All the Time in the World to Claim this Error

Many's the post in this blog that has emphasized the importance of preserving error before you can get it reversed in an appeals court. Texas Rule of Appellate Procedure 33. That is, generally, you must clearly inform the trial judge as to what your complaint is in time for the judge to correct the error. And if you do not do so, you cannot complain of the error on appeal. There is one huge exception to this rule, and that is a complaint that a court lacks subject-matter jurisdiction. We've already discussed the importance of making sure that the court you want to appeal to has subject-matter jurisdiction of your case. , a complaint you can make at any time up to the mandate's becoming final--even then, a habeas corpus writ complaining of it would likely prevail. The same principle applies to if it the trial court that lacked jurisdiction.

There is a story about this point of law. I believe it to be apocryphal.

 As a general rule, the people who have been arrested in the last 24 hours are brought before a judge, usually called a magistrate,

• One job of the magistrate is to listen to one or more prosecutors explain why the State believes the accused probably committed an offence and what offence the State believes it is. This is practically always a pure formality. An arresting officer gets approval to arrest and a designated charge from talking with a prosecutor from the scene of the arrest over radiophone.
• The magistrate also reads the accused his or her rights again.
• Magistrate sets bond or makes a finding that no bond will be set.
• Magistrate asks the accused if he or she claims to be indigent, and, if so, sets up the process for the accused to be interviewed to determine whether or not the accused is eligible for counsel to be appointed at no charge to the accused.

The accused who show up are often a motley crew, often in clothes not washed in days, many of them still drunk from the night before, many marked with the wounds of barroom battles or forceful arrests. And on this particular morning, there are one particularly, loud, obstreperous drunken man. He wouldn't follow the deputies' directions, and he yelled during other peoples' proceedings, and he started scuffles with the other accused people. Finally, the judge,whose main duties involved holding traffic court,  had had enough. He had the bailiffs bring this guy in front of the bench, where, upon hearing of what the man had done the night before--being publically intoxicated somewhere-- the judge pronounced upon him the death penalty, which subdued the fellow, head still spinning from a night of Thunderbird wine.

This is a joke. The trial judge would not have pursued the punishment he pronounced. But the lawyer for the anti-social Thunderbird person's complaint that the court did not have subject-matter jurisdiction for the judgment, could never be held to be too late as long as the accused was still alive.

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