October 2017 SDR - Voice for the Defense Vol. 46, No. 8

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Saturday, September 30th, 2017

Voice for the Defense Volume 46, No. 8 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

The SCOTUS remains on summer recess.

United States Court of Appeals for the Fifth Circuit

United States v. Barber, 16-41354, 2017 U.S. App. LEXIS 14308 (5th Cir. Aug. 3, 2017) (designated for publication)

        (1) To reverse on plain-error because the issue was not preserved before the district court, the reviewing court must find: (1) a legal error that has not been intentionally relinquished or abandoned; (2) the error must be clear or obvious; (3) the error must have affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        (2) Probation officers have power to manage aspects of sentences and to supervise probationers and persons on supervised release with respect to all conditions imposed by the court. However, a district court cannot delegate to a probation officer the “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”

        (3) Special conditions of release that use the language “as deemed necessary and approved by the probation officer” creates ambiguity as to whether the district court permissibly delegated authority to decide the details of a sentence’s implementation or impermissibly delegated the authority to impose a sentence.

United States v. Fillingham, 16-40317, 2017 U.S. App. LEXIS 14925 (5th Cir. Aug. 11, 2017) (designated for publication)

        (1) A prisoner filing a 28 U.S.C. § 2241 petition must first pursue all available administrative remedies. The burden of proof for demonstrating the futility of administrative review rests with the petitioner.

Editor’s Note: A petition filed under 28 U.S.C. § 2241 is used to challenge the fact or duration of a federal prisoner’s confinement, not the constitutionality of the conviction or the conditions of confinement. Nearly all valid petitions under 28 U.S.C. § 2241 allege one of the following: (1) BOP has wrongly computed the inmate’s release date; (2) BOP has wrongly taken away “good­time credits”; (3) the inmate seeks an expedited transfer to a “residential reentry center” or “halfway house”; or (4) the inmate is being detained by federal immigration authorities while awaiting deportation.

United States v. Hawkins, 16-10879, 2017 U.S. App. LEXIS 14312 (5th Cir. Aug. 3, 2017) (designated for publication)

        (1) A district court’s factual findings (such as adopting a PSR) are not clearly erroneous so long as they are plausible considering the record read as a whole. When making factual findings at the sentencing stage, a district court may consider any information that “bears sufficient indicia of reliability to support its probable accuracy.”

        (2) A PSR bears sufficient indicia of reliability to be considered as evidence by the judge in making factual determinations required by the sentencing guidelines. A district court may adopt facts contained in a PSR without further inquiry assuming those facts have an adequate evidentiary basis that is sufficiently reliable and the defendant does not present evidence to the contrary.

        (3) If a defendant wants to challenge sufficiently reliable facts contained in a PSR, the defendant carries the burden of presenting rebuttal evidence showing that those facts are materially untrue, inaccurate, or unreliable. Objections, unsupported by fact, generally do not carry this burden.

        (4) Under U.S.S.G. § 3B1.1, if a defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, the offense level is increased by 4 levels. The district court should consider: (1) exercise of decision-making authority, (2) the recruitment of accomplices, (3) the claimed right to a larger share of “the fruits of the crime,” and the degree of control and authority exercised over others.

        (5) Under U.S.S.G. § 2D1.1(b)(15)(E), a 2-level enhancement is added if the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, which means: (A) the defendant derived income from the pattern of criminal conduct that in any 12-month period exceeded 2,000 times the then existing hourly minimum wage under federal law ($7.25/hour 3 2,000 = $14,500); and (B) the totality of circumstances shows that such criminal conduct was the defendant’s primary occupation in that 12-month period (the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant’s legitimate employment was merely a front for the defendant’s criminal conduct).

        (6) In calculating the amount attributable to the defendant because of “criminal livelihood,” a district court can count credit-card purchases and other ill-gotten gains such as the market value of stolen property.

        (7) After calculating the Guideline’s recommended sentencing range, a district court must consider the factors under 18 U.S.C. § 3553(a) to determine the sentence. Under Gall v. United States, 552 U.S. 38, 50–51 (2007), review of a sentence’s reasonableness is based on the abuse-of-discretion standard under which the appellate court is highly deferential to the district court since it is the in a superior position to find facts and judge their import under § 3553(a) with respect to a defendant.

        (8) Sentences within or below the guideline range are presumed to be reasonable. To rebut the presumptive reasonableness, a defendant must demonstrate that the sentence: (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.

United States v. Hott, 16-11435, 2017 U.S. App. LEXIS 14499 (5th Cir. Aug. 7, 2017) (designated for publication)

        (1) Under U.S.S.G. § 2K2.1(b)(6)(B), a 4-level enhance applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense.” If the firearm used to support the enhancement is not a firearm cited in the offense of conviction, the enhancement applies if the offense of conviction and “another felony offense” were “part of the same course of conduct or common scheme or plan.”

        (2) Under United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc), a silencer is a “firearm” under the National Firearms Act.

        (3) Under U.S.S.G. § 3E1.1(a), a defendant may receive a 2-level reduction in offense level if he “clearly demonstrates acceptance of responsibility for his offense.” The USCA5 will affirm a district court’s decision not to award a reduction unless it is “without foundation,” a standard of review more deferential than the clearly erroneous standard.

United States v. Juarez, 16-30773, 2017 U.S. App. LEXIS 14500 (5th Cir. Aug. 7, 2017) (designated for publication)

        (1) Under Fed. Rule Evid. 404(b) and United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc), evidence of a crime, wrong, or other act is not admissible to prove a person’s character, but is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. To be admissible, a court must determine that the 404(b) extrinsic-evidence: (1) is relevant to an issue other than the defendant’s character; and (2) possesses probative value that is not substantially outweighed by its undue prejudice under Fed. Rule Evid. 403.

        (2) Under Beechum, when weighing extrinsic evidence under Fed. Rule Evid. 403, the court considers: (1) the government’s need for the extrinsic evidence, (2) the similarity between the extrinsic and charged offenses, (3) the amount of time separating the offenses, and (4) the court’s limiting instructions. Even if all four factors weigh in the Government’s favor, a reviewing court must evaluate the district court’s decision under a commonsense assessment of all the circumstances surrounding the extrinsic offense, which include the nature of the prior offense and the likelihood that the evidence would confuse or incite the jury.

        (3) Beechum factor 1—the government’s need for the extrinsic evidence: Extrinsic evidence has high probative value when intent is the key issue at trial and is necessary to counter a defendant’s claim that he was merely an ignorant participant in the operation and never knowingly agreed to participate in an illegal business. Further, a court must consider whether there was other evidence of intent that might have made extrinsic evidence unnecessary. When a person pleads “not guilty,” he places his criminal intent directly at issue.

        (4) Beechum factor 2—the similarity between the extrinsic and charged offenses: Similarity increases both the probative value and prejudicial effect of extrinsic evidence. If the offenses are dissimilar or only share one element, the extrinsic offense may have little probative value to counterbalance the inherent prejudice of this evidence. Thus, the probative value of the extrinsic offense correlates positively with its likeness to the offense charged.

        (5) Beechum factor 3—the amount of time separating the offenses: Probative value is lessened by temporal remoteness between the offenses. Evidence of misconduct committed concurrently is probably admissible, less than 3 years ago may be admissible, but 10 years ago may be too remote.

        (6) Beechum factor 4—the court’s limiting instructions: limiting instructions cannot eliminate prejudicial effect, but can to a certain extent “allay the undue prejudice engendered by extrinsic evidence.” When the court gives extensive and immediate limiting instructions following the admission of prior offense testimony, it helps to counteract the prejudicial effect of 404(b) evidence.

        (7) Jury instructions are reviewed for abuse of discretion. The court determines whether the entire charge was a correct statement of the law and whether it clearly instructed the jurors as to the principles of the law applicable to the factual issues confronting them.

        (8) A deliberate ignorance instruction is appropriate where the evidence shows: (1) subjective awareness of a high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct. The key aspect is the conscious action of the defendant to escape confirmation of conditions or events he strongly suspected to exist. The same evidence that will raise an inference that the defendant had actual knowledge of the illegal conduct ordinarily will also raise the inference that the defendant was subjectively aware of a high probability of the existence of illegal conduct.

        (9) Deliberate ignorance instruction prong 1—subjective awareness of a high probability of the existence of illegal conduct: Evidence must support an inference that the defendant subjectively knew his act to be illegal. The evidence should allow a “glimpse” into the defendant’s mind when there is no evidence pointing to actual knowledge. Suspicious and erratic behavior may be sufficient to infer subjective awareness of illegal conduct.

        (10) Deliberate ignorance instruction prong 2—purposeful contrivance to avoid learning of the illegal conduct: satisfied “if the circumstances were so overwhelmingly suspicious that the defendant’s failure to conduct further inspection or inquiry suggests a conscious effort to avoid incriminating knowledge. Not asking questions or the intensity and repetition in the pattern of suspicious activity coupled with the consistent failure to conduct further inquiry created an inference that the defendants purposefully contrived to avoid further knowledge.

        (11) Under U.S.S.G. § 3B1.5, a 4-level enhancement applies when a defendant convicted of a drug-trafficking crime or crime of violence uses body armor during the commission of the offense. “Use” means: (A) active employment in a manner to protect the person from gunfire; or (B) use as a means of bartering (the exchange of one commodity for another without the use of money). “Use” does not mean mere possession.

Editor’s Note: Fitting under the category of “you can’t make this shit up,” not only does Los Zetas have now have “arms” or “subsidiaries” like the Grimaldo Cartel, they now have their own artwork:

October 2017 SDR-1

Editor’s Note: the deliberate ignorance instruction is also explained in United States v. Barson, 845 F.3d 159 (5th Cir. 2016). The Fifth Circuit Pattern Jury Instruction 1.37A for Deliberate Ignorance provides: “You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact.”

Editor’s Note: The facts of this case and (former officer) Juarez’s actions are summarized well in this cartoon:

October 2017 SDR-2

United States v. Morgan, 16-30591, 2017 U.S. App. LEXIS 14615 (5th Cir. Aug. 8, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 3582(c)(2), the district court may reduce a defendant’s sentence if the Guidelines range applicable at sentencing is later lowered by the Sentencing Commission. The district court: (1) examines U.S.S.G. § 1B1.10 concerning reductions in sentences due to amended Guidelines to determine if the inmate is eligible; and (2) decides whether a reduction is consistent with the 18 U.S.C. § 3553(a) sentencing factors. A district court has the authority to reduce the sentence of a defendant when the range applicable to the defendant has subsequently been lowered because of an amendment under U.S.S.G. § 1B1.10(a)(1) & (d).

        (2) Under Sentencing Guidelines Amendment 782, the drug-quantity table in U.S.S.G. § 2D1.1 was modified by lowering most drug-related base-offenses levels by two.

United States v. Nanda, 16-11135, 2017 U.S. App. LEXIS 14814 (5th Cir. Aug. 10, 2017) (designated for publication)

        (1) Under Bruton v. United States, 391 U.S. 123 (1968), and Richardson v. Marsh, 481 U.S. 200 (1987), admission of a codefendant’s confession at a joint trial where that codefendant does not take the stand violates the other defendant’s Sixth Amendment right of confrontation if the confession is incriminating on its face. If the confession is not incriminating on its face, it does not violate the other defendant’s right of confrontation if it becomes incriminating only when linked with evidence introduced later at trial (an indirect reference to a codefendant is not enough to make it a Bruton statement). If the codefendant’s confession does not directly reference the defendant, a limiting instruction to the jury will help mitigate against confrontation issues. Bruton error may be harmless when by disregarding the codefendant’s confession, there is other ample evidence against a defendant.

        (2) Under Stirone v. United States, 361 U.S. 212 (1960), after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury.

        (3) A constructive amendment occurs when the court permits the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or upon a materially different theory or set of facts than that which the defendant was charged.

        (4) Under U.S.S.G. § 2B1.1(b)(10)(B), a 2-point enhancement may be added for committing a substantial portion of the alleged scheme from outside the United States.

        (5) Under U.S.S.G. § 2B1.1(b)(10)(C), a 2-point enhancement may be added for an offense involving sophisticated means of concealment.

United States v. Nesmith, 16-40196, 2017 U.S. App. LEXIS 14616 (5th Cir. Aug. 8, 2017) (designated for publication)

        (1) Review of a district court’s application of the U.S.S.G. is de novo, but if a defendant objects on grounds different from those raised on appeal, review is for plain error. The objection and argument on appeal need not be identical, but must only give the district court the opportunity to address the gravamen of the argument presented on appeal. The objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.

        (2) Under U.S.S.G. § 2G2.1(b)(4), the sadism enhancement applies if the offense involved material that portrays sadistic conduct or other depictions of violence. The inquiry must focus on an observer’s view of the image (what is portrayed and depicted and appears to be happening) rather than the viewpoint of the defendant or victim (what occurred).

        (3) Sadism is the infliction of pain upon a love object as a means of obtaining sexual release. The victim’s experience of contemporaneous physical or emotional pain is what prompts the sadist’s sexual release. A sadist experiences sexual gratification only while inflicting pain or humiliation on another, and does not obtain sexual release from the foreseeable, but uncertain, possibility that the victim will at some point in the future feel emotional pain.

        (4) Under U.S.S.G. § 2G2.1(b)(4), the sadism enhancement is appropriate where the infliction of emotional or physical pain was contemporaneous with the creation of the image. Without a contemporaneousness requirement, § 2G2.1(b)(4) would apply in every child pornography case regardless of the content of the images in question because it is foreseeable that any child who discovers that she was depicted in pornography would feel humiliated and debased. All child-victims would likely find it nerve-wracking not knowing who had seen the images or if they would become public later and not knowing what effect that would have on their lives. Without requiring the pain inflicted on the victim to be contemporaneous with creation of the image in question, the sadism enhancement could apply even where a victim never becomes aware that he or she is the subject of child pornography. Any connection between the victim and the defendant would make it foreseeable that the victim would later learn of the conduct depicted in the images and experience emotional pain.

        (5) An image portrays sadistic conduct and the sadistic enhancement is appropriate under U.S.S.G. § 2G2.1(b)(4) if the image depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation.

United States v. Quintanilla, et al, 16-50677 Cons w/ 16-50682, 16-50683, 16-50687, 16-50688, 16-50689, 16-50690, 16-50691, 16-50694, 16-50700, 16-50704, 16-50705, 16-50706, 16-50707, 16-50709, 16-50715, & 16-50716, 2017 U.S. App. LEXIS 15435 (5th Cir. Aug. 16, 2017) (designated for publication)

        (1) Under Amendment 782, effective November 1, 2014, and retroactive, U.S.S.G. § 2D1.1 was amended to allow a 2-level reduction to a defendant’s offense level based on the drug quantity. The amendment did not change § 4B1.1, the career offender guideline range. Existing statutory enhancements such as those available under 18 U.S.C. § 924(c) (using firearms in furtherance of another crime), and guideline enhancements for offenders who possess firearms, use violence, have an aggravating role in the offense, or are repeat or career offenders, are not affected by Amendment 782.

        (2) Under 18 U.S.C. § 3582(c)(2), a district court has authority to modify a sentence in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Under U.S.S.G. § 1B1.10(a)(1), if a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered by Amendment 782, the court may reduce the defendant’s term of imprisonment.

        (3) To qualify for Amendment 782, the defendant’s sentence must have been “based on” the drug-quantity guideline range under § 2D1.1 and not “based on” the career offender guideline range under § 4B1.1. A defendant’s sentence is “based on” § 4B1.1 if his sentence was calculated from the higher career offender range under § 4B1.1, which occurs if the guideline ranges under § 4B1.1 are higher than the drug quantity guideline range under § 2D1.1.

United States v. Sealed Search Warrants, 16-20562, 2017 U.S. App. LEXIS 15905 (5th Cir. Aug. 21, 2017) (designated for publication)

        (1) 28 U.S.C. § 1291 gives circuit courts jurisdiction over appeals from all final decisions of the district courts. Under Di Bella v. United States, 369 U.S. 121 (1962), orders on preindictment motions to suppress are interlocutory and not immediately appealable because it is subsumed by the possibility of a forthcoming criminal trial. However, motions to unseal documents are final and appealable.

        (2) The common law right of access to judicial records must be considered on a case-by-case basis. A district court may deny access if the files may become a vehicle for improper purposes, and must balance the public’s common law right of access against the interests favoring nondisclosure. The court must consider the presumption in favor of the public’s common law right of access to court records, which applies so long as a document is a judicial record. If the unsealing of preindictment warrant materials would: (1) threaten an ongoing investigation; (2) endanger or discourage witnesses from providing evidence or testimony, or (3) damage an unindicted target’s reputation while leaving no judicial forum to rehabilitate that reputation, the district court has discretion to make redactions prior to unsealing or, where necessary, to leave the materials under seal.

Texas Court of Criminal Appeals

There have been no significant decisions handed down by the TCCA since August 1, 2017.

Texas Courts of Appeals

Almanza v. State, 10-16-00224-CR, 2017 Tex. App. LEXIS 6455 (Tex. App. Waco July 12, 2017) (designated for publication)

        (1) Under Ballew v. Georgia, 435 U.S. 223, 245 (1978), and Ex parte Garza, 337 S.W.3d 903, 915 (Tex. Crim. App. 2011), to satisfy the Sixth Amendment, unless waived by the defendant, a jury must consist of at least six jurors in the absence of the agreement of the defendant. Where a person that was not summoned but who by mistake appeared and served as a juror, and there was otherwise no legal disqualification or misconduct, Ballew is not violated. This person’s appearance and presentation for jury duty effectively places the person under the jurisdiction of the court, and there is no error in the person’s participation as a juror.

Editor’s Note: As Thomas Jefferson once quipped to Thomas Paine, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Long live the jury trial and jurors, especially one that shows up (mistakenly or not) who was not even summoned:

October 2017 SDR-3

Ballard v. State, 01-15-00275-CR, 2017 Tex. App. LEXIS 6899 (Tex. App. Houston [1st Dist.] July 25, 2017) (designated for publication)

        (1) Under Tex. Penal Code § 43.26(a), a person commits possession of child pornography if he knowingly or intentionally possesses 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 he knows that the material depicts the child in this manner.

        (2) Under Tex. Penal Code § 1.07(a)(39), “possession” of contraband means “actual care, custody, control, or management.” Under Tate v. State, 500 S.W.3d 410, 413-414 (Tex. Crim. App. 2016), when contraband is not found on a person or is not in a location that is under the exclusive control of a person, mere presence at the location where the contraband is found is by itself insufficient to establish actual care, custody, or control. However, presence or proximity combined with other evidence (either direct or circumstantial) may be sufficient to establish possession. A factfinder may infer that the defendant intentionally or knowingly possessed contraband not in his exclusive possession if there are sufficient independent facts and circumstances justifying such an inference.

        (3) In Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012), the TCCA held that to determine legal sufficiency in computer child-pornography cases, each case must be analyzed on its own facts, and like all criminal cases, a court must assess whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence considered in the light most favorable to the verdict. Sufficient evidence to support a finding that the defendant had knowledge of the images of child pornography on a computer may include evidence that: (1) the images of child pornography were found in different computer files, showing the images were copied or moved; (2) the images of child pornography were found on an external hard drive or CD, which indicates the images were deliberately saved on the external devices; (3) the images stored on the computer and the external hard drive were stored in similarly named folders; (4) the names of the folders containing the images of child pornography necessarily were assigned by the person saving the file; or (5) the recovery of numerous images of child pornography from the defendant’s computer.

        (4) Under Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard unless it was: (1) so clearly calculated to inflame the minds of the jury, or (2) of such damning character as to suggest it would be impossible to remove the harmful impression from the jury’s mind.

        (5) Under Groh v. Ramirez, 540 U.S. 551 (2004), a warrant that incorporates other documents by reference must be served with the incorporated documents at the time the search is executed to satisfy the particularity requirement for a warrant. The SCOTUS did not address whether documents incorporated by reference must be delivered prior to the beginning of the search to the person whose premises are being searched. Texas law does not require that an incorporated affidavit to be attached to the warrant at the time of the execution of the search. Tex. Code Crim. Proc. Art. 18.06(b), which incorporates Tex. Const. Art. 1, § 9, requires only that the warrant and a written inventory of the items seized be served upon the owner of the premises to be searched.

Editor’s Note: When a person uses a peer-to-peer network, all persons connected to the network may view and download files in “shared folders.” The basic diagram of a peer-to-peer network is:

October 2017 SDR-4

Any file stored on a “shared folder” in a peer-to-peer network may be viewed by any person on the network. A file’s metadata contains properties that may be traced to an individual computer, which means that a file stored on a person’s “shared folder” may be downloaded and viewed by any number of persons on the peer-to-peer network. Thus, committing acts of misfeasance of storing and sharing child pornography on a peer-to-peer network is as advisable as posting this on Facebook:

October 2017 SDR-5

Cameron v. State, 04-12-00294-CR, 2017 Tex. App. LEXIS 6387 (Tex. App. San Antonio July 12, 2017) (designated for publication)

        (1) Under the Sixth Amendment, Johnson v. United States, 520 U.S. 461, 468–469 (1997), Presley v. Georgia, 558 U.S. 209, 212–213 (2010) (per curiam), and Steadman v. State, 360 S.W.3d 499, 510–511 (Tex. Crim. App. 2012), a defendant has the right to a public trial, which extends to voir dire. Violation of this right is structural error that does not require a showing of harm.

        (2) Under Lilly v. State, 365 S.W.3d 321, 331 (Tex. Crim. App. 2012), and Waller v. Georgia, 467 U.S. 39, 48 (1984), to determine whether a defendant’s right to a public trial was violated, a reviewing court considers: (1) defendant met the initial burden to show that the trial is closed to the public, which is considered under the totality of the evidence, rather than whether a spectator was excluded from trial, and if this burden is met, (2) whether the closure was justified, which requires considering whether: (i) the trial court took every reasonable measure to accommodate public attendance before closing the proceeding, (ii) the closure was necessary to protect an overriding interest, (iii) the closure was no broader than necessary, (iv) the trial court considered all reasonable alternatives to closing the proceeding, and (v) made findings adequate to support the closure.

Foster v. State, 05-15-01539-CR, 2017 Tex. App. LEXIS 7659 (Tex. App. Dallas August 11, 2017) (designated for publication) (Brown, J. dissenting)

        (1) Under Tex. Rule App. Proc. 34.6(f) and Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003), to be entitled to a new trial due to a missing record, an appellant must show: (1) he timely requested the reporter’s record, (2) a significant portion of the record has been lost or destroyed through no fault of his own, (3) the missing portion of the record is necessary to his ap­peal, and (4) the parties cannot agree on the record. When an appellant has not been harmed by the missing portion of the record, he should not be granted relief. The rule that the missing portion of the record is necessary to his appeal is meant to mitigate against the harshness of a rule that might require a new trial even when no error occurred in the proceedings. See Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013).

French v. State, 11-14-00284-CR, 2017 Tex. App. LEXIS 7589 (Tex. App. Eastland Aug. 10, 2017) (designated for publication)

        (1) Under Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014), and Tex. Penal Code § 22.021(a)(1)(B)(i), (iii), (iv), (a)(2)(B), a defendant may face prosecution for aggravated sexual assault of a child for the penetration of separate orifices regardless of whether the penetration occurred during the same transaction. Each subsection under Tex. Penal Code § 22.021 entails different and separate acts to commit the various, prohibited conduct.

        (2) Under Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), when disjunctive language contains different criminal acts, a jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Unanimity means that every juror agrees that the defendant committed the same, single, specific criminal act.

        (3) Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), and Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005), if the defendant preserved error, the appellate court will reverse if the defendant suffered “some harm.” Neither the State nor the defendant bears the burden of proving harm; the court of appeals must review the entire record to determine if the defendant suffered harm. To determine whether a defendant suffered “some harm,” a reviewing court considers: (1) the entire jury charge; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant factors present in the record, including voir dire and opening statements. “Some harm” requires a finding that the defendant “suffered some actual, rather than merely theoretical, harm from the error.”

Golliday v. State, 02-15-00416-CR, 2017 Tex. App. LEXIS 7048 (Tex. App. Fort Worth July 27, 2017) (en banc) (designated for publication)

        (1) Under Davis v. Alaska, 415 U.S. 308, 316 (1974), Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009), and Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016), an attack on credibility that reveals “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand” is not the same as a general attack on the credibility of a witness. The exposure of a witness’ motivation in testifying is a proper function of the constitutionally protected right of cross-examination. A constitutional violation occurs if a state evidentiary rule prohibits a defendant from cross-examining a witness concerning possible motives, bias, and prejudice to such an extent that he could not present a vital defensive theory. A defendant has a constitutional right to present his defense to the jury so that the jury may weigh his evidence along with the rest of the evidence presented.

Editor’s Note: The State’s sponsoring of this type of complaining witness is part of a larger problem that continues in Texas, which is the continued lack of accountability on the part of prosecutors.

October 2017 SDR-6

Nies v. State, 08-16-00011-CR, 2017 Tex. App. LEXIS 7134 (Tex. App. El Paso July 31, 2017) (designated for publication)

        (1) The denial of a motion to suppress evidence is analyzed under a bifurcated standard of review: determination of historical facts by the trial court is for an abuse of discretion, with total deference given if the determinations are supported by the evidence; and application of law to the facts is de novo.

        (2) Officers may conduct a search incident to a lawful arrest based on: (1) the need for officers to seize weapons or other things which might be used to assault on officer or effect an escape, and (2) the need to prevent the loss or destruction of evidence. Under Arizona v. Gant, 556 U.S. 332 (2009), this exception to the warrant requirement does not justify a search of a vehicle after the occupants of the vehicle have been handcuffed or otherwise secured.

        (3) Under the automobile exception, officers may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband or evidence of a crime. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officers on the scene would lead persons of reasonable prudence to believe that an instrumentality of a crime or evidence pertaining to a crime will be found.

        (4) Under Colorado v. Bertine, 479 U.S. 367, 371 (1987), an inventory search protects: (1) the owner’s property while the vehicle is in police custody, (2) the police against claims or disputes over lost, stolen, or vandalized property, and (3) the police from possible danger. The inventory search must be conducted in good faith and per reasonable standardized police procedure. The State has the burden to establish that the police conducted a lawful inventory search, which is met if the State demonstrates (usually through an officer’s testimony) that an inventory policy exists and the officers followed the policy.