CLICK the CASE NAME To Read the Full Summary

Ex parte LaHoodVolume 21, No. 26 - July 1st

Court of Criminal AppealsNo. AP-76,873 & AP-76,874Post-Conviction Habeas Corpus

Landers v. StateVolume 21, No. 27 - July 8th

Court of Criminal AppealsNo. PD-1637-12Tampering with a Witness

Ex parte SkeletonVolume 21, No. 28 - July 15th

San Antonio Court of AppealsNo. 04-12-0066-CRPost-Conviction Habeas Corpus

Ex parte RobertsVolume 21, No. 29 - July 22nd

San Antonio Court of AppealsNo. 04-12-0642-CRPost-Conviction Habeas Corpus

Haggerty v. StateVolume 21, No. 29 - July 22nd

Houston [14th] Court of AppealsNo. 14-12-0461-CR & 14-12-0462-CRPossession of Controlled Substance

State v. CokerVolume 21, No. 30 - July 29th

Dallas Court of AppealsNo. 05-12-0616-CRPossession of Controlled Substance

Rodriguez v. StateVolume 21, No. 31 - August 5th

Austin Court of AppealsNo. 03-10-0715-CRFelony Murder

Ex parte Medrano(Unpublished)Volume 21, No. 31 - August 5th

Court of Criminal AppealsNo. WR-78,123-01Post-Conviction Habeas Corpus

Thompson v. StateVolume 21, No. 31 - August 5th

Austin Court of AppealsNo. 03-12-0569-CRPossession of Prohibited Weapon

Odelugo v. StateVolume 21, No. 32 - August 12th

Houston [1st] Court of AppealsNo. 01-12-0521-CREngaging in Organized Criminal Activity

In re LigonVolume 21, No. 33 - August 19th

Beaumont Court of AppealsNo. 09-13-0242-CRMandamus

Acosta v. StateVolume 21, No. 34 - August 26th

Houston [1st] Court of AppealsNo. 01-12-0151-CRDelivery of a Counterfeit Instrument

Lundgren v. StateVolume 21, No. 35 - September 2nd

Beaumont Court of AppealsNo. 09-13-0242-CRMandamus

eMail: gsreports@texindbar.orgPublished By

Texas Independent Bar AssociationAustin, Texas 78767

Web Page: www.texindbar.org

Copyright © 2013 Texas Independent Bar Association and the following Commentators

Alan CurryHelena FaulknerJeffrey S. GaronLee Haidusek

John G. JasutaCharles Mallin Gail Kikawa McConnellAngela J. Moore

Editor-in-Chief: John G. Jasuta

Doug O’BrienGreg SherwoodDavid A. SchulmanKevin P. Yeary

Clicking a hyperlink (such as a judge’s name) will load the linked opinionor document in your web browser.

It is TIBA’s policy that commentators do not summarize or comment oncases in which they were involved.

Summer Update - September 12, 2013

TIBA’s Case of the Week

Volume 21, No. 26 - July 1st

Case Name: Ex parte Michael George Lahood RETURN TO TABLE OF CONTENTS

! OFFENSE: Post-Conviction Habeas Corpus (Agg. Kidnapping & Agg. Sexual Assault) ! COUNTY: Harris ! CCA. CASE No. AP-76,873 & AP-76,874 DATE OF OPINION: June 26, 2013 ! DISPOSITION: Relief Denied ! OPINION: Hervey, J. VOTE: 7-2-0 ! TRIAL COURT: 185th D/C; Hon. Susan Brown ! LAWYERS: Anthony Smith (Defense); Alycia Harvey (State)

G&S 124 Right to Counsel / Ineffective Assistance: Applicant’s convictions were affirmed in 2005. LaHood

v. State, 171 S.W.3d 613 (Tex.App. - Houston [14th] 2005)(see G&S, Vol. 13, No. 32; 08/22/2005), and the

CCA refused his PDR. In these habeas corpus applications, he claims that he received ineffectiveassistance of counsel because his trial counsel failed to investigate his mental-health history, and if shehad, there was a reasonable probability that the outcome of his proceeding would have been different.

Holding: (Strickland I - Deficient Performance) Applicant argues that his trial counsel observed evidenceof his lack of mental health before trial, at his trial, and during the sentencing phase. He contends thathis trial counsel’s failure to follow up on the various indicia of his alleged incompetency fell belowprevailing professional standards and, as a result, her performance was constitutionally deficient. Weagree. *** Applicant’s medical records from the jail were easily accessible and contained significantinformation (including evidence of a suicide attempt during the trial) that could have allowed hisattorney to assert that he was incompetent. After reviewing the quantum of evidence known to counselbefore and during trial, and whether the known evidence would lead a reasonable attorney to investigatefurther, we conclude that trial counsel’s failure to further investigate was unreasonable under thecircumstances.

Holding: (Strickland II - Prejudice) Even if Applicant failed to receive some of his medication, there isnothing in the record that leads us to believe Applicant lost the ability to understand the proceedings orrationally confer with his counsel. To the contrary, the only time at which Applicant possibly appearedlegally incompetent, the trial was stopped and the medication problem was corrected. Moreover, therecord supports many of the habeas court’s findings that Applicant’s behavior was that of a competentperson. For example, the habeas court concluded that Applicant’s direct examination showedconsiderable clarity of thought, his outbursts regarding medication and lack of comprehension began onlyon cross examination, and the only opportunity for the victim’s testimony to be rebutted was byApplicant. He testified that the victim drove the car to Houston (directly contradicting her assertion thatshe had been kidnapped), that they stopped in multiple populated areas where the victim could havealerted someone if she was in trouble, and that the victim packed for the trip (directly contradicting herassertion that the fact she had a hairbrush, clothes, and a toothbrush was merely coincidental). Applicanthas not met his burden of proof to show a reasonable probability that he would have been foundincompetent if there had been an incompetency trial. As a result, Applicant’s ineffective-assistance-ofcounsel claim must fail.

Concurring / Dissenting Opinions: Presiding Judge Keller filed a concurring opinion. She said she cannotagree with the majority’s holding that, “even though counsel was correct in her assessment thatApplicant was competent to stand trial,” her performance was deficient because she failed to investigatehis mental health situation. Judge Meyers concurred without note.

Sidebars: (David A. Schulman) I have to agree with the majority and disagree with Judge Keller. More than twenty years ago, in Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990), the Fifth Circuit

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TIBA’s Case of the Week

Court of Criminal Appeals

held that a lawyer is not competent, by himself or herself, to determine whether a client is competent. Thus, the failure to “investigate” the client’s mental health situation, when there are outwardmanifestations of mental heath problems, is always deficient. That it turns out that the investigation

would have revealed that the client is / was competent doesn’t change the fact that, under Strickland ‘stwo prong test, the lawyer’s performance was deficient.

Volume 21, No. 26; - July 8th

Case Name: Tristan Landers (aka McNiel) v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: Tampering with a Witness ! COUNTY: McLennan ! COURT OF APPEALS: Waco 2012 ! C/A CITATION: Unpublished (10-11-0408-CR) ! C/A RESULT: Conviction Affirmed ! CCA. CASE No. PD-1637-12 DATE OF OPINION: July 3, 2013 ! DISPOSITION: Court of Appeals Reversed - Case Remanded ! OPINION: Womack, J. VOTE: 8-1-0 ! TRIAL COURT: 54th D/C; Hon. Matt Johnson ! LAWYERS: Stan Schwieger (Defense); Alan Bennett (State)

Ed Note: (Background Facts) Appellant was indicted for tampering with a witness. The elected districtattorney recused himself and his office from her case because he had previously represented Appellant“adversely to the State of Texas.” An attorney pro tem was appointed to prosecute Appellant, who wasconvicted and sentenced to confinement for two years and a $10,000 fine. At sentencing, the trial judgemade no mention of imposing court costs. The written judgment (which was otherwise typed), however,included $4,562.50 in costs that were handwritten. The record does not indicate whether thehandwriting was added before or after Appellant signed the judgment. There was no itemization orexplanation of the costs. The Clerk’s Record includes a “Bill of Costs” which was issued six days afterjudgment was imposed. This bill itemized the court costs and included fees of $3,718.50 for the attorneypro tem and $440.00 for investigative costs of the prosecutor. This document was not provided toAppellant or her counsel. When Appellant complained on appeal about the imposition of these fees, theCourt of Appeals held she had not preserved the issue for appeal because she had not made a “timelyrequest, objection, or motion” in the trial court. The Court of Criminal Appeals granted review todetermine if an objection was required to preserve error concerning the imposition of the costs of thespecial prosecutor’s fees.

G&S 514.01 Appellate Procedure / Perfecting Appeal / Waiver of Issues (Motion for New Trial

Requirement): The State makes two arguments, the first of which is that Appellant should have raisedthe issue in a motion for new trial. No motion for new trial was filed.

Holding: Even if [Appellant] could have raised the issue in such a motion (an issue we need not decidetoday), she was not required to. A motion for new trial is required to preserve error only when it isnecessary to adduce facts not in the record. In this case, [Appellant]’s complaint was one of law and notfacts. Consequently, she was not required to file such a motion in order to preserve this complaint. ***Further, we decline to create such a requirement. In this case, the Bill of Costs was filed six days after[Appellant]’s sentence was imposed in open court. This left [Appellant] with 24 days to retrieve thedocument from the clerk’s office (though there was no notice it had been created) and submit an objection,motion, or other request for relief. Arguably, in this case, the appellant had enough time to submit such

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TIBA’s Case of the Week

a motion. However, we decline to adopt a rule that would allow a judge to de facto alter the statutorytime frame for motions for new trial.

Concurring / Dissenting Opinions: Presiding Judge Keller filed a concurring opinion, expressing “mydisagreement with the idea that Appellant could properly have raised the issue in a motion for new trial.” She argued that, “a ‘new trial’ occurs only when the trial court has ‘set aside a finding or verdict of guilt.’ A ‘new trial on punishment’ occurs only when the trial court has ‘set aside an assessment of punishmentwithout setting aside a finding or verdict of guilt.’ A meritorious claim regarding the bill of costs wouldentitle a defendant to neither of these remedies.”

Sidebars: (David A. Schulman) Rule 21, Tex.R.App.Pro. (“New Trials in Criminal Cases”) providesdifferent circumstances for the award of a completely new trial, or simply a new trial on punishment. The latter might be appropriate in this case, as the cost at issue are part of the punishment. Becauseof Judge Keller’s concurrence, the first question the Court should have asked is whether a complaintabout specific costs which have been imposed constitutes an attempt to “set aside an assessment ofpunishment.” If (and only if) it is, then the Court would have to answer the question of whether it wasnecessary to litigate the issue in a motion for new trial. If it is not, then Judge Keller is correct, and achallenge to the imposition of costs isn’t even cognizable in a motion for new trial. Presuming the answeris that a complaint about specific costs which have been imposed does constitute an attempt to “set asidean assessment of punishment,” then the majority’s statement that Appellant’s “complaint was one of lawand not facts” is correct, as Appellant’s ultimate complaint is not about the amount which was chargedfor the attorney pro tem, but, rather, that she cannot be required to pay those as costs of court. Ultimately, that is the question the Court will eventually have to answer.

G&S 514.01 Appellate Procedure / Perfecting Appeal / Waiver of Issues (Failure to Complain at Trial):

The State and the Court of Appeals relied on Mendez v. State, 138 S.W.3d 334 (Tex.Cr.App. 2004)(see

G&S, Vol. 12, No. 26; 07/05/2004) for the proposition that Appellant waived error.

Holding: The State and the Court of Appeals argue that since this error does not fit in either of thosecategories, a timely objection in the trial court was required. However, Mendez is distinguishable becauseit took place within the context of an active trial, during which an appellant would be given anopportunity to object. It is not on point and does not control in this instance. *** We hold that[Appellant] may not be faulted for failing to object when she was not given the opportunity. Since thefees were not imposed in open court and she was not required to file a motion for new trial, she has notforfeited the complaint on appeal.

Volume 21, No. 28 - July 15th

Fourth Court of Appeals (San Antonio)

Case Name: Ex parte Patricia Foster Skelton RETURN TO TABLE OF CONTENTS

! OFFENSE: Post-Conviction Habeas Copus (Article 11.072) ! COUNTY: Real ! C/A CASE No. 04-12-0066-CR ! DATE OF OPINION: July 10, 2013 ! DISPOSITION: Trial Court Affirmed OPINION: Chapa, J. ! TRIAL COURT: 38th D/C: Hon. Camile Dubose ! LAWYERS: Nancy Barohn (Defense); Danny Kindred (State)

Ed Note: (Background Facts) Applicant/Appellant, an attorney, was convicted of forging the will of adeceased client, Ysidro Canales. To obtain a conviction under Penal Code section 32.21(b), the State hadto prove Appellant forged a writing with intent to defraud or harm another. The State specifically

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alleged Appellant committed forgery by altering a writing so it purported to be an actual act of Canales,and argued that Appellant committed forgery because she filed an unsigned copy of the will intendingto defraud the court or potential heirs. At trial, the State and Appellant both presented evidence thatAppellant had literally cut and pasted the signatures of Canales and two witnesses onto a document,which Appellant claimed was a computer copy of a will executed by Canales. She then photocopied thealtered document and filed that copy with the probate court without informing the court that neitherCanales nor the witnesses ever signed that particular document. Appellant was ultimately convicted offorgery and sentenced to community supervision. He conviction was affirmed in an unpublished opinion. Skelton v. State, No. 04-08-0720-CR (Tex.App. - San Antonio; June 9, 2010). The Court of CriminalAppeals refused her petition for discretionary review. Appellant then applied for a writ of habeas corpusunder Article 11.072, C.Cr.P. The habeas court denied relief without a hearing, but the Court of Appealsabated the appeal and remanded her case to the habeas court to conduct an evidentiary hearing on theineffective-assistance-of-counsel claim. The habeas court once again denied relief.

G&S 563.01 Post-Conviction Habeas Corpus / Sufficiency of Claims for Relief / Actual Innocence:

Appellant’s claim of actual innocence relies on the conflicting verdicts between the criminal and civiltrials related to the fabricated will. The criminal jury convicted Appellant of forgery. The civil jury found(1) that Canales executed a valid will, (2) that Appellant did not forge the will she filed with the probatecourt, and (3) that the probated will was an accurate copy of Canales’s will. Appellant points to theconflicting civil verdict as “new evidence” of her innocence and argues “it is more likely than not that noreasonable juror would have convicted her in the light of the later determination of the will’sgenuineness.”

Holding: In both her habeas application and her brief, [Appellant] briefs only a Schlup v. Delo, 513 U.S.298 (1995)-type claim of actual innocence. Such a claim is not a freestanding ground for relief but isintertwined with allegations of other constitutional error at trial, e.g., violations of Brady v. Maryland,373 U.S. 83 (1963) or ineffective assistance of counsel. Ex parte Reed, 271 S.W.3d 698 (Tex.Cr.App.

2008)(see G&S, Vol. 16, No. 50; 12/22/2008). Because we have found no constitutional error at [Appellant]’s

trial, we need not decide whether the conflicting civil verdict is new evidence of actual innocence. We hold[Appellant] is not entitled to habeas relief on this ground.

G&S 330 Prosecutorial Misconduct: Appellant alleges her trial was rife with instances of prosecutorial

misconduct, all of which combined denied her right to due process.

Holding: Every allegation of misconduct contained in [Appellant] application rests on facts that wereknown to [Appellant] at the time of her direct appeal -- yet she failed to raise herprosecutorial-misconduct claim in that forum. She cannot resuscitate it now through a writ of habeas

corpus. Ex parte Nelson, 137 S.W.3d 666 (Tex.Cr.App. 2004)(see G&S, Vol. 12, No. 25; 06/25/2004).

G&S 124 Right to Counsel / Ineffective Assistance of Counsel: Appellant alleges she received ineffective

assistance of counsel at five different points at her trial. She claims her attorney acted deficiently when:ì the State enlarged its theory of the case at trial beyond the indictment without objection; í both theState (without objection) and her own attorney repeatedly elicited testimony about her pre-arrest,pre-Miranda silence; î the State wrongly presented Texas Ranger Coy Smith as an expert on the lawof forgery and Ranger Smith testified Appellant was guilty of forgery without objection; ï the State usedhearsay to wrongly bolster a different witness’s credibility without objection; and ð the State madeimproper jury arguments by enlarging its theory of the case beyond the indictment and struck atAppellant over the shoulders of her attorney without objection. After the Court of Appeals remanded foran evidentiary hearing, the habeas court made findings of fact and conclusions of law. The court foundAppellant’s attorney had been practicing law for over thirty years, he was a former District Attorney ofJasper County, and he was a witness of the highest degree of credibility and truthfulness. The courtfurther found her attorney “explained valid and compelling strategic reasons for all of the acts andomissions that form the basis for the applicant’s post-probation writ of habeas corpus” and that “those

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rationales are valid and within the range of acceptable strategic decisions required of trial counsel.”Finally, the court concluded even if any of her attorney’s acts or omissions could be considered deficient,Appellant had not demonstrated prejudice.

Holding: (Enlarging the Indictment) [Appellant] first contends her counsel was ineffective because heallowed the State to enlarge its theory of the case beyond the indictment’s charge of forgery by alterationto include forgery by passing. [Appellant] previously raised in her direct appeal the claim that the State’sactions with respect to “enlarging the indictment” were reversible error. *** We found no error. *** [Appellant] may not use the writ of habeas corpus to re-litigate an issue that was decided adversely toher on direct appeal. *** Moreover, her counsel could not have been ineffective for not objecting to theState’s actions which we previously held were not error.

Holding: (Pre-Arrest, Pre-Miranda Silence) The United States Supreme Court recently consideredwhether or not the Fifth Amendment’s protection against compelled self-incrimination bars theadmission of evidence about a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of

guilt. Salinas v. Texas, 570 U.S. ___, 2013 (see G&S, Vol. 21, No. 25; 06/24/2013). *** The historical

uncertainty and split of federal and state authority over this issue are fatal to this part of [Appellant]’sclaim. *** Because the state of the law at the time of [Appellant]’s trial was unsettled, [Appellant] cannotclaim that her attorney’s failure to object to such evidence fell below the standard of reasonableprofessional assistance.

Holding: (Hearsay & Witness Bolstering) Part of the State’s theory that Canales did not execute a willwas supported by the testimony of Canales’s sister, Irene Canales, who was part of the lawsuit contestingthe validity of the probated will. She testified that on the Friday afternoon of the will’s alleged execution,Canales was en route to her home in Buda, Texas, so they could travel to Louisiana to gamble thatweekend. She testified she spoke to Ranger Smith about casino records that confirmed her belief that onthis particular weekend she and Canales gambled in Shreveport; he therefore could not have executeda will on the alleged date because he would have been en route to her home at that time. *** Irene’stestimony was inadmissible hearsay by implication. *** At the habeas hearing, [Appellant]’s attorneyagreed the records probably were not admissible, but testified that Irene had such poor credibility it didnot matter what she said. His opinion about her credibility was based on her status as a plaintiff in thewill contest, which was a topic of his cross-examination. *** Because [Appellant]’s attorney had castdoubt upon Irene’s credibility and we consider it a reasonable trial strategy to not object to the testimonyof a credibility-compromised witness, we will defer to the habeas court’s finding that the attorney’sperformance was not deficient in this respect.

Holding: (Improper Jury Argument) [Appellant] complains her attorney failed to object to improper juryarguments made by the prosecution *** [when] *** the prosecutor struck at her over the shoulders of herattorney by arguing [Appellant] was guilty in part by “hiring a criminal defense attorney to run aroundcriticizing and complaining about the way everybody is doing their job.” *** In this case, the prosecutormade only a passing reference to the actions of [Appellant]’s attorney. [Appellant]’s attorney testified atthe hearing that he thought the State was overreaching and the jury would see through the improperargument. [Appellant]’s attorney reasonably decided not to object to the slight attack on his characterat closing arguments. Therefore, we will not disturb the habeas court’s finding that his performance wasnot deficient in this respect.

Holding: (Texas Ranger’s “Expert” Testimony and Opinion as to Guilt) (Strickland I - DeficientConduct) [Appellant]’s attorney agreed at the habeas hearing that he did not object to Ranger Smith’stestimony and that a law enforcement officer is not entitled to give an opinion as to whether a defendantis guilty. *** He testified different lawyers handle such a question in different ways; he chose toundermine Ranger Smith’s testimony by showing that he did not look at certain evidence that trulyreflected whether the will was in accord with the intent of the testator. On cross-examination, the State’shabeas counsel suggested the actual focus of the prosecutor’s final question was whether or not theRanger thought a forged will had been filed. [Appellant]’s attorney agreed and said he did not interpret

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TIBA’s Case of the Week

the prosecutor’s question as asking the Ranger’s opinion of [Appellant]’s guilt. *** We cannot agree withthat view nor accept it as a reasonable interpretation of the question. *** By not objecting to RangerSmith’s “expert” and clearly inadmissible opinion of [Appellant]’s guilt, [Appellant]’s attorney performedbelow an objective standard of reasonable representation. (Strickland II - Prejudice) In Weathersby v.State, 627 S.W.2d 729 (Tex.Cr.App. 1982), the Court of Criminal Appeals overturned the conviction forineffective assistance because two detectives had without objection given their opinions of the defendant’sguilt, which were repeated in closing arguments; the conviction of a codefendant was introduced intoevidence without objection and repeated in closing arguments, and the defendant was asked oncross-examination about the criminal character of his friends without objection. *** The multiple andegregious errors, both of commission and omission, made by the counsel in Weathersby stand in starkcontrast to the single damaging, but isolated, error in [Appellant]’s case. In this case, Ranger Smith’sobjectionable “expert” opinion was given in the middle of the first of two days of trial testimony and wasa relatively small part of his testimony. The prosecution never emphasized or revisited the inadmissiblepart of his testimony, either during the rest of its case or in closing arguments. *** In light of the isolatednature of the attorney’s error and the State’s lack of reliance on the inadmissible evidence, we cannot saythat [Appellant] proved by a preponderance of the evidence that the outcome would have been differentwithout her attorney’s error.

Sidebars: (David A. Schulman) Skelton was suspended from the practice of law during the term of hercriminal conviction, but the SBOT website shows Ms. Skelton as once again being eligible to practice law. Amazin’ - to quote one of my favorite sports figures, the “Old Professor,” Casey Stengel. Who says Texasdoesn’t believe in rehabilitation and second chances?

Volume 21, Number 29 - July 22nd

Case Name: Ex parte Mary Roberts RETURN TO TABLE OF CONTENTS

! OFFENSE: Post-Conviction Habeas Corpus (Article 11.072, C.Cr.P.) ! COUNTY: Bexar ! C/A CASE No. 04-12-0642-CR ! DATE OF OPINION: July 17, 2013 ! DISPOSITION: Trial Court Reversed OPINION: Chapa, J. ! TRIAL COURT: 226th D/C; Hon. Sid Harle ! LAWYERS: Appellant Pro Se (Defense); Enrico Valdez (State)

Ed Note: (Background Facts) Appellant and her husband engaged in an extortion scheme in whichAppellant would engage in extramarital affairs, and her husband would subsequently threaten herpartners with court action unless they paid him not to pursue any legal claims. Some of the extortionpayments were delivered as checks made out to a children’s charity set up and controlled by Appellantand her husband. She was convicted of five counts of theft by coercion and deception, and her conviction

was affirmed. Roberts v. State, 319 S.W.3d 37 (Tex.App. - San Antonio 2010)(see G&S, Vol. 18, No. 12;

04/01/2010).

Ed Note: (Procedural History) When the trial court modified the terms of her probation, Appellant soughtto prosecute a separate appeal of that decisions. The Court of Appeals dismissed that appeals for wantof jurisdiction. Appellant then filed an application for a writ of habeas corpus (Article 11.072, C.Cr.P.)in the court that sentenced her, and the habeas court denied relief.

G&S 426 Judgments & Sentences / Reformation or Modification of Judgment (Modifying Terms of

Probation to Include Restitution): The trial court sentenced Appellant to ten years’ imprisonment foreach count of theft to run concurrently. The judgments of conviction reflect that “$0.00” in restitution wasassessed or ordered on each count of theft. The court probated each sentence for ten years and required

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Appellant to perform 400 hours of community service as a term of her community supervision. Appellantand the State agree that the court did not order restitution and it stated “there are no victims in this caseother than the respective families of the paramours and yourself.” The order containing the terms of hercommunity supervision did not set any restitution. After the conviction had been affirmed, the modifiedthe terms of Appellant’s community supervision. The court ordered that Appellant be given the sameterms of community supervision as her husband -- which apparently included restitution. WhenAppellant objected and argued the court had already declined to order any restitution in her case, thetrial court replied “[n]o restitution to the paramours. Restitution to the charitable corporation.” Appellantagain objected and the court told her to “appeal it.” At a subsequent hearing, the trial court explainedthat Appellant was ordered to pay $70,000 to a charitable corporation. The court acknowledged that itinitially “assessed no restitution in regard to the paramours/alleged complainants.” But because thecouple extorted funds in the amount of $70,000 under the guise of charitable donations, the trial courtordered Appellant to jointly and severally with her husband make an equal payment to a charitablecorporation approved by the probation department.

Holding: [Appellant] contends the trial court was without authority to order her to pay $70,000 inrestitution to any charity benefitting children because [Appellant] was not convicted of a crime againsta particular charity or any charity at all. She also argues the court could not modify the terms of hercommunity supervision to include restitution three years after the conditions were first imposed at thetime of her sentencing. The State concedes the trial court could not modify [Appellant]’s terms ofcommunity supervision to include restitution for both the reasons advanced by [Appellant], but it arguesthe court could have validly modified the terms of [Appellant]’s community supervision to impose the$70,000 payment because it is related personally to [Appellant]’s rehabilitation, as opposed to beingrestitution. We hold the trial court lacked the authority to impose a monetary payment on [Appellant]as a term of her community supervision.

Fourteenth Court of Appeals (Houston)

Case Name: Jason Dwayne Haggerty v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: Possession of Controlled Substance / Possession of Marihuana ! COUNTY: Harris ! C/A CASE No. 14-12-0461-CR & 14-12-0462-CR ! DATE OF OPINION: July 11, 2013 ! DISPOSITION: Convictions Affirmed as Reformed OPINION: Frost, J. ! TRIAL COURT: 185th D/C; ! LAWYERS: Steven Lieberman (Defense); Alan Curry & Clint Morgan (State)

Ed Note: (Background Facts) At trial, officers with a special-operations division of a local policedepartment testified that, based on citizens' complaints of narcotics-related activities, they initiated aninvestigation of a specific residential address in Baytown, beginning in August 2011. During theirsurveillance of the home, the officers observed vehicular and foot traffic of known narcotics users at thelocation. The officers often saw Appellant or a truck registered to Appellant at the residence. They sawhim use a key to enter the home on many occasions; they did not see anyone else use a key to enter thehome. Officers noticed a pattern: whenever Appellant was at the home or his truck was parked outsidethe home, vehicular and foot traffic followed, individuals would go inside the house, stay for a shortperiod of time, and leave. This activity did not occur when Appellant's truck was not parked at the home.On September 21, 2011, the officers received a phone call from a confidential informant, regardingactivities inside the home. Two officers met with the informant, who told them he had been inside thehouse that day and that a person named "Gator" was selling marijuana and cocaine. The officers knewAppellant used the name "Gator" and showed the informant a photo of Appellant; the informantidentified Appellant as the person selling the contraband inside the home. The officers returned andobserved individuals leaving the home, including Appellant, who was carrying a black backpack.Appellant locked the door and left the premises in his truck. As he drove away, the officers saw himcommit a traffic violation and informed a uniformed officer of the traffic offense. A uniformed officer in

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a marked patrol unit initiated a traffic stop of Appellant's vehicle. During the traffic stop, the officerarrested Appellant for the traffic violation and conducted an inventory search of the vehicle. The officerrecovered from the vehicle a black backpack containing over $2,000 in small bills. When officers produceda search warrant, Appellant supplied the keys to the house. The search revealed “a large, plastic bagof marijuana from the oven, a plastic cup containing crack cocaine from a kitchen cabinet, a saltcontainer in the trash containing plastic bags of crack and powder cocaine, and large plastic bagscontaining marijuana from a bedroom closet.”

G&S 533 Sufficiency of the Evidence: Appellant challenges the sufficiency of the evidence to support his

convictions for possession of a controlled substance and possession of marijuana. He challenges theevidence as being insufficient to show he knowingly exercised care, custody, and control over thecontraband seized from the home. He also challenges the sufficiency of the evidence to show that he hadexclusive possession of the home.

Holding: The record reflects that over the course of two or three months, officers observed Appellant atthe home almost every day. Each time Appellant arrived, he used a key to enter, and as he left the home,he used a key to lock the door. Officers did not see any other person use a key to enter the home, and noone entered the home when Appellant was not there. Officers could not recall seeing activity at the homewhen Appellant was not inside. *** An electric bill bearing the home’s address was found in Appellant’sbackpack. Officers also discovered over $2,000 in small denominations inside Appellant’s backpack.Appellant gave officers a key to the home to enter and execute a search warrant. *** To the extentAppellant suggests that the contraband belonged to someone else, we note that control over contrabandneed not be exclusive, but can be jointly exercised by more than one person. *** But, Appellant does notpoint to any evidence of shared possession, and the record, likewise, reflects none. *** Viewing theevidence in the light most favorable to the verdict, a rational trier of fact could have determined beyonda reasonable doubt that Appellant knowingly exercised actual care, custody, control, or management ofthe home and the contraband recovered from it.

G&S 31.015 Search & Seizure / Informants (Identity of Informant): Appellant asserts the trial court erred

in denying his motion to disclose the identity of the confidential informant and in failing to conduct anin camera hearing as to the identity.

Holding: As reflected in the affidavit, the officer knew Appellant by name and by sight from other priornarcotics investigations and knew Appellant used the alias “Gator.” The record reflects that theinformant’s information was used to obtain probable cause for a search warrant, not to establishAppellant’s identity or his connection to the premises, as Appellant contends. *** There is no evidencethat the confidential informant participated in the offenses for which Appellant was charged. *** Noris there evidence that the informant participated in the execution of the search warrant. *** Under thesecircumstances, Appellant has not demonstrated that he met the threshold burden of showing that theinformant’s testimony was necessary to a fair determination of guilt or innocence. *** The trial court didnot err in denying Appellant’s motion.*** Therefore, an in camera hearing was not required to determinewhether the informant’s identity would be admissible.

G&S 31.024 Search & Seizure / Probable Cause (Misstatements in Affidavit?): Appellant asserts the trial

court erred in failing to conduct an evidentiary hearing and in denying his related motion to suppress,in which he asserted that the probable-cause affidavit contained false statements. Appellant contendsthat he made the requisite showing of falsity to warrant an evidentiary hearing under Franks v.Delaware, 438 U.S. 154 (1978), and that the trial court should not have denied his related motion tosuppress.

Holding: To be entitled to a Franks hearing, a defendant must request one and make a substantialpreliminary showing that an affidavit supporting a search warrant contains a false statement that wasmade knowingly, intentionally, or with reckless disregard for the truth. *** Because Appellant did not

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make the requisite showing, he was not entitled to a Franks hearing. *** Likewise, the trial court didnot abuse its discretion in overruling Appellant’s related motion to suppress.

G&S 327.02 Court’s Charge / Punishment Charges / Burden of Proof: Appellant did not object to the

court’s charge. Nevertheless, he asserts that he suffered egregious harm because the trial court’spunishment charge did not instruct the jury that the State’s burden with regard to evidence ofAppellant’s prior criminal record was proof beyond a reasonable doubt. According to Appellant, the jurycharge should have reflected an instruction that the State was required to prove the additional criminalconvictions beyond a reasonable doubt.

Holding: In any final conviction, the evidence has been subjected to judicial testing of guilt with abeyond-a-reasonable-doubt standard of proof, and the burden of proof has been met. The trial court didnot err in failing to instruct the jury that the State’s burden with regard to evidence of Appellant’s priorcriminal record was proof beyond a reasonable doubt because all of the evidence as to Appellant’scriminal behavior was in the form of prior convictions, which had been subjected to judicial testing underthe proper burden of proof, and that burden had been satisfied. Such an instruction would have beenuseless because no evidence of unadjudicated offenses was introduced.

Ed Note: Based on its review of the record and the State’s agreement with Appellant’s argument, thejudgment was reformed to show a conviction for simple possession of controlled substance in one of thejudgments.

Volume 21, Number 30 - July 29th

Case Name: The State of Texas v. Jeffrey Brian Coker RETURN TO TABLE OF CONTENTS

! OFFENSE: Possession of Methamphetamine in a Drug Free Zone / State’s Appeal ! COUNTY: Dallas ! C/A CASE No. 05-12-0616-CR ! DATE OF OPINION: July 17, 2013 ! DISPOSITION: Trial Court Reversed OPINION: Bridges, J. ! TRIAL COURT: 291st D/C; Hon. Susan Hawk ! LAWYERS: Lori Ordiway (Defense); Michael Casillas (State)

Ed Note: After getting a tip, from an informant whose name was not revealed in the search warrantaffidavit, that Appellant was “was involved in the clandestine manufacturing of Methamphetamine atthe dwelling,” Garland police detective M.R. Roberds conducted surveillance of Appellant’s residence andnoticed several full trash bags next to “the large City of Garland trash receptacle adjacent to theresidence.” The next morning he noticed that the trash receptacle had been placed at the curb for pick-up. Two hours later, narcotics investigator M. Mendoza collected the trash receptacle and transportedit to the police department for examination. The inspection of the trash revealed numerous materialsused in the manufacture of methamphetamine. The officers also recovered an off-white powdersubstance and a piece of mail addressed to Appellant at the target residence. Subsequent testing of theoff-white powder confirmed the presence of methamphetamine.

G&S 32.014 Search & Seizure / Probable Cause (Informant’s Tip + Additional Investigation): Based on

Roberds' affidavit, the trial court issued a search warrant for Appellee's residence. After he was indicted,Appellee filed motions to suppress on the grounds the search of his residence was conducted pursuantto a search warrant issued upon an affidavit that did not contain written sworn averments of factsufficient to constitute probable cause. At the hearing on his motions to suppress, Appellee argued thesearch warrant affidavit was based on an anonymous citizen tip and a single examination of his trash. Defense counsel argued “there’s not a single Texas case where an anonymous tip plus a single search

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of the trash has ever established probable cause.” The trial court granted the motions to suppress. Onappeal, the State argues the search warrant affidavit contained sufficient facts from which themagistrate was entitled to find probable cause.

Holding: The magistrate was entitled to rely on the information provided by the private citizen. *** Theletter addressed to [Appellee] provided a direct link between the drugs in [Appellee]’s trash and[Appellee]’s house. *** In addition to the methamphetamine recovered from [Appellee]’s trash, policerecovered what amounted to a “methamphetamine lab in a bag,” a variety of items used in themanufacture of methamphetamine. *** We conclude that the trash search in this case was sufficient toestablish probable cause to search [Appellee]’s house in light of the totality of the circumstances. Thiscase is similar to those cases where a single trash search revealed the presence not only of residue of acontrolled substance but was coupled with other circumstances. Further, in this case, officers conductedsurveillance two days in a row at [Appellee]’s residence, establishing that the searched trash bags werepresent both days. We conclude the presence of the “methamphetamine lab in a bag” in this case, in lightof the totality of the circumstances, provided the magistrate with a substantial basis to concludemethamphetamine was probably in [Appellee]’s residence at the time of the search.

Volume 21, Number 31 - August 5th

Case Name: Nilda Iliana Rodriguez v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: Felony Murder ! COUNTY: Bell ! C/A CASE No. 03-10-0715-CR ! DATE OF OPINION: July 31, 2013 ! DISPOSITION: Conviction Affirmed OPINION: Goodwin, J. ! TRIAL COURT: 426th D/C; Hon. Martha Trudo ! LAWYERS: Jim Kreimeyer (Defense); Bob Odom (State)

Ed Note: (Background Facts) Appellant gave birth to her son on October 8, 2008, and already had otherchildren. After her son was discharged from the hospital, Appellant was solely responsible for his careas well as her other children’s care, as her husband was overseas at the time. Her son died on December3, 2008, as a result of malnutrition, dehydration, and medical neglect. Appellant did not take her sonto see a doctor from the day that he went home from the hospital until the day he died. On that day, EMSwas called to Appellant’s home. Her son was taken to the hospital where he was pronounced dead.

G&S 22 Charging Instruments / Requirements of Indictment or Information: In two paragraphs, the State

charged Appellant with felony murder. The State alleged that Appellant committed and attempted tocommit the felony offense of injury to a child and “in the course of and in furtherance of the commissionand attempted commission of the said felony, Nilda Iliana Appellant, did attempt to commit and commitan act clearly dangerous to human life which caused the death of [her child].” On appeal, Appellantclaimed that “The indictment does not support appellant’s conviction for felony murder because thepredicate felony of injury to child, as alleged in each paragraph of the indictment, [is] committed byomission, not acts, as required by section 19.02(b)(3) [of the Texas Penal Code].”

Holding: Rodriguez contends that the State prosecuted her under the wrong statute and theory of law.She argues that the indictment only alleged omissions, not affirmative acts, and that injury to a childby omission cannot support the offense of felony murder. Rodriguez, however, did not file a motion toquash the indictment, object to the indictment at any time during the trial, or otherwise raise thisargument with the trial court. She, therefore, failed to preserve this issue for appellate review. ***[However] To the extent that Rodriguez’s complaint is that the indictment failed to charge an offenseand, therefore, the trial court did not have subject matter jurisdiction, we may consider this complaintfor the first time on appeal. *** The proper test to determine if a charging instrument alleges ‘an offense’

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Court of Criminal Appeals

Opinions Not Designated for Publication

is whether the allegations in it are clear enough that one can identify the offense alleged.” *** Applyingthis test here, we conclude that the allegations in the indictment “are clear enough that one can identify”that the offense alleged is felony murder under section 19.02(b)(3) of the Penal Code based upon theunderlying felony of injury to a child.

G&S 536 Sufficiency of the Evidence: After both parties had submitted their briefs, the Court of Appeals

requested supplemental briefing from the parties, asking “whether we can and should raise, on our ownmotion, the sufficiency of the evidence to support the conviction and “whether the evidence was sufficientto prove that, as alleged, the Appellant committed an act clearly dangerous to human life in the courseof committing the felony of injury to a child.” In response, both parties filed supplemental briefs thataddressed both issues. “In this context,” the Court addressed Appellant’s challenge in her supplementalbrief to the legal sufficiency of the evidence to support the judgment of conviction. Similar to herchallenge to the indictment raised in her appellant’s brief, Appellant argued that the conduct alleged inthe indictment and proven at trial -- “starvation and neglect” -- were “omissions,” and that the felonyoffense of injury to a child by omission cannot support felony murder because felony murder requires an“act.”

Holding: The jury could have reasonably inferred from the evidence presented that the defendantcommitted acts -- such as continuously feeding her son far less than he needed -- in starving her sonthat were “clearly dangerous to human life.” *** Viewing the evidence in the light most favorable to theverdict, we conclude that the evidence was legally sufficient to support the conviction.

Concurring / Dissenting Opinions: Justice Field concurred, arguing that, because Appellant did not raisesufficiency of the evidence in her original brief, she has not preserved the ground for appeal, and hewould not have joined in the Court’s request for supplemental briefing. Chief Justice Jones filed adissenting opinion, arguing that, “ this Court has a duty, in assessing the legal sufficiency of theevidence, to ensure that the evidence presented actually supports a conclusion that the defendantcommitted the crime that was charged.” He would find that the “evidence here fails to show thatAppellant committed any “act” or an “act clearly dangerous to human life” that caused her son’s death.Thus, the evidence is insufficient to support her conviction for felony murder.”

RETURN TO TABLE OF CONTENTS

No. WR-78,123-01 Ex parte Rodolfo Alvarez Medrano Applicant was convicted of capital murder inHidalgo County in 2005 and sentenced to death. His conviction and sentence were affirmed in an

unpublished opinion in 2008 (see G&S, Vol. 16, No. 47; 12/01/2008). Applicant’s habeas corpus application

under Article 11.071, C.Cr.P., was due to be filed not later than November 26, 2007. Habeas counseltimely filed a motion seeking the 90 day extension permitted by Art. 11.071, but it was not granted intime to be effective. Thus, when original appointed counsel filed an application in November 2007, it wasnot timely filed. Subsequently, the Court determined that counsel did not have good cause for his latefiling. The original application was struck and new counsel was appointed. On July 31, 2013, on motionby Applicant’s new lawyer, the Court held, in an unpublished per curiam opinion, that, because initialhabeas counsel’s writ application, filed on November 20, 2007, was untimely and ultimately struck - withhabeas counsel being replaced, if replacement habeas counsel’s application is timely filed, it will bedeemed to have been “timely filed as of November 20, 2007.”

Concurring / Dissenting Opinions: Presiding Judge Keller dissented, arguing that the Court does nothave authority to grant such an extension and, similarly, has no authority to backdate an applicationin these circumstances. She was joined by Judge Keasler and Judge Hervey. Judge Meyers dissentedwithout note.

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Sidebars: (David A. Schulman) This is totally unnecessary, and inconsistent with the Court’s practices. The issue isn’t yet ripe, because new counsel hasn’t yet filed an application, so this opinion, at best, isan “advisory” opinion. The question of whether the original writ application was timely filed affects onlythe AEDPA time limit. The much better way to handle this would have been for the court to determinethat, under Article 11.071, the habeas corpus proceeding is pending from the time of the originalappointment until the time the Court disposes of the case.

Third Court of Appeals (Austin)

Case Name: Brithe Thompson v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: Possession of Prohibited Weapon ! COUNTY: Williamson ! C/A CASE No. 03-12-0569-CR ! DATE OF OPINION: July 31, 2013 ! DISPOSITION: Conviction Affirmed OPINION: Jones, CJ. ! TRIAL COURT: CCL 1; Hon. Suzanne Brooks ! LAWYERS: Cherie Ballard (Defense); Kevin Stryker (State); Lisa McMinn (SPA)

Ed Note: (Background Facts) DPS Trooper Jason Ernst stopped Appellant for speeding while she wasdriving southbound on Interstate 35 at 84 m.p.h. in a 70 m.p.h. zone. After Appellant pulled over on thehighway shoulder, Ernst parked his patrol car and walked to the passenger side window and saw thatAppellant was sitting in the car wearing only a bra and pants, which he considered unusual behavior.

G&S 31.028 Search & Seizure / Continued Detention: Approximately 11 minutes after he first identified

himself to Appellant, Ernst got on his radio and requested that another officer join him. He also beganasking over the radio for a K-9 unit to come to the scene. Ernst got out of the car and told Appellant thathe was asking for a K-9 unit to come. He stated to her, “That’s why we’re waiting.” Ernst returned to hispatrol car, after which there followed more discussion over the radio about the availability of a K-9 unit.After a minute or so, a K-9 unit officer responded that he was nearby and could be there in 15 minutes.Ernst then got out of the patrol car, approached Appellant, and told her that the K-9 unit was en routeand would be there in 10 minutes. Ernst then returned to his car where he began talking to a secondofficer who had by then arrived at the scene. Ernst told the officer that a K-9 unit was on the way andexplained that Appellant had been driving the car in her bra, was nervous and fidgety, and did not haveher driver’s license with her. Ernst told the officer that Appellant had refused to give him consent tosearch the vehicle. The officer asked Ernst if Appellant “had a history,” and Ernst responded that therewas “nothing.” The officer asked Ernst if he had asked Appellant where she stayed the night before, towhich Ernst responded: “No, she would have no clue.” Ernst then stated that Appellant was “nice” at firstbut that her attitude changed when he asked to search her car and told him that it was her right not togive him her consent. Ernst recounted the conversation he had had with Appellant regarding why hewanted to search her car, to which the other officer responded that they would just have to wait and see“how good” the K-9 unit was and stated, “We’ll see what happens.” The officer added that if anyone hadsmoked anytime within the last two weeks in or around the vehicle, the dog would alert. When the K-9Unit arrived, the dog “alerted” on the vehicle. Ernst then searched the inside of the vehicle where hefound marijuana seeds by the driver’s side door and in the driver’s seat and marijuana “shake” on thedriver’s side floorboard. Inside a purse on the passenger’s Ernst testified that the term “shake” refersto the residue from ground marijuana. seat Ernst found a “butterfly knife” (considered a type ofswitchblade). On appeal, Appellant contends that the trial court erred by denying her motion to suppressbecause, “although Ernst’s initial detention of her was proper, the detention was unreasonably extended,rendering the search of her vehicle improper.”

Holding: An investigative stop may last no longer than necessary to effectuate its purpose. Kothe v.

State, 152 S.W.3d 54 (Tex.Cr.App. 2004)(see G&S, Vol. 12, No. 42; 09/29/2003). *** When the traffic-stop

investigation is completed, the detention must end and the driver be permitted to leave. *** Continued

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detention is justified only if the officer has developed reasonable suspicion that the detainee is or will beengaged in criminal activity. It is evident that Ernst had ceased his investigation of the traffic violationfor which he first stopped Appellant at least 15 minutes before the K-9 unit arrived. *** Ernst hadnothing more than an inchoate and unparticularized suspicion or “hunch” that something illegal mightbe in Appellant’s car because she was nervous, had been oddly attired when stopped, and had repeatedlydeclined to give him consent to search the vehicle. Nevertheless, rather than issuing a warning orcitation and permitting Appellant to leave, Ernst called dispatch and requested that a K-9 unit be sentto the scene. Appellant’s continued detention to await the arrival of the K-9 unit after the completion ofthe traffic stop investigation, absent reasonable suspicion of criminal activity, violated her FourthAmendment rights. *** We conclude that the trial court abused its discretion by misapplying the law tothe undisputed facts as reflected in the videotape and Ernst’s testimony. *** Consequently, we sustainAppellant’s first issue and hold that the trial court erred in denying Appellant’s motion to suppress.

G&S 543 Sufficiency of the Evidence: Appellant challenges the sufficiency of the evidence to support her

conviction. She argues that the State failed to establish that the knife in question was a “knife” asdefined in Section 46.01(7) of the Penal Code. Appellant contends that the State failed to introduceevidence that the butterfly knife in her possession was “capable of inflicting serious bodily injury or deathby cutting or stabbing a person with the instrument.”

Holding: In his testimony, Ernst identified the knife he had found in appellant’s car and testified thatit had a serrated edge. The knife was admitted into evidence, and the jury was permitted to take it to thejury room and examine it. Consequently, testimony that the knife was capable of inflicting serious bodilyinjury or death was not required. *** A rational trier of fact could have found beyond a reasonable doubtthat the knife, with its serrated edge, was capable of inflicting serious bodily harm.

Volume 21, No. 32 - August 12th

Case Name: Aghaegbuna Odelugo v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: Engaging in Organized Criminal Activity (Theft Over $200,000) ! COUNTY: Harris ! C/A CASE No. 01-12-0521-CR ! DATE OF OPINION: August 6, 2013 ! DISPOSITION: Conviction Reversed OPINION: Jennings, J. ! TRIAL COURT: 248th D/C; Hon. Joan Campbell ! LAWYERS: Stan Schneider (Defense); Eric Kugler (State)

Ed Note: (Background Facts) Appellant entered an “open” plea of guilty. Appellant agreed to pay$600,000 in restitution at his sentencing hearing, which was set for a later date. Before the trial courtconcluded the subsequently-held sentencing hearing, Appellant, a non-citizen, filed a motion to withdrawhis guilty plea, arguing that his plea was involuntary because his counsel did not apprise him of themandatory immigration consequences of his plea. The trial court denied Appellant’s motion to withdrawhis guilty plea, and, later, after it had concluded the sentencing hearing, assessed his punishment atconfinement for eighteen years.

G&S 124.01 Right to Counsel / Ineffective Assistance of Counsel / Conflict of Interest: In a new trial

motion, Appellant argued that he had received ineffective assistance of counsel because trial counsel,Erik Sunde “had an actual conflict of interest” and “did not advise him of . . . certain immigrationconsequences of his guilty plea.” He asserted that he had delivered $285,000 to Sunde to pay the$600,000 in restitution he was to pay the court pursuant to his guilty plea. The lawyer, however, did notuse the money to pay the required restitution and instead told Appellant that the money was “gone andunavailable.” Appellant asserted that trial counsel “misappropriated the funds making payment to the

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State impossible.” At the hearing on his new-trial motion, Appellant testified that he retained Sundefor $25,000 to represent him in the underlying case and a related federal prosecution against him. Whenhe hired the lawyer, Appellant was concerned about his immigration status, and Sunde told him that ifhe paid $600,000 in restitution, adjudication of his guilt would be deferred in the underlying case andit would be dismissed. Among the other evidence, Appellant offered into evidence a check that he hadwritten to Chase Bank for $160,000, which he used to obtain a cashier’s check to give to Sunde “to payin his trust account towards my restitution.” Appellant testified that, before pleading guilty in both thestate and federal cases, Sunde had not discussed the immigration consequences of his plea; andAppellant noted that he did not “want a trial,” but wanted to “pay off the restitution.” Sunde assertedhis Fifth Amendment right against self-incrimination in connection with Appellant’s new-trial hearing,and refused to testify. The trial court denied appellant’s new-trial motion.

Holding: [A]ppellant’s uncontroverted testimony and affidavit established that he gave Sunde $285,000to pay towards restitution, which Sunde did not pay. Indeed, rather than explain what happened to themoney, Sunde invoked his right not to incriminate himself. *** Here, if Sunde used the money given tohim by Appellant for his own interests rather than paying Appellant’s restitution, as alleged byAppellant, he would be advancing his own interests ahead of appellant’s, constituting an actual conflictof interest. *** And Sunde’s invocation of his own Fifth Amendment right in connection with appellant’snew-trial hearing about matters concerning Sunde’s legal representation of Appellant in connection withthe plea agreement and payment of restitution was itself an advancement of Sunde’s interests aboveAppellent’s interests. *** Although the trial court stated that it would not have held its sentencinghearing with the understanding that adjudication of Appellant’s guilt would be deferred if he paid$600,000 in restitution, the payment of such a significant amount of restitution would have constituteda serious factor to consider in sentencing. And the trial court noted that the $600,000 in restitution wasa condition added into the plea papers by the State. It is apparent that the State would have sought alesser punishment for Appellant had he been able to pay the restitution. Thus, Appellant has established,through his uncontroverted testimony and evidence, that his counsel’s actual conflict of interest adverselyaffected him at trial. *** Accordingly, we hold that the trial court erred in denying Appellant’s new-trialmotion on the ground that his trial counsel had a conflict of interest.

Ed Note: Because of its resolution of this issue, the Court held the it need not reach Appellant’s third andfourth issues, in which he argued that the trial court erred in denying his new-trial motion on the groundthat his trial counsel failed to adequately inform him of the immigration consequences of his guilty plea.

Volume 21, Number 33 - August 19th

Case Name: In re Brett W. Ligon RETURN TO TABLE OF CONTENTS

! OFFENSE: Mandamus Proceeding ! COUNTY: Montgomery ! C/A CASE No. 09-13-0242-CR ! DATE OF OPINION: August 14, 2013 ! DISPOSITION: Relief Denied OPINION: Per Curiam ! TRIAL COURT: CCL 4; Hon. Mary Ann Turner ! LAWYERS: Michael Young & Gilbert Garcia (Real Party Joseph Leners); Katherine Shipman

(Real Party Robert Anderson); Jerald Crow (State); Bill Delmore (Relator)

Ed Note: (Background Facts) Real parties in interest Joseph Michael Leners and Robert Tyler Andersonwere arrested on warrants and charged by complaint and information with trespass. The entry on theproperty and the breaking in or entry in the vehicle are alleged by the State to be without the effectiveconsent of the owner, Brett W. Ligon, the elected District Attorney. Leners and Anderson filed motionsto disqualify the District Attorney due to his dual status in the cases. They supplemented the motionsto specify that a failure to disqualify the District Attorney and his staff would violate due process. They

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asserted that the District Attorney is personally interested in the cases as a private citizen. The trialcourt signed orders granting the motions to disqualify and appointing a special prosecutor.

Holding: Relator appoints the assistant district attorneys who carry out the duties of his office. ***Following uniform case-law, the trial court could reasonably rule that because the District Attorney isdisqualified, all Assistant District Attorneys in the district are also disqualified. *** To obtain a writ ofmandamus from an appellate court requiring a trial court to withdraw an order, the Relator mustdemonstrate not only that there is no adequate legal remedy, but also that there is a clear andindisputable right to the relief. *** We cannot say the trial court’s disqualification decision “lies ‘outsidethe zone of reasonable disagreement.’” *** On the mandamus record presented, Relator has failed toshow a clear and indisputable right to the relief sought. *** The petition for writ of mandamus istherefore denied.

Volume 21, Number 34 - August 26th

Case Name: John Acosta v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: Delivery of a Counterfeit Instrument ! COUNTY: Harris ! C/A CASE No. 01-12-0151-CR ! DATE OF OPINION: August 15, 2013 ! DISPOSITION: Conviction Affirmed OPINION: Brown, J. ! TRIAL COURT: 178th D/C; Hon. David Mendoza ! LAWYERS: Brian Wice (Defense); David Newell & Alan Curry (State)

Ed Note: (Background Facts) During an investigation into the sale of allegedly counterfeit documentsat a Houston flea market, HPD Officer Garza used an alias and purchased a Louisiana identification cardfrom Appellant, who was working at a flea market booth, which displayed signs or banners stating“Novelty ID cards” and “Not a government document. For novelty use only.” Another sign read, “Thisestablishment does not issue, alter, or duplicate government records or documents.” There was also asign indicating that all activities were video taped.

G&S 537 Sufficiency of the Evidence (Counterfeiting): Garza asked to buy a Louisiana identification card

and told Appellant that he planned to work in Louisiana and wanted to cash checks there. Garza testifiedthat Appellant did not tell him that the card he was making was a novelty item or that it would not beappropriate for cashing checks because it was not for official use. Before buying the card, Officer Garzafilled out a form which stated “Novelty Form” at the top, “Not a Government Document” in the middle,and “I know this is not a real I.D. Card” under the signature line for the buyer. The form also includedlines for the buyer’s name, street address, city, state, zip code, date of birth, eye color, height, and sex.Garza gave Appellant a Louisiana address. Appellant asked for Garza’s weight, which he provided, anda Social Security number. Garza did not have one; a number was not put on the card. Appellant alsoasked for a Social Security card for identification “or do I invent one?” Appellant was arrestedapproximately two weeks after Garza bought the card. At the time of the arrest, the police recoveredblank ID cards in boxes, blank and completed card forms, the printer that Appellant used on the day inquestion, a laptop computer, and a signature pad. A computer forensics expert, M. Kelly, reviewed thecontents of the computer and testified that the computer was registered to Rosa Acosta and that he founddocuments indicating Appellant had used the computer. The computer also contained a softwareprogram called Instant ID Plus that creates identification cards from different templates. On appeal,Appellant challenges the sufficiency of the evidence. He asserts that the disclaimers that the card was“for novelty use only,” “not a government document,” and “not for official use” precluded a rational factfinder from concluding beyond a reasonable doubt that he intended to create or sell a counterfeitidentification card.

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 15

Holding: [Appellant] manufactured the identification card and sold it to Officer Garza. The identificationcard purports to be an identification card issued by the State of Louisiana and closely resembles aLouisiana driver’s license, as shown in the guide to which [Appellant] referred when making the card “toget it right.” *** Although Garza, in his requests to [Appellant], repeatedly stated that he wanted thecard to appear authentic and that he intended to use the identification card to cash checks, [Appellant]did not inform Garza that the card could not be used for this purpose. Finally, the jury viewed the videoof the transaction at the flea market, saw the card that Garza purchased from [Appellant], and saw theguide that [Appellant] used to make the card. Viewing the evidence in the light most favorable to the juryverdict, we conclude that the evidence is legally sufficient to support the conviction.

G&S 324 Court’s Charge / Defensive Issues (Mistake of Fact): Appellant contends that the trial court erred

in failing to instruct the jury on the defense of mistake of fact. He asserts that he was entitled to amistake-of-fact instruction based on the evidence of the disclaimers printed on the identification card anddisplayed at the flea market booth in combination with testimony that a government-issued identificationcard would not contain those disclaimers. Appellant did not request a jury instruction on the defense ofmistake of fact or object to a failure to include an instruction. Recognizing that he did not request aninstruction, he further asserts that the failure to instruct the jury egregiously harmed him. In effect,Appellant contends that the trial court was required to submit the instruction sua sponte and the failureto do so was erroneous.

Holding: A trial court . . . has no duty to instruct a jury on a defensive issue sua sponte. *** Indeed, theCourt of Criminal Appeals has specifically held that a trial court does not err in failing to submit thedefense of mistake of fact under article 36.14 unless the defendant timely requests the issue or objectsto the omission of the issue from the jury charge. Posey v. State, 966 S.W.2d 57 (Tex.Cr.App. 1998)(see

G&S, Vol. 6, No. 12; 03/30/1998). Acosta did not request that the trial court include a jury instruction on

the mistake-of-fact defense. Absent that request, he cannot demonstrate error in the charge.

G&S 124 Right to Counsel / Ineffective Assistance of Counsel: Appellant contends that his trial counsel

was ineffective because counsel failed to request a jury instruction on the defense of mistake of fact. Heraised his ineffective assistance complaint in a motion for new trial, at which trial counsel testified atlength about the mistake-of-fact defense and his decision not to request an instruction. He testified thatco-counsel and he were focused on the words “forged” and “counterfeit” and “they were part and parcelwith the word ‘intent’ because of the way the statute reads, whether or not he intended to forge -- presenta forged or a counterfeit or produce a forged or counterfeit document.” Trial counsel also testified thatthere was a tactical downside to requesting the instruction -- getting an instruction that the defense didnot want. He testified that he believed arguing a mistake-of-fact defense would be tantamount to anadmission that Appellant committed a crime by creating a counterfeit document and would underminethe defensive theory that no crime was committed.

Holding: Appellant contends that trial counsel’s decision not to request a mistake-of-fact instruction isnot entitled to any deference because the decision was not based on an informed legal and factualinvestigation, was based on a misunderstanding of the law, and produced no tactical benefit. Acosta’sargument rests, in part, on an argument that he was entitled to the instruction, if requested in this case.But even if Acosta were entitled to the instruction, if requested, we cannot conclude that the failure torequest the instruction was uninformed. Trial counsel and his co-counsel met with Acosta multiple times,read the State’s file on the case, read the offense report, and obtained discovery. Trial counsel testifiedthat, as to mistake-of-fact, he did not recall conducting any “independent pretrial research” on thedefense but looked at the statute once the jury charge was discussed. *** We cannot conclude thatAcosta’s counsel’s choice not to request an instruction was an unreasonable trial strategy. The trialcourt’s ruling that Acosta was not denied effective assistance of counsel does not lie outside the zone ofreasonable disagreement. *** Considering the evidence in the light most favorable to the trial court

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ruling and in light of trial counsel’s reasonably articulated trial strategy to not request the juryinstruction, Acosta fails to meet the first prong of the Strickland test.

G&S 334 Prosecutorial Misconduct / Improper Argument (Striking at the Defendant): Appellant contends

that the State struck at defendant over counsel’s shoulder in two instances. First, the State arguedduring closing, “Now, with respect to the transcript, don’t be fooled by this. Okay. This is good lawyering,folks.” Second, the State argued, “So the idea that this is a legitimate business that paid taxes, that hadsome sort of franchising agreement, that’s not evidence. That was just words from the defense attorney’smouth. You have no proof of that. And I think, you know why you don’t have proof of that.”

Holding: In his jury argument, [Appellant]’s trial counsel referred directly to the transcript of thetransaction between [Appellant] and the officers on the day in question and to comments that the officersmade to each other about “stick[ing]” [Appellant] with a felony. The State’s argument about thetranscript responded directly to [Appellant]’s counsel’s argument. The State’s argument about “wordsfrom the defense attorney’s mouth” responded to [Appellant]’s counsel’s argument that [Appellant]worked at a “business.” During the trial, [Appellant]’s counsel questioned Officer Garza about whetherhe knew if the flea-market-booth business was registered in Texas and paid franchise taxes. Garzaanswered that he did not know. During the jury argument, [Appellant]’s counsel referred to “the placeof business” and “the business.” The State’s argument responded to defense counsel’s argumentsuggesting that [Appellant] operated a legitimate business.

G&S 334 Prosecutorial Misconduct / Improper Argument (Arguing Outside the Record): Appellant

contends that the trial court erred in overruling his objections to the State’s argument on matters outsidethe record. He asserts that the State argued matters outside the record when it argued that “every pieceof evidence . . . represented identification . . . to be used against real victims.” Appellant’s counselobjected to the argument as outside the record and inflammatory; the trial court overruled the objection.The State continued to discuss ways in which a fake identification could be used. The State concludedits argument with reference to a seventeen-year-old who goes “to the club to get drunk, and she gets ina car wreck on her way home and her mother gets that horrible call . . . as to why her 17-year-old isdrinking alcohol in a club.” The trial court again overruled defense counsel’s objection. The Statecontinued its argument, referring to an illegal immigrant who uses “that identification” to collect apaycheck and a college student who does not get student loans because someone else used his identity.Appellant’s counsel again objected, “He’s not on trial for identity theft. He’s on trial for creating whatthey believe to be a forged document. This argument goes way beyond the scope of this crime and whatthey have to prove in their burden. [The State’s] trying to inflame the jury. It’s improper argument.”

Holding: The State’s argument was not improper. The State did not argue that [Appellant] committedidentity theft. The State referred to identifications “in the hands of people who may or may not, butprobably will, use these identifications for criminal purposes.” Additionally, the evidence includedtestimony about use of fake identification documents in scams and for identity theft and about recordsfound on the computer seized at the flea market booth detailing approximately 212 transactions relatedto making IDs. Use of false identifications in identity theft is common knowledge. Thus, the State’sargument was a permissible plea for law enforcement.

G&S 334 Prosecutorial Misconduct / Improper Argument (Misstating the Law): Appellant contends that

the trial court erred in overruling his motion for mistrial after the State misstated the law contained inthe jury charge during the State’s final argument. But Appellant also acknowledges that the trial courtsustained his counsel’s objections. When it sustained the objections, the trial court directed the jury tothe statement of the law contained in the charge as a statement of what the State was required to provebeyond a reasonable doubt. Appellant asserts that sustaining the objection and directing the jury to thecharge did not cure the error.

Holding: [Appellant] does not point out, nor can we find, where in the record he requested a mistrial.When an appellant has been given all the relief he requested, “there is nothing to complain of on appeal.”

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 17

TIBA’s Case of the Week

Courts of Appeals - Criminal Cases

*** The trial court sustained [Appellant]’s objections and directed the jury to the law set out in the court’scharge. [Appellant] did not move for a mistrial and did not object to the State’s further argument on thelaw. [Appellant] did not preserve a complaint for appeal.

Volume 21, Number 35 - September 2nd

Case Name: Jerry Paul Lundgren v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: DWI (Probation Revocation) ! COUNTY: Wise ! C/A CASE No. 02-12-0085-CR ! DATE OF OPINION: August 22, 2013 ! DISPOSITION: Trial Court Affirmed OPINION: Gabriel, J. ! TRIAL COURT: CCL; Hon. Melton Cude ! LAWYERS: Barry Green (Defense); James Stainton (State)

Ed Note: (Background Facts) On August 18, 2010, Appellant was charged by information with drivingwhile intoxicated. The information included an allegation that Appellant previously had been convictedof driving while intoxicated in 2009. Appellant pled guilty to the information under a plea-bargainagreement, and the trial court sentenced Appellant to 365 days’ confinement on January 7, 2011. Thetrial court suspended Appellant’s sentence and placed him on community supervision for 18 months. Thecommunity-supervision terms prohibited Appellant from committing any new offense and required himto abstain from alcohol. The trial court’s judgment stated that the sentence commenced that same day --January 7, 2011. Appellant’s plea-bargain agreement further included the provision that “the defendanthas NO right of appeal.” Seven days later on January 14, 2011, Appellant again was arrested andcharged with driving while intoxicated.

Ed Note: (Procedural History) On January 19, 2011, Appellant filed a notice of appeal from hiscommunity-supervision sentence. On January 28, 2011, Appellant filed a motion for new trial, which wasoverruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion torevoke Appellant’s community supervision based on the new January 14, 2011 offense and Appellant’suse of alcohol -- both of which violated the community-supervision terms. On March 3, 2011, the Courtof Appeals dismissed Appellant’s appeal for want of jurisdiction based on Appellant’s waiver and issuedmandate on May 12, 2011.

G&S 410.02 Probation / Terms of Probation (Date of Effect): On July 13, 2011, Appellant sought to quash

the State’s motion to revoke his community supervision because the grounds for the motion—Appellant’sarrest for a new offense and use of alcohol—occurred when the community-supervision terms had nottaken legal effect. The trial court denied the motion and explained that Appellant’s “failure to obtainpermission of the trial court was a failure at the trial court level, not the appellate court level, so theprobation terms came into effect immediately” on January 7, 2011. During the subsequent hearing onthe State’s motion to revoke, Appellant sought to suppress any evidence discovered during Appellant’sJanuary 14, 2011 arrest based on a lack of “reasonable suspicion or probable cause to detain and seize[Appellant].” The trial court denied Appellant’s motion to suppress, found by a preponderance of theevidence that Appellant had violated the terms of his community supervision, revoked Appellant’scommunity supervision, and sentenced him to 300 days’ confinement. On appeal, Appellant argues thatthe trial court erred by denying his motion to quash the State’s motion to revoke community supervisionbecause the judgment on which the community supervision was based had been appealed. In short,Appellant asserts that the terms of his community supervision did not begin until after this court issued

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 18

its mandate; therefore, his arrest on January 14, 2011, and use of alcohol could not violate terms thatwere not in effect at that time.

Holding: [T]he question we are asked to decide is when the terms of a community-supervision judgmenttake effect if the defendant violates the terms while the trial court has plenary jurisdiction and beforea notice of appeal or a motion for new trial is filed. No one disputes that Appellant voluntarily pleadedguilty and waived his right to appeal, which prevents him from appealing any issue in the case withoutthe consent of the trial court that was not raised in a written pretrial motion. *** Further, all partiesagree that the terms and conditions of community supervision are not in effect while a case is on appealor during the pendency of a motion for new trial. *** The cases relied on by Appellant to support hisargument are distinguishable. In those cases, the violations did not occur after the communitysupervision was imposed and commenced pursuant to a plea bargain but before a notice of appeal ormotion for new trial was filed. Indeed, in most of the cases, the violations occurred while an appeal ora motion for new trial was pending. *** [W]e conclude that Appellant’s community-supervision termswere in effect at the time he violated them and his subsequent (yet timely) notice of appeal and motionfor new trial were ineffective to retroactively act as a cure for those violations.

Concurring / Dissenting Opinions: Justice Dauphinot filed a dissenting opinion in which she disagreedwith the majority’s conclusion that, because Appellant entered into a negotiated plea and waived hisright of appeal, he cannot do what the Court has indicated in its previous opinions in order to pursueclaims: pursue a motion for new trial. She argued that, “Appellant used rules of procedure to his benefit.The majority holds that he cannot use the rules of procedure to manipulate the system for his benefit.Respectfully, the rules do not change just because a defendant, or the State for that matter, reaps anunintended benefit that we do not approve of. The application of statutes, rules of evidence, and evenrules of procedure must be consistent, no matter who benefits.”

Sidebars: (David A. Schulman) The Court of Appeals cited to and, at least in part, relied on the TylerCourt’s opinion in McConnell v. State, 34 S.W.3d 27 (Tex.App. - Tyler 2000). In that case, some of thedefendant’s probation violations occurred after sentence was imposed but before motion for new trial wasfiled. The Tyler Court held that “prior to the filing of a motion for new trial, the trial court retainsjurisdiction and has the power to exercise its authority to punish violations of its conditions of communitysupervision. To hold otherwise would permit a criminal defendant to manipulate the system to itsmanifest detriment. A defendant could violate his conditions of community supervision within thirtydays of sentencing and then avoid the consequences thereof by filing a motion for new trial. The law andcommon sense do not contemplate such a result. The defendant is subject to the court's control, not viceversa. Once a court acquires jurisdiction, it retains it until something occurs to divest it thereof.” Inthese unusual situations, I believe both the Tyler Court in McConnell and the Court of Appeals in thiscase, reached the correct decision.

Ed Note: The Court of Appeals also rejected Appellant’s claim that the State’s motion to revoke shouldhave been quashed because the post-mandate and nunc-pro-tunc judgments provided that thecommunity-supervision terms “commenced” on June 22, 2011, which was after his January 14, 2011arrest

G&S 31.024 Search & Seizure / Warrantless Arrests / Probable Cause: Seven days after being initially

placed on the probation, Appellant again was arrested following a report to police that the driver of asilver truck was passed out in the drive-through lane of a Whataburger. The responding police officersaw a silver truck in the drive-through lane as reported. The driver, who the officer later identified asAppellant, was awake when the officer approached the truck. Based on Appellant's demeanor and theodor of alcohol, the officer conducted a field sobriety test and then arrested Appellant for driving whileintoxicated. Appellant argues that the evidence obtained after the officer asked him to pull out of thedrive-through lane should have been suppressed because the initial call regarding the silver truck wasunconfirmed and because the officer did not have reasonable suspicion that Appellant was involved incriminal activity or probable cause to arrest him.

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 19

TIBA’s Case of the Week

Courts of Appeals - Criminal Cases

Holding: In this case, the totality of the circumstances, viewed in the light most favorable to the trialcourt’s ruling, shows that the encounter was consensual and, thus, not subject to the requirements of theFourth Amendment. Once the arresting officer performed the partial field sobriety test and had thebenefit of all his observations from the initial voluntary encounter forward, he had sufficient probablecause to arrest Appellant for driving while intoxicated.

Case Name: Jerry Paul Lundgren v. The State of Texas RETURN TO TABLE OF CONTENTS

! OFFENSE: DWI (Probation Revocation) ! COUNTY: Wise ! C/A CASE No. 02-12-0085-CR ! DATE OF OPINION: August 22, 2013 ! DISPOSITION: Trial Court Affirmed OPINION: Gabriel, J. ! TRIAL COURT: CCL; Hon. Melton Cude ! LAWYERS: Barry Green (Defense); James Stainton (State)

Ed Note: (Background Facts) On August 18, 2010, Appellant was charged by information with drivingwhile intoxicated. The information included an allegation that Appellant previously had been convictedof driving while intoxicated in 2009. Appellant pled guilty to the information under a plea-bargainagreement, and the trial court sentenced Appellant to 365 days’ confinement on January 7, 2011. Thetrial court suspended Appellant’s sentence and placed him on community supervision for 18 months. Thecommunity-supervision terms prohibited Appellant from committing any new offense and required himto abstain from alcohol. The trial court’s judgment stated that the sentence commenced that same day --January 7, 2011. Appellant’s plea-bargain agreement further included the provision that “the defendanthas NO right of appeal.” Seven days later on January 14, 2011, Appellant again was arrested andcharged with driving while intoxicated.

Ed Note: (Procedural History) On January 19, 2011, Appellant filed a notice of appeal from hiscommunity-supervision sentence. On January 28, 2011, Appellant filed a motion for new trial, which wasoverruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion torevoke Appellant’s community supervision based on the new January 14, 2011 offense and Appellant’suse of alcohol -- both of which violated the community-supervision terms. On March 3, 2011, the Courtof Appeals dismissed Appellant’s appeal for want of jurisdiction based on Appellant’s waiver and issuedmandate on May 12, 2011.

G&S 410.02 Probation / Terms of Probation (Date of Effect): On July 13, 2011, Appellant sought to quash

the State’s motion to revoke his community supervision because the grounds for the motion—Appellant’sarrest for a new offense and use of alcohol—occurred when the community-supervision terms had nottaken legal effect. The trial court denied the motion and explained that Appellant’s “failure to obtainpermission of the trial court was a failure at the trial court level, not the appellate court level, so theprobation terms came into effect immediately” on January 7, 2011. During the subsequent hearing onthe State’s motion to revoke, Appellant sought to suppress any evidence discovered during Appellant’sJanuary 14, 2011 arrest based on a lack of “reasonable suspicion or probable cause to detain and seize[Appellant].” The trial court denied Appellant’s motion to suppress, found by a preponderance of theevidence that Appellant had violated the terms of his community supervision, revoked Appellant’scommunity supervision, and sentenced him to 300 days’ confinement. On appeal, Appellant argues thatthe trial court erred by denying his motion to quash the State’s motion to revoke community supervisionbecause the judgment on which the community supervision was based had been appealed. In short,Appellant asserts that the terms of his community supervision did not begin until after this court issued

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 20

its mandate; therefore, his arrest on January 14, 2011, and use of alcohol could not violate terms thatwere not in effect at that time.

Holding: [T]he question we are asked to decide is when the terms of a community-supervision judgmenttake effect if the defendant violates the terms while the trial court has plenary jurisdiction and beforea notice of appeal or a motion for new trial is filed. No one disputes that Appellant voluntarily pleadedguilty and waived his right to appeal, which prevents him from appealing any issue in the case withoutthe consent of the trial court that was not raised in a written pretrial motion. *** Further, all partiesagree that the terms and conditions of community supervision are not in effect while a case is on appealor during the pendency of a motion for new trial. *** The cases relied on by Appellant to support hisargument are distinguishable. In those cases, the violations did not occur after the communitysupervision was imposed and commenced pursuant to a plea bargain but before a notice of appeal ormotion for new trial was filed. Indeed, in most of the cases, the violations occurred while an appeal ora motion for new trial was pending. *** [W]e conclude that Appellant’s community-supervision termswere in effect at the time he violated them and his subsequent (yet timely) notice of appeal and motionfor new trial were ineffective to retroactively act as a cure for those violations.

Concurring / Dissenting Opinions: Justice Dauphinot filed a dissenting opinion in which she disagreedwith the majority’s conclusion that, because Appellant entered into a negotiated plea and waived hisright of appeal, he cannot do what the Court has indicated in its previous opinions in order to pursueclaims: pursue a motion for new trial. She argued that, “Appellant used rules of procedure to his benefit.The majority holds that he cannot use the rules of procedure to manipulate the system for his benefit.Respectfully, the rules do not change just because a defendant, or the State for that matter, reaps anunintended benefit that we do not approve of. The application of statutes, rules of evidence, and evenrules of procedure must be consistent, no matter who benefits.”

Sidebars: (David A. Schulman) The Court of Appeals cited to and, at least in part, relied on the TylerCourt’s opinion in McConnell v. State, 34 S.W.3d 27 (Tex.App. - Tyler 2000). In that case, some of thedefendant’s probation violations occurred after sentence was imposed but before motion for new trial wasfiled. The Tyler Court held that “prior to the filing of a motion for new trial, the trial court retainsjurisdiction and has the power to exercise its authority to punish violations of its conditions of communitysupervision. To hold otherwise would permit a criminal defendant to manipulate the system to itsmanifest detriment. A defendant could violate his conditions of community supervision within thirtydays of sentencing and then avoid the consequences thereof by filing a motion for new trial. The law andcommon sense do not contemplate such a result. The defendant is subject to the court's control, not viceversa. Once a court acquires jurisdiction, it retains it until something occurs to divest it thereof.” Inthese unusual situations, I believe both the Tyler Court in McConnell and the Court of Appeals in thiscase, reached the correct decision.

Ed Note: The Court of Appeals also rejected Appellant’s claim that the State’s motion to revoke shouldhave been quashed because the post-mandate and nunc-pro-tunc judgments provided that thecommunity-supervision terms “commenced” on June 22, 2011, which was after his January 14, 2011arrest

G&S 31.024 Search & Seizure / Warrantless Arrests / Probable Cause: Seven days after being initially

placed on the probation, Appellant again was arrested following a report to police that the driver of asilver truck was passed out in the drive-through lane of a Whataburger. The responding police officersaw a silver truck in the drive-through lane as reported. The driver, who the officer later identified asAppellant, was awake when the officer approached the truck. Based on Appellant's demeanor and theodor of alcohol, the officer conducted a field sobriety test and then arrested Appellant for driving whileintoxicated. Appellant argues that the evidence obtained after the officer asked him to pull out of thedrive-through lane should have been suppressed because the initial call regarding the silver truck wasunconfirmed and because the officer did not have reasonable suspicion that Appellant was involved incriminal activity or probable cause to arrest him.

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 21

Holding: In this case, the totality of the circumstances, viewed in the light most favorable to the trialcourt’s ruling, shows that the encounter was consensual and, thus, not subject to the requirements of theFourth Amendment. Once the arresting officer performed the partial field sobriety test and had thebenefit of all his observations from the initial voluntary encounter forward, he had sufficient probablecause to arrest Appellant for driving while intoxicated.

TIBA’s Texas Law Reporter - Summer Update - September 12, 2013 - Page 22