Preserving Peremptory Challenge Error at Trial

A recurring theme of this blog is that in order to get relief from an appellate court trial court error must be properly preserved. Although members of the panel from which a jury is selected can generally be struck from the jury list for any reason, it is illegal to strike panelists solely on account of their race (Batson error) or their sex (J.E.B. error). It is not merely illegal in criminal cases, but also in civil ones per Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
 So what should you do when you think that the other side has made such an improper strike? Before the panel is dismissed and the trial commences, make a prima facie case that the strike was made solely for an impermissible reason or reasons--race or sex.  At that point, the burden of proof shifts to the striker to show that the strikes were made for acceptable reasons.  That is not the end of the process for you. You must then object to or dispute what opposing counsel says, showing that your adversary's explanations are not supported by the facts or are just pretexts for race or sex and ask for a ruling.
In the course of preparing this post I ran across an excellent continuing legal education article on trial error preservation by Southern District of Texas assistant public defender Timothy Crooks (What a surname for a public defender!). I recommend it highly for any criminal defense practitioner in the federal trial courts subject to the Fifth Circuit.

Child Murder Acquittal Fails to Bar Medical Care Omission Child Injury Prosecution

A twenty-one-month-old child dies of  blunt force trauma of head with closed head injury when in the care of his father and his stepmother. The stepmother is tried for murder of the child and is acquitted. She is then put on trial for injury to a child by omission for failing to get medical care for the child. She applies for a pretrial writ of habeas corpus on the grounds that the State is collaterally estopped from the second set of charges on account of her acquittal. The appeals court refuses the writ on the ground that the injury to a child statute is explicitly differentiated from the murder statute, and that on the facts of the prior case, a person could be found to have not killed a child, but that non-killing would not necessarily rule out that she failed to get the injured child needed medical care when she was in charge of the child. Ex parte Crystal Desormeaux, No. 09-11-00035-CR (Tex. App.--Beaumont Nov. 16, 2011) (orig. proceeding). This opinion was written by one of our favorite justices, Montgomery County's own David Gaultney. Hat tip to the Texas District and County Attorneys' Association for the case

Avoiding the "Inadequate Briefing" Trap

One of the ways that appeals courts keep from deciding matters is to say that a point is inadequately briefed. For example, in the case of Campbell v. State, No. 08-10-00298-CR (Tex. App--El Paso, July 27, 2011) (mem. op.) it appears that someone tried to make a whole appellate argument for two points in six sentences.  Basically, the only answer to the appellant's arguments are that they were inadequately briefed.
Campbell complained that he wasn't sentenced immediately after he was convicted by the jury. The judge reset the case for sentencing until a later setting, and let him stay out on bail. I've never seen a convicted person allowed to stay out on bail pending sentencing. The temptation to do what Campbell did is almost overwhelming-- don't show up for sentencing. When Campbell was finally re-arrested and sentenced, he complained that of not being immediately sentenced after the verdict. I can hear it now: "You see, justices of the court of appeals, it's the trial judge's fault that I jumped bail; I need a new trial."
You can't just state your conclusion and slap a citation on a point. You need to give your point the IRAC treatment, like you did in law school: Issue, Rule, Analysis, Conclusion.

Texarkana Court Holds That a Traveler Carrying a Weapon Ceases to Travel When Getting to the Destination before Getting Home

In a trial of aggravated assault with a deadly weapon, the Texarkana Court of Appeals approved jury instructions that the defendant's use of deadly force was reasonable unless they found the defendant provoked the victim or that the defendant was unlawfully carrying a weapon at the time of the assault. The appeals court found that there was sufficient evidence to find (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Most interesting to me--a scholar of the traveling exception to Texas's carrying a weapon statute--was the court's holding that once the defendant reached his destination and had secured a place to stay, he had ceased to travel, as that to be traveling the defendant would have had to have shown that he was continuing on to another destination. The court also found that sufficient evidence supported the jury's rejection of the defendant's self-defense claim.

SCOTUS to Decide Whether Life without Parole Permissible for Juveniles Convicted of Homicide

The cases are Jackson v. Hobbs and Miller v. Alabama.  About 18 months ago, the Supremes held that life with out parole was not permissible for juveniles in non-homicide cases, which I wrote about June 1 of last year. Hat tip to the blog Youth Today and the website LawyersUSA.

On the Record: What the Court of Appeals Needs

Appellate courts generally judge whether or not a trial court has made an error in a ruling or a set of rulings. Appellate courts can properly learn what happened in the trial court from two possible sources: a reporter's record and a clerk's record. A reporter's record used to be called a transcript. A clerk's record used to be called a statement of facts- not to be confused with the statement of facts that is a part of an appellate brief that gives the facts of a case. The arguments in a brief must cite to the reporter's record or the clerk's record.  A post-judgment proceeding might go up to the court of appeals with a truncated reporter's record or without any reporter's record at all. There is a rule that if anything that could have decided the post-judgment proceeding would have been evidenced by a part of one of these records and part of the record is missing, that missing part is presumed to support the judgment. A reporter's record might not be necessary in a case in which the dispute is a pure issue of law and the parties jointly stipulate to a controlling set of facts, but it would still be a risky business.

Possible Error in Allowing Testimony of Pretrial Services Held Harmless

In a kidnapping trial, the State called a pretrial services officer, a county employee who interviews criminal defendants to determine whether they should get a personal- free- bail bond to testify about what a defendant had told her about his alleged affirmative defense. The defendant had not been Mirandized. The Austin Court of Appeals analyzed the pretrial services officer's role, appearing to be heading toward the conclusion that since the defendant was in custody, was being interrogated after a fashion, he should have been Mirandized if his statements could have been used against him later. The court did not reach a conclusion one way or another because they found that even if the statements should not have come in, the error would have been harmless, given the rest of evidence properly admitted.
The Court also considered that the improper objection to a voir dire question was harmless, because all of the panelists impacted were struck, that the refusal of the court to strike a panelist for cause was proper, and that there was sufficient evidence to support the jury's finding that the kidnapping victim was not released in a safe place.

Appointed Counsel in Civil Matters in Texas

             The Sixth Amendment to the United States Constitution guarantees that a criminal defendant has a right to the assistance of counsel. This has been expanded by the United States Supreme Court to a rule that if a criminal defendant cannot afford counsel, a lawyer will be provided at no charge by the government. This right under the Sixth Amendment does not apply in civil cases because the Sixth Amendment does not apply to civil cases.
             Generally, lawyers are appointed for civil parties served by publication. Such a lawyer's job is to find the defendant, so that the plaintiff doesn't just pretend to notify the defendant and therefore violate due process clauses in the U.S. Constitution.

Texas courts have to appoint counsel for indigent parents fighting termination of their parental rights, parents whose rights may be terminated who are served by publication (as above), hard-to-find fathers or putative fathers.

You Can Only Say You Don't Know If You Really Don't Know

Texas's Sixth Court of Appeals in Texarkana has held that where the manner and means of committing a crime is known to be one of several possibilities, it is not proper in the indictment to state that the manner and means were unknown to the grand jury.

Victim Rebecca Moulton was found floating in a pond, dead from asphyxia possibly from drowning, strangulation, or suffocation. Her husband’s indictment alleged that he caused her death by

• ·         Manual strangulation,
• ·         Drowning and (meaning “or”)
• ·         Asphyxia by means unknown to the grand jury.

Where the manner and means are not elements of the offense, giving notice that an offense that the manner and means of committing an offense is unknown when they are known, at least as one of a list of possibilities, may prevent the defendant from properly preparing for trial, and the trial evidence may show that the allegation of unknown manner and means to be demonstrably false. This may require a new trial. In this case, it did.

This holding was largely based on Sanchez v. State, PD-0961-07, (Tex. Cr. App. Oct. 6, 2010) (rehearing pending). The Texarkana Court is going to look foolish if the Court of Criminal Appeals recasts its opinion in a major way.

In another issue in this case, an expert said that evidentiary affidavits given by the victim’s friends and family members could be read into the trial record to show the basis of the expert’s opinion under Texas Rule of Evidence 705—that the affidavits were not unfairly prejudicial.

Hat tip to the Texas County and District Attorneys Association who were wise enough to hire the sunny and efficient Kaylene Braden, formerly of the Matagorda County Courthouse in Bay City, to work for them.

The Fourth Time Is Not the Charm or; Gibberish Is Bad

Even Homer nods. Faulkner once described a building in one passage as made of stone, in another passage of the same work as wood. If you have to rewrite a legal document, the rewritten document should be better than the one before, unlike poor Walter Maksym, who was asked to rewrite his complaint twice and who has been threatened with removal from the bar of the Seventh Circuit for the incomprehensibility of his appellate brief.

No Written Interrogatories of Texas Child Sex Abuse Victims

     The Texas Court of Criminal Appeals held that the videotape procedures set out in Article 38.071, § 2 of the Texas Code of Criminal Procedure, including the use of written interrogatories in lieu of live testimony and cross-examination do not satisfy the Sixth Amendment rights of confrontation and cross-examination under the United States’ Supreme Court’s Crawford v. Washington line of cases. Judge Cochran wrote the majority opinion that Judges Price, Womack, Johnson and Alcala joined. Judge Hervey filed an opinion which Judge Keasler joined, stating that closed-circuit television—with live, contemporaneous, cross-examination—would have been acceptable, had it been used in this case. Presiding Judge Keller filed a dissenting opinion, arguing that on these facts Crawford v. Washington and its progeny did not overrule the initial case—Maryland v. Craig—which allowed one-way, closed-circuit television testimony of child witnesses in certain situations. This case, she suggested, qualified for Maryland v. Craig treatment. Judge Meyers dissented without opinio

       They didn’t want to overturn the Seventh Court of Appeals, but SCOTUS would have overturned this case if it had gotten it.
      Hat tip to the Texas District and County Attorneys' Association.

Changes in the Rules that Apply in Texas's Court of Criminal Appeals

• Effective September 1, 2011, all Petitions for Discretionary Review and all copies of the petition must be filed with the Clerk of the Court of Criminal Appeals. See TRAP Rule 68.3.
  
  Effective September 1, 2011, the opposing party has 15 days in which to file a reply to the petition with the Clerk of the Court of Criminal Appeals. See TRAP Rule 68.9.
  
  Effective September 1, 2011, the "Writ of Habeas Corpus Application Art. 11.07 form has been revised. The revised form can be found on the "Forms" link.
  
  See MISC DOCKET 11-004 [pdf] This rule supersedes Misc Docket 11-002
• New  Effective June 30, 2011, the Procedures in Death Penalty Cases involving request for Stay of Execution and related filings in Texas State and Trial Courts and the Court of Criminal Appeals has been revised.
  
  See MISC DOCKET 11-003 [pdf]. This rule supersedes Misc Docket 08-101.

The death penalty stay rule should be called The Empire Strikes Back rule. See Presiding Judge Keller breathing heavily, mechanically, "Your powers are weak, David Dow. You can't win. Though you strike me down, I shall become more powerful than you could possibly imagine." The sanctions for counsel who ignore or fail to satisfactorily meet the rule include, but are not limited to referral to the Chief Disciplinary Counsel of the State Bar of Texas, contempt of court, removal from the list of  Tex. Code Crim. Proc. Art. 11.071 list of attorneys, restitution of costs incurred by the opposing party and any other sanction allowed by law (e.g. Texas Rule of  Civil Procedure  215.2).

Defendants' Rights to Appointed Counsel

In Gideon v. Wainwright, 372 U.S. 335 (1963) the United States Supreme Court ruled that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case that could result in incarceration. The same rule applies in criminal contempt proceedings other than summary proceedings under United States v. Dixon, 509 U.S. 688 (1993).
As to appeals, the rules are more complicated. First, there is no federal constitutional rule that appeals be allowed in state courts at all. If appeals are allowed, though, criminal defendants threatened with or subjected to incarceration have a right to state-appointed appellate counsel on their first appeal of right.
My last blog post was an analysis of a June case of the Supreme Court of the United States as to a civil contemnor's right to appointed counsel. Later on, I'll discuss the law of appointed counsel in civil matters.

United States Supreme Court Establishes Protections for Child Support Civil Contemnors

In this child support collection case, Daddy--without a lawyer--was sued by Mamma--without a lawyer. In a civil contempt hearing, the judge found Daddy in willful contempt and sentenced him to 12 months in prison without making any finding as to his ability to pay or indicating on the contempt order form whether he was able to make support payments. After he served his sentence, the South Carolina Supreme Court rejected his claim to a right to counsel.
The United States Supreme Court has held that the Sixth Amendment to the United States Constitution requires that an indigent defendant get an appointed lawyer for a criminal case in which the defendant is at risk of incarceration. The Sixth Amendment does not govern civil cases.
The Due Process Clause requires that an alleged civil contemnor receive:

• adequate notice of the importance of the ability to pay in order to be held in civil contempt;
• fair opportunity to present relevant information;
• fair opportunity to dispute relevant information; and
• court findings.

Change in Texas Supreme Court Practice

Effective September 12, 2011, all attorneys are required to file all documents with the Texas Supreme Court through the Texas.gov electronic filing system. To use the electronic filing system you must first choose an electronic filing service provider and register. Be alert.

Jurisdiction Law Trumps Tex. R. Jud. Admin. 11

          An injured minor sues a tire company and an automaker. In 2001, a pretrial judge is assigned under Tex. R. Jud. Admin. 11. In 2003, the tire company settles; the regular judge approves. In 2010, the automaker wants to settle. The pretrial judge adjusts the earlier settlement by $227,403.25 and eventually orders the automaker to interplead the money.

Issues:

1.    Plaintiffs’ counsel objects that the pretrial judge abused his discretion.

2.    The automaker objects to the appointment of the ad litem.

3.    The automaker objects to getting stuck with all the ad litem’s fee.

4.    The automaker objects that the ad litem charged it for services not necessarily related to its task.

Under limited circumstances, a court may revisit an approved minor settlement. Those circumstances don’t apply here. Pleadings did not support a revisiting of the settlement. Ad litem argued that tire settlement should have been before the pretrial judge instead of the regular judge. The tire company and the automaker said that the tire settlement was neither a pretrial proceeding or pretrial motion under Tex. R. Jud. Admin. 11.3.

The regular judge had subject matter jurisdiction—modern courts tend not to allow subject matter jurisdiction attacks where they can be avoided. District court is default Texas court. Minor’s next friend gave regular judge personal jurisdiction over minor. Minor’s attorney’s did not breach fiduciary duty to minor.

Regular judge abused his discretion in modifying tire settlement.

Ad litem must be appointed where conflict of interest exists between minor defendant and next friend. Settlement would extinguish medical lien, for which next friend—minor’s mother—would otherwise be liable. So there is a conflict of interest and appointing ad litem is OK.

What the ad litem did related to the interest of the minor, including defending the presence of an ad litem.

In the context of settlement, the minor was a prevailing party, so that charging the automaker with the ad litem fees was OK.

The dissent argues that the only judge with the power to decide this matter was the pretrial judge—settlement is pretrial. The pretrial judge should have passed on the tire settlement. Also, the attorneys for the minor “lost,” too; so they should have borne part of the ad litem fee.

File Your Petitions for Discretionary Review with Texas Court of Criminal Appeals

This new rule goes into effect-- along with many other rules and statutes-- September 1, 2011. File your Petitions for Discretionary Review with the Court of Criminal Appeals instead of with the Appeals Court. Adversaries have 15 days to file a response.

They Get to Pick What They Are Going to Hear.

Some courts can pick and choose the cases they are going to hear, at least to some extent. Others cannot. Of the on's that can, the first task of advocacy as to such a court is to convince it to hear the case in the first place. A  common rookie mistake for appellate lawyers is to try to sell the court on the basis of the enormity of the injustice below. One practically always does much better to show that the courts below are following different, inconsistent rules as to those kinds of cases, or, if that is not possible, to show that the court below did not follow the precedent of the court one is trying to get into.
What kinds of courts can pick and choose their cases? Well, except for certain types of cases mandated by the U.S. Constitution, the Supreme Court of the United States chooses which cases to hear by a vote of their members. A case that four or more of the justices want to hear gets heard. A case that less than four of them want to hear does not get heard. The Supreme Court of Texas reviews cases that four of the justices want to look at. The Texas Court of Criminal Appeals has to hear all appeals of all death cases, but otherwise, four votes or more get a case heard. Federal trial courts don't have to hear certain types of cases-- family law, for example, but the federal courts of appeals pretty much have to hear every case the federal trial courts and the agencies send up to them.
Courts that get to choose what they hear are generally more interested in standardizing the precedent used by the courts below them, than they are in correcting gross miscarriages of justice. Such courts often have judges or court below them that they are inclined to correct. SCOTUS is inclined to correct San Francisco's Ninth Circuit. SCOTX, the Thirteenth Supreme Judicial District of Corpus Christi and Edinburg. Texas's Court of Criminal Appeals, judges who hold pretrial hearings on the constitutionality of the death penalty.
Such courts are unlikely to take a case the first time an issue arises; they want to have the lower courts wrestle with it. If the lower courts agree on how to handle a matter, they've just saved the higher court pointless work. A selective higher court would generally prefer to take a case that they have the votes to overrule; that way, they don't just parrot the lower court. Realize that a higher court judge who disagrees with a lower court decision may not have the votes on his or her court to overturn it. Such a judge may not vote to hear such cases, preferring bad lower court decisions to bad higher court precedent.

Everything You Know about Light v. Centel Cellular of Texas Is Wrong

Audio comedians the Firesign Theatre had an album called  "Everything You Know Is Wrong!" Well, Proctor and Bergman had nothing on those jolly jumpbucks at the Texas Supreme Court. A guy named Rex Cook was working for the famous insurance agency Marsh and McLennan Companies. They gave him stock options and had him sign a noncompete agreement. He thought he knew, though, that a company can't just buy a noncompete agreement from a person. Cook quit and, well, proceeded to compete with Marsh and McLennan. They sued him. The judge of the 68th District Court in Dallas, Martin Hoffman, thought that he knew that in such a case, the employee wins. After all, you just couldn't buy a noncompete agreement from a person. The Dallas Appeals Court-- that bastion of antibusiness sentiment-- thought that it knew that in such a case the employee wins. At the Texas Supreme Court, the Chief Justice and Justices Green and Lehrmann thought that they knew that in such a case the employee wins. Even though it's not quite so clear for Justice Willett, a reader of his opinion might be forgiven for thinking that his understanding of the rules is generally the same as every other jurist who has passed on the case (He said that the trial record wasn't developed, which is why he would send the case back to the trial court.).That leaves Justices Wainwright, Hecht, Medina, Johnson and Guzman who teach all the others that everything they know is wrong. OK. maybe not everything, just Light v. Centel Cellular Co. of Texas, 883 S.W.2d 643 (Tex. 1994). It holds that for a covenant not to compete to be enforceable when a company offers an incentive and the employee accepts it, the incentive would have to give rise to the employer's interest in restraining the employee from competing. For example, a covenant not to compete might be enforceable when an employer gives an employee trade secrets or confidential information. That which is given "gives rise" to the justification for allowing enforcement of a covenant not to compete. Forget it. It's old news. That statement is inoperative. With five votes, you can do anything around there. I think we're all bozos on this bus.

Words to the Wise, Particularly if You're Briefing the Texas Supreme Court

Martha Lackritz is a law clerk to Chief Justice Wallace B. Jefferson of the Texas Supreme Court in Austin. She graduated from the University of California Berkeley School of Law and is a member of the State Bar of Texas and the State Bar of California. She wrote an excellent short article: "Common Blunders in Texas Supreme Court Briefs." Sstatements of facts in Supreme Court briefs are, she suggests, commonly too wordy, or are, alternatively, too terse. She complains that there are not enough citations in many briefs. She says that she sees the intermediate Texas courts of appeals overcited. Such cases do not bind the Supremes and can easily be overruled by them. She hears too much hyperbole in briefs.  Improper punctuation and typographic errors often arise. Briefs fail to counter arguments that the briefs are supposed to be  responding to. Lastly, she reports that record citations are not used enough.

What Is the Filing Deadline for a Texas Civil Appeal?

When can you file a notice of appeal? Let’s start with the appeal of a civil jury trial. You would have 30 days from the date a trial court judgment was signed if you did not file a motion for new trial, 90 days if you did. What if the trial was a civil bench trial? Then, requesting findings of fact and conclusions of law or a moving the court for a new trial extends the deadline for filing a notice of appeal from 30 to 90 days (You would have 20 days from the signing of the judgment in the bench trial to make your first requests for findings of fact and conclusions of law.).

It would be foolish to do a civil appeal without consulting O’Connor’s Texas Civil Appeals, written this year by Alessandra Ziek Beavers, published by Jones McClure Publishing of Houston. As a practical matter, it is malpractice not to use the timetables in the back. It‘s got a practice guide. It is an annotated set of the Texas Rules of Appellate Procedure with forms. It’s got the local rules of the appellate courts. Don’t start writing an appeal without it.

A Texas Trial Judge Cannot Rule Pretrial that Appellate Delay Makes Seeking the Death Penalty Unfair.

Texas's Court of Criminal Appeals has overruled a trial judge who stated that a capital defendant on retrial could not receive due process after being in the appellate system for approximately 30 years. Judge Cathy Cochran wrote the opinion for the majority which, along with her consisted of Presiding Judge Sharon Keller and Judges Paul Womack, Cheryl Johnson, and Elsa Alcala. Judge Michael E. Keasler wrote a concurring opinion in which he was joined by Judges Laurence E. Meyers and Barbara Parker Hervey. Judge Tom Price dissented.
Longtime Dallas judge John Creuzot made a pretrial ruling that the State of Texas, represented by the District Attorney Craig Watkins's office, could not seek the death penalty against defendant Jonathan Bruce Reed in his current retrial because the passage of approximately 30 years had rendered some of his punishment mitigation evidence unavailable. The State filed writs of mandamus and prohibition to undo Cruezot's actions. The Court of Criminal Appeals majority held that the State had no remedy at law and that the trial judge had a ministerial duty to not make such a ruling for the following reasons:

• There is no authority that Judge Creuzot has the power to make such a ruling pretrial;
• The United States Supreme Court has not recognized a claim like Reed's;
• The thirty years' delay worked in Reed's advantage-- when he was first tried SCOTUS had not changed the law so as to provide a legal basis for his claims;
• Although he may have lost mitigation evidence from his youth, the evidence of his behavior during his 30 years of incarceration will be fresh, better evidence than he would have had before;
• The harm of the delay challenges the State-- it has the burden of proof;
• Reed's complaint about the evidence is not yet ripe-- he might be acquitted; his mitigation evidence might be sufficient to save his life-- all his injury is hypothetical;
• SCOTUS says that problems from delay must be shown at a trial;
• The delay is not the State's fault-- it should not be punished for a delay it had no hand in.

Judge Keasler's opinion would be narrower. It would reach the same conclusion as the majority, but based only on the majority's last reason-- the State shouldn't be prejudiced for something that is not it's fault.
Judge Price did not think that it was categorically impossible that a prejudicial degradation of evidence caused by delay could not be determined pretrial. Therefore,the trial court does not have a ministerial duty to rescind its order-- that is, the State does not have a clear right to the relief it seeks.

What Is the Maximum Term for Which a Defendant Is to Be Tried?

Randle P. McMurphy, the protagonist of One Flew Over the Cuckoo's Nest, is shocked to learn that instead of his term in the mental hospital's being limited to the term he would have served in prison, he was permanently committed.
In Texas, a defendant who is found incompetent to stand trial cannot be committed by the State to a mental hospital or other inpatient or residential facility for a period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried. Reinke was indicted for attempted murder, a second-degree felony for which the ordinary punishment was two to twenty years. However, he had two prior convictions which enhanced his possible sentence to five to ninety-nine years or life. The question is: how long may he be held pursuant to the statute? Twenty years or ninety-nine years or life?
Justice Jeff Rose, writing for a panel that also included Bob Pemberton and David Puryear, answered that Reinke could only be held on the basis of his incompetency finding for twenty years. The "offense for which the defendant was to be tried" was attempted murder. The enhancements only increased the punishment; it did not increase the maximum term of the crime (Such a defendant could be subject to civil commitment notwithstanding the statute.). Hat tip to the ever-helpful TDCAA for bringing up this case.

The Texas Court of Criminal Appeals

Texas is one of  only two states-- Oklahoma is the other one-- that has more than one highest court. In addition to the Texas Supreme Court-- the highest court for civil matters, including juvenile cases-- the Texas Court of Criminal Appeals is the highest Texas court for criminal matters. Like the Texas Supreme Court, it has nine members, though it only had eight recently when an appointment to the court was delayed as an economy measure. Supreme Court members are called justices while the members of the CCA are only called judges.
Led by Presiding Judge Sharon Keller, a Dallas real estate heiress infamous for closing the court on an execution evening. The rest of the court is nondescript. Judge Tom Price, for example, claims on the CCA website to be only the third person from Dallas ever on the court. The Court made news a few years ago when it refused to grant a new trial to Jose Medellin, murderer of a pair of teenage girls in Houston even though the International Court of Justice had ruled in Medellin's favor.
All death penalty cases in Texas are automatically appealed to the Court of Criminal Appeals.

The Texas Supreme Court

Texas's highest court, which only hears civil cases, consists of a Chief Justice and eight justices, each elected statewide for a six-year term. Since juvenile cases are civil cases, the Texas Supreme Court hears them, too. The Court chooses the cases it wants to hear, so they generally choose the ones they want to reverse. Presently all of the Justices are Republicans. The most common way to get on this bench as a practical matter is to get appointed by the governor with the approval of the State Senate to fill an unfinished term of an exiting justice.
This Court is extremely likely to reverse plaintiffs' judgments, and are more sensitive to the faults of  Democrat Court-of-Appeal justices than of their fellow Republicans, which is bad news for the blue Supreme Judicial Districts numbered Eight-- El Paso--and Thirteen--Corpus Christi/Edinburg.
Chief Justice Wallace B. Jefferson is the first African-American Chief Justice of Texas and the first African-American Justice of the Texas Supreme Court. Justice Nathan L. Hecht is a clever writer-- the kind of guy who would quote Shakespeare in an opinion. Formerly linked romantically with high-powered white-shoe Dallas lawyer, former White House Counsel and United States Supreme Court nominee Harriet Miers, Hecht beat ethics charges against him that arose when he gave interviews and made political phone calls on behalf of Miers. Dale Wainwright was a civil district judge in Houston. I remember seeing him at our local Fuddrucker's as he was bringing some kind of little league team he was a coach of out to supper. David Medina is also from Houston. I remember when he was a trial judge-- I lost a case in his court because of some pointless and impossible-to-satisfy rule about how he wanted papers presented to him, though I've got to give him credit, when I told him the story years later, he had the conscience to wince when he heard it. He was indicted for arson and altering documents, but the charges were dismissed. Justice Paul W. Green was an appeals court judge in San Antonio for ten years before he rose to the higher bench. Phil Johnson was the Chief Justice of the Amarillo Court of Appeals before he rose. Don R. Willett was as plugged in as a Christmas light to the Bush-Cheney administration, though he's got stellar legal credentials, too. Eva Guzman rose from a Houston family court bench to the Fourteenth Court of Appeals in Houston to Texas's highest. Debra Lehrmann is the Court's newest justice, a former Fort Worth family law judge.

Fifth Circuit Allows Warrantless Use of Slap-On GPS Tracker.

A Fifth Circuit panel of Chief Judge Edith Jones, and Circuit Judges Patrick Higginbotham, and Leslie Southwick held that a borrower of a truck has "standing" to challenge the use of a slap-on tracker which sent out an intermittent signal accurate to 50 yards on that truck, but not to challenge the placement of the tracker on the truck. The Court's reasoning in this case, United States v. Jose Juan Hernandez, was that the truck was not his and  that it was parked on a public street. He did not have a reasonable expectation of privacy that was violated by putting the tracker on the truck. Chief Judge Edith Jones's opinion contrasted the facts of this case with the facts United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted sub nom, United States v. Antoine Jones, No. 1259 (April 15, 2011) in which the GPS device continuously monitored a suspect for a month, which the D.C. Circuit found to be an illegal warrantless search. The Hernandez  court appeared to think that Maynard is the only federal case which threw out a case on the ground that GPS tracking was an illegal search. The Hernandez device operated gave off pings on a regular basis. The government's agents found out how Hernandez had begun his drug delivery run, but after that, the battery in the device failed, and the agents tracked him the rest of the time by visual surveillance.
That the Supreme Court of the United States voted to hear Maynard/Jones makes me think it likely that the conservative wing of the court did not like the circuit opinion and wants to reverse it.
Hat tip to the weekly case summary of the Texas District and County Attorneys' Association.

The Supreme Court of the United States

The Supreme Court of the United States is the highest court in America. It has nine justices appointed on good behavior by the President and confirmed by the Senate. It has original jurisdiction over disputes involving 
ambassadors, other public ministers and consuls, and those in which a state shall be a party. It has appellate jurisdiction over the decisions of the United States Courts of Appeals and the highest courts of each state. In these appellate cases, the Supremes only hear those that four of their number agree to hear. It should be no surprise that those justices have an idea, at that point, how they think a case should turn out. It is not uncommon that in SCOTUS very often one side is fighting from the very high ground, while the other has very little chance of victory.
It is very difficult to get a case heard by the Supreme Court. Thousands apply, but only about 150 are taken up. The mission of the Supreme Court is less to correct errors in individual cases, than it is to resolve differences in legal interpretation made by the various federal courts of appeals and highest state courts. Note also that the U.S. Supreme Court has no authority to change law which is pure state law; they only have the authority to change federal law (State courts are, to the extent federal law impinges on their decisions, bound by the decisions of the United States Supreme Court.).
Pretty much since the Nixon administration-- it also happened at the beginning of FDR's administration-- the Supreme Court has been divided between a conservative wing and a left wing.  Presently, the conservatives are Chief Justice of the United States (not Chief Justice of the Supreme Court)  John G. Roberts, Jr., Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr. Justice Anthony Kennedy generally votes with the conservatives, but is generally the most left of the conservative justices and so is the swing vote on the Court. To the left are Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Notice that the death or retirement of a single justice could well swing the balance of power in the court to the left.

Summary Judgment Attorney's Fee Awards Must Be Supported by Some Facts in East Texas

The Ninth Court of Appeals in Beaumont, Texas through a panel of Justices David Gaultney, Charles Kreger, and Hollis Horton held in a memorandum opinion that the evidence of attorney's fees in a collections case was insufficient to support a grant of summary judgment as to those fees. The attorney's fee affidavit in that case failed to state any hourly rate, or amount of time spent working on the case or any other specific facts behind the fee.Summary Judgments in Texas: Practice, Procedure, and Review

Should You Ask for Oral Argument?

Generally, one should ask for oral argument if the appellate relief one is asking for is out-of-the-ordinary, that is, if it requires the court to take action it would rarely take. For example, appellants asking the appellate court to overrule a trial judgment should generally ask for oral argument. Why? Because appellate courts rarely overrule trial judgments, and appellant's counsel should try to get the case away from being solely considered by staff attorneys and law clerks and bring the case to an appellate justice's attention. A justice is much more likely to lead the court to do something unusual than a lowly court employee. In this example, appellees should generally try to avoid oral argument. To show how far some appellees take this avoidance, for a long time, appellate prosecutors in Houston would not show up for oral argument where the State was an appellee.
A football coach, famous for letting his quarterback run rather than pass observed that when a player passed the ball, there were three possible results (incompletion, interception, completion), and two of them were bad (incompletion and interception). Appellees' counsel feel the same way; oral argument may lose a case for them, but it is unlikely to win one for them.
Similarly, counsel asking for extraordinary relief such as mandamus or habeas corpus relief should ask for oral argument to explain why their particular case is the one for which unusual action should be taken.

Minnesota and Texas Have "Roach Motel" Sexually Violent Predator Programs

In 1981, the Black Flag Roach Motel was introduced. "Roaches check in, but they don't check out."
The Duluth News Tribune reports that of all the states that have civil commitment of sexually violent predators, Minnesota is the only one that has never released anyone from civil commitment. This is not quite true; Texas has never released anybody either. The story seems to envision committed sexually violent predators "mov[ing] . . . through the community." Except to go to doctor's and dentist's appointments, it's extremely difficult for them to do anything but hang out at the halfway house. The story says that Washington state's program- generally, the model program- was held to be unconstitutional ten years ago. What was needed to make it constitutional was real treatment structured so that SVPs could earn their freedom. Texas doesn't meet that standard.

Rule Changes re Reconsideration of Petition for Discretionary Review in the Court of Criminal Appeals

They are here.

A Court Can Make a Prosecutor Turn over a Complainant's Video

Texas state judges have the power to require prosecutors to copy a sex assault complainant's video for the defense. Court of Criminal Appeals Judge Paul Womack wrote for a unanimous court save for the dissent of Presiding Judge Sharon Keller (When this opinion was handed down, the Court only had eight of its usual complement of nine judges.  Retiring judge and former Deer Park corporation counsel Charles Holcombe was replaced late as an economy measure.) The majority held that the recording was non-privileged evidence to which the defense had a right. Presiding Judge Keller would have held that the recording was a "written" witness statement-- by statute, the State could have refused to release it.

What Advice Should be Given Based on the Salinas Case?

What  advice should be given based on the Salinas case? If you're not going to answer every question of the cops's, don't answer any.

Local Rules and Their Friends- What Lawyers Need to Remember

If you're doing an appeal (or any other litigation), you should always check the local rules, and, if, a court has them, don't miss their internal operating procedures if it lists them, as the Fifth Circuit does, or lists of local practices, or tips and guidelines, etc. Texas's First Court of Appeals has civil and criminal Local Rules, as does the Third. Other Texas state appellate courts with local rules are the Second, Fourth, Fifth, Eighth, Tenth, Eleventh (sort of) and Fourteenth (also sort of).

Texas's Fourteenth Court of Appeals Allows Pre-Arrest Silence to Be Substantive Evidence Against a Criminal Defendant

Fourteenth Court of Appeals Justice Jeffrey V. Brown, writing for a panel including Justices John S. Anderson and Kem Thompson Frost, held that defendant's attorney did not render ineffective assistance at trial by failing to object to improper opinion testimony regarding his truthfulness and that the trial court's  admission of evidence of Salinas’s silence during a pre-arrest interview was proper. The investigators told the Salinas family about the murder investigation and obtained consent to search the home.  Salinas’s father tendered a shotgun to the police.  Salinas agreed to voluntarily accompany the officers to a police station for questioning. 

Sergeant C.E. Elliott of the Houston Police Department testified at trial that he questioned Salinas at the police station for nearly an hour.  During the questioning, Salinas told Sergeant Elliott he knew the Garza brothers through Mike Provazek and had visited the apartment three or four times before the shooting.  According to Sergeant Elliott’s testimony, Salinas said he had no disagreement with either of the Garza brothers and did not own any weapons aside from the shotgun police took into custody.  At that point in Sergeant Elliott’s testimony, the prosecutor approached the bench, where the following exchange took place:

Ms. Garcia [Prosecutor]:  Your Honor, there was a Motion in Limine granted that we should not be going into the defendant remaining silent when asked if the ballistics from his shotgun were going to match the shotgun shells found at the apartment.  And at this time, we’d like to be able to go into that and show Sergeant Elliott’s testimony.  The defendant was not in custody at this time.  He was free to leave and he was merely there for investigatory purposes.

The Court:  Was this part of the same conversation that we just heard?

Ms. Garcia:  Yes, Your Honor, same conversation.

Mr. McWilliams [Salinas’s counsel]:  Judge, I renew my same objection, that he has—he can invoke the Fifth Amendment privilege whether he was in custody or not.  He doesn’t have to talk to the police.

The Court:  Okay.  I agree, but unless you know that, in fact, he did do that. 

Mr. McWilliams: He remained silent, Judge.

The Court:  Okay.  Thank you. 

The court went off the record before Sergeant Elliott’s examination resumed.  A little later, the following exchange, which forms the basis of both of Salinas’s issues on appeal, took place:

Q.  Did you ask him, Sergeant Elliott, if the shotgun in question here would match the shells recovered at the scene of the murder?

A.  Yes.

            Mr. McWilliams:  I renew the objection.

            The Court:  The objection is overruled.

Q.  (By Ms. Garcia) You can answer the question.

A.  Yes, I did ask him that.

Q.  And what was his answer?

A.  He did not answer.

Q.  Did he make any motions after that?  Did he—

A.  Yes.

Q.  What did he do?

A.  Showed signs of deception.

Q.  And what were they?

            Mr. McWilliams:  Object to that, Judge, as calling for speculation.

            The Court:  Sustained.

            Mr. McWilliams:  I ask that the jury be instructed to disregard that. 

The Court:  The jury—the objection is sustained.  The jury will disregard the last statement of the officer. 

Q.  (By Ms. Garcia) Sergeant Elliott, what specifically did the defendant do after he remained silent when you asked him that question?

A:  Looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up. 

Q:  Did you continue to question him after that? 

A:  Yes.

Q:  And did you ask him—did he answer any more questions?

A:  Yes.

***

Q:  So, Sergeant Elliott, approximately how many questions would you say the defendant answered on that evening of your conversation?

A:  I’ve never counted the questions before because this was just talking.

Q:  Well, let me ask it this way if that’s difficult to answer.  About how long did this conversation last, if you remember?

A:  Two minutes short of an hour.

Q:  So, in this 58 minutes that you talked to Genovevo Salinas on January 28th of 1993, how many questions did he not answer?

A:  One.

***

Q:  So, what changed before this conversation to alter this conversation to cause you to take him into custody?

A:  My opinion.

Q:  And how did your opinion change?

A:  I had the opinion that he was being deceptive and lying to me and I wanted to hold on to him.

After the interview, Sergeant Elliott arrested Salinas on some outstanding traffic warrants.  The ballistics analysis matched Salinas’s shotgun with the casings left at the murder scene.  However, the Harris County District Attorney’s office declined charges, and Salinas was released.  Police procured an additional statement from Cuellar, who, according to Sergeant Elliott, came to the police station unannounced and unsolicited to offer a third statement in which he said Salinas confessed he had murdered the Garza brothers.  Cuellar testified that Salinas was his friend and that he hoped police would solve the murder without his help, but after a dream in which he saw the Garza brothers he felt compelled to come forward.  Salinas was then charged with murder but eluded arrest until 2007, when he was arrested while maintaining a false identity.  Salinas’s first trial resulted in a mistrial, but the jury in his second trial found him guilty and sentenced him to twenty years’ imprisonment and a $5,000 fine.

      Salinas complained that his trial counsel failed to object when Sergeant Elliott opined that Salinas was “deceptive and lying.”  Salinas argues this testimony was an inadmissible opinion of Salinas’s truthfulness, and trial counsel’s failure to object prejudiced his defense. While it is true that other courts--Texarkana, Dallas and El Paso-- have found that a failure to object to improper opinion testimony was sufficient to undermine confidence in the outcome of the case.  Each of these instances arose from sexual-assault or indecency-with-a-child cases in which the victim’s credibility was the only real issue at trial and counsel repeatedly or entirely failed to object to the introduction of testimony on the truthfulness and credibility of the victim’s allegations. This case does not hinge on a single witness’s credibility.

            In his second issue Salinas asserts the trial court erred in admitting testimony of his pre-arrest, pre-Miranda silence.  Sergeant Elliott testified that Salinas remained silent when asked if ballistics testing on the shotgun his father surrendered to police would match the shell casings found at the murder scene.  According to Sergeant Elliott, Salinas showed “signs of deception” when he failed to respond:  looking down at the floor, shuffling his feet, biting his bottom lip, clinching his hands in his lap, and tightening up.  Sergeant Elliott further testified that Salinas answered every question but this one during the nearly hour-long interview.  Defense counsel objected to the testimony on the grounds that Salinas had invoked his Fifth Amendment privilege against self-incrimination by remaining silent.  The trial court overruled the objection.  During closing argument, the prosecutor argued, over defense counsel’s objection, that Salinas’s silence was evidence of his guilt. The United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief. Texas precedent does not provide guidance. The federal courts of appeals are split on the issue.  The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt.  The Fifth, Ninth, and Eleventh Circuits, on the other hand, have held that pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt. The Fourteenth Court of Appeals agrees with the Fifth, Ninth, and Eleventh Circuits. The  Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify.

The Trial Court's Judgment Is Going to Kill Us (Figuratively). What to do?

It's a bird! It's a plane! It's supersedeas! The method described in Texas Rule of Appellate Procedure 24 can keep the winner in a trial court from enforcing judgment. It also tends to guarantee that the trial court loser will pay the judgment immediately if the appeal is lost. Appealing doesn't keep the appellee from executing the judgment. Many appeals, though, would be mooted if the appellant had to pay the judgment right away. If the appellant puts up something of value which would pay the judgment, the appellee can be prevented from enforcing the judgment. However, if the appeal be lost, the judgment would be satisfied (at least in part) by the thing of value's being turned over to the appellee.
The limitation of the required supersedeas amount to the lesser of half of the judgment debtor's net worth or 25 million dollars was a response to the multi-billion dollar Texaco v. Pennzoil judgment. Back in those days, a judgment creditor was supposed to put up twice the judgment's value.  Appellant's counsel in Texaco v. Pennzoil was able to show that there was not enough bonding capacity in the world for that big a judgment. The new rule is a great big mazel tov to any future judgment creditor who finds itself in Texaco's shoes.

Warrantless Review of Mobile Phone Texts incident to Arrest OK

Fifth Circuit Senior Justice Patrick E. Higgenbotham, writing for a panel including Justices Jerry Edwin Smith and Jennifer Walker Elrod, affirmed the conviction of a defendant of whom a Secret Service agent had reviewed-- without a warrant--text messages incident to the defendant's arrest.

So How Do You Budget for an Appeal?

No, I mean not counting attorneys' fees. You have to figure in the cost of the Reporter's Record. You have to make arrangements to pay the reporter--usually half of the estimated cost of preparing the record before the work starts and the other half on completion. Documents for the United States Supreme Court require a speciality printer.There are filing fees, travel expenses for oral argument. If you can pay for moot court judges, you should. You should find former appellate judges or intellectually strong former trial judges, or just law experts to participate in an early moot court. If you can have a professional proofreader and editor review your brief, you should.
Really, it can get expensive. And I haven't mentioned anything about supersedeas here.Litigation budgeting and value billing: Materials prepared for a continuing legal education seminar held in Vancouver, B.C. on March 29, 1990

For Any Case, Asking Whether or Not a Panelist Can Follow the Law Is Allowable

The Texas Supreme Court, in a per curiam opinion, reversed and remanded a sexually-violent-predator-civil-commitment trial because the judge refused to allow proper voir dire questions. First, respondent's counsel wanted to ask potential jurors if they could give a fair trial to a person that the evidence would show had committed a number of homosexual acts, even though some veniremembers said that they would have trouble being fair to such a person. The judge disallowed such questions.
The second disallowed question won't make sense without a little background. For a person to be committed as a sexually violent predator, the State must show that the person committed two qualifying sex crimes and additionally that the person has a qualifying behavioral abnormality. The question that respondent's counsel wanted to ask was if a panelist wouldn't commit the respondent on the basis of the two sex crimes without requiring the State to prove the behavioral abnormality. Again the judge disallowed.
The Texas Supremes held that asking about anti-gay prejudice in a case like this helped to establish whether or not the jurors would decide the case on the law and the evidence. Asking panelists whether or not they would put the State to its legally required proof, they added, was always allowable.

We Do It Different in the South Central U.S.

Texas and Oklahoma each have a highest criminal court in addition to their Supreme Courts. A criminal appellant would not be before the Supreme Court in either state. In Texas, juvenile cases are civil, while bond forfeitures are criminal. Furthermore, Texas capital cases are automatically appealed to the Court of Criminal Appeals.