May 2017 SDR - Voice for the Defense Vol. 46, No. 4

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Tuesday, May 9th, 2017

Voice for the Defense Volume 46, No. 4 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. Some opinions are 20 or more pages, so I focus on the most relevant parts to write summaries of one to four pages.

3. 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.

4. The summaries reflect the relevant facts and 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.”


Supreme Court of the United States

Dean v. United States, No. 15-9260, 2017 U.S. LEXIS 2190 (U.S. April 3, 2017)

        (1) When considering a sentence, district courts must: (1) impose a sentence sufficient, but not greater than necessary, to comply with the four purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation (“parsimony principle”); (2) consider the nature and circumstances of the offense and the history and characteristics of the defendant; (3) consider the need for the sentence imposed to serve the four aims of sentencing; and (4) consider the U.S.S.G.

        (2) 18 U.S.C. § 924(c) does not restrict the authority conferred on sentencing courts by § 3553(a) to consider a sentence imposed under § 924(c) when calculating a sentence for the predicate count. Although a mandatory sentence under § 924(c) must be imposed “in addition to the punishment provided” for the predicate crime, the limitation says nothing about the length of a non-§ 924(c) sentence, much less about what information a court may consider in determining that sentence.

        (3) Nothing prevents a district court from imposing a mandatory-minimum sentence under § 924(c) and as short as a one-day sentence for the predicate crime.

Moore v. Texas, No. 15-797, 2017 U.S. LEXIS 2185 (U.S. March 28, 2017)

        (1) Texas may no longer use the Briseno factors in deciding whether a person is intellectually disabled under Atkins

        (2) The TCCA’s conclusion that an IQ score of near-but-above 70 establishes that an inmate is not intellectually disabled is irreconcilable with Hall because under Hall, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” The standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” This imprecision in the testing instrument means that an individual’s score is best understood as a range of scores on either side of the recorded score, within which one may say an individual’s true IQ score lies.

United States Court of Appeals for the Fifth Circuit

United States v. Fisch, No. 15-20636, 2017 U.S. App. LEXIS 4499 (5th Cir. March 14, 2017) (designated for publication)

        (1) To support a conspiracy conviction under 18 U.S.C. § 371, the government must prove: (1) an agreement between two or more people to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the conspirators in furtherance of the conspiracy’s objective.

        (2) The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense.

        (3) Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence.

        (4) An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.

        (5) The elements of obstruction of justice [under 18 U.S.C. § 1503] are: (1) a judicial proceeding was pending; (2) the defendant knew of the judicial proceeding; and (3) the defendant acted corruptly with the specific intent to influence, obstruct, or impede that proceeding in its due administration of justice.

        (6) A defendant’s specific intent to obstruct justice “can be proven by showing the defendant’s endeavors had the ‘natural and probable effect of interfering with the due administration of justice.’” An attempt to obstruct justice violates the statute.

        (7) Due process requires the district court to hold a prompt hearing at which a defendant can contest a restraining order if the restrained assets are needed to pay for an attorney to defend him on associated criminal charges. However, the defendant must present detailed evidence of his financial circumstances.

United States v. Jordan, No. 15-20454, 2017 U.S. App. LEXIS 4443 (5th Cir. March 14, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 1521, Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title, whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an [officer or employee of the United States], on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

        (2) A violation of 18 U.S.C. § 1521 occurs based on the type of document filed and resulting harm without regard to the validity or existence of the identified collateral in such documents. It did not matter that the defendant does not identify specific property belonging to the judge and prosecutor.

        (3) The six-level sentencing enhancement under U.S.S.G. § 2A6.1(b)(1) for “threatening” to harm the property of a judge and prosecutor is valid where an expressed intent to harm property is made.

United States v. Kirkland, No. 16-40255, 2017 U.S. App. LEXIS 4837 (5th Cir. March 17, 2017) (designated for publication)

        (1) When an appellant fails to object to error, review is for plain error: (1) there must be an 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 in the ordinary case means he must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different; and (3) the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)

        (2) In the context of sentencing, an error affects an appellant’s substantial rights when there is a reasonable probability that, but for the error, he would have received a lesser sentence.

        (3) The Government’s breach of a plea agreement affects a defendant’s substantial rights unless the record indicates that that the district court would have imposed the same sentence regardless of the Government’s breach.

        (4) The fact that a district court exercises independent judgment—which it must do in every case—does not mean that the court did not also consider and give weight to the Government’s breach of a plea agreement.

        (5) The Government’s breach of a plea agreement constitutes a particularly egregious error that, in the absence of strong countervailing factors, seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        (6) When the Government’s breach of a plea agreement con­stitutes reversible error, a defendant can choose one of two reme­dies: (1) specific performance of the plea agreement and resentencing before a different judge, or (2) withdrawal of the guilty plea.

United States v. Lagos, No. 16-20146, 2017 U.S. App. LEXIS 4834 (5th Cir. March 23, 2017) (designated for publication)

        (1) The legality of a restitution award is reviewed de novo.

        (2) 18 U.S.C. § 3663A, the Mandatory Victims Restitution Act (MVRA), requires a sentencing court to order restitution for a victim’s “actual loss directly and proximately caused by the defendant’s offense of conviction.” This includes “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.”

        (3) Forensic expert fees, legal fees, and consulting fees incurred by a victim are included under the MVRA even if they are considered “consequential damages.”

United States v. Tract 31A, Lots 31 and 32, No. 16-40588, 2017 U.S. App. LEXIS 4165 (5th Cir. March 9, 2017) (designated for publication)

        (1) Under Tex. Fam. Code § 3.102, a spouse’s sole management community property includes his “(1) personal earnings; (2) revenue from separate property; (3) recoveries from personal injuries; and (4) the increase and mutations of, and the revenue from, all property subject to the spouse’s sole management, control and disposition.”

        (2) All other community property is joint management community property, unless the spouses have provided otherwise by power of attorney or other written agreement.

        (3) Joint management community property is subject to the joint management, control, and disposition of the spouses.

        (4) To cause a valid conveyance of joint management community property, both spouses must join in the transaction. If a spouse does not have a written power of attorney or other agreement, the spouse may not convey or otherwise dispose of joint management community property without the joinder of the other spouse.

        (5) Because property that appears to be subject to sole management may, in fact, be subject to joint management—and thus require joinder of both spouses to affect a valid conveyance—third parties that enter transactions involving community property might be placed in a precarious position.

        (6) Under Tex. Fam. Code § 3.104, property held in one spouse’s name is presumed to be sole management community property, and if the named spouse conveys such property to a third party such as the government under a plea agreement, the government is entitled to rely upon the authority of that spouse to convey the property if the third party “does not have actual or constructive notice of the spouse’s lack of authority” to deal with the property.

United States v. Castillo-Rivera, No. 15-10615, 2017 U.S. App. LEXIS 5570 (5th Cir. March 29, 2017) (en banc) (designated for publication)

        (1) Unlawful Possession of a Firearm by a Felon under Tex. Penal Code § 46.04 is an aggravated felony for purposes of the U.S.S.G.

United States v. Escamilla, No. 16-40333, 2017 U.S. App. LEXIS 5485 (5th Cir. March 29, 2017) (designated for publication)

        (1) When determining whether reasonable suspicion exists for probable cause when roving Border Patrol agents stop a vehicle in a “border area,” the courts consider the Brignoni-Ponce factors: (1) the area’s proximity to the border; (2) the area’s characteristics; (3) the usual traffic patterns on the road; (4) the agents’ previous experience with criminal activity; (5) information about recent illegal trafficking in the area; (6) the appearance of the vehicle; (7) the driver’s behavior; and (8) the pas­sengers’ number, appearance, and behavior.

        (2) An officer’s conduct is reasonably related to the justification for the stop when the officer “diligently pursues a means of investigation that is likely to confirm or dispel [the officer’s] suspicions quickly.”

        (3) To determine whether a suspect’s consent to search is voluntary, six factors are considered: (1) the voluntariness of the suspect’s custodial status; (2) the presence of coercive police procedures; (3) the nature and extent of the suspect’s cooperation; (4) the suspect’s awareness of his right to refuse consent; (5) the suspect’s education and intelligence; and (6) the suspect’s belief that no incriminating evidence will be found.

        (4) The scope of a person’s consent by what is objectively reasonable: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” A court must take account of any express or implied limitations attending that consent that establish the permissible scope of the search in terms of time, duration, area, or intensity.

        (5) Fourth Amendment rights are personal, and “may not be vicariously asserted.” Thus, a person has no standing to challenge a search or seizure of property that was voluntarily abandoned.

United States v. Guzman-Reyes, No. 16-10387, 2017 U.S. App. LEXIS 5926 (5th Cir. April 5, 2017) (designated for publication)

        (1) For purposes of U.S.S.G. § 2D1.1(b)(12), which provides a two-level enhancement if the defendant “knowingly maintains a premises for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution,” “maintains” is not expressly defined in the U.S.S.G., but under § 2D1.1 cmt. n.17, “[a]mong the factors the court should consider in determining whether the defendant ‘maintained’ the premises are (A) whether the defendant held a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access to, or activities at, the premises.”

        (2) Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises.

        (3) A PSR generally bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations. The defendant bears the burden of presenting evidence to show that the facts contained in the PSR are inaccurate or materially untrue. In the absence of rebuttal evidence, a district court may properly rely on the PSR and adopt the PSR’s factual findings as its own.

        (4) Under U.S.S.G. § 3B1.1 cmt. n.4, a defendant’s “recruitment of accomplices” and “degree of participation in planning or organizing the offense” are factors courts should consider when determining application of the enhancement.

United States v. Sanjar, et al, No. 15-20025, 2017 U.S. App. LEXIS 5342 (5th Cir. March 27, 2017) (designated for publication)

        (1) Under Fed. Rule Evid. 701, lay witnesses may offer opinion testimony if it is rationally based on their perception, helpful to determining a fact in issue, and not based on specialized knowledge. Even if such testimony requires some specialized knowledge, it is admissible so long as the lay witness offers straight­forward conclusions from observations informed by his or her experience.

        (2) Generic language may satisfy the “particularity” requirement of the Fourth Amendment if describing a more specific item is not possible. The Fourth Amendment requires that: (1) a warrant provide sufficient notice of what the agents may seize and (2) probable cause exist to justify listing those items as potential evidence subject to seizure.

        (3) Under Fed. Rule Evid. 801(d)(2), when offered by the government, a defendant’s out-of-court statements are those of a party opponent and thus not hearsay. When offered by the defense, however, such statements are hearsay (the defendant may reiterate the out-of-court statements on the stand if he chooses to testify). The rule of optional completeness under Fed. Rule Evid. 106 does not apply here because optional completeness protects against written works being presented out of context, not a statement by a party-opponent.

        (4) A district court may include a “deliberate indifference” instruction if the evidence shows that a defendant “deliberately closed his eyes to what would otherwise have been obvious to him.” This instruction may be given when a defendant claims a lack of guilty knowledge and the evidence supports an inference of deliberate indifference.

        (5) Under Pinkerton v. United States, 328 U.S. 640 (1946), a conspirator can be found guilty of a substantive offense committed by a coconspirator and in furtherance of the conspiracy so long as the coconspirator’s acts are reasonably foreseeable. A coconspirator cannot be found guilty if the substantive offense committed by one of the conspirators: (1) was not done in furtherance of the conspiracy, (2) did not fall within the scope of the unlawful project, or (3) was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. See Pattern Jury Instructions, Fifth Circuit (Criminal) § 2.17 (2015).

        (6) Wharton’s Rule provides that when the substantive crime requires more than one actor, conspiracy should not be additional punishment to a crime that already requires concerted action. This rule is implicated only when it is impossible under any circumstances to commit the substantive offense without cooperative action.

        (7) Under 42 U.S.C. § 1320a-7b(b)(1), one can violate the Anti-Kickback Statute just for soliciting a kickback, so convictions for both conspiracy to violate the Anti-Kickback Statute and violating that law are allowed.

        (8) Under 18 U.S.C. § 3663A(a)(2), when the offense of conviction involves a “scheme,” the restitution statute broadens the definition of victim to include “any person directly harmed by the defendant’s criminal conduct in the course of the scheme.” Restitution may include losses suffered by victims not named in the indictment so long as they are victims of the scheme. United States v. Pepper, 51 F.3d 469, 473 (5th Cir. 1995).

        (9) Under the Mandatory Victim Restitution Act, a district court cannot offset restitution with amounts collected under a forfeiture order. A district court has the statutory authority to impose both restitution and forfeiture, and there is no legal au­thority to offset one another. Restitution and forfeiture serve distinct purposes: restitution is remedial in nature, the goal of which is to make the victim whole, while forfeiture is punitive, and seeks to disgorge profits or property an offender obtains from illicit activity.

Whitaker v. Davis, No. 16-70013, 2017 U.S. App. LEXIS 5862 (5th Cir. April 4, 2017) (designated for publication)

        (1) Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), federal habeas relief based upon claims that were adjudicated on the merits by the state courts, as here, cannot be granted unless the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the SCOTUS” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

        (2) Impeachment of a defendant using a “proffer to plead guilty” does not violate Santobello and is not an “involuntary confession” because Santobello’s due process rule that a guilty plea requires fulfillment of terms agreed to by the government does not apply because the defendant did not plead guilty.

Texas Court of Criminal Appeals

Bell v. State, No. PD-0052-17, 2017 Tex. Crim. App. LEXIS 290 (Tex. Crim. App. March 22, 2017) (per curiam) (designated for publication)

        (1) Jurisdiction is an absolute, systemic requirement that operates independent of preservation of error requirements, and appellate courts must review jurisdiction regardless of whether it is raised by the parties.

McClintock v. State, No. PD-1641-15, 2017 Tex. Crim. App. LEXIS 291 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) The good-faith exception to a warrant under Davis v. United States, 564 U.S. 229 (2011) applies to Tex. Code Crim. Proc. Art. 38.23(a): An officer who reasonably believes that the information he submitted in a probable cause affidavit was legally obtained has no reason to believe the resulting warrant was tainted. Thus, in executing the warrant, that officer “acts in objective good faith reliance upon” the warrant if the warrant is facially valid.

Ex parte Owens, No. WR-83,551-01, 2017 Tex. Crim. App. LEXIS 344 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Under Ex Parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), if there is an allegation that a lab falsified drug-test results, the TCCA requires a showing of both falsity and materiality us­ing a five-factor test where the applicant first raises an inference of falsity by showing that: (1) the technician is a state actor, (2) the technician committed multiple instances of intentional misconduct in another case or cases, (3) the technician is the same that worked on the applicant’s case, (4) the misconduct is the type that would have affected the evidence in the applicant’s case, and (5) the technician handled and processed the evidence in the applicant’s case within roughly the same period of time as the other misconduct.

        (2) If the applicant satisfies the initial burden to raise an inference of falsity, the burden shifts to the State to offer evidence showing that the laboratory technician in question committed no such misconduct in the applicant’s case.

        (3) If the State fails to meet this burden, the applicant must prove that the false evidence was material to his conviction, which requires the applicant to show that knowing of the falsity of the evidence, would the applicant still have plead guilty or would he have insisted on going to trial? If he would have chosen to go to trial, the false evidence was material.

Ex parte Ulla, No. PD-0658-16, 2017 Tex. Crim. App. LEXIS 289 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Under Tex. Const. Article I, § 12, and Tex. Code Crim. Proc. Art. 12.05, an information tolls the running of limitations in a felony case.

Villa v. State, No. PD-0541-16, 2017 Tex. Crim. App. LEXIS 288 (Tex. Crim. App. March 22, 2017) (designated for publication)

        (1) Evidence of a person’s involvement in a gang is legally sufficient if the state proves the factors listed under Tex. Code Crim. Proc. Art. 61.02(c)(2), which allows a person to be included in the database of gangs if certain evidence is shown.

Powell v. Hocker, No. WR-85,177-01, 2017 Tex. Crim. App. LEXIS 374 (Tex. Crim. App. April 5, 2017) (designated for publication) (orig. proceeding)

        (1) Under Tex. Const. Art. V, § 6(a), Tex. Gov. Code § 22.221, and Tex. Gov. Code § 21.009(2), the mandamus jurisdiction of the courts of appeals does not extend to a writ of mandamus against a county court at law judge.

        (2) Under State ex rel. Young, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007), to qualify for mandamus relief, a petition must: (1) show that he has no adequate remedy at law, and (2) demonstrate a clear right to the relief. Where the conduct of a court is involved, a relator must demonstrate that the act he seeks is ministerial, not judicial, in nature. An act is ministerial, and therefore subject to the compulsion of mandamus, even though a judicial decision is involved, when the governing law is of such absolute clarity and certainty that nothing is left to the court’s discretion.

        (3) Article 39.14 plainly indicates that copies of discovery should be turned over to defense counsel, that the defendant may “view” them, but the defendant may not obtain copies. It also does not require the State to provide copies to a pro se defendant.

Thomas v. State, No. PD-0295-16, 2017 Tex. Crim. App. LEXIS 373 (Tex. Crim. App. April 5, 2017) (designated for publication)

        (1) In interpreting plea agreements, the TCCA applies general contract-law principles. Courts look to the written agreement and the formal record to determine the terms of the plea agreement, and terms are implied only when necessary to effectuate the intention of the parties.

        (2) When a portion of a plea-bargain (either a sentence-bargain or charge-bargain) is unenforceable to one party’s detriment, the proper remedy is to set aside the plea agreement and restore the parties to their original bargaining positions.

Texas Courts of Appeals

Atkinson v. State, No. 13-16-00344-CR, 2017 Tex. App. LEXIS 2255 (Tex. App.—Corpus Christi March 16, 2017) (designated for publication)

        (1) A person commits manslaughter if he recklessly causes the death of an individual. Manslaughter is a result-oriented offense: The mental state of recklessness must relate to the results of the defendant’s actions. A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur.

        (2) Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

        (3) In determining whether the culpable mental state was proven, the jury can use its collective common sense and may apply common knowledge and experience.

Lombardo v. State, No. 14-15-00406-CR, 2017 Tex. App. LEXIS 2285 (Tex. App.—Houston [14th Dist.] March 16, 2017) (designated for publication)

        (1) There are three limits to a trial court’s discretion to revoke probation for failure to pay: (1) the State must prove at least one violation of the terms and conditions of community supervision; (2) an appellate court will review the trial court’s decision for an abuse of discretion; and (3) federal due process requires that a trial court consider alternatives to imprisonment before incarcerating an indigent defendant who is unable to pay amounts due under community supervision.

        (2) Federal due-process concerns under Bearden of jailing defendants for failure to pay restitution are met if the failure was willful.

        (3) When a defendant is sentenced to “regular” community supervision, the defendant is sentenced to a determinate number of years, but that sentence is suspended for a period of community supervision. Upon revocation, the trial court has the option of imposing a sentence of up to the determined number of years, but no less than the minimum for the offense.

        (4) A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal.

        (5) When faced with a void sentence, a reviewing court cannot reform it, but must remand the case back to the trial court to determine the correct sentence and enter a new judgment.

Routh v. State, No. 11-15-00036-CR, 2017 Tex. App. LEXIS 2833 (Tex. App.—Eastland March 31, 2017) (designated for publication)

        Under Tex. Penal Code § 8.01, “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” “Wrong” under Tex. Penal Code § 8.01 means “illegal.” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).

        (1) The question for deciding insanity is, “Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?”

        (2) A defendant bears the burden to prove his affirmative defense of insanity by a preponderance of the evidence.

        (3) In a challenge to the legal sufficiency of the evidence to support a rejection of an affirmative defense, the standard of review is from Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005): (1) whether there is more than a scintilla of evidence to support the jury’s rejection of Appellant’s affirmative defense, and review the evidence in the light most favorable to the verdict, and we credit any favorable evidence if a reasonable factfinder could and disregard any contrary evidence unless a reasonable factfinder could not; and (2) if there is no evidence to support the jury’s rejection of Appellant’s affirmative defense, then Appellant must establish as a matter of law the elements of the affirmative defense.

        (4) Evidence supporting or rejecting an affirmative defense that is subject to a credibility assessment is not disturbed by an appellate court because it is within the jury’s province to disregard that evidence. Only if the party establishes that the evidence conclusively proves his affirmative defense and that no reasonable jury was free to think otherwise may the reviewing court conclude that the evidence is legally insufficient to support the jury’s rejection of the defendant’s affirmative defense.

        (5) To determine whether the evidence was factually sufficient to support the jury’s rejection of Appellant’s affirmative defense, a reviewing court looks to whether the jury’s adverse finding was so against the great weight and preponderance of the evidence as to be manifestly unjust. This evidence is viewed in a neutral light, but the reviewing court may not substitute its judgment in place of the jury’s assessment of the weight and credibility of the witnesses’ testimony. If the reviewing court finds that the evidence that supports the affirmative defense so greatly outweighs the State’s contrary evidence that the verdict is manifestly unjust, the reviewing court will reverse the trial court’s judgment and remand the case for a new trial.

        (6) Under Tex. Code Crim. Proc. Art. 38.22 § 3(a)(2), a defendant must knowingly, intelligently, and voluntarily waive his rights before a statement made while he was in custody may be used against him. The determination of whether a statement is voluntary is based on an examination of the totality of circumstances surrounding its acquisition. There is no requirement that a defendant explicitly waive his rights. A waiver can be inferred from the actions and words of the defendant during the interview.

Ashton v. State, Nos. 01-16-00004-CR & 01-16-00005-CR, 2017 Tex. App. LEXIS 3021 (Tex. App.—Houston [1st Dist.] April 6, 2017) (designated for publication)

        (1) Under U.S. Const. Amend. VI and Tex. Const. Art. 1, § 10, a person has the right to an impartial jury. When a person serves on a jury but is partial, biased, or prejudiced and that juror is selected not through the fault or lack of diligence of defense counsel but based on inaccurate answers in voir dire, a new trial can be obtained.

        (2) When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. However, the defendant bears the burden to ask questions to determine a juror’s potential bias. The defendant must ask specific questions and cannot rely on broad ones, to satisfy this due diligence obligation. Unless the defendant asks questions designed to illicit information that might indicate a juror’s inability to be impartial and truthful, the material information which a juror fails to disclose is not “withheld.”

Ex parte Baham, No. 05-16-00643-CV, 2017 Tex. App. LEXIS 2942 (Tex. App.—Dallas April 5, 2017) (designated for publication)

        (1) A party can prevail in a restricted appeal only if it was a party in the underlying suit and did not participate in the hearing that resulted in the judgment complained of, filed its notice of appeal within six months after the judgment was signed, and establishes error apparent on the face of the record. Tex. Rule App. Proc. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam).

        (2) Under Tex. Code Crim. Proc. Art. 55.02 § 1, after requesting expunction, the defendant must provide the trial court with information set forth in Tex. Code Crim. Proc. Art. 55.02 § 2(b). Once the necessary information is provided, the trial court “shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(A) not later than the 30th day after the date of the acquittal.”

        Editor’s Note: the legislature should add language to Article 55.01 and the TCCA and SCOT should add similar language to the Tex. Rule App. Proc. allowing mandatory attorney’s fees and costs to an expunction petitioner when TDPS brings patently frivolous restricted appeals such this.

Ex Parte Chung, No. 05-15-01477-CV, 2017 Tex. App. LEXIS 2812 (Tex. App.—Dallas March 30, 2017) (designated for publication)

        (1) Expunction is a statutorily-created remedy that allows a person who has been arrested for the commission of an offense to have the records and files relating to the arrest expunged if the person meets the statutory requirements of Tex. Code Crim. Proc. Art. 55.01. Because it is created by statute, all its provisions are mandatory and exclusive and require strict compliance with Tex. Code Crim. Proc. Art. 55.01. A trial court has no equitable power to extend the protections of the expunction statute beyond the statute’s stated provisions. The petitioner carries the burden of proving compliance with the statutory requirements.

        (2) Review of a trial court’s ruling on a petition for expunction is for an abuse of discretion. To the extent that a ruling on expunction turns on a question of law, review is de novo because a trial court has no discretion in determining what the law is or applying the law to the facts. A trial court abuses its discretion if it orders an expunction of records despite a petitioner’s failure to satisfy all the statutory requirements.

        (3) Under Tex. Code Crim. Proc. Art. 55.01, a party placed on community supervision does not qualify for expunction even if his conviction is set aside via judicial clemency.

Collins v. State, No. 09-15-00089-CR, 2017 Tex. App. LEXIS 2645 (Tex. App.—Beaumont March 29, 2017) (designated for publication)

        (1) Under the current Tex. Fam. Code § 54.02(j), a juvenile court may transfer a case involving a juvenile to a district court if the defendant is 18 years of age or older at the time of the hearing and if he was 10 years of age or older when he committed a crime defined as a capital felony or as murder.

        (2) Under U.S. Const. Art. I, § 10, cl.1 (“No State shall pass any ex post facto Law”), and Tex. Const. Art. I, § 16 (“No ex post facto law shall be made”), statutes may not be applied retroactively in a way that changes the punishment that applied to a crime on the date the crime was committed.

        (3) The factors used to determine whether a statute operates retroactively in a way that is constitutionally prohibited under the Ex Post Facto clause are whether: (1) the statute assigns more disadvantageous criminal consequences to an act than did the law in place when the act occurred (it is irrelevant whether the statutory change touches any vested rights); (2) whether the sanction involves an affirmative disability or restraint; (3) it has traditionally been regarded as a punishment; (4) it comes into play only on a finding of scienter; (5) its operation will promote the traditional aims of punishment—retribution and deterrence; (6) the behavior to which it applies is already a crime; (7) an alternative purpose to which it may rationally be connected is assignable to it; (8) it appears excessive in relation to the alternative purpose assigned; and (9) the change to the statute was procedural or substantive (laws altering procedure do not generally fall within the prohibition).

        (4) If a person receives the same sentence under a new law that he would have received under an old law, there is no violation of the Ex Post Facto law.

Davis v. State, No. 01-16-00079-CR, 2017 Tex. App. LEXIS 3022 (Tex. App.—Houston [1st Dist.] April 6, 2017) (designated for publication)

        (1) Jurisdiction may be challenged for the first time on appeal.

        (2) Under Tex. Code Crim. Proc. Art. 20.09, a district court forms and impanels a grand jury and empowers it to inquire into indictable offenses. After hearing testimony, a grand jury votes concerning the presentment of an indictment. Under Tex. Code Crim. Proc. Art. 20.19, after all testimony that is accessible to the grand jury shall have been given in respect to any criminal accusation, the vote shall be taken as to the presentment of an indictment. After presentment, the State files the indictment in a court with jurisdiction to hear the case. Under Tex. Gov. Code § 74.094, all state district courts within the same county have jurisdiction over the same cases.

        (3) Under Tex. Const. art. V, § 11, Tex. Gov. Code § 24.024, and See Tex. Gov. Code § 74.094, (1) district judges may exchange districts, or hold court for each other when they may deem it expedient, and shall do so when required by law; (2) in a county having two or more district courts, the district judges may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the court; (3) district courts within the same county may exchange benches for preliminary proceedings; (4) if a grand jury in one district court returns an indictment in a case, the case may be then assigned to any district court within the same county.

Ex Parte Navarro, No. 14-16-00606-CR, 2017 Tex. App. LEXIS 3001 (Tex. App.—Houston [14th Dist.] April 6, 2017) (designated for publication)

        (1) The Double Jeopardy Clause protects an accused against “a second prosecution for the same offense after acquittal.” A greater offense is “the same offense” for jeopardy purposes as any lesser offense included within it.

        (2) Under Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993), if a defendant is convicted of an offense that contains an aggravating element and the conviction is overturned because there was insufficient evidence of the aggravating element, the defendant may be retried on the lesser offense.

Oliva v. State, No. 14-15-01078-CR, 2017 Tex. App. LEXIS 2594 (Tex. App.—Houston [14th Dist.] March 28, 2017) (designated for publication)

        (1) Under legal-sufficiency review, the reviewing court views all the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact must resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The trier of fact considers direct and circumstantial evidence and properly and improperly admitted evidence. When the record supports conflicting inferences, appellate courts presume the trier of fact resolved the conflicts in favor of the verdict.

        (2) A punishment enhancement is a “fact” that “increases the punishment range to a certain range above what is ordinarily prescribed for the indicted crime. It does not change the offense, or the degree of the offense. A defendant is entitled to written notice of a punishment-enhancement allegation, but it need not be pled in the indictment nor proven during the guilt-innocence phase of trial.

        (3) An element is a fact that is legally required for a factfinder to convict a person, and must be proven beyond a reasonable doubt at the guilt-innocence phase of trial. A prior DWI conviction is an element of Class A DWI, and a fact that is legally required for a factfinder to convict a person of Class A DWI. If the defendant has a prior DWI conviction, the statute enhances the degree of the offense, from a Class B misdemeanor DWI to a Class A misdemeanor DWI.

Pegues v. State, No. 01-16-00317-CR, 2017 Tex. App. LEXIS 2618 (Tex. App.—Houston [1st Dist.] March 28, 2017) (designated for publication)

        (1) In a review of the denial of a motion under Tex. Code Crim. Proc. Art. 64.03, the reviewing court affords almost total deference to the trial court’s determination of historical-fact issues and application-of-law-to-fact issues that turn on credibility and demeanor, but reviews de novo other application-of-law-to-fact issues. The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have caused appellant to not be convicted is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo.

        (2) The purpose of DNA testing under Tex. Code Crim. Proc. Art. 64.03 is to allow a convicted person to establish innocence through DNA test results that exclude the person as the perpetrator of the offense. Under Tex. Code Crim. Proc. Art. 64.03(a), a court may order postconviction DNA testing only if the court finds that: (1) identity was or is an issue in the case; and (2) the convicted person has established by a preponderance of the evidence “that the person would not have been convicted if exculpatory results had been obtained through DNA testing.”

        (3) The issue is not whether the State presented ample evidence of the defendant’s guilt, but whether exculpatory DNA test results that exclude the defendant as the source of the material would establish by a preponderance of the evidence that the defendant was not the assailant and thus would not have been convicted.

        (4) Under Tex. Code Crim. Proc. Art. 64.03(b), a defendant’s confession or other admission of guilt does not remove identity as an issue because a court is prohibited from finding that identity was not an issue solely because of a plea, confession, or admission.