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Brenda's Husband, Joe's Dad and Bonny's Brother.

Sunday, March 12, 2017

Should the CCA Apply a Standard Currently Being Reviewed by SCOTUS?

Today's case is Us Carnell Petetan, Jr. v. State of Texas, ____ S.W.3d _____, No. AP-77,038, (Tex. Crim. App. Mar. 8, 2017). Petetan was convicted and sentenced to death in the 19th Judicial District in Waco. A CCA appeal is automatic.
The Court's opinion was written by Presiding Judge Sharon Keller and joined by all the judges except Judge Elsa Alcala, who wrote a dissent on a single issue-- that Petetan's automatic appeal as to whether or not he had too low an I.Q. to be executed was not ripe for decision, because Moore v. Texas No. 15-797 (pet. granted June 6, 2016, argued Nov. 29, 2016).had been accepted by the Supreme Court of the United States and argued as to whether Texas’s legal standard for determining intellectual disability violates the Eighth Amendment’s prohibition against the execution of intellectually disabled people. She said that SCOTUS's decisions in Atkins v. Virginia 536 U.S. 304 (2002) and Hall v. Florida, 134 S. Ct. 1986 (2014) signal that any assessment of intellectual disability must be informed by, and cannot be untethered from, the current medical diagnostic framework for assessing intellectual disability, but this Court’s standard in Ex parte Briseno, 135 S.W.3d 1, 4-5 (Tex. Crim. App. 2004). has strayed from that requirement.
The majority held that that there was sufficient evidence to find that Petetan intentionally killed his wife while he was kidnapping his wife and her daughter.

Friday, February 10, 2017

Are There Any Situations in Which a Civil Litigant Has a Right to Appointed Counsel in a Texas State Court?

We're not talking here about criminal cases. We're not talking here about federal cases. Though Texas juvenile proceedings are designated as civil instead of criminal, the criminal counsel appointment rules apply.  Sexually violent predator civil commitment is supposed to be civil-- it may oversimplify to say that the criminal counsel appointment rules apply (a criminal defendant has to be competent to stand trial, an SVPCC respondent does not, and such a person can have a guardian ad litem)  and in Texas civil proceedings, except for a very few statutory exceptions, the default rule is that civil litigants do not have a right to appointed counsel. 

 In one in a million cases, a judge might appoint counsel for an unrepresented party-- there is no budget for this kind of thing, but a judge might ask a lawyer buddy to take a case on a pro bono publico basis. 

Let's start with regular old civil lawsuits, money or property or injunction suits.

Now, though, appointments might come for minors or adult incompetents and have to be paid for by one, some, or all of the parties. 

But indigent parents in state-initiated proceedings to terminate a parent's rights have the right to counsel, and courts have the duty to inform the indigent parents of this right.

Saturday, February 4, 2017

Plastic Disks No Longer Routine for Appellate Records

Now attorneys-in-charge can get access to documents in their appeals straight from the website of the relevant appeals court, including clerk's records and court reporter's records. Now appellate counsel won't have to get the record from a trial court clerk or an appeals court clerk. Many hours of time will be saved. Some people have complained that one has to sign up one appeals court at a time, but there is a way using a control key to sign up for all the ones you need. The Fourth Court of Appeals (San Antonio) and the Thirteenth Court of Appeals (Corpus Christi and Edinburg).have not adopted the portal.
As files became electronic, it seemed crazy to have to get a pony disk from a live person, often far out-of-town,
You know how your parents tell you how difficult it was to get to school when they were kids. Now, when you are a few decades older you will be able to tell baby lawyers that you actually had to arrange for plastic disks to be gotten to you, and then returned, and they will vacantly gaze at you as a true relic of the dark ages.
(When I was a law clerk, the word processor they had me use was bigger than a kitchen stove, and to start, the screen would roll up the CRT to look like a sheet of paper, so as not to frighten the legal secretaries who were the initial users of these monsters. Personal computers weren't used in the office, and email was extremely rare. There was no Westlaw or LexisNexis or anything like them in the office. Worker's comp cases could be tried. Treble damages and attorneys' fees were mandatory in deceptive trade practice act cases. And practically all the statutory hedges against plaintiffs' getting their actual damages hadn't been built yet. The Health Care Liability Act was just getting started.)

Saturday, January 21, 2017

Former Assistant Attorney General Appointed to Empty Dallas State Appeals Court Seat

Jason Boatwright, a former assistant attorney general who worked closely with Governor Greg Abbott when Abbott was Texas Attorney General, has been named to Dallas's state Fifth Supreme Judicial District Court of Appeals. He replaces David Lewis who resigned in lieu of discipline for alcoholism and other mental health problems. Boatwright was chair of the opinions committee of the AG's office. Texas officials may ask the Attorney General to give legal opinions relating to issues in their work (Since AGs are not judges, they may give advisory opinions,) These opinions do not have force of law as published opinions of a court, but (1) they can be gotten much faster than an appeals court opinion, and (2) it gives legal cover to the requester; it may turn out that a court finds an AG opinion wrong, but following that opinion will innoculate the requester from an accusation of bad faith or criminal intent.

Boatwright's professional history is mostly out of Austin, but he's been practicing a few years in Dallas.

Wednesday, January 4, 2017

How should Texas Constitution, Article I, Section 11b Be Read with Federal Due Process Standard?

Ex parte Heath Shires, No. 02-16-00348-CR, (Dec. 29, 2016), a ruling on a pre-trial writ of habeas corpus by Fort Worth's Second Court of Appeals, seems to me to be a good candidate to get to the Court of Criminal Appeals. The appellate panel is all-female: Justice Lee Ann Dauphinot, Justice Lee Gabriel, and Justice Bonnie Sudderth. Justice Sudderth writes the majority opinion. Justice Dauphinot dissented.
Shires is indicted on four sex offenses against a minor October 14, 2014. Two of his bail conditions are that he is not supposed to drink alcohol nor is he supposed to commit another offense. He is arrested for felony DWI September 4, 2016. Two of his bond conditions are that he is not supposed to drink alcohol and that he is not supposed to drive any vehicle that does not have an alcohol interlock. On September 6, 2016, State says Shires's bond for the four earlier offenses is too low. 
There was a hearing on raising the bond amount on the old charges Sept. 6, 2016. the parties stipulated that Shires had violated the bond conditions, but Shires argued that his bond should not be revoked, but that an alcohol monitor should have been attached to him. He also argued that Tex. Const. art. I, sec 11b, violated the 14th amendment of the U.S. Constitution. The trial court rejected the challenge and allowed the hearing on it to make a record for the habeas writ. 
Shires challenges sec 11b's federal constitutionality as applied to him. The majority rejects Shires's claim that federal precedent required that every trial court to apply a clear and convincing evidence standard, nor requires each trial court to consider
if additional bond conditions may adequately assure the safety of the community
or the victim. 
Justice Dauphinot submitted that 11b had to be applied in light of the federal due process standard, and that the appeals court should have reversed and remanded to the trial court with instructions as to what federal due process precisely required (She appeared to me, to think that Shires, at least in part, had the right idea.
The State has the burden of proving the allegations of its motion. The trial
court must be convinced by the evidence that the State has borne its burden.
The issue is not whether some appellate court can, by speculation and reading
between the lines, cobble together enough possibilities to support the State’s
allegations and to support a determination that the detainee must not be released
under any conditions because no conditions exist that will reasonably protect the
public. The record must reflect evidence from which the trial court can make the
legally mandated determinations, and the trial court must actually make the

necessary determinations.

Justice Dauphinot aged out of her position at the end of 2016 and has had to retire. I can't really imagine her getting that old; she always seemed to me to be younger in spirit than people many years her junior. For what it's worth, I liked her and am going to miss her.

Saturday, December 10, 2016

Which Criminal Defendants Have the Right to Appointed Counsel at Trial and on Appeal?

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.United States v. Bryant, 136 S. Ct. 1954, 1958, 195 L. Ed. 2d 317 (2016) The federal constitution imposes on the states no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687 (1894). Where an indigent has only one appeal, that person has a right to counsel as to that appeal. Douglas v. Cal., 372 U.S. 353, 357 (1963). A state need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court of the United States. Cf. Ross v. Moffitt, 417 U.S. 600, 615 (U.S. 1974).

Wednesday, December 7, 2016

From the Grave, Steve Jobs Reaches for all the Smartphone Profits of his Competitors, but SCOTUS stops Him.

The Supreme Court of the United States decides Samsung Electronics Co. v. Apple Inc. It came up on appeal from the United States Court of Appeals for the Federal Circuit, the national court of appeals for patent matters, among others. It had been established that Samsung, among others, infringed on some of Apple's patents in their cellphones-- things like having a rectangular front face with rounded edges and a grid of colorful icons on a black screen. Apple was awarded $399 million in damages—Samsung’s entire profit on their infringing phones. On certiorari to SCOTUS, Samsung, et al, complained that the Samsung defendants should not have to pay Apple all its profits, when many, if not most, of the features of their phones were not infringing. Justice Sotomayor, a former trademark lawyer, wrote an opinion for a unanimous Court reversing the lower court and remanding the case to it, That lower court is ordered to award Apple only those damages from the infringing aspects of the defendants' phones, not all of the profits the defendants made on the phones.

Samsung Electronics Co. v. Apple Inc., No. 15-777 (U.S., Dec. 6, 2016)

A hat tip goes out to our friend, The Woodlands' patent badass Basil Angelo, for sharing his views of the case. Of course, the views here are ours' and he is not responsible for them or for any errors in this post.