COURT OF CRIMINAL APPEALS UPDATE: SIGNIFICANT DECISIONS FROM SEPTEMBER 2014 TO JUNE 2015
HON. DAVID C. NEWELL Texas Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 [email protected] 512-463-1570
State Bar of Texas 41ST ANNUAL ADVANCED CRIMINAL LAW COURSE July 27-30, 2015 San Antonio
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Hon. David C. Newell Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711 512-463-1570
BIOGRAPHICAL INFORMATION
EDUCATION
B.A. in English, Magna Cum Laude, University of Houston, 1993 J.D. from the University of Texas, 1997
PROFESSIONAL ACTIVITIES
Assistant District Attorney, Harris County D.A.’s Office – Appellate Division Assistant County Attorney, Ft. Bend County Attorney’s Office Assistant District Attorney, Ft. Bend D.A.’s Office – Appellate Division Board Certified in Criminal Law and Criminal Appellate Law 2006-2008, 2010-present Chairperson, Editorial Board for the TDCAA Prosecutor 2004-2006 Board Member, Editorial Board for the TDCAA Prosecutor
LAW RELATED PUBLICATIONS/TEACHING OPPORTUNITIES
Column Co-Author As the Judges Saw It - TDCAA Texas Prosecutor Author/Speaker - Supreme Court/CCA Update 2007-2009, 2011 TDCAA Annual Civil and Criminal Law Update Author/Speaker – Supreme Court Update 2006 TDCAA Annual Civil and Criminal Law Update Speaker – The Texas Lawyer’s Creed: Or, The Importance of Behaving Like A Professional Even Though You Aren’t Paid or Treated Like One 2005 Practicing in Fort Bend County Courts
Acknowledgement
This paper and presentation would not have been possible without the assistance of my incalculably brilliant briefing attorney, Jessica Rugeley. All the smart stuff comes from her. I provided the dynamic use of bold typeface, limited commentary, and possibly inappropriate snark. If there is something you find helpful here, it came from Jessica. If there is something that irritated you, chances are that came from me.
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TABLE OF CONTENTS
I. INTRODUCTION ...... 1
II. MOTIONS TO SUPPRESS ...... 1 A. Search Incident to Arrest—Police could not arrest based upon an uncorroborated and anonymous call about a vehicle chasing a man in a field...... 1 B. Search Warrants ...... 1 1. Officer’s statement that he smelled marijuana from an ambiguously described “location” outside of building with multiple tenants was insufficient to provide probable cause...... 1 2. Search warrant affidavit established probable cause after illegal dog sniff information was excised when the affidavit as a whole established that officers twice smelled raw marijuana and observed activities consistent with an illegal grow operation...... 2 C. Warrantless Blood Draws—Implied consent statute does not provide independent justification to seize a felony DWI suspect’s blood without a warrant or a recognized exception to the warrant requirement . . . yet? ...... 3 D. Statements - Questions about the defendant’s name and phone number that were asked in a custodial interview did not fall within the “booking” exception to the Miranda rule because the questions were not asked during a booking procedure and the circumstances did not indicate that the questions were reasonably related to an administrative purpose...... 5
III. TRIAL PROCEDURE ...... 6 A. Open Courts – Record established that the trial judge improperly closed the courtroom during voir dire by removing the defendant’s family and friends and failing to consider reasonable alternatives despite the trial court’s failure to rule. . . or did it? ...... 6 B. The trial court lost jurisdiction to revoke community supervision when capias on the motion did not issue prior to the expiration of the term of community supervision...... 7 C. Defendant charged with possession of controlled substance has an absolute right to have the substance analyzed by an independent expert but the trial court is not required to appoint an expert for indigent defendants unless the defendant makes a preliminary showing of materiality...... 7
IV. EVIDENCE ...... 8 A. Confrontation Clause: The admission of a supervising DNA analyst’s opinion regarding a DNA match did not violate the Confrontation Clause when that opinion was based upon computer-generated data obtained through batch DNA testing...... 8 B. Forensic expert may testify that cocaine was found in the defendant’s blood sample even though amount was lower than DPS’s reportable level...... 9 C. Convictions over ten years old may only be admitted when probative value “substantially outweighs” prejudicial effect; Texas Rule of Evidence 609(b) does not incorporate common-law “tacking doctrine.” ...... 9 D. Text messages were properly authenticated when the witness testified that she knew the defendant sent the messages because they came from his phone number, he called her between texts, and referenced the text-message conversation...... 10 E. Defendant’s incriminating statements made during a substance-abuse program that he was required to attend as part of a plea bargain were still involuntary and did not fall under the voluntary drug-abuse treatment privilege...... 10
V. OFFENSES ...... 11 A. NEW RULE: The State need only establish the corpus delicti of one offense when the defendant extra-judicially confesses to multiple offenses committed in the same criminal episode or course of conduct...... 11 B. Improper Photography or Visual Recording—Penal Code § 21.15(b)(1) is facially unconstitutional because it prohibits inherently expressive and protected conduct when a more narrowly tailored statute could address privacy concerns...... 12 C. Unlawfully Carrying a Weapon—Penal Code § 46.02 does not prohibit a condominium owner from openly carrying a weapon on jointly owned condominium complex common areas...... 13
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D. Telephone Harassment—For purposes of § 42.07(a)(4), the telephone harassment statute, "repeated" simply means more than one phone call...... 13 E. Failure to Comply with Sex Offender Registry Requirements—Evidence of a failure to notify police about an anticipated change of address before moving looks a lot like failure to notify of an actual change of address after moving, but pleading the wrong one can result in jury charge error...... 14 F. Aggravated Sexual Assault of a Child—Evidence was sufficient to show the defendant acted voluntarily when the complainant testified that she did not believe defendant was asleep and the defendant's wife testified that he did not normally touch her in his sleep...... 15 G. Cruelty to Non-Livestock Animals—Health and Safety Code § 822.013 provides a defense to the crime of cruelty to animals when the defendant killed a dog that attacked his own dog...... 15 H. Theft—Evidence was sufficient to show the defendant intended to deprive the owner of property when the defendant developed a pattern of taking money for unfulfilled contracts...... 16 I. Aggravated Kidnapping—Whether defendant voluntarily released the victim in a safe place is determined on case-by-case basis with an eye towards seven non-exhaustive factors...... 16 J. Money Laundering and Conspiracy to Commit Money Laundering—Two legal money transfers do not establish a conspiracy to commit a felony violation of the Election Code...... 17 K. Injury to a Child—Defendant whose conviction was reformed to lesser-included offense was entitled to new trial when the record was unclear as to which culpable mental state the jury determined applied...... 19 L. Third-degree felony family-violence assault—Domestic violence assault is a result-oriented offense, not a conduct-oriented offense, thus the jury charge must tie the culpable mental state to the resulting injury...... 20 M. DWI—Defendant passed out behind wheel with engine running and car in park sufficiently established he operated a motor vehicle...... 20
VI. JURIES AND JURY INSTRUCTIONS ...... 21 A. Voir Dire—A defendant who chooses to use peremptory strikes outside of the "strike zone" may not then complain about harm concerning a juror within the strike zone who could have been removed...... 21 B. Jury Instructions ...... 22 1. In capital murder cases where the basis for the charge is multiple victims, the jury must unanimously find that the defendant is responsible for the deaths of specific individuals...... 22 2. The defendant was not entitled to a voluntariness instruction when it was undisputed that he voluntarily possessed a credit-card skimming device despite his claims that he did not know what it did...... 22 3. A capital murder defendant was not entitled to a manslaughter instruction when the evidence supported the greater lesser-included offense of felony murder...... 23 4. Defendant was not egregiously harmed by failure to give unanimity instruction with respect to six counts of aggravated sexual assault of a child and one count of indecency where jury was faced with only two diametrical theories of the case and it necessarily rejected one in reaching its decision...... 23 5. The defendant was not egregiously harmed by omission of a presumption-of-reasonableness instruction as applied to self-defense because the jury could have rejected the presumption and the evidence did not support it...... 24 6. An Article 38.075 instruction for jailhouse-informant testimony is required for testimony about any statements purportedly made by the defendant that are adverse to the defendant’s interest...... 24
VII. SENTENCING...... 25 A. Death Penalty ...... 25 1. For mental retardation claims, judges may consider the Flynn Effect when it is impossible to retest with a more recent IQ test but may not use the Effect to change an IQ score...... 25
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2. A trial judge does not deviate so far from well-settled legal principles to be considered acting outside of the judge’s authority when he agrees to determine intellectual disability in a death penalty case pretrial...... 26 B. Restitution—When the record is clear that the trial judge orally made restitution part of the sentence, but either the amount or the person(s) to whom it is owed is unclear, the case should be remanded to the trial court for a hearing on restitution...... 27 C. Deadly Weapons—A vehicle is not per se a deadly weapon in a felony DWI case; the State must establish that the defendant placed others in actual danger of serious harm...... 28 D. Double jeopardy ...... 28 1. In a sexual assault case, if an exposure or contact stems from the same impulse that results in penetration, those acts are "incident to and subsumed by" the penetration and are the same offense for double jeopardy purposes...... 28 2. The Double Jeopardy Clause does not allow dual convictions for aggravated assault with a deadly weapon against a public servant and intoxication assault stemming from the same criminal act...... 29 3. Intoxication assault and felony DWI are not the same offense for double-jeopardy purposes when they arise out of the same transaction...... 29 4. Convictions for indecency with a child were not subsumed by convictions for aggravated sexual assault of a child when multiple incidents of both contact and penetration occurred on multiple days and could have formed the basis for each count...... 30 5. Successive prosecutions for capital murder and aggravated assault were not jeopardy barred when each charge had different victims though both charges stemmed from the same offense...... 30 E. Enhancements—State could properly enhance with a prior conviction for a state jail felony conviction that had been enhanced to a second-degree felony prior to September 1, 2011...... 31 F. Cumulating Sentences ...... 32 1. A trial judge may cumulate a defendant’s sentences for sexually abusing a child when the indictment lists an offense date that is before the effective date of the amendment to Penal Code § 3.03 as long as the evidence shows the abuse occurred both before and after that effective date...... 32 2. Granting a new punishment hearing removes the sentence for that case from the stacking order and the trial judge must issue a new order stacking the new sentence in the re-sentenced case onto the sentence for an existing conviction...... 33 G. Probation ...... 33 1. Individual on community supervision was not given fair notice about condition requiring him to waive Fifth Amendment right and disclose existence of other victims when the trial court only gave general instructions that the individual had to pass polygraph exams “without admissions.” ...... 33 2. Can a defendant placed on community supervision for a state-jail felony be required to reimburse a county for the cost of incarceration in a county jail as a condition of community supervision? Who knows? ...... 35
VIII. APPEALS ...... 36 A. Jurisdiction ...... 36 1. When the State files an interlocutory appeal, simply quoting TRAP Rule 25.2(a)(1) and Tex. Code Crim. Proc. Art. 44.01(a) is not a sufficient certification to confer jurisdiction on the court of appeals...... 36 2. A juvenile court that waives jurisdiction and transfers a juvenile to district court must list specific reasons for waiving jurisdiction in the order itself...... 36 B. Preservation of Error ...... 37 1. Defense counsel’s attempt to rephrase voir dire questions after the trial court sustained a commitment question objection did not forfeit complaint regarding the limitation of questioning...... 37 2. The defendant preserved error on the failure to give a self-defense by deadly force instruction when he made a general self-defense instruction request, even though the evidence supported both self-defense and self-defense by deadly force instructions, because the defendant was only charged with using deadly force...... 37 iii Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
3. The right to have the full range of punishment considered is a category-two Marin right and is not forfeitable by failing to object at trial...... 38 4. When a trial judge orders a defendant to pay restitution as a term of probation for stolen items that the defendant was not charged with stealing, the defendant must object to preserve error...... 38 5. Defendant must appeal from initial order of deferred adjudication to challenge imposition of attorney’s fees if the defendant knew attorney’s fees would be imposed but did not know the exact amount...... 39 6. TRAP Rule 25.2(f) has no preservation requirement and the State may complain about an inaccurately amended certification for the first time on appeal...... 40 7. The court of appeals failed to consider preservation of error when the defendant moved to suppress blood evidence obtained without a warrant...... 41 C. Motions for New Trial ...... 41 1. The case was remanded because the court of appeals failed to address each of the four prongs of the Keeter test for a motion for new trial based upon newly discovered evidence...... 41 2. There is no specific time limit on the trial court’s power to rescind the granting of a motion for new trial...... 41 3. Trial court did not abuse its discretion in denying the defendant’s motion for new trial when the defendant alleged a conflict of interest and trial counsel invoked his Fifth Amendment right not to testify at the hearing on motion for new trial...... 42
IX. INEFFECTIVE ASSISTANCE OF COUNSEL ...... 43 A. Deficient performance—Counsel was ineffective for failing to present the testimony of an expert on sodium intoxication whose testimony directly refuted the State’s expert and theory that the defendant failed to seek medical attention in a timely manner when her son fell ill from salt poisoning...... 43 B. Prejudice—Counsel’s failure to object to testimony about polygraph evidence prejudiced the defendant when the State’s evidence of guilt was otherwise weak and the State heavily relied on the polygraph testimony...... 44
X. HABEAS CORPUS ...... 45 A. Actual Innocence—Defendant who pleaded guilty to possession of a controlled substance, and the substance, once tested, turned out not to be illegal, may not claim actual innocence; Proper vehicle for relief is through a claim that plea was involuntary...... 45 B. Subsequent application for writ of habeas corpus was dismissed without prejudice to allow federal habeas counsel to take over pursuant to the applicant’s wishes...... 45 C. Laches ...... 46 1. Application barred by fifteen-year delay in filing because applicant knew about avenues for relief and could have inquired about the proper procedures to file an application...... 46 2. A trial court may sua sponte consider whether laches should bar an applicant’s claim but the applicant must be given an opportunity to explain a delay in filing...... 46 3. The doctrine of laches applies to Article 11.072 and the State is not required to raise laches in the trial court...... 47 D. Article 11.073 ...... 47 1. Article 11.073 applies to situation where medical examiner who testified at trial changed her opinion after gaining more experience...... 47 2. Applicant was entitled to a new punishment hearing when the State and the habeas court agreed that newly available scientific evidence contradicted the verdict...... 50 E. Any supplemental evidence for an 11.07 writ application must be filed with the court of conviction or the Court of Criminal Appeals will not consider it...... 50 F. Phillips v. State is overruled; Applicant forfeited his statute of limitations claim by agreeing to waive the defense in a plea bargain to avoid the filing of a more serious charge...... 51
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COURT OF CRIMINAL APPEALS testified that the vehicle was searched pursuant to Kuykendall's arrest. The officers did not have probable UPDATE: SIGNIFICANT DECISIONS cause to arrest Story, as an anonymous call about FROM SEPTEMBER 2014 TO MAY illegal activity must be corroborated and both Story 2015 and Kuykendall stated they had only argued. Judge Meyers also briefly discussed the State’s argument that I. INTRODUCTION the court of appeals failed to address the claim that the This paper covers the published opinions issued search was incident to Kuykendall’s arrest and noted by the Court of Criminal Appeals between September the court of appeals had explained that this particular 1, 2014 and June 8, 2015. However, we will continue argument was contrary to the evidence. to update the paper through the rest of the Court’s Presiding Judge Keller dissented, joined by Judge term. If you would like a copy of the updated paper, Price, to surmise that the State should have been please feel free to email me though Willette Wallace at permitted to present the open fields argument because [email protected] and we’ll do our best to Story was on notice that she would need to establish a hook you up. privacy interest with respect to the premises, as she was bringing a Fourth Amendment claim. Judge Keller II. MOTIONS TO SUPPRESS further noted that even without the open fields A. Search Incident to Arrest—Police could not argument, Story failed to establish that she had any arrest based upon an uncorroborated and privacy interest in the field, which was her burden. anonymous call about a vehicle chasing a man Judge Keller went on to point out that the officer saw in a field. the marijuana cigarette in plain view before he arrested Sherriff’s deputies responded to an anonymous Story and that gave him probable cause to search the call about a vehicle chasing and possibly attempting to vehicle under the automobile exception. run over a man in a field. The deputies found an SUV in the field but no one was inside. They then found Judge Womack concurred without an James Kuykendall walking nearby and determined that opinion. he was the man who was chased. Kimberly Story then arrived and told the officers that she and Kuykendall B. Search Warrants had been arguing and he got out of the car. She 1. Officer’s statement that he smelled marijuana followed him in the car, trying to get him to get back from an ambiguously described “location” outside in. Both Story and Kuykendall said nothing had of building with multiple tenants was insufficient happened and it was “just an argument.” A deputy saw to provide probable cause. what he thought was a marijuana cigarette in plain A DPS officer received information that view inside the SUV. Story was then arrested for marijuana was being grown inside Bradley assault and the deputies searched her vehicle. McClintock’s residence. McClintock lived in a second- Kuykendall admitted the marijuana was his and the floor apartment over a business. An open staircase on officers subsequently arrested him. During the search the back of the building leads from the parking lot to of the SUV, the officers found several checks that were the second floor apartment. Officers monitored the either made out to Story or blank. The officers seized apartment and witnessed a male individual coming and the checks and Story was indicted for forgery. Story going from the apartment during non-business hours. filed a motion to suppress the checks, which the trial The DPS officer approached “this location” and could court granted. smell marijuana. A narcotics canine was brought to the The Court of Criminal Appeals affirmed. State v. second floor outside of McClintock’s apartment and Story, 445 S.W.3d 729 (Tex. Crim. App. Oct. 15, alerted to the presence of drugs. Based on this 2014)(6:1:2). Writing for the majority, Judge Meyers information, the officer obtained a search warrant for first explained that the State’s argument that the McClintock’s apartment and found marijuana. officers were permitted to look into the vehicle McClintock filed a motion to suppress, which the trial pursuant to the open fields doctrine would not be court denied. considered because it was not raised below. Similarly, On appeal, McClintock argued that the dog sniff Judge Meyers rejected the State's argument that there is was an illegal intrusion. While the appeal was pending, no evidence the officers were trespassing on the field the Supreme Court decided Florida v. Jardines, 133 S. because the State had the burden of proving the Ct. 1409 (2013), which held that an officer bringing a officers weren't trespassing and failed to put evidence narcotics canine into the curtilage of the home is a in the record on that point. Judge Meyers further search under the Fourth Amendment. Based on reasoned that the record supported that the vehicle was Jardines, the court of appeals held the information in searched incident to Story’s illegal arrest. No officers the affidavit for the search warrant was obtained illegally and the remaining information was 1 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 insufficient to provide probable cause. The officer because grow operators usually don’t live at the house, failed to specify his exact location to show that the keep it cool inside, and check on it daily. Two weeks marijuana smell was coming from McClintock’s later, a different officer, Sergeant Roberts, observed apartment and not the downstairs business. Le’s car at the house for a few hours, and then Le left The Court of Criminal Appeals reversed and in his car, and Roberts stopped him for committing a remanded to the court of appeals to consider whether traffic violation. Roberts could smell raw marijuana. the good faith exception applies because Jardines was Roberts called for a drug dog, which alerted at the front decided after the officer obtained the warrant. door of the residence. The officers obtained a warrant McClintock v. State, 444 S.W.3d 15 (Tex. Crim. App. and searched the house. They found 358 marijuana Oct. 1, 2014)(9:0). Writing for the unanimous court, plants. Two months after Le was indicted, the Supreme Judge Price first noted that without the dog sniff, the Court decided Florida v. Jardines, 133 S. Ct. 1409 warrant lacked probable cause. Judge Price observed (2013), which held that use of a drug dog on the front that while the officer used “location” in the affidavit porch of a home is a search for Fourth Amendment mostly to describe the building as a whole, in the purposes. Le filed a motion to suppress, which the trial sentence immediately before he described the smell of court granted. The court of appeals affirmed. marijuana, the officer described the staircase leading to The Court of Criminal Appeals reversed. State v. McClintock’s second-floor apartment. But the Court Le, ___ S.W.3d ___; 2015 WL 1933960 (Tex. Crim. did not give deference to the possibility that the App. April 29, 2015)(7:2). Writing for the majority, magistrate could have determined the officer meant the Judge Newell first explained that the Court would not staircase by “this location” because the magistrate was give deference to the magistrate because the search relying on more than the smell of marijuana to make warrant in this case was tainted. Therefore, the Court the probable cause determination. According to the determines whether the information in the search Court, the officer’s statement that he smelled warrant affidavit is sufficient to provide probable cause marijuana from “this location” was sufficiently without that tainted information—the drug-dog alert. ambiguous that, independently, it did not clearly Judge Newell reasoned that independent information establish probable cause. Judge Price went on to clearly established probable cause in this case because explain that remanding to the court of appeals to the initial information came from a concerned citizen consider the good faith exception was appropriate, that was accountable to Sergeant Clark, the even though it was not argued below, because the State information provided by the citizen was corroborated was not the appealing party in the court of appeals and by a police investigation, and Sergeant Clark himself the issues are substantial enough to merit a remand verified the smell of raw marijuana at the front door. rather than disposition by the Court. Sergeant Roberts also smelled raw marijuana on Le immediately after Le had been inside the residence for 2. Search warrant affidavit established probable a few hours. cause after illegal dog sniff information was Judge Newell rejected Le’s argument that excised when the affidavit as a whole established Sergeant Clark’s observations from two weeks before that officers twice smelled raw marijuana and the search were stale because the affidavit as a whole observed activities consistent with an illegal grow points to the manufacture of drugs, rather than mere operation. possession. Judge Newell distinguished this case from Sergeant Clark of the Harris County Sheriff’s McClintock, 444 S.W.3d 15 (Tex. Crim. App. Oct. 1, Department responded to a report from a concerned 2014) because in that case, the officer’s affidavit citizen about suspicious activity taking place in a provided vague observations. Here, the officer nearby house. The citizen saw young Asian males provided specific information about his surveillance arriving at the house but never saw anyone move in. and the smell of raw marijuana from Le’s front door. The males would arrive in the evening, stay for a Considering the background information from the while, and then leave. Sergeant Clark, a narcotics citizen and Sergeant Clark’s observations along with investigator, observed the suspected residence and saw Sergeant Roberts’s observations on the day the warrant that the blinds were drawn on every window. He was issued, the affidavit established probable cause. subpoenaed the utilities records and found that the Judge Meyers dissented, arguing that without the utilities were in the defendant’s name but that the dog sniff the affidavit merely showed a report from a defendant, Cuong Le, lived at a different address. Clark citizen, the observations that the blinds were closed, continued to monitor the house and noticed that the air the fact that Le paid the utilities but didn’t live at the conditioning unit was running continuously on a chilly house, the air conditioning was on when it was cold day. He walked up the sidewalk to the front door and outside, and Le’s car smelled of marijuana. Judge could smell raw marijuana. He continued nighttime Meyers compares this case to Wehrenberg v. State, 416 surveillance and never saw indoor lights on. He S.W.3d 458 (Tex. Crim. App. 2013), in which the suspected the residence was a marijuana grow house Court upheld a search when the officers entered a 2 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 home without a warrant, conducted a sweep, and then specimen, notwithstanding the existence of implied secured a warrant. Judge Meyers believes that the consent, unless one of the aggravating circumstances majority has again validated an illegal search. described in § 724.012(b) is present. If one of the Judge Alcala dissented because there is a gap of aggravating circumstances is present, then an officer twelve days between almost all activities described in has a mandatory duty to require that the suspect’s the affidavit and the issuance of the warrant and blood be drawn. But, Judge Alcala continued, per se because she believes the warrant failed to show exceptions to the warrant requirement are generally probable cause. Judge Alcala opined that the officer’s inappropriate because we use a totality of the opinion that Le was operating a grow house is circumstances approach to determine whether a unsupported by the facts. He only saw one young warrantless search is reasonable. Judge Alcala then Asian male visiting during the evening who did not considered each of the warrant exceptions the State appear to live there. Judge Alcala pointed out that the proposed. affidavit stated that grow houses typically have high First, the State argued that under implied consent, utility bills but the investigating officers never an individual agrees to waive the right to a warrant in provided information regarding whether Le’s bill was limited circumstances in exchange for driving high. Sergeant Clark also said in the affidavit that grow privileges. Judge Alcala rejected this argument because houses tend to have supplemental air conditioning units consent must be given freely and voluntarily and must but then didn’t say if this house had those. All he said not have been withdrawn or revoked. Judge Alcala was that the A/C was on one time on a chilly day. distinguished this from Supreme Court federal Judge Alcala also believes most of the information was regulation cases Zap v. United States, 328 U.S. 624 stale because it was collected two weeks before the (1946) and United States v. Biswell, 406 U.S. 311 warrant was obtained. The only timely information was (1972). Zap involved an express contract to do the smell of marijuana in Le’s car and that is business with the federal government and Biswell insufficient to show probable cause that marijuana was involved the warrantless search of a federally licensed in the house. To overcome the staleness, the affidavit firearms dealer pursuant to a federal statute authorizing would need to show evidence of ongoing criminal such searches. These cases do not extend to permit activity but it did not. Judge Alcala also notes that the irrevocable waiver of Fourth Amendment rights in State should have asserted the good-faith exception exchange for the enjoyment of everyday privileges, because Jardines was handed down after the search. such as driving on the State’s roadways. The majority also distinguished the probationer [Commentary: The author of this opinion is and parolee cases United States v. Knights, 534 U.S. awesome.] 112 (2001) and Samson v. California, 547 U.S. 843 (2006). According to Judge Alcala, the defendants in C. Warrantless Blood Draws—Implied consent both of those cases had been required by the conditions statute does not provide independent of their release to expressly waive in writing their justification to seize a felony DWI suspect’s Fourth Amendment rights in exchange for avoiding blood without a warrant or a recognized prison time. The Supreme Court expressly stated in exception to the warrant requirement . . . yet? Knights and Samson that it was not resting its holding David Villarreal was stopped for a traffic in those cases on a consent rationale, but rather was violation and the officer noticed signs of intoxication. applying a general Fourth Amendment balancing test. After Villarreal refused to perform roadside sobriety The Court did not contend that acceptance of any tests, the officer arrested him and discovered that privilege from the government generally constitutes an Villarreal had several prior DWI convictions. Based on advance irrevocable waiver of Fourth Amendment this information, the officer took Villarreal to a rights. Judge Alcala also found inapplicable the hospital and obtained a blood sample, which showed holding of Board of Education v. Earls, 536 U.S. 822 that Villarreal had a BAC of .16. Villarreal filed a (2002), involving mandatory drug testing of students motion to suppress and at the hearing, the officer involved in extracurricular activities, because the Court testified that he could have gotten a warrant but didn’t in that case expressly limited the reasoning to the have to because of Villarreal’s prior convictions. He context of administrative searches undertaken for admitted there were no exigent circumstances. The trial purposes “not in any way related to the conduct of court granted the motion to suppress. criminal investigations.” The Court of Criminal Appeals affirmed. State v. Judge Alcala next rejected the State’s automobile Villarreal, ___ S.W.3d ___; 2014 WL 6734178 (Tex. exception argument because the automobile exception Crim. App. Nov. 26, 2014)(5:4). Writing for a five- has been expressly limited to the vehicular-search judge majority, Judge Alcala first explained that under context. The State’s argument that privacy interests in the Texas Transportation Code, a person arrested for blood, like automobiles, are minimal under these DWI has an absolute right to refuse to provide a blood circumstances in light of implied consent and the 3 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 highly regulated nature of driving was rejected as warrantless collection of DNA from felony arrestees as inconsistent with the Supreme Court’s description in part of a routine booking procedure for serious McNeely of the substantial privacy interests at stake offenses but emphasized that the arrestee was already here. in custody for a serious offense and the collection was The majority also rejected an argument based done as part of the routine administrative procedures to upon the special needs exception. According to the process and identify the people in custody. Judge majority, the special-needs doctrine is limited to Alcala agreed that the State has a substantial interest in situations involving special needs beyond normal law curbing drunk driving, but McNeely rejected the enforcement that may justify departures from the usual argument that the government’s interest in curbing warrant and probable-cause requirements. Judge Alcala drunk driving is a valid reason for departing from the explained that the special-needs doctrine creates an traditional exceptions to the warrant requirement. exception to the warrant requirement only in situations Judge Alcala responded to the dissents’ assertion in which the existence of special needs makes that the Legislature intended to create a warrant obtaining a warrant impracticable. This exception exception by noting that the statutes at issue do not applies to drug testing in public schools because mention warrants and, in any case, the Legislature schools have a responsibility to ensure the safety and cannot authorize a Fourth Amendment violation. Judge welfare of students, and students accordingly have a Alcala also rejected the contention that repeat DWI lesser expectation of privacy than members of the offenders are on notice of their obligation to provide a population generally. Vernonia School Dist. 47J v. blood sample because the statutory scheme does not Acton, 515 U.S. 646 (1995). And in Skinner v. Railway expressly make clear that suspects will be required to Labor Executives' Association, 489 U.S. 602 (1989), submit to warrantless searches. And unlike those on the Court stated that the privacy interest at stake in that probation or parole, DWI suspects enjoy absolute case was “minimal,” that railway employees have long liberty from their prior convictions and have no been subject to a reduced expectation of privacy in ongoing supervisory relationship with any parole or light of the historically pervasive regulation of that probation officer. industry, and that the “governmental interest furthered Judge Alcala lastly sustained the State’s third by the intrusion would be placed in jeopardy by a ground to the extent that the court of appeals erred by requirement of individualized suspicion.” DWI blood addressing the constitutionality of the implied-consent draws are done for investigatory purposes in the course statute because Villarreal abandoned his constitutional of law enforcement, which does not fall under the challenge in the trial court. special needs umbrella. Presiding Judge Keller dissented, joined by Judge Finally, Judge Alcala rejected the search-incident- Hervey. Judge Keller argued that this case falls to-arrest exception because it applies only when the somewhere between DNA buccal swabs of arrestees search is “substantially contemporaneous” with the and warrantless searches of probationers suspected of arrest and is confined to the area within the immediate committing an offense. Villarreal had prior DWI control of the arrestee. Given that alcohol in the convictions, which puts this case between King and bloodstream dissipates at a predictable rate and is Knights. In Knights, the Supreme Court considered the encased within a defendant’s veins, there is no recidivism rates among probationers, and actual possibility of that evidence being subject to sudden recidivism is what the Texas statute contemplates. destruction or disappearance as a result of any active Judge Keller believes the question boils down to efforts by a defendant and McNeely rejected the whether a person with two prior DWI convictions is contention that natural dissipation alone creates an similar enough to a probationer that the totality of the exigency. circumstances allows a search that would not be The State also proposed an alternative Fourth allowed for someone without that criminal record. Amendment balancing test, which would have required Based upon the search permitted in King, Judge Keller a court to weigh “the promotion of legitimate does not believe the search here is unreasonable under governmental interests against the degree to which [the the totality of the circumstances. search] intrudes upon an individual’s privacy.” Judge Meyers dissented, contending that the Maryland v. King, 133 S. Ct. 1958, 1970 (2013). Judge Legislature intended to create a new exception to the Alcala reasoned that applying the balancing test in this warrant requirement with this statute, and that this case is inappropriate because the Supreme Court has exception is constitutional. Judge Meyers points out made clear that, in the context of an active criminal that if a warrant is required, the wording of the statute investigation, and when the primary goal of law- stating that the officer “shall” get a specimen would enforcement activity is the gathering of evidence, a place an officer in violation of the law if the magistrate warrantless search of a person is unreasonable unless it refused to sign the officer’s warrant, since the officer falls within an established exception to the warrant would be prevented from obtaining a specimen. Judge requirement. In King, the Supreme Court upheld the Meyers also believes such a warrantless search is not 4 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 unreasonable because the Legislature has put that the interview questions were routine inquiries defendants like Villarreal on notice and the statute normally attendant to arrest and custody. creates clear guidelines as to when a warrantless blood The Court of Criminal Appeals reversed. State v. draw is permissible. The statute is limited in scope and Cruz, ___ S.W.3d ___; 2015 WL 2236982 (Tex facilitates the State’s special interest in keeping repeat Crim. App. May 13, 2015)(9:0). Writing for the offenders off the road. unanimous Court, Presiding Judge Keller explained that routine booking questions are normally attendant Judge Keasler also dissented without an to arrest and custody and are an exception to the opinion. Miranda rule. The purpose of this booking exception is that these questions serve a legitimate administrative [Commentary: The State’s motion for rehearing was need. Questions about biographical data may be granted and the case was re-submitted on March 18, deemed “not interrogation” if (1) the questions are so 2015. Make of that what you will. I have included the innocuous that they are unlikely to produce an full discussion of the case for your intellectual incriminating response and (2) if the questions are part curiosity and the sake of thoroughness.] of a routine administrative inquiry. Judge Keller concluded that the biographical nature of a question D. Statements - Questions about the defendant’s does not alone exempt it from being an interrogation. name and phone number that were asked in a Similarly, asking about an address and phone number custodial interview did not fall within the does not become an interrogation simply because the “booking” exception to the Miranda rule answers enabled police to locate and search a home or because the questions were not asked during a obtain phone records. The Miranda rule is concerned booking procedure and the circumstances did with the incriminating nature of the responses to not indicate that the questions were reasonably questions, not with what evidence those responses related to an administrative purpose. might lead to. But, Judge Keller reasoned, in this case Austin police officers linked Adelfo Ramirez Cruz Cruz’s name and phone number had incriminating to a murder with fingerprints found at the scene. The value in themselves and did not simply lead to other NCIC database matched the fingerprints to an incriminating evidence. The detectives informed Cruz individual variously known as Jose Rodriguez, Jorge that they had several names for him and a reasonable Negron, and Pablo Jaimes. The police found that he person in Cruz’s position would have understood that had a pending warrant in Chicago for misdemeanor answering questions about that would be admitting to DUI. Two detectives from Austin called the U.S. previously giving a false name. The police were also Marshals’ Office in Chicago and asked them to arrest attempting to obtain Cruz’s cell number to link him to Cruz for the DUI but to not mention the homicide Austin at the time of the murder. The detectives knew investigation in Texas. They arrested Cruz and he was that question was likely to lead to an incriminating booked by local law enforcement, who asked him his response. Therefore, Judge Keller held that the name, date of birth, phone number, and address. The questions about Cruz’s name and phone number two Austin detectives went to Chicago to question satisfied the “should know” test: the officers should Cruz but did not tell him where they were from or what have known that there questions were likely to elicit an they were investigating. The two detectives told Cruz incriminating response. they needed his information for immigration and asked Judge Keller also held that the questions were not Cruz for his name, phone number, and address, and routine administrative inquiries under the “booking whether he had a cell phone, if he was living with exception.” Judge Keller explained that the Court looks anyone, and how long he had been in the U.S. Cruz to both the content of the question and the gave a fake name. The two detectives then gave Cruz circumstances in which it was asked to make this Miranda warnings, Cruz asked for an attorney, and the determination. The circumstances surrounding the interview was terminated. The two detectives used the questions by the Austin detectives show that these address provided and searched the residence with questions were not routine. Cruz had already been Cruz’s girlfriend’s permission. The girlfriend also told booked by Chicago police. Cruz had not yet been police that she had a cell phone Cruz used and gave detained under the authority of the Texas offense and them a phone number that matched the one given in the he was not informed that the detectives were from interview. During the search, the detectives found a Texas or were investigating a Texas murder. The birth certificate that gave them Cruz’s real name. the officers did not suggest any administrative need for detectives obtained the phone records for the cell- these questions or point to any standard or policy that phone number supplied by Cruz and his girlfriend and they were following and they didn’t complete an determined Cruz had been in Austin on the date of the administrative form. Thus, Judge Keller concluded that murder. Cruz filed a motion to suppress, which the trial these questions were not reasonably related to an court granted. The court of appeals reversed, holding administrative purpose. 5 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
III. TRIAL PROCEDURE trial judge was concerned about space and safety. But, A. Open Courts – Record established that the trial Judge Womack explained, both this Court and the judge improperly closed the courtroom during Supreme Court have suggested that, in such situations, voir dire by removing the defendant’s family a trial court should move to a bigger courtroom or split and friends and failing to consider reasonable the panel in half. It is no valid argument that these alternatives despite the trial court’s failure to alternatives are inconvenient or would cause delay. rule. . . or did it? Vague or general security concerns are also insufficient Vanessa Cameron was convicted of murder and to justify closure. The only specific safety issue in the sentenced to 70 years’ imprisonment. Before voir dire record came from one of the bailiffs, who stated in an began, the bailiff removed all spectators from the affidavit that Cameron’s mother was a law- courtroom. Cameron’s counsel requested that family enforcement officer who could have legally brought and friends be allowed in the courtroom during the voir her firearm into the courtroom. However, this concern dire, and if not, he objected to their removal. A lengthy is a hypothetical that was not investigated or adopted debate followed in which the trial court repeatedly by the court. Further, there is no evidence that stated on the record that there was no room in the alternatives were considered (such as asking the courtroom. Cameron’s counsel asked if the court was Cameron’s mother to relinquish her firearm). Finally, overruling his objection and the trial judge said he Judge Womack dismissed the trial court’s concern that wasn’t ruling, just asking where to put the spectators. the presence of the public would discourage potential They discussed putting chairs in the small hallway jurors from being honest because this was an outside of the courtroom but the State interjected that it emotionally charged trial. The purpose of keeping would be a fire code violation. After much back and trials public is to expose the truth and discourage forth, the trial judge said, “I am telling you that you perjury. can have people in this courtroom. I’m telling you that. Presiding Judge Keller dissented, joined by Judge Do you understand that? So there’s no issue in regards Hervey, to argue that whether the friends and family to what it is that you’re asking. I just don't know where were allowed back in was, in fact, disputed. In an to put them. So I’m not making a ruling that anybody’s affidavit, one of the bailiffs swore he never said that no excluded. I'm not making a ruling denying anything one could come back into the courtroom after the you’re asking because I haven't ruled on what it is that jurors were seated and he never told anyone to leave you’re asking. I haven’t told you that you cannot have the courthouse. The trial court found as a fact that the people in the courtroom. Tell me where to put them bailiffs cleared the courtroom in order to make room to and we’ll put members of her family.” Cameron’s bring the venire panel in and get them organized and counsel responded, “Thank you, judge.” After this, the seated, but they did not tell any spectators that they court went off the record and apparently continued the were not allowed to watch the voir dire or any other discussion, but there is no indication that any part of the proceedings. Judge Keller believes that spectators were allowed into the courtroom. The judge Cameron failed to satisfy her burden to show that the then went back on the record and made a long voir dire was not open to the public. Defense counsel statement about the configuration of the courtroom and never responded to the trial court’s suggestion that the the fact that the room was full of potential jurors. The doors be opened and spectators be allowed to stand and court of appeals reversed Cameron’s conviction. watch voir dire. The fact that he didn’t respond should The Court of Criminal Appeals affirmed. not be held against the judge, who made a suggestion Cameron v. State, ___ S.W.3d ___; 2014 WL that, if followed, would have allowed the spectators to 4996290 (Tex. Crim. App. Oct. 8, 2014)(5:1:3). view the proceedings. Writing for the majority, Judge Womack first held that Cameron preserved error on this issue. Cameron’s Judge Keasler concurred without an opinion. counsel objected to the court being closed and the judge refused to rule. Judge Womack next held that the Judge Meyers dissented without an opinion. courtroom was closed. Though the trial court repeatedly stated that the courtroom was not closed, [Commentary: The Court granted the State’s Motion there was no dispute of the fact that all spectators had for Rehearing. The Court heard oral arguments and the been removed. Judge Womack noted the trial judge case was re-submitted on March 18, 2015. Make of would not have needed to cite space limitations and that what you will.] safety concerns as reasons to keep the public out if the courtroom was open. Judge Womack further held that the closure was not justified. A closure is justified only if the trial court makes findings that closure is necessary to protect an overriding interest and the closure is narrowly tailored to protect that interest. The 6 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
B. The trial court lost jurisdiction to revoke restrict the cognizability of courts to hear jurisdictional community supervision when capias on the claims on habeas (which is why the applicant in Sledge motion did not issue prior to the expiration of could not raise his claim in a subsequent writ the term of community supervision. application). Judge Hervey further held that the Jecia Moss pleaded guilty to aggravated assault doctrine of laches does not bar Moss's claim because and was placed on deferred-adjudication community the State was not prejudiced by the delay in filing. No supervision. The day her community supervision evidence or trial records have been lost. Furthermore, expired, the State took a motion to adjudicate and an if Moss prevails on her claim, the State cannot retry her order directing the district clerk to issue a capias for because the trial court will have lost jurisdiction. her arrest directly to the judge, who signed both of Finally, Judge Hervey held that Code of Criminal them. However, the motion was file-stamped by the Procedure art. 42.12 § 5(h) allows the trial court to clerk and the pre-revocation warrant was issued after retain jurisdiction to proceed with adjudication of guilt the expiration of her community supervision. Moss's when the period of community supervision has expired supervision was revoked and she was sentenced to only when the State files a motion to proceed with twelve years' imprisonment. At sentencing, the judge adjudication and a capias is issued for the arrest of the gave her twelve days to turn herself in to the sheriff. defendant before the expiration. Judge Hervey She filed a notice of appeal but then absconded from explained that this statute is a codification of this the jurisdiction. The court of appeals dismissed her Court's prior holdings. In a number of other cases, the appeal at the State's request. Three years later, Moss Court emphasized that the filing of the motion to was finally arrested. Moss filed an application for writ adjudicate and the issuance of the capias are the of habeas corpus. In its findings of fact and relevant triggering events under the statute. The conclusions of law, the convicting court found that, relevant time period with respect to the capias even if the motion to adjudicate was not timely filed or requirement remains the time at which the capias is the capias timely issued, Moss's claim would be actually issued. In this case, capias is dated October 6, procedurally barred because she could have raised her 2005. Moss's community supervision expired on jurisdictional issue on direct appeal had she not October 3, 2005. Therefore, the trial court did not absconded from the jurisdiction. retain jurisdiction and the conviction was vacated. The Court of Criminal Appeals granted relief and vacated the judgment. Ex parte Moss, 446 S.W.3d 786 C. Defendant charged with possession of (Tex. Crim. App. Nov. 5, 2014)(9:0). Writing for the controlled substance has an absolute right to unanimous Court, Judge Hervey noted that the have the substance analyzed by an independent convicting court was likely relying on Ex parte expert but the trial court is not required to Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004), appoint an expert for indigent defendants when it determined that Moss's claim was procedurally unless the defendant makes a preliminary barred. In that case, the Court held that when an showing of materiality. applicant has an adequate remedy at law, such as the The police arrested Robert Ehrke for public appellate process, but the applicant does not make use intoxication. Ehrke resisted and during the struggle, he of that remedy, the applicant has forfeited his claim. discarded a crumpled cigarette pack. The police found Judge Hervey distinguished this case from Townsend what appeared to be meth inside and sent it to the DPS because the facts alleged by Moss, if true, showed that lab for testing, which confirmed that the substance was the trial court lacked jurisdiction to revoke her 1.6 grams of meth. Ehrke moved to have the substance supervision. The claim in Townsend was not independently tested for weight and composition. The jurisdictional. Judge Hervey explained that trial court denied the motion, finding that Ehrke had constitutional rights can be forfeited on habeas due to not shown a particularized need for independent lack of action but a lack of jurisdiction cannot. scientific testing, or that the result of the test could Judge Hervey also compared this case to Ex parte change based on who performed it, or that an Sledge, 391 S.W.3d 104 (Tex. Crim. App. 2013), in independent expert would be a significant factor at which the applicant raised the same claim as Moss, that trial. The trial court did note that it was required to a capias was issued too late, but the Court refused to allow Ehrke’s counsel to inspect and examine the grant relief because Sledge brought a subsequent writ substance. At a pretrial hearing, Ehrke again raised his application and he could have discovered the claim motion and argued that 1.6 grams is close enough to before he filed his initial writ application. Thus, Judge .99 grams, the threshold for a lower punishment, to Hervey explained, Sledge stands for at least two justify independent testing. Ehrke’s counsel informed principles relevant to this case: (1) jurisdictional claims the court that he would pay the cost himself or have are not normally subject to typical notions of Ehrke’s family pay. The motion was denied. The court procedural default (which is why Moss can raise her of appeals affirmed. claim here), but (2) the Legislature can permissibly 7 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
The Court of Criminal Appeals reversed. Ehrke v. IV. EVIDENCE State, ___ S.W.3d ___; 2015 WL 1823480 (Tex. A. Confrontation Clause: The admission of a Crim. App. April 22, 2015)(7:2:0). Writing for the supervising DNA analyst’s opinion regarding a Court, Judge Johnson explained that this case involves DNA match did not violate the Confrontation two issues: (1) whether a defendant charged with Clause when that opinion was based upon possession of a controlled substance has a right to have computer-generated data obtained through the substance inspected by an independent expert, and batch DNA testing. (2) whether the State is required to pay for an indigent Jovany Paredes, a gang member, was involved in defendant’s inspection by an independent expert. Judge a shooting that caused the death of two men. The Johnson first explained that under Texas Code of police obtained the shirt Paredes wore during the Criminal Procedure article 39.14(a) the defendant has shooting and sent it to a lab for DNA testing. The DNA an absolute right to inspect evidence that is material to tests showed that blood on the shirt came from one of the defense of the accused. In a case that alleges the complainants and that Paredes’ DNA was on the possession of a controlled substance, the trial court shirt’s collar. At trial, the State called Robin Freeman, must permit inspection of the substance even without a the lab director, to testify about the analysis. She showing of good cause. “Inspection” means more than testified that the DNA testing is done in a batch just a visual examination. The defendant may also process and that three different lab analysts performed analyze and weigh the substance. Judge Johnson the various steps and ultimately a machine produced a reasoned that the trial court in this case should have DNA profile. Freeman did not physically observe the focused on whether the evidence was material, not analysts perform these steps but she was familiar with whether Ehrke demonstrated a particularized need. the process and testified that the machine would not Ehrke had an absolute right to independent testing and produce a profile if the steps were performed the trial court erred by denying the timely motion. incorrectly. Freeman herself took the produced DNA However, the majority stopped short of requiring profile and compared it to the DNA from the the State to pay for independent testing for indigent complainant and determined it was a match. No defendants when the defendant fails to provide documents or lab reports were submitted into evidence. concrete reasons for why an expert should be Paredes objected that he should be allowed to cross- appointed. Ehrke failed to make a preliminary examine the other three analysts. The trial judge showing of a significant issue of fact as to why he overruled his objection and he was convicted of capital needed an independent chemical analysis. His only murder and sentenced to life in prison without the argument was that the weight may have been over 40% possibility of parole. On appeal, Paredes complained less than what the DPS lab calculated but he didn’t that his Confrontation Clause rights had been violated. give a reason as to why the DPS chemist might be The court of appeals affirmed. wrong. He didn’t show that the tests were improperly The Court of Criminal Appeals affirmed. Paredes performed or give any reason to doubt the test. Judge v. State, ___ S.W.3d ___; 2015 WL 3486472 (Tex. Johnson reasoned that creating an absolute right for the Crim. App. June 3, 2015)(9:0). Writing for the defendant to state-funded independent chemical unanimous Court, Judge Newell looked to the United analysis in all controlled-substance cases would unduly States Supreme Court case Bullcoming v. New Mexico. burden the State. There must be some preliminary In Bullcoming, the prosecution admitted a lab report showing of a significant issue of fact to require the showing that the defendant’s BAC was over the legal court to appoint an expert. Because Ehrke offered to limit. This report was created solely by a non-testifying pay for the testing himself, the court should have analyst and the prosecution called another analyst, one allowed it. who knew about the lab’s procedures but did not participate in performing the analysis, to testify. The [Commentary: Note that the Court had already Supreme Court held that this violated the defendant’s decided back in 1972 that “inspection” in the discovery Confrontation Clause rights. Similarly, in Burch v. statute meant more than a mere visual inspection of State, the Court of Criminal Appeals held that the drugs. Detmering v. State, 481 S.W.2d 863 (Tex. testimony of an analyst who signed the admitted lab Crim. App. 1972). Thus, efforts to prevent the report showing that the tested substance was cocaine chemical analysis of a controlled substance in the but did not perform any analysis was not sufficient to possession of the State based on the argument that the satisfy the Confrontation Clause. Judge Newell statute only allows “inspection” necessarily fail.] reasoned that for an expert’s testimony based upon forensic analysis performed by a non-testifying analyst to be admissible, the testifying expert must testify about his own opinions or conclusions. Judge Newell distinguished this case from Burch and Bullcoming because Freeman testified about her own analysis and 8 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 conclusions. She was not a surrogate for non-testifying The Court of Criminal Appeals affirmed. analysts. Freeman herself performed the analysis Bekendam v. State, 441 S.W.3d 295 (Tex. Crim. determining that the DNA in the blood on Paredes’ App. Sept. 17, 2014)(7:2:0). Writing for the Court, shirt matched the complainant and she relied on raw, Judge Meyers first dismissed the State’s argument that computer-generated data to do so. Unlike the reports in Bekendam failed to preserve error because she only Burch and Bullcoming, the raw data in this case was complained about relevance in the trial court, not not a substitute for in-court testimony because it stood reliability. Counsel discussed reliability at the hearing for nothing on its own. Only Freeman’s analysis on the motion in limine and the judge found that the connected Paredes to the crime. Judge Newell also testimony was both relevant and reliable when ruling distinguished this case because any lab reports on the motion. The Court has previously held that both Freeman relied on to come to her conclusions were not reliability and relevance are components of a offered into evidence. Judge Newell reasoned that this Daubert/Kelly ruling on admissibility. case does not present the human-error problem from Judge Meyers next explained that the expert’s Burch, in which the Court was concerned that the testimony was admissible because she used standard, defendant would not be able to identify errors in the accepted scientific methods. She did not deviate from testing procedures by cross-examining the analyst that DPS testing procedures and her testimony related to performed those procedures, because Freeman testified the results of those tests. Though she testified to an that the lab’s machine would not produce a DNA amount lower than the DPS cut-off, she did not use her profile if the previous steps had been done incorrectly. own methods or interpretation. Furthermore, the fact that she testified about a lower-than-reportable amount B. Forensic expert may testify that cocaine was does not mean that the methods she used were found in the defendant’s blood sample even unreliable. Bekendam never presented evidence about though amount was lower than DPS’s why the DPS protocol includes this cut-off point. Judge reportable level. Meyers pointed out that the issue is not the reliability Stephanie Bekendam ran a red light and hit of DPS standards but the reliability of the blood test another vehicle. Both she and the other driver were itself. That testing method is widely accepted. injured and taken to the hospital. A nurse and an EMT Additionally, there is no evidence that the expert reported smelling alcohol on Bekendam’s breath so her violated DPS protocol by testifying about the trace blood was drawn and tested. No alcohol was found, but amounts of cocaine. Therefore, the trial court could the State requested testing for drugs, and trace amounts reasonably find the expert testimony reliable because of cocaine and a metabolite, which can only enter the the testing method itself is reliable. bloodstream through cocaine, were reported. However, the amount of cocaine was below the reportable level Judge Price and Judge Womack concurred permitted by DPS policy, so the toxicology report did without opinions. not reflect that cocaine had been detected. The State charged Bekendam with driving while C. Convictions over ten years old may only be intoxicated. At trial, the State called the forensic admitted when probative value “substantially scientist to testify that trace amounts of cocaine were outweighs” prejudicial effect; Texas Rule of found. Bekendam filed a motion in limine to exclude Evidence 609(b) does not incorporate common- this testimony and the trial court conducted a law “tacking doctrine.” Daubert/Kelly hearing to determine if the expert Donovan Meadows testified at his aggravated testimony was admissible. The trial court found the robbery trial. Prior to cross-examination, the State testimony reliable and relevant and overruled declared its intention to question him on several prior Bekendam’s motion. convictions: two convictions from the early 1990s for At trial, the expert testified about the trace theft by receiving and grand larceny, a 1996 conviction amounts of cocaine found in Bekendam’s blood and for theft of property $20,000-$100,000, two 1998 also stated that the amount of metabolite detected was assault on female convictions, a 2007 failure to identify consistent with a large amount of cocaine use or conviction, and a 2009 assault-family violence habitual use. She also testified that cocaine degrades in conviction. Meadows complained that two of the the blood tube and thus it was her opinion that felony convictions were over ten years old. The State Bekendam had cocaine in her bloodstream when she claimed that the ten-year rule does not apply when the ran the red light and caused the accident. The court of convictions are for crimes of moral turpitude, and the appeals affirmed the trial court’s ruling, holding that trial court allowed the State to question Meadows the screening and testing procedures used on about the prior convictions. The court of appeals Bekendam’s blood are generally accepted in the applied the Texas Rule of Evidence 609(a) standard scientific and judicial communities. and held that, under the tacking doctrine, the trial court
9 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 must determine whether the probative value outweighs, before trial began, Butler texted Salas and threatened to not “substantially outweighs,” the prejudicial effect. harm her or her family if she testified against him. The Court of Criminal Appeals reversed At trial, the court admitted these threatening text remanded to the court of appeals for reconsideration messages. The State offered these texts after laying the under the correct standard. Meadows v. State, 455 predicate with Salas. Salas testified that the messages S.W.3d 166 (Tex. Crim. App. Feb. 25, 2015)(9:0). came from Butler’s phone number and that she knew it Writing for the unanimous court, Judge Johnson first was him texting because he called her between texts noted that the State admitted that the court of appeals and continued his threats. Butler objected but the trial should have applied the Rule of Evidence 609(b) court overruled his objection. The court of appeals standard of substantially outweighs, but the State reversed, holding that the State’s predicate was claimed the court of appeals nevertheless reached the inadequate to establish that Butler was the author of the correct result. Judge Johnson then explained that the text messages. tacking doctrine applied by the lower court, which The Court of Criminal Appeals reversed. Butler v. allows a conviction more than ten years old to be State, ___ S.W.3d ___; 2015 WL 1816933 (Tex. “tacked onto” a more recent conviction involving Crim. App. April 22, 2015)(8:1:0). Writing for the moral turpitude and thus become admissible, has been majority, Judge Yeary explained that text messages supplanted by Rule 609. Rule 609(a) allows a witness’s may be authenticated in myriad ways. Evidence that credibility to be attacked by evidence of a conviction merely shows the association of a phone number with a of a crime of moral turpitude or a felony, but Rule sender alone might be too tenuous, but other direct or 609(b) limits those attacks to convictions within the circumstantial evidence can bridge the gap. In this past ten years unless the probative value “substantially case, Salas knew the phone number belonged to Butler outweighs” the prejudicial effect. Because the court of and knew he was sending the messages because he appeals applied the incorrect standard of “outweighs” called her in between messages and referenced what rather than “substantially outweighs,” the court of the text conversation had been about—her impending appeals must re-examine Meadows’s claim under the testimony against him. Judge Yeary reasoned that this correct standard. contextual evidence demonstrated that Butler was in fact the sender. The majority noted that the State could [Commentary: Note that this case settles a split have made a stronger attempt to authenticate the text among the courts of appeals in favor of the reasoning messages but the trial judge did not abuse his set out in Leyba v. State, 416 S.W.3d 563 (Tex. App.— discretion by admitting them. Houston [14th Dist.] 2013, pet. ref’d.). Note as well The majority also dismissed Butler’s argument that trial courts can consider intervening convictions in that because Salas’s credibility was impeached by her deciding whether the probative value of a remote previous version of events, the trial court erred to conviction “substantially outweighs” its prejudicial conclude her testimony could be relied upon. Texas effect. It’s a higher threshold. And don’t call it Rule of Evidence 901 does not require the trial judge to tacking.] make a threshold determination of credibility or find that the witness is worthy of belief. As long as the fact- D. Text messages were properly authenticated finder could rationally believe the sponsoring witness, when the witness testified that she knew the the trial judge does not abuse his discretion by defendant sent the messages because they came admitting the evidence. Salas explained her from his phone number, he called her between equivocation at trial and the jury could rationally find texts, and referenced the text-message her credible. conversation. Billy Butler was convicted of the aggravated Judge Johnson concurred without an opinion. kidnapping of his girlfriend, Ashley Salas. Salas originally told Butler’s attorney that she sustained her E. Defendant’s incriminating statements made injuries by fighting with another woman but later during a substance-abuse program that he was disavowed this version of events and admitted she lied required to attend as part of a plea bargain because she found out she was pregnant with Butler’s were still involuntary and did not fall under the child. Salas testified at trial that Butler was unhappy voluntary drug-abuse treatment privilege. with her for leaving town to visit her grandmother and Ryland Absalon was put on probation for criminal began repeatedly calling and texting her on the day she mischief in 1986 and required to complete a substance- left. He took her car and texted her that she could find abuse program. He did so and completed his probation. the car on the side of the highway. She later found it In 2009, the police submitted items from a cold case there. When Salas returned, Butler assaulted her and for DNA testing, which led them to Absalon. After he would not let her leave the house that night. The week was arrested, several people who had participated in the 1986 substance-abuse program came forward and 10 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 told police that Absalon confessed to committing the V. OFFENSES murder during his participation in the program. A. NEW RULE: The State need only establish the Absalon mentioned the murder to his roommate, who corpus delicti of one offense when the he was required to live with as part of the program, one defendant extra-judicially confesses to multiple evening at home. He also confessed to others during a offenses committed in the same criminal group treatment session. Before the trial, Absalon filed episode or course of conduct. a motion to suppress, arguing these confessions were Christopher Miller confessed to engaging in illicit made during the course of voluntary substance-abuse sexual conduct with his three-month-old daughter on treatment and were inadmissible under Rule of four occasions, once in the nursery and a few times in Evidence 509(b) and Code of Criminal Procedure his bedroom. Miller told a police officer that he took a article 38.101. The trial court found that because picture with his cell phone on one of the occasions but Absalon was in the treatment under a court-order, it deleted it. He gave his police the phone’s memory card was not voluntary and the statements were admissible. and they confirmed that everything had been deleted. The court also found that Absalon’s statements to his The police also removed a section of the carpet from roommate were not made in the course of treatment the nursery and found seminal fluid, which matched and were admissible. Absalon was convicted of capital Miller’s DNA. Miller was convicted of four counts of murder and sentenced to life imprisonment. The court aggravated sexual assault of a child, though the only of appeals affirmed. physical evidence was the carpet sample, which The Court of Criminal Appeals affirmed. Absalon corroborated count three—the nursery incident. Miller v. State, ___ S.W.3d ___; 2015 WL 1925824 (Tex. appealed, arguing that the State failed to establish the Crim. App. April 29, 2015)(6:3:0). Writing for the corpus delicti of the other three counts by failing to Court, Judge Meyers explained that, while Absalon corroborate his confessions with independent evidence. voluntarily entered the plea agreement to get probation, The court of appeals set aside Miller’s convictions on he was required to complete any term of probation that those three counts and rendered acquittals. the trial court imposed. When he entered into the The Court of Criminal Appeals reversed. Miller agreement, he was already subject to the court’s v. State, 457 S.W.3d 919 (Tex. Crim. App. April 15, authority because he was going to be tried on the 2015)(6:2:1). Writing for the majority, Judge Hervey criminal mischief charge. He simply made the choice reviewed the State’s three arguments: (1) the corpus between a plea bargain and proceeding to trial. Judge delicti rule should be abolished, (2) the Court should Meyers reasoned that this is not comparable to adopt the trustworthiness standard, or (3) if the Court voluntarily entering a substance-abuse treatment retains the rule, it should be applied less rigorously in program. Rule 509(b) and Article 38.101 were meant cases in which a defendant confesses to multiple to protect those individuals who want to better crimes that comprise a single criminal episode or themselves and seek help—not those who use it as a course of conduct. The corpus delicti rule requires the bargaining chip to avoid a criminal trial. Furthermore, State to produce evidence independent of a defendant’s Judge Meyers explained that Absalon was not allowed extrajudicial confession showing that the essential to leave the program or his probation would be nature of the charged crime was actually committed by revoked. While the program promised Absalon that his someone. This rule precludes a person from being statements would remain confidential, Judge Meyers convicted solely on his own false confession to a crime rejected Absalon’s argument that the judge must have that never occurred. Judge Hervey noted that the known about this. This promise was likely the United States Supreme Court had adopted a program’s standard practice because most of its trustworthiness standard in lieu of the corpus delicti patients are voluntary. rule, which requires “substantial independent evidence which would tend to establish the trustworthiness of Presiding Judge Keller, Judge Johnson, and the statement.” Opper v. United States, 348 U.S. 84, 93 Judge Newell concurred without opinions. (1954). A number of states have followed suit, though not all. And some states apply a variation of the rule, [Commentary: Note that this holding only examines requiring the State to corroborate just one of the related the scope of the evidentiary privilege.] offenses in the course of conduct. The majority rejected the invitation to abandon or replace the corpus delicti rule with the trustworthiness standard because the rule still provides essential protection for defendants who confess to imaginary crimes. Judge Hervey explained that a closely-related crime exception is more appropriate. This exception applies when the temporal relationship between the offenses is sufficiently proximate that introduction of 11 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 the extra-judicial confession does not violate the of habeas corpus, claiming that the statute is facially policies behind the corpus delicti rule—conviction for unconstitutional in violation of the First Amendment. crimes that never happened. The trial court denied the application but the court of However, the majority held that the exception appeals agreed with Thompson and held that the statute applies retroactively to Miller. The Court’s decision to is unconstitutional. adopt this exception is not so unexpected and The Court of Criminal Appeals affirmed. Ex parte indefensible because other jurisdictions have Thompson, 442 S.W.3d 325 (Tex. Crim. App. Sept. questioned the usefulness of the traditional corpus 17, 2014)(8:1). Writing for the majority, Presiding delicti rule for some time. Many have abandoned it, Judge Keller first reasoned that the purposeful act of including the Supreme Court. Therefore, when a creating photographs and visual recordings is defendant gives an extrajudicial confession to multiple inherently expressive conduct and entitled to First temporally-related criminal offenses, the State can Amendment protections. The act of creating cannot be establish the corpus delicti of only one offense. separated from the actual photographs or recordings Consequently, applying this new rule to Miller’s case themselves. Presiding Judge Keller explained that the would not violate due process. intent element in § 21.15(b)(1) does not remove the statute from First Amendment protections because Judge Newell and Judge Johnson concurred criminalizing an otherwise protected expression without opinions. because it produces sexual arousal is the regulation of protected thought. Likewise, the “without consent” Judge Meyers dissented to point out that this element does not save the statute. The State argued that Court recently disregarded the underlying policy the statute would not apply to those who appear in reason of the safe-release provision of the kidnapping public and voluntarily expose a certain part of the body statute in Butcher v. State, 454 S.W.3d 13 (Tex. because that would constitute consent. But that Crim. App. Jan. 28, 2015). Judge Meyers does not conflicts with the Penal Code definition of “consent,” believe there is any reason to alter the corpus delicti which has been judicially construed to mean “an actual rule, as it has been a tenet of the state’s judicial system or real agreement after thoughtful consideration.” The and still serves an important purpose, and the new State’s proposed broadening of that definition is exception erodes the rule’s protections in a way that unrealistic and does not comport with statutory favors the State. construction principles. Judge Keller then distinguished this case from Scott v. State, which [Commentary: Judge Meyers’ concern for upholding upheld the telephone harassment statute, because established doctrine is certainly understandable. But, telephone conversations are primarily private and the as the majority points out, the corpus delicti rule has harassment statute included an element of intent to been eroded by many different courts in many different cause emotional distress, whereas the improper jurisdictions over the past several decades, including photography statute criminalizes public conduct with the United States Supreme Court. And it is a court- no intent to cause harm. made doctrine rather than a statute. So the comparison Judge Keller then explained that strict scrutiny to Butcher may not be entirely apt.] applies because the statute regulates inherently expressive conduct and because it is not content B. Improper Photography or Visual Recording— neutral—it specifically targets conduct intended to Penal Code § 21.15(b)(1) is facially arouse sexual desire. A statute subject to strict scrutiny unconstitutional because it prohibits inherently may only be upheld if it uses the least restrictive means expressive and protected conduct when a more to achieve a compelling government interest. narrowly tailored statute could address privacy Protecting privacy is a compelling interest but § concerns. 21.15(b)(1) has no language addressing privacy Ronald Thompson recorded women in their concerns. The following section, 21.15(b)(2), is bathing suits at a water park. He was charged with narrowly drawn because it protects individuals from twenty-six counts of improper photography or visual being photographed in bathrooms or private dressing recording under Texas Penal Code § 21.15(b)(1), rooms. But the statute at issue here broadly applies to which makes photographing or visually recording any public photography or recording. The legislature another person a crime if: (1) the person being could have designated specific places or manner that photographed or recorded is not in a bathroom or are proscribed, such as photographing a person inside private dressing room, (2) the photograph or recording his home or taking a photograph under a person’s of the person is made without that person’s consent, clothing. Judge Keller, in “an abundance of caution,” and (3) the photograph or recording is made with the then addressed overbreadth and held that the statute intent to arouse or gratify the sexual desire of any prohibits a substantial amount of protected expression. person. Thompson filed a pretrial application for writ For example, it could apply to an entertainment 12 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 reporter who takes a photo of a celebrity on the street. Judge Keller also reasoned that the Court's A survey of appellate decisions involving the statute interpretation of § 46.02 does not conflict with law shows that the majority involved photographs taken in enforcement efforts. Police officers with reasonable public places, confirming the overbreadth concern. suspicion can still detain those openly carrying weapons to investigate further. Judge Meyers dissented without an opinion. Judge Johnson concurred without a written C. Unlawfully Carrying a Weapon—Penal Code § opinion. 46.02 does not prohibit a condominium owner from openly carrying a weapon on D. Telephone Harassment—For purposes of § jointly owned condominium complex common 42.07(a)(4), the telephone harassment statute, areas. "repeated" simply means more than one phone Edward Chiarini owned a condo unit in a call. condominium complex. He regularly did “walk- Elisa Wilson was convicted of telephone throughs” at the complex with a gun holstered on his harassment based upon six voicemail messages left for leg. Under the complex’s declaration, Chiarini owned her next-door neighbor over a period of ten months. 1/180th of the common area of the complex where he These voicemails included complaints about a different did these walk-throughs. One day, the police responded neighbor's dog being on Wilson's lawn, about to a call about a drug-house at the complex and construction debris in Wilson's lawn, and referrals to Chiarini and the president of the homeowner’s in-person altercations between Wilson and the association walked out to meet them. Chiarini had his complainant, in which Wilson accused her neighbor of gun visibly holstered on his leg. He was convicted of being a prostitute. Section 42.07(a)(4) provides, “A unlawfully carrying a weapon. The court of appeals person commits an offense, if with intent to harass, acquitted Chiarini because he was carrying the weapon annoy, alarm, abuse, torment, or embarrass another, he: on his own premises. . . . (4) causes the telephone of another to ring The Court of Criminal Appeals affirmed. Chiarini repeatedly or makes repeated telephone v. State, 442 S.W.3d 318 (Tex. Crim. App. Sept. 17, communications anonymously or in a manner 2014)(8:1:0). Writing for the majority, Presiding Judge reasonably likely to harass, annoy, alarm, abuse, Keller first explained that the question is simply torment, embarrass, or offend another[.]” On appeal, whether Chiarini was on his own premises when Wilson argued that the evidence was insufficient to carrying his gun through the complex’s common area. prove that she made "repeated" phone calls. The court Section 46.02, the unlawful carrying of a weapon of appeals, relying on Scott v. State, 332 S.W.3d 662 statute, only applies when a person is not on his own (Tex. Crim. App. 2010), acquitted Wilson because the property. Judge Keller noted that a person could be on only two phone calls made within a thirty day time his own property even if that property has multiple span were made for facially legitimate reasons. owners. The complex’s declaration stated that the The Court of Criminal Appeals reversed. Wilson common area is “owned in common” by all of the v. State, 448 S.W.3d 418 (Tex. Crim. App. Sept. 17, condo owners. This comports with the Condominium 2014) (5:5:0). Writing for the majority, Judge Keasler Act, which states that condo owners are “tenants-in- first explained that the lower court's reliance common” with each other as to common areas of a on Scott was incorrect. One footnote in Scott noted that condominium complex. Chiarini does not have direct the legislature intended "repeated telephone calls" to be control over the common area, but this is not required close enough in proximity to be considered a single under § 46.02. As long as he was on his own premises episode. But Scott did not address what "repeated" or premises under his control, Chiarini could lawfully means and this footnote was merely dicta. Such a carry a weapon. definition is not rooted in legislative history and Judge Keller rejected the State's argument that § creates confusion. Judge Keasler further explained that 46.02 produces absurd results when read in a plain language understanding of "repeated" just conjunction with Penal Code § 46.035, which applies means more than one telephone call. It's unlikely that to those with licenses to carry concealed handguns but anyone will be convicted based on two phone calls but who intentionally fail to conceal them in any public circumstances surrounding the phone calls will be place. Any potential absurd result would only exist if probative. Furthermore, the statute does not excuse the two statutes were read together, but the State phone calls just because they were made for facially assumes that any absurdity must be remedied by legitimate purposes. The content of the six calls adjusting the interpretation of § 46.02, when it could combined with the evidence of Wilson's face-to-face easily be argued that the interpretation of § 46.035 verbal abuse of the complainant are sufficient to show should be adjusted. Furthermore, the legislative history that Wilson made these calls with the intent to harass does not support the argument that the two conflict. or annoy the complainant. The Court reversed and 13 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 remanded to the lower court to consider Wilson's being evicted from her apartment. He was convicted of remaining issues. failure to comply with sex offender registry Judge Cochran concurred, joined by Judge requirements. The court of appeals reversed, holding Johnson and Judge Alcala, to contend that the there was a fatal variance between the indictment and majority's definition of "repeated" leaves the statute the proof adduced at trial. The indictment charged open to a vagueness and overbreadth challenge. Judge Thomas with intending to move to Houston Street and Cochran stated that the Court should retain the failing to report his anticipated new address seven days definition of repeated set out in Scott because it before moving. The lower court held that there was no narrowly tailors the statute to protect individuals from evidence that Thomas intended to move seven days harassment without encroaching on the First before doing so. Amendment. The Scott definition limits "repeated The Court of Criminal Appeals reversed and phone calls" to those that can be considered part of a remanded. Thomas v. State, 444 S.W.3d 4 (Tex. single criminal episode. This could occur when phone Crim. App. Sept. 24, 2014)(5:1:3). Writing for the calls are made within a short period of time or all relate majority, Judge Hervey first explained that a to a single objective, even if made over a long period hypothetically correct jury charge for failing to comply of time. But Judge Cochran agrees with the majority with sex offender registry requirements would allege that the evidence of Wilson's phone calls and in-person both manners and means authorized by Article harassment of the complainant are sufficient to support 62.055(a) of the Code of Criminal Procedure: (1) her conviction. failure to report a change of address "not later than the Presiding Judge Keller also concurred, joined by seventh day before the intended change," or (2) failing Judge Johnson, to point out that the majority's to report "not later than the . . . seventh day after definition could allow convictions for calling your changing the address." But the State here alleged a neighbor only twice over some disagreement. The specific manner and means under the first category, majority's stance that these convictions are unlikely is thus the hypothetically correct jury charge in this case not supported by its definition. Presiding Judge Keller would only allow the jury to convict Thomas if he further urges that the Court should re-evaluate Scott at were required to register and he failed to report an a later time when the issue of its viability is raised, as it anticipated change of address seven days before the is not in this case. change. However, Judge Hervey reasoned that the Judge Womack concurred without an evidence was sufficient to show that Thomas failed to opinion. report an anticipated move. The jury could have believed the police officer’s testimony that Thomas E. Failure to Comply with Sex Offender Registry told him he moved to the Houston Street address on Requirements—Evidence of a failure to notify June 25th and failed to report it seven days prior. The police about an anticipated change of address “on or about” language in the indictment put Thomas before moving looks a lot like failure to notify on notice that could use June 25th as the date of the of an actual change of address after moving, offense. But the Court remanded to the court of appeals but pleading the wrong one can result in jury to consider the potential jury charge error because the charge error. charge in this case allowed the jury to convict Thomas Clister Thomas is required to register as a sex if he failed to report a change of address seven days offender based on his 1987 conviction for aggravated after moving while the indictment limited the offense sexual assault. He registered his address as 1900 South to failure to report an intended move. Green Street, his girlfriend’s daughter’s apartment. The Judge Cochran dissented, joined by Judge Price police then informed the apartment manager that and Judge Johnson. Judge Cochran pointed out that the Thomas is a sex offender and the manager asked the State did not plead its case correctly because it alleged police to issue a criminal-trespass warning. The police that Thomas failed to report an anticipated move and did so and arrested Thomas on April 3rd for other proved that Thomas failed to report a move after-the- outstanding warrants. When Thomas was booked into fact. These are two distinct statutory duties. Thomas jail, he told the police that his address was 1703 never intended to move but was suddenly forced to. Houston Street. Because Thomas gave the jail a The State had a duty to indict Thomas for the crime he different address than the one on file, two months later actually committed. Thus, the State failed to prove its an officer investigated and found Thomas at the case and the evidence is insufficient. Houston Street address on June 25th. Thomas had not updated his sex offender registration. Three of Judge Womack concurred without an Thomas’s witnesses testified that he continued to live opinion. on South Green Street but told the police he lived on Houston Street to protect his girlfriend’s daughter from 14 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
F. Aggravated Sexual Assault of a Child— knowledge of the attack.” The trial court would not Evidence was sufficient to show the defendant allow any references to this statute and would not acted voluntarily when the complainant submit it in the jury charge. The court of appeals testified that she did not believe defendant was reversed, holding that § 822.013 may be used as a asleep and the defendant's wife testified that he criminal defense and Chase was harmed by its did not normally touch her in his sleep. omission. Jerry Don Whatley's stepdaughter accused him of The Court of Criminal Appeals affirmed. Chase v. touching her inappropriately three times when she was State, 448 S.W.3d 6 (Tex. Crim. App. Nov. 19, ten or eleven years old. Whatley's defense was that he 2014)(7:1:1). Writing for the majority, Presiding Judge was asleep during these incidents and thought his Keller first addressed the State’s argument that Chase stepdaughter was his wife. His stepdaughter, age failed to preserve error on the jury charge issue eighteen at trial, testified that the touching began a few because no potential charge was submitted in writing. minutes after Whatley's eyes closed. At age eleven, she Judge Keller explained that the writing requirement to told the Children's Advocacy Center interviewer that preserve jury charge issues under Articles 36.14 and Whatley was asleep. Whatley's wife testified that he 36.15 is satisfied if the objection is dictated to the court never touched her while he was asleep and didn't reporter in the presence of the court and State’s counsel quickly fall into a heavy sleep. Whatley was convicted before the charge is read to the jury. Chase did so and of aggravated sexual assault of a child but the court of preserved error. appeals reversed, holding the evidence insufficient to Judge Keller next addressed the State’s contention show that his actions were voluntary. that Penal Code § 1.03(b) bars the application of The Court of Criminal Appeals reversed and defenses outside of the Penal Code to Penal Code remanded. Whatley v. State, 445 S.W.3d 159 (Tex. offenses. Penal Code § 1.03(b) provides: “The Crim. App. Oct. 8, 2014)(8:1). Writing for the provisions of Titles 1, 2, and 3 apply to offenses majority, Judge Johnson held that the evidence was defined by other laws, unless the statute defining the sufficient to show Whatley's actions were voluntary. offense provides otherwise; however, the punishment Judge Johnson first noted that the stepdaughter testified affixed to an offense defined outside this code shall be at trial that she now believed Whaley was not asleep. applicable unless the punishment is classified in When she was eleven, she believed he was because his accordance with this code.” Thus, § 1.03(b) refers to eyes were closed and he was snoring. Furthermore, the exportation of Penal Code provisions and the State Whatley's wife testified that he never touched her in argues that this creates a negative implication that his sleep and he did not fall into a heavy sleep quickly. nothing may be imported into the Penal Code. But Thus, the evidence was sufficient and the Court Judge Keller pointed out that § 1.03(b) only refers to remanded to the court of appeals to consider Whatley's offenses and the Court cannot stretch the negative- final issue. implication canon to force the statute to encompass defenses. Judge Meyers dissented without an opinion. Judge Keller then addressed the contention that § 822.013(a) only provides a civil defense, not a criminal G. Cruelty to Non-Livestock Animals—Health one. Section 822.013(b) specifically exempts a person and Safety Code § 822.013 provides a defense who kills a dog under this section from liability for to the crime of cruelty to animals when the damages but that does not modify subsection (a) to defendant killed a dog that attacked his own only applying in the civil context. Judge Keller dog. explained that the legislature could have specifically Ryan Chase and his wife were walking their two limited the defense in 822.013(a) to the civil arena but dogs when a neighbor’s two dogs, Rocky and Zeus, ran did not do so. Furthermore, § 822.013(e) provides a up and Zeus attacked one of Chase’s dogs. During this criminal defense to hunting without a license, incident, Zeus bit Chase and a neighbor who had come demonstrating that the legislature did consider criminal to help. Chase took his dogs home and returned with a defenses when enacting § 822.013. Similarly, § rope, caught Zeus, took the dog back to his home, and 822.012 makes it a crime for dog owners to allow slit his throat with a knife. Zeus died. Chase was dangerous dogs to run at large. The State also argued convicted of cruelty to non-livestock animals. At trial, that § 822.013 cannot be a defense to Penal Code § Chase sought to use Health and Safety Code § 822.013 42.092 because the Penal Code provides defenses to as a defense. Section 822.013 provides, “A dog or that crime. The fact that the Penal Code provides coyote that is attacking, is about to attack, or has defenses for § 42.092 doesn’t mean that list is recently attacked livestock, domestic animals, or fowls exclusive. For example, the list of defenses doesn’t may be killed by: (1) any person witnessing the attack; include when the actor’s life is in danger. The defenses or (2) the attacked animal’s owner or a person acting in § 42.092 are aimed primarily at protecting livestock on behalf of the owner if the owner or person has and crops, while § 822.013 provides protection for 15 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 domestic animals. Finally, Judge Keller considered the about unsatisfactory and incomplete work done by legislative history of § 822.013 and found nothing that Taylor. Taylor was convicted after a bench trial and indicates it was only meant to be a civil defense. The appealed, arguing the evidence was insufficient to history behind an amendment to Penal Code § 42.09 show that his conduct was intentional, rather than just shows one representative mentioned that § 822.013 deficient. In a 2-1 split, the court of appeals affirmed. only applied to civil cases but that is not controlling The Court of Criminal Appeals affirmed. Taylor because this comment was made about a different v. State, 450 S.W.3d 528 (Tex. Crim. App. Dec. 10, statute in a different legislative session from § 822.013. 2014)(7:1:1). Writing for the majority, Judge Price Judge Meyers dissented, noting that the goal of § explained that a conviction for theft in connection with 822.013 was to protect farmers and ranchers who kill a contract requires proof that the appropriation was a dogs attacking livestock and harming their livelihood. result of pretext or fraud and that the defendant It was never meant to allow people in “a residential intended to deprive the owner of the property when the neighborhood to murder a neighbor’s dog after an property was taken. In other words, the defendant must attack with criminal impunity.” Judge Meyers points intend to not fulfill the contract at the time money out that there are no limits to this defense. Perhaps it exchanges hands. Judge Price reasoned that in this case could apply after just one bite. There are no restrictions the evidence supported a rational inference that Taylor as to how close in time the attack and the killing have intended to deprive Reich of the second payment and to be or if the animal can be on its owner’s property. knew he would not fulfill the contract at that time. The The statute doesn’t provide if the killing must be evidence showed that at the time Taylor took this humane. These questions demonstrate that § 822.013 is second payment, he had not fulfilled his obligations on too broad to be a criminal defense. Allowing this other contracts for other customers. Thus, he could be defense encourages people to take justice, or what they reasonably certain that he wouldn’t in this case either. see as justice, into their own hands. The other witnesses demonstrated that Taylor had developed a pattern of signing a contract, accepting Judge Johnson concurred without an opinion. money, inexplicably failing to install the sign, cutting off contact with the customer, and only fulfilling his H. Theft—Evidence was sufficient to show the obligations if he was under duress. While far from defendant intended to deprive the owner of overwhelming, this evidence is sufficient to support the property when the defendant developed a trial judge’s finding. pattern of taking money for unfulfilled Judge Johnson dissented, arguing that the contracts. evidence shows Taylor is monumentally inept at Henry Taylor worked at a commercial sign business but not a criminal. Judge Johnson suggests business owned by his father. Taylor's father then that this matter is a contract dispute that should be retired and Taylor began running the business. Jeff resolved in civil court. Reich owned a construction business and had ordered signs in the past from Taylor's father. In November Presiding Judge Keller concurred without an 2010, after Taylor took over, Reich ordered two signs opinion. and made a $14,657.25 down payment. He agreed to pay a second installment of $10,000 when the signs I. Aggravated Kidnapping—Whether defendant were ready to ship, and the remaining balance after the voluntarily released the victim in a safe place is signs were installed. Two weeks later, Taylor told determined on case-by-case basis with an eye Reich that the signs were ready to ship and Reich made towards seven non-exhaustive factors. the $10,000 payment. A few weeks after that, Taylor Charles Butcher kidnapped a nine-year-old girl, obtained a permit from the city to install the signs. He JG, at knifepoint while she was walking down the did not remain in contact with Reich. Reich continually driveway of her apartment complex to the school bus attempted to contact Taylor until mid-January, when he stop. He took JG to his home and kept her in a closet requested proof that Taylor had purchased the signs watching TV all day until she told him that she needed requested. Taylor faxed an invoice to Reich showing to go home. He did not inappropriately touch her. the purchase of four signs from a California company, Butcher then drove JG to a neighboring apartment but no signs arrived and Reich continued to attempt to complex. JG told him that she didn’t know how to get contact Taylor. home from there so Butcher returned her to the In March of 2011, Taylor told Reich that the signs driveway of her apartment complex—the site of had shipped but he was unable to complete the abduction. At trial, Butcher argued that he voluntarily installation at that time. Taylor applied for a new released JG in a safe place, which would reduce the permit, as the first one was incorrect, but Reich aggravated kidnapping conviction to second-degree contacted the police in April 2011, and Taylor was kidnapping under Texas Penal Code § 20.04(d). The indicted for theft. At trial, several witnesses testified jury did not agree and convicted Butcher of aggravated 16 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 kidnapping. On appeal, Butcher argued that the from the Model Penal Code and its purpose was to evidence was insufficient to support the jury’s rejection provide incentive to kidnappers to release victims in a of his safe-release defense. safe place. Therefore, Judge Johnson would remand The Court of Criminal Appeals affirmed. Butcher this case to the court of appeals to answer whether v. State, 454 S.W.3d 13 (Tex. Crim. App. Jan. 28, Butcher did what the legislature intended § 20.04(d) to 2015)(7:1:2). Writing for the majority, Judge Hervey encourage kidnappers to do. Did he affirmatively concluded that the term “safe-place” in the statute is choose to release the victim and not inflict any further ambiguous and the legislative history offers little harm? guidance as to the parameters of the term. Therefore, “safe place” must be determined on a case-by-case J. Money Laundering and Conspiracy to Commit basis. Judge Hervey then explained that reviewing Money Laundering—Two legal money courts may consider seven factors that, while not transfers do not establish a conspiracy to exclusive, may aid in determining whether a place is commit a felony violation of the Election Code. safe: (1) the remoteness of the location, (2) the In 2002, Tom Delay was the Majority Whip of the proximity of help, (3) the time of day, (4) the climate, United States House of Representatives. In his (5) the condition of the complainant, (6) the character capacity as whip, Delay established a congressional of the location and surrounding neighborhood, and (7) leadership federal political action committee called the complainant’s familiarity with the location or Americans for a Republican Majority (“ARMPAC”) neighborhood. With these factors in mind, the court of with Jim Elis as its director. In an effort to gain more appeals’ determination that the evidence was legally Republican officeholders in the Texas House of and factually sufficient to support the jury’s rejection Representatives so that eventually Texans might gain of the defense was not unreasonable. There was ample more seats in the United States House of evidence that the jury could have considered when it Representatives, Delay set in motion events that led to determined the girl was not “safe” when she was the formation of a general-purpose political action released at her driveway. committee called Texans for a Republican Majority Judge Newell concurred to suggest that too much (“TRMPAC”). John Colyandro, a friend of Jim Ellis, focus on the incentive nature of the statute, to was the director, and TRMPAC and hired two fund- encourage kidnappers to release victims, obscures the raisers: Susan Lilly, who specialized in raising money determination of whether a particular location is safe. from individuals, and Warren RoBold who specialized The location must be safe for the victim, not the in raising money from corporations. TRMPAC’s defendant. The victim must be secure from harm and brochures expressly identified its mission to help risk of harm. Judge Newell further noted that the Republican candidates successfully run and win requirements of § 20.04(d) are not overly onerous on campaigns in Texas and assuring corporate donors that defendants because the statute does not require a its corporate contribution to TRMPAC would be put to showing of the defendant’s motive in releasing the productive use. Specifically, the brochures stated that victim or that he take affirmative steps to remedy the corporate contributions would not just pay for situation. He simply must release the victim at a place overhead—they would support active candidate where she will be secure from further harm. evaluation and recruitment. One brochure aimed at Judge Meyers filed a dissenting opinion to point both individual and corporate donors advertised that out that the majority categorized § 20.04(d) as an donations would go directly to help Republican affirmative defense when it is a mitigation issue, and candidates in Texas. Another—returned with a $5,000 thus likely employed the wrong standard of review. corporate donation—directly asserted that all Judge Meyers further claimed that the jury should not contributions, whether to the PAC or individuals, “will have been asked objectively whether JG was released be used for direct campaign expenses.” Delay was in a safe place, but rather whether the defendant listed as a member of the TRMPAC advisory board on perceived the place to be safe and whether that belief most of his fund-raising literature, although the was rational and justified. Furthermore, when a victim advisory board’s function was largely ceremonial. is returned to the place of the kidnapping, there should Robold raised $350,000 in corporate contributions not be a “safe place” determination as long as the by the middle of September 2002. Those funds were victim was at that location voluntarily. In that case, the deposited in TRMPAC’s “soft-money” account, out of victim has already decided the location is safe. which staff salaries and administrative expenses were Judge Johnson filed a dissenting opinion to argue regularly paid. TRMPAC also maintained a “hard that the court of appeals applied the incorrect standard money” account, into which it deposited contributions of review for factual sufficiency. Because “safe place” from individuals. In late August or September of 2002, is not defined in the statute, the court should have Ellis approached Terry Nelson, an officer with the considered the legislative history and the intent of the Republican National State Election Committee “safe release” defense. Section 20.04(d) was adapted (“RNSEC”), about the possibility of TRMPAC 17 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 contributing soft money to RNSEC in exchange for 870 (Tex. Crim. App. 2007) that § 15.01 did not apply RNSEC making contributions from its hard money to offenses defined in the Election Code until account to Texas candidates. On September 13, 2002, legislative amendment in 2003, so that count was Colyandro signed a blank check from TRMPAC’s soft quashed. In Count II, money laundering count, the money account and forwarded it to Ellis in State alleged that the “laundering” was the transfer of Washington, who then completed the check in the $190,000 from the RNSEC to the seven Texas amount of $190,000, payable to RNSEC. On receipt, candidates. It also alleged that the event making this RNSEC deposited the check into its own soft money money “criminal proceeds” was the felony offense of account. A short time later, TRMPAC provided knowingly making a political contribution in violation RNSEC a list of seven Republican candidates for the of the Election Code. Count I, the conspiracy count, Texas House of Representatives and requested RNSEC did not identify the particular money laundering to send specific amounts totaling $190,000. In early transaction that the conspirators agreed to perpetrate or October, the RNSEC cut checks to the campaigns of that they had agreed to accept a contribution in those seven candidates from its hard money account. violation of the Election Code. Both counts required At trial, this process was characterized by both parties the State to prove that TRMPAC violated or agreed to as a “money swap.” Because hard money is typically violate the Election Code by making an illegal considered more valuable than soft money, this type of contribution rather than merely accepting one. Delay “one-for-one” exchange of the type that TRMPAC was convicted in both counts, and the court of appeals negotiated with RNSEC was somewhat unusual. reversed over the dissent of the then-Chief Justice. Delay did not testify at trial, and in statements to The Court of Criminal Appeals affirmed the court the media between the time of his indictment in 2005 of appeals’ holding that the evidence was legally and his 2010 trial he denied any direct participation in insufficient. Delay v. State, 443 S.W.3d 909 (Tex. the money swap between TRMPAC and RNSEC. He Crim. App. Oct. 1, 2014)(7:2:1). Writing for the did, however, acknowledge that he was informed of the majority, Judge Price first explained that a person swap and expressly approved of it shortly after the fact. commits the offense of money laundering if he It was the consistent position of the defense throughout knowingly conducts, supervises, or facilitates a the proceedings that the swap was a perfectly legal transaction involving the proceeds of criminal activity. exchange and did not violate the Texas Election Code. A person commits criminal conspiracy if, with the Indeed, the State did not take issue with Delay’s intent that a felony be committed, he agrees with one assertions that neither the TRMPAC’s contribution of or more persons that they engage in conduct that would its excess soft money to RNSEC nor RNSEC’s constitute that offense, and one of them performs an contributions to specific Texas candidates from its hard overt act in pursuit of that agreement. “Criminal money account were unlawful in themselves. It was activity” for purposes of money laundering means “any the State’s theory at trial that the prior agreement offense, including a preparatory offense that is . . . between TRMPAC and RNSEC to swap precisely classified as a felony.” And “proceeds” means funds $190,000 of corporate contributions from TRMPAC’s acquired or derived directly or indirectly from, soft money account for the same amount of direct produced through, or realized through an act. candidate contributions from RNSEC’s hard money According to Judge Price, the criminal activity at account violated the Election Code, thus generating issue was a purported felony-level violation (or criminal proceeds for purpose of money laundering. violations) of the Texas Election Code. Specifically, Alternatively, the State argued that even if the the “proceeds” of the criminal activity were alleged to agreement did not render the $190,000 “proceeds of be the corporate political contributions made under criminal activity” for purposes of money laundering, circumstances that constituted a third-degree felony the corporations that contributed the money to under the Election Code. Under the Election Code, a TRMPAC in the first place also violated the Election corporation may make a “political expenditure” to Code, rendering the swap between TRMPAC and finance the establishment or administration of a RNSEC a transaction involving tainted funds. The general-purpose committee. But a corporation cannot State elicited testimony from executives of a dozen make a political contribution to a candidate or political corporations who made the initial political committee that it be used in connection with a contributions. The executives testified either that they campaign for elective office under the Texas Election expressly intended their contribution was for Code. administrative purposes or that they trusted or assumed Judge Price rejected the State’s argument that the that the contributions would be put to lawful use. agreement to “swap” TRMPAC’s soft money for The State charged Delay with money laundering, RNSEC’s hard money rendered the money at issue conspiracy to commit money laundering, and “criminal proceeds.” The State agreed that the transfer conspiracy to violate the Election Code. The Court from TRMPAC’s soft money account to RNSEC’s soft had previously held in State v. Colyandro, 233 S.W.3d money account did not violate the Election Code. And 18 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 it was uncontested that the RNSEC never transferred “knowingly” applied only to the conduct not the this money from its soft-money account into its hard- attendant circumstances under the Election Code. The money account. And the State agreed that the transfer majority, however, distinguished that case because it of money from RNSEC’s hard-money account to the dealt with a civil sanction rather than a criminal Texas candidates did not violate the Election Code. provision. Finally, had this been a purely serendipitous transfer, it would have been legal. Consequently, the Court failed [Commentary: This is an exceedingly dense opinion to see how the prior agreement to swap the money that really boils down to the fact that two legal acts transmuted two legal transfers of corporate money into don’t make an illegal one. Going forward, however, it one illegal one. But even if the agreement did, there may have very little utility on the money laundering was nothing in the record that established that Delay front as this prosecution was based upon statutory knew he was conducting, supervising, or facilitating a provisions that have already been changed. Without transaction that involved the proceeds of criminal being explicit, the Court seems to distinguish between activity. traditional money laundering where the proceeds come Judge Price also rejected the State’s theory that from obviously illegal transactions (such as the sale of the initial corporate contributions to TRMPAC were drugs) and this case by saying that the contributions tainted and therefore the agreement to transfer were not knowingly made to violate the Election Code. $190,000 from its soft money account to RNSEC’s soft So, as a factual matter, it seems that this holding will money account constituted money laundering. be limited to Election Code violations, but perhaps not. According to Judge Price, if the agreement to “swap” It may also have continued vitality in the area of did not render the money transferred from RNSEC “conspiracy.” Time will tell.] criminal proceeds, it also, necessarily did not render the contributions “tainted.” There was no evidence K. Injury to a Child—Defendant whose conviction proving a culpable mental state regarding the was reformed to lesser-included offense was agreement so there could be no evidence of the entitled to new trial when the record was requisite culpable mental state at the time of the unclear as to which culpable mental state the corporate contributions to TRMPAC. jury determined applied. Moreover, Judge Price explained that under the Nilda Rodriguez was convicted of felony murder Election Code, “knowingly” applied not only to the with injury to a child as the underlying offense. The conduct of making the contribution but also to the Court of Criminal Appeals held that the evidence was attendant circumstances, namely that the contribution insufficient to support the felony murder conviction, violated the Election Code. Applying the rule of lenity but that the jury necessarily found her guilty of the to resolve ambiguity in the statute, Judge Price rejected lesser-included offense of injury to a child and the argument that the culpable mental state applied remanded for a new hearing on punishment. only to the conduct because criminal statutes must Rodriguez filed a motion for rehearing. ascribe a culpable mental state to the statutory The Court of Criminal Appeals granted elements that criminalize otherwise innocent conduct. Rodriguez’s motion for rehearing and remanded the Judge Price acknowledged that there was evidence in case for a new trial. Rodriguez v. State, 454 S.W.3d the record from which a jury could infer that 503 (Tex. Crim. App. Feb. 25, 2015) (op. on reh’g.) corporations contributed to TRMPAC knowing that (9:0). Writing for the unanimous Court, Judge Meyers TRMPAC would find a way to put these contributions noted that the indictment stated that she “did then and in the coffers of specific candidates. However, nothing there intentionally, knowingly, recklessly and with in the record demonstrated that the corporate criminal negligence commit and attempt to commit a contributors realized that these contributions would felony, namely injury to a child.” The application violate the Election Code when they were made. They paragraph of the jury charge included each of these may have been reckless or negligent, but the statute mental states in the disjunctive, and the court defined required proof of knowing conduct. each one. When Rodriguez was convicted, the jury Judge Johnson concurred, along with Judge entered a general verdict. Therefore, Judge Meyers Cochran, to simply observe that it is not a crime to explained, there is no way to know whether the jury conspire to do a legal act. However, she did allow that found that Rodriguez acted intentionally, knowingly, “like some of Goldman Sachs’s dealings with a recklessly, or with criminal negligence in the starvation Spanish bank, the wheeling and dealing was a tad of her child. Because the injury to a child offense shady, but legal.” contains varying penalties based on the culpable Judge Meyers dissented to posit that this opinion mental state of the defendant, without a determination was written to support the outcome. According to on mental state, the jury will have no guidance on the Judge Meyers, the Supreme Court had decided in applicable punishment range. Judge Meyers explained Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) that that the reasoning in Thornton v. State, 425 S.W.3d 19 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
289 (Tex. Crim. App. 2014), holding that courts of person’s throat or neck or by blocking the person’s appeals are required to reform the judgment to a lesser- nose or mouth.” The first part is result-oriented included offense when the jury necessarily found every because there must be an injury. The second part is element necessary to convict the appellant for the circumstance—a “dating relationship.” The third part lesser-included offense, does not apply in this case. describes the manner and means by which the injury The Court did not intend for mandatory reformation to occurred. Though the third part contains a second set extend to circumstances where there are multiple of culpable mental states, they still only apply to the lesser-included offenses that meet the criteria for result of impeding breathing. Specifying a manner and reformation, or where there is no way to determine means does not create the need for a jury instruction on which degree of the lesser-included offense the jury the nature of the conduct. The jury charge defined found the appellant guilty of, as in Rodriguez’s case. intentionally, knowingly, and recklessly and correctly Therefore, the case was remanded for a new trial. tied those definitions to the result of the conduct. As the gravamen of domestic assault is the resulting L. Third-degree felony family-violence assault— injury, third-degree-felony family-violence assault is a Domestic violence assault is a result-oriented result-of-conduct offense only, and the culpable mental offense, not a conduct-oriented offense, thus state was correctly tied to that resulting injury in the the jury charge must tie the culpable mental jury charge. state to the resulting injury. Judge Yeary concurred to explain that he believes Eric Price struck and choked his girlfriend, the third element of the offense is a description of the injuring her face and neck. Price was charged with type of conduct, not a description of the particular third-degree-felony family-violence assault. The trial result of conduct. Judge Yeary agrees that causing court declined to include an instruction tying culpable bodily injury is a result-oriented offense, but because mental state to the nature of conduct, but instead the statute goes on to proscribe a very particular way of defined knowingly, intentionally, and recklessly and causing that result, nature-of-conduct is implicated. tied those definitions to the resulting injury. Price Ultimately, Judge Yeary concurred because he argued that this was error because assault by occlusion believed Price did not suffer egregious harm. is both a result-oriented offense and a conduct-oriented Judge Meyers dissented because he believes the offense, as the language “by applying pressure to the strangulation is the gravamen of the offense as that act person’s throat or neck or by blocking the person’s is what changed this offense from a misdemeanor to a nose or mouth” describes an element of the offense felony. Judge Meyers concludes that Price did suffer involving nature of the conduct. egregious harm because failure to tailor the charge to The Court of Criminal Appeals affirmed. Price v. include a culpable mental state for the nature of the State, 457 S.W.3d 437 (Tex. Crim. App. April 15, conduct affected the basis of the case. 2015)(7:1:1). Writing for the majority, Judge Johnson explained that in a jury charge, the language in regard M. DWI—Defendant passed out behind wheel to culpable mental state must be tailored to the conduct with engine running and car in park element of the offense: nature of the conduct or result sufficiently established he operated a motor of the conduct. Acts that are criminalized because of vehicle. their very nature must have a culpable mental state A sheriff’s deputy found Chad Murray asleep in applied to committing the act itself. Conduct that is the driver’s seat of his truck in the middle of the night. criminalized because of its result requires culpability as The truck was parked on the side of the road near a to that result. The Court uses the gravamen of the fireworks stand with the headlights on and the engine offense to decide which conduct elements should be running. The truck was in the “park” position and the included in the culpable mental-state language. radio was on. The deputy beat on the window until Judge Johnson reasoned that the gravamen of Murray woke up and rolled the window down and the third-degree-felony family-violence assault is bodily deputy immediately smelled alcohol in the truck. injury, the result of the conduct. How the injury was Murray’s speech was impaired and his movements inflicted, the act of choking, is merely jurisdictional. were sluggish. Murray admitted he’d had “a little” to Price strangled his girlfriend, meaning he committed a drink. No one else was in the truck or nearby and no felony, giving the district court jurisdiction. The empty alcohol containers were found. Murray failed a offense in this case has three parts: (1) intentionally, field sobriety test and was arrested and subsequently knowingly, or recklessly causing bodily injury to convicted of DWI. On appeal, he argued there was another; (2) the victim was a person described in insufficient evidence to prove that he was operating a certain sections of the Family Code; and (3) the offense vehicle. The court of appeal reversed and rendered an was committed by “intentionally, knowingly, or acquittal. recklessly impeding the normal breathing or circulation The Court of Criminal Appeals reversed. Murray of the blood of the person by applying pressure to the v. State, 457 S.W.3d 446 (Tex. Crim. App. April 15, 20 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
2015)(8:1). Writing for the majority, Judge Hervey on the record that he would have used the additional explained that although the court of appeals correctly strike on potential juror 27. Although Comeaux did not stated the standard of review, it improperly used a use a peremptory strike on juror 27, he did use a divide-and-conquer approach, explaining away peremptory strike on juror 34, who was not within the individual facts that, when considered together, would “strike zone,” the group of potential jurors who could support a reasonable inference that Murray operated actually sit on the jury. Juror 27 served on the jury. The his vehicle while intoxicated. The court of appeals also court of appeals held that, although the trial court erred erred by focusing its analysis on evidence not admitted by denying the challenge for cause as to juror 23, at trial by distinguishing “missing” evidence in the Comeaux failed to preserve error because defendants case from evidence present in preceding cases. Judge who do not use all of their peremptory strikes and Hervey explained that Murray was in the driver’s seat defendants who allow objectionable jurors to remain of his truck with the engine running, he was the only on the jury because they employ strikes outside the person in the truck, and the only person in the area. strike zone should be treated the same for error There were no alcohol containers found and the deputy preservation. could smell alcohol in the truck. The deputy believed The Court of Criminal Appeals Murray was very intoxicated and Murray in fact failed affirmed. Comeaux v. State, 445 S.W.3d 745 (Tex. field sobriety tests. Murray handed the deputy a Crim. App. Oct. 15, 2014)(9:2:0). Writing for the business card when the deputy requested Murray’s unanimous Court, Judge Cochran began by pointing license and the deputy ultimately had to find Murray’s out that this is a case of first impression and the issue is license in the wallet himself. Murray also admitted he not one of preservation but one of harm. Judge had been drinking. Because no alcohol was found and Cochran explained that the purpose of the five steps to it did not appear that anyone else drove Murray to that preserve error on a challenge for cause (a clear location, a factfinder could reasonably infer that challenge, use of peremptory strike on complained-of Murray drank alcohol to the point of intoxication juror, exhaustion of peremptory strikes, request for somewhere else and drove the spot where he was additional strikes, and objectionable juror serve on found. jury) is to show that the defendant suffered an actual Judge Meyers dissented, arguing that the jury detriment from the loss of a peremptory strike. The could not make reasonable inferences based upon no defendant may use a peremptory strike for any reason evidence. There is no evidence that explains when the or no reason, but if the trial judge "robs" the defendant truck was driven to the location where the deputy of a peremptory strike by erroneously denying a found it or when Murray became intoxicated. Judge challenge for cause, the defendant has suffered harm. Meyers compares this to convicting a person for Judge Cochran reasoned that Comeaux did not suffer possession of marijuana when the person is high and a detriment because he could have, but chose not to, smells of marijuana but doesn’t actually have any. use a peremptory strike on juror 27. The venire panel Judge Meyers would also hold that being passed out in Comeaux’s case consisted of thirty-six potential behind the wheel of a running car is not enough to jurors, and the trial court did not grant any challenges constitution “operating” a vehicle for DWI purposes. for cause. Therefore, with twelve panel members on Judge Meyers believes there would need to be some the final jury, plus ten strikes for the State and ten evidence that Murray turned the ignition while he was strikes for Comeaux, a total of 32 jurors were within intoxicated. the “strike zone,” the group of potential jurors capable of being on the jury. Comeaux struck jurors 2, 5, 10, VI. JURIES AND JURY INSTRUCTIONS 13, 20, 23, 24, 26, 31, and 34. Comeaux skipped over A. Voir Dire—A defendant who chooses to juror 27 and struck two jurors further down the line. use peremptory strikes outside of the "strike Therefore, the trial judge did not force Comeaux to zone" may not then complain about harm waste a peremptory strike. He chose to waste a strike concerning a juror within the strike zone who on a juror that could not make it onto the jury. As a could have been removed. result, Comeaux suffered no harm. Farrain Comeaux was charged with burglary of a Judge Johnson concurred, joined by Judge habitation and the case proceeded to trial. During voir Hervey, to point out that some of the five steps to dire, potential juror 23 stated that he didn't think he preserve error on a challenge for cause are meant for could be fair and Comeaux challenged him for cause. preservation, while others are meant to show harm. The trial judge later asked juror 23 if his feelings Step one—challenging a juror for cause and losing—is would cause him to "violate the law" and write down there to preserve error because it informs the trial judge false answers and the juror answered "no." Comeaux's about the complaint. Step two and step three—using a counsel used all ten of his peremptory strikes, peremptory challenge on the complained-of juror and including one on juror 23. Comeaux's counsel asked exhausting peremptory challenges—show harm. The for an additional strike, which was denied, and stated defendant was forced to waste a peremptory strike. 21 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
Steps four and five—asking for an additional restaurant patrons and then returned the skimmer to challenge, which the court denies, and identifying an Ramirez-Memije. When customers began reporting the objectionable juror who sat on the jury—are there for stolen information, an investigation led police to preservation purposes because they alert the trial judge Cercen, who aided the police in a sting operation. to the complaint and provide the judge with an Ramirez-Memije was arrested when he brought the opportunity to correct any error. skimmer back to Cercen, and in turn agreed to help the police catch Salazar. Ramirez-Memije was charged B. Jury Instructions with fraudulent possession of identifying information 1. In capital murder cases where the basis for the but argued at trial that he did not know what the charge is multiple victims, the jury must skimmer was and didn’t receive any benefits from the unanimously find that the defendant scheme. He requested a jury charge on a voluntary act is responsible for the deaths of specific or omission under Penal Code § 6.01(b), but the trial individuals. court denied his request. The court of appeals reversed, Kimberly Saenz was charged with capital murder holding that Ramirez-Memije was entitled to a jury under Penal Code § 19.02(b)(1), which applies when instruction on voluntariness because there was the defendant murdered more than one person in the evidence that he didn’t know the skimmer contained same criminal transaction or during different identifying information, which raised an issue as to transactions but pursuant to the same scheme or course whether his possession of the device was voluntary. of conduct. The jury charge stated that the jury must The Court of Criminal Appeals reversed. find that Saenz committed the murders of "more than Ramirez-Memije v. State, 444 S.W.3d 624 (Tex. one of the following," and listed five individuals. The Crim. App. Sept. 17, 2014)(5:4). Writing for the instructions did not tell the jury that they had to be majority, Judge Meyers distinguished between unanimous as to which victims if found Saenz knowing possession and culpable mental state. Penal responsible for killing. In closing, the State told the Code § 6.01 applies to actus reus and requires the jury that they didn't have to agree on which two or person to voluntarily engage in an act. Judge Meyers more individuals Saenz murdered. Saenz did not provided the example of Farmer v. State, 411 S.W.3d object. 901 (Tex. Crim. App. 2013), in which the Court held The Court of Criminal Appeals reversed and that the defendant was not entitled to a voluntariness remanded. Saenz v. State, 451 S.W.3d 388 (Tex. instruction when he was convicted of DWI and argued Crim. App. Dec. 10, 2014)(7:1:1). Writing for the that he believed he was taking a different medication majority, Judge Womack explained that the capital but accidentally took a sleeping pill. In that case, the murder statute requires a predicate murder and an defendant still voluntarily swallowed the pill. Here, aggravating circumstance. In this case, that aggravating Ramirez-Memije voluntarily possessed the skimming circumstance was another murder. The jury did not device, whether or not he knew what it did. The issue specify which murder was the predicate murder or would be different if someone slipped the skimmer into which two or more of the five murders it found Saenz his bag without his knowledge. Judge Meyers had committed. The jury charge allowed them to make explained that Ramirez-Memije’s defense that he this determination without being unanimous and there didn’t know what the skimmer was went to the mens is no way of knowing if the jury was unanimous. Judge rea of intent to harm or defraud, and the jury was Womack then noted that because Saenz didn't object, instructed on that. the case should be remanded to the court of appeals for Judge Price filed a dissenting opinion, joined by a harm analysis. Presiding Judge Keller, Judge Womack, and Judge Johnson. Judge Price pointed out the majority ignored Judge Keasler concurred without an opinion. the distinction relied on by the court of appeals, that the skimmer is not the “thing possessed” for purposes Judge Meyers dissented without an opinion. of § 6.01(b)—the identifying information is. Ramirez- Memije’s defense was that he didn’t know what the 2. The defendant was not entitled to a voluntariness skimmer did, and thus didn’t know it contained instruction when it was undisputed that he identifying information. Judge Price provided the voluntarily possessed a credit-card skimming hypothetical of a person who receives a box, shakes it device despite his claims that he did not know and knows something is inside, but does not look what it did. inside. That person has voluntarily possessed Roman Ramirez-Memije received a credit-card something even though they don’t know what. In skimming device from Dante Salazar and gave it to contrast, a person who receives what appears to be a Antonio Cercen, who worked as a waiter at a solid cube but it in fact contains contraband does not restaurant. Cercen then used the skimmer to collect voluntarily possess that contraband because the person identifying information and credit card numbers from did not know the cube contained anything. Ramirez- 22 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
Memije was thus entitled to the instruction because he committing theft" could not be proven at trial for argued he didn’t know the skimmer contained aggravated robbery, then the theft and the assault were anything, much less identifying information. separate events, and the appellant could not be found guilty of robbery or aggravated robbery. But, Judge [Commentary: Don’t forget to tip your waiter.] Hervey explained that Hudson’s case is distinguishable from Sweed because even if the jury believed Hudson 3. A capital murder defendant was not entitled to a only recklessly killed her child, the evidence supported manslaughter instruction when the evidence a lesser-included offense of capital murder that is supported the greater lesser-included offense of greater than manslaughter—felony murder. Hudson did felony murder. not request this instruction. Cynthia Hudson was charged with capital Judge Meyers dissented to point out that the jury murder—based on intentional murder in the course of charge did not include any language that the offense committing or attempting to commit kidnapping—for could be committed recklessly, only knowingly or keeping her adopted thirteen-year-old son bound in his intentionally. Therefore, the jury could not have room, starving him, and beating him to death. convicted Hudson of an offense based on recklessness. Hudson’s defense was that she did not kidnap her son Judge Meyers argued this means that if the jury and that another adopted child committed the murder. believed that Hudson's acts were not intended to kill, Despite this defense, Hudson requested a jury but only to punish or discipline, it was not authorized instruction on manslaughter based on evidence that she by the application of the jury charge to find her guilty was only disciplining her son and it went too far. The of recklessly or negligently causing injury to a child. trial court denied her request, though the jury was Judge Meyers concluded that he would agree with the instructed on felonious injury to a child and intentional majority if the culpable mental states sufficient to murder and was given a “benefit of the doubt” commit injury to a child had been explained to the jury. instruction, which required the jury to find Hudson guilty of the lesser-included offense of injury to a child 4. Defendant was not egregiously harmed by failure if it had a reasonable doubt as to which offense Hudson to give unanimity instruction with respect to six was guilty of. counts of aggravated sexual assault of a child and The jury convicted Hudson of capital murder but one count of indecency where jury was faced with the court of appeals reversed, holding that she was only two diametrical theories of the case and it entitled to the manslaughter instruction. The Court of necessarily rejected one in reaching its decision. Criminal Appeals reversed and remanded to the lower Charles Arrington’s nine-year-old daughter court to consider whether possible intermediate lesser- accused him of sexually abusing her in numerous included offenses might have been supported by the ways. Arrington was charged with six counts of evidence and whether she was harmed by their aggravated sexual assault of a child and one count of omission. On remand, the court of appeals affirmed the indecency with a child. At trial, his daughter testified judgment of the trial court. describing the acts for each charge. Arrington testified The Court of Criminal Appeals affirmed. Hudson that he never abused his daughter. His mother and v. State, 449 S.W.3d 495 (Tex. Crim. App. Dec. 10, girlfriend also testified that they never saw Arrington 2014)(8:1). Writing for the majority, Judge Hervey do anything inappropriate. The jury instructions did not explained that Hudson was not entitled to a inform the jury that they must be unanimous as to manslaughter instruction because the proof she relied which separate criminal act constituted each count, but on was also sufficient for a greater lesser-included did include a very general instruction that the verdict offense, felony murder based on felonious injury to a had to be unanimous. Arrington did not object and the child. Thus, Hudson cannot establish that she is only jury found him guilty of five counts of aggravated guilty of manslaughter. Judge Hervey wrote sexual assault and one count of indecency with a child. additionally only to clarify the case law from this The jury failed to reach a verdict on count three, Court, and the case that both parties and Justice Carter charging Arrington with contacting his daughter’s of the lower court relied upon in his concurrence, sexual organ with his mouth, and the court declared a Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011). mistrial on that count. In Sweed, the Court held that the defendant was The court of appeals reversed, noting that there entitled to a lesser-included instruction despite the fact was evidence of more than one instance of sexual that a “lies between” offense existed. In that case, the conduct for each count, and thus an instruction on juror defendant was charged with aggravated robbery and unanimity was required. The court of appeals requested an instruction on theft. This Court held that distinguished this case from Cosio v. State, 353 S.W.3d the defendant was entitled to the theft instruction, even 766 (Tex. Crim. App. 2011) because in Cosio, multiple though robbery would "lie between" theft and general unanimity instructions were given, whereas aggravated robbery, because, if "in the course of 23 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 here there was only one. The court held the incomplete Subsection (b) and this error egregiously harmed instruction egregiously harmed Arrington. Villarreal. The Court of Criminal Appeals reversed. The Court of Criminal Appeals reversed. State v. Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App. Villarreal, 453 S.W.3d 429 (Tex. Crim. App. Feb. 4, Jan. 14, 2015)(6:1:0). Writing for the Court, Judge 2015)(9:0). Writing for the unanimous Court, Judge Alcala concluded that the court of appeals erred by Alcala first explained that the Court only granted focusing on the number of times a general unanimity review as to the lower court’s harm analysis and thus instruction was given in Cosio. None of the assumed without deciding that the trial court erred by instructions given were adequate. Thus, to determine omitting the § 9.32(b) instruction. Judge Alcala whether the instruction caused egregious harm, Judge balanced the Almanza factors and concluded that the Alcala considered the Almanza factors and explained record did not support egregious harm for three that the court of appeals erred by refusing to consider reasons. First, even if the trial court had provided the evidence that would have been excluded if a proper presumption-of-reasonableness instruction, the objection had been made. The reviewing court must instruction itself would have allowed the jury to consider the entire record. Arrington’s all-or-nothing disregard the presumption if it determined that defense meant that the jury either believed him or they Villarreal had no reason to believe Martinez was didn’t. They clearly didn’t and the entire record fails to attempting to kill him or that Villarreal was otherwise indicate egregious harm. Neither party mentioned engaged in criminal activity at the time of the offense. unanimity so the third factor is neutral. The mistrial on Second, the instruction likely would not have resulted count three also does not suggest harm because that in a different verdict because Villarreal’s defensive count was only supported by one simple “yes” answer theory evidence was weak. The State’s witnesses to a question. That does not indicate jury confusion on testified that Villarreal initiated the fight, was acting unanimity. Judge Alcala concluded that the only factor crazy, and “throwing gang signs.” Witnesses also weighing in favor of egregious harm was the testified that Villarreal went after Martinez after inadequate jury charge, but the evidence as a whole Martinez tried to leave. In contrast, Villarreal only had does not support such a finding. his one statement to police that Martinez attacked first. And third, although the trial court sua sponte included Judge Johnson concurred without an opinion. the self-defense instruction, Villarreal did not rely Judge Meyers and Judge Yeary did not exclusively on that defense. Villarreal primarily argued participate. that the State failed to prove he was the one that killed Martinez. Justification was only a secondary defense. 5. The defendant was not egregiously harmed by omission of a presumption-of-reasonableness 6. An Article 38.075 instruction for jailhouse- instruction as applied to self-defense because the informant testimony is required for testimony jury could have rejected the presumption and the about any statements purportedly made by the evidence did not support it. defendant that are adverse to the defendant’s Rene Villarreal and Martinez got into a fight at a interest. party and Villarreal stabbed Martinez six times, killing Christopher Phillips was charged with aggravated him. At trial, most witnesses testified that Martinez robbery. At his trial, Phillips’ co-defendant testified was unarmed. Villarreal’s out-of-court statement to against him. The State also called two rebuttal police that Martinez attempted to “cut him” first was witnesses who had been inmates with Phillips in the also admitted into evidence. This out-of-court county jail. Kevin Diggs testified that Phillips tried to statement was the only evidence of Villarreal’s get him to say he heard Phillips’ co-defendant say that justification defense. The trial court sua sponte the co-defendant committed the crime by himself. instructed the jury on self-defense under Penal Code § Elroy Slaughter testified that Phillips tried to get him to 9.32(a), which states that a person is justified in using sign an affidavit saying that the co-defendant planned deadly force when the actor reasonably believed the to “put the case off” on Phillips. The jury charge force was immediately necessary to protect himself included an accomplice-witness instruction but did not against another person’s use or attempted use of include a jailhouse-witness instruction. Phillips did not unlawful deadly force. The trial court did not instruct object or request such an instruction. The state the jury on Penal Code § 9.32(b), which, under some emphasized the testimony from Diggs and Slaughter in circumstances, creates a presumption of reasonableness closing. The court of appeals affirmed, holding that as to an actor’s belief under Subsection (a). Villarreal Article 38.075, the jailhouse-witness corroboration did not object or request a Subsection (b) instruction. statute, did not apply because the testimony of Diggs The court of appeals held that the trial court erred by and Slaughter did not include statements against failing to include this instruction because there was interest. Justice Gray concurred, opining that the some evidence to support the presumption under 24 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 statements were against interest but that the error was Newell believes that this is why an analysis based on harmless. Rule 803(24), the hearsay exception for statements The Court of Criminal Appeals reversed and against interest, is inapplicable. Rule 803(24) focuses remanded. Phillips v. State, ___ S.W.3d ___; 2015 on the content of the statement. A narrow reading of WL 3504487 (Tex. Crim. App. June 3, 2015)(9:2:0). Article 38.075 frustrates the legislative purpose. Judge Writing for the unanimous Court, Judge Richardson Newell disagrees with Presiding Judge Keller’s explained that the only question in this case is whether observation that a lack of an instruction is generally either Diggs or Slaughter testified to any statements harmless when the statement is not an admission or Phillips made to them that were against Phillips’ confession. In a close case, a trial court’s denial of a interest. The plain language of “statement against a requested instruction could have some effect on the defendant’s interest” in Article 38.075 is ambiguous jury’s verdict. because it can be interpreted to mean a statement connecting the defendant with the charge, one that is so VII. SENTENCING contrary to the defendant’s interest that a reasonable A. Death Penalty person wouldn’t make the statement unless it were 1. For mental retardation claims, judges may true, or any statement made by the defendant and consider the Flynn Effect when it is impossible offered against him. Article 38.075 was enacted to retest with a more recent IQ test but may not because the legislature recognized that incarcerated use the Effect to change an IQ score. individuals have an incentive to provide information Eric Dewayne Cathey was convicted of capital against other incarcerated people and thus their murder and sentenced to death. On the day before his testimony is highly suspect. Judge Richardson execution, he filed a subsequent writ arguing, for the compared the jailhouse-witness rule to the accomplice- first time, that he was mentally retarded and exempt witness rule because both must be corroborated due to from the death penalty. The Court stayed the execution their inherently unreliable nature. Judge Richardson and the trial court conducted a hearing, at which reasoned that a statement can be against interest even if several experts testified. Cathey argued that his IQ, it doesn’t expose the speaker to criminal liability scored in 1996 at 77, should be reduced to 66.6 to because the legislature was concerned with both the account for the Flynn Effect. Almost two years after contents of the statement and whether the jailhouse the hearing, the trial judge signed Cathey's proposed witness is trustworthy. Therefore, the broadest possible findings and recommended granting relief. interpretation is appropriate. A statement is against a The Court of Criminal Appeals held that Cathey defendant’s interest if it is adverse to his position. did not establish he is mentally retarded and is not Diggs’ and Slaughter’s testimony were adverse to exempt from the death penalty. Ex parte Cathey, 451 Phillips’ position because they claimed that Phillips S.W.3d 1 (Tex. Crim. App. Nov. 5, 2014)(8:1:0). tried to get them to lie about Phillips’ co-defendant. Writing for the Court, Judge Cochran explained that Because the court of appeals did not have the the Flynn Effect may be considered when determining opportunity to conduct a harm analysis or address mental retardation but does not allow judges to lower Phillips’ other issues, the court remanded to the court IQ scores. Significantly subaverage general intellectual of appeals. functioning generally means that a person has an IQ of Presiding Judge Keller concurred because she about 70 or below. Cathey argued that his 1996 IQ believes that the jailhouse-witness statute was designed score of 77 should be reduced to 66.6 to account for to operate like the accomplice-witness statute. the Flynn Effect, which refers to the tendency for Therefore, she would analyze the testimony as if it had scores on an IQ test normed for one particular age been accomplice-witness testimony. Judge Keller group on one date to increase when that same test is noted that the testimony in this case did not establish given to others many years later. Basically, the average guilt but she would require an instruction in this case score on one particular IQ test tends to increase when because the Court typically requires an accomplice- that test is given to a new group of individuals years witness instruction for any accomplice-witness later. The Flynn Effect deals with IQ test score testimony. Judge Keller also pointed out that when the averages, not individualized scores. Thus, Cathey questionable testimony does not relate an admission or argues that his score today would be lower in confession, the lack of an instruction will be harmless. comparison to what today’s average on that IQ test Judge Newell concurred to explain the would be. Judge Cochran surveyed different complexities of Article 38.075. Judge Newell believes psychological manuals, reports, and APA ethical and that this statute was designed to operate like the testing guidelines and found that clinical practitioners accomplice-witness statute. What triggers the need for do not generally rely on outmoded IQ tests and adjust an instruction is a particular type of witness, not the for the Flynn Effect. The best practice is to retest with content of the testimony. The premise of both statutes the most recent version of the IQ test. Thus, Judge is that the type of witness is untrustworthy. Judge Cochran concluded, when it is impossible to retest 25 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 using the most current IQ test available, factfinders disability. The judge held a hearing on the request and may consider the Flynn Effect and its possible impact granted Allen’s motion. The judge has not yet held the on IQ scores, just as they may consider the practice hearing or made a determination on intellectual effect, potential malingering, the examiner’s behavior, disability. The State initially sought mandamus relief etc. However, the IQ score itself may not be changed. in the Court of Criminal Appeals, which was denied. Cathey could have taken the most recent IQ test but he The State then obtained relief in the Dallas Court of did not want to, and he refused to allow the State’s Appeals, which held that the jury that determines guilt experts to administer it. or innocence must determine whether the defendant is Cathey also failed to establish deficits in adaptive intellectually disabled in a death penalty case. The functioning, or ordinary skills that are required for Court of Criminal Appeals granted Allen’s motion for people to function in their everyday lives, during his leave to file a petition for writ of mandamus developmental period. Cathey relied on a Vineland challenging the court of appeals’ judgment. Adaptive Behavior Scales test, which involved a series The Court of Criminal Appeals conditionally of questions posed to Cathey's family members about granted mandamus relief and ordered the court of his habits as a child. Judge Cochran explained that this appeals to rescind its judgment conditionally granting does not constitute evidence of deficits in adaptive the State’s petitions for writ of mandamus. In re functioning because this test was not designed to be Tyrone Allen, ___ S.W.3d ___; 2015 WL 2265128 administered decades after the relative time period, (Tex. Crim. App. May 13, 2015)(5:3:3). Writing for here when Cathey was under 18. A psychologist the majority, Judge Keasler first noted that Code of interviewed Cathey's family shortly before filing the Criminal Procedure article 37.01 § 2 does not provide a subsequent writ. The individuals interviewed, Cathey's statutory scheme defining how intellectual-disability sister and ex-wife, were prone to misremember his claims should be handled. Section 37.01 states that abilities because a finding of mental retardation would once a jury finds a capital defendant guilty, the court exempt him from the death penalty. Finally, Judge must conduct a sentencing proceeding before the jury. Cochran noted that the answers given on the Vineland But, Judge Keasler explained, this only applies when test contradicted the testimony at trial. For example, at the State seeks the death penalty and if a trial judge trial Cathey's sister described him as "average" and finds a defendant exempt from the death penalty "nerdy," but on the Vineland test remembered him as pretrial, it is no longer a death penalty case. Articles slow and easily distracted. Cathey obtained passing 1.13(a), 1.14(a), and 36.13, which limit a defendant’s grades in school, in which he took regular classes, until ability to waive a jury trial in a death penalty case, are he dropped out in high school. Judge Cochran also irrelevant. Article 36.13 mandates that juries determine noted that the contents of Cathey's prison cell reveal facts while judges determine law but this Court never that he is an avid reader and writer, distributes a invoked 36.13 as informative on the issue of the proper newsletter with his essays and poetry, and campaigns factfinder of intellectual disability. against the death penalty through letter-writing. Turning to case law, Judge Keasler explained that Considering all of the evidence, Judge Cochran in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. concluded that Cathey did not establish intellectual 2004), this Court held that Atkins does not require the disability. jury to make intellectual-disability determinations. In Judge Price concurred to reiterate his Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. disagreement with the Court's "non-diagnostic 2007), this Court held that because there is no approach" for analyzing the adaptive-deficits prong of legislation or constitutional requirement directing when the standard for determining intellectual disability. or by whom an intellectual-disability determination is After Hall v. Florida, Judge Price believes Texas's to be made, the judge did not err by denying Hunter’s approach to adaptive deficits is overly inclusive and request for a pretrial determination on intellectual insufficiently related to clinical diagnostic criteria. As disability. Judge Keasler also noted that finding such, Judge Price argues that the "writing is on the Allen’s motion unjustifiable for lack of ripeness wall" for the Ex parte Briseno factors. ignores the immediate effect the State’s notice in seeking the death penalty has on the nature of the case. 2. A trial judge does not deviate so far from well- It affects a defendant’s counsel’s pretrial mitigation settled legal principles to be considered acting and punishment investigations, the appointment of outside of the judge’s authority when he agrees to punishment experts, voir dire proceedings, etc. The law determine intellectual disability in a death penalty does not support a conclusion that granting Allen’s case pretrial. request for a pretrial intellectual-disability Tyrone Allen was charged with two counts of determination deviated so far from well-settled legal capital murder and faces the possibility of death principles to be considered acting outside a judge’s sentences in each. Allen requested a pretrial authority. Judge Keasler further explained that a determination by the trial judge on his intellectual mandamus proceeding is not the appropriate place to 26 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 interpret statutory language, clarify this Court’s former judge now lacks the authority to carry out or precedent, or create a law where there is none. rescind his original ruling. The court of appeals’ Judge Keasler also refuted Judge Alcala’s opinion has similarly been rendered moot. Judge contention that because the judge whose act was the Alcala also noted that TRAP 7.2 does apply because it subject of the court of appeals’ opinion is no longer the is applicable to mandamus proceedings in the court of presiding judge, the Court is required to abate these appeals. She further explained that the court of appeals proceedings for a response from the current presiding was never given the opportunity to address mootness judge under TRAP 7.2(b). TRAP 7.2(b) only applies to because the first trial judge was still on the bench at the original proceedings and this falls under Rule 72, time of that opinion. Judge Alcala concluded that even Extraordinary Matters. Judge Keasler also believes that if the Court should address the merits of the claim, she abating for a response would do nothing to correct the believes the Court should deny relief. She agreed with court of appeals’ erroneous conclusion. Judge Keasler Judge Newell that this issue is not yet ripe. Judge concludes by calling for the legislature to enact a Alcala further argued that the majority would allow statutory scheme on this issue. Without one, essentially multiple trials, which is irrational. The procedures will vary between courts. Judge Keasler legislature has enacted a general procedure for capital- noted that if intellectual disability is determined murder cases and it did not encompass a pretrial pretrial, it is unclear whether the State is afforded an determination of intellectual disability. This is adequate remedy if the judge concludes, incorrectly, supported by Briseno, which requires the jury to put that a defendant is exempt from the death penalty. aside the gruesome nature of the offense and decide if Judge Meyers concurred to address the dissenting it required forethought, planning, and complex opinions. Judge Meyers claimed that Judge Alcala’s execution of purpose. At a pretrial hearing, no facts position on mootness is incorrect because it would would be in evidence about this yet. mean that if a judge ruled on a motion to suppress and Judge Newell dissented to contend that the issue is there was a new judge at trial, the ruling in the pretrial not yet ripe. Judge Newell explained that a lack of hearing would be moot. That is not the case. A new legislative guidance does not equate to unfettered judge at trial does not render moot the ruling made by judicial discretion. At a pretrial hearing, it has not yet another judge in a pretrial hearing. Judge Meyers also been decided whether the defendant is guilty of capital refuted Judge Newell’s position on ripeness, murder and is eligible for the death penalty. Judge comparing intellectual disability determinations to Newell believes the majority has improperly issued an conducting a pretrial determination of whether the advisory opinion on an issue that was not ripe for defendant was a juvenile at the time of the offense. review. That is a sentencing issue that would determine punishment and is conducted properly before trial. Judge Johnson concurred without an opinion. Judge Yeary concurred to point out that this case presents a perfect illustration of the inefficiencies that B. Restitution—When the record is clear that the will likely continue to arise because of the failure of trial judge orally made restitution part of the the legislature to define mental retardation and sentence, but either the amount or the establish procedures to give effect to Atkins. Judge person(s) to whom it is owed is unclear, the Yeary noted that the medical community continues to case should be remanded to the trial court for a evolve and the definitions of mental retardation have hearing on restitution. changed since Atkins. In this case, if the trial judge Lemuel Burt was convicted of misapplication of does conduct a hearing on intellectual disability, it will fiduciary property. At the end of the sentencing essentially be a mini-trial on the capital murder. The hearing, the trial court orally pronounced that Burt whole case might be tried twice. Judge Yeary believes would owe restitution but did not specify the amount. this is unnecessary hardship. Judge Yeary urged the The next day, the trial judge entered an order for legislature to address this issue so the courts will have $591,000 restitution in the written judgment. The court a unified procedure. The legislature also needs to of appeals vacated the order and remanded for a new provide a clear definition of mental retardation. hearing on restitution. Burt argued that they should Judge Alcala dissented because she believes the have deleted the order because it was not orally issue is moot. The trial judge who performed the pronounced in open court. ministerial act is no longer on the bench and the Court The Court of Criminal Appeals affirmed. Burt v. should abate until the new judge makes a decision. State, 445 S.W.3d 752 (Tex. Crim. App. Oct. 15, Because this is a mandamus proceeding, this Court is 2014)(9:0). Writing for the unanimous Court, Judge not actually deciding the propriety of the trial court’s Cochran explained that the parties were on notice that order, and thus there would not be any law of the case restitution would be ordered because that was to prohibit the successor judge from reconsidering the pronounced in open court and the evidence in the case pretrial ruling. There is no live controversy because the showed that the restitution amount would be 27 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 significant. Burt was involved in a Ponzi scheme with sexual organ with his finger, penetrating her sexual multiple victims with losses exceeding $591,000. organ with his mouth, and causing her sexual organ to Judge Cochran compared this case to those in which contact his mouth. Aekins argued that contacting and the trial court had the authority to order restitution and penetrating the complainant's sexual organ with his did so, but the evidence was insufficient to support the mouth constituted a single criminal act. The court of amount. In those cases, remand was the appropriate appeals agreed, holding that the conviction for sexual remedy so the parties could offer evidence and assault by contact was barred by double jeopardy objections to reach an appropriate restitution amount. because it was based on the same act for which he was Similarly, this case should be remanded for a new convicted of assault by penetration. The court vacated hearing on restitution because the parties were put on the conviction for sexual assault by contact with his notice that restitution would be ordered but were not mouth. given the opportunity to object to the amount and The Court of Criminal Appeals affirmed. Aekins present evidence. v. State, 447 S.W.3d 270 (Tex. Crim. App. Oct. 22, 2014)(5:4:0). Writing for the majority, Judge Cochran C. Deadly Weapons—A vehicle is not per se a first explained the "doctrine of subsumed acts" from deadly weapon in a felony DWI case; the State the Supreme Court's opinion in must establish that the defendant placed others Blockburger, which asks whether each criminal act is a in actual danger of serious harm. separate and distinct one, separated by time. If during Police stopped Mark Brister for crossing the one continuous act, more than one statutory offense is center line into oncoming traffic one time. The officer necessarily committed, the offenses merge and the testified at trial that there were "few if any" cars around actor may only be punished once. Judge Cochran because Brister was stopped late at night, that Brister distinguished this from multiple sexual acts that may committed no other traffic violations, and that Brister be punished separately, such as when a defendant drove normally when he pulled over in a convenience touches a child's breasts and then genitals, which store parking lot. Brister was convicted of felony DWI, would result in two convictions because these acts and the jury found that he used or exhibited a deadly stem from separate impulses. In contrast, when a weapon, his vehicle. The court of appeals held that the defendant necessarily contacts a victim's genitals en evidence was insufficient to support a deadly weapon route to penetration, that is one continuing act that finding and struck that portion of the judgment. stems from one impulse and may only be punished The Court of Criminal Appeals affirmed. Brister once. Judge Cochran provided the example of, "if the v. State, 449 S.W.3d 490 (Tex. Crim. App. Dec. 10, victim says Dangerous Dan raped her, then forced oral 2014)(5:1:3). Writing for the majority, Judge Johnson sex, then raped her again, then forced oral sex again– refused to adopt the State's proposal that a vehicle in a there are four criminal convictions possible. All four of DWI case is per se a deadly weapon. Judge Johnson those complete, ultimate acts may have also contained went on to analyze whether the State established lesser discrete criminal acts along the way toward Brister placed others in actual danger. The record completion (multiple contacts and multiple discrete established that Brister crossed the center line once and acts of penetration per rape), but those merge with the there were very few, if any, cars in the oncoming lane. completed, ultimate sexual assault." Brister stopped when the officer activated his lights Presiding Judge Keller concurred, joined by and committed no other traffic violations. Judge Judges Price, Keasler, and Hervey. Judge Keller Johnson concluded that, on this record, there was no argued that this issue can be resolved through reasonable inference that Brister used his vehicle as a traditional double-jeopardy analysis and no new deadly weapon. "merger" doctrine is necessary. If two convictions are based on separate statutory provisions, the Court looks Judge Price concurred without an opinion. to whether each offense requires an element of proof that the other does not. If the same statutory provision Presiding Judge Keller, Judge Keasler, and is involved, the Court looks to whether the offenses Judge Hervey dissented without opinions. involve the same allowable unit of prosecution. Judge Keller believes that the majority's opinion D. Double jeopardy unnecessarily blurs the distinction between these two 1. In a sexual assault case, if an exposure or contact methods. Applying the "units" analysis to this case, stems from the same impulse that results in Judge Keller concluded that contact and penetration penetration, those acts are "incident to and that involves the same conduct is the same unit of subsumed by" the penetration and are the same prosecution. offense for double jeopardy purposes. Judge Keasler concurred, joined by Presiding Donald Aekins was convicted of sexually Judge Keller and Judge Hervey, to argue that the assaulting his child's baby sitter by penetrating her majority's "impulse" concept is too abstract for 28 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 practitioners to apply. Judge Keasler believes that the 3. Intoxication assault and felony DWI are not the majority misconstrued Blockburger, and the "units" same offense for double-jeopardy purposes when and "elements" methods of analyzing double jeopardy they arise out of the same transaction. issues offer the appropriate guidance. He compared the Yusulf Benson seriously injured a man when he "impulse" doctrine to the now-abandoned carving caused a traffic accident. He was convicted of both doctrine, which barred multiple convictions stemming intoxication assault and felony DWI. The felony DWI from an unbroken “chain of antecedent violence conviction was based on the fact that Benson had two perpetrated upon the complaining witness” when the prior DWI convictions. Benson argued that his two events were closely related in proximity of time and convictions violated double jeopardy. place. Like the carving doctrine, Judge Keasler finds The Court of Criminal Appeals denied relief. Ex the impulse doctrine unclear and unworkable. parte Benson, ___ S.W.3d ___; 2015 WL 1743459 (Tex. Crim. App. April 15, 2015)(6:3). Writing for 2. The Double Jeopardy Clause does not allow dual the majority, Presiding Judge Keller first explained that convictions for aggravated assault with a deadly as intoxication assault, Penal Code § 49.07, and felony weapon against a public servant and intoxication DWI, Penal Code §§ 49.04 and 49.09, are found in assault stemming from the same criminal act. different statutory sections, the Blockburger same- John Shelby crashed his truck into a police car elements test applies. Felony DWI requires two prior that had been pulled onto the side of the road during a convictions for misdemeanor DWI, an element not traffic stop. The police officer and the man he had found in intoxication assault. These two prior pulled over were severely injured. Shelby had a BAC convictions are not used to enhance punishment to a of .13 and was convicted of both aggravated assault felony, but rather are elements of the offense of felony with a deadly weapon against the police officer and DWI. The two priors are admitted into evidence during intoxication assault against the officer. The court of the guilt-innocence stage of trial as part of the State’s appeals affirmed. proof of its case-in-chief. The Court of Criminal Appeals reversed. Shelby Judge Keller further explained that, as felony v. State, 448 S.W.3d 431 (Tex. Crim. App. Nov. 26, DWI is not a lesser-included offense of intoxication 2014)(9:0). Writing for the unanimous Court, Judge manslaughter, it is not a lesser-included of intoxication Alcala applied the "elements" test to determine that assault. The two have different elements and are Shelby's two convictions violate double jeopardy, even presumed to be different for double-jeopardy purposes. though under the Blockburger test they did not because Judge Keller next reasoned that the legislature did not the two statutes under which Shelby was convicted clearly intend the offenses to be treated the same. have different elements. Judge Alcala explained that, Under the Ervin factors, Judge Keller noted that the when the defendant is punished under two separate two prior convictions for felony DWI cannot be statutes, the ultimate question for a double jeopardy disregarded as punishment evidence because the claim is whether the legislature intended to allow the legislature made them elements of the offense. Both same conduct to be punished under both of the statutes offenses are in the same penal code chapter, which in question. The non-exclusive Ervin factors facilitate weighs in favor of treating the offenses the same; such an analysis. Ex parte Ervin, 991 S.W.2d 804 however, they are not phrased in the alternative. (Tex. Crim. App. 1999). Under these factors, Judge Similarly, the names of the offenses both include Alcala noted that the two statutes are not in the same “intoxication,” weighing slightly in favor of finding penal code chapter, and thus are not phrased in the them the same for double jeopardy. They are also both alternative. Furthermore, they share similar names and punished as third-degree felonies but the structure of have a similar focus or gravamen. They have the same these offenses within Chapter 49 weighs against allowable unit of prosecution, and although some of treating them as co-equal alternatives. the elements differ between the two, the elements are Judge Keller also explained that intoxication similar enough that they can be considered the same. assault is a result-oriented offense while felony DWI is Under the most important factor—similar focus or a nature-of-conduct offense. No injury is required for gravamen—Judge Alcala noted that both offenses are felony DWI so the focus of the offense is different result oriented and focused on bodily injury. from that of intoxication assault. Although both Intoxication is not the focus of intoxication assault, as offenses are designed to protect against drunk drivers, the court of appeals held, but rather the resulting bodily they address separate risks. Judge Keller finally injury is the focus of the offense. Thus, Judge Alcala explained that Texas courts have been treating prior reasoned, the legislature did not intend separate DWI convictions that raise an offense to felony DWI punishment for the same action under these two status as elements of that felony offense for years and statutes. The appropriate remedy is to vacate the the legislature has not specififed otherwise in the many conviction carrying the lesser sentence. times that Chapter 49 has been amended. In fact, legislative action has reinforced this notion because the 29 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 title of § 49.09 refers to “enhanced offenses and incidents of penetration which could have formed the penalties,” suggesting that § 49.09 created two sorts of basis for each count? Judge Meyers held that the enhancement. Considering these factors as a whole, subsumption theory from Patterson is still valid. In Judge Keller concluded that the legislature did not Patterson, the Court held that two the legislature did intend for courts to treat the two offenses the same and not intend to authorize “stop action” prosecution, a conviction for both arising out of the same meaning that a defendant cannot be prosecuted for an transaction does not violate double jeopardy. exposure that was committed on the way to Judge Meyers dissented, joined by Judge Johnson penetration. Judge Meyers distinguished Patterson and Judge Alcala. Judge Meyers agrees that prior DWI from this case because here there were many separate convictions are elements of felony DWI but believes acts of both contact and penetration at many different that they are only jurisdictional elements that, once times. Patterson is properly applied when, under the pled in the indictment, confer jurisdiction to the district facts of the case, the jury could not have found separate court. Therefore, they should not be treated as offenses or separate acts. Therefore, the court of traditional offense elements. Judge Meyers appeals erred by applying Patterson. Subsumption distinguishes prior convictions from traditional offense does not apply to the facts of this case because there elements by noting that a defendant may stipulate to was evidence of multiple incidents of both contact and the priors and preclude the State from presenting any penetration which could have formed the basis for each further evidence of those convictions in its case-in- count. chief. In contrast, if a defendant admits to a traditional Presiding Judge Keller concurred, joined by Judge element of an offense, this same procedure does not Newell, to point out that the question here is whether apply. Judge Meyers further explains that misdemeanor two of Maldonado’s convictions for indecency with a DWI and intoxication assault would be jeopardy barred child are the same as two of his convictions for under Blockburger and there is no clearly expressed aggravated sexual assault. Judge Keller explained that legislative intent to impose multiple punishments for the two analyses for determining the “sameness” of misdemeanor DWI and intoxication assault arising offenses for double jeopardy purposes: the elements from the same transaction. analysis and the units analysis. The Court has previously held that indecency with a child and 4. Convictions for indecency with a child were not aggravated sexual assault of a child are the same under subsumed by convictions for aggravated sexual an elements analysis so Judge Keller proceeded to the assault of a child when multiple incidents of both units analysis. Judge Keller explained that the offenses contact and penetration occurred on multiple days are not the same under the units analysis because and could have formed the basis for each count. discrete acts that occur on separate days are Anthony Maldonado was charged with multiple indisputably separate units of prosecution with respect counts of aggravated sexual assault of M.R. by to the types of offenses at issue here. Even if all of the penetration and two counts of indecency with a child instances of abuse rose to the level of aggravated by contact. All of these counts were alleged to have sexual assault, rather than merely being indecency with been committed on or about the same day but the a child, they would nevertheless satisfy the elements of indictment included other counts alleged to have indecency with a child. occurred on other dates spanning a two-year period. Maldonado argued that the two counts of indecency Judge Johnson concurred without an opinion. with a child were barred by double jeopardy because they were subsumed in the aggravated sexual assault Judge Yeary did not participate. offenses. The court of appeals held that there was no evidence that Maldonado committed the offense of 5. Successive prosecutions for capital murder and indecency by contact separate and apart from the aggravated assault were not jeopardy barred when penetration offenses. Thus, the court of appeals each charge had different victims though both modified the judgment by vacating the two counts for charges stemmed from the same offense. indecency by contact. Thomas Castillo’s wife, Carol Sanchez, left him The Court of Criminal Appeals reversed. for Ray Nava. One evening, Castillo hid in Nava’s Maldonado v. State, ___ S.W.3d ___; 2015 WL bedroom closet and waited for the two to come home. 2251205 (Tex. Crim. App. May 13, 2015)(7:3:0). When they went to bed, Castillo stabbed both Nava Writing for the Court, Judge Meyers listed two issues: and Sanchez. Nava died from his injuries but Sanchez (1) Is the subsumption theory of Patterson v. State still survived. Castillo was charged in two separate valid in light of this Court’s more recent case law? (2) indictments returned on the same day. The first If Patterson is still valid, is a single count alleging indictment alleged Castillo committed capital murder sexual contact subsumed by a count alleging by killing Nava in the course of committing or penetration where there is evidence of multiple attempting to commit burglary. The second indictment 30 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 charged Castillo with (1) assault by recklessly causing E. Enhancements—State could properly enhance serious bodily injury to Sanchez with a deadly weapon with a prior conviction for a state jail felony and (2) burglary by intentionally or knowingly entering conviction that had been enhanced to a second- the habitation of Nava and committing or attempting to degree felony prior to September 1, 2011. commit the felony offense of aggravated assault In 2007, David Samaripas was convicted against Sanchez. Castillo moved to consolidate the of engaging in organized criminal activity, which was indictments, which was denied, Castillo was acquitted enhanced under the habitual offender provision based of capital murder. Before the second trial for burglary on his two prior felony convictions, the second of and aggravated assault, Castillo filed a pretrial writ which was for evading arrest with a motor vehicle, a application arguing the second prosecution was barred state-jail felony. Samaripas's punishment for evading by double jeopardy. The trial court denied the arrest with a motor vehicle had itself been enhanced to application but the court of appeals reversed and that of a second-degree felony under Penal Code § remanded the cause for the second indictment to be 12.42(a) because two previous felony convictions were dismissed. used for punishment enhancement. Samaripas argued The Court of Criminal Appeals affirmed in part that his conviction in this case should not have been and reversed in part. Ex parte Castillo, ___ S.W.3d enhanced by his state-fail felony conviction for ___; 2015 WL 3486960 (Tex. Crim. App. June 3, evading arrest with a motor vehicle because, although 2015)(8:0). Writing for the Court, Judge Hervey held the punishment for that offense had been enhanced, that the burglary charge was jeopardy barred but the that did not enhance the level of the underlying offense aggravated assault charge was not. Judge Hervey itself. Section 12.42(e) states: "A previous conviction explained that the burglary charge is a lesser-included for a state jail felony punished under Section 12.35(a) offense of capital murder as pled in this case because may not be used for enhancement purposes under the State only needed to prove the burglary and some Subsection (b), (c), or (d)." The court of appeals held additional facts for capital murder. Judge Hervey also that 12.42(e) only exempts state jail felonies actually rejected the State’s argument that the burglary charge punished under § 12.35(a), not those enhanced under was not legally the same as the capital murder burglary 12.42(a)(2) like Samaripas's, and affirmed the because the burglary charge alleged a completed conviction and sentence. burglary and the other did not. As a matter of law, an The Court of Criminal Appeals affirmed. allegation of a completed offense is the same as Samaripas v. State, 454 S.W.3d 1 (Tex. Crim. App. alleging an attempt to commit the same offense. The Oct. 15, 2014)(6:1:2). Writing for the majority, Judge State clearly attempted to prosecute Castillo twice for Meyers noted that at the time of Samaripas's current the same unlawful entry, thus the burglary prosecution offense, § 12.42(e) prohibited only state-jail felonies is barred. that had not been previously enhanced from being used Judge Hervey then explained that the aggravated for habitual offender status. Prior to September 1, assault prosecution is not barred because the 2011, § 12.42(e) stated that, “A previous conviction for aggravated assault is not factually the same as the a state jail felony punished under Section 12.35(a) may capital murder. Aggravated assault is within the proof not be used for enhancement purposes under necessary to establish capital murder so both offenses Subsection (b), (c), or (d).” Judge Meyers explained are legally the same. However, Judge Hervey reasoned that the time of Samaripas's offense, § 12.42(e) focused that the relevant unit of prosecution for capital murder on how the previous state-jail felony was actually is the requisite murder plus proof of an aggravating punished and only precluded, from use for circumstance. The unit of prosecution for assault is enhancement, state-jail felonies that had not been each victim. When the victims alleged in the capital- punished as a higher felony. Therefore, Samaripas's murder and aggravated-assault charges are compared, prior offense was properly used for enhancement they allege two different units of prosecution: Nava purposes. and Sanchez. Castillo was not in jeopardy of being Presiding Judge Keller dissented along with Judge convicted of aggravated assault against Sanchez in his Price based on their opinion that a prior state jail capital-murder trial because the State did not have to felony conviction could not be used to enhance under § prove that Castillo committed aggravated assault 12.42(d). According to the dissent, the applicable against Sanchez to establish capital murder. If the jury enhancement statutes are ambiguous and susceptible to convicted Castillo of capital murder, it must also have more than one meaning. Looking at the legislative believed that he committed aggravated assault against history, the legislature never contemplated that § Nava, not Sanchez. 12.35(a) convictions would be used to enhance non- state-jail felonies under § 12.42(d). Judge Yeary did not participate. Judge Womack concurred without an opinion. 31 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
F. Cumulating Sentences 3.03(b)(2)(A) if there is “some evidence” that the 1. A trial judge may cumulate a defendant’s offenses occurred after September 1, 1997. Bonilla sentences for sexually abusing a child when the argued that because the State alleged an act that indictment lists an offense date that is before the occurred “on or about” January 1, 1995, and there was effective date of the amendment to Penal Code § some evidence of this, the offenses occurred before the 3.03 as long as the evidence shows the abuse effective date of the amendment and the sentences occurred both before and after that effective date. could not be cumulated. Bonilla never made this Ronald Bonilla was charged with four counts of complaint to the trial court. Furthermore, Judge indecency with a child, with dates spanning from Cochran explained, there was plenty of evidence for January 1995 to January 2002, for inappropriately the jury to find that Bonilla abused his nephew both touching his two nephews. The older nephew testified before and after September 1, 1997, and Bonilla did that the abuse began sometime between 1994 and 1996 not ask the State to elect a specific incident. To prevent and escalated sometime in 1998 or 1999. Bonilla’s the trial judge from cumulating sentences, Bonilla had defense was that he never touched either boy. During to object in the trial court and argue that (1) he had closing arguments, the prosecutor explained that he requested the State to elect a single incident to submit had alleged the January 1, 1995, date in the indictment, to the jury for each count and that, as a result, the State even though most of the abuse occurred in later years, submitted only incidents that had occurred before because the older boy remembered that the first September 1, 1997; (2) there was some legal flaw in incident happened sometime between first and third the State’s “on or about” language in the indictment; or grade. Bonilla was convicted on all four counts and (3) there was not “some evidence” to support a finding sentenced to fourteen years’ imprisonment on each that he committed the charged offenses after count. The trial judge stacked counts three and four, September 1, 1997. Because there was overwhelming involving the older nephew, on top of counts one and evidence that Bonilla assaulted his nephew both before two, involving the younger nephew. On appeal, Bonilla and after 1997, and he did not ask the State to elect a argued that, because an offense date of January 1, specific incident, the trial judge did not abuse his 1995, was listed in the judgment for counts 3 and 4 and discretion by cumulating the sentences. The “on or that date was before the effective date of the 1997 about” date listed in the indictment and in the judgment amendment permitting cumulation of child sexual does not determine the actual date of the offense for abuse offenses, the trial judge erred in stacking those purposes of cumulating a sentence under § counts on to counts 1 and 2. The court of appeals 3.03(b)(2)(A). affirmed Bonilla’s sentence. Judge Alcala concurred, joined by Judge Johnson, The Court of Criminal Appeals affirmed. Bonilla to disagree that preservation of error is required to v. State, 452 S.W.3d 811 (Tex. Crim. App. Nov. 19, assert this sufficiency-of-the-evidence challenge on 2014)(5:2:2). Writing for the majority, Judge Cochran appeal. Judge Alcala contends that the court of appeals, held that when the indictment and judgment list an though calling it the “some evidence” test, essentially offense date that is before the effective date of the applied the Jackson v. Virginia sufficiency-of-the- amendment to Penal Code § 3.03, but the evidence evidence test to the trial court’s cumulation order. shows that the acts that constituted the offense Because the complaint here involves whether there is occurred both before and after that effective date, the any evidence in the record to support the cumulation trial judge has the discretion to cumulate the sentences. order, Judge Alcala believes it is analytically similar to Judge Cochran explained that in 1997, the legislature situations involving a review of the sufficiency of the added an exception to the rule that sentences arising evidence. Therefore, it is unnecessary to preserve this out of the same criminal episode must be served type of complaint with an objection at trial. Judge concurrently, which allows the trial judge to cumulate Alcala states that a sufficiency review is a simpler sentences for child sexual abuse offenses. This approach and would hold that there is sufficient exception applies only to an offense that occurs after evidence supporting the trial court’s cumulation order. the effective date of September 1, 1997. Judge Cochran Judge Price dissented, joined by Judge Womack, explained that in Ex parte Bahena, 195 S.W.3d 704 because he believes that the issue should not be (Tex. Crim. App. 2006), the Court held that trial whether the trial court believed the incidents occurred counsel was not ineffective for failing to challenge the before or after 1997 but which incidents the jury relied stacking order because the issue of stacked sentences upon to convict. Because the State did not elect an in cases in which the evidence showed sexual offenses incident, the record is unclear with regard to that both before and after the effective date of the question, and the trial court had no factual basis upon amendment to § 3.03 was “an unsettled area of law.” which to determine which incidents the jury relied Judge Cochran adopted the “some evidence” standard upon. Judge Price explained that, by choosing not to applied by the courts of appeals, which gives the trial elect an incident, the State cannot later re-prosecute the judge discretion to stack sentences under § appellant for any of the incidents presented at trial that 32 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 could have supported his conviction for indecency with trial as if a finding of guilt had been returned and a child. Because Bonilla has this substantial double- proceed to the punishment stage. . . .” A remand for a jeopardy protection, he should also be protected by the new punishment hearing does not cause a judgment of State’s failure to elect a specific incident. Judge Price conviction to “cease to operate.” However, when a argued that the State should be required to elect a case is remanded for a new hearing on punishment, specific incident because it is the beneficiary of the there is a finding of guilt but there is no judgment of stacking order. The State should be held accountable conviction. A judgment is an official action of the trial for the consequences of any resulting uncertainty on court committing the defendant to sanctions. Allowing whether the record supports the imposition of stacked the first sentence to remain the first sentence in a sentences under § 3.03(b). Therefore, Judge Price stacking order even after a new punishment hearing would hold that the trial court did not have the has been granted could give rise to a contradictory authority to stack the sentences. result of the trial court decides on remand to suspend the imposition of sentence and place the defendant on 2. Granting a new punishment hearing removes the community supervision. A remand for a new sentence for that case from the stacking order and punishment hearing allows the trial court to reassess the trial judge must issue a new order stacking the whether the sentences should be stacked. Here, the new sentence in the re-sentenced case onto the remand for a new punishment hearing in the sentence for an existing conviction. aggravated-robbery case caused the aggravated- Kenneth Vela was convicted of aggravated robbery sentence to be removed from the stacking robbery and sentenced to life in prison. He was also order and the trial court did not stack the new sentence convicted of possession of heroin and sentenced to onto the heroin case. Therefore, the two sentences are sixty years. The trial court stacked the possession of running concurrently. heroin sentence onto the aggravated-robbery sentence. Vela appealed his aggravated-robbery conviction and Judge Hervey did not participate. the case was reversed and remanded for a new punishment hearing, at which he again received a life G. Probation sentence. However, the trial court did not issue a new 1. Individual on community supervision was not stacking order with respect to the heroin sentence. Vela given fair notice about condition requiring him to complained that TDCJ was still treating the heroin waive Fifth Amendment right and disclose sentence as if it were stacked. The State argued that the existence of other victims when the trial court remand for a new punishment hearing suspended the only gave general instructions that the individual case for stacking purposes and the convictions resumed had to pass polygraph exams “without their stacked status once Vela was re-sentenced. admissions.” The Court of Criminal Appeals granted relief. Ex Michael Dansby pleaded guilty to indecency with parte Vela, ___ S.W.3d ___; 2015 WL 2236684 (Tex. a child and was placed on five years of deferred- Crim. App. May 13, 2015)(8:0). Writing for the adjudication community supervision. During an in- Court, Presiding Judge Keller explained that the court proceeding, the trial court ordered Dansby to stacking statute, Code of Criminal Procedure article comply with “sex offender terms and conditions,” but 42.08(a), states that the “judgment” in the second did not give any specific details about those conditions. conviction may either have the sentence begin when That same day, those general conditions were modified the “judgment and sentence imposed” in the first through a written document acknowledged by Dansby conviction has “ceased to operate,” or that the sentence outside of a formal courtroom proceeding. The written in the second case shall run concurrently with the first modification included conditions requiring Dansby to case. Judge Keller noted that the term “judgment” take and pass a polygraph examination “without any includes “the written declaration of the court signed by admissions” and to successfully complete a sex the trial judge entered of record showing the conviction offender treatment program. Dansby signed the or acquittal of the defendant” and includes the sentence modification order. Dansby complied with the or suspension of the sentence. The phrase “cease to requirements except that he refused to answer operate” means “(1) when the actual calendar time questions about his victims other than the complainant served by the inmate equals the sentence imposed by in this case. His therapist told him that if he did not the court; or (2) on the date a parole panel designates answer general questions about whether there were as the date the inmate would have been eligible for other victims and give general details about those release on parole if the inmate had been sentenced to crimes, he would be discharged from the treatment serve a single sentence.” Judge Keller also explained program. Because he refused, he was discharged from that Code of Criminal Procedure article 44.29(b) states therapy and the State filed to have his community that if the defendant is awarded a new trial on supervision was revoked. punishment only, “the court shall commence the new 33 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
At the hearing, Dansby argued that the condition complaint because the modification order was not violated his Fifth Amendment right against self- made at a formal hearing in court. For this same incrimination. Dansby acknowledged that he reason, Judge Alcala explained that Dansby’s understood that the modified conditions required him statements about understanding the condition at the to take and pass a polygraph examination as to his revocation hearing were not dispositive. Also, the sexual history, but he did not concede that he had record does not show that counsel was present when agreed to forfeit his Fifth Amendment rights. His Dansby signed the modified conditions or that he community supervision was revoked and he was understood the consequences of that waiver. sentenced to eighteen years’ imprisonment. The court Judge Alcala further rejected the State’s argument of appeals did not reach the merits of Dansby’s Fifth that statutes describing sex-offender conditions are Amendment challenge. The Court of Criminal Appeals adequate to provide notice that a defendant will be held the court of appeals erred by concluding that expected to waive his Fifth Amendment right because, Dansby’s discharge from the sex offender treatment at most, the statutes inform people that sex offender program was not a product of his invocation of his treatment includes polygraphs and inquiry into a Fifth Amendment privilege and remanded for person’s sexual history. Therefore, Dansby did not consideration of that issue. On remand, the court of forfeit his complaint that his Fifth Amendment rights appeals held that, because Dansby did not object to the were violated. specific conditions of community supervision at the Judge Cochran concurred, joined by Judge time they were imposed or at any time prior to the Johnson, to address the interplay between the Fifth filing of the State’s motion to adjudicate, he forfeited Amendment and polygraph tests that are required as a his complaint. term of probation. Judge Cochran noted the The Court of Criminal Appeals reversed and contradiction in the holding that, although a judge may remanded. Dansby v. State, 448 S.W.3d 441 (Tex. require polygraph testing a condition of probation, he Crim. App. Nov. 26, 2014)(6:2:3). Writing for the may not revoke probation based upon a valid majority, Judge Alcala held that Dansby was not put on invocation of the Fifth Amendment made as a part of notice that his conditions of community supervision polygraph testing. Judge Cochran believes the simple would require him to waive his Fifth Amendment solution is for the State to formally grant full-use constitutional right with respect to his revelations about immunity for any self-incriminatory statements a other victims. Judge Alcala first dismissed the State’s probationer makes during such polygraph testing as argument that Dansby’s Fifth Amendment rights were part of the explicit terms of probation. Coerced waivers not implicated because his therapist did not ask for of Fifth Amendment rights may not be used as the names or personal details about other victims. The basis for terminating a person’s participation in a sex- Fifth Amendment applies equally to generally offender-treatment program, which termination is then incriminatory statements and to specific statements used to revoke probation. If the State does not offer about particular victims or incidents, and it continues full-use immunity, the probationer may always invoke to apply even to individuals on community his Fifth Amendment right against self-incrimination, supervision. and he may not be penalized for invoking that right. Judge Alcala next explained that a person on Judge Cochran agrees with the Seventh Circuit’s community supervision waives any complaint on approach to use immunity, which holds that the person conditions if he does not object as long as the person is owed explicit, up-front notice and the general was aware of the conditions in time to object. Judge existence of immunity is not adequate notice to the Alcala reasoned that Dansby was not aware of the person forced to make a statement. If the trial judge waiver of his Fifth Amendment right condition intended “without any admissions” to mean Dansby because, although he knew that the offense report was not required to make self-incriminating included names of other individuals who claimed to admissions, then everyone should have known that also have been victimized by him, he was not given Dansby could not be punished or penalized for fair notice. The trial court did not give specific invoking his right not to make “any admissions.” Any instructions on this condition at the hearing and the immunity granted should be explained, signed, and modified conditions, which simply stated that he would delivered before the defendant is placed on probation. have to take and pass a polygraph “without any admissions,” did not place Dansby on fair notice that Presiding Judge Keller, Judge Keasler, and waiver of his Fifth Amendment rights would be Judge Hervey dissented without opinions. required in order for him to comply with his conditions of community supervision. The phrase “without admissions” is too ambiguous to put Dansby on notice. Furthermore, Dansby did not have a fair opportunity to object to the modified conditions and preserve that 34 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
2. Can a defendant placed on community supervision confinement as a condition of community supervision, for a state-jail felony be required to reimburse a and the language of Article 42.038(b)–a defendant county for the cost of incarceration in a county jail placed on deferred adjudication for a misdemeanor– as a condition of community supervision? Who excludes defendants who are placed on deferred knows? adjudication for a felony of any degree. Judge Johnson Melissa Mercer pleaded guilty to debit-card abuse believes the legislature was concerned with and was placed on community supervision for five reimbursement for the counties’ costs of confining of years. The trial court amended her conditions of misdemeanants who were ordered to serve jail time in community supervision sua sponte and without a county jails as a condition of community supervision. hearing several times. Each time, she signed the order State-jail-felony defendants are confined in state, rather amending the conditions. Later, at a hearing, the trial than county facilities. Thus the confinement of such court revoked Mercer’s community supervision and state-jail-felony defendants is not affected by Article sentenced her to two years’ confinement. The judge 42.038. also ordered her to pay the costs she had failed to pay Judge Alcala concurred to point out that, although as conditions of her community supervision, including the court of appeals erred by addressing preservation of payment of her outstanding fine, court costs, and error as to the wrong juncture of the proceedings, the reimbursement for costs of her confinement in the court of appeals did properly describe the law with county jail while she was on community supervision. respect to preservation of error—a person may not be Mercer did not object. On appeal, Mercer challenged held to have forfeited error when he has not had an the assessment of $160 for the costs of her confinement opportunity to object. Judge Alcala does not believe in the county jail. The court of appeals held the trial that the record shows Mercer had an opportunity to court did not have the authority to order Mercer to object. After revoking Mercer’s community reimburse the costs of her confinement as a condition supervision and sentencing her to two years’ of community supervision. confinement in a state-jail facility, the trial court’s oral The Court of Criminal Appeals vacated the pronouncement ordered her to pay “the balance of the judgment of the court of appeals and remanded to the unpaid fine, fees, costs, and restitution, if it can be court of appeals for further proceedings. Mercer v. collected, on a state jail case, which I don’t think it State, 451 S.W.3d 846 (Jan. 14, 2015)(8:2:0). Writing really can be.” There is no mention of reimbursement. for the Court, Judge Hervey first noted that the issue, And the trial court did not orally pronounce the amount while presented as whether ordering reimbursement for owed by Mercer to reimburse the county for her costs of confinement is a valid condition of community incarceration. Judge Alcala further concludes that a supervision in non-misdemeanor cases, is actually trial court may order a non-indigent defendant on whether the judge had the authority to order Mercer community supervision for a state-jail felony case to after revocation, as part of her sentence, to pay the reimburse a county for the costs of confinement, balance of her fine, costs, and reimbursement. The because under the statute, a judge may “impose any Court remanded to the court of appeals to consider this condition. . . the judge could impose on a defendant issue and the preservation issue raised by the State. placed on supervision for an offense other than a state Judge Johnson concurred to consider the jail felony.” Therefore, the court of appeals erred by legislative history behind Article 42.12 and Article holding that no statute authorized the trial court’s order 42.038(b) of the Code of Criminal Procedure. Article for reimbursement as a condition of community 42.12 allows a judge to impose “any condition” of supervision. Judge Alcala further notes that Mercer did community supervision that the judge could impose on not adequately make the argument on this issue and a defendant placed on supervision “for an offense other suggests that the court of appeals should consider than a state jail felony.” Article 42.038(b) requires a whether Mercer, by failing to adequately present the defendant placed on deferred adjudication for a argument in her appellate brief, has forfeited her misdemeanor serve a period of confinement in county complaint as to the inclusion of reimbursement for the jail as a condition of community supervision and costs of her prior county-jail confinement in the trial reimburse the county for that confinement. Judge court’s judgment sentencing her to prison. Johnson argues that, when considering the interplay between these two statutes, it is clear that the language Judge Meyers did not participate. is not clear and unambiguous. The Senate Research Center’s Bill Analysis determined that Article 42.038 authorized a court to charge an incarcerated misdemeanant a cost for confinement in a county jail. Nothing in the legislative history of Article 42.12 indicates any contemplation of ordering state-jail- felony defendants to pay reimbursement of costs for 35 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
VIII. APPEALS Moon to district court to be tried as an adult. The A. Jurisdiction juvenile court held a hearing on the motion at which 1. When the State files an interlocutory appeal, the State presented one witness, the investigating simply quoting TRAP Rule 25.2(a)(1) and Tex. officer, as well as Moon's prior juvenile history for Code Crim. Proc. Art. 44.01(a) is not a sufficient keying a car, his juvenile probation report, and his certification to confer jurisdiction on the court of physical, not mental, health report. Moon presented appeals. several family members as witnesses, who testified In two consolidated cases, David Redus was about his positive attributes and rough upbringing, as charged with intoxication manslaughter and Jose well as a forensic psychiatrist, who testified that Moon Zermeno was charged with felony DWI. In both cases, is immature but responds to therapy and would be best the trial judge declared that provisions of Chapter 724 treated in a juvenile facility. The juvenile court granted of the Texas Transportation Code are unconstitutional the State's motion and made the following findings: (1) insofar as they mandate a nonconsensual blood draw “that there is insufficient time to work with the juvenile when the blood is drawn without a warrant. The BAC in the juvenile system”; (2) “that the seriousness of the evidence was suppressed in both cases and the State offense, murder, makes it inappropriate to deal with in filed a notice of appeal that stated, this system”; (3) that “the respondent did have a prior Pursuant to TRAP Rule 25.2(a)(1) and Tex. criminal mischief probation”; (4) that the instant Code Crim. Proc. Art. 44.01(a) the State of Texas is offense “actually occurr[ed] at the time respondent was permitted to appeal an order that . . . (5) “grants a on probation which . . . makes the services and motion to suppress evidence, a confession or an resources of the juvenile system look to be admission, if jeopardy has not attached in this case and inadequate”; (5) “that because there is a correspondent if the prosecuting attorney certifies to the trial court [certified to stand trial in the adult criminal courts], that the appeal is not take[n] for the purpose of delay there is a logic in putting respondents, where they are a and that the evidence, confession, or admission is of year apart or two years apart, together”; and (6) that substantial importance in the case. “judicial economy, although not the driving factor, is The court of appeals held that this paragraph, an issue” because “sometimes it’s more convenient to which merely quotes the rule on certification, is not an hear the same matter, even though there are different appropriate certification and dismissed for lack of people involved, in the same court for the convenience jurisdiction. of the witnesses, the attorneys, and the system in The Court of Criminal Appeals affirmed. State general.” In the order waiving jurisdiction, the juvenile v. Redus, 445 S.W.3d 151 (Tex. Crim. App. Oct. 08, court simply quoted Texas Family Code Section 2014)(9:0). Writing for the unanimous Court, Judge 54.02(a). Moon was transferred to district court, Cochran first explained that the purpose of Article convicted as an adult, and sentenced to thirty years. 44.01 is to allow the State to file interlocutory appeals The court of appeals held that the evidence did not but at the same to time prevent the State from filing support the juvenile court's findings and vacated frivolous appeals. The elected prosecutor’s personal Moon's conviction, dismissed the criminal certification is necessary to confer jurisdiction on the proceedings, and declared the case to still be pending appellate court. In these cases, the elected district in juvenile court. attorney signed the notice of appeal but did not actually The Court of Criminal Appeals affirmed. State v. certify anything. Judge Cochran reasoned that a Moon, 451 S.W.3d 28 (Tex. Crim. App. Dec. 10, certification is a “formal assertion of some fact,” and 2014)(6:0:3). Writing for the majority, Judge Price simply quoting the statute does not assert anything. first explained that Texas statutes do not provide the This is not just a technicality but a promise by the applicable standard of review of a juvenile court's prosecutor that the appeal is necessary and not taken transfer order. Judge Price reasoned that the transfer for the purposes of delay. Therefore, because the proceeding remains civil in nature, and is governed by prosecutor failed to certify these appeals, the court of the Juvenile Justice Code, until the juvenile court appeals was correct to dismiss for want of jurisdiction. waives jurisdiction. At that hearing, the burden is on the State to prove by a preponderance of the evidence 2. A juvenile court that waives jurisdiction and that waiver is appropriate. Judge Price enacted a two transfers a juvenile to district court must list part test for appellate review: the court of appeals specific reasons for waiving jurisdiction in the should first review (1) the juvenile court’s specific order itself. findings of fact regarding the Section 54.02(f) factors The State filed a petition in juvenile court under “traditional sufficiency of the evidence review;” alleging that Cameron Moon had engaged in but (2) review the ultimate question under § delinquent conduct by committing an intentional or 54.02(a)(3), that is, whether “because of the knowing murder. The State also filed a motion for the seriousness of the offense alleged or the background of juvenile court to waive its jurisdiction and transfer the child the welfare of the community requires 36 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 criminal proceeding,” under the abuse of discretion "In a criminal case, what type of evidence would you standard. expect to hear period?" The jurors listed off factual, Judge Price then turned to whether the findings eyewitness, physical, gun, and expert testimony supported the waiver of jurisdiction by the juvenile evidence. The State objected again that defense court in this case. Family Code Section 54.02(h) counsel was committing the jury to requiring a certain requires juvenile courts to "show their work;" thus, type of proof. The judge told defense counsel, "Make appellate courts should only look to the juvenile court's clear to them in your question that your question is stated reasons for waiving jurisdiction, as required to predicated that there’re many different kinds of be explicitly set out in the juvenile transfer order. Here, evidence some of it which you can hear, some of which the juvenile court did not show its work, as the only you cannot hear." The court of appeals held that reason given was that Moon's offense was serious and Samaripas failed to preserve error because defense against another person. Though the trial court made counsel complied with the ruling, rephrased his findings that Moon is sophisticated and unlikely to questions, and neither discussed nor challenged the benefit from rehabilitation, it did not include these ruling’s effect on the scope of voir dire. facts in the order and they cannot be considered. The Court of Criminal Appeals reversed and Furthermore, even if they had been included in the remanded. Samaripas v. State, 454 S.W.3d 1 (Tex. order, the evidence was insufficient to support a Crim. App. Oct. 15, 2014)(6:1:2). Writing for the finding that Moon is sophisticated and mature since the majority, Judge Meyers noted that under Campbell v. State put on no evidence about that. State, 685 S.W.2d 23 (Tex. Crim. App. 1985), if Presiding Judge Keller dissented, joined by Judge one party asks a proper question of the venire, the other Hervey. Judge Keller stated that courts of appeals have party objects, and the court sustains the objection, then consistently held that juvenile transfer orders do not error is preserved. That happened in this case and need to be specific and she would stand by this Samaripas was not required to do anything further. The practice. Nothing in the Family Code requires juvenile fact that defense counsel participated in further courts to list facts upon which the transfer order was questioning or development did not cause error to be based. The statutory factors that juvenile courts forfeited. Judge Meyers held that the lower consider are not subject to individual sufficiency court erroneously applied general standards of reviews, and the juvenile court isn't required to find preservation of error, rather than the specific standard any one factor true. Considering the factors for preserving error on a question posed to the venire. individually, instead of in the collective, is problematic. Judge Keller believes that the statute was 2. The defendant preserved error on the failure to satisfied in this case because the juvenile court give a self-defense by deadly force instruction considered all of the factors and found that Moon was when he made a general self-defense instruction sophisticated and mature enough to be responsible for request, even though the evidence supported both his own conduct. self-defense and self-defense by deadly force instructions, because the defendant was only Judge Meyers dissented without an opinion. charged with using deadly force. Jose Bedolla picked up a prostitute, Janniful B. Preservation of Error Walton, for oral sex but claimed that he changed his 1. Defense counsel’s attempt to rephrase voir dire mind. She asked him to take her to her sister's house questions after the trial court sustained a and he agreed. Bedolla stated that Janniful attacked commitment question objection did not forfeit him with a knife while he was driving so he punched complaint regarding the limitation of questioning. her and told her to get out of the car. As she got out of The State charged David Samaripas with engaging the car, Bedolla says that he accidentally accelerated, in organized criminal activity. During voir dire, causing her to fall. He then ran her over as he drove Samaripas's attorney asked a potential juror “What away. Bedolla claimed that he did not intend to run type of evidence would you expect to hear? What type over Janniful and he drove away in a panic. Janniful of evidence do you expect the State of Texas to bring testified that Bedolla refused to let her out of the car you in an effort to prove to you beyond a reasonable when she became uncomfortable so she tried to reach doubt that someone committed an offense?” The State the key to turn off the car. Bedolla then hit her and she objected that this was an improper commitment cut him with her knife. She opened the door, fell out of question. The trial court first said that the attorney the car, and Bedolla drove over her. Bedolla was could ask about the juror's understanding of reasonable charged with knowingly, intentionally, or recklessly doubt as long as he didn't give the jury a definition but causing bodily injury with a deadly weapon and failure then sustained the objection. Defense counsel asked the to stop and render aid. He requested a necessity question again, the State objected, and the trial court defense and a self-defense instruction. The trial court sustained the objection. Defense counsel then asked, 37 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 gave the necessity instruction but refused to instruct considered is a category-two Marin right and cannot be the jury on self-defense. waived. Just Keasler explained that this right is not The court of appeals held that Bedolla failed to within category one of Marin, encompassing preserve error as to the jury instruction because he fundamental or absolute rights, because it can be didn't specify that his self-defense theory was self- waived through a plea bargain. Judge Keasler also defense with deadly force, and there was evidence that noted that the trial judge did not act willfully, but Bedolla used both deadly and non-deadly force. Thus, followed incorrect information. The right to have the Bedolla's jury instruction request was not specific, full range of punishment considered fits within according to the court of appeals, enough to alert the category two because a trial judge has an independent trial court that his requested instruction applied to duty to identify the correct range of punishment for the deadly force. defendant's offense and consider that entire range, The Court of Criminal Appeals reversed and whether or not the defendant requests it. It is not remanded. Bedolla v. State, 442 S.W.3d 313 (Tex. forfeitable because the right to have the full range of Crim. App. Sept. 17, 2014)(8:1:0). Writing for the punishment considered is more substantive than a Court, Judge Meyers looked to Bennett v. State, 235 procedural right which may be defaulted. Judge S.W.3d 241 (Tex. Crim. App. 2007), which held that Keasler distinguished this case from Hull v. State, 67 the defendant failed to preserve error when he asked S.W.3d 215 (Tex. Crim. App 2002), because it the trial judge for a self-defense instruction but then involved the preservation-of-error requirement as it complained on appeal that he had not been granted an related to conditions of probation, which are slightly instruction on defense of a third person or defense of different, and Hull was decided before it was clear to property. In that case, the Court held that the what extent a Marin analysis is necessary. defendant's request was not specific enough to put the Presiding Judge Keller dissented, arguing that trial court on notice. But Judge Meyers explains that Grado forfeited the right to complain on appeal by this case is distinguishable. Here, there is evidence that failing to object at trial. Grado's sentence fell within Bedolla used self-defense by punching Janniful and by the permitted range for his offense and was not illegal running her over with his car. However, the indictment or void. Judge Keller stated that the majority's holding makes it clear that he was not charged with punching conflicts with this Court's decision in Hull v. State, in her. Therefore, only one type of self-defense could which this Court held that the defendant did not apply. Bedolla preserved error and the Court remanded preserve error when he failed to object at trial to the for further consideration of the remaining issue. judge's zero-tolerance policy of always giving the Judge Womack concurred without an opinion. maximum sentence when revoking probation. Judge Keller also pointed out that Marin itself listed category 3. The right to have the full range of punishment two rights as the right to assistance of counsel and the considered is a category-two Marin right and is right to a jury trial, both of which are guaranteed by the not forfeitable by failing to object at trial. Sixth Amendment. The right to consideration of the Michael Grado pleaded guilty to possession of full range of punishment is not of the same status as amphetamine and was placed on probation. He later those two rights. Judge Keller concluded that Grado violated the terms of his probation and, at the start may obtain relief through an ineffective assistance of of the hearing on the motion to revoke, both parties counsel claim as his attorney failed to object. incorrectly informed the trial judge that the minimum punishment for possession of over 400 grams of Judge Womack and Judge Johnson concurred amphetamine is ten years. The range of punishment is without opinions. actually five to ninety-nine years. Grado then pleaded true to the allegations and was sentenced to ten years 4. When a trial judge orders a defendant to pay of confinement. He did not object. Grado appealed, restitution as a term of probation for stolen items complaining that the judge did not consider the full that the defendant was not charged with stealing, range of punishment. The court of appeals held that the defendant must object to preserve error. Grado could raise this issue for the first time on appeal Several items were stolen from the two and that he was harmed by the trial judge's reliance on complainants' trucks. The State charged Daisy misinformation. Gutierrez-Rodriguez with stealing two of those items, The Court of Criminal Appeals affirmed. Grado v. an iPod and a GPS. The complainants testified at trial State, 445 S.W.3d 736 (Tex. Crim. App. Oct. 15, as to the value of those two items and testified as to the 2014)(6:2:1). Writing for the majority, Judge Keasler value of the items that were stolen but never recovered. held that Grado did not have to object to preserve error As a condition of probation, the trial court ordered because a trial court's arbitrary refusal to consider the Gutierrez-Rodriguez to pay restitution for the GPS and full range of punishment constitutes a denial of due the iPod she was convicted of stealing and for the other process. The right to have the full punishment range items that were not recovered. She did not object. The 38 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 court of appeals held that the restitution requirement and ordered to pay $1,000 in attorney’s fees. Riles lacked any factual basis and deleted it from the argued that the trial court erred by ordering her to pay judgment. attorney’s fees when there was no evidence that she The Court of Criminal Appeals reversed. had the ability to pay them. The court of appeals Gutierrez-Rodriguez v. State, 444 S.W.3d 21 (Tex. affirmed and two weeks after that opinion, another bill Crim. App. Oct. 1, 2014)(5:4:0). Writing for the of costs was issued that reflected an additional $3,185 majority, Presiding Judge Keller noted that while a for attorney fees for the revocation hearing. sufficiency of the evidence claim need not be The Court of Criminal Appeals affirmed. Riles v. preserved at trial, probation cases are unique in that State, 452 S.W.3d 333 (Tex. Crim. App. Feb. 4, they involve a contractual relationship with the trial 2015) (8:3:1). Writing for the majority, Judge Meyers court. Any conditions of probation that are not objected held that Riles failed to preserve error because she had to are accepted as a term of the contract unless the knowledge of the fee and could have challenged the condition is intolerable. Judge Keller reasoned that sufficiency of the evidence supporting payment in a requiring restitution for stolen items that the defendant direct appeal from the initial order of deferred was not charged with stealing, but that belonged to the adjudication. Any issues that can be raised in a direct complainants and were stolen during the same appeal from the initial judgment must be raised, and transaction as the charged items, is not the type of failing to do so results in procedural default. Judge condition that the criminal justice system finds Meyers reasoned that the fact that Riles did not know intolerable or unconscionable. Because she did not the exact amount of attorney’s fees was irrelevant object and give the trial court an opportunity to because she was challenging the imposition of fees consider the complaint, Gutierrez-Rodriguez forfeited period, not the amount. Judge Meyers concluded that the issue. this opinion only applies to the original $1,000 fee and Judge Cochran concurred, joined by Judges not to the additional $3,185 imposed after the court of Meyers, Johnson, and Alcala. Judge Cochran expressed appeals’ decision. her concern that the majority's opinion was too broad Presiding Judge Keller concurred, joined by Judge and could confuse the bench and bar into thinking that Hervey, to point out that this case is distinguishable all claims involving restitution as a condition of from Mercer v. State, 451 S.W.3d 846 (Tex. Crim. probation are waived unless the defendant objects at App. Jan. 14, 2015), because in this case, the sentencing. Judge Cochran does not believe there is a attorney’s fees were listed in the bill of costs. If they difference between probation and prison sentencing for had not been, Riles would only be on notice that preservation purposes. But in this case, there was a attorney’s fees were a condition of probation, not an specific discussion about the amount of restitution and independent obligation under the judgment. what it was for and Gutierrez-Rodriguez explicitly Judge Alcala concurred to note that, although the agreed on the record as to the amount. Because she trial court did not provide Riles with the amount of agreed to the restitution, the trial judge agreed not to attorney’s fees she would be responsible for, it is sentence her to a heftier fine. reasonable to infer that she was aware of the amount because her trial counsel would have explained the 5. Defendant must appeal from initial order of forms she signed. Judge Alcala also believes even if deferred adjudication to challenge imposition of Riles’s argument was not procedurally forfeited, she attorney’s fees if the defendant knew attorney’s would lose on the merits in light of the record that fees would be imposed but did not know the exact shows sufficient evidence that the trial court did amount. consider her ability to pay. She signed the papers After Tawona Riles was charged with possession acknowledging her ability to pay. Judge Alcala noted of a controlled substance, the trial court found her that Riles can seek relief on the additional $3,185 indigent and appointed counsel. Riles pleaded guilty through a petition for mandamus. and was placed on community supervision. The signed Judge Johnson dissented. Once a defendant is plea papers informed Riles that she was responsible for declared indigent, she remains so until a change in court appointed attorney’s fees. She signed an financial circumstances is shown. The record does not application for community supervision that stated if reflect that Riles’s circumstances had changed, thus the she was placed on community supervision, she would trial court’s order was void and could be challenged at “reimburse the county in which the prosecution was any time. instituted for compensation paid to appointed counsel for defending [her] in the case.” She signed an Order of Deferred Adjudication that said she was responsible for attorney’s fees, but a bill of costs was not attached at that time. Two years later Riles’s community supervision was revoked, she was adjudicated guilty, 39 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
6. TRAP Rule 25.2(f) has no preservation certification may be amended only on leave requirement and the State may complain about an of the appellate court and on such terms as inaccurately amended certification for the first the court may prescribe. time on appeal. The State charged Robert Marsh with unlawful The court of appeals focused on the language in the possession of a firearm by a felon. He filed a pretrial rule that states “the amended notice or certification is motion to suppress evidence, which the trial court subject to being struck for cause on the motion of any denied. Marsh entered into a plea agreement with the party affected by the amended notice of State in which he pleaded nolo contendere. The plea certification.” Judge Meyers explained that this agreement included a waiver of appeal. The trial judge language simply means that any affected party may twice confirmed that Marsh understood he was waiving move to strike the amended certification. It does not his right to appeal. One month later, Marsh filed a contain any requirements or prohibitions for objecting motion for new trial and a motion to amend the trial to the certification. The court of appeals must compare court’s certification, claiming that he never waived his the certification with the record to determine whether a right to appeal the motion to suppress as part of the certification is defective. Judge Meyers noted that the plea agreement. The trial court never ruled on these State often does not see the record until the defendant motions and Marsh appealed to the court of files a brief, so it would be unreasonable to compel the appeals. The court of appeals held Marsh did have the State to weigh in on the accuracy of the certification right to appeal pretrial motions pursuant to Rule without first having the opportunity to examine the 25.2(a)(2)(A) and ordered the trial court to amend the record. defective certification to reflect this right. The trial Judge Meyers next explained that the court of court complied and Marsh then appealed his appeals had the right to order the trial court to amend conviction, arguing the trial court should have granted the defective certification but did not have the his motion to suppress. The State argued that as part of authority to prescribe exactly what the new his plea bargain, Marsh waived his right to appeal certification should say. The court of appeals explicitly altogether and that the amended certification of appeal set out that the certification was defective because was incorrect. The court of appeals held that the State’s Marsh had “the right to appeal the denial of his motion waiver argument was not valid because TRAP to suppress” and then ordered the court to correct this Rule 25.2 required the State to file a motion to strike defect within fifteen days. Judge Meyers explained that the trial court’s entry of the amended certification, this order was closer to a mandamus action than a rather than raise the argument for the first time on request for the trial court to review the record and appeal. submit a certification that comports with it.. The Court of Criminal Appeals vacated the court Ultimately, the Court held that Marsh waived his of appeals' decision and ordered the lower court to right to appeal. While a plea agreement normally does withdraw its opinion and dismiss the appeal. Marsh v. not preclude a defendant from appealing pretrial State, 444 S.W.3d 654 (Tex. Crim. App. Oct. 1, matters, the signed plea agreement explicitly set out 2014)(8:1:0). Writing for the Court, Judge Meyers that Marsh waived any right to appeal and the trial held that TRAP Rule 25.2(f) has no preservation judge twice confirmed this. Because Marsh waived his requirement and the State may complain about an right to appeal, the court of appeals never had inaccurately amended certification for the first time on jurisdiction. appeal. Rule 25.2(f) of the Texas Rules of Appellate Presiding Judge Keller concurred to disagree with Procedure states: the majority that the court of appeals held that the State failed to preserve its argument. She believes the court An amended notice of appeal or trial court’s of appeals addressed the substance of the State's claim. certification of the defendant’s right of Judge Keller lists two reasons for this. First, the court appeal correcting a defect or omission in an of appeals pointed out that the State had never objected earlier filed notice or certification, including to the proceedings when the original certification was a defect in the notification of the defendant’s amended and the State raised its complaint for the first appellate rights may be filed in the appellate time on appeal. Second, the court of appeals held that court in accordance with Rule 37.1, or at any the Rules of Appellate Procedure gave Marsh the right time before the appealing party’s brief is to appeal and the record showed no waiver of that filed if the court of appeals has not used right. Rule 37.1. The amended notice or certification is subject to being struck for cause on the motion of any party affected by the amended notice of certification. After the appealing party’s brief is filed, the notice or 40 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
7. The court of appeals failed to consider testimony was newly discovered evidence. The trial preservation of error when the defendant moved court denied the motion but the court of appeals to suppress blood evidence obtained without a reversed, holding that Carsner was entitled to a new warrant. trial. Police arrested Jonathan Leal was arrested for The Court of Criminal Appeals reversed and DWI and his blood was drawn without a warrant remanded. Carsner v. State, 444 S.W.3d 1 (Tex. because he had two prior DWI convictions. Leal filed a Crim. App. Sept. 24, 2014)(9:0). Writing for the motion to suppress evidence, challenging the legality unanimous Court, Presiding Judge Keller explained of the stop, and amended the motion challenging the that courts analyze a motion for new trial based upon warrantless blood draw on Fourth Amendment newly discovered evidence under the four-pronged grounds. The trial court held a hearing on the illegal Keeter test. The court of appeals only addressed the stop and denied the motion. The hearing did not pertain third and fourth prongs. It failed to answer (1) whether to the amended motion to suppress. Leal was convicted the ex-boyfriend’s testimony was newly discovered and the court of appeals reversed, holding the blood evidence unavailable or unknown at the time of trial or draw violated the Fourth Amendment. (2) whether Carsner’s failure to discover or obtain the The Court of Criminal Appeals, in a per curiam new evidence was not due to lack of due diligence. opinion, granted review on its own motion, vacated the Judge Keller concluded that because the court of judgment of the court of appeals, and remanded the appeals failed to address every issue raised, the case case. Leal v. State, 456 S.W.3d 567 (Tex. Crim. App. must be remanded for complete consideration of the March 25, 2015)(Per curiam). The Court noted that issues. the court of appeals did not address whether Leal preserved error and remanded to the lower court to 2. There is no specific time limit on the trial court’s consider that issue. Judge Alcala dissented without an power to rescind the granting of a motion for new opinion. trial. On March 7, 2013, the trial court revoked Tory C. Motions for New Trial Kirk’s deferred-adjudication probation and sentenced 1. The case was remanded because the court of him to eight years’ imprisonment for aggravated appeals failed to address each of the four prongs robbery. On March 20th, Kirk filed a “Motion for of the Keeter test for a motion for new trial based Commutation of Sentence,” in which he requested a upon newly discovered evidence. “time cut” and a new sentence of zero years. On March Laura Carsner’s mother filed a complaint with 25th, Kirk filed a notice of appeal. On May 17th, the CPS about Carsner’s care of her own daughter. Carsner trial court entered an order granting a new trial on then informed CPS that her stepfather had molested her punishment. On May 20th, the State filed a motion to as a child and asked that her daughter not be placed rescind that order and requested that the trial court rule with her mother and stepfather. Carsner found out that on the State’s motion no later than May 21st. The trial some of her daughter’s visits with Carsner’s mother court signed an order rescinding its order granting a and stepfather were unsupervised. At a hearing, motion for new trial on punishment on May 22nd, Carsner asked the judge to prevent these unsupervised seventy-six days after the imposition of sentence. Kirk visits and CPS recommended that they be allowed to then filed a motion to dismiss his appeal, arguing that continue. The next day, Carsner drove to her mother’s the trial court’s rescinding of the motion for new trial house and shot and killed both her mother and was untimely. The court of appeals agreed, holding stepfather. Carsner’s defense at trial was that she killed that the trial court lacked jurisdiction to rescind the them to prevent them from taking her gun and because order because it was entered more than seventy-five she feared for her daughter’s safety. During closing, days after the judgment of conviction had been the State argued that the jury should be skeptical of imposed. Carsner’s allegation of sexual abuse against her The Court of Criminal Appeals reversed. Kirk v. stepfather because she never mentioned it before CPS State, 454 S.W.3d 511 (Tex. Crim. App. Jan. 28, took her daughter. 2015)(9:1:0). Writing for the Court, Presiding Judge After the jury convicted her of capital murder, Keller first noted that the Court had previously held in Carsner filed a motion for new trial. At the hearing, she Awadelkariem v. State, 974 S.W.2d 721 (Tex. Crim. presented the testimony of an ex-boyfriend who stated App. 1998) that a trial court’s ability to rescind an that Carsner told her about the sexual abuse when they order granting a motion for new trial is limited to were dating thirty years ago. He testified that he had seventy-five days after the trial court’s judgment. This not come forward earlier because he didn’t know about holding was partly to prevent a split between civil and the trial until he saw it in the newspaper after-the-fact. criminal jurisprudence in Texas. Since Awadelkariem Carsner testified that she didn’t remember telling her was decided, the Texas Supreme Court has overruled ex-boyfriend about the abuse. She argued that this caselaw that imposed the seventy-five day time limit. 41 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
Judge Keller explained that the rules of appellate ineffective assistance of counsel due to an actual procedure do not prescribe a time limit for rescinding conflict of interest with his previous counsel. an order granting new trial in a criminal case and do Odelugo alleged that he gave trial counsel over not even address the trial court’s authority to rescind an $200,000 to go toward restitution payments, which order granting new trial. Therefore, the Court now were never made, and trial counsel did not refund overrules Awadelkariem to the extent that it held that Odelugo’s money or give him an accounting of what the power to rescind a motion for new trial was limited happened to the money. At a hearing on the motion, to seventy-five days. Judge Keller reasoned that Odelugo produced copies of three checks delivered to rescinding an order granting new trial outside the trial counsel totaling $280,000. The State stipulated seventy-five day window results in re-calculating that trial counsel had received a large amount of money appellate timetables; therefore, the rescinding order from Odelugo. However, when Odelugo’s counsel shall be treated as an appealable order and appellate sought to call trial counsel as a witness and question timetables will be calculated from the date of that him about the money, trial counsel’s attorney informed order. If the defendant previously filed a notice of the trial court that trial counsel would be invoking his appeal with respect to the trial court’s judgment of Fifth Amendment right to refuse to provide conviction, that notice shall be treated as a prematurely incriminating testimony against himself. Thus, filed notice of appeal with respect to the rescinding Odelugo’s counsel could only argue that an inference order, and the defendant will be entitled to appeal, not could be taken from trial counsel’s refusal to testify only the trial court’s decision to rescind the order that there was a conflict of interest. The trial court granting a new trial, but also any issue that he could denied the motion for new trial. The court of appeals have appealed if the motion for new trial had never reversed. been granted. The Court of Criminal Appeals reversed and Judge Alcala concurred to explain why she remanded. Odelugo v. State, 443 S.W.3d 131 (Tex. believes the Court’s holding signals the expansion of Crim. App. Sept. 17, 2014)(8:1:1). Writing for the the State’s avenues for challenging the propriety of an majority, Judge Price noted that it is the defendant’s order granting new trial. Until now, the State could burden to prove an actual conflict of interest with his challenge a new-trial order through an interlocutory attorney in an ineffective assistance of counsel claim. appeal. According to Judge Alcala, this holding gives Judge Price reasoned that the trial court was not the State the ability to seek relief through the trial unreasonable when it found that Odelugo had not met judge. Previously, when the State filed an interlocutory that burden. The trial court was free to reject appeal, the trial court would lose jurisdiction while the Odelugo’s account of events. The State’s stipulation, appeal was pending and would be bound by the on its own, does not necessarily compel the conclusion appellate court’s ruling. Now, the State can just ask the that counsel spent the money inconsistently with trial court to reconsider its ruling and the trial court Odelugo’s wishes; under a reasonable view of the retains plenary power over the case to do so. Judge record, the trial court might reasonably have believed Alcala concludes that trial courts must proceed with both that trial counsel received a “substantial amount caution when granting or denying a motion for new of money from” Odelugo and that counsel never went trial and must find a legal basis for granting a motion against his expressed wishes in the disposition of the and, if there is not one, must rescind the order. funds. As to trial counsel’s invoking the Fifth Amendment, Judge Price explained, even assuming the 3. Trial court did not abuse its discretion in denying trial court was allowed to consider counsel’s failure to the defendant’s motion for new trial when the testify as evidence that trial counsel acted criminally in defendant alleged a conflict of interest and trial handling Odelugo’s funds, it cannot necessarily be said counsel invoked his Fifth Amendment right not to that trial counsel used the funds in a manner testify at the hearing on motion for new trial. inconsistent with the Odelugo’s wishes. The trial court Aghaegbuna Odelugo pleaded guilty to the would have acted within its discretion to find that offense of engaging in organized criminal activity on counsel misappropriated his client’s funds, but it did the advice of his retained trial counsel. He agreed to not abuse its discretion to decide the opposite. Judge pay $600,000 in restitution. Over the next two years, Price also rejected the argument that trial counsel’s Odelugo filed several successful motions to reset the invocation of his own Fifth Amendment right was sentencing date as he attempted to resolve a related itself an advancement of trial counsel’s interests above federal proceeding. Finally, on March 5, 2012, the trial Odelugo’s interests. When trial counsel invoked this court entered a judgment of conviction and sentenced right, he was no longer representing Odelugo. the appellant to an eighteen-year term of Presiding Judge Keller concurred, acknowledging imprisonment. A few weeks later, Odelugo, now that while it looks bad when defense counsel asserts his represented by new counsel, filed a motion for new Fifth Amendment right against self-incrimination when trial in which he alleged that he had received asked about how he handled his client’s money, that 42 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 does not mean counsel had a conflict of interest with quickly. Overton’s defense team had hired and deposed his client. Judge Keller also pointed out that in a future a sodium intoxication expert, Dr. Moritz, but never habeas proceeding, the State could grant defense called him to testify or entered his findings into counsel immunity, which would override any asserted evidence. In his deposition, Dr. Moritz testified that the Fifth Amendment privilege. On the other hand, if the sodium levels involved in this case would likely have State is contemplating initiating a criminal prosecution been lethal very early on, even if Overton had rushed against counsel, then it likely has other means of him to the hospital as soon as symptoms presented. He ascertaining what happened to the funds, and it can also testified that the symptoms wouldn’t cause alarm turn over any evidence of potential exculpatory value until it was too late. The jury heard none of this. One to Odelugo or his new counsel if such evidence is of Overton’s attorneys explained that he did not discovered. recommend using the taped deposition because it Judge Meyers dissented because he believes the would be difficult to edit around all of the State’s trial judge could not reasonably reject Odelugo’s objections, and the defense did not request a assertions. Odelugo had checks to prove he gave his continuance to allow Dr. Moritz to travel and testify in attorney a lot of money and his attorney took the Fifth. person. Overton was convicted of capital murder for Trial counsel could have defended himself but chose failing to obtain medical care in a timely manner. not to. The trial judge did not have to weigh each In her application for writ of habeas corpus, side’s evidence as only Odelugo produced any. Overton raised ineffective assistance of counsel, actual innocence, and a Brady violation. The trial court held a IX. INEFFECTIVE ASSISTANCE OF COUNSEL hearing and recommended denying relief. At the A. Deficient performance—Counsel was hearing, two of Overton’s trial attorneys testified that ineffective for failing to present the testimony they did not review Dr. Moritz’s testimony and the of an expert on sodium intoxication whose decision not to use the testimony was completely testimony directly refuted the State’s expert ineffective. and theory that the defendant failed to seek The Court of Criminal Appeals granted relief, medical attention in a timely manner when her concluding that Overton was denied effective son fell ill from salt poisoning. assistance of counsel. Ex parte Overton, 444 S.W.3d A jury convicted Hannah Overton of capital 632 (Tex. Crim. App. Sept. 17, 2014)(7:3:2). Writing murder for the death of a four-year-old boy, A.B., who for the majority, Judge Meyers explained that the she was in the process of adopting, and sentenced to decision not to use Dr. Moritz’s testimony was not life without the possibility of parole. A.B. died from reasonable trial strategy. Dr. Moritz’s testimony would sodium intoxication. Overton explained that A.B. was have directly supported Applicant’s defense and “obsessed with food” and threw tantrums when he was refuted much of the State’s evidence. It was objectively told he had to wait to eat. On the day he died, he threw unreasonable for Overton’s attorneys not to present it several tantrums, was found in the pantry eating an due to editing difficulties and to not even request a “unknown substance,” and she twice gave him chili continuance. Judge Meyers further explained that there seasoned with Zatarain’s, which contains a high is a reasonable probability that counsels’ performance amount of salt, to calm him down. He then threw up affected the outcome of the trial because Dr. Moritz and became lethargic and cold. Overton thought he was not only refuted much of what Dr. Rotta testified to for coming down with the flu and gave him a warm bath. the State, but also established that he was better When his breathing became abnormal, she took him to informed on the subject of salt intoxication than Dr. an urgent care center. On the drive, A.B. stopped Rotta. His testimony that A.B. likely would have died breathing and Overton began CPR. He vomited again regardless of what Overton did goes directly to the but began breathing. He was unresponsive when he basis of the verdict. was admitted to the hospital and died the next day. Judge Cochran concurred, joined by Judge At trial, Dr. Alexandre Rotta, the pediatric Johnson and Judge Alcala, to explain the other critical-care specialist who treated A.B., testified about problems with the proceedings in this case. Overton’s the symptoms of sodium intoxication. He described Brady claim was based upon the lead prosecutor’s that within thirty minutes, the patient would have failure to turn over vomit samples from the hospital “pronounced thirst” and “try to seek water at any cost.” and the results of testing done on those samples. The Following this would be changes in consciousness and lead prosecutor admitted she was an alcoholic during behavior, difficulty breathing, loss of consciousness, the trial, could not remember most of the trial, and was seizures, and then cardiorespiratory arrest. Dr. Rotta later fired by the D.A. Overton argued this evidence stated that the seizures and loss of consciousness was crucial because it showed that A.B. poisoned would occur within one to one-and-a-half hours after himself by binge-eating salt, a result of his mental the salt intoxication. He believed A.B. might have disorder, and that Overton did not force feed it to him, survived if he had been taken to the hospital more the State’s alternate theory. Overton also claimed that 43 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 the State intentionally hid the medical records from not talk about the polygraph test. Bryant’s counsel did A.B.’s pediatrician that showed A.B.’s developmental not object. The State then called the sheriff and he problems. The second-chair prosecutor admitted that testified that he didn’t believe Janie’s story because she the lead prosecutor did not call A.B.’s pediatrician so failed the polygraph. The sheriff also testified that if that he couldn’t testify about developmental problems. Janie had passed the polygraph, he would have stopped A.B.’s foster mother also testified that the child had no questioning her. Again, Bryant’s counsel did not developmental problems when she had seen the object. Bryant filed an application for writ of habeas medical records that proved it. Judge Cochran also corpus alleging ineffective assistance of counsel. pointed out that Overton’s defense team was made up Bryant’s trial counsel submitted an affidavit admitting of several lawyers that didn’t communicate with each he had no strategy for failing to object to the polygraph other. Not only did they fail to call Dr. Moritz or enter evidence. The convicting court concluded that counsel his deposition into evidence, they also apparently told did have a trial strategy, which was to avoid drawing Overton that if she requested a lesser-included more attention to the polygraph evidence by objecting instruction, she could not appeal. to it. Presiding Judge Keller dissented, joined by Judge The Court of Criminal Appeals granted relief. Ex Keasler. Judge Keller believes it was reasonable for the parte Bryant, 448 S.W.3d 29 (Tex. Crim. App. Nov. trial attorneys to forego admitting the taped deposition 19, 2014)(7:1:1). Writing for the majority, Judge because it would have opened the door to unfavorable Hervey explained that it is not deficient as a matter of evidence. Overton had a different expert testify at trial law to allow the introduction of polygraph evidence. that A.B. ate the salt due to a mental disorder and the There may be some reasonable strategy for deciding symptoms appeared flu-like until it was too late. The not to object. In this case, however, Judge Hervey State’s cross-examination of Dr. Moritz revealed that reasoned that Bryant’s counsel was deficient. There Dr. Moritz did not review statements made by was no reason to avoid drawing attention to the Overton’s husband and children and Dr. Moritz polygraph because it was mentioned with three admitted that he would feel misled if there was a different witnesses. Judge Hervey further explained witness not provided to him who would testify that Bryant was prejudiced because the evidence of Overton’s children were punished by being forced to Bryant’s guilt was weak. Janie’s testimony was ingest salt. Overton’s other children stated in otherwise favorable to Bryant. The State relied on interviews that they were punished “with pepper.” copious amounts of polygraph evidence to rebut the Judge Keller believes it was reasonable for the defense two defensive theories that Bryant had an alibi. The to keep this evidence out at trial. State mentioned these tests during closing arguments. The prosecution noted that Bryant’s co-defendant B. Prejudice—Counsel’s failure to object to failed a polygraph when he said he didn’t know testimony about polygraph evidence prejudiced anything about the crime and Janie failed a polygraph the defendant when the State’s evidence of when she said Bryant wasn’t involved. With the guilt was otherwise weak and the State heavily sheriff’s testimony that he wouldn’t have pursued relied on the polygraph testimony. Bryant any further if Janie had passed the polygraph, A jury convicted Billy Bryant of capital murder the State urged the jury to believe what the police and the trial court sentenced him to life without the believed—the polygraph. The State’s only other possibility of parole. Bryant’s conviction was for a evidence was the new, changed statements of witnesses double homicide that occurred 19 years before the trial. who were children at the time of the crime. Therefore, After the case was re-opened, the police questioned there is a reasonable probability that, but for the Janie Musset, Bryant’s live-in girlfriend at the time of testimony about Janie’s polygraph, the jury could have the murders. Janie implicated Bryant after the police reached a different result. told her she failed a polygraph test. At trial, Janie was Presiding Judge Keller dissented because she called by the State and testified that her statement to believes there was compelling evidence of Bryant’s police wasn’t true and she just implicated Bryant guilt and the polygraph evidence wouldn’t change the because she was scared. The State asked Janie if she jury’s view of Janie’s testimony. Judge Keller noted had “proven her story” by taking a lie-detector test. that Bryant had motive to kill the victims, as they had Janie responded that the police didn’t show her the previously fought and one of the victims stole money results of the test. On cross, Janie said that she failed from Bryant. The victims’ children were eyewitnesses the polygraph test. Bryant’s counsel never objected. to the murders and testified that Bryant was involved. The State also called the Secret Service agent that There was evidence that Bryant owned a shotgun like administered Janie’s polygraph and he didn’t mention the one used in the murders. Bryant made threats to his the test or results directly. When the defense asked the co-defendant’s family that his co-defendant needed to agent how he knew “what the truth was” when Janie “keep his mouth shut.” As to Janie, she made a written was questioned, the State objected that the agent could statement implicating Bryant in the presence of two 44 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 police officers. The officers testified that they did not Godinich’s filing of a subsequent writ application on coerce her. Judge Keller also theorizes that the children April 22, 2013, a different attorney, A. Richard Ellis, of the victims didn’t speak up sooner because they was appointed to represent Gallo in a federal habeas were afraid of Bryant. In light of this evidence, Judge corpus proceeding. Ellis then filed a notice of Keller does not believe that the polygraph evidence appearance in this case and a motion to strike the prejudiced Bryant. subsequent writ Godinich had filed, claiming that Godinich had filed it without Gallo’s permission and Judge Womack concurred without an against his will. This Court remanded the subsequent opinion. writ to the trial court for factual development and recommendations. The trial court noted that Gallo X. HABEAS CORPUS claimed mental retardation during trial and A. Actual Innocence—Defendant who pleaded recommended the Court find that it is Godinich’s duty guilty to possession of a controlled substance, to continue representing Gallo until and unless relieved and the substance, once tested, turned out not of his duties by the court. to be illegal, may not claim actual innocence; The Court of Criminal Appeals dismissed Proper vehicle for relief is through a claim that Godinich’s subsequent writ application without plea was involuntary. prejudice. Ex parte Gallo, 448 S.W.3d 1 (Tex. Crim. Kendrick Mable pleaded guilty to possession of a App. Nov. 19, 2014)(9:0). Writing for the unanimous controlled substance, was sentenced to two years’ Court, Judge Price first explained that Godinich’s duty imprisonment, and did not appeal. Shortly after, the to represent Gallo ended after this Court denied the Houston Forensic Science Center finished testing the first writ and Godinich filed a motion in federal court seized substances and discovered that they did not for the appointment of counsel in federal habeas actually contain any illegal drugs. The State and the review. Sections 6(b-1) and 6(b-2) of Article 11.071— trial court both agreed that he is entitled to relief on the which require the convicting court, upon receiving basis of “actual innocence.” notice from this Court that a subsequent post- The Court of Criminal appeals granted relief on conviction habeas application will be allowed to the basis of an unknowing and involuntary plea. Ex proceed, to appoint and compensate counsel for the parte Mable, 443 S.W.3d 129 (Tex. Crim. App. Sept. indigent death-row inmate—would be redundant if 17, 2014)(8:1:0). Writing for the Court, Judge initial habeas counsel had a continuing duty to Womack explained that because Mable pleaded guilty represent his client even after the initial writ to possession of a controlled substance, it is possible he application was finally disposed of. Judge Price noted intended or attempted to possess a controlled that Godinich is permitted to represent Gallo pro bono substance. Therefore, he does not qualify for relief on the subsequent writ but is not permitted to do so based on actual innocence because actual innocence against Gallo’s will. The person who presents a habeas applies only in circumstances where the accused did petition on an applicant’s behalf must have the not actually commit the charged offense or any applicant’s informed consent to do so. Godinich argued possible lesser included offenses. But, Judge Womack that Gallo does not have the capacity to rationally reasoned, his plea was not knowing and voluntary decide to give up Godinich’s representation, but there because all parties incorrectly believed that Mable was is no suggestion in the record that Gallo is mentally ill in possession of illegal drugs. Therefore, Mable may or mentally retarded to the extent that he is incapable withdraw his plea. of considering Ellis’s advice to reject Godinich’s representation. No one has requested a competency Judge Keasler concurred without an opinion. evaluation. Judge Price concluded that as long as Ellis remains Gallo’s appointed federal habeas attorney, he B. Subsequent application for writ of habeas has an obligation to continue to represent Gallo all the corpus was dismissed without prejudice to way through the state executive clemency process. allow federal habeas counsel to take over Ellis is in a better position to gauge all potential claims pursuant to the applicant’s wishes. and Godinich’s present subsequent writ application A jury convicted Tomas Gallo of capital murder could interfere with Ellis’s later, better-informed and the trial court sentenced to death. Gallo was efforts. The Court dismissed the subsequent writ appointed counsel to file an application for writ of application without prejudice so Gallo may later file a habeas corpus, and the Court denied relief in January writ application that will be treated as though it is the of 2013. The same attorney appointed to represent first subsequent writ. Gallo in his original habeas corpus proceedings, Jerome Godinich, Jr., filed a subsequent application on Gallo’s behalf. However, between the Court’s denial of Gallo’s initial writ application in January, and 45 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
C. Laches Judge Meyers dissented to point out the resulting 1. Application barred by fifteen-year delay in filing inequity where the State, while limited by statutes of because applicant knew about avenues for relief limitations, is not required to show that it has not and could have inquired about the proper hindered the ability of the defendant’s ability to defend procedures to file an application. himself by seeking an indictment years after a crime Alberto Perez was convicted of murder in 1991. has occurred. Judge Meyers argues that defendants will He filed an application for writ of habeas corpus in unknowingly waive their rights simply by delaying. 2011. On initial remand, Perez’s appellate counsel Perez is illiterate and likely had an ineffective lawyer. stated he failed to inform Perez of the court of appeals’ Furthermore, the legislature has not imposed time decision in time to file a PDR but he did offer to help limits on filing applications for writs of habeas corpus Perez with the writ process in 1993. Perez responded in Texas Code of Criminal Procedure article 11.07. In by filing a grievance, in which Perez stated he knew of fact, the legislature has expanded habeas relief by his right to seek further review and was denied it by adding 11.073. Finally, Judge Meyers believes the counsel’s failure to communicate. The State filed an State could use this argument to ask for defendants’ affidavit claiming it was prejudiced “because of the appeals to be dismissed based upon the fact that certain passage of time as well as its inability to locate the evidence has disappeared or was destroyed after the murder weapon, key eyewitnesses to the shooting and conviction and, therefore, the State cannot retry the its reasonable expectation that the faded memories of case. the witnesses will hamper the State’s ability to present a case. The lead investigator . . . is elderly and retired, 2. A trial court may sua sponte consider whether and is now in his eighties.” The Court of Criminal laches should bar an applicant’s claim but the Appeals issued an opinion adopting the Texas applicant must be given an opportunity to explain common-law doctrine of laches as the proper standard a delay in filing. in post-conviction writ proceedings and remanded the Al Letroy Smith waited over ten years to file an case to the trial court for findings in light of this application for writ of habeas corpus claiming opinion. The trial court recommended denying relief. ineffective assistance of counsel. The State’s answer The Court of Criminal Appeals denied relief. Ex did not plead laches. The Court of Criminal Appeals parte Perez, 445 S.W.3d 719 (Tex. Crim. App. Oct. remanded to the trial court. After considering appellate 8, 2014)(8:1). Writing for the majority, Judge Alcala counsel’s affidavit, in which he stated that he had no explained that in the previous Perez opinion, the Court personal recollection of the case and that his file did held that the common-law doctrine of laches applies to not contain a notice of appeal, the habeas judge found applications for writs of habeas corpus. Thus, laches that appellate counsel failed to invoke the court of applies when there is (1) unreasonable delay by the appeals’ jurisdiction and was ineffective. The judge opposing party, and (2) prejudice resulting from the recommended Smith be permitted to file an out-of-time delay. The State is no longer required to demonstrate a appeal and the State did not object. On its own motion, particularized form of prejudice to its ability to respond the Court of Criminal Appeals ordered Smith’s to the application. Under this standard, courts can application be filed and set to determine “whether the consider “anything that places the State in a less State must plead laches for a court to consider it in favorable position, including prejudice to the State’s determining whether to grant equitable relief.” ability to retry a defendant.” In this case, Judge Alcala The Court held that a court may consider sua noted Perez knew he could seek review of his sponte whether laches should bar an applicant’s claim conviction as early as 1993. Perez claimed he lacked and remanded to the habeas court to give Smith an access to the record but he knew he could purchase it. opportunity to explain his delay and for the entry of Furthermore, lacking access to the record is not the findings of fact and conclusions of law. Ex parte same as lacking awareness of the right to further Smith, 444 S.W.3d 661 (Tex. Crim. App. Oct. 1, review. Judge Alcala further explained that Perez’s 2014)(6:1:2). Writing for the majority, Judge Keasler claim that he doesn’t understand the legal process is explained that protracted habeas corpus litigation is undercut by his various pro se filings. He took no steps costly, defers convictions’ finality, undermines to do anything between 1997 and 2011. Perez claimed confidence in our system, and delays the orderly he didn’t know anything about writs of habeas corpus administration of justice. At some point, a conviction or the Court of Criminal Appeals until 2010 but courts must be final. Reviewing applications requires a can expect an applicant to make diligent inquiries significant amount of time and judicial effort, both during a fifteen year period. Judge Alcala concluded from this Court and the habeas courts. Judge Keasler that Perez’s delay was unreasonable and unjustified reasoned that a court may consider laches sua sponte and prejudiced the State due to faded memories and a because applications for writ of habeas corpus lack of available evidence. implicate values that may stretch beyond the concerns of the parties. Judge Keasler cautioned that not all writ 46 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 applications should be subjected to such scrutiny. 3. The doctrine of laches applies to Article 11.072 While a bright line rule would be inappropriate, habeas and the State is not required to raise laches in the courts should act “sparingly, questioning only those trial court. applications demonstrating an excessive delay that Richard Bowman was convicted of driving while undermines or obstructs the principles and virtues the intoxicated in 2005. In 2013, he filed a habeas criminal-justice system promotes.” Smith argued that application under Article 11.072 attacking that prosecutors may choose to omit a laches argument to conviction. The trial court denied relief, and he “see that justice is done,” but Judge Keasler responded appealed. The court of appeals reversed, finding that that the prosecutor’s duty to seek justice does not counsel was ineffective. The court of appeals rejected conflict with the court’s duty to promote society’s the State’s laches argument, finding laches inapplicable interest in the finality of convictions. Judge Keasler to Art. 11.072, and concluded that the State’s also dismissed Smith’s argument that Texas Rule of contention was waived since it was not raised in the Civil Procedure 94 should govern habeas proceedings. trial court. The State argued that it was not required to The Court previously held and still upholds that habeas raise laches in the trial court in order for it to be corpus is primarily a criminal proceeding and the addressed on appeal, and that laches applies to Art. Texas Rules of Civil Procedure do not ordinarily apply. 11.072. Though laches may ultimately bar relief, an The Court of Criminal Appeals granted the State’s applicant must be given the opportunity to explain the petition for discretionary review, vacated the judgment delay. Courts should consider, among other things, (1) of the court of appeals, and remanded this case to the the length of the applicant’s delay in requesting court of appeals. Ex parte Bowman, 447 S.W.3d 887 equitable relief, (2) the reasons for the delay, (3) the (Tex. Crim. App. Nov. 19, 2014) (Per curiam). In a degree and type of prejudice borne by the State per curiam opinion, the Court held that that laches resulting from the delay, and (4) whether the delay applies to Art. 11.072 and the State’s laches argument may be excused. Smith apparently knew about his right was not waived. The court of appeals was correct that to appeal his conviction and it appears that he slept on laches is a question of fact and, in Art. 11.072 cases, his rights. However, because the record is silent on the the trial judge is the sole finder of fact. But here, there circumstances that may excuse this substantial delay, is nothing in the trial record, other than the length of Judge Keasler reasoned that Smith must be given an the delay, from which to determine whether laches has opportunity to explain his delayed application. The been proved. Therefore, the Court remanded the case Court remanded to the habeas court to make findings for further consideration. of fact and conclusions of law consistent with this opinion. D. Article 11.073 Judge Meyers dissented to argue that the 1. Article 11.073 applies to situation where medical majority’s ruling is unfair to applicants. Without a examiner who testified at trial changed her lawyer, there is no reason an applicant should know the opinion after gaining more experience. time limit for filing an application for a writ of habeas Neal Robbins was convicted in 1999 of the capital corpus. Judge Meyers criticized the majority’s failure murder of his girlfriend’s seventeen-month-old to include guidelines as to when a court may sua daughter, Tristen Rivet, and sentenced to life sponte consider laches. Judge Meyers believes the imprisonment. Shortly before Tristen’s death, her State should be required to explain why it did not plead mother, neighbor, and babysitter began to suspect that laches. Robbins was hurting Tristen. On the morning that she died, Tristen’s mother, Barbara, left Tristen at home Judge Womack concurred without an with Robbins. Robbins called Barbara later that opinion. Judge Johnson dissented an opinion. afternoon to ask her to come home because he had things to do. Barbara stated that Robbins sounded [Commentary: The holding of the case indicates a nervous and excited. When Barbara got home, Robbins trial court “may” consider laches on its own motion. said Tristen was taking a nap. Robbins left and Barbara However, subsequent to this holding, the Court has checked on Tristen a few hours later. Tristen was cold remanded on a number of occasions for consideration and not breathing. Robbins’s mother and a neighbor of laches in light of this case. Thus, the effect of this attempted to perform CPR on Tristen in the front yard case seems to be that trial courts should consider laches while waiting on the ambulance. When it arrived, an sua sponte (regardless of whether laches would EMT told the two women that they were performing ultimately bar habeas relief) even though they are not CPR too forcefully for a small child. Tristen was taken necessarily required to do so under the explicit holding to the hospital, where a doctor announced that she had of this case.] been dead for some time. Dr. Patricia Moore performed the autopsy on Tristen.
47 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2
At trial, Dr. Moore testified that the cause of and he did not see any physical findings that would Tristen’s death was asphyxia due to compression of the support any particular conclusion as to the cause of chest and abdomen and that the manner of death was death. The judge then asked pathologist Linda Norton homicide. Moore ruled out CPR as the cause of death to conduct an independent forensic examination and because the injuries to Tristen’s back were inconsistent she determined the death was a homicide by with the administration of adult CPR and the injury to asphyxiation, rather than compression. The trial judge the kidney was deep down, requiring a lot of force. On amended the death certificate to reflect this. The judge cross-examination, Moore testified that she was conducted an evidentiary hearing, considered assuming that the CPR took place on the floor, so arguments, and recommended that Robbins get a new defense counsel asked her to imagine that it took place trial, even though the State had changed its on a floor with sticks and rocks scattered around and recommendation to relief should be denied. The Court that the adults performing CPR were doing so as if of Criminal Appeals denied relief. Robbins filed a Tristen was a strong adult and were applying heavy subsequent writ following the enactment of Code of force on her chest and abdomen. Moore responded that Criminal Procedure Article 11.073. such circumstances could explain the bruises on the The Court of Criminal Appeals granted Robbins a back but not the rib injury. Moore also asserted that she new trial. Ex parte Robbins, ___ S.W.3d ___; 2014 was not completely excluding other reasonable WL 6751684 (Tex. Crim. App. Nov. 26, hypothesis by which Tristen died. Still, it was her 2014)(5:3:4). Writing for the majority, Judge Womack opinion that Tristen was asphyxiated, and she believed explained that Article 11.073 provides a new legal that beyond a reasonable doubt. basis for habeas relief in the small number of cases The defense called Dr. Robert Bux, the chief where the applicant can show by the preponderance of medical examiner for Bexar County. Bux testified that the evidence that he or she would not have been the cause of Tristen’s death could not be determined convicted if the newly available scientific evidence had and that no anatomical reason demonstrated during the been presented at trial. In this case, Robbins alleged autopsy could have led to a specific cause of her death. prima facie facts in his application sufficient to invoke When asked about the role of CPR in the injuries, Bux the new law: there is arguably relevant scientific asserted that the bruises on Tristen’s back were evidence that contradicts scientific evidence relied on consistent with the administration of CPR while the by the state at trial, and that evidence was not available child was lying on a lawn that was not prepared for that at trial because Moore re-evaluated her opinion after purpose. Similarly, Bux testified that the rib and trial. Although similar information was presented by a kidney injuries could have been caused by frontal defense expert at trial, Dr. Bux, the evidence at issue is pressure during CPR, although he admitted that he had the State’s evidence regarding cause of death, which not personally seen a kidney injury due to such has been contradicted. Judge Womack explained that occurrence. Article 11.073 requires the Court to consider “whether In 2007, the Harris County Medical Examiner’s the scientific knowledge or method on which the Office was asked to re-evaluate Dr. Moore’s findings. relevant scientific evidence is based has changed.” The The deputy chief medical examiner concluded that scientific method used in this case did not change but Moore’s observations during the autopsy did not the scientific knowledge did. Judge Womack looked to support a finding that the death resulted from the Supreme Court’s factors for what constitutes asphyxiation by compression or from any other “scientific knowledge” from Daubert: (1) whether it specific cause. Consequently, Wolf amended Tristen’s has been tested; (2) whether it has been subjected to autopsy report to reflect that both the cause and manner peer review and publication; (3) the known or potential of death was “undetermined.” Moore’s supervisor at rate of error; and (4) the degree of acceptance within the time of Tristen’s death, who agreed with Moore’s the scientific community. original opinion, was also asked to evaluate Moore’s Dr. Moore’s original opinion on the cause of findings and concluded that the manner of death is death was admissible scientific evidence, based on undetermined. Moore herself re-evaluated the case and inferences derived from the scientific method. Her new stated: “Given my review of all the material from the opinion that the cause of death is “undetermined,” is case file and having had more experience in the field of also scientific knowledge—an inference or assertion forensic pathology, I now feel that an opinion for a supported by appropriate validation based on the cause and manner of death of undetermined, scientific method. Judge Womack rejected the State’s undetermined is best for this case.” argument that this knowledge was available at trial Robbins filed an application for writ of habeas through Dr. Bux because the relevant evidence is the corpus in 2007 and the State recommended granting a State’s evidence on Tristen’s cause of death, which has new trial. The trial court appointed Dr. Thomas changed. Moore’s re-evaluated opinion on cause of Wheeler, the Chairman of the Department of Pathology death contradicts the evidence relied on by the State at at Baylor College of Medicine, to evaluate the case, trial and was not available at that time because she re- 48 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 evaluated years after the trial ended. Judge Womack scientific witnesses. At the time of the original trial, concluded that this new evidence would have been Dr. Moore had only 18 months of experience as an admissible at trial and the result likely would have associate medical examiner and had been cited for been different because Moore’s original testimony was defective and improper work. After gaining eight more the only evidence presented claiming conclusively that years of experience, she testified that she believed that Tristen died as the result of a homicide. the cause of the child’s death could not be determined. Judge Cochran concurred, joined by Judge Price The legislature has made it clear that advances in DNA and Judge Johnson, to disagree with the State’s technology may be the basis for reexamining argument that the plain language and legislative history convictions. Advances and changes in other forms of of Article 11.073 “demonstrate a legislative intent to scientific knowledge, and thus in scientific testimony provide a remedy when there is a generally accepted from individuals, should also be available as bases for scientific advance or breakthrough in a discipline of re-examination of convictions. forensic science,” rather than a change in the State’s Presiding Judge Keller dissented, joined by Judge scientific expert’s opinion. Judge Cochran recapped the Hervey, to argue that 11.073 only applies when there recent push by the Texas Legislature for conviction has been a change in the relevant body of scientific integrity, such as setting up a procedure for post- knowledge or in the accepted method by which a conviction DNA testing and forming the Texas particular scientific inquiry is conducted. In Subsection Criminal Justice Integrity Unit. Judge Cochran also (d), the legislature stated “the court shall consider discussed the Supreme Court’s concern with bad whether the scientific knowledge or method on which scientists in Melendez–Diaz v. Massachusetts, 557 the relevant scientific evidence is based has U.S. 305 (2009) (citing Garrett & Neufeld, 19 Invalid changed….” Judge Keller believes this refers to Forensic Science Testimony and Wrongful general science, not an expert’s opinion. Judge Keller Convictions, 95 VA. L. REV. 1, 14 (2009)), in which disagrees with Judge Keasler that Robbins is barred the Supreme Court noted that “one study of cases in from filing this application because the science has not which exonerating evidence resulted in the overturning changed since his prior application because 11.073 did of criminal convictions concluded that invalid forensic not exist when Robbins filed his previous application. testimony contributed to the convictions in 60% of the Judge Meyers dissented because he believes cases.” Texas responded by attempting to pass two 11.073 is an intrusion on the Court’s authority because bills that only addressed bad science, not bad scientists. it is not based on any constitutional provision against Both failed. But Article 11.073 finally passed after this which to measure particular facts to determine whether Court denied relief in the initial Robbins application to grant relief. Judge Meyers argues that the legislature and then granted relief in Ex parte Henderson, 384 should leave non-constitutional grounds for relief to S.W.3d 833 (Tex. Crim. App. 2012) when the medical other agencies, such as the Board of Pardons and examiner changed his opinion. In both of those cases, Paroles. Because Judge Meyers does not believe this the dissents stated that current Texas law lacked clarity Court is the appropriate avenue for relief and in dealing with instances in which critical scientific Robbins’s present application does not allege any new evidence supporting the conviction–either the scientific facts or rulings on constitutional law, he would deny field itself or the expert’s original opinion–had been relief. discredited. Judge Cochran pointed out that the bill Judge Keasler dissented because he believes the analysis to 11.073, when it finally passed, specifically majority’s reading of 11.073 produces an absurd result. described the initial Robbins case. Judge Cochran Judge Keasler believes that “scientific method” means concluded that the definition of “scientific knowledge” the scientific methodology used in a particular area of includes both general scientific advances and specific scientific study. Judge Keasler also believes the scientific testimony. Wrongful convictions have been majority erred by using the Daubert definition of based on both a “bad” forensic science discipline, e.g., “scientific knowledge” when there is no evidence that bullet-lead analysis, and “bad” scientific testimony the legislature intended such a definition. He would within a good forensic discipline. expressly find the term ambiguous because the term’s Judge Johnson also concurred to point out that common understanding and usage offers little guidance 11.073 applies to relevant scientific evidence. or limitations and would hold that scientific knowledge “Scientific evidence” is presented by scientists, and the for purposes of this article refers to the collective content of that evidence depends on the knowledge of knowledge within a field of study, not an individual’s that particular witness about the science at issue. opinion. Judge Keasler also pointed out that 11.073’s Therefore, “bad science” and “bad scientists” are predecessors, which did not pass but were inseparable. Judge Johnson argues that because the substantively identical, focused only on bad science. In evidence presented at trial is limited by the personal a committee hearing, Senator Whitmire referenced new knowledge of that witness, logically the statute must be science, not bad scientists. In support of the companion intended to address the personal knowledge of bill, Representative Turner discussed junk science and 49 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 scientific advancements. Judge Keasler concludes that that, had he been aware at the time of trial of the even if the Court accepted that Dr. Moore’s changed evidence now included in this habeas application, he individual opinion meets the definition of scientific would have sought to punish applicant for second- knowledge or method, that change would not satisfy degree murder as opposed to first-degree murder. section (d) because it occurred after Robbins’s trial and Presiding Judge Keller dissented, joined by Judge before Robbins’s original application, not after. When Keasler and Judge Hervey. Judge Keller disagreed with a court is considering a previously considered the Court’s decision to act in accordance with the application (or any subsequent application), the change prosecutor’s recommendation without articulating a must occur after the last application was filed. rationale for granting relief. She points out that Tiede failed to establish sudden passion, which cannot be [Commentary: The State filed a Motion for solely the result of former provocation. Tiede didn’t Rehearing on December 18, 2014. That motion is allege that any of the decedent’s domineering behavior currently pending before the Court at the time of the was occurring when he shot her. Tiede also cannot submission of this paper. Make of that what you will.] establish under 11.073 any new scientific evidence that, had the scientific evidence been presented at trial, 2. Applicant was entitled to a new punishment he would not have been convicted, because the hearing when the State and the habeas court allegedly new evidence does not in any way undermine agreed that newly available scientific evidence the jury’s verdict of guilt. As to false evidence, Judge contradicted the verdict. Keller argues that Tiede failed to preserve error. He Bernhardt “Bernie” Tiede alleged there is newly should have objected at trial. Judge Keller sees nothing available relevant scientific evidence that contradicts in the expert testimony or documentation that suggests the scientific evidence relied upon by the State at trial, that Tiede had suppressed his memory of these events and that false evidence was presented at trial thus (if they happened). The expert actually testified that undermining confidence in the verdict at sentencing. Tiede never came forward about the sexual abuse The trial court and the State recommend that Tiede be because he wanted to protect his uncle, not that he granted a new punishment hearing. In a per curiam didn’t remember. opinion, the Court of Criminal Appeals granted the Judge Keller further contends that there was no new punishment hearing. Ex parte Tiede, 448 S.W.3d due process violation in this case because Tiede 456 (Tex. Crim. App. Nov. 26, 2014) (Per curiam). himself failed to disclose the information about his Judge Alcala concurred, joined by Judges Price, mental health. Dr. Gripon’s testimony was not false Johnson, and Cochran. She provided the facts: Tiede because he based his opinion on the information was convicted of first-degree murder and sentenced to known to him. Judge Keller also finds it unlikely that life imprisonment. Tiede admitted that the decedent this evidence would have changed the outcome was very possessive of and mean to him and he shot because the jury heard that Tiede planned on killing the her and hid her body in a freezer. During the decedent for months, spent her money, and took up punishment phase of trial, Dr. Mears testified about the with another elderly widow after her death. Finally, causes of dissociation, such as childhood trauma, but Judge Keller notes that there is no evidence that Tiede was not permitted to testify that Tiede was in a was abused. His uncle was not called to testify, no one dissociative state when he shot the decedent. The else claimed to be a victim of the uncle, and no one State’s expert, Dr. Gripon, testified that Tiede had an came forward to support Tiede’s allegations. The unremarkable mental-health history that would not decedent’s family also claims that they were not support the dissociative-state theory. The jury was notified about the habeas proceedings, though the instructed on sudden passion but rejected it. prosecutor stated that he did so. Judge Keller would Now, in light of the habeas record that shows that deny relief or, alternatively, she would remand for a Gripon’s testimony was false that Tiede had an more extensive live evidentiary hearing. At the very unremarkable mental-health history, the State agrees least, she would remand for the habeas court to that Tiede caused the decedent’s death out of sudden determine whether the family was notified of the passion arising from an adequate cause. Dr. Gripon habeas hearing and to address any subsequent issues was not aware at the time of trial of information that might arise from that determination. indicating that Tiede was a victim of childhood sexual abuse, nor of the abusive nature of the decedent. While E. Any supplemental evidence for an 11.07 writ this may not seem like newly discovered evidence, application must be filed with the court of Judge Alcala pointed out that the habeas judge relied conviction or the Court of Criminal Appeals on several experts who testified that Tiede suppressed will not consider it. these negative childhood memories. The false evidence Elmer Whisenant was convicted of six counts of provided by Dr. Gripon was material to punishment. aggravated assault, one count of violation of a The State’s attorney provided an affidavit averring protective order, one count of burglary of a building, 50 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 one count of retaliation, two counts of aggravated extraordinary circumstances. The Court gave sexual assault, and two counts of obstruction. He was Whisenant thirty days to file any supplemental sentenced to imprisonment for seven terms of twenty evidence with the court of conviction. years, four terms of ten years, and two terms of seventy years. He filed an application for writ of habeas corpus F. Phillips v. State is overruled; Applicant and subsequently filed a motion with the Court of forfeited his statute of limitations claim by Criminal Appeals, asking for remand of the habeas agreeing to waive the defense in a plea bargain application to the convicting court for additional fact to avoid the filing of a more serious charge. development by way of an evidentiary hearing. In his Eric Heilman, a Beaumont police officer, pleaded motion, he explained: guilty to misdemeanor tampering with a governmental record. In exchange, the State agreed to forgo For strategic reasons, Applicant only filed the indictment on the state-jail felony offense and not writ of habeas corpus and did not file the oppose early termination of his one-year deferred- declarations/affidavits or additional evidence adjudication sentence after six months. Tampering with with the writ. Counsel knew credibility issues a governmental record is a Class A misdemeanor and would be critical in several grounds for the carries only a two-year statute of limitations. Heilman writ, so Counsel firmly believing Applicant pleaded guilty the statute of limitations had run on his had plead facts in his writ if true, would misdemeanor offense, but he signed a waiver of the entitle Applicant to relief, was trying to avoid statute of limitations (also after the statute of the factual issues being decided solely on limitations had run). After six months, the trial court affidavits/declarations. If the terminated Heilman’s deferred adjudication and declarations/affidavits were filed with the dismissed the information. He subsequently filed an writ, Counsel felt the likelihood of not application for writ of habeas corpus, claiming a receiving a live hearing would increase collateral consequence of inability to obtain a peace greatly. Counsel was waiting for the order officer’s license, and alleged an involuntary plea and designating issues before filing Applicant’s ineffective assistance of counsel. He further sought evidence. Counsel understands and realizes findings of fact and conclusions of law that the original that in ground one, Applicant is claiming to trial court lacked jurisdiction under Phillips v. State, file the affidavits of the children 362 S.W.3d 606 (Tex. Crim. App. 2011), to accept his contemporaneously with the writ. However, plea and sentence him after the statute of limitations that was oversight on Counsel’s part, not expired. The habeas judge vacated the trial court’s changing that ground to delete that portion proceedings against Heilman, concluding it lacked when the strategic decision to not include the jurisdiction. The court of appeals affirmed. affidavits/declarations with the filing of the The Court of Criminal Appeals reversed and writ. remanded. Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. Mar. 18, 2015)(6:3:3). Writing for the The Court of Criminal Appeals refused to remand his majority, Judge Keasler first noted that the Court application. Ex parte Whisenant, 443 S.W.3d 930 originally placed the statute-of-limitations defense (Tex. Crim. App. Oct. 15, 2014) (Per curiam). within Marin’s third category of rights, namely as a Writing for an unspecified majority, Judge Per Curiam right subject to forfeiture through inaction. In Marin v. explained that an 11.07 writ application should be State, the Court constructed a three-part framework to substantially completed before the convicting court categorize the rights of our criminal-justice system: (1) enters its recommended findings of fact to be “absolute requirements and prohibitions”; (2) “rights of transmitted to the Court of Criminal Appeals. litigants which must be implemented by the system Evidentiary materials should not ordinarily be unless expressly waived”; and (3) “rights of litigants submitted directly to the Court of Criminal Appeals, which are to be implemented upon request.” In either before or after the convicting court has Phillips, the Court held that a factual limitations transmitted the record, because that prevents the defense is a category-three Marin right, but a pure-law convicting court from fulfilling its institutional limitations defense is a category-one Marin right, as function to develop the facts and make its jurisdictional defects and can be raised for the first recommendations. Even if an application has already time on appeal. In Phillips, the Court explained that a been transferred to the Court of Criminal Appeals, an facially neutral law that revived a previously time- applicant who wishes the convicting court and the barred offense through retroactive judicial application CCA to consider supplemental evidence should file violated the Ex Post Facto Clause. Judge Keasler then these materials in the convicting court in the county of explained that the Court overruled Phillips because the conviction. If they are filed only with the CCA, the distinction between “fact” and “law” limitations Court will not consider them absent compelling and 51 Court of Criminal Appeals Update: Significant Decisions from September 2014 to May 2015 Chapter 2 defenses untenable, at least in circumstances lacking defendant to show he is not guilty of a crime and the any explicitly ex post facto legislation. statute of limitations has nothing to do with guilt. The According to Judge Keasler, prosecution in this Court should make the statute of limitations an case would be permanently barred under Phillips even absolute requirement that is the State’s burden to though Heilman had agreed to waive that defense to prove. Judge Meyers would remand this case to the forgo a more serious charge. A limitations defense is court of appeals to be examined in light of Yount v. forfeitable because it has little to do with truth-finding State, 853 S.W.2d 6 (Tex. Crim. App. 1993), which and a defendant should be able to waive the defense to held that a defendant who requested a jury instruction gain time for plea bargaining. Yet, under Phillips, a on a lesser-included offense could not later complain defendant could reap the benefits of an illegal, lighter that his conviction of that offense was barred by sentence, and then turn around and attack the legality limitations. of that sentence when it serves his interest to do so. Judge Johnson dissented because, while she Furthermore, Judge Keasler explained that Heilman agrees that Heilman is not entitled to relief, she himself created the situation he is in by accepted the disagreed with the majority’s decision to overrule lesser offense. Judge Keasler concluded that in Phillips. According to Judge Johnson, there was no circumstances lacking any legislative ex post facto way for the State to resurrect the charges in Phillips violation, especially in a good-faith, arm’s length plea because the statute of limitations had long run out and agreement, both types of limitations defenses are there were no other offenses that had arisen from the Marin category-three forfeitable rights. As there was same conduct with which to charge him. The problem no ex post facto violation here, the trial court had was incurable and Phillips was entitled to prevail on jurisdiction to accept Heilman’s plea and Heilman had his ex post facto claim as a matter of law. Judge the right to forfeit his limitations defense as part of that Johnson explained that if the pleading is reparable, plea. then the statute of limitations is a factual affirmative Judge Newell concurred, joined by Presiding defense on which the defendant bears the burden of Judge Keller and Judge Hervey, to point out why proof. In this case, another offense arose from the Phillips could not stand. Judge Newell explained that conduct that was not time-barred and the State could the Court in Phillips distinguished between fact and have charged Heilman with a felony if he did not want law limitations defenses because a pleading that gives to waive his statute-of-limitations claim. Thus, rise to a limitations factual defense is “reparable,” Phillips does not apply to this case and need not be while a pleading that gives rise to a statute-of- overruled. Because Phillips is distinguishable, Judge limitations bar is not. “Reparable” means capable of Johnson dissents. being mended, but the pleading in this case was not Judge Alcala dissented, also arguing that it is reparable. Heilman had an absolute legal right to unnecessary to overrule Phillips. Judge Alcala quash the information in his case because the date of explained that in Phillips, the Court addressed an ex the offense was more than two years before the date post facto violation. The core holding was that an the information was filed. The fact that another charge application of an amended statute of limitations to could be filed in another court would not repair the conduct for which the prior limitations period had defective pleading instrument in Heilman’s case. already run results in an ex post facto violation. But Under Phillips, the information was absolutely barred this case does not implicate the Ex Post Facto clause. It by law. involves a straightforward argument that prosecution Judge Newell also disagreed that Phillips could be was absolutely barred by the running of the statute of limited only to claims of ex post facto violations. There limitations. The holding in Phillips is not properly was no ex post facto legislation at issue in Phillips; presented for review in this case and it was improper there was only a plain-vanilla limitations claim. for the majority to overrule it. However, Judge Newell also noted that the Court was Judge Alcala, however, agrees with the majority not holding that a defendant must object to preserve a that the “pure law” discussion in Phillips should be claim that a facially retrospective statute violates the overruled. That discussion indicated that Proctor only constitutional prohibitions against ex post facto governs limitations defenses based on facts, and not legislation. He also observed that a true ex post facto those based on law. Thus, fact-based defenses are violation would be fundamental error. forfeitable and law-based defenses are not. Judge Judge Meyers dissented to argue that the statute of Alcala agrees that this distinction must be overruled limitations should not be a defensive issue and the and was unnecessary to the holding in Phillips. Court should overrule Proctor v. State, 967 S.W.2d Because the court of appeals relied on this distinction, 840 (Tex. Crim. App. 1998), which held that the Judge Alcala would reverse the court of appeals’ limitations rule must be implemented only on the determination that the trial court lacked jurisdiction. request of the defendant. Judge Meyers believes that defensive issues should just be those that require a [The End.] 52