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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.

Saturday, December 10, 2016

Which Criminal Defendants Have the Right to Appointed Counsel at Trial and on Appeal?

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.United States v. Bryant, 136 S. Ct. 1954, 1958, 195 L. Ed. 2d 317 (2016) The federal constitution imposes on the states no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687 (1894). Where an indigent has only one appeal, that person has a right to counsel as to that appeal. Douglas v. Cal., 372 U.S. 353, 357 (1963). A state need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court of the United States. Cf. Ross v. Moffitt, 417 U.S. 600, 615 (U.S. 1974).

Wednesday, December 7, 2016

From the Grave, Steve Jobs Reaches for all the Smartphone Profits of his Competitors, but SCOTUS stops Him.

The Supreme Court of the United States decides Samsung Electronics Co. v. Apple Inc. It came up on appeal from the United States Court of Appeals for the Federal Circuit, the national court of appeals for patent matters, among others. It had been established that Samsung, among others, infringed on some of Apple's patents in their cellphones-- things like having a rectangular front face with rounded edges and a grid of colorful icons on a black screen. Apple was awarded $399 million in damages—Samsung’s entire profit on their infringing phones. On certiorari to SCOTUS, Samsung, et al, complained that the Samsung defendants should not have to pay Apple all its profits, when many, if not most, of the features of their phones were not infringing. Justice Sotomayor, a former trademark lawyer, wrote an opinion for a unanimous Court reversing the lower court and remanding the case to it, That lower court is ordered to award Apple only those damages from the infringing aspects of the defendants' phones, not all of the profits the defendants made on the phones.

Samsung Electronics Co. v. Apple Inc., No. 15-777 (U.S., Dec. 6, 2016)

A hat tip goes out to our friend, The Woodlands' patent badass Basil Angelo, for sharing his views of the case. Of course, the views here are ours' and he is not responsible for them or for any errors in this post.

Thursday, December 1, 2016

Amendments to the Federal Rules of Appellate Procedure Go into Force Today

Amendments to the federal rules of appellate procedure go into force today. This is a link to the rule changes. The most important changes will be to reducing word counts in briefs.

I feel forced to copy this here, because I don't know how long the Fifth Circuit's guidance about reducing word count and cases in briefing will be on the front of their web site.

Guidance regarding reduced word count and cases in briefing.

Reduced word counts became effective December 1, 2016, pursuant to changes to the Federal Rules of Appellate Procedure. To ensure fairness to parties, for cases in briefing where an appellant filed a brief before December 1, 2016, and an appellee's brief will be due on or after December 1, 2016, the appellee's brief may use the former (greater) word count limitation, if necessary.  As the court continues to consider possible changes with respect to new word count limitations, counsel are invited to review Fifth Circuit Circuit Rule 32.4.

Fifth Circuit miscellaneous fees are going up.

Thursday, November 17, 2016

What Happens to Trial Exhibits on Appeal?

In Texas state practice, admitted trial exhibits are attached to the court reporter's record. Where an exhibit is very valuable (e.g. a bearer bond) or dangerous (a firearm) or very bulky (an image as large as a billboard), trial judges will often grant motions for images of exhibits to be substituted for the exhibits themselves.
At the court reporter's request, the trial court clerk must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court clerk possesses an original exhibit, either the trial court or the appellate court may order that person to deliver the exhibit to the trial court clerk.
 If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.

Tuesday, November 8, 2016

Things Could Be Different

Mark W. Bennett runs for Texas Court of Criminal Appeals Place Six in the upcoming election. He is the Libertarian nominee. When asked why he was running. he was most direct: "Somebody has to," and that the incumbent stands for the status quo. He opposes partisan elections for judicial office, says that they are harmful to freedom and justice, since long-time partisans get nominated and, therefore, elected, even though if one were to seek the best judges possible, Republican or Democratic party hacks would be the last place reasonable people would look. He offers a different choice.
Mark W. Bennett caused part of the statute against improper relationship between educator and student to be held to be unconstitutional on the ground that non-obscene materials that concern sexuality may well be appropriate objects of study, and disallowing communication about them is a content-based restriction on protected speech. Examples would be "The Rape of the Sabine Women,  the "Venus de Milo," ancient Greek myths concerning the sexual prowess of Zeus and Renaissance ribald plays (I noticed that there was no mention of the Bible-- the end of the story of Noah, Lot's daughters, the Song of Solomon, etc.).
Bennett proposes to make lawyers work harder-- he believes CCA judges are afraid to find ineffective assistance of counsel when defense lawyers give it and are afraid to recognize pleadings that do not state a cause of action, when prosecutors write them.
Many law students and young lawyers, when they first encounter criminal practice are struck how much the State seems to always be fighting from the high ground. The criminal laws that are important on a day-to-day basis favor the State, either directly or by effect. And on top of that, judges who use their considerable discretion to practically always  favor the State tend to be rewarded by the electorate rather than punished. Bennett appears to find this scandalous, and wishes to show that the status quo is not inevitable, it is what the electorate votes for. People could vote for something different. 

Saturday, October 15, 2016

Retired Ninth Supreme Judicial District Appeals Justice Dies

The honorable James Donald McNicholas, former associate justice of the Beaumont's Ninth Count of Appeals, died Thursday, October 13, 2016 at Harbor Hospice- apparently at one of their Beaumont locations. He had been the municipal judge of Beaumont for approximately the last ten years, continuing until just before he died. He served as on the Court of Appeals only from 1983-1984.

McNicholas was born in Marinisco, a tiny logging village on the Upper Peninsula of Michigan, a tiny village near the Wisconsin border on April 23, 1918. He got his undergraduate degree and law degree from the University of Michigan. Before his last year of law school, he served as a Captain in the Third Army during World War Two and served under George Patton. He received his law degree in 1948. He was admitted to the Michigan bar in 1948 and the Texas bar in 1949. McNicholas was admitted to practice in all Texas state courts and the United States District Court for the Eastern District of Texas as well as the United States Court of Appeals for the Fifth Circuit. He is a member and past president of the Jefferson County Bar Association, as well as a member of the Texas Association of Defense Counsel.

Judge McNicholas practiced law in Beaumont for sixty years. Most recently he was of counsel at Germer, PLLC. He was Mayor of the City of Beaumont from 1968-1970 and was a Board Member of Jefferson County Drainage District Six at his death. 

Funeral services will be held at 11:00 a.m. on Monday, October 17, 2016, at St. Andrew’s Presbyterian Church, 23rd and Gladys, Beaumont, Texas. Our condolences go to his family.

Friday, October 14, 2016

Dallas Court of Appeals Justice Resigns in Lieu of Facing Removal Proceedings

David Lewis, a justice on Texas's Fifth Court of Appeals in Dallas, resigned just as removal papers were filed against him with the Texas Supreme Court on Tuesday. Lewis suffered from alcoholism and depression and had been suspended without pay since September 2014. According to the records of the Texas Commission for Judicial Conduct quoted in the Dallas News blog of the Dallas Morning News, Lewis was "erratic, hostile and threatening." A doctor chosen by the Judicial Conduct Commission reported that Lewis's problems began as early as 2013 and that a scan of his brain in 2015 is of a person who is experiencing decreased cognitive function and is trying to cover that up.
Governor Abbott will appoint a person to fill Lewis's seat on the bench until his term ends in 2018. Lewis is a Republican. Texas's Fifth Court of Appeals is the state appeals court for Collin, Dallas, Grayson, Hunt, Kaufman, and Rockwall counties.
Hat tip to the Texas Lawyer newspaper's online bulletin.

Wednesday, October 12, 2016

". . . don't pull the mask of the ol' Lone Ranger and don't mess with SCOTUS"

In Booth v. Maryland, 482 U. S. 496 (1987), the Supreme Court of the United States held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Four years later, in Payne v. Tennessee, 501 U. S. 808 (1991), the Court granted certiorari to reconsider that ban on “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” The Court's holding was expressly “limited to” this particular type of victim impact testimony. Booth also held that a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment, but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision. The Oklahoma Court of Criminal Appeals has held that Payne implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence. Conover v. State, 933 P.2d 904, 920 (1997).
A jury convicted petitioner Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P.3d 1203, 1226–1227.
SCOTUS doesn't like lower courts messing with its precedents.
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless SCOTUS reconsiders that ban. 
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law, but SCOTUS is sending the case down on remand. 
Shaun Michael Bosse v. OklahomaNo. 15–9173, 580 U.S. ____, (Oct. 11, 2016) 

Saturday, October 8, 2016

Justice by the Book, Not by the Sound Bite

Meet the Presiding Judge of Dallas County's Criminal Court Number One, Robert Burns. He is also the Democratic Party candidate for Texas Court of Criminal Appeals Place Six,
He came to live in north Dallas when he was 5 years old, graduated from Richardson High School, then my alma mater Austin College in Sherman, a long hour's drive north of Dallas. He's a 1990 diplomate of Southern Methodist University.
His Republican adversary is Judge Michael Keasler.
He has a strong court management record, and has a strong reputation for attention to detail in his work.

Thursday, July 21, 2016

All the Time in the World to Claim this Error

Many's the post in this blog that has emphasized the importance of preserving error before you can get it reversed in an appeals court. Texas Rule of Appellate Procedure 33. That is, generally, you must clearly inform the trial judge as to what your complaint is in time for the judge to correct the error. And if you do not do so, you cannot complain of the error on appeal. There is one huge exception to this rule, and that is a complaint that a court lacks subject-matter jurisdiction. We've already discussed the importance of making sure that the court you want to appeal to has subject-matter jurisdiction of your case. , a complaint you can make at any time up to the mandate's becoming final--even then, a habeas corpus writ complaining of it would likely prevail. The same principle applies to if it the trial court that lacked jurisdiction.

There is a story about this point of law. I believe it to be apocryphal.

 As a general rule, the people who have been arrested in the last 24 hours are brought before a judge, usually called a magistrate,

  • One job of the magistrate is to listen to one or more prosecutors explain why the State believes the accused probably committed an offence and what offence the State believes it is. This is practically always a pure formality. An arresting officer gets approval to arrest and a designated charge from talking with a prosecutor from the scene of the arrest over radiophone.
  • The magistrate also reads the accused his or her rights again.
  • Magistrate sets bond or makes a finding that no bond will be set.
  • Magistrate asks the accused if he or she claims to be indigent, and, if so, sets up the process for the accused to be interviewed to determine whether or not the accused is eligible for counsel to be appointed at no charge to the accused.
The accused who show up are often a motley crew, often in clothes not washed in days, many of them still drunk from the night before, many marked with the wounds of barroom battles or forceful arrests. And on this particular morning, there are one particularly, loud, obstreperous drunken man. He wouldn't follow the deputies' directions, and he yelled during other peoples' proceedings, and he started scuffles with the other accused people. Finally, the judge,whose main duties involved holding traffic court,  had had enough. He had the bailiffs bring this guy in front of the bench, where, upon hearing of what the man had done the night before--being publically intoxicated somewhere-- the judge pronounced upon him the death penalty, which subdued the fellow, head still spinning from a night of Thunderbird wine.

This is a joke. The trial judge would not have pursued the punishment he pronounced. But the lawyer for the anti-social Thunderbird person's complaint that the court did not have subject-matter jurisdiction for the judgment, could never be held to be too late as long as the accused was still alive.

Monday, July 18, 2016

Texas State Criminal Appellate Court Costs

In a criminal appellate court proceeding, except in cases in which a presumption of indigence has been established as provided by Rule 20.1(a)(3), a petitioner must file an affidavit of indigence in the court in which the proceeding is filed, with or before the document seeking relief. A respondent who requests preparation of a record in connection with an appellate court proceeding must file an affidavit of indigence in the appellate court within 15 days after the date when the respondent requests preparation of the record, except in cases in which a presumption of indigence has been established as provided by Rule 20.1(a)(3).
When written notice of appeal from a judgment or order in a habeas corpus or bail proceeding is filed, the trial court clerk must prepare and certify the clerk’s record and, if the appellant requests, the court reporter must prepare and certify a reporter’s record.[1]
The court may make an appropriate order relating to costs, whether allowing costs and fixing the amount, or allowing no costs.[2]

[1] Tex. R. App. P. 31.1
[2] Id.

Monday, July 11, 2016

Getting an Appellant's Reporter's Record-- Poor or Rich

Within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge.[1] If after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings.[2] When the court certifies that the appellate record has been furnished to the appellant, the reporter must be paid from the general funds of the county in which the offense was committed, in the amount set by the trial court.[3]

Wednesday, July 6, 2016

Required Changes in Texas Criminal Law Filings Beginning July 1, 2017

Electronic filing is already required in the Texas Court of Criminal Appeals and Texas Courts of Appeal for parties represented by lawyers under Texas Rule of Appellate Procedure 9.2(c)(1) and (2). Now it's going to be required in district courts, county-courts-at-law, and constitutional county courts for those represented by lawyers.

(What's the difference between a county-court-at-law and a constitutional county court you ask? The Texas Constitution sets up a default, skeleton set of county offices-- the minimum needed, and then the legislature can establish extra offices for those counties big enough to need them. In large counties, even ones as small as my Montgomery County, the title of the chief executive of the county is County Judge. The county legislature, which also has a number of executive powers, is called the County Commissioners' Court, which the County Judge presides over, but the County Judge doesn't hold a judicial court or preside over any true judicial proceedings. The judicial powers of the County Judge in such a county are reposed in one or more county-courts-at-law established by the legislature. Montgomery County has five; Harris County-- the largest-- has 20-- 16 criminal and four civil-- and additionally, four probate courts-- which have a mix of county-court-at-law powers and state district court powers.  In a tiny rural county, like Matagorda County where I used to live, the County Judge actually has judicial powers as well, holding court about some civil matters and also holding court on misdemeanors and also hearing cases appealed from justice courts, municipal courts and small claims courts, the latter three courts being the lowest level courts in the state. The buildings and the judges and the court staff for justice courts are the same as for small claims courts.)

Electronic filing will be mandatory in criminal cases in the district courts, statutory county courts, and constitutional county courts according to this schedule based  upon  the  counties'  2010  Federal  Census population:

a.      Courts in counties with a population of 500,000 or more- July  1,  2017
b.      Courts in counties with a population of 200,000 to 499,999 - January 1, 2018
c.      Courts in counties with a population of 100,000 to 199,999 - July 1, 2018
d.     Courts in counties with a population of 50,000 to 99,999- January 1, 2019
e.      Courts in counties with a population of 20,000 to 49,999 - July 1, 2019
f.       Courts in counties with a population of less than 20,000 - January 1, 2020

Municipal courts and justice courts will not have to change, except that if they accept any electronic filing they have to follow the rules that the higher courts use (Small claims court has no criminal jurisdiction.).

Pro se litigants will still be able to use paper. Some of them will be on the wrong side of the digital divide. Other are locked up and authorities don't want to give those people access to internet-enabled computers.

Monday, July 4, 2016

Introduction to Texas State Civil Appellate Costs

The default rule of Texas state civil appellate costs—— is that a party who is not excused by statute or the Texas rules of appellate procedure from paying costs must pay — at the time an item is presented for filing — whatever fees are required by statute or Supreme Court order.[1]  Who doesn’t pay costs? Two main groups— the State or other government agencies and indigents, about which latter group we’ll have a lot to say about later. In a civil case, the court of appeals’ judgment should award to the prevailing party the appellate costs — including preparation costs for the clerk’s record and the reporter’s record — that were incurred by that party.[2] But the court of appeals may tax costs otherwise as required by law or for good cause.[3] The appellate clerk must prepare, and send to the trial court clerk with the mandate, a statement of costs showing the preparation costs for the appellate record, and any court of appeals filing fees, with a notation of those items that have been paid and those that are owing; and the party or parties against whom costs have been adjudged.[4] When the trial court clerk receives the mandate, the appellate court’s judgment must be enforced.[5] Appellate court costs must be included with the trial court costs in any process to enforce the judgment.[6] If all or part of the costs are collected, the trial court clerk must immediately remit to the appellate court clerk any amount due to that clerk.[7]
The Supreme Court clerk will prepare, and send to the clerk to whom the mandate is directed, a statement of costs showing: (a) the costs that were incurred in the Supreme Court, with a notation of those items that have been paid and those that are owing; and (b) the party or parties against whom costs have been adjudged.[8] If the Supreme Court renders judgment, the trial court need not make any further order.[9] Upon receiving the Supreme Court's mandate, the trial court clerk must proceed to enforce the judgment of the Supreme Court's as in any other case.[10] Appellate court costs must be included with the trial court costs in any process to enforce the judgment.[11] If all or part of the costs are collected, the trial court clerk must immediately remit to the appellate court clerk any amount due to that clerk.[12]

[1] Tex. R. App. P. 5.
[2] Tex. R. App. P. 43.4.
[3] Id.
[4] Tex. R. App. P. 51.1(a).
[5] Tex. R. App. P. 51.1(a).
[6] Id.
[7] Id.
[8] Tex. R. App. P. 65.1
[9] Tex. R. App. P. 65.2
[10] Id.
[11] Id.
[12] Tex. R. App. P. 65.2

Sunday, May 1, 2016

Objection re Right to Trial Counsel in Proceeding Must Be Asserted to Overturn Judgment

Darcy v. State, No. PD-1094-15 (Tex. Crim. App. Apr. 27, 2016)  (Keller, P.J. writing for Keasler, Hervey, Alcala, Richardson, and Yeary, JJ.) Meyers, J., filed a concurring
opinion. Johnson, J., filed a concurring opinion. Newell, J., concurred. (no pet. h.).
During the trial of this case, defense counsel learned about a possible right-to-counsel violation that occurred before trial. Evidence involving and relating to the alleged violation was admitted at trial, but counsel did not complain until appeal. The court of appeals reversed appellant’s conviction without considering preservation of error. We conclude that the court of appeals erred in failing to address preservation of error, and we hold that appellant forfeited his complaints by failing to raise them at trial.
 The State suspected that unauthorized messages were being smuggled into and out of the jail. As part of his investigation, Christopher Earl Darcy's friend Rebecca Morris was asked to write a note to him and pass it to the jail cook, which she did.
 Morris testified for the State at trial.. During cross-examination, defense counsel produced the note that she had written to Darcy and had her read it. The prosecutor does not object. The trial court and defense counsel clarified that defense counsel was not offering the note into evidence. The prosecutor then said that the State would offer the note into evidence. Defense did not object. The note is admitted into evidence. On redirect, the Morris says that she was asked to write the note by an d.a.'s investigator, that the note was merely a ruse, designed to determine whether a message would get through to appellant while he was residing in the county jail. On further cross-examination, defense counsel questioned Morris-- note had not turned up until trial day and that he himself did not know how it got here.” No objection to note's admission nor any related testimony.
On appeal, Darcy complained about the State causing the note to be written and sent to him. Court of appeals said that jail smuggling investigation made appellant look like a criminal and harmed him., The court of appeals reversed the trial court and remanded. CCA said tthat it had held that the right to counsel at a critical stage of trial is a waivable-only right,  and that Darcy failed to raise any complaint to the trial court with respect to Morris’s note and sought relief for the first time on appeal. He has failed to preserve error. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Wednesday, April 27, 2016

Cross Appeals

As to Texas civil cases, if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.
The leading Texas criminal case on cross-appeals is Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012). It taught an appellate court's jurisdiction is invoked by the timely filing of a notice of appeal. And that the proper notice of appeal vests Texas appellate courts with a broad scope of review and revision over a criminal case. Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. For example, appellate courts may review unassigned error—a claim that was preserved in the trial court but was not raised by either party on appeal. Pfeiffer quoted Carter v. State656 S.W.2d 468 (Tex. Crim. App. 1983) that quoted an even older case from the Texas republic that there is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record. Thus, when a defendant appeals a conviction, the courts of appeals have the jurisdiction to address any error in that case, including the State. When a defendant appealed his conviction, the entire case was subject to review, and the State could raise its claim of an illegal sentence without filing any notice of appeal.

Saturday, April 23, 2016

One Court, Half the Work

When I was reading the list of Released Orders and Opinion for Thursday, April 22, 2016 for Beaumont's Ninth Court of Appeals, I had a sense of looking through a telescope from the wrong end. It was a civil, rather than a criminal, day for the Neches Niners (Here's a photo of the court as a ship runs up the river.). Of the seven civil decisions announced that day, three of them were appeals from Montgomery County's 284th Judicial District Court, Honorable Cara Wood presiding,
 which is not so weird when you consider that her court is the only civil-only district court in the largest county of the territory of the Ninth Court of the appeals. My experience with Judge Wood is that she is businesslike, right-of-center, and rules on the facts and the law. Those unfamiliar with my Montgomery County might think that ruling on the facts and the law is unremarkable, but, historically, it is not. Judging is getting better in the county, but in the past it has been bad.
Thursday's first 284th Court decision is American Express Centurion Bank v. Haryanto. Haryanto, a Singaporean citizen, got a credit card from a Utah bank, using his mother's Montgomery County, Texas address. It doesn't appear that Haryanto ever told the bank that he was Singaporean. When the bank sues for an unpaid balance, Haryanto attacks the jurisdiction of the Texas court.
This area of the law has traditionally developed to protect businesses of national scope from being subject to suit in every one-horse town in the Union, and there is plenty of authority that one-off mail-order dealings are insufficient to subject the business to suit at the customer's address. I bet Judge Wood followed this authority.
Though the bank has no connection to Texas, Beaumont says that Haryanto's use of a Texas address to get the account and Haryanto's failure to ever tell the bank about his true residence sufficed to subject him to the jurisdiction of a Montgomery County Texas court to collect the debt, Beaumont reversed the trial court and remanded the case.
The sad subtext of Haryanto is "C'mon, this minimum contacts stuff is not for Singaporean con men to stiff American Express. To hell with case law. Get with the program, Judge Wood."
In decision two-- Khan v. Chaudry-- Beaumont supports Judge Wood's turnover order against Khan. I nominate Khan for Mr. Vexatious Litigation 2014-2016, a guy who will not take no for an answer. This is Khan's sixth original proceeding fighting Chaudry's judgment against him.
The third 284th case is Hegelskaer v. Texas Department of Transportation. TexDOT was working on a two-lane road, one lane at a time, with radio-connected flaggers allowing traffic first one direction than the other. Taking a turn, Hegelskaer, a bicyclist, is surprised by a truck heading toward her, and is injured. Her lawyer thinks of every way possible to argue around sovereign immunity, but in the end Judge Wood rules against her without prejudice. This is the ordinary way to rule on a case ended because of  a lack of needed language in a pleading. If the plaintiff's lawyer can think of a way to plead the case successfully before the statute of limitations runs, that lawyer can make another effort. Hegelskaer appeals, and Beaumont affirms, but TexDOT cross-appeals that the judgment, saying that the case should have been disposed of with prejudice, that is, there should have been no further change to replead later. Beaumont modifies the judgment so that it is with prejudice. 
The court of appeals kills the case dead no matter what Hegelskaer's lawyer thinks of later, and Wood's judgment is changed. I don't think Judge Wood "gets no respect, no respect at all," but she doesn't get enough.

Monday, April 18, 2016

Ineffective Assistance of Counsel

Today's subject is the ineffective assistance of counsel.

Strickland v. Washington, 466 U.S. 668 (1984) holds that the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Justices fear that if it is too easy for assistance of counsel to be ineffective, any trial error by a defense lawyer could be a get-out-of-jail-free card for a violent felon (Notwithstanding that ineffective-assistance-of-counsel practically always result in new trials rather than rendered not-guilty verdicts.). The opinion has a non-exhaustive, incomplete list of things effective counsel might want to do at a trial:
  • consult with the client in an overnight trial recess,
  • give a summation in a bench trial,
  • call the defendant as a witness other than the first one, or
  • directly examine the defendant.
An attorney might cause the client to have ineffective assistance if the lawyer is in a conflict of interest with the client.

Washington claimed ineffective assistance in his Florida capital sentencing proceeding. SCOTUS said the effective assistance requirement applied to such a proceeding.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

Counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

A state court's finding of effective assistance of counsel is not binding on a federal court.

Thursday, April 14, 2016

Property Taxation of Part of a Unitized Oil Pool

The 20th and 21st-century history of Texas is the history of Texas oil. Spindletop, the first Texas oil well, was in what is now the Ninth Supreme Judicial District (For ease of explanation, I'm going to call all liquid or gas petroleums oil. Understand, though, that the natural gas follows the same rules as crude oil.).So, what oil is whose? The first rule of oil ownership is the rule of capture, that is, if you drill your land and oil comes out, that oil is yours. For a dramatic, graphic, and horrifying historical tale of the oil business during the days of the rule of capture see the film There Will Be Blood. Or, if you're in a hurry-- watch this:
The State can require all the landowners above a common pool of oil to unitize their interests such that anyone taking out of the pool owes a pro rata share to the others for taking oil out of the pool.
So the question that was put to Justices Charles Kreger, Hollis Horton, and Leanne Johnson was how much of a unitized oil field could a city apply property tax to? Ms. X's surface plot under which her mineral interest exists which is wholly within the city limits is clearly taxable. Mr. Y's surface plot under which his mineral interest exists is partially within and partially without the city limits. His surface interest is clearly taxable to the extent it is in the city limits and not, to the extent which it is not. The mineral royalties are coming out of a unitized pool partly in, and partly without the city limits. How much of the mineral estate is taxable? Ms. Z whose land is wholly without the city limits but who is drawing from a unitized pool partly in and partly out of the city limits breathes firey imprecations when the city delivers her a tax bill.
In this case, named on appeal  Hader v. Jefferson County Appraisal District, the Manions (Mrs. Hader was a Manion.) owned land outside of Beaumont, part of which had been unitized into a pool which was mostly in Beaumont. Each set of parties filed a motion for summary judgment in the trial court. The Appraisal District moved for a judgment holding that to the extent the pool was in Beaumont, the Manions owed property tax for that part of the pool even though their surface estate was in no way in Beaumont. The Manions moved for judgment that they owed Beaumont nothing, since all their land was outside of Beaumont. None of the parties attached any of the relevant mineral deeds to their motions. The trial court generally found for the Appraisal District and refused judgment for the Manions. The Manions appealed, and, in an opinion written by Justice Horton, the Court of Appeals reversed the judgment and remanded it to the trial court for further consideration.
The Justices observed that pooling agreements could be written two ways: (1) the agreement could effect a cross-conveyance of interests between all the pool members, or (2) the agreement could be written not to cross-convey interests. The pooling agreement was not before the trial court-- if it was a cross-conveyance agreement, the Manions' case is weaker than if the agreement does not cross-convey interests. The appeals court further ruled that the Manions were not barred from their tax attack on the ground that they had accepted benefits from the pool because they had consistently fought getting taxed on their mineral- generally the Manions had not waived their rights. It also ruled that two of the Manions' failure to pay their assessments before bringing suit, did not eliminate their rights to attack their assessment. Those two did not pay; their defense was that they were being charged Beaumont taxes when they had no surface estate in Beaumont at all-- the appeals court cited a case in which a person challenged a tax assessment without paying because he claimed not to own the property. It appears that in a case where tax is assessed on land clearly within the relevant jurisdiction and the taxpayer clearly owns relevant property, the dispute is only about the amount of taxes to be paid, and such taxpayers have to pay their assessments before challenging them.
Hader v. Jefferson County Appraisal District, No. 9-14-00311 CV, (Tex. App.--Beaumont, Apr. 14, 2016)(no pet. h.)

Saturday, April 9, 2016

Ripeness, Mootness, and Capability of Repetition Yet Evading Review

Some courts have a duty to decide every case brought before them that properly invoke their subject matter jurisdiction and their territorial jurisdiction. In Texas state courts, these would be municipal courts, small claims court, justice-of-the-peace courts, county courts themselves or, where they are substituted for by county courts-at-law, county-courts-at-law, state district courts, and courts of appeals. In the U.S. federal system, the courts are bankruptcy courts, U.S. district courts and U.S. circuit courts of appeals.
A long-standing principle of Anglo-American or common law is that a court does not give advisory opinions.  A good effect of  such a rule-- likely the original reason for it-- is that deciding a case arising from particular facts is much easier than deciding a case on the basis of  pure abstractions. Compare how much trouble philosophers have with reasoning about questions for which legal reasoning is nowhere near as complicated. A bad effect of this rule is that one often cannot challenge the propriety or constitutionality of a law without violating it, and then urging the impropriety or unconstitutionality as a defense to being punished. That one must risk punishment to challenge a statute, regulation or practice, makes people less inclined to challenge the interpretations of statutes, regulations, or practices of those with power.
This rule appears to have at least two apparent exceptions. The first is the remedy of declaratory judgment. In such a situation, someone asks a court to make a declaration which another party opposes. This form of relief appears to have been urged on legislatures by insurance companies to allow insurers to sue as plaintiffs rather than having to wait for the plaintiff or plaintiffs to sue the companies as defendants. If a declaratory judgment does not decide a live controversy, such as whether an insurer must provide a legal defense for its insured, the suit is not allowed. It can't be used to decide a tax dispute or a criminal law dispute. So this exception to the rule is more apparent than real. The second apparent exception is certified question practice. The Texas constitution provides that the Texas Supreme Court may, but does not have to, answer a question of law put to it by a federal appeals court. In civil disputes in which the amount in controversy is not small that come before a federal court because none of the plaintiffs come from the same state as any of the defendants, the federal court is supposed to use state law rather than federal law to decide the case. So far, so good, but what is a federal court to do when there is no state case showing what state law is?  Generally, the federal court has to make an educated guess as to what the state law would be. Unfortunately, it is possible that the federal court follows one doctrine, and later on, the state courts follow a different one. Certified question practice allows a federal appeals court to ask the Texas Supreme Court what the answer is. The feds can ask, but the Texas Supremes don't have to answer. When they don't answer, SCOTX makes the effort to get the ruling a waste of money and effort. Still, before the state constitutional amendment, SCOTX had ruled that answering a certified question was improper because the answer would be an advisory opinion. Notice, though, that a certified question grows out of a live dispute in the federal court, and the facts in that case can aid the state court by giving facts to the dispute, that an abstract question does not have.
A court can refuse to hear a case when the parties are going to have a have a dispute, but have not had the dispute yet or that important facts about the dispute are not presently known. Such a case is said to be unripe.
A court may also refuse where circumstances have left nothing to be corrected in an old dispute. For example, two parties may dispute ownership of property on the bank of a river, If the river floods, and the disputed land is washed away to the sea, no property ownership question may be left. Such a case is moot.
You might ask, how can the United States Supreme Court decide cases such as abortion cases, since gestation generally takes nine months, but hardly any case can get through trial, court-of-appeals review, and Supreme-Court review in less than nine months? It can because such situations are subject to repetition, but evade review. In the famous or infamous Roe v. Wade case, that the plaintiff had had an abortion in another state as to the abortion she sought in Texas, but was still capable of future pregnancies, that capability for future pregnancies gave her enough of a continuing interest in the matter to keep up her suit.

Tuesday, April 5, 2016

Texas Indigents Freed from Paying Court Costs in Their Divorces

Poor people should not be oppressed by costs imposed by courts. The federal Justice Department thinks so. As to attorneys' fees for services rendered to paupers, San Antonio's Fourth Court of Appeals agrees. The estimable Jani Maselli Woods believes so. E.g. Peraza v. State, 457 S.W.3d 134, (Tex. App.-- Houston [1st Dist.], Dec. 4, 2014)  reversed at 467 S.W.3d 508, (July 01, 2015).
The Texas Supreme Court joins them as to filing fees for civil suits filed with uncontested pauper's oaths. The case is Campbell v. Wilder, No. 14–0379, 2016 WL 1267876 (Tex., Apr. 1, 2016) (Hecht, C.J.) (slip op.) (Lehrmann, J. not sitting).
Seven people-- Campbell along with six others--  who got divorced for free by filing uncontested affidavits of indigency, also known as pauper's oaths, under Texas Rule of Civil Procedure 145 got cost bills from Tarrant County District Clerk Thomas A. Wilder. Those bills were in amounts around $300 and threatened that if they were not paid, the sheriff would take property in lieu of the money.
The Texas Advocacy Project objected as to some of the plaintiffs. Wilder said he was bound by the decrees saying that each party had to pay their own costs and that the unhappy indigents should return to court and have the cost charges altered.
Plaintiffs sued in Tarrant County's 17th Judicial District Court, which had made none of the divorce decrees for injunctive relief, inter alia.  After a hearing, it found that the
District Clerk:

" . . . has a policy, practice, and procedure that his office will seek to collect costs against
parties who have filed an affidavit on [sic] indigency under Tex. R. Civ. P. 145 where the
affidavit was not contested, where the contest was denied, or where the contest was
withdrawn based on judgments or final orders in which there was no specific finding
expressly stated in the judgment or final order that the indigent party’s action resulted
in a monetary award, and no specific finding expressly stated in the judgment or final

order that there was sufficient monetary award to reimburse costs[.]"

The Second Court of Appeals, the one in Fort Worth, poured the plaintiffs out for lack of jurisdiction in a divided opinion. The Austin Supremes took it up and some prominent appellate lawyers joined the team for the plaintiffs, e.g. former Texas Supreme Court Chief Justice Wallace Jefferson.

The Texas Supremes overruled Evans v. Pringle, 643 S.W.2d 116 (Tex. 1982) (per curiam), holding that the 17th District Court's injunction affecting other trial courts' judgments was allowable.

They also quoted the Tex. R. Civ. P. 145 that the affidavit of indigency was in lieu of costs. That is, once the time for challenging the affidavit of indigency passed-- there were not any costs for that party in the case, and that family courts were freer to assign costs than other civil courts were, made no basis for indigents to incur court costs.
Thoughts on this case:

As to indigents lacking liability to pay court fees, this decision appears to comport with the plain language of Rule 145. For a prince of the GOP to ignore the letter of the law to take the property of poor people named Odell, Shaunta, and Tairhonda sickens people with sensitivity, who are also known as swing voters.

Friday, March 11, 2016

Enjoy Spring Break. I will.

I presently do not plan to post anything to the blog until at least the 20th. Am taking a week off.

Monday, March 7, 2016

Results of the Contested Texas Democratic Appeals Court Races

Texas Democrats had three contested appeals courts races.
In the Eighth Court of Appeals (El Paso) Place Three for the unexpired term of Steven Hughes, Gina M. Palafox led the five-way race, with Maria Ramirez-- apparently a El Paso municipal judge-- a close second for the runoff.
Leticia Hinojosa decisively beat Carlos Valdez for Greg Perkes's seat on the Thirteenth Court of Appeals in Corpus Christi and Edinburg.
Houston's 14th Court of Appeals Place incumbent Jim Sharp was ousted by Candance White as the Democratic candidate for Place Two who will face Republican Kevin Jewell.

Friday, March 4, 2016

Texas Appellate Court Republican Primary Election Results

Here are the Texas appellate court Republican primary results.
Incumbent Texas Supreme Court Justice Debra Lehrmann overcame a challenge from her right by Michael Massengale.
Paul Green, another Texas Supreme Court justice, pushed away a challenge from near-eponymous Rick Green.
A third Texas Supreme Court incumbent-- Eva Guzman-- overcame repeat candidate Joe Pool.
In the Texas Court of Criminal Appeals Place Two race, Mary Lou Keel led Ray Wheless by a thin margin, putting them into a runoff squeezing out Wheless's fellow Collin County district judge Mr. Chris Oldner.
I don't think I was alone among analysts of the Texas Court of Criminal Appeals Place Five to be surprised to see Scott Walker, whose campaign might be charitably described a dyspeptic, as the number-one vote-getter in the race. He was followed at some distance by Brent Webster. Grits for Breakfast called it, I think, when it explained that voters mistook candidate Walker for the Wisconsin governor.
Judge Paul Keasler easily overcame the challenge of Paul Davis to be renominated for Texas Court of Criminal Appeals Position Six.
The saddest sack of all the candidates, the winner of the Tear in My Beer award, is William Anthony "Andy" Porter, third place in the Second Court of Appeals Place Three contest. He was 29 votes (Only 29 votes!) behind Dabney Bassel in this Fort Worth court contest. Bassel is in the runoff with forensic lexicographer and former Texas women's chess champion Elizabeth Kerr.
In Dallas's Fifth Court of Appeals, Place Three incumbent David John Schenck decisively beat
David James Henschen.
For the Fourteenth Court of Appeals in Houston, Place Two, Kevin Jewell defeated
Bud Wiesedeppe.
To come-- Democrats and at least one Libertarian . . .

Sunday, February 21, 2016

Beaumont Keeps Past and Present Relief from Being Granted to "Failure to Complete Sex Offender Treatment" Convicts by Legislature.

VanDyke v. State, ___ S.W.3d ___, No. 09-14-00137-CR (Tex. App.-- Beaumont, Feb. 10, 2016, no pet. h.)

Know Nothing About Texas's Sexually Violent Predator Law? This Paragraph's for You.

Seventeen years ago, Texas created a sexually-violent-predator law. Texas prisoners about to be released who had had two sex offenses and who had a behavioral abnormality which made them likely to reoffend could be brought to a jury trial, and if those facts were established. those people were made subject to supervision by a state agency, which created and enforced a plethora of rules (Communicating with any person without the permission of the agency was a violation-- viz. during a phone call home to the family, saying "hello" to a family member who was a minor was a violation. If the power went out on the 35-year-old portable tracking transmitters-- the volume of a medium-to-large reference book--  issued to the offender, that was held to be a violation. If one did not follow the rules, they could be convicted of a third degree felony. Practically everyone in the program had two prior felonies, so that these violation sentences could result in prison terms of 40 years or life.
This program (first called Council on Sex Offender Treatment (CSOT), then Office of Violent Sex Offender Management (OVSOM), now Texas Civil Commitment Office (TCCO)) and the court and the judge in charge of these matters have had more problems over the last three years than can fit in a blog post.

Texas Improved the  SVP Law.

Roger Dale VanDyke was convicted of violating civil commitment by failing to complete sex offender treatment and was sentences to 25 years in prison. While the case was on appeal, Texas amended Tex. Health & Safety Code Ann. sec. 841.085 to prohibit prosecution for failing to complete sex offender treatment. The legislature said that this change covered all failures to complete sex offender treatment past, present, or future, except that a final conviction existing on the effective date of the change would remain unaffected.
Well, VanDyke's case was on appeal on the effective date of the change of law, so he asks, is not my conviction overturned? Chief Justice Steve McKeithen, writing for a panel including Justices Hollis Horton and Leanne Johnson, holds that to the extent that the statute change relieves sentenced convicts, the legislature is violating the separation of powers by taking over an executive function-- the granting of clemency to convicts, so that that part of the law is unconstitutional, and no existing sentences, either final or subject to appeal cannot be can be overturned or reduced by the legislature, but only by executive action, viz. the Texas Board of Pardons and Paroles. In a count of the first 13 years of Perry's governorship, one out of 33 requests for clemency, including pardons, was granted, so good luck with that.