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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, October 28, 2011

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.