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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.

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.