About Me

My Photo

Joe's Dad and Brenda's Husband.

Thursday, March 20, 2014

Can't Charge a Stone Broke Defendant Attorneys' Fees

After having been convicted of two count of possession of a controlled substance with intent to deliver, Ruben Ramirez had two complaints:
  1. that the evidence in his case should have been suppressed and
  2. that he should not have been charged fees for the lawyer appointed for him as a indigent.
The Fourth Court of Appeals in San Antonio disposed of the first complaint quickly-- no reason to suppress drugs from a place Ramirez
  1. didn't have a possessory interest in,
  2. didn't have a right to be in,
  3. didn't control and have the right to keep other people out of,
  4. didn't take any normal precautions to protect his privacy,
  5. didn't put to any private use, and 
  6. didn't have a claim of privacy consistent with historical notions of privacy.
The second claim seemed a little harder. Ramirez filed an affidavit of indigency-- a pauper's oath-- at trial. There never was a finding that he his status changed. Tex. Code Crim. Proc. 25.06(g) says that attorneys' fees may only be charged to a person who has some capacity to pay, which is not Ramirez.
Justice Marialyn Barnard, writing for a panel that also included Chief Justice Catherine Stone and Justice Patricia O. Alvarez, affirmed the trial court's judgment after modifying by getting rid of the attorneys' fee judgment.

Wednesday, March 19, 2014

Poetical Reflection on Some of the Oral Argument Cases before the Texas Court of Criminal Appeals Today

There was a old woman of Natchez,
Ran a house where girls rented their snatches
The State did not claim,
That the writ— it was lame;
Habeas should have failed because of laches.

Saturday, March 1, 2014

Can Texas state criminal defendants appear without lawyers in appellate courts?

I have come to believe that Texas state criminal defendants have a state constitutional right to appeal pro se. Martinez v. Court of Appeal of Calif. 528 U.S. 152 (2000) says that there is no federal constitutional right to appeal pro se, but that a state constitution may create such a right. Article 1, section 10 of the Texas Constitution provides that a defendant may be heard by counsel or without. Its language does not distinguish between trial and appeal on this point.  In Ex parte Thomas, 906 S.W.2d 22, 24 (1995), among other cases,  the Texas Court of Criminal Appeals recognized a right to self-representation on appeal. Sickles v. State, 170 S.W.3d 298, 299 (Tex. App-- Waco 2006 pet. ref'd) finds a statutory right to self-representation on appeal in Vernon's Ann.Texas C.C.P. art. 1.051(f, g). The only Court of Appeal that joins Waco is El Paso-- Marion v. State, 936 S.W.2d 5, 6 (1996 no pet.). Four courts of appeal have held that no pro se right to appeal exists, and this is the majority view (See Chief Justice Gray's dissent in Sickles.): First Court of Appeals- Cormier v. State, 85 S.W.3d 496 (Houston 2002 no pet.), Sixth- Stafford v. State63 S.W.3d 502, 506 (Texarkana 2001 pet ref'd) (per curiam), Thirteenth- Crawford v. State, 136 S.W.3d 417 (Corpus Christi-Edinburg 2002) (on interlocutory motions), and the Fourteenth- Thomas v. State, 286 S.W.3d 109 (Houston 2009 pet. ref'd). Beaumont appears to have never ruled on such an issue. My conclusion is that the state constitution appears to support such a right; CCA has said there is one; El Paso recognizes one, and Waco has found a well reasoned statutory basis for one. The argument can be made that there is no such right because one could argue Thomas has been effectively overruled by Martinez and that the Courts of Appeal are lined up 4-2 against it, and that the Court of Criminal Appeals has consistently held that the state constitution does not provide any criminal defense rights in addition to federal rights.

Tuesday, February 11, 2014

If You Mail Your Notice of Appeal Timely, and It Gets to the Trial Court Clerk Less than 10 Days after the Deadline, That's Good Enough..

You invoke the jurisdiction of a Texas state appeals court by filing a notice of appeal in the trial court whose ruling or judgment you are unhappy with. If a notice of appeal is sent to the appeals court clerk by mistake, the clerk is supposed to send it to the proper trial court clerk. Texas Rule of Appellate Procedure 9.2(b)(1) is that "[a] document received within ten days after the filing deadline is considered timely filed if:
(A) it was sent to the proper clerk by United States Postal Service or a commercial delivery service;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail or delivered to a commercial delivery service on or before the last day for filing."
Prisoner Henry Earl Taylor caught a criminal judgment that he didn't want on November 18, 2010. He didn't file a motion for new trial so his notice of appeal was due 30 days later: December 18, 2010.  December 18, 2010 was a Saturday, so Taylor had till Monday December 20, 2010. The Clerk of the First Court of Appeals in Houston stamped a undated, handwritten notice of appeal December 21, 2010.  The trial court clerk stamped the notice of appeal as received on December 27, 2010. A panel of First Court Justices Laura Carter Higley, Jim Sharp, and Rebecca Huddle wrote a not-for-publication per curiam memorandum opinion that said that the record did not have an envelope nor a certificate of service for the notice. They said that Taylor's appellate counsel had not argued that the filing was timely, but that the First had given permission for the notice to be late in an October ruling. When Taylor himself finally urged that he had mailed timely and that the notice had been received timely, the panel said that he had not because he had not sent it to the proper clerk, properly addressed and stamped and that there was no proof that he had placed it in an envelope or wrapper. It dismissed the appeal. Texas Court of Criminal Appeals Judge Elsa Alcala, writing an opinion for a majority including Judges Lawrence E. Meyers, Tom Price, Cheryl Johnson, Barbara Parker Hervey, and Cathy Cochran, overruled the panel " . . .because the rules of appellate procedure required the clerk of the court of appeals to forward appellant’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established under the mailbox rule, appellant’s apparent mistake in sending his notice of appeal to the court of appeals instead of to the district-court clerk was, at most, a harmless procedural defect that did not render the notice of appeal untimely."
Presiding Judge Sharon Keller's dissent, joined by Judge Michael E. Keasler, appears to me to be well reasoned. She argues that the majority does not address Houston's point-- that there is no proof that the notice was enveloped and mailed straight to any clerk, even if one agrees with Taylor that his mailbox drop and the trial court's eventual receipt less than ten days was timely. Judge Paul Womack dissented without opinion.
This case reminds me of September's Cortez case in which the CCA reversed Amarillo's Seventh Court of Appeals for what the high judges took to be a cheesy dismissal.
The State of Texas is in the process of gradually switching from paper filing to electronic filing, though there are no present plans to ever make unrepresented prisoner litigants file electronically, Electronic filing will minimize the cases in which these mailbox rules will be relevant.
Henry Earl Taylor v. State of Texas, No.PD-0180-13, (Tex. Crim. App., Feb. 5, 2014) (slip op.)
Hat tip to the learned, charming, and extremely plain-spoken Jim Skelton and his Criminal Law Institute, which I recommend highly.
  

Tuesday, January 21, 2014

I Have Corrected Mistakes.

1. I had the wrong Richard Davis in a post day-before-yesterday.
2. David C. Newell was a teaching assistant teaching legal writing at UT, not any kind of professor.
Both posts have been updated with corrections.

Sunday, January 19, 2014

If Two Candidates Run Without Websites, Will Bloggers Ever Learn about Them?- Fourteenth Court of Appeals

New Houston Fourteenth Court of Appeals Republican Justice Ken Wise has drawn a Democrat challenger, Gordon Goodman. Justice Wise was a commercial litigator before getting to be a trial court judge and then being appointed by Governor Rick Perry to the Fourteenth. He appears not to have a campaign web site up yet. Goodman does not have a campaign web site either. Goodman appears to be an 36-year lawyer who has been working as an oil executive and volunteers with University of Houston.

Three Republicans Line up to Challenge Jim Sharp for his Seat in Houston's First Court of Appeals

We've blogged before about Houston First Court of Appeals Justice Jim Sharp's problem with the Judicial Conduct Commission.


 He's a Democrat. He was a solo general practitioner. He's not a particularly bad guy, as Democrats go, and as handsome as a movie actor. The GOP apparently smells blood in the water since three people are competing for the chance to challenge him in the general election:

  • Chad Bridges is head of the Family Violence Division of the Fort Bend County District Attorney's Office. Before that he was First Assistant to the Waller County D.A., and before that, he worked in the Post-Conviction Writ Section of the Appellate Division of the Harris County District Attorney's Office. He was honored by the Crime Victims Response Team of Fort Bend County. He and his wife Claudia are active in the Pecan Grove Gators of the Fort Bend Youth Football League. He was formerly a peace officer and serves on a State Bar Unauthorized Practice of Law Committee. His web site lists important appellate matters he has handled and trials that he has done, which we always like. Apparently a Brookshire resident, he also has the finest looking crew cut I've seen since the '60's.
  • Dan Linebaugh, a Baytown small firm lawyer, board certified in personal injury law by the Texas Board of Legal Specialization and in civil trial law by the National Board of Trial Advocacy. He won awards in moot court and mock trial with his work in the excellent South Texas College of Law advocacy program. There's a lot missing here because I could find hardly any campaign information about him conveniently.
  • Russell Lloyd was a civil district judge in Harris County in the late '80s and in the '90s, before he got washed out in the Great Blue Wave back then. I don't remember him as an especially good or bad judge back at that time, though then, a little more than now, civil plaintiffs' lawyers were generally treated by the civil bench as loathsome. An Eagle Scout, he was an Air Force veteran, then was an Airborne Ranger in the Army National Guard, and then later a member of the Judge Advocate General's Corps there. As a law student he was executive editor of the American Journal of Criminal Law. He was an Assistant Scoutmaster. He is a life member of the National Rifle Association and has volunteered with the Houston Humane Society. He has been a super-Republican for many, many years- to give you samples of everything that he has done would swamp this part of the post. He's an amateur musician and member of the big Episcopal church in River Oaks. After he was turned off the bench, he has been working on plaintiffs' side with John O'Quinn and had such an unhappy client that he was sued for legal malpractice, but the case was dismissed. He's been married 30 years to attorney Mary Lloyd, and the two of them have two kids, each of whom are lawyers. I think that he has done great service to the Republican Party, that he was not hateful from the trial bench as so many of his colleagues were, that he is highly intelligent and diligent, though maybe more as a politician than a jurist. He's done a very great deal over the decades. Out of all the great multitudes of things that he has done, only one has been seriously questioned and that complaint was eventually dismissed. Seventeen years ago the Texas Supreme Court chose him out of all the state district court judges in the state to try a lawyer discipline case; that's not a job a chump gets.
Justice Sharp is good-looking. Judge Lloyd looks wonderful in his (old)  photo, but we still have to give the palm for great hair to Chad Bridges.