Frost Bank

A criminal case is not final until the court of appeals issues its mandate, and this Court dismisses any 11.07 applications

2008-03-25T04:41:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,804

EX PARTE NOLAN HARRELL WEBB, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 3612

IN THE 299th JUDICIAL DISTRICT COURT

FROM TRAVIS COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The Court of Appeals affirmed his conviction. Webb v. State, No. 03-00-00613-CR (Tex. App.-Austin, delivered November 29, 2001).

This Court granted Applicant an out-of-time petition for discretionary review (PDR). Ex Parte Webb, No. AP-75, 380 (Tex. Crim. App., delivered April 12, 2006). Applicant timely filed his out-of-time PDR, which was refused by this Court on September 27, 2006.

Applicant filed this writ of habeas corpus to challenge his conviction on the grounds of prosecutorial misconduct. This Court has found an issue that needs to be addressed before we can determine whether or not to proceed with Applicant's habeas application on the merits. We order that this application be filed and set for submission to determine whether a conviction is final for article 11.07 habeas corpus purposes when the right to file an out-of- time PDR has been granted, such a PDR has been filed but refused by this Court, and the court of appeals neither withdrew the original mandate nor issued a new one after the out-of-time PDR was refused. (1) The parties shall brief this issue. Oral argument is permitted.

If the trial court finds that Applicant is indigent, the trial court will, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him. If the trial court finds that Applicant is not indigent, Applicant shall be given the opportunity to retain counsel within 15 days of the trial court's finding. Any hearing conducted pursuant to this order shall be held within 30 days of this order. Applicant's brief shall be filed with this Court within 30 days of the date of this order. The State's response shall be filed within 30 days after the filing of Applicant's brief.

Filed: December 12, 2007

Do not publish

1. A criminal case is not final until the court of appeals issues its mandate, and this Court dismisses any 11.07 applications that are filed prior to the mandate being issued. Ex Parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000); Ex Parte Brown, 662 S.W.2d 3 (Tex. Crim. App. 1983).

Let us see it all started 1001 with an alleged 1922 Land tract "issue" "Must be the Money........

2007-12-29T05:38:00.000-08:00

Carmen Morell De llano would like to know:

"Where my money at?"

WYCLEF JEAN LYRICS

"Sweetest Girl (Dollar Bill)"
(feat. Akon, Lil Wayne, Niia)

[Intro:]
[Niia]
ah ah ah ah

[Wyclef Jean (Lil Wayne)]
Some live for the bill
Some kill for the bill
She whine for the bill
Grind for the bill
(and she used to be the sweetest girl)
Some steal for the bill, if they got to pay they bill
(and she used to be the sweetest girl)
Tonight Wyclef, Akon, Weezy on the bill

[Verse 1: (Wyclef Jean)]
High school she was that girl that make me do the hula hoop around the gym
(Just to get a peek again, she's a 10)
High school she was
That girl that make me do the hula hoop around the gym
(Just to get a peek again, she's a 10)
Never thought that she would come and work for the president
Mr. George Washington (where my money at?)
She thought he'd call (where my money at?)
She had a good day, bad day, sunny day, rainy day
All he wanna know is is (where my money at?)
Closed legs don't get fed, go out there and make my bread
All he wanna know is (where my money at?)
She ended up in a road car, bruised up, scarred hard
All he wanna know is (where my money at?)
She thought he'd call (where my money at?)

[Chorus: Akon (x2)]
See I'mma tell you like Wu told me
Cash rules everything around me
Singin' dollar dollar bill y'all (dollar, dollar bill y'all)
Singin' dollar dollar bill y'all (dollar, dollar bill y'all)

[Verse 2: (Akon)]
Pimpin' got harder cos, hoes got smarter
On the strip is something they don't wanna be a part of
Rather be up in the club shakin' for some dub
Then triple times the money and spending it like they wanna
They got they mind on they money, money on they mind
They got they finger on the trigger, hand on the nines
See everyday they feel the struggle, but staying on they grind
And ain't nobody takin' from us, and that's the bottom line

But I know there's a drop in the block
You move slow
You getting' pressure from cops
you don't know not to lay low
Because 25 to life is no joke
To all my real gorillas thuggin'
On top of corners every day strugglin'
All the beautiful women getting' money
Washin' them dollar bills like laundry

[Chorus: Akon (x2)]
Cos' I'ma tell you like Wu told me
Cash rules everything around me
Singin' dollar dollar bill y'all (dollar, dollar bill y'all)
Singin' dollar dollar bill y'all (dollar, dollar bill y'all)

[Bridge: (Wyclef Jean)]
Money, money-money-money
Money, money-money-money
It drives the world crazy

[Verse 3: (Lil Wayne)]
[Niia] She used to be
[Weezy] She used to be the sweetest girl

She used to be the sweetest girl ever
Now she like sour ameretta
She wears a dress to the T like the letter
And if you make it rain she will be under the weather
She used to run track back in high school
Now she tricks off the track right by school
She takes a loss cos she don't wanna see her child lose
So respect her, I'll pay up for the time used
And then she runs to the pastor
And he tells her there will be a new chapter
But she feels no different after
And then she asks him... where my money at?

[Chorus: Akon (x2)]
Cos' I'ma tell you like Wu told me
Cash rules everything around me
Singin' dollar dollar bill y'all (dollar, dollar bill y'all)
Singin' dollar dollar bill y'all (dollar, dollar bill y'all)

[Outro: (Wyclef Jean)]
Some live for the bill
Some kill for the bill (oh where my money at?)
She whine for the bill
Grind for the bill (oh where my money at?)
Some steal for the bill, if they got to pay the bill (oh where my money at?)
Tonight Wyclef, Akon, Weezy on the bill
(oh) were my money at?

[Thanks to perpetua for these lyrics]
[Thanks to Scott, Andrew Sinyak, Jessica, JoJo, Alle for correcting these lyrics]

[ www.azlyrics.com ]

South Texas Verdad: Just remember that last step is a doozie.

2007-10-29T00:31:00.000-07:00

Randolph (Randy) Delay

South Texas Verdad: Power we giveth and power we can taketh away. Ask CCREDC's Joe Elizondo, Juan G and yes ask even Mikal Watts.

Power is a united people.

Dont piss us off.

TLR Connie Scott, BACALA, Fil Vela (FED sycophant & Johnny come lately white collar crime manufacturer for WATT???? BUT of COURSE! Nothing less than a Federal Judgeship Appointment for his "Tyler Rhodes" wife and sitting 13th COA Justice).

Corpus Christi Caller Times
Google Yourself Corpus Christi: Is Fil Vela going into the fraud abuse prosecution racket & the manufacturing of fraud abuse prosecutions?

Rendon, longtime Ortiz aide, will retire : Corpus Christi Local ...
Rendon served as an adviser to numerous successful political campaigns including those of Fil Vela's wife, District Judge Rose Vela; former Nueces County ...

The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients -

2007-07-18T02:30:00.000-07:00

If this was leaked to the media did the Caller Times tell us about this pedophile?

Did the Caller publish any stories on this matter?

And the CCISD Board did they inform the community?

The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.

CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.

He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.

Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.

It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.

Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.

He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.

State regulators have yet to revoke his license to practice psychology.

""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.

""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."

It's not as if no one tried.

Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.

Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.

""They said they were leaving it in God's hands," she recalled.

""I don't think they were thinking straight at the time."

She went to other parents. She got no help.

In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.

The jury acquitted Plaisted; his practice continued.

""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."

""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."

The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.

""He did not deny it," she said. ""He said he could have done it

in his sleep."

Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.

The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.

""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."

Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.

The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.

""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"

Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.

He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.

The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.

Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.

Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"

on video.

He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.

""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."

Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.

School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.

School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.

""We certainly should be more selective in who we're using," he said.

After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.

""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.

Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.

Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."

Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.

""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.

""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.

""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."

Pressed for further details, Garcia abruptly ended the interview and hung up the phone.

Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.

The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.

Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.

While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.

Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.

In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.

Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.

""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.

Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.

The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.

""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.

""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.

Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.

""It's all kind of moot, because he's incarcerated," she said.

Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.

Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.

""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.

You would want to take quick action rather than let it go on for so long."

The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.

""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."

Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"

said Jones, on whose watch Plaisted was acquitted in the Alvarado case.

Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.

""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."

Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.

""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."

Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.

He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.

While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.

Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.

FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.

""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."

Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."

""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.

Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.

The Corpus Christi conviction and sentence came almost a year later.

In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.

""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.

""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.

When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.

Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.

""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."

Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.

""I told them if they had helped me in the beginning, none of this would have happened," she said.

Plaisted timeline

Key dates in the career of Dr. James R. Plaisted:

January 1983: Licensed to practice psychology in Texas.

October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.

April 1986: Charged in criminal case for allegedly fondling a boy during therapy.

August 1986: Acquitted by jury in Corpus Christi.

October 1992: Indicted for sexual abuse of three Corpus Christi girls.

December 1992: Closed Corpus Christi office; moved to Boston to begin law school.

June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.

January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.

January 1995: Sentenced to two years in federal prison in Boston case.

Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.

Telemundo South Texas: Is this Man fit to be caged?

2007-07-17T02:07:00.000-07:00

Telemundo South Texas: Is this Man fit to be caged?

Look in their EYES. What do you feel?

republic of texas: According to the Sentence Ramsey is to be Confined in Texas

2007-06-24T03:37:00.000-07:00

republic of texas: According to the Sentence Ramsey is to be Confined in Texas

Former Raza Unida gubernatorial candidate Ramsey Muñiz has been transferred from a federal corrections institute in Three Rivers six months after arriving at the facility.

Muñiz, who ran for governor of Texas in 1974 and 1975 under the Raza Unida Party, was transferred from Three Rivers on Tuesday.

Mike Truman, spokesman for the Federal Bureau of Prisons, said Muñiz is being housed in the Federal Transfer Facility in Oklahoma City until he can be transferred to another facility.

Truman said he could not release where Muñiz would be transferred or when, citing security concerns. He also said he did not know why Muñiz was transferred.

Muñiz, 64, is serving a life sentence for three felony drug convictions.

The Three Rivers Federal Correctional Institute, 77 miles northwest of Corpus Christi, has been the closest the former Miller High School football star and local defense attorney has been to home since his 1994 conviction.

Under the banner of Raza Unida, a political party shaped and led by Hispanic activists seeking a political voice, Muñiz earned support from 6 percent the state's registered voters.

Muñiz's wife, Irma Muñiz, said she was surprised to learn of the transfer especially because senators, congressmen and civic groups have written letters to the Federal Bureau of Prisons on her husband's behalf.

Irma Muñiz said her husband had hoped to be housed at the Three Rivers facility because of its proximity to his family in South Texas.

Since he was transferred there in December from an institute in Colorado, Irma Muñiz has made frequent trips to visit her husband.

She likened Muñiz's transfer out of Three Rivers to the treatment of Hispanic Civil Rights figure Felix Longoria.

Longoria, a U.S. Army private killed on-duty in the Philippines in 1945, was refused a proper funeral in his hometown of Three Rivers because the only funeral home in town didn't allow Hispanics to use its funeral chapel.

Civil Rights hero Dr. Hector P. Garcia interceded and U.S. Sen. Lyndon Johnson arranged for Longoria to be buried in Arlington National Cemetery.

Joe Ortiz, League of United Latin American Citizens district director and national and state civil rights director of the American GI Forum, helped organize letter-writing campaigns when Muñiz was in Colorado asking for his transfer to Texas.

Ortiz didn't know about the transfer out of Three Rivers but said both LULAC and the American GI Forum will work toward getting Muñiz returned to Texas.

"We are going to petition our legislators to see if they can do anything to bring him back," Ortiz said.

Contact Adriana Garza at 886-3618 or garzaa@caller.com

Posted by geomatica on June 21, 2007 at 9:47 p.m. (Suggest removal)

I am certain that Ramsey Muniz was falsely imprisoned, but no matter what you believe, he was and is a model prisoner, and it is a complete waste of taxpayer money to be moving him all over, when it makes the most sense for him to be here near his family. He didn't kill anybody, and his treatment has been nothing but inhumane. Something has to be done about the inequities in our prison system. His punishment certainly does not fit his supposed crime. When is his mistreatment and that of his family going to end?

Posted by colorderosa on June 22, 2007 at 9:13 a.m. (Suggest removal)

Only in America does a convicted murderer, chlld rapist, or other harden criminal walk free, while a supposed drug dealer gets life in prison.
colorderosa

Posted by sosiouxme13 on June 22, 2007 at 8:47 p.m. (Suggest removal)

In my opinion, someone convicted of dealing drugs, can be likened to a murderer...

Posted by dannoynted1 on June 23, 2007 at 5:25 a.m. (Suggest removal)

This is retaliation for the "scared status quo". They are afraid if he is in Texas he just might get out.

Only in Texas can this happen.

Eureka~ perhaps Jurisdiction resides in Oklahoma?

or is it Louisiana, where i hear Hayden Head is sending our Federally convicted non white americans as of late?.

Is that legal?
Why would you send a texan to another state unless you want to keep them from their family.

Posted by gmikedear1954 on June 23, 2007 at 3:44 p.m. (Suggest removal)

As a career Federal Agent living in Detroit, Michigan, I find it silly to deny this man the opportunity of being close to his family. As one person stated earlier that far worse criminals are given the option to be close to their family. Also, The whole war on drugs is nothing more than a farce to make contractors rich.

Posted by chuco11 on June 23, 2007 at 8:54 p.m. (Suggest removal)

Ram, you were the impetus for the movement that slowly is gaining speed. Maybe not in our lifetimes but down the road there will be Spanish spoken along with English in the schools, businesses and professional sports, to name a few, all across America not just Texas. "The Man" sees this and doesn't like it! But he can't stop the ineviteable. What was that old adage...."GOD grant me the serenity....... Irma, you are a model of a loving wife. All men should be this fortunate!

I. DID THE 13TH COURT OF APPEALS ERR: The Texas Fair Defense Act Here is a Perfect Chance to Show Your Teeth

2007-06-22T04:42:00.000-07:00

I. DID THE 13TH COURT OF APPEALS ERR: The Texas Fair Defense Act Here is a Perfect Chance to Show Your Teeth

1. Appellant demands this appeal be abated and this court direct Appellant’s Attorney to represent her.

2. Appellant request legal representation as her request to oral argument is forbidden without it.

3. Appellant apologizes for any error committed as a Pro Se Defendant (Layperson) and for any reversible error committed; to be informed and given the opportunity to correct the error. Appellant at this late hour realizes she never signed the PDR she submitted and moves to correct at the Court’s discretion.

4. Appellant has had ineffective assistance of council. Jill Williams still represents appellant because she has never ask the courts permission in writing or in open court to withdraw. (List crucial periods without representation like when the state originally confessed) (error during the period immediately following submission to the clerk of the 13^th COA until the Court began to consider it.) (See Letter from Attorney)

5. Appellant request this court order a TWC investigation into this “comedy of errors”, “confession of errors” and “peculiar circumstances”. In the Alternative it is requested that all TWC subject matter be forwarded to the appropriate entities, The Governor of Texas, the Attorney General of the State of Texas and the Texas Workforce Executive Staff.

6. Appellant request this court order both administrative and criminal hearings to assist fact finders in the imminent TWC investigation. See attached TWC letter dated June 20, 2007.

7. Appellant invites TWC to submit a friend of the court letter.

8. Appellant request this court engage the TWC and conduct a hearing on this matter before ruling on the motion for rehearing

9. The 13^th Court of Appeals erred by excluding statements made on the (MFNT) record. The State did file a reply brief. This demonstrates that the court has not made its decision based on a whole record.

10. The Failure of the State to file a reply brief is treated as a confession of error per Siverand v. State ¹. As grounds for this cause Appellant respectfully request this Court take Judicial notice based on intervening Supreme Court precedent per Saldano v. Texas, 530 U.S. 1212 (2000) ² and grant this petition for discretionary review, vacate the judgment and remand the case for further consideration in light of developments during the pendency of this appeal. Specifically, it is requested this Court require such further proceedings (remand to trial court for the State to correct the error and file its reply) to be had as may be just under the circumstances.

11. The 13^th COA erred in it’s ruling, “any opposing arguments are limited to those advanced by the State in the trial court”.

12. Appellant relies on the complete appellate record.

13. The 13^th Court of Appeals made arguments on behalf of the state by technically censoring actual confessions of error in the Hearing on the Motion For New Trial. The confessions by the state are muted under the confession of error per Siverand Limiting the appellate record on behalf of the state to the trial court setting. Limiting the appellate record on behalf of the state to the trial court setting, the state’s side of the record that has vanished, when appellant relied on crucial testimony in the MFNT Hearing.

14. The 6th Amendment not a waivable right. It stands independent of ineffective assistance of counsel? The State needs to legitimize how State employee can be under subpoena as a witness for the State’s Adversary in a criminal proceeding and the state cannot compel her to appear. Then not file a reply brief in effect quashing the first opinion and censoring the confessions of error committed by the State during the Motion For New Trial.

15. The Failure of the State to file a reply brief is treated as a confession of error ¹; in this case the States Confession of Error is a "fundamental error" requiring correction. Although this court “may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review” it may also remand for further consideration in light of the confession of error ³. From the beginning this case has presented a comedy of errors and in particular some very peculiar circumstances. The States failure to file a reply brief deprives the appellant of crucial statements made by the State ² (by limiting any opposing arguments to those advanced by the State in the trial court. Id). It is this appellant’s belief the error is a tactical approach to disenfranchise Appellant of her right to fully supplement the record in her motion for new trial. Benefit from committing an error or committing an error so as to benefit from. Sounds like a Texas criminal style legislation to me

16. The decision of the Appellate court conflicts with the Texas Rules of Appellate Procedure 38.1(h) and 38.2(a)(1) ⁴ and Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) ⁵. The Appellate Court unequivocally has advanced arguments on behalf of the state. Not only have arguments been made on behalf of the state there are arguments made by the Appellate Court that are completely inaccurate: The 13th COA makes the statement “The record reflects that counsel exercised his ten peremptory strikes and, therefore, did not have an available strike for Ruff”. (Vol. 2 RR p,3 @3-6) (Vol. 1RR p.114). Is this court reading the same court record that this Appellant possesses? Appellant challenges the record furnished to the Appellant court as the record clearly reflects in direct contradiction of the 13^th Court of Appeals record. There were available strikes, Appellant’s Counsel exercised ZERO peremptory strikes. This shows there could be other mistakes or misreadings. Justice in this case requires that the Appellate Court did not understand the facts of the case well enough to properly and justiciably make a decision. The Confession of error by the State and blatant errors committed while reviewing the record as a whole in the appellate court. There is too much error and all of it is harmful. Appellant waives no error known and unknown.

17. The decision of the Appellate court contradicts itself with respect to its decision in Siverand.

18. Limiting the states record advances arguments on behalf of the state

19. The 13^th Court of Appeals relies on an incomplete record and has quoted the record inaccurately. This means either the record is either incomplete, inaccurate or the Independent Jurist did not take their duty seriously. The timing is highly suspicious being that two of the three Jurists were involved in campaigning, political maneuvering, schmoozing and networking and concentrating on their JOB.

20. Procedural Posture is faulty in light of confession of errors once the state confesses errors the errors need to be corrected.

21. The decision of the Appellate court contradicts itself with respect to Saldano v. Texas, 530 U.S. 1212 (2000) ². In light of the confession of error the case should be “remanded for further consideration in light of the confession of error”.

22. The verdict in said cause is contrary to the law and the evidence and there is newly discovered evidence touching the issues involved in said cause. Below is the controlling administrative law. This makes the entry Legal and TRUE. This is a WIA, TWC And Texas Department of Human Services directive per Standard Operating Procedure.

TEXAS WORKFORCE APPEALS POLICY AND PRECEDENT MANUAL

TOTAL AND PARTIAL UNEMPLOYMENT

_{TPU 105.00

TPU 105.00 CONTRACT OBLIGATION.}_{INCLUDES CASES IN WHICH THE CLAIMANT'S CONTRACTS OR AGREEMENTS HAVE AN EFFECT ON DETERMINING HIS UNEMPLOYMENT STATUS.

Appeal No. 82-4799-10-0782. Substitute teachers may have reasonable assurance of continued employment within the meaning of
Section 3(f) (now codified as}_{Section 207.041}_{) of the Act. In determining}_{whether such}_{reasonable assurance}_{exists with regard to}_{substitute teachers, the following criteria should be utilized: The school district must furnish to the Commission written statements which provide facts that the substitute teacher has been asked to continue in the same capacity for the following academic year. Simply placing the substitute teacher on a list for the following year does not establish reasonable assurance. It must be shown that both parties expect the relationship to resume at the beginning of the following year. The assurance must also be based on past experience with regard to the number of substitutes needed in the past.}

23. The trial of the above cause was not had before, nor was the verdict therein rendered by "an impartial jury."

24. Appellant’s right to the Compulsory Process was and continues to be thwarted. Material Witness Mary Cano never appeared to any of the proceedings in which Defendant’s / Appellant’s Counsel subpoenaed her. A subpoena was issued for Mary Cano directing her to appear before the same court proceeding (MFNT) in which the State claims it can get her there if she is needed. The State admits knowledge of Mary Cano’s whereabouts and goes on to boast of her being easy to find; yet whether willfully or inadvertently LeeAnn Haley’s 6^th Amendment right to Compulsory Process was violated.

¹_. ”_{When confronted with this situation, we treat the State's failure to file a brief as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.)."}

²_{Certiorari Granted—Vacated and Remanded}

_{No. 99–8119. Saldano v. Texas. Ct. Crim. App. Tex. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari}

_{granted, judgment vacated, and case remanded for further consideration in light of the confession of error}

1. ”When confronted with this situation, we treat the State's failure to file a brief as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.)."
2 Certiorari Granted—Vacated and Remanded
No. 99–8119. Saldano v. Texas. Ct. Crim. App. Tex. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari
granted, judgment vacated, and case remanded for further consideration in light of the confession of error

3 Pursuant to Siverand, we will make an independent examination of the merits of appellant's points of error and any opposing arguments are limited to those advanced by the State in the trial court. Id.
4 The rules of appellate procedure require the parties to advance their own arguments. Tex. R. App. P. 38.1(h) and 38.2(a)(1).
5 Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) Finally, decisional authority prevents us from advancing arguments on behalf of either party.

WHEREFORE, Petitioner prays that the court will:

1. Abate the Appeal, order a hearing to conduct a TWC administrative investigation and hold a hearing to conduct a Criminal Investigation and appoint counsel.

2. Remand this case for a new trial, or

3. Grant Appellant’s Motion for Rehearing.

4. Grant Appellants Motion for Rehearing, vacate the 13th COA opinion and remand for New trial and court appointed counsel.

5. Grant Appellants Motion for Extension of Time to File a Motion for Rehearing before ruling.

Respectfully submitted,

All eyes upon you no net below

2007-05-30T21:19:00.000-07:00

Most Precarious Lyrics
Artist(Band):Blues Traveler
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Music & Lyrics: John Popper

Don't you give up don't allow disaster
Don't you give up don't you let her win
We're talking about a "forever after"
Don't you give up don't you dare give in
Don't you give up don't you dare give in

Doesn't it seem most precarious
Doesn't it seem such a chance to take
Doesn't it seem most precarious
Why does it feel like a big mistake

Please understand and hear what I'm saying
The time is now and you don't have long
She could be oceans away tomorrow
So soon your chance will have come and gone
So soon your chance will have come and gone

Doesn't it seem most precarious
Doesn't it seem such a chance to take
Doesn't it seem most precarious
Why does it feel like a big mistake

The tight-wires strung and you're out in the middle
All eyes upon you no net below
Inches to go and you're almost home free
Feel the wires swaying to and fro,
Feel the wires swaying to and fro

Doesn't it seem most precarious
Doesn't it seem such a chance to take
Doesn't it seem most precarious
Why does it feel like it would be a damn shame
Would be forever if it meant a day
How stoically I exclaim
As she turns from me and walks away

The light in her eyes explanation escapes you
Longing to please and not feel alone
And she doesn't know it but really she loves you
Some day so soon you're gonna make it home
Some day so soon you're gonna make it home

Doesn't it seem most precarious
Doesn't it seem such a chance to take
Doesn't it seem most precarious
Why does it feel like a big mistake

Doesn't it seem most precarious
Doesn't it seem such a chance to take
Doesn't it seem most precarious
Why does it feel like a big mistake

trying to squeeze money out of us. Why?

2007-05-30T21:16:00.000-07:00

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NUMBER 13-02-00130-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI B EDINBURG

SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,

INDEPENDENT EXECUTRIX OF THE ESTATE OF

MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,

MARTHA DE LLANO DE OLIVERA, FERNANDO

DE LLANO, JR., AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FERNANDO DE LLANO, AND

JOSEFINA DE LLANO, Appellants,

v.

PABLO SUESS AND FROST NATIONAL BANK,

TRUSTEES OF THE JOHN G. KENEDY, JR.

CHARITABLE TRUST, Appellees.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa

Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.

A. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

B. Finality of Judgment

In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]

Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.

Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).

The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.

Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.

C. Participation of Attorney General

In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.

The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:

For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.

Tex. Prop. Code Ann. '123.002 (Vernon 1995).

Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:

We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.

When asked a second time by the trial court what relief appellants were requesting, counsel responded:

. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities.

The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@

The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.

Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.

D. Improper Jury Argument

In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@

Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied).

Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.

During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.

E. Disqualification of Defense Counsel

In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.

F. Jurisdiction

Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@

In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.

Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.

G. Adverse Possession

In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 16th day of June, 2005.

[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).

[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:

This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?
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