Lawyerless Meeting Not Reversible Error As Against the Poster Child for Harmless Error

A sexually-violent-predator supervisor met with a person jailed for violating civil commitment. No lawyer was present even though the inmate had invoked his right to counsel. The Ninth Court of Appeals held that mention of that non-cooperation at his trial did not rise to the level of Sixth Amendment harmful error beyond a reasonable doubt.
Quite commonly, this kind of holding is very frustrating to a criminal defense lawyer. In this case, though, the discussion was only mentioned only once in the State's argument, and since the State plead and proved-- six, count 'em, six-- prior offenses such that he got a life sentence, and the rest of the case was pretty clearly proved, to hold that the error harmless isn't crazy. Still, I would not be surprised if the Office of Violent Sexual Offender Management never met with a represented defendant without the defendant's lawyer or a waiver ever again.
Defendant also complained of overuse of the term of "sexually violent predator" during the trial and in the jury charge. Chief Justice Steve McKeithen wrote for a panel including Justices David Gaultney and Charles Kreger.
Hat tip for this to the estimable Jim Skelton.

Malone v. State, ___ S.W.3d ___(No. 09–12–00511–CR, Tex. App.--Beaumont (Jun. 26, 2013) (no pet. h.)

No Springtime in Race Relations in Jefferson County This Year: a Tale of the Ninth Court of Appeals

No blog that purports to keep up with the Ninth Court of Appeals can fail to discuss the biggest publicity case of the spring: l'affaire Beaumont Independent School District. The reporting of Dan Wallach of the Beaumont Enterprise has been insightful and enlightening. The School District is governed by a board elected from seven single-member districts. The history of the present Beaumont ISD reflects tension between blacks and whites over more than a century. My high school girlfriend was a white West Brook High School student, like most of the students then, but West Brook is a grittier, majority-black school now. Like every U.S. governmental entity governed by representatives from geographical districts, BISD had to realign its districts to comport with the results of the 2010 census. Like every governmental entity redistricting where the rights of minorities have been abrogated in the past, the federal justice department must approve proposed changes before they are implemented to make sure they are not racist. This is called preclearance. The new districts were submitted for preclearance so that the regular election could take place on May 11. The terms are for four years and are staggered. Three trustees, each black-- Zenobia Bush, Woodrow Reece, and Terry Williams-- won their seats in 2011. Lawyers Michael Getz, Michael J. Truncale, and David Vann de Cordova, Jr. reviewed Texas Education Code sec. 11.052. It appeared to require all trustees to run for reelection after redistricting. They advised their client sitting white trustee Michael Scott Neil-- who also had been elected in 2011-- and their other clients, nontrustees Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore-- one black, one white and one Hispanic-- to quietly file for election by March 1. They did. Bush, Reece, and Williams did not. That's when the lawyers, along with lawyer Hubert Oxford IV, and the nontrustee candidates sprung the trap by seeking and gaining a mandamus order from the Beaumont Court of Appeals requiring BISD to hold an election without Bush, Reece and Williams's being candidates on March 18, 2013. BISD tried to stay the order but the appeals court justices held firm on March 27, 2013. Neil got an order from the Beaumont Court of Appeals forcing BISD to put him on the ballot for May 11. The federal department of justice got a federal district court to issue a temporary restraining order abeying the election until a three-judge panel can consider a temporary injunction there, and possibly abeying the election until the DOJ can finish its preclearing decision. This means there'll be no election May 11 unless the DOJ makes its decision much faster than observers would expect. BISD has cancelled the May 11 election.
No springtime for race relations in Jefferson County this year.
In re Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore, No. 09-13-00115-CV, (Tex. App.--Beaumont, Mar. 18, 2013) (orig. proceeding).
In re Michael Scott Neil, No. 09-13-00144-CV, (Tex. App.--Beaumont, March 28, 2013) (orig. proceeding).

Check the Fees in Your Criminal Judgments before the Nines in Beaumont

On Wednesday, February 13, 2013, Texas's Ninth Court of Appeals in Beaumont issued seven memorandum criminal opinions, four of which modified the fees in the judgments affirmed.

1. In Justin Tyrone Young v. State, No. 09-11-00681-CR, (no pet. h.) Young had been ruled indigent for trial. He got community supervision and admitted violating it. The trial judge had awarded the State  an attorney's  fee, but never changed his indigency status. Justice Charles Kreger wrote for a panel including Justices David Gaultney and Hollis Horton subtracting the attorney's fee from the judgment.
2. In Kevin Earl Kirkland v. State, No. 09-12-00230-CR (no pet. h.) the trial judge did not pronounce the fine that appeared in the judgment. Hollis Horton wrote for a panel including Chief Justice Steve McKeithen and Charles Kreger.subtracting the fine from the deferred adjudication order.
3. David Gaultney wrote for a panel including Steve McKeithen and Charles Kreger striking attorney's fees in Harold Donald Waldrep v. State, Nos. 09-12-00299-CR and 09-12-00300-CR (no pet. h.) basically as in Young above.
4. Joshua Christopher Childs v. State, No.09-12-00465-CR (no pet. h.) held that, as in Kirkland above, the trial judge did not pronounce the fine appearing in the judgment. Steve McKeithen wrote this opinion for a panel including Charles Kreger and Hollis Horton.

Nines Won't Let Big Part of Case Be Decided by Sanctions Hearing Alone

Beaumont Texas's Ninth Court of Appeals conditionally granted a writ of mandamus in favor of Bank of America as against mortgagor Trudie Crutchfield after the trial judge sanctioned San Francisco's biggest $300,000 for breaching a settlement agreement with the lady. This was the third lawsuit between the parties about this matter. BoA argued that it should have the protections of a trial against this kind of forced payment, and the Ninth Supreme Judicial District agreed.
I've got a call into the Court Clerk's office to try to find out why the court's computer records call this per curiam opinion a majority opinion. There doesn't appear to be any dissenting opinion. The opinion's a majority opinion instead of a unanimous opinion?
Thanks to David Yates and the other great people at the Southeast Texas Record for bringing this case to my attention.

Beaumont's Ninth Court of Appeals Rejects State's Retrial Objection

Justice Hollis Horton, writing for a panel of Beaumont's Ninth Court of Appeals including Chief Justice Steve McKeithen and Justice Charles Kreger, affirmed District Judge John Stevens's granting of a motion for new trial in the case of James Cody Guedry.
In August 2007, a City of Beaumont patrolman sees a car fail to yield the right-of-way to another car at a controlled intersection. In the stopped car, two men were in the front.  One was  in the back.  After the stop, other officers arrive to prevent the driver of the car and the front-seat passenger, D.N., from interfering with the arrest of the back-seat passenger, who had an outstanding warrant. A fight started when Guedry tried to pat D.N. down.  An officer near Guedry, David Todd Burke, began hitting D.N. with his baton. Guedry then tased D.N. twice.
The State charged Guedry and Burke with official oppression, a Class A misdemeanor, and they were indicted. Burke was tried first. At Guedry's trial, he used the same lawyer that Burke had, and the same expert witness (He waived his lawyer's conflict of interest in also his also representing Burke.). Guedry's field training officer testified that Beaumont officers should provide a subject with an opportunity to avoid the taser's use if feasible before discharging the taser. D.N. said that he had made a rude comment when Guedry patted him down, but denied resisting the search by grabbing Guedry's hand. Guedry contradicted D.N., and offered the testimony of the expert who testified that if D.N. resisted, Guedry's use of a taser was reasonable.
Guedry was convicted, and filed a motion for new trial, which he amended the day before the hearing (more than 30 days after sentencing). The trial court granted the new trial in the interest of justice on the ground that Guedry had been denied effective assistance of counsel. The State appealed because:

• the court should not have held a hearing on a motion for new trial where it was not sworn and there were no affidavits and because relief should not have been granted on a new trial motion amended more than 30 days after sentencing; and
• Guedry did not prove ineffective assistance of counsel.

The Appeals Court held that new trial motions that do not assert newly discovered evidence need not be sworn nor have affidavits. It also held that the amended motion added no new legal grounds to the motion, implying that any error from the amended motion was harmless. Lastly, the Court of Appeals said that ineffective assistance had been proved. Guedry's being stuck with Burke's expert was incompetent.
The D.A.'s office was willing to set its face against Guedry and Burke and so was the police hierarchy, but the bench is not.
Thanks to KIII-TV, channel 3, in Corpus Christi, Texas  for bringing this story to my attention. I don't have any reason to think that the story made it into Beaumont media, but Corpus is all over it.
State of Texas v. James Cody Guedry, No. 09-11-00185-CR, (Tex. App.--Beaumont, Sept. 5, 2012, no pet. h.).

Texas Supreme Court Says Anna Shursen Can Testify in SVP Case

Five months ago, I discussed the reversals of Texas sexually violent predator civil commitment trials by the court of appeals for such cases, this blog's court, the Ninth in Beaumont. At that time, one of those cases-- In re Commitment of Michael Bohannon-- had been taken up on petition for review to the Texas Supreme Court by the Special (Prison) Prosecution Unit for the State, accepted by that court, argued, but then not yet decided. The decision came down yesterday.
Justice Nathan Hecht wrote for a unanimous court, holding that an expert in a sexually violent predator civil commitment case need not be a physician or a psychologist, that Anna Shursen was struck merely because she was neither of those, that she was otherwise an expert, and that the Supremes respected Beaumont's finding that excluding her was harmful.
Yesterday's opinion assumed without deciding that a physician's testimony was not needed to civilly commit a sexually violent predator. The statute says it's not necessary. The Texas constitution requires physician testimony to commit a person. The point won't need to be decided unless the State was foolish enough to try to commit someone without physician testimony, which I have no reason to think they've ever done. The agency that represents respondents (defendants) in these cases doesn't have as much budget to pay for expert witnesses as the State does. Because of that, it is very rare that a respondent can get a physician to be an expert witness. To complain about that would have to be in an application for writ of habeas corpus, which the Antiterrorism and Effective Death Penalty makes difficult and for which one does not generally get a free lawyer. They'd have to complain about their own trial counsel.
Congratulations to Kenneth Nash and Andrea Medley, my old colleagues at the prison public defender office State Counsel for Offenders.

Ninth Court of Appeals Overturns Deadly Weapon Finding in DWI with Child Passenger Case

The most newsworthy part of this decision is that a panel of the Ninth Court of Appeals in Beaumont sided with the defense that the auto in the driving while intoxicated with child passenger case was not a deadly weapon.  The rest of the decision lists unsuccessful attacks on the judgment and that the judgment was corrected to show that instead of the charge's being of a second degree felony, the charge was of a state jail felony and that charge was enhanced by two priors to be a second degree felony.
One night, defendant Steven Ray Pointe, with his ten-year-old son in the back seat, hit the vehicle that Margaret Richter was driving. Richter said that she had not seen or heard Pointe coming before he hit her. Ethan Sonnier witnessed the wreck. He said that he hadn't seen Pointe coming before the wreck. The officer on the scene, Frank Carpenter, assigned the blame for the wreck to Richter-- Pointe had had the right of way; Richter made a turn in front of Pointe.
Chief Justice Steve McKeithen wrote the opinion for a panel that included Justices David Gaultney and Hollis Horton. Chief Justice McKeithen cited Sierra v. State, 280 S.W.3d 250 (2009) from the Texas Court of Criminal Appeals at 255 to say that in determining the sufficiency of the proof  of a deadly weapon finding an appeals court should consider: (1) the manner in which the defendant used the motor vehicle during the felony; and (2) whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury. He then cited Foley v. State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, pet. ref‟d) along with Sierra about how the defendant used his vehicle during the offense, considering (1) intoxication; (2) speeding; (3) disregarding traffic signs and signals; (4) driving erratically; and (5) failure to control the vehicle. The appeals court ruled that there was sufficient evidence that the defendant was intoxicated. The  State argued that Richter's and Sonnier's not seeing or hearing Pointe's vehicle before the collision showed that Pointe was speeding or not using his headlights and therefore driving recklessly. The jury also heard, though, that Richter pulled out in front of Pointe's moving vehicle and caused the accident. The record, Chief Justice McKeithen reported, contains no other evidence that Pointe was driving recklessly.
The appeals court concluded that a claim was Pointe was speeding or driving recklessly was speculative, citing Tex. Penal Code Ann. § 1.07(a)(17)(B). Sierra, 280 S.W.3d at 255 and Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) at 13 Under the circumstances of this case, the appeals court concluded that, even viewing the evidence in the light most favorable to the verdict, a rational jury could not find, beyond a reasonable doubt, that the manner in which Pointe used his vehicle was capable of causing death or serious bodily injury.
OK, DWI lawyers, the Niners have laid the ground rules out pretty plainly for those seeking or fighting a deadly weapon finding. They know it, too. This is an opinion to be published (See the prior post in this blog as to how important that is.)
This opinion does not tell what Pointe's priors are. To enhance him in felony court, they would have to be felonies. If they were not intoxication felonies under Chapter 49 of the Texas Penal Code, then the presence of his passenger turned this offense from a misdemeanor to a ten-year felony, even though under the circumstances he may have been a more able driver than the presumably sober person whose vehicle he hit. I doubt that this affected the panel's desire to rule so that Pointe would get parole eligibility two and a half years into his sentence, including good time, instead of five years into his sentence without. Chief Justice McKeithen can't have worked very many DWIs after 1992, and I can't tell if he did none or only a handful before then. Justices Gaultney and Horton were civil defense lawyers before they rose to the bench; they have seen a whole lot more DWI in Beaumont's appellate court than they've seen earlier in their careers.
Steven Ray Pointe v. State of Texas, No.09-11-00026-CR (Tex. App.--Beaumont May 30, 2012, no pet. h.).

Another Reversal for SVP Cases; Gaultney Dissents

The case is In re Commitment of Mohammad Reza Kalati. This is the fifth in the recent series of reversals of  the sexually violent predator trial court, although this time the trial judge being reversed is not Michael Seiler, but Putnam Kaye Reiter. The appellate court for SVP matters is the Ninth Supreme Judicial District Court of Beaumont.  As has been written in this blog before and in the Montgomery County Courier, Beaumont's Ninth Court has been holding that the SVP trial judges have been overly restrictive of the defense in this kind of cases.
There's another surprise here, though, beside the difference in trial judges. Justice David Gaultney, a scholarly and independent-minded jurist, usually a little more open to defense arguments than his fellows on the Beaumont Court, dissented.
In jury selection, the defense asked the venire panel, the group of people from which the jury would be selected, if they could be fair to a person an expert had diagnosed as a pedophile. The prosecution objected that the question was a commitment question, a question seeking to bind one or more jurors to a particular position before the juror had been given the evidence, and also that it made reference to a specific diagnosis. The trial judge sustained the objection. Justice Hollis Horton, writing for himself and Chief Justice Steve McKeithen, overruled the objection and granted Kalati a new trial. They felt bound by In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011).
Justice Gaultney dissented. He said that the question of the effect of a specific diagnosis might be objectionable, an inquiry into the weight that a panelist would give a specific piece of evidence, and the trial judge was never offered a clearly unobjectionable question.
Some observations: I don't hear any request for or implication of commitment in the defense's question. It's not weird for the petitioner to complain that the error as to specific diagnosis is not properly preserved, but I don't see that unclarity there undoes the improper sustaining of the commitment question.
I like how the Beaumont Court just attached the dissent to the end of the majority opinion, less work for the clerk and more convenient for the reader.
I made a mistake earlier today. I thought that this was a fifth reversal for Judge Seiler, but my friend and old colleague Brian Lacour, second chair for the defense at trial, corrected me.

How and When to Challenge the Admissibility of an Expert's Opinion at Trial

An extremely good blog post on how to impeach an expert witness of the kind most lawyers will encounter- the somewhat credentialed person who no longer is fully engaged in his or her field, but whose business is, generally, limited to testifying at trials is here.
They don't talk about the appellate angle in attacking experts. Professional testifiers are often persuasive to juries and trial judges, but are much less impressive when judged on a cold record. I practice in southeast Texas. In the First, Ninth, and Fourteenth Courts of Appeals and in the Texas Supreme Court a personal injury plaintiff's expert is guilty until proven innocent, so defense counsel in such a case should practically always make a Daubert/Robinson challenge to the adversary's expert. In a sexually-violent-predator civil-commitment case, Judge Seiler will be very open to an attack on the defense expert, less so for his appellate court, the Ninth, in Beaumont, as I've written about elsewhere on this blog.

A Phone Call from a Southern Gentleman

Ninth Court of Appeals Justice Hollis Horton called today. In our wide-ranging conversation, he was curious about some of the background of the sexually-violent-predator civil-commitment system that he didn't have interaction with in his part of the process. He was surprised by the relative inexperience of lawyers working on both sides of the SVP docket. He said that he had not seen the 48 Hours piece on the best known SVP trial, that of Wesley Miller (I was Miller's trial counsel.). Justice Horton said that he had visited this blog, looking at the post about Judge Seiler's reversals (It's the second one below here.), and he and I agreed that we valued the work of Nancy Flake, Managing Editor of the Montgomery County Courier. His undergraduate degree, he told me, was in economics. He said he had to get off the phone because of the Beaumont courthouse shooting.

On the Reversals of Sexual Violent Predator Commitments

In In re Commitment of David Dodson, the 435^th District Court of Montgomery County, Texas struck the testimony of Dr. Anna Shursen, Dodson’s only witness, after she had begun to testify. In only the second reversal I am familiar with of a sexually-violent-predator trial on the merits by  the Ninth Appeals Court of Beaumont, it overturned Dodson’s commitment. It appears from the filing number of the case of the commitment of Michael Bohannon that Bohannon’s case was likely tried later than Dodson’s. The district court in that case also struck Dr. Shursen’s testimony—again she was the defense’s only witness—but it struck her this time after a pretrial hearing, before the beginning of the trial. Nine days after Beaumont had reversed Dodson, Beaumont reversed Bohannon. The State appealed, and Bohannon is currently pending before the Texas Supreme Court. The Texas Supremes heard oral argument in Bohannon November 8, 2011.

 

In re Commitment of Raymond Scott Hinkle appears to have been tried after Bohannon. The State called Hinkle's designated expert psychiatrist Dr. Charles Tennison as a hostile witness in its case-in-chief. Hinkle reserved his questions of his expert for his case-in-chief. The trial court struck Tennison as a expert after his adverse questioning by the State. Beaumont reversed and remanded the commitment.

In re Commitment of Larry White looks like it was next in line, but it's not a reversal. His appellate lawyer told Beaumont that there weren't any grounds for reversal. The trial court struck Tennison here, too.

Yesterday, In re Commitment of Lester Winkle came down. The trial court had stricken Tennison—again, the defense’s sole expert—in a pretrial hearing. The appellate court panel in the case was made up of Justices David Gaultney, Charles Kreger, and Hollis Horton. Gaultney dissented on the ground, basically, that the defense had not preserved the error in the trial court by not requesting a continuance or asking for another expert evaluation, after the trial court had stricken the expert’s testimony there.

Observations:

1. Four reversals out of 103 trials is not a lot. The newspaper story about Judge Seiler's record would make an uninformed person think that he's reversed a lot, which is not the case.
2. I'm not aware of the trial court ever striking a State's expert witness in an SVP case. I'm not aware that Beaumont has ever overruled a trial court for admitting a State's expert's testimony over objection in an SVP case, even though, I don't believe that the State's expert witnesses in SVP cases are any better than plaintiff's expert witnesses in personal injury cases who are routinely struck by trial and appellate courts (SVP case are civil cases, as personal injury cases are.).
3. Beaumont appears to me to be signalling Judge Seiler that he should be slower to strike defense witnesses in SVP cases, and it is not clear to me that Judge Seiler is listening to them.
4. State Counsel for Offenders, the agency of the Texas Criminal Justice board that is the public defender office for SVP cases, does not have as much money for expert witnesses as the prosecutors do. The State always has at least one psychiatrist expert, but because SCFO does have as much money, respondents are much less likely to have a psychiatrist in the battle of the experts.
5. Larry White needs to file an application for a writ of habeas corpus directly.
6. Trial lawyers: if your only expert witness gets struck, ask for a continuance, and ask for leave to seek another expert.
7. Notwithstanding my observation number number one above, Nancy Flake's article in the Montgomery County Courier was a fine piece of journalism. The subject was recondite and the deadline came quickly, but she appears to have gotten the facts right.

All Parties to a Mineral Lease Must Generally Be Parties to Litigation about the Lease

Texas Ninth Court of Appeals Justice Hollis Horton , writing for a panel including David Gaultney and Charles Kreger, reverses and remands a decision of state district court 1-A in which a mineral lease was declared terminated on the ground that the trial court had not forced the plaintiffs to join all the other lessors before summarily declaring that the lease had terminated. The style of the case is Kodiak Resources v. Smith. Some mineral interest lessors asked the trial court to find that the lease did not continue because it was not producing and because "operations" as defined by the lease were not ongoing. The Ninth Court, which sits in Beaumont, distinguished this case from Sabre Oil and Gas Corp. v. Gibson, 72 S.W.3d 812 (Tex. App.--Eastland 2002, pet. denied). The Gibsons sued Sabre complaining that Sabre forced the Gibsons into a pool in bad faith. The Eastland Court of Appeals held that though holding for Gibsons would have an effect on the other members of the pool who were not parties to the suit, the other parties were not necessary to determine whether Sabre's acted wrongfully as to the Gibsons. In Kodiak Resources, the nonparty lessors might have evidence of production or "operations" as to the single lease each of them entered into and as to which each of them was bound by.