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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, January 28, 2015

Can't slap attorney's fees on an indigent criminal defendant

Clifton James Taylor was found to be indigent at the beginning of his case and was lucky enough to get Judith Shields, a doughy criminal defense fighter from Conroe. Taylor pleaded guilty to third degree felony assault against a family member and went to the judge for punishment. Among the penalties the judge rendered was attorney's fees. Shields took this up on appeal along with another issue. Justice Leanne Johnson wrote for a panel including Chief Justice Steve McKeithen and Justice Hollis Horton removing the attorney's fees. Credit should be given to the Montgomery County District Attorney's Office for graciously conceding this point before the opinion was rendered.
Taylor was found indigent at the beginning of the trial court case. No one alleged that his indigent condition had changed during the course of the proceedings so the law of the case at the end of the trial was that he was indigent, and that therefore charging his attorney's fees was inappropriate.
Criminal defense lawyers, check for this in your judgments and know at least one case to cite before your trial judge and the State.
Taylor v. State, No. 09-14-00039-CR  (Tex. App.-- Beaumont Jan. 28, 2015, no pet. h.) (mem. op.) available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9cfac722-1afc-4640-854d-3e4affb5a49d&MediaID=f537d09f-36e3-4448-8e1c-55ee9a0921b3&coa=%22%20+%20this.CurrentWebState.CurrentCourt%20+%20@%22&DT=Opinion

Saturday, January 24, 2015

Many Texas Injunction Cases Can Result in Three Appeals Each.

The law recognizes that some bad acts are irreversible and provides the remedy of a temporary restraining order. Temporary restraining orders can be entered without notice to the restrained parties. Such a powerful procedure can be abused, which is why temporary restraining orders can be appealed. One of the rules of temporary restraining orders is that a TRO has a short period of validity and must be followed quickly by a hearing with all parties present, which may result in a temporary injunction until a real trial can get to its turn on the docket. The temporary injunction can be appealed, too. If there is a permanent injunction, as is common, the judgment in that case is final, and, therefore, appealable.

Wednesday, January 21, 2015

Federal Habeas Applicant May Have New Habeas Counsel instead of the Habeas Lawyers Who Missed His Application Deadline.

I like practicing post-judgment law because there are very few unremediable errors. In seeking federal habeas corpus relief from a criminal conviction one irredeemable error is to file the application after the one-year deadline of the Antiterrorism and Effective Death Penalty Act.
You can seek federal habeas relief from a state or federal conviction. Calculating exactly what the deadline is is very technical. Basically, the AEDPA clock does not run when a conviction is not final because of rights of appeal.
Let's start with a state conviction. If the state offers an appeal, an impoverished defendant must be offered an appeal with an appointed lawyer at no charge to the defendant, not even for the clerk's record and the trial transcript. 40 of America's 50 states have at least one court of appeals intermediate between the trial court and the state's highest court.  In those states, the convict has a right to an appeal to one of those intermediate courts at no cost to the convict, but not to the state's highest court. In the other ten states, the appeal you get is to the highest court. Every state offers state habeas relief, It is nearly always wise, for strategic reasons, to seek your habeas writ after you have exhausted your appeals. The most common example of a reason to seek your writ after you've exhausted your appeal remedies is that you generally can't complain of ineffective assistance of counsel on appeal, but you can on a writ application. Now, if you're seeking relief from a state sentence, you can't get federal relief like this unless you have exhausted all of your state remedies. While your state habeas application, is pending, the AEDPA clock is not running. But when you are not open for appellate relief or writ relief, the clock does run, and if you don't file your federal writ application within that year, it is highly likely lost forever.
A federal sentence is easier. Because federal authority outranks state authority, there are no state remedies remedies to exhaust. The AEDPA clock only starts to run after there is no appellate power-- it's all federal authority. Like for the state conviction, wait more than your one year to apply for your federal writ, and it will almost surely be lost.
The Supreme Court of the United States decided yesterday that a death-penalty defendant whose appointed habeas counsel waited too long to file his federal writ application did not have to keep them while they tried to get around their mistake and get a late appeal. He had a right to have them dismissed and replaced with other federal appellate counsel who would not have the conflict of interest in having to defend their own error while trying to get it excused.
Justice Alito dissented, joined by Justice Thomas. They argued that their court should have decided whether or not it was possible to toll (that is, avoid) the deadline. If the deadline could not be tolled, it would not matter if the defendant got new counsel or not.
Christeson v. Roper, 574 U.S. ___, No. 14-6873 (Jan. 20, 2015)  (Roberts, C.J.,  Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, JJ.) (per curiam)

Sunday, January 18, 2015

To enforce an out of state child support judgment, is a formal motion to register it required?

In Texas the father of two children sued to get paid back-child support he claimed from their mother under a modified Louisiana domestic-relations order. He put copies of the orders in his first amended collection motion and simultaneously documented mailing copies of the old orders to mother. He clearly did not follow all the procedures of Texas Family Code section 159.602 to register out-of -state judgments under the Uniform Interstate Child Support Family Support Act.
The trial judge dismissed the case because the father never filed a separate motion to register the orders, and-- therefore-- the trial court lacked subject-matter jurisdiction.
Beaumont Ninth Court of Appeals justice Leann Johnson, wrote for a panel including Justices Charles Kreger and Hollis Horton reversing and remanding the trial court judgment because the father reasonably communicated to the trial court and to the mother that he wanted two orders registered and which they were. The Ninth Court of Appeals followed Kendall v. Kendall, 340 S.W.3d 483, 500-01 (Tex. App.—Houston [1st Dist.] 2011, no pet.) which held that failure to follow all the details of Tex. Fam. Code sec. 159.602 did not deprive the trial court of jurisdiction.
The opinion seems reasonable and will tend to simplify practice without depriving anyone of any material rights. The opinion notes that the father and his counsel were not present at the dispositive trial court hearing, but did not say why. The opinion put shudder quotes around the word proof in discussing the father's proof of mailing of the orders-- I am very curious why, but couldn't figure it out.
In re T.F. and T.F., (No. 09-14-00064-CV, Tex. App.-- Beaumont, Jan. 15, 2015) (mem. op.) (no pet. h.)

Sunday, January 11, 2015

So You Want to Appeal a Texas State Summary Judgment?

A trial is a determining of controverted facts and law. Usually both sides agree on the law, but don't generally agree on the facts. If the facts of a case are agreed, both sides can submit their view of the law to a judge, and the judge can issue a final judgment. (Why can't one of the sides get a jury?  Because a jury's job is to decide fact disputes. No fact disputes? Then no need for (and no right to) a jury.)
Let's say a lawsuit is filed Lawsuit A-- one side says that a factual dispute exists between the parties about one of the elements of a case  and the other side says that any factual disputes are not about any of the elements of the cause of action. That other side asks for the judge to rule that there are no factual disputes about any of the elements of the case, so that no factual determination is required, just a final decision on the law. If the judge grants the motion that there are no factual disputes in the case. The judge will enter a final judgment which one or the other parties may appeal. In Lawsuit B a judge may grant a summary judgment because a defense is proved as a matter of law such that no trial is needed. In Lawsuit C a state summary judgment that can be granted because-- after a reasonable time for discovery a side propounding a cause of a cause of action or a vital defense have not come up with more than a scintilla of evidence in favor of the element or defense..
There need not be oral hearings as to whether or not a summary judgment motion or similar motion should be granted.
As you recall, generally, judgments can not be appealed unless they are final.
Really good trial judges check the pleadings and interlocutory rulings and nonsuits of all parties and make sure not to close a trial file unless every issue for every party has been adjudged or dismissed. Judges often put in a judgment that they intend to be final and appealable "This is a final judgment," and "All relief not granted is denied." This last sentence is especially clever: any element of the litigation or any party in the litigation that might have been forgotten now has an appealable ruling!
You can imagine that frequently, the party that wanted the trial might want to object or a party to a law dispute may want to appeal the trial court's law ruling.
As in any non-interlocutory appeal, if the lower court's judgment is not final, the higher court lacks jurisdiction over the matter. If the higher court finds that it does not have jurisdiction over your matter then you case is on the fast track to Loserville.
Surprisingly, there is a line of authority that says that determining the finality of a judgment should not be a big deal. That, for example, if a lower court judgment is issued under circumstances that would make a reasonable outsider think that the judgment is supposed to be a final judgment-- that is, at the end of super-comprehensive, but not completely comprehensive, bench trial or jury trial, that even though it left out some early parties who dropped out of the case, though technically some of their causes of action were still pending, evidence of finality is close enough for government work. I know that I am not the only appellate lawyer to think that these cases make bad precedent. If it is not as clear as glass whether or not a court has jurisdiction, we lawyers cannot give reliable advice to our clients, and it opens appellate courts to the appearance of requiring absolute finality for disfavored parties and giving a pass to favored ones.
Practice tip one: if a proposed appeal comes to your desk less than 30 days after the judgment, do what the trial judge should have done in the first place: check the pleadings and interlocutory rulings and nonsuits of all parties and check whether every issue for every party has been adjudged or dismissed. If any have been left out, consider a motion for a trial on those issues or a motion to dismiss those issues, or even a motion for summary judgment. Consider this even if the judgment proposed to be appealed is old, even very old. Remember, generally, the appellate deadlines do not begin to run until there is a final judgment, and if a suitable judge or panel rule that the judgment is not final, the clock has not begun to run at all. 
 It is highly unlikely that any harmful error will be found nor any appellate relief granted unless the appellant made it clear in a timely written response to the motion for summary judgment what the error. If the motion for summary judgment is unclear, special exceptions must be filed to the motion. In response to the special exceptions for the motion, the judge may give the summary judgment movant a chance to replead.  Sometimes the movant repleads, and the respondent specially excepts to mistakes that were not fixed. A motion will generally be dismissed only if repeated efforts fail to produce understandable and reasonably complete motion points fail.

Tuesday, January 6, 2015

Failing to Follow Texas Rule of Civil Procedure 276 Doesn't Stop Reversal and Remand in Sex Offender Failure to Register Case

In a jury trial, the jury is the judge of the facts and the judge is the judge of the law. The main way the law gets to the jury is through a document called a jury charge. Texas Rule of Civil Procedure 271 makes this a right, though waivable. For the great bulk of Texas history, if a jury charge were wrong, the case would have to be retried (Sometimes, because of the rule against double jeopardy, the State would just lose it's chance for a conviction.). Think about it--if the jury charge be wrong, that is, in error about the law, the jury's verdict could never be right. The jury's fact-findings would be inconsistent with the law. Put another way, the jury would be answering the wrong questions or would be answering the questions wrong. These days jury charge form books are prepared by the State Bar, before books like this existed serious conflict between the sides in a trial was common. Now, not so much. In a civil matter, usually both sides submit a proposed jury charge before the beginning of the trial, and the judge marks it up during the trial.  The trial has to be fitted to the evidence, and it is the trial itself that determines which issues arise. In criminal matters, the jury charge form books are not finished. There are not standard forms for many crimes. The most common source for criminal jury charge forms is Harris County's jury charge bank. James Publishing's Texas Criminal Jury Charges-- commonly known as McClung's-- is also frequently used. It was the one I used when I was a prosecutor. Usually in a criminal case the prosecutor prepares a proposed jury charge and the defense attacks it, tries to amend it, etc. Courts that are above trial courts tend to think that if a party wants to appeal, it is only fair to the trial judge to have that party show the trial judge in a timely manner (In the real world, it usually means immediately at the time the problem comes up in the trial.). exactly what the party thinks that the judge did wrong and why.

The rules are more complex and burdensome when working to preserve jury charge error. A proposed jury charge written by the judge must be submitted to the parties, and they must be allowed sufficient time to fairly analyze it. After that objections to that charge must either me made in writing or must be read allowed to the court reporter with the judge and all the trial lawyers present, but not the jury.  The judge must either sign the written objections that are refused or dictate them to the lawyers in the present of the court reporter. Language that a party thinks was improperly not included in the charge, but be submitted in writing and must be separate from the objections to improper language in the court's proposed jury charge required by Rule 273. Rule 274 required that the charge objections be specific and that suitable reasons for the objections be put in the writings required by Rule 272. If lawyers make so many objections to a jury charge that the valid complaints are obscured by a storm of bogus ones, the appeals court may ignore them all. One also cannot make one or more charge complaints by incorporating other parts of individual complaints made earlier in the document. According to Rule 276, objections either refused or only adopted in part must be so designated and the disposition of them written and signed by the judge.

Two weeks ago this blog showed how the Ninth Court of Appeals in Beaumont reversed and remanded a long-shore personal injury case even though the defense failed to follow these rules for preserving jury charge error. In today's case, the Sixth Court of Appeals in Texarkana, reversed and remand the conviction of a person accused of failing to register as a sex offender.

Sex offender Clister Ray Thomas lived with a girlfriend in an apartment on Houston Street in Longview. The landlord swore out a criminal trespass warning to Thomas, but Thomas didn't move out. He just showed up there late at night and left extremely in the morning. When Thomas was arrested in unrelated matters, he gave jail book-in a false address on Green Street in Longview. Even though Thomas lied then about the address, he was still on the sex offender registry as living on Houston Street, which-- contrary to the landlord's wishes-- was where he was actually living.

Thomas was arrested and convicted of having moved without having changed his registration. Texarkana reversed and ordered an acquittal for insufficient evidence. The State took the case up to the Court of Criminal Appeals, Texas's highest criminal court. There Judge Hervey wrote an opinion joined by Presiding Judge Keller, and Judges Meyers, Keasler and Alcala joined reversing Texarkana, and remanding the case back to them for them to decide if the jury charge error alleged had been harmful Remember Thomas's lawyer had not jumped through the jury-charge error-preservation hoops. Judge Womack concurred without an opinion, and Judge Cochran wrote a dissent, joined by Judges Price and Johnson.

When Texarkana got the case back, it found that Thomas had been egregiously harmed by the jury charge error, which is appeals-court talk for "the error is so bad that we're going to hold for him even though the jury-charge error-preservation rules had not been followed." This answers the CCA majority's question and basically adopts the reasoning of the dissent.

Aren't the bi-statial justices just setting themselves up to get slapped down again? Maybe not. Judge Womack is off the court, replaced by Kevin Michael Yeary. Yeary might join the dissent. Judge Cochran is off to be replaced by David Newell, and Judge Price left to be replaced by Bert Richardson. I don't know, but it would not be an unreasonable guess to think that Richardson might join the dissent, and that at least on one of the majority judges would agree with the Sixth court's jury-charge- harm analysis, thinking that they answered the question put to them by the majority. It is also possible that one or more majority judges would think that the CCA's been messing around this case long enough.

Clister Ray Thomas v. State of Texas (No. 06-13-00046-CR, Dec.30, 2014 ) Tex. App.-- Texarkana (no pet. h.) on remand from No. PD-1326-13, Sept. 24, 2014 (Tex. Ct. Crim. App.) on a petition grant from Aug. 28, 2013 Tex. App.--Texarkana.

Hat tip to the estimable Jim Skelton.

Friday, January 2, 2015

Appealing Texas State Straight Probation and Deferred Adjudication

How could it happen that a Texas state defendant could end up guilty of a felony or a class A or B felony, not go to prison or jail, and yet be able to appeal the case?
A capital felony conviction results in either death, life without parole, or, if the offense were committed when the defendant was less than 18 years old, life with the possibility of parole. Violation of city or county ordinances or class C misdemeanors are fine-only offenses.
There  are three ways to be guilty of imprisonment, state jail or county jail offenses and not end up in prison, state jail or jail: straight probation, deferred adjudication and deferred prosecution.
In straight probation, the defendant pleads either no contest (also known as nolo contendere) or guilty, and the judge finds the defendant guilty, but gives a sentence for a fixed period probated for a particular time. In a case like this the defendant has a conviction on record, but if probation is not violated for the time set by the court, the defendant will never go to prison. (Related to this, but a little different is shock probation-- the defendant is imprisoned for a time-- often 180 days-- and then released on probation so as to show the defendant what the alternative to being a good probationer is.)
Deferred adjudication is when the defendant pleads as above, but instead of the judge finding the person guilty at that time, the judge accepts the plea, putting off deciding (adjudicating) the case until some date in the future (usually a much longer time than a defendant would get in straight probation). If the defendant does not violate the probation until that date in the future, then the court will dismiss the case at that date. The great advantage of deferred adjudication is that, if successful, the defendant can truthfully claim to never have been convicted of a crime, at least as far as the State of Texas is concerned. This is not true for the United States Immigration and Naturalization Service. It counts deferreds, even successful ones, as convictions for their purposes. Now if you've read carefully, you've seen that deferred adjudication does not give a sentence for a fixed period probated for a particular time. Deferred puts the defendant on probation for a particular time, but does not fix a sentence. It offers the defendant a blessing and a curse. If the defendant makes it through the probation, the blessing is that there is no State conviction. But if the defendant does not make it, then the court can give the full range of punishment from the minimum to the maximum. Deferred is intended to minister to good people who-- out of character--commit a criminal act. But for the habitual or professional criminal it is a trap-- expecting that they will change and will not reoffend-- they sign up only to end up with the maximum when substance abuse or mental illness or just being a smart-ass gets them back in jail or in prison.
Deferred prosecution is even better. If the defendant can get the State to agree, it will enter into a contract with the guilty-nolo pleading defendant for a fixed period and will not even file charges. Get through the period and that the State withdraws the charging instrument. A successful defendant can truthfully say that the charges were dismissed without further proceedings. Doesn't help with INS though, they count not whether a person is convicted or charged but whether they pleaded, so it's still a conviction with them. If the defendant fails, the contract is deemed to be violated, and they go on with the process from the beginning only it's a fair bet that the prosecutor's office likes the defendant a lot less. They feel that a failed deferred prosecution makes them look bad.
These paragraphs are a big introduction to a small subject. What can the defendant appeal?, On a straight probation, a defendant cannot appeal the finding of guilt. The defendant agreed to it. If any relief would be available on the guilt finding it would have to be on an application for a writ of habeas corpus. The finding of violation of probation could be appealed, but remember:

  1. All of the violation findings have to be overruled; if one is left, that violation is still true, and the court is within its rights to violate the defendant.
  2. Probation violations just have to be proved by a preponderance of the evidence not beyond a reasonable doubt-- a much lower standard that the usual criminal law standard.
  3. The standard for review is the abuse of discretion standard-- the lowest one in appellate law.
The statute says that there is no right to a jury in a finding of probation violation.

In deferred adjudication, one cannot appeal the finding of guilt-- it was agreed. Beating that requires a hard-to-win writ application. It used to be that the finding of violation was unappealable, but the statute was changed six years ago. You have all the problems I enumerated above as to beating probation violations, but if there is a problem with the sentencing, that can be appealed in the same way as a punishment problem can be appealed in a trial.
What about appealing a judicial finding in a deferred prosecution that the defendant breached the agreement? It would not appear to be a final judgment-- the trial would be proceeding. If the bogusness of the breach is as clear as glass, a writ application might be appropriate. Not habeas corpus, appeal after final judgment is probably a sufficient remedy. I'm not sure that they would feel that way about mandamus or prohibition if the defendant was favored (e.g. a state official).