Habeas Procedure in Padilla Claims – USA v. Batamula, No. 12-20630 (Fifth Circuit 2016) –

 

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 12-20630

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

INNOCENT RUTAHAGARA BATAMULA, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas

United States Court of Appeals Fifth Circuit

823 F.3d 237, cert. denied, 137 S. Ct. 236, 196 L. Ed. 2d 134 (2016)

Procedural History:

Batamula filed a motion under 28 USC § 2255 to set aside his conviction on the ground that his criminal defense attorney did not advise him of the immigration consequences of his plea. The Government moved for summary judgment based on his pleadings, which the district court granted.

The Fifth Circuit originally overturned the district court’s ruling on summary judgment and found Batamula’s trial counsel’s performance to have been deficient for failing to advise Batamula that he would be deported for his plea to the charge of making a false statement to a U.S. agent. The Court voted to rehear the case en band to consider whether Batamula made a sufficient showing of prejudice.

Holding:

A non-citizen criminal defendant who is seeking to set aside his conviction under Strickland v. Washington, 466 U.S. 668 (1984), and Padilla v. Kentucky, 559 U.S. 356 (2010), under a claim that his counsel did not properly advise him of the immigration consequences of his criminal case must make a showing that he was prejudiced by counsel’s deficient performance. Where the complaint is that the defendant will be deported because of the conviction, it is not sufficient to show that the defendant would have gone to trial had he received proper advice. The alien-defendant must show that the outcome would have been different: that he would not have been deported.

What Happened

Batamula, a citizen of Tanzania, was charged with one count of making a false statement to a federal agent and an additional count of making a false statement in a U.S. passport application. His trial counsel did not advise him of the immigration consequences of a conviction for the charged offenses. At the plea hearing, the US district court judge advised Batamula “The offenses that you’re pleading guilty to are felonies. That means that each of you will likely be deported after you serve your sentence.” Batamula entered a plea to both counts. Subsequent to his plea, Batamula moved to set aside his conviction on the ground that had he known that his conviction would have resulted in mandatory deportation, he would not have pled, and would have insisted on going to trial.

The district court judge, granting the Government’s summary judgment motion, found that Batamula had not established that he was prejudiced by his counsel’s failure to advise him of the immigration consequences of his plea because “before accepting his guilty plea the court informed him that he would likely be deported after he served his sentence.”

A panel of the Fifth Circuit reversed the district court’s judge’s decision. The Fifth Circuit found that the district court’s general admonitions of possible immigration consequences did not relieve trial counsel of the obligation to provide specific advise regarding the immigration consequences of Batamula’s plea. The court held:

Effective advice from counsel regarding the deportation consequences of conviction is essential to provide constitutionally adequate representation during the pre-plea proceedings because, as the Supreme Court has repeatedly recognized, “‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’”

and

we cannot conclude that the prejudice caused by a violation of that duty can be categorically erased by a judge’s general and laconic statement during the plea colloquy that deportation is “likely,” after that bargaining process is complete, and immediately prior to the court’s acceptance of the guilty plea.

The Fifth Circuit voted to rehear this case en banc.

Opinion

The Fifth Circuit, sitting en banc, decided that even if trial counsel’s performance was deficient, Batamula did not prove that the deficiency prejudiced him.

In considering the potential prejudice to Batamula, the court noted that Batamula’s claim did not address the strength of his defense at trial, or the likelihood the defense’s success. To the contrary, the court noted that the record showed that there were at least two federal agents who could testify at trial that Batamula had lied to them. The government also establish that Batamula risked a higher sentence at trial than he received in the plea bargain.

The court found that Batamula was already deportable for overstaying his visa. Therefore, Batamula’s claim that he was prejudiced because the convictions made him deportable failed. In other words, Batamula’s claim centered on him being made deportable by the convictions in this case, though he was already deportable prior to the plea.

While Batamula had a previously approved I-130 petition based on his marriage, the court noted that there was no evidence that an application for adjustment of status had been filed. Furthermore, the court found that Batamula did not establish that he would not have been deported even if he were eligible for adjustment of status.

Dissent

Judges Dennis and Graves dissented:

The dissent found that the majority failed to correct the district courts error of law: “holding that a judicial admonition of possible deportation during a guilty-plea colloquy automatically erases any prejudice caused a defendant by the deficient performance of his counsel. This holding was reversible error for the reasons assigned by the panel opinion.” The dissent further noted that “he majority opinion tacitly encourages other judges to repeat the same error. If the error becomes widely imitated by other district courts, non-citizens’ ineffective assistance of counsel claims established by Padilla.”

The dissent also noted that the majority’s decision heightened a habeas petitioner’s initial burden:

The majority opinion states that “Batamula’s claim for relief turns on whether he affirmatively showed that counsel’s deficient advice regarding the deportation consequences of his guilty plea resulted in prejudice.” This is a patent mischaracterization of the applicable standard that would place an erroneously heightened burden on habeas petitioners at the summary dismissal stage. A petitioner is not required to prove with evidence that he is entitled to relief in order to obtain an evidentiary hearing; he must only allege facts that, if proven true, would entitle him to relief.

Notes

The decision on rehearing focused on Batamula’s burden, as movant, to prove his prejudice. My takeaway from the opinion is that if counsel is moving to set aside a conviction under Padilla, counsel should develop both the strengths of the criminal defense case at trial and establish grounds for how the non-citiezn criminal defendant remains in the country:

  • develop the viability of the defense to the criminal charge,
  • if the client was in lawful status prior to the conviction, establish that their lawful status should be reinstated (or removal proceedings stopped) if the result in the criminal trial were different,
  • if the client was not in lawful status, clearly establish their eligiblity to lawful status in the motion, including why any relevant grounds of removal outside of the conviction would not apply.

The full text of the opinion on rehearing is here:

or here.


Below is the text of the original decision of the Fifth Circuit, finding Batamula’s trial counsel to be ineffective:

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 12-20630

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

INNOCENT RUTAHAGARA BATAMULA, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas

United States Court of Appeals Fifth Circuit

FILED

June 2, 2015

Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge.

(District Judge of the Eastern District of Louisiana, sitting by designation.)

PER CURIAM:

Innocent Rutahagara Batamula, a citizen of Tanzania, after entering the United States on a student visa, marrying a United States citizen, and applying for a change in his immigration status, pleaded guilty pursuant to a written plea agreement to one count of making a false statement to a federal agent, 18 U.S.C. § 1001, and one count of making a false statement in an application for a passport, 18 U.S.C. § 1542. The court sentenced Batamula to time served, one year of supervised release, and a $2,000 fine. Batamula did not appeal from his conviction or sentence but filed a motion for habeas corpus pursuant to 28 U.S.C. § 2255, asserting that his retained attorney provided ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010), by failing to advise him that the offenses to which he was pleading guilty would result in his deportation. The district court denied Batamula’s § 2255 motion, we granted a certificate of appealability, and Batamula now appeals. For the reasons assigned hereinafter, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I.

Batamula is a Tanzanian citizen who entered the United States in 2001 on a student visa and has since resided in Houston, Texas. In 2008, Batamula applied for and obtained a United States passport for his biological son, B.B.,1 a citizen and then-resident of Tanzania. To secure the passport, Batamula used the name and birth date of a different Tanzanian child whom we will refer to as Z.M.—born in Tanzania to a couple with whom Batamula was acquainted. Approximately three years later, on May 11, 2011, Z.M.’s parents applied for a passport for their son and discovered that a passport had already been issued in his name but displayed a photograph of someone else’s child—Batamula’s son, B.B. When questioned by federal agents, Batamula said that he did not know the child pictured in the fraudulent passport.

Batamula was initially charged with one count of false representation to a United States agent under 18 U.S.C. § 1001. Thereafter, a superseding information was filed that additionally charged one count of making a false statement in an application for a United States passport in violation of 18 U.S.C. § 1542. On November 17, 2011, pursuant to a written plea agreement, Batamula entered a plea of guilty to both counts.

Batamula’s guilty plea proceeding was conducted alongside another non- citizen defendant who was pleading guilty to an unrelated felony charge. During the proceeding, Batamula informed the court that he spoke with his attorney about the charges approximately ten times, that his attorney answered all of his questions, that he was “fully satisfied with the advice and counsel provided” by his attorney, and that his attorney had done everything asked of him. Moments before accepting the plea, the court addressed both Batamula and the other defendant present at the proceeding, stating: “The offenses that you’re pleading guilty to are felonies. That means that each of you will likely be deported after you serve your sentence.” The court then found that Batamula’s guilty plea was knowing and voluntary and accepted his guilty plea to both counts.

On May 1, 2012, Batamula moved to vacate or set aside his conviction and sentence pursuant to 28 U.S.C. § 2255, contending that his attorney failed to provide effective assistance of counsel under Padilla by failing to advise him that pleading guilty to both charges would result in his deportation. He averred in a sworn affidavit that, if his attorney had advised him that pleading guilty to the charges would make him “mandatory [sic] deportable” he would have refused to “make the plea,” would have pleaded not guilty, and would have insisted on going to trial “as that would have been [his] only alternative to avoid deportation.” Batamula attached to his habeas petition a sworn affidavit from his retained counsel, which stated that the attorney “advised [Batamula] on immigration consequences solely based on the language (if any)2 of the plea agreement provided by the office. I did not advice [sic] him that conviction in a two count indictment in his case would make him mandatory [sic] deportable.” Additionally, Batamula presented the affidavit of an immigration attorney who attested that, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii),3 Batamula’s guilty plea rendered him “presumptively deportable” because his convictions are considered crimes of moral turpitude.4

The district court granted the Government’s motion for summary judgment and denied Batamula’s § 2255 motion without an evidentiary hearing, finding that he had “shown no right to relief.”5 As relevant here, the district court concluded that “even if Batamula’s attorney was deficient in failing to inform Batamula of the immigration consequences of his guilty plea, Batamula has not shown that such a deficiency prejudiced him because before accepting his guilty plea the court informed him that he would likely be deported after he served his sentence. . . [Batamula therefore] cannot satisfy the [Strickland v. Washington, 466 U.S. 668 (1984)] prejudice prong[.]” Thus, the district court held as a matter of law that if a judge, during the Federal Rule of Criminal Procedure 11 (“Rule 11”) proceeding, informs the defendant that deportation is a likely result of his guilty plea, any prejudice caused by counsel’s failure to advise his client regarding that danger is thereby cured, or the defendant’s claim based thereon is forfeited or waived, and the defendant is therefore categorically foreclosed from subsequently demonstrating prejudice under Padilla and Strickland.

This is an issue of law which we review de novo.6 See, e.g., United States v. Ghali, 699 F.3d 845, 846 (5th Cir. 2012) (“When a district court denies a motion under 28 U.S.C. § 2255, we review its legal conclusions de novo.”).

II.

“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea bargaining process.” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (citing Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012); Padilla, 559 U.S. at 373; Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “During plea negotiations defendants are ‘entitled to the effective assistance of competent counsel.’” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). The right to effective representation during the pre-guilty-plea stage of proceedings requires defense counsel to, inter alia, fulfill the “quintessential[] . . . duty . . . to provide [the] client with available advice about an issue like deportation.” Padilla, 559 U.S. at 371.

The familiar two-pronged ineffective assistance analysis set forth in Strickland applies to alleged violations of the right to effective assistance of counsel during pre-guilty-plea proceedings. See Lafler, 132 S. Ct. at 1384 (citing Hill, 474 U.S. at 58); Frye, 132 S. Ct. at 1405; Padilla, 599 U.S. at 366. Establishing prejudice under Strickland in the context of a claim that defense counsel failed to advise the defendant that the entry of his guilty plea would result in deportation requires the defendant to demonstrate a reasonable probability that “but for counsel’s unprofessional errors, . . . the outcome of the plea process would have been different.” Lafler, 132 S. Ct. at 1384 (citing Strickland 466 U.S. at 694; Frye, 132 S. Ct. at 1410). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Additionally, to demonstrate prejudice and “obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372. In conducting this prejudice inquiry “we consider the totality of the circumstances.” United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014).

Recently, emphasizing that it is “counsel’s duty, not the court’s, to warn of certain immigration consequences,” id. at 728 (quoting United States v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. 2014)), we held that “[w]arnings from a judge during a plea colloquy are not a substitute for effective assistance of counsel, and therefore have no bearing on the first Strickland prong,” id. We further reasoned that, “while judicial admonishments are not a substitute for effective assistance of counsel, they are relevant under the second Strickland prong in determining whether a defendant was prejudiced by counsel’s error.” Id. at 728-29. Accordingly, we held that a judicial admonishment is one of many factors and circumstances that a court may consider in the fact-based, totality of the circumstances prejudice analysis, see id. at 725, but did not determine whether such an admonishment, alone, can remedy or prevent prejudice caused by counsel’s failure to provide effective advice about the immigration consequences of the guilty plea, id. at 729.

Here, the district court, without conducting an evidentiary hearing, denied Batamula’s § 2255 motion, apparently reasoning that a court erases any prejudice resulting from a defense attorney’s failure to competently advise a noncitizen defendant regarding the immigration consequences of his guilty plea by informing the defendant during a Rule 11 colloquy that his guilty plea will likely result in his deportation. Alternatively, the district court’s holding may be interpreted as a conclusion that the defendant waives or forfeits his ineffective-assistance-of-counsel claim by pleading guilty after receiving such an admonition. In either case, the district court’s ruling is based on its conclusion that, as matter of law, a plea colloquy judge’s mere statement regarding likely deportation automatically forecloses the petitioner from demonstrating prejudice caused by counsel’s ineffective assistance under Padilla. Neither the district court nor the Government, however, cites any authority for this categorical rule.7 In view of the Supreme Court’s decisions in Lafler, Frye, and Padilla, which expanded and expounded upon a criminal defense counsel’s Sixth Amendment duties prior to his client’s entry of a guilty plea,8 we are convinced that the district court’s legal rule of decision is inconsistent with the Supreme Court’s precedents and, therefore, was in error.

A.

The Supreme Court has made clear that “[t]he Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding.” Lafler, 132 S. Ct. at 1385. “The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel’s advice.” Id. Convictions by guilty plea— which make up between ninety-four and ninety-seven percent9 of convictions nationwide—“have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” Frye, 132 S. Ct. at 1407. “Indeed, this Circuit has observed that providing counsel to assist a defendant in deciding whether to plead guilty is ‘[o]ne of the most precious applications of the Sixth Amendment.’” United States v. Rivas–Lopez, 678 F.3d 353, 356 (5th Cir. 2012) (alteration in original) (quoting United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004)). Thus, before a defendant decides whether to plead guilty, “counsel’s function as assistant to the defendant [gives rise to] the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions” after “mak[ing] reasonable investigations.” Strickland, 466 U.S. at 688, 691.

Counsel has “the critical obligation . . . to advise the client of ‘the advantages and disadvantages of a plea agreement,’” Padilla, 559 U.S. at 370 (quoting Libretti v. United States, 516 U.S. 29, 50–51 (1995)), an obligation that requires counsel to advise a “noncitizen client that he faces a risk of deportation,” id. at 374. Effective advice from counsel regarding the deportation consequences of conviction is essential to provide constitutionally adequate representation during the pre-plea proceedings because, as the Supreme Court has repeatedly recognized, “‘[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’” Id. at 368 (alteration in original) (quoting INS v. St. Cyr, 533 U.S. 289, 322 (2001)). Given the Court’s repeated emphasis on the paramount importance of providing effective representation and competent advice regarding the immigration consequences of conviction before entry of the defendant’s guilty plea, we cannot conclude that the prejudice caused by a violation of that duty can be categorically erased by a judge’s general and laconic statement during the plea colloquy that deportation is “likely,” after that bargaining process is complete, and immediately prior to the court’s acceptance of the guilty plea. See, e.g., United States v. Cronic, 466 U.S. 648, 656 (1984) (“[T]he adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate.’”) (emphasis added) (quoting Anders v. California, 386 U.S. 738, 743 (1967)); Padilla, 559 U.S. at 370–71; see also Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013) (“[T]his Court held [in Padilla] that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea.” (emphasis added)).

Indeed, as the Supreme Court in Lafler and Frye makes clear, if a full and fair trial or an otherwise voluntary guilty plea cannot “inoculate[] [counsel’s] errors in the pretrial process” from collateral attack under Strickland, see Frye, 132 S. Ct. at 1407, neither can a trial judge’s mere statement at a plea colloquy that deportation is “likely” function to bar a petitioner from demonstrating that he was prejudiced by counsel’s deficiencies during the pre-guilty-plea stage of proceedings. More specifically, in Frye the Court rejected the State’s argument that, despite counsel’s failure to inform Frye of a formal plea offer from the prosecution, Frye was not “deprived of any legal benefit to which he was entitled” because “the guilty plea that was [ultimately] accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel.” Id. at 1406. The State further contended that the “ultimate goal of the Sixth Amendment— reliability of Mr. Frye’s conviction—was met by Mr. Frye’s knowing, intelligent, and voluntary admission of guilt.” Brief for Petitioner at 33, Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444). As it did in Padilla, the Court expressly rejected the State’s arguments that a guilty plea that was entered after the trial court fulfilled its obligation to ensure the voluntariness of that plea “supersedes errors by defense counsel.” Frye, 132 S. Ct. at 1406.

Similarly, the Court in Lafler rejected the State and Solicitor General’s argument that Strickland prejudice cannot arise from defective representation during plea bargaining if the defendant is later convicted after a fair trial. Lafler, 132 S. Ct. at 1385. The Court reasoned that “[t]he fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining.” Lafler, 132 S. Ct. at 1388. The Court in both Lafler and Frye therefore made clear that if the defendant establishes ineffective assistance of counsel during the plea negotiation stage of proceedings, a subsequent, otherwise-voluntary guilty plea or even a full and fair trial does not necessarily “wipe[] clean any deficient performance by defense counsel during plea bargaining.” Id. Likewise, a judge’s admonition at the plea colloquy that deportation is “likely” does not automatically “wipe clean” any prejudice caused by counsel’s failure to advise his client of the immigration consequences of the guilty plea. See id.; see also Frye, 132 S. Ct. at 1406-08.

Our conclusion that the district court’s plea colloquy warning does not bar Batamula from demonstrating prejudice caused by counsel’s failure to advise him of the deportation consequences of his plea is further confirmed by the Padilla Court’s own discussion of similar admonitions. The Court specifically recognized that defendants in many jurisdictions receive generalized deportation warnings on plea forms or at plea colloquies. See Padilla, 559 U.S. at 374 n.15 (noting that many states, including Kentucky, “currently . . . provide[] notice of possible immigration consequences”). The Court never intimated that such admonitions could prove fatal to ineffectiveness claims, rejecting arguments from several states appearing as amici curiae that defense counsel need not be constitutionally required to advise their clients regarding deportation consequences of guilty pleas because “states and judges are already addressing” the issue. See Brief for the State of Louisiana et al. as Amici Curiae in Support of Respondent at 24-26, Padilla v. Kentucky, 559 U.S. 356 (2010) (No. 08-651). To the contrary, the Court cited such practices in support of its conclusion that “[t]he severity of deportation— ‘the equivalent of banishment or exile’—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” Padilla, 559 U.S. at 373-74 (citation omitted) (emphasis added).

Moreover, the Supreme Court has long contrasted the unique and critical obligations of defense counsel during the plea bargaining process with the far more limited role of a district court to ensure a minimally valid guilty plea, further supporting our conclusion that the judicial warning of “likely” deportation does not prevent prejudice caused by counsel’s deficient performance in fulfilling his constitutional obligation to serve as a client’s advocate and advisor before deciding whether to plead guilty. See Frye, 132 S. Ct. at 1406; Lafler, 132 S. Ct. at 1390; Padilla, 559 U.S. at 364–65. The judicial plea colloquy merely “assist[s] the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S. 459, 465 (1969). Because a judge “cannot investigate the facts . . . or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional,” a judge cannot discharge the obligations of counsel for the accused. Powell v. Alabama, 287 U.S. 45, 61 (1932). Indeed, pursuant to a 2013 amendment, Rule 11 now requires a district court, before accepting a guilty plea, to state to every defendant “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” Fed. R. Crim. P. 11(b)(1)(O). The Advisory Committee, in a note regarding this provision, specified that the Rule requires only that the court provide a “generic warning, not specific advice concerning the defendant’s individual situation.” Fed. R. Crim. P. 11 advisory committee’s note (2013 Amendments, Subdivision (b)(1)(O)). Thus, distinct from defense counsel’s role, Rule 11 merely requires the court to make a general statement regarding possible immigration consequences to ensure the defendant’s plea is entered knowingly, “without attempting to determine the defendant’s citizenship.” Id. Indeed, Rule 11 mandates that “[t]he court must not participate in [plea] discussions”; therefore, the judge is prohibited from advising or counseling the defendant regarding the advantages and disadvantages of pleading guilty in his particular case. Fed. R. Crim. P. 11(c)(1). These differences between the role of the court and the duties of effective defense counsel explain the essential distinction between the Fifth Amendment plea voluntariness analysis and the Sixth Amendment ineffective-assistance-of-counsel analysis. See Lafler, 132 S. Ct. at 1390 (“An inquiry into whether the rejection of a plea is knowing and voluntary, . . . is not the correct means by which to address a claim of ineffective assistance of counsel.”).

Further, and perhaps most significantly, by the time the plea colloquy occurs, the plea bargaining process is over—and with it, defense counsel’s opportunity to negotiate and advise the client based on an adequate understanding of deportation consequences. Counsel is obligated to effectively investigate and advise his client regarding immigration consequences “[b]efore [the client] decid[es] whether to plead guilty,” a decision made before the judicial plea colloquy occurs. See Padilla, 559 U.S. at 364 (emphasis added). If the negotiation process that preceded the plea hearing was not informed by counsel and his client’s consideration of the immigration consequences of the plea, a judge’s statement that warns the defendant of likely deportation, provided after counsel’s opportunity to effectively represent and advise his client has passed, does not alone prevent or remedy any prejudice that may have been caused by counsel’s deficient representation nor does it foreclose the defendant’s ability to bring a Sixth Amendment claim of ineffective assistance of counsel.

Because “an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney,” Brady v. United States, 397 U.S. 742, 748 n.6 (1970), information regarding deportation disclosed by the judge for the first time at the plea colloquy may not spur a noncitizen defendant to reassess the advantages and disadvantages of a plea that her attorney has advised her to take. See Padilla, 559 U.S. at 370-71 (stating that noncitizens are “a class of clients least able to represent themselves”). As Batamula asserts on appeal, it defies logic to presume that a defendant can instantaneously and properly assess the full implications of the district court’s warning at the colloquy if his attorney has failed to advise him of that danger and failed to advocate for his avoidance of it by, for example, seeking a more favorable plea bargain before the plea proceeding commences. Rather, a defendant at a plea colloquy who receives a judicial admonishment that deportation is “likely,” but who has not received effective advice from counsel, may reasonably “interpret[] his lawyer’s silence [in the face of the admonition] to mean that pleading guilty would not place him in jeopardy of deportation[.]” See United States v. Bonilla, 637 F.3d 980, 984-85 (9th Cir. 2011). As the commentary to the American Bar Association’s Standards aptly states:

The court’s warning comes just before the plea is taken, and may not afford time for mature reflection. The defendant cannot, without risk of making damaging admissions, discuss candidly with the court the questions he or she may have. Moreover, there are relevant considerations which will not be covered by the judge in his or her admonition. A defendant needs to know, for example, the probability of conviction in the event of trial. Because this requires a careful evaluation of problems of proof and of possible defenses, few defendants can make this appraisal without the aid of counsel.

ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2 cmt. at 118 (3d ed. 1999); see also id. at 126 (“[O]nly defense counsel is in a position to ensure that the defendant is aware of the full range of consequences that may apply in his or her case.”).10

Accordingly, the mere fact that a defendant, who has already signed a plea agreement upon counsel’s advice, is told by the trial judge that the plea will likely result in deportation does not foreclose the defendant’s ability to demonstrate that “counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59.11 Were we to hold that the judge’s mere statement to Batamula during his plea colloquy that he would “likely” be deported vitiated his ability to establish prejudice under Strickland and Padilla, we would be turning a blind eye to the reality of the plea bargaining and plea colloquy process and flouting the Supreme Court’s mandate that a defendant has a constitutionally protected right to the effective assistance of counsel throughout the pre-plea stage—a right that carries more than can be supplied by a judge’s general and equivocal last-moment warning that deportation is likely to result from the guilty plea. “[C]riminal defendants require effective counsel during plea negotiations. Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.” Frye, 132 S. Ct. at 1407–08 (emphasis added) (internal quotation marks omitted) (second alteration in original).

B.

To the extent that the district court’s ruling can be interpreted as a holding that Batamula, by pleading guilty in compliance with Rule 11, forfeited his right to collaterally attack his guilty plea under Padilla, the Supreme Court’s cases are clearly to the contrary. The Court has made clear that the right to raise an ineffective-assistance-of-counsel claim to challenge the validity of a conviction by guilty plea is not forfeited by entry of a guilty plea in compliance with Rule 11.

Addressing the general question of the extent to which constitutional claims survive the entry of a guilty plea, the Supreme Court has repeatedly stated that a guilty plea effects a forfeiture of certain constitutional claims if the plea is entered knowingly and voluntarily and with competent assistance and advice by defense counsel. See, e.g., Mabry v. Johnson, 467 U.S. 504, 508 (1984) (“It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.”), disapproved of on other grounds by Puckett v. United States, 556 U.S. 129 (2009) (emphasis added). Claims of ineffective assistance of counsel that affected the validity of the guilty plea are necessarily excluded from this general rule that constitutional defenses are forfeited by entry of a guilty plea. See, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, . . . [h]e may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [deficient.]”); see also 5 Wayne R. LaFave et al., Criminal Procedure, The Adversary System and the Determination of Guilt and Innocence § 21.6(a) (3d ed. 2014) (concluding that the general rule that defendants forfeit certain constitutional claims upon pleading guilty “has no application to defects which go directly to the guilty plea itself,” including “defects concerning advice of counsel,” because such circumstances “taint the plea”).

The Court has therefore made it abundantly clear that although entering a guilty plea results in the forfeiture of certain constitutional claims, it does not bar a post-conviction collateral attack on the conviction and sentence based upon ineffective representation leading up to the entry of the guilty plea. Padilla exemplifies this well-established rule that entry of a guilty plea, despite generic warnings from the court regarding the possible consequences of the guilty plea, does not foreclose the defendant from demonstrating that counsel’s ineffective advice regarding the deportation consequences of conviction prejudiced the proceedings. See Padilla, 559 U.S. at 374 & n.15.

CONCLUSION

For these reasons, we conclude that a judge’s statement at the guilty plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice as a result therefrom. Batamula thus is not foreclosed from challenging his guilty plea under Padilla solely because the district court notified him that deportation following the service of his sentence is “likely,” and the district court erred in holding to the contrary. The record is currently insufficiently developed for us to apply the fact-intensive, totality of the circumstances prejudice analysis12 necessary to determine whether Batamula is entitled to relief on his Sixth Amendment claim. We therefore REVERSE and REMAND13 for further proceedings consistent with this opinion.14

FOOTNOTES

1 To protect the identity of the minor children involved, we will refer to them by their first and last initials.

2 The written plea agreement contains no reference whatsoever to the immigration consequences of Batamula’s guilty plea.

3 8 U.S.C. § 1227(a)(2)(A)(ii) provides that, “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” Batamula’s two crimes, although arguably related and thus part of one criminal “scheme,” would likely be construed as two distinct crimes for purposes of this statute, as each is a “complete, individual, and distinct crime . . . even though . . . [they may] be part of an overall plan of criminal misconduct.” Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993); see also Okoro v. INS, 125 F.3d 920, 926–27 (5th Cir. 1997); Iredia v. INS, 981 F.2d 847, 848–49 (5th Cir. 1993). Neither party raised the issue of whether Batamula’s crimes constitute separate “schemes of criminal misconduct,” and we need not address it to resolve this case.

4 Although the Immigration and Nationality Act does not contain a definition of “crimes of moral turpitude,” crimes involving an element of fraud are generally considered to be such. See, e.g., Omagah v. Ashcroft, 288 F.3d 254, 259–60 (5th Cir. 2002) (finding that conspiracy to use illegal immigration documents constitutes a crime of moral turpitude because the crime “involves fraud as a central ingredient and requires proof of mens rea sufficient to classify it as a crime of moral turpitude”).

5 The district court’s order granting the Government’s summary judgment motion and dismissing Batamula’s habeas petition concluded that the appeal waiver provision in Batamula’s plea agreement barred him from collaterally challenging his conviction and, alternatively, that he could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984) and Padilla. This court granted Batamula’s application for a certificate of appealability, authorizing an appeal regarding (1) whether the appeal waiver provision in Batamula’s plea agreement bars his habeas petition; and (2) whether the district court properly granted the Government’s motion for summary judgment by finding that Batamula could not establish prejudice under Strickland. On appeal, however, the Government expressly declined to seek enforcement of the appeal waiver and argued only that we should affirm the summary judgment order below because Batamula is foreclosed from establishingprejudice under Strickland and Padilla. Accordingly, we do not address or consider the enforceability of the appeal waiver.

6 The narrow issue of law that we are presented with in this case—whether a judicial warning or admonition of likely deportation alone forecloses the defendant’s claim that his counsel’s deficiency under Padilla prejudiced the plea process—was expressly left open by this court when we considered the relevance of a judicial admonishment to the Strickland prejudice inquiry. See United States v. Kayode, 777 F.3d 719, 729 (5th Cir. 2014) (“We need not decide today whether Kayode’s affirmative responses to the[] [judge’s] admonishments [that his conviction may lead to deportation], standing alone, would be sufficient to defeat the prejudice prong under Strickland.”).

7 Nor, for that matter, can it be reconciled with the totality-of-the-circumstances analysis we prescribed in Kayode. Kayode, 777 F.3d at 725.

8 See, e.g., Chaidez v. United States, 133 S. Ct. 1103, 1110 (2013) (concluding that Padilla “br[oke] new ground” by holding that the Sixth Amendment requires counsel to advise his client about immigration consequences—a “collateral” consequence—of conviction).

9 “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Frye, 132 S. Ct. at 1407 (citing, inter alia, Padilla, 559 U.S. at 372 (“Pleas account for nearly 95% of all criminal convictions.”); Bureau of Justice Statistics, Sourcebook of Criminal Justice http://www.albany.edu/sourcebook/pdf/t5222009.pdf)). Statistics Online, tbl.5.22.2009.

10 The Supreme Court has recognized that ABA standards “can be important guides” in the ineffective-assistance-of-counsel analysis. See Frye, 132 S. Ct. at 1408.

11 We note that this warning remains relevant to the determination of prejudice, which demands consideration of the totality of the circumstances. See Kayode, 777 F.3d at 728–29.

12 See, e.g., Sears v. Upton, 561 U.S. 945, 955 (2010) (“[T]he Strickland [prejudice] inquiry requires [a] probing and fact-specific analysis . . . .”); see also Kayode, 777 F.3d at 725.

13 All other pending motions are DENIED AS MOOT.

14 On remand, the district court must determine what further proceedings are necessary—an issue we need not reach today. We note that an evidentiary hearing will be required on remand “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013); Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979) (per curiam); Reagor v. United States, 488 F.2d 515, 517 (5th Cir. 1976) (“Contested fact issues in § 2255 cases must be decided on the basis of evidentiary hearings . . . .”); see also Machibroda v. United States, 368 U.S. 487, 494 (1962).

Original opinion text: http://www.ca5.uscourts.gov/opinions/pub/12/12-20630-CV0.pdf

(Statue of Liberty Image: Emanuele Bresciani, stocksnap.io)

Rabb v. State, PD-1643-12

Tampering: To swallow may be to conceal, but it does not necessarily equate to destruction.

_____________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

 

NO. PD-1643-12

RICHARD LEE RABB, Appellant

v.

THE STATE OF TEXAS

ON STATE‘S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS
ROCKWALL COUNTY
Meyers, J., delivered the opinion of the Court, in which Price, Womack, Johnson, Keasler, and Hervey, JJ., joined. Cochran, J., filed a concurring opinion. Alcala, J., filed a dissenting opinion, in which Keller, P.J., joined.

O P I N I O N

Appellant, Richard Lee Rabb, was convicted of tampering with physical evidence under Section 37.09(a)(1) of the Texas Penal Code and sentenced to six years of confinement. The Seventh Court of Appeals reversed the trial court’s judgment of conviction and rendered a judgment of acquittal. Rabb v. State, 387 S.W.3d 67, 73 (Tex. App. – Amarillo 2012). The State filed a petition for discretionary review asking that we consider (1) whether the court of appeals erred in failing to find overlap in the terms “conceals” and “destroys,” (2) whether the court of appeals erred in not permitting the fact finder to infer the evidence was destroyed, and (3) whether the court of appeals was required to reform the judgment to a conviction on a lesser-included offense rather than acquit. We granted the State’s petition in order to consider these issues. We now hold that while there is some overlap between the terms “conceals” and “destroys” for purposes of Section 37.09(a), no rational trier of fact could have found that Appellant destroyed the evidence in this case. However, because the court of appeals did not have the benefit of our recent opinion in Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014), we remand the case for the court of appeals to consider whether reformation of the judgment is required.

FACTS
 

Appellant was shopping in a Wal-mart store in Rockwall with his step-brother, James Reynolds, and their mother. Appellant and Reynolds were both in the electronics section of the store, but some distance from each other, when a Wal-mart asset-protection coordinator observed Reynolds select items from the shelves in a suspicious manner. The employee then watched as Reynolds walked to another section of the store, unwrapped the merchandise, and hid it in his clothing. While observing this, the asset protection coordinator attempted to contact additional employees for backup. He had difficulty getting a response, so he called the police and requested that an officer come to the store. Once Reynolds exited the check-out area without paying for the items in his clothing, he was detained by store employees. When questioned about who else was with him, Reynolds described his step-brother, Appellant.

In the meantime, Appellant had continued shopping, unaware that Reynolds had been detained for shoplifting. After Appellant paid for his items and was exiting the store, a police officer who had responded to the call to the store approached him. The events that followed were captured by the store’s security camera and shown to the court while witnesses narrated. The officer explained to Appellant that Reynolds was in custody for stealing merchandise and asked Appellant if he had taken anything from the store without paying. When Appellant responded that he had not, the officer asked for consent to search him. Appellant consented by immediately turning around and placing his hands in the air. The officer was conducting a pat-down search and removing items from Appellant’s pockets when one of the employees standing nearby noticed the corner of a plastic baggie in Appellant’s hand. The employee notified the officer. When the officer went to retrieve the baggie, Appellant put the baggie in his mouth.

The officer demanded that Appellant spit out the baggie, but Appellant refused. The officer then attempted to restrain Appellant to keep him from swallowing the baggie. Appellant resisted, and a second officer who had been summoned to the store tasered Appellant multiple times, eventually rendering Appellant submissive and unconscious. At some point during the altercation, Appellant swallowed the baggie and its contents.
Although Appellant regained consciousness quickly, an ambulance was called to the scene. The medical report shows that Appellant told the medic that the baggie “contained pills that were not prescribed to him, but would not state exactly what they were. He originally said pain pills, but later said they were OTC meds and it was about four of them.” No one made any attempt to retrieve the items that Appellant swallowed.
The State charged Appellant with violating Section 37.09 of the Penal Code by “knowing that an investigation was in progress, . . . intentionally or knowingly destroy[ing] a plastic baggie with intent to impair its availability as evidence in the investigation.” The trial court convicted Appellant and sentenced him to six years of confinement.

COURT OF APPEALS
 

Appellant appealed, arguing that the evidence was insufficient to establish that he destroyed the baggie or that he knew an investigation was in progress. Rabb, 387 S.W.3d at 70. The court first considered the evidence on Appellant’s destruction of the baggie and addressed the definitions of “conceal” and “destroy.” It reasoned that, contrary to the State’s suggestion, the two terms should not be applied in a way that “maximizes their overlap” and produces a result where “every item concealed [would] also be considered destroyed.” Id. at 72. While the State contended that the Appellant destroyed the baggie because his actions caused its “complete ruination,” the court said that the State’s definition was equating the two words simply because the item had not been recovered. Id. The court of appeals concluded that, because the evidence showed only the baggie’s location and nothing about the condition of the baggie or pills, the acts of Appellant constituted concealment rather than destruction. Id. Based on this determination, the court of appeals reversed the trial court, holding that no rational trier of fact could have found that Appellant destroyed the baggie within the meaning of the law. (1) Id. at 73.

STANDARD OF REVIEW
 

In evaluating the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the defendant guilty of all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements. Cada v. State, 334 S.W.3d 766, 774 (Tex. Crim. App. 2011) (citing Plantar v. State, 9 S.W.3d 156, 159 (Tex. Crim. App. 1999); Fuller v. State, 73 S.W.3d 250, 255-56 (Tex. Crim. App. 2002) (Keller, P.J., concurring);Macias v. State, 136 S.W.3d 702, 705-06 (Tex. App. – Texarkana 2004, no pet.)). The due-process guarantee requires proof beyond a reasonable doubt to support every element of the offense alleged and demands that we reverse and order a judgment of acquittal if a rational trier of fact would entertain a reasonable doubt as to the defendant’s guilt. Swearingen, 101 S.W.3d at 95.

DESTRUCTION OF EVIDENCE



Section 37.09(a)(1) of the Texas Penal Code defines the offense of tampering with physical evidence with three elements: (1) Knowing that an investigation or official proceeding is pending or in progress; (2) a person alters, destroys, or conceals any record, document, or thing; (3) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008). As noted, Appellant’s indictment alleged only that he destroyed the evidence and did not allege either of the statutory alternatives.

In the present case, the court of appeals looked to our opinion in Williams for the definition of “destroy” and for guidance in analyzing Appellant’s actions. In Williams, we held that a glass crack pipe that had been broken into pieces when stepped on was destroyed for the purposes of this statute. Id. at 146. We asserted that, because the Legislature chose to use the three different words in the statute, “‘destroys’ must have an effect distinct from ‘alters’ and ‘conceals.'” Id. We then determined that evidence is “destroyed” when “ruined or rendered useless,” rather than when its evidentiary value is lost or diminished. Id. at 145-46.
The court of appeals used this discussion from Williams in deciding that “destroy” and “conceal” should not so closely overlap as to be interchangeable in this case. The State, however, mischaracterizes the opinion as disallowing any overlap in the definitions of “destroy” and “conceal.” In reality, the court of appeals explicitly acknowledged that “there is the possibility of overlap in the application of the three means of tampering.” Rabb, 387 S.W.3d at 72. The court of appeals simply declined to extend the definition of “destroy” that we put forth in Williams to the situation in this case in which Appellant’s “action so clearly constitut[ed] a concealment.” Id.

While the words chosen by the Legislature in defining this offense each have a distinct purpose, this does not preclude overlap among those meanings. See, e.g., Clinton v. State, 354 S.W.3d 795, 801 (Tex. Crim. App. 2011) (concluding that “uses” and “presents” have some overlap in the debit-card-abuse statute); Taylor v. State, 117 S.W.3d 848, 851 (Tex. Crim. App. 2003) (stating there is nothing “unusual” in overlap between the terms “manager” and “employee”); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (holding that there is overlap in the terms “use” and “exhibit” in the deadly-weapon statute). Therefore, while “conceal,” “destroy,” and “alter” each have their own meaning, they are not mutually exclusive, and we do not find the court of appeals’ decision in conflict with this conclusion.
The State also argues that the court of appeals erred in deciding that no reasonable trier of fact could have found that Appellant’s actions constituted destruction of the baggie. The State points out that fact finders are permitted to draw reasonable inferences if supported by the evidence. Jackson, 443 U.S. at 319; Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). It asserts that concluding that the baggie was destroyed in Appellant’s digestive tract was a reasonable inference for the trial court to make.
The State’s statement of the law is correct. This means that if a fact finder could reasonably infer from the evidence that the baggie and pills were destroyed by their passage into Appellant’s body, then the evidence would be sufficient to uphold Appellant’s conviction. Id. The fact finder is, however, prohibited from drawing conclusions based on speculation or mere theorizing about the possible meaning of the facts. Hooper, 214 S.W.3d at 16.

In this case, the State did not present any evidence on the condition of the baggie or its contents after Appellant swallowed them, nor any evidence that demonstrated that the items had been ruined or rendered useless. In fact, there was not even an attempt made by officers or doctors to retrieve the baggie or to determine if its recovery was possible. There was, therefore, no evidence at the trial from which a fact finder could reasonably infer that the evidence had been destroyed.

The State also asserts that triers of fact are free to use their common sense, common knowledge, observation, and experience to make inferences reasonably drawn from the evidence. It argues that people’s life experiences would allow an inference that the baggie was destroyed in Appellant’s stomach. However, while it is possible that the baggie was destroyed, it is just as possible that it was not. Swallowing items filled with drugs is a common technique used by smugglers to conceal and transport those drugs. This act clearly does not cause the destruction of the drugs, or it would be useless to the transporters. Therefore, without any evidence on the status of the baggie, a determination on whether it was intact or destroyed after passing through Appellant’s stomach would be based purely on speculation.

In order to prevail in any prosecution, “the State must prove the statutory elements that it [chose] to allege, not some other alternative statutory element that it did not allege.” Cada, 334 S.W.3d at 776 (discussing the requirements of due process and Jackson v. Virginia). In this case, the State chose to allege only that Appellant destroyed the evidence and chose not to include either of the statutory alternatives. The State then presented no evidence that the baggie and its contents were destroyed and no evidence on which a fact finder could base a reasonable inference that they had been destroyed. Consequently, we hold that the court of appeals was correct in determining that no rational trier of fact could have found that Appellant destroyed the evidence.

LESSER-INCLUDED OFFENSE
 
The State’s final argument is that, upon finding the evidence insufficient to show Appellant “destroyed” the evidence, the court of appeals should have reformed his conviction to attempted tampering with evidence rather than entering a judgment of acquittal.
The State bases this argument on our decision in Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), in which we overruled Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) and ordered the reformation of an acquittal judgment to reflect a conviction on a lesser-included offense.
Neither the State nor the court of appeals had the benefit of our decision in Thornton v. State, which was rendered on April 2, 2014. In Thornton we held that:

[A]fter a court of appeals has found the evidence insufficient to support an appellant’s conviction for a greater-inclusive offense, in deciding whether to reform the judgment to reflect a conviction for a lesser-included offense, that court must answer two questions: 1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either of these questions is no, the court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the court is authorized-indeed required-to avoid the “unjust” result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense.
425 S.W.3d at 299-300.

Therefore, the proper disposition here is to remand the case to the court of appeals for its consideration of those questions.
CONCLUSION
 
Considering the evidence in the light most favorable to the court’s verdict, a rational trier of fact could not have found beyond a reasonable doubt that Appellant destroyed the baggie and its contents. However, the court of appeals must analyze whether our recent decision in Thornton mandates reformation of the conviction rather than acquittal. Therefore, the case is remanded to the court of appeals for consideration of this issue.

 

Delivered: June 25, 2014
Publish

1. Because it reversed on this issue, the court found it unnecessary to consider whether there was sufficient evidence of Appellant’s knowledge that an investigation was in progress. Rabb, 387 S.W.3d at 73.

CONCURRING OPINION

Cochran, J., filed a concurring opinion.

I join the majority opinion. I write separately simply to point out that the State lost this conviction because it did not pay sufficient attention to its pleading. It may seem trivial, but there is, in cases such as this one, a difference between “concealing,” “altering,” and “destroying” evidence. That is why the legislature included all three criminal acts that constitute “tampering” with evidence in the statute. (1) And that is why a prosecutor might allege all three criminal acts in its indictment or information. I would agree that appellant concealed the baggie when he swallowed it, but there is no evidence to support a finding that the baggie was “destroyed” when swallowed.

Furthermore, although the parties have not raised the issue in this Court, I wonder how the baggie is “evidence” in an investigation? I can certainly understand how the pills contained within the baggie might be evidence if they are contraband, but surely possession of the baggie is neither a crime itself nor any evidence of a crime. Appellant may have swallowed the baggie, but it is the pills that matter.
Before filing a pleading, the cautious prosecutor might list out each element of the offense and each descriptive phrase and ask whether he can prove each element and allegation and whether the list adds up to a criminal offense.

DISSENTING OPINION

Alcala, J., filed a dissenting opinion in which Keller, P.J., joined.

Eating, swallowing, digesting, and eliminating: These are things every human being intimately understands based on common sense and a lifetime of daily personal experiences. In deference to the fact-finder’s common sense, I would hold that the evidence is legally sufficient to support the conviction of Richard Lee Rabb, appellant, for tampering with physical evidence. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (evidence is sufficient when, viewing the evidence and all reasonable inferences in the light most favorable to the verdict, a rational fact-finder could have found each element of the offense beyond a reasonable doubt). I conclude that a rational fact-finder could have determined that appellant ruined or rendered useless the pills and baggie by swallowing them, and, therefore, that he tampered with physical evidence by destroying it. See Tex. Penal Code Ann. § 37.09(a)(1) (West 2011). In contrast, the majority opinion circumvents the fact-finder’s decision, calling it irrational, and, in the process, resurrects the long-dead reasonable-alternative-hypothesis analysis, which permits an appellate court to find the evidence insufficient based on the existence of scenarios in which the fact-finder’s verdict could theoretically be wrong. See Geesa v. State, 820 S.W.2d 154, 156, 159 (Tex. Crim. App. 1991) (rejecting reasonable hypothesis analytical construct for evaluating sufficiency of evidence). I would keep the nail in the coffin of the reasonable-alternative-hypothesis analytical construct, hold that the evidence is legally sufficient, sustain the State’s first and second grounds in its petition for discretionary review, and reverse the judgment of the court of appeals. I, therefore, respectfully dissent.
I. Evidence is Sufficient to Establish Tampering with Physical Evidence
By relying on common sense and life experiences, the fact-finder was rational in determining that the pills and baggie were ruined or rendered useless by appellant’s act of swallowing them. The fact-finder’s determination was not irrational merely because of the existence of an alternative reasonable hypothesis that is inconsistent with appellant’s guilt, and the State was not required to provide affirmative evidence to disprove that alternative hypothesis. Because the fact-finder was rational in finding that the evidence was destroyed based upon the drawing of reasonable inferences, I would hold that the evidence is sufficient to establish appellant’s guilt.
A. The Baggie and Pills Were Rendered Useless for Their Intended Purpose
The record reflects that appellant was at a Walmart with his brother, James, when James was detained by Walmart security officers on suspicion of shoplifting. After police officers arrived, appellant was also detained and questioned about whether he had taken any store merchandise without paying for it. Appellant denied having stolen anything and consented to a search. During the police officer’s subsequent search of appellant, a Walmart security officer alerted the officer that appellant was holding something in his hand. The police officer reached up and attempted to take the object, a plastic baggie, out of appellant’s hand, but before he could reach it, appellant placed it into his mouth and refused to spit it out. A struggle ensued as the officer attempted to force appellant to spit out the baggie, and, at some point during the struggle, appellant swallowed the baggie. A second officer eventually tasered appellant in order to subdue him, and appellant was placed under arrest. An ambulance was called to the scene to check appellant’s vital signs, at which point appellant told a paramedic that the baggie contained prescription pills that had not been prescribed to him. The baggie and pills were never recovered.
Based on a lifetime of personal experience with the digestive process that follows consumption of food and pills, a rational trier of fact could have found that the pills and baggie were destroyed by appellant’s act of swallowing them, either because (1) they were digested in that process, or (2) they were expelled in an unsanitary condition in appellant’s excrement after passing through his intestinal tract. Under either possible scenario, a rational fact-finder could have found, based on the drawing of reasonable inferences, that the pills were destroyed.
A person commits the offense of tampering with physical evidence if, “knowing that an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]” Tex. Penal Code § 37.09(a)(1). This Court has previously interpreted the meaning of the statutory term “destroys” in Williams v. State, in which it held that an item of evidence is destroyed when it is “ruined and rendered useless,” or, stated differently, when it “has lost its identity and is no longer recognizable.” 270 S.W.3d 140, 145-46 (Tex. Crim. App. 2008). In Williams, the defendant was convicted of tampering with physical evidence after a crack pipe fell to the ground during a police officer’s pat-down search of him and he stomped on the pipe, breaking it into pieces. Id. at 141. On appeal, Williams argued that the evidence was insufficient to show that the crack pipe was destroyed because the crack pipe’s remains, glass shards and a copper mesh filter, were admitted into evidence at trial and, therefore, retained some evidentiary value. Id. at 145. This Court disagreed. It explained that the plain meaning of the word “destroys” does not require proof of a lack of physical existence or a loss of evidentiary value because “the remains of a destroyed object can still have evidentiary value.” Id. at 146. Applying this interpretation in Williams, this Court explained that the crack pipe was destroyed within the meaning of the evidence-tampering statute because officers were “unable to retrieve every piece of the shattered crack pipe, and even if the recovered pieces could have been glued together in an attempt to reconstruct the evidence to its former physical state, it would be less than a complete crack pipe.” Id. It went on to hold that the evidence was sufficient to show that the crack pipe was destroyed because the recovered pieces, glass shards and a copper mesh filter, “had lost their identity as a crack pipe and were not recognizable as a crack pipe.” Id.
Williams decisively determined that, although the State must prove that a defendant acted with intent to impair the verity, legibility, or availability of evidence in an investigation, it need not prove that the altered, destroyed, or concealed item could not be used as evidence at a defendant’s trial. See id.; Tex. Penal Code § 37.09(a)(1). Rather, under Williams, the relevant question is whether the evidence has been “ruined” or “rendered useless” for its intended purpose, or alternatively, whether it has “lost its identity” and is “no longer recognizable” as a result of the defendant’s actions. See Williams, 270 S.W.3d at 146. Applying the reasoning of Williams to the facts of this case, I would hold that a rational fact-finder could have concluded that the pills and baggie were ruined or rendered useless, and thus destroyed, by appellant’s act of swallowing them. See id. at 145-46; see also Tex. Penal Code § 37.09(a)(1). It is irrelevant whether the pills and baggie could possibly have retained some evidentiary value if they had passed intact through appellant’s intestinal tract and been recovered. Regardless of whether the pills and baggie were entirely or partially digested by appellant or were expelled by appellant with his excrement, the fact-finder was not irrational in determining that their condition after passing through his intestinal tract “would be less than” their “former physical state,” and, therefore, ruined. See Williams, 270 S.W.3d at 146. I would hold that the fact-finder was rational in determining that the pills and baggie, whether digested or expelled, were rendered ruined or useless as to their intended purpose, and, therefore, were destroyed. See id.; Tex. Penal Code § 37.09(a)(1). (1)
B. Existence of a Reasonable Alternative Does Not Make Evidence Insufficient
The absence of direct evidence about what actually happened to the baggie and pills does not mean that the fact-finder engaged in impermissible speculation, as suggested by the court of appeals, because under any possible scenario, the fact-finder could rationally infer from the circumstances that the items were destroyed. See Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (noting that, although fact-finder is not permitted to reach conclusions based on mere speculation, “direct evidence of the elements of the offense is not required”; fact-finder is “permitted to make reasonable inferences from the evidence presented at trial,” and circumstantial evidence “is as probative as direct evidence” in establishing an actor’s guilt).
In reaching its conclusion that the evidence is insufficient, the majority opinion reasons that, because some drug mules transport drugs in their intestines without those drugs being ruined, it was at least theoretically possible that the baggie and pills in this case were not ruined if they passed through appellant’s intestinal tract and were expelled in his excrement. For two reasons, I disagree with this line of reasoning. First, the fact-finder could have rationally determined that appellant’s consumption of the baggie and pills, under the circumstances, would lead to their destruction because appellant swallowed those objects suddenly and without having planned to do so. Although I acknowledge, as the majority opinion does, that some drug mules are able to transport balloons filled with heroin and cocaine inside their intestinal tracts without those drugs being destroyed, that particular method of transporting drugs requires preparation. Mules will generally transport heroin and cocaine by placing the drugs inside two or more condoms, with each condom layered inside the other, so that the outer condom exposed to excrement may be discarded while the inner condom containing the drugs remains sanitary. The properly packaged balloons can pass through the intestinal tract without the drugs being compromised because such items will not generally dissolve in intestinal fluids. The drugs contained within the inner condom remain useable and in a sanitary condition because only the outer condom is exposed to intestinal fluids and excrement. Even in those situations, which involve careful planning and design, it is common knowledge that things can sometimes go wrong–for example, the balloons might rupture or become lodged in the intestinal tract.
In contrast, here, the fact-finder could have rationally inferred from the circumstances that appellant was not planning on swallowing the baggie and pills that day and that his impulsive act of swallowing those objects would cause them, unlike drugs packaged in multiply-layered condoms, to succumb to the corrosive effects of his intestinal fluids. And, even if the baggie and pills survived the intestinal tract, they would have passed in appellant’s excrement, causing them to be ruined because they were unsanitary and unusable. Although the fact-finder could have reached a different conclusion had it weighed the facts differently, this Court must defer to the fact-finder’s common sense with respect to the uselessness of pills that have passed through a person’s intestinal tract. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (describing sufficiency-review standard as giving “full play to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (when record supports conflicting inferences, “we presume that the jury resolved the conflicts in favor of the verdict and therefore defer to that determination”) (quoting Jackson, 443 U.S. at 326, 99 S. Ct. at 2792); Hooper, 214 S.W.3d at 15 (fact-finder should be permitted “to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial”).
Second, I disagree with the majority opinion’s focus on circumstances that might be consistent with appellant’s innocence, when it should instead focus on whether the fact-finder could rationally have found appellant guilty. The majority opinion reasons that, because some people can swallow items without those items being destroyed, such an outcome was at least theoretically possible in this case and, therefore, the existence of a circumstance that would be inconsistent with appellant’s guilt renders the evidence insufficient. This type of reasoning marks the revival of the alternative-reasonable-hypothesis analytical construct, which required a reviewing court to find that every other reasonable hypothesis raised by the evidence was negated, save and except for that establishing the defendant’s guilt, if a conviction was to be affirmed in a circumstantial-evidence case. Reyes v. State, 938 S.W.2d 718, 719 (Tex. Crim. App. 1996) (stating that prior to Geesa v. State, this Court “employed the ‘reasonable-hypothesis-of-innocence’ analytical construct to review the sufficiency of the evidence in circumstantial evidence cases”) (citing Geesa, 820 S.W.2d at 158). But this Court long ago “abolished the reasonable-hypothesis construct for measuring the sufficiency of the evidence in a circumstantial evidence case[.]” Taylor v. State, 10 S.W.3d 673, 680 (Tex. Crim. App. 2000). “Courts and juries no longer face the difficult task of excluding every reasonable hypothesis other than the defendant’s guilt.” Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). And the State need not present evidence that conclusively excludes every conceivable alternative to a defendant’s guilt. See Wright v. West, 505 U.S. 277, 296, 112 S. Ct. 2482, 2493 (1992) (prosecution has no affirmative duty to “rule out every hypothesis except that of guilt”) (quoting Jackson, 443 U.S. at 326); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (“It is the State’s burden to prove each element of the offense beyond a reasonable doubt, not to exclude every conceivable alternative to a defendant’s guilt.”). Even if it is true that some drug mules are able to transport drugs in their intestines in multiply-layered condoms without the drugs being destroyed, the existence of an alternative reasonable hypothesis does not mean that a fact-finder here would be irrational in determining that, where the pills were contained in a single plastic baggie and hurriedly swallowed by appellant in order to evade police detection, appellant’s consumption of the baggie and pills destroyed the items, either through digestion or contact with excrement. I conclude that the fact-finder could have rationally determined, based on personal experience, that the baggie and pills either (1) succumbed to gastrointestinal fluids that dissolved and converted the contents into something else, or (2) passed through the intestinal tract and were expelled from the body through excrement, thereby ruining them and rendering them useless for their intended purpose.
II. Conclusion
The majority opinion takes the unusually odd position of calling the fact-finder irrational for deciding that a baggie and pills that were either digested or exposed to excrement were “destroyed” within the meaning of the evidence-tampering statute. It is often said that this Court, in reviewing for sufficiency of the evidence, should not act as a thirteenth juror and should instead limit itself to guarding against the rare occurrence when a fact-finder does not act rationally. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); see also United States v. Vargas-Ocampo, 711 F.3d 508, 512 (5th Cir. 2013) (original op.) (stating that fact-finder’s role is to perform “weighing of inferences”; appellate court reviewing for sufficiency must defer to fact-finder’s reasonable rejection of “benign explanation” for incriminating inferences). Because I conclude that a rational fact-finder could have determined that the baggie and pills were rendered useless or ruined by appellant’s act of swallowing them, I would hold that the evidence is legally sufficient to sustain appellant’s conviction for tampering with physical evidence. I, therefore, respectfully dissent.

Filed: June 25, 2014

Publish

1. I agree with appellant that the evidence in this case also establishes that he concealed and altered the pills and baggie, but I disagree that this necessarily means that they were not also destroyed. The same fact pattern can establish alteration, destruction and concealment of evidence. See Tex. Penal Code § 37.09(a)(1). As Judge Womack pointed out in his concurring opinion in Williams, when “something is destroyed, it may also be said to have been altered” because these terms “may not be mutually exclusive.” See Williams v. State, 270 S.W.3d 140, 147 (Tex. Crim. App. 2008) (Womack, J., concurring).

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Price v. State, PD-1460-13

Double Jeopardy:  A conviction for continuous sexual abuse of a child and attempted aggravated assault of a child, where the victim named in the indictment is the same person, violates double jeopardy.  Attempted aggravated assault is a lesser included of a predicate offense of continuous sexual abuse.

________________________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-1460-13
JIMMY DON PRICE, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
POLK COUNTY

Alcala, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Price, Johnson, Keasler, Hervey, and Cochran, JJ., joined. Price, J., filed a concurring opinion in which Cochran, J., joined. Womack, J., concurred in the judgment for the reasons stated in the opinion of Price, J.

O P I N I O N
In this case, we address whether the statute defining the offense of continuous sexual abuse of a young child permits a defendant to be convicted both of that offense and of a criminal attempt to commit a predicate offense under that statute. See Tex. Penal Code §§ 15.01(a); 21.02(b), (c), (e). (1) The court of appeals answered that question in the negative by examining the statute’s language and determining that the Legislature could not have intended to permit both convictions because that outcome would violate a defendant’s constitutional rights against double jeopardy. See Price v. State, 413 S.W.3d 158, 163-64 (Tex. App.–Beaumont 2013). Accordingly, the court of appeals vacated the conviction for attempted aggravated sexual assault against Jimmy Don Price, appellant. See id. We agree with the court of appeals’s judgment vacating appellant’s conviction for criminal attempt and with its ultimate assessment that permitting both convictions would violate his constitutional rights against double jeopardy. See id. We reach that conclusion, however, by first deciding that the statute’s text is ambiguous with respect to whether both convictions should be permitted, and we then consider the pertinent extra-textual factors. See Tex. Penal Code § 21.02(c); Tex. Gov’t Code § 311.023. We affirm the judgment of the court of appeals.
I. Background
The complainant is appellant’s ten-year-old stepdaughter. She testified at appellant’s trial that from approximately March 2009 to January 2010, he committed multiple, repeated sexual acts against her, including genital penetration of her anus and mouth, digital and oral penetration of her genitals, and touching of her breasts. She also testified that during the same time period, appellant tried to penetrate her genitals with a vibrator and with his genitals. These facts resulted in a jury convicting appellant of four offenses, only two of which are pertinent to this appeal: the conviction for continuous sexual abuse that was alleged to have occurred on or about June 1, 2009, through January 29, 2010, and the conviction for attempted aggravated sexual assault of a child that was alleged to have occurred on or about January 29, 2010. See Tex. Penal Code §§ 21.02(b); 22.021(a)(1)(B), (a)(2)(B).
On appeal, the parties disputed whether the statutory language would permit dual convictions for the offenses of continuous sexual abuse and attempted aggravated sexual assault. Appellant asserted that attempted aggravated sexual assault is a lesser-included offense of aggravated sexual assault, which is specifically enumerated as one of the predicate offenses that may be used to establish the offense of continuous sexual abuse. See Tex. Code Crim. Proc. art. 37.09(4); Tex. Penal Code §§ 15.01(a); 21.02(b), (c)(4). Because the attempt offense is a lesser-included offense of the predicate aggravated-sexual-assault offense, appellant argued that upholding his convictions for both offenses would violate his rights against double jeopardy. The State responded that the plain language of the continuous-sexual-abuse statute references only aggravated sexual assault, not attempted aggravated sexual assault, and therefore, a defendant may be convicted for both continuous sexual abuse and the lesser attempted offense. See Tex. Penal Code § 21.02(c).
The court of appeals agreed with appellant. Price, 413 S.W.3d at 163. It held that the statute’s language expressed the Legislature’s intent to disallow convictions for both continuous sexual abuse and a predicate offense that could be used to establish that offense. Id. at 162-63. The court acknowledged the State’s claim that appellant was charged with attempting to commit, rather than with the commission of, a predicate offense and that the statute does not specifically mention criminal attempt. Id. at 162. Despite the absence of any mention of criminal attempt in the statute, the court determined that the Legislature would not have intended to permit dual convictions that would violate a defendant’s rights against double jeopardy. Id. at 163-64.
Challenging the court of appeals’s purported failure to apply the plain language of the statute, the State’s petition for discretionary review argues that because an attempt to commit a predicate offense is not included in the acts of sexual abuse enumerated in the statute, the Legislature intended to permit dual convictions for continuous sexual abuse and for an attempt to commit a predicate offense under the statute. (2) The State further suggests that, even if the attempted offense occurred during the same period of time as the conduct giving rise to the conviction for continuous sexual abuse, both of appellant’s convictions should be upheld because the facts show that he committed both completed acts of abuse against the complainant as well as a failed attempt to penetrate her with a vibrator. Appellant responds that, by including in the statutory language a provision that expressly disallows convictions for predicate offenses when a defendant is convicted under the continuous-sexual-abuse statute, the Legislature signaled its desire to protect against double-jeopardy violations and, therefore, it would be absurd to read the statute as permitting both convictions, which would result in a double-jeopardy violation.
II. The Legislature Did Not Intend to Permit Dual Convictions for Continuous Sexual Abuse and a Lesser-Included Offense
After reviewing the statutory language, we decide that it is ambiguous as to whether it permits dual convictions for the offenses of continuous sexual abuse and attempted aggravated sexual assault. We then consider the extra-textual factors before ultimately deciding that permitting dual convictions under these circumstances would violate the statutory scheme set forth by the Legislature. A. The Statute is Ambiguous
1. Applicable Law for Determining Whether Language is Ambiguous
In construing a statute, this Court must seek to effectuate the “collective” intent or purpose of the legislators who enacted the legislation. Reynolds v. State, 423 S.W.3d 377, 382 (Tex. Crim. App. 2014); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In interpreting statutes, we presume that the Legislature intended for the entire statutory scheme to be effective. Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012). When statutory language is clear and unambiguous, we give effect to its plain meaning unless to do so would lead to absurd consequences that the Legislature could not have possibly intended. Ex parte Valdez, 401 S.W.3d 651, 655 (Tex. Crim. App. 2013); Boykin, 818 S.W.2d at 785. A statute is ambiguous when the statutory language may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous when it permits only one reasonable understanding. See Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012).
2. Statute Clearly Disallows Dual Convictions for Continuous Sexual Abuse and Enumerated Acts
The statutory language reflects that the Legislature intended to permit one conviction for continuous sexual abuse based on the repeated acts of sexual abuse that occur over an extended period of time against a single complainant, even if the jury lacks unanimity as to each of the particular sexual acts or their time of occurrence, so long as the jury members agree that at least two acts occurred during a period that is thirty or more days in duration. Tex. Penal Code § 21.02(b), (d), (f). The “acts of sexual abuse” are specifically enumerated and are lesser-included offenses of the offense of continuous sexual abuse. Id. § 21.02(c); Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) (holding that “a[] [predicate] offense listed under Subsection (c) will always” be a lesser offense of continuous sexual abuse because the latter “is, by its very definition, the commission under certain circumstances of two or more of the offenses listed in Subsection (c)”) (internal quotations omitted).
The statutory language further reflects that the Legislature clearly intended to disallow dual convictions for the offense of continuous sexual abuse and for offenses enumerated as “acts of sexual abuse” when based on conduct against the same child during the same period of time. See Tex. Penal Code § 21.02(e). A defendant charged with continuous sexual abuse who is tried in the same criminal action for an enumerated offense based on conduct committed against the same victim may not be convicted for both offenses unless the latter offense occurred outside the period of time in which the continuous-sexual-abuse offense was committed. Id. Excepting the situation where different periods of time are at issue, a fact finder could find a defendant guilty either of continuous sexual abuse, or, alternatively, an enumerated act or acts of sexual abuse or a lesser offense or offenses of the enumerated act or acts. See id. We conclude that the statutory language is plain in providing that, when the acts alleged were committed against a single child, the Legislature did not intend to permit dual convictions for continuous sexual abuse and for an enumerated act of sexual abuse unless the latter occurred during a different period of time.
3. The Statute is Ambiguous as to the Legislature’s Intent in Omitting Language on Criminal Attempts
In its brief on discretionary review, the State focuses on the fact that the “acts of sexual abuse” specifically enumerated in the statute do not mention criminal attempts to commit those acts. Id. § 21.02(c). Relying on the absence of that language, the State argues that the Legislature must have intended to permit dual convictions for continuous sexual abuse and for an attempt to commit an enumerated act of sexual abuse. As support, it relies on Parfait v. State, in which this Court interpreted Texas Penal Code Section 3.03, which governs sentencing for multiple offenses arising out of the same criminal episode, to determine whether a sentence for a criminal attempt to commit a sex offense could be stacked with sentences for completed sex offenses, despite the fact that attempt was not specifically enumerated as a stackable offense under the statute. 120 S.W.3d 348, 349-50 (Tex. Crim. App. 2003) (citing Tex. Penal Code § 3.03(b)(2)(A)). This Court held that a defendant’s sentence for an attempted offense did not qualify as a stackable offense. Id. at 350-51. The Court explained that the Legislature could reasonably have distinguished between, on one hand, mandatory concurrent sentencing for sex-offense convictions including attempts, and on the other hand, discretionary cumulation for convictions involving only completed offenses. Id. at 351. Unlike the statutory provisions at issue in Parfait that did not indicate a clear legislative intent to permit stacking, here the statutory language is plain regarding the Legislature’s intent to disallow dual convictions for continuous sexual abuse and for an enumerated offense committed against a single child during the same period of time. See Tex. Penal Code § 21.02(e). Parfait, therefore, provides little guidance for resolving this appeal.
A reasonably well-informed person examining the language of the continuous-sexual-abuse statute could determine that its silence with respect to whether a person may be simultaneously convicted of that offense and of a criminal attempt to commit a predicate offense suggests that the Legislature intended to permit those dual convictions. Alternatively, another reasonably well-informed person examining the entire statutory scheme could determine that, because the statute expressly prohibits dual convictions for both continuous sexual abuse and its enumerated acts, the Legislature must have also intended to disallow dual convictions for continuous sexual abuse and a criminal attempt to commit an enumerated act, even though the statute does not expressly say so. In light of the existence of these two reasonable interpretations of the statute, and because the statutory text itself does not speak to this issue, we determine that the statute is ambiguous in this respect, and we must resort to an analysis of extra-textual factors.B. Extra-Textual Analysis Indicates Legislative Intent to Disallow Dual Convictions
We may consider de novo several extra-textual factors to discern the Legislature’s intent. Druery v. State, 412 S.W.3d 523, 533 (Tex. Crim. App. 2013). We begin by addressing the object sought to be attained by the statute, the circumstances under which the statute was enacted, and the statute’s legislative history, all of which lead us to the conclusion that the Legislature intended to prohibit dual convictions for continuous sexual abuse and a lesser-included offense of criminal attempt to commit an enumerated offense. See id. at 533-34; Valdez, 401 S.W.3d at 655 (citing Tex. Gov’t Code § 311.023). Afterwards, we address the consequences of the State’s proposed construction and conclude that permitting more than one conviction under the circumstances of this case would violate appellant’s rights against double jeopardy. Druery, 412 S.W.3d at 533-34; Valdez, 401 S.W.3d at 655; see also Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008). Based on an analysis of the pertinent extra-textual factors, we ultimately determine that the Legislature did not intend to permit dual convictions for both continuous sexual abuse and for criminal attempt to commit a predicate offense.
(1) The Object Sought to Be Attained, the Circumstances Under Which the Statute Was Enacted, and the Legislative History
The statute’s circumstances of enactment and legislative history show that the Legislature intended the statute to “adapt [the Penal Code] to the common factual scenario of an ongoing crime involving an abusive sexual relationship of a child[.]” Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring). Prior to the statute’s enactment, Judge Cochran in Dixon described the common occurrence in child sex cases, as follows:
[A] young child is repeatedly molested by an authority figure–usually a step-parent, grandparent, uncle or caregiver; there is (or is not) medical evidence of sexual contact; and the child is too young to be able to differentiate one instance of sexual exposure, contact, or penetration from another or have an understanding of arithmetic sufficient to accurately indicate the number of offenses. As in this case, “he did it 100 times.” The real gravamen of this criminal behavior is the existence of a sexually abusive relationship with a young child . . . marked by continuous and numerous acts of sexual abuse of the same or different varieties.
Id. at 736-37. She noted that despite such facts, “current Texas law does not easily accommodate the prosecution of generic, undifferentiated, ongoing acts of sexual abuse of young children.” Id. at 737. As a result, she predicted that a “train wreck” would likely result from “what appears to be a futile attempt” to accommodate both a defendant’s “rights to a specific verdict for one specific criminal act” and the fact that “the criminal conduct at issue is not really one specific act at one specific moment.” Id. She proposed that the Legislature consider “enacting a new penal statute that focuses upon a continuing course of conduct crime–a sexually abusive relationship that is marked by a pattern or course of conduct of various sexual acts.” Id.
Lawmakers responded to her call for legislation. In hearings about the legislation, Senator Florence Shapiro, the authoring sponsor of Senate Bill 78, which introduced the statute’s framework, stated, “This new offense that we’re creating in this bill will allow for the prosecution of a repetitive course of conduct over an extended period of time. It does not have to specify the specific date of the event, nor the specific event.” See Hearing on Tex. S.B. 78 Before the Senate Criminal Justice Committee, 80th Leg., R.S. (Mar. 20, 2007, at 39:08-40:14), available at http://www.senate.state.tx.us/avarchive/?yr=2007&mo=03). Although Senator Shapiro did not specifically address whether dual convictions for continuous sexual abuse and a criminal attempt to commit a lesser-included offense would be permitted, she did discuss the concept that a jury that was unconvinced about the continuous-sexual-abuse offense could alternatively convict a defendant for a lesser-included offense. She stated,
[The statute] specifies that if the actor is found guilty of a lesser offense, a lesser sexual offense within continuous sexual assault, that they may be prosecuted for that offense in the same criminal action. There will not have to be a retrial as long as it’s within the confines of the continuous sexual assault[.]
Id. (Mar. 20, 2007, at 41:10-42:02); see House Committee on Criminal Jurisprudence, Bill Analysis, Tex. C.S.H.B. 436, at 1, 80th Leg., R.S. (2007).
Judge Cochran’s descriptions of the problem sought to be addressed by the statute, the ongoing sexually abusive relationship, and Senator Shapiro’s similar reference to a repetitive course of conduct over an extended period of time each suggest that the objective of the statute was to hold a defendant criminally liable through a single conviction for all of the sexual acts transpiring between him and the victim during a designated period of time. Furthermore, Senator Shapiro’s discussion of lesser-included offenses suggests that the Legislature intended to permit a fact finder to convict a defendant for a lesser-included offense, which would include the attempt to commit a predicate offense, but only as an alternative to conviction for continuous sexual assault.
We also observe that this Court’s earlier analysis of this statutory scheme in Soliz v. State is instructive with respect to whether the Legislature intended to permit any other conviction in addition to a conviction for continuous sexual abuse. See 353 S.W.3d at 853-54. The issue in Soliz was whether the statutory language as to lesser-included offenses meant that it was the jury that decided whether an offense constituted a lesser offense, or whether that issue was rather a matter of law to be determined by the trial court. Id. (discussing Tex. Penal Code § 21.02(e), which states that a defendant “may not be convicted” in same criminal action of enumerated offense unless that offense is, among other things, “considered by the trier of fact to be a lesser included offense of the offenses alleged under Subsection (b)”). In resolving that issue, this Court noted that the statute’s “avowed purpose” was the “establish[ment of] a crime that focuses on the pattern of abuse over a period of time.” Id. at 853 (citations and quotations omitted). Because the statute’s focus was on a pattern of abuse, we explained that the statutory language prohibited the State from “carv[ing] individual offenses out of that pattern and thus reintroduc[ing] the problems the statute was designed to address.” Id. Our comments in Soliz about the carving out of predicate offenses applies equally to the carving out of lesser-included offenses. See id.
Examination of the object sought to be attained by the statute, the circumstances under which it was enacted, and its legislative history reveals that the Legislature intended to permit one conviction for continuous sexual abuse for conduct committed against a single complainant during a specified time period. The statute facilitated this legislative intent by allowing the jury to more broadly consider multiple acts of abuse over an extended period of time and by disallowing other convictions for predicate acts of sexual abuse that would be considered lesser-included offenses of continuous sexual abuse. See Tex. Penal Code § 21.02(b)-(e). A criminal attempt to commit a predicate offense is a lesser-included offense of that predicate offense and is subsumed within that completed offense upon commission. See id. § 15.01(a), (c). Consequently, we conclude that it would defeat the legislative purpose underlying the statute if a fact finder were permitted to convict a defendant both of continuous sexual abuse and a criminal attempt to commit a predicate offense.
(2) The Consequences of a Particular Construction
a. Double Jeopardy
The Fifth Amendment guarantee against double jeopardy protects “against multiple punishments for the same offense.” Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 1436 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969)); see U.S. Const. amends V, XIV. In pertinent part, a multiple-punishments claim can arise when a person is punished for: (1) the same primary offense twice, “once for the basic conduct, and a second time for that same conduct plus more,” or (2) the same criminal act twice under two distinct statutes “when the legislature intended the conduct to be punished only once[.]” Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).
The question of whether an individual may be punished for the same criminal act under two distinct statutes is a matter of legislative intent. Littrell, 271 S.W.3d at 276. To determine whether the Legislature would have intended a particular course of conduct to be subject to multiple punishments under two separate statutory provisions, we look first to the statutory language. The “starting point” for such an analysis is the Blockburger test, used to determine whether each of the offenses requires proof of an element that the other does not. Id. (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180 (1932)). If two separately defined offenses have the “same elements” under Blockburger, then a judicial presumption arises that the offenses are the same for purposes of double jeopardy, and, absent a clear sign of legislative intent to the contrary, an accused “may not be punished for both.” See id. (explaining that, once judicial presumption of sameness arises for double-jeopardy purposes, the question then becomes “whether the Legislature has clearly expressed a contrary intention that the accused should in fact be punished for both the greater and the lesser-included offenses”) (citations omitted). The Blockburger test is a rule of statutory construction and is not the exclusive test for determining if two offenses are the same, and it cannot be the basis for authorizing two punishments where the Legislature clearly intended only one. See Bigon v. State, 252 S.W.3d 360, 371 (Tex. Crim. App. 2008); Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999). The Legislature’s intent can also be discerned by “a list of non-exclusive factors designed to help courts in the absence of clear guidance,” including the offenses’ allowable unit of prosecution. Garfias v. State, 424 S.W.3d 54, 59-60 (Tex. Crim. App. 2014). Here, the court of appeals’s determination that the State’s construction would constitute multiple punishments for the “same” offense relied, in part, on its observation that criminal attempts share the same allowable unit of prosecution as their corresponding completed offenses. Price, 413 S.W.3d at 162 (citing Ex parte Milner, 394 S.W.3d 502, 508-09 (Tex. Crim. App. 2013)).
Applying these principles to the present context, we conclude that our interpretation of the continuous-sexual-abuse statute conforms with law protecting a defendant’s rights against double jeopardy. Because attempt is a lesser-included offense of the completed act of sexual abuse, and because a completed act of sexual abuse is a lesser-included offense of continuous sexual abuse, from this it follows that the attempt offense is also a lesser-included offense of continuous sexual abuse. See Tex. Code Crim. Proc. art. 37.09(4); Tex. Penal Code § 21.02(b), (c); Soliz, 353 S.W.3d at 854. We may, therefore, presume that the attempt and continuous-sexual-abuse offenses are the same for double-jeopardy purposes and that the Legislature did not intend to permit multiple punishments. See Littrell, 271 S.W.3d at 275-76 (observing that, in the multiple-punishments context, “two offenses may be the same if one offense stands in relation to the other as a lesser-included offense,” and presumption arises that accused “may not be punished for both”). The judicial presumption that the Legislature did not intend to allow multiple punishments in this context is not overridden by a clearly expressed intention to the contrary. See id. at 276. We agree, therefore, with the court of appeals that it would violate a defendant’s rights against double jeopardy to permit convictions for both continuous sexual abuse and an attempt to commit a predicate act with respect to conduct committed against the same complainant during the same period of time. Price, 413 S.W.3d at 163; see Soliz, 353 S.W.3d at 854.
b. Renaming of Offenses Would Defeat Legislative Intent
In light of the fact that a defendant may be convicted of an attempted offense even though he has actually completed it, the State’s suggested reading of the statute would permit it to rename a completed predicate offense as an attempt to commit a predicate offense and obtain a conviction for the latter offense in conjunction with a conviction for continuous sexual abuse. See Tex. Penal Code § 15.01(c) (it is “no defense to prosecution for criminal attempt that the offense attempted was actually committed”). Because the facts establishing the commission of a predicate offense would also support a conviction for an attempt to commit that offense, the State’s suggested reading would undermine the design of the statutory scheme to permit only one conviction for continuous sexual abuse for acts committed against a single child during a specified period of time. See id. § 21.02(e). This is a consequence of the State’s proposed construction that could not possibly have been legislatively intended.
(3) Consideration of All Pertinent Extra-Textual Factors
Reviewing the relevant extra-textual factors de novo, we conclude that the Legislature intended to disallow dual convictions under the statute for continuous sexual abuse and for a lesser-included offense, including criminal attempt to commit a predicate offense. The object, legislative history, and circumstances of the statute’s enactment all reflect a legislative intent to provide for a single punishment under the statute where the conduct at issue is against the same complainant within the same time frame. Additionally, this construction accords with double-jeopardy principles. By applying the pertinent extra-textual factors, we hold that the Legislature did not intend to permit dual convictions under these circumstances and that appellant’s criminal-attempt conviction was, therefore, statutorily prohibited. III. Conclusion
Having held that the statute’s language is ambiguous, and upon consideration of the pertinent extra-textual factors, we conclude that the statute’s legislative intent was to permit one punishment where continuous sexual abuse is alleged against a single victim within a specified time frame. We also conclude that this intent extends to the statute’s enumerated predicate offenses and to criminal attempts to commit those predicate offenses. We affirm the judgment of the court of appeals.

Delivered: June 25, 2014

Publish

1. The statute penalizing continuous sexual abuse of a young child, in relevant part, states:

(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
(c) For purposes of this section, “act of sexual abuse” means any act that is a violation of one or more of the following penal laws:
(1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021;
(5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)-(4);
(6) sexual performance by a child under Section 43.25;
(7) trafficking of persons under Section 20A.02(a)(7) or (8); and
(8) compelling prostitution under Section 43.05(a)(2).
(d) If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.
(e) A defendant may not be convicted in the same criminal action of an offense listed under Subsection (c) the victim of which is the same victim as a victim of the offense alleged under Subsection (b) unless the offense listed in Subsection (c):
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under Subsection (b) was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (b).
(f) A defendant may not be charged with more than one count under Subsection (b) if all of the specific acts of sexual abuse that are alleged to have been committed are alleged to have been committed against a single victim. 

Tex. Penal Code Ann. § 21.02(b)-(f) (West 2013).

2. The State’s ground for review asks,

In finding a jeopardy violation, did the court of appeals violate statutory construction canons by adding to the list of completed offenses that qualify as an “act of sexual abuse” for purposes of establishing the offense of continuous sexual abuse the attempt offenses of those completed offenses?

Price, J., filed a concurring opinion in which Cochran, J., joined. 


CONCURRING OPINION

Whether a defendant may be twice punished for two offenses stemming from a single prosecution, consistent with the Double Jeopardy Clause, is a question of legislative intent. (1) This requires us to engage in construction of the relevant statutes to determine what the statutory language reveals about the legislature’s intent regarding the availability of multiple punishments. Typically, statutory language proves facially unrevealing with respect to this precise question, and we must resort to certain methods of statutory construction to divine the legislative intent. Principal among those methods–at least when dealing with the double-jeopardy implications of punishing a defendant twice in the same prosecution for two offenses that derive from separate sections of the Penal Code–is “[t]he traditional indicium of . . . legislative intent [which] is the so-called ‘same elements’ test ofBlockburger v. United States.” (2) If two separately defined statutory offenses are the “same” under the Blockburger lesser-included-offense analysis, then “the judicial presumption is that they are the same for double-jeopardy purposes and that the accused may not be punished for both.” (3) That presumption may be defeated, of course, by a clearly expressed intent to the contrary in the language of the relevant statute or statutes. (4)
The statute in question here, Section 21.02 of the Penal Code, (5) actually does make it clear that the Legislature did not intend that a defendant be convicted (and hence punished) both for this ongoing offense and also for any of the identified predicate offenses (against the same victim and during the same period of time as alleged for purposes of the continuous-sexual-abuse-of-a-child offense) that statutorily comprise an “act of sexual abuse.” (6) Continuous sexual abuse of a child is to be regarded as the “same” offense, for double-jeopardy purposes, as any of the particular predicate offenses that comprise it. One of those predicate offenses is aggravated sexual assault under Section 22.021 of the Penal Code. (7) But did the Legislature also intend that any lesser-included offense of any of those predicate offenses (such as an attempted aggravated sexual assault) should be regarded as the “same” as the continuous-sexual-abuse-of-a-child offense for double-jeopardy purposes? Section 21.02 does not expressly speak to this question.
In the absence of any contrary expression of legislative intent in Section 21.02, our primary consideration is the Blockburger presumption. We know that the Legislature did not intend multiple punishments for both continuous sexual abuse of a child and any predicate offense, including aggravated sexual assault, subsumed therein. Attempted aggravated sexual assault is a lesser-included offense of aggravated sexual assault; they are the “same” offense for double-jeopardy purposes. (8) If the Legislature did not intend that an accused be punished for both continuous sexual abuse and for any of the named predicate offenses, then by extension (and entertaining the Blockburger presumption), we may safely assume that the Legislature did not intend that an accused be susceptible to punishment for both continuous sexual abuse of a child and also for any offense that is the same as (because a lesser-included offense of) any of the named predicate offenses. (9)
With these supplemental remarks, I join the Court’s opinion.



FILED: June 25, 2014
PUBLISH

1. See, e.g.Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008) (“Sameness in this context is a matter of legislative intent.”).
2. Id. (citing Blockburger v. United States, 284 U.S. 299 (1932)).
3. Id.
4. Id.; Garza v. State, 213 S.W.3d 338, 351-52 (Tex. Crim. App. 2007).
5. Tex. Penal Code § 21.02.
6. Id. § (e).
7. Id § (c)(4) (listing Tex. Penal Code § 22.021).
8. See Tex. Code Crim. Proc. art. 37.09(4) (“An offense is a lesser included offense if . . . it consists of an attempt to commit the offense charged or an otherwise included offense.”); Littrell, 271 S.W.3d at 277 n.18.
9. This is but an application of the transitive property: If a = b, and b = c, then a = c. If continuous sexual abuse of a child is the same offense as the predicate offense of aggravated sexual assault, and aggravated sexual assault is the same offense as its lesser-included offense of attempted aggravated sexual assault, then continuous sexual abuse of a child is the same offense as attempted aggravated sexual assault.

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Kelly v. State, NO. PD-0702-13

Anders Briefs: This entire case is worth reading regarding appointed appellate counsel’s duties and the court of appeals’ duties towards an indigent appellant in a criminal case.  Notably, counsel’s duty to his client does not cease upon filing a motion to withdraw and Anders brief, but only when the court of appeals grants the motion to withdraw.  In addition to “(1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response, and (3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous,” counsel must also (4) take concrete measures to initiate and facilitate the process of actuating his client’s right to review the appellate record, if that is what his client wishes… at the same time that he files the motion to withdraw…also notify his client that, should he wish to exercise his right to review the appellate record in preparing to file a response to the Anders brief, he should immediately file a motion for pro se access to the appellate record with the applicable court of appeals.” Additionally, the court of appeals should “ensure that, one way or another, this request is satisfied. Moreover, the appellate court may not rule on the motion to withdraw and the validity of the Anders brief until the appellant has been given access to, and an adequate opportunity to review, the appellate record.”

________________________________________________________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS


NO. PD-0702-13

SYLVESTER KELLY, Appellant
v.
THE STATE OF TEXAS


ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
GREGG COUNTY

Price, J., delivered the opinion of the court in which Meyers, Womack, Johnson, Keasler, Hervey and Cochran, JJ., joined. Keller, P.J., filed a concurring opinion. Alcala, J., filed a concurring opinion. 

O P I N I O N

When appointed appellate counsel files a so-called Anders brief, (1) the indigent appellant has a right to review the appellate record and file a response in the court of appeals, pointing out to the appellate court any reason why he thinks there are non-frivolous issues to be raised on his behalf, notwithstanding his appointed counsel’s evaluation of the record. In this petition for discretionary review, we address the question of who should bear the ultimate responsibility for assuring that the indigent appellant is allowed access to the appellate record in order to implement this right. We hold that appointed counsel has a duty, once he has filed a motion to withdraw from representation with accompanying Anders brief, to assist the appellant in filing a motion in the court of appeals for access to the appellate record if that is indeed what the appellant wants. Once such a motion is filed, the court of appeals has the ultimate responsibility to make sure that, one way or another (we shall not dictate how), the appellant is granted access to the appellate record so that he may file his response (if, after reviewing the record, he does decide to file one) before it rules on the adequacy of the Anders brief and appointed counsel’s motion to withdraw.

FACTS AND PROCEDURAL POSTURE

A jury convicted the appellant of aggravated robbery, and the trial court sentenced him to fifty years’ incarceration. Because he was indigent, the trial court appointed a lawyer to represent him on appeal. The appellant’s appointed counsel on appeal was unable to find any meritorious points of error to raise, however, and filed a motion to withdraw with an Anders brief. He wrote a letter to the appellant to inform him, inter alia, of his right to file a pro se response to the Anders brief. Trial counsel also specifically informed the appellant that he was entitled to review the appellate record in preparing that response, advising him to request the trial court to provide him with a copy of the trial record. (2) The appellant instead filed a pro se motion in the court of appeals requesting access to the appellate record. (3) When the appellant neither filed a response to the Anders brief nor sought an extension of time to do so, the Sixth Court of Appeals issued an unpublished memorandum opinion that determined the appeal to be “wholly frivolous.” (4) It therefore granted appointed counsel’s motion to withdraw from the appeal and affirmed the appellant’s conviction, making no mention of any motion for access to the appellate record. (5) The appellant apparently filed a motion for rehearing in which he once again complained that he had been deprived of access to the appellate record in order to prepare a response; the court of appeals appears to have denied this motion. (6)
The appellant duly filed a petition for discretionary review in this Court, arguing that the court of appeals violated his rights to due process and due course of law by deeming his appeal to be frivolous without first granting him access to the appellate record so that he could prepare an adequate response to his appointed counsel’s Anders brief. We granted the appellant’s petition and ordered the trial court to appoint counsel for the appellant to brief the issue. In their respective briefs, both the State and the appellant have now agreed that the appellant should have been allowed access to the appellate record in order to prepare his response to appointed counsel’s Anders brief. (7) In the absence of any governing rule in the Texas Rules of Appellate Procedure, however, or any case law providing a uniform procedure for ensuring that a pro se appellant who so desires may gain access to the appellate record under these circumstances, (8) the State could only suggest that “[t]his Court . . . assign someone the responsibility of arranging access.” (9) Indeed, we ourselves have previously acknowledged “that there is a need for uniform procedures for those cases in which an Anders brief is filed, especially as the Texas Rules of Appellate Procedure do not provide any explicit guidance.” (10)
In order to educate ourselves about whatever procedures may presently be in place, we solicited information from the various courts of appeals with respect to how they currently go about ensuring that appellate records are made available to indigent pro se appellants who wish to review them in order to respond to Anders briefs. More specifically, we invited the clerks of the fourteen courts of appeals in Texas to file amicus briefs or letters “informing us of the current policies and procedures in their respective districts for ensuring that pro se appellants who so desire are granted access to the appellate record for purposes of responding to Anders briefs.” (11)After considering the various responses of amici, we now endeavor to more specifically assign responsibility for giving the appellant access to the appellate record in a timely and efficient manner without unduly encroaching on the discretion of the courts of appeals to handle each case as the circumstances prescribe.
ANALYSIS

In response to our invitation to submit amicus briefs/letters, the Clerk of the Sixth Court of Appeals has indicated that “[o]ur procedures vary according to the situation.” Upon receiving an Anders brief, the Sixth Court first makes sure that appellate counsel has informed the appellant of, inter alia, his right to review the appellate record. The more “helpful” appellate attorneys send a copy of the record to the appellant, we are told, but “[i]n the absence of such a proactive behavior, if the appellant contacts this Court requesting a record, we typically refer him or her alternatively to the defense attorney or the trial clerk.” Thus, the Sixth Court has adopted a policy that appellate counsel “has the responsibility to procure a copy of the record for appellant to review in preparation of the pro se response to the Anders brief.” (12) We cannot tell from the record before us in this case whether the Sixth Court, in keeping with this policy, referred the appellant to his appellate counsel or the trial clerk. We agree with the Sixth Court that appellate counsel has a continuing responsibility to his client, extending beyond the filing of a motion to withdraw and Anders brief, to facilitate the appellant’s access to the appellate record should the appellant so desire. But we believe that the courts of appeals also have an on-going responsibility, once an appellant manifests his desire for pro se record access, to officially guide the process and follow through to make sure that such access is granted before they rule on the validity of appointed counsel’sAnders brief and motion to withdraw.


Appointed Counsel’s Responsibility

Once appellate counsel is appointed to represent an indigent client, his only justification for filing an Anders brief is his ethical obligation to avoid burdening the courts with wholly frivolous appeals. (13) When his good-faith review of the law and record suggests to him no plausible grounds for appeal, appointed counsel’s “duty to withdraw is based upon his professional and ethical responsibilities as an officer of the court not to burden the judicial system with false claims, frivolous pleadings, or burdensome time demands.” (14) The purpose of the Anders brief is to satisfy the appellate court that the appointed counsel’s motion to withdraw is, indeed, based upon a conscientious and thorough review of the law and facts; “the Anders brief is only the proverbial ‘tail’ [while] the motion to withdraw is ‘the dog.'” (15) That being the case, the court of appeals may not immediately grant the motion to withdraw, even though the granting of a motion to withdraw is inevitable once an Anders brief has been filed. (16) Instead, the appellate court must wait “until such time as [it] has made a determination whether appointed counsel has exercised sufficient diligence in assaying the record for error, and that there are, in fact, no arguable issues in the case.” (17) “Counsel’s duties to his client are not extinguished until that time.”(18) Appointed counsel’s duties of representation, therefore, do not cease simply because he has submitted a motion to withdraw, along with supporting Anders brief, in the court of appeals. Until such time as the court of appeals relieves him of this professional obligation, appellate counsel must continue to “act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.” (19)
We have previously acknowledged that an appointed lawyer who files an Anders brief must fulfill a number of additional functions. He must write a letter to (1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response, and (3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous. (20) To this list we now add that appointed counsel who files a motion to withdraw and Anders brief must also (4) take concrete measures to initiate and facilitate the process of actuating his client’s right to review the appellate record, if that is what his client wishes. We think that the most time-efficient method to facilitate this right of review is to require that, at the same time that he files the motion to withdraw and Anders brief and carries out the notification functions (1) through (3), listed above, appointed counsel must also notify his client that, should he wish to exercise his right to review the appellate record in preparing to file a response to the Anders brief, he should immediately file a motion for pro se access to the appellate record with the applicable court of appeals. (21) Appointed counsel should include in his letter to the appellant a form motion for this purpose, lacking only the appellant’s signature and the date, and inform the appellant that, in order to effectuate his right to review the appellate record pro se, should he choose to invoke it, he must sign and date the motion and send it on to the court of appeals within ten days of the date of the letter from appellate counsel. Counsel should make sure to supply the appellant with the mailing address for the relevant court of appeals. At the same time, appointed counsel should notify the court of appeals, in writing, that he has (1) informed the appellant of the motion to withdraw and attendant Andersbrief, (2) provided the appellant with the requisite copies while notifying him of his various pro se rights, and (3) supplied him with a form motion for pro se access to the appellate record (and the mailing address for the court of appeals), to be filed within ten days, so that he may timely effectuate that right, if he so chooses. (22) This way, not only can the court of appeals be assured that appointed counsel has fulfilled his obligation to fully inform his indigent client of his status and rights, but it can also be on the alert to receive directly from the appellant a motion for pro se access to the appellate record so that it does not inadvertently misconstrue the motion, if and when it arrives, as an impermissible attempt at hybrid representation, and therefore disregard it.
The Appellate Court’s Responsibility

Once the appellant has filed his motion to make the appellate record available with the court of appeals, we think that the onus should shift to the court of appeals to ensure that, one way or another, this request is satisfied. Moreover, the appellate court may not rule on the motion to withdraw and the validity of the Anders brief until the appellant has been given access to, and an adequate opportunity to review, the appellate record. This, we think, is the optimal way to ensure that the indigent pro se appellant’s right to review the appellate record in order to respond to appellate counsel’s Anders briefs is honored.
So how do the various courts of appeals currently go about making arrangements for pro se access to the appellate record? Judging by their amicus briefs, the answer is that they do so in various ways, all of which seem to have met with reasonable success. Even within the same court of appeals, the procedure chosen may depend on the circumstances of the individual case. By the time an Anders brief can be filed, the clerk of the appellate court possesses the appellate record, but by rule the trial court clerk retains a duplicate that is specifically designated for use by the parties. (23) Zeroing in on this fact, many of the courts of appeals instruct the trial court to have its clerk make the duplicate appellate record available to the appellant, which generally requires the trial court clerk to forward a physical copy to the appellant if he is incarcerated. (24) Others simply send a letter to appellate counsel ordering him to obtain the trial court clerk’s duplicate of the record and make that available to the appellant. Several courts of appeals have indicated that, if the record is relatively small, or if the appellant indicates that he has encountered problems obtaining the duplicate record from the trial court clerk, the clerk of the court of appeals will make a copy of the original appellate record and mail it directly to the appellant.
By all accounts, each of these procedures has worked tolerably well in the past, and we need not mandate or even recommend one over the others. Our only requirement is that, upon receipt of the appellant’s motion forpro se access to the appellate record, the court of appeals enter a formal written order specifying the procedure to be followed in the particular case, sending copies of that order to the appellant, his appellate counsel, the State, the trial court, and the trial court’s clerk, so that all interested parties are on the same page. (25) The order should also require the entity who is designated to arrange the appellant’s access to the record (be that the appellate counsel, the trial court, or the trial court’s clerk) to report to the court of appeals, in writing, when the record has been made available to the appellant so that it can then set a firm date for the appellant to file his response to the Anders brief, as well as a date for the State’s response, if any. The court of appeals then must continue to monitor the situation and may not, in any event, rule on the validity of appellate counsel’s motion to withdraw and Anders brief until it has satisfied itself that the appellant has been able to access the appellate record to prepare his response, in keeping with its order.
CONCLUSION

We hold that the court of appeals in the instant case erred to grant appointed counsel’s motion to withdraw and declare the appellant’s appeal to be frivolous without first satisfying the appellant’s express request to gain access to the appellate record in order to meaningfully respond to the Anders brief. The judgment of the court of appeals is reversed and the cause is remanded to that court. After arranging for the appellant to have a meaningful opportunity to review the appellate record in accordance with the procedure we announce today, that court shall revisit its review of appellate counsel’s Anders brief and motion to withdraw in light of the appellant’s revised response, if any, and any response from the State.



DELIVERED: June 25, 2014
PUBLISH
1. Anders v. California, 386 U.S. 738 (1967).
2. In his letter to the appellant, appointed appellate counsel informed him:

I do hereby inform you that you have a right to review the record and file a Pro Se Appellate Brief should you desire to do so. You have the right to request the trial Court to provide a copy of the record at no expense to you and the Appellate Court may grant a timely request for extensions of time for filing the Pro Se brief.

The record does not reveal whether the appellant made a request to the trial court for access to the appellate record.

3. In his petition for discretionary review, the appellant complains that the court of appeals denied his motion for access to the appellate record. We find no such written order in the appellate record explicitly denying the appellant’s motion. But neither does the record indicate that the court of appeals took any step to assure the appellant’s access to the appellate record before granting appellate counsel’s motion to withdraw.
4. Kelly v. State, No. 06-12-00141-CR, 2013 WL 1804115, at *1 (Tex. App.–Texarkana Apr. 26, 2013) (mem. op., not designated for publication).
5. Id.
6. The court of appeals issued its opinion in this cause on April 26, 2013. The record before us contains a file-stamped copy of the appellant’s pro se motion for rehearing, dated May 5, 2013, in which he renews his complaint that he was “not provided access to the clerk[‘]s record or the reporter[‘]s record[.]” Although it does not otherwise appear in the record, the appellant has attached to his petition for discretionary review a copy of a letter, addressed to the appellant, dated May 7, 2013, and appearing on the court of appeals’s letterhead, announcing that on that date the court of appeals overruled the appellant’s motion for rehearing.
7. This Court has never expressly held that access to the record is constitutionally required. But in Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969), we noted that “the careful trial judge made available” the appellate record. Likewise, in Price v. State, 449 S.W.2d 73, 74 (Tex. Crim. App. 1969), we observed that “the record was made available” to the indigent appellant. Following this example, in Brown v. State, 485 S.W.2d 914, 915 (Tex. Crim. App. 1972), we ordered the trial court to “make the record . . . available to appellant so that he might file a pro se brief if he so desires.” Thereafter, this Court began to routinely abate appeals in cases in which it appeared that the appellant had been deprived of the opportunity to review the appellate record. E.g.McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Heiskell v. State, 522 S.W.2d 477, 477 (Tex. Crim. App. 1975); Hawkins v. State, 515 S.W.2d 275, 276 (Tex. Crim. App. 1974); see also Caraway v. State, 560 S.W.2d 690, 691 (Tex. Crim. App. 1978) (“[T]he defendant must be advised that he has a right to file a pro se brief and that he has a right to personally review the appellate record for that purpose.”). Every court of appeals to address the question has held that the appellate record must be made available under these circumstances. E.g.Eaden v. State, 161 S.W.3d 173, 175 (Tex. App.–Eastland 2005, no pet.) (upon filing an Anders brief, appellate counsel must inform his client, inter alia, “of his right to review the record and to file a pro se brief”); Johnson v. State, 885 S.W.2d 641, 647 (Tex. App.–Waco 1994, pet. ref’d) (“[T]he record must show the defendant was given access to the [appellate] record before the attorney has fully complied with the requirements of Anders.”); Russell v. State, 735 S.W.2d 254, 255 (Tex. App.–Dallas 1987, no pet.) (indigent appellant is not entitled to his own personal copy of the appellate record, but trial judge has a duty to “make the record available to the defendant”); see also Ex parte Owens, 206 S.W.3d 670, 674 n.28 (Tex. Crim. App. 2006) (noting Johnson‘s requirement that, when an appellate counsel files an Anders brief, he must inform his client of his right to access the appellate record).
8. See, e.g.Escobar v. State, 134 S.W.3d 338, 339 (Tex. App.–Amarillo 2003) (“[W]e have found no decision addressing on whom the responsibility falls of ensuring that an indigent appellant obtains access to the record for review for possible preparation of a pro se response in an Anders appeal.”). Some courts of appeals have placed the onus on appointed trial counsel to at least inform the appellant of the proper procedure for securing access to the appellate record. E.g.Johnson, 885 S.W.2d at 647 n.2; Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.–San Antonio 1996, no pet.); Evans v. State, 933 S.W.2d 334, 335 n.1 (Tex. App.–Waco 1996, no pet.). The Amarillo court of appeals has gone so far as to “hold that appointed counsel has the responsibility to procure a copy of the record for appellant to review in preparation of his pro seresponse to the Anders brief.” Escobar, 134 S.W.3d at 339; see also Thomas v. State, No. 03-11-00294-CR, 2012 WL 935285, at *1 (Tex. App.–Austin Mar. 15, 2012) (not designated for publication) (“In an abundance of caution, we request a written response from appointed counsel verifying that his client has in fact received a copy of the appellate record.”).
9. State’s Brief at 16.
10. In re Schulman, 252 S.W.3d 403, 410 (Tex. Crim. App. 2008).
11. Kelly v. State, No. PD-0702-13, slip op. at 4-5 (Tex. Crim. App. Dec. 20, 2013) (not designated for publication).
12. “Under rules 34.5(g) and 34.6(h) of the Texas Rules of Appellate Procedure,” the Sixth Court Clerk asserts, “we expect appointed counsel to promptly request permission from the trial court to obtain the duplicate clerk’s and reporter’s records filed with the trial court clerk for use by appellant in preparation of the response. See Escobar v. State, 134 S.W.3d [at 339].”
13. Owens, 206 S.W.3d at 677 & n.2 (Womack, J., concurring) (citing Tex. Disciplinary Rules Prof’l Conduct R. 3.01).
14. Shulman, 252 S.W.3d at 407.
15. Id. at 408.
16. Once an Anders brief is filed in Texas, there are two possible outcomes, both of which involve eventually granting original appointed counsel’s motion to withdraw. Either the appellate court confirms that there are no non-frivolous grounds for appeal, thus extinguishing the appellant’s constitutional right to appellate counsel, and grants the motion to withdraw, or the appellate court finds that there are plausible grounds for appeal, in which case the appellate court still grants the motion to withdraw, but remands the cause to the trial court for appointment of new appellate counsel. Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006).
17. Id. at 687. See Penson v. Ohio, 488 U.S. 75, 82-83 (1988) (“[T]he Court of Appeals should not have acted on the motion to withdraw before it made its own examination of the record to determine whether counsel’s evaluation of the case was sound.”).
18. Shulman, 252 S.W.3d at 411. See Tex. Code Crim. Proc. art. 26.04(j)(2) (“An attorney appointed under this article shall . . . represent the defendant until . . . appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record[.]”).
19. Tex. Disciplinary Rules Prof’l Conduct R. 1.01 cmt. 6.
20. Owens, 206 S.W.3d at 674 n.28; Meza, 206 S.W.3d at 689 n.23.
21. In the instant case, appointed appellate counsel advised the appellant to file a motion to obtain access to the appellate record in the trial court. While the impulse was laudable, we think the more serviceable recommendation would have been to file his motion (as the appellant actually did here) in the court of appeals. By the time an Anders brief in support of a motion to withdraw can be filed, the appellate record must already be on file in the court of appeals. That being the case, all further proceedings in the trial court are suspended. See Tex. R. App. P. 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings in the trial court–except as provided otherwise by law or by these rules–will be suspended until the trial court receives the appellate-court mandate.”). Thus, even though the trial-court clerk retains a copy of the appellate record, which may be available “for the parties to use with the court’s permission[,]” Tex. R. App. P. 34.5(g), 34.6(h), the trial court is unlikely to be aware of the progress of the appeal, appointed counsel’s motion to withdraw with attendant Anders brief, or the fact that the appellant’s pro se right to review the appellate record has been triggered. The trial court, perhaps assuming that a pro se motion for access to the appellate record is, at best, nothing more than an impermissible attempt at hybrid representation on appeal, may well choose to simply ignore it.
22. Several of the courts of appeals have indicated that it is sometimes the case that, when the appellate record is not voluminous, appellate counsel will sua sponte send a copy of the appellate record to the appellant along with the Anders brief and motion to withdraw. That would certainly expedite the process, and the court of appeals could then simply issue an order requiring the appellant to file his response to the Anders brief by a date certain. But we do not require appellate counsel to do so. If appellate counsel should choose to provide a copy of the record to his client sua sponte, he should alert the court of appeals to that fact in his notification to the court of appeals so that the court of appeals will know to proceed directly to issuing its scheduling order.
23. At least the duplicate clerk’s record is specifically designated to be retained by the trial court clerk “for the parties to use with the court’s permission.” Tex. R. App. P. 34.5(g). Although the trial court must also retain a duplicate of the reporter’s record, curiously, the rules do not likewise specify that the duplicate reporter’s record is for use by the parties. Tex. R. App. P. 34.6(h).
24. The Eighth Court of Appeals has a unique procedure. After making sure that appellate counsel has notified the appellant of his right to review the appellate record, the Eighth Court waits to act until such time as the appellant may actually request to review the record. If so, the court of appeals then enters an order directing the clerk of the trial court to forward the actual duplicate of the appellate record to the warden of the unit in which the incarcerated appellant is housed, for a specified period of time, with explicit instructions to allow the appellant supervised access to that duplicate record.
Several of the courts of appeals, including the Eighth Court, have expressed concerns about how electronic copies can be made available to pro se appellants who are incarcerated. It occurs to us that, similar to the Eighth Court’s procedure with respect to the trial court clerk’s duplicate copy, courts of appeals could order either the trial-court clerk or its own clerk to send an electronic copy of the record to the warden of the appellant’s unit with explicit instructions to provide the appellant with supervised access to a computer upon which to review it or print it out.
25. About half of the courts of appeals designate appellate counsel as the party responsible for arranging for the appellant to gain access to the trial court clerk’s duplicate of the appellate record. Even so, it is important for the court of appeals to enter a formal order to that effect and copy it to all of the above-named parties. This way, the trial judge and his clerk will be officially alerted to the fact that the appellant’s counsel will soon be seeking access to the duplicate record, and the appellant will know that his desire to review the appellate record will soon be honored.

CONCURRING OPINION

Alcala, J., filed a concurring opinion

Although I agree that a court of appeals should not decide an Anders appeal until after a defendant who so desires has had an adequate opportunity to review the record and prepare a pro se brief, (1) I disagree with the majority opinion’s creation of a new requirement that “the court of appeals has the ultimate responsibility to make sure that . . . the appellant is granted access to the appellate record.” I disagree with this aspect of the Court’s holding because an attorney–not an appellate court–has the ultimate responsibility to represent his client by obtaining the record for him if that record is necessary to the client’s preparation of a pro se brief in response to anAnders appeal. I also disagree with the majority opinion’s micro-management of the courts of appeals by now requiring them to enter a written order in every Anders case they receive, rather than permitting them to address these appeals in any way that achieves the desired result. Recognizing that there is no general problem here for it to fix, the majority opinion accurately observes that, “[b]y all accounts, each of these procedures [employed by the courts of appeals] has worked tolerably well in the past[.]” Undeterred, the majority opinion nevertheless prescribes heavy regulation of all future Anders cases in the form of the following requirements: (1) the court of appeals must issue a “formal written order”; (2) the order must “require the entity who is designated to arrange the appellant’s access to the record . . . to report to the court of appeals, in writing, when the record has been made available to the appellant”; (3) the appellate court must send copies of the written order to “the appellant, his appellate counsel, the State, the trial court, and the trial court’s clerk”; and (4) the appellate court must ultimately be responsible for getting the record to an appellant. This reminds me of the adage, if it ain’t broke, then regulate it until it is.
I would resolve this case on the narrower basis that the court of appeals erred by deciding the Anders appeal without ensuring that Sylvester Kelly, appellant, had an adequate opportunity to obtain the appellate record and prepare a pro se brief in response, and on that sole basis I would reverse the judgment of the court of appeals. See Kelly v. State, No. 06-12-00141-CR, 2013 WL 1804115, at *1 (Tex. App.–Texarkana Apr. 26, 2013) (mem. op., not designated for publication). I, therefore, respectfully concur in this Court’s judgment but do not join the majority opinion in fashioning an overly burdensome regulatory framework to combat a problem that appears to be confined to the facts of this case.



I. Courts of Appeals Do Not Have the Ultimate Responsibility to Provide A Record




Unlike the Texas Rules of Appellate Procedure, which do not place upon an appellate-court clerk the ultimate responsibility for obtaining an appellate record for a defendant, the ethical rules for attorneys do require them to zealously represent their clients until the point when they are permitted to withdraw from the case. The ultimate responsibility for providing a record to a defendant, therefore, properly falls on counsel.
Rule 12 of the Texas Rules of Appellate Procedure describes the duties of an appellate-court clerk as docketing the case, placing the docket number on each case’s record, safeguarding the record, permitting individuals to withdraw the record under certain conditions, accounting for any money received, and sending the parties notice of the judgments and mandates issued in the case by the court of appeals. See Tex. R. App. P. 12.1-12.6. Although the rules provide that the clerk must permit individuals to withdraw the record under certain conditions, those rules do not charge him with the ultimate responsibility to ensure that an appellant obtains access to or a copy of the record. Rather than place this burden on the appellate courts, therefore, this Court should reaffirm the well-established principle that an attorney must zealously represent his client.



The preamble to the Texas Disciplinary Rules for Professional Conduct declares that in “all professional functions, a lawyer should zealously pursue clients’ interests within the bounds of the law.” Tex. Disciplinary R. Prof’l Conduct preamble ¶ 3, reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West 2014). Having informed his client of his belief that any grounds raised on appeal would be wholly frivolous, counsel should communicate with his client to determine whether he would like a copy of the record to assist him in preparing any pro se brief in response to counsel’s Anders brief. See id. (“In [providing zealous representation], a lawyer should be competent, prompt, and diligent. A lawyer should maintain communication with a client concerning the representation.”). If his client desires to file a pro se response brief, then counsel has the duty to make sure that his client is given access to the record. See id. R. 1.01 cmt. 6 (a lawyer, once engaged, “should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf”); R. 3.01 cmt. 1 (“The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause[.]”). And access to the record does not mean that an attorney merely tells a defendant where he can go to get the record or what steps he must take to get it, but instead means that the attorney is responsible for taking all the necessary steps to ensure that a defendant actually receives access to the record.
Here, when appellant asked counsel for a copy of the record, counsel did nothing to ensure that appellant actually received access to the record other than merely telling him to contact the trial-court clerk, which was inadequate to ensure that appellant would receive access to the record in time for him to prepare a pro se brief. Furthermore, counsel did not file a motion for extension of time asking the appellate court not to rule on theAnders brief or his motion to withdraw until appellant could obtain the record, review it, and prepare any pro se response regarding the Anders claim. See Kelly, 2013 WL 1804115, at *1 (observing that, as of date of opinion’s filing, “no brief [by appellant] has been filed and no request for extension has been made”). By failing to render timely assistance in ensuring that appellant was given adequate access to the record, counsel failed in his duty to zealously represent his client. The court of appeals, aware that appellant was attempting to obtain the appellate record after his attorney had filed an Anders brief, erred by resolving the appeal without determining whether appellant had received the record and had been afforded an adequate opportunity to review it and prepare a pro se brief. The current rules that require an attorney to zealously represent his client until he is given permission to withdraw from representation are all that are necessary to ensure that a client receives access to the appellate record after his attorney files an Anders brief. It is thus unnecessary to impose new administrative regulations on the appellate courts for the purpose of resolving this case.

II. Conclusion

This Court’s decision to impose new requirements on the courts of appeals will result in an unnecessary micro-managing of those courts’ administrative processes and will absolve appellate lawyers in Anders cases of their ethical duty to assist their clients up to the point when they are given permission to withdraw from a case. Here, the parties agree that appellant should have been permitted access to the appellate record for the purpose of enabling him to prepare his response to counsel’s Anders brief, and the record supports a conclusion that the court of appeals should not have decided this Anders appeal until after counsel had ensured that appellant received the appellate record and had an opportunity to review the record and prepare a pro se brief. Appellant, therefore, is entitled to have the opportunity to do this upon this Court’s reversal and remand of this case to the court of appeals. The specific failure in this case should not be the basis for a blanket rule for the treatment of appellate records in all Anders appeals, which, as conceded by the majority opinion, are already being appropriately addressed by the courts of appeals at present. I, therefore, respectfully concur only in this Court’s judgment.
Filed: June 25, 2014


Publish


1. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967) (describing pre-withdrawal requirements for an appointed attorney who believes that an appeal is frivolous).

KELLER, P.J., filed a concurring opinion.

The principle of subsidiarity is the concept that a central authority should have a subsidiary
function, performing only those tasks that cannot be performed effectively at a more immediate or
local level. It is the idea that problems are best solved where they occur in an organization. I believe
that the courts of appeals understand better than we do what is necessary to ensure that appellants are
able to review the appellate record. Despite the mistake in this case, it appears that each court has
a process that effectively addresses the matter. Because I think that this Court imposes an
unnecessary burden upon the courts of appeals, I join its judgment but not its opinion.

PUBLISH

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Gonzales v. State, NO. PD-1313-13 – Speedy Trial Acquittal

Speedy Trial:  A six year delay, where there was no credible evidence of the defendant’s acquiescence in the delay, was a violation of a defendant’s right to a speedy trial.  The Court of Criminal Appeals upheld the Court of Appeals’ dismissal of the indictment for the delay.
_____________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-1313-13
LIONEL GONZALES, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY

Hervey, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson, Keasler, Cochran, and Alcala, JJ, joined. Keller, P.J., filed a dissenting opinion.

O P I N I O N

We granted the State’s petition to review the opinion of the court of appeals on remand finding that Appellant’s right to a speedy trial was violated. The court of appeals held that Appellant’s right to a speedy trial was violated because the factors laid out by the United States Supreme Court to assess speedy-trial claims favored Appellant. It also held that the State failed to persuasively rebut the presumption of prejudice or prove that Appellant acquiesced to the “extraordinary” delay in this case. See Gonzales v. State, No. 04-11-00405-CR, 2013 WL 4500656, at *7 (Tex. App.–San Antonio Aug. 21, 2013) (mem. op.) (not designated for publication). We will affirm the judgment of the court of appeals.

Procedural history

Appellant, Lionel Gonzales, was indicted on March 17, 2004 for injury to a child and indecency with a child. An arrest warrant was issued following the indictment. The alleged incident from which the charges stemmed was alleged to have occurred on November 27, 2002. Appellant was not arrested on those charges until April 21, 2010–approximately six years after he was indicted and the arrest warrant was issued. After his arrest, Appellant filed a pretrial motion to dismiss the indictment for lack of a speedy trial, which the trial court denied. Appellant then pled no contest to the injury-to-a-child offense (1) and was placed on deferred-adjudication community supervision for five years and fined $1,500.
Appellant timely appealed the trial court’s denial of his speedy-trial motion, but the court of appeals affirmed the judgment of the trial court. See Gonzales v. State, No. 04-11-00405-CR, 2012 WL 1364981 (Tex. App.–San Antonio Apr. 18, 2012) (mem. op.) (not designated for publication). Appellant then filed a petition for discretionary review. After granting Appellant’s petition, we reversed the judgment of the court of appeals and remanded the case for the court to reanalyze Appellant’s speedy-trial claim under the correct prejudice standard. See Gonzales v. State, No. PD-0724-12, 2013 WL 765575, at *1 (Tex. Crim. App. Feb. 27, 2013) (not designated for publication).
On remand, the court of appeals held that all four of the factors identified by the United States Supreme Court to be weighed in a speedy-trial analysis favored Appellant. See Gonzales, 2013 WL 4500656, at *7. Also, in reference to our opinion on remand, the court of appeals held that the State failed to persuasively rebut the presumption of prejudice or prove that Appellant acquiesced to the delay. Id. Therefore, the court of appeals reversed the trial court’s denial of Appellant’s speedy-trial motion and ordered that the indictment be dismissed with prejudice. Id. The State filed a petition for discretionary review with this Court asking us to review the judgment of the court of appeals in favor of Appellant, which was granted on four grounds. (2)

The speedy-trial hearing

A month after Appellant was arrested, he filed a motion to dismiss the indictment claiming that the State violated his constitutional right to a speedy trial. The trial court held a hearing on Appellant’s motion to dismiss at which two witnesses testified–Appellant and his mother.

Appellant testified that he did not know about the indictment until he was arrested, that he had been living at the same address with his parents during the entire time period between the date of the alleged incident and Appellant’s eventual arrest six years later, and that he could not “really remember much” about the alleged incident. He did, however, state that he remembered his parents meeting with some detectives, but he thought that “the cops would come and talk to me if they had any issues with me. I didn’t think they would go and talk to my parents before they would talk to me first if I allegedly did something.” On recross-examination, the State elicited testimony from Appellant that he had been charged with driving while intoxicated (“DWI”) and that he had not renewed his driver’s license after it expired in 2007 because he no longer had a car. Later, the State recalled Appellant to the stand and asked Appellant if he had an outstanding motion to revoke his community supervision in connection with his DWI from 2003. Appellant stated that he was made aware he had an outstanding motion to revoke while he was being booked for his 2006 arrest. He claimed that he “didn’t remember that [he] had an MTR . . . [,]” but he also stated, “they never came to see [him] for [the motion to revoke community supervision] either and [he] lived at the same place. They never came. I figured they’d come and get me if they wanted to.”

Appellant’s mother testified that her son has always lived with her and that she did recall someone speaking to her about the alleged incident with M.C. However, she could not remember when the officer came to see her. She further testified that she eventually went to the police station with her husband to speak to the officer, but that the officer only asked them a couple of questions, which she could not answer. When asked if the officer told her that charges would be filed against her son, she stated that the officer told her that “he was gathering information to see if, in fact, he had a case,” but Appellant’s parents never heard anything else from the officer or about the alleged incident. Appellant also elicited testimony that his father is not in good health after he had a third heart attack sometime after meeting with the officer, and that, as a result of his third heart attack, he now suffers from memory loss and doctors had to implant a defibrillator into his chest. As for the alleged incident involving M.C., Appellant’s mother testified that she only “vaguely” remembered the alleged incident, and that she did not learn about the charges against her son until he was arrested.

On cross-examination, the State showed Appellant’s mother a notarized statement signed in August 2003 and asked her to look at a specific portion of the statement. Then the following exchange occurred,

[WITNESS:] No. He asked me that. He told me, did you see the girl that had blood. He rewrote that statement two times before he got it right. And even then he didn’t write it right.
[STATE:] But you signed this?
[WITNESS:] I felt that he was tricking me.
She did, however, admit that she signed the notarized statement and agreed that reading the report helped her to recall “some of the events that occurred that night” and that there were some facts that she could testify to if Appellant went to trial. On redirect, however, she testified that, other than what was in the statement the State provided to her, she had no independent recollection of the events that night. She also gave unobjected-to testimony that her husband told her that he did not remember the alleged incident either. On recross-examination by the State, Appellant’s mother was asked if she was correct in her statement on redirect that she did not see anything the night of the alleged incident that would substantiate the charge, and the following exchange took place:
[WITNESS:] No.
[STATE:] But you just said you saw blood coming from the girl’s —
[WITNESS:] I didn’t say that. He told me, did you see blood.
[STATE:] And you said?
[WITNESS:] I said no, she had her sweater like this.
(Witness indicating with the arm bent at the elbow covering the witness’s face)
[STATE:] So you are saying that the officer lied?
[WITNESS:] Well —
[STATE:] And made you sign this statement that was false?
[WITNESS:] No.
[STATE:] So you did see some blood and you did believe the girl was bleeding?
[WITNESS:] I don’t remember.
* * *
[STATE:] You don’t remember now?
[WITNESS:] No.

The State did not present any witnesses (3) or evidence at the hearing and conceded to the trial court that it could not explain why it took six years to execute the arrest warrant for Appellant. Nonetheless, the State argued in closing that, Appellant, who had an outstanding warrant for a DWI community-supervision violation, did not renew his driver’s license after it expired in 2007 because “a warrant would have popped up and he would have been arrested for [the alleged incident with M.C.] at that time as well.” The State also asserted that “it’s pretty convenient for everybody to come forward now that [Appellant] has been arrested for this case and say, well, we forgot everything.” Finally, the State implied that Appellant should have known that he could have been charged and that it “seems preposterous” that Appellant’s parents “wouldn’t take the time out of their day in the past six or seven years just to tell [Appellant], hey, some police officers talked to us about that girl that was in our house[.]”
In Appellant’s closing arguments, he reiterated that he asserted his right to a speedy trial at his earliest opportunity and that “[i]t’s really not [Appellant’s] duty to call, to find out, you know, if there’s a warrant on him or not.” He also pointed out that he has resided at the same address with his parents his entire life. The State also briefly responded to Appellant’s closing argument that the filed indictment correctly listed Appellant’s address, and “[i]t would stand to reason that the indictment was mailed to that address at some point after the indictment. It also would stand to reason that [Appellant] knew that he was on [community supervision] on a DWI and had a[] [motion to revoke community supervision] for [the DWI] at some point and just basically failed to show for either one of them.”
After an unspecified length of time, the trial court went back on the record and asked the State and Appellant some clarifying questions. First, the judge wanted to know whether the State had an explanation for the delay; the State answered that it did not. Second, the judge asked Appellant what prejudice he was specifically alleging, and Appellant responded that the length of delay had placed him in a position in which the only two witnesses that could possibly testify for him could not independently remember the alleged incident. The court then asked Appellant if he knew about an outstanding warrant stemming from the motion to revoke his probation predating the indictment at issue. Appellant eventually responded that he was aware that his community supervision had been “withdrawn and terminated unsatisfactorily . . . .” The State also told the court that it could have a witness that was present when the arrest warrant was executed to testify that Appellant was also charged with evading arrest when he was arrested. Appellant conceded that he was being charged with evading arrest, but he argued that the evading charge was irrelevant to his speedy-trial issue. The court responded that “the State’s argument [is] that the defendant is not being truthful when he states that he was unaware of potential charges and that he didn’t make himself somehow or another available for the opportunity for an arrest[.] Isn’t that the argument?” Appellant responded yes, however, the burden is on the State “to bring this case to trial, so if [the State] waited six years to up and get him . . . that still . . . goes back six years. [I]t’s still a cap of six years.”
Ultimately, the trial court denied Appellant’s motion to dismiss and subsequently issued findings of fact and conclusions of law explaining why it did so.

Discussion

The Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, guarantees a speedy trial to an accused. See U.S. Const. amend VI; see Kloper v. North Carolina, 386 U.S. 213 (1967) (identifying the right to a speedy trial as fundamental and holding that it is applicable to the states through the Due Process Clause of the Fourteenth Amendment). The plain language of the Sixth Amendment limits the applicability of the Speedy Trial Clause only to an accused. United States v. Marion, 404 U.S. 307, 313 (1971). Thus, a person who has not yet been formally charged cannot seek protection from the Speedy Trial Clause, and the State is not required “to discover, investigate, and accuse a person within any particular period of time.” Id. at 313, 320. Rather, “[a]ny delay between commission of the crime and indictment is controlled by the applicable statute of limitations.” Kroll v. United States, 433 F.2d 1282, 1286 (5th Cir. 1970). (4)

In addressing a speedy-trial claim, the Supreme Court has laid out four factors that a court should consider: (1) the length of delay, (2) the State’s reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant because of the length of delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972). However, before a court engages in an analysis of each Barker factor, the accused must first make a threshold showing that “the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay.” See Doggett, 505 U.S. at 651-52. This Court has reiterated that “presumptive prejudice” “simply marks the point at which courts deem the delay unreasonable enough to trigger [further] enquiry.” State v. Munoz, 991 S.W.2d 818, 821-22 (Tex. Crim. App. 1999) (quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)); see Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (assuming that a 13-month delay was prima facie unreasonable under the circumstances). Thus, if the State prosecuted the accused with “customary promptness,” the accused has failed to meet the threshold burden, but if the defendant can make a threshold showing of presumptive prejudice, a court must then proceed to consider each of the remaining Barker factors and weigh them. Munoz, 991 S.W.2d 818 at 821-22.

When reviewing an application of the Barker test, a reviewing court uses the same burden of proof allocation as in the context of a motion to suppress. See Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). That is, we give almost total deference to historical findings of fact of the trial court that the record supports and draw reasonable inferences from those facts necessary to support the trial court’s findings, but we review de novo whether there was sufficient presumptive prejudice to proceed to a Barker analysis and the weighing of the Barker factors, which are legal questions. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). In addition, a reviewing court should not consider in its deliberations record evidence that was not before the trial court when it made its ruling. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); see also Pierson v. State, 426 S.W.3d 763, 771 (Tex. Crim. App. 2014).

Analysis
A. Presumptive prejudice and length of delay
To consider the length of delay, we must first calculate the delay. The length of the delay is measured from the time the accused is arrested or formally accused. See United States v. Marion, 404 U.S. 307, 313 (1971). When the length of delay stretches well beyond the bare minimum needed to trigger a full Barker analysis, the length of a delay weighs against the State, (5) and the longer the delay, the more the defendant’s prejudice is compounded. This is because “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (quoting Doggett, 505 U.S. at 652).
In this case, the trial court found that there was a six-year delay between Appellant’s formal accusation by indictment and his arrest. Thus, the trial court concluded that there was presumptive prejudice, a full Barker analysis should be undertaken, and the length of delay weighed in favor of Appellant. The court of appeals agreed with the trial court that Appellant had established presumptive prejudice and that the length of delay weighed in favor of Appellant. And it noted that the State did not contest that the length of time from Appellant’s indictment to his arrest was sufficient to trigger a full Barker analysis. See Gonzales, 2013 WL 4500656, at *4. After deferring to the findings of fact by the trial court that the State delayed six years, which is supported by the record, we conclude that the delay was more than adequate to find presumptive prejudice and trigger a full Barker analysis. See Harris, 827 S.W.2d at 956. We also note that the length of delay extended far beyond the minimum amount of time required to trigger a full Barker analysis, and as a result, “this factor–in and of itself–weighs heavily against the State.” Zamorano, 84 S.W.3d at 649.

B. The reason for the State’s delay

This factor looks to “the reason the [State] assigns to justify the delay.” See Barker, 407 U.S. at 531. When assessing the reasons for delay, we assign different weights to different reasons. See Zamorano, 84 S.W.3d at 649. For example,

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Id. (footnote omitted). As indicated, the length of delay can be further subdivided into justifiable and unjustifiable reasons for delay depending on the circumstances of the case. See Barker, 407 U.S. at 531-32. Unjustifiable reasons for delay count towards the “length of delay,” while justifiable reasons for delay do not. Id. A justifiable reason for delay in a complex white-collar case, for example, may not be a justifiable reason for delay in a simple assault case. See, e.g., Dickey v. Florida, 398 U.S. 30, 38 (1970) (“Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable.”); United States v. Loud Hawk, 474 U.S. 302, 316 (delay caused by interlocutory appeal “ordinarily is a valid reason that justifies delay”); Zamorano, 84 S.W.3d at 650 (stating in reference to the State’s reasons for delay that “[t]his was not a complex case; it was a simple DWI, and yet the State had no explanation for why it could not try the case for four years”).

The trial court addressed the second Barker criterion in a single sentence: “[A] six[-]year delay and lack of explanation by the State warrant the examination of the third and fourth factors.” Presumably, the reference to a six-year delay refers to the first factor–length of delay–and the lack of explanation on the part of the State goes to the second factor–the State’s reason for the delay. When the court of appeals addressed this factor on remand, it agreed with the trial court and concluded that this factor weighed heavily in favor of Appellant. Gonzales, 2013 WL 4500656, at *4. The court of appeals reached this conclusion for the same reason the trial court did, but it also noted that this factor weighed against the State because Appellant’s home address was known at all times by the State. Id.

The State argues that the court of appeals ignored express and implicit findings of the trial court when it concluded that there was “nothing in the record to indicate the delay between indictment and arrest was anything but negligence on the State’s part,” and that the court did not take into account Appellant’s actions. However, the State misconstrues the analysis of the court of appeals, and the Supreme Court’s holdings in Barker and its progeny, because it conflates the State’s reasons for delay with whether Appellant timely asserted his right to a speedy trial.

There can be no doubt that the State’s unexplained six-year delay constitutes negligence that has compounded Appellant’s presumptive prejudice over time. See Doggett, 505 U.S. at 652, 656 (reviewing the State’s justification for delay to determine whether it exercised diligence and holding that negligence does not meet that standard). This carries even more weight because the State concedes that it knew Appellant’s address the entire time but completely failed to attempt to contact him. Id. at 653 (the State’s failure to find a defendant “within minutes” when able constitutes negligence). We also agree with the court of appeals (and thereby the trial court) that this factor weighs heavily in Appellant’s favor.

C. The timing of Appellant’s assertion of his right to a speedy trial

“Whether and how a defendant asserts his right is closely related to the other [Barker] factors . . . .” Barker, 407 U.S. at 531 (noting that a defendant’s timely assertion of his speedy-trial right affects the other Barker factors). As a result, this factor “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right [to a speedy trial].” Barker, 407 U.S. at 531-32. In addition, we have held that, although an accused is entitled to a speedy trial, a defendant has no duty to bring himself to trial. See Zamorano, 84 S.W.3d at 651. However, neither does the State have an obligation “to discover, investigate, and accuse a person within any particular period of time” because “[a]ny delay between commission of the crime and indictment is controlled by the applicable statute of limitations.” Marion, 404 U.S. at 313, 320.
The trial court found that Appellant filed his speedy-trial motion about a month after he was arrested. The trial court also found that

[A]t no time during the six[-]year delay did defendant assert his right to a speedy trial. This coupled with the fact that [Appellant] let his driver’s license expire and attempt to evade arrest leads the court to conclude that the defendant had some notion of outstanding charges and used the State’s tardiness to his own advantage. This court is also unconvinced that defendant and his parents did not discuss the event that transpired in their own home or the conversations with police. Furthermore, defendant’s testimony that he thought “the cops would come and talk to [him] if they had any issues” indicates that the defendant was at least aware officers were investigating the circumstances surrounding the event and was likely aware officers had been in touch with his parents.

Based on these findings, the trial court concluded that Appellant failed to timely assert his right to a speedy trial. The court of appeals reached the contrary conclusion that Appellant’s first opportunity to assert his right to speedy trial was immediately after his arrest. Gonzales, 2013 WL 4500656, at *5. The court reasoned that Appellant had no notice of the pending indictment and that Appellant had “no duty to bring himself to trial; that is the State’s duty,” (6) although the court did not explain how it reached the conclusion that Appellant had no notice of the indictment.
The trial court’s findings are simply not sufficiently supported by the record. First, the finding that Appellant knew about the outstanding charges cannot be supported only by information regarding Appellant being booked for evading arrest, which was presented in closing arguments by the State without personal knowledge. We have held that statements of an attorney on the record may be considered as evidence only if the attorney “is speaking from first-hand knowledge.” See State v. Guerrero, 400 S.W.3d 576, 585 (Tex. Crim. App. 2013). However, in this case, the prosecutor specifically stated during closing arguments that he would need a witness to testify to the evading issue, and based on the following excerpt, it is clear that the prosecutor had no personal knowledge of the evading issue:

Your Honor, there is another issue that I didn’t bring up today and I can just kind of tell you what it’s about, but I potentially could have witnesses come in here and testify about the actual arrest on the warrant that occurred in April. There is another case that resulted out of that, an evading case, so I think there were officers that actually went to go find him on that day and actually did find him and he evaded those officers. That is something that I’m just telling you about, but I mean, if you wanted to — me to bring up witnesses to testify to those facts, I could potentially get those officers in here.

Thus, the trial court erred when it relied on the State’s representations that Appellant evaded arrest in April 2010 when he was arrested to support that finding.
Second, the trial court’s finding that Appellant allowed his driver’s license to expire in 2007 because he knew about the outstanding charges in this case is simply not a reasonable inference based on that fact alone. Third, the finding of the trial court that Appellant failed to assert his right to a speedy trial during the six-year delay is circular logic because it presumes the answer to the inquiry–Appellant cannot assert his right to a speedy trial if he did not know about the charges.
Moreover, even when the evidence that Appellant “was at least aware officers were investigating the circumstances surrounding the event,” is viewed in the light most favorable to the trial court’s ruling and, even if we defer to the trial court on that finding, it is also insufficient to prove knowledge on the part of Appellant of the outstanding charges in this case. Knowledge that police are merely investigating a possible crime is insufficient to put a defendant on notice to assert his right to speedy trial. See Doggett, 505 U.S. at 653 (stating that the petitioner’s timely assertion of his right to a speedy trial turns, in large part, on whether the petitioner knew about the outstanding charges); see also United States v. Cardona, 302 F.3d 494, 498 (5th Cir. 2002) (concluding that when there is no evidence that the appellant knew about the charges until his arrest, but he timely asserted his right to a speedy trial after his arrest, the assertion-of-the-right factor weighs in the appellant’s favor). We conclude that Appellant timely asserted his right to a speedy trial. See Doggett, 505 U.S. at 653-54.

D. Prejudice to Appellant because of the length of delay

To analyze prejudice, the Supreme Court in Barker identified three interests the Speedy Trial Clause was designed to protect, including “to prevent oppressive pretrial incarceration,” “to minimize anxiety and concern of the accused,” and “to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532; see Zamorano, 84 S.W.3d at 652. The last interest is the most important because the fairness of the entire criminal-justice system is distorted when a defendant is unable to adequately prepare his defense. Barker, 407 U.S. at 532. Here, because Appellant spent no time in jail before his arrest, and if Appellant did not know about the indictment, he could have suffered little anxiety or concern. However, this is not the end of the inquiry.
In Doggett v. United States, 505 U.S. 647 (1992), the Supreme Court examined in more depth the role that excessive delay and presumptive prejudice play in the impairment of a defendant’s ability to present a defense. See id. at 655-65. In certain instances, the length of delay may be so excessive that it “presumptively compromises the reliability of a trial in ways that neither party can prove or identify.” Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (citing Doggett, 505 U.S. at 655). In such instances, the defendant is absolved from the requirement to demonstrate prejudice. (7) Although we have previously remanded this case and presumed the type of extraordinary prejudice that relieves Appellant of his burden to prove that the delay prejudiced him by impairing his ability to present a defense, (8) we have not examined this presumption at length. (9) We look first to guidance from the Supreme Court and then the Fifth Circuit Court of Appeals. (10)
In Doggett, the petitioner was indicted for conspiring to import and distribute cocaine. Doggett, 505 U.S. at 648. He was arrested 8 ½ years after his indictment. Id. at 650. The Supreme Court agreed with earlier courts that the delay was solely attributable to the State’s negligence. Id. at 653. When the Court examined the prejudice component of the Barker test, it noted that “affirmative proof of particularized prejudice is not essential to every speedy trial claim,” and that “negligence is not automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Id. at 656-57. And while conceding that “time can tilt the case against either side,” the Court concluded that “one cannot generally be sure which [party] it has prejudiced more severely.” Id. at 655. The Court also acknowledged that Doggett “did indeed come up short” with respect to proving affirmative prejudice, although it still held in his favor and granted relief. Id. at 658. Regarding the State’s attempt to persuasively rebut the “extraordinary” presumptive prejudice, the Supreme Court agreed that, while the State “ably counter[ed] Doggett’s efforts to demonstrate particularized prejudice, it has not, and probably could not have, affirmatively proved that the delay left his ability to defend himself unimpaired.” (11) Id. at 658 n.4.
In Cardona, the appellant was indicted on April 23, 1995, and an arrest warrant issued the same day. Cardona, 302 F.3d at 498. Over five years later, on October 28, 2000, the appellant was arrested on the outstanding warrant. Id. The Fifth Circuit Court of Appeals reversed and remanded because it concluded that the district court erred in its speedy-trial analysis. Id. at 496. Specifically, the court held that the excessive delay was due to the negligence of the State and the court reasoned that, because the prejudice caused by excessive delay compounds over time, a five-year delay was sufficient to absolve the appellant of his burden to prove prejudice. Id. at 498. However, it did not discuss the rebuttal of the presumption other than to state that the presumption of prejudice was not extenuated nor rebutted. Id. at 499.
In Molina-Solorio, the Fifth Circuit presumed prejudice when nearly ten years passed between the appellant’s indictment and trial, and eight of those years were spent in custody. Molina-Solorio, 577 F.3d at 304. The appellant argued that “the length of delay, combined with the [State’s] negligence and his timely assertion of his rights, warrant[ed] a finding of presumed prejudice.” The court agreed. Id. When examining the presumption of prejudice, the court rejected the Government’s assertion that it had proven extenuation or rebutted the presumption. Id. at 307. It explained that, because the appellant timely asserted his right, he did not acquiesce to the delay. Id. With respect to whether the Government persuasively rebutted the presumed prejudice, the court concluded that, despite the Government’s arguments in rebuttal to the appellant’s attempts to demonstrate actual prejudice, the presumption had not been rebutted under Doggett. Id. at 307. In a footnote, the court stated that “to say that the Government has met its burden in this case would be to rob the Doggett presumption of any efficacy.” Id. at 307 n.4. The Fifth Circuit also noted that the Supreme Court in Barker discussed that “prejudice should be presumed and the burden shifted to the state to prove the negative by affirmatively demonstrating that there was no prejudice to defendant as a result of the delay,” and that “[a]lthough the burden shift might require the state to prove facts inaccessible to it, e.g., that no evidence for the defense was lost or impaired, that is the point[.]” Id. (internal citation omitted). The Fifth Circuit went on to cite the Supreme Court’s footnote in Doggett explaining that the Government probably could not have affirmatively proven that the excessive delay did not impair the appellant’s ability to defend himself. See id. (citing Doggett, 505 U.S. at 654 n.4).
After sifting through the confusing web of federal discussion in this area, we now turn to the issue of presumed prejudice in this case, whether the court of appeals properly reviewed the record on remand for acquiescence by Appellant, and whether the State persuasively rebutted the presumed prejudice.
In its opinion on remand, the court of appeals explained its analysis of extenuation thusly, “We already concluded that [Appellant] did not acquiesce in the delay because, as discussed above, he asserted his rights once he was aware of the indictment against him.” Gonzalez, 2013 WL 4500656, at *6 (citing Molina-Solorio, 577 F.3d at 307). With respect to whether the State persuasively rebutted the presumption of prejudice, and citing the Supreme Court’s opinion in Doggett, the court of appeals stated that

[w]hile we acknowledge that attempting to prove a negative is difficult, the State is nonetheless required to rebut or extenuate the presumption of prejudice. [Appellant] was not required to show he was unable to adequately prepare for his defense, but rather, the State was required to show that his defense was unimpaired despite the lengthy delay.

Id. at *7 (internal citation omitted). Based on this, and the arguments and evidence put forth by the State, the court of appeals concluded that the State failed to meet its burden to persuasively rebut the presumption of prejudice. Id.

When a defendant has timely asserted his right to a speedy trial, it is a difficult task for the State to prove that the defendant acquiesced in the delay. And in this case, other than the findings of fact of the trial court already raised by the State and previously discussed, the State points to no record evidence to show that Appellant acquiesced in a six-year delay in being brought to trial for these charges. Therefore, after reviewing the State’s arguments, the findings of the trial court, and the transcript of the speedy-trial hearing, we agree with the court of appeals and hold that the State has failed to vitiate the presumption of prejudice by proving that Appellant acquiesced to the delay. As to whether the State persuasively rebutted the presumption, although we recognize that this is a close decision and that this Court must engage “‘in a difficult and sensitive balancing process’ in each individual case,” (12) we again agree with the court of appeals that the State has failed to persuasively rebut the presumption of prejudice in this case. Although we do not take lightly the dismissal of an indictment, because of the State’s negligence in failing to pursue Appellant with diligence for six years, we believe that the facts of this case fall within the parameters of Doggett and Molina-Solorio. Therefore, we conclude that Appellant’s right to a speedy trial was violated. We affirm the judgment of the court of appeals.

Conclusion
After reviewing the findings of fact of the trial court, the speedy-trial analysis of the court of appeals, and applying the Barker factors de novo, we reach the same conclusion as the court of appeals that Appellant’s right to a speedy trial was violated. Therefore, we affirm the judgment of the court of appeals, and the indictment against Appellant is dismissed with prejudice.

Hervey, J.

Delivered: June 25, 2014

Publish

1. The record shows that Appellant’s plea-bargain agreement applied only to the injury-to-a child count and that the State ultimately did not pursue the indecency-with-a-child count.
2. The precise grounds upon which we granted the State’s petition for discretionary review are,
(1) The court of appeals did not give appropriate deference to the trial court on matters of historical fact;
(2) The court of appeals failed to review the trial record for evidence of extenuation. Specifically, the court of appeals failed to consider the trial court’s express and implied findings that Appellant was avoiding law enforcement–a finding supported by evidence that Appellant stopped reporting for his DWI probation and allowed his driver’s license to expire;
(3) The court of appeals erred in its conclusion that the State failed to rebut the presumption of prejudice; and
(4) The court of appeals did not properly weigh and balance the Barker factors in light of the trial court’s findings of fact. Specifically, the court of appeals failed to balance the State’s negligence in executing Appellant’s arrest warrant with Appellant’s own conduct in avoiding law enforcement.
3. The State argues in a footnote that it intended to call Appellant’s father to the stand, and it cites a portion of the speedy-trial-hearing transcript to support that assertion. However, that portion of the record reflects that the State claimed to have subpoenaed both parents on May 5, 2010, but never explained why the father was not called as a witness if he was available.
4. But see United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) (stating that preindictment delay can violate a person’s right to due process of law if the State intentionally delayed indictment to cause the person substantial and actual prejudice to gain a tactical advantage).
5. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002).
6. Zamorano, 84 S.W.3d at 651.
7. Doggett, 505 U.S. at 655-56; see also United States v. Molina-Solorio, 577 F.3d 300, 307 (5th Cir. 2009); Gonzales, 2013 WL 765575, at *1 (remanding for the court of appeals to review the record for rebuttal or extenuation of prejudice because “the six-year delay between indictment and arrest presumptively compromised the reliability of a trial in way that cannot be proven or identified”).
8. See Gonzales, 2013 WL 765575, at *1 (“In the instant case, the six-year delay between the appellant’s indictment and his arrest ‘presumptively compromise[d] the reliability of a trial in ways that neither party can prove or, for that matter, identify.'”).
9. We note that other opinions from the Fifth Circuit and other jurisdictions have addressed the issue of when prejudice should be considered “extraordinary” and presumed, although such opinions are only persuasive authority. See, e.g., United States v. Bergfeld, 280 F.3d 486, 491 (5th Cir. 2002) (five-year delay caused by the Government’s negligence entitled the appellant to a presumption of prejudice); United States v. Brown, 169 F.3d 344, 350 (6th Cir. 1999) (finding presumed prejudice after a five-and-one-half-year delay); United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (finding presumed prejudice after a six-year delay).
10. This Court has relied on opinions from the Fifth Circuit Court of Appeals in the past with respect to speedy-trial issues despite the fact that such opinions are not binding on this Court. See, e.g., Cantu v. State, 253 S.W.3d 273, 284 (Tex. Crim. App. 2008) (citing United States v. Palmer, 537 F.2d 1287 (5th Cir. 1976)); Zamorano, 84 S.W.3d at 652 n.42 (citing United States v. Gonzales, 897 F.2d 1312 (5th Cir. 1990); Spence v. State, 758 S.W.2d 597, 598 n.1 (Tex. Crim. App. 1988) (citing United States v. Giwa, 831 F.2d 538, 542 (5th Cir. 1987); United States v. Johnson, 815 F.2d 309 (5th Cir. 1987)); Meshell v. State, 739 S.W.2d 246, 256 (Tex. Crim. App. 1987) (citing United States v. Carter, 603 F.2d 1204 (5th Cir. 1979)).
11. The State argues that the Supreme Court’s footnote “is more dictum than precedent and more cryptic than helpful” and asserts that we have pronounced that footnotes should receive minimal precedential value. See Young v. State, 826 S.W.2d 141, 144 n.5 (Tex. Crim. App. 1991). We agree that we have intimated that we are not bound by holdings expressed in the footnotes of our own opinions. However, we make three observations.
First, we have never held that footnotes in Supreme Court opinions are not binding, and we have previously adopted a footnote from the United States Supreme Court’s decision in Doggett. See Munoz, 991 S.W.2d at 821-22. Second, the Fifth Circuit Court of Appeals was sufficiently persuaded by the importance of the footnote in Doggett to adopt it as applicable law in this circuit. See Molina-Solorio, 577 F.3d at 307. And while we acknowledge that federal constitutional interpretations of the Fifth Circuit Court of Appeals are not binding on this Court, we find the analysis of the Fifth Circuit in the cases cited today persuasive. See Cooper v. State, 631 S.W.2d 508, 514 (Tex. Crim. App. 1982) (stating that the Court of Criminal Appeals is not bound by federal constitutional interpretations of the lower circuit courts). Finally, it is not clear how much precedential value a pronouncement delivered by this Court in a footnote should carry, considering that we have stated that footnotes “should receive minimal precedential value.” Young, 826 S.W.2d at 144 n.5.
12. See Cantu, 253 S.W.3d at 281 (quoting Barker, 407 U.S. at 533).

DISSENTING OPINION

Keller, P.J., filed a dissenting opinion.

Appellant claims that he was unaware of the pending indictment until he was arrested. (1) Let us assume that is so. That fact would make this case like Doggett v. United States with one significant exception. Doggett based his speedy-trial claim on the fact that the indictment against him had been pending for over eight years. Had Doggett been indicted at the time he first became aware of the prosecution (instead of eight years earlier), limitations would have expired. That is not true in appellant’s case. In my view, one of the purposes of the speedy-trial guarantee is to protect the defendant against “tolling abuse”–the use of a charging instrument to toll limitations when no serious prosecution would otherwise be forthcoming until after limitations had expired. Because the tolling-abuse rationale does not apply to this case, I dissent.
A. Doggett and Limitations
In Doggett v. United States, the defendant was arrested eight-and-a-half years after he was indicted. (2) This delay was not the result of nefarious maneuvering on the Government’s part, but the Government had no good excuse for the delay. (3) On the other hand, Doggett was not aware of the indictment until he was arrested on it, (4) and he was not able to show any specific prejudice resulting from the delay in his trial. (5) Nevertheless, the Supreme Court found that the long period of delay gave rise to a presumption of prejudice–a presumption that the reliability of the trial had been compromised. (6) While a defendant’s failure to timely assert his right to a speedy trial would attenuate this presumption, this did not occur in Doggett’s case because he was unaware of the pending prosecution and therefore unaware of his need to assert his speedy-trial right. (7) And because the presumption of prejudice was not otherwise “persuasively rebutted,” Doggett was entitled to relief. (8)
But what if Doggett had not been indicted until eight-and-a-half years later than he was? In that scenario, he would not have had a meritorious speedy-trial claim because the speedy-trial guarantee applies only to delay that occurs between the commencement of prosecution and the trial. (9) For pre-indictment delay, the Constitution requires only that due process be satisfied. (10) For a due-process violation to occur, the record must show that: (1) the defendant suffered substantial actual prejudice to his right to a fair trial, and (2) the State acted in bad faith. (11) The facts in Doggett’s case satisfied neither prong of the due-process test. Moreover, the length of delay in Doggett’s case suggested the possibility of prejudice to his defense, but when there is pre-indictment delay, the applicable statute of limitations provides the primary guarantee against the possibility of prejudice from overly stale criminal charges. (12)
In Doggett, the fact that the defendant had been indicted made all the difference in whether he was entitled to relief, but why should the fact that a person has been indicted make such a difference if he is completely unaware of the indictment’s existence? Because Doggett was not aware of the indictment, he did not suffer from oppressive pretrial incarceration or from anxiety stemming from the pendency of the charges. (13) The only prejudice Doggett could claim was the possibility that his defense was impaired, (14) but that possibility existed regardless of when Doggett was indicted. In his dissent in Doggett, Justice Thomas considered the question of why the indictment matters when the defendant is unaware of it. (15) Because Doggett was “blissfully unaware” of his indictment during the period of delay, Justice Thomas concluded that he “suffered none of the harms that the right [to a speedy trial] was designed to prevent.” (16) But neither Justice Thomas nor the Court majority in Doggett focused on the actual difference between Doggett’s case and that of a defendant whose indictment issued eight-and-a-half-years later than Doggett’s did: limitations.
Before the case reached the Supreme Court, when Doggett’s speedy-trial claim was rejected by a two-to-one vote at the Eleventh Circuit, Judge Clark recognized the limitations issue in his dissent. (17) Judge Clark observed that the statute of limitations for Doggett’s offense was five years, and that limitations would have expired if the indictment had been returned at the time Doggett learned of it. (18) While Judge Clark would not have found that fact to be conclusive of the speedy-trial issue, he considered it to be “another factor” that should be taken into account. (19)
In Texas, a charging instrument ordinarily tolls the running of limitations. (20) Because of that tolling, it is legitimate, I think, for the speedy-trial guarantee to take into account the interests that a statute of limitations is designed to protect. If the charging instrument becomes a mere placeholder, lying dormant for years, to the point where limitations would have otherwise expired at the time the defendant first learns of its existence, then the purposes of the statute of limitations have been undermined. Of course, the State is free to file a charging instrument on the last day of the limitations period and even quick notice to the defendant could easily be outside the limitations period, so the mere fact that notice to a defendant occurs outside the limitations period is not dispositive. But the longer a charging instrument has lain dormant and the longer it has done so after limitations would have expired, the stronger the inference ought to be that the statute of limitations has been subverted. In Doggett, the defendant learned of his indictment for the first time at an arrest that occurred at least three-and-a-half years after limitations would have expired if the indictment had been returned at the time of arrest. I view Doggett’s presumption of prejudice from the passage of time as implicitly based on the notion that the passage of time was significant enough to subvert the purpose of the statute of limitations. This view would be consistent with the Supreme Court’s pronouncement in Marion that the statute of limitations is the primary guarantee against the possibility that the passage of time will impair the defendant’s ability to defend himself against the accusation. (21)
Why the applicable statute of limitations should matter in a speedy-trial analysis may be illustrated by the following hypothetical: Andy and Bob commit an offense. Let us assume that the limitations period for this offense is ten years. A month after the offense, the police learn about Andy and Bob’s involvement. Six months after the offense, the State indicts Andy, but, for some unknown reason, does not indict Bob. The prosecution file soon gets misplaced, resulting in the State’s failure to notify Andy of the indictment and its failure to take any action on the case with respect to Andy or Bob until the error is discovered six years after the offense. Six years and one month after the offense, the State issues an indictment against Bob and, on the same day, arrests both Andy and Bob. Andy was not aware of his indictment until his arrest. Both men go to trial two months later. Let us finally assume that Andy and Bob cannot demonstrate any particularized prejudice arising from the delay between the offense and their trial.
Bob has no viable speedy-trial claim. He was tried a mere two months after he was indicted, a period of time that does not even trigger a speedy-trial analysis. (22) He also has no valid due-process pre-indictment-delay claim because the record does not demonstrate that he suffered actual prejudice or that the State acted in bad faith. Nor is his prosecution barred by the statute of limitations, which is ten years. But if the Court’s reasoning in the present case is correct, Andy has a meritorious speedy-trial claim–despite the fact that there is no practical difference between what the two men suffered as a result of the State’s actions. Both men believed that no indictment was pending against them (Bob was correct in this belief, while Andy was not) until they were arrested a little over six years after the offense was committed. Treating Andy and Bob differently under these circumstances seems irrational. On this basis, I think it can be rationally said that, where limitations would not be barred if the indictment were brought on the date of trial, and the defendant’s claim is that he was unaware of the indictment for most of the relevant period of time, then the presumption of prejudice has been “persuasively rebutted.” (23)
Now let us assume that the limitations period for the above offense is five years. If the other elements of the hypothetical remain the same, the following results: Bob has a viable limitations claim because his indictment was returned outside the statute of limitations. Andy, however, does not have a viable limitations claim because the issuance of his indictment tolled the statute of limitations. But Andy certainly had reason to believe that limitations had expired when five years passed without him being aware of any indictment. Andy has a substantial argument that, due to the State’s failure to notify him and actively prosecute the case, he ought to be treated similarly to Bob. That argument is not conclusive, since the State did exert at least some effort to prosecute Andy before limitations had expired (returning an indictment), but, if I am correct, the limitations-evading effect of the indictment is something that can be taken into account in a speedy-trial analysis.
B. The Offense and Limitations

The limitations period applicable to appellant’s injury-to-a-child offense is “ten years from the 18th birthday of the victim. (24) As the above discussion shows, the present case is not an instance of tolling abuse. Had the State indicted appellant on the date that he was tried, nothing would have barred the State from proceeding with the prosecution. Appellant’s ignorance of the existence of an indictment for six years places him a position that is not materially different than that of a person who was indicted six years later. Consequently, I would hold that appellant has not been deprived of his Sixth Amendment right to a speedy trial.

I respectfully dissent.

Filed: June 25, 2014

Publish

1. The Court acknowledges that, if a defendant is aware of an indictment for a significant period of time before his arrest, his failure to assert his right to a speedy trial would weigh heavily against him. See Doggett v. United States, 505 U.S. 647, 653 (1992).
2. 505 U.S. at 648.
3. Id. at 653, 657.
4. Id.
5. Id. at 655.
6. Id. at 655-56.
7. Id. at 653-54, 658.
8. Id. at 658.
9. Id. at 655 (“the Sixth Amendment right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution”); United States v. Loud Hawk, 474 U.S. 302, 310-12 (1986) (period of time during which defendant was neither indicted, nor subject to arrest or bail, is not considered in speedy-trial analysis).
10. United States v. Lovasco, 431 U.S. 783, 788-89 (1977).
11. State v. Krizan-Wilson, 354 S.W.3d 808, 814-15, 817 (Tex. Crim. App. 2011). See also United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996).
12. United States v. Marion, 404 U.S. 307, 322-23 (1971).
13. Doggett, 505 U.S. at 654.
14. Id. at 654-56.
15. Id. at 659-71 (Thomas, J., dissenting).
16. Id. at 659-60.
17. United States v. Doggett, 906 F.2d 573, 583 (11th Cir. 1990) (Clark, J., dissenting).
18. Id.
19. Id.
20. Tex. Code Crim. Proc. art. 12.05(b); Tita v. State, 267 S.W.3d 33, 37 (Tex. Crim. App. 2008).
21. See this opinion, footnote 12.
22. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008).
23. See this opinion, footnote 8. I would not foreclose the possibility that the existence of the charging instrument, and subsequent delay of trial, might produce an event that poses a risk of prejudice to the defendant. If, for example, evidence was destroyed because an official believed that the State’s failure to prosecute a pending indictment meant that the case was over (and such evidence would not have been destroyed otherwise), then that might suffice to shift the balance of the speedy-trial factors in the defendant’s favor.
24. The indicted offense was “intentionally or knowingly caus[ing] bodily injury” to a child, a third-degree felony. Tex. Penal Code § 22.04(f) (West 2004) (last amended in 1999). When the offense was committed, on November 27, 2002, it was subject to a five-year limitations period. Tex. Code Crim. Proc. art. 12.01(4)(D) (West 2002). Effective September 1, 2007, the legislature increased the limitations period to “ten years from the 18th birthday of the victim.” Tex. Code Crim. Proc. art. 12.01(5)(C) (West 2008). The savings clause provides that the change in the law “does not apply to an offense if the prosecution of that offense became barred by limitation before the effective date of this Act.” Acts 2007, 80th Leg., ch. 841, § 2. Because appellant’s offense was not barred by limitations when the amendment took effect, the new limitation period applies. We have upheld the constitutionality of extending an unexpired period of limitations. Phillips v. State, 362 S.W.3d 606, 613 (Tex. Crim. App. 2011).

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Canida v. State, PD-0003-13

A reviewing court that finds legally insufficient evidence of a great-inclusive offense may reform a judgment for conviction to that of a lesser included offense.
________________________________________________________________________
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0003-13
BOBBY GLENN CANIDA, APPELLANT
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
LAMAR COUNTY

Meyers, J., delivered the opinion for a unanimous Court.

O P I N I O N

Bobby Glenn Canida, Appellant, was convicted by a jury of manufacturing methamphetamine in an amount of more than one gram but less than four grams. He was sentenced by the court to eighty years’ imprisonment after pleading true to the two prior convictions in the State’s enhancement paragraph. Appellant appealed, arguing that the evidence was insufficient to support his conviction. The court of appeals agreed, finding the evidence legally insufficient to demonstrate that he manufactured more than one gram of methamphetamine and entered a judgment of acquittal. Canida v. State, 387 S.W.3d 668, 669 (Tex. App.-Texarkana 2012). We granted the State’s petition for discretionary review to determine whether the court of appeals should have reformed the conviction to the lesser-included offense of attempted manufacturing rather than rendering a verdict of acquittal.

FACTS

In early 2011, Appellant’s name “popped up” in the database of pseudoephedrine purchases made at pharmacies within Lamar County. Based on an investigation, narcotics investigator Anson Amis obtained a search warrant for Appellant’s residence, which consisted of a camper that he lived in, a shed, and a home that his mother lived in. Amis testified that he found the following items during the search: rubbing alcohol, batteries, used and unused coffee filters, a glass jar, Epsom salt, two boxes of ephedrine medicine totaling 30 tablets, an empty Gatorade bottle, digital scales, syringes, a large Ziploc containing “a bunch of smaller Ziploc bags,” a police scanner, and a barrel that contained the burned remnants of hot and cold packs, containers of lighter fluid, batteries that had been cut and taken apart, the packaging from ephedrine medicine tablets, and foil. Amis testified that each of these specific items can be used in the manufacture, use, or sale of methamphetamine. A lime-salt container that tested positive for an “unknown quantity” of methamphetamine was also found. None of the other items, however, were tested for the presence of narcotics, and no items were fingerprinted. Amis also testified that some of the ingredients necessary to make methamphetamine, such as lye, sulfuric acid, and muriatic acid, were not found during the search.

Appellant was arrested and interviewed. During the interview, which was played for the jury, Appellant explained to officers how to make methamphetamine using the “shake and bake” method, something he admitted to doing in the recent past. He also admitted to using methamphetamine by injecting himself with syringes, and needle marks were found on his body.

At trial, in addition to Amis, the State also called a qualified expert in the manufacture, delivery, and possession of narcotics. This expert testified that a person could make one to two grams of methamphetamine with the quantity of pseudoephedrine found at Appellant’s residence.

The only witness called by the defense was Appellant’s mother. She was present when the search warrant was executed and testified that she gave police permission to search the shed on the property. She also testified on cross-examination that Appellant had a prior conviction for manufacturing methamphetamine.

Neither party requested an instruction on any lesser-included offenses, and no such instruction was given. The jury found Appellant guilty of violating Texas Health and Safety Code Section 481.112(b) by manufacturing methamphetamine in an amount of more than one gram but less than four grams. Appellant elected for the trial judge to assess punishment, and the court sentenced him to eighty years’ imprisonment.

THE COURT OF APPEALS

On appeal, Appellant argued that the evidence was insufficient to support his conviction. The court of appeals determined that, because the items recovered indicated the operation of a methamphetamine laboratory and Appellant admitted to manufacturing in his interviews, “a rational trier of fact could have found that Canida was engaged in the manufacture of methamphetamine.” Canida, 387 S.W.3d at 672. However, the court went on to point out that the State was also required to prove that between one and four grams of methamphetamine were produced. Id. This means that the defendant must have been manufacturing methamphetamine at the time of his arrest and that the aggregate weight of the substance was shown to be at least one gram and less than four grams. See Goff v. State, 777 S.W.2d 418, 420 (Tex. Crim. App. 1989). Because some of the key ingredients to make methamphetamine were not found in the search of Appellant’s home, only an unknown quantity of the drug was detected on the lime-salt container, and Appellant never admitted to producing any certain amount of the drug, the court held that the State did not meet its burden of proving that the quantity of methamphetamine actually exceeded one gram. Canida, 387 S.W.3d at 672-73. Determining the evidence legally insufficient to affirm the conviction, the court entered an acquittal. Id. at 673.

ARGUMENTS OF THE PARTIES
The State filed a petition for discretionary review, arguing that the court of appeals should have reformed the judgment to a conviction on a lesser-included offense rather than entering an acquittal. The State bases this argument on our decision in Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012), in which we held that a reformation of a conviction rather than an acquittal was the proper remedy. The State contends that the evidence in this case was sufficient to prove the lesser-included offense of attempted manufacturing of methamphetamine, that the court should have reformed the conviction to attempt, and that the case should have then been remanded to the trial court for a new hearing on punishment.
Appellant argues that Bowen does not apply to this case. He asserts that Bowen should control only in cases where the court of appeals could reform the judgment to reflect a conviction for the same offense but of a lesser degree. Because attempted manufacturing of methamphetamine is a different offense than manufacturing and not simply a lesser degree of it, Appellant contends that Bowen is not applicable. Appellant also suggests that Bowen should not be applied because the complicated legal issues that led to the State’s mistake of applicable law and the subsequent conviction in Bowen are not present in this case.
In the alternative, Appellant argues that Bowen was incorrectly decided and that we should reconsider our holding.

DISCUSSION

In Bowen, the defendant was charged with and convicted of the first-degree felony offense of misapplication of fiduciary property with a value of $200,000 or more. Id. at 428. Bowen had been appointed co-trustee of a family trust with a balance of $620,065, but upon her mother’s death, she distributed the entire amount of the trust to herself instead of half of the amount to her brother’s three children, as the trust required. When the State charged her, however, the indictment incorrectly listed only one of the children as the owner of the entire half of the trust property that Bowen misappropriated. In reality, that child owned only a one-third share of that portion of the trust, but had power of attorney to act on behalf of her siblings, the beneficiaries of the other two thirds. Therefore, even though she did not have ownership of those shares, the State added them into its calculation of the value of her property that Bowen misappropriated. No lesser-included-offense instructions were submitted to the jury and Bowen was convicted. Bowen appealed her conviction and the court of appeals held that the terms of the trust, rather than the powers of attorney, controlled ownership of the trust assets. Id. Because the actual value of the trust property owned by the one child was only $103,344, the court concluded that the evidence was legally insufficient to prove that the misapplied property had a value over $200,000. Bound by our prior decision in Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999), the court ordered an acquittal. Id. at 428-29.
On appeal, we determined that reformation of the conviction to a lesser offense, rather than acquittal, was the appropriate remedy for multiple reasons. Id. at 432. First, under Texas Penal Code Section 32.45(c), the value of the misappropriated fiduciary property is only an “aggravating element” that operates to determine the degree of the offense. (1) We found that, although this “aggravating element” was not proven, the State did prove all of the “essential elements” of the offense beyond a reasonable doubt. Id. Because the fact finder’s determination of guilt should not be usurped at the punishment phase “if the evidence is legally sufficient to support a conviction,” we determined that it was necessary to permit reformation of convictions to lesser-included offenses that had not been requested or included in the jury charge. Therefore, because the “essential elements” of the offense had been proved beyond a reasonable doubt, we held that the judgment against Bowen should be reformed to a second-degree conviction of misapplication of fiduciary property. Id.

On April 2, 2014, we rendered our opinion in Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014), which clarifies the holding of Bowen. In Thornton we held that:

[A]fter a court of appeals has found the evidence insufficient to support an appellant’s conviction for a greater-inclusive offense, in deciding whether to reform the judgment to reflect a conviction for a lesser-included offense, that court must answer two questions: 1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either of these questions is no, the court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the court is authorized-indeed required-to avoid the “unjust” result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense.

Id. at 299-300. Because it was decided so recently, neither the State, the appellant, nor the court of appeals have had the benefit of our decision in Thornton. Therefore, we will remand the case to the court of appeals to consider the issue in light of Thornton.

CONCLUSION

The proper disposition of this case is to remand it to the court of appeals for consideration of whether Thornton mandates reformation of the conviction or if an acquittal was correct. Therefore, the case is remanded to the court of appeals for consideration of this issue.

Delivered: June 25, 2014

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1. Misapplying property with a value of $200,000 or more is a felony of the first degree. If the misapplied property has a value between $100,000 and $200,000, as it did in Bowen, the offense is a felony of the second degree.

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

McGruder v. State; No.-11-05822-CRF

The Waco Court of Appeals finds that 724.012(b) is not facially unconstitutional.  It appears that the Appellant failed to make any other challenges to the blood draw other than the unconstitutionality of .012(b). The Court notes that no motion to suppress was filed requesting the suppression of the blood pursuant to the Fourth Amendment.  I do not think this the Court’s endorsement of the mandatory blood draw statute. 
______________________________________________________________________
IN THE TENTH COURT OF APPEALS
No. 10-13-00109-CR
MICHAEL ANTHONY MCGRUDER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 11-05822-CRF-85

OPINION

Michael Anthony McGruder was convicted of the offense of driving while intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL CODE ANN. § 49.04 (West 2011). Because section 724.012(b)(3)(B) of the Texas Transportation Code is not unconstitutional, we affirm the trial court’s judgment.

BACKGROUND
In September of 2011, McGruder was stopped by a College Station police officer because McGruder’s pickup matched the description of a suspicious vehicle in the area. After McGruder got out of his pickup, the officer who initially stopped McGruder and another officer who had arrived at the scene noted that, even from a distance, McGruder smelled of alcohol. McGruder responded to questioning by the officers and gave “nonsensical” and conflicting answers. He also refused to perform any field sobriety exercises. McGruder was arrested and refused to submit to a breath or blood test. After McGruder’s pickup was inventoried and towed, McGruder was taken to the police department where an officer began to prepare a search warrant to obtain a sample of McGruder’s blood. During the process of preparing the warrant, the officer learned that McGruder had two prior DWI convictions. At that time, the officer discontinued preparing the warrant and began working on the “mandatory blood draw” paperwork. The officer testified that a blood draw becomes mandatory when a DWI suspect has two prior DWI convictions. McGruder was then taken to the hospital and his blood was drawn.
OBJECTION AND ISSUE
At his trial in 2013, McGruder objected to the State’s introduction of the blood draw kit and the blood draw vial on the basis that section 724.012 of the Texas Transportation Code, the section which contains the mandatory blood draw provision, is unconstitutional in that it allows for the seizure of evidence without a warrant. fn1 The trial court overruled his objection. On appeal, McGruder contends in one issue that, absent exigent circumstances or consent, section 724.012(b)(3)(B) of the Texas Transportation Code violates the Texas and United States Constitutional provisions against unreasonable searches and seizures. We construe McGruder’s argument to be a facial challenge to the constitutionality of that portion of the statute. fn2

THE STATUTE

As it applies to this case, section 724.012(b) provides:

(b) A peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:
***
(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:
***
(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

MCNEELY

Relying on the recent opinion from the United States Supreme Court in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), McGruder argues that because section 724.012(b)(3)(B) does not require any exigent circumstance for a warrantless blood draw, it impermissibly narrows the constitutional right to be free from unreasonable searches and seizures and should be declared unconstitutional.
Generally speaking, drawing blood from a suspect is a search and seizure within the scope of the Fourth Amendment to the United States Constitution. See Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). A warrantless seizure of a blood sample, however, can be constitutionally permissible if officers have probable cause to arrest a suspect, exigent circumstances exist, and a reasonable method of extraction is available. Id. at 767-68.
In McNeely, the United States Supreme Court addressed the issue of whether the Fourth Amendment required police to obtain a warrant before taking a blood sample from a non-consenting driver suspected of driving while intoxicated. McNeely, 133 S. Ct. at 1556. The Court concluded that the natural dissipation of alcohol in the bloodstream did not present a per se exigency that justified an exception to the warrant requirement for non-consensual blood testing in all DWI cases. Id. Instead, the Court recognized that, sometimes, exigent circumstances, based in part on the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a blood sample without a warrant but that courts must determine on a case-by-case basis whether exigent circumstances exist, considering the totality of the circumstances. Id.
Prior to McNeely, at least one Texas appellate court had interpreted section 724.012(b) to be an exception to the Fourth Amendment warrant requirement; that is, no warrant was necessary to draw the defendant’s blood if he refused to consent to the blood draw and had two prior DWI convictions. See Aviles v. State, 385 S.W.3d 110, 112 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S. Ct. 902, 187 L. Ed. 2d 767 (2014), op. on remand, ___ S.W.3d ___, 2014 Tex. App. LEXIS 8508 (Tex. App.—San Antonio Aug. 6, 2014, no pet. h.). But the United States Supreme Court vacated that court’s judgment and remanded the case to the court of appeals for further consideration in light of McNeely. Aviles, 134 S. Ct. at 902. Since then, Texas appellate courts have held that a non-consensual blood draw without a warrant pursuant to section 724.012(b) and without evidence of exigent circumstances other than simply the rapid dissipation of alcohol in the bloodstream violates a defendant’s Fourth Amendment rights.fn3 See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish); Sutherland v. State, No. 07-12-00289-CR, 2014 Tex. App. LEXIS 3694 (Tex. App.—Amarillo, April 7, 2014, pet. filed) (publish); Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish). See also Baker v. State, No. 12-12-00092-CR, 2013 Tex. App. LEXIS 12818 (Tex. App.—Tyler Oct. 16, 2013, pet. granted) (not designated for publication) (trial court could have reasonably concluded State failed to show warrantless blood draw was supported by exigent circumstances). Contra Perez v. State, No. 01-12-01001-CR, 2014 Tex. App. LEXIS 2681 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (publish) (motion for rehearing filed; response requested by the court; response filed).
FACIAL CONSTITUTIONAL CHALLENGE

But McGruder asks us to find that section 724.012(b)(3)(B) is unconstitutional. To prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).
Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).
Section 724.012(b) merely requires an officer to take a blood or breath specimen in certain circumstances. What makes the statute mandatory is that the officer has no discretion in those situations to obtain either a blood or a breath specimen. It does not mandate, nor does it purport to authorize, a specimen be taken without compliance with the Fourth Amendment. And although the Court of Criminal Appeals has said that the implied consent law, the body of law in which this particular statute is contained, enables officers to draw blood in certain limited circumstances, a.k.a. exigent circumstances, even without a search warrant, the Court also said that the law did not give officers the ability to forcibly obtain blood samples from anyone just because they were arrested for DWI. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). Further, the Court did not hold in Beeman, and has not yet held, that section 724.012(b) is an exception to the Fourth Amendment’s warrant requirement such as the consent exception or the exigent circumstances exception. See Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645, *35 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish).
Further, as written, section 724.012(b) does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or without a recognized exception to the warrant requirement. See Forsyth v. State, No. 11-12-00198-CR, 2014 Tex. App. LEXIS 8381, *22 (Tex. App.—Eastland July 31, 2014) (no pet. h.) (publish) (“…Section 724.012 does not instruct an officer to take a person’s blood without a warrant or in violation of the Fourth Amendment,” citing Villarreal v. State, No. 13-13-00253-CR, 2014 Tex. App. LEXIS 645 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (publish)).4 We agree with the Houston Court of Appeals when it aptly noted, “We have no reason to fault the constitutionality of the mandatory blood draw statute in this case because it did not require [the officer] to obtain a blood draw without first securing a warrant. It is the officer’s failure to obtain a warrant and the State’s failure to prove an exception to the warrant requirement, not the mandatory nature of the blood draw statute, that violate the Fourth Amendment.” Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *48-49 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish).
4 Other courts of appeals agree with this interpretation. See Douds v. State, No. 14-12-00642-CR, 2014 Tex. App. LEXIS 6152, *46 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed) (op. on rh’g) (publish); Weems v. State, No. 04-13-00366-CR, 2014 Tex. App. LEXIS 5109, * 24 (Tex. App.—San Antonio May 14, 2014, pet. filed) (publish); Reeder v. State, No. 06-13-00126-CR, 2014 Tex. App. LEXIS 4558, *14 n. 10 (Tex. App.—Texarkana April 29, 2014, pet. filed) (publish).
McGruder has failed to point us to anything else that would show the statute to be unconstitutional. Thus, McGruder’s facial challenge to the statute must fail, and we presume the statute to be constitutionally valid.

CONCLUSION

Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins

Affirmed

Opinion delivered and filed August 14, 2014
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Footnotes:

1 McGruder later objected to the lab report which contained the blood alcohol content results of McGruder’s blood test by stating, “Renew my earlier objection.” He did not however, object to the chemist’s testimony prior to the introduction of the lab report that McGruder’s blood alcohol content was .09 grams per 100 milliliters. We note that there was no motion to suppress filed; only objections made to the various exhibits as they were introduced into evidence. The Amicus Curiae, presented by the Texas Criminal Defense Lawyers Association, argues the trial court erred in overruling the objections to the kit, vial, and lab report. The Amicus Curiae does not address the admission, without objection, of the blood alcohol content testimony. Nevertheless, this is not the issue that McGruder has presented on appeal. Rather, McGruder raises a direct challenge to the constitutional validity of the “mandatory” blood draw provision.
2 McGruder does not argue that the Texas Constitution provides any greater or different protection than the United States Constitution; thus we treat them as the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002).
3 This is not the issue we have been asked to decide and express no opinion regarding that issue.

_________________________________
DISSENTING OPINION
____________________________
Justice Rex. D. Davis, dissenting, 
At least six of our sister courts, based on Missouri v. McNeely, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013) and the Supreme Court’s treatment of Aviles v. State, 385 S.W.3d 110 (Tex. App.—San Antonio 2012, pet. ref’d), vacated, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014), op. on remand, — S.W.3d —, 2014 WL 3843757 (Tex. App.— San Antonio Aug. 6, 2014, no pet. h.), have held that a warrantless, nonconsensual blood draw under Transportation Code section 724.012(b), absent exigent circumstances, violates the Fourth Amendment. Forsyth v. State, — S.W.3d —, —, 2014 WL 3865777, at *8 (Tex. App.—Eastland July 31, 2014, no pet. h.); Weems v. State, — S.W.3d —, —, 2014 WL 2532299, at *8 (Tex. App.—San Antonio May 14, 2014, pet. filed); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171, at *4 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. filed); Sutherland v. State, — S.W.3d —, —, 2014 WL 1370118, at *10 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed); State v. Villareal, — S.W.3d —, —, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted); see also Douds v. State, — S.W.3d —, 2014 WL 2619863 (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. filed). But see Perez v. State, — S.W.3d —, —, 2014 WL 943126, at *7 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.) (mot. for reh’g and mot. for en banc reh’g pending) (“We conclude that the warrantless taking of appellant’s blood sample in compliance with Transportation Code section 724.012(b) did not violate his Fourth Amendment rights by requiring him to submit to a warrantless blood test without his consent.”); see id. (also holding that appellant failed to raise constitutionality of statute in trial court).
While it appears that no court has explicitly passed on the facial constitutionality of section 724.012(b),1 some have criticized the statute from a Fourth-Amendment perspective with language that I believe indicates a facial problem with the statute:
 Forsyth, — S.W.3d at —, 2014 WL 3865777, at *7 (“we decline to hold that mandatory blood draws under the Texas Transportation Code are per se reasonable and further decline to hold that an officer is not required to obtain a warrant for the blood draw or show that the blood draw was conducted under a recognized exception to the warrant requirement.”).
 Holidy, 2014 WL 1722171, at *1 (“This appeal involves the sole question of the constitutionality of taking and testing blood under the implied consent provisions of Section 724.012(b)(3)(B)… . Because we are constrained by principles recently enunciated by the United States Supreme Court, we reverse the conviction herein based on the unconstitutionality of the statute and remand this case for a new trial.”).
 Sutherland, — S.W.3d at —, 2014 WL 1370118, at *10 (“To the extent that Section 724.012(b)(3)(B) can be read to permit, nonetheless, a warrantless seizure of a suspect’s blood in the absence of such exigent circumstances or the suspect’s consent, it runs afoul of the Fourth Amendment’s warrant requirement.”).
Section 724.012(b) does not explicitly require an officer to obtain a blood or breath sample without a warrant, but it also does not instruct an officer to obtain a warrant in the absence of exigent circumstances. And the common facts in our sister courts’ opinions and in this case are that the officer did not obtain a warrant solely because of section 724.012(b) and did compel or forcibly obtain a blood sample without the defendant’s consent solely because of section 724.012(b):2
 Forsyth, — S.W.3d at —, 2014 WL 3865777, at *2 (“A criminal history check and Appellant’s own admissions revealed that Appellant had two prior convictions for DWI. Appellant refused to submit to a breath or blood test. Relying on Section 724.012 of the Texas Transportation Code, Officer McDaniel transported Appellant to Brackenridge Hospital for a mandatory blood draw. … Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).
 Weems, — S.W.3d at —, 2014 WL 2532299, at *1, 3 (“No warrant was procured for the blood draw. … In this case, Officer Bustamante testified that the blood draw was administered because a person other than Weems suffered bodily injury and was transported to a hospital for medical attention. The State also points out that the THP–51 form, which was admitted in evidence, indicates that the blood draw was also ordered because Weems had two prior DWI convictions.”).
 Douds, — S.W.3d at —, 2014 WL 2619863, at *1, 3 (“Officer Tran took the appellant to a local medical center, Texas Emergency Care, for a mandatory blood draw. Officer Tran testified his decision to obtain a blood draw was based on his reasonable belief that section 724.012 of the Texas Transportation Code had been satisfied and allowed him to do so. … Nothing in the record suggests that any officer attempted to obtain a warrant authorizing the blood draw at any point. Indeed, the evidence does not mention a warrant at all. … Officer Tran testified that he ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code.”).
 Holidy, 2014 WL 1722171, at *1 & n.2 (defendant, who had two prior DWI convictions, “was told by officers that he had no choice, so he ‘didn’t argue’ with them about the blood draw”).
 Reeder, 428 S.W.3d at 926 (after defendant, who had two prior DWI convictions, “refused to give his consent to have his blood drawn and tested for alcohol, law enforcement officials took a blood specimen anyway and tested it under the authority of Section 724.012(b)(3)(B)”).
Id. (emphasis added). This statement is therefore inapplicable to the warrantless blood draw cases where the officers have been forcibly obtaining blood samples without warrants under the alleged authority of the statute. And because Beeman involved a warrant, its language about warrantless blood draws is dicta. See Weems, — S.W.3d at —, 2014 WL 2532299, at *3-4. Moreover, as intimated by the San Antonio court in Weems, the dicta in Beeman is likely not viable after McNeely. See id., — S.W.3d at —, 2014 WL 2532299, at *4 (“[w]e relied on this dicta in Beeman in Aviles”); see also Forsyth, — S.W.3d at —, 2014 WL 3865777, at *4 (“court’s explanation of implied consent law in Beeman is dicta”); id. (“Furthermore, the implied consent statute, at the time Beeman was issued, did not contain a provision directing officers to take the blood of a DWI arrestee that had previously twice been arrested for DWI.”).
 Sutherland, — S.W.3d at —, 2014 WL 1370118, at *1 (“[Officer] Housmans testified that, as justification for the warrantless blood draw, he relied solely on the provision in the Texas Transportation Code that requires him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of driving while intoxicated.”).
 Id., — S.W.3d at —, 2014 WL 1370118, at *2 (“Housmans conceded, too, that he did not seek out a magistrate the night appellant was arrested; it was Housmans’s understanding of Section 724.012 that he was not required to do so. In fact, Housmans testified that he understood Section 724.012 as placing upon him a duty to take appellant for a mandatory blood draw under the circumstances presented to him the night appellant was arrested: ‘I have no discretion. The statute says I shall.’ To fail to do so, he testified, would mean that he “would be violating the law.”).
 Villareal, — S.W.3d at —, 2014 WL 1257150, at *11 (“The officer’s sole basis for not getting a warrant was that the repeat offender provision of the mandatory blood draw law required him to take a blood sample without appellee’s consent and without the necessity of obtaining a search warrant.”).
Plainly, the statute’s silence on warrants explains the officers’ views that the statute authorizes them to compel warrantless blood draws. See Forsyth, — S.W.3d at —, 2014 WL 3865777, at *2 (“Officer McDaniel acknowledged that there were magistrates available to issue a search warrant twenty-four hours a day, but stated that he could not have secured a warrant because that ‘is not what you do according to law or policy.’”).
Because of the statute’s silence on warrants and the indisputable practice of warrantless blood draws based solely on the silent statute, and based on the Texas progeny of McNeely that border on a finding of facial unconstitutionality, I cannot agree with the majority that McGruder’s facial challenge to section 724.012(b) fails. See Holidy, 2014 WL 1722171, at *1 (“we reverse the conviction herein based on the unconstitutionality of the statute”); see also State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649, at *4 (Tex. App.—Tyler June 5, 2013, pet. granted) (mem. op., not designated for publication) (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App.—Austin 2011, pet. ref’d), for the proposition that “Chapter 724 does not authorize what the constitution forbids and cannot authorize an involuntary draw when the constitution forbids it”).

Accordingly, I respectfully dissent.

REX D. DAVIS
Justice
Dissenting opinion delivered and filed August 14, 2014
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1 The majority quotes two sentences in a footnote from Douds that appear to be dicta. See Douds, — S.W.3d at — n.24, 2014 WL 2619863, at *15 n.24. In Sutherland, the appellant presented an apparent facial challenge: “In the absence of exigent circumstances or consent[,] does Section 724.012(b)(3)(B) violate the Texas and United States constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times.” Sutherland, — S.W.3d at —, 2014 WL 1370118, at *3. But the court did not make an explicit facial review of the statute. And in Forsyth, the appellant failed to assert a facial complaint in the trial court. Forsyth, — S.W.3d at — n.1, 2014 WL 3865777, at *1 n.1.
2 In Beeman, the court of criminal appeals did state: “This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). But the context of that sentence is important:

The dissent implies that we have given carte blanche to officers to draw blood in every single DWI case. But we have given police officers nothing more than the Constitution already gives them—the ability to apply for a search warrant and, if the magistrate finds probable cause to issue that warrant, the ability to effectuate it. This does not give officers the ability to forcibly obtain blood samples from anyone arrested for DWI. Instead, it gives officers the ability to present an affidavit to a magistrate in every DWI case, just like every other criminal offense. Whether any search ultimately occurs rests, as always, in the hands of the neutral and detached magistrate.

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Lundgren v. State; NO. PD-1322-13

The filing of a motion for new trial, after entering a plea, retroactively stayed the judgment of the trial court.

___________________________________________________________________

Opinion Delivered: June 25, 2014

IN THE COURT OF CRIMINAL APPEALS OF TEXAS



NO. PD-1322-13

JERRY PAUL LUNDGREN, Appellant

v.

THE STATE OF TEXAS



ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

WISE COUNTY

Hervey, J., delivered the opinion of the unanimous CourtKeller, P.J., filed a concurring opinion.

O P I N I O N


Appellant, Jerry Paul Lundgren, was arrested for driving while intoxicated. He pled guilty pursuant to a plea-bargain agreement, waived his right to appeal, and was placed on community supervision. About a week later, Appellant was arrested again. After his second arrest, Appellant filed a motion for new trial and a notice of appeal in his first case. Later, the State filed a motion to revoke Appellant’s community supervision, and the trial court did so. Appellant argues that his filing of a timely notice of appeal and motion for new trial retroactively stayed the commencement of his community supervision; therefore, the court of appeals erred when it upheld the trial court’s ruling. Because we conclude under these facts that Appellant’s filing of a timely and effective motion for new trial retroactively stayed the commencement of his community supervision until it was overruled by operation of law, we will reverse the judgment of the court of appeals and remand this case.
Background

A. Trial

Appellant was arrested for misdemeanor driving while intoxicated (“DWI”). On January 7, 2011, Appellant pled guilty pursuant to a plea-bargain agreement and was sentenced to 365 days’ confinement, which was suspended for 18 months of community supervision. The judgment stated that Appellant’s community supervision commenced the same day the judgment was entered. Appellant’s plea-bargain agreement, which the trial court followed, included two waivers of appeal, the details of the bargain, and the signatures of Appellant and his counsel. On January 14, 2011–a week after Appellant pled guilty and his punishment was assessed–he was arrested for DWI again. (1)
After Appellant’s arrest for the second DWI, Appellant filed a timely notice of appeal and motion for new trial in his first case. His notice of appeal was filed on January 19, 2011, and his motion for new trial was filed on January 28, 2011. After Appellant’s filings, the State filed a motion to revoke Appellant’s community supervision (from the first offense) for violating conditions of his community supervision (because of the second offense). Appellant’s appeal was dismissed by the court of appeals on March 3, 2011, his motion for new trial was overruled by operation of law on March 23, 2011, and the court of appeals issued its mandate dismissing Appellant’s appeal on May 12, 2011. See Tex. R. App. P. 21.8(a) & (c) (stating that a motion for new trial that is not timely ruled upon is denied by operation of law 75 days after the original sentence is imposed or suspended in open court). The court of appeals asked Appellant to show grounds that his appeal conferred jurisdiction on the court of appeals, but the court never received a response. As a result, the court of appeals dismissed Appellant’s appeal. See Lundgren v. State, No. 02-11-00023-CR, 2011 WL 754344 (Tex. App.–Fort Worth Mar. 3, 2011, no pet.) (per curiam) (mem. op.) (not designated for publication).
After mandate issued, the trial court entered two additional judgments in Appellant’s first DWI case. First, it entered a Post Mandate Enforcement of Prior Judgment of Conviction that stated Appellant’s community supervision began the day the judgment was entered, June 22, 2011. Second, it entered a judgment nunc pro tunc to reflect that Appellant’s driver’s license would be suspended due to his being convicted of DWI. The second judgment also reflected that Appellant’s community supervision began on June 22, 2011 and not January 7, 2011, as the original judgment stated.
In response to the State’s motion to revoke, Appellant filed a motion to quash the State’s revocation motion because Appellant claimed that he did not violate his community supervision. His argument was based on the fact that he had timely filed a motion for new trial and notice of appeal in his first case; therefore, his community supervision became enforceable only after the appellate mandate issued and his motion for new trial was overruled. To support his argument, Appellant cited Ross v. State, 523 S.W.2d 402, 405 (Tex. Crim. App. 1975) and McConathy v. State, 544 S.W.2d 666 (Tex. Crim. App. 1976), respectively. (2) The trial court overruled Appellant’s motion to quash and concluded that Appellant failed to secure the permission of the court to appeal or file a motion for new trial. In addition, the court ruled that it could revoke Appellant’s community supervision because Appellant’s supervision was effective on January 7, 2011–the date the original judgment was signed. Therefore, the trial court reasoned, Appellant’s second arrest was a violation of the conditions of his community supervision.
On February 2, 2012, the trial court revoked Appellant’s community supervision and remanded him to the custody of the sheriff to discharge a 300 day term of confinement. (3) Appellant timely appealed the trial court’s revocation order.

B. Appeal

On appeal, Appellant and the State advanced largely the same arguments. The court of appeals began its analysis by noting, “all parties agree that the terms and conditions of community supervision are not in effect while a case is on appeal or during the pendency of a motion for new trial.” Lundgren v. State, 417 S.W.3d 11, 15-16 (Tex. App.–Fort Worth 2013) (citing Ross, 523 S.W.2d at 405; Humphries v. State, 261 S.W.3d 144, 145 (Tex. App.–San Antonio 2008, no pet.); McConnell v. State, 34 S.W.3d 27 (Tex. App.–Tyler 2000, no pet.)). The court of appeals also recognized that precedent from this Court “suggests” that filing a motion for new trial or an appeal from a judgment ordering community supervision would retroactively stay the commencement of an appellant’s community supervision until the motion and appeal are resolved and the judgment becomes final. However, relying on an opinion from another court of appeals, the court concluded that the trial court retained jurisdiction to “exercise its authority to punish violations of its conditions of community supervision,” and that Appellant’s timely “notice of appeal and motion for new trial were ineffective to retroactively act as a cure for [the] violations.” Id. at 20 (quoting McConnell, 34 S.W.3d at 30). The court also reasoned that its decision was proper because “the unique procedural posture of this case requires a different result.” Id.

With respect to Appellant’s argument regarding the post-mandate judgments, the court of appeals stated that, “[a]t the time of Appellant’s violation, . . . [Appellant’s] community supervision commenced seven days before the violation.”Id. Therefore, the court concluded, the post-mandate judgments entered by the trial court “did not alter what occurred before they were entered.” Id.

Appellant then filed a petition for discretionary review, which we granted on two grounds: (1) “The court of appeals, in a 2-1 decision, erred in holding that the terms and conditions of the Defendant’s community supervision began, not when the court of appeals’ mandate issued after a timely appeal was filed, but at the earlier date when the trial court entered its original judgment based upon the Defendant’s negotiated plea of guilty,” and (2) “The court of appeals, in a 2-1 decision, erred in holding that the subsequent judgment, issued by the trial court after a mandate had issued by the court of appeals, did not control the beginning date of the Defendant’s terms and conditions of probation even though the State did not challenge or appeal that subsequent judgment.”

Arguments of the parties
Appellant argues that he was not on community supervision when he was alleged to have violated the conditions of his supervision because his filing of a notice of appeal and a motion for new trial retroactively stayed the commencement of his community supervision. Therefore, Appellant asserts, the court of appeals erred when it held that the trial court properly overruled Appellant’s motion to quash. In support of his argument, Appellant cites caselaw from this Court and secondary source material. Appellant’s Brief on the Merits, at 5 (citing Ross, 523 S.W.2d at 405; Delorme v. State, 488 S.W.2d 808, 810 (Tex. Crim. App. 1973); Smith v. State, 478 S.W.2d 518, 520 (Tex. Crim. App. 1972)); 43B George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 55:137 (3d ed. 2011)).
The State agrees with Appellant that, once he appealed his conviction, state law is clear that an appellant’s punishment, including community supervision, is stayed “while the case is on appeal.” See Ross, 523 S.W.2d at 402. However, the State argues that the cases cited by Appellant are distinguishable because in those cases “there was a jury or judge verdict, or no waiver by appellant. The State is unaware of any Texas cases where the [d]efendant pled guilty with a valid appellate waiver and subsequently appealed.” To support its waiver argument, the State cites a number of cases from this Court. See Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003); Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Ex parte Hogan, 556 S.W.2d 352, 353 (Tex. Crim. App. 1977).

Discussion



A. Appellant’s notice of appeal did not toll the commencement of his community supervision because his notice of appeal was ineffective.

We have addressed the finality of judgments in a number of lines of cases, (4) and, in the context of convictions on appeal, we have repeatedly held that a judgment of conviction is not final while the conviction is on appeal. Milburn v. State, 201 S.W.3d 749, 752 (Tex. Crim. App. 2006). This is because of the possibility that the trial court’s judgment “could be retroactively vitiated by the mere filing of a . . . notice of appeal.” Id. at 753-54. Following this same rule, if a defendant files a timely and effective notice of appeal, that filing stays the commencement of the community-supervision term imposed until appellate mandate has issued affirming the judgment of conviction. (5) See Delorme, 488 S.W.2d at 810; McConathy, 544 S.W.2d at 668 (applying the same nonfinality rule to motions for new trial). However, the filing of an ineffective notice of appeal is treated differently. See Tabor, 565 S.W.2d at 946 (enforcing a waiver of appeal and agreeing that the filed notice of appeal was ineffective because the waiver of appeal was binding). If an appellate court dismisses an appeal because the notice of appeal, though timely, was ineffective to initiate the appellate process, then the judgment was “deemed to be final on the date of sentencing.” Id.Jones, 77 S.W.3d 819, 820 (Tex. Crim. App. 2002).
In this case, the record reflects that Appellant pled guilty pursuant to a plea-bargain agreement that the State would recommend 18 months’ community supervision. Appellant executed two different appellate waivers, and the trial court imposed an 18-month term of community supervision pursuant to the plea-bargain agreement. After Appellant was arrested again, he filed a notice of appeal in his first case, and the State filed a motion to revoke Appellant’s community supervision. Appellant’s appeal was dismissed for a lack of jurisdiction, and the court issued its mandate on May 12, 2011. On February 2, 2012, the trial court revoked Appellant’s community supervision resulting from his first DWI.

Appellant is correct that a timely and effective notice of appeal tolls the commencement of a community-supervision term while the case is on appeal. But Appellant’s timely notice of appeal was not effective in this case because he had entered into a binding appellate waiver, as the court of appeals held. Thus, Appellant’s notice of appeal failed to initiate the appellate process, and as a result, his community supervision should have begun “on the date of sentencing.”Jones, 77 S.W.3d at 820; Tabor, 565 S.W.2d at 946.
However, the resolution of when Appellant’s community-supervision term commenced is more complex because Appellant also filed a timely and effective motion for new trial, and the State argues that a binding waiver of appeal applies to the filing of notices of appeal and the filing of motions for new trial. We now turn to those questions.

B. A valid, express waiver of the right to appeal does not waive a defendant’s ability to file a motion for new trial.

The authority for a defendant to appeal can be found in Article 44.02 of the Texas Code of Criminal Procedure and Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. Tex. Code Crim. Proc. art. 44.02; Tex. R. App. P. 25.2(a)(2). Motions for new trial are addressed in Rule 21 of the Texas Rules of Appellate Procedure. Tex. R. App. P. 21. And while it is true that appeals and motions for new trial are both organizationally located in the section “Appeals from Trial Court Judgments and Orders” of the Texas Rules of Appellate Procedure, the topics are addressed in separate rules and are handled differently.
For example, in some cases, Rule 21.2 specifically contemplates that a motion for new trial is a prerequisite to presenting an issue on appeal. Tex. R. App. P. 21.2 (“A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts in the record.”). In addition, although motions for new trial and notices of appeals are both filed at the trial-court level, (6) only a trial court can grant or overrule a motion for new trial (unless the motion is overruled by operation of law) and only an appellate court can render judgment on appeal. See Tex. R. App. P. 21.1 (defining new trial as the “rehearing of a criminal action after the trial court has . . . set aside a finding or verdict of guilt”), 43.2 (delineating the types of judgments a court of appeals may enter when considering an appeal from a trial court judgment). 
Moreover, when a motion for new trial is filed, the trial court has the opportunity to reconsider the proceedings and to correct any errors it may agree occurred in the defendant’s trial by setting aside the defendant’s finding or verdict of guilt or sentencing. See Tex. R. App. P. 21.1, 21.9(a). In contrast, an appeal is an opportunity for a defendant to argue to a different tribunal that his conviction was flawed despite the trial judge’s or jury’s conclusion to the contrary. See Black’s Law Dictionary 118 (10th ed. 2014) (defining “appeal” as “[t]o seek review (from a lower court’s decision) by a higher court . . . .”).
In sum, although the word “appeal” could be used colloquially to refer to a motion for new trial or a notice of appeal in the sense that both procedural mechanisms serve a review function, we hold that motions for new trial and appeals are sufficiently different that an appellate waiver will not waive a defendant’s right to file a motion for new trial.



C. The trial court erred in revoking Appellant’s community supervision because it did not commence until his motion for new trial was overruled by operation of law.

We now turn to the question of whether Appellant’s filing of a motion for new trial retroactively stayed the commencement of his community-supervision term such that the trial judge erred in overruling Appellant’s motion to quash.

Appellant filed a timely and effective motion for new trial. (7) And we have held that when a timely and effective motion for new trial is filed, and no notice of appeal was given, or in this case an ineffective notice of appeal was filed and disposed of, the terms of community supervision commence on the day the motion for new trial is overruled by operation of law. See McConathy, 544 S.W.2d at 668.

We hold that Appellant’s timely and effective filing of a motion for new trial tolled the commencement of his community supervision, unlike his ineffective notice of appeal. In this case, Appellant had taken action to suspend the finality of the judgment by filing an effective and timely motion for new trial. Because Appellant’s motion for new trial was timely and effective, the mere filing of it did retroactively render the judgment placing him on community supervision nonfinal. As a result, the commencement of his community-supervision term was also stayed until the motion for new trial was overruled. Thus, the judgment placing Appellant on community supervision for his first DWI became final on March 23, 2011, when his motion for new trial was overruled by operation of law. See McConathy, 544 S.W.2d at 668. The court of appeals erred when it affirmed the ruling of the trial court denying Appellant’s motion to quash.See id.

In light of the disposition of this case, we need not reach the question of whether the trial court’s post-mandate enforcement judgment altered the commencement date of Appellant’s community supervision. We reverse the judgment of the court of appeals and remand this case to the court of appeals for further proceedings not inconsistent with this opinion.

Hervey, J.

1. Appellant was arrested after police responded to report of an intoxicated man, who turned out to be Appellant, asleep in a silver truck in a drive-through lane of Whataburger.

Concurring Opinion

Keller, P.J., filed a concurring opinion.

I join the Court’s opinion, but I write to point out that the State had at least two options that could have allowed it to avoid the situation it now faces. When appellant filed a motion for new trial, the State could have agreed to it and made sure that it was presented to the trial court. It appears that appellant’s sole purpose in filing the motion for new trial was to retroactively extend the start date of his probation. Nevertheless, the motion for new trial was a request to rescind the plea agreement, and if the State had agreed to that request, then the trial court could have granted the motion and undone the plea agreement. (1) Undoing the plea agreement might not be as favorable to the State as pursuing revocation proceedings, but it would give the State the chance to seek a sentence of incarceration.

The State could also have avoided its current predicament if the plea agreement had included a waiver of the right to file a motion for new trial. We have held that a defendant can, in at least some circumstances, waive the right to appeal as part of an agreement with the State, (2) though the waiver of post-conviction remedies may be ineffective in the face of a claim that could not have been anticipated at the time the waiver occurred. (3) Logically, the same should be true of the right to file a motion for new trial. In the absence of an allegation, in the motion for new trial, of an unforeseeable claim, the waiver would render the motion ineffective with respect to delaying the finality of the judgment.

1. See Restatement (Second) of Contracts § 283. Appellant might have withdrawn his motion for new trial when faced with the State’s willingness to agree to it, but then the motion for new trial would have been ineffective for the purpose of extending the probation start date. And because appellant’s appeal was ineffective for that purpose (as the Court’s opinion explains), then appellant would be facing revocation. It is also possible that the State could argue that appellant breached the plea agreement by filing a notice of appeal and that, as a result of the breach, the State could agree to appellant’s motion for new trial as a method of cancelling the contract. See Id., cmt. a. If the State can cancel the plea agreement in this manner, the defendant might not have the option of withdrawing the motion for new trial.

2. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009).

3. Ex parte Reedy, 282 S.W.3d 492 (Tex. Crim. App. 2009).

Delivered: June 25, 2014
Publish

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Mendoza v, State; NO. PD-0937-13

A defect in the jury instructions can be mitigated by the context in which it was presented.

________________________________________________________________________________

Opinion:


IN THE COURT OF CRIMINAL APPEALS OF TEXAS


NO. PD-0937-13

BRAXTON MENDOZA, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

CALDWELL COUNTY

Keasler, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Price, Womack, Hervey, Cochran, and Alcala, JJ., joinedJohnson, J., dissented.

O P I N I O N

The sole issue is whether Braxton Mendoza suffered egregious harm when the trial court erroneously failed to include in its jury charge a limiting instruction under Texas Penal Code § 8.07(b) that would have instructed the jury that Mendoza could not be prosecuted for an offense committed while he was a minor. The court of appeals concluded that Mendoza did not suffer egregious harm. Although the court of appeals used an incorrect harm analysis, we agree with its conclusion and affirm its judgment.
I. Facts & Procedural History
Mendoza’s indictment alleged that he committed aggravated sexual assault on August 15, 2010, by penetrating the sexual organ of M.M., a child younger than the age of fourteen years, with his penis. Mendoza entered a plea of not guilty, and the case was tried to a jury.

During the trial, testimony centered around a five-year period during which Mendoza sexually assaulted M.M. on three separate occasions: once in 2006 when M.M. was six and Mendoza was thirteen, once in 2008 when M.M. was nine and Mendoza was sixteen, and once in 2010 when M.M. was ten and Mendoza was seventeen. His indictment charged only the final, 2010 incident. (1)
Though Mendoza was not charged with offenses arising out of the first two incidents, evidence of them was admitted at trial under Texas Rule of Evidence 404(b) (2) and Texas Code of Criminal Procedure article 38.37. (3) With respect to the evidence of the first two incidents, the trial court gave the following limiting instruction:
The Defendant is on trial solely on the charge contained in the indictment. In reference to evidence, if any, that the Defendant has engaged in transactions or acts other than that which is charged by the indictment in this case, you are instructed that you cannot consider such other transactions or acts, if any, for any purpose unless you first find and believe beyond a reasonable doubt that the Defendant engaged in said transactions or acts, if any, and even then, you may only consider said evidence for the following purposes: determining intent, identity, motive, opportunity, plan, preparation, or absence of mistake or accident, if it does; and for the purpose of determining the state of mind of the Defendant and the child, or the previous and subsequent relationship between the Defendant and the child, if any.
However, the trial court did not specifically give a § 8.07(b) instruction, which would have instructed the jury to assess guilt only with respect to the 2010 incident, when Mendoza was seventeen. Instead, the trial court gave the following instruction regarding proof of the date of the alleged offense:

You are instructed that the State is not required to prove the exact date alleged in the indictment, but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment. And the date of the presentment of the indictment in this cause was the 17th day of August of 2011.

Mendoza did not object to this instruction, request a § 8.07(b) instruction, or object to the lack of a § 8.07(b) instruction.
The jury found Mendoza guilty of aggravated sexual assault, and the court sentenced Mendoza to seventeen years’ confinement. Mendoza appealed the conviction, arguing that the trial judge had a sua sponte duty to include a § 8.07(b) limiting instruction, and that failure to do so caused him egregious harm sufficient to warrant a new trial. The court of appeals overruled Mendoza’s point of error and affirmed the trial court’s judgment.
II. Court of Appeals’ Opinion
The court of appeals concluded that the trial court erroneously omitted a § 8.07(b) limiting instruction. Despite reciting the correct standard articulated in Almanza v. State, (4) the lower court did not conduct the appropriate analysis. (5) The opinion does not reflect a full consideration of the four factors that, under the well-settled law, appellate courts should take into account in a jury-charge harm analysis. Instead, the court of appeals seemingly conducted a legal-sufficiency analysis, which is not the same as an Almanza analysis. (6) The opinion concludes in its penultimate paragraph that “[t]he evidence . . . was sufficient to allow reasonable jurors to find beyond a reasonable doubt that Mendoza committed the prior offenses.” (7) We granted review to examine the lower court’s harm analysis.

III. Standard of Review
Upon a finding of error in the jury charge, there are separate standards of review depending on whether the defendant timely objected to the jury instructions. (8) If the defendant timely objected to the jury instructions, then reversal is required if there was some harm to the defendant. (9) If the defendant did not timely object to the jury instructions, as is the case here, then reversal is required only if the error was so egregious and created such harm that the defendant did not have a fair an impartial trial. (10)
Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. (11) In examining the record to determine whether charge error is egregious, we consider: (1) the entirety of the jury charge itself, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. (12)Egregious harm is a difficult standard to meet and such a determination must be made on a case-by-case basis. (13) Neither party bears the burden on appeal to show harm or lack thereof under this standard. (14)

IV. Analysis

We conclude that a consideration of all relevant factors does not reveal the existence of egregious harm to Mendoza under the Almanza standard. The omission of a § 8.07(b) instruction did not affect the very basis of the case, deprive Mendoza of a valuable right, or vitally affect a defensive theory. (15)
A. The Jury Charge

In addition to the absence of a § 8.07(b) limiting instruction, Mendoza argues that the language of instruction four–that the State may prove the indicted offense to have been committed at any time before the presentment of the indictment–affirmatively authorizes the jury to convict based on the two incidents that occurred before Mendoza’s seventeenth birthday. We believe that the charge taken as a whole sufficiently directed the jury’s attention to the charged incident.
The court instructed the jury that Mendoza was charged with aggravated sexual assault alleged to have been committed on or about the 15th day of August, 2010. The charge made no mention of any other dates or incidents. The court instructed the jury that Mendoza was on trial solely for the charge contained in the indictment, which the jury was informed several times was only the final, 2010 incident. Furthermore, the charge included a limiting instruction that explained to the jury what function the evidence of the first two incidents should serve in its decision: evidence of acts other than those charged should be considered only for the permissible purposes under Rule of Evidence 404(b) and Code of Criminal Procedure article 38.37–proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (16) or state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child, (17) respectively. The court instructed the jury that Mendoza was guilty only if it believed beyond a reasonable doubt that he committed aggravated sexual assault on or about the 15th day of August, 2010. The court instructed the jury that its sole duty was to determine Mendoza’s guilt or innocence under the indictment in this case.
A defect in the jury instructions can be mitigated by the context in which it was presented. (18) While the trial court should have given a § 8.07(b) instruction, the charge as a whole focused the jury on the charged incident and appropriately directly the jury to limit its consideration of Mendoza’s prior conduct.

B. The State of the Evidence
The victim testified that Mendoza sexually assaulted her on three separate occasions over five years. She provided details at trial about the assaults, including the approximate dates, times, and words exchanged during the incidents. An exam conducted by a Sexual Assault Nurse Examiner on the victim revealed healed injuries consistent with the sexual abuse described. One of the incidents occurred in 2010, after Mendoza’s seventeenth birthday. Mendoza presented witnesses at trial who testified that he and the victim were never home alone. Mendoza testified and denied ever assaulting the victim. The jury found Mendoza guilty of the only charged count of aggravated sexual assault.
It is unlikely that the jury believed Mendoza to have sexually assaulted the victim on the first two occasions before he was seventeen, but disbelieved Mendoza to have sexually assaulted the victim on the third occasion after he was seventeen. (19) Mendoza’s position at trial was that none of the assaults occurred, rather than that the first two occurred but the last one did not. The jury would much more likely believe either that all of the assaults occurred or that none of the assaults occurred. Evidence of the first two incidents was properly admitted under Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure 38.37 as evidence for the jury to consider for the enumerated permissible purposes, including the relationship between Mendoza and the victim. (20) The jury could have found that the evidence of the first two incidents made it more likely that the third incident occurred, and the evidence of the first two incidents combined with all the other evidence presented in the case convinced it beyond a reasonable doubt that the third incident occurred.
Mendoza argues that the relatively graphic nature with which the victim described the first two incidents compared to the tamer nature with which the victim described the third might have led the jury to find that the first two incidents did occur, while finding that the third incident did not occur. An examination of the victim’s testimony reveals that all three incidents were described with equal amounts of detail. Moreover, the victim described the final attack at the beginning of her testimony, and then testified about the first and second attacks, drawing the focus of the direct examination to the third. Many of the victim’s answers to questions about the first and second incidents were that it “happened the same way” as it did in the final incident, rather than retelling the details.
There is no indication of egregious harm based on the state of the evidence. In addition to the jury’s probable understanding that it could only convict on the third incident, there is no indication that it disbelieved the victim’s testimony only regarding the third incident but inappropriately convicted on the first two incidents nonetheless.
C. Arguments of Counsel
Counsel for Mendoza was the first in closing arguments to bring up the testimony regarding the assaultive incidents that took place before Mendoza was seventeen. The defense attorney referred to all three of the incidents in the same manner and did not emphasize any one over the others. Similarly, the State spent approximately equal time discussing the three different incidents, grouping them all together for the purpose of arguing that they actually happened. The State did not encourage the jury to find Mendoza guilty based on the first two incidents, but instead focused on the last incident: “[h]e was 17 years old the last time this happened, 13 the first time, 16 the next time, 17 the last time. She was six, nine and ten. This is not child on child. This was a man, 17-year-old man on a ten-year-old girl.” The State’s focus on the final incident makes this factor weigh against egregious harm because it made clear to the jury on which incident it could determine guilt.

D. Other Relevant Information
Mendoza urges us to consider remarks by the State during jury selection that he believes weigh in favor of egregious harm. Specifically, Mendoza argues that “the prosecutor sought to distance himself from and downplay the ‘on or about’ language of the indictment” by saying “the law says that if a crime happened around a certain period of time and the jurors all believe that it was on or about this period of time, that’s good enough.” We fail to see how this correct statement of the law weighs in favor of egregious harm.
Moreover, the State during jury selection explained that only when a person is seventeen can he or she be charged as an adult in Texas. The State explained that crimes committed by a person under seventeen are handled in juvenile court. The State’s remarks made during jury selection weigh against egregious harm here because it was made clear to the jury that seventeen is the age after which individuals can be prosecuted in the district courts for crimes in Texas. The jury was made well aware that the first two incidents occurred before Mendoza was seventeen and that the third incident occurred after Mendoza turned seventeen.

V. Conclusion

Although we find that the court of appeals used an inappropriate harm analysis, we hold that it reached the correct conclusion. We hold that the erroneous omission of a § 8.07(b) instruction did not egregiously harm Mendoza. The court of appeals’ judgment is affirmed.

DELIVERED: June 18, 2014
DO NOT PUBLISH

1. See Tex. Penal Code § 8.07(b) (providing that “a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except an offense described by Subsections (a)(1)-(5)”).
2. Tex. R. Evid. 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”).
3. Tex. Crim. Proc. Code art. 38.37, § 1(b) (“Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of [a Chapter 21 offense] shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child.”).
4. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
5. Mendoza v. State, No. 11-12-00206-CR, 2013 WL 2642406, at *3 (Tex. App.–Eastland Jun. 6, 2013) (mem. op., not designated for publication).
6. Id. at *3-*4.
7. Id. at *4.
8. Almanza, 686 S.W.2d at 171.
9. Id.
10. Id.
11. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).
12. Gelinas v. State, 398 S.W.3d 703, 705-706 (Tex. Crim. App. 2013).
13. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
14. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
15. See Stuhler, 218 S.W.3d at 719.
16. Tex. R. Evid. 404(b)
17. Tex. Crim. Proc. Code art. 38.37
18. See Gelinas, 398 S.W.3d at 708-709.
19. See Taylor, 332 S.W.3d at 493.
20. See Tex. R. Evid. 404(b); see also Tex. Code Crim. Proc. art. 38.37.

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Ballard v, State; No. 11-13-00224-CR

Warrantless, Chapter 724 blood draw: “implied consent is not a recognized exception to the warrant requirement and that the State cannot rely on implied consent alone to justify a warrantless blood draw”
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Opinion filed July 31, 2014

In The Eleventh Court of Appeals
__________
No. 11-13-00224-CR
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THE STATE OF TEXAS, Appellant
V.
GARY MARK BALLARD, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR 41355

M E M O R A N D U M O P I N I O N
The grand jury indicted Gary Mark Ballard for the felony offense of driving while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2013). Appellee moved to suppress the results of his blood draw and argued that the officer illegally seized his blood. The trial court granted his motion to suppress. The State appeals the trial court’s ruling. We affirm.
In a single issue, the State contends that implied consent is a valid exception to the warrant requirement and, thus, because Appellee gave implied consent to a blood draw under Chapter 724 of the Texas Transportation Code, the trial court erred when it granted Appellee’s motion to suppress. Section 724.012 of the Texas Transportation Code provides that an officer “shall require the taking of a specimen of the person’s breath or blood . . . if the officer arrests the person for [DWI] and the person refuses the officer’s request to submit to the taking of a specimen voluntarily” and one of three circumstances are met. TEX. TRANSP. CODE ANN. § 724.012(b) (West 2011). The circumstance that is at issue in this case is that, “at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person” has been twice convicted of DWI. See id. § 724.012(b)(3)(B). Section 724.011 provides that, if a person is arrested for DWI, the person is deemed to have consented to the submission of a specimen of breath or blood for analysis in order to determine the alcohol concentration in the person’s body. Id. § 724.011.
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id.
In this case, the parties agreed to the underlying facts and further agreed that there was no additional exigency arising out of the underlying facts. The dispute between the parties was whether the United States Supreme Court’s ruling in Missouri v. McNeely, 133 S.Ct. 1552 (2013), affected the constitutionality of mandatory blood draws under Chapter 724 of the Texas Transportation Code.
The agreed findings of fact show that Appellee was driving in Midland when his pickup hydroplaned and left the roadway. Appellee’s pickup came to a stop after it hit a barbed wire fence. No one was injured in the accident. Officers came to the scene and noticed a strong odor of alcohol on Appellee’s breath. One of the officers administered several field sobriety tests. Based on Appellee’s performance, the officer concluded that Appellee should be placed under arrest for DWI. The officer determined that Appellee had been previously convicted of a “DWI second” and asked Appellee if he would consent to a blood draw. Appellee refused, and the officer transported him to the Midland County Detention Center where a medical technician drew his blood. The results of the blood draw showed that Appellee had a blood alcohol level of 0.246.
In addition to the agreed findings of fact, the trial court also found that the officer did not attempt to secure a warrant or make an effort to determine if a magistrate was available. The trial court further found that the blood draw was done without the presence of exigent circumstances and that the State did not present any circumstances that suggested the officer faced an emergency in which she could not practically obtain a warrant. The trial court stated in its supplemental conclusions of law that mandatory blood draws taken pursuant to Chapter 724 of the Texas Transportation Code are affected by the United States Supreme Court’s ruling in McNeely and that McNeely requires an officer to articulate exigent circumstances beyond the natural dissipation of alcohol in order to negate the warrant requirement. The trial court further stated that, although McNeely did not abrogate the applicable section of the Texas Transportation Code, the opinion also did not address whether blood taken pursuant to the statute was constitutional. The trial court concluded that warrantless blood specimens taken pursuant to Section 724.011 are in violation of the Fourth Amendment and are therefore unconstitutional and are properly excludable from evidence. The trial court concluded that the blood draw was an unreasonable search in violation of the Fourth Amendment and granted Appellee’s motion to suppress the evidence.
On appeal, the State argues that an accused’s implied consent, under the Texas mandatory blood draw statute, is a valid exception to the “warrant preference.” The State contends that an accused does not have the right to refuse to provide a specimen when an officer has probable cause to believe that the accused has committed a DWI and has already been twice convicted of DWI. Thus, the State asserts that implied consent is irrevocable in such situations.
Appellee argues that voluntary consent is a recognized exception to the warrant requirement, but that implied consent has not been recognized as a valid exception. Therefore, because Appellee refused to submit to a blood draw and because the State presented no exigent circumstances beyond the normal dissipation of alcohol, the State failed to show that the search was valid under the exigent circumstances or consent exceptions to the warrant requirement.
We agree with Appellee that implied consent is not a recognized exception to the warrant requirement and that the State cannot rely on implied consent alone to justify a warrantless blood draw under the Texas Transportation Code. In Forsyth v. State, No. 11-12-00198-CR (Tex. App.—Eastland July 31, 2014, no pet. h.), an opinion we are also handing down today, we held that implied consent is not a recognized exception to the warrant requirement, and we discussed in great detail our reasoning behind our holding. See also Weems v. State, No. 04-13-00366-CR, 2014 WL 2532299 (Tex. App.—San Antonio May 14, 2014, pet. filed)(holding that the implied consent and mandatory blood draw statutory scheme found in the Transportation Code is not an exception to the Fourth Amendment’s warrant requirement; warrantless blood draw must be based on a well-recognized exception to the Fourth Amendment); Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana Apr. 30, 2014, pet. filed) (mem. op., not designated for publication) (holding that officer violated defendant’s Fourth Amendment rights when he took defendant’s blood pursuant to Section 724.012(b)(3)(B) without a warrant or exigent circumstances); Reeder v. State, 428 S.W.3d 924 (Tex. App.—Texarkana 2014, pet. filed) (op. on reh’g) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated the Fourth Amendment in absence of warrant or exigent circumstances); Sutherland v. State, No. 07-12-00289-CR, 2014 WL 1370118 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (holding warrantless blood draw pursuant to repeat offender provision of implied consent statute violated Fourth Amendment’s warrant requirement in the absence of warrant or exigent circumstances or the suspect’s consent); State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150 (Tex. App.—Corpus Christi Jan. 23, 2014, pet. granted) (holding repeat offender provision of the mandatory blood draw law did not constitute an exception to the Fourth Amendment’s warrant requirement).
Therefore, based on our reasoning and holding in Forsyth that implied consent is not a valid exception to the warrant requirement and because the State failed to show that there were exigent circumstances beyond the normal dissipation of alcohol, that Appellee voluntarily consented to the blood draw, or that any other valid exception to the warrant requirement applied in this case, we hold that the trial court did not err when it granted Appellee’s motion to suppress. We overrule the State’s sole issue on appeal.
We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE
July 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

The text of this decision is from the appellate court’s website, copied on the date of posting. I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.