It's a Real Choice for the GOP Nomination for Presiding Judge of the Court of Criminal Appeals

 

Justice David L. Bridges of Dallas's Fifth State Court of Appeals is running to be Presiding Judge of the Texas Court of Criminal Appeals, the state's highest criminal court.  He got his high school diploma from Rains High School, served two years in the Army, worked his way through college assembling air conditioners for General Electric, and after that, worked as a landman. He graduated law school at Texas Tech, was allowed to practice his third year of law school.helping indigent families and migrant workers with family law issues. He worked for the Palo Duro Legal Aid through the Presbyterian Church in West Texas, then the Smith County District Attorney's Office first trying misdemeanors, then felonies. After two years, he went to work in Upshur County for the District Attorney and was First Assistant. He became a senior trial attorney for the State Bar of Texas. In 1990, he was named Regional Counsel for the State Bar and was responsible for Dallas County and forty-four other counties. I went back to Austin and was named First Assistant and Chief of Litigation and handled all the attorney discipline cases in Texas. After a short time of being in private practice, he has spent the last 22 years as a Justice on Dallas's Fifth Court of Appeals.  He is running against incumbent Presiding Judge Sharon Keller and urges voters to Google Sharon Keller ethics.

Sharon Keller's Done a Lot of Stuff and She's Doing a Lot of Stuff

Three seats on Texas's Court of Criminal Appeals will be contested in the fall. With the shriveling up of newspapers and fair-minded, even-handed news coverage on the internet, we're going to post information about all of the candidates.

Presiding Judge Sharon Keller runs for re-election. She grew up in Dallas, went to undergraduate school in Houston at Rice University taking a degree in philosophy. After that, she went to Southern Methodist University in Dallas and took a Juris Doctorate at Southern Methodist University. She worked for another attorney at first. Later she was a solo and spent some time working in her parents' family business. She got appointed for many criminal appeals and ended up an appellate prosecutor in the Dallas County District Attorney's office. She ran as a Republican before being a Republican was cool and won a seat on the bench in 1994. In 2000, she was elected Presiding Judge, and was reelected in 2006 and 2012. She has gotten through this most recent term without the challenges of her past troubles.
She is the candidate of experience in this race. The Presiding Judge is not only the senior jurist of the nine jurists, but she is the administrator of the court with its sizable budget and dozens of staffers. By virtue of her office she is the vice-chair of the Texas Judicial Council, the policymaking body for the Texas judiciary. She is the chair of the Texas Indigent Defense Commission. They grant money and develop systems to help with indigent criminal defense. They count the appointment hours private defenders of indigents serve, finance continuing legal education for indigent defenders, developed a way for indigent west Texas capital defendants to have a measure of choice in who their lawyers were, among other good works. She's also on the board of the Council of State Governments Justice Center which develop and popularize innovative law enforcement, judicial, and corrections policies. Although she chooses half of the members of Texas Department of Criminal Justice Judicial Advisory Council, and the Chief Justice of the Supreme Court of Texas chooses the other half. Chief Justice Hecht chose Presiding Judge Keller as a member.
Presiding Judge Keller said that she enjoyed the "extra-curricular" (ceremonial) parts of her  job very much and didn't think, when she started the job, that she would enjoy that part so much.
She has only one opponent for the Republican nomination, David Bridges of the Texas Fifth Court of Appeals in Dallas. There is only one Democrat seeking the nomination of that party, Maria T. ("Terri") Jackson, judge of Houston's 339th Judicial District Court; her husband recently had cancer surgery. About Ms. Jackson, more in March.

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.

  

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

The Jury Should Get Both Choices

What the Texas Court of Criminal Appeals found in Jennings v. State, No. PD-0261-09, 2010 WL 298071 (Jan. 27, 2010) is not very surprising. If the verdict form for the jury to fill out only offers a verdict of "guilty" for a lesser included offense but does not offer "not guilty," even if the defendant does not object, an appeals court needs to consider whether the error caused egregious harm. If it did, the case needs to be reversed. The Amarillo Court of Appeals said that Jennings had waived the error entirely by not objecting. Even Presiding Judge Keller seemed to say that Amarillo was too much a stickler here. I get the impression, though, that her sending the case back to Amarillo is for them to use the right verbiage with their affirmation, while the other judges are sending it back to Amarillo to a new trial.
The opinion says that NO BODY appeared to notice this flaw in what was given to the jury. This is very much contrary to my experience. The trial judge, the prosecutor, the defense counsel, each of them-- for very different reasons have a major stake in not making a big goof. The judge doesn't want to look bad in front of the jury and the courts of appeals. The prosecutor doesn't want to have the judge look bad. And what must the client have thought when her attorney forgot to ask the jury for the option to acquit her on one of the charges? Thank God Darrell Jordan and the Texas Supremes kept defenders from being sued for malpractice..
Lastly, a research note: Judge Cochran says that Amarillo mistakenedly relied on a couple of pre-Almanza (686 S.W.2d 157, Tex. Crim. App. 1984) opinions (implicitly-- the cases aren't mentioned in what the Seventh District wrote), while Presiding Judge Keller says her colleagues misunderstand the old cases and the historical practice they addressed. If you're appealing a criminal jury charge, be very careful to be able to articulate why the cases you're using that predate Almanza are not overruled by it-- or don't use them.