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Joe's Dad and Bonny's Brother.

Thursday, July 21, 2016

All the Time in the World to Claim this Error

Many's the post in this blog that has emphasized the importance of preserving error before you can get it reversed in an appeals court. Texas Rule of Appellate Procedure 33. That is, generally, you must clearly inform the trial judge as to what your complaint is in time for the judge to correct the error. And if you do not do so, you cannot complain of the error on appeal. There is one huge exception to this rule, and that is a complaint that a court lacks subject-matter jurisdiction. We've already discussed the importance of making sure that the court you want to appeal to has subject-matter jurisdiction of your case. , a complaint you can make at any time up to the mandate's becoming final--even then, a habeas corpus writ complaining of it would likely prevail. The same principle applies to if it the trial court that lacked jurisdiction.

There is a story about this point of law. I believe it to be apocryphal.

 As a general rule, the people who have been arrested in the last 24 hours are brought before a judge, usually called a magistrate,

  • One job of the magistrate is to listen to one or more prosecutors explain why the State believes the accused probably committed an offence and what offence the State believes it is. This is practically always a pure formality. An arresting officer gets approval to arrest and a designated charge from talking with a prosecutor from the scene of the arrest over radiophone.
  • The magistrate also reads the accused his or her rights again.
  • Magistrate sets bond or makes a finding that no bond will be set.
  • Magistrate asks the accused if he or she claims to be indigent, and, if so, sets up the process for the accused to be interviewed to determine whether or not the accused is eligible for counsel to be appointed at no charge to the accused.
The accused who show up are often a motley crew, often in clothes not washed in days, many of them still drunk from the night before, many marked with the wounds of barroom battles or forceful arrests. And on this particular morning, there are one particularly, loud, obstreperous drunken man. He wouldn't follow the deputies' directions, and he yelled during other peoples' proceedings, and he started scuffles with the other accused people. Finally, the judge,whose main duties involved holding traffic court,  had had enough. He had the bailiffs bring this guy in front of the bench, where, upon hearing of what the man had done the night before--being publically intoxicated somewhere-- the judge pronounced upon him the death penalty, which subdued the fellow, head still spinning from a night of Thunderbird wine.

This is a joke. The trial judge would not have pursued the punishment he pronounced. But the lawyer for the anti-social Thunderbird person's complaint that the court did not have subject-matter jurisdiction for the judgment, could never be held to be too late as long as the accused was still alive.






Monday, July 18, 2016

Texas State Criminal Appellate Court Costs

In a criminal appellate court proceeding, except in cases in which a presumption of indigence has been established as provided by Rule 20.1(a)(3), a petitioner must file an affidavit of indigence in the court in which the proceeding is filed, with or before the document seeking relief. A respondent who requests preparation of a record in connection with an appellate court proceeding must file an affidavit of indigence in the appellate court within 15 days after the date when the respondent requests preparation of the record, except in cases in which a presumption of indigence has been established as provided by Rule 20.1(a)(3).
When written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed, the trial court clerk must prepare and certify the clerk’s record and, if the appellant requests, the court reporter must prepare and certify a reporter’s record.[1]
The court may make an appropriate order relating to costs, whether allowing costs and fixing the amount, or allowing no costs.[2]



[1] Tex. R. App. P. 31.1
[2] Id.

Monday, July 11, 2016

Getting an Appellant's Reporter's Record-- Poor or Rich

Within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge.[1] If after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings.[2] When the court certifies that the appellate record has been furnished to the appellant, the reporter must be paid from the general funds of the county in which the offense was committed, in the amount set by the trial court.[3]

Wednesday, July 6, 2016

Required Changes in Texas Criminal Law Filings Beginning July 1, 2017

Electronic filing is already required in the Texas Court of Criminal Appeals and Texas Courts of Appeal for parties represented by lawyers under Texas Rule of Appellate Procedure 9.2(c)(1) and (2). Now it's going to be required in district courts, county-courts-at-law, and constitutional county courts for those represented by lawyers.

(What's the difference between a county-court-at-law and a constitutional county court you ask? The Texas Constitution sets up a default, skeleton set of county offices-- the minimum needed, and then the legislature can establish extra offices for those counties big enough to need them. In large counties, even ones as small as my Montgomery County, the title of the chief executive of the county is County Judge. The county legislature, which also has a number of executive powers, is called the County Commissioners' Court, which the County Judge presides over, but the County Judge doesn't hold a judicial court or preside over any true judicial proceedings. The judicial powers of the County Judge in such a county are reposed in one or more county-courts-at-law established by the legislature. Montgomery County has five; Harris County-- the largest-- has 20-- 16 criminal and four civil-- and additionally, four probate courts-- which have a mix of county-court-at-law powers and state district court powers.  In a tiny rural county, like Matagorda County where I used to live, the County Judge actually has judicial powers as well, holding court about some civil matters and also holding court on misdemeanors and also hearing cases appealed from justice courts, municipal courts and small claims courts, the latter three courts being the lowest level courts in the state. The buildings and the judges and the court staff for justice courts are the same as for small claims courts.)

Electronic filing will be mandatory in criminal cases in the district courts, statutory county courts, and constitutional county courts according to this schedule based  upon  the  counties'  2010  Federal  Census population:

a.      Courts in counties with a population of 500,000 or more- July  1,  2017
b.      Courts in counties with a population of 200,000 to 499,999 - January 1, 2018
c.      Courts in counties with a population of 100,000 to 199,999 - July 1, 2018
d.     Courts in counties with a population of 50,000 to 99,999- January 1, 2019
e.      Courts in counties with a population of 20,000 to 49,999 - July 1, 2019
f.       Courts in counties with a population of less than 20,000 - January 1, 2020

Municipal courts and justice courts will not have to change, except that if they accept any electronic filing they have to follow the rules that the higher courts use (Small claims court has no criminal jurisdiction.).

Pro se litigants will still be able to use paper. Some of them will be on the wrong side of the digital divide. Other are locked up and authorities don't want to give those people access to internet-enabled computers.

Monday, July 4, 2016

Introduction to Texas State Civil Appellate Costs

The default rule of Texas state civil appellate costs—— is that a party who is not excused by statute or the Texas rules of appellate procedure from paying costs must pay — at the time an item is presented for filing — whatever fees are required by statute or Supreme Court order.[1]  Who doesn’t pay costs? Two main groups— the State or other government agencies and indigents, about which latter group we’ll have a lot to say about later. In a civil case, the court of appeals’ judgment should award to the prevailing party the appellate costs — including preparation costs for the clerk’s record and the reporter’s record — that were incurred by that party.[2] But the court of appeals may tax costs otherwise as required by law or for good cause.[3] The appellate clerk must prepare, and send to the trial court clerk with the mandate, a statement of costs showing the preparation costs for the appellate record, and any court of appeals filing fees, with a notation of those items that have been paid and those that are owing; and the party or parties against whom costs have been adjudged.[4] When the trial court clerk receives the mandate, the appellate court’s judgment must be enforced.[5] Appellate court costs must be included with the trial court costs in any process to enforce the judgment.[6] If all or part of the costs are collected, the trial court clerk must immediately remit to the appellate court clerk any amount due to that clerk.[7]
The Supreme Court clerk will prepare, and send to the clerk to whom the mandate is directed, a statement of costs showing: (a) the costs that were incurred in the Supreme Court, with a notation of those items that have been paid and those that are owing; and (b) the party or parties against whom costs have been adjudged.[8] If the Supreme Court renders judgment, the trial court need not make any further order.[9] Upon receiving the Supreme Court's mandate, the trial court clerk must proceed to enforce the judgment of the Supreme Court's as in any other case.[10] Appellate court costs must be included with the trial court costs in any process to enforce the judgment.[11] If all or part of the costs are collected, the trial court clerk must immediately remit to the appellate court clerk any amount due to that clerk.[12]



[1] Tex. R. App. P. 5.
[2] Tex. R. App. P. 43.4.
[3] Id.
[4] Tex. R. App. P. 51.1(a).
[5] Tex. R. App. P. 51.1(a).
[6] Id.
[7] Id.
[8] Tex. R. App. P. 65.1
[9] Tex. R. App. P. 65.2
[10] Id.
[11] Id.
[12] Tex. R. App. P. 65.2

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.