The Parole Board Giveth, the Montgomery County Jury Taketh Away

The left hand of the State of Texas doesn't know what the right hand is doing when it comes to paroling sex offenders. Norman Lewis Evers was convicted of six counts of burglary with intent to commit rape. There was evidence each of these burglaries had culminated in a rape, and that, additionally, he had  raped another woman in California during the time of the Texas offenses. Evers came up for parole and obtained it under a super-intensive supervision program. The Sexually Violent Predator Multidisciplinary Committee, a screening expert, and the Special Prosecution Unit- Civil Division caused a petition to be brought against him that he was a sexually violent predator and should be civilly committed. Now in order to get parole, the parole panel must believe that the offender "is able and willing to fulfill the obligations of a law-abiding citizen." The trial jury committed him in spite of the panel's belief. He challenged the trial court's jurisdiction and the sufficiency of the evidence to support the jury's verdict. Justice David Gaultney wrote for a panel of the Ninth Court of Appeals sitting in Beaumont including Chief Justice Steve McKeithen and Justice Charles Kreger affirming the trial court judgment. Evers's goose was basically cooked by a holding in the prior case  In re Commitment of Nicholas (Tex. App.--Beaumont, pet. denied, 2010) that the sexually violent predator statute covered parolees as well as those about to be released from prison. Still, if Evers can jump through all the hoops to get a habeas corpus petition before a federal judge in this matter, that the jury found that he was, beyond a reasonable doubt, likely to re-offend despite a contrary belief of the parole panel, he might well prevail.
In re Commitment of Norman Lewis Evers, No. 09-11-00430-CV (Tex. App.--Beaumont, Dec. 13, 2012)

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.).

Beaumont Passes Along to Seiler what SCOTX Told Them

Under Texas law, a person convicted of a sex crime or sexually motivated murder, who has a behavioral abnormality: a paraphilia, a sexual weirdness, can be civilly committed and held interminably. The State was unsuccessful in committing the first person it tried to commit. After that, though, every respondent was either committed or there was a hung jury, and on retrial the person was committed. In the first few years, I knew of one case that had been reversed and remanded. That was the only one , except for one case that got sent to the Corpus Christi court of appeals instead of Beaumont's and was judged by a visiting justice instead of a regular justice (and which was reversed in favor of the trial court by the Texas Supremes). Other than that,
the appeals court always affirmed.
Last March I wrote about a string of reversals of the SVP trial court in Conroe by the Beaumont COA. There was another reversal in May that I wrote of here.
Now there's another--In re Commitment of James Anthony Miller, No. 09-11-00450-CV (Tex. App.--Beaumont (July 26, 2012, no pet. h.)   The trial judge appears to have been Michael Seiler. After the State and the defense had each taken a turn at questioning the panel from which the jury would be selected, the defense wanted to ask either: (1) “Can you set aside any bias if you find there’s an offense against a child?  Can you listen to all the evidence and follow the law?” or (2) “Is anyone unable to hear topics about children?  Can you listen to the evidence and follow the law?”  The trial court  refused Miller’s request to pose such questions to the jury panel.
Chief Justice McKeithen joined by Justice Charles Kreger held that a trial court’s refusal to allow proper questions during voir dire denies a party’s constitutional right to trial by a fair and impartial jury and is harmful, i.e., probably caused the rendition of an improper judgment, following In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011) (per curiam) and Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705 (Tex. 1989). The third panelist, Justice David Gaultney, argued in dissent that the trial judge was in his sound discretion not to allow additional questions after voir dire had been closed once, and that there was no indication that the trial judge's failure to allow the question or questions caused any biased veniremember to get on the jury. That is, the trial judge's action was either not error or was harmless error.

Chief Justice McKeithen Gets with the Dominant Rule re Nonparent SAPCR Standing

Two women live together and share the care of a son of one of them. They break up, but still share the care of the boy on and off. Eventually, the nonmother sues for custody in a suit affecting the parent-child relationship. The mother seeks to have the case dismissed on the ground that the nonmother lacked standing to interfere with the custody of a fit mother, but the trial court granted the nonmother temporary possessory-conservator rights. The mother took the case up on mandamus on these two issues, and the Nines ruled for her. Justice Hollis Horton wrote for a panel including Justice Charles Kreger and Chief Justice Steve McKeithen. The Chief Justice concurred that although he had dissented in In re K.K.C., 292 S.W.3d 788 (Tex.App.-Beaumont 2009) (orig. proceeding), he felt that he had to recognize the majority opinion in that case as precluding him from taking the same view in this current case.
In re Stephanie Wells, No. 09-12-00158-CV (Tex. App.--Beaumont June 14, 2012) (orig. proceeding).

You Must Ask the Follow-Up Question if It's Your Error on Appeal

Justice Hollis Horton, writing for a panel that also includes Chief Justice Steve McKeithen and Justice Charles Kreger, holds that to complain that an objection to a voir dire question on the ground that it is a commitment question is waived unless an alternate question reworded to meet the objection is offered.