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Joe's Dad and Bonny's Brother.

Saturday, October 15, 2016

Retired Ninth Supreme Judicial District Appeals Justice Dies

The honorable James Donald McNicholas, former associate justice of the Beaumont's Ninth Count of Appeals, died Thursday, October 13, 2016 at Harbor Hospice- apparently at one of their Beaumont locations. He had been the municipal judge of Beaumont for approximately the last ten years, continuing until just before he died. He served as on the Court of Appeals only from 1983-1984.

McNicholas was born in Marinisco, a tiny logging village on the Upper Peninsula of Michigan, a tiny village near the Wisconsin border on April 23, 1918. He got his undergraduate degree and law degree from the University of Michigan. Before his last year of law school, he served as a Captain in the Third Army during World War Two and served under George Patton. He received his law degree in 1948. He was admitted to the Michigan bar in 1948 and the Texas bar in 1949. McNicholas was admitted to practice in all Texas state courts and the United States District Court for the Eastern District of Texas as well as the United States Court of Appeals for the Fifth Circuit. He is a member and past president of the Jefferson County Bar Association, as well as a member of the Texas Association of Defense Counsel.

Judge McNicholas practiced law in Beaumont for sixty years. Most recently he was of counsel at Germer, PLLC. He was Mayor of the City of Beaumont from 1968-1970 and was a Board Member of Jefferson County Drainage District Six at his death. 

Funeral services will be held at 11:00 a.m. on Monday, October 17, 2016, at St. Andrew’s Presbyterian Church, 23rd and Gladys, Beaumont, Texas. Our condolences go to his family.

Friday, October 14, 2016

Dallas Court of Appeals Justice Resigns in Lieu of Facing Removal Proceedings

David Lewis, a justice on Texas's Fifth Court of Appeals in Dallas, resigned just as removal papers were filed against him with the Texas Supreme Court on Tuesday. Lewis suffered from alcoholism and depression and had been suspended without pay since September 2014. According to the records of the Texas Commission for Judicial Conduct quoted in the Dallas News blog of the Dallas Morning News, Lewis was "erratic, hostile and threatening." A doctor chosen by the Judicial Conduct Commission reported that Lewis's problems began as early as 2013 and that a scan of his brain in 2015 is of a person who is experiencing decreased cognitive function and is trying to cover that up.
Governor Abbott will appoint a person to fill Lewis's seat on the bench until his term ends in 2018. Lewis is a Republican. Texas's Fifth Court of Appeals is the state appeals court for Collin, Dallas, Grayson, Hunt, Kaufman, and Rockwall counties.
Hat tip to the Texas Lawyer newspaper's online bulletin.

Wednesday, October 12, 2016

". . . don't pull the mask of the ol' Lone Ranger and don't mess with SCOTUS"

In Booth v. Maryland, 482 U. S. 496 (1987), the Supreme Court of the United States held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Four years later, in Payne v. Tennessee, 501 U. S. 808 (1991), the Court granted certiorari to reconsider that ban on “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” The Court's holding was expressly “limited to” this particular type of victim impact testimony. Booth also held that a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment, but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision. The Oklahoma Court of Criminal Appeals has held that Payne implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence. Conover v. State, 933 P.2d 904, 920 (1997).
A jury convicted petitioner Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P.3d 1203, 1226–1227.
SCOTUS doesn't like lower courts messing with its precedents.
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless SCOTUS reconsiders that ban. 
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law, but SCOTUS is sending the case down on remand. 
Shaun Michael Bosse v. OklahomaNo. 15–9173, 580 U.S. ____, (Oct. 11, 2016) 

Saturday, October 8, 2016

Justice by the Book, Not by the Sound Bite

Meet the Presiding Judge of Dallas County's Criminal Court Number One, Robert Burns. He is also the Democratic Party candidate for Texas Court of Criminal Appeals Place Six,
He came to live in north Dallas when he was 5 years old, graduated from Richardson High School, then my alma mater Austin College in Sherman, a long hour's drive north of Dallas. He's a 1990 diplomate of Southern Methodist University.
His Republican adversary is Judge Michael Keasler.
He has a strong court management record, and has a strong reputation for attention to detail in his work.

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]