The Appeals Court Was Not Going to Allow This New Trial

Houston First Court of Appeals Justice Evelyn V. Keyes, writing for a panel including Justices Michael C. Massengale and Harvey G. Brown, overturned former District Court judge Kevin Fine's granting of a new trial in a murder case.
The testimony of four witnesses are important at the trial:

• Lusk, who saw an unidentified man with a gun leaving the scene,
• Coronado, who saw defendant Thomas and another man leave the area after the shots were fired,
• Johnson, who saw defendant Thomas shoot at the victim, and
• Reliford, who saw defendant Thomas shoot the victim in the head.

Now Vallery appears to have been at the scene and was available at trial, but did not testify (Thomas's trial counsel said in a news report that to explain why their side didn't call Vallery to the stand would violate attorney-client privilege.). Vallery had given a statement to police, which the defense team had seen.

Thomas was convicted and got a 40-year sentence.

A co-defendant was convicted in a separate proceeding and got ten years.

Thomas moved for a new trial, at least on punishment on the ground that the court should have heard Vallery's testimony (It appears that she would have testified that Mr. "Ten Years," instead of Thomas, was the actual shooter.). He was quite firm that he was alleging neither that trial counsel had been ineffective for not calling Vallery at guilt-innocence nor that Vallery's testimony was newly discovered evidence. The trial court granted the motion and the State appealed: it said that the new trial was an abuse of discretion, and that  if the appeals court agreed that a new trial was warranted, it should not be just a punishment-only retrial. The appeals court held that there was no good legal reason to have another trial.

It appears the real-world fight was that Judge Fine was inclined to shorten Thomas's 40-year sentence in light of the other bad actor's ten-year sentence, and the prosecutors and appeals justices were inclined to deny him. Defense counsel, in Houston, you need more than an alleged disproportionality between defendants to get a new trial. You need a law error or an ineffectiveness claim or newly discovered evidence or credible ignored evidence of actual innocence.

Judge Fine, a tattooed, snuff-dipping Democrat long successful in drug addiction recovery, was disliked by Republican prosecutors and jurists at Harris County's Criminal Justice Center and the Court of Criminal Appeals and now the First Court at 301 Fannin has gotten to take a swipe at him. Fine was best known for having held that Texas's death penalty statute, as applied, was unconstitutional, which decision was quickly overturned and withdrawn.
State v. Thomas, No. 01-11-00500-CR (Tex. App.--Houston [1st Dist.], Dec. 20, 2012, no pet. h.).

It Takes a Heap o' Writing to Make a Jail Contempt Stick.

In Texas's First Court of Appeals in Houston, a panel of justices of justices Evelyn Keyes, Michael C. Massengale, and Harvey G. Brown decided Tammy Fountain's application for a writ of habeas corpus against a Houston family court. Justice Massengale wrote for the majority and Justice Keyes dissented. Fountain stipulated to violating an order in a suit affecting the parent-child relationship on October 18, 2011. On May 24, 2012, she was found in contempt of court and sentenced to 60 days in jail, but her jailing was suspended, conditioned upon her following the October 18 court order and some modifications dated May 24, 2012 from that point into the future. About a month after May 24, Katcher, the other party to this case, moved to jail Fountain. On July 31, 2012, the court Fountain jailed (She bonded out.). Her three violations were:

1. Failing to provide required notice timely to Katcher that Fountain was moving on June 22 by giving notice on June 18, 2012,
2. Failing to give notice to the child's school by May 15, that Katcher could pick the child up there, and
3. Failing to post information to a website that Fountain was obliged to.

Justice Keyes argued that the July 31 order failed to specify the manner in which Fountain had committed two of the three acts for which it held her in contempt and as for the third, the purported contemptuous act arose under the May 24 modification but took place before May 24. The majority held that the October 18 proceeding was all orderly, and that the procedures for the revocation of the suspension had been good enough in view of that fact.

Reading through the papers of this case I am reminded of an Italian proverb- that a lawsuit plants a tree in a lawyer's garden. At least five lawyers have worked on this case, not counting justices and staff at First Court. Still, jailing people is not to be done unless the rules are observed, that is, unless the alleged contemnor gets timely notice of what is complained of and the sheriff is given written notice of the basis for the commitment order. When a panel splits like this, it often behooves respondent's counsel to seek that the whole appeals court reconsider, and, if that does not free the client, to file an application with the higher court, in this case, the Texas Supreme Court.

Commitment orders are hard to write. They are generally drafted before the hearing and have to marked up after. The decision to commit someone to jail often comes at the end of a long day, often after the judge has been listening to testimony for hours. At some point the judicial belly just becomes full of this matter and everyone in the courtroom is exhausted, yet movant's counsel must be painstaking with the paperwork and get the judge to dot every "i" and cross every "t" so as to reduce the likelihood of months of expensive games of ring-around-the-rosie in appellate courts.
In re Tammy Fountain, No. 01-12-00704-CV(Tex. App.--Houston (1st Dist.), Dec. 28, 2012) (orig. proceeding).