The public authority defense requires a law enforcement officer who engages a defendant in covert activity to possess actual, rather than only apparent, authority to authorize the defendant's conduct.

United States v. Sariles, 645 F.3d 315 (5th Cir. 2011). Here, it was undisputed that the law enforcement officer lacked actual authority to authorize D's violation of the federal drug laws. Accordingly, the district court did not err in ruling that the public authority defense was unavailable to D.

A habeas petitioner must overcome the limitations of 28 U.S.C. § 2254(d)(1) based solely on the record that was before the state court.

Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011). Although federal district court had, after an evidentiary hearing, granted federal habeas relief on the ground of ineffective assistance of counsel in the investigation and presentation of the defense case in D's prosecution for aggravated sexual assault of a child and indecency with a child, the Fifth Circuit reversed the court's decision and denied the habeas petition. The federal district court violated Cullen v. Pinholster, 131 S. Ct. 1388 (2011), in holding an evidentiary hearing on D's allegations and relying upon evidence developed at that hearing to grant D relief. On the merits, and as judged on the state record alone, the state court did not unreasonably apply Supreme Court precedent when it found that defense counsel's actions were legitimate trial strategy not constituting ineffective assistance.

Prosecutor's closing argument crossed the line from permissible response on the issue of the agents' lack of motive to lie into an impermissible emotional appeal to believe the agents simply because of their status as agents; the error was plain as the argument was clearly impermissible under existing precedent.

United States v. Aguilar, 645 F.3d 319 (5th Cir. 2011). On appeal of ambulance driver's convictions for conspiracy to possess, and possession of, marijuana found in a hidden compartment in the ambulance, prosecutor's error was plain as the argument was clearly impermissible under existing precedent. Moreover, even on plain-error review, the improper argument merited reversal of D's convictions, given that credibility—and particularly, the content of an alleged statement by D—was central to the case. The Fifth Circuit vacated the convictions and remanded for a new trial.

D's appeal of the district court's disposition of his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (based on the retroactive amendments to the crack cocaine Guidelines) was rendered moot by his release from prison onto his term of supervised release. United States v. Booker, 645 F.3d 328 (5th Cir. 2011).

D could not, in conjunction with a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (based on the retroactive amendments to the crack cocaine Guidelines), relitigate the district court's finding, made in conjunction with the original sentencing, that he was responsible for 32.5 kilograms of crack cocaine.

United States v. Hernandez, 645 F.3d 709 (5th Cir. 2011). Even if reconsideration were permitted, the district court still did not abuse its discretion in finding that D was responsible for more than 4.5 kilograms of crack cocaine; under either of these figures, D was ineligible for a sentence reduction under § 3582(c)(2).

COURT OF CRIMINAL APPEALS

While good behavior in prison is a factor to consider, it does not preclude a finding of future dangerousness. CCA can review the objective evidence of future dangerousness, but it does not engage in reviewing the jury's normative decision on mitigation.

Devoe v. State, No. 76,289 (Tex.Crim.App. Dec 14, 2011). D was convicted of capital murder and sentenced to death. In this direct appeal to CCA, he raised nine points of error. CCA found them to be without merit, most notably D's challenges to the sufficiency of the evidence at the punishment phase of trial. The following evidence was sufficient to show future dangerousness: (1) during D's crime spree, he attempted to kill one victim and killed three others; (2) he had a lengthy criminal history; (3) he had a lengthy history of abusing women; (4) he once attempted to strangle his mother; (5) he abused alcohol and drugs and tended to become more violent when he did so; and (6) inmates in Texas have access to drugs, alcohol, and weapons, and many violent crimes occur inside Texas prisons.

CCA also rejected D's claims that the trial court erred in allowing him "to be tried on copious amounts of extraneous offense evidence" at the guilt phase. Whether extraneous offense evidence has relevance apart from character conformity, as required by Tex. R. Evid. 404(b), is a question for the trial court. The trial court did not abuse its discretion by admitting extraneous evidence of D's theft of a gun, the aggravated assault of one victim, the killing of the victim from whom he stole the vehicle, and the robbery of yet another victim. It was within the zone of reasonable disagreement to find the various offenses to be contextual evidence. D did not rest between incidents, and he stole the gun to go after women and to effectuate his flight.

A pre-trial hearing conducted under Tex. Code Crim. Proc. art. 38.072 § 2(b)(2) is intended only to determine the reliability of the complainant's out-of-court statement; therefore, D's opportunity for cross-examining the outcry witness at such a hearing is inadequate to allow the admission of the hearing testimony at trial.

Sanchez v. State, No. 0086-11 (Tex.Crim.App. Dec 14, 2011). D was convicted of four counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. COA affirmed. D appealed. Because the State's outcry witness suffered a loss of mental faculties and was unavailable to testify at trial, the trial court allowed the witness's testimony from a pre-trial Tex. Code Crim. Proc. Ann. art. 38.072 hearing to be read to the jury during D's trial. CCA held that because an Article 38.072 hearing provides a defendant with an inadequate opportunity to cross-examine an outcry witness's credibility, the trial court erred by admitting testimony from the Article 38.072 hearing at trial since the witness was unavailable, and doing so violated D's Sixth Amendment rights. CCA reversed the COA decision and remanded for an analysis of the harm caused by the unconstitutional admission of the witness's pre-trial testimony.

In the debit-card-abuse statute, "use" and "present" may overlap in meaning, and a transaction need not be consummated to support a finding that a defendant used a debit card.

Clinton v. State, No. 0119-11 (Tex.Crim.App. Dec 14, 2011). A jury convicted D for debit card abuse under Tex. Pen. Code § 32.31(b)(1). COA reversed for insufficient evidence and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse. The State contends that COA erred by finding that D's presentation of the debit card failed to prove that she "used" the debit card and by requiring that "use" of a debit card include proof of consummation of the transaction.

The statute provides that a person may be guilty of debit card abuse either by using it or presenting it. But because the indictment limits the manner and means of committing debit card abuse to only "use," the State must prove that D used the debit card for the evidence to be sufficient. Based on the ordinary meaning of the words as used in the statute, CCA concluded that "use" and "present" may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that COA erred by determining that the evidence is insufficient to establish debit card abuse. Because the dictionary definitions of "use" and "present" do not depend on obtainment of a benefit, the plain language of the statute makes apparent that an individual need only have utilized the card for the intended purpose of obtaining a benefit. Examining all the evidence in the record in the light most favorable to verdict, the evidence shows that D "used" the card when she swiped it through the card reader for the purpose of purchasing cigarettes. CCA reinstated the trial court's judgment. Price concurred.

A 23-year pre-indictment delay for the offense of murder does not offend due process.

State v. Krizan-Wilson, No. 1485-10 (Tex.Crim.App. Dec 14, 2011). For the offense of murder, the Texas legislature has intentionally chosen not to define a statute of limitations, explicitly allowing prosecutors to indict suspected murderers when they are ready to do so, and has determined that any such delay, without more, does not offend the community's sense of fair play and decency. Even though defendant suffered prejudice from the lengthy delay, as her original attorney and investigator had died and their files had been lost, defendant failed to prove that the State delayed its prosecution to gain a tactical advantage or for other bad faith purposes; therefore, the trial court erred by dismissing the indictment.

Cueva v. State, No. 0713-11 (Tex.Crim.App. Dec 14, 2011). Without written order, CCA denied appellant's motion for rehearing. Alcala concurred to counter appellant's claim that CCA's denial of his petition is inconsistent with Pena v. State, No. 0852-10 (Tex.Crim.App. Sep 28, 2011). Alcala said that Pena is not a substantial intervening circumstance that would justify a rehearing of appellant's case because Pena is silent on the matter of whether the State objected at the motion for new trial hearing on the basis that new grounds or evidence were being presented that were outside the scope of those presented in the motion for new trial.

Click here for the list of issues pending before CCA.

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

The court, in rejecting D's contention that officer asked questions unrelated to the traffic violation on which the stop was based, concluded that officer's asking about driver's previous whereabouts "is standard procedure during [any] traffic stop."

Cantu v. State, No. 04-10-00533-CR (Tex.App.-San Antonio Sep 14, 2011). "[D] contends [officer] did not promptly investigate the alleged traffic violations, but 'milled about' asking questions unrelated to the reasons he stopped [D] in the first place…. [Officer] inquired about [D's] previous whereabouts, which is standard procedure…. Moreover, the overall duration of the traffic stop was relatively short; [officer] discovered the controlled substance less than five minutes after the stop was initiated. The record does not support the conclusion that [officer] strayed from the initial purpose of the stop or that [officer] unnecessarily delayed the detention."

A reminder that stopping a driver on suspicion of being intoxicated is proper even if the driver did not commit a traffic offense.

Powell v. State, No. 03-10-00728-CR (Tex.App.-Austin Sep 14, 2011). "[I]n the cases to which [D] cites in his brief, the officers testified that the reason they conducted the traffic stop was because of a particular traffic violation, and the record did not support a finding that such a traffic violation had occurred. In this case, in contrast, although [officer] testified that he believed [D] had committed the [various] traffic offenses, he also testified that he conducted the traffic stop because he believed, based on everything he had observed, that [D] was driving while intoxicated…. The evidence of erratic driving … along with the additional evidence that the driving was occurring on a Sunday morning at approximately 1:52 a.m. and that [officer] had observed 'many' intoxicated drivers in his years of experience as a peace officer, would support the trial court's finding that [officer] had reasonable suspicion to believe that [D] was driving while intoxicated." Court then cites case concluding that even though driver might not have committed traffic offense, that did not mean that officer lacked RS to believe driver was intoxicated.