CCA

“Buyer’s Remorse”—Rolling the Dice on Plea Deals

The Court of Criminal Appeals recently handed down an opinion concerning a motion for a new trial based on evidence obtained from a co-defendant’s motion to suppress hearing. The issues facing the Court were whether the defendant, who had recently entered into a plea deal, satisfied the requirements for granting a new trial on the basis of such evidence; and, whether the defendant’s ineffective assistance of counsel claim was properly brought before the court.

State of Texas v. Arizmendi (Court of Criminal Appeals, 2017)

The Facts — Trial Court Granted Defendant’s Motion for New Trial in the “Interest of Justice.”

Rosa Arizmendi, Defendant, was convicted (after pleading guilty) for being in possession of more than 400 grams of methamphetamine with intent to deliver after officers stopped her co-defendant’s vehicle, of which she was a passenger. Both Defendant and Co-defendant were arrested as a result of the stop. On April 28, 2015, Defendant entered into a plea deal, receiving twenty-five years confinement and a $5,000 fine. Additionally, Defendant voluntarily waived her right to appeal.

Six days later, a hearing for a motion to suppress was held regarding Co-defendant’s case. The video of the stop was introduced into evidence, and the arresting officer testified, noting that he initially noticed the vehicle because it looked clean and subsequently stopped the vehicle for crossing over the while line delineating the roadway from the improved shoulder. However, the trial court concluded that Co-defendant’s vehicle was not in any violation of Texas law. The Court explained that the vehicle only came in close proximity of and possibly touched the inside portion of the white line, which is not a violation of Texas law. Thus, granting Co-defendant’s motion. See, State v. Cortez, 501 S.W.3d 606 (Tex. Crim. App. 2016).

Based on this information, Defendant filed a motion for new trial, “in the interest of justice,” alleging the verdict in her case was contrary to the law and evidence. Defendant’s motion referred to Co-defendant’s hearing alleging a lack of probable cause or other lawful reasons for the stop. Furthermore, Defendant asserted the officer’s testimony was new evidence not available at the time of Defendant’s guilty plea. Defendant’s counsel further asserted that because she failed to tell Defendant that a motion to suppress was an option, Defendant received ineffective assistance.

The State argued that Defendant waived her right to appeal as a result of the plea deal and had not presented any new evidence likely to result in a different ruling. Noting, all evidence could have been discovered had Defendant been diligent. The State further asserted that Defendant was merely suffering from “buyers remorse.” Moreover, the State contended Defendant’s ineffective assistance claim was not apart of the original motion for new trial and, therefore, was untimely. However, the trial court rejected these arguments and granted Defendant’s motion for new trial “in the interest of justice,” and the State appealed.

The Court of Appeals Affirmed the Trial Court’s Decision — Holding Defendant Satisfied the Requirements for Granting a New Trial Based on Newly Discovered Evidence.

On appeal the State contended that the trial court abused its discretion in granting Defendant’s motion and further reiterated its previous assertions.

The Court of Appeals, however, rejected the State’s arguments. The Court held Defendant’s motion was not barred because the trial court implicitly granted Defendant permission to appeal when it set Defendant’s motion for hearing. The Court also determined Defendant did, in fact, present new evidence. The video of the stop did not contain audio and, therefore, the testimony was new because it was not available at the time of Defendant’s plea. Accordingly, since the Court found there was new evidence they declined to rule on the ineffective assistance claim and affirmed the trial court’s ruling.

The Court of Criminal Appeals Reversed and Remanded — Holding Defendant did not Satisfy the Requirements for Relief.

The State appealed again and the Court of Criminal Appeals reversed the lower courts’ decisions. Here, Defendant pled guilty pursuant to a plea deal and after learning of her co-defendant’s favorable outcome Defendant filed a motion for new trial. The Court concluded that Defendant’s assertions were without merit because her failure to discover “new evidence” was a result of her own lack of due diligence. Furthermore, the “new evidence” Defendant asserts was either cumulative, collateral, or would not have brought about a different result.

To obtain relief the Court noted Defendant must satisfy the following four-prong test:
• The newly discovered evidence was unknown or unavailable to Defendant at the time of trial;
• Defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
• The new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and,
• The new evidence is probably true and will probably bring about a different result in a new trial.

Defendant asserted the following as newly discovered evidence:
• The trial court’s ruling on Co-defendant’s motion to suppress;
• The testimony of the arresting officer at Co-defendant’s suppression hearing; and,
• The arresting officer’s statement about Defendant’s vehicle being a clean vehicle.

First, the Court explained that the trial court’s ruling on the motion to suppress was not evidence; it was only a legal determination. And, furthermore, even if it was considered evidence Defendant’s failure to discover was due to her own lack of due diligence. Second, the officer’s testimony was evidence, but aside from the testimony regarding the clean vehicle, it was merely cumulative and Defendant had access to the video, which conveyed the very same facts as the testimony. Furthermore, the Court determined the officer’s testimony regarding the clean vehicle was collateral, at best. The Court explained that the officer’s subjective intent was irrelevant to the ruling. Moreover, Defendant could have sought a police report or even filed her own motion to suppress to obtain such evidence—just as her co-defendant did. Finally, the Court concluded that Defendant’s ineffective assistance claim was not properly before the court because it was not made within thirty days of the judgment and, therefore, was untimely.

Thus, all evidence Defendant asserts as “new” was either cumulative, collateral, or would not have brought about a different result. As such, the Court reversed the lower courts’ decisions and remanded with instructions to reinstate Defendant’s judgment and sentence.

This case prompted two concurring opinions and a dissent. See below.

Arizmendi Hervey Concurrence
Arizmendi Newell Concurrence
Arizmendi Alcala Dissent

Takeaways

It is paramount that defense attorneys review all evidence and timely seek any additional evidence that may be relevant to a client’s case. Moreover, it is crucial for attorneys to provide clients with all possible options and outcomes before entering into a plea deal. Here, Defendant had all the same options as her co-defendant; however, Defendant was not properly counseled and, consequently, Defendant will spend twenty-five years in prison while her co-defendant remains free.

May a Court Order that an Attorney Can Provide Copies of Discovery to a Client Pursuant to the Michael Morton Act?

The Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus in regard to a discovery dispute arising out of Article 39.14 of the Texas Code of Criminal Procedure —otherwise known as the Michael Morton Act. The central issue facing the Court was whether the relator (a party who has standing and on whose behalf a writ of mandamus is petitioned for by the state as plaintiff) satisfied the criteria to justify mandamus relief.

See the full opinion in In re Powell v. Hocker (NO. WR-85,177-01)

The Facts—Trial Judge Granted Defendant’s Motion to Release Discovery.

Ellen Wilson, the real party of interest, was charged with misdemeanor DWI in the County Court at Law in Lubbock, Texas. Wilson’s attorney obtained discovery pursuant to Article 39.14 and filed a motion to “release” Wilson from the prohibition contained in subsection (f) of the statute. Subsection (f) of Article 39.14 permits a defense attorney to “allow a defendant . . . to view the [discovery] information provided under this article,” but the defense attorney “may not allow” the defendant “to have copies of the information provided[.]”

In the brief filed in support of the motion, Wilson’s attorney prayed that the County Court at Law would “permit defense counsel to give her a properly redacted copy of the requested items of the State’s evidence.” The brief did not maintain that Wilson had been unable to “view” the discovery in the attorney’s possession, as the statute expressly permits. Rather, it asserted that it was important for Wilson to be able to obtain her own copies in order to effectively help counsel prepare her defense. The trial judge granted Wilson’s motion, but stayed the effect of his ruling pending the State’s application for writ of mandamus.

The Court of Criminal Appeals Conditionally Granted Mandamus Relief—Directing the County Court at law to Rescind its Order Permitting Defense Counsel to Provide Defendant a Copy of the Discovery Materials that were Provided by the State Pursuant to Article 39.14.

In order for a court to determine whether mandamus relief is appropriate, the relator must establish two criteria. State ex rel. Young v. Court of Appeals for the Sixth Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). The relator must demonstrate that he has no adequate remedy at law to rectify the alleged harm. Id. Additionally, the relator must have a clear right to the relief sought. Id. In other words, the relator must show that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. Id.

The Court determined that the State had no right to appeal Respondent’s order, which permitted trial counsel to provide the real party of interest with a copy of the discovery materials. More notably, Respondent did not seriously contest this issue. As such, the Court held the first criteria to be satisfied for mandamus relief.

Next, the Court determined the act was ministerial in nature. An act may be deemed “ministerial” when “the facts are undisputed and, given those undisputed facts, the law clearly spells out the duty to be performed ... with such certainty that nothing is left to the exercise of discretion or judgment[,]”—even if a judicial decision is involved. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994) (citations omitted). Furthermore, the Court determined this rule extends to cases of first impression.

The Court found Article 39.14 to be clear, unambiguous, and indisputable. Subsection (f) of the statute expressly and unequivocally prohibits the attorney, or her agent, to “allow” the defendant “to have copies of the information provided[.]” Respondent argued that Subsection (f) only speaks to whether the defendant’s attorney may supply him with copies of the discovery materials; it does not prohibit a trial court itself from providing copies. The Court rejected this argument because not doing so would circumvent the unqualified prohibition in subsection (f).

Next, Respondent argued that subsection (e) contemplates scenarios when a trial court may order disclosure of such materials. Subsection (e) expressly prohibits “the defendant” from personally disclosing discovery material to a third party. Respondent argued that this prohibition seems to assume that the defendant would have copies of those materials in the first place to disclose. The Court rejected this argument explaining that a defendant could “disclose” the substance of discovery materials to a third party by memory, having been allowed to “view” them pursuant to Subsection (f).

Rejecting all of Respondent’s arguments, the Court determined that the trial court lacked authority to enter an order that effectively abrogated Article 39.14. As such, the Court conditionally granted mandamus relief directing the County Court at Law to rescind its order.

This opinion solidifies what we already knew about Article 39.14 and have been telling clients all along - defense attorneys MAY NOT provide discovery materials to our clients.  And now, not even if the trial court orders it.

Resisting Arrest: How is it defined under Texas law?

In general, resisting arrest occurs when a person attempts to interfere with a peace officer’s duties. Section 38.03 of the Texas Penal Code defines resisting arrest as: a person who intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from:

• Effectuating an arrest;
• Carrying out a search; or
• Transporting a person accused of a crime.

Resisting arrest requires the person to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. To be guilty of resisting arrest, the force need not only be directed at or toward the officer but is also met with any force exerted in opposition to, but away from the officer, such as a simple pulling away. Thus, even small uses of force can give rise to a charge of resisting arrest. However, non-threatening statements of disagreement with the officer’s actions usually are not enough to qualify as resisting arrest.

Some examples of resisting arrest include:

• Preventing a cop from handcuffing you;
• Struggling against an officer who is trying to arrest you; and
• Engaging in violent action against the officer, like punching, kicking or inflicting harm with a weapon

Can You Resist an Unlawful Arrest in Texas?

One of the most important cases on this point is Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

What Ford provides, in short, is that you may not resist an arrest—whether lawful or unlawful. Historically, American citizens were legally entitled to use reasonable force to resist an unlawful arrest. Several states have now eliminated - either by statute or by judicial decision - the common law right to resist an unlawful arrest. Section 38.03 of the Texas Penal Code eliminated this right. Furthermore, subsection (b) of Section 38.03 specifically states it is no defense to prosecution that the arrest or search was unlawful.

In Ford, the Court held “the elimination of the common law right to resist arrest reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned.” The Court reasoned that the line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. Furthermore, the Court has concluded that by limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested, and thus, there is not a violation of the person’s constitutional rights.

Potential Consequences

Regardless of whether a person is guilty of the underlying charge that prompted the attempted apprehension, resisting arrest is a serious charge in Texas (many time more serious than the underlying offense). A person can face a significant fine and jail time.

Typically, resisting arrest, search, or transportation is prosecuted as a Class A Misdemeanor. An individual convicted of a Class A Misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000.

However, the charge may be enhanced to a felony of the 3rd degree if you use a deadly weapon, such as a gun or a knife, to resist the arrest or search. An individual convicted of a felony of the 3rd degree may be sentenced to 2-10 years in the Texas Department of Corrections and a fine up to $10,000.

Our advice is to comply with the officer’s demands calmly and politely and let us work out the legality of the arrest later.

Punishment for a Man Convicted of Child Pornography Held Facially Unconstitutional

Ex Parte Lea (Tex. Crim.App. 2016)

What happens when an old criminal law is rendered null and void? Do people convicted of such crimes get to walk free, or, are the convictions upheld in the interests of justice? The Texas Court of Criminal Appeals (“CCA”) filed an ex parte case (the court filed the case on its own volition) to determine whether David Lea's punishment for his 2008 child pornography conviction should be set aside on constitutional grounds. The case was met with a dissent by Judge Yeary and the CCA reached a very interesting conclusion.

In 2008, David Lea pled guilty to three counts of possession of child pornography. As a result, he was sentenced to twelve years' imprisonment, ten of which were probated by way of community supervision. In 2012, Lea pled guilty to one count of improper visual photography and received a state-jail felony sentence of two years confinement. During sentencing, the State filed a motion to revoke Lea's community supervision from the 2008 conviction because, the State argued, Lea violated the terms of his supervision by committing a new criminal offense. Accordingly, the court revoked Lea' s probation and Lea was sentenced to six years imprisonment.

The Offense of “Improper Photography” Held Unconstitutional

In 2014, the CCA held that the offense of improper photography was "facially unconstitutional" because it infringed upon individuals' First Amendment rights, as propounded by the Constitution of the United States. The main issue? The improper photography statute, once found in Section 21.15(b)(1) of the Texas Penal Code was overbroad. Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014).

Lea Files Writ to Overturn His Conviction for the Stricken Law

Lea filed a Writ of Habeas Corpus, arguing that because the offense of improper photography was found unconstitutional, (1) his sentence for improper visual photography should be vacated and (2) his original probation via community supervision should be reinstated.

When an old law is found to be unconstitutional on its face, it is considered to be “void from its inception and should be treated as if it never existed.” Smith v. State, 463 S.W. 3d 890, 895. The due process right to not be convicted under a statute that has been declared void cannot be forfeited. Ex Parte Fournier, 473 S.W.3d 789, 796 (Tex. Crim. App. 2015).

CCA Overturns Lea’s Prior Conviction and Revocation

When Lea was originally sentenced in 2008, the CCA had not yet determined the fate of the improper photography statute. And while it’s true that courts may revoke community supervision based upon a violation of community supervision conditions—committing any future crimes in this case—the Court finds that Lea’s conviction must be set aside. “The harm here flows from his void conviction, namely, the revocation of his community supervision based solely on an offense that [in theory] never existed.”

Accordingly, the CCA set aside the revocation of Lea’s community supervision, and remanded the case to the trial court to determine reinstatement of his probation. It is important to note that Justice Yeary dissented in this case, referring to Fournier, “I do not believe the applicant should be able to obtain retroactive post-conviction collateral relief based upon an overbroad statute unless he can show that the statute was unconstitutional as to his own conduct. 473 S.W. 3d 789, 805 (Tex. Crim. App. 2015). Yeary believes that post-conviction relief should only be granted to those defendant-applicants who can show that the conduct in question did not fall within the “plainly legitimate sweep of the overbroad statute.”

From call logs, to cell tower info, to sent and received text messages, many criminal investigations involve the contents of a defendant's cell phone.  Under the Stored Communications Act, cell phone providers can provide a users cell phone data to police during an active criminal investigation with a simple court order (like a subpoena).  But what about the actual content of text messages?  Can the police or the prosecutor get the actual content from those text messages with the same court order?

Capital Murder Conviction Gained After Judge Admits Content of Text Messages

Recently, the Texas Court of Criminal Appeals considered a capital murder (death penalty) case in which the State relied on text message evidence during trial. During the trial, the state admitted (over defense objection) the contents of text messages sent and received by the defendant. The messages established the defendant's presence at the scene of the murder and implied his direct involvement. The state leaned on this evidence during both its opening and closing statements in the case. The defendant was convicted of capital murder and sentenced to death.

The Content of Text Messages are Not Covered by the Stored Communications Act

The appellant argued on appeal that while the Stored Communications Act allows the state to gain evidence of text messages sent and received, it does not allow the dissemination of the content of those messages. The appellant argued that the State should have obtained a search warrant backed by probable cause in order to get these records. The CCA agreed, drawing comparisons to the contents of letters sent in the mail and email stored on a server. Text message enjoy the same reasonable expectation of privacy and should be protected.

The Question in Love v. State is Whether Appellant had an Expectation of Privacy in his Service Provider’s Records

LOVE v. STATE (Tex. Crim. App - 2016), Majority Opinion

Judge Yeary penned the majority opinion in Love. The following excerpts are taken from the opinion:

Many courts have treated text messages as analogous to the content of an envelope conveyed through the United States mail...Admittedly, the analogy is not a perfect one...A letter remains in its sealed envelope until it arrives at its destination, and the telephone company does not routinely record private telephone conversations. But internet and cell phone service providers do routinely store the content of emails and text messages, even if they do not necessarily take the time to read them...[E]mpirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages...All of this leads us to conclude that the content of appellant’s text messages could not be obtained without a probable cause–based warrant. Text messages are analogous to regular mail and email communications. Like regular mail and email, a text message has an “outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient...Consequently, the State was prohibited from compelling Metro PCS to turn over appellant’s content-based communications without first obtaining a warrant supported by probable cause.

Finding that "the probable impact of the improperly-admitted text messages was great," the CCA then reversed the conviction and remanded the case back to the trial court for a new trial.

TAKEAWAY: Not all records can be gained so easily through a court order. Some require a probably cause warrant.  Is there a reasonable expectation of privacy in the message? It might take a new analysis as our media is changing daily, but it can be worth the fight.

Note: Presiding Judge Keller dissented. She did not believe that the appellant preserved this issue for appeal.