About Me

My Photo

Joe's Dad and Brenda's Husband.

Sunday, May 1, 2016

Objection re Right to Trial Counsel in Proceeding Must Be Asserted to Overturn Judgment

Darcy v. State, No. PD-1094-15 (Tex. Crim. App. Apr. 27, 2016)  (Keller, P.J. writing for Keasler, Hervey, Alcala, Richardson, and Yeary, JJ.) Meyers, J., filed a concurring
opinion. Johnson, J., filed a concurring opinion. Newell, J., concurred. (no pet. h.).
During the trial of this case, defense counsel learned about a possible right-to-counsel violation that occurred before trial. Evidence involving and relating to the alleged violation was admitted at trial, but counsel did not complain until appeal. The court of appeals reversed appellant’s conviction without considering preservation of error. We conclude that the court of appeals erred in failing to address preservation of error, and we hold that appellant forfeited his complaints by failing to raise them at trial.
 The State suspected that unauthorized messages were being smuggled into and out of the jail. As part of his investigation, Christopher Earl Darcy's friend Rebecca Morris was asked to write a note to him and pass it to the jail cook, which she did.
 Morris testified for the State at trial.. During cross-examination, defense counsel produced the note that she had written to Darcy and had her read it. The prosecutor does not object. The trial court and defense counsel clarified that defense counsel was not offering the note into evidence. The prosecutor then said that the State would offer the note into evidence. Defense did not object. The note is admitted into evidence. On redirect, the Morris says that she was asked to write the note by an d.a.'s investigator, that the note was merely a ruse, designed to determine whether a message would get through to appellant while he was residing in the county jail. On further cross-examination, defense counsel questioned Morris-- note had not turned up until trial day and that he himself did not know how it got here.” No objection to note's admission nor any related testimony.
On appeal, Darcy complained about the State causing the note to be written and sent to him. Court of appeals said that jail smuggling investigation made appellant look like a criminal and harmed him., The court of appeals reversed the trial court and remanded. CCA said tthat it had held that the right to counsel at a critical stage of trial is a waivable-only right,  and that Darcy failed to raise any complaint to the trial court with respect to Morris’s note and sought relief for the first time on appeal. He has failed to preserve error. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Wednesday, April 27, 2016

Cross Appeals

As to Texas civil cases, if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.
The leading Texas criminal case on cross-appeals is Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012). It taught an appellate court's jurisdiction is invoked by the timely filing of a notice of appeal. And that the proper notice of appeal vests Texas appellate courts with a broad scope of review and revision over a criminal case. Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. For example, appellate courts may review unassigned error—a claim that was preserved in the trial court but was not raised by either party on appeal. Pfeiffer quoted Carter v. State656 S.W.2d 468 (Tex. Crim. App. 1983) that quoted an even older case from the Texas republic that there is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record. Thus, when a defendant appeals a conviction, the courts of appeals have the jurisdiction to address any error in that case, including the State. When a defendant appealed his conviction, the entire case was subject to review, and the State could raise its claim of an illegal sentence without filing any notice of appeal.


Saturday, April 23, 2016

One Court, Half the Work

When I was reading the list of Released Orders and Opinion for Thursday, April 22, 2016 for Beaumont's Ninth Court of Appeals, I had a sense of looking through a telescope from the wrong end. It was a civil, rather than a criminal, day for the Neches Niners (Here's a photo of the court as a ship runs up the river.). Of the seven civil decisions announced that day, three of them were appeals from Montgomery County's 284th Judicial District Court, Honorable Cara Wood presiding,
 which is not so weird when you consider that her court is the only civil-only district court in the largest county of the territory of the Ninth Court of the appeals. My experience with Judge Wood is that she is businesslike, right-of-center, and rules on the facts and the law. Those unfamiliar with my Montgomery County might think that ruling on the facts and the law is unremarkable, but, historically, it is not. Judging is getting better in the county, but in the past it has been bad.
Thursday's first 284th Court decision is American Express Centurion Bank v. Haryanto. Haryanto, a Singaporean citizen, got a credit card from a Utah bank, using his mother's Montgomery County, Texas address. It doesn't appear that Haryanto ever told the bank that he was Singaporean. When the bank sues for an unpaid balance, Haryanto attacks the jurisdiction of the Texas court.
This area of the law has traditionally developed to protect businesses of national scope from being subject to suit in every one-horse town in the Union, and there is plenty of authority that one-off mail-order dealings are insufficient to subject the business to suit at the customer's address. I bet Judge Wood followed this authority.
Though the bank has no connection to Texas, Beaumont says that Haryanto's use of a Texas address to get the account and Haryanto's failure to ever tell the bank about his true residence sufficed to subject him to the jurisdiction of a Montgomery County Texas court to collect the debt, Beaumont reversed the trial court and remanded the case.
The sad subtext of Haryanto is "C'mon, this minimum contacts stuff is not for Singaporean con men to stiff American Express. To hell with case law. Get with the program, Judge Wood."
In decision two-- Khan v. Chaudry-- Beaumont supports Judge Wood's turnover order against Khan. I nominate Khan for Mr. Vexatious Litigation 2014-2016, a guy who will not take no for an answer. This is Khan's sixth original proceeding fighting Chaudry's judgment against him.
The third 284th case is Hegelskaer v. Texas Department of Transportation. TexDOT was working on a two-lane road, one lane at a time, with radio-connected flaggers allowing traffic first one direction than the other. Taking a turn, Hegelskaer, a bicyclist, is surprised by a truck heading toward her, and is injured. Her lawyer thinks of every way possible to argue around sovereign immunity, but in the end Judge Wood rules against her without prejudice. This is the ordinary way to rule on a case ended because of  a lack of needed language in a pleading. If the plaintiff's lawyer can think of a way to plead the case successfully before the statute of limitations runs, that lawyer can make another effort. Hegelskaer appeals, and Beaumont affirms, but TexDOT cross-appeals that the judgment, saying that the case should have been disposed of with prejudice, that is, there should have been no further change to replead later. Beaumont modifies the judgment so that it is with prejudice. 
The court of appeals kills the case dead no matter what Hegelskaer's lawyer thinks of later, and Wood's judgment is changed. I don't think Judge Wood "gets no respect, no respect at all," but she doesn't get enough.





Monday, April 18, 2016

Ineffective Assistance of Counsel

Today's subject is the ineffective assistance of counsel.

Strickland v. Washington, 466 U.S. 668 (1984) holds that the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Justices fear that if it is too easy for assistance of counsel to be ineffective, any trial error by a defense lawyer could be a get-out-of-jail-free card for a violent felon (Notwithstanding that ineffective-assistance-of-counsel practically always result in new trials rather than rendered not-guilty verdicts.). The opinion has a non-exhaustive, incomplete list of things effective counsel might want to do at a trial:
  • consult with the client in an overnight trial recess,
  • give a summation in a bench trial,
  • call the defendant as a witness other than the first one, or
  • directly examine the defendant.
An attorney might cause the client to have ineffective assistance if the lawyer is in a conflict of interest with the client.

Washington claimed ineffective assistance in his Florida capital sentencing proceeding. SCOTUS said the effective assistance requirement applied to such a proceeding.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

Counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

A state court's finding of effective assistance of counsel is not binding on a federal court.

Thursday, April 14, 2016

Property Taxation of Part of a Unitized Oil Pool

The 20th and 21st-century history of Texas is the history of Texas oil. Spindletop, the first Texas oil well, was in what is now the Ninth Supreme Judicial District (For ease of explanation, I'm going to call all liquid or gas petroleums oil. Understand, though, that the natural gas follows the same rules as crude oil.).So, what oil is whose? The first rule of oil ownership is the rule of capture, that is, if you drill your land and oil comes out, that oil is yours. For a dramatic, graphic, and horrifying historical tale of the oil business during the days of the rule of capture see the film There Will Be Blood. Or, if you're in a hurry-- watch this:
The State can require all the landowners above a common pool of oil to unitize their interests such that anyone taking out of the pool owes a pro rata share to the others for taking oil out of the pool.
So the question that was put to Justices Charles Kreger, Hollis Horton, and Leanne Johnson was how much of a unitized oil field could a city apply property tax to? Ms. X's surface plot under which her mineral interest exists which is wholly within the city limits is clearly taxable. Mr. Y's surface plot under which his mineral interest exists is partially within and partially without the city limits. His surface interest is clearly taxable to the extent it is in the city limits and not, to the extent which it is not. The mineral royalties are coming out of a unitized pool partly in, and partly without the city limits. How much of the mineral estate is taxable? Ms. Z whose land is wholly without the city limits but who is drawing from a unitized pool partly in and partly out of the city limits breathes firey imprecations when the city delivers her a tax bill.
In this case, named on appeal  Hader v. Jefferson County Appraisal District, the Manions (Mrs. Hader was a Manion.) owned land outside of Beaumont, part of which had been unitized into a pool which was mostly in Beaumont. Each set of parties filed a motion for summary judgment in the trial court. The Appraisal District moved for a judgment holding that to the extent the pool was in Beaumont, the Manions owed property tax for that part of the pool even though their surface estate was in no way in Beaumont. The Manions moved for judgment that they owed Beaumont nothing, since all their land was outside of Beaumont. None of the parties attached any of the relevant mineral deeds to their motions. The trial court generally found for the Appraisal District and refused judgment for the Manions. The Manions appealed, and, in an opinion written by Justice Horton, the Court of Appeals reversed the judgment and remanded it to the trial court for further consideration.
The Justices observed that pooling agreements could be written two ways: (1) the agreement could effect a cross-conveyance of interests between all the pool members, or (2) the agreement could be written not to cross-convey interests. The pooling agreement was not before the trial court-- if it was a cross-conveyance agreement, the Manions' case is weaker than if the agreement does not cross-convey interests. The appeals court further ruled that the Manions were not barred from their tax attack on the ground that they had accepted benefits from the pool because they had consistently fought getting taxed on their mineral- generally the Manions had not waived their rights. It also ruled that two of the Manions' failure to pay their assessments before bringing suit, did not eliminate their rights to attack their assessment. Those two did not pay; their defense was that they were being charged Beaumont taxes when they had no surface estate in Beaumont at all-- the appeals court cited a case in which a person challenged a tax assessment without paying because he claimed not to own the property. It appears that in a case where tax is assessed on land clearly within the relevant jurisdiction and the taxpayer clearly owns relevant property, the dispute is only about the amount of taxes to be paid, and such taxpayers have to pay their assessments before challenging them.
Hader v. Jefferson County Appraisal District, No. 9-14-00311 CV, (Tex. App.--Beaumont, Apr. 14, 2016)(no pet. h.)

Saturday, April 9, 2016

Ripeness, Mootness, and Capability of Repetition Yet Evading Review

Some courts have a duty to decide every case brought before them that properly invoke their subject matter jurisdiction and their territorial jurisdiction. In Texas state courts, these would be municipal courts, small claims court, justice-of-the-peace courts, county courts themselves or, where they are substituted for by county courts-at-law, county-courts-at-law, state district courts, and courts of appeals. In the U.S. federal system, the courts are bankruptcy courts, U.S. district courts and U.S. circuit courts of appeals.
A long-standing principle of Anglo-American or common law is that a court does not give advisory opinions.  A good effect of  such a rule-- likely the original reason for it-- is that deciding a case arising from particular facts is much easier than deciding a case on the basis of  pure abstractions. Compare how much trouble philosophers have with reasoning about questions for which legal reasoning is nowhere near as complicated. A bad effect of this rule is that one often cannot challenge the propriety or constitutionality of a law without violating it, and then urging the impropriety or unconstitutionality as a defense to being punished. That one must risk punishment to challenge a statute, regulation or practice, makes people less inclined to challenge the interpretations of statutes, regulations, or practices of those with power.
This rule appears to have at least two apparent exceptions. The first is the remedy of declaratory judgment. In such a situation, someone asks a court to make a declaration which another party opposes. This form of relief appears to have been urged on legislatures by insurance companies to allow insurers to sue as plaintiffs rather than having to wait for the plaintiff or plaintiffs to sue the companies as defendants. If a declaratory judgment does not decide a live controversy, such as whether an insurer must provide a legal defense for its insured, the suit is not allowed. It can't be used to decide a tax dispute or a criminal law dispute. So this exception to the rule is more apparent than real. The second apparent exception is certified question practice. The Texas constitution provides that the Texas Supreme Court may, but does not have to, answer a question of law put to it by a federal appeals court. In civil disputes in which the amount in controversy is not small that come before a federal court because none of the plaintiffs come from the same state as any of the defendants, the federal court is supposed to use state law rather than federal law to decide the case. So far, so good, but what is a federal court to do when there is no state case showing what state law is?  Generally, the federal court has to make an educated guess as to what the state law would be. Unfortunately, it is possible that the federal court follows one doctrine, and later on, the state courts follow a different one. Certified question practice allows a federal appeals court to ask the Texas Supreme Court what the answer is. The feds can ask, but the Texas Supremes don't have to answer. When they don't answer, SCOTX makes the effort to get the ruling a waste of money and effort. Still, before the state constitutional amendment, SCOTX had ruled that answering a certified question was improper because the answer would be an advisory opinion. Notice, though, that a certified question grows out of a live dispute in the federal court, and the facts in that case can aid the state court by giving facts to the dispute, that an abstract question does not have.
A court can refuse to hear a case when the parties are going to have a have a dispute, but have not had the dispute yet or that important facts about the dispute are not presently known. Such a case is said to be unripe.
A court may also refuse where circumstances have left nothing to be corrected in an old dispute. For example, two parties may dispute ownership of property on the bank of a river, If the river floods, and the disputed land is washed away to the sea, no property ownership question may be left. Such a case is moot.
You might ask, how can the United States Supreme Court decide cases such as abortion cases, since gestation generally takes nine months, but hardly any case can get through trial, court-of-appeals review, and Supreme-Court review in less than nine months? It can because such situations are subject to repetition, but evade review. In the famous or infamous Roe v. Wade case, that the plaintiff had had an abortion in another state as to the abortion she sought in Texas, but was still capable of future pregnancies, that capability for future pregnancies gave her enough of a continuing interest in the matter to keep up her suit.


Tuesday, April 5, 2016

Texas Indigents Freed from Paying Court Costs in Their Divorces

Poor people should not be oppressed by costs imposed by courts. The federal Justice Department thinks so. As to attorneys' fees for services rendered to paupers, San Antonio's Fourth Court of Appeals agrees. The estimable Jani Maselli Woods believes so. E.g. Peraza v. State, 457 S.W.3d 134, (Tex. App.-- Houston [1st Dist.], Dec. 4, 2014)  reversed at 467 S.W.3d 508, (July 01, 2015).
The Texas Supreme Court joins them as to filing fees for civil suits filed with uncontested pauper's oaths. The case is Campbell v. Wilder, No. 14–0379, 2016 WL 1267876 (Tex., Apr. 1, 2016) (Hecht, C.J.) (slip op.) (Lehrmann, J. not sitting).
Seven people-- Campbell along with six others--  who got divorced for free by filing uncontested affidavits of indigency, also known as pauper's oaths, under Texas Rule of Civil Procedure 145 got cost bills from Tarrant County District Clerk Thomas A. Wilder. Those bills were in amounts around $300 and threatened that if they were not paid, the sheriff would take property in lieu of the money.
The Texas Advocacy Project objected as to some of the plaintiffs. Wilder said he was bound by the decrees saying that each party had to pay their own costs and that the unhappy indigents should return to court and have the cost charges altered.
Plaintiffs sued in Tarrant County's 17th Judicial District Court, which had made none of the divorce decrees for injunctive relief, inter alia.  After a hearing, it found that the
District Clerk:

" . . . has a policy, practice, and procedure that his office will seek to collect costs against
parties who have filed an affidavit on [sic] indigency under Tex. R. Civ. P. 145 where the
affidavit was not contested, where the contest was denied, or where the contest was
withdrawn based on judgments or final orders in which there was no specific finding
expressly stated in the judgment or final order that the indigent party’s action resulted
in a monetary award, and no specific finding expressly stated in the judgment or final

order that there was sufficient monetary award to reimburse costs[.]"


The Second Court of Appeals, the one in Fort Worth, poured the plaintiffs out for lack of jurisdiction in a divided opinion. The Austin Supremes took it up and some prominent appellate lawyers joined the team for the plaintiffs, e.g. former Texas Supreme Court Chief Justice Wallace Jefferson.

The Texas Supremes overruled Evans v. Pringle, 643 S.W.2d 116 (Tex. 1982) (per curiam), holding that the 17th District Court's injunction affecting other trial courts' judgments was allowable.

They also quoted the Tex. R. Civ. P. 145 that the affidavit of indigency was in lieu of costs. That is, once the time for challenging the affidavit of indigency passed-- there were not any costs for that party in the case, and that family courts were freer to assign costs than other civil courts were, made no basis for indigents to incur court costs.
 
Thoughts on this case:

As to indigents lacking liability to pay court fees, this decision appears to comport with the plain language of Rule 145. For a prince of the GOP to ignore the letter of the law to take the property of poor people named Odell, Shaunta, and Tairhonda sickens people with sensitivity, who are also known as swing voters.