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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.

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.