July 1, 2013 Is When the New SCOTUS Rules Went into Effect

The new rules of the Supreme Court of the United States took effect July 1, 2013. Don't forget to check for changes if you have business with them.

If You Win a Mandamus, You Would Likely Get a Weird Remedy.

Okay, let's say that you have filed in an appeals court for a writ of mandamus, and you have won. The appeals court says that the trial judge or other governmental actor has to do what you told the appeals court that that person should have done. Will the appeals court issue an order for that actor to do what it told that actor to do? Almost certainly not!
Appeals courts often think that it is disrespectful to mandamused people-- elected officials, including trial judges-- to issue a written order to them like they were flunkies. So in their opinions they simply say what the order would be if it were issued. They then say that the the mandamus order will only issue if the official-- normally a trial judge-- does not correct the action on their own soon after the opinion. This is commonly called conditional issuance of the writ.
If an appeals court issues a writ of mandamus unconditionally, that means that it is angry at the ordered person. I remember having seen one, but I haven't found the case again yet.

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.)

Reasons Why Texas State Litigants Who Seek Mandamus Often Don't Get It

Mandamus is one of the extraordinary writs by which a higher court can mandate to a lower court. To seek it is an original proceeding, not an appeal. It's form is that it is a lawsuit against a trial judge, an appeals court or a government agency. Applying for mandamus can really anger a trial judge because the judge is a respondent, acting in the proceeding pro se or through counsel. A party can apply for a writ of mandamus even though it has not gotten a final judgment. The party seeking the mandamus is the applicant or movant, and a party affected by the application that did not seek it is called a real party in interest. The respondent in an application to Texas Supreme Court or the Texas Court of Criminal Appeals is either a court of appeals or a government agency.
From In re TXU Elec. Co., 67 S.W.3d 130,132 (Tex. 2001): Mandamus is an extraordinary remedy available "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994). Thus, mandamus will not issue absent "compelling circumstances." Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996).
What does this mean? First of all, if what the party is complaining about could be adequately remedied by appeal, then mandamus should not issue. A mandamus will issue for an important discovery dispute, but not for an improper jury charge, for example. Second, what the party wants the court or agency to do must be something that it is absolutely clear that the court must do. It is not for complaining about bad judgment calls by courts, but for complaining about things that it is clear that the court has a duty to do.
If a higher court grants a writ of mandamus, it often does so in an unusual way that we will discuss in a later post.

In re United States Supreme Court Justice Ruth Bader Ginsburg

Keeping up with news about United States Supreme Court justices, these tidbits about Ruth Bader Ginsburg were enlightening and humorous.

Dangers of an Anders Brief

The appointed appellate defense lawyer  for D'Kemaan West(What a great name!) in the appeal of his conviction, couldn't find any error in West's trial, so that attorney filed an Anders brief, and the Nines let Mr. West himself file a pro se brief. Somebody- not the appointed appellate lawyer-- found that the trial judge had written a fine into the judgment that the judge had not imposed in the oral rendition.  The court of appeals reformed the judgment to avoid the offending fine, and called it a day. I wrote in February about four cases where the Ninth had found problems with attorneys' fees or fines. The lesson, my learned friends, is that you must be very careful before filing an Anders brief, because if you file one and you have missed some error you will end up mortified. I have only filed one, and it has not yet come back to bite me.
West v. State, No. 09-12-00375-CR, (Tex. App--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.)

If They Don't Prove the Proper Enhancement Convictions, They Don't Get the Enhancement

The case today is Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.) written by Justice Charles Kreger for a panel including Chief Justice Steve McKeithen and Justice David Gaultney. Como was indicted for aggravated robbery and pleaded to a lesser-included offense of robbery. His punishment was enhanced by a state jail felony- possession of a controlled substance. There were other felony convictions higher than a state jail felony in his indictment, but in his plea before the bench, none of them were proved. The judge gave him deferred adjudication. Later Como pleaded true to two violations of his probation. The judge revoked his probation, found him guilty of robbery and sentenced him to a whopping 85 years.
Como said that the judge had not properly admonished him when he gave him deferred ("I never would have agreed to deferred if I knew I could get 85 years!). The State even agreed that the admonishments had been insufficient. Still, that complaint came too late. You're supposed to complain about that when you get deferred, not when you're up to be adjudicated.
But you can't get 85 years on a mere robbery-- a second degree felony whose longest possible sentence is normally 20 years-- unless you get enhanced. A single state jail felony conviction isn't enough to enhance anything. So the sentence is too long for the proof, and the appeals court remanded the case back to the trial court for a new punishment hearing. Now this new punishment hearing will almost certainly have a very similar result, because everybody knows that there are enough high felonies to enhance Como's robbery conviction, so that he would liable for a sentence like 85 years, Everybody knows this because they were listed on his indictment, but the appeals court is not going to render a new judgment, almost certainly because evidence will have to be taken to prove the enhancements that were not proved the first time. And appeals courts are not in the business of taking evidence
Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.).