon. A motor vehicle is not a deadly weapon per se but can be found to be a deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury.
  • All felony DWI cases do not warrant an automatic or per se deadly weapon finding. A deadly weapon finding in a DWU case is dependent upon testimony in the record about the manner of use.
  • Under Sierra v. State, 280 S.W.3d 250, 254 (Tex.Crim.App. 2009), when assessing a defendant’s manner of driving, a court must examine whether the driving was reckless or dangerous. Evidence of the driver’s intoxication and the fact of a collision alone does not support a deadly weapon finding absent evidence that the vehicle was driven in a deadly manner during the commission of the offense. There must be evidence that the manner of driving was capable of causing death or serious bodily injury apart from the collision and intoxication.
  • There is little evidence about the manner in which Appellant used his vehicle while committing DWI.
  • The State’s allegation that Appellant used his vehicle as a DW before and at the time of impact because Appellant failed to control his vehicle and either applied his brakes too late or never applied his brakes at all is not supported by the evidence and cannot be inferred from the facts. Reasonable inferences, however, must be supported by the evidence presented at trial. While a jury may infer reckless or dangerous driving from the evidence, such an inference based on the facts here goes too far.
  • After the collision, there is no evidence that Appellant operated his vehicle in a manner that this Court has recognized as reckless or dangerous. It is not reasonable to infer reckless or dangerous driving from the fact that by not taking Elbrich directly to get help, Appellant used his vehicle in a way that could have hurt Elbrich “real bad” or resulted in his death. Preventing Elbrich from receiving needed medical attention is not related to the manner in which Appellant operated his vehicle.
  • While Appellant’s decision to not take Elbrich directly to the hospital may have been reckless, it does not demonstrate that Appellant operated his vehicle in a manner that is reckless or dangerous.
  • The DW finding in the judgment of the court of appeals is reversed and the trial court’s judgment is reformed to delete it. 

Texas Courts of Appeals

Babel v. State, No. 14-17-00762-CR, 2019 Tex. App. LEXIS 3144 (Tex.App.—Houston [14th Dist.] April 18, 2019) (designated for publication) [Reasonableness of a mistake made by a cop]

        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 State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018), and the Fourth Amendment, an officer must have reasonable suspicion to justify a warrantless detention that amounts to less than a full custodial arrest. An officer may make a traffic stop if the reasonable-suspicion standard is satisfied. An officer has reasonable suspicion if the officer has specific, articulable facts that, combined with rational inferences from those facts, would lead the officer reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. We review reasonable suspicion by considering the totality of the circumstances. When a police officer stops an individual without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. Under Brodnex v. State, 485 S.W.3d 432, 437 (Tex.Crim.App. 2016), this examination is an objective standard that disregards the subjective intent of the officer and requires only some minimal level of justification for the stop.

        Under Heien v. North Carolina, 135 S.Ct. 530, 532, 536 (2014), an officer’s reasonable mistake does not render a traffic stop illegal. It is not required that factual determinations made by agents of the government always be correct, but that they always be reasonable.

Facts:

  • On September 5, 2016, at about 8:00 p.m., Trooper Huayamave was on routine patrol on highway FM 529 in Harris County.
  • The sky was clear and traffic was heavy.
  • Huayamave believed visibility was not less than 1,000 feet.
  • The video from Huayamave’s on-board dashcam (SX-1) showed that all but one other car and appellant had their head lamps illuminated.
  • The street lamps along the roadway were illuminated.
  • Businesses on the roadway were illuminated by private light poles.
  • The sky was not brightly lit. The dashcam continuously adjusted to accommodate for decreasing light in the sky.
  • Huayamave passed appellant while traveling in the same direction.
  • The headlights and taillights of appellant’s car were not illuminated.
  • After passing appellant’s vehicle, Huayamave drove ahead, stopped in the middle of the road in a turn lane. Huayamave watched appellant’s car to see if she was going to activate her lights. Appellant passed Huayamave’s patrol vehicle and did not have her headlights illuminated.
  • Huayamave pulled behind Appellant’s car and activated his emergency lights. Appellant immediately began to pull over.
  • Huayamave informed appellant that her front headlamps were not illuminated. Appellant responded in confusion about whether her headlamps were activated or not. Appellant never indicated a belief that she was not required to have her headlamps illuminated. Appellant asked Huayamave, “So they’re, like, completely off?” Huayamave indicated the possibility that the headlamps were burnt out. Huayamave reached into appellant’s vehicle and manually activated the headlights.
  • Huayamave asked appellant whether she’s “doing okay.” He told appellant that he observed her “driving kind of slowly, too.”
  • Huayamave began administering SFSTs and arrested appellant.
  • Appellant was charged by information with DWI (class B).
  • The State amended the information to reflect a BAC of at least .15, increasing the offense level to a Class A.
  • Appellant filed an MTS alleging that Huayamave made a traffic stop for an offense that was not being committed—an alleged traffic law violation of driving without headlights at nighttime (30 minutes after sunset) or when visibility is less than 1,000 feet.
  • Per appellant, sunset occurred at 7:37 p.m., so the earliest time that Huayamave could have pulled appellant over under Tex. Transp. Code § 547.302 is 8:07 p.m.
  • Thus, the arrest was made 7 minutes before the law mandated that appellant turn on her headlights. The stop occurred earlier.
  • The State concedes the 30-minute period had not expired when Huayamave initiated the stop but that Huayamave had a reasonable but mistaken suspicion that appellant was committing the crime of failing to display her lights.

It is okay that a cop is unable to figure out when sunset occurs and count forward 30 minutes provided the cop is “reasonable” in his “mistaken belief.”

Editor’s note: This is the complete relevant law on the standard of review for suppression hearings.

  • 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 State v. Cortez, 543 S.W.3d 198, 204 (Tex.Crim.App. 2018), and the Fourth Amendment, an officer must have rea­sonable suspicion to justify a warrantless detention that amounts to less than a full custodial arrest. An officer may make a traffic stop if the reasonable-suspicion standard is satisfied. An officer has reasonable suspicion if the officer has specific, articulable facts that, combined with rational inferences from those facts, would lead the officer reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity. We review reasonable suspicion by considering the totality of the circumstances. When a police officer stops an individual without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing. Under Brodnex v. State, 485 S.W.3d 432, 437 (Tex.Crim.App. 2016), this examination is an objective standard that disregards the subjective intent of the officer and requires only some minimal level of justification for the stop.
  • Under Heien v. North Carolina, 135 S.Ct. 530, 532, 536 (2014), an officer’s reasonable mistake does not render a traffic stop illegal. It is not required that factual determinations made by agents of the government always be correct, but that they always be reasonable.
  • Because Huayamave arrested appellant without a warrant, the State had the burden to prove reasonable suspicion for the traffic stop.
  • Under Tex. Transp. Code § 547.302, Duty to Display Lights, (a) A vehicle shall display each lighted lamp and illuminating device required by this chapter to be on the vehicle: (1) at nighttime; and (2) when light is insufficient or atmospheric conditions are unfavorable so that a person or vehicle on the highway is not clearly discernible at a distance of 1,000 feet ahead. (b) A signaling device, including a stoplamp or a turn signal lamp, shall be lighted as prescribed by this chapter. (c) At least one lighted lamp shall be displayed on each side of the front of a motor vehicle. (d) Not more than four of the following may be lighted at one time on the front of a motor vehicle: (1) a headlamp required by this chapter; or (2) a lamp, including an auxiliary lamp or spotlamp, that projects a beam with an intensity brighter than 300 candlepower.
  • Under Tex. Transp. Code § 541.401(5), “nighttime” is the period beginning one half hour after sunset and ending one half hour before sunrise.
  • It is undisputed that sunset occurred at 7:37 p.m. and Huayamave arrested appellant around 8:00 p.m. Thus, the arrest was made 7 minutes before the law mandated that appellant turn on her headlights and the stop occurred even earlier.
  • Because Huayamave saw that only appellant and one other person didn’t have their headlights on and the trial court decided that “it’s totally unreasonable to expect Huayamave to get on his radio and call headquarters to ask what time does the sun set tonight when he is in the middle lane on a five-lane road with moderate to heavy traffic traveling in both directions, it was objectively reasonable for an officer in Huayamave’s position to believe both that 30 minutes had elapsed after sunset and that appellant’s failure to turn on her headlights was a violation of Texas law.”

Editor’s note: Instead of protecting cops who violate the Constitution, how about mandate that cops should not stop people who are not committing any crime because they (the cop) can’t figure out when sunset occurs and count forward 30 minutes? This cop didn’t have to “get on his radio and call headquarters” to find out when the sun sets as the court contends. He could have figured it out in 10 seconds with an Internet search on his phone and looked at the time on the phone.

Erwin v. State, No. 06-18-00058-CR, 2019 Tex. App. LEXIS 3245 (Tex.App.—Texarkana April 24, 2019) (designated for publication) [Legally sufficient evidence for Tex. Penal Code § 32.53(b), exploitation of an elderly individual]

        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. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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.

        To obtain a conviction under Tex. Penal Code § 32.53(b) (exploitation of an elderly individual) regarding financial accounts, the State must prove beyond a reasonable doubt that (1) the defendant (2) for monetary or personal benefit, profit, or gain, (3) intentionally, knowingly, or recklessly (4) caused the exploitation of (5) an elderly person (6) by the illegal or improper use (7) of funds from the elderly person’s financial account.

        Under Wirth v. State, 361 S.W.3d 694, 697 (Tex.Crim.App. 2012), a culpable mental state can be established by inferences from the acts, words, and conduct of the defendant. To determine intent, a court should consider 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 commit the offense.