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DWI Defense, Criminal Defense, Traffic Tickets, Family Law
COURT OF CRIMINAL APPEALS (November 14, 2014)

CCA granted habeas relief because D met her burden in satisfying both prongs of the
Strickland test to establish that she received ineffective assistance.
Ex parte Overton, No. WR-
75,804-02 (Tex.Crim.App. Sept 17, 2014).


D, convicted of capital murder for the death of a four-year-old, met the two Strickland prongs: Defense
counsel's performance fell below a reasonable standard, and there was a reasonable probability that the
outcome of D's trial would have been different but for that performance. First, counsel admittedly failed to
present the testimony of the leading expert on hypernatremia, or sodium intoxication. Second, there was a
reasonable probability that counsel's performance affected the result of the trial. The doctor was extremely
well qualified; his deposition not only refuted much of the State's testimony, but also established that he
was better informed on the subject of salt intoxication than the State's expert. Because CCA granted relief
on D's first claim of ineffective assistance, there was no need to address the second issue of whether the
State failed to disclose exculpatory evidence. CCA reversed D's conviction and remand her case to the
trial court for a new trial. Cochran concurred. Keller dissented.


D's guilty plea was unknowing and involuntary because, on further inspection, the seized
substances did not contain illicit materials.
Ex parte Mable, No. WR-81,358-01 (Tex.Crim.App.
Sept 17, 2014).


D pleaded guilty to possession of a controlled substance and was sentenced to two years' imprisonment
pursuant to a plea bargain. He did not appeal. Soon after, the Houston Forensic Science Center finished
testing the seized substances and discovered that they did not actually contain illicit materials. In
response, D filed a habeas application. The State and trial court both agreed that he was entitled to relief
on the basis of "actual innocence." CCA granted relief, but on the basis of an unknowing and thus
involuntary plea.


"At least in Texas cases, the term 'actual innocence' applies only in circumstances where the accused did
not actually commit the charged offense or any possible lesser included offenses. In this case, the
applicant pleaded guilty to possession of a controlled substance. Therefore, it is possible that he intended
to possess a controlled substance (which is not alone an offense) or that he attempted to possess a
controlled substance (which is a lesser included offenses of possession)." However, D was entitled to
relief. Because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be
truly voluntary unless the defendant possesses an understanding of the law in relation to the facts; the
defendant must have "sufficient awareness of the relevant circumstances." The standard is whether the
plea is a voluntary and intelligent choice among the alternative courses of action open to the defendant. In
this case, all parties involved, including D, incorrectly believed D had been in possession of drugs. "This
fact is crucial to this case, and while operating under such a misunderstanding, [D] cannot be said to have
entered his plea knowingly and intelligently." Accordingly, CCA held that D should be allowed to withdraw
his plea. CCA set aside the judgment and remanded D to the sheriff to answer the charge against him.


COA did not have the benefit of CCA's recent decision regarding court costs; CCA vacated
COA's judgment and remanded.
Shaw v. State, 438 S.W.3d 582 (Tex.Crim.App. 2014).

D was convicted of murder and sentenced to life in prison. On appeal, he argued that the evidence was
insufficient to support the $334 in court costs assessed against him. COA agreed, relying on its opinion in
Johnson v. State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012). The State filed a petition for
review to which CCA replied: "We recently handed down our opinion in
Johnson v. State, 423 S.W.3d 385
(Tex. Crim. App. 2014), in which we set forth a roadmap for resolving questions regarding court costs….
The Court of Appeals in the instant case did not have the benefit of our opinion in Johnson. Accordingly,
we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and
remand this case to the Court of Appeals in light of our opinion in Johnson. No motion for rehearing will be
entertained."


For a list of other issues pending before the court,
click here.

COURTS OF APPEALS (October 28, 2014)

Evidence insufficient to support a conviction for making a false entry in a governmental record
based on a federal tax return that D prepared because a federal income tax return is not
included in the governmental records protected under Tex. Penal Code § 37.10(a), in that it is
not a document promulgated by the state, a county, municipality, or political subdivision of the
state, or any branch thereof.
Dean v. State, No. 12-12-00410-CR (Tex.App.-Tyler Oct 22, 2014).

D appealed her conviction for making a false entry in a governmental record. "Because the evidence is
legally insufficient to support the conviction, we reverse and render a judgment of acquittal."

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U.S. Supreme Court hold that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.

Miller v. Alabama, 132 S. Ct. 2455 (2012).

Two 14-year-olds convicted of murder petitioned that their sentences to life imprisonment without the
possibility of parole, under the mandatory schemes of Alabama statutes, were cruel and unusual
punishment. The U.S. Supreme Court reversed the judgments of the Arkansas Supreme Court and
Alabama Court of Criminal Appeals, which held that the mandatory schemes did not violate the Eighth
Amendment.

Mandatory life without parole for a juvenile precluded consideration of his age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevented
taking into account the family and home environment surrounding him—and from which he could not
usually extricate himself—no matter how brutal or dysfunctional. It neglected the circumstances of the
homicide offense, including the extent of his participation and the way familial and peer pressures may
have affected him. It ignored that he might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist his own attorneys. While some states allow
prosecutorial discretion in whether to try a juvenile as an adult, those provisions do not mandate
standards, protocols, or appropriate considerations. Roberts dissented. Thomas dissented. Alito
dissented.

US Supreme Court rules that any invocation of an accused's right to remain silent must
be "unequivocal."

Certiorari from the Sixth Circuit
Berghuis v. Thompkins, 560 U.S. ____, No. 08-1470 (6/1/10)

Reversed
: Kennedy (5-4); Sotamayor dissented w/ Stevens, Ginsburg, Breyer

A Michigan state court convicted Thompkins of first-degree murder, assault with intent to commit murder,
and several firearms related charges. After exhausting his remedies in state court, Thompkins petitioned
for relief in a Michigan federal district court. The district court denied the petition. On appeal, Thompkins
argued that his confession was obtained in violation of the Fifth Amendment and that he was denied
effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court’s finding that Thompkins
waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an
acknowledgment that he had been informed of his Miranda rights and rarely made eye contact with the
officer throughout the three hour interview. The Sixth Circuit also held that the Michigan Supreme Court
improperly determined that Thompkins was not prejudiced by his counsel’s failure to request a limiting
instruction related to his separately tried co-defendant’s testimony.

Questions:
(1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant’s Fifth Amendment
rights were violated?
(2) Did the Sixth Circuit fail to give the state court deference when it granted habeas corpus relief with
respect to defendant’s ineffective counsel argument when there was substantial evidence of the
defendant's guilt?

Conclusion: Yes. Yes. The state court’s decision to reject Thompkins’ Miranda claim was correct.
Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so
“unambiguously.” Moreover, the Court reasoned that Thompkins waived his Miranda right to remain silent
when he “knowingly and voluntarily” made a statement to police. The Court further held that even if
Thompkins’ counsel was ineffective, he cannot show he was prejudiced by counsel’s deficient
performance—a prerequisite to establishing that his Sixth Amendment right was violated.

CCA rules that court cannot order reimbursement of appointed attorney fees unless
Court enters finding that defendant has the financial resources to do so

Mayer v. State,  State Prosecuting Attorney’s PDR from Swisher County – COA’s judgment
affirmed.

Appellant was convicted of aggravated kidnapping and assessed a 30 year sentence. COA affirmed the
conviction and sentence but reversed the trial court’s order that Appellant reimburse the county for court-
appointed-attorney fees in the amount of $2,850.
Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.-
Amarillo 2008) (under article 26.05(g) trial court has authority to order reimbursement of appointed
attorney fees if the court determines that defendant has financial resources that enable him to offset, in
part or in whole, the costs of the legal services provided). Here there was no such showing.  Judgment was
affirmed as reformed.

SPA’s grounds for review:

1. Procedural default. SPA contends Appellant waived his complaint because he did not object to the trial
court's order to repay attorney fees, which it claims is governed by the holding in
Idowu v. State, 73 S.W.
3d 918, 921 (Tex. Crim. App. 2002), that if a defendant wishes to complain about the propriety of, as
opposed to the factual basis for, a trial court's restitution order, he must explicitly do so in the trial court.
The state also compares appellant's failure to object to a situation in which an appellant first challenges on
appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory
provisions. It points to
Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999), in which we held that "[a]
defendant who benefits from the contractual privilege of probation . . . must complain at trial to conditions
he finds objectionable."

Holding: COA properly analyzed and rejected the SPA’s claim of procedural default. CCA points out that
two years after
Idowu, it held that "a claim regarding sufficiency of the evidence [to support a restitution
order] need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to
do so."
Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). Moreover, “Appellant's complaint
about the sufficiency of evidence of his financial resources and ability to pay were likewise not waived by
his failure to raise such a complaint at trial. We reiterate that no trial objection is required to preserve an
appellate claim of insufficient evidence, thus the court of appeals did not err in addressing appellant's
complaint about the order to reimburse court-appointed attorney fees.” CCA therefore rejects the SPA’s
argument that such a complaint must be raised in the trial court or on a motion for new trial.

2. COA should have remanded the indigency issue to the trial court to decide. Appellant argues that the
trial court had already found Appellant indigent and appointed counsel at trial and on appeal, so a remand
would be pointless. CCA also points to also observe that article 26.04(p), which provides that "[a]
defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder
of the proceedings in the case unless a material change in the defendant's financial circumstances
occurs."

Holding: COA committed no error when it determined that the trial court erred in ordering reimbursement
of attorney fees without remanding the case to the trial court. “When claims of insufficient evidence are
made, the cases are not usually remanded to permit supplementation of the record to make up for alleged
deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record
evidence in the light most favorable to the verdict. In this case, there is no indication that the state was
precluded from presenting evidence and being heard on the issue of appellant's financial resources and
ability to pay for reimbursement of the court-appointed-attorney fees.”

Judgment is therefore affirmed.
RECENT TEXAS APPELLATE DECISION SUMMARIES
courtesy of the Texas Criminal Defense Lawyers Association