Asking a Question Does Not Make You Agree to an Adverse Answer.

Texas Supreme Court Justice Phil Johnson

Mr. Ali wants to buy a business from Mr. Musallam. They negotiate and they make an appointment to finish the deal. When the time comes Musallam does not want to sell. Ali sues. Musallam says that he owes nothing because they had not finished reaching an agreement. The case is tried to a jury. Musallam requests a charge question as to whether or not the two men had a deal. The jury finds for Ali. After the verdict, Musallam makes two complaints to the trial court:

1. that the jury finding was immaterial, and
2. that the jury finding was supported by insufficient evidence.

Immaterial, what does that mean? It means that there are many reasons that one person might be legally bound to owe money to another person. The money might be owed for some other reason than that there was a breach of contract-- detrimental reliance for one.

In Fort Worth's State Court of Appeals, Justice Lee Gabriel wrote an opinion for a panel including now former Chief Justice Terri Livingston and Justice Mark T. Pittman, denying Musallam relief because he could not complain that a jury question that he asked for was not material and for which there was insufficient evidence. Musallam petitioned the Texas Supreme Court to review the case. They agreed, and Supreme Court Justice Phil Johnson wrote for a unanimous SCOTX that Musallam had not waived his alleged error and that the case should be remanded to Fort Worth to be considered on the merits. The Supremes said that if someone seeks a jury question, it does not follow that one is agreeing to be bound by any answer that may be made to that question and that one is not vouching for the sufficiency of the evidence in favor of an adverse ruling.

Texas Supreme Court Justices are not created equal, but Phil Johnson, whose resignation took effect yesterday appeared to me to be one of the good ones. He appeared to call balls and strikes and not to have any dark nor ignorant agenda. I include video from his last oral argument, which choked me up. So long, Justice Johnson. Thank you for all your public service.

https://pbvideo.vids.io/videos/d49ddebc1710ecc15c/justice-phil-johnson-retires-from-the-supreme-court-of-texas

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

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

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

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

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

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

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

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

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

Hat tip to the estimable Jim Skelton.

Jury Charge Objection Made with Less than Usual Formality Causes Reversal and Remand

Longshoreman Quinton Henderson slips, falls and is injured on the deck of a ship.It is loading a powdery, dusty solid-- petroleum coke. The day the work was done was wet, and solid petroleum is slippery in the best of circumstances. The ship is owned by Prosperity Management S.A. and managed by Irika Shipping S.A. Henderson sues both for negligence. The trial jury finds that all three parties are negligent and awards Henderson $1,734,943.00 in damages. Prosperity and Irika appeal together raising three issues:

1. the trial court erred in denying the defendants a directed verdict,
2. the evidence is legally and factually insufficient to support the verdict, and 
3. the trial court erred in omitting requested language in the charge and in the issue submitted to the jury.

The defendants had three specific complaints about omitted jury charge and issue language. Justice Leanne Johnson, also writing for Justices Charles Kreger and Hollis Horton, held that the defendants were not entitled to judgment as a matter of law in issue one, and that sufficient evidence existed to support the verdict in issue two.

The jury charge in this case was taken from the Federal Fifth Circuit Pattern Jury Instructions. It  appears that the employer of a worker-plaintiff has the primary duty to provide the worker with a safe place to work, but working conditions can get so obviously dangerous that ship's personnel would have a duty to intervene to protect the worker. The trial judge left out a part of the pattern jury instruction that commented on this point of law, so the appeals court reversed and remanded.

In this case defense counsel failed to follow Texas Rule of Civil Procedure 276. "When an instruction, question, or definition is requested and the provisions of the law have been complied with and the trial judge refuses the same, the judge shall endorse thereon 'Refused,' and sign the same officially." The appellate court refused the complaints about the first two instances of omitted language on the ground that defendants waived error by failing to follow Tex. R. Civ. P. 276. However, the appeals court held that the defendants so clearly complained about the third omission that they would take cognizance of it, and reverse and remand on the basis of it.

In the appeals court's defense, the defendants basically said, "Put that employer/shipowner responsibility sentence that's in the pattern jury charge in the jury charge.  The writers of the pattern jury charge thought it was needed for the benefit of the jury to make a proper decision," Even to me, that seems an unambiguous complaint.

I have one practice tip, one personal note and one observation. The practice tip is that when you are following a pattern jury charge, it is rarely a good idea to get the trial judge to leave out a part unfavorable to you even when you can. Appeals court justices who see a part of a pattern jury charge omitted which clearly favors one side over the other presume that that part was left out unfairly. Unless you can show comparable changes that help the other side or an elaborate explanation why under statute or case law that part of the pattern jury charge is grossly wrong, they will assume that the omission is a cheat.

The personal note is that Justice Johnson's prose style is a pleasure to read-- first rate. I look forward to years of clear reading of this court's opinions in the years ahead.

The observation is that I have no radical objection to the process used to come to this decision. The informality was allowed when a stevedore won a damage award of more than one million dollars against a ship and its manager. I have a concern that the informalities are much less likely to be overlooked when it is a personal injury plaintiff who needs it or a criminal defendant or a respondent in a sexually violent predator civil-commitment case.


Irika Shipping S.A. v. Henderson, No. 09-13-100237-CV, (Tex. App.--Beaumont Dec. 18, 2014, no pet. h.) (mem. op.) available at  http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=56e3dc6f-a22a-4689-bf45-806b8c5e2bac&coa=coa09&DT=Opinion&MediaID=53ca95bf-7d0c-4c9a-8c3d-193e6b9fd17f