June 14, 2019

U.S. Fifth Circuit Court of Appeals

Langley v. Prince

No. 16-30486                    6/6/19

Issue:

Does a general jury conviction of second-degree murder – later reversed and remanded for retrial – preclude retrial for specific-intent second-degree murder?

Holding (en banc):

No. In this case, the defendant was found guilty of second-degree murder, a lesser-included offense of the charged first-degree murder. When the conviction was reversed and remanded for retrial, the State was precluded under Louisiana law from charging the defendant with first-degree murder as the previous jury’s verdict was an implicit acquittal of the first-degree murder charge. However, the jury’s guilty verdict for second-degree murder could have been based on felony-murder, specific-intent second-degree murder, or as a “compromise verdict” that sentenced the defendant to life in prison rather than the possibility of the death penalty. The issue of specific intent was not essential to the judgment, and it is not possible to determine whether the jury “actually determined” the issue of specific intent so as to preclude a retrial for specific-intent second-degree murder. Read opinion.

Concurrence (Elrod, Haynes, JJ., joined by Stewart, C.J.):

Limitations on federal habeas review prohibit the court from extending clearly established federal law. To find preclusion in this case would require an extension of Ashe, which the court cannot do. Furthermore, under Louisiana law, the jury was permitted to return a guilty verdict based on specific-intent second-degree murder even if the evidence supported a conviction for first-degree murder. The majority decision respects the district court’s superior understanding of the way responsive verdicts work in Louisiana and affirms the denial of habeas relief. Read opinion.

Dissent (Higginson, J., joined by Weiner, Dennis, Gravis, Costa, JJ.):

The jury’s implied acquittal of first-degree murder should also be an implied acquittal of the elements of first-degree murder, including specific intent. The jury’s verdict should be read as a conviction for second-degree felony murder, and a charge of specific-intent second-degree murder should be precluded on retrial. Read opinion.

Dissent (Costa, J., joined by Weiner, Higginson, JJ.):

“[T]he majority opinion lets a judge’s finding of specific intent override a jury’s earlier determination that this required mens rea [specific intent] was not proven. That undermines both the right to a jury and the protection against double jeopardy. As the Anti-Federalists recognized, the latter is essential to the former. If the state can keep retrying someone until it achieves its desired result, then the jury right that both the Federalists and Anti-Federalists cherished, is no right at all.” (internal citations omitted). Read opinion.

Commentary:

This is not a double jeopardy case. It is collateral estoppel (or issue preclusion) case. Much of the decision is taken up with application of federal habeas corpus principles and an exhaustive historical look at Ashe v. Swenson, so read at your own peril. The majority’s decision may ultimately be of little help to Texas criminal lawyers because Texas does not have the concept of second-degree murder like Louisiana does. All three versions of murder under §19.02 of the Penal Code are a first-degree felony (unless sudden passion was involved). The importance of this decision in the Fifth Circuit is the huge fight it created among the justices over the proper application of Ashe v. Swenson. The Court of Criminal Appeals has already fought that battle and has decided it in the State’s favor in State v. Waters, 560 S.W.3d 651 (Tex. Crim. App. 2018). As noted by the majority opinion, the United States Supreme Court itself has backed away from the interpretation of Ashe v. Swenson advocated by the dissenting justices and by many criminal defendants. See Currier v. Virginia, 138 S.Ct. 2144 (2018) and Bravo-Fernandez v. United States, 137 S.Ct. 352 (2016).

Courts of Criminal Appeals

Tilghman v. State

No. 03-17-00803-CR        6/7/19

Issue:

May police search a hotel room without a warrant at the request of hotel staff who wish to evict guests without notice before the end of their stay?

Holding:

No. Generally, hotel staff may not consent to a search of a guest’s room. A guest’s expectation of privacy in a hotel room may be lowered if he has stayed beyond the occupancy term, refused to leave after being given notice of eviction, or violated a hotel policy subject to immediate eviction. However, the warrantless search in this case violated the 4th Amendment because the term of occupancy had not yet expired, the hotel had no written agreement allowing eviction for a violation of the no-smoking policy, and the guests had been given no notice of the hotel’s intention to evict them for smoking marijuana. Read opinion.

Dissent (Kelly, J.):

“While there is an expectation of privacy in a hotel room, it is well settled that the right to privacy is extinguished when a person’s right to occupy the room is terminated. … While both parties acknowledge that the hotel had the right to evict [the defendant] at the time the police entered the room, the majority ignores this fact. Instead, the lynchpin of their analysis is that [the defendant] was not put on notice that he could be evicted for illegal activity, namely smoking marihuana, and because of this he was not lawfully evicted from the property when the police entered his room. I disagree. Because Texas law does not require that a hotel guest be notified in advance that he could be evicted for committing illegal activity on hotel property, I dissent.” Read opinion.

Commentary:

With the compelling dissenting opinion, there is a good chance that the Court of Criminal Appeals will wish to review this decision. There were a number of different arguments made by the State in this case, but the decision largely turns on whether the defendant lost his expectation of privacy in the hotel room because the hotel wished to evict but had not yet formally done so.

Announcements:

Prosecutor Trial Skills Course July 2019

Registration is open for our Prosecutor Trial Skills Course this July in Austin. It’s a full week of intensive training that prepares newly hired prosecutors for their work both in the courtroom and out. Seasoned faculty advisors are assigned to small groups of attendees to answer questions and direct discussions at each table, and two aspects of trial—jury selection and opening statement—are demonstrated by veteran prosecutors. Other elements of trial are covered, from opening statements to closing arguments, as are DWI and domestic violence prosecution (two of the most common offenses new prosecutors handle), plea bargains, probation revocation hearings, and motions to suppress. There’s even an optional forum on Class C misdemeanors for those prosecutors who practice in JP or municipal courts. New prosecutors won’t want to miss this intensive, high-quality training customized especially for them! 

Reminder:  TDCAA dues-paying members get a $50 discount on TDCAA Legislative Updates!  

One of the benefits of being a dues-paying member at TDCAA is a steep discount on the TDCAA Legislative Updates. If you are a dues-paying member and register in advance online, you will receive a $50 discount off the $150 non-member registration fee. If you want to become a member before you register for an update, just go to www.tdcaa.com/membership. Unsure if you are a member? Contact Kaylene at [email protected].    

Legislative Update Seminars

We have opened online registrations for our Legislative Update tour this summer! We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

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]