July 7, 2017

U.S. Supreme Court

Jae Lee v. US

No. 16-327                           6/23/17


Can a defendant be prejudiced by erroneous advice from his attorney during plea negotiations even when the chance of acquittal at trial is very small?


Yes. The test for ineffective assistance during plea negotiations focuses on the defendant’s decision-making, which may not turn solely on the likelihood of conviction at trial. Here, the defendant and his trial counsel both testified that deportation was the determinative issue. The erroneous advice that the defendant would not face deportation if he took the plea deal prejudiced the defendant because he has shown a reasonable probability that, if not for the erroneous advice, he would have insisted on going to trial. The very small probability of success at trial does not make it irrational for a defendant to risk a longer prison sentence for some chance to avoid deportation. Read opinion.

Dissent (Thomas, J.):

“I remain of the view that the Sixth Amendment to the Constitution does not ‘requir[e] counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.’ Padilla v. Kentucky, 559 U. S. 356, 388 (2010) (Scalia, J., joined by THOMAS, J., dissenting). I would therefore affirm the Court of Appeals on the ground that the Sixth Amendment does not apply to the allegedly ineffective assistance in this case.”


This decision appears to have gutted an important argument against setting aside old pleas. The net result will seem to be more trials—after all, we cannot give non-citizens a better deal on a case than citizens.

Texas Court of Criminal Appeals

Ex parte Bowman

No. PD-0208-16                 6/28/17


Does the defense counsel’s inability to remember whether he obtained payroll records of the arresting officer (who received time-and-a-half pay while testifying) bar the defendant’s claim that failure to obtain the records for impeachment was ineffective assistance of counsel?


Yes. Because the defense attorney testified at the writ hearing that he could not recall whether or not he obtained the payroll records, the defendant cannot meet his burden of proving that his defense counsel failed to sufficiently investigate the arresting officer. Strickland has a presumption of adequate investigative assistance that the defendant fails to overcome. Read opinion.

Dissent (Alcala, J.):

It does not matter that the defense attorney cannot recall whether he obtained the records, because failure either to obtain or use the payroll records in trial constitutes ineffective assistance of counsel. The trial court’s findings stated that the arresting officer was the only witness to give an opinion that the defendant was intoxicated and that the State “substantially” relied on his testimony. Using the payroll records to impeach the arresting officer would have substantially undermined his credibility, and no reasonably competent attorney would have failed to obtain and use the records at trial. The defense attorney was ineffective either by failing to obtain the records or by failing to use them at trial to impeach the arresting officer. Read opinion.


This is a good decision for habeas prosecutors because it stands for the proposition that the defense does not meet its burden to prove a fact if the only evidence presented is that a witness “cannot remember” the fact. This happens often in old writs.

Ash v. State

No. PD-0244-16                 6/28/17


Can a witness be an accomplice as a matter of law even when not charged with the same or a lesser-included offense as the defendant?


Yes. A witness can also be an accomplice as a matter of law when: 1) the witness was charged with the same or a lesser-included offense, but the charges were dismissed in exchange for testimony against the defendant; (2) If the State charges a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses the charges in exchange for the witness’s testimony against the defendant; or 3) the evidence is so uncontradicted or one-sided that no reasonable juror could conclude that the witness was not an accomplice. Read opinion.


Here, the Court attempts to resolve years of opinions using slightly different language. Whether the opinion succeeds in resolving this issue remains to be seen. A prudent prosecutor might choose not to object to the inclusion of accomplice witness instructions in cases like this one.

Ex parte Ingram

No. PD-0578-16                 6/28/17


Are constitutional attacks on free-standing anti-defensive issues cognizable on pretrial habeas?


No. Although a facial challenge to a statute defining the offense may ordinarily be brought on pretrial habeas, anti-defensive issues pose special complications which render them not cognizable even in a facial challenge. The defendant challenged the constitutionality of the pre-2015 online solicitation of a minor statute, including the application of subsection (d) which stated that certain facts are “not a defense to prosecution.” An anti-defensive issue becomes law applicable to the case only when some evidence at trial raises it. At the pretrial habeas stage, an anti-defensive issue is not law applicable to the case and cannot be challenged. Furthermore, pretrial habeas is an extraordinary remedy that is generally available only when resolution in the defendant’s favor would result in immediate release. Even if a freestanding anti-defensive issue was found to be unconstitutional on its face, this would not result in the defendant’s immediate release. Read opinion.

Concurrence (Alcala, J.):

“First, I do not agree with the portion of the majority opinion’s analysis as to the non-cognizability of some of the claims in the pretrial habeas application filed. … Unlike this Court’s majority opinion that determines that a portion of [the defendant’s] claims are noncognizable “anti-defensive issues,” I would decide all of his claims on the merits. Second, as to the merits of those claims, I would sustain [the defendant’s] complaint that the online solicitation of a minor statute, as a whole, is unconstitutionally vague, but I would delete the portions of the offending subsection that render the statute unconstitutional, and, as narrowly constructed, I would uphold the constitutionality of the statute.” Read opinion.


This decision is fairly esoteric and unlikely to affect your daily business as a prosecutor, nor does it answer that age-old question: how is the word cognizable pronounced?

Prichard v. State

No. PD-0712-16                 6/28/17


May a deadly weapon finding be made for weapons used or exhibited against nonhumans?


No. A deadly weapon finding may be made for human victims only. Although the statutory language is ambiguous with respect to whether it applies to nonhuman victims, extra-textual considerations indicate that the legislature did not intend to permit a deadly weapon finding for injury or death to a dog. Read opinion.

Concurrence (Keller, J.):

A holding that deadly weapon findings apply only to human victims is the only construction that avoids absurd results. Otherwise, for example, a fly swatter would be a deadly weapon because it is designed to kill flies. Read opinion.

Dissent (Yeary, J.):

The statute is not ambiguous, but it is very broadly defined. A deadly weapon may be found to be a deadly weapon regardless of the species of the victim. This definition would not result in absurdities as suggested by the concurrence because the obvious limiting principle would be to construe the statute so that the deadly weapon must be “manifestly designed” or “capable of causing” death to humans, regardless of the species of the victim it is used against. (Note: The dissent is not currently accessible on the Court website.)


Here is an opinion that will unite dog and cat owners throughout the State. Whether the howling will gain the attention of the Governor for the special session remains to be seen. Expect pet advocates to bite back during the next regular session, if not sooner.

Long v. State

No. PD-0984-15                 6/28/17


Does the definition of “oral communication” in the state wiretap statute incorporate the expectation-of-privacy test?


Yes. Although the statute is ambiguous, consideration of extra-textual sources indicate that the legislature intended the definition of “oral communication” to incorporate the Fourth Amendment expectation-of-privacy standard. To determine whether a person exhibited “an expectation that the communication is not subject to interception” under Code of Criminal Procedure Art. 18.20, the issue is whether the person speaking displayed a subjective expectation of privacy in the conversation. To determine whether there were “circumstances justifying that expectation,” the issue is whether society is prepared to recognize the subjective expectation of privacy as objectively reasonable. Speeches given by a high school coach to a basketball team in a private locker room meet this standard. Read opinion.

Dissent (Richardson, J.):

The definition of “oral communication” incorporates the expectation-of-privacy test as articulated by the majority, but the coach’s locker-room speeches to his team do not meet the definition. The locker room should be characterized as a “classroom setting” where the coach, as an educator, has no reasonable expectation of privacy in his teaching. Read opinion.


Expect more cases like this because of the proliferation of smart phones with audio and visual recording capabilities as well as other devices designed to make surreptitious recordings easier to produce and stream to the Internet. The Court engages in a detailed analysis to support its holding that a coach had a reasonable expectation of privacy while speaking to players in a locker room during and after a game. After all, it seems counter-intuitive that a speech to a roomful of people might be private. This case will help you evaluate the increasing number of cases you will see that involve claims of illegal audio and visual recording.

Texas Courts of Appeals

Henderson v. State

No. 01-16-00729-CR        6/29/17


Is the presentment of a grand jury indictment to a district court other than the court that impaneled the grand jury a jurisdictional defect?


No. Indictment by a grand jury impaneled by one court and trial in another court without a motion to transfer the case to the trial court is, at most, a procedural irregularity. A jurisdictional defect may be challenged for the first time on appeal, but procedural deficiencies must be objected to prior to trial to preserve the claim for review. Read opinion. 

Meane v. State

No. 01-16-00291-CR        6/29/17


Are the smell of marijuana and the defendant’s knowledge of police presence sufficient evidence of exigent circumstances to show that imminent destruction of evidence is forthcoming?


No. Additional evidence of attempted or actual destruction based on the defendant’s conduct is required to show exigent circumstances. Mere knowledge of police presence and an odor of illegal narcotics are not sufficient evidence that the destruction of evidence is imminent. Read opinion.

Reynolds v. State

No. 08-14-00307-CR        6/30/17


Must a trial court always accept a defendant’s offer to stipulate to any element of the offense?


No. The prosecution is entitled to prove its case by evidence of its own choice. A defendant may not derail evidence in the State’s case by stipulating to any element. However, this does not apply to a defendant’s legal status as a convict, to which the defendant may choose to stipulate. Read opinion.


This will be helpful. The defense always wants to stipulate away the things that really matter.

In re Gandara

No. 08-17-00053-CR        6/30/17


What changes may a trial judge make to a community supervision order when the defendant has not violated any terms or conditions of the supervision and is up to date on all fines and fees owed?


The trial judge may not increase the fine but may extend the term of community supervision for “good cause.” The definition for good cause, as adopted from the 7th Court of Appeals, “connotes something akin to a legitimate or substantial reason, as opposed to mere arbitrariness.” A judge’s unfounded and unsupported belief that the defendant was unemployed does not constitute good cause. Read opinion. 


Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates

TDCAA is now taking pre-orders for its 2017 code books. For more information or to place an order, visit http://www.tdcaa.com/publications

Applications are being accepted for the National Computer Forensics Institute courses for prosecutors! For more information, visit http://www.tdcaa.com/announcements/national-computer-forensics-institute-courses-prosecutors

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]