Fifth Circuit Court of Appeals
No. 14-10846 5/20/16
Does the deportation of the defendant render his appeal of his term of supervised release moot?
No. One of the conditions of the defendant’s supervised release is that he not re-enter the United States illegally, so even after his deportation, he is subject to that condition. Additionally, the Court could still grant him relief under that condition, so it retains authority over the case and defendant until the term of supervised release expires. Thus, the deportation of the defendant does not moot his appeal of the term of supervised release. Read.
Dissent (Higgenson, J.):
Judge Higgenson dissented because he does not believe the defendant can show actual injury because it is presumed that he is not living according to any of the imposed supervised release conditions. If he wished to re-enter the United States, he could then attempt to reinstate the appeal at that time. Read.
The en banc court resolved a split that existed in previous Fifth Circuit decisions, and it refused to follow other federal appellate court decisions that pre-dated a change in the federal sentencing guidelines. The court also purported to follow an analogous decision from the United States Supreme Court from 1971. The en banc court did not decide the issue that the defendant wanted resolved, however, but instead remanded that issue back to the panel of the court of appeals. The decision is quite technical, so it is not at all clear if this is a decision that the Supreme Court might want to review. But still the decision does not make a lot of practical sense. The defendant is not being supervised by the United State government because he has been deported, and there is no indication that he can legally return. As noted by the short dissent, the defendant has also made no suggestion that he is attempting to abide by any post-imprisonment release condition to which he does not object—such as his duty to refrain from alcohol.
Courts of Appeals
Desilets v. State (9th COA)
No. 09-16-00104-CR & 09-16-00105-CR 5/25/16
Does an appeals court have jurisdiction to hear an appeal from a denial of a judgment nunc pro tunc?
No. There is no statute granting an appeals court jurisdiction over an appeal arising from an order denying a request for the entry of a nunc pro tunc judgment. A defendant’s general right to appeal under Code of Criminal Procedure Art. 44.02 is limited to appealing a “final judgment.” Read.
A defendant can appeal from a judgment nunc pro tunc because that is a final judgment, but a defendant cannot appeal from a trial court’s refusal to enter a judgment nunc pro tunc. If the trial judge’s entry of a judgment nunc pro tunc in a particular case was a ministerial duty or clearly required, perhaps the defendant could force the judgment nunc pro tunc by way of a petition for a writ of mandamus.
State v. Frias (8th COA)
No. 08-14-00014-CR 5/27/16
Can a trial court grant a motion for new trial on the basis of claims of ineffective assistance of counsel not raised in the original motion for new trial?
No. An essential element of a motion for new trial “is that the matter or error relied upon for a new trial must be specifically set forth therein.” Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947); a court cannot grant a new trial on any ground not alleged in the motion. In this case, the defendant filed a motion for new trial alleging certain instances of ineffective assistance of counsel, but at the new trial hearing, which occurred outside the 30-day window for amending the motion, the defendant presented new arguments on that same claim. While the defendant did not allege a “wholly distinct legal ground,” the additional arguments were not pled in the original motion for new trial and thus could not support the grant of new trial. The trial court abused its discretion to the extent it relied on any of these additional facts or arguments in its decision to grant the motion for new trial. Read.
This is a wonderful decision if it holds up on review by the Court of Criminal Appeals. Defendants should not be permitted to raise new grounds of ineffective assistance of counsel for the first time at the hearing on the motion for new trial. But remember, to win that argument if the trial court grants the motion for new trial anyway, prosecutors must object at trial to the new grounds as untimely raised. In this case, the court of appeals went on to address and reject the claims that the defendant had properly raised in an extremely thorough opinion. Wonderful job by the State at trial and on appeal.
Small v. State (14th COA)
No. 14-15-00039-CR 5/19/16
Should an appellate court presume a violation of Art. 36.27 of the Code of Criminal Procedure if there is no record that a court read its response to a jury note in open court?
No. In the court record there is no mention of a second note coming from the jury or the court’s response to that note. There is a note in the clerk’s record that states the note from the jury read “the vote is 11-1” and that the judge responded to the jury with an Allen charge. The absence of this on the record does not require a presumption that the response was not read in open court under Art. 36.27; instead, in the absence of anything to the contrary, the appellate court will presume the trial court’s response was made in open court, with the defendant present, and that the defendant had an opportunity to object and chose not to. Read.
Do not get too carried away with this decision. It is not really a holding under Article 36.27, but it is rather a holding of a presumption on appeal that could not be rebutted because the record was otherwise silent.