November 2017 SDR - Voice for the Defense Vol. 46, No. 9

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Tuesday, October 31st, 2017

Voice for the Defense Volume 46, No. 9 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

Although the Court has been in session since the last week of September, there have been no significant decisions handed down by the SCOTUS since the July 4, 2017, SDR (Vol. 32, No. 10). In the meantime . . .

November 2017 SDR-1

United States Court of Appeals for the Fifth Circuit

United States v. Bello-Sanchez, 16-41181, 2017 U.S. App. LEXIS 18490 (5th Cir. Sep. 25, 2017) (designated for publication)

        (1) Under U.S.S.G. § 3B1.2, a defendant may receive a two-level decrease in the offense level if the defendant played a “minor” role in the criminal activity, a four-level decrease if his role was “minimal,” and a three-level decrease for conduct falling between the two. A “minimal” participant is one who is “plainly among the least culpable of those involved in the conduct of a group” and who demonstrates a “lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others.” A “minor” participant is one “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.”

        (2) When considering relative culpability, the fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative, and the defendant may receive an adjustment if he is substantially less culpable than the “average participant” in the criminal activity. An “average participant” is a person “who actually participated in the criminal activity, so culpability is determined only by reference to his co-participants in the case.” A defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.

        (3) Under U.S.S.G. § 3B1.2 cmt. n.3(c), to address relative culpability, a district court “should consider” the following nonexhaustive factors: (i) The degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and (v) the degree to which the defendant stood to benefit from the criminal activity.

Garcia v. Sessions, 16-60015, 2017 U.S. App. LEXIS 16808 (5th Cir. Aug. 31, 2017) (designated for publication)

        (1) Under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843–844 (1984), courts afford agency interpretations of statutes “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute” or Congress has “unambiguously ex­pressed” a contrary intent (Chevron Deference).

        (2) Under 8 U.S.C. § 1229b(a), the Attorney General may cancel removal of a permanent resident alien who: (1) has been lawfully admitted for permanent residence for at least five years, (2) has resided in the United States for at least seven years after having been admitted in any status, and (3) has not been convicted of an aggravated felony.

        (3) Under 8 U.S.C. § 1101(a)(43)(F), “aggravated felony” includes “a crime of violence for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(F).

        (4) Under 8 U.S.C. § 1101(a)(48)(B), a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

        (5) Under Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997), an indeterminate sentence is to be considered a sentence for the maximum term imposed.

        (6) Under 8 C.F.R. § 1240.11(a)(1), an alien may apply for cancellation of removal to the IJ overseeing his removal proceedings.

        (7) When a person is required to remain in SAFPF until he receives permission to leave, that person is under a “term of imprisonment” since under Tex. Gov. Code § 493.009(a), SAFPF exists to “confine and treat” individuals. It is irrelevant that SAFPF is a condition of community supervision. And if the person is ordered to SAFPF for “no more than 1 year,” he is deemed to be sentenced to a “term of imprisonment” of 1 year regardless of how much he spends in SAFPF.

Editor’s Note: So now SAFPF is also a sucker’s deal for the noncitizen-client, including those who are here legally. The immigration-law madness continues.

United States v. Kiekow, 14-40700, 2017 U.S. App. LEXIS 18084 (5th Cir. Sep. 18, 2017) (designated for publication)

        (1) A defendant has the right to be tried in the district in which the crime [allegedly] took place. The government must prove venue by a preponderance of the evidence. United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009). Under 18 U.S.C. § 3237(a), any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

        (2) Under United States v. Romans, 823 F.3d 299, 309–310 (5th Cir. 2016), in conspiracy cases, venue is proper in any district where the agreement was formed or an overt act occurred. An overt act is an act performed to effect the object of a conspiracy. The transportation of drugs and drug proceeds is an overt act.

        (3) Drug-quantity and a defendant’s role in the crime are factual determinations. If the district court’s account of the evidence is plausible considering the entire record, the appellate court may not reverse even if had the court been sitting as trier of fact it might have weighed the evidence differently.

        (4) Under Peugh v. United States, 133 S.Ct. 2072, 2082–2084 (2013), where the wrong U.S.S.G. are consulted and those U.S.S.G. expose a defendant to greater punishment, the district court violates the Ex Post Facto Clause. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.

Montano v. Texas, 16-20083, 2017 U.S. App. LEXIS 14945 (5th Cir. Aug. 11, 2017, revised Sep. 1, 2017) (des­ig­nated for publication)

        (1) Although the text of 28 U.S.C. § 2241 does not require exhaustion (unlike the text of 28 U.S.C. § 2254), a petitioner who files a 28 U.S.C. § 2241 petition must exhaust state court remedies before a federal court will entertain a challenge to state detention. However, exhaustion is not required where the: (1) available state remedies either are unavailable or wholly inappropriate to the relief sought, or (2) attempt to exhaust state remedies would be a patently futile course of action.

        (2) If a federal habeas petitioner asserts a claim before every available state judicial forum, the applicant has exhausted that claim for filing the federal habeas petition. This is especially where the petitioner seeks protection under the Double Jeopardy Clause, which is to bar a second prosecution, as opposed to protection under the Speedy Trial Clause, which merely seeks a faster trial.

United States v. Bennett, No. 17-60038, 2017 U.S. App. LEXIS 20176 (5th Cir. Oct. 16, 2017) (designated for pub­li­cation)

        (1) Review of the propriety of jury instructions is for abuse of discretion, and the court considers whether the entire charge is a correct statement of law. A district court abuses its discretion by failing to issue a defendant’s requested instruction if the instruction: (1) is substantively correct; (2) is not substantially cov­ered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant’s ability to present effectively a defense.

        (2) Review of the denial of a motion for mistrial is for abuse of discretion, subject to harmless-error review: If a defendant moves for a mistrial because the jury heard prejudicial testimony, a new trial is required only if there is a significant possibility that the prejudicial evidence had a substantial impact upon the jury verdict, viewed considering the entire record. If the evidence is so prejudicial that the jury will unlikely be able to erase it from their minds, then a mistrial should be ordered. Great weight is given to the trial court’s assessment of the prejudicial effect of the evidence, and prejudice may be rendered harmless by a curative instruction. A district court abuses its discretion only if the evidence, when viewed in the context of the whole trial, is so highly prejudicial that it would have had a substantial impact on the verdict.

        (3) Rights under the Fourth, Fifth, and Sixth Amendments are personal in nature and cannot be asserted vicariously.

        (4) Closing argument is to assist the jury in analyzing, evaluating, and applying the evidence. A prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence. Prosecutors may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty and may not express personal opinions on the merits of the case or the credibility of witnesses.

        (5) Expressions of individual opinion of guilt are dubious at best because they take guilt as a predetermined fact. Such remarks may lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. Or, they may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Because a defendant is entitled to the presumption of innocence, a prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial nor sit as a thirteenth juror. To make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor’s remarks, but must also consider defense counsel’s opening salvo. However, two wrongs do not make a right.

        (6) If a court determines that a prosecutor’s closing arguments are improper, the court must determine whether the arguments affected the defendant’s substantial rights (whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict) by considering: (1) the magnitude of the prejudicial effect of the prosecutor’s remark, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.

United States v. McMahan, No. 16-10255, 2017 U.S. App. LEXIS 19476 (5th Cir. Oct. 5, 2017) (designated for publication)

        (1) Under Fed. Rule Crim. Proc. 35(b), upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. The government is under no obligation to file a Rule 35(b) motion, and if it does, “the sentencing court is not bound by the government’s recommendation on whether or how much to depart but must exercise its independent discretion.”

        (2) On its face, Fed. Rule Crim. Proc. 35(b) contains no right to notice and a hearing, and a defendant has no right to notice and hearing if the government files the motion.

United States v. Oti, No. 16-10386, 2017 U.S. App. LEXIS 19180 (5th Cir. Oct. 3, 2017) (designated for publication)

        (1) If a defendant moves for an acquittal under Fed. Rule Crim. Proc. 29 at the close of the government’s case-in-chief and again postverdict, a sufficiency claim is reviewed de novo. If a defendant fails to do so, under United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012), the claim is reviewed for plain error, allowing for reversal only if there is a “manifest miscarriage of justice,” which occurs only where “the record is devoid of evidence pointing to guilt” or the evidence is so tenuous that a conviction is “shocking.”

        (2) In a sufficiency review, under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the court asks whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

        (3) Under United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014), 18 U.S.C. § 1349, and 21 U.S.C. §§ 846 & 841(a)(1), the elements of conspiracy to distribute and dispense controlled sub­stances outside the scope of professional practice are: (1) an agreement by two or more persons to unlawfully distribute or dispense a controlled substance outside the scope of professional practice and without a legitimate medical purpose; (2) the defendant’s knowledge of the unlawful purpose of the agreement; and (3) the defendant’s willful participation in the agreement. An agreement may be inferred from concert of action, knowledge may be inferred from surrounding circumstances, and voluntary participation may be inferred from a collection of circumstances.

        (4) Under 18 U.S.C. § 924(c)(1)(A)(ii), the elements of a fire­arm count in furtherance of a crime are: (1) the defendant used, carried, or brandished a firearm (2) during and in relation to a crime of violence or drug trafficking crime. “In relation to” means that the firearm must have some “purpose or effect with respect to the drug trafficking crime, and its presence or involvement cannot be the result of accident or coincidence.” “Brandish” means to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, to intimidate that person, regardless of whether the firearm is directly visible to that person.

        (5) If improper evidence was objected to, the standard of review is abuse of discretion. Reversal will not occur unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. The government bears the burden of demonstrating that the error was harmless.

        (6) If improper evidence was not objected to, the standard of review is plain error, which requires the appellant to show that: (1) there was an error; (2) the error was clear or obvious; (3) the error affected substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings such that the court should exercise its discretion to reverse.

        (7) In United States v. Haines, 803 F.3d 713, 728–734 (5th Cir. 2015), the Fifth Circuit has urged the government to use caution when case agents also function as experts because the expert label “confers upon the agent the aura of special reliability and trustworthiness surrounding expert testimony.” An expert witness is permitted to give his opinion on an “ultimate issue” of fact, assuming he is qualified.

        (8) The deliberate ignorance instruction may be given in conspiracy cases. To the extent that the instruction is merely a way of allowing the jury to arrive at the conclusion that the defendant knew the unlawful purpose of the conspiracy, it is consistent with a finding that the defendant intended to further the unlawful purpose.

        (9) The proper factual basis for the deliberate ignorance instruction exists if the record supports inferences that: (1) the defendant was subjectively aware of a high probability of the existence of illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct. In deciding whether the evidence reasonably supports the jury charge, the court reviews the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the government.

        (10) Under United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), the deliberate ignorance instruction should be given only in rare instances because once a jury learns that it can convict a defendant despite evidence of a lack of knowledge, it will be misled into thinking that it can convict based on negligent or reckless ignorance rather than intentional ignorance. In other words, the jury may erroneously apply a lesser mens rea requirement, or a “should have known” standard of knowledge. The instruction is appropriate only in the circumstances where a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.

        (11) Under United States v. St. Junius, 739 F.3d 193, 204–205 (5th Cir. 2013), when the government’s theory is that the defendant knew of the criminality, giving the instruction is harmless where there is substantial evidence of actual knowledge.

United States v. Taylor, No. 16-11384, 2017 U.S. App. LEXIS 19954 (5th Cir. Oct. 12, 2017) (designated for pub­li­ca­tion)

        (1) Under 28 U.S.C. § 2106, the SCOTUS or federal appellate court may affirm, modify, vacate, set aside, or reverse any judgment, decree, or order of a court lawfully before it for review, and may remand the cause and direct the entry of the appropriate judgment, decree, or order, or require further proceedings.

        (2) Under Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), imposing an increased sentence under the residual clause of the ACCA violates the Constitution’s guarantee of due process. Under Welch v. United States, 136 S.Ct. 1257, 1268 (2016), Johnson was a new, substantive rule and applied retroactively.

        (3) Under United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017), as a matter of statutory construction, Texas’ injury-to-a-child offense is broader than ACCA’s elements clause, and thus no longer counts as an ACCA predicate after Johnson.

United States v. Young, No. 16-60790, 2017 U.S. App. LEXIS 19602 (5th Cir. Oct. 6, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2A3.5, three base offense levels are set for failure to register as a sex offender under 18 U.S.C. § 2250(a). Each level corresponds with one of three offender tiers established under SORNA.

        (2) Under 34 U.S.C. § 20911(4), a Tier III sex offender is a sex offender whose offense is punishable by imprisonment for more than 1 year and (A) is comparable to or more severe than (i) aggravated sexual abuse or sexual abuse (as described in 18 U.S.C. §§ 2241 and 2242); or (ii) abusive sexual contact (as described in 18 U.S.C. § 2244) against a minor who has not attained the age of 13 years. If a state statute is comparable to or more severe than the federal offenses of aggravated sexual abuse, sexual abuse, or abusive sexual contact, a defendant with a prior conviction under that state statute will be subject to the Tier III base offense level.

        (3) Under 18 U.S.C. § 2246(3), “sexual contact” as used under 18 U.S.C. § 2244 means “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

Texas Court of Criminal Appeals

Ex parte Aguilar, WR-82,014-01, 2017 Tex. Crim. App. LEXIS 894 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (2) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes, and legal propositions is not excusable, and if it prejudices a client, IATC may be found.

        (3) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        (4) Under Padilla, 559 U.S. 356 (2010), when the immigration consequences of a guilty plea are clear, trial counsel has a duty to correctly advise a defendant of those consequences.

        (5) Padilla is extended to where a defendant’s guilty plea causes him to automatically lose legal immigration status and become removable.

Burnett v. State, PD-0576-16, 2017 Tex. Crim. App. LEXIS 878 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        Under Tex. Code Crim. Proc. Art. 36.14 and Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009), it is the responsibility of the trial court to deliver to the jury a written charge setting forth the “law applicable to the case.” Part of this duty includes applying the law to the facts of the case. Although the trial court is obliged to include in the jury charge statutory definitions that affect the meaning of elements of the crime, the charge must also be tailored to the facts presented at trial. Thus, in a DWI case, the trial court must submit to the jury only the portions of the statutory definition of “intoxicated” that are supported by the evidence. To do otherwise is error.

Ex parte Evans, WR-83,873-02, 2017 Tex. Crim. App. LEXIS 892 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under U.S. Const. Art. VI, cl. 2 and Marbury v. Madison, 5 U.S. 137 (1803), the ultimate authority on federal constitutional law is the SCOTUS, and under Ex parte Ramey, 382 S.W.3d 396, 397 (Tex. Crim. App. 2012), and Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010), pronouncements by the SCOTUS about federal constitutional law are binding on the TCCA.

        (2) Under Hill v. Lockhart, 474 U.S. 52, 59 (1985), a defendant is entitled to effective assistance of counsel in the guilty-plea context.

        (3) Under Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012), to prevail on a claim of IATC due to bad advice about parole eligibility, a defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

        (4) If the basis of a constitutional claim predates the finality of the conviction, the claim may be successfully asserted.

State v. Ford, PD-1299-16, 2017 Tex. Crim. App. LEXIS 879 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) An appellate court must afford almost total deference to the trial court’s determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. The prevailing party has the benefit of deference on factual findings made in her favor. However, whether the facts, as determined by the trial court, add up to reasonable suspicion or probable cause is a question to be reviewed de novo.

        (2) For an arrest to be justified under the Fourth Amendment, an officer must have “probable cause to believe that the suspect has committed or is committing an offense.” Probable cause is a “fluid concept” that cannot be readily reduced to a neat set of legal rules, and involves “a reasonable ground for be­lief of guilt” that is “particularized with respect to the person to be searched or seized.” It is a greater level of suspicion than reasonable suspicion but falls far short of a preponderance of the evidence standard. If an officer has probable cause to arrest, a search incident to arrest is valid if conducted immediately before or after a formal arrest.

        (3) A customer can exercise control over property with an intent to deprive even if the customer has not yet left the store with the property if the customer attempts to concealing the property.

Editor’s note: By disturbing the trial court’s factual findings, which were supported by the record, the TCCA violates its own rule that an appellate court must afford almost total deference to the trial court’s determination of historical facts, and of application-of-law-to-fact issues that turn on credibility and demeanor, while reviewing de novo other application-of-law-to-fact issues. This is not funny.

Gamino v. State, PD-0227-16, 2017 Tex. Crim. App. LEXIS 942 (Tex. Crim. App. Sep. 27, 2017) (designated for publication)

        (1) A defendant is entitled to a jury instruction on self-defense if the issue [of self-defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.

        (2) When reviewing a trial court’s decision denying a request for a self-defense instruction, a reviewing court considers the evidence in the light most favorable to the defendant’s requested submission.

        (3) A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.

        (4) Under Tex. Penal Code §9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.

        (5) Under Tex. Penal Code § 9.32, a person is justified in using deadly force if he would be justified in using force under Tex. Penal Code § 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force.

        (6) Under Tex. Penal Code § 9.04, the threat of force is justified when the use of force is justified by chapter 9. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, provided the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Ex parte Lewis, WR-83,458-01 & WR-83,458-02, 2017 Tex. Crim. App. LEXIS 943 (Tex. Crim. App. Sep. 27, 2017) (designated for publication)

        (1) Under Tex. Health & Safety Code § 481.129(a)(5)(B), a person commits a crime by “knowingly . . . possessing, obtaining, or attempting to possess or obtain a controlled substance or an increased quantity of a controlled substance through use of a fraudulent prescription form.”

        (2) Under Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012), the TCCA held that under Tex. Health & Safety Code § 481.129(a)(5)(B), “the information that is written on the form is not the form itself,” but instead, “prescription form” means the preprinted form designed to have prescription information written on it. If the State indicts under § 481.129(a)(5)(B), the state must introduce evidence that the defendant presented a “fraudulent” form, not simply that the defendant committed “fraud” by interlineating upon an otherwise legitimate form.

        (3) Under Strickland, 466 U.S. 668 (1984), a defendant is entitled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (4) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes and legal propositions is not excusable and if it prejudices a client, IATC may be found.

        (5) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

November 2017 SDR-2

Prine v. State, PD-1180-16, 2017 Tex. Crim. App. LEXIS 880 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Under Strickland, 466 U.S. 668 (1984), a defendant is en­titled to postconviction relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient and; (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness.

        (2) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.”

        (3) The prejudice prong of Strickland requires a habeas applicant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the guilty-plea context, this amounts to no more than a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.”

        (4) Without a developed record, it is impossible to conclude that an attorney’s actions lacked reasonable strategic basis and thus amount to IATC.

Ex parte Speckman, WR-81,947-02, 2017 Tex. Crim. App. LEXIS 889 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) Good-cause to allow a late-state dismissal of an application filed under Tex. Code Crim. Proc. Art. 11.07 may exist: (1) for the presentation of additional evidence, (2) the filing of an amended or supplemental application raising new claims in the habeas court, or (3) a stay of the proceedings for a reasonable time, then the applicant cannot show good cause for his motion to dismiss without prejudice.

        (2) Habeas applicants seeking to dismiss an application filed under Tex. Code Crim. Proc. Art. 11.07 after the habeas court has factually developed the record and made FFCL should provide an explanation of good cause regarding why an alternative course of action, such as moving for new evidence to be considered, amending or supplementing their claims, or moving for a stay of the proceedings, would be inadequate to cure the defect in the pleadings or proof.

Ex parte St. Aubin, WR-49,980-12, 2017 Tex. Crim. App. LEXIS 885 (Tex. Crim. App. Sep. 20, 2017) (designated for publication)

        (1) If offenses in two proceedings are the same for double jeopardy purposes (successive-prosecutions double-jeopardy claim), then the second proceeding should never have occurred—the issue of the applicant’s guilt would never have been sub­mit­ted to a jury.

        (2) In a multiple-punishments double-jeopardy claim, where convictions occur at a single criminal trial, the role of the double-jeopardy guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing mul­ti­ple punishments for the same offense. Otherwise, the State has the right to prosecute and obtain jury verdicts on two offenses in a single trial, even if the offenses are the same for double jeopardy purposes.

State v. Bolles, No. PD-0791-16, 2017 Tex. Crim. App. LEXIS 1005 (Tex. Crim. App. Oct. 18, 2017) (designated for publication)

        (1) Under Texas Penal Code § 43.26(a), Possession of Child Pornography, a person commits an offense if: (1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct . . . ; and (2) the person knows that the material depicts the child. “Sexual conduct” means among other things the “lewd exhibition of the genitals.”

        (2) Zooming in and taking a magnified picture of a small portion of an existing photograph of a child—even a work of art—constitutes the creation of a new and separate visual depiction of that child. Such image recreation does not reset the date that the original image of that same underage child “was made,” such that the newly created image is no longer of a child under the age of 18. The manipulation of an existing image of a child is the creation of a different piece of visual material of that child at that age. A photograph captures a moment in time. The date that a photograph is taken does not change, and a photograph of a child is “made” on the date the photograph was taken. The age of the child at the time the image is made will always stay the same.

        (3) Child pornography can result from image manipulation of an original image that may not be considered child pornography.

        (4) In determining whether a visual depiction of a child constitutes a lewd exhibition of genitals, courts should consider whether: (1) the focal point of the visual depiction is the child’s genitalia, (2) the place or pose of the child in the photograph is sexually suggestive, (3) the child is depicted in an unnatural pose or inappropriate attire, (4) the child is fully or partially clothed or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, or (6) the visual depiction is intended or designed to elicit a sexual response in the viewer.

Editor’s Note: What an absurd opinion. Child pornography is vile. However, to conclude that a “crop-job” of an image that is not a “lewd exhibition” can be transformed into a “lewd exhibition” due to the crop-job defies logic. Here is The Birth of Venus, circa 1482, by Italian Renaissance painter Sandro Botticelli:

November 2017 SDR-3

Not too long ago, some unenlightened persons who were in positions of power would have considered this classical painting to be “obscene.” Based on the TCCA’s logic, a crop-job of the same painting would take on a completely new dimension, and the same unenlightened persons who considered Renaissance paintings to be “obscene” would argue that this crop-job to be “obscener” than the original:

November 2017 SDR-4

State v. Gutierrez, No. PD-0197-16, 2017 Tex. Crim. App. LEXIS 1005 (Tex. Crim. App. Oct. 18, 2017) (designated for publication)

        (1) Under State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007), review of a trial court’s grant or denial of a motion for new trial is for an abuse of discretion. The court abuses its discretion only if its ruling is not supported by any reasonable view of the record. When deciding whether a trial court erred in granting a new-trial motion, the reviewing court views the evidence in the light most favorable to the court’s ruling and gives almost total deference to the court’s findings of historical fact. When the court does not issue findings of fact, however, the reviewing court will imply findings necessary to support the ruling if they are reasonable and supported by the record.

        (2) Under Strickland, 466 U.S. 668 (1984), a defendant is en­titled to relief on an IATC claim if he demonstrates by a preponderance of the evidence that: (1) trial counsel’s performance was deficient; and (2) the applicant was prejudiced because of that deficient performance. Trial counsel’s performance is deficient if it falls below an objective standard of reasonableness. The prejudice prong of Strickland requires a defendant to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

        (3) Under Strickland, counsel enjoys a “strong presumption” that his “conduct fell within the wide range of reasonable professional assistance,” so when “a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.” However, to be reasonably likely to render reasonably effective assistance to his client, “a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand” because the Sixth Amendment guarantees a defendant the benefit of trial counsel who is familiar with the applicable law. Thus, ignorance of well-defined general laws, statutes and legal propositions is not excusable and if it prejudices a client, IATC may be found.

        (4) Even if a trial court grants a MNT on an issue that earlier formed the basis for motion for mistrial earlier because the trial court changes its mind by the time a defendant filed the MNT, that is not indicative of whether the trial judge likely would have granted a mistrial at the time the bias-issue arose.

        (5) When a juror withholds material information during voir dire that the defense, using due diligence, could not uncover, the parties are denied the opportunity to exercise their challenges, which hinders their selection of an impartial jury. A violation, by itself, is insufficient for reversal: The defendant must also have been harmed. When deciding whether the withheld information is material, a juror’s good faith is largely irrelevant. The information need not prove that the juror is biased, but it must tend to show bias. If the withheld information tends to show bias, the appropriate procedure is to hold a hearing at which evidence should be adduced regarding whether the juror is biased. If a trial judge finds that the juror is not actually biased, and that finding is supported by the record, then the defendant has not been harmed by the violation of his constitutional right to an impartial jury.

Editor’s Note: Apparently during a new-trial proceeding, a trial judge cannot change his mind and reverse a prior ruling he determines to have been a mistake.

Texas Courts of Appeals

Kelly v. State, 06-16-00185-CR, 2017 Tex. App. LEXIS 8300 (Tex. App. Texarkana Aug. 31, 2017) (designated for publication)

        (1) Under Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000), a trial court’s ruling on a motion to suppress is reviewed for abuse of discretion based on a bifurcated standard of review: (1) almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor and on rulings on application of law to fact questions (mixed questions of law and fact) if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor; and (2) de novo review of the trial court’s decisions applying applicable laws.

        (2) Under Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012), when a MTS is based on an argument that the search warrant’s supporting affidavit is deficient, a reviewing court may look only to the four corners of the supporting affidavit, and should view the magistrate’s decision to issue the warrant with great deference. After reviewing the supporting affidavit in “a commonsensical and realistic manner,” a reviewing court must uphold the magistrate’s decision so long as the magistrate had a substantial basis for concluding that probable cause existed. This review does not mean the reviewing court should be a “rubber stamp,” but “the magistrate’s decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

        (3) Under Crider v. State, 352 S.W.3d 704 (Tex. Crim. App. 2011), the factors to consider whether a warrant is stale and thus the likelihood that the evidence sought is still available and in the same place are: (1) the type of crime—short-term intoxication versus long-term criminal enterprises or conspiracy; (2) the suspect, whether he is a “nomadic” traveler, “entrenched” resident, or established ongoing businessman; (3) the item to be seized—“perishable and easily transferred” (evanescent alcohol, a single marijuana cigarette) or of “enduring utility to its holder” (a meth lab); and (4) the place to be searched—a “mere criminal forum of convenience or secure operational base”; and (5) the passage of time.

        (4) Under Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997), without evidence of tampering, most questions con­cern­ing care and custody of a substance go to the weight attached, not the admissibility, of the evidence. Under Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981), where the State shows the beginning and the end of the chain of custody, any gaps in between go to weight rather than admissibility, particularly where the chain goes inside the laboratory.

        (5) Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007), in evaluating legal sufficiency, an appellate court reviews all the evidence in the light most favorable to the judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. It is up to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

        (6) Under Tex. Penal Code Ann. § 1.07(a)(39), possession means “actual care, custody, control, or management.” Under Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), it is not the number of links between the person and the drugs that is dispositive, but rather the logical force of all the direct and circumstantial evidence, so in cases where illegal drugs are not found on the defendant’s person, but are instead found in an area to which the defendant and others had access, a court considers the following factors pointing to the defendant’s participation in the illegal possession: (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Liles v. State, 12-17-00084-CR, 2017 Tex. App. LEXIS 8463 (Tex. App. Tyler Sep. 6, 2017) (designated for publication)

        (1) Under Tex. Code Crim. Proc. Art. 17.09 § 2, once a defendant gives bail for his appearance in answer to a criminal charge, he shall not be required to give another bond for the same criminal action. Under Tex. Code Crim. Proc. Art. 17.09 § 3, if the trial court finds that “bond is defective, excessive, or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause,” the defendant may be rearrested and required to give another bond in an amount the judge deems proper.

        (2) Under Tex. Code Crim. Proc. Art. 17.15, when exercising discretion in setting bail, judges are governed by these rules: (1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with; (2) the power to require bail is not to be so used as to make it an instrument of op­pres­sion; (3) the nature of the offense and the circumstances under which it was committed are to be considered; (4) the ability to make bail is to be regarded, and proof may be taken upon this point; (5) the future safety of a victim of the alleged offense and the community shall be considered. Under Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981), other factors are: (1) the accused’s work record; (2) the accused’s family and community ties; (3) the accused’s length of residency; (4) the accused’s prior criminal record; (5) the accused’s conformity with the conditions of any previous bond; (6) the existence of out­standing bonds; and (7) aggravating circumstances alleged to have been involved in the offense, and (8) the accused’s ability to make the bond.

        (3) For purposes of bail, where a defendant is on bond for an offense, and new formal charges add a more serious manner or means of committing the offense, the new charges are not part of the “same criminal action.”

Whaley v. State, 07-15-00373-CR, 2017 Tex. App. LEXIS 8781 (Tex. App. Amarillo Sep. 15, 2017) (designated for publication)

        (1) In determining the legal sufficiency of the evidence, the reviewing court considers the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The jury is the sole judge of the credibility and weight to attach to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When the record supports conflicting inferences, the court presumes the jury resolved the conflicts in favor of the verdict. Each fact need not point directly and in­de­pendently to guilt so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        (2) Under Tex. Code Crim. Proc. Art. 37.09(1), Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011), and Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012), to determine whether a defendant is entitled to a requested lesser-included offense instruction: (1) a court considers whether the offense contained in the requested instruction is a lesser-included offense of the charged offense, which is the case if the greater-offense alleges all the elements of the lesser-offense, and (2) if so, the court must determine whether the admitted evidence supports the instruction, which is the case if some evidence from any source raises a fact issue on whether the defendant is guilty of only the lesser, regardless of whether the evidence is weak, impeached, or contradicted. There must be evidence directly germane to the lesser that would permit the jury to find that if appellant is guilty, he is guilty only of the lesser.

        (3) Offense-contact assault is not a lesser-included offense of aggravated assault because to establish aggravated assault, the State is not required to prove a defendant knew or reasonably should have believed another person would regard the contact as offensive or provocative.

Guzman v. State, No. 01-16-00262-CR, 2017 Tex. App. LEXIS 8528 (Tex. App. Houston [1st Dist.] Sep. 7, 2017) (designated for publication)

        (1) Under Ngo v. State, 175 S.W.3d 738, 743–744 (Tex. Crim. App. 2005), review of jury-charge error requires two steps: (1) determine whether error exists in the charge, and (2) if error exists, whether sufficient harm resulted from the error to require reversal. If the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant dem­onstrates that he suffered some harm because of the error. Review a trial court’s decision not to submit an instruction in the jury charge is for an abuse of discretion.

        (2) Under Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010), and Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the defendant bears the burden of establishing that the State lost or destroyed the evidence in bad faith. The State’s duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed, and the defendant must affirmatively show that the lost evidence was favorable and material to his defense. Bad faith requires a showing of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful. When conduct is only negligent, the failure to preserve evidence does not rise to the level of a due process violation.