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tom bradys wife:"my husband can not *ing throw the ball, and catch the ball at the same time"

2012-02-06T11:42:00.000-08:00

OmG, that is it in a nutshell. i don't know whether any of you saw what i saw but the patriots won the game. Of course dumb mistakes by their nervous or pressure of the stress the time ran out.... Gisele said it all to some loser who was taunting her about her husband. Thank God she spoke up! Tom Brady need not say anything after that. Someone needed to shut that retard up. Could he have said anything less untrue....."Eli owns your husband"...if anything I think she owns more of Brady then Eli, after all if they get divorced or he buys property shes the only "owner" who has any say so. So kudos to Gisele had she not spoken up I would not be writing this today. Had i not heard this story on Jim Romes show i would not be lmao right now.

caller.com is censored a site and then whines when haters want "free" "Adsense" and those legal bills are "free"? Press Ure?

2011-12-28T00:55:00.001-08:00

http://ccintheknow.blogspot.com/2011/12/httpkickintheadsblogspotcom.html

Asian comments on posts in blogger.com

2011-12-28T00:15:00.000-08:00

whats up with all the comments in asian writing? Could anyone possibly translate?

"[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent...

2008-12-30T23:03:00.000-08:00

8. Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'") (quoting Hayes, 434 U.S. at 363).

The housing authority contends that Texas has only one judicial eviction procedure, and, therefore, its generic notice was sufficient. We disagree.

2008-07-30T02:08:00.000-07:00

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NUMBER 13-07-00277-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CORPUS CHRISTI

HOUSING AUTHORITY , Appellant,

MARIA LARA, Appellee.

On appeal from the County Court at Law No. 5

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Garza and Benavides

Opinion by Chief Justice Valdez

Appellant, Corpus Christi Housing Authority, appeals from an order dismissing its forcible detainer action against appellee, Maria Lara, a housing authority tenant.⁽¹⁾ See Tex. Prop. Code Ann. § 24.002 (Vernon 2000). The housing authority terminated Lara's residential lease because she allegedly violated lease provisions, provided Lara with formal notice of the lease termination, and subsequently obtained an eviction judgment from a justice court. See id. § 24.004 (Vernon 2000). Lara appealed to a county court at law and moved to dismiss the housing authority's action because its notice was defective under controlling federal rules. The trial court granted Lara's dismissal motion. By two issues, the housing authority contends that the trial court erred by dismissing its suit because: (1) its notice was adequate; and (2) even if the notice was inadequate, Lara had actual notice of the lease termination. We reverse and remand.

I. Background⁽²⁾

Lara leased an apartment from the housing authority on November 27, 1995, and she has lived in a housing authority apartment ever since. The housing authority terminated Lara's lease on October 10, 2006 because Lara, her minor son, and her daughter allegedly engaged in criminal activity, which was a violation of the lease provisions and federal law.

A. Alleged Criminal Activity

The events underlying the lease termination occurred on the evenings of September 19 and October 2, 2006. On September 19, Officer J. Cantu received a call regarding a speeding motorcycle on the street in front of Lara's apartment. According to Officer Cantu's report, he witnessed a motorcycle traveling at a high rate of speed on a street where children were playing. Upon stopping the motorcycle, Officer Cantu questioned the driver, who identified himself as P.L., Lara's minor son. P.L. was not licensed to operate a motorcycle, and the motorcycle was not registered. Officer Cantu then made contact with Lara and her daughter, who "were in aggressive postures and were vulgar and vocal" to him according to his report. Officer Cantu's report noted that P.L. was "cited," but it did not specify what, if any infractions were included in the citation. Officer Cantu did not arrest anyone during his investigation.

On October 2, Officer Casares was dispatched to investigate a reported disturbance at Lara's neighbor's apartment. Upon arriving, Officer Casares met with Rosario Navarro, Lara's neighbor. Navarro told Officer Casares that Lara threatened her because she would not provide false testimony about the incident that occurred on September 19. Navarro recounted to Officer Casares that one of Lara's male relatives approached her in an aggressive manner and pushed her away with his stomach. Navarro also advised Officer Casares that she had heard that Lara was making death threats against her. Navarro expressed to Officer Casares that she feared for her safety because of previous incidents and threats.

B. Lease Termination and Eviction Proceedings

The housing authority terminated Lara's lease when it received the reports from Officers Cantu and Casares. On October 10, 2006, the housing authority provided Lara with a "72-[H]our Notice to Terminate the Lease and Notice to Vacate," which claimed that Lara had violated lease provisions by engaging in prohibited conduct. The notice stated that Lara's lease would be terminated on October 13, 2006. It contained copies of the reports of Officers Cantu and Casares. The notice alleged that the following lease provisions were violated:

To act and cause other person(s) who are on premises with Resident's consent to act in a manner which will not disturb residents' or neighbors' peaceful enjoyment of their accommodations and will be conducive to maintaining premises and the development in a decent, safe and sanitary condition.

To refrain from illegal or other activity that impairs the physical or social environment of the development.

To act in an orderly manner in dealings with [m]anagement and/or other residents and not to harass or retaliate against management and/or other residents in any way so long as management and/or other residents reasonably and peacefully exercise any right granted under the lease.

To refrain from committing any act of physical violence to persons or property on or off premises.

The notice warned Lara that she was not entitled to a grievance hearing, but it stated that:

[T]his eviction procedure provides the opportunity for a hearing in [a] court that contains the basic elements of due process as defined by HUD [the United States Department of Housing and Urban Development] regulations. If you do not vacate on or before the expiration of 72 Hours from the date of this notice, October 13, 2006, legal action regarding eviction will be instituted for possession thereof.

(emphasis in original). Lara refused to vacate the premises, and the housing authority filed suit for forcible detainer in a justice court. See Tex. Prop. Code Ann. §§ 24.002, 24.004. The justice court entered a judgment of eviction in favor of the housing authority. Lara appealed to a county court at law.

The housing authority's petition in county court repeated the facts contained in the police reports. The housing authority alleged that Lara violated lease provisions because she: (1) did not abide by the admission and continued occupancy policy; (2) disturbed other residents' peaceful enjoyment of the premises; and (3) engaged in criminal activity that impaired the physical or social environment of the development. The housing authority prayed for possession of Lara's apartment, actual and exemplary damages, court costs, and reasonable attorney's fees.

Lara answered the housing authority's petition with a general denial. She also filed special exceptions, a plea in abatement, and a motion to dismiss. In her dismissal motion, Lara posited that federal regulations mandated that the housing authority's lease termination notice "[s]pecify the judicial eviction procedure to be used," see 24 C.F.R. § 966.4(l)(3)(v)(B) (2008), and "[s]tate whether the eviction is for a criminal activity as described in § 966.51(a)(2)(i)(A) or for a drug-related criminal activity . . . ," see 24 C.F.R. § 966.4(l)(3)(v)(C) (West 2008). Lara argued that the notice she received did not contain either of the federally mandated statements. Lara asserted that the notice did not effectively terminate her right of possession because of its defects and that the eviction proceeding that the housing authority instituted in the justice court violated state law because it was instituted before an effective lease termination. See Tex. Prop. Code Ann. § 24.005(a)(1) (Vernon 2000) (providing that the landlord must give a tenant who defaults at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit).

The housing authority responded to Lara's dismissal motion by arguing that the notice sufficiently informed Lara of the alleged criminal activity and the judicial process. The housing authority further argued that even if the notice were defective, it did not deprive the trial court of subject-matter jurisdiction because the statute's purpose was informational rather than jurisdictional. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000); Helena Chem. Co. v. Wilkins, 47 S.W.3d 351, 358 (Tex. 2001).

On February 22, 2007, the county court granted Lara's dismissal motion and issued findings of fact and conclusions of law. In its legal conclusions, the trial court found that the federal regulations at issue are subject to review for strict compliance and that failure to satisfy the notice requirements deprives the trial court of subject-matter jurisdiction. The housing authority filed a motion for new trial, which the trial court denied. This appeal ensued.

II. Discussion

By two issues, the housing authority complains that the trial court erred in dismissing its forcible detainer action. First, the housing authority claims that its notice complied with section 966.4(l)(3)(v)(B) of title 24 of the Code of Federal Regulations. See 24 C.F.R. § 966.4(l)(3)(v)(B). Second, the housing authority contends that even if the notice failed to comply with the applicable federal regulations, the trial court retained subject-matter jurisdiction because Lara had actual knowledge of the eviction proceeding; therefore, she was not harmed by any deficiency in the notice.

A. Standard of Review

In this case, the trial court concluded that it lacked subject-matter jurisdiction over the housing authority's eviction action. We review a trial court's ruling on subject-matter jurisdiction de novo. Tex. Natural Res. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We are also called upon to review how federal regulations affect this state's lease termination and eviction procedures. We construe the text of an administrative rule under the same principles we construe a statute. See, e.g., Phillips Petroleum Co. v. Texas Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.) (citing Tex. Gen. Indem. Co. v. Tex. Workers' Comp. Comm'n, 36 S.W.3d 635, 641 (Tex. App.-Austin 2000, no pet.)) (providing that state administrative rules and statutes are reviewed for intent). We will, therefore, ascertain and give effect to the rule drafter's intent for the provisions we are construing. See Tex. Gov't Code Ann. § 312.005 (Vernon 2005) (providing how a court should determine legislative intent).

When a trial court issues findings of fact and conclusions of law, as the trial court did in this case, we may review the findings of fact for legal and factual sufficiency and review the conclusions of law de novo. Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).

B. Notice

By its first issue, the housing authority asserts that the trial court erred in concluding that the notice was insufficient. Lara moved for dismissal on the ground that the termination notice did not specify the judicial procedure to be used or specify the kind of criminal activity that Lara was alleged to have engaged in. The relevant federal regulation provides that when the public housing authority:

is not required to afford the tenant the opportunity for a hearing under the PHA administrative grievance procedure for a grievance concerning the lease termination (see § 966.51(a)(2)), and the PHA has decided to exclude such grievance from the PHA grievance procedure, the notice of lease termination under paragraph (l)(3)(i) of this section shall: specify the judicial eviction procedure to be used by the PHA for eviction of the tenant, and state that HUD has determined that this eviction procedure provides the opportunity for a hearing in court that contains the basic elements of due process as defined in HUD regulations.

24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). The housing authority contends that Texas has only one judicial eviction procedure, and, therefore, its generic notice was sufficient. We disagree.

Under our rules of statutory construction, "shall" is generally construed to be mandatory, but may be directory when this interpretation is most consistent with the Legislature's intent. See Tex. Gov't Code Ann. § 311.016 (Vernon 1998); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996). To determine whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956). Even if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional. Sinclair, 984 S.W.2d at 961; Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983). When a statute is silent about the consequences of noncompliance, we look to the statute's purpose to determine the proper consequences. Sinclair, 984 S.W.2d at 961; Schepps, 652 S.W.2d at 937-38; Chisholm, 287 S.W.2d at 945.

Title 24 of the Code of Federal Regulations regulates public housing authorities. The applicable section states that a notice of lease termination "shall specify the judicial eviction procedure to be used." See 24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). We conclude that the plain meaning, nature, and object of this phrase is to mandate that a housing authority notify a tenant of the judicial eviction procedure to be used. Part of the purpose of Title 24 is to afford adequate due process to tenants. For example, tenants are entitled to a grievance hearing before judicial eviction unless certain exceptions apply. See 24 C.F.R. § 966.51(a)(1) (2008).⁽³⁾ Even when an exception applies and a grievance hearing is not required, the regulations mandate that the judicial procedure used to evict a tenant must possess the basic elements of due process. 24 C.F.R. § 966.4(1)(3)(v)(B). In this case, reading "shall" as directory instead of mandatory would dilute the procedural safeguards promulgated by the Department of Housing and Urban Development.

The notice in the instant case did not specify which court would hear the eviction action. In fact, it was so deficient that it did not even attempt to parrot the text of the regulation. See, e.g., Edgecomb v. Hous. Auth. of Vernon, 824 F.Supp. 312, 314 (D. Conn. 1993) (providing that a notice which merely parrots the broad language of the regulations is insufficient). Therefore, the housing authority's first issue is overruled.

C. Subject-Matter Jurisdiction

By its second issue, the housing authority argues that the trial court erred in dismissing its detainer action because Lara was not harmed by any alleged insufficiency in the notice. The housing authority argues that we should follow the First Court of Appeals, which has held that notice defects in housing authority cases are subject to a harm analysis because protections in the federal regulations exist "to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence" rather than to create jurisdiction. See Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 392 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Escalera v. N.Y. City Hous. Auth., 425 F.2d 853, 862 (2d Cir. 1970)).

Lara counters by arguing that the notice requirements vest her with a fundamental due process right that is jurisdictional. She contends that this "jurisdictional right" is not subject to a harm analysis. In essence, Lara asks us to create a different rule than the one crafted by in Nealy, but her only rationale is that she does not agree with the rule that is already on the books. We are persuaded by neither the housing authority's nor Lara's arguments. Instead, we look to our own cases for guidance.

In Hinojosa, this Court was confronted with a similar notice argument. See Hinojosa v. Hous. Auth. of Corpus Christi, 896 S.W.2d 833 (Tex. App.-Corpus Christi 1995, writ dism'd w.o.j.). The housing authority in Hinojosa issued a defective notice, which the tenant asserted in county court warranted a dismissal. Id. at 385. The housing authority, however, moved to abate its detainer action so that it could cure the defects. Id. The county court abated the proceeding, and the case was eventually reinstated and tried to a jury on the merits. Id. On appeal, the tenant argued that the trial court erred by not dismissing the action. Id. at 836. We found that the "[i]n many areas of the law, abatement is appropriate when prerequisites are missing," and we held that the trial court did not err in abating rather than dismissing the case. Id. at 836-37.

Implicit in the Hinojosa case is the notion that the notice requirements contained in the applicable federal regulations are not jurisdictional. See id.; see also Torres v. Corpus Christi Hous. Auth., No. 13-04-591-CV, 2006 Tex. App. LEXIS 6872, *4-5 (Tex. App.-Corpus Christi 2006, no pet.) (mem. op.) (concluding that alleged deficiencies in a housing authority's notice to terminate lease must be raised before the trial court or the complaint is waived). The trial court in this case, therefore, erred in dismissing the housing authority's detainer action. Instead, the trial court should have abated the housing authority's action so that it could provide Lara with the federally mandated notice. See Hinojosa, 896 S.W.2d at 836. Therefore, the housing authority's second issue is sustained in part.

III. Conclusion

The trial court's dismissal order is reversed, and the case remanded back to the trial court with instructions to abate the underlying action until sufficient notice is provided.

________________________

ROGELIO VALDEZ

Chief Justice

Opinion delivered and filed

this the 17th day of July, 2008.

1. The Corpus Christi Housing Authority is a federally subsidized agency, and it is regulated by title 42, Chapter 8 of the United States Code and title 24 of the Code of Federal Regulations. See 42 U.S.C. §§ 1401-1440; 24 C.F.R. §§ 0-4199.

2. The trial court granted Lara's dismissal motion on the pleadings. It, therefore, did not hear live testimony, and consequently, this case is submitted without a reporter's record. See Tex. R. App. P. 34.1 (providing that the appellate record consists of the clerk's record, and if necessary to the appeal, the reporter's record). We take note of the allegations of criminal activity from police reports that the housing authority subjoined to the termination notice.

3. Those exceptions include: (A) any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA; (B) any violent or drug-related criminal activity on or off such premises; or (c) any criminal activity that resulted in felony conviction of a household member. 24 C.F.R. § 966.51(a)(2)(i)(A)-(B) (2008).

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FindLaw> State Resources> Texas> Primary Materials> Texas Court Opinions
File: 001256 - From documents transmitted: 05/30/2002

IN THE SUPREME COURT OF TEXAS

............
No. 00-1256
............

In the Matter of R. J. H., Petitioner

....................................................
On Petition for Review from the
Court of Appeals for the Third District of Texas
....................................................

Argued on October 17, 2001

Justice Hecht delivered the opinion of the Court, in which Chief Justice Phillips, Justice Enoch, Justice Owen, Justice Jefferson, and Justice Rodriguez join.

Justice Baker, Justice Hankinson, and Justice O'Neill concur in the judgment only.

Whether a juvenile's noncustodial, inculpatory statements, made after the juvenile has already given police a confession inadmissible under state law because a magistrate was not present, are nevertheless voluntary and therefore admissible without offense to the Fourteenth Amendment to the United States Constitution must be determined from the totality of the circumstances. See Footnote 1 Our main inquiry here is whether the court of appeals correctly applied this test in holding that the admission of a juvenile's statements was error. See Footnote 2 We hold that it did not and therefore reverse the judgment of the court of appeals and reinstate the trial court's adjudication of delinquency.
I
A
The record before us consists of the testimony of three Department of Public Service officers, Michael Scheffler, D. G. Elder, and Michael Telles, at a hearing on a motion to suppress evidence. We summarize their testimony as follows.
R.J.H., a sixteen-year-old boy, was a passenger in a car driven by his adult cousin, Pedro Ybarra, when they were stopped mid-afternoon by Officer Scheffler because neither was wearing a seat belt. When Ybarra could not produce a driver's license, Scheffler arrested him, and had the car inventoried and impounded. Scheffler noticed that there were no keys in the ignition and that the steering column had been “popped”, indicating that the car may have been stolen. He also detected the odor of marijuana in the car and saw a marijuana cigarette in the ashtray. Scheffler asked R.J.H. whether the cigarette was his, and he admitted it was. In searching the car, Scheffler found an expensive set of golf clubs, some telephone equipment, and numerous compact disks and videotapes that had all been reported stolen from a residence the previous day.
Scheffler handcuffed R.J.H. and took him to Detective Elder's office at a local DPS station. Elder had R.J.H.'s handcuffs removed, determined that he should be released, and telephoned his father to come to the station and pick him up. While R.J.H. waited for his father to arrive, he was free to walk around the office, go to the rest room, and get something to drink. He also talked with Elder for a little while, explaining that he had dropped out of school in the eighth grade, had fathered a child, and was on probation. Elder testified that he did not suspect R.J.H. of theft of the property that had been found in the car but wanted to ask him about Ybarra's involvement with his father present.
After about an hour R.J.H.'s father arrived, and Elder asked if he could question R.J.H. further. R.J.H. and his father agreed. Elder gave R.J.H. his Miranda See Footnote 3 warnings and then questioned him about the theft. R.J.H. said he had broken into a house and opened the door for Ybarra, and the two of them had carried off the property found in their car. R.J.H. stated that because he was a juvenile, he believed nothing serious would happen to him as a result of the crime. Elder did not take R.J.H. before a magistrate when R.J.H. began to implicate himself in the burglary because Elder did not consider R.J.H. to be in custody. Elder had R.J.H.'s statement reduced to writing, and R.J.H. and his father signed it. The two then left Elder's office.
Several days later, R.J.H. telephoned Elder and asked to change his written statement. He told Elder that he had committed the burglary by himself, that Ybarra had not been involved at all. After that conversation, Elder and R.J.H. spoke together several other times. R.J.H. repeatedly told Elder that he wanted to revise his written statement to take sole responsibility for the burglary, exonerating Ybarra. Based on what R.J.H. had told him before, Elder thought that R.J.H. believed the consequences would be less severe for himself than they would be for Ybarra if Ybarra, an adult, were charged with the crime. In the course of their conversations, Elder told R.J.H. that the burglary victims were anxious to recover all of the property taken, including an old Masonic ring that had been in the family for many years. Elder hoped to “guilt trip” R.J.H. into helping him locate the ring and other property, and R.J.H. did appear to cooperate, although no other property was found.
B
The State petitioned for an adjudication that R.J.H. had engaged in delinquent conduct, namely burglary, a felony. See Footnote 4 R.J.H. moved to suppress the written statement he gave to Elder on the ground that he had not been admonished of his rights by a magistrate as required by section 51.095(a)(1) of the Texas Family Code. Under the United States Constitution, a juvenile charged with delinquency is protected from self-incrimination and entitled to counsel and must be advised of these rights before being asked to make a statement while in police custody. See Footnote 5 The Texas Family Code provides that a juvenile can waive his rights once he is in custody only if joined by his attorney See Footnote 6 or if done in the presence of a magistrate. See Footnote 7 R.J.H. also moved to suppress his later oral statements to Elder because they were tainted by the inadmissibility of the earlier written statement. The State countered that R.J.H. was not in custody when he gave his written statement and therefore section 51.095(a)(1) was inapplicable.
The State called Officer Scheffler and Detective Elder to testify on the motion. R.J.H. did not testify and called only one witness, Officer Telles, who testified only about the inventory he conducted of the car. At the conclusion of the hearing the court stated on the record that it found that R.J.H. had been in custody when he gave his written statement but not afterward. The court ordered that R.J.H.'s written statement be suppressed but not his subsequent oral statements. Subject to this ruling, R.J.H. then pleaded “true” to the petition and was sentenced to intensive-supervision probation for one year. (The State did not argue in the court of appeals that R.J.H.'s plea of “true” forecloses appeal from the ruling on the motion to suppress, and thus has failed to preserve that argument. We therefore express no opinion on that issue.)
A divided court of appeals reversed. See Footnote 8 The court agreed that R.J.H.'s written statement was inadmissible under section 51.095(a)(1) of the Family Code, but held that as a result his later oral statements were involuntary and therefore inadmissible under the Fourteenth Amendment. See Footnote 9 The court also held that R.J.H.'s oral statements were inadmissible under section 54.03(e) of the Family Code, which provides in pertinent part: “An extrajudicial statement which was obtained without fulfilling the requirements of this title or of the constitution of this state or the United States, may not be used in an adjudication hearing.” See Footnote 10
The State's petition for review challenges these holdings, and R.J.H. does not argue here that his later statements were inadmissible for any other reason. Thus, the only issues before us are whether R.J.H.'s later oral statements to Detective Elder were admitted either in violation of constitutional due process because they were not voluntary, or in violation of section 54.03(e) of the Family Code. We consider each issue in turn.
II
The test for determining whether a confession was made voluntarily is well established: the totality of the circumstances surrounding the making of the confession must be examined to determine whether the confession was “'the product of an essentially free and unconstrained choice by its maker'”. See Footnote 11 Conversely, a statement is involuntary “only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.” See Footnote 12
Under federal law, whether a confession is voluntary is a mixed question of fact and law. See Footnote 13 Appellate review of the trial court's findings of historical fact is deferential because the trial court is in a better position to weigh credibility and make such determinations, but review of the applica tion of the law to the facts is de novo because the trial court is in no better position to decide legal issues than the appellate court. See Footnote 14 The Texas Court of Criminal Appeals has stated that a trial court's ruling on a motion to suppress in a criminal case is reviewed by an abuse-of-discretion standard See Footnote 15 and has not said whether that standard of review is different from the standard under federal law. See Footnote 16 The Family Code, which governs juvenile delinquency proceedings in Texas, requires that they be conducted under the Texas Rules of Civil Procedure, except as to discovery, and under the Texas Rules of Evidence applicable to criminal proceedings. See Footnote 17 These rules do not set a standard for appellate review of a ruling on a motion to suppress. Finding no rule, statute, or court decision that prescribes a standard of review of such a ruling in a juvenile case, we choose to use an abuse-of- discretion standard, which for purposes of this case at least we take to be essentially identical to the federal standard, because it seems to us to make the most sense and is most consistent with appellate procedure in civil cases generally. Thus, we defer to the trial court's findings of historical fact but determine de novo whether those facts show that a juvenile's statements were made voluntarily for purposes of constitutional due process.
The Texas Code of Criminal Procedure requires trial judges to make written findings of fact in connection with rulings on motions to suppress, See Footnote 18 and this requirement cannot be waived. See Footnote 19 This rule does not apply in juvenile cases, See Footnote 20 and there is no other requirement that findings be made in such cases. Neither the State nor R.J.H. requested written findings of fact in connection with the trial court's ruling on the motion to suppress, and the court made none, although it orally stated “findings” on the record as part of its explanation for its ruling. Absent findings of fact, we will “view the record in the light most favorable to the trial court's ruling,” as we would for other rulings in civil cases. See Footnote 21
With respect to R.J.H.'s oral statements, the court of appeals concluded:

Given (1) the undeniable connection between the earlier inadmissible statement and the later statements, indicating that [R.J.H.] would not have made the latter but for the former; (2) [R.J.H.'s] juvenile status; (3) [R.J.H.'s] belief that the written statement would be used against him; and (4) the paucity of evidence by the State to meet its burden to prove voluntariness, we conclude that, under the totality of the circumstances, [R.J.H.'s] statements to Elder requesting a revision of his written statement were not voluntary under the federal Due Process Clause. See Footnote 22

The first factor cited by the court references the “cat out of the bag theory”, which, as described by the court of appeals,

is based on the notion that once a defendant has confessed, but is not aware the confession cannot be used against him, he may feel he has nothing to lose by making additional incriminating statements; so burdened by the psychological pressure of the first confession, his resolve to remain silent may be broken, rendering any subsequent statements involuntary under the federal due process clause. See Footnote 23

This theory was discussed, and for the most part rejected, by the United States Supreme Court in United States v. Bayer. See Footnote 24 There the Supreme Court explained:

Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. See Footnote 25

A defendant's voluntary statement was not inadmissible, the Supreme Court concluded, merely because his prior statement was inadmissible. More recently in Oregon v. Elstad, the Supreme Court held that a statement is not made inadmissible by a prior inadmissible statement unless the impropriety in obtaining the first statement actually extended to the later one. See Footnote 26 In the Supreme Court's words, “moral and psychological pressures to confess emanating from sources other than official coercion” are no concern of the due process guarantee. See Footnote 27
The “cat out of the bag” theory has been similarly limited by the Court of Criminal Appeals. In Griffin v. State, the court held that a juvenile's confession was not involuntary and inadmissible merely because she had made an earlier statement at a time when she had been warned of her rights only by a police officer rather than by a magistrate, as required by the Family Code. See Footnote 28 To determine the admissibility of the later statement, courts must look to the totality of the circumstances to determine whether that statement was the product of official coercion. See Footnote 29 Thus, under both federal and state jurisprudence, R.J.H.'s later statements to Elder were not involuntary merely because he made his prior statement to Elder rather than to a magistrate as required by section 51.095(a)(1) of the Family Code. We assume, consistent with the trial court's exclusion of R.J.H.'s written statement, that R.J.H. was in custody when he gave Elder that statement, and therefore section 51.095(a)(1) was applicable. The statute prescribes requirements for the admissibility of a juvenile's statement, but it does not determine whether a statement is voluntary for purposes of due process. R.J.H.'s written statement to Elder acknowledged that Elder had advised him of his constitutional rights and that he chose to make a statement “freely and voluntarily, without being induced by any compulsion, threats, promises, or persuasion”. R.J.H. signed the statement, as did his father who was present throughout Elder's questioning. Elder's admonishments to R.J.H. satisfied the requirements of federal constitutional due process even though R.J.H. was not given the additional protections afforded juveniles by section 51.095 of the Family Code. See Footnote 30 R.J.H.'s later statements were therefore not “fruit of the poisonous tree” _ a prior coerced statement _ because for purposes of due process under the federal constitution, there was no poisonous tree.
Nor were R.J.H.'s later statements themselves the product of coercion. R.J.H. initiated contact with Elder on more than one occasion. The two spoke together several times. R.J.H. even offered to lead Elder to unrecovered stolen property. The evidence certainly supports the trial court's determination that R.J.H. was not in custody when he made the oral statements to Elder. Furthermore, there is no indication that R.J.H. felt any pressure to talk to Elder because he had already given Elder a statement that inculpated him in the burglary. For one thing, he and his cousin, Ybarra, had been caught with stolen property in their possession, so that their complicity in the burglary was not wholly dependent on R.J.H.'s confession. And for another, R.J.H.'s efforts to take sole responsibility for the crime appear to have been consistently motivated by his belief that any punishment imposed on him in the juvenile system would be less than the punishment his cousin, Ybarra, faced as an adult for the same crime. Elder did nothing to create or foster this belief in R.J.H. If R.J.H. thought he had nothing to lose by making the oral statements to Elder, it was not likely because he had already confessed, but because he had been caught and his previous experience with the juvenile justice system persuaded him that he would suffer no serious consequences.
The other three factors cited by the court of appeals in support of its conclusion add little. There is no indication that R.J.H.'s statements were coerced due to his age. R.J.H., 16, was already on probation, and he initiated some of the calls to Elder and met with him freely. Nor does R.J.H.'s belief that his written statement would be used against him _ which is nothing more than the “cat out of the bag” theory restated _ show coercion. The evidence is that R.J.H. made oral statements to Elder not because he thought he had nothing to lose after his written statement, but because he was afraid his cousin had much to lose if the written statement were not changed to shift all blame to R.J.H. Finally, while the evidence adduced by the State on the motion to suppress is by no means lengthy, the court of appeals did not suggest, and we cannot see, that the State ignored important evidence. In the final analysis, the court of appeals made the inadmissibility of R.J.H.'s written statement virtually determinative of the inadmissibility of the later statements. In so doing, the court erred. The admission of the oral statements did not violate due process.
III
The court of appeals suggested, and R.J.H. argues here, that his oral statements were inadmissible under section 54.03(e) of the Family Code, See Footnote 31 which, as we have noted, excludes a juvenile's extrajudicial statements “obtained without fulfilling the requirements of this title or of the constitution of this state or the United States”. See Footnote 32 We have already concluded that R.J.H.'s oral statements were not obtained in violation of federal constitutional due process, and R.J.H. does not argue that the state constitution afforded him any greater due process protections. R.J.H.'s argument is only that the oral statements were obtained without fulfilling the requirements of the Family Code. Because we agree with the trial court that R.J.H. was not in custody when he made those statements, section 51.095(a)(1) is inapplicable. R.J.H. does not identify any other requirement of the Family Code that was not met.
R.J.H.'s argument is really that because Elder did not meet the requirements of section 51.095(a)(1) in obtaining his written statement, his later oral statements were thereby tainted. This, again, is simply the “cat out of the bag” theory that we have already rejected. The admission of R.J.H.'s oral statements was thus not precluded by section 54.03(e).
* * * * *
For the reasons we have explained, we reverse the judgment of the court of appeals and reinstate the trial court's adjudication of delinquency.

Nathan L. Hecht
Justice
Opinion delivered: May 30, 2002

Footnote 1
Griffin v. State, 765 S.W.2d 422, 429-430 (Tex. Crim. App. 1989); see Colorado v. Connelly, 479 U.S. 157, 169-170 (1986).Footnote 2
28 S.W.3d 250 (Tex. App._Austin 2000).Footnote 3
Miranda v. Arizona, 384 U.S. 436 (1966).Footnote 4
See Tex. Penal Code § 30.02.Footnote 5
In re Gault, 387 U.S. 1 (1967).Footnote 6
Tex. Fam. Code § 51.09:

§ 51.09. Waiver of Rights.

Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:

(1) the waiver is made by the child and the attorney for the child;

(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and

(4) the waiver is made in writing or in court proceedings that are recorded.Footnote 7
Id. § 51.095:

§ 51.095. Admissibility of a Statement of a Child.

(a) Notwithstanding Section 51.09, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:

(1) the statement is made in writing under a circumstance described by Subsection (d) and:

(A) the statement shows that the child has at some time before the making of the statement received from a magistrate a warning that:

(i) the child may remain silent and not make any statement at all and that any statement that the child makes may be used in evidence against the child;

(ii) the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning;

(iii) if the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state; and

(iv) the child has the right to terminate the interview at any time;

(B) and:

(i) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present, except that a magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child; and

(ii) the magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily, and if a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met;

(C) the child knowingly, intelligently, and voluntarily waives these rights before and during the making of the statement and signs the statement in the presence of a magistrate; and

(D) the magistrate certifies that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights;

* * *

(b) This section and Section 51.09 do not preclude the admission of a statement made by the child if:

(1) the statement does not stem from interrogation of the child under a circumstance described by Subsection (d); or

(2) without regard to whether the statement stems from interrogation of the child under a circumstance described by Subsection (d), the statement is voluntary and has a bearing on the credibility of the child as a witness.

* * *

(d) Subsections (a)(1) and (a)(5) apply to the statement of a child made:

(1) while the child is in a detention facility or other place of confinement;

(2) while the child is in the custody of an officer; or

(3) during or after the interrogation of the child by an officer if the child is in the possession of the Department of Protective and Regulatory Services and is suspected to have engaged in conduct that violates a penal law of this state.

* * *Footnote 8
28 S.W.3d 250 (Tex. App._Austin 2000).Footnote 9
Id. at 254.Footnote 10
Id.; see Tex. Fam. Code § 54.03(e).Footnote 11
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)); accord, Haynes v. Washington, 373 U.S. 503, 513-14 (1963); State v. Tarrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999); Griffin v. State, 765 S.W.2d 422, 428 (Tex. Crim. App. 1989); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).Footnote 12
Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); accord, Colorado v. Connelly, 479 U.S. 157, 164 (1986) (“Absent [coercive] police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”).Footnote 13
Miller v. Fenton, 474 U.S. 104 (1985).Footnote 14
Id.Footnote 15
Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).Footnote 16
Henderson v. State, 962 S.W.2d 544, 564 (1998).Footnote 17
Tex. Fam. Code § 51.17.Footnote 18
Tex. Code Crim. Proc. art. 38.22, § 6.Footnote 19
Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (citing Bonham v. State, 644 S.W.2d 5, 8 (Tex. Crim. App. 1983).Footnote 20
See Tex. Fam. Code § 51.17.Footnote 21
Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).Footnote 22
28 S.W.3d at 254.Footnote 23
Id. at 252.Footnote 24
331 U.S. 532 (1947).Footnote 25
Id. at 540-541.Footnote 26
470 U.S. 298, 311, 314 (1985).Footnote 27
Id. at 304.Footnote 28
Griffin, 765 S.W.2d at 431.Footnote 29
Id. at 430.Footnote 30
See id.Footnote 31
28 S.W.3d at 254.Footnote 32
Tex. Fam. Code § 54.03(e).
File Date[05/30/2002]
File Name[001256]
File Locator[05/30/2002-001256]
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appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense

2008-03-14T23:55:00.000-07:00

NUMBER 13-02-218-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALEJANDRO RODRIGUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 257th District Court of Hidalgo County, Texas.

O P I N I O N

Before Justices Yañez, Rodriguez and Baird Footnote

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

1.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.

2.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

3.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

4.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.

B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.

For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).

_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.

Oh, my bad, I wore blue jeans, tough on teens and jeans, youths are stripped and violated of any right to an attorney.....

2007-12-16T03:10:00.000-08:00

What to expect when being defended in State Court What should I expect when being defended in State court? Being a criminal defendant can be an unnerving experience for anyone. It is even more so when you don’t know what to expect around the next corner in a process you’ve probably only read about or seen depicted on T.V. The point is if you are aware of what to expect, you are better equipped to deal with what might be expected of you during the process.

Criminal defense in State court is markedly different than criminal defense in Federal court. If you have a case in Federal court and want to know what to expect, click here. In State court in Tarrant County, a defendant can be exposed to a vast array of expectations, timeframes, and results. These differences will depend primarily on the type of case you have as well as the court to which your case is assigned. shapeimage_8_link_0
There are two types of criminal cases; misdemeanors and felonies. Misdemeanors can result in punishment including incarceration in the Tarrant County Jail, whereas felonies can result in imprisonment in the Texas Department of Corrections prison system. Generally speaking, a criminal case in State court in Tarrant County can take several months to resolve. Most defendants believe there case will be resolved on their first court appearance. In reality, it may be over a year before their case is finally disposed. This has nothing to do with the defendant themselves or their attorney. Rather this is a byproduct of the criminal justice system. Most courts require defendants to attend a number of “Docket Settings”. Each court is different in how they set their appearances and how they refer to them. Additionally, the settings are different depending on whether the case is a felony or misdemeanor. In misdemeanor court, most defendants will attend a first appearance docket, a consultation docket, a pre-trial docket, and possibly a trial docket. Each setting is designed to meet a different purpose. For example, the first appearance docket is typically designed to ensure a defendant has an attorney. There is no expectation the case would be disposed of on that setting. Contrast that with the trial docket setting where the expectation is the defendant and his attorney would be prepared to go to trial. In felony cases, most courts follow the Differentiated Case Management System. This system is designed to provide a systematic timeframe for resolution of felony cases. Again, each docket setting is designed for a different purpose depending on the relative age of the case. A good criminal defense attorney can explain the different settings to you and provide you a roadmap for what to expect with each and every court appearance. Additionally, it’s important to remember that virtually all courts in Tarrant County require the defendant to be present at all court settings. While there might be a exception made on a case-by-case basis, the general rule is that appearance is mandatory. Failure to attend a court appearance can result in forfeiture of your bond and a warrant issued for your arrest. It is also extremely important to remember that going to court is not the equivalent to going to the mall. Any time you must appear in court, you should always remember to afford the court with the respect it deserves. This means being on time and being dressed appropriately. Parking in downtown Fort Worth can be difficult at times. You should always give yourself enough time to find a parking space, get through security and find your courtroom before your scheduled court appearance. If you are late to court, you can be arrested and your bond held insufficient. Likewise, if you arrive to court wearing inappropriate clothing, you may go to jail. Remember, this is not a social event. Don’t wear t-shirts, jeans, hats, shorts, or anything other than respectful attire. Also, don’t bring your friends with you. Matlock The Name in Criminal Defense

Tamper with evidence is exactly what prosectors do when they refuse to present original docs.

2007-08-16T22:51:00.000-07:00

07-0255 STEWART, CLINTON SHANE 06/06/07

APPELLANT’S GILLESPIE TAMPERING WITH

PHYSICAL EVIDENCE

1. THE COURT OF APPEALS' DECISION CONFLICTS WITH ANOTHER COURT OF APPEALS' DECISION THAT HELD THE ONLY WAY EVIDENCE CAN BE DESTROYED FOR PURPOSES OF PENAL CODE § 37.09 IS WHEN THE PART RECOVERED HAS LESS EVIDENTIARY VALUE THAN THE WHOLE, INSUFFICIENT TO OBTAIN A CONVICTION FOR POSSESSION OF THE WHOLE.

2. THE COURT OF APPEALS HAS DECIDED AN IMPORTANT QUESTION OF STATE LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS BECAUSE THE UNIQUE CULPABILITY REQUIREMENT TO SUSTAIN A CONVICTION FOR A VIOLATION OF PENAL CODE § 37.09 HAS YET TO BE AUTHORITATIVELY ADDRESSED.

The Justices in this case will pronounce a verdict on themselves.

2007-07-31T02:03:00.000-07:00

- Original Message -----
From: Ron Jagannathan
To: VictoryUSA@Jail4Judges.org
Sent: Tuesday, January 25, 2005 4:35 AM
Subject: Articles for your website.

Whistleblower Puts Virginia Supreme Court on Trial

By Ed Truncellito, JD

June 5, 2003

Yesterday seven Justices of the Virginia Supreme Court were put on
trial in their own court by attorney Linda Kennedy who was disbarred
last year.

The Justices had the spotlight turned around on them when Kennedy
addressed them from the podium. Kennedy was there to appeal her
disbarment for violating the First Unwritten Rule of Virginia Legal
Ethics: do not embarrass the Virginia Bar by blowing the whistle on
white-collar crimes they commit against an unwitting Virginia public.

Kennedy began by throwing Chief Justice Leroy Rountree Hassell, Sr. off
guard. She complimented him saying she heard him preach the Gospel of
Jesus Christ at Regent University. Maybe he momentarily forgot that a
similar tactic was used by the Apostle Paul to subdue King Agrippa. The
Justice straightened up and beamed with pride as he was reminded of the
distinction that Regent bestowed upon him in the eyes of his black
community by honoring him as a professor of law and theology.

Next Kennedy quoted a second one of the Justices, a woman, who was
published as stating that legal process must always be above suspicion.
Kennedy thanked her for the statement but added that the message
apparently has not yet reached the Virginia Bar.

Kennedy silenced a third Justice by interrupting his question and
asking that the Justices not ask her any more questions. She said they
had a copy of her written brief, and she wanted to use her entire 15
minutes to explain to them in person how their legal system has become
disgracefully corrupt. And if that did not convince them, then nothing
ever would.

Nonetheless a moment later a fourth Justice, another woman, interrupted
to ask if she understood correctly that Kennedy did not want to answer
their questions, perhaps implying that Kennedy had something to hide.
But Kennedy rebuked her. Kennedy said it could not have been made any
plainer: "no questions." The Justice pushed herself back in her chair
showing consternation, but she had nothing more to say.

Having silenced the Justices, Kennedy then proceeded --- shall we say
"earnestly" --- to "chew their butts" as plain folk in Virginia would
call it.

Good for you, Kennedy, because the buck stops here. These Justices are
the senior officers of the Virginia Bar whose lawyers are trying to
cover up the fact that Kennedy caught them red-handed falsifying the
very court record that these Justices had sitting right there under
their noses on the bench. The legal process that brought them the case
record was not merely suspicious. It was blatantly fraudulent.

Kennedy had fished through the trial court's trash cans and found the
trial court's handwritten notes that the trial judge had approved
falsifications of the trial record to cover up perjury by the lawyer
who heads the Virginia Bar's Ethics Committee.

Kennedy has audiotapes that prove what the Ethics leader really said,
in his own recorded voice. But the trial court cut out the part of the
record where the trial judge refused to allow those audiotapes to be
played. Ironically, the trial judge's comments were falsified in the
record claiming he said he would have exonerated Kennedy if only she
could have proved what the audiotapes in fact do prove.

Talk about smoking guns. But this is just one of the more glaring
cases. It is an open secret that records are being falsified routinely
in cases all over the state and all over the country while the high
courts hear it with a deaf ear. Zed McLarnon, a forensic audio-visual
expert, has documented that transcripts in Massachusetts courts are
altered with the knowledge of court personnel. In Indiana, Rebecca
Rohrs has conclusively documented literally thousands of alterations in
hearing transcripts in a child custody case. "This is criminal
misconduct," attorney Eugene Wrona says of similar practices in
Pennsylvania, "and these people belong in jail."

Further, it is notorious that lawyer whistleblowers can all expect to
share Kennedy's fate. Law students are misled like the public, being
told in law school that law is an honorable profession. Not until they
begin practicing do they discover how money really changes hands. Only
after they have invested years in their law school education are they
taught that they must maintain an unwritten code of secrecy. Then they
shut up --- or they are disbarred.

After Kennedy's 15 minutes, Chief Justice Leroy Rountree Hassell, Sr.
told her the time was up. Kennedy announced that there was no need for
her to listen to her opponent's excuses or comment on them. Then she
walked out with some of the 30 supporters who accompanied her including
pastors and lawyers.

The Justices in this case will pronounce a verdict on themselves.

If they order a full investigation and a new trial of Kennedy's
disbarment, then the Justices will have pronounced their innocence.
Otherwise, Regent ought to reconsider whom they allow to preach to our
youth.

Ed Truncellito, JD
Director of Development
Defending Holy Matrimony
http://www.DefendingHolyMatrimony.org
pursuejustice@CatholicExchange.com

__________________________________
Do you Yahoo!?
Yahoo! Mail - 250MB free storage. Do more. Manage less.
http://info.mail.yahoo.com/mail_250

But we are not free to stray into the spirit of the law..

2007-03-23T23:35:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0521-05

EX PARTE JAMES S. MASONHEIMER, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

AND STATE'S CROSS-PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Cochran, J., filed a dissenting opinion.

O P I N I O N

I most respectfully dissent.

Although I agree that this particular scenario might fit snugly within the spirit of Oregon v. Kennedy, (1) it does not fit within the letter of that law. But we are not free to stray into the spirit of the law. We are bound to follow the letter of the Supreme Court's law on federal constitutional matters until and unless that court reassesses or refines its position on double jeopardy as set out in Kennedy. The holding in Kennedy is crystal clear: double jeopardy bars a retrial only if the prosecutor commits manifestly improper conduct with the intent to goad the defendant into moving for a mistrial. (2) This case, however, involves a prosecutor who, it is asserted, intends to "win at any price" before a first jury, not one who intends to "get rid of this jury" so that he would have a better chance to win before a second one. The result is the same-the defendant loses his right to a fair trial before his chosen jury-but the prosecutor's "foul" intent is different, and, under Kennedy, that distinction is crucial for double-jeopardy purposes.

Some state courts, finding the reasoning and result in Kennedy unsatisfactory, have chosen to interpret their own state constitutions more broadly than the Supreme Court did in Kennedy to reach what they consider a more desirable result. (3) For ten years Texas did as well. (4) We have only recently returned to the federal double-jeopardy fold and its "bright line" Kennedy standard. (5)

One of the problems with deciding cases on independent state constitutional grounds is that the Supreme Court is not given the opportunity to reassess and refine the federal constitutional standard when state courts, dissatisfied with a purportedly parsimonious federal standard, create a different rule under their own constitutions. Kennedy was decided twenty-five years ago. The Supreme Court is not averse to reassessing its prior precedent when appropriate, (6) and this case (or another like it) might provide a suitable opportunity to consider a refinement of its "bright-line" rule in Kennedy. But until the Supreme Court does so, I cannot conclude that federal double-jeopardy principles bar yet another trial in this case.

I.

The trial judge in this pretrial habeas corpus proceeding (7) found that the prosecution had "recklessly" (8) failed to disclose three crucial items of exculpatory evidence in violation of Brady v. Maryland: (9)

1. Immediately after the shooting, Mr. Masonheimer told a neighbor, Mr. Marshall, that he had shot "Bo" Sanchez, his daughter Lucy's former boyfriend because Sanchez had threatened Lucy, and "it was either him or her." (10)

2. Billy Williams, Lucy's former husband, told investigators that Lucy had called him the night before the shooting to tell him about Sanchez's dangerous and threatening behavior. Lucy "broke down," and said that she thought Sanchez had put dirt in the gas tank of her car. Billy told her to go to the police and get a restraining order. (11)

3. While cleaning up Sanchez's garage apartment behind Lucy's home, John Upchurch, one of Sanchez's friends, found several syringes and vials hidden inside an antique Coke machine. Trish Duque, a registered nurse, was helping Mr. Upchurch in the clean-up, and she said the vials contained steroids. (12)

The lead prosecutor's repeated failure to turn over exculpatory material (material which he must have known was crucial because the defense attorney had, before trial, clearly explained his self-defense and defense-of-daughter theory on the record), coupled with his deliberate attempt to prevent Mr. Marshall from testifying about Mr. Masonheimer's spontaneous statement immediately after the shooting, (13) are objective facts that support the habeas judge's factual finding that the lead prosecutor was, at a minimum, "reckless."

I agree with the majority that these objective facts support a finding that the lead prosecutor acted "with the specific intent to avoid the possibility of an acquittal." (14) His conduct of intentionally depriving the defense of obviously exculpatory evidence during the first trial was "manifestly improper." But these facts and circumstances do not demonstrate that the lead prosecutor was motivated by a desire to "goad" the defense into requesting a mistrial. Instead, it is a fair conclusion that he was acting with the intent to "win at any price" a trial that, had he turned over the Brady material, he likely would have lost. These objective facts support the defense attorney's position at the habeas hearing that the lead prosecutor "got caught," not once, not twice, but three separate times in deliberately failing to turn over exculpatory evidence to the defense. This repeated misconduct led to two separate mistrials. (15)

II.

The constitutional question is whether the double-jeopardy clause of the United States Constitution bars a retrial if (1) the lead prosecutor intended to "sabotage" the fairness and accuracy of a first trial by hiding exculpatory evidence, and (2) that manifestly improper misconduct required the defendant to request and obtain a mistrial.

At least one state court has suggested that the double-jeopardy principles expressed in Kennedy should bar a retrial when the prosecutor "sabotages" the first trial whether he intends to goad the defendant into requesting a mistrial or whether he simply intends to obtain a conviction by "foul means," but got caught at it. (16)

The double-jeopardy clause "'affords a criminal defendant a valued right to have his trial completed by a particular tribunal.'" (17) But, said the Supreme Court in Kennedy, "[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on [a] defendant's motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." (18) The question that the Supreme Court has not addressed in the twenty-five years since Kennedy is whether there is any degree of intentional prosecutorial "harassment or overreaching" which, though intended to win a trial it would probably otherwise lose, is covered by the mistrial prong of the Double Jeopardy Clause. If successful "goading" into a mistrial results in a bar against retrial, why not unsuccessful "sabotage" which results in a mistrial? It would seem that in both instances the prosecutor intended to subvert the protections afforded by the Double Jeopardy Clause: a reasonably fair trial before the chosen factfinder.

It seems to me that this extension is no less of a "bright-line" rule than that set out in Kennedy. Both would require the trial judge to find that the prosecutor's conduct was manifestly improper-committed with specific "foul" intent (19) to avert an otherwise likely acquittal from the chosen factfinder. (20) The difference is only between a "goading" or a "sabotaging" intent. It seems to me that the issue in Kennedy concerned the brightness of the "bright-line" rule concerning the prosecutor's "foul" intent, not whether that intent was specifically directed toward making the defendant request a mistrial or toward "winning at any price" including intentional sabotage. (21)

There might not be a constitutionally meaningful distinction between intentionally "goading" the defendant into requesting a mistrial and intentionally "sabotaging" the defendant's right to a fair trial by prosecutorial foul play when either results in a mistrial granted for "manifest necessity." But only the United States Supreme Court can answer that question.

Filed: March 21, 2007

Publish

1. 456 U.S. 667 (1982).

2.
Id. at 676, 679.

3.
See, e.g., People v. Batts, 68 P.3d 357, 665-66 (Cal. 2003) (holding that the double jeopardy clause of the California Constitution bars retrial following the grant of a defense-requested mistrial when the prosecution either intentionally goaded the defendant into requesting a mistrial or intentionally committed misconduct believing that the defendant would otherwise be acquitted); Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984); State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999); State v. Breit, 930 P.2d 792, 803-04 (N.M. 1996); State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983); Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).

4.
See Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996) (interpreting the Texas constitutional double jeopardy standard more broadly than the corresponding federal provision to include "reckless" misconduct and holding that retrial would be barred "when the prosecutor was aware of but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request").

5.
Ex parte Lewis, ___ S.W.3d ___, No. PD-0577-05, 2007 Tex. Crim. App. LEXIS 33 (Tex. Crim. App., January 10, 2007).

6.
See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (reconsidering its holding in Stanford v. Kentucky, 492 U.S. 361 (1989), and holding that the Eighth and Fourteenth Amendments bar execution of those under 18 when they committed a capital offense); Atkins v. Virginia, 536 U.S. 304 (2002) (reassessing its decision in Penry v. Lynaugh, 492 U.S. 302 (1989), and holding that the Eighth and Fourteenth Amendments bar execution of those who are mentally retarded); Lawrence v. Texas, 539 U.S. 558 (2003) (reconsidering its holding in Bowers v. Hardwick, 478 U.S. 186 (1986), and holding that the Fifth and Fourteenth Amendments protect private adult consensual sexual relations between members of the same sex from criminalization).

7. The judge presiding over the habeas hearing was not the same judge who had presided over the original trial and mistrial, but he did preside over the second trial and mistrial.

8. Because the trial judge was following the then-current Texas constitutional standard set out in
Bauder, he did not make specific findings on whether the prosecution team acted "intentionally" under Kennedy. Although the objective facts in this record support the majority's conclusion that the first prosecutor acted intentionally, I would have remanded the case for further factual findings on this issue.

9. 373 U.S. 83 (1963).

10. Mr. Marshall gave a written statement to the police with his version of Mr. Masonheimer's statement. This written statement was not given to the defense and the record from the first trial shows that the lead prosecutor deliberately cut Mr. Marshall off when he tried to testify to Mr. Masonheimer's exculpatory explanation.

11. Despite the judge's pretrial order to turn over all
Brady material, his order during trial when he discovered that Mr. Marshall's exculpatory statement had not been turned over, and his order to re-examine the entire file for any other possible Brady material, the prosecution team did not give Billy Williams's written statement to the defense until confronted at a pretrial hearing shortly before the second trial.

12. The defense attorney established that the lead prosecutor and his investigator had interviewed Mr. Upchurch some two months before the first trial. Mr. Upchurch told them of his discovery. Both the prosecutor and investigator took "copious" notes during this interview. They then called Trish Duque to confirm the discovery of the vials and her belief that they contained steroids. This information, though corroborating the defense theory that Sanchez had recently become violent and aggressive because of his steroid use, was not given to the defense until the middle of the second trial. Despite numerous
Brady requests, orders, and admonitions from two trial judges, the State inexplicably failed to produce three obviously exculpatory items of evidence. Even more ominous, the defense suggests that there may be more unproduced exculpatory materials: the prosecution's investigator testified at the habeas hearing that Police Chief Bob Jones took pictures inside Sanchez's apartment, but those photographs have mysteriously disappeared.

13. The lead prosecutor specifically asked Mr. Marshall what Mr. Masonheimer told him immediately after the shooting. Mr. Marshall responded, "Yes, sir. I asked him if he did it. He said yes. He said that he had threatened-" At that point, the prosecutor interrupted with another question instead of allowing Mr. Marshall to complete his sentence. Mr. Marshall's written statement shows that Mr. Masonheimer told him that Sanchez had threatened his daughter. "It was either him or her."

14. Majority slip op. at 19.

15. The first mistrial was actually declared after a death in the second prosecutor's family, but it was indirectly caused by the lead prosecutor's misconduct. The lead prosecutor's failure to turn over Mr. Marshall's statement caused the defense to request a mistrial. The trial judge declined to immediately grant a mistrial and instead granted a continuance to decide whether the trial could later proceed before the same jury if all exculpatory evidence were properly produced in the interim. As is now known, the additional exculpatory material was not produced. But before the trial judge could make any final decision about the mistrial requested for the
Brady violation, the death of the second prosecutor's family member necessitated a mistrial.

16.
See West v. State, 451 A.2d 1228, 1235 (Md. Ct. Spec. App. 1982) (stating that Oregon v. Kennedy would bar retrial if the prosecutor committed misconduct "knowing it to be error, but desiring to 'sabotage' a probable loser either 1) by snatching an unexpected victory from probable defeat if not caught, or 2) by getting caught, thereby provoking the mistrial, averting the probable acquittal and living to fight again another day. (A calculated sabotaging of a perceived 'lost cause' in either event; an indifference to whether he is caught or not.)").

17.
Kennedy, 456 U.S. at 671-72 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).

18.
Id. at 675.

19. As poetically put by Chief Judge Gilbert of the Maryland Court of Special Appeals, this is

the specific intent to commit a foul, the deliberate "hitting below the belt" or the calculated "personal foul" performed with the thought in mind that the foul might well be detected for what it is. By borrowing from the game of football for an analogy, we liken that specific intent to force a mistrial to a defensive back's wilful and deliberate interference with the offensive team's down field pass receiver. The defense knows that by performing the illegal act that constitutes the foul, he will probably be caught and his team penalized. Nevertheless, the offender prefers to take the penalty rather than give up the touchdown that most likely would occur were the foul not committed.

Lee v. State, 423 A.2d 267, 269 (Md. Ct. Spec. App. 1980).

20. Although "it hurts the defendant just as much to have prejudicial blasts come from the trumpet of the angel Gabriel,"
United States v. Nettl, 121 F.2d 927, 930 (3d Cir. 1941), the Kennedy double-jeopardy bar applies only when those prejudicial blasts were intended to subvert the defendant's valuable right to have his fate fairly decided by his chosen fact finder. Just as a dog knows the difference between being kicked and being stumbled over, a trial judge must, under Kennedy, determine, from the objective facts and circumstances, whether the prosecutor's misconduct was intentionally "below the belt" or merely negligent.

21.
See Kennedy, 456 U.S. at 675 (stating that a rule "that examines the intent of the prosecutor . . . is a manageable standard to apply").

The Court=s opinion holds that the requirement for preservation of error that is a prerequisite for appeal is not a prerequisite for a motion for new

2007-03-20T02:53:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1954-03

THE STATE OF TEXAS

v.

RONALD HERNDON, Appellee

ON DISCRETIONARY REVIEW OF CASE 13-02-00518-CR

OF THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY

Womack, J., filed a dissenting opinion, in which Keller, P.J., and Meyers, J., joined.

The Court=s opinion holds that the requirement for preservation of error that is a prerequisite for appeal is not a prerequisite for a motion for new trial. Therefore, although there is no preservation issue for the court of appeals to consider on remand, it should consider Athe merits of the trial judge=s ruling,@ three aspects of which are mentioned. (Ante, at 15).

But that=s not what this case is about. Those Amerits@ of the prosecutor=s argument are not why the new trial was granted. As the Court=s opinion clearly says (ante, at 4, quoting the trial court=s ruling), it granted the new trial only Aon the ground that a bench conference was not recorded during the trial.@

The only question before us is whether that was a correct reason to grant a new trial.

It wasn=t, as we held in another case after this trial was over. The trial court had no discretion to be wrong about the law, although his error was understandable since the courts of appeals were in conflict at the time and the court tried to follow the (incorrect) line of decisions of the Ahome@ court of appeals.[1] After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.[2]

I respectfully dissent.

Filed: February 28, 2007

Publish.

[1] See Tanguma v. State, 47 S.W.3d 663 (Tex. App. C Corpus Christi 2000, pet. ref=d) (holding that a court reporter=s failure to record a bench conference during trial was error if the parties had not agreed that such a conference not be recorded, and that a party was not required to object to the failure). After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.

[2] See Valle v. State, 109 S.W.3d 500, 508B09 (Tex. Cr. App. 2003).

that bench conferences that the court reporter failed to transcribe made itimpossible to determine whether prejudicial error occurred......

2007-03-20T01:42:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1954-03

THE STATE OF TEXAS

v.

RONALD HERNDON, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY

Cochran, J., delivered the opinion of the Court, in which Price, Johnson, Keasler, and Holcomb, JJ., joined. Womack, J., filed a dissenting opinion, in which Keller, P.J., and Meyers, J., joined. Hervey, J., concurred in the judgment.

O P I N I O N

A jury convicted Ronald Herndon of driving while intoxicated. Herndon then filed a motion for new trial claiming, in part, that the court reporter failed to record a bench conference in which he objected to the prosecutor's final argument. The trial judge granted Herndon's motion for new trial. The State appealed and the court of appeals reversed. It concluded that the trial court abused its discretion in granting Herndon a new trial on the ground that the court reporter failed to record a bench conference because Herndon had not objected to this failure during the trial. (1) We granted Herndon's petition for discretionary review to decide whether the court of appeals erred in concluding that the trial court had abused its discretion when it granted a new trial on this particular basis. We conclude that the court of appeals erred in holding that Herndon was required to make a timely objection during trial to the court reporter's failure to hand-record the bench conference before the trial court could consider the merits of his motion for new trial. Although Herndon did not preserve error for appeal, he did not appeal. Instead, he filed a motion for new trial in the trial court, and that court granted it. We hold that Texas law does not require a party to preserve error for purposes of appeal as a precondition for the trial court to consider the merits of a motion for new trial. We therefore reverse the court of appeals and remand the case to that court to consider the State's claims concerning the merits of the motion for new trial and whether any error affected Herndon's substantial rights.

I.

At the jury trial on this misdemeanor DWI charge, the State offered evidence of Herndon's guilt through the testimony of two police officers. The defense did not offer any evidence. During its closing argument, the State noted the following:

This Defendant decided what evidence you're going to consider today, but what's on there is pretty incriminating. It shows this Defendant was intoxicated. Also, keep in mind the Defendant admitted to the officer to drinking that night. He admitted that he had been drinking alcohol. And this Defendant didn't present any evidence of who he was drinking with, he didn't-he didn't bring any other witness forward to testify how many drinks he had that night or, you know, what he was doing that night, how long ago-

Defense: Your honor, I'm going to object, comment on the Defendant's failure to testify.

Court: Come forward, please.

(Bench conference not recorded.)

(Following was transcribed from audio cassette.)

State: Your Honor, I'm talking about another witness. He didn't present another witness to his whereabouts that evening.

(Inaudible from tape.)

(Reporter back on record.)

Defense: I'd ask the jury be instructed to disregard.

Court: The jury is instructed not to regard the failure of the Defendant to testify as it was instructed in the Charge.

The jury found Herndon guilty. Herndon later filed a motion for mistrial complaining both of the prosecutor's closing argument and of the court reporter's failure to record the bench conference. The State filed a written response, arguing that (1) its closing argument did not violate Herndon's right against self-incrimination, (2) the mistrial motion was procedurally barred as untimely, (2) (3) Herndon failed to preserve error by continuing to object until there was an adverse ruling, (4) any error is presumed cured by the trial court's instruction to disregard, and (5) Herndon failed to demonstrate reversible error. The trial court denied the motion for mistrial and sentenced Herndon to 90 days in jail probated for twelve months and a $500 fine.

Herndon then filed a motion for new trial, making the same claims that he had made in his motion for mistrial. Specifically, he stated, "The prosecutor's comments, coupled with the reporting protocol justifies the Court granting the Defendant a new trial in the interest of justice." The State filed a second written response making the same arguments that it had made in its response to the motion for mistrial, but also noting that the court reporter had, in fact, made an audio recording of the bench conference. (3) During the hearing on the motion for new trial, the court reporter confirmed that she had not hand-recorded the bench conference. The trial court later granted Herndon's motion for new trial "on the ground that a bench conference was not recorded during the trial." (4) At the time that the trial judge granted Herndon's motion for new trial, he was not permitted to explain the factual basis for his ruling either granting or denying a motion for new trial. (5)

The State appealed, arguing, inter alia, that Herndon had not preserved error. (6) The court of appeals agreed. It explained that "[f]ormer Rule 11(a) of the Texas Rules of Appellate Procedure required a record of proceedings be made only when requested by the trial court or any party to the case." (7) Thus, formerly, an appealing party was required to object to the court reporter's failure to record the proceedings, including bench conferences. The court of appeals stated that this rule was amended and renumbered in 1997 as Rule 13.1(a). The rule now requires that the official court reporter must, "unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings[.]" (8) The court of appeals noted that it had previously interpreted Rule 13.1(a) as "dispens[ing] with the requirement that a defendant had to object to the court reporter's failure to record bench conferences." (9) Under its precedent, "a court reporter's failure to record a bench conference that occurs after the trial proceedings have begun, absent an agreement by the parties to do so, was error." (10) The court of appeals then noted that, more recently, this Court had held that a defendant is still required to object to the court reporter's failure to record bench conferences to preserve error for appeal. (11) Thus, because Herndon had not objected at the time the court reporter failed to hand-record the bench conference, he did not preserve error, and the trial court therefore abused its discretion in granting the motion for new trial. (12)

II.

In State v. Gonzalez, (13) we said, "For more than one hundred and twenty years, our trial judges have had the discretion to grant new trials in the interest of justice." (14) We noted that, as early as 1873, the Texas Supreme Court (which, at that time, had criminal jurisdiction), waxed eloquent on the trial court's discretion to grant a new trial in the interest of justice and had stated,

The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court[s] should never hesitate to use that discretion whenever the ends of justice have not been attained by those verdicts. (15)

Historically, we have consistently held that a trial judge has the authority to grant a new trial "in the interest of justice" and that his decision to grant or deny a defendant's motion for new trial is reviewed only for an abuse of discretion. (16) That discretion is not, however, unbounded or unfettered. A trial judge has discretion to grant or deny a motion for new trial "in the interest of justice," but "justice" means in accordance with the law. (17)

A trial judge does not have authority to grant a new trial unless the first proceeding was not in accordance with the law. He cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or "received a raw deal." The legal grounds for which a trial court must grant a new trial are listed in Rule 21.3, but that list is illustrative, not exclusive. (18) A trial court may grant a motion for new trial on other legal grounds as well. In federal courts, "[a]ny error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial." (19) Even errors that would not inevitably require reversal on appeal may form the basis for the grant of a new trial, if the trial judge concludes that the proceeding has resulted in "a miscarriage of justice." (20) Although not all of the grounds for which a trial court may grant a motion for new trial need be listed in statute or rule, the trial court does not have discretion to grant a new trial unless the defendant shows that he is entitled to one under the law. (21) To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion. (22) As we have explained before, the test for abuse of discretion

"is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse." (23)

While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it should exercise that discretion by balancing a defendant's "interest of justice" claim against both the interests of the public in finality and the harmless-error standards set out in Rule 44.2. (24) Trial courts should not grant a new trial if the defendant's substantial rights were not affected. Otherwise, the phrase "interest of justice" would have no substantive legal content, but constitute a mere platitude covering a multitude of unreviewable rulings.

Federal courts have reviewed government appeals on the granting of new trials for considerably longer than Texas appellate courts have because the State obtained the right to appeal adverse rulings on motions for new trials in Texas state courts only in 1987. (25) Thus, although federal precedent is certainly not controlling in Texas state courts, it may provide helpful guidance in this area. For example, in deciding whether a prosecutor's remarks during closing argument affected a defendant's substantial rights and thus might call for a new trial, federal trial courts consider "(1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instructions; and (3) the strength of the evidence of defendant's guilt." (26) Ordinarily, a trial court should not overturn a criminal conviction on the basis of a prosecutor's closing argument, standing alone, especially when the trial court gives the jury a curative instruction. (27) Further, it is generally held to be harmless error in federal courts when the court reporter fails to fully comply with the requirements to make a verbatim record of all court proceedings. (28)

We need not today set out bright-line rules concerning appellate review of a trial court's discretion in this area, but we do conclude that a trial court would not generally abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim; and (3) showed prejudice to his substantial rights under the standards in Rule 44.2 of the Texas Rules of Appellate Procedure. The defendant need not establish reversible error as a matter of law before the trial court may exercise its discretion in granting a motion for new trial. On the other hand, trial courts do not have the discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws adversely affected his substantial rights to a fair trial.

There is no requirement in Texas law that, before a trial court may grant a motion for new trial, the moving party is required to show that he has timely preserved his claim of error for appeal. The losing party in the trial court must preserve any and all issues that it wishes to appeal. (29) Thus, if the trial court exercises its discretion and grants a motion for new trial, the defendant, as the prevailing party, need not have preserved, during trial, the error that he complained about in that post-trial motion. If the trial judge denies a motion for new trial, however, the defendant, as the losing party, must have preserved that same error before he may claim it as a basis for reversing the trial judge once he moves into the appellate court.

It has been said that "preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion." (30) Preservation of error is an inter-court systemic requirement, it is not an intra-court requirement. Thus, we have held that "there are times when, 'as justice requires' or 'in the interest of justice,' an appellate court may consider a supplemental brief or a motion for rehearing to decide an issue not presented in the original briefs," such as an issue of error preservation. (31) Thus, both trial and appellate courts have the authority to exercise discretion and consider claims and arguments that were not timely made in that particular court as long as they are made while the parties are still in that particular court and the court otherwise has jurisdiction to hear them.

In sum, a trial judge may, but need not, grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant's substantial rights. With this background, we turn to the present case.

III.

In his motion for new trial, Herndon stated that the combination of an asserted improper argument by the prosecutor (32) and the failure of the court reporter to transcribe the bench conference-at which he objected that the prosecutor's argument commented on his right not to testify-would justify the trial court's grant of a new trial "in the interest of justice." The trial court granted the motion for new trial on the basis that the court reporter failed to stenographically transcribe the bench conference. The result of that bench conference is, however, obvious: the trial court sustained Herndon's objection and instructed the jury to disregard the prosecutor's statement.

At the time Herndon presented his motion for new trial, the Thirteenth Court of Appeals-the court of appeals for Nueces County where this case was tried-had held that "it is error for a court reporter to fail to record a bench conference that occurs after the trial proceedings have begun without the explicit agreement of the parties." (33) The court of appeals in Tanguma had stated, "The change in the rule merely eliminates a procedural burden on a defendant to initially request the presence of a court reporter." (34) It explicitly held that a defendant had no duty to object to the court reporter's failure to transcribe bench conferences. (35) Thus, at the time the trial court granted Herndon's motion for new trial, the controlling precedent in the jurisdiction in which the case was tried was that a defendant need not object to a court reporter's failure to transcribe a bench conference to preserve an issue for appeal. It was almost a full year later before this Court first addressed the subject and held, in Valle v. State, (36) that a defendant must still object to a court reporter's failure to record bench conferences to preserve error on appeal. (37)

But Herndon did not need to preserve any error for appeal because he was the prevailing party in the trial court. The trial court granted his motion for new trial. Neither the State nor the court of appeals have cited a single case from any jurisdiction which has held that a trial court does not have the discretion to grant a new trial unless the moving party had timely preserved his claim of trial error for purposes of appeal. Nothing in the Rules of Appellate Procedure or any Texas statute requires, as a predicate to the trial court's authority to exercise its discretion to grant a motion for new trial, a defendant to have preserved the error during trial that he asserts in his post-trial motion for new trial. One purpose of raising complaints in the trial court as a predicate to presenting those complaints on appeal is to protect the trial judge from being "sandbagged" on appeal. (38) Here, the trial judge obviously was not "sandbagged" on appeal because Herndon presented the purported errors to him, and he granted Herndon's motion for new trial. Although the trial judge certainly could have denied the motion for new trial because Herndon failed to timely object to the court reporter's failure to record the bench conference during the prosecutor's closing argument, (39) he did not. The court of appeals erred in concluding that the trial judge abused his discretion in granting the motion for new trial on the basis that Herndon failed to timely object to the court reporter's failure to record the bench conference.

However, the State also made numerous arguments, both in the trial court and on appeal, concerning (1) the propriety of the prosecutor's argument, (2) the fact that the trial court sustained the defense objection and instructed the jury to disregard the prosecutor's argument, and (3) the failure of Herndon to demonstrate harm either from the court reporter's failure to stenographically record the bench conference or from the prosecutor's argument. The court of appeals has not yet considered the arguments dealing with the merits of the trial judge's ruling rather than the preservation of error. Thus, we vacate the judgment of the court of appeals and remand the case to that court to address the State's remaining issues.

Delivered: February 28, 2007

Publish

1.
State v. Herndon, 115 S.W.3d 231 (Tex. App. - Corpus Christi 2003).

2. There was a three-month interval between the time the jury returned its guilty verdict and the date of sentencing. The written motion for mistrial was filed in the interim.

3. Although the court reporter had made an audio recording of the bench conference, most of that recording was inaudible.

4. Although not mentioned by the parties or the court of appeals, the general rule is that a trial court's ruling will be upheld if it is correct on any applicable legal theory, even if the court articulated an invalid basis. This is the "right ruling, wrong reason" doctrine.
See, e.g., Helvering v. Gowran, 302 U.S. 238, 245 (1937) ("In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason."); Arnott v. State, 498 S.W.2d 166, 179 (Tex. Crim. App. 1973) ("Even if a trial judge relies upon a wrong ground or gives the wrong reason for a ruling, this Court is not bound to limit its consideration to such a reason if the decision below is correct."). Cf. Cooper v. State, 933 S.W.2d 495, 497 (Tex. Crim. App. 1996 )("when a trial court's ruling on the admission of evidence is correct, although for a wrong or insufficient reason, this Court will not reverse if the evidence is admissible for any reason").

5. Tex. R. App. P. 21.8(b) ("In ruling on the motion for new trial, the court must not summarize, discuss, or comment on evidence.");
see Charles v. State, 146 S.W.3d 204, 211 (Tex. Crim. App. 2004) ("In Texas, the trial judge is explicitly prohibited by Rule 21.8(b) from making any comment on the evidence in ruling on a motion for new trial. This prohibition has been a part of Texas statutory law since at least 1880. Thus, appellate courts must defer to any reasonable implied factual findings that the trial court might have made in denying a motion for new trial.") (citing and quoting Rains v. State, 7 Tex. App. 588, 590 (1880) (noting that then article 782 of the Code of Criminal Procedure stated that "in granting or refusing a new trial the judge shall not sum up, discuss, or comment upon the evidence in the case, but shall simply grant or refuse the motion without prejudice to either the State or the defendant")); George v. State, 20 S.W.3d 130, 141 (Tex. App. - Houston [14th Dist.] 2000, pet. ref'd) ("When a judge summarizes, discusses, or comments on evidence in ruling on a motion for new trial, we will decline to consider those remarks in deciding whether the court abused its discretion in ruling on the merits of the motion.").

Rule 21.8(b) was amended, effective January 1, 2007, to read: "In ruling on a motion for new trial, the court may make oral or written findings of fact." 70 Tex. B. J. 80, 80 (January 2007). Henceforth, a trial judge may summarize the evidence or explain the basis for granting or denying a motion for new trial, but this is a rule that we cannot apply to a hearing that occurred before its enactment.

6. The State's other arguments on appeal included:

* "The State did not violate [Herndon's] right against self-incrimination";

* "Any error was presumed cured by jury instructions";

* Herndon "did not meet his burden on this motion."

7.
Herndon, 115 S.W.3d at 234.

8. Tex. R. App. P. 13.1(a).

9.
Herndon, 115 S.W.3d at 234 (citing Tanguma v. State, 47 S.W.3d 663, 674 (Tex. App.-Corpus Christi 2001, pet. ref'd)).

10.
Id.

11.
Id. (citing Valle v. State, 109 S.W.3d 500, 508-09 (Tex. Crim. App. 2003)).

12.
Id. at 234-35.

13. 855 S.W.2d 692 (Tex. Crim. App. 1993) (plurality op.).

14.
Id. at 694.

15.
Id. (quoting Mullins v. State, 37 Tex. 337, 339-40 (1873)).

16.
See, e.g., Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) ("An appellate court reviews a trial court's denial of a motion for new trial under an abuse of discretion standard. We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling.") (footnote omitted); Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (in reviewing the denial of a motion for new trial, "[w]e must view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling.") (footnote omitted); State v. Gonzalez, 855 S.W.2d at 695 ("An appellate court should not fault a trial judge for granting a motion for new trial when the State fails to provide an appellate record establishing an abuse of discretion.").

17. Justice is defined as the "proper administration of laws. In Jurisprudence, the constant and perpetual disposition of legal matters or disputes to render every man his due." Black's Law Dictionary 776 (5
th ed. 1979). A "miscarriage of justice" is defined as a "Decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial rights of party." Id. at 901.

18.
State v. Evans, 843 S.W.2d 576, 578-79 (Tex. Crim. App. 1992) (list of grounds for which trial court "shall" grant a new trial set out in Rule 30(b) [now Rule 21.3] "is illustrative, not exhaustive"); see also Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993) (re-affirming Evans and concluding that a new trial may be granted when a defendant establishes ineffective assistance of trial counsel even though that ground is not listed in appellate rules).

19. 3 Charles Alan Wright, Nancy J. King, Susan R. Klein, Federal Practice and Procedure: Criminal 3d §556, at 530 (2004).

20.
Id. § 551 at 456.

21.
See, e.,g., State v. Hight, 907 S.W.2d 845, 847 (Tex. Crim. App. 1995) (trial court cannot grant a new trial as to the punishment phase of a trial only; trial court erred in attempting to legislate "public policy" rather than interpret the law as required by Art. 2, Sec. 1 of the Texas Constitution).

22. On the other hand, the Fifth Circuit, at least, has stated that "a
specific legal error is not always required to grant a motion for new trial in the interest of justice." United States v. Scroggins, 379 F.3d 233, 253, 256-57 (5th Cir. 2004) (emphasis added) (concluding that trial court has authority to grant a motion for new trial even "absent legal error," but only if failure to do so would likely result in "manifest injustice" or that evidence would "'preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'"), cert. granted and judgment vacated on other grounds, 543 U.S. 1112 (2005).

23.
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005) (quoting Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App. 1994)).

24.
See Wright & King, supra, § 551, at 458; see also United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988) (the interest of justice standard "requires the district court to balance the alleged errors against the record as a whole and evaluate the fairness of the trial").

25.
See State v. Savage, 933 S.W.2d 497, 500 (Tex. Crim. App. 1996) (Clinton, J., dissenting) (noting that State obtained the right to appeal as authorized by law when Texas Constitution was amended in 1987).

26.
United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004).

27.
United States v. Carter, 236 F.3d 777, 787 (6th Cir. 2001).

28.
United States v. Haber, 251 F.3d 881, 889-90 (10th Cir. 2001) (when defendant did not contend that bench conferences that the court reporter failed to transcribe made it impossible to determine whether prejudicial error occurred and did not allege that he suffered any specific prejudice with respect to the omissions, he was not entitled to a new trial); Strauss v. United States, 311 F.2d 926, 933 (5th Cir. 1963) (no reversible error shown when court reporter failed to record bench conferences; "To permit an appellant simply to claim error for failure to record under the [Court Reporter] Act, without more, would eliminate the necessity of a showing of prejudice because of the error. The error may well have been harmless when considered in the light of the facts which were reported."); United States v. Knox, 456 F.2d 1024, 1025 (8th Cir. 1972) (reversible error shown where entire trial transcript was unavailable; "An actual transcript would be essential to proper review by this court of the proceedings which culminated in the conviction here challenged. Such a transcript is not available; therefore, we believe that in the interests of justice the cause should be remanded to the district court for another trial."); Parrott v. United States, 314 F.2d 46, 47 (10th Cir. 1963) (reversible error shown where voir dire not recorded; "The government does not deny that in the voir dire the trial judge mentioned the other bank robbery cases pending in the same court against the defendant but argues that the error was harmless. The unavailability of a full transcript because of the undisputed failure of the court reporter to comply with the statute makes it impossible for us to determine whether the errors were harmless and should be disregarded[.]").

29.
See Tex. R. App. P. 33.1; see also Reyna v. State, 168 S.W.3d 173, 175 (Tex. Crim. App. 2005) ("The basis for party responsibility is, among other things, Appellate Rule 33.1. It provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party 'stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint'"); Martinez v. State, 91 S.W.3d 331, 335 (Tex. Crim. App. 2002). As we noted in Martinez, "both Rule 33.1 and Texas Rule of Evidence 103 are 'judge-protecting' rules of error preservation. The basic principle of both rules is that of 'party responsibility.'" Id. We explained that "the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question." Id. at 335-36. The issue, "is not whether the appealing party is the State or the defendant or whether the trial court's ruling is legally 'correct' in every sense, but whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal." Id. at 336.

30.
Alonzo v. State, 158 S.W.3d 515, 516 (Tex. Crim. App. 2005) (Keller, P.J., dissenting to dismissal of the State's petition for discretionary review).

31.
Hughes v. State, 878 S.W.2d 142, 151 (Tex. Crim. App. 1992) (op. on reh'g) (error preservation is a "systemic requirement" that appellate courts should address even when not raised by the parties on appeal or when raised for the first time in a motion for rehearing).

32. We express no opinion on whether the prosecutor's argument did, in fact, comment on Herndon's right not to testify as the parties have not briefed that issue before this Court.

33.
Tanguma v. State, 47 S.W.3d 663, 674 (Tex. App. - Corpus Christi 2001, pet ref'd).

34.
Id. at 671.

35.
Id. at 674 ("We further hold that, under these circumstances, appellant's failure to object to the court reporter's failure to record the conference has not waived the issue for appeal.").

36. 109 S.W.3d 500 (Tex. Crim. App. 2003).

37.
Id. at 508-09. This Court explicitly stated in Valle,

The record does not reflect that appellant made an objection to the court reporter's failure to record the bench conferences nor does appellant allege he made such an objection at trial. Therefore, appellant has failed to preserve his complaint for appeal.

Id. at 509 (emphasis added).

38.
See Black v. State, 723 S.W.2d 674, 676 (Tex. Crim. App. 1986) (Onion, P.J., dissenting) (arguing that appellant's "woefully deficient" objection at trial "sandbagged" the trial judge on appeal).

39. Although a timely trial objection is not a mandatory prerequisite to the consideration of a legal claim in a motion for new trial, a trial judge may, in the exercise of his discretion, deny a motion for new trial on this basis because the primary purpose in requiring timely objections is to permit the trial judge to immediately rectify any potential problems and ensure that the original trial moves forward unhampered by any error in its proceedings.
See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (stating that "objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite.").

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2006-12-26T02:17:00.000-08:00

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SECTION 10. Section 65.054(b), Election Code, is amended to

2006-12-23T01:24:00.000-08:00

80R340 JRJ-D

By: Riddle H.B. No. 101

A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the procedures for registering to vote and accepting a
1-3 voter at a polling place.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 13.002, Election Code, is amended by
1-6 amending Subsection (c) and adding Subsection (e) to read as
1-7 follows:
1-8 (c) A registration application must include:
1-9 (1) the applicant's first name, middle name, if any,
1-10 last name, and former name, if any;
1-11 (2) the month, day, and year of the applicant's birth;
1-12 (3) a statement that the applicant is a United States
1-13 citizen;
1-14 (4) a statement that the applicant is a resident of the
1-15 county;
1-16 (5) a statement that the applicant has not been
1-17 determined mentally incompetent by a final judgment of a court;
1-18 (6) a statement that the applicant has not been
1-19 finally convicted of a felony or that the applicant is a felon
1-20 eligible for registration under Section 13.001;
1-21 (7) the applicant's residence address or, if the
1-22 residence has no address, the address at which the applicant
1-23 receives mail and a concise description of the location of the
1-24 applicant's residence;
2-1 (8) the following information:
2-2 (A) the applicant's Texas driver's license number
2-3 or the number of a personal identification card issued by the
2-4 Department of Public Safety or a statement by the applicant that the
2-5 applicant has not been issued a driver's license or personal
2-6 identification card; or
2-7 (B) if the applicant has not been issued a number
2-8 described by Paragraph (A), the last four digits of the applicant's
2-9 social security number or a statement by the applicant that the
2-10 applicant has not been issued a social security number;
2-11 (9) if the application is made by an agent, a statement
2-12 of the agent's relationship to the applicant; [and]
2-13 (10) the city and county in which the applicant
2-14 formerly resided; and
2-15 (11) a copy of a document providing proof that the
2-16 applicant is a United States citizen.
2-17 (e) The following documentation is acceptable as proof of
2-18 citizenship under Subsection (c)(11):
2-19 (1) a birth certificate or other document confirming
2-20 birth that is admissible in a court of law;
2-21 (2) United States citizenship papers issued to the
2-22 applicant; or
2-23 (3) an unexpired United States passport issued to the
2-24 applicant.
2-25 SECTION 2. Section 13.121(a), Election Code, is amended to
2-26 read as follows:
2-27 (a) The officially prescribed application form for
3-1 registration by mail must be in the form of [a] business reply mail
3-2 [postcard], unless another form or system is used under Subsection
3-3 (b), with postage paid by the state. The secretary of state shall
3-4 design the form to enhance the legibility of its contents.
3-5 SECTION 3. Section 63.001, Election Code, is amended by
3-6 amending Subsections (b), (c), (d), and (f) and adding Subsection
3-7 (g) to read as follows:
3-8 (b) On offering to vote, a voter must present to an election
3-9 officer at the polling place the voter's voter registration
3-10 certificate and either:
3-11 (1) one form of identification listed in Section
3-12 63.0101(a); or
3-13 (2) two different forms of identification listed in
3-14 Section 63.0101(b) [to an election officer at the polling place].
3-15 (c) On presentation of the documentation required by
3-16 Subsection (b) [a registration certificate], an election officer
3-17 shall determine whether the voter's name on the registration
3-18 certificate is on the list of registered voters for the precinct.
3-19 (d) If the voter's name is on the precinct list of
3-20 registered voters and the voter's identity can be verified from the
3-21 proof presented, the voter shall be accepted for voting.
3-22 (f) After determining whether to accept a voter, an election
3-23 officer shall return the voter's documentation [registration
3-24 certificate] to the voter.
3-25 (g) If the requirements for identification prescribed by
3-26 Subsection (b)(1) or (2) are not met, the voter shall be accepted
3-27 for provisional voting only under Section 63.011.
4-1 SECTION 4. Chapter 63, Election Code, is amended by adding
4-2 Section 63.0012 to read as follows:
4-3 Sec. 63.0012. USE OF ADDRESS ON IDENTIFICATION. (a) This
4-4 section applies only to a voter who:
4-5 (1) presents a registration certificate;
4-6 (2) is on the list of registered voters for the
4-7 precinct; and
4-8 (3) confirms that the address on the list of
4-9 registered voters is current under Section 63.0011.
4-10 (b) In verifying the identity of a voter described by
4-11 Subsection (a) under Section 63.001, an election officer may not
4-12 consider whether the voter's address on a form described by Section
4-13 63.001(b)(1) or (2) matches the voter's address on the registration
4-14 certificate or the list of registered voters.
4-15 SECTION 5. Section 63.006(a), Election Code, is amended to
4-16 read as follows:
4-17 (a) A voter who, when offering to vote, presents a voter
4-18 registration certificate indicating that the voter is currently
4-19 registered in the precinct in which the voter is offering to vote,
4-20 but whose name is not on the precinct list of registered voters,
4-21 shall be accepted for voting if the voter's identity can be verified
4-22 from the proof presented.
4-23 SECTION 6. Section 63.007(a), Election Code, is amended to
4-24 read as follows:
4-25 (a) A voter who, when offering to vote, presents a voter
4-26 registration certificate indicating that the voter is currently
4-27 registered in a different precinct from the one in which the voter
5-1 is offering to vote, and whose name is not on the precinct list of
5-2 registered voters, shall be accepted for voting if the voter's
5-3 identity can be verified from the proof presented and the voter
5-4 executes an affidavit stating that the voter:
5-5 (1) is a resident of the precinct in which the voter is
5-6 offering to vote or is otherwise entitled by law to vote in that
5-7 precinct;
5-8 (2) was a resident of the precinct in which the voter
5-9 is offering to vote at the time that information on the voter's
5-10 residence address was last provided to the voter registrar;
5-11 (3) did not deliberately provide false information to
5-12 secure registration in a precinct in which the voter does not
5-13 reside; and
5-14 (4) is voting only once in the election.
5-15 SECTION 7. Section 63.008(a), Election Code, is amended to
5-16 read as follows:
5-17 (a) A voter who does not present a voter registration
5-18 certificate when offering to vote, but whose name is on the list of
5-19 registered voters for the precinct in which the voter is offering to
5-20 vote, shall be accepted for voting if the voter executes an
5-21 affidavit stating that the voter does not have the voter's voter
5-22 registration certificate in the voter's possession at the polling
5-23 place at the time of offering to vote and the voter's identity can
5-24 be verified from the proof presented [voter presents proof of
5-25 identification in a form described by Section 63.0101].
5-26 SECTION 8. Section 63.0101, Election Code, is amended to
5-27 read as follows:
6-1 Sec. 63.0101. DOCUMENTATION OF PROOF OF IDENTIFICATION.
6-2 (a) The following documentation is an acceptable form [as proof] of
6-3 photo identification under this chapter:
6-4 (1) a driver's license or personal identification card
6-5 issued to the person by the Department of Public Safety or the
6-6 equivalent agency of another state that has not expired or that
6-7 expired no earlier than two years before the date of presentation
6-8 [or a similar document issued to the person by an agency of another
6-9 state, regardless of whether the license or card has expired];
6-10 (2) a United States military identification card that
6-11 contains the person's photograph [form of identification
6-12 containing the person's photograph that establishes the person's
6-13 identity];
6-14 (3) a valid employee identification card that contains
6-15 the person's photograph and is issued by an employer of the person
6-16 in the ordinary course of the employer's business [birth
6-17 certificate or other document confirming birth that is admissible
6-18 in a court of law and establishes the person's identity];
6-19 (4) a United States citizenship certificate [papers]
6-20 issued to the person that contains the person's photograph;
6-21 (5) a United States passport issued to the person;
6-22 (6) a student identification card issued by a public
6-23 or private institution of higher education that contains the
6-24 person's photograph [official mail addressed to the person by name
6-25 from a governmental entity];
6-26 (7) a license to carry a concealed handgun issued to
6-27 the person by the Department of Public Safety;
7-1 (8) an identification card issued by a state agency of
7-2 this state that contains the person's photograph; or
7-3 (9) an identification card that contains the person's
7-4 photograph and is issued by a county elections administrator or a
7-5 county clerk.
7-6 (b) The following documentation is acceptable as proof of
7-7 identification under this chapter:
7-8 (1) a copy of a current utility bill, bank statement,
7-9 government check, paycheck, or other government document that shows
7-10 the name and address of the voter;
7-11 (2) official mail addressed to the person by name from
7-12 a governmental entity;
7-13 (3) a certified copy of a birth certificate or other
7-14 document confirming birth that is admissible in a court of law and
7-15 establishes the person's identity;
7-16 (4) United States citizenship papers issued to the
7-17 person;
7-18 (5) an original or certified copy of the person's
7-19 marriage license or divorce decree;
7-20 (6) court records of the person's adoption, name
7-21 change, or sex change;
7-22 (7) an identification card issued to the person by a
7-23 governmental entity of this state or the United States for the
7-24 purpose of obtaining public benefits, including veteran's
7-25 benefits, Medicaid, or Medicare;
7-26 (8) a temporary driving permit issued to the person by
7-27 the Department of Public Safety;
8-1 (9) a pilot's license issued to the person by the
8-2 Federal Aviation Administration or another authorized agency of the
8-3 United States;
8-4 (10) a library card that contains the person's name
8-5 issued to the person by a public library located in this state; or
8-6 (11) a hunting or fishing license issued to a person by
8-7 the Parks and Wildlife Department [or
8-8 [(8) any other form of identification prescribed by
8-9 the secretary of state].
8-10 (c) The commissioners court of a county may authorize the
8-11 county elections administrator or the county clerk, as applicable,
8-12 to issue photo identification cards that may be used as proof of a
8-13 voter's identification under Subsection (a).
8-14 SECTION 9. Sections 63.011(a) and (b), Election Code, are
8-15 amended to read as follows:
8-16 (a) A person to whom Section 63.001(g), 63.008(b), or
8-17 63.009(a) applies may cast a provisional ballot if the person
8-18 executes an affidavit stating that the person:
8-19 (1) is a registered voter in the precinct in which the
8-20 person seeks to vote; and
8-21 (2) is eligible to vote in the election.
8-22 (b) A form for the affidavit shall be printed on an envelope
8-23 in which the provisional ballot voted by the person may be placed
8-24 and must include a space for entering the identification number of
8-25 the provisional ballot voted by the person and a space for an
8-26 election officer to indicate whether the person presented proof of
8-27 identification as required by Section 63.001(b)(1) or (2). The
9-1 affidavit form may include space for disclosure of any necessary
9-2 information to enable the person to register to vote under Chapter
9-3 13. The secretary of state shall prescribe the form of the
9-4 affidavit under this section.
9-5 SECTION 10. Section 65.054(b), Election Code, is amended to
9-6 read as follows:
9-7 (b) A provisional ballot may be accepted only if:
9-8 (1) the board determines that, from the information in
9-9 the affidavit or contained in public records, the person is
9-10 eligible to vote in the election; and
9-11 (2) the voter presents proof of identification as
9-12 required by Section 63.001(b)(1) or (2):
9-13 (A) at the time the ballot was cast; or
9-14 (B) in the period prescribed under Section
9-15 65.0541.
9-16 SECTION 11. Subchapter B, Chapter 65, Election Code, is
9-17 amended by adding Section 65.0541 to read as follows:
9-18 Sec. 65.0541. PRESENTATION OF IDENTIFICATION FOR CERTAIN
9-19 PROVISIONAL BALLOTS. (a) A voter who is accepted for provisional
9-20 voting under Section 63.011 because the voter does not present
9-21 proof of identification as required by Section 63.001(b)(1) or (2)
9-22 may submit proof of identification to the voter registrar by
9-23 personal delivery or by mail for examination by the early voting
9-24 ballot board not later than the fifth day after the date of the
9-25 election.
9-26 (b) The early voting ballot board shall accept a provisional
9-27 ballot under Section 65.054 if the voter:
10-1 (1) presents proof of identification in the manner
10-2 required by this section; and
10-3 (2) is otherwise eligible to vote in the election.
10-4 (c) The office of the voter registrar shall be open on a
10-5 Saturday that falls within the five-day period described by
10-6 Subsection (a) for a voter to present identification as provided
10-7 under this section.
10-8 (d) The secretary of state shall prescribe procedures as
10-9 necessary to implement this section.
10-10 SECTION 12. Section 521.422, Transportation Code, is
10-11 amended by amending Subsection (a) and adding Subsection (d) to
10-12 read as follows:
10-13 (a) Except as provided by Subsection (d), the [The] fee for
10-14 a personal identification certificate is:
10-15 (1) $15 for a person under 60 years of age;
10-16 (2) $5 for a person 60 years of age or older; and
10-17 (3) $20 for a person subject to the registration
10-18 requirements under Chapter 62, Code of Criminal Procedure.
10-19 (d) The department may not collect a fee for a personal
10-20 identification certificate issued to a person who executes an
10-21 affidavit stating that the person is financially unable to pay the
10-22 required fee and:
10-23 (1) who is a registered voter in this state and
10-24 presents a valid voter registration certificate; or
10-25 (2) who is eligible for registration under Section
10-26 13.001, Election Code, and submits a registration application to
10-27 the department.
11-1 SECTION 13. The change in law made by this Act to Section
11-2 13.002, Election Code, applies only to an application for voter
11-3 registration that is submitted on or after the effective date of
11-4 this Act.
11-5 SECTION 14. This Act takes effect September 1, 2007.

U. S. SUPREME COURT- originating from Corpus Christi, Texas

2006-07-06T19:36:00.000-07:00

U.S. Supreme Court
CRAIG V. HARNEY , 331 U.S. 367 (1947)
331 U.S. 367

CRAIG et al.
v.
HARNEY.
No. 241.

Argued Jan. 9, 1947.
Decided May 19, 1947.

Mandate Conformed to Oct. 15, 1947. See Tex.Cr.App., 204 S.W.2d 842. [ Craig v. Harney 331 U.S. 367 (1947) ]

Page 331 U.S. 367 , 368

Messrs. Ireland Graves, of Austin, Tex., and Marcellus G. Eckhardt, of Corpus Christi, Tex., for petitioners.

Mr. Jerry D'Unger, of Corpus Christi, Tex., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioners were adjudged guilty of constructive criminal contempt by the County Court of Neuces County, Texas, and sentenced to jail for three days. They sought to challenge the legality of their confinement by applying to the Court of Criminal Appeals for a writ of habeas corpus. [Footnote 1] That court by a divided vote denied the writ and remanded petitioners to the custody of the county sheriff. Ex parte Craig, Tex.Cr.App., 193 S.W.2d 178. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem and because the ruling of the Texas court raised doubts whether it conformed to the principles announced in Bridges v. State of California, 314 U.S. 252, 159 A.L.R. 1346, and Pennekamp v. State of Florida, 328 U.S. 331.

Page 331 U.S. 367 , 369

Petitioners are a publisher, an editorial writer, and a news reporter of newspapers published in Corpus Christi, Texas. The County Court had before it a forcible detainer case, Jackson v. Mayes, whereby Jackson sought to regain possession from Mayes of a business building in Corpus Christi which Mayes (who was at the time in the armed services and whose affairs were being handled by an agent, one Burchard) claimed under a lease. That case turned on whether Mayes' lease was forfeited because of non-payment of rent. At the close of the testimony each side moved for an instructed verdict. The judge instructed the jury to return a verdict for Jackson. That was on May 26, 1945. The jury returned with a verdict for Mayes. The judge refused to accept it and again instructed the jury to return a verdict for Jackson. The jury returned a second time with a verdict for Mayes. Once more the judge refused to accept it and repeated his prior instruction. It being the evening of May 26th and the jury not having complied, the judge recessed the court until the morning of May 27th. Again the jury balked at returning the instructed verdict. But finally it complied, stating that it acted under coercion of the court and against its conscience.

On May 29th Mayes moved for a new trial. That motion was enied on J une 6th. On June 4th an officer of the County Court filed with that court a complaint charging petitioners with contempt by publication. The publications referred to were an editorial and news stories published on May 26, 27, 28, 30, and 31 in the newspapers with which petitioners are connected. We have set forth the relevant parts of the publications in the appendix to this opinion. Browning, the judge, who is a layman and who holds an elective office, was criticised for taking the case from the jury. That ruling was called 'arbitrary action' and a 'travesty on justice.' It was deplored that a layman, rather than a lawyer, sat as judge. Groups of

Page 331 U.S. 367 , 370

local citizens were reported as petitioning the judge to grant Mayes a new trial and it was said that one group had labeled the judge's ruling as a 'gross miscarriage of justice.' It was also said that the judge's behavior had properly brought down 'the wrath of public opinion upon his head,' that the people were aroused because a service man 'seems to be getting a raw deal,' and that there was 'no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was repudiated.' And the fact that there could be no appeal from the judge's ruling to a court 'familiar with proper procedure and able to interpret and weigh motion and arguments by opposing counsel' was deplored.

The trial judge concluded that the reports and editorials were designed falsely to represent to the public the nature of the proceedings and to prejudice and influence the court in its ruling on the motion for a new trial then pending. Petitioners contended at the hearing that all that was reported did no more than to create the same impression that would have been created upon the mind of an average intelligent layman who sat through the trial. They disclaimed any purpose to impute unworthy motives to the judge or to advise him how the case should be decided or to bring the court into disrepute. The purpose was to 'quicken the conscience of the judge' and to 'make him more careful in discharging his duty.'

The Court of Criminal Appeals, in denying the writ of habeas corpus, stated that the 'issue before us' is 'whether the publications * * * were reasonably calculated to interfere with the due administration of justice' in the pending case. 193 S.W.2d at page 186. It was held that 'there is no escape from the conclusion that it was the purpose and intent of the publishers * * * to force, compel, and coerce Judge Browning to grant Mayes a new trial. The only reason or motive for so doing was because the publishers did not agree with Judge Browning's decision

Page 331 U.S. 367 , 371

or conduct of the case. According to their viewpoint, Judge Browning was wrong and they took it upon themselves to make him change his decision.' Id., 193 S.W.2d at pages 188, 189. The court went on to say that 'It is hard to conceive how the public press could have been more forcibly or substantially used or applied to make, force, and compel a judge to change a ruling or decision in a case pending before him than was here done.' Id., 193 S.W.2d at page 189. The court distinguished the Bridges case, noting that there the published statements carried threats of future adverse criticism and action on the part of the publisher if the pending matter was not disposed of in accordance with the views of the publisher, that the views of the publisher in the matter were already wellknown, and that the Bridges case was not private litigation but a suit in the outcome of which the public had an interest. Id., 193 S.W.2d at page 188. It concluded that the facts of this case satisfied the 'clear and present danger' rule of the Bridges case. That test was, in the view of the court, satisfied 'because the publications and their purpose were to impress upon Judge Browning (a) that unless he granted the motion for a new trial he would be subjected to suspicion as to his integrity and fairness and to odium and hatred in the publi mind; (b) that the safe and secure course to avoid the criticism of the press and public opinion would be to grant the motion and disqualify himself from again presiding at the trial of the case; and (c) that if he overruled the motion for a new trial, there would be produced in the public mind such a disregard for the court over which he presided as to give rise to a purpose in practice to refuse to respect and obey any order, judgment, or decree which he might render in conflict with the views of the public press.' Id., 193 S.W.2d at page 189.

The court's statement of the issue before it and the reasons it gave for holding that the 'clear and present danger' test was satisfied have a striking resemblance to the findings which the Court in Toledo Newspaper Co. v.

Page 331 U.S. 367 , 372

United States, 247 U.S. 402 held adequate to sustain an adjudication of contempt by publication. [Footnote 2] That case held that comment on a pending case in a federal court was punishable by contempt if it had a 'reasonable tendency' to obstruct the administration of justice. We revisited that case in Nye v. United States, 313 U.S. 33, 52, 817, and disapproved it. And in Bridges v. State of California, supra, we held that the compulsion of the First Amendment, made applicable to the States by the Fourteenth (Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 872, 891, 146 A.L.R. 81) forbade the punishment by contempt for comment on pending cases in absence of a showing that the utterances created a 'clear and present danger' to the administration of justice. 314 U.S. at pages 260-264, 62 S.Ct. at pages 192-194, 159 A.L.R. 1346. We

Page 331 U.S. 367 , 373

reaffirmed and reapplied that standard in Pennekamp v. State of Florida, supra, which also involved comment on matters pending before the court. We stated, 328 U.S. at page 347, 66 S.Ct. at page 1037: 'Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.'

Neither those cases nor the present one raises questions concerning the full reach of the power of the state to protect the administration of justice by its courts. The problem presented is only a narrow, albeit important, phase of that problem-the power of a court promptly and without a jury trial to punish for comment on cases pending before it and awaiting disposition. The history of the power to punish for contempt (see Nye v. United States, supra; Bridges v. State of California, supra) and the unequivocal command of the First Amendment serve as constant reminders that freedom of speech and of the press should not be impaired through the exercise of that power, unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice.

In a case where it is asserted that a person has been deprived by a State court of a fundamental right secured by the Constitution, an independent examination of the facts by this Court is often required to be made. See Norris v. State of Alabama, 294 U.S. 587, 590, 580; Pierre v. State of Louisiana, 306 U.S. 354, 358, 538, 539; Chambers v. State of Florida, 309 U.S. 227, 228, 229, 473, 474; Lisenba v. People of State of California, 314 U.S. 219, 237, 238, 290, 291;

Page 331 U.S. 367 , 374

Ashcraft v. State of Tennessee, 322 U.S. 143, 147, 148, 923. This is such a case.

We start with the news articles. A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

The articles of May 26, 27, and 28 were partial reports of what transpired at the trial. They did not reflect good reporting, for they failed to reveal the precise issue before the judge. They said that Mayes, the tenant, had tendered a rental check. They did not disclose that the rental check was post-dated and hence, in the opinion of the judge, not a valid tender. In that sense the news articles were by any standard an unfair report of what transpired. [Footnote 3] But inaccuracies in reporting are

Page 331 U.S. 367 , 375

commonplace. Certainly a reporter could not be laid by the heels for contempt because he missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case. Conceivable, a plan of reporting on a case could be so designed and executed as to poison the public mind, to cause a march on the court house, or otherwise so disturb the delicate balance in a highly wrought situation as to imperil the fair and orderly functioning of the judicial process. But it takes more imagination than we possess to find in this rather sketchy and one-sided report of a case any imminent or serious threat to a judge of reasonable fortitude. See Pennekamp v. State of Florida, supra.

The accounts of May 30 and 31 dealt with the news of what certain groups of citizens proposed to do about the judge's ruling in the case. So far as we are advised, it was a fact that they planned to take the proposed action. The episodes were community events of legitimate interest. Whatever might be the responsibility of the group which took the action, those who reported it stand in a different position. Even if the former were guilty of contempt, freedom of the press may not be denied a newspaper which brings their conduct to the public eye.

The only substantial question raised pertains to the editorial. It called the judge's refusal to hear both sides 'high handed,' a 'travesty on justice,' and the reason that public opinion was 'outraged.' It said that his ruling properly 'brought down the wrath of public opinion upon his head' since a service man 'seems to be getting a raw deal.' The fact that there was no appeal from his decision to a 'judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly' was a 'tragedy.' It deplored the fact that the judge was a 'layman' and not a 'competent attorney.' It concluded that the 'first rule of justice' was to give both

Page 331 U.S. 367 , 376

sides an opportunity to be heard and when that rule was 'repudiated,' there was 'no way of knowing whether justice was done.'

This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one 'who ventures to pubish anything that tends to make him unpopular or to belittle him * * *.' See Craig v. Hecht, 263 U.S. 255, 281, 108, Mr. Justice Holmes dissenting. The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.

We agree with the court below that the editorial must be appraised in the setting of the news articles which both preceded and followed it. It must also be appraised in light of the community environment which prevailed at that time. The fact that the jury was recalcitrant and balked, the fact that it acted under coercion and contrary to its conscience and said so were some index of popular opinion. A judge who is part of such a dramatic episode can hardly help but know that his decision is apt to be unpopular. But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so managed and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line. But the episodes we have here do not fall in that category. Nor can we assume that the trial judge was not a man of fortitude.

The editorial's complaint was twofold. One objection or criticism was that a layman rather than a lawyer sat on the bench. That is legitimate comment; and its relevancy

Page 331 U.S. 367 , 377

could hardly be denied at least where judges are elected. In the circumstances of the present case, it amounts at the very most to an intimation that come the next election the newspaper in question will not support the incumbent. But it contained no threat to oppose him in the campaign if the decision on the merits was not overruled, nor any implied reward if it was changed. Judges who stand for reelection run on their records. That may be a rugged envronment. C riticism is expected. Discussion of their conduct is appropriate, if not necessary. The fact that the discussion at this particular point of time was not in good taste falls far short of meeting the clear and present danger test.

The other complaint of the editorial was directed at the court's procedure-its failure to hear both sides before the case was decided. There was no attempt to pass on the merits of the case. The editorial, indeed, stated that there was no way of knowing whether justice was done. That criticism of the court's procedure-that it decided the case without giving both sides a chance to be heard-reduces the salient point of the case to a narrow issue. If the point had been made in a petition for rehearing, and reduced to lawyer's language, it would be of trifling consequence. The fact that it was put in layman's language, colorfully phrased for popular consumption, and printed in a newspaper does not seem to us to elevate it to the criminal level. It might well have a tendency to lower the standing of the judge in the public eye. But it is hard to see on these facts how it could obstruct the course of justice in the case before the court. The only demand was for a hearing. There was no demand that the judge reverse his position-or else.

'Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.' Bridges v. State of California, supra, 314 U.S. at page 271, 62 S.Ct. at page 197, 159 A.L.R. 1346. But there was here no threat or menance to the integrity of the trial. The

Page 331 U.S. 367 , 378

editorial challenge the propriety of the court's procedure, not the merits of its ruling. Any such challenge, whether made prior or subsequent to the final disposition of a case, would likely reflect on the competence of the judge in handling cases. But as we have said, the power to punish for contempt depends on a more substantial showing. Giving the editorial all of the vehemence which the court below found in it we fail to see how it could in any realistic sense create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing.

There is a suggestion that the case is different from Bridges v. State of California, supra, in that we have here only private litigation, while in the Bridges case labor controversies were involved, some of them being criminal cases. The thought apparently is that the range of permissible comment is greater where the pending case generates a public concern. The nature of the case may, of course, be relevant in determining whether the clear and present danger test is satisfied. But, the rule of the Bridges and Pennekamp cases is fashioned to serve the needs of all litigation, not merely select types of pending cases.

Reversed.

Appendix.

On May 26, 1945, a news item stated: 'Burchard further claimed that although he had not known of the option clause, when he learned of it he had immediately proffered a check for $275 rental.'

Page 331 U.S. 367 , 379

On May 27, 1945, there was a news item which stated:

'At 7 p.m., Browning, without listening to argument from counsel for either side on a plaintiff's motion, presented by Dudley Tarlton for Jackson, and without giving the six-man jury opportunity to weigh the evidence, instructed the jury to find against Mayes.
'Walter M. Lewright, Mayes' attorney, protested that the court's arbitrary action had ruled that Tarlton's 'one-page motion' did not need supporting argument and citation of authorities.'
On May 28, 1945, an article said: 'Browning accepted Tarlton's one- page motion and, without permitting argument or citation of authorities to support the motion, ruled that it be granted. The effect of this ruling was that Browning took the matter from the jury.'

That article also included the following statement made by Mayes' attorney to the jury on May 27, 1945:

'However, I now advise you that under the law, Judge Browning has the right to compel you, even against the dictates of your conscience, to sign the verdict he has ordered.
'As a matter of fact, it is probable that he has the power to put you in jail until such time as you do sign it, and I rather imagine, from what has heretofore taken place in this trial, that unless you do sign the verdict, he will cause you to be put in jail.
'As I and my clients feel that you have done all in your power to register your protest and revulsion of feeling at the effect of this decision reached by Judge Browning; as you are helpless to do anything further; and as making you suffer by remaining locked up will not do us a bit of good, I suggest that you sign the verdict and return to your homes with a clear con-

Page 331 U.S. 367 , 380

science of having done all that you could to protect the rights of a man whom I feel, and evidently you feel, has been done a gross injustice.

'While we have no appeal from the court's decision in this case, we do have the right again to appeal to his conscience by presenting a motion for new trial in this action-and which motion we will file and argue strenuously with the hope that in the meantime, he will see the error committed and will rectify the same.
'There cannot be any doubt but that the action of you men in registering your protest against this decision, as you have done, will affect him. At least I can only hope that it will. I sincerely thank you.'
On May 30, 1945, an editorial stated:

'Browning's behavior and attitude has brought down the wrath of public opinion upon his head, properly so. Emotions have been aggravated. American people simply don't like the idea of such goings on, especially when a man in the service of his country seems to be getting a raw deal . * * * Then the plaintiff's counsel offered a motion for an instructed verdict for his client. It was granted immediately, without having him cite his authority or without giving the defendant's attorney a chance to argue against it.
'That was the travesty on justice, the judge's refusal to hear both sides. That's where a legal background would have served him in good stead. It is difficult to believe that any lawyer, even a hack, would have followed such high handed procedure in instructing a jury. It's no wonder that the jury balked and public opinion is outraged.
'The fact that a serviceman is involved lends drama to the event. But it could have happened to anyone, it can happen to anyone, with a layman sitting as

Page 331 U.S. 367 , 381

judge in a case where fine points of law are involved. True, the idea that only lawyers are qualified to occupy most public offices has been run into the ground, and in most instances a competent layman would be better qualified, but the county judge's office is an exception. He should be a competent attorney as well as a competent businessman.

'It's the tragedy in a case of this sort that the court where the controversial decision was handed down is the court of last resort. It's too bad that appeal can't be made to a district court and heard by a judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly. * * * There is no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was repudiated.'
On May 30, 1945, there appeared a report of a resolution passed by the Sailor's and Soldier's Advisory Council of Corpus Christi 'labeling County Judge Joe D. Browning's order for a directed verdict against Mayes a 'gross miscarriage of justice." That article further stated:

'The council's resolution called on Browning to grant Mayes a new trial on the grounds that he had committed an error in instructing the jury to find for the plaintiff. The petition asked that Browning, upon granting the new trial, should disqualify himself to further sit as judge in the trial, and should permit the trial to be retried before another judge and jury. * * * The trial reached a climax Saturday night when rowning, o n motion of Dudley Tarlton Jackson's counsel, and without argument or citation of authority, instructed the six-man County Court jury to find for Jackson. The jury twice refused,

Page 331 U.S. 367 , 382

both times bringing in verdicts in favor of Mayes and against Jackson.

'Browning had the jury confined to the courthouse jury room all Saturday night. Sunday morning, when the court convened, the jury reported that it still had not signed the verdict in favor of Jackson.DP 'Browning announced that he would lock the jury up again until Monday morning. However, Walter M. Lewright advised the jurymen that they should not continue to 'suffer' any longer and should sign the verdict since Browning had the legal right to force them to do so. The jury signed the verdict but appended a statement asserting that they did so under pressure.'
On May 31, 1945, a news story said:

'Three local groups were reported last night to be preparing petitions requesting County Judge Joe D. Browning to grant Pvt. Joe L. Mayes a new trial in the Playboy Cafe ouster suit.
'One petition is reported being drawn by a parents and teachers' group, another by a service mothers' group, and the third is being drawn for independent circulation among parents of men in service.
'The new petitions are said to follow the general outline of a petition adopted by the Corpus Christi Soldier's and Sailor's Advisory Council Tuesday night. This petition called on Browning to grant a new trial and upon doing so to disqualify himself and permit the trial to go on under another judge and jury. Action on the petitions is expected shortly.
'The council's petition, drawn up by five veterans' organizations with a membership of more than 1,000, followed by a few hours the filing of a motion for a new trial by Walter M. Lewright and LeGrand Woods, Mayes' counsels * * *. It came to a climax Sunday

Page 331 U.S. 367 , 383

when Browning Saturday night accepted without argument or citation of authority a motion by Dudley Tarlton Jackson's lawyer, for an instructed verdict * * *. The jury was kept Saturday night in the Court House. Sunday morning, following a threat by Browning to keep the jury together until they did sign, the juryman signed the verdict, appending a statement that they did so against the dictates of their conscience.'

Mr. Justice MURPHY (concurring).

While joining in the opinion of the Court, I believe that the importance of the problem raised by this case cannot be overemphasized. A free press lies at the heart of our democracy and its preservation is essential to the survival of liberty. Any inroad made upon the constitutional protection of a free press tends to undermine the freedom of all men to print and to read the truth.

In my view, the Constitution forbids a judge from summarily punishing a newspaper editor for printing an unjust attack upon him or his method of dispensing justice. The only possible exception is in the rare instance where the attack might reasonably cause a real impediment to the administration of justice. Unscrupulous and vindictive criticism of the judiciary is regrettable. But judges must not retaliate by a summary suppression of such criticism for they are bound by the command of the First Amendment. Any summary suppression of unjust criticism carries with it an ominous threat of summary suppression of all criticism. It is to avoid that threat that the First Amendment, as I view it, outlaws the summary contempt methods of suppression.

Silence and a steady devotion to duty are the best answers to irresponsible criticism; and those judges who feel the need for giving a more visible demonstration of

Page 331 U.S. 367 , 384

their feelings may take advantage of various laws passed for that purpose which do not impinge upon a free press. The liberties guaranteed by the First Amendment, however, are too highly prized to be subjected to the hazards of summary contempt procedure.

Mr. Justice FRANKFURTER, with whom The CHIEF JUSTICE concurs ( dissenting).

Today's decision, in efect though not in terms, holds unconstitutional a power the possession of which by the States this Court has heretofore deemed axiomatic.

It cannot be repeated too often that the freedom of the press so indispensable to our democratic society presupposes an independent judiciary which will, when occasion demands, protect that freedom. To help achieve such an independent judiciary and to protect its members in their independence, the States of the Union, from the very beginning and throughout our history, have provided for prompt suppression and punishment of interference with the impartial exercise of the judicial process in an active litigation. Interference was punished not by the ordinary criminal process of trial before a jury, but through a distinctive proceeding, summary in character in the sense that a judge without a jury might impose punishment. Such protective measures against publications seriously calculated to agitate the disinterested operation of the judicial process in a litigation awaiting disposition have been deemed part of the constitutional authority of the States to establish courts to do justice as between man and man and beween man and society.

The opinion of the Court reviews the Texas Court as though we were merely reviewing the judgment of a court lower in the judiciary hierarchy. Formally, no doubt, we have before us the correctness of a decision of the Court of Criminal Appeals of Texas. But that decision is challenged as offending the Due Process Clause

Page 331 U.S. 367 , 385

of the Fourteenth Amendment. We are not, therefore, merely reviewing a decision of the Texas Court; we are passing upon the power of the State of Texas. 'The question before us must be considered in the light of the total power the State possesses * * *.' Skiriotes v. State of Florida, 313 U.S. 69, 79, 930. To paraphrase what was said in Rippey v. State of Texas, 193 U.S. 504, 509, 517, the question for us is this: if Texas had expressly provided in its Constitution that publications in the circumstances here found by the Texas Court shall constitute contempt of court, would this Court hold that such finding by the Texas Court and such a provision in the Texas Constitution collide with the Constitution of the United States?

Texas, speaking through its authoritative judicial voice, says: 'When the several publications in the instant case are considered together and in their chronological order of appearance, there is no escape from the conclusion that it was the purpose and intent of the publishers thereof to force, compel, and coerce Judge Browning to grant Mayes a new trial. The only reason or motive for so doing was because the publishers did not agree with Judge Browning's decision or conduct of the case. According to their viewpoint, Judge Browning was wrong and they took it upon themselves to make him change his decision.' Tex.Cr.App., 193 S.W.2d 178, 188, 189.

After a painstaking examination of the series of publications in the setting of the circumstances of the case, and an extended hearing, all of which comprises a record here of more than 400 pages, the Court below reached this conclusion: 'It is hard to conceive how the public press could have been more forcibly or substantially used or applied to make, force, and compel a judge to change a ruling or decision in a case pending before him than was here done. The publications were not only reasonably calculated to accomplish that purpose but there was also a 'clear and present danger' that they would and the like-

Page 331 U.S. 367 , 386

lihood that such result would follow was 'extremely serious' and the degree of 'imminence extremely high." Tex.Cr.App., 193 S.W.2d at page 189. It must be emphasized that the publications in question were made after it was notorious that a motion for a new trial had already been made and would shortly be heard. In the light of this crucial fact-that the trial judge would shortly be called upon to reconsider his instruction to the jury t find for the plaintiff-the court below found that 'the publications and their purpose were to impress upon Judge Browning (a) that unless he granted the motion for a new trial he would be subjected to suspicion as to his integrity and fairness and to odium and hatred in the public mind; (b) that the safe and secure course to avoid the criticism of the press and public opinion would be to grant the motion and disqualify himself from again presiding at the trial of the case; and (c) that if he overruled the motion for a new trial, there would be produced in the public mind such a disregard for the court over which he presided as to give rise to a purpose in practice to refuse to respect and obey any order, judgment, or decree which he might render in conflict with the views of the public press.' Tex.Cr.App., 193 S.W.2d at page 189.

The Court minimizes these findings by pointing to a likeness between them and those that were made in Toledo Newspaper Co. v. United States, 247 U.S. 402, and found inadequate by Mr. Justice Holmes' dissent, an inadequacy subsequently supported by our decision in Nye v. United States, 313 U.S. 33. The Court also draws on Craig v. Hecht, 263 U.S. 255, as though what was said there applies here. But those three case involved only the construction of the federal statute. Congress decided to allow the power to punish for contempt theretofore vested in the lower federal courts, when invoked against misbe-

Page 331 U.S. 367 , 387

havior not in the presence of the court, only when such misbehavior was 'so near' the presence of the court 'as to obstruct the administration of justice.' Act of March 2, 1831, 4 Stat. 487, 268 of the Judicial Code, 28 U.S.C. 385, 28 U.S.C.A. 385; Nye v. United States, supra. Texas, however, has seen fit not to restrict the power of its courts to punish for contempt as does the federal statute. The power to punish for contempt which the Texas legislature granted to its courts more than 100 years ago is not restricted as Congress restricted the contempt power of the lower federal courts. See Acts 1846, p. 200, Vernon's Texas Statutes, Art. 1955. It is an inadmissible jump from finding that conduct is not contempt within the federal Act, to finding that an exertion of State power offended the Fourteenth Amendment. Yet the Court now finds that Texas has transgressed the implications of the Due Process Clause by punishing conduct which this Court in the Toledo case thought was within the scope even of the federal Act-a construction which it occurred to no member of the Court to question on constitutional grounds.

The difference between the issue before us and that raised by the Toledo and Craig cases is basic. In those cases the Court had before it, and Mr. Justice Holmes was concerned only with, the proper application of a federal statute setting a narrowly confined scope to the power to punish for contempt. The Court was not concerned with the Constitutional power of the States to enforce a broader contempt policy. Such a power, in fact, had been assumed to be beyond doubt. 'When a case is finished courts are subject to the same criticism as other people; but the propriety and necessity of preventing interference with the course of justice by premature statement, argument, or intimidation hardly can be denied.' So wrote Mr. Justice Holmes for this Court. Patterson v. State of Colorado, 205 U.S. 454, 463, 558, 10 Ann.Cas. 689. To be sure, he wrote this 40 years

Page 331 U.S. 367 , 388

ago, and on several occasions thereafter, as part of the formulation of his profound tolerance for freedom of expression, he spoke out against misuse of the power to punish for contempt. But nothing that that great judge ever wrote qualified in the slightest his conviction that the theory of our system of justice is 'that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influene, whether of private talk or public print.' Patterson v. State of Colorado, supra, 205 U.S. at page 462, 27 S.Ct. at page 558, 10 Ann.Cas. 689. Mr. Justice Holmes had no tolerance whatever for any special claim by judges to immunity from criticism. He was against anything that smacked of summary proceeding for what was known as 'scandalizing the court,' that is, speaking ill of a court as an institution and thereby argumentatively bringing it into disrepute. He would allow summary punishment of conduct calculated to affect a judge in the discharge of his duty only as to matters 'pending' before him in the active sense of that term. 'It is not enough that somebody may hereafter move to have something done.' So he wrote, dissenting, in Craig v. Hecht, supra, 263 U.S. at page 281, 44 S.Ct. at page 108. And in his misapplied dissent in the Toledo case he expressed his impatience with federal judges who take notice of newspaper comments to which a judge should be indifferent. But his opinion in that case conveys not a doubt as to the power of States to enforce a policy for the punishment of contempt in relation to a pending case, though the State policy be not limited as Congress limited the power of the federal courts to punish for contempt. There is not a breath of a suggestion in the opinion in the Nye case that the restricted geographic meaning which the Court gave to the Act of Congress designed to limit the power of the lower federal courts was required by constitutional considerations. The opinions of Mr. Justice Holmes contain not the remotest hint that

Page 331 U.S. 367 , 389

the Due Process Clause withdrew from the States the power to base a finding of contempt on publication aimed at a particular outcome of a matter awaiting adjudication. And it is worthy of note that in the very opinion in which the phrase 'clear and present danger' was first used by Mr. Justice Holmes, he referred to his opinion in the Patterson case, and not with disapproval. See Schenck v. United States, 279 U.S. 47, 51, 52, 248, 249.

We are not dealing here with criticisms whether temperate or unbridled, of action in a case after a judge is through with it, or of his judicial qualifications, or of his conduct in general. Comment on what a judge has done-criticism of the judicial process in a particular case after it has exhausted itself-no matter how ill-informed or irresponsible or misrepresentative, is part of the precious right of the free play of opinion. Whatever violence there may be to truth in such utterances must be left to the correction of truth.

The publications now in question did not constitute merely a narrative of a judge's conduct in a particular case nor a general commentary upon his competence or his philosophy. Nor were they a plea for reform of the Texas legal system to the end that county court judges should be learned in the law and that a judgment in a suit of forcible detainer may be appealable. The thrust of the articles was directed to what the judge should do on a matter immediately before him, namely to grant a motion for a new trial. So the Texas Court found. And it found this not in the abstract but on the particular stage of the happenings and in the circumstances disclosed by the record. The Texas Court made its findings with reference to the locality where the events took place and in circumstances which may easily impart significance to the Texas Court but may elude full appreciation here.

Page 331 U.S. 367 , 390

Corpus Christi, the locale of the drama, had a population of less than 60,000 at the last census, and Nueces County about 92,000. The three papers which published the articles complained of are under common control and are the only papers of general circulation in the area. It can hardly be a compelling presumption that such papers so controlled had no influence at a time when patriotic fervor was running high, in stirring up sentiment of powerful groups in a small community in favor of a veteran to whom, it wascharged, a great wrong had been done. It would seem a natural inference, as the court below in effect found, that these newspapers whipped up public opinion against the judge to secure reversal of his action and then professed merely to report public opinion. We cannot say that the Texas Court could not properly find that these newspapers asked of the judge, and instigated powerful sections of the community to ask of the judge, that which no one has any business to ask of a judge, except the parties and their counsel in open court, namely, that he should decide one way rather than another. Only if we can say that the Texas Court had no basis in reason to find what it did find, can we deny that the purpose of the articles in their setting was to induce the judge to grant a new trial. Surely a jury could reach such a conclusion on these facts. We ought not to allow less leeway to the Texas Court in drawing inferences than we would to a jury. Because it is a question of degree, the field in which a court, like a jury, may 'exercise its judgment is necessarily a wide one.' Mr. Justice Brandeis in Schaefer v. United States, 251 U.S. 466, 483, 265. Of course, the findings by a State court of what are usually deemed facts cannot foreclose our scrutiny of them if a constitutional right depends on a fair appraisal of those facts. But it would be novel doctrine indeed to say that we may consider the record as it comes before us from

Page 331 U.S. 367 , 391

a State court as though it were our duty or right to ascertain the facts in the first instance. A State cannot by torturing facts preclude us from considering whether it has thereby denied a constitutional right. Neither can this Court find a violation of a constitutional right by denying to a State its right to a fair appraisal of facts and circumstances peculiarly its concern. Otherwise, in every case coming here from a State court this Court might make independent examination of the facts, because every right claimed under the Constitution is a fundamental right. The 'most respectful attention' which we have been told is due to a State would then be merely an empty profession. See Pennekamp v. State of Florida, 328 U.S. 331, 335.

If under all the circumstances the Texas Court here was not justified in finding that these publications created 'a clear and present danger' of the substantive evil that Texas had a right to prevent, namely the purposeful exertion of extraneous influence in having the motion for a new trial granted, 'clear and present danger' becomes merely a phrase for covering up a novel, iron constitutional doctrine. Hereafter the States cannot deal with direct attempts to influence the disposition of a pending controversy by a summary proceeding, except when the misbehavior physically prevents proceedings from going on in court, or occurs in its immediate proximity. Only the pungent pen of Mr. Justice Holmes could adequately comment on such a perversion of the purpose of his phrase.

Changes are rung on the remark of Mr. Justice Holmes in the Toledo case that 'a judge of the United States is expected to be a man of ordinary firmness of character.' 247 U.S. at page 424, 38 S.Ct. at page 565. But it is pertinent to observe that that was said by an Olympian who was so remote from the common currents of life that he did not

Page 331 U.S. 367 , 392

read newspapers. Even a conscientious judge not a layman, and not merely one serving under a short judicial tenure, may find himself in a dilemma when subjected to a barrage pressing a particular result in a case immediately before him. He may not unnaturally be moved to do what is urged, or he may be impelled to display his independence and not give to the arguments on behalf of the motion for a new trial that serene and undisturbed consideration which often leads judges to grant such a motion. It has not been unknown that judges persist in error to avoid giving the appearance of weakness and vacillation. Thus, one or another of the litgants befo re the Court may have been denied that disinterested exercise of judgment which is of the essence of the judicial process. The demands found to have been made upon the judge by these papers may agitate even a conscientious judge. He may himself be unaware of the extent to which his powers of reason have not the sway they would otherwise have. Or a judge, proud of his independence, may unconsciously have his back stiffened, and thereby his mind, when hearing the motion for a new trial and passing on its validity. Judges are not merely the habitations of bloodless categories of the law which pursue their predestined ends.

The fact that it cannot be demonstrated how the delicate balance of an adjudication was tampered with, or whether it was, does not prove that it was not tampered with. To rely on the assumption that judges are men of fortitude and that no judge 'worthy of the name' would be influenced in his decision by a publication directed toward a particular disposition of a pending litigation, is to say in effect that the Due Process Clause precludes a State from believing that there may be such a psychological danger, short of the fantastic situation where a judge confesses that he decided as he did because of newspaper

Page 331 U.S. 367 , 393

pressure, or avows that he came awfully close to being derelict in his judicial duty because of such pressure. In Bridges v. State of California, 314 U.S. 252, 159 A.L.R. 1346, this Court did not profess to make a constitutional dogma of so questionable a psychological assumption. It did not condemn outright the power of a State summarily to punish for contempt a publication uttered outside of court but brought to bear upon a pending case. The opinion of the Texas Court gives every indication of scrupulous obedience to the requirements of the Bridges case. Nor did the dissenting judge find conflict with the Bridges case. If we accord 'most respectful attention' to what the State court has decided, I am unable to find any ground for rejecting the application which the Texas Court made to the circumstances of this case of the principles which it drew from the Bridges case.

Is it conceivable that even the most doctrinaire libertarian would think it consonant with the impartiality which adjudication presupposes to publish a poll regarding the outcome desired by a community in a pending case? How can the insertion into the scales of justice of a newspaper's own notion of the desire of a community for a particular result in a pending case be more permissible than the report of public feeling as ascertained by a public poll? Again, suppose the newspaper articles here in controversy had been enclosed in a letter to the judge urging, on the basis of these articles, a new trial. Would the Constitution of the United States forbid a State to deal with such conduct through the corrective process of contempt? But a denial of this power to the States where newspapers carry the same articles directed to the same end can only be on the basis that private correspondence has less constitutional protection than have newspapers.

To agree with a principle in principle only to depart from it in practice has not been so fruitful of good in the

Page 331 U.S. 367 , 394

world of diplomacy as to suggest its importation into the judicial process. If it be deemed that the Due Process Clause put an end to the historic power of States to allow summary proceedings for contempt by interference with an actually pending controversy, or even if it be deemed offensive to due process for the judge whose conduct is called in question to sit in judgment upon the contemnor because self-interest is too great, see Tumey v. State of Ohio, 273 U.S. 510, 50 A.L.R. 1243, and Cooke v. United States, 267 U.S. 517, 539, 396, such a break with the past had best be completely candid. It may well be the deeper wisdom to treat with intelligent neglect paragraphs that are calculated and intended to influenc the dispo sition of litigation. But the wisdom of such wisdom is not the measure of the constitutional power of the several States to deal with extraneous influence designed to affect the outcome of a particular case.

We think the judgment should be affirmed.

Mr. Justice JACKSON (dissenting).

This is one of those cases in which the reasons we give for our decision are more important to the development of the law than the decision itself.

It seems to me that the Court is assigning two untenable, if not harmful reasons for its action. The first is that this newspaper publisher has done no wrong. I take it that we could not deny the right of the state to punish him if he had done wrong and I do not suppose we could say that the traditional remedy was an unconstitutional one.

The right of the people to have a free press is a vital one, but so is the right to have a calm and fair trial free from outside pressures and influences. Every other right, including the right of a free press itself, may depend on the ability to get a judicial hearing as dispassionate

Page 331 U.S. 367 , 395

and impartial as the weakness inherent in men will permit. I think this publisher passed beyond the legitimate use of press freedom and infringed the citizen's right to a calm and impartial trial. I do not think we can say that it is beyond the power of the state to exert safeguards against such interference with the course of trial as we have here.

This was a private lawsuit between individuals. It involved an issue of no greater public importance than which of two claimants should be the tenant of the 'Playboy Cafe.' The public interest in the litigation was that dispassionate justice be done by the court and that it appear to be done.

The publisher had a complete monopoly of newspaper publicity in that locality. For reasons that are not apparent, the papers took an unusual interest in the proceeding. They first made what the court agrees was a 'rather sketchy and one-sided report of a case.' This is not overstatement. The former tenant had tendered a check and the newspaper report represented it as a payment of rent; it made no reference to that fact that the check was postdated and was therefore no payment at all. Reports played up the fact that its favorite among the litigants was a veteran. The community became aroused. Then the newspaper published editorials which attacked the judge while a motion for retrial was pending with what the prevailing opinion concedes was 'strong language, intemperate language, and, we assume, an unfair criticism.' The object of the publicity appears to have been to get the judge to reverse himself and to grant a new trial.

The fact that he did not yield to it does not prove that the attack was not an effective interference with the administration of justice. The judge was put in a position in which he either must appear to yield his judgment to public clamor or to defy public sentiment. The consequence of attacks may differ with the temperament of the

Page 331 U.S. 367 , 396

judge. Some judges may take fright and yield while others become more set in their course if only to make clear that they will not be bullied. This judge was evidently of the latter type. He was diverted from the calm consideration of the litigation before him by what he regarded as a duty to institute a contempt proceeding of his own against his tormentors.

For this Court to imply that this kind of attack during a pending case is all right seems to me to compound the wrong. The press of the country may rightfully take the decision of this Court to mean indifference toward, if not approval of, such attacks upon courts during pending cases. I think this opinion conveys a wrong impression of the responsibilities of a free press for the calm and dispassionate administration of justice and that we should not hesitate to condemn what has been done here.

But even worse is that this Court appears to sponsor the myth that judges are not as other men are, and that therefore newspaper attacks on the are negli gible because they do not penetrate the judicial armor. Says the opinion: 'But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.' With due respect to those who think otherwise, to me this is an illfounded opinion, and to inform the press that it may be irresponsible in attacking judges because they have so much fortitude is ill-advised, or worse. I do not know whether it is the view of the Court that a judge must be thickskinned or just thickheaded, but nothing in my experience or observation confirms the idea that he is insensitive to publicity. Who does not prefer good to ill report of his work? And if fame-a good public name-is, as Milton said, the 'last infirmity of noble mind,' it is frequently the first infirmity of a mediocre one.

Page 331 U.S. 367 , 397

From our sheltered position, fortified by life tenure and other defenses to judicial independence, it is easy to say that this local judge ought to have shown more fortitude in the face of criticism. But he had no such protection. He was an elective judge, who held for a short term. I do not take it that an ambition of a judge to remain a judge is either unusual or dishonorable. Moreover, he was not a lawyer, and I regard this as a matter of some consequence. A lawyer may gain courage to render a decision that temporarily is unpopular because he has confidence that his profession over the years will approve it, despite its unpopular reception, as has been the case with many great decisions. But this judge had no anchor in professional opinion. Of course, the blasts of these little papers in this small community do not jolt us, but I am not so confident that we would be indifferent if a news monopoly in our entire jurisdiction should perpetrate this kind of an attack on us.

It is doubtful if the press itself regards judges as so insulated from public opinion. In this very case the American Newspaper Publishers Association filed a brief amicus curiae on the merits after we granted certiorari. Of course, it does not cite a single authority that was not available to counsel for the publisher involved, and does not tell us a single new fact except this one: 'This membership embraces more than 700 newspaper publishers whose publications represent in excess of eighty per cent of the total daily and Sunday circulation of newspapers published in this country. The Association is vitally interested in the issue presented in this case, namely, the right of newspapers to publish news stories and editorials on cases pending in the courts.'

This might be a good occasion to demonstrate the fortitude of the judiciary.

Footnotes
Footnote 1 That appears to be the appropriate remedy in Texas in this type of case. Ex parte Miller, 91 Tex.Cr.App. 607, 240 S.W. 944. As to the Texas procedure where there is an adjudication of contempt for violating an order in a civil cause, see Thomas v. Collins, 323 U.S. 516.

Footnote 2 The findings which the Court in that case sustained were as follows: '(a) Because * * * their manifest purpose was to create the impression on the mind of the court that it could not decide in the matter before it in any but the one way without giving rise to such a state of suspicion as to the integrity or fairness of its purpose and motives as might engender a shrinking from so doing. (b) Because the publications directly tended to incite to such a condition of the public mind as would leave no room for doubt that if the court acting according to its convictions awarded relief, it would be subject to such odium and hatred as to restrain it from doing so. (c) Because the publications also obviously were intended to produce the impression that any order which might be rendered by the court in the discharge of its duty if not in accord with the conceptions which the publications were sustaining, would be disregarded and cause a shrinking from performing duty to avoid the turmoil and violence which the publications, it may be only by covert insinuation, but none the less assuredly invited. And (d) because the publications were of a character, not merely because of their intemperance but because of their general tendency, to produce in the popular mind a condition which would give rise to a purpose in practice to refuse to respect any order which the court might render if it conflicted with the supposed rights of the city espoused by the publications.' 247 U.S. t pages 41 4, 415, 38 S.Ct. at page 562.

Footnote 3 The charge against petitioners also set forth other allegedly false statements: (1) that Mayes was not an exinsurance man but in the insurance business at the time; (2) that terms of the contract on which Jackson sued were not disclosed; (3) that the arrangements under which the premises had been operated for some months before Mayes was inducted into the armed services were not disclosed; (4) that the articles failed to state the legal grounds on which Jackson's motion for an instructed verdict was argued and granted; (5) that much materia evidence was omitted which would have enabled the public to form a fair estimate of the nature of the controversy; (6) that the principal plaintiffs who were highly respected business and professional men of Corpus Christi were not named.

These omissions, though reflecting on the quality of the reporting, do not seem to us to be of importance here.

now why did that person accuse me of having blonde hair and blue eyes?

2006-05-27T01:24:00.000-07:00

i could not speak english and "tanto"
Posted on May 20, 2006 at 02:45:43 AM by This belongs @ the top jfk/d1

eb: "For the last twenty years,Hispanics have had control of institutions and agencies of government and power in South Texas and throughout the southwest..and has life improved for hispanics because of it? I'd submit to you it has."

ok it is possible alot more of our parents realized the importance of "learning english"

to the point i was denied my first language deliberately,hence i forgot it

at 4 i went to headstart

i could not speak english and "tanto"

i think it meant "dense"

but i was removed from my family who spoke to me in spanish

i am grateful but i was once accused over the cb radio-"i bet dhe has blond hair and blue eyes"

that was sooo hilarious cuz if they had seen me.........

i used to wish i had blonde hair and blue eyes cuz i thought that was "pretty"

now why did that person accuse me of having blonde hair and blue eyes?

cuz of the way i talked?

cuz she could not see me?

if only my mom would have heard it!!

she would have thought she did her job!

no one would accuse me of being a dumb mexican