The U.S. Supremes Are Different.

In some ways the Supreme Court of the United States is a model. The clerks-- the people who really do the great bulk of the work-- are brilliant. The court can get away with things that no other court can; there is no court above them. It is a court that takes very few of its cases except at its own discretion. It is, for these reasons, the most politicized court. The rest of us have to do what a majority of them say, so they are important. A wonderful way to keep track of them as they finish up their term and get ready to take their three-month hiatus is a round table at Slate Magazine featuring Walter Dellinger, Dahlia Lithwick, and Justice Richard A. Posner, which I commend to your attention.

What "The Man on the Clapham Omnibus" Means

Lawyering is about language and power, and whatever lawyer lacks sensitivity to either of them, especially to the beauty of language, is missing much of the fun. Where we Yanks merely have "the reasonable person," the Brits, the Aussies and the Hong Kongers will tell you exactly on which mode of public transport this forensic fiction is taking.

Chief Justice McKeithen Gets with the Dominant Rule re Nonparent SAPCR Standing

Two women live together and share the care of a son of one of them. They break up, but still share the care of the boy on and off. Eventually, the nonmother sues for custody in a suit affecting the parent-child relationship. The mother seeks to have the case dismissed on the ground that the nonmother lacked standing to interfere with the custody of a fit mother, but the trial court granted the nonmother temporary possessory-conservator rights. The mother took the case up on mandamus on these two issues, and the Nines ruled for her. Justice Hollis Horton wrote for a panel including Justice Charles Kreger and Chief Justice Steve McKeithen. The Chief Justice concurred that although he had dissented in In re K.K.C., 292 S.W.3d 788 (Tex.App.-Beaumont 2009) (orig. proceeding), he felt that he had to recognize the majority opinion in that case as precluding him from taking the same view in this current case.
In re Stephanie Wells, No. 09-12-00158-CV (Tex. App.--Beaumont June 14, 2012) (orig. proceeding).

A Cheap (For Some, Free) Comprehensive Set of Advance Sheets

Fastcase, an innovative electronic legal publisher, offers, for no additional charge to their subscribers, advance sheets for e-readers. Fastcase is a member benefit of some state bar associations, though not Texas's. Thanks for this news to the estimable Pris Streightoff of the Montgomery County Texas Law Library and to the 3 Geeks and a Law Blog.

Bracewell & Giuliani Partner and Republican Nominee Brett Busby on 14th COA

Bracewell and Guiliani partner and Republican nominee Brett Busby has been appointed to Houston's Fourteenth Court of Appeals by Governor Rick Perry. This is the seat that John S. Anderson used to occupy.

Texas Criminal Trial Court of Record Deadlines

The clock starts running for an appeal of a Texas state criminal trial court judgment when the judgment is signed.  Usually its the defendant who appeals. If the defendant does not file a motion for new trial or a motion in arrest of judgment,a notice of appeal must be filed thirty days or less after judgment in the trial court. (Motions in arrest of judgment are very rare nowadays, because by statute, rule or precedent, all errors that I am aware of that would justify arresting a judgment either have to be objected to before judgment or would be open to correction by a motion for new trial or a writ of habeas corpus.). If a motion for new trial is filed, it must be presented to the trial court ten days or less after it is filed, unless the trial court gives permission for it to be presented sometime 75 days or less after the judgment is signed. If a motion requires a hearing, as it would if it were based on jury misconduct about which evidence would have to be taken, that hearing must take place 75 days or less after the judgment is signed. The notice of appeal may be filed 90 days after judgment if a motion for new trial, etc. was filed 30 days or less after the judgment was signed.
The State has 20 days to appeal if it wants to appeal a judgment no matter what else gets filed.
A docketing statement should be filed in the Court of Appeals when the notice of appeal is filed. Also, if the defendant be indigent, the defendant should file a motion for a free record and an affidavit of indigence.
The clerk's record is usually prepared relatively quickly, often a couple of weeks. Preparation of the reporter's record is usually a very time-consuming part of the appellate process, often taking months. The appellant's brief is due 30 days or less after the reporter's record is ready.

Ninth Court of Appeals Overturns Deadly Weapon Finding in DWI with Child Passenger Case

The most newsworthy part of this decision is that a panel of the Ninth Court of Appeals in Beaumont sided with the defense that the auto in the driving while intoxicated with child passenger case was not a deadly weapon.  The rest of the decision lists unsuccessful attacks on the judgment and that the judgment was corrected to show that instead of the charge's being of a second degree felony, the charge was of a state jail felony and that charge was enhanced by two priors to be a second degree felony.
One night, defendant Steven Ray Pointe, with his ten-year-old son in the back seat, hit the vehicle that Margaret Richter was driving. Richter said that she had not seen or heard Pointe coming before he hit her. Ethan Sonnier witnessed the wreck. He said that he hadn't seen Pointe coming before the wreck. The officer on the scene, Frank Carpenter, assigned the blame for the wreck to Richter-- Pointe had had the right of way; Richter made a turn in front of Pointe.
Chief Justice Steve McKeithen wrote the opinion for a panel that included Justices David Gaultney and Hollis Horton. Chief Justice McKeithen cited Sierra v. State, 280 S.W.3d 250 (2009) from the Texas Court of Criminal Appeals at 255 to say that in determining the sufficiency of the proof  of a deadly weapon finding an appeals court should consider: (1) the manner in which the defendant used the motor vehicle during the felony; and (2) whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury. He then cited Foley v. State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, pet. ref‟d) along with Sierra about how the defendant used his vehicle during the offense, considering (1) intoxication; (2) speeding; (3) disregarding traffic signs and signals; (4) driving erratically; and (5) failure to control the vehicle. The appeals court ruled that there was sufficient evidence that the defendant was intoxicated. The  State argued that Richter's and Sonnier's not seeing or hearing Pointe's vehicle before the collision showed that Pointe was speeding or not using his headlights and therefore driving recklessly. The jury also heard, though, that Richter pulled out in front of Pointe's moving vehicle and caused the accident. The record, Chief Justice McKeithen reported, contains no other evidence that Pointe was driving recklessly.
The appeals court concluded that a claim was Pointe was speeding or driving recklessly was speculative, citing Tex. Penal Code Ann. § 1.07(a)(17)(B). Sierra, 280 S.W.3d at 255 and Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) at 13 Under the circumstances of this case, the appeals court concluded that, even viewing the evidence in the light most favorable to the verdict, a rational jury could not find, beyond a reasonable doubt, that the manner in which Pointe used his vehicle was capable of causing death or serious bodily injury.
OK, DWI lawyers, the Niners have laid the ground rules out pretty plainly for those seeking or fighting a deadly weapon finding. They know it, too. This is an opinion to be published (See the prior post in this blog as to how important that is.)
This opinion does not tell what Pointe's priors are. To enhance him in felony court, they would have to be felonies. If they were not intoxication felonies under Chapter 49 of the Texas Penal Code, then the presence of his passenger turned this offense from a misdemeanor to a ten-year felony, even though under the circumstances he may have been a more able driver than the presumably sober person whose vehicle he hit. I doubt that this affected the panel's desire to rule so that Pointe would get parole eligibility two and a half years into his sentence, including good time, instead of five years into his sentence without. Chief Justice McKeithen can't have worked very many DWIs after 1992, and I can't tell if he did none or only a handful before then. Justices Gaultney and Horton were civil defense lawyers before they rose to the bench; they have seen a whole lot more DWI in Beaumont's appellate court than they've seen earlier in their careers.
Steven Ray Pointe v. State of Texas, No.09-11-00026-CR (Tex. App.--Beaumont May 30, 2012, no pet. h.).