Computer Cut-and-Paste Can Be Bad for Appellate Lawyers and for the Rule of Law

Appellate courts may notice when a brief is recycled. I imagine that usually some staff attorney notices these kinds of thing. When such a thing is found though, the court will not hide its fury. The federal Ninth Circuit didn't in this case recently blogged about. People who live in glass houses, though, should not throw stones. A recent scholarly article points out that appeals courts' recycling nonprecedential opinions can give that recycled material greater influence than precedents.
That both of these issues arise as to immigration appeals is not accidental. I don't remember which immigration lawyer told me that much of immigration advocacy is to lose very slowly. Waiting lists in administrative processes can be more than 10 years long. In immigration proceedings, every additional hearing, review or appeal can slow an unwanted action or loss of a desirable status for months or years.
It should be no surprise that it is common for institutions in this system are crammed with cases, not infrequently of dubious merit. Client's counsels' offices sometimes see computer cut-and-paste briefs as an easy, cheap to do, yet large fee-bearing way to slow down bad results. Similarly, federal courts of appeals justices commonly refer the flood of appeals of Board of Immigration Appeals decisions to court staff attorneys who are expected to churn and burn through the load. They end up cutting and pasting copy from old non-precedential opinions into later ones. This copy may get outdated, but it may take a while before someone with the power to fix it may notice, viz. an appeals court justice, and by then, many cases may have been irretrievably wrongfully decided
Sometimes cases that do not have any outwardly visible immigration issues go through appeals because there is a collateral immigration benefit to someone associated with one of the parties for the case to keep pending.

Second Texas Bar Appellate Section Twitter Brief Contest Deadline Approaches

The deadline for the 2d Twitter Brief competition put on by the State Bar Appellate Section is September 3. How to enter is here. The winning entry from last year, and a link to the runners-up is here. It is open to anybody.

Harris County 208th Criminal District Court Judge Denise Collins Refuses to Credit Bad Urine Tests

The article is here.

Harris County Texas 177th Criminal District Court Judge Kevin Fine Resigns

The article is here.

Preserving Texas State Summary Judgment Error

A couple of weeks ago, I discussed appealing grants or denials of special exceptions of Texas state petitions.    As procedures for a special-exceptions-type problem in a criminal case are not the same as they are in a civil case, summary judgments don't exist in criminal cases.

Let's assume that special exceptions one way or another don't apply in your case. Now, the purpose of a trial is to find facts, but sometimes a case does not require a trial. Civil causes of actions consist of elements, as do affirmative defenses. In ordinary language, one might call a proof problem with an element of the plaintiff's case a defense, but strictly speaking, an affirmative defense is something that, if true, even if every element of the plaintiff's case is true, would cause the plaintiff to lose the case.A good, but not completely exhaustive, list of affirmative defenses is at Texas Rule of Civil Procedure 94. A defendant has to plead affirmative defenses in the answer, and certain suspect defenses have to be sworn to in the answer. That rule is TRCP 93.

For right now, I'm not going to talk about partial summary judgments. Just keep in mind here that, as a general rule, you can't appeal a partial summary judgment until the whole case has been disposed of by final judgment. More about that in a future post.

That a case does not have to be tried can come up four ways:

• There is no dispute that a plaintiff's facts are as the plaintiff says, and there is no affirmative defense;
• There is no dispute as to all the elements of an affirmative defense of a case;
•  One of the elements that a plaintiff needs to prove the case is demonstrably absolutely false; or
•  Proof of one of the elements of the plaintiff's case absolutely cannot be established.

For the first, the rule is TRCP 166a(a). For the second and third, the rule is TRCP 166a(b). For the fourth, the rule is TRCP 166a(i).

To preserve error in a summary judgment, first, make sure that you've done all your work with the special exceptions. You don't want to win a summary judgment only to have it overturned on appeal because the party resisting the summary judgment didn't get a right to replead, etc. Second, if you are fighting a motion for summary judgment, and it is unclear, you have a duty to file special exceptions on the motion. Now here's the best news of the post: in general, your written response to the motion to summary judgment is all the error preservation you need.

Also. be aware that summary judgments are relatively likely to be reversed on appeal. The standard of review for a summary judgment is de novo. Unlike trial judgments, summary judgments don't get a presumption that they are correct.

 

Passenger's Refusal to Consent of Search of Car Driven by Common-Law Spouse Upheld

Wayne Danish drives a car titled in his name. Shirley Copeland is a passenger. Sheriff's Deputy Jesse Garza, lacking a warrant and probable cause to search the vehicle, asks Danish for permission to search the car. Danish agrees, but Copeland strongly objects. Danish and Copeland both tell Garza that the two of them are common-law spouses. Relying on Danish's consent, Garza searches and finds drugs (I would hate to have been him once the two of them got back home.).
Copeland moves to suppress the drugs. The trial judge grants the motion. The State appeals.  Chief Justice Rogelio Vasquez, writing for a panel including Justices Dori Contreras Garza and Rose Vela, affirms.
The appeals court held that the statements of the couple were sufficient to evince their marriage notwithstanding that they had different last names- it appears that their marriage would in turn show that she had an ownership interest in the car (The prosecutor argued that their claim of marriage was less credible because Copeland didn't take Danish's last name?! Both of my ex-wives kept prior names and my current wife hyphenated half-heartedly and not always consistently.). The appellate court held that Copeland had standing to object to the search of her husband's car. It also held that Copeland's objection invalidated Danish's consent.
Hat tip to the Texas District and County Attorneys' Association for the case. They point out that the factual presumptions of this appeal are generally in favor of the defense.
It appears to me that the proof for the motion got only a lick and a promise. No investigation appears to have been done of the basis of their marriage claim. The State stipulated to lacking probable cause for the search.
State of Texas v. Shirley Copeland, No. 13-11-00701-CR (Tex. App.--Corpus Christi/Edinburg, Aug. 9, 2012, no pet. h.)

Houston's Fourteenth Court of Appeals Has New Anders Guidelines

An Anders v. California  brief is one in which an appointed counsel informs an appellate court that counsel cannot find any arguable basis for error in the trial court record. It is accompanied by a motion for counsel to withdraw. The individual party is offered a chance to file a brief without counsel (pro se), pointing out arguable error. The appellate court is supposed to make a careful, independent search of the record for arguable error.
Houston's Fourteenth Court of Appeals has posted new Anders guidelines 

First Court of Appeals in Houston Requires Ebriefs

Clerk's Records and Reporter's Records need to be electronic, too.

Special Exceptions Preservation of Error

Let's start at the beginning. In a Texas state civil case, what's a defendant to do when a plaintiff files a bogus lawsuit? A defendant would have many options. First, the petition should be examined for a missing or obscure element of something needful- a formal point or an element of the cause of action. Special exceptions to the petition would lie, or they would not. Also, if requested, the special exceptions might be granted, or might not be. That makes a matrix of four options:

1. justified exceptions granted;
2. justified exceptions not granted;
3. unjustified exceptions granted; or
4. unjustified exceptions not granted.

If justified exceptions were granted, generally, the petition would be struck. The striking order should give the plaintiff a chance to correct the problem. If the plaintiff does not, then there's no petition and the case should be dismissed. The plaintiff could appeal, but the appeal would fail.
If justified exceptions were not granted, the case would go on, but the exceptions would preserve appellate error for the defendant, giving a good basis for appeal.
If unjustified exceptions were granted, and repleading would not satisfy the court, the plaintiff should object to preserve error for appeal, and the plaintiff's appeal should be successful.
If unjustified exceptions are not granted, the trial goes on, and the defendant's appeal will not be successful.
Texas Rules of Civil Procedure

Beaumont Passes Along to Seiler what SCOTX Told Them

Under Texas law, a person convicted of a sex crime or sexually motivated murder, who has a behavioral abnormality: a paraphilia, a sexual weirdness, can be civilly committed and held interminably. The State was unsuccessful in committing the first person it tried to commit. After that, though, every respondent was either committed or there was a hung jury, and on retrial the person was committed. In the first few years, I knew of one case that had been reversed and remanded. That was the only one , except for one case that got sent to the Corpus Christi court of appeals instead of Beaumont's and was judged by a visiting justice instead of a regular justice (and which was reversed in favor of the trial court by the Texas Supremes). Other than that,
the appeals court always affirmed.
Last March I wrote about a string of reversals of the SVP trial court in Conroe by the Beaumont COA. There was another reversal in May that I wrote of here.
Now there's another--In re Commitment of James Anthony Miller, No. 09-11-00450-CV (Tex. App.--Beaumont (July 26, 2012, no pet. h.)   The trial judge appears to have been Michael Seiler. After the State and the defense had each taken a turn at questioning the panel from which the jury would be selected, the defense wanted to ask either: (1) “Can you set aside any bias if you find there’s an offense against a child?  Can you listen to all the evidence and follow the law?” or (2) “Is anyone unable to hear topics about children?  Can you listen to the evidence and follow the law?”  The trial court  refused Miller’s request to pose such questions to the jury panel.
Chief Justice McKeithen joined by Justice Charles Kreger held that a trial court’s refusal to allow proper questions during voir dire denies a party’s constitutional right to trial by a fair and impartial jury and is harmful, i.e., probably caused the rendition of an improper judgment, following In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011) (per curiam) and Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705 (Tex. 1989). The third panelist, Justice David Gaultney, argued in dissent that the trial judge was in his sound discretion not to allow additional questions after voir dire had been closed once, and that there was no indication that the trial judge's failure to allow the question or questions caused any biased veniremember to get on the jury. That is, the trial judge's action was either not error or was harmless error.