Avoiding the "Inadequate Briefing" Trap

One of the ways that appeals courts keep from deciding matters is to say that a point is inadequately briefed. For example, in the case of Campbell v. State, No. 08-10-00298-CR (Tex. App--El Paso, July 27, 2011) (mem. op.) it appears that someone tried to make a whole appellate argument for two points in six sentences.  Basically, the only answer to the appellant's arguments are that they were inadequately briefed.
Campbell complained that he wasn't sentenced immediately after he was convicted by the jury. The judge reset the case for sentencing until a later setting, and let him stay out on bail. I've never seen a convicted person allowed to stay out on bail pending sentencing. The temptation to do what Campbell did is almost overwhelming-- don't show up for sentencing. When Campbell was finally re-arrested and sentenced, he complained that of not being immediately sentenced after the verdict. I can hear it now: "You see, justices of the court of appeals, it's the trial judge's fault that I jumped bail; I need a new trial."
You can't just state your conclusion and slap a citation on a point. You need to give your point the IRAC treatment, like you did in law school: Issue, Rule, Analysis, Conclusion.

Texarkana Court Holds That a Traveler Carrying a Weapon Ceases to Travel When Getting to the Destination before Getting Home

In a trial of aggravated assault with a deadly weapon, the Texarkana Court of Appeals approved jury instructions that the defendant's use of deadly force was reasonable unless they found the defendant provoked the victim or that the defendant was unlawfully carrying a weapon at the time of the assault. The appeals court found that there was sufficient evidence to find (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Most interesting to me--a scholar of the traveling exception to Texas's carrying a weapon statute--was the court's holding that once the defendant reached his destination and had secured a place to stay, he had ceased to travel, as that to be traveling the defendant would have had to have shown that he was continuing on to another destination. The court also found that sufficient evidence supported the jury's rejection of the defendant's self-defense claim.

SCOTUS to Decide Whether Life without Parole Permissible for Juveniles Convicted of Homicide

The cases are Jackson v. Hobbs and Miller v. Alabama.  About 18 months ago, the Supremes held that life with out parole was not permissible for juveniles in non-homicide cases, which I wrote about June 1 of last year. Hat tip to the blog Youth Today and the website LawyersUSA.

On the Record: What the Court of Appeals Needs

Appellate courts generally judge whether or not a trial court has made an error in a ruling or a set of rulings. Appellate courts can properly learn what happened in the trial court from two possible sources: a reporter's record and a clerk's record. A reporter's record used to be called a transcript. A clerk's record used to be called a statement of facts- not to be confused with the statement of facts that is a part of an appellate brief that gives the facts of a case. The arguments in a brief must cite to the reporter's record or the clerk's record.  A post-judgment proceeding might go up to the court of appeals with a truncated reporter's record or without any reporter's record at all. There is a rule that if anything that could have decided the post-judgment proceeding would have been evidenced by a part of one of these records and part of the record is missing, that missing part is presumed to support the judgment. A reporter's record might not be necessary in a case in which the dispute is a pure issue of law and the parties jointly stipulate to a controlling set of facts, but it would still be a risky business.

Possible Error in Allowing Testimony of Pretrial Services Held Harmless

In a kidnapping trial, the State called a pretrial services officer, a county employee who interviews criminal defendants to determine whether they should get a personal- free- bail bond to testify about what a defendant had told her about his alleged affirmative defense. The defendant had not been Mirandized. The Austin Court of Appeals analyzed the pretrial services officer's role, appearing to be heading toward the conclusion that since the defendant was in custody, was being interrogated after a fashion, he should have been Mirandized if his statements could have been used against him later. The court did not reach a conclusion one way or another because they found that even if the statements should not have come in, the error would have been harmless, given the rest of evidence properly admitted.
The Court also considered that the improper objection to a voir dire question was harmless, because all of the panelists impacted were struck, that the refusal of the court to strike a panelist for cause was proper, and that there was sufficient evidence to support the jury's finding that the kidnapping victim was not released in a safe place.

Appointed Counsel in Civil Matters in Texas

             The Sixth Amendment to the United States Constitution guarantees that a criminal defendant has a right to the assistance of counsel. This has been expanded by the United States Supreme Court to a rule that if a criminal defendant cannot afford counsel, a lawyer will be provided at no charge by the government. This right under the Sixth Amendment does not apply in civil cases because the Sixth Amendment does not apply to civil cases.
             Generally, lawyers are appointed for civil parties served by publication. Such a lawyer's job is to find the defendant, so that the plaintiff doesn't just pretend to notify the defendant and therefore violate due process clauses in the U.S. Constitution.

Texas courts have to appoint counsel for indigent parents fighting termination of their parental rights, parents whose rights may be terminated who are served by publication (as above), hard-to-find fathers or putative fathers.

You Can Only Say You Don't Know If You Really Don't Know

Texas's Sixth Court of Appeals in Texarkana has held that where the manner and means of committing a crime is known to be one of several possibilities, it is not proper in the indictment to state that the manner and means were unknown to the grand jury.

Victim Rebecca Moulton was found floating in a pond, dead from asphyxia possibly from drowning, strangulation, or suffocation. Her husband’s indictment alleged that he caused her death by

• ·         Manual strangulation,
• ·         Drowning and (meaning “or”)
• ·         Asphyxia by means unknown to the grand jury.

Where the manner and means are not elements of the offense, giving notice that an offense that the manner and means of committing an offense is unknown when they are known, at least as one of a list of possibilities, may prevent the defendant from properly preparing for trial, and the trial evidence may show that the allegation of unknown manner and means to be demonstrably false. This may require a new trial. In this case, it did.

This holding was largely based on Sanchez v. State, PD-0961-07, (Tex. Cr. App. Oct. 6, 2010) (rehearing pending). The Texarkana Court is going to look foolish if the Court of Criminal Appeals recasts its opinion in a major way.

In another issue in this case, an expert said that evidentiary affidavits given by the victim’s friends and family members could be read into the trial record to show the basis of the expert’s opinion under Texas Rule of Evidence 705—that the affidavits were not unfairly prejudicial.

Hat tip to the Texas County and District Attorneys Association who were wise enough to hire the sunny and efficient Kaylene Braden, formerly of the Matagorda County Courthouse in Bay City, to work for them.