November 2019 SDR - Voice for the Defense Vol. 48, No. 9

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Friday, November 8th, 2019

Voice for the Defense Volume 48, 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’ term began on October 1, 2019.

United States Court of Appeals for the Fifth Circuit

United States v. Aguilar-Alonzo, No. 18-50627, 2019 U.S. App. LEXIS 25856 (5th Cir. Aug. 27, 2019) (designated for publication) [The ordinary and natural meaning of the verb “use” requires active employment of something]

        A district court’s interpretation and application of the U.S.S.G.s are reviewed de novo and factual findings for clear error. A finding is clearly erroneous when although there is evidence to support it, the entire evidence shows a definite and firm conviction that a mistake occurred.

        The proponent of an adjustment to the defendant’s base offense level bears the burden of establishing the factual predicate by a preponderance of the relevant and sufficiently reliable evidence.

        If a district court commits a significant procedural error like miscalculating the U.S.S.G. range, the sentence must be vacated unless the error did not affect the sentence imposed. The proponent of the sentence has the burden of establishing that the error was harmless.

        Under U.S.S.G. § 2D1.1(b)(15)(A), if a defendant receives a 2-level increase in offense level under § 3B1.1 if the: (i) defendant used fear, impulse, friendship, affection, or some combination to involve another individual in the illegal purchase, sale, transport, or storage of controlled substances; (ii) individual received little or no compensation from the enterprise; and (iii) individual had minimal knowledge of the scope and structure of the enterprise. To show that a defendant “used” fear, impulse, friendship, affection, or some combination, a defendant must actively employ or play upon affection to induce another.

        The ordinary and natural meaning of the verb “use” requires active employment of something.

Facts:

  • Aguilar-Alonzo, his girlfriend Chavez-Hernandez, and others were indicted for aiding and abetting the possession with intent to distribute > 100 kg and < 1000 kg of marijuana per 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
  • Aguilar-Alonzo pleaded guilty without a plea agreement.
  • Chavez-Hernandez told investigators that she had been dating Aguilar-Alonzo for a year and knew he was involved in drug trafficking but never participated prior to the offense. Aguilar-Alonzo asked her to accompany him to pick up the marijuana. She agreed “out of fear he would break up with her.”
  • The PSR calculated a base offense level of 24 per §§ 2D1.1(a)(5) and (c)(8). It recommended a 2-level enhancement under § 3B1.1(c) because Aguilar-Alonzo was an organizer, leader, manager, or supervisor and a second 2-level enhancement because: (1) per U.S.S.G. § 2D1.1(b)(15)(A), Aguilar-Alonzo “used friendship or affection” to involve Chavez-Hernandez in the transport of controlled substances, Chavez-Hernandez received little compensation, and Chavez-Hernandez had minimal knowledge of the scope and structure of the enterprise; and (2) per § 2D1.1(b)(15)(B)(iii), knowing that Chavez-Hernandez was pregnant, Aguilar-Alonzo involved her in the offense.
  • With a 3-level reduction for acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total offense level was 25.
  • Based on the offense level of 25 and a criminal history category of II, the Guidelines range was 63 to 78 months.
  • Aguilar-Alonzo objected to the 2-level enhancement for use of affection, asserting that Chavez-Hernandez had more than minimal knowledge of the scope of the criminal enterprise and that merely being in a dating relationship does not trigger the enhancement. Aguilar-Alonzo contended that there was no evidence that he suggested he would end the relationship if she refused to participate. Aguilar-Alonzo also objected to the § 2D1.1(b)(15)(B) enhancement because it was unclear whether Aguilar-Alonzo knew at the time of the offense that Chavez-Hernandez was pregnant.
  • The district court found that the facts did not establish whether Aguilar-Alonzo knew that Chavez-Hernandez was pregnant and declined to sustain the enhancement under § 2D1.1(b)(15)(B).
  • The district court determined that the enhancement was warranted under § 2D1.1(b)(15)(A) because it was apparent that Aguilar-Alonzo used fear, impulse, friendship, or affection to involve Chavez-Hernandez.
  • The district court overruled Aguilar-Alonzo’s objection to the enhancement for a leadership role.
  • The district court sentenced Aguilar-Alonzo to 70 months.

The ordinary and natural meaning of the verb “use” requires active employment of something.

  • Under Welch v. United States, 136 S.Ct. 1257 (2016), 18 U.S.C. § 844’s requirement that a building be “used” in an activity affecting commerce means active employment for commercial purposes and not merely a passive, passing, or past connection to commerce.
  • The ordinary and natural meaning of the verb “use” requires active employment of something. No evidence was presented that Aguilar-Alonzo “used” or “actively employed” fear, impulse, friendship, affection, or some combination thereof.
  • The sentence is vacated, and the case is remanded.

United States v. Hegwood, No. 19-40117, 2019 U.S. App. LEXIS 23714 (5th Cir. Aug. 8, 2019) (designated for publication) [First Step Act does not allow plenary resentencing but allows a new sentence for a “covered offense” (an offense covered by the Fair Sentencing Act of 2010]

        The First Step Act of 2018 (enacted December 21, 2018) made the application of the Fair Sentencing Act of 2010 retroactive. It amends statutes like 21 U.S.C. § 841(b)(1)(B)(iii) by increasing the cocaine-base amount for 5 to 40 years from 5 grams to 28 grams.

        The First Step Act’s application allows a court to reduce a sentence for a “covered offense” (those modified by the Fair Sentencing Act of 2010) as if the 2010 act was in effect when the covered offense was committed. The new sentence substitutes for the original sentence.

United States v. Pedroza-Rocha, No. 18-50828, 2019 U.S. App. LEXIS 23688 (5th Cir. August 8, 2019) (designated for publication) [Deportation during the pendency of an appeal does not moot the case; the subsequent serving of a notice of hearing in a deportation case that includes a date and time cured any defect that might have existed in the notice to appear]

        The 5th Circuit has a continuing obligation to assure itself of its jurisdiction, sua sponte if necessary. Under Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016), Article III’s grant of federal jurisdiction requires a live controversy at all stages of a case. If the controversy between the parties is extinguished while a case is pending on appeal, this court must dismiss it as moot. A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.

        The initiation of removal proceedings under the Immigration and Nationality Act is governed by 8 U.S.C. § 1229, which provides that in such proceedings, written notice (notice to appear) shall be given in person to the alien and must include the time and place of the hearing. Under 8 C.F.R. § 1003.14 (Jurisdiction and commencement of proceedings), jurisdiction vests and proceedings before an immigration judge commence when a charging document is filed with the Immigration Court by INS. The charging document is the written instrument that initiates the proceeding and a notice to appear, Notice of Referral to Immigration Judge, and Notice of Intention to Rescind and Request for Hearing by Alien, and requires that the notice to appear contain the time and place “where practicable.”

        Under the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), and specifically 8 U.S.C. § 1229b(b)(1), the AG has discretion to cancel the removal of certain nonpermanent residents so long as they meet certain criteria, one of which is that the noncitizen must have been physically present in the U.S. continuously of at least 10 years immediately preceding the date of an application for cancellation of removal. Under this stop-time rule, the period ends when the alien is served a notice to appear. Under Pereira v. Sessions, 138 S.Ct. 2105 (2018), the service of a notice to appear that lacked the information required did not stop the clock on the period of continued presence.

        The subsequent serving of a notice of hearing that includes a date and time cured any defect that might have existed in the notice to appear.

        8 C.F.R. § 1003.14 is not jurisdictional because the failure to serve a valid notice to appear is a ministerial defect and not a jurisdictional one.

United States v. Reece, No. 17-11078, 2019 U.S. App. LEXIS 27134 (5th Cir. Sep. 9, 2019) [Application of the holding in United States v. Davis, 139 S.Ct. 2319 (2019), that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague]

        The residual clause of 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as an offense that is a felony and that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense) is unconstitutionally vague.

18 U.S.C. §924(c)(3)(B) is unconstitutionally vague per Davis

  • Under 18 U.S.C. § 924(c)(1)(A), consecutive penalties are imposed for using or carrying a firearm “during and in relation to” or possessing a firearm “in furtherance of” any “crime of violence or drug trafficking crime”: 5 years minimum; 7 years if brandished; 10 years if discharged; minimum of 10 years if a short-barreled shotgun is used; and minimum of 25 years for repeat violations of § 924(c).
  • A vague law is no law at all. Only . . . Congress (has) the power to write new federal criminal laws. And when Congress exercises that power, it must write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges . . . and . . . leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
  • Under 18 U.S.C. § 924(c)(3), a crime of violence is an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another (elements clause), or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (residual clause).
  • Vague laws contravene the first essential of due process of law that statutes must give people of common intelligence fair notice of what the law demands of them and undermine the Constitution’s separation of powers and the democratic self-governance it aims to protect. Vague statutes hand responsibility for defining crimes to unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide.
  • The residual clause of 18 U.S.C. § 924(c)(3)(B) (defining a crime of violence as an offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense) is unconstitutionally vague.
  • Reece’s case is remanded for resentencing without consideration of the residual clause of 18 U.S.C. § 924(c)(3)(B).

Texas Court of Criminal Appeals

Beltran de la Torre v. State, No. PD-0561-18, 2019 Tex.Crim.App.LEXIS 939 (Tex.Crim.App. Sep. 18, 2019) (designated for publication) [Generally, a party is not entitled to a special jury instruction relating to a statutory offense or defense if the instruction: (1) is not grounded in the Tex. Penal Code, (2) is covered by the general charge, and (3) focuses the jury’s attention on specific evidence that may support an element of an offense or a defense]

        The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case. A trial judge must maintain neutrality in providing such information and guidance and may not express any opinion on the weight of the evidence or draw the jury’s attention to particular facts.

        Under Tex. Code Crim. Proc. Art. 36.14, a jury charge: (1) must be in writing; (2) must distinctly set forth the law applicable to the case; (3) cannot express any opinion as to the weight of the evidence; (4) may not sum up the testimony; and (5) cannot discuss the facts or use any argument in the charge calculated to arouse the sympathy or excite the passions of the jury. This is designed to prevent a jury from interpreting a judge’s comments as a judicial endorsement or imprimatur for a particular outcome. A trial court should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might construe this as judicial endorsement or imprimatur.

        To ensure compliance with Tex. Code Crim. Proc. Art. 36.14, generally a trial judge should avoid including nonstatutory instructions in the charge because such instructions frequently constitute impermissible comments on the weight of the evidence. Special, nonstatutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge. Even an innocent attempt to provide clarity for the jury by including a neutral instruction can result in an impermissible comment on the weight of the evidence because the instruction singles out a particular piece of evidence for special attention, which the jury may then focus on as guidance from the judge.

        Generally, a party is not entitled to a special jury instruction relating to a statutory offense or defense if the instruction: (1) is not grounded in the Tex. Penal Code, (2) is covered by the general charge, and (3) focuses the jury’s attention on specific evidence that may support an element of an offense or a defense. In such a case, the nonstatutory instruction is a prohibited comment on the weight of the evidence.

        A jury charge may properly include definitions for nonstatutorily-defined terms that have a known and established legal meaning or have acquired a peculiar and appropriate meaning in the law, as where the words used have a well-known common law meaning. Such terms are considered as having been used in their technical sense, and it is not error for the trial court to include a precise, uniform definition to guide the jury’s deliberations. An instruction is appropriate when there is a risk that the jurors may arbitrarily apply an inaccurate definition to the term or where an express definition of the term is required to assure a fair understanding of the evidence. Thus, in a trial for Escape, a definition of “arrest” should be included in the charge despite the lack of a statutory definition because “arrest” is a technical term with a long, established history in the common law and it would be inappropriate if jurors arbitrarily applied their personal definitions of arrest.

Facts:

  • Officers Axel and Lara of Columbus PD responded to a mid-morning call about people drinking alcohol inside a parked car at the DPS driver’s license office. The officers approached and observed Appellant in the driver’s seat, a female in the front passenger seat, and a second female in the back seat.
  • The officers saw a man standing outside the vehicle on the pas­senger’s side who was asked to sit down nearby, but who then walked away.
  • Officer Lara noticed a small plastic bag containing a powdery substance on the car’s center console. Suspecting that the bag contained a controlled substance, Lara asked Appellant and the passengers to exit the car. Lara detained the female passengers while Axel detained Appellant behind the vehicle.
  • Axel noticed that Appellant smelled of alcohol, had bloodshot eyes, and appeared to have not slept in a day or more. Both officers noticed that Appellant had dilated pupils, which they believed based on their training and experience indicated the use of narcotics.
  • The officers removed the bag and field-tested it, which yielded positive for cocaine.
  • Appellant and the passengers were arrested for possession of a controlled substance.
  • Lab testing revealed showed 0.02 grams of cocaine.
  • Appellant was indicted for possession of less than a gram of cocaine.
  • At trial the State put on evidence of possession by showing that Appellant was the registered owner of the vehicle; was in the driver’s seat and had direct access to the cocaine located on the car’s center console; and showed signs of having ingested narcotics. The State argued that even if Appellant was not in sole possession of the cocaine, he could have jointly possessed it along with the other occupants of the vehicle.
  • Appellant testified that the cocaine was not his and he had no knowledge of it being in his car.
  • The jury was charged on the statutory elements of possession of a controlled substance (“A person commits an offense if the person intentionally or knowingly possesses a controlled substance”) and the statutory definition of “possession” (“Possession means actual care, custody, control, or management”). After the statutory definition of “possession” the charge included the nonstatutory instruction on joint possession (“Two or more people can possess the same controlled substance at the same time”). Because the joint-possession instruction was included in the charge, at the charge conference Appellant requested an instruction on “mere presence,” which was not reduced to writing but the trial court understood this as a request to include: “Mere presence at a place where narcotics are found is not enough to constitute possession.”
  • The trial court denied Appellant’s request and the mere-presence instruction was excluded.
  • The jury convicted Appellant and the trial court sentenced him to two years in state jail, probated for three years.
  • The court of appeals affirmed.

Both the joint-possession and mere-presence instructions were improper.

  • Both the joint-possession and mere-presence instructions were improper comments on the weight of the evidence because each was unnecessary to clarify the applicable law and drew the jury’s attention to evidence supporting a party’s theory of the case.
  • The joint-possession instruction was an improper comment on the weight of the evidence because it: (1) was unnecessary because the statutory definition of “possession” is broad enough to encompass the concept of joint possession; and (2) drew the jury’s attention to evidence that would support the State’s argument that Appellant possessed the drugs along with the other individuals in the vehicle.
  • Although the nonstatutory instruction was substantively correct, it was unnecessary because the general charge left ample room for the parties to argue the concept of joint possession. The jury charge included the statutory definition of possession per Tex. Health & Safety Code § 481.002(38) (Possession means actual care, custody, control, or management”). Although it does not expressly mention the possibility of simultaneous possession of the same narcotics by multiple people, it does not preclude such a theory of joint possession. The State was free to argue the concept of joint possession (that Appellant exercised “actual care, custody, control, or management” over the drugs with the other individuals). The State was not entitled to a special, nonstatutory instruction emphasizing that such a conclusion is permissible. The instruction was unnecessary to clarify the applicable law on possession, which was adequately covered by the statutory definition of possession.
  • The joint-possession instruction drew the jury’s attention to evidence that would support a finding that Appellant jointly possessed the drugs along with the others. By highlighting one path to establishing the element of possession (through a finding of joint possession by multiple individuals), the instruction focused the jury’s attention on that type of evidence and impermissibly guided the jury’s assessment of the evidence of possession. This instruction could have been viewed by the jury as “obliquely or indirectly” conveying the court’s opinion of the evidence by “singling out” the State’s theory of joint possession and “inviting the jury to pay particular attention to it.” The nonstatutory instruction was both unnecessary to clarify the applicable law and impermissibly focused the jury’s attention on a theory of the evidence, violating the prohibition against comments on the weight of the evidence.
  • The joint-possession instruction does not fall within the type of permissible nonstatutory instructions for undefined statutory terms that have acquired a technical meaning in the law.
  • For the same reasons, Appellant’s requested instruction on mere presence would have been improper because it: (1) was unnecessary to clarify the applicable law when the statutory definition of “possession” (actual care, custody, control, or management) adequately informed the jury that mere presence is not enough to establish the element of possession; and (2) focused the jury’s attention on Appellant’s defensive evidence that he did not possess the drugs.
  • The judgment of the court of appeals is reversed and the case is remanded for a harm analysis on the joint-possession instruction.

Diruzzo v. State, No. PD-0745-18, 2019 Tex.Crim.App.LEXIS 860 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Construction of the statutes concerning practicing medicine without a license, Tex. Occ. Code §§ 155.001, 165.151–165.153]

        Under Tex. Occ. Code § 155.001, a person may not practice medicine unless the person holds a Texas medical license. Under Tex. Occ. Code § 165.151, practicing medicine by a nonphysician without a license is a class A misdemeanor. Under Tex. Occ. Code § 161.152, if a physician practices medicine without a license, he commits an F-3, and each day he does so is a separate offense. Under Tex. Occ. Code § 165.153, it is an F-3 if any defendant causes another person physical or psychological harm and a SJF if the defendant causes another person financial harm.

Editor’s note: This opinion goes into detail regarding statutory construction and the legislative history of the laws against practicing medicine without a license.

Fraser v. State, No. PD-0711-17, 2019 Tex.Crim.App.LEXIS 857 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Felony Murder, Cognate-Pleadings Test, Injury to a Child, and Endangering a Child are never lesser-included offenses of Manslaughter]

        Under the cognate-pleadings test, the statutory elements of an offense and nonstatutory allegations in the indictment combine to describe the charged offense. It allows a court to look to nonstatutory elements only for the charged offense while lesser offenses are examined only for their statutory elements. If all the elements of a lesser-offense are contained or deducible from what is contained in the indictment, the lesser-offense is a “lesser-included” offense of the indicted offense. This allows a defendant broader ability to obtain the submission of a lesser-included instruction than if he were limited to the statutory elements of the charged offense.

        Under the cognate-pleadings test, if a manslaughter indictment contains extra averments that cause it to encompass an offense that would not otherwise be a lesser-included offense under manslaughter’s statutory elements, a defendant could obtain a lesser-included instruction on the encompassed offense.

        Injury to a Child and Endangering a Child are never lesser-included offenses of Manslaughter

Hughitt v. State, No. PD-0275-18 & PD-0276-18, 2019 Tex.Crim.App.LEXIS 940 (Tex.Crim.App. Sep. 25, 2019) (designated for publication) [Possession of a controlled substance with the intent to deliver it is not a predicate offense under Tex. Penal Code § 71.02 because it is not enumerated in § 71.02]

        Under Tex. Penal Code § 71.02, a person engages in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more [enumerated offenses]. A conviction requires an offense enumerated in the statute. Possession of a controlled substance with the intent to deliver it is not a predicate offense under Tex. Penal Code § 71.02 because it is not enumerated in § 71.02.

Ruiz v. State, No. PD-0176-18, 2019 Tex.Crim.App.LEXIS 856 (Tex.Crim.App. Sep. 11, 2019) (designated for publication) [Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement]

        Under Tex. Transp. Code § 724.011, a person who uses the public roadways is deemed to have consented to having his blood drawn or breath taken if the person is arrested for an offense arising out of acts alleged to have been committed while operating a motor vehicle or watercraft intoxicated. Under Tex. Transp. Code § 724.014, an unconscious DWI suspect may have his specimen taken by an authorized person per §§ 724.016 or 724.017.

        Under Missouri v. McNeely, 569 U.S. 141, 149 (2013), and State v. Villarreal, 475 S.W.3d 784, 795 (Tex.Crim.App. 2014), the Fourth Amendment requires that a search occur per a warrant or a recognized exception to the warrant requirement. The totality of the circumstances dictates whether a warrantless search is reasonable. A warrantless search may be reasonable if the police obtain consent. When the State relies on consent, it must prove that the consent was freely and voluntarily given. Under Schneck­loth v. Bustamonte, 412 U.S. 218, 233 (1973), voluntariness depends on the totality of the circumstances and means more than a knowing choice. The question is whether the person’s will has been overborne and his capacity for self-determination critically impaired such that his consent must have been involuntary. Relevant considerations include the defendant’s sophistication in the law, mental acuity, and ability to exercise a free choice when facing arrest, and whether he was advised of his Miranda rights or advised that the results of the search could be used against him. Under Florida v. Jimeno, 500 U.S. 248, 252 (1991), a defendant may limit the scope of his consent or revoke it. Per Villarreal, 475 S.W.3d at 799, the ability to limit or revoke is a necessary element of valid consent.

        Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement.

Facts:

  • Appellee fled a car wreck. He may have been driving while intoxicated.
  • Officers found Appellee unresponsive nearby. ER responders tried to revive him, but he remained unresponsive.
  • Appellee was taken to a hospital.
  • Officer McBride arrested Appellee at the hospital. Although Appellee was unconscious, she read the DWI statutory warnings to him and ordered a warrantless blood draw per Tex. Transp. Code §§ 724.011 and 724.014.

Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the Fourth Amendment warrant requirement.

  • Appellee was unconscious throughout his encounter with law enforcement and had no capacity for self-determination. He could not make a choice or hear McBride read warnings to him. Drawing his blood was an unreasonable application of the consent exception.

Texas Courts of Appeals

Najar v. State, No. 14-17-00785-CR, 2019 Tex. App. LEXIS 7930 (Tex.App.—Houston [14th Dist.] Aug. 29, 2019) (designated for publication) [Tex. Rule App. Proc. 21.3(f) requires a new trial when during deliberations the: (1) jury received other evidence; and (2) evidence was detrimental]

                Under McQuarrie v. State, 380 S.W.3d 145, 150 (Tex.Crim.App. 2012), a ruling on an MNT is reviewed for an abuse of discretion. A motion for new trial is committed to the discretion of the trial court. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex.Crim.App. 2012). But under Tex. Rule App. Proc. 21.3(f), a defendant must be granted a new trial when during deliberations the: (1) jury received other evidence; and (2) evidence was detrimental (appellate courts will not speculate on the probable effects on the jury or the question of injury). The trial judge is the trier of fact and the sole judge of the credibility of the witnesses. Under Rogers v. State, 551 S.W.2d 369, 370 (Tex.Crim.App. 1977), if there is no fact issue that the jury received other evidence and it was adverse to the defendant, then reversal is required.