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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, December 31, 2014

The Sneaky Extra Rule You Have to Remember Sometimes When You're Citing the Federal Fifth Circuit

Every part of the United States of America is served by a federal district court, and those-- in turn-- are served by federal circuit courts of appeals. Eleven of them are numbered. Each of those cover a geographical area.

FirstMaine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
SecondConnecticut, New York, and Vermont.
ThirdDelaware, New Jersey, Pennsylvania, and the Virgin Islands.
FourthMaryland, North Carolina, South Carolina, Virginia, and West Virginia.
FifthLouisiana, Mississippi, and Texas.
SixthKentucky, Michigan, Ohio, and Tennessee.
SeventhIllinois, Indiana, and Wisconsin.
EighthArkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
NinthAlaska, Arizona, California, Territory of Guam, Hawaii, Idaho, Montana, Nevada, Territory of the Northern Mariana Islands, Oregon, and Washington.
TenthColorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
EleventhAlabama, Florida, and Georgia.

There are two other I will save for a later post: the District of Columbia Circuit-- I know, it's kind of geographical-- and the Federal Circuit, which is the only geographically general content-specialized federal court of appeal.

So what's the special rule about the Fifth Circuit? It is Rule 10.8.2 of the Bluebook, A Uniform System of Citation. On October 1 1981, the Fifth Circuit was divided to create the new, smaller Fifth Circuit and an Eleventh Circuit.


  1. Cite decisions rendered in 1981 and labeled "5th Cir." by month.
  2. Give unit information whenever possible (it seems the court began the transition by having a Fifth Circuit Unit A and a Fifth Circuit Unit B.
  3. Designate as "Former 5th" any nonunit judgment labeled as a Former Fifth judgment and rendered after September 30, 1981.
Knowing this rule separates the appellate children from the appellate grown-ups. Although the other circuits have had coverage changes, this separation is the only one the Bluebook cares about.

Tuesday, December 23, 2014

Jury Charge Objection Made with Less than Usual Formality Causes Reversal and Remand

Longshoreman Quinton Henderson slips, falls and is injured on the deck of a ship.It is loading a powdery, dusty solid-- petroleum coke. The day the work was done was wet, and solid petroleum is slippery in the best of circumstances. The ship is owned by Prosperity Management S.A. and managed by Irika Shipping S.A. Henderson sues both for negligence. The trial jury finds that all three parties are negligent and awards Henderson $1,734,943.00 in damages. Prosperity and Irika appeal together raising three issues:

  1. the trial court erred in denying the defendants a directed verdict,
  2. the evidence is legally and factually insufficient to support the verdict, and 
  3. the trial court erred in omitting requested language in the charge and in the issue submitted to the jury.
The defendants had three specific complaints about omitted jury charge and issue language. Justice Leanne Johnson, also writing for Justices Charles Kreger and Hollis Horton, held that the defendants were not entitled to judgment as a matter of law in issue one, and that sufficient evidence existed to support the verdict in issue two.

The jury charge in this case was taken from the Federal Fifth Circuit Pattern Jury Instructions. It  appears that the employer of a worker-plaintiff has the primary duty to provide the worker with a safe place to work, but working conditions can get so obviously dangerous that ship's personnel would have a duty to intervene to protect the worker. The trial judge left out a part of the pattern jury instruction that commented on this point of law, so the appeals court reversed and remanded.

In this case defense counsel failed to follow Texas Rule of Civil Procedure 276. "When an instruction, question, or definition is requested and the provisions of the law have been complied with and the trial judge refuses the same, the judge shall endorse thereon 'Refused,' and sign the same officially." The appellate court refused the complaints about the first two instances of omitted language on the ground that defendants waived error by failing to follow Tex. R. Civ. P. 276. However, the appeals court held that the defendants so clearly complained about the third omission that they would take cognizance of it, and reverse and remand on the basis of it.

In the appeals court's defense, the defendants basically said, "Put that employer/shipowner responsibility sentence that's in the pattern jury charge in the jury charge.  The writers of the pattern jury charge thought it was needed for the benefit of the jury to make a proper decision," Even to me, that seems an unambiguous complaint.

I have one practice tip, one personal note and one observation. The practice tip is that when you are following a pattern jury charge, it is rarely a good idea to get the trial judge to leave out a part unfavorable to you even when you can. Appeals court justices who see a part of a pattern jury charge omitted which clearly favors one side over the other presume that that part was left out unfairly. Unless you can show comparable changes that help the other side or an elaborate explanation why under statute or case law that part of the pattern jury charge is grossly wrong, they will assume that the omission is a cheat.

The personal note is that Justice Johnson's prose style is a pleasure to read-- first rate. I look forward to years of clear reading of this court's opinions in the years ahead.

The observation is that I have no radical objection to the process used to come to this decision. The informality was allowed when a stevedore won a damage award of more than one million dollars against a ship and its manager. I have a concern that the informalities are much less likely to be overlooked when it is a personal injury plaintiff who needs it or a criminal defendant or a respondent in a sexually violent predator civil-commitment case.

Irika Shipping S.A. v. Henderson, No. 09-13-100237-CV, (Tex. App.--Beaumont Dec. 18, 2014, no pet. h.) (mem. op.) available at  http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=56e3dc6f-a22a-4689-bf45-806b8c5e2bac&coa=coa09&DT=Opinion&MediaID=53ca95bf-7d0c-4c9a-8c3d-193e6b9fd17f

Monday, October 27, 2014

The Federal Court System Seeks to Cut the Length of Briefs.

Here's a communication about proposed changes in the Federal Rules of Appellate Procedure. Their main effect would be to cut the length of briefs. There is a public comment period; how to comment yourself is in the printout.
So long as appellate courts have discretion to allow longer briefs for truly extraordinary cases, shorter default lengths would seem to make the system more efficient.

Thursday, October 16, 2014

Appellate Court Personal Jurisdiction

Usually, as to Texas state class C misdemeanors or municipal ordinance violations, personal jurisdiction in a trial court is obtained over a person by service of a summons, though in rare cases, it can be gained by the arrest of the defendant.
In higher level Texas crimes, personal jurisdiction is normally  invoked by the arrest of the defendant.
In civil matters, normally, one or more plaintiffs give notice to one or more defendants by service of citation and the petition or complaint is served with the citationExcept for special appearances-- procedurally tricky filings which allege that a court does not have jurisdiction over a matter-- even an unserved party can subject itself to jurisdiction by merely filing a document in the court's file.
In justice of the peace courts, a timely request with a bond or a pauper's oath will get one a de novo trial in a higher court. The same is true of municipal courts that are not courts of record-- that is, ones that do not keep track of things by a court reporter or recorder. Appeals from municipal courts of record are not de novo, the higher courts to them, sit as courts of errors like courts of appeals. Motions for new trial and bonds are required also.
In higher courts, an unhappy trial litigant files a notice of appeal in the trial court before the deadline, a timely appeal generally invokes the jurisdiction of a court of appeals. In civil litigation, it is not uncommon for some parties to want to appeal and others not to. Sometimes some trial litigants can hold on to trial rulings they like by not appealing, though other times any single appeal can invoke jurisdiction as against the other parties. Notices of appeal, petitions for discretionary review, and applications for writ of certiorari must generally be timely, otherwise they do not impose appellate jurisdiction. The main exception to this being that the Court of Criminal Appeals may authorize an out-of-time appeal by a writ of habeas corpus (See the post before this one.)
Extraordinary writs, which I have talked about earlier, may give a basis for a higher trial court or appellate court to invoke the jurisdiction of such a court without having started in a lower court.

Monday, October 13, 2014

Illiterate Defendant's Ineffective Assistance of Counsel Held No Excuse for Habeas Application Almost 20 Years after Conviction

Alberto Giron Perez was convicted of murder. He received a 88-year sentence in 1991. He had appointed counsel on appeal-- it is not clear whether his appellate counsel was the same as his trial counsel-- and Perez lost his appeal October 9, 1992. His appointed lawyer failed to notify Perez of his loss at the Court of Appeals until 1993. Perez had a right to appointed counsel on appeal to the Court of Appeals, but did not have a right to appointed counsel to apply to get discretionary review from the Texas's Court of Criminal Appeals. From the time that the appeals court finally decides a case, the loser in that court only has 30 days to file a petition for discretionary review, and, ordinarily, an indigent has to file it without the help of counsel. More than 30 days had passed when Perez first learned that he had lost his appeal-- he only found out in 1993-- so he was barred from asking the CCA to consider his case on direct appeal. When Perez found out about his loss and that his lawyer's action barred him from direct appeal, he sued that lawyer civilly and filed a grievance. However, Perez did not file an application for a writ for habeas corpus until September 2011. Applicants like Perez are subject to Texas Code of Criminal Procedure article 11.07. It has no deadline by which an initial application must be made. The district attorney in the case complained that Perez's delay in applying for his writ made the case not capable of being retried if Perez prevailed. Judge Elsa Alcala wrote for all the members of the court save dissenting Judge Laurence E. Meyers .The court held that Perez knew or should have known that he had a meritorious writ application in 1993, and that the delay between 1993 and 2011 was his fault so that the equitable doctrine of laches applied to his application. In equity, if someone asks for relief from a court, but delays asking for that relief so that the person asking for relief gains a marginal advantage over that person's adversary, that is not fair to the adversary and relief should be denied on that basis. This result obtains even if the relief is sought within a statute of limitations. 11.07 gives no deadline for a first application for habeas corpus.
Judge Meyers's dissent argued that the court's opinion contravened the will of the legislature since the Lege could have easily put in:

  1.  a deadline or
  2. an acknowledgement that laches applied
to 11.07 writ applications, but it did not. He noted that Perez was illiterate, and that Perez was in this mess because of his appellate counsel's ineffective assistance of him, which was not Perez's fault.
I hate it when people are denied appellate relief other than on the merits.  See Tex. R. Civ. P. 1. But Perez or his family members were almost certainly told by the initial appellate lawyer or the lawyer who did the civil suit that Perez should apply for habeas corpus relief, and, generally, the sooner the better. Really, more than 19 years is too long to wait.
The thinking in this case might lay the groundwork for how Texas courts deal with Jerry Hartsfield, the defendant whose 1983 reversal of his conviction was never implemented. His efficacious federal writ application was filed Oct. 22, 2007. His facts are different, though. He filed a number of pro se motions for relief earlier and didn't have counsel to help him until shortly after he filed his federal writ. Hartsfield's claims of post-conviction ignorance are much more reasonable than Perez's. The law in his case is different, too. Hartsfield got the death penalty at the trial court, so his post-conviction rules are different.
Hat tip for this case to the estimable Jim Skelton.
Ex parte Perez, No. AP-76,800 (Tex. Ct. Crim. App. Oct. 8, 2014 available at ww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=35d3f487-d044-4f01-9b49-c473fa02ef2b&coa=coscca&DT=OPINION&MediaID=55f5c7f0-26f3-4adb-b5d0-1b93e38aff4e)

Friday, September 26, 2014

Texas Supreme Court Justices Discuss Their Views on Dissents and Contrasting View's in Texas's Highest Civil Court

If you've got a case going before the Texas Supreme Court, this Texas Lawyer article will be of interest, and possibly help to you. Justices Jeff Brown and Jeff Boyd are interviewed. The Texas Lawyer has a weird paywall that lets you read, I believe, five of their articles per month for free.

Friday, September 5, 2014

XXXXX’s Motion for Continuance, or, in the Alternative, to Reschedule Trial


XXXXXXXXX                                           §         XXXXXXXXXXXXX County, Texas
XXXXXXXXXXXXXXXX                             §         In the XXXXXXXXX Court
            XXXXXXXXXXXXXXX                   §
XXXXXXXX                                             §         XXXXXXX Judicial District     

XXXXX’s Motion for Continuance, or, in the Alternative, to Reschedule Trial

            Respondent XXXX moves this court to continue the setting of this case from Saturday,  the XX day of the month of XXXXXXXX, 20XX, 1:30 PM. It appears to XXXXX and her attorney Bob Mabry that a Saturday trial would be impractical.
XXXXXX and Mabry are eager for trial. Mabry in particular is impressed that Your Honor wishes to burst the shackles of an ordinary Monday through Friday workweek and continue on past Friday afternoon into Saturday afternoon. Opposing counsel, pressing on with Stakhanovite passion, may find Saturdays and Sundays dusty deserts of mind-numbing inaction and wish for Saturday afternoon court sessions. Unfortunately, respondent’s counsel believes that the rest of the court personnel and the other state and county employees that make court practical are unlikely to attend the hearing, when the alternative is “beautiful back porches to sit on, beautiful sporting news to read, [and] beautiful beer to drink.”[1]
Mabry respects the court’s orders. He will come to court on this matter at any place in [the county seat of] XXXXXX, at any date or time more than ten days from now of the court’s choosing unless summoned to another court with priority or unless a relevant bona fide medical emergency exists. His views contrast with his wife’s. And Mabry respectfully requests that the trial be moved away from a Saturday in the interest of domestic harmony in his home. He further regrets to inform the court that the only authority which he stands in awe and fear more than Your Honor is Mrs. Mabry.[2]
This application is not sought for delay only, but that justice be done.
Wherefore, respondent XXXXXX and her counsel Bob Mabry pray for this court to continue this trial or reschedule it to someday not less than ten days later than the date of this filing and service XXXXXXXXX XX, 20XX.
Respectfully Submitted,


[1] Sinclair Lewis, Elmer Gantry, Ch. XVII, § 2, (1927)
[2] H. Rider Haggard, She, Ch. VI, inter alia. (1886); Rumpole of the Bailey (last accessed XXXXX XXXX, 20XX)                                           

Thursday, August 7, 2014

First Assistant Criminal District Attorney for Rockwall County Craig Stoddart Republican Nominee for Fifth Court of Appeals' Jim Moseley's Old Seat

William Shakespeare famously complained of "the law's delay," But he never said anything about the rapid dispatch of business when a political committee knows its will, and the Republican precinct chairs of Dallas, Collin, Grayson, Hunt, Rockwall and Kaufman counties did not dawdle in naming First Assistant Criminal District Attorney for Rockwall County Craig Stoddart to uphold the GOP banner in this year's November race for the seat in Texas's Fifth Supreme Judicial District Court of Appeals in Dallas formerly held by Jim Moseley.
Stoddart will be in an unusual position until January 2, 2015. He is the justice presumptive-- if the Democrat defeats him

Stoddard is an appellate prosecutor of 22 years' experience, not just in Dallas, but in many other state appeals courts including Texas's highest criminal court-- the Court of Criminal Appeals. He appears to have little or no civil appellate experience. He got a bachelor's degree in political science from the University of North Texas in 1986, and his law degree from Texas Tech in 1990.

Wednesday, August 6, 2014

Dallas's Fifth Appellate District to Be Short Handed until 2015; New Justice Will Likely Be Chosen by Six GOP County Chairpeople.

Justice John Moseley of Dallas's Texas State Fifth Supreme Judicial District Court of Appeals-- not the United States Fifth Circuit Court of Appeals headquartered in New Orleans-- resigned to go into private practice, but did so between the time he had been chosen a candidate for re-election and the time of the actual regular election. This means that the governor doesn't choose the replacement for the end of the term. The replacement will be the winner of the election. The Republicans and the Democrats will get to choose candidates through the party chairs of the six counties that make up the district. As a practical matter, one of the justices of that court for next term is going to be chosen by the six county Republican chairs of the district.

Hat tip to D. Todd Smith of Austin. The Texas Lawyer has a good story on this, too, but they only let three stories per month outside of their pay wall.

Tuesday, July 15, 2014

If You Like this Blog, Please Tell the ABA for the Blawg 100 Issue.

We're proud of what we do here, and our reporting about candidates for the Texas Court of Criminal Appeals and about the Ninth Court of Appeals in Beaumont show that we are covering things that are otherwise hard to find. Please let the American Bar Association know you like what we do here.

Associated Press 2014 Style Guide and Media Guide Is Newly Out

You can be an acceptable, even good legal writer without this book, but I find it to be a handy, quick tool to guide me where advice from higher sources is unclear or even contradictory. It is relatively up-to-date. AP's got to solve novel style disputes many times a year. And, if you think about it, AP style almost never looks weird because we live in a sea of it. The good American newspapers you read use it, traditional news organization pay attention to it, and they have a bias for clarity and consistency. Clarity and consistency are things that nearly every piece of legal writing needs more of.

Monday, July 14, 2014

Friday, June 20, 2014

Supreme Court of the United States Justices Cannot Agree How to Pronounce "Certiorari"

From the American Bar Association Journal. I was taught to pronounce it sir-shir-RARE-ee, but intend to follow up with Latinists and forensic lexicographers with a recommendation later.

Thursday, March 20, 2014

Can't Charge a Stone Broke Defendant Attorneys' Fees

After having been convicted of two count of possession of a controlled substance with intent to deliver, Ruben Ramirez had two complaints:
  1. that the evidence in his case should have been suppressed and
  2. that he should not have been charged fees for the lawyer appointed for him as a indigent.
The Fourth Court of Appeals in San Antonio disposed of the first complaint quickly-- no reason to suppress drugs from a place Ramirez
  1. didn't have a possessory interest in,
  2. didn't have a right to be in,
  3. didn't control and have the right to keep other people out of,
  4. didn't take any normal precautions to protect his privacy,
  5. didn't put to any private use, and 
  6. didn't have a claim of privacy consistent with historical notions of privacy.
The second claim seemed a little harder. Ramirez filed an affidavit of indigency-- a pauper's oath-- at trial. There never was a finding that he his status changed. Tex. Code Crim. Proc. 25.06(g) says that attorneys' fees may only be charged to a person who has some capacity to pay, which is not Ramirez.
Justice Marialyn Barnard, writing for a panel that also included Chief Justice Catherine Stone and Justice Patricia O. Alvarez, affirmed the trial court's judgment after modifying by getting rid of the attorneys' fee judgment.

Wednesday, March 19, 2014

Poetical Reflection on Some of the Oral Argument Cases before the Texas Court of Criminal Appeals Today

There was an old woman of Natchez,
Ran a house where girls rented their snatches
The State did not claim,
That the writ— it was lame;
Habeas should have failed 'cause of laches.

Saturday, March 1, 2014

Can Texas state criminal defendants appear without lawyers in appellate courts?

I have come to believe that Texas state criminal defendants have a state constitutional right to appeal pro se. Martinez v. Court of Appeal of Calif. 528 U.S. 152 (2000) says that there is no federal constitutional right to appeal pro se, but that a state constitution may create such a right. Article 1, section 10 of the Texas Constitution provides that a defendant may be heard by counsel or without. Its language does not distinguish between trial and appeal on this point.  In Ex parte Thomas, 906 S.W.2d 22, 24 (1995), among other cases,  the Texas Court of Criminal Appeals recognized a right to self-representation on appeal. Sickles v. State, 170 S.W.3d 298, 299 (Tex. App-- Waco 2006 pet. ref'd) finds a statutory right to self-representation on appeal in Vernon's Ann.Texas C.C.P. art. 1.051(f, g). The only Court of Appeal that joins Waco is El Paso-- Marion v. State, 936 S.W.2d 5, 6 (1996 no pet.). Four courts of appeal have held that no pro se right to appeal exists, and this is the majority view (See Chief Justice Gray's dissent in Sickles.): First Court of Appeals- Cormier v. State, 85 S.W.3d 496 (Houston 2002 no pet.), Sixth- Stafford v. State63 S.W.3d 502, 506 (Texarkana 2001 pet ref'd) (per curiam), Thirteenth- Crawford v. State, 136 S.W.3d 417 (Corpus Christi-Edinburg 2002) (on interlocutory motions), and the Fourteenth- Thomas v. State, 286 S.W.3d 109 (Houston 2009 pet. ref'd). Beaumont appears to have never ruled on such an issue. My conclusion is that the state constitution appears to support such a right; CCA has said there is one; El Paso recognizes one, and Waco has found a well reasoned statutory basis for one. The argument can be made that there is no such right because one could argue Thomas has been effectively overruled by Martinez and that the Courts of Appeal are lined up 4-2 against it, and that the Court of Criminal Appeals has consistently held that the state constitution does not provide any criminal defense rights in addition to federal rights.

Tuesday, February 11, 2014

If You Mail Your Notice of Appeal Timely, and It Gets to the Trial Court Clerk Less than 10 Days after the Deadline, That's Good Enough..

You invoke the jurisdiction of a Texas state appeals court by filing a notice of appeal in the trial court whose ruling or judgment you are unhappy with. If a notice of appeal is sent to the appeals court clerk by mistake, the clerk is supposed to send it to the proper trial court clerk. Texas Rule of Appellate Procedure 9.2(b)(1) is that "[a] document received within ten days after the filing deadline is considered timely filed if:
(A) it was sent to the proper clerk by United States Postal Service or a commercial delivery service;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail or delivered to a commercial delivery service on or before the last day for filing."
Prisoner Henry Earl Taylor caught a criminal judgment that he didn't want on November 18, 2010. He didn't file a motion for new trial so his notice of appeal was due 30 days later: December 18, 2010.  December 18, 2010 was a Saturday, so Taylor had till Monday December 20, 2010. The Clerk of the First Court of Appeals in Houston stamped a undated, handwritten notice of appeal December 21, 2010.  The trial court clerk stamped the notice of appeal as received on December 27, 2010. A panel of First Court Justices Laura Carter Higley, Jim Sharp, and Rebecca Huddle wrote a not-for-publication per curiam memorandum opinion that said that the record did not have an envelope nor a certificate of service for the notice. They said that Taylor's appellate counsel had not argued that the filing was timely, but that the First had given permission for the notice to be late in an October ruling. When Taylor himself finally urged that he had mailed timely and that the notice had been received timely, the panel said that he had not because he had not sent it to the proper clerk, properly addressed and stamped and that there was no proof that he had placed it in an envelope or wrapper. It dismissed the appeal. Texas Court of Criminal Appeals Judge Elsa Alcala, writing an opinion for a majority including Judges Lawrence E. Meyers, Tom Price, Cheryl Johnson, Barbara Parker Hervey, and Cathy Cochran, overruled the panel " . . .because the rules of appellate procedure required the clerk of the court of appeals to forward appellant’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established under the mailbox rule, appellant’s apparent mistake in sending his notice of appeal to the court of appeals instead of to the district-court clerk was, at most, a harmless procedural defect that did not render the notice of appeal untimely."
Presiding Judge Sharon Keller's dissent, joined by Judge Michael E. Keasler, appears to me to be well reasoned. She argues that the majority does not address Houston's point-- that there is no proof that the notice was enveloped and mailed straight to any clerk, even if one agrees with Taylor that his mailbox drop and the trial court's eventual receipt less than ten days was timely. Judge Paul Womack dissented without opinion.
This case reminds me of September's Cortez case in which the CCA reversed Amarillo's Seventh Court of Appeals for what the high judges took to be a cheesy dismissal.
The State of Texas is in the process of gradually switching from paper filing to electronic filing, though there are no present plans to ever make unrepresented prisoner litigants file electronically, Electronic filing will minimize the cases in which these mailbox rules will be relevant.
Henry Earl Taylor v. State of Texas, No.PD-0180-13, (Tex. Crim. App., Feb. 5, 2014) (slip op.)
Hat tip to the learned, charming, and extremely plain-spoken Jim Skelton and his Criminal Law Institute, which I recommend highly.

Tuesday, January 21, 2014

I Have Corrected Mistakes.

1. I had the wrong Richard Davis in a post day-before-yesterday.
2. David C. Newell was a teaching assistant teaching legal writing at UT, not any kind of professor.
Both posts have been updated with corrections.

Sunday, January 19, 2014

If Two Candidates Run Without Websites, Will Bloggers Ever Learn about Them?- Fourteenth Court of Appeals

New Houston Fourteenth Court of Appeals Republican Justice Ken Wise has drawn a Democrat challenger, Gordon Goodman. Justice Wise was a commercial litigator before getting to be a trial court judge and then being appointed by Governor Rick Perry to the Fourteenth. He appears not to have a campaign web site up yet. Goodman does not have a campaign web site either. Goodman appears to be an 36-year lawyer who has been working as an oil executive and volunteers with University of Houston.

Three Republicans Line up to Challenge Jim Sharp for his Seat in Houston's First Court of Appeals

We've blogged before about Houston First Court of Appeals Justice Jim Sharp's problem with the Judicial Conduct Commission.

 He's a Democrat. He was a solo general practitioner. He's not a particularly bad guy, as Democrats go, and as handsome as a movie actor. The GOP apparently smells blood in the water since three people are competing for the chance to challenge him in the general election:

  • Chad Bridges is head of the Family Violence Division of the Fort Bend County District Attorney's Office. Before that he was First Assistant to the Waller County D.A., and before that, he worked in the Post-Conviction Writ Section of the Appellate Division of the Harris County District Attorney's Office. He was honored by the Crime Victims Response Team of Fort Bend County. He and his wife Claudia are active in the Pecan Grove Gators of the Fort Bend Youth Football League. He was formerly a peace officer and serves on a State Bar Unauthorized Practice of Law Committee. His web site lists important appellate matters he has handled and trials that he has done, which we always like. Apparently a Brookshire resident, he also has the finest looking crew cut I've seen since the '60's.
  • Dan Linebaugh, a Baytown small firm lawyer, board certified in personal injury law by the Texas Board of Legal Specialization and in civil trial law by the National Board of Trial Advocacy. He won awards in moot court and mock trial with his work in the excellent South Texas College of Law advocacy program. There's a lot missing here because I could find hardly any campaign information about him conveniently.
  • Russell Lloyd was a civil district judge in Harris County in the late '80s and in the '90s, before he got washed out in the Great Blue Wave back then. I don't remember him as an especially good or bad judge back at that time, though then, a little more than now, civil plaintiffs' lawyers were generally treated by the civil bench as loathsome. An Eagle Scout, he was an Air Force veteran, then was an Airborne Ranger in the Army National Guard, and then later a member of the Judge Advocate General's Corps there. As a law student he was executive editor of the American Journal of Criminal Law. He was an Assistant Scoutmaster. He is a life member of the National Rifle Association and has volunteered with the Houston Humane Society. He has been a super-Republican for many, many years- to give you samples of everything that he has done would swamp this part of the post. He's an amateur musician and member of the big Episcopal church in River Oaks. After he was turned off the bench, he has been working on plaintiffs' side with John O'Quinn and had such an unhappy client that he was sued for legal malpractice, but the case was dismissed. He's been married 30 years to attorney Mary Lloyd, and the two of them have two kids, each of whom are lawyers. I think that he has done great service to the Republican Party, that he was not hateful from the trial bench as so many of his colleagues were, that he is highly intelligent and diligent, though maybe more as a politician than a jurist. He's done a very great deal over the decades. Out of all the great multitudes of things that he has done, only one has been seriously questioned and that complaint was eventually dismissed. Seventeen years ago the Texas Supreme Court chose him out of all the state district court judges in the state to try a lawyer discipline case; that's not a job a chump gets.
Justice Sharp is good-looking. Judge Lloyd looks wonderful in his (old)  photo, but we still have to give the palm for great hair to Chad Bridges.

The Contested and Uncontested Races for Beaumont's Ninth Court of Appeals

Chief Justice of Beaumont's Ninth Supreme Judicial District Steve McKeithen did not draw an opponent for this upcoming term.
New justice Leanne Johnson did, though. 88th District Court Judge Earl B. Stover III who holds court in Hardin and Tyler Counties in Kountze and Woodville, respectively, is running. Law licensed since 1978, Judge Stover was the son of a prior judge of the district court. Little information is conveniently available about him on the internet.
I met Justice Johnson at a continuing legal education in Conroe. She turned out to be smart, really hard-working-- McKeithen said that one of the first things Johnson asked him was about building protocols related to being in the middle of the night working-- and really pleasant though with the possibility of an edge. She told a similar story about being in the courthouse at 3 AM working. It sounded like that she was doing a pile of work like Justice Gaultney used to.
Justice Johnson is originally from Joaquin, Texas-- like you, I had to look it up to find it. She was the daughter, the youngest in the family, of a teacher and military officer who died on duty in Vietnam. Educated in southern Arkansas, she graduated in the top 5% of her law school class. She was on law review and did moot court, then got a job as a law clerk for a federal trial judge in Louisiana. She made her career at the Beaumont white-shoe law firm Orgain, Bell, and Tucker. She's board certified in personal injury law. She is active in Beaumont civil affairs.
A link to our prior post about Justice Johnson with more details is here.

Candidates for Texas Court of Criminal Appeals Place Nine

The only Texas Court of Criminal Appeals race we haven't talked about yet is the one for Place Nine, which is presently held by Cathy Cochran. No Democrats here-- there are two Republicans in the primary, and the winner there gets the job.

  1. Harris County Appellate Prosecutor David C. Newell out of Missouri City in Fort Bend County is board certified in criminal law and criminal appellate law. He had taught legal writing as a teaching assistant at the University of Texas, an appellate prosecutor at the Fort Bend County District Attorney's Office, and an Assistant County Attorney in Fort Bend County. He is the Chair of the editorial board of the most excellent publication of the Texas District and County Attorneys Association, The Texas Prosecutor. He wrote a column for that publication: "As the Judge Sees It," and he has generally been the person updating the audience on case law of the Court of Criminal Appeals for the premier criminal law continuing education course in Texas, the State Bar of Texas Advanced Criminal Law Course and on case law of the CCA and the Supreme Court (not clear if this is the Supreme Court of the United States or the Supreme Court of Texas-- TDCAA's web site is down at the time of this posting.). His campaign website has a list of notable cases, and he is an honors English graduate from the University of Houston, charming touches both. He is married to Shayne Hurst Newell, an assistant general counsel for leading old-time Houston white-shoe law firm Baker Botts LLP, who has also been active on the Fort Bend Junior Service League and is on the board of the Literacy Council of Fort Bend County. They have two children.
  2. W.C. "Bud" Kirkendall presides over the 2nd 25th Judicial District Court in Colorado, Gonzales, Guadalupe, and Lavaca Counties. He's been kicking around the Texas legal community for 40 years. Judge Kirkendall started out as a briefing attorney at the CCA. Generally, that's evidence of having done well in law school. He was a private practice lawyer, including doing criminal defense, in Seguin, Texas, a town outside of San Antonio on the Guadalupe River, home of Texas Lutheran University-- where one can study ancient Greek, Hebrew, or philosophy, among many other subjects, birthplace of the folk/country singer Nanci Griffith and of a lawyer friend of mine. Judge Kirkendall was an award-winning (State Bar of Texas and the Jon Ben Sheppard Public Leadership Forum) elected District Attorney for the 25th Judicial District, and then rose to his current bench ten years ago. He got an exemplary judicial faculty award from the Texas Center for the Judiciary. He's been active in Seguin community affairs. He's been married to Alice Scull Kirkendall so long that I will not name the number for her sake. 

Who's Running for Texas Court of Criminal Appeals Place Four?

Texas Court of Criminal Appeals Judges Paul Womack-- Place Four-- and Cathy Cochran-- Place Nine-- are retiring at the ends of their terms. So is Judge Tom Price-- Place Three, but we've already discussed the race for his old seat in a previous post. Let's look at the Place Four race here. There are three Republican candidates for Place Four-- no Democrats:
  • My friend Jani Jo Wood, nee' Jani Maselli, a name to conjure with in Texas post-conviction law, board certified in criminal appellate law, has the highest rating in the Martindale-Hubble legal directory. In addition to working full-time for Harris County, she's been an adjunct legal writing professor for the University of Houston. She's been honored by the Harris County Criminal Defense Lawyers' Association and the Texas Criminal Defense Lawyers' Association, and she's a former Staff Attorney for the Court of Criminal Appeals. She has given a number of Continuing Legal Education papers and proceedings. She appears to have started her career in one of the greatest starting places for a budding criminal lawyer-- State Counsel for Offenders, Texas's prison public defender office. She was the lawyer who basically invalidated Harris County criminal courts' cost billing system, saving Harris County convicts big bunches of money. She is a very nice lady, and her husband, who appears to have been a Randall County Judge, appears to be a very nice guy also-- he appears to be carrying a great deal of water to support this campaign.
  • Kevin Patrick Yeary, a Bexar County Appellate Prosecutor, who started his career as a briefing attorney for Texas Court of Criminal Appeals Judge Bill M. White-- which means that he had been a very good law student, then worked in private practice in a San Antonio general litigation firm, which had some criminal defense work that he had done. After that he did turns as an appellate prosecutor at the Dallas County D.A.'s office and the Harris County D.A.'s office back in the days when they were two of the toughest counties in Texas. Since then, he's been in Bexar County's D.A.'s office. He's taught prospective paralegals at San Antonio College. He's active in his Roman Catholic parish, and for the Encino Park Blue Sharks Swim Team. His wife is a San Antonio pediatrician. He is a very pleasant, gentlemanly, learned person, who caught my originally mistaken post about Richard Dean Davis and told me about it over the phone, for which I am extremely grateful.
  • Richard Dean Davis, unfortunately sharing the name of a serial rapist and killer, is a trial and appellate lawyer in the Austin exurb of Burnet of 31 years of experience. He had been a small firm lawyer in Brownsville and in Waco and in Odessa before moving to the Austin area where he eventually ended up with the Burnet practice he has today. He was a special prosecutor, then acting Sherman County Attorney in Stratford in the panhandle and worked in Odessa in the Ector County District Attorney's office and then later in the County Attorney's office, and had an appointment as a special prosecutor when he was at the County Attorney's office. He has been a contract public defender in Burnet. Along with a Travis County Assistant District Attorney, Davis did a jury selection training for his legal alma mater Baylor. He won a "Best Lawyer in Burnet" award in a contest in the local paper. He loves to hunt, but doesn't get as much chance to do it as he would like, and is married to a shy woman. Possessed of a truly beautiful, sonorous radio voice, he is easygoing and humorous in casual conversation.

Friday, January 17, 2014

Texas Court of Criminal Appeals Outlaws Near-Interminable Post-Conviction Habeas Corpus Filings.

Charles Ray Walton filed a post-conviction application for writ of habeas corpus with a handwritten memorandum of law of 328 pages, 138 of which relate to the first of his eight grounds. In a unanimous opinion written by Presiding Judge Sharon Keller, the Texas Court of Criminal Appeals have changed the Texas Rules of Appellate Procedure to limit memoranda of law to 15,000 words if computer-generated and to 50 pages if not; these limitations generally only apply to the argument in the memoranda, not the other formal parts.
There are two dear old fellow former colleagues from State Counsel for Offenders working in the writ section of the CCA. 50 pages/15,000 words really should be as much as they should have to read.
Also, if you know an inmate working on a post-conviction writ application, such a person should be encouraged to type or have their application typed. I fear that a convict with a quality reason to get a writ might not get that writ because the handwriting makes the application impossible to read. And it's not just us defense lawyers who feel that way, the opinion editor at the Texas prosecutors' organization expressed the same concern. That organization showed me this opinion. When I wrote this, they had their site down to upgrade over the long weekend.
Ex parte Charles Ray Walton, No. WR-75,599-03,slip. op. (Tex. Crim. App., Jan. 15, 2014), available at http://www.cca.courts.state.tx.us/OPINIONS/PDFOPINIONINFO2.ASP?OPINIONID=25012

Supreme Court of Texas No Longer Requires Paper Courtesy Copies of Documents.

Per Jeff Levinger, Chair of the excellent Appellate Section of the State Bar of Texas, effective immediately the Texas Supreme Court no longer requires courtesy paper copies of electronically filed documents. If you have questions or concerns you can contact Blake A. Hawthorne at SCOTX.