September 2019 SDR - Voice for the Defense Vol. 48, No. 7

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Saturday, August 24th, 2019

Voice for the Defense Volume 48, No. 7 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 notrely 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

United States v. Haymond, No. 17-1672, 2019 U.S. LEXIS 4398 (U.S. June 26, 2019) [Mandatory minimum sentences for supervised-release violations under 18 U.S.C. § 3583(k) violate Apprendi]

        Under Apprendi v. New Jersey, 530 U.S. 466, 477 (2000), the Sixth Amendment’s “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury” and the Fifth Amendment’s “no one may be deprived of liberty without ‘due process of law’” ensures that the government must prove to a jury every criminal charge beyond a reasonable doubt. It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties, which include maximums and minimums. Facts necessary to increase minimum or maximum punishment should be found by the jury.

        Supervised-release violations subject to 18 U.S.C. § 3583(k) expose a defendant to an additional mandatory minimum prison term well beyond that authorized by the jury’s verdict and violate Apprendi.

Editor’s note: This is a plurality opinion, the majority being Gorsuch, Ginsburg, Sotomayor, and Kagan.

United States Court of Appeals for the Fifth Circuit

United States v. Buluc, No. 17-20694, 2019 U.S. App. LEXIS 20311 (5th Cir. July 9, 2019) (designated for publication) [Interfering with removal of an alien under 8 U.S.C. § 1253(a)(1)(C) and the Confrontation Clause]

        Under 8 U.S.C. § 1253(a)(1)(C), an alien against whom a final order of removal is outstanding who willfully fails or refuses to depart from the United States within 90 days from the final order of removal under administrative processes, or if judicial review is had from the date of the final order of the court, willfully fails or refuses to make timely application in good faith for travel or other documents necessary to departure, connives or conspires, or takes any other action, designed to prevent or hamper or for preventing or hampering departure per an order, or willfully fails or refuses to present himself for removal at the time and place required by the AG, shall be fined or imprisoned not more than 4 years or 10 years if the alien is a smuggler, has a felony conviction, is a trafficker, failed to register as an alien, falsified immigration documents, or committed a national security crime. The alien may be convicted without proof that he acted in concert with another.

        Under Crawford v. Washington, 541 U.S. 36, 53–54 (2004), testimonial statements of a witness who does not appear at trial is prohibited by the Confrontation Clause unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Under Ohio v. Clark, 135 S.Ct. 2173, 2180 (2015), an out-of-court statement triggers the Confrontation Clause only if the statement was testimonial, meaning its primary purpose was to create an out-of-court substitute for trial testimony. A statement is nontestimonial if the circumstances indicate that it was primarily aimed at quelling an ongoing emergency. A court examines factors like whether an ongoing emergency exists and the informality of the situation and interrogation.

United States v. Butt, et al, No. 18-20131, 2019 U.S. App. LEXIS 20862 (5th Cir. July 15, 2019) (designated for publication)

        Under 21 U.S.C. § 853(n)(2)–(3) and Fed. Rule Crim. Proc. 32.2(c)(1), a nonparty asserting a legal interest in property that has been ordered forfeited may petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The district court must conduct an ancillary proceeding.

        Under 21 U.S.C. § 853(n)(6), a petitioner has the burden of proving by a preponderance of the evidence that: (1) legal right, title, or interest in the forfeited property was vested in the petitioner rather than the defendant or was superior to that of the defendant when the commission of the acts that gave rise to the forfeiture occurred; or (2) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture.

        Under Fed. Rule Crim. Proc. 32.2(c)(1)(A), in an ancillary proceeding the district court may on motion dismiss the petition for lack of standing, for failure to state a claim, or for any lawful reason. The facts in the petition are assumed to be true. Courts follow the Fed. Rule Civ. Proc. for ancillary proceedings. The standard of review under Fed. Rule Civ. Proc. 12 for motions to dismiss is: de novo of a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the nonmoving party.

        Unsecured creditors generally lack standing to contest forfeiture of their debtor’s property. An unsecured creditor cannot establish a legal right to any particular piece of property in the debtor’s estate and therefore cannot satisfy 21 U.S.C. § 853(n)’s requirement that the interest exist in the property subject to forfeiture.

United States v. Daniels, No. 18-30791, 2019 U.S. App. LEXIS 20449 (5th Cir. July 10, 2019) (designated for publication) [Exigent circumstances; knock-and-talk; evidentiary rulings regarding officer misconduct]

        Under United States v. Carrillo-Morales, 27 F.3d 1054, 1060–1061 (5th Cir. 1994), and United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998), when reviewing a denial of a motion to suppress evidence, the 5th Circuit reviews factual findings for clear error and the constitutionality of law enforcement action de novo. A district court’s ruling in a motion to suppress should be upheld if there is any reasonable view of the evidence to support it. The evidence must be viewed in the light most favorable to the party that prevailed. The defendant has the burden to prove by a preponderance of the evidence that the evidence was obtained in violation of the Fourth Amendment.

        Searches and seizures inside a home without a warrant are presumptively unreasonable but allowed if exigencies make the needs of law enforcement so compelling that it becomes objectively reasonable. A valid exigency exists when an officer believes that evidence is being destroyed, although the officer may not rely on the need to prevent destruction of evidence when that exi­gency was created or manufactured by the conduct of the police (an officer may not engage or threaten to engage in conduct that violates the Fourth Amendment in order to create an exigency).

        Whether an exigency exists depends on a non-exhaustive five-factor test per United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011): (1) degree of urgency involved and amount of time necessary to obtain a warrant; (2) reasonable belief that con­traband is about to be removed; (3) possibility of danger to the police officers guarding the site of contraband while a search war­rant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) ready destructibility of the contraband and the knowledge that efforts to dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.

        Evidentiary rulings are reviewed for abuse of discretion and will not cause a reversal unless the error was harmful and affected a substantial right (the trier of fact would have not found the defendant guilty beyond a reasonable doubt with the additional evidence inserted).

United States v. Jones, No. 18-50086 & 18-50088, 2019 U.S. App. LEXIS 19822 (5th Cir. July 2, 2019) (op. on reh) (designated for publication) [Confrontation Clause pertaining to statements by a CI; disclosure of a CI’s identity]

        Under Crawford v. Washington, 541 U.S. 36, 42, 61 (2004), testimonial statements of witnesses absent from trial may be admitted only where the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Review of preserved claims of Confrontation Clause error is de novo subject to harmless error.

        Officers cannot refer to the substance of statements given to them by nontestifying witnesses when those statements inculpate the defendant. An officer’s testimony need not repeat the absent witness’ exact statement to implicate the Confrontation Clause. Rather, where an officer’s testimony leads to the clear and logical inference that out-of-court declarants believed and said that the defendant was guilty of the crime charged, Confrontation Clause protections are triggered.

        Under Gray v. Maryland, 523 U.S. 185, 193–194 (1998), if a jury is not required to make logical inferences to link a CI’s statement to the defendant’s guilt such that the defendant is linked to the crime and doubt is eliminated as to who the CI is referring to, the Confrontation Clause is triggered.

        Officers may refer to out-of-court statements to provide con­text for their investigation or explain background facts so long as the statements are not offered for the truth of the matter asserted but instead for another purpose like to explain the officer’s actions. The prosecution must be circumspect in the use of such evidence, and the trial court must be vigilant in preventing its abuse.

        Under Bruton v. United States, 391 U.S. 123, 135 (1968), although jurors are ordinarily expected to follow instructions, some statements are so powerfully incriminating that they are not cured by instructions.

        A nontestifying witness’ out-of-court statement, including a co-defendant’s confession, that facially incriminates a defendant violates the defendant’s Sixth Amendment right to confrontation even when the jury is instructed not to consider the prior statements as evidence.

        For invited error to permit waiver of the Confrontation Clause, a purposeful rather than inadvertent inquiry into the forbidden matter must be shown. Invited error applies only where the error can be attributed to the actions of the defense. A defendant may cross-examine the government’s witnesses and probe inconsistencies without risking the unwitting admission of incriminating hearsay. To hold otherwise would eviscerate the protections of the Confrontation Clause by forcing defendants to choose between their right to vigorously cross-examine testifying witnesses and their right to confront out-of-court accusers.

        Under Chapman v. California, 386 U.S. 18, 24 (1967), unless error is structural, error may be harmless if there was no reasonable possibility that the tainted evidence might have contributed to the jury’s verdict. Under United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004), the harmlessness inquiry focuses on the evidence that violated the right and not the sufficiency of the evidence remaining after excision of the tainted evidence. When the Government has the burden of addressing prejudice as in excusing preserved error as harmless on direct review of the criminal conviction, it is not enough to negate an effect on the outcome of the case.

        Under Roviaro v. United States, 353 U.S. 53, 62 (1957), and United States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017), review of a district court’s decision to deny disclosure of a CI’s identity is for abuse of discretion. There is no fixed rule because the problem calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. The test to determine whether the identity of a CI should be disclosed is the: (1) level of the CI’s activity; (2) helpfulness of the disclosure to the asserted defense; and (3) government’s in­terest in nondisclosure. Denying disclosure is proper when the CI was a mere tipster, did not provide information that would aid the defense, or the disclosure posed risks to the safety of the CI and his family and could jeopardize other ongoing investigations.

        Under Giglio v. United States, 405 U.S. 150, 154–155 (1972), the value of impeachment evidence depends on how a witness is used at trial and whether his credibility is a relevant issue.

Texas Court of Criminal Appeals

Alfaro-Jimenez v. State, No. PD-1346-17, 2019 Tex.Crim.App.LEXIS 662 (Tex.Crim.App. July 3, 2019) (designated for publication) [Legal sufficiency and a material variance between the indictment and the evidence presented at trial]

        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 legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in tes­ti­mony, weighing of evidence, and drawing reasonable inferences from the facts. 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. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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. 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. Variances are tolerated if they are not so great that the proof at trial “shows an entirely different offense” than what was alleged in the charging instrument.

Editor’s note: the TCCA reversed and acquitted appellant due to a material variance between the indictment and the evidence presented at trial. Thus, I add below the full legal sufficiency analysis, including the law regarding material variances:

  • 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 legal sufficiency, after viewing the evidence in the light most favorable to the verdict, a reviewing court considers whether the factfinder was rationally justified in finding the es­sen­tial elements of the crime beyond a reasonable doubt. The reviewing court does not substitute its judgment for that of the factfinder by reevaluating the weight or credibility of the evidence but defers to the factfinder’s resolution of conflicts in testimony, weighing of evidence, and drawing reasonable inferences from the facts. 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. Under Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), proof of mental state will almost always depend upon circumstantial evidence, and knowledge may be inferred from the person’s acts, words, and conduct. 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. 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. Variances are tolerated if they are not so great that the proof at trial “shows an entirely different offense” than what was alleged in the charging instrument.
  • Tex. Penal Code § 37.10, Tampering with Governmental Record, can be committed 6 ways and may involve a real record (also defined 6 ways) or a fake one. It is punishable from a Class A to an F-2 and is determined by the type of record tampered with and whether the actor’s intent is to defraud or harm another.
  • The government had so show that what Appellant possessed or presented was a governmental record. Neither subsections al­low a conviction by mere proof that Appellant intended for a fake document to be taken as genuine.
  • Tex. Penal Code § 37.10(a)(2) does not require proof that the record presented was an authentic governmental record. It allows a conviction if the government proves that the defendant: makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a gen­uine governmental record. This allows a conviction if one presents a counterfeit governmental record as if it were authentic. But this was not the theory under the indictment.
  • By indicting Appellant for tampering with a governmental record under § 37.10(a)(4) and (a)(5), the State had to prove that the fake card was a real governmental record and not merely that Appellant intended the card be taken as a genuine governmental record.
  • The judgment of the court of appeals is reversed and Appellant is acquitted.

Chambers v. State, No. PD-0771-17, 2019 Tex.Crim.App.LEXIS 660 (Tex.Crim.App. June 26, 2019) (designated for publication) [“Required by law” jury instruction for tampering with governmental records; “defraud” in context of governmental records]

        The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” requires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.

        There is no requirement that the state prove that a governmental record is “required by law” to be kept for it to be considered a governmental record.

        Under Tex. Penal Code § 1.07(a)(25), “harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person af­fected is interested.

        Defraud is not statutorily defined but is defined by “dishonest means that cause an injury or loss by withholding a possession, right, or interest.” To be defrauded, the government must have a right or duty to act (or refrain from acting) on the matter intended to be affected by the deceit.

        A legal impossibility exists where the defendant intends to do something that would not constitute a crime (or at least the crime charged) or intends to commit a crime not because he intends to do something the criminal law prohibits but because he is ignorant of the law. Thus, a defendant may intend to prevent the government from taking a certain action against him (fining him) and if the government has no authority to fine the defendant, then it is legally impossible for the defendant to “defraud” the government out of an opportunity to fine him even if the defendant believes the government has that authority.

        Intent to defraud a government entity requires an intent to cause the entity to rely upon a false representation to act (or refrain from acting) on a certain matter and the government has the right or duty to act on that matter.

Editor’s note: the complete analysis for determining harm from jury instruction error:

  • The standard to determine whether sufficient harm resulted from a jury-charge error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). If a timely objection was made during trial, the finding of “some harm” re­quires reversal. If error is urged for the first time on appeal, the reviewing court may reverse only upon the finding of “egregious harm.” See also Ngo v. State, 175 S.W.3d 738, 743–744 (Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985), and Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007), jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. To determine whether unobjected-to jury-charge error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record. Under Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), direct evidence of harm is not required to establish egregious harm.

Franklin v. State, No. PD-0787-18, 2019 Tex.Crim.App.LEXIS 661 (Tex.Crim.App. July 3, 2019) (designated for publication) [A claim under Miller v. Alabama must be asserted by the defendant]

        A Miller claim is the assertion that the Eighth Amendment is violated by applying a mandatory sentence of life without parole to the defendant because he was under 18 at the time of his offense.

        A Miller claim is not forfeited by the failure to raise it at trial.

        A defendant who wishes to rely on Miller must claim that he was under the age of 18 at the time of his offense.

        An age-based ineligibility claim (a Miller claim) is like an Atkins intellectual-disability claim in that a characteristic of the defendant that mitigates moral culpability creates an exemption with respect to punishment. Thus, like an Atkins claim, it is an affirmative defense in that the defendant has the burden to prove it by a preponderance of the evidence whether the issue is raised at trial or on habeas.

Ruiz v. State, No. PD-1348-17, 2019 Tex.Crim.App.LEXIS 664 (Tex.Crim.App. July 3, 2019) (designated for publication) [The Fourth Amendment applies only to government action; Art. 38.23 does not extend the Fourth Amendment to private citizens acting in a private capacity]

Smith v. State, No. PD-0715-17, 2019 Tex.Crim.App.LEXIS 663 (Tex.Crim.App. July 3, 2019) (designated for publication) [Instruction for voluntary intoxication under Tex. Penal Code § 8.04(a)]

        Under Tex. Code Crim. Proc. Art. 37.07 § 3(a)(1), during the punishment phase the State may offer evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible in four ways, showing that the defendant: (1) committed an extraneous crime; (2) is criminally responsible for an extraneous crime committed by another; (3) personally committed an extraneous bad act; and (4) is criminally responsible for an extraneous bad act committed by another. Under Art. 37.07 § 3(a)(1), the distinction between crimes and bad acts is irrelevant because unlike the guilt-innocence phase, the question at punishment is not whether the defendant has committed a crime but what sentence should be assessed. The punishment phase requires the jury only find that the prior acts are attributable to the defendant beyond a reasonable doubt.

        Under Tex. Penal Code § 8.04(a), voluntary intoxication is not a defense to the commission of crime but is an anti-defensive issue (“it is no defense to prosecution”) because it benefits the State’s position but is not something the indictment requires the State to prove from the outset.

        Evidence that supports giving a voluntary-intoxication instruction in the punishment phase are those from any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his actions. The trial court must expressly limit a punishment-phase instruction under Tex. Penal Code § 8.04(a) so that it applies only to the jury’s consideration of extraneous-conduct evidence. It cannot apply to or be considered with the indicted conduct. It may be applied to extraneous conduct only because in the punishment phase, the lawfulness or unlawfulness of that conduct has not yet been finally resolved.

Texas Courts of Appeals

$38,400 v. State, No. 04-18-00258-CV, 2019 Tex.App.—LEXIS 5311 (Tex.App.—San Antonio June 26, 2019) (designated for publication) [Summary judgment standard in civil forfeiture proceedings]

        Under Tex. Code Crim. Proc. Art. 59.05(a), forfeiture proceedings are civil in nature and the rules of civil procedure apply, so when a party files a motion for summary judgment arguing it is entitled to judgment as a matter of law because its evidence established there is no genuine issue as to any material fact regarding each and every element of its ground, the motion is a traditional motion for summary judgment under Tex. Rule Civ. Proc. 166a.

        Summary judgment is viewed in a light most favorable to the nonmovant, so the reviewing court takes take all evidence fa­vor­able to the nonmovant as true and indulges every reasonable inference and resolve any doubts in the nonmovant’s favor. Summary judgment is proper only if the movant conclusively establishes all facts necessary to entitle the movant to judgment as a matter of law. The court may not draw inferences against the nonmovant because doing so is the responsibility of the factfinder and not the court.

        Under Tex. Code Crim. Proc. Art. 59.01(2)(B)(i), (C), “contraband” includes property of a nature that is used or intended to be used in the commission of any felony under Tex. Health & Safety Code Ch. 481 and proceeds gained from the commission of such a felony.

Editor’s note: “According to his discovery responses, Sosa found the money ($38,400) in the black bag on the roadside.” This case shows that anything is possible.

Arrington v. State, No. 01-17-00859-CR, 2019 Tex.App.—LEXIS 5552 (Tex.App.—Houston [1st Dist.] July 2, 2019) (designated for publication) [Collective knowledge doctrine; entering a home under exigent circumstances to make an arrest under Tex. Code Crim. Proc. Art. 14.05]

        Under Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App. 2009), to suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct, which is satisfied if the defendant shows that a search or seizure occurred without a warrant. The burden shifts to the State to establish that the search or seizure was reasonable. The State may satisfy this burden by showing that one of the statutory exceptions to the warrant requirement is met.

        Under Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App. 2009), probable cause for a warrantless arrest requires that at the moment of arrest the facts within the arresting officer’s knowledge or of which he has reasonably trustworthy information are sufficient to warrant a reasonable belief that the person arrested committed or was committing an offense. Probable cause requires more than bare suspicion but less than for a conviction. The test for probable cause is objective, is unrelated to the subjective belief of the officer, and requires consideration of the totality of the circumstances. If probable cause exists, exigent circumstances may require an immediate warrantless entry to arrest a suspect.

        Under Derichsweiler v. State, 348 S.W.3d 906, 914–915 (Tex.Crim.App. 2011), probable cause is subject to the collective knowledge doctrine, so the detaining officer need not be per­sonally aware of every fact that objectively supports a reasonable suspicion to detain. The cumulative information known to the cooperating officers at the time of the stop is considered in determining whether reasonable suspicion exists.

        Under Tex. Code Crim. Proc. Art. 14.01(a), a peace officer or any other person may arrest an offender when the offense is committed in his presence or within his view if the offense is a felony or against the public peace.

        Under Miles v. State, 241 S.W.3d 28, 42 (Tex.Crim.App. 2007), DWI is a breach of the peace.

        Under Tex. Code Crim. Proc. Art. 14.05, an officer may not enter a residence to make a warrantless arrest unless the resident consents to his entry or exigent circumstances require the officer making the arrest to enter the residence.

Fulton v. State, No. 12-18-00031-CR, 2019 Tex.App.—LEXIS 5146 (Tex.App.—Tyler June 20, 2019) (designated for publication) [Legally sufficient evidence for criminally negligent homicide; IATC at punishment]

        Under Tex. Penal Code §§ 6.03(d), 19.05(a), and Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App. 2012), to support a conviction for criminally negligent homicide, the State must prove that: (1) the defendant’s conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) the defendant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred. Criminal negligence does not require proof of a defendant’s subjective awareness of the risk of harm but rather his awareness of the attendant circumstances leading to such a risk. Criminal negligence occurs not when the actor is aware of a substantial risk and disregards it but rather when he fails to perceive the risk at all.

        Under Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App. 2012), there is a legal distinction between criminal negligence and civil negligence: Civil or “simple” negligence means the failure to use ordinary care (failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances). Criminal negligence involves a greater risk of harm to others: The seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. The risk must be substantial and unjustifiable and the failure to perceive it must be a gross deviation from reasonable care as judged by general societal standards by ordinary people. In finding a defendant criminally negligent, a jury must determine that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment. The degree of deviation from reasonable care is measured solely by the degree of negligence, not any element of awareness. Whether the conduct involves an extreme degree of risk must be determined by the conduct and not by the resultant harm, so criminal liability cannot be predicated on every careless act merely because its carelessness results in death or injury to another.

        Under Strickland v. Washington, 466 U.S. 668, 694 (1984), and Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App. 2003), to establish IATC, a defendant must show that: (1) counsel’s performance was deficient (errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amend­ment); and (2) the deficient performance prejudiced his defense (a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different). Deficient performance requires a showing that counsel’s performance fell below an objective standard of reasonableness. A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance, and that his decisions at trial were based on sound trial strategy. Allegations of ineffectiveness must be firmly founded in the record. A reviewing court will not speculate as to the basis for counsel’s actions so a record that is silent on the reasoning behind those actions is sufficient to deny relief. Absent evidence in the rec­ord, a reviewing court will not conclude that the challenged conduct is deficient unless it was so outrageous that no competent attorney would have engaged in it. The defendant must establish IATC by a preponderance of the evidence. Almost total deference should be given to fact-findings supported by record especially if based upon credibility and demeanor. A verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.