November 2018 SDR - Voice for the Defense Vol. 47, No. 9

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Tuesday, November 6th, 2018

Voice for the Defense Volume 47, 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

Editor’s Note: the SCOTUS is back in session, but no relevant opinions have been handed down yet. I will refrain from posting a cartoon about the recent confirmation-debacle.

November 2018 SDR-1

United States Court of Appeals for the Fifth Circuit

United States v. Gomez, No. 17-10690, 2018 U.S. App. LEXIS 27497 (5th Cir. Sep. 26, 2018) (designated for publication) [§ 3B1.1(c) leader-organizer enhancement; application of Dean v. United States, 137 S.Ct. 1170 (2017), to discretionary counts]

        Under U.S.S.G. § 3B1.1(c), a two-level adjustment applies if the defendant was an organizer, leader, manager, or supervisor in criminal activity other than activity involving five or more participants or any otherwise extensive activity. In determining whether a defendant had a leadership role, a district court should consider: whether the defendant exercised decisionmaking authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

        Under Dean v. United States, 137 S.Ct. 1170 (2017), 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. 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.

Editor’s Note: In Dean, the SCOTUS made three holdings:

  • 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.;
  • 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; and
  • 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.

Editor’s Note: Luckily for Mr. Gomez, this panel followed the law and perhaps saw the absurdity of a 652-month sentence for drug-crimes that did not directly involve death or physical injuries to others.

November 2018 SDR-2

Texas Court of Criminal Appeals

Beham v. State, No. PD-0638-17, 2018 Tex. Crim. App. LEXIS 815 (Tex. Crim. App. Sep. 12, 2018) (designated for publication) [Tex. Rule Evid. 401 (relevance) and social media]

        Trial court decisions to admit or exclude evidence will not be reversed absent an abuse of discretion and will be upheld as long as it was within the “zone of reasonable disagreement.”

        Under Tex. Rule Evid. 401, evidence is relevant if it has any tendency to make a “fact of consequence” more or less probable than it would be without the evidence. The trial court’s role in determining relevance as a threshold matter is not exclusively a function of rule and logic. The court must rely upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The determination of relevance depends upon one judge’s perception of common experience. The process cannot be wholly objectified.

        Under Tex. Code Crim. Proc. Art. 37.07 § 3(a), evidence may be offered in the punishment stage as to any matter the court deems relevant to sentencing, including the defendant’s reputation and character. Evidence is relevant to sentencing if it is helpful to the jury in determining the appropriate sentence for the defendant.

        A trial court may conclude within the zone of reasonable disagreement that how a person portrays himself within his social circles gives some useful indication of what his values are.

Facts:

  • Beham was convicted of aggravated robbery for robbing a hotel clerk on December 22, 2013. He was sentenced to 25 years, which was reversed for a punishment hearing only.
  • The State presented five photographs taken from Beham’s “Facebook” profile that show: Beham displaying what appears to be gang-related hand signs, wearing red clothing and accessories (one containing the phrase “Money, Power, Respect” in large font), Beham posing with stacks of money and packaged bags of marijuana, and Beham posing next to a car with other men while he points a gun at the camera.
  • Officer Kirkland, an experienced detective specializing in gang activity, testified over objection that based on his law-enforcement experience, Beham was “holding himself out to be” a member of a criminal street gang. The trial judge found that Kirkland’s testimony would be admissible as it went to Beham’s “character” and allowed the testimony “as long as the State does not attempt to argue that Beham is in a gang.” Kirkland described “indicators” he looks for in determining a person’s gang status and explained that gangs are involved in crimes like aggravated robbery, drugs, thefts, and assaults. Kirkland said that in his opinions, the photographs showed that Beham was “holding himself out as” a gang member. Kirkland admitted that he had never met Beham, had no knowledge of Beham’s involvement in any particular gang, and did not have a “file” on him.
  • Beham received 40 years in TDCJ.
  • The Sixth Court of Appeals reversed Beham’s sentence, holding that Kirkland’s testimony was not relevant to the jury’s determination of proper punishment and that there was no evi­dence presented of the character and reputation of the gang Beham allegedly sought to emulate.

A trial court may conclude within the zone of reasonable disagreement that how a person portrays himself within his social circles gives some useful indication of what his values are.

  • Trial court decisions to admit or exclude evidence will not be reversed absent an abuse of discretion and will be upheld as long as it was within the “zone of reasonable disagreement.”
  • Under Tex. Rule Evid. 401, evidence is relevant if it has any tendency to make a “fact of consequence” more or less probable than it would be without the evidence. The trial court’s role in determining relevance as a threshold matter is not ex­clusively a function of rule and logic. The court must rely upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The determination of relevance depends upon one judge’s perception of common experience. The process cannot be wholly objectified.
  • In the punishment context, there are no distinct facts of consequence that proffered evidence can be said to make more or less likely to exist. Deciding what punishment to assess is a normative process, not intrinsically factbound.
  • Under Tex. Code Crim. Proc. Art. 37.07 § 3(a), evidence may be offered in the punishment stage as to any matter the court deems relevant to sentencing, including the defendant’s reputation and character. Evidence is relevant to sentencing if it is helpful to the jury in determining the appropriate sentence for the defendant.
  • A trial court may conclude within the zone of reasonable dis­agreement that how a person portrays himself within his social circles gives some useful indication of what his values are. Although those who portray themselves as loving and devoted husbands, wives, fathers, or mothers are often anything but, the evidence is not without normative relevance simply because it fails to conclusively prove that a defendant has a character flaw.
  • When the State intends to put on evidence of a defendant’s membership in an organization or group, it must make some showing of the group’s violent or illegal activities for the evidence to be relevant to sentencing. Evidence that a person portrays himself as a member of a criminal association may, in some cases, be relevant to the person’s character in sentencing even if the State cannot show that he is a member of such an association.
  • The trial court did not abuse its discretion. The judgment of the court of appeals is reversed and remanded.

Editor’s note: Facebook stupidity strikes again! If you’ve wondered what Facebook for Dogs would be like (I know it’s something you’ve often wondered about):

November 2018 SDR-3

Briggs v. State, No. PD-1359-17, 2018 Tex. Crim. App. LEXIS 924 (Tex. Crim. App. Oct. 3, 2018) (designated for publication) [applicability of McNeely in the ineffective-counsel context]

        A trial court’s ruling on an MNT is reviewed under an abuse of discretion standard, a deferential standard of review that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling. A trial court’s ruling will be upheld if it is correct on any applicable legal theory, even if the trial court articulated an invalid basis.

        Under Missouri v. McNeely, 569 U.S. 141 (2013), the natural metabolization of alcohol does not present a per se exigency that would on its own fall under an exception to the warrant re­quirement. Exigency in this context must be determined case by case based on the totality of the circumstances. A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search where there is compelling need for official action and no time to secure a warrant. If officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

        Under Villarreal v. State, 475 S.W.3d 784 (Tex. Crim. App. 2014), a nonconsensual search of a DWI suspect’s blood conducted per the mandatory blood-draw and implied-consent statutes in the absence of a warrant or any applicable exception to the warrant requirement violates the Fourth Amendment.

        A plea of no contest or guilty must be free and voluntary. When a defendant enters into a plea, attesting that she understands the nature of her plea and that it is being made knowingly and voluntarily, she has the burden on appeal to show that her plea was involuntary. A plea based on erroneous information conveyed by trial counsel may be involuntary.

        McNeely and its progeny may or may not affect the admissibility of blood-draw results.

Facts:

  • On October 14, 2010, at 2:00 a.m., as Officer Antillon was driving his personal car home after his shift, Sergio stopped on the right shoulder to assist a driver whose truck had collided with the guardrail.
  • Briggs’ vehicle hit the rear of the truck, which then struck Antillon and Sergio. The truck driver was thrown alongside the highway, and Antillon was thrown into the guardrail. Antillon died from his injuries.
  • Briggs did not perform well on the SFSTs and was arrested for DWI.
  • Briggs refused to give a breath or blood sample. She was taken to the police station for processing and advised that she would have to give a mandatory blood sample because she was involved in an accident involving injury or death.
  • About two hours had passed since the accident. Briggs signed the refusal form and was taken to the police station infirmary.
  • Without a warrant, a nurse drew a sample of Briggs’ blood at 5:15 a.m. on October 14, 2010. Her BAC was 0.14 g/dL.
  • Briggs’s blood sample was taken about 3 hours after the accident, and had the police sought to obtain a warrant before getting the sample, it would have taken another 1.5 hours.
  • Trial counsel did not file an MTS.
  • Briggs entered a plea of no contest before the jury to intoxication manslaughter of a peace officer and elected to have the jury decide punishment (slow-plea).
  • The jury found Briggs guilty as instructed by the court, sentenced her to 45 years, and made an affirmative finding that her vehicle was a deadly weapon.
  • Briggs filed an MNT alleging that her plea of no contest was not made knowingly, intelligently, or voluntarily. Briggs argued that the results of her blood draw were a determining factor in her decision to plead no contest instead of going to trial. The issue was whether the admissibility of her blood-draw results was misrepresented to her by her attorney at the time of her plea.
  • Briggs contended that the only reason that she did not go to trial was because she was told she could not refute the blood evidence.
  • The trial court denied the MNT.
  • On direct appeal, the court of appeals held that the plea was involuntary because she was given erroneous advice by her attorney since trial counsel failed to advise her that § 724.012 could not mandate a warrantless blood draw absent exigent circumstances. And, Missouri v. McNeely did not announce a new rule of law, but even if it had, because Briggs’s case was on direct appeal and was not yet final, the April 17, 2013, McNeely opinion and the cases decided since McNeely would apply retroactively.

McNeely and its progeny may or may not affect the admissibility of blood-draw results.

  • A trial court’s ruling on an MNT is reviewed under an abuse of discretion standard, a deferential standard of review that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling. A trial court’s ruling will be upheld if it is correct on any applicable legal theory, even if the trial court articulated an invalid basis.
  • When Briggs pled no contest in 2012, the Tex. Transp. Code § 724.011 provided that a person arrested for driving while intoxicated is deemed to have consented to a taking of their blood or breath specimen. This implied-consent provision was limited by § 724.013, which provided that if a person refused to submit to the taking of a specimen, the specimen could not be taken except as provided by the mandatory-blood-draw provisions of § 724.012(b), which in turn provided that if a person was arrested under suspicion of DWI and he refused to provide a specimen voluntarily, an officer could require the taking of a specimen if there had been an accident, and as a direct result of the accident, a person has suffered serious bodily injury or death.
  • Under Missouri v. McNeely, 569 U.S. 141 (2013), the natural metabolization of alcohol does not present a per se exigency that would on its own fall under an exception to the warrant requirement. Exigency in this context must be determined case by case based on the totality of the circumstances. A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search where there is compelling need for official action and no time to secure a warrant. If officers can rea­son­ably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
  • Under Villarreal v. State, 475 S.W.3d 784 (Tex. Crim. App. 2014), a nonconsensual search of a DWI suspect’s blood conducted per the mandatory blood-draw and implied-consent statutes in the absence of a warrant or any applicable exception to the warrant requirement violates the Fourth Amendment.
  • The fact that trial counsel did not anticipate McNeely and Villarreal does not impugn the truth or reliability of Briggs’ plea. And, there was other evidence that could have allowed the State to prosecute the case.
  • The TCCA rejects Briggs’ assertion that her lawyer should have anticipated later judicial decisions. McNeely and its progeny may or may not have affected the admissibility of Briggs’ blood-draw results. The trial court’s finding of exigent circumstances was reasonable.
  • The judgment of the court of appeals is reversed.
November 2018 SDR-4

Carson v. State, No. PD-0205-17, PD-0206-17, PD-0207-17, & PD-0208-17, 2018 Tex. Crim. App. LEXIS 905 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [waiver of the right to an appeal is valid if consideration given by the State]

        A defendant in a noncapital case may waive any rights secured to him by law. A waiver of the right to appeal must be made voluntarily, knowingly, and intelligently. A valid waiver will prevent the defendant from appealing any issue unless the trial court consents to the appeal.

        The State gives consideration for a defendant’s waiver of his right to appeal if the defendant and State negotiate a plea to en­sure that he would have his case heard by the trial court as op­posed to a jury.

Ette v. State, No. PD-0538-17, 2018 Tex. Crim. App. LEXIS 902 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [jury verdict on sentencing controls]

        The assessment of punishment entails the verdict, the judg­ment, and the sentence. The verdict is the written declaration by a jury of its decision of the issue submitted to it in the case. The judgment is the written declaration of the court signed by the trial judge and entered of record showing the con­viction or acquittal of the defendant. The sentence served is based on the information contained in the judgment. A court’s pronouncement of sentence is oral, while the judgment and sentence are the written declaration of the oral pronouncement.

        A trial court has no power to alter a lawful jury verdict unless it is with the jury’s consent and before the jury has dispersed.

        The rule that the oral pronouncement controls over the writ­ten judgment does not apply to unambiguous lawful jury verdicts.

Ex parte Garrels, No. PD-0710-17, 2018 Tex. Crim. App. LEXIS 903 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [double jeopardy and implied consent to a mistrial]

        If a defendant is placed in jeopardy and the jury is discharged without reaching a verdict, double jeopardy bars retrial unless the mistrial was done either: (1) with the defendant’s consent; or (2) based on manifest necessity.

        Consent to a mistrial need not be expressed but may be im­plied from the totality of circumstances.

        It is the State’s burden either to identify some record-based indication that a defendant impliedly consented to the trial court’s mistrial order or introduce evidence to that effect.

        A trial court’s sua sponte declaration of a mistrial does not preclude the State from carrying its burden on the issue of consent. A defendant may consent to a mistrial without expressly moving for one.

        A defendant who does not object to a trial court’s declaration of mistrial despite an adequate opportunity to do so does not impliedly consent to the mistrial merely because the failure to object.

Hernandez v. State, No. PD-1049-16, 2017 Tex. Crim. App. LEXIS 1002 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [legal sufficiency and variance between indictment and evidence presented]

        Under Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), whether the evidence presented was sufficient is determined by comparing the evidence to the elements of the offense as defined by the hypothetically correct jury charge. A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the offense for which the defendant was tried.

        Only material variances will affect the hypothetically correct jury charge. A variance is material if it prejudices the defendant’s substantial rights. Allegations giving rise to material variances must be included.

        Under Tex. Penal Code § 22.02(a)(2), simple assault becomes aggravated if a deadly weapon is used or exhibited in committing the assault. The gravamen of the offense is the resulting bodily injury.

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

        Under Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), the hypothetically correct jury charge does not necessarily have to track exactly all the charging instrument’s allegations. Only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime.

Editor’s note: Under Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime. Three categories of variance are: (1) a statutory allegation that defines the offense (not subject to materiality analysis, or if it is, is always material)—the hypothetically correct jury charge will always include the statutory allegations in the indictment; (2) a nonstatutory allegation that is descriptive of an element of the offense that defines or helps define the allowable unit of prosecution (sometimes material)—hypothetically correct jury charge will sometimes include the nonstatutory allegations in the indictment and sometimes not; and (3) a nonstatutory allegation that has nothing to do with the allowable unit of prosecution (never material)—the hypothetically correct jury charge will never include the nonstatutory allegations in the indictment.

  • Under Tex. Penal Code § 22.02(a)(2), simple assault becomes aggravated if a deadly weapon is used or exhibited in committing the assault. The gravamen of the offense is the resulting bodily injury.
  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally jus­tified in finding the essential elements of the crime beyond a reasonable doubt. The evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
  • The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common de­sign to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
  • Under Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012), the hypothetically correct jury charge does not necessarily have to track exactly all the charging instrument’s allegations. Only a material variance between what is alleged and one that prejudices a defendant’s substantial rights renders the evidence insufficient. This happens when the indictment: (1) fails to adequately inform the defendant of the charge against him, or (2) subjects the defendant to the risk of being prosecuted later for the same crime.
  • The court of appeals failed to consider all the evidence. With a proper focus on all the evidence that might have supported a guilty verdict, the variance between the pleading and proof is immaterial.
  • If sufficiency is measured against the second rather than the first assaultive event, then there is a variance, but one that stems from the allegation in the indictment that Appellant struck Molien with his hands. The language of the aggravated assault count alleges “striking with the hands,” but the evidence showed that when Appellant returned to the bedroom with the water, he used one hand to choke Molien while using the other to pour the water down her throat, and the evidence does not show that he “struck” her at that point in time.
  • This variance between the pleading and the proof is not material under Johnson. The variance regarding Appellant’s use of his hands would be one describing only the manner and means by which the bodily injury was caused. Under Johnson, this falls into the second category of variance, a nonstatutory allegation that describes the offense in some way, which is material only when it converts the offense proven at trial into a different offense than what was pled in the indictment, potentially subjecting a defendant to another prosecution for the same offense.
  • The court of appeals erred by failing to consider all the evidence that might have supported the aggravated assault offense alleged in the indictment when conducting its legal sufficiency analysis.

Jacobs v. State, No. PD-1411-16, 2018 Tex. Crim. App. LEXIS 935 (Tex. Crim. App. Oct. 10, 2018) (designated for publication) [right to trial by an impartial jury under Tex. Const. Art. I, § 10]

        There is no significant textual difference between Tex. Const. Art. I, § 10’s right to trial by an impartial jury and the Sixth Amendment right to an impartial jury.

        A trial court has broad discretion in the manner it chooses to conduct voir dire both as to the topics that will be addressed and the form and substance of the questions that will be employed to address them. The Constitution places some limits on the trial court’s otherwise broad discretion to conduct voir dire. Under Mu’Min v. Virginia, 500 U.S. 415 (1991), the SCOTUS held that to be constitutionally compelled, it is not enough that voir dire questions might be helpful. Rather, the trial court’s failure to allow questions must render the defendant’s trial fundamentally unfair.

        A trial court’s limitation on voir dire does not infringe on a defendant’s right “of being heard by counsel” because otherwise nearly every error is of constitutional dimension because the error in some measure deprived the defendant of his right to counsel.

Marks v. State, No. PD-0549-17, PD-0550-17 & PD-0551-17, 2018 Tex. Crim. App. LEXIS 921 (Tex. Crim. App. Oct. 3, 2018) (designated for publication) [tolling of statute of limitations when new indictments are returned]

        A prior indictment tolls the statute of limitations for a sub­sequent indictment when both indictments allege the same conduct, same act, or same transaction.

Smith v. State, No. PD-0514-17, 2018 Tex. Crim. App. LEXIS 920 (Tex. Crim. App. Sep. 26, 2018) (designated for publication) [appeal of a shock-probation order requires its own notice of appeal]

        Under Tex. Rule App. Proc. 26.2(a), to invoke the jurisdiction of the court of appeals, a defendant must file a notice of ap­peal within 30 days after the day sentence is imposed or suspended in open court or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

        Under Tex. Rule App. Proc. 27.1(b), a prematurely filed notice of appeal is deemed filed on the same day but after sentence is imposed or suspended in open court or the appealable order is signed. A notice of appeal is not effective if filed before the trial court makes a finding of guilt or receives a jury verdict.

        A shock-probation hearing is not a new trial on punishment. A trial court has no authority to issue a new judgment and sentence five months after adjudication. A grant of shock probation is an order that suspends the execution of a previously pronounced sentence by placing the defendant on community supervision and is appealable by either party.

        A general notice of appeal does not invoke appellate jurisdiction over a shock-probation order. The appeal of a shock-probation order is independent of an appeal from adjudication and sentencing. It is a separate appeal of a separate appealable order, with its own appellate timetable. It requires a separate notice of appeal.

Wood v. State, No. PD-1100-17, 2018 Tex. Crim. App. LEXIS 904 (Tex. Crim. App. Sep. 19, 2018) (designated for publication) [indictment charging an attempted offense]

        Under Tex. Penal Code § 19.02(b)(1), Murder occurs if a person intentionally or knowingly causes the death of an individual. Under Tex. Penal Code § 19.03, Capital Murder occurs if a person commits Murder under § 19.02(b)(1) and there is an aggravating factor.

        “Capital murder” describes a sentencing regime rather than a criminal offense. There is no crime of capital murder that is different from murder. Capital murder is Murder accompanied by an aggravating factor that provides the State with a greater range of punishment than Murder.

        The elements necessary to establish attempt under Tex. Penal Code § 15.01 are: (1) a person, (2) with specific intent to commit an offense, (3) does an act amounting to more than mere preparation that (4) tends, but fails, to effect the commission of the offense intended.

        An indictment charging an attempted offense is not fundamentally defective for failure to allege the constituent elements of the offense attempted.

Texas Courts of Appeals

Goswick v. State, No. 11-16-00274-CR, 2018 Tex. App. LEXIS 7527 (Tex. App. Eastland Sep. 13, 2018) [perjury and aggravated perjury]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. Circumstantial evidence and direct evidence can be equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. The standard of review is the same for direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

        Under Tex. Penal Code § 37.02, a person commits perjury if with the intent to deceive and with knowledge of the statement’s meaning, he makes a false statement under oath. Under Tex. Penal Code § 37.03, a person commits aggravated perjury if he commits perjury per § 37.02 and the false statement: (1) is made during or in connection with an official proceeding; and (2) is material. Tex. Penal Code § 37.05, it is a defense to prosecution for Aggravated Perjury that the actor retracted his false statement: (1) before completion of the testimony at the official proceeding; and (2) before it became manifest that the falsity of the statement would be exposed.

        Under Tex. Penal Code § 37.04, regardless of the admissibility of the statement under the rules of evidence, a statement is material if it could have affected the course or outcome of the official proceeding. It is no defense to prosecution for aggravated perjury that the declarant mistakenly believed the statement to be immaterial. Whether a statement is material in a given factual situation is a question of law.

        Under Tex. Penal Code § 37.06, the information or indictment or prosecution for perjury or aggravated perjury alleging that the declarant has made statements under oath (both of which cannot be true) need not allege which statement is false. Nor does the prosecution need to prove at trial which statement is false.

        Under Tex. Code Crim. Proc. Art. 38.18(a), “no person may be convicted of perjury or aggravated perjury if proof that his statement is false rests solely upon the testimony of one witness other than the defendant.” This does not apply to prosecutions for perjury or aggravated perjury involving inconsistent statements.

November 2018 SDR-5

Hardeman v. State, No. 11-16-00244-CR, 2018 Tex. App. LEXIS 6474 (Tex. App. Eastland Aug. 16, 2018) (designated for publication) [lesser-included offenses]

        Under Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016), and Hall v. State, 225 S.W.3d 524, 535–536 (Tex. Crim. App. 2007), to determine whether a lesser-included offense should be given, the two steps are: (1) determine whether the requested lesser-included instruction is in fact a lesser-included offense, which is if it is within the proof necessary to establish the offense charged—the indictment for the greater-offense either: (i) alleges all the elements of the lesser-included offense, or (ii) alleges elements plus facts from which all of the elements of the lesser-included offense may be deduced; and (2) determine if there is evidence that supports the instruction. There must be some evidence that would permit a jury to rationally find if the defendant is guilty only of the lesser-included offense. This requires examining all evidence admitted, not just evidence pre­sented by the defendant. Anything more than a scintilla of evi­dence is adequate to entitle a defendant to a lesser charge. There must be affirmative evidence that the defendant did not commit the greater offense.

        Under Tex. Penal Code § 22.01, assault family violence by occlusion I assault plus committed: (1) against a family member; and (2) by occlusion. Simple assault is a lesser-included offense because it is included within the proof necessary to establish as­sault family violence by strangulation.

        The erroneous refusal to give a requested instruction on a lesser-included offense is charge error subject to an Almanza-harm analysis per Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Under Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005), when jury-charge error has been preserved, the court will reverse if error in the charge resulted in some harm to the accused.

Foreman v. State, Nos. 14-15-01005-CR & 14-15-01006-CR, 2018 Tex. App. LEXIS 7264 (Tex. App. Houston [14th Dist.] Aug. 31, 2018) (designated for publication) [standing to challenge a search, plain-view doctrine, affidavit to support probable cause for a search]

        Under Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004), and Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996), the defendant has the burden to establish standing. Standing is a question of law that may be raised by the court sua sponte. A reviewing court may sustain the trial court’s denial of an MTS if the evidence failed to establish standing as a matter of law even though the record does not reflect that the issue was ever considered by the parties or the trial court. The State may forfeit standing issues through its assertions, concessions, and acquiescence during litigation. Standing is reviewed de novo.

        Under State v. Bell, 366 S.W.3d 712, 713 (Tex. Crim. App. 2012), and United States v. Jones, 565 U.S. 400 (2012), a defendant may establish standing through an expectation-of-privacy approach or an intrusion-upon-property approach. The TCCA has not yet addressed what legal standard should be applied in determining whether a defendant has standing to contest a search under the intrusion-upon-property approach. Under the reasonable-expectation-of-privacy approach, the question is whether a defendant had a sufficient proprietary or possessory interest in the place or object searched.

        Under State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011), a trial court’s ruling on an MTS is usually reviewed under a bifurcated standard of review: almost total deference to the trial court’s findings as to historical facts and review de novo the trial court’s application of the law.

        When the trial court determines probable cause to support the issuance of a search warrant, there are no credibility calls, and the trial court rules based on what falls within the four cor­ners of the affidavit. When reviewing a magistrate’s decision to issue a warrant, appellate courts as well as trial courts ap­ply a highly deferential standard of review because of the constitutional preference for searches conducted under a warrant over warrantless searches. As long as the magistrate had a substantial basis for concluding that probable cause existed, the probable-cause determination is upheld. The affidavit is not viewed through hypertechnical lenses but instead with common sense, recognizing that the magistrate may draw reasonable inferences from the facts and circumstances contained in the affidavit’s four corners. When in doubt, the reviewing court defers to reasonable inferences that the magistrate could have made. When too many inferences must be drawn, the result is a tenuous rather than substantial basis for the issuance of a warrant. Probability cannot be based on mere conclusory statements of an affiant’s belief. Reasonable inferences include evidence of the instrumentalities of the crime, possession of contraband, skills and training of an officer, time (information was not stale), credibility of an anonymous informant, and personal knowledge of the affiant.

        Under Tex. Code Crim. Proc. Art. 18.02(a)(10), property or items constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense may be searched. Property subject to seizure under Art. 18.02(a)(10) is “mere evidence,” which is evidence connected with a crime but does not consist of fruits, instrumentalities, or contraband. A warrant issued under Art. 18.02(a)(10) is an “evidentiary search warrant” or a “mere evidentiary search warrant.” To obtain a search warrant for “mere evidence” under Art. 18.02(a)(10), there must be a sworn affidavit setting forth sufficient facts to establish probable cause that (1) a specific offense has been committed, (2) the specifically described property or items that are to be search for or seized constitute evidence of that offense or evidence that a certain person committed that offense, and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. But if a warrant authorizes a search for both “mere evidence” and items listed under another ground for search and seizure, the warrant is not a mere-evidentiary search warrant and the additional findings under Art. 18.02(a)(10) are not required.

        Under the Fourth Amendment and State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012), a warrant affidavit must establish probable cause to believe a certain item is at a location.

        Under Illinois v. Gates, 462 U.S. 213, 238 (1983), probable cause exists when under the totality of the circumstances there is a fair probability that evidence of a crime will be found at a specified location. The facts stated in a search-warrant affidavit must be related so closely to the time of the warrant’s issuance that a finding of probable cause is justified. Because of the flexibility in this standard, no law defines precisely what degree of probability suffices to establish probable cause.

        To support a search warrant for a computer, there must be some evidence that a computer was directly involved in the crime. When there is no evidence that a computer was directly involved in the crime, more is needed to justify a computer search.

        Under Illinois v. Andreas, 463 U.S. 765, 771 (1983), the plain-view doctrine is not an exception to the warrant requirement because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. If an item is in plain view, neither its observation nor its seizure involves invasion of privacy.

        Under Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009), a seizure is lawful under the plain-view doctrine if: (1) officers must lawfully be where the object can be “plainly viewed”; (2) the “incriminating character” of the object in plain view must be “immediately apparent” to the officers (actual knowledge of the incriminating evidence is not required); and (3) officers must have the right to access the object.

        Under Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007), probable cause exists when the known facts and circumstances are sufficient to cause a reasonable person to believe that contraband or evidence of a crime will be found. It requires more than a hunch and must be supported by facts.

        Under Arizona v. Hicks, 480 U.S. 321, 324–328 (1987), if an additional and unjustified search is required to develop probable cause, then the “incriminating character” of the object in plain view is not “immediately apparent.” If an officer must manipulate, move, or inspect an object to determine whether it is associated with criminal activity, then the “incriminating character” is not immediately apparent.

State v. Hill III, Nos. 05-13-00421-CR, 05-13-00421-CR, 05-13-00421-CR, & 05-13-00421-CR, 2018 Tex. App. LEXIS 6413 (Tex. App. Dallas Aug. 15, 2018) (designated for publication) (Schenck, concurring) [prosecutorial misconduct based on selective prosecution]

        Under United States v. Armstrong, 517 U.S. 456, 464 (1996), and Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004), prosecutors have broad discretion in deciding which cases to prosecute. Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State’s duty to bring violators to justice. The presumption of regularity supports prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume prosecutors have properly discharged their official duties. A decision to prosecute violates due process when it is brought in retaliation for the defendant’s exercise of his legal rights. The presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. The trial judge decides the ultimate factual issue based upon the evidence and credibility determinations.

        Under State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003), and State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995), there is no general authority that permits a trial court to dismiss a case without the prosecutor’s consent. A trial court may dismiss a charging instrument to remedy a constitutional violation, but such dismissal is a drastic measure only to be used in the most extraordinary circumstances.

        Under State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998), a ruling on a motion to dismiss a charging instrument is reviewed for an abuse of discretion. Where there is no constitutional violation or the defendant’s rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing the indictment without the consent of the State.

        Under In re Guerra, 235 S.W.3d 392, 429 (Tex. App. Corpus Christi 2007, orig. proceeding), the absence of an impartial and disinterested prosecutor can violate a defendant’s due process rights. Partiality here is like a conflict of interest in the sense that the prosecutor has a personal interest in the outcome of the criminal prosecution. It also refers to any interest that conflicts with the prosecutor’s duty to seek justice. Thus, the due process rights of a defendant are violated when a prosecuting attorney who has a conflict of interest relevant to the defendant’s case prosecutes the defendant. The mere potential or perceived conflict of interest or mere allegations of wrongdoing are insufficient to establish a due process violation.

Editor’s note: The following is a more comprehensive breakdown of prosecutorial misconduct per the federal constitution (due process clause of the Fourteenth Amendment with the relevant federal cases cited):

  • Generally, “[s]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see U.S. Const. Art. II, § 3 (the executive branch “shall take care that the laws be faithfully executed”).
  • There is a rebuttal presumption that a criminal prosecution is brought in good faith. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15 (1926) (The “presumption of regularity” supports prosecutorial decisions, and “in the absence of clear evidence to the contrary, courts presume that (prosecutors) have properly discharged their official duties”); Yick Wo v. Hopkins, 118 U.S. 356, 373–374 (1886) (“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution”).
  • The presumption that a criminal prosecution is brought in good faith is rebutted if a prosecution is brought for an improper purpose. Due process and equal protection of the law are violated, and a court has the right and duty to protect defendants from prosecutorial decisions that are based on unconstitutional motives or are executed in bad faith. Heckler v. Chaney, 470 U.S. 821, 832 (1985) (A selective-prosecution claim asks a trial court to exercise judicial power over a “special province” of the executive branch).
  • Prosecutors are public officials who must serve only the public’s interest. Berger v. United States, 295 U.S. 78, 88 (1935). A prosecutor cannot hide behind the cloak of “prosecutorial discretion” and avoid judicial scrutiny if the decision to prosecute was motivated by improper reasons.
  • Vindictive prosecution occurs where the prosecutor seeks “[t]o punish a person because he has done what the law plainly allows him to do . . .” United States v. Goodwin, 457 U.S. 368, 372 (1982). A prosecutor “may not increase the charge against a defendant solely as a penalty for invoking a (constitutional right).”
  • A defendant proves prosecutorial vindictiveness in two ways: (1) prove actual vindictiveness by presenting objective evidence that the prosecutor’s actions were designed to punish a defendant for asserting legal rights; or (2) show sufficient facts to give rise to a presumption of vindictiveness. Goodwin, 457 U.S. at 380–381
  • To prove actual vindictiveness, the defendant must show by a preponderance of the evidence that the prosecutor’s actions were executed “solely to ‘penalize’ [the defendant] and could not be justified as a proper exercise of prosecutorial discretion.” Goodwin, 457 U.S. at 380 n.12. This is done by “presenting objective evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government are pretextual.” A finding of actual vindictiveness requires “direct evidence” such as evidence of a statement by the prosecutor . . .
  • To show facts that give rise to a presumption of vindictiveness, “[c]ourts will apply the presumption of vindictiveness only where there exists a ‘realistic likelihood of vindictiveness.’” Blackledge v. Perry, 417 U.S. 21, 27 (1974); Bordenkircher, 434 U.S. at 365 (presumption of vindictiveness should not apply where the prosecution had done no more than “openly pre­sent the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution”).
  • A claim of selective or vindictive prosecution “is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” United States v. Armstrong, 517 U.S. 456, 463 (1996) (the standard is “demanding,” and there is a “background presumption” that what a defendant must show in the first instance to obtain discovery (through a hearing) “should itself be a significant barrier to the litigation of insubstantial claims”); United States v. Mezzanatto, 513 U.S. 196, 203 (1995) (explanation of “background presumption” as it relates to the voluntary waiver of legal rights). The “demanded standard” does not prevent a defendant’s legitimate claims from being heard at a hearing when they are supported by “some evidence,” and a defendant presents “some evidence” merely by showing that he has a “colorable claim.”
  • To discover documents and other evidence relevant to a claim of an improper prosecution, a defendant must establish a “colorable claim” of a constitutional violation. See United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir. 1978). A “colorable basis” is some evidence tending to show the essential elements of the claim. The defendant must “offer sufficient evidence to raise a reasonable doubt that the government acted properly in seeking the indictment.”
  • Once a hearing is held on the presumption-of-vindictiveness method, the defendant must show by “exceptionally clear evidence” that the prosecution was initiated for an improper reason. Gregg v. Georgia, 428 U.S. 153, 199 (1976); McCleskey v. Kemp, 481 U.S. 279, 297 (1987) (exceptionally clear evidence required before a court may hold that prosecutorial discretion has been abused).