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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.

Monday, December 16, 2013

Who's Running for Texas Court of Criminal Appeals Judge Tom Price's Old Seat?

Lots of action in races for Texas Court of Criminal Appeals seats. Tom Price, Paul Womack, and Cathy Cochran are not running for reelection.

Former federal prosecutor and former state district judge Bert Richardson and San Angelo state district judge Barbara Walther- best known for being the trial judge in the Warren Jeffs/FLDS cases- are seeking the Republican nomination to run for Price's old seat. The winner of that race will face Democrat El Paso criminal lawyer John Granberg and Libertarian Mark Bennett, author of the excellent Houston blog Defending People.

Readers of this blog will remember that I hold Warren Jeffs's petition to the CCA to be the worst appellate brief ever written.

Will have to put off the other two races to a later post.

Sunday, December 15, 2013

Even Five Days After the Filing Deadline, the TXSecState, Other Information Sources and I Miss Joe Pool's SCOTX Bid

I told you about how Republican Court of Criminal Appeals Judge Lawrence Edward Meyers switched from the GOP to being a Democrat and running as that party's nominee against incumbent Texas Supreme Court Jeff Brown, and even though I waited five days after the filing deadline and cross-checked with other blogs and newspapers to see who all were running, Joe Pool, Jr.'s candidacy

only appeared on the Texas Secretary of State's office after Saturday, December 14, 2013. The photo above is of the candidate with his wife Leslie. He's a Republican running against Brown for the nomination. A son of the late Congressman Joe Pool, Sr., Pool emphasizes his Christian faith and his Texas values. Last election cycle he, along with Republican John Phillip Devine, challenged incumbent Texas Supreme Court Justice Republican David Medina. Of the three of them, Pool had the least money, and he pulled the fewest votes. Pool then threw his support behind Devine, which is how Devine won.
So Brown's going to have Pool running against him to his right in the primary and Meyers running against him to his left in the general election.

I said in the last post that my posts were only as accurate as the TXSecState's website, which is still the most authoritative internet source of information though it be as slow as molasses to post its knowledge and never says "Now the info is complete."
I am going to edit the former incorrect post.

Saturday, December 14, 2013

More Corrections, and Two Friends Run against Good Justices

I tried to use the Texas Secretary of State's Election page to describe and handicap the appellate judge races a little. Not a good idea. It only reported my law school classmate Republican Houston Fourteenth Court of Appeals Justice Sharon McCally's
challenge to Texas Supreme Court Phil Johnson
since yesterday. Sharon is smart and nice and well-turned-out and can be tough. Suspected by some of being a secret proponent of plaintiffs, she's been remarkably even-handed as a judge.  She does not appear to have ever gotten an office from Governor Perry.
I don't know anything bad about Justice Johnson. He is a former president of the Lubbock County Bar Association, and appears to have been a white-shoe defense lawyer in civil cases. Governor Perry raised him up to be a Supreme from being the Chief Justice of the Seventh Court of Appeals in Amarillo.
Sharon's a strong campaigner and money-raiser, while at least as far as his SCOTX career goes, Johnson is a creature of the governor and will almost certainly have his support and his friends' support, so it's going to be a hard-fought race. And people don't talk about it much, but in a Texas state race it is some better to be from a big city than from an area that's more spread out. More campaign money in Houston than in Lubbock and Amarillo combined.

It also did not have my old friend Republican former State Representative Robert Talton's

bid to oust Chief Justice Nathan Hecht.
The winner of this contest will face perennial candidate El Paso 34th District Court judge Democrat William Moody also known as Bill Moody.
Hat tip to Don Cruse at the Supreme Court of Texas Blog. I guess there is no substitute for actually being on the ground.

Tuesday, December 10, 2013

A Switch of Parties by a Statewide Appellate Judge and Other Political News about Texas's Supreme Court

Texas state judges are elected by the voters, except when they are appointed to fill unfinished terms. Texas's highest court-- whose jurisdiction is generally limited to civil matters-- is the Texas Supreme Court. For criminal matters in the Texas state system nothing is higher than the Court of Criminal Appeals. Their courts' jurisdiction cover the state-- every county. All of the courts above the trial level and lower than those two have jurisdiction over multiple counties. To apply to seek nomination of the Democratic or Republican parties for offices covering more than one county, one applies at the respective party state headquarters in Austin. If you try to find from the state Republican web site who the candidates are, the that site sends you to the Texas Secretary of State's site. which did not say and does not say that it is complete. I assume that after the last three days, SecState's site is current. Understand that they do not promise it is, and know that a person with a writ could get anything changed.

Day before yesterday I published lineups based on premature SecState information for which I am heartily sorry.

It is obvious to me that reporting the Texas appellate court races will require more than one post. This post will be about l'affaire Meyers and other SCOTX news. I will follow up with posts about the contest for a seat on the Beaumont bench and for seats on the Texas Court of Criminal Appeals and Texas courts of appeals' races.

1.  Texas Court of Criminal Appeals judge Lawrence Meyers switched from my Grand Old Party to the Democrats to run against Jeff Brown for a Texas Supreme Court seat. Don't know the backstory to this, but and Cynthia Hampton and I, among many others, don't understand why he's doing this. He does not have to leave his seat on the  CCA to run to be a Supreme. His CCA term ends January 2017. The Democrat blog Burnt Orange Report points out that this makes Meyers

the first Democrat statewide officeholder since the second millennium of the common era (1998). Here's what Jeff Brown looks like.
Poor fellow, he has drawn repeat candidate Joe Pool, Jr. as a primary opponent, who is discussed in the post after next I missed him the first couple of days.
2. The Chief Justice race is covered in a subsequent post; this corrects an error in an earlier version of this post.
3. Democrat Corpus/Edinburg Appeals Court Justice Gina Benavides
challenges Republican incumbent Jeff Brown.
4. The battle for Place Eight is covered in a subsequent post, correcting that contest's nonappearance in an earlier version of this post.

Wednesday, December 4, 2013

Federal Fifth Circuit Combines Statements of the Case and of Facts and Standardizes Record References for Automation

The United States Court of Appeals for the Fifth Circuit adopted proposed rule changes that combine statements of the case and statements of facts in briefs into a single statement of the case. They also standardized record references in briefs so that the references would automatically hyperlink to the record. These changes took effect December 1. The Fifth Circuit is the federal appeals court for Texas, Louisiana, and Mississippi.

Sunday, November 17, 2013

Justice David Gaultney Retires; Civil Defense/ Business Attorney Leanne Johnson Appointed to Replace Him

Practically all bloggers report as their second job. This is certainly true for me, practicing appellate law and criminal defense from an office in The Woodlands. It sucks that when my practice and my personal business are busy (My wife and I are in the process of moving to a new house.), and for the last two workdays I have had less than 15 minutes to sit at a desk at a computer.
Anyway, Justice David Gaultney has retired. Governor Rick Perry has appointed civil defense attorney Leanne Johnson to replace Gaultney. She's a Beaumont attorney from the extremely plugged-in firm of Orgain Bell and Tucker. She will be the first female justice on the court. A 1983 magna cum laude Bachelor of Science in political science from Southern Arkansas University in Magnolia, a high honors graduate from University of Arkansas School of Law in 1986 where she on Moot Court Board and Law Review. She was a law clerk for Eastern District of Louisiana Judge Nauman Scott. Her background is largely in or connected to the petroleum industry, disputes relating to rights of way or easements, pipeline regulatory and personal property disputes, eminent domain, reinsurance and excess insurance coverage disputes, commercial contracts and litigation, class actions, personal injury defense work , employment law employer defense and ERISA defense. She's Board Certified in Personal Injury Trial Law, and is licensed to practice law in both Texas and Arkansas. She is admitted to practice law before the United States District Courts for the Eastern and Southern Districts of Texas, and the United States Court of Appeals for the Fifth Circuit. She has been certified as a mediator and has a strong record of bar service and service to the Beaumont community.
Governor Perry chose her over former state district judge Fred Edwards and my friends Steve Simonsen and Scott Golemon. Simonsen and Golemon were long shots, but this development must be a bitter disappointment for Judge Edwards.
I think the justice's photo is relevatory: resolute, extremely practical, energetic, and very bright (Look at those eyes!). I would be surprised to find that she loves the bookish trappings of the law as much as Justice Gaultney charmed us with, but like Justice Gaultney back in the day, she comes to the bench without a lengthy judicial record.
It appears that the court will be tougher; I have some hope that it will be as smart.

Sunday, November 10, 2013

Landlords Need Lawyers to Defend Eviction Appeals

New Caney Oaks Apartments evicts Ms. Kelly McClane. Texas eviction suits are heard in justice-of-the-peace courts. They are rare exceptions to the rule that corporations and such like must be represented in courts by lawyers. A landlord organized as a corporation or a limited liability company, etc. may just send an employee or other agent to JP court for an eviction, rather than hiring a lawyer.

The tenant loses by default, then appeals to a Montgomery County Court at Law. After a first setting in front of a visiting judge, the appellate case is reset to the next day. That day, the property manager appears, but neither the tenant nor any counsel for her. The appeal is dismissed because no one was present for the tenant. The tenant said later that she had called the County Court at Law that she would not be able to be present at that latter setting and that someone there said that she would get a notice of the date that the appeal was yet set again to. The tenant got a notice of yet another appearance date, about a month off. On that third setting, the property manager was there, but not McClane nor any lawyer for her. The judge defaulted the appeal in favor of the landlord.

McClane said that she was late because she couldn't find a parking space in or near Montgomery County's courthouse square and just drove around and around as the time ticked away (The courthouse public parking lots are the Baptist Church parking lot to the north northeast, the county parking garage to the west, and lots one and two blocks to the south. In and next to courthouse square are meticulously policed metered spaces.). With the aid of counsel, she files a motion for new trial, an amended motion, and, apparently, a second one-- the second with exhibits and an affidavit.  The county court at law overruled it and made a finding that the visiting judge at the first appellate proceeding did not have an order of appointment for that court, that that judge dismissed the appeal, and that a motion for new trial had been granted between the first and second appellate proceedings because of the lack of a judge's appointment in the first proceeding. As to the second one, the county court at law judge ruled that that the appellant had legitimately defaulted.

McClane appealed to the Court of Appeals at Beaumont. Justice David Gaultney, writing for a panel including Justices Charles Kreger and Hollis Horton, held that the eviction wasn't moot because McClane had put the adequacy of the notice to vacate in issue in her case and the lease had a holdover provision and she had not vacated the apartment. They held that the last county-court-at-law judgment was the final judgment in the case (which affects-- among other things-- court-of-appeals deadlines), because it was the first signed judgment. A first judgment was orally pronounced from the bench, but was never entered in writing. Lastly, they held that none of the exceptions that would allow New Caney Oaks to be represented by a non-lawyer in the county court at law would apply, and, therefore, the case had to be reversed and remanded.

Courts of appeals hate default judgments.

It is also good to find out what my old friend Richard Tomlinson-- a stalwart civil advocate for the poor-- is doing these days; he's apparently a senior counsel for Lone Star Legal Aid in Houston.

McClane v. New Caney Oaks Apartments, ___ S.W.3d ___, No. 09–13–00284 CV (October 31, 2013, Tex. App.--Beaumont,, no pet. h.)

Monday, November 4, 2013

Whither Warrantless Blood Alcohol Testing after McNeely? Contrasting Views from Houston's 14th

Facts: Douds, apparently intoxicated, drives his wife from a party and hits another car occupied by other people leaving the party. Douds's wife complains of  chest and rib pain and that she cannot move her right arm. She refuses to transportation to the hospital by the EMTs, instead leaving the scene with the driver of the car hit by her husband. A police officer-- Tran-- arrests Douds and seeks a breath test from him. Douds refuses, and Tran takes him to a local medical center for a mandatory-- that is, warrantless-- blood draw. Douds moves to suppress admission of the blood specimen against him and also seeks to have the warrantless specimen law declared unconstitutional. Tran testifies that he required the blood draw based on the totality of the circumstances, because the wife was injured and would need medical attention. On cross-examination, Tran admits that Douds's wife did not promise to go to a hospital, but Tran maintained that he thought that the lady would seek medical care that night.
The trial judge refused the motion to suppress. Douds pleaded guilty to a reduced charge, but appealed the denial of the suppression and the overruling of the constitutional challenge. Justice William J. Boyce, writing for himself and Justice Martha Hill Jamison, held that the trial judge had found that Tran's testimony credible, and that that was the basis of the denial of the motion to suppress.  Because the trial judge had been able to assess Tran in person while the only thing the justices had was a cold record, the justices were loath to second-guess the trial court, and so affirmed on that issue.
As to the constitutional challenge, Schmerber v. California, 384 U.S. 757 (1966) upheld a warrantless blood draw in an intoxicated driving case against a self-incrimination objection and Missouri v. McNeely, ___ U.S. ___, No. 11–1425 (Apr. 17, 2013) sustained suppression of a warrantless blood draw alleged justified because the dissipation of alcohol from the blood took place so quickly that taking the time to get a warrant was never necessary. The majority of the panel held that Douds's was a different case. Texas's law did not, as the objectionable law in Missouri did, just allow all drunk-driving blood draws. Instead, it set up specific, limited circumstances  under which such blood draws will be allowed. Douds, they argued, had not shown why those circumstances did not constitute exigencies that would excuse the lack of  a warrant, and so upheld the law.
Justice J. Brett Busby dissented; a warrant is required for a blood draw anytime, he said, that there was no exigency or emergency making a warrant impractical or impossible, which is what is required to satisfy McNeely.
Busby's view does seem to me to be consistent with the principle that for a search, a warrant is presumed necessary unless there is a legally recognized excuse. As communication technologies improve, there are fewer and fewer excuses for not getting a warrant. Hence the no-refusal weekends of my home Montgomery County Texas.
Kenneth Lee Douds v. State of Texas, ___ S.W.3d ___, No. 14-12-00642-CR (Tex. App.-- Houston [14th Dist.] Oct. 15, 2013, no pet. h.)

Thursday, October 31, 2013

From the Irritated Appellate Lawyer Department

Heard a news report last night that said that "New York's Supreme Court" had found New York City mayor Michael Bloomberg's ban on large-serving-size sugary drinks unconstitutional. This may technically be true, but for the vast majority of listeners it's likely misleading. You see, in New York state, "supreme court" is what they call one of their type of trial courts, and cases from there are appealed to the Supreme Court-- Appellate Division, which is what happened to the ban-- an Appellate Division court overruled it. What nearly all of the rest of the American states call a supreme court--  their highest courts-- is called the Court of Appeals in New York State.
Here's my new favorite song that mentions the State of New York.

Sunday, October 27, 2013

Drunk Drives in Empty Lane the Wrong Way- Beaumont Justices Disagree Whether the Car Is a Deadly Weapon.

Mark Randall Brister appeals his third conviction for driving while intoxicated. His two prior offenses make his third conviction a felony. He complains that the evidence in this last case is insufficient to prove that:

  1. he was intoxicated, and
  2. he used his car as a deadly weapon.
First, consider the sufficiency of the evidence. Back before alcohol concentration became a definition for intoxication, people were convicted of intoxication offenses by proof that they did not have the normal use of mental or physical faculties by reason of the introduction of a substance into the body. Intoxication offenses predate field sobriety tests, police videos,  and alcohol breath test machines. If, as in this case, a police officer witnesses the defendant drive in the lane for oncoming traffic, be unable to stand when he is out of the car, unable to speak without slurring his words, smelling strongly of alcoholic beverages, and disputating with every authority between the road and his county jail cell, then there is sufficient evidence that the defendant lacked the normal use of faculties because of alcohol in the body. That there were not any field sobriety test results, no in-car video-- cruisers did not have cameras installed--, no breath test results, and a police station video set-up that did not work most of the time that cops were trying to record did not queer the conviction.
  
Second, the issue about the deadly-weapon finding was whether or not people other than the defendant were endangered by the crime. Drichas v. State, 175 S.W.3d 795, 797  (Tex. Crim. App. 2005). Brister drove his car for a time on the wrong side of the road, but it was the middle of the night and the road was fairly well deserted. Justice Charles Kreger, joined by Chief Justice Steve McKeithen, wrote an opinion reversing the deadly weapon finding, Justice Hollis Horton dissented: he believed that the trial court was right that the late-night wrong-way drive made the car a deadly weapon.

Prosecutors love felony DWI deadly weapon findings which greatly increase the amount of time that convicts have to do. High-level judges, though, often feel a need to require that there be additional evidence of endangerment of innocents for there to be a deadly weapon finding for crimes where the deadly weapon is a thing required to commit the offense itself. One can't commit DWI without driving a car, nor evading arrest with a vehicle without operating a vehicle. Some crimes have the delayed parole consideration dates of a deadly weapon without an extra finding. Appellate court judges quite reasonably believe that if the legislature wanted delayed parole dates for all felony DWIs and similar offenses, the legislature could just say so in the statute.

Thanks to the Texas District and County Attorneys Association.

Mark Randall Brister v. State of Texas, ___ S.W.3d ___, No. 09-12-00247-CR, (Tex. App.-- Beaumont, Oct. 16, 2013, no pet. h.)

Friday, October 25, 2013

Ten Words Make Up 25% of English

A really interesting English writing fact. http://www.businessinsider.com/zipfs-law-and-the-most-common-words-in-english-2013-10?nr_email_referer=1&utm_source=Triggermail&utm_medium=email&utm_content=emailshare

Federal Appeals in Texas and Other Parts of the U.S. South

U.S. federal courts are generally organized into district courts, courts of appeals and then the Supreme Court of the United States. The most common federal court that does not fit in this structure is bankruptcy courts, which are below district courts. District courts are the general trial courts of the U.S. federal government. Appeals from bankruptcy court can go to district court or a Bankruptcy Appellate Panel of bankruptcy judges, depending on whether the local federal jurisdiction has set up BAPs. Texas has four federal judicial districts- eastern, northern, southern, and western. I won't go into the boundaries of the districts- they're pretty common-sensical, and you can look them up with the link above.

The courts of appeals for federal district courts are organized into circuits. The Fifth Circuit covers appeals from Texas, Louisiana and Mississippi. Before October 1, 1981, it also included Florida, Georgia and Alabama, but then an Eleventh Circuit was formed for them. It is important to remember if you are citing southern cases from around that time, that Fifth Circuit precedents bind the Eleventh Circuit for cases decided before October 1, 1981. Besides appeals from district courts, the Circuits also hear appeals from some federal agency decisions and from the Board of Immigration Appeals.

Federal jurisdiction is limited. Unless the United States Constitution or a statute allowed by it provides for federal jurisdiction of a matter, the presumption is that federal courts do not have jurisdiction. This contrasts with U.S. state court jurisdiction where there should be some court for nearly any dispute.

Sunday, October 20, 2013

Houston's Fourteenth Court of Appeals Overturns Improper Strikes of African Americans

Robert Nathaniel Jones appealed his felony conviction for possessing a controlled substance. He said that the State peremptorily struck an African-American veniremember in violation of Batson v. Kentucky, 476 U.S. 79 (1986). He claimed that the State’s explanation for striking one African-American veniremember applied identically to three non-African-American veniremembers who ultimately served on the jury.
The State said that, after striking less favorable veniremembers, it used its final strikes against veniremembers who rated law enforcement in their community a “seven” on a scale of one to ten. It said its strategy was to “str[ike] everybody who was a six [on law enforcement] and then everyone who was a seven, up until [it] got to the point of . . . [veniremember number] 26 or 27,” where it “ran out of strikes”; it “took seven or lower and just moved up the scale from [veniremember number] one.”
The trial court should not have accepted this explanation because it is against the record. When the State struck veniremember number twenty-four, an African American, it skipped over two non-African-American veniremembers with lower numbers who also gave law enforcement a score of seven. Additionally, the State’s strikes revealed disparate treatment of African-American veniremembers. So Justice J. Brett Busby, writing for a panel including Chief Justice Kem Thompson Frost and Justice Marc W. Brown reversed and remanded the case for retrial.
Trial lawyers, Batson error is very rarely properly preserved, but that’s old news for readers of this blog.

Wednesday, October 16, 2013

Eastland Senior Staff Attorney John M. Bailey Appointed Justice There

Texas's 11th Court of Appeals' senior staff attorney John M. Bailey has been named a justice of that court by Governor Rick Perry. The 11th Court of Appeals sits in Eastland, the smallest appeals-court city in Texas, a 1920s oil boomtown in west Texas. Eastland, next to the city of Cisco-- where Bailey lives-- and virtual ghost town Desdemona, is a short drive from Abilene, which the court serves. It is also the court for Midland. Bailey replaces retiring justice Terry McCall and his term will end at the next election. The Abilene Reporter-News story is here (behind a pay wall).

When I was a prison public defender I always enjoyed traveling to Abilene and San Angelo, marveling at how a place so rocky and lacking in water could be absolutely choked with thorny, prickly flora (I suppose thorns and prickles and burrs are a plant's way of saying "Get me the hell out of here! At least my children!").

Since Bailey lives in Cisco, this blog will follow its policy of playing one of its favorite tracks from the band "War" whenever it can find an excuse. I note for the record that to the best of my knowledge Bailey is not, in fact, a friend of mine, and, additionally, for all I know, Bailey is a teetotaler.

Music Stops; All the Players Find New Seats

Nabors Corporate Services general counsel and former judge of Harris County's 129th civil District Court Grant Dorfman takes over Harris County's 334th civil District Court. Former presiding judge of the 334th Ken Wise-- what a great surname for a justice-- rises to Houston's 14th Court of Appeals. Wise takes the place of Jeff Brown, elevated to Texas's Supreme Court. Brown takes the seat of Nathan Hecht, who will now be the Chief Justice, while Chief Justice Wallace Jefferson leaves his seat to go earn some money with the law firm now to be called Alexander Dubose Jefferson and Townsend, which, as far as the judicial seats go, completes the cycle. People who can do the work of a Texas Supreme Court justice-- or the work of a justice on any Texas appellate court-- can make much more money in private practice than they can in working on a court. I don't know if it is practical to raise judicial salaries to a level such that they would be competitive with private sector pay. It is sad, though, to see the passage of good justices off the benches because of money. Former Chief Justice Phillips, former Justice Hankinson, former Fort Worth Justice David Keltner, and others too numerous to mention are sorely missed.

There are a lot of reasons not to treat appellate justices poorly. One of those reasons is the financial sacrifice that practically all of them make to serve.

Sunday, October 6, 2013

Eye Contact Doesn't Always Make You More Persuasive.

Adapt your mode of arguing to your circumstances. Staring down a justice at oral argument  is rarely a good idea. The Washington Post tells you why.

Thursday, October 3, 2013

They're Here. Get Used to It.

America now has an openly gay appeals court justice. His name is Todd Hughes, and he now sits on the United States Court of Appeals for the Federal Circuit-- a specialized federal appeals court that sits in Washington D.C. handling cases in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans' benefits, and public safety officers' benefits claims. Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims.
As you should have been before,  you should be conscious in your advocacy that appellate benches look more and more like America, and that appellate court's staffs absolutely do.

Wednesday, September 25, 2013

CCA Tells CA Not to Dismiss Case, but to Make the Trial Court Rule

Criminal defendant Damien Hernandez Cortez  files a timely notice of appeal of his jury trial. The trial judge does not file the certification of Cortez's right to appeal. Here's what Texas Rule of Appellate Procedure 26.2(a)(2) has to say about these certificates:

The trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.  In a plea bargain case — that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only:

(A)    those matters that were raised by a written motion filed and ruled on before trial, or

(B)    after getting the trial court’s permission to appeal.

Rule 26.2(d) says:

Certification of Defendant’s Right of Appeal.

If the defendant is the appellant, the record must include the trial court’s certification of the defendant’s right of appeal under Rule 25.2(a)(2).  The certification shall include a notice that the defendant has been informed of his rights concerning an appeal, as well as any right to file a pro se petition for discretionary review.  This notification shall be signed by the defendant, with a copy given to him.  The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under  Rule 34.5(c)(2).  The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.

This certification has a number of purposes. One of them is that it lets the appeals court know whether or not the trial judge thinks that the defendant has a right to appeal. Lots of defendants who plead guilty do so in plea bargains. (This is the main way criminal cases are disposed of.). One of the main things that the State gets out of a plea bargain is that the defendant agrees not to appeal. The form quickly notifies everybody whether or not a case is intended to be a no-appeal plea bargain.
A jury trial conviction, though, is exactly the kind of case that may be appealed, and is exactly the kind of case Cortez has. It would be apparent from the clerk's record of the papers in the case or the court reporter's or recorder's record that a case is a trial case. When the appellate court learned that the certification was missing, it notified the trial court and district clerk that this was the case, but still nothing came. Cortez's court of appeals felt it had to dismiss the case-- the last sentence of 26.2(d) says that a case without a certification must be dismissed-- even though it ends up punishing the defendant who lost at trial for the failing of the trial court judge. It advised the defendant that a timely motion for rehearing after supplementation of the record with the certification would revive the appeal. Still, there was no supplementation by the time the motion for rehearing was filed. There's no record of what the lawyer for Cortez did or tried to do to get the certification from the trial judge, and it does not appear that the court of appeals ordered the trial court to make the certification under 34.5(c)(2). The chief justice and one justice of the court of appeals refused the rehearing. Reading between the lines, they appear disgusted at the rule's requirement of dismissal and signal the defendant to take the case up to the Court of Criminal Appeals (What would have happened if his trial counsel was appointed and wouldn't have taken up the case without assurance of payment since counties generally pay for appeals but not for petitions for discretionary review? Cortez would have been out of luck.). The other justice-- Patrick A. Pirtle, may his tribe increase-- noticed that Texas Rule of Appellate Procedure 2 allowed courts of appeal to suspend many of the appellate procedure rules-- including 26.2(d)-- in order to expedite a decision or for other good cause. He said that suspending this rule in this case made good sense since it was obvious from the rest of the record that Cortez had a right to appeal.
When the Court of Criminal Appeals got the case, Judge Johnson wrote a case for a unanimous court (Even Presiding Judge Keller agreed!) saying that if the trial court did not produce and sign the certification after a request by the defendant and a request by the court of appeals, the court of appeals should order the judge to produce and sign a certification-- that's Rule 34.5(c)(2)-- which would take care of the matter unless the trial judge were dead, incapacitated, or had disappeared, etc. In situations like that, the rule should be waived, especially where the rest of the record clearly shows that the case was appealable.
Damien Hernandez Cortez v. State of TexasNo. PD-1349-12 (Tex. Crim. App. Sept. 18, 2013)

Sunday, September 22, 2013

Texas Court of Criminal Appeals Judge Cathy Cochran Tells You What's Needful for an 11.07 Writ


Texas Court of Criminal Appeals Judge Cathy Cochran- backed up by Judges Johnson and Hervey- explains that they want complete original application with all the information for 11.07 writ applications and responding timely to the State's answer and its proposed findings of fact and conclusions of law. Applicant William Lee Pond's counsel complained that they did not get timely notice of the trial court's finding of facts and conclusions of law.
In late February 2013, the trial judge adopted and filed the State's proposed findings of fact and conclusions of law and the district clerk sent a copy of them to Pond's counsel. That letter got filed in the middle of March and was forwarded to the Court of Criminal Appeals then. The judges complained that Pond alleged that both applicant’s trial and appellate attorneys were constitutionally ineffective, and alleged twenty purported failures by his attorneys. Eleven of his thirteen trial counsel complaints were about failures to object, but he neither asserted nor showed that those objections would have been or should have been sustained. Judge Cochran also complained that Pond failed to show or argue that he was harmed or that there was a reasonable likelihood that his trial result would have been different.
Judge Cochran argues that the original application should have had arguments and showings of harm and that Pond should have responded to the State's answer and findings when the writ application was still in the trial-court evidentiary part, when they might have been argued and changed. Applicant's counsel have to read their mail and respond timely to what the State argues and asserts. Sounds like good advice to me.
Hat tip to the estimable Jim Skelton. His Criminal Law Institute emails are wonderful.
Ex parte William Lee Pond, (No. WR‑79,267‑01,Tex. Crim. App. Sept. 13, 2013)(Cochran, J., concurring in denial of reconsideration- Johnson and Hervey, JJ., joining).

Sunday, September 15, 2013

Who Has a Right to Appointed Counsel at Trial in Texas and in Federal Court?

American criminal defendants threatened with jail in either federal or state proceedings are supposed to have counsel appointed for them if they can cannot afford an attorney themselves. Gideon v. Wainwright, 372 U.S. 335 (1963). Convicts who are too poor to afford a lawyer who do not formally waive their right to one will have their cases reversed. This used to be a common problem with old prior convictions, but you are unlikely to encounter a case 50 years old or more that has not been challenged for Gideon error by now any more. Also those indigents adjudged sexually violent predators in Texas. Tex. Health & Safety Code sec. 841.005. In a suit filed by a Texas governmental entity in which termination of the parent-child relationship is requested, the court has to appoint an attorney ad litem to represent the interests of:

  1. an indigent parent of the child who responds in opposition to the termination;
  2. a parent served by citation by publication;
  3. an alleged father who failed to register with the registry under Texas Family Code chapter 160 and whose identity or location is unknown;  and
  4. an alleged father who registered with the paternity registry under Texas Family Code Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.
Tex. Fam. Code Ann. sec. 107.103.

This is an important rule because in a world where there is less and less sure-fire reversible error-- this is the real thing.


Monday, September 9, 2013

Beaumont Lines up with Majority of Contractor Injury Workplace Condition Cases

Newtron Group, Inc. was hired to repair electrical equipment at the ExxonMobil chemical plant in Beaumont damaged by Hurricane Ike. Calvin Clary was a Newtron employee working on junction boxes outside of a building there called "switchgear 2", which he went into through a door that was the main access to the building to get a work permit signed. When he left, the glass-paneled door fell apart, cutting his hand. He sued two ExxonMobil corporations for the injury.
ExxonMobil argued that they were protected by Texas Civil Practice and Remedies Code, Title 4, Chapter 95 which limits a property owner's liability to independent contractors.  Clary said Chapter 95 did not apply, citing the Beaumont Court to Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex. App. Houston [14th Dist. 2009, no pet.) Hernandez's facts were that he fell through the roof of a Chili's Restaurant when he was working on an air conditioner there. The trial court poured him out, saying that his case was barred by Chapter 95.
Collyn Peddie, a prominent plaintiff's personal injury lawyer, represented Hernandez, Brinker was represented by the estimable Doug Gosda, who I remember from my days in Houston. It appears that there was oral argument- I bet it was quite a thing to see. Anyway, the three justices in Hernandez  produced three different opinions- Jeffrey V. Brown held that 95 didn't apply because Hernandez's injury did not come from the a/c unit, but from Brinker's roof. John S. Anderson concurred because Brinker had not proved that it was the owner of the restaurant, that everybody just assumed that, but it had to be proved. Leslie Yates dissented: Hernandez was an independent contractor injured working on Brinker's property- none of the exceptions to 95 applied.
In Clary, Beaumont Justice David Gaultney writing for himself, Chief Justice McKeithen and Justice Kreger, held that Hernandez was the minority view on the question of whether Chapter 95 applied to contractors' right to sue property owners for property defects other than from that thing that the contractor was repairing. Gaultney cited many opinions from other Courts of Appeal conflicting with Hernandez. He also held that Chapter 95 barred this suit- ExxonMobil did not supervise the job so closely as to become responsible for Clary's injuries, and ExxonMobil did not have the requisite knowledge of the door's defect to make it responsible that way.
I bet that this case won't go up to the Texas Supremes. Clary has no reason to think that the pro-defense SCOTX would rule for him, and ExxonMobil would have no interest to take it up- it's won everything it wanted.
Clary v. ExxonMobil, ___ S.W.3d ___, No. 09-12-00060-CV, (Sept. 5, 2013, Tex. App-- Beaumont, no pet. h.)
 Hat tip to the Southeast Texas Legal Record for hipping me to this case.

Thursday, September 5, 2013

Changes at the Beaumont Court of Appeals

Texas's Ninth Court of Appeals has switched from mail notification to email notification and requires email addresses in addition to anything else the Texas Rules of Appellate Procedure require. I guess that the email address requirement will be waived for pro se parties who lack email (though it would seem to me that the court would have a duty to mail them, rather than email notices). E-filing of clerk's records and reporter's records is now required, and I understand that e-filing any other documents is not yet possible, though e-filing of other documents is supposed to come on line this month.

Saturday, August 31, 2013

Formally Citing a Federal Statute?- Check the United States Code, the 2012 Version.

A new edition of the United States Code started last year (The federal Government Printing Office basically does a new one every six years, and, in the interim, they put out supplements, like yearbooks added onto an old-fashioned printed encyclopedia.). The Bluebook says that the proper way to cite a federal statute is to cite it to the U.S.C. You're supposed to give the volume number and the date for the section you are citing. So, in the most formal legal writing situations, you have to look up every citation of a federal statute in the official printed United States Code published by the GPO to cite it to Bluebook standards. If I won the lottery, I would just buy every new volume each time one came out. As of this writing, there appear to be six volumes so far, each costing from between $138 and $156. If I spent that kind of money on infrequently used law books (I do much more Texas state work than I do federal work.), the financial controller of my law firm (AKA my wife) would have my ass.

As a practical matter, for formal citation of federal statutes, I am almost certainly going to need to make at least one trip to a Houston law library.

Do not confuse the U.S.C. with the United States Code Annotated by West-- probably the print edition easiest to access-- or the United States Code Service by LexisNexis. The annotations of these versions make them much more helpful for actual research. The rap on these two is generally that West's has a few more notes. The very,very nice folks at LexisNexis say that their version is more carefully edited-- that is, the extra annotations in West's aren't really interpretive-- they include a lot references to U.S.C. sections that are merely formal and add nothing, and LexisNexis costs a great deal less. Of course, access to U.S.C.A. is on the Westlaw computer service and U.S.C.S. can be gotten to on LexisNexis's website.

There are many fine, no-charge Internet sources of federal statutes:
U.S.C.A., U.S.C.S. and the no-charge cites above don't have the formal volume numbers and year numbers that the Bluebook requires, but they are fine for everyday use.

The GPO's annual U.S.C. CD-ROM is only $15, but presently the latest one is the one in which the statutes in force as of January 5, 2009 are collected.

People will look back at these times when formal legal citation required a book full of paper pages to be checked as a dark ages, and it might be that a physical edition may always have to be authoritative or authoritatively checked, but there's no reason it could not be some sort of read-only data file, one for which access could be gotten for no charge, notwithstanding at least one trend going the other way. It's no surprise that the Government Printing Office wants to change its name to the Government Publishing Office, since putting ink on paper will be less and less of what it does.

Wednesday, August 28, 2013

Of Texas Community Supervision, a Motion for New Trial and Passing out in the Whataburger Drivethrough

Two of the things your humble correspondent loves are:

  1. The Effect of a Motion for New Trial on the Finality of a Judgment; and
  2. The food at Whataburger, which really is a Texas Treasure.
This case has both.

Jerry Paul Lundgren had been convicted of driving while intoxicated in 2009.  On January 7, 2011, his case was plea-bargained in a Wise County Court at Law at the county seat, Decatur. He was sentenced to 365 days confinement, suspended for 18 months while he was on community supervision (adult probation). Two conditions of the probation were that Lundgren was not to commit any new offenses nor to drink any alcohol. The court said Lundgren's probation was to start that day-- January 7, 2011-- and it was quite clear from what Lundgren was told from the bench and in his plea paperwork that he was giving up his right to appeal.

January 14, 2011, Lundgren, like many Texans, heard the siren song of Whataburger, and unfortunately for him, he passed out in a silver truck in the drivethrough lane, flunked a field sobriety test and found himself being escorted back to the jail for DWI.

On January 19, 2011, he filed a notice of appeal of the January 7 judgment. On January 28, 2011, he filed a motion for new trial, which, under Texas Rule of Appellate Procedure 21.8(c,) was overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to revoke his probation because he had committed a new offense and had drunk alcohol. On March 3, 2011, the Second Court of Appeals in Fort Worth dismissed his appeal for lack of jurisdiction (Remember, on January 7, he had given up his right to appeal.). Fort Worth issued its mandate in the case May 2, 2011.

June 22, 2011 the trial court entered a “Post Mandate Enforcement of Prior Judgment of Conviction Sentence Suspended,” starting the sentence that same day. It correct the judgment two days later, to add a driver's license suspension that had been in the original January 7 judgment, but which had been left out of the June 22 judgment. It, too, said that the new sentence started June 22. On July 13, 2011, Lundgren filed a motion to quash the State's motion to revoke because the January 7 judgment had not been final on January 14. He also moved to suppress the evidence against him from the Whataburger incident (It is much easier to arrest a person and get evidence against such a person if the person is on community supervision. Such a person has given up privacy protections that ordinary people have not given up.). The trial court denied the motion to suppress, found that Lundgren had violated his community supervision conditions, revoked his community supervision, and sentenced him 300 days in jail. Lundgren appealed.

The panel in this case was Justices Lee Ann Dauphinot, Sue Walker, and Lee Gabriel. Gabriel wrote an opinion that Walker joined. Dauphinot dissented. The majority held that it was absurd that a motion for new trial could retroactively eliminate probation conditions, and, thereby, probation violations. Dauphinot argues that there are many good reasons why a person entering into a no-appeal plea bargain might want to file a motion for new trial, and that Milburn v. State, 201 S.W.3d 749 (Tex. Crim. App. 2006) stands for the proposition that a community supervision judgment could be vitiated by a motion for new trial. She also pointed out that the trial court could have made Lundgren waive his right to a motion for new trial or the judge could have put Lundgren on personal bond with the probation conditions being the bond conditions. That would have worked no matter what the new trial/appellate status of the case would have been.

I would hope that court of criminal appeals would take this case up, but if I had to bet, I don't think they will-- too much of a hot potato, being opposed by Mothers Against Drunk Drivers, etc.

Thanks to the estimable Jim Skelton for hipping me to this case.His Criminal Law Institute is a great source of learning for Texas criminal defense lawyers, and a great value.
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Walker and Gabriel, JJ.) (no pet. h.) 
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Dauphinot, J., dissenting) (no pet. h.)

Sunday, August 25, 2013

Interlocutory Texas State Discovery Appellate Court Relief

Texas state trial courts are less open to interlocutory (that is, non-final) appeals than their federal counterparts. A common way for an appellate issue to arise in a Texas state civil trial is a party to seek to mandamus the trial about a discovery matter-- usually a defendant's fighting disclosure. The final judgment rule prevents straight-up interlocutory appeal about this kind of thing. In order for mandamus relief to be warranted the law has to be so clear in favor of the party seeking mandamus, that the judge's duty is not one that requires any judicial discretion. The judge's duty needs to be a ministerial one-- a clerical act more than a judicial one. Additionally, the judge's failure to follow the law needs to be irreparably harmful to the party. If it is not, then there is no reason to get a mandamus-- the party could just wait until after the trial. This kind of mandamus is subject to the challenges and weirdnesses that I have discussed in at least four other blog posts.

Friday, August 16, 2013

The Nines Split a Decision re Adequacy of an Attempt to Contest a Will

Mr. Adrian V. Newman executed a will April 11, 2012 in which he disinherited one of his sons-- Kenneth L. Newman. Adrian Newman died June 17, 2012. Letters testamentary were issued as to this will per an order dated July 10, 2012. The proponent of that will caused a certificate to be filed that Adrian Newman had five children-- one of them- the proponent-had appeared in court, one of the other children waived notice and no one else needed notice. Kenneth contested the will January 31, 2013. The proponent's response to this contest had the file mark of January 10, 2013. The trial judge overruled Kenneth's contest in an order dated January 31, 2013-- the same day that Kenneth's contest was filed- saying that Kenneth's contest was wrong on the merits, that his contest lacked evidence and was "not . . . timely." Chief Justice McKeithen and Justice Horton held that Kenneth's contest was filed within the two year period for will contests and that Kenneth did not have to produce evidence in his pleading, because he had the right to a jury trial. Justice Gaultney dissented, saying Kenneth had not supported his argument that the trial judge was wrong, nor his claim of timely filing In the Estate of Adrian V. Newman, No. 09-13-00076-CV (Tex. App.-- Beaumont, July 11, 2013) (mem. op.) (McKeithen, C.J. and Horton, J.)

Saturday, August 3, 2013

If You Like this Blawg, Please Tell the American Bar Association

Here's the link to their form. I don't do it for money; if you like what I do, please share the love so that others will be told about it. Thanks.http://www.abajournal.com/blawgs/blawg100_submit/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly

Wednesday, July 24, 2013

Tuesday, July 16, 2013

If You Win a Mandamus, You Would Likely Get a Weird Remedy.

Okay, let's say that you have filed in an appeals court for a writ of mandamus, and you have won. The appeals court says that the trial judge or other governmental actor has to do what you told the appeals court that that person should have done. Will the appeals court issue an order for that actor to do what it told that actor to do? Almost certainly not!
Appeals courts often think that it is disrespectful to mandamused people-- elected officials, including trial judges-- to issue a written order to them like they were flunkies. So in their opinions they simply say what the order would be if it were issued. They then say that the the mandamus order will only issue if the official-- normally a trial judge-- does not correct the action on their own soon after the opinion. This is commonly called conditional issuance of the writ.
If an appeals court issues a writ of mandamus unconditionally, that means that it is angry at the ordered person. I remember having seen one, but I haven't found the case again yet.

Sunday, July 7, 2013

Lawyerless Meeting Not Reversible Error As Against the Poster Child for Harmless Error

A sexually-violent-predator supervisor met with a person jailed for violating civil commitment. No lawyer was present even though the inmate had invoked his right to counsel. The Ninth Court of Appeals held that mention of that non-cooperation at his trial did not rise to the level of Sixth Amendment harmful error beyond a reasonable doubt.
Quite commonly, this kind of holding is very frustrating to a criminal defense lawyer. In this case, though, the discussion was only mentioned only once in the State's argument, and since the State plead and proved-- six, count 'em, six-- prior offenses such that he got a life sentence, and the rest of the case was pretty clearly proved, to hold that the error harmless isn't crazy. Still, I would not be surprised if the Office of Violent Sexual Offender Management never met with a represented defendant without the defendant's lawyer or a waiver ever again.
Defendant also complained of overuse of the term of "sexually violent predator" during the trial and in the jury charge. Chief Justice Steve McKeithen wrote for a panel including Justices David Gaultney and Charles Kreger.
Hat tip for this to the estimable Jim Skelton.
Malone v. State, ___ S.W.3d ___(No. 09–12–00511–CR, Tex. App.--Beaumont (Jun. 26, 2013) (no pet. h.)

Thursday, July 4, 2013

Reasons Why Texas State Litigants Who Seek Mandamus Often Don't Get It

Mandamus is one of the extraordinary writs by which a higher court can mandate to a lower court. To seek it is an original proceeding, not an appeal. It's form is that it is a lawsuit against a trial judge, an appeals court or a government agency. Applying for mandamus can really anger a trial judge because the judge is a respondent, acting in the proceeding pro se or through counsel. A party can apply for a writ of mandamus even though it has not gotten a final judgment. The party seeking the mandamus is the applicant or movant, and a party affected by the application that did not seek it is called a real party in interest. The respondent in an application to Texas Supreme Court or the Texas Court of Criminal Appeals is either a court of appeals or a government agency.
From In re TXU Elec. Co., 67 S.W.3d 130,132 (Tex. 2001)Mandamus is an extraordinary remedy available "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994). Thus, mandamus will not issue absent "compelling circumstances." Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996).
What does this mean? First of all, if what the party is complaining about could be adequately remedied by appeal, then mandamus should not issue. A mandamus will issue for an important discovery dispute, but not for an improper jury charge, for example. Second, what the party wants the court or agency to do must be something that it is absolutely clear that the court must do. It is not for complaining about bad judgment calls by courts, but for complaining about things that it is clear that the court has a duty to do.
If a higher court grants a writ of mandamus, it often does so in an unusual way that we will discuss in a later post.

Friday, June 28, 2013

In re United States Supreme Court Justice Ruth Bader Ginsburg

Keeping up with news about United States Supreme Court justices, these tidbits about Ruth Bader Ginsburg were enlightening and humorous.

Wednesday, June 26, 2013

Dangers of an Anders Brief

The appointed appellate defense lawyer  for D'Kemaan West(What a great name!) in the appeal of his conviction, couldn't find any error in West's trial, so that attorney filed an Anders brief, and the Nines let Mr. West himself file a pro se brief. Somebody- not the appointed appellate lawyer-- found that the trial judge had written a fine into the judgment that the judge had not imposed in the oral rendition.  The court of appeals reformed the judgment to avoid the offending fine, and called it a day. I wrote in February about four cases where the Ninth had found problems with attorneys' fees or fines. The lesson, my learned friends, is that you must be very careful before filing an Anders brief, because if you file one and you have missed some error you will end up mortified. I have only filed one, and it has not yet come back to bite me.
West v. State, No. 09-12-00375-CR, (Tex. App--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.)

If They Don't Prove the Proper Enhancement Convictions, They Don't Get the Enhancement

The case today is Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.) written by Justice Charles Kreger for a panel including Chief Justice Steve McKeithen and Justice David Gaultney. Como was indicted for aggravated robbery and pleaded to a lesser-included offense of robbery. His punishment was enhanced by a state jail felony- possession of a controlled substance. There were other felony convictions higher than a state jail felony in his indictment, but in his plea before the bench, none of them were proved. The judge gave him deferred adjudication. Later Como pleaded true to two violations of his probation. The judge revoked his probation, found him guilty of robbery and sentenced him to a whopping 85 years.
Como said that the judge had not properly admonished him when he gave him deferred ("I never would have agreed to deferred if I knew I could get 85 years!). The State even agreed that the admonishments had been insufficient. Still, that complaint came too late. You're supposed to complain about that when you get deferred, not when you're up to be adjudicated.
But you can't get 85 years on a mere robbery-- a second degree felony whose longest possible sentence is normally 20 years-- unless you get enhanced. A single state jail felony conviction isn't enough to enhance anything. So the sentence is too long for the proof, and the appeals court remanded the case back to the trial court for a new punishment hearing. Now this new punishment hearing will almost certainly have a very similar result, because everybody knows that there are enough high felonies to enhance Como's robbery conviction, so that he would liable for a sentence like 85 years, Everybody knows this because they were listed on his indictment, but the appeals court is not going to render a new judgment, almost certainly because evidence will have to be taken to prove the enhancements that were not proved the first time. And appeals courts are not in the business of taking evidence
Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.).

Sunday, June 23, 2013

Where to File Texas State Habeas Corpus Applications

In March 2012 I promised a post about what Texas state courts to file habeas corpus applications in, but I don't seem to have done it yet.

  • Civil- Applications for writs of habeas corpus only arise in civil trial courts one of two ways:
  1.  When someone is held in contempt of court. Contempts of court may be divided into two types: criminal and civil. Contempt of court is a crime in Texas, and habeas corpus may be sought against a criminal contempt finding, as it may for any other crime. Civil contempt is when judges confine people in order to coerce them to follow a court order. They appear to arise most often in family law matters. Judges may only hold people in civil contempt for a maximum of 18 months.There is no right to appeal a civil contempt order; the only relief is through habeas. In these cases, one may generally apply for habeas through a court of appeals that supervises that trial court. The Texas Supreme Court may also have jurisdiction but in practically all cases it will require a relator to exhaust its court-of-appeals remedy before the Texas Supremes will hear the case.
  2. When the writ is sought as to a nongovernmental confinement, most commonly possession of a child contrary to family law rights, though habeas is a civil remedy against any unlawful private confinement, against a kidnapping, enslavement, peonage or the confinement of sex workers, etc. Courts of general jurisdiction may hear these matters: state district courts and most county-courts-at-law. If a relator doesn't like the result there, the relator can apply for a writ first in the court of appeals, then if one needs to go further, to the Texas Supremes. Under a few circumstances, an appeal may lie against a trial court's denial of habeas relief.
  • Criminal pre-trial- One must start in one's trial court, and if one wants to go further an application may subsequently be made first the court of appeals, and, if necessary, in the Court of Criminal Appeals.
  • Criminal post-conviction- Practically all such applications for State of Texas relief are governed by Texas Code of Criminal Appeals chapter 11, with special provisions for habeas applications relating to people under a death sentence, people seeking relief from community supervision judgments and people imprisoned for non-death offenses. People suffering under imprisonment convictions apply straight to the Texas Court of Criminal Appeals, which has a large group of staff attorneys dealing with  those cases, including old friends of mine formerly with State Counsel for Offenders. Non-death-penalty relators are governed by article 11.07 and has a required form which may be found here. Texas offers all indigent imprisoned convicts appointed counsel on appeal to the courts of appeal, but not to non-death-penalty prisoners, so the vast majority are not done with lawyers, but are done by the convicts themselves. The form is intended to be helpful to them and to ease the court's work. Community supervision relators have to try to reform their conditions in the trial court, then file in the trial court, and they and the State may appeal that decision.

Friday, June 14, 2013

Texas's Highest Criminal Court Holds that Man Has Been Waiting 30 Years for a New Trial

According to a recent decision of the Texas Court of Criminal Appeals, Hartfield v. Thaler, No. AP–76,926 (June 12, 2013) a man has been in prison awaiting a new trial for more than 30 years.
Here's how it happened: Hartfield is convicted of capital murder and sentenced to death in Matagorda County, Texas in June 1977. As all Texas death penalty cases do, his case automatically went up on appeal to Texas's highest criminal court-- the Court of Criminal Appeals. The CCA reversed and remanded for a new trial, because a prospective jury panelist was improperly kept off the jury. The State filed a motion for rehearing which was denied January 26, 1983. The CCA's mandate issued March 4, 1983.
A mandate is a final order of an appeals court in a case. If a case of a court of appeals is taken up by yet a higher court, the mandate in the case comes from the higher court and the court of appeals does not issue one. A mandate is practically always the last word in an appellate matter, though there is such a thing as a motion to recall a mandate. The State did not move to recall the mandate in Hartfield.
Now the governor always had the power to commute Hartfield's sentence from death to life in prison, and doing that was discussed as a way to avoid the retrial, but the governor did not commute (or, more accurately, try to commute) Hartfield's sentence until March 15, 1983. The prison system took this purported commutation and held him under a life sentence.
In 2006, Hartfield, without a lawyer, applied for a writ of habeas corpus with the CCA and was denied. In 2007, he applied for a writ of mandamus with the CCA to force the retrial, which was denied. He applied again for habeas with the CCA, which was held to be a subsequent application for habeas under Code of Criminal Procedure 11.07 section 4 and was, therefore, dismissed. Then, without a lawyer, as he had done all of this 21st century work, he filed for habeas with the United States District Court for the Southern District of Texas. Normally, this would have been a fool's errand because of the one-year habeas deadline of the Antiterrorism and Effective Death Penalty Act, but Southern District held that Hartfield was not being held pursuant to a judgment of a state court. Remember the CCA mandate killed the trial court's judgment and no new judgment had taken its place. Southern District held that his was really an application for a pretrial writ of habeas corpus. Somewhere around this time Hartfield picked up federal public defenders. Hartfield's case was moved to the federal Eastern District of Texas where it decided that Hartfield's claim was no good because he had not exhausted his Speedy Trial Clause claim in state court. At first the United States Court of Appeals for the Fifth Circuit-- Texas's federal appeals court-- affirmed the Eastern District's judgment; I blogged about this before. but then changed its mind and sent a certified question to the CCA asking what the status of the judgment in Hartfield's case really was. That how we got to the CCA's decision two days ago.
Matagorda County's District Attorney Steven Reis is going to retry him. Steve is a law school classmate and hired me to be an assistant district attorney for him back in the day. He will be implacable and relentless, and has been superlatively good at his job for a very long time. The murder that Hartfield committed is remembered as a particularly heinous and horrible crime.
Hartfield and his lawyers have been persistent the last seven years. The background of this case teaches appellate criminal defenders that in our AEDPA world it may take as many as seven proceedings-- most of them losses-- to get a prisoner relief.
Hartfield v. Thaler, No. AP–76,926, (Tex. Crim. App., June 12, 2013)

How Much Power Do Courts Have to Overrule a Federal Agency?

Federal agencies have broad and deep influence over our lives. How far, though, can they go before a court will stop them? The answer is in the rule of the case of Chevron U.S.A. v. Natural Resources Defense Council467 U.S. 837 (1984), written by Associate Justice John Paul Stevens which says:
“First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”
“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather”“[I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.
467 U.S. 637, 842-843 (1984).
United States Supreme Court opinions commonly refer to and use this "Chevron deference."
 Chevron U.S.A. v. Natural Resources Defense Council467 U.S. 837 (1984)
This blog post is adapted from a post on my website. From now on blog posts are going to be here.