Ninth Court of Appeals Opinions: October 30, 2019

Criminal defense appellate opinions released on October 30, 2019 by the Ninth Court of Appeals in Jefferson County, Texas can be found here.

Redmond v. Texas: A jury convicted appellant Donald Ray Redmond Jr. of evading arrest or detention as a prior felony offender and assessed punishment at three hundred sixty-five days of confinement in the county jail and a $4000 fine. In two appellate issues, Redmond contends that the trial court erred by denying his motion for directed verdict and argues that trial counsel provided ineffective assistance….Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found Redmond guilty of evading arrest beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13. In addition, the allegation in the charging instrument that Redmond fled from “Officer Walter” was not a variance; rather, it merely involves a missing allegation. See Grant v. State, 970 S.W.2d 22, 22-23 (Tex. Crim. App. 1998). The charging instrument merely omitted Walter’s first name, and Redmond waived this defect by failing to object to it at trial. See id. at 23 (holding that “officer” as stated in the charging instrument was clearly the officer’s title rather than his first name, the 6 omission of the officer’s first name from the charging instrument was not a variance, and appellant waived the defect by failing to object at trial). We conclude that the evidence was legally sufficient to support the verdict. Therefore, the trial judge did not err by overruling Redmond’s motion for directed verdict….The record does not indicate that Redmond filed a motion for new trial to allege ineffective assistance. The record is silent as to trial counsel’s strategies and tactics. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). Moreover, Redmond cannot demonstrate that, but for counsel’s alleged errors, the outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is this a case in which trial counsel’s ineffectiveness is apparent from the record. See Freeman v. State, 125 S.W.3d 505, 507 (Tex. Crim. App. 2003). Under these circumstances, Redmond cannot defeat the strong presumption of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.

Foster-Smith v. Texas: Foster-Smith appeals the trial court’s order revoking his community supervision and adjudicating his guilt. In July 2016, Foster-Smith pleaded guilty to the offense of sexual assault of a child pursuant to a plea bargain.The trial court deferred adjudication of guilt and placed Foster-Smith on deferred adjudication community supervision for ten years. In December 2018, the State filed a Motion to Revoke Unadjudicated Community Supervision, alleging that Foster-Smith had violated the terms of his community supervision…On appeal, Foster-Smith argues that the State failed to prove that he violated one or more of the conditions of his probation “based on factors within his control[]” or the State failed to prove an actual violation occurred. Foster-Smith’s brief argues that the violations alleged by the State are not specific enough to support a violation and that any violation was a result of factors outside Foster-Smith’s control…The State only needed to establish one of the alleged violations to support revocation of Foster-Smith’s community supervision. See Moore, 605 S.W.2d at 926. As discussed herein, we have determined that the evidence supports at least two grounds of the trial court’s findings—that Foster-Smith failed to attend required counseling and that he accessed HBO television without prior approval. We need not address the trial court’s other findings. See Tex. R. App. P. 47.1. We overrule Appellant’s issues and affirm the judgment of the trial court

Ex Parte Garbett: Garbett appeals from the trial court’s denial of his application for writ of habeas corpus, in which he asserted that double jeopardy and collateral estoppel bar his prosecution as to five counts, four of which involve alleged aggravated sexual assault of a child and one of which pertains to alleged indecency with a child…We conclude that the trial court’s declaration of a mistrial as to counts two, four, five, six, and seven after the jury was unable to reach a verdict as to those counts did not terminate the original jeopardy to which Garbett had been subjected. See Richardson, 468 U.S. at 326; Ex parte McAfee, 761 S.W.2d at 772. We also conclude that Garbett’s various alleged acts of sexual misconduct against the victim do not comprise a single offense, and Garbett is liable for separate prosecution and punishment for each alleged instance. See Vernon, 841 S.W.2d at 410; see also Sledge, 953 S.W.2d at 255-256; Thomas, 753 S.W.2d at 693. We further conclude that Garbett has not shown that the jury made a specific factual determination as to counts two, four, five, six, and seven. See Stevens, 235 S.W.3d at 740; Guajardo, 109 S.W.3d at 460.

Clymer v. Texas: The State indicted James Russel Clymer Jr. for Continuous Sexual Abuse of a Child, a first-degree felony. See Tex. Penal Code § 21.02(b). Pursuant to a plea bargain agreement, Clymer pled guilty to the lesser included offense of aggravated sexual assault of a child. See Tex. Penal Code § 22.021(a)(2)(B). On April 17, 2019, the trial court sentenced Clymer to 60 years in the Institutional Division of the Texas Department of Criminal Justice. Clymer timely filed a notice of appeal. The trial 2 court certified that this was a plea-bargain case and Clymer had no right of appeal except as to punishment….The attorney appointed to represent Clymer in his appeal filed an Anders brief which asserted that the attorney diligently reviewed the record and found no meritorious claims on which to appeal Clymer’s sentence and that any appeal is frivolous. See Anders v. California, 386 U.S. 738, 744–45 (1967); High v. State, 573 S.W.2d 807, 810–13 (Tex. Crim. App. [Panel Op.] 1978). Clymer was provided an opportunity to file his own pro se brief, and he did not do so. We have independently reviewed the record, and we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that arguably might support an appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (stating that the reviewing court must determine whether arguable grounds for review exist). The Court concludes it is unnecessary for us to order appointment of new counsel to re-brief this appeal. Cf. id.. As no arguable grounds exist to support the appeal, we affirm the trial court’s judgment.

Annual Reading of the Declaration of Independence

Every year I organize an annual reading of the United States' Declaration of Independence. The Conroe Courier reported on this year's reading here. I hope you enjoy and have a safe and happy Independence Day.

Warrantless Searches of Vehicles in Texas-The Automobile Exception to the 4th Amendment

An opinion was just released by the 9th Court of Appeals in Texas that explains when an officer may search your vehicle and why in Texas.

Here is the applicable discussion

Applicable Law

Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within an exception to the requirement for a warrant. Arizona v. Gant , 556 U.S. 332, 338  (2009); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). The “automobile exception” allows for the warrantless search of a vehicle “if it is readily mobile and there is probable cause to believe that it contains contraband.” see Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017); Keehn v. State , 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); see also United States v. Ross, 456 U.S. 798, 825 (1982) (police may search a vehicle if they have probable cause to believe it contains evidence of a crime)...See California v. Carney, 471 U.S. 386, 391-92 (1985)(explaining that the “automobile exception” to the requirement of a warrant applies when a vehicle is being used on the highways). Probable cause exists when “the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime." Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972); see also Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). “Probable cause requires an evaluation of probabilities, and probabilities ‘are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Wiede, 214 S.W.3d at 24(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). If the totality of the circumstances demonstrate a “fair probability” of finding evidence at the location being searched, then the probable cause standard is met. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006). A court may consider “the training, knowledge, and experience of law enforcement officials” involved in the warrantless search. See Wiede, 214 S.W.3d at 25. Only a “minimal level of objective justification” on the part of the officer is required, and our “determination of reasonable suspicion must be based upon commonsense judgments and inferences about human behavior.” See Illinois v. Wardlow, 528 U.S. 119, 125 (2000); United States v. Sokolow, 490 U.S. 17 (1989)(quoting Immigration & Naturalization Serv. v. Dalgado, 466 U.S. 210, 217 (1984)).

"Possession" vs. "Ownership" of a Controlled Substance/Marijuana in Texas

One of the most often heard statements from someone charge with possession of a controlled substance or marijuana in Texas is that it "wasn't mine." This post will explain what "possession" means in the context of being charged with possession of a controlled substance or marijuana in Texas.

In Texas, to be convicted with Possession of a Controlled Substance, a prosecutor must be able to prove beyond a reasonable doubt: a person commits an offense if the person knowingly or intentionally possesses a controlled substance as indicated in Texas Health and Safety Code Chapter 481, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

In Texas, to be convicted with Possession of Marijuana, a prosecutor must be able to prove beyond a reasonable doubt:  a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana. 

"Possession" means actual care, custody, control, or management. If you will notice, no where in that definition does it contain the word "owner" or "ownership." For purposes of Possession of a Controlled Substance or Marijuana in Texas, ownership is not one of the elements that a prosecutor must prove, only "possession" which means actual care, custody, control, or management. So, if you find yourself charged with possession of a controlled substance or marijuana try not to focus so much on who the substance belonged to but can the prosecutor prove beyond a reasonable doubt that the substance was in your actual care, custody, control, or management. Or, in other words, in your possession.

Felony Punishment Ranges in Texas

This is a follow-up to my post yesterday on Misdemeanor Punishment Ranges in Texas. There are also several types of felonies in Texas and with them comes a variety of punishment ranges. This post will explain the possible punishment ranges. Community Supervision, Deferred Adjudication(Probation) and Parole may also be a possibility but will not be discussed in this post. This post will cover the basics as there are many other nuances.

Felonies are classified according to the relative seriousness of the offense into five categories:(1) capital felonies; (2) felonies of the first degree; (3) felonies of the second degree; (4) felonies of the third degree; and (5) state jail felonies. An offense designated a felony in Texas Penal Code Section 12 without specification as to category is a state jail felony.

An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

(1) life, if the individual committed the offense when younger than 18 years of age; or

(2) life without parole, if the individual committed the offense when 18 years of age or older.

(b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:

(1) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age; or

(2) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony, if the individual committed the offense when 18 years of age or older.

An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years. In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days. In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a state jail felony shall be punished for a third degree felony (see punishment range above) if it is shown on the trial of the offense that:

(1) a deadly weapon as defined by Texas Penal Code Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

(2) the individual has previously been finally convicted of any felony:

(A) under Section 20A.03 (continuous trafficking of persons) or 21.02 (continuous sexual abuse of a young child or children) or listed in Article 42A.054(a), Code of Criminal Procedure (click the link to see the list of included offenses); or

(B) for which the judgment contains an affirmative finding under Article 42A.054(c) or (d) (a deadly weapon finding), Code of Criminal Procedure.

If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree (see punishment range above).

(b) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a), and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a felony of the second degree (see punishment range above).

(c) If it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree (see punishment range above).

Except as provided by Subsection (c)(2), if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

(b) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree.

(c)(1) If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:

(A) the defendant is convicted of an offense:

(i) under Section 20A.02(a)(7) or (8) (trafficking of persons), 21.11(a)(1) (indecency with a child), 22.021 (aggravated sexual assault), or 22.011(sexual assault), Penal Code;

(ii) under Section 20.04(a)(4) (aggravated kidnapping), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or

(iii) under Section 30.02(Burglary), Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11(Indecency with a child), Penal Code; and

(B) the defendant has been previously convicted of an offense:

(i) under Section 43.25 (Sexual Performance of a Child)or 43.26(possession or promotion of child pornography), Penal Code, or an offense under Section 43.23 (obscenity), Penal Code, punishable under Subsection (h) of that section;

(ii) under Section 20A.02(a)(7) or (8) (trafficking of persons), 21.02, 21.11, 22.011 (indecency with a child), 22.021(aggravated sexual assault), or 25.02 (prohibited sexual conduct), Penal Code;

(iii) under Section 20.04(a)(4)(aggravated kidnapping), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(iv) under Section 30.02 (burglary), Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or

(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

(3) Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 (aggravated sexual assault) otherwise punishable under Subsection (f) of that section that the defendant has previously been finally convicted of:

(A) an offense under Section 22.021 (aggravated sexual assault) that was committed against a victim described by Section 22.021(f)(1)(aggravated sexual assault) or was committed against a victim described by Section 22.021(f)(2) (aggravated sexual assault)and in a manner described by Section 22.021(a)(2)(A)(aggravated sexual assault); or

(B) an offense that was committed under the laws of another state that:

(i) contains elements that are substantially similar to the elements of an offense under Section 22.021(aggravated sexual assault); and

(ii) was committed against a victim described by Section 22.021(f)(1) (aggravated sexual assault) or was committed against a victim described by Section 22.021(f)(2) (aggravated sexual assault) and in a manner substantially similar to a manner described by Section 22.021(a)(2)(A) (aggravated sexual assault).

(4) Notwithstanding Subdivision (1) or (2), and except as provided by Subdivision (3) for the trial of an offense under Section 22.021 (aggravated sexual assault)as described by that subdivision, a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of an offense under Section 20A.03 (continuous trafficking of persons) or of a sexually violent offense, committed by the defendant on or after the defendant's 18th birthday, that the defendant has previously been finally convicted of:

(A) an offense under Section 20A.03(continuous trafficking of persons) or of a sexually violent offense; or

(B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Section 20A.03 (continuous trafficking of persons)or of a sexually violent offense.

(5) A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under Subdivision (2).

(d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.

(e) Was repealed by Acts 2011, 82nd Leg., R.S., Ch. 834, Sec. 6, eff. September 1, 2011.

(f) For the purposes of Subsections (a), (b), and (c)(1), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post-adjudication secure correctional facility under Section 54.04011, Family Code, is a final felony conviction.

(g) For the purposes of Subsection (c)(2):

(1) a defendant has been previously convicted of an offense listed under Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B).

(h) In this section, "sexually violent offense" means an offense:

(1) described by Article 62.001(6) (click the link for the definition of sexually violent offense), Code of Criminal Procedure; and

(2) for which an affirmative finding has been entered under Article 42.015(b) (dealing with the age of the victim) or 42A.105(a) (an affirmative finding that the victim was a child younger than fourteen years of age at the time of the offense), Code of Criminal Procedure, for an offense other than an offense under Section 21.02 (continuous sexual abuse of a young child or children) or 22.021(aggravated sexual assault).

A charge for continuous sexual abuse of a child or children is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

Texas Penal Code Section 12.44(a) says a court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice. Notice, the conviction remains for a state jail felony, only the punishment range changes. Under Texas Penal Code 12.44(b) at the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

Community Supervision, Deferred Adjudication Community Supervision, and Parole exceed the scope of this post and will be discussed in a later post. 

Misdemeanor Punishment Ranges in Texas

If you find yourself charged with a misdemeanor offense there are several possible punishment ranges. In Texas, there are three possible classes of misdemeanors. There are Class A Misdemeanors, Class B Misdemeanors, and Class C Misdemeanors. This post will focus on Class A and Class B Misdemeanors. Class C Misdemeanors are generally punishable by a fine only, however, the amount of the possible fine varies by the type of offense and exceeds the scope of this post. See below for the maximum fine possible for a Class C Misdemeanor, though, it may vary based the particular offense charged.

An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement. These punishments may also be suspended and a person placed on community supervision (probation) or deferred adjudication community supervision (probation). 

An individual adjudged guilty of a Class A Misdemeanor shall be punished by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement. These punishments may also be suspended and a person placed on community supervision (probation) or deferred adjudication community supervision (probation).

An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

If it is shown on the trial of a Class A misdemeanor that the defendant has been before convicted of a Class A misdemeanor or any degree of felony, on conviction he shall be punished by:

(1) a fine not to exceed $4,000;

(2) confinement in jail for any term of not more than one year or less than 90 days; or

(3) both such fine and confinement.

(b) If it is shown on the trial of a Class B misdemeanor that the defendant has been before convicted of a Class A or Class B misdemeanor or any degree of felony, on conviction he shall be punished by:

(1) a fine not to exceed $2,000;

(2) confinement in jail for any term of not more than 180 days or less than 30 days; or

(3) both such fine and confinement.

(c) If it is shown on the trial of an offense punishable as a Class C misdemeanor under Section 42.01(disorderly conduct) or 49.02(public intoxication) that the defendant has been before convicted under either of those sections three times or three times for any combination of those offenses and each prior offense was committed in the 24 months preceding the date of commission of the instant offense, the defendant shall be punished by:

(1) a fine not to exceed $2,000;

(2) confinement in jail for a term not to exceed 180 days; or

(3) both such fine and confinement.

(d) If the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.