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.

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.)

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.

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.

Robert Nathaniel Jones v. State of Texas, ___ S.W.3d ___, No. 14-12-00515-CR (Tex. App.-- Houston [14th Dist.] ) Oct. 1, 2012) (no pet. h.)

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.

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.

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.