BUSINESS AS USUAL Kurt Kuhn for Justice rd Court of Appeals

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                    SEPTEMBER 21, 2009 • VOL. 25 • NO. 25 • $9.00

by MARY ALICE ROBBINS                                   in the number of majority opinions may indicate that          Keller has not helped the court at all.” Botsford declines
         ith misconduct allegations against Presiding   the court does not want to make a lot of waves while          to comment further on the impact Keller’s situation may

W        Judge Sharon Keller hanging over the Texas     Keller’s case is pending. [See “Court of Criminal Appeals     be having on the court.
         Court of Criminal Appeals, the court issued    Caseload,” page 19.] Williamson County District Attor-            The CCA judges who are willing to talk about Keller’s
         only 131 majority opinions in the 2008-2009    ney John Bradley says he believes the Keller case has         case say it has not affected the court’s productivity.
         term — the second lowest number for the        “clearly distracted” the CCA from its normal routine.             “I don’t think it’s affected the work at all,” says Judge
past decade.                                                Criminal-defense attorney David Botsford, a partner       Paul Womack.
   Several attorneys who monitor the CCA say the drop   in Austin’s Botsford & Roark, says, “I think this deal with                                                    se e Bu s i n e s s , p a g e 17

                                                                                                                                    by JOHN COUNCIL
                                                                                                                                                  ometimes, victory at the Texas

                                                                                                                                                  Supreme Court boils down to tim-
                                                                                                                                                  ing. And nobody knows that better
                                                                                                                                                  than R. Brent Cooper.
                                                                                                                                                      This year, Cooper convinced
                                                                                                                                                  a divided high court to grant his
                                                                                                                                                  clients mandamus relief in In Re:
                                                                                                                                                  Columbia Medical Center of Las
                                                                                                                                                  Colinas, et al. and In Re: Baylor
                                                                                                                                                  Medical Center at Garland. The
                                                                                                                                    opinions — two of the most significant deci-
                                                                                                                                    sions of the court’s 2008-2009 term — signal an
                                                                                                                                    expansion of mandamus review, three appellate
                                                                                                                                    lawyers say.
                                                                                                                                        Cooper says he watches the high court to see
                                                                                                                                    what matters interest the justices most. “We’re
                                                                                                                                    trying to always look for trends with the court
                                                                                                                                    — areas of interest that the court has expressed
                                                                                                                                    that would be of benefit to our client,” says
                                                                                                                                    Cooper, a partner in Dallas’ Cooper & Scully.
                                                                                                                                        The watching and waiting paid off for
                                                                                                                                    Cooper. He persuaded the high court — in two
                                                                                                                                    5-4 opinions — to order trial judges to explain
                                                                                                                                    their reasons for granting motions for new trial.
                                                                                                                                    The opinions are important because neither
                                                                                                                                    the Texas Rules of Appellate Procedure nor
                                                                                                                                    the Texas Civil Practice & Remedies Code give
                                                                                                                                    appellate courts the power to review trial courts’
                                                                                                                                    decisions to grant new trials. And for more than
                                                                                                                                    a century, Texas appellate courts routinely had
                                                                                                                                    rejected writs of mandamus seeking to overturn
                                                                                                                                    orders granting new trials.
                                                                                                                                        The ruling in Columbia controlled the hold-
                                                                                                                                    ing in Baylor. Texas Supreme Court Justice Phil
                                                                                                                      MARK GRAHAM

                                                                                                                                    Johnson, writing for the Columbia justices in the
  R. Brent Cooper                                                                                                                   majority, said they respected the court’s 100-year
                                                                                                                                                                      se e Tre n d , p a g e 13

               INSIDE >> Approach the Bench                                          4                                Office Wear                              26
SEPTEMBER 21, 2009                                                                                                                                                                                                                                 TEXAS LAWYER             13

       c o n t i n u e d f r o m p a ge 1                                              does not, permit a                                           when Justice Nathan Hecht wrote a dissent to a manda-
                                                                                       trial judge to substi-                                       mus writ denial in In Re: Volkswagen, which also involved
tradition of not reviewing motions for new trial by manda- tute his or her own                                                                      motions for new trial. “And we thought we saw a trend
mus, but it was time for trial judges to give more details views for that of the                                                                    developing with the court,” Cooper says.
about why they grant such motions. [See “Explain Yourself,” jury without a valid                                                                        Then came In Re: Prudential, a 5-4 opinion in which
Texas Lawyer, July 13, 2009, page 1.]                                                  basis.” [See “Texas                                          the high court found that a contractual waiver of a jury
    “We do not retreat from the position that trial courts Supreme Court Case-                                                                      trial is enforceable by mandamus, and In Re: AIU Insur-
have significant discretion in granting new trials,” wrote load,” this page.]                                                                        ance, another 5-4 decision in which the court held that
Johnson. “However, such discretion should not, and                                          In her dissenting                                       mandamus could be used to enforce a forum-selection
                                                                                       opinion in Columbia,                                         clause in a contract. Both opinions were issued on Sept.
                                                                                       Justice Harriet O’Neill pointed out that there is no 3, 2004.
                                                                                       rule requiring trial judges to explain their reasons for         In a 6-3 decision in In Re: McAllen Medical Center
                                                                                       granting new trials, and requiring them to do so “by
                                                                                       judicial fiat” by issuing mandamus relief “turns our                                                   c o n t i n u e d o n p a g e 14
                                                                                       mandamus jurisprudence
                                                                                       on its head.”
                                                                                            The seminal high court
                                                                                       opinion on mandamus
                                                                                                                                             TEXAS SUPREME COURT CASES TO WATCH
                                                                                       jurisprudence came in                Texas Supreme Court justices are ing the reliability and qualification
                                                                                       1992’s Walker v. Packer, a      proud that there aren’t many holdover standards of expert witnesses.
                                                                                       7-2 decision that reserved      cases to look forward to in the 2009-            • Missouri Pacific Railroad Co. v.
                                                                                       mandamus review for when        2010 term. T he court’s backlog is at its Limmer, argued Nov. 13, 2007: This
                                                                                       the trial court commits a       lowest level since 2002. But there are case, involving a wrongful-death claim
                                                                                       clear abuse of discretion       still some hot issues that were argued resulting from an accident at a railroad
                                                                                       or violates a duty imposed      but not decided during past terms, crossing, presents a host of procedural
                                                                                       by law and there is no          including whether parties can contract questions for the court to answer. For
                                                                                       other adequate remedy           for expanded court review of arbitration starters, the court will decide whether
                                                                                       by law. Periodically, the       awards, what to do with a contingent the signals at a train crossing were
                                                                                       high court has engaged in       fee when a client sues a lawyer for federally funded, triggering the applica-
                                                                                       heated fights over whether       malpractice and how to evaluate an tion of federal law rather than state law
                                                                                       to depart from the Walker       expert witness’ reliability.                 for the purposes of a tort claim. The
                                                                                       standard, three appellate            Here is a list of pending cases that court also will determine exactly how
                                                                                       lawyers say.                    lawyers are watching in the coming specific defense counsel need to be to
Columbia plaintiffs’ lawyer Ben Martin says the court                                       Cooper says he thought     year:                                        preserve error when objecting to mul-
has expanded mandamus review exponentially, “the the court might be will-                                                   • Akin Gump Strauss Hauer & Feld tiple damage theories presented in jury
effect of which is to overturn plaintiff verdicts and disal- ing to expand mandamus                                    v. National Development and Research charges that contain an apportionment
low plaintiff recoveries.”                                                             review as far back as 2000,     Corp., argued Dec. 9, 2008: This case question.
                                                                                                                       could affect damage awards in legal-             • Robinson v. Crown Cork & Seal
                                                                                                                       malpractice suits. The issue of first Co., argued Feb. 7, 2008: This case chal-
 TEXAS SUPREME COURT MANDAMUS PETITIONS                                                                                impression — if the court reaches it lenges retroactive limits on corporate-
                                                                                                                       — is whether actual damages awarded successor liability in asbestos claims, as
                                            CAUSES ADDED THROUGH                         CAUSES DISPOSED OF            in a legal-mal suit can be offset by the set out in H.B. 4, the tort reform bill the
                                                   MANDAMUS                              THROUGH MANDAMUS              amount the plaintiff owed its former Texas Legislature passed in 2003. It’s the
 2001-2002                                                 9                                        9                  lawyers in a contingent-fee agreement biggest H.B. 4 issue before the court.
                                                                                                                       in prior litigation.                         The case also is interesting because it
 2002-2003                                                 2                                        3                       • Whirlpool Corp. v. Camacho, pits two former Texas Supreme Court
 2003-2004                                                 8                                        7                  argued March 10: Expert witness cases justices against each other as lead
 2004-2005                                                 33                                      28                  always receive a lot of attention, and appellate counsel for each side. Tom
                                                                                                                       this case will be no exception. The Phillips, a partner in the Austin office of
 2005-2006                                                 30                                      30                  Texas Supreme Court will address Baker Botts, represents Crown Cork &
 2006-2007                                                 27                                      26                  the interplay between its own expert Seal. Deborah Hankinson, a partner in
                                                                                                                       witness doctrine and that laid out by Dallas’ Hankinson Levinger, represents
 2007-2008                                                 21                                      26
                                                                                                                       the U.S. Supreme Court in Daubert v. Barbara Robinson.
 Note: Numbers above are for regular causes. Numbers for the 2008-2009 term were not available.
 Source: Texas Supreme Court Clerk’s Office.
                                                                                                                       Merrell Dow Pharmaceuticals, regard-                            — JOHN COUNCIL

 2008-2009 Term
                                                                                                                                                      APPLICATION DENIED                     MOTION FOR
 JUSTICE                                         MAJORITY                 PER CURIAM                  CONCUR                   DISSENT                                                                                             OTHER                          TOTAL
                                                                                                                                                       WITH PER CURIAM                       REHEARING
 WALLACE JEFFERSON                                     10                          1                        2                       3                               0                                 0                                0                            16
 NATHAN HECHT                                           7                          1                        2                       5                               1                                 1                                0                            17
 HARRIET O’NEILL                                        7                          5                        0                       6                               0                                 0                                0                            18
 DALE WAINWRIGHT                                        3                          4                        2                       3                               0                                 0                                1                            13
 SCOTT BRISTER*                                        10                          6                        4                       5                               0                                 0                                1                            26
 DAVID MEDINA                                           7                          3                        0                       1                               0                                 0                                0                            11
 PAUL GREEN                                            10                         10                        0                       2                               0                                 0                                0                            22
 PHIL JOHNSON                                          12                          6                        2                       3                               0                                 0                                0                            23
 DON WILLETT                                            9                          2                        5                       2                               0                                 0                                0                            18
 TOTALS                                                75                         38                       17                      30                               1                                 1                                2                            164
 * Left the court as of Sept. 7, 2009.
 Note: With the exception of Chief Justice Wallace Jefferson, the justices are listed in order of seniority. Numbers are for Sept. 1, 2008, to Aug. 31, 2009. The totals above do not include a high court majority opinion authored by 3rd Court of Appeals Justice Alan
 Waldrop of Austin, who sat by designation.
 Source: Texas Supreme Court Clerk’s Office.
14    TEXAS LAWYER                                                                                                                                   SEPTEMBER 21, 2009

                                                                                                              c o n t i n u e d f r o m p a g e 13

                            TEXAS SUPREME COURT CASE BACKLOG                                             (2008), the court expanded mandamus jurisdiction
                                                                                                         again to include interlocutory review of petitions for
                                                                                                         mandamus when the purpose of the state’s pre-2003
                                                                                                         health-care statute would otherwise be defeated. Justice
 80                                                                                                      Dale Wainwright famously began his dissenting opinion
                                                                                                         with the lyrics to the Disney song “A Whole New World”
                                                                                                         to emphasize that the majority’s opinion means “a whole
                                                                                                         new world of mandamus practice” is here. [See “Legisla-
 70                                                                                                      tive Purpose Supports Granting Mandamus Writ,” Texas
                                                                                                         Lawyer, May 23, 2008, page 1.]
                                                                                                             “One of the things that I think you’ve seen in some
 60                                                                                                      of the cases is the use of mandamus relief in the spirit
                                                                                                         of judicial efficiency. Instead of forcing a party to go
                                                                                                         through a meaningless trial, let’s take care of this now
                                                                                                         instead of wasting the party and the court’s time,” says
 50                                                                                                      Cooper, who represents the defendants in Columbia and
                                                                                                         Baylor. “And you saw that in the Columbia case; it was
                                                                                                         part of whether there was an adequate remedy by appeal.
                                                                                                         That was part of the reason for reviewing the case by
 40                                                                                                      mandamus.”
                                                                                                             Dallas solo Ben Martin, who represents the plaintiffs
                                                                                                         in Columbia, says the court has expanded mandamus
 30                                                                                                      review exponentially, “the effect of which is to overturn
                                                                                                         plaintiff verdicts and disallow plaintiff recoveries.”
                                                                                                             William M. Hayner Jr. of Dallas’ William M. Hayner
                                                                                                         & Associates, who represents the plaintiffs in Baylor,
 20                                                                                                      did not return a telephone call seeking comment before
                                                                                                         presstime on Sept. 17.
                                                                                                             But Columbia and Baylor are indicative of the con-
 10                                                                                                      tinuing mandamus debate raging at the Texas Supreme
                                                                                                         Court, says appellate lawyer Kurt Kuhn, a partner in the
                                                                                                         Austin office of Brown McCarroll.
                                                                                                             “Really what it is is a balancing between getting the
                                                                                                         law right as they see it and the trial court’s discretion,”
                                                                                                         Kuhn says of the mandamus debate. “Historically the
                                                                                                         grant for a new trial was going to be unreviewable,” says
 Source: Austin solo Pamela Stanton Baron. Numbers include cases argued and submitted but not decided.   Kuhn, adding that the cases are interesting because they
                                                                                                         get to the heart of “the Supreme Court’s attempt to align

                                                                “McKool Smith is on quite
                                                                 a roll, folks.” The AmLaw Litigation Daily
SEPTEMBER 21, 2009                                                                                                                                                                               TEXAS LAWYER                 15
the law and the district court’s ability to control their own                              to the whole system. Mandamus should not be a method
courtroom.”                                                                                of policy change. And that’s how they’re using it. Policy
    Appellate lawyer Susan Hays, a partner in Dallas’                                      change should be left to the Legislature, if you’re a good
Geisler Hays, is disturbed by the high court’s expansion                                   conservative jurist.”
of mandamus review.                                                                             Craig Enoch, a former Texas Supreme Court justice
    “That’s why we have checks and balances, and they                                      who is a shareholder in the Austin office of Winstead,
keep violating that to decide any case that they want to,”                                 says the mandamus trend at the court may boil down to
Hays says of the high court. “Anytime one branch of                                        money.
government aggrandizes its own power, it’s dangerous                                            “In the early jurisprudence, the court was careful
                                                                                           to say, ‘Just because it’s expensive to try a case is not
                                                                                           a reason for the appellate court to intervene before the
                                                                                           trial has played out,’ ” Enoch says. “But it seems that as
                       TEXAS SUPREME COURT                                                 [litigation] has become extraordinarily more expensive

                         MAJORITY OPINIONS                                                 in discovery . . . the court has really moved away from
                                                                                           that bright-line rule and is realizing that a wasted trial is
                      OVER THE PAST 11 TERMS                                               very expensive and the appellate courts should be more
                                                                                           active in overseeing the pretrial decisions that affect the
                                                                                           outcome are correct.”
                                                                                           Mandamus Statistics

                                                                                                                                                                                                                                      MARK GRAHAM
                                                                                               Statistics show that the high court is willing to

                                                                                           dispose of more cases through mandamus review.
                                                                                           According to figures provided by the Texas Supreme
                              60                                                           Court Clerk’s Office, between the 2004-2005 term and             Susan Hays is disturbed by the high court’s expansion
                                                                                           the 2007-2008 term, the court disposed of an average            of mandamus review. “That’s why we have checks and
                              45                                                           of 28 cases per term through mandamus. Between                  balances, and they keep violating that to decide any
                                                                                           the 2001-2002 term and 2003-2004 term, the court                case that they want to.”
                              30                                                           disposed of an average of six cases per term through
                                                                                           mandamus. [See “Texas Supreme Court Mandamus
                                                                                                                                                               While some appellate practitioners predicted that
                                                                                           Petitions,” page 13.]
                              15                                                                                                                           Prudential and AIU Insurance would open the floodgates
                                                                                               O’Neill, who consistently has dissented in deci-
                                                                                                                                                           of mandamus review, Hecht says that hasn’t happened.
                                                                                           sions that expand mandamus review, believes it’s no
                                                                                                                                                               “I don’t think it changed the prevalence of manda-
                              0                                                            coincidence the court disposed of more cases through
                                                                                                                                                           mus relief. It certainly changed the analysis,” Hecht
                                  ‘98- ‘99- ‘00- ‘01- ‘02- ‘03- ‘04- ‘05- ‘06- ‘07- ‘08-   mandamus after 2004 — the year the court decided In
                                  ’99 ’00 ’01 ’02 ’03 ’04 ’05 ’06 ’07 ’08 ’09              Re: Prudential and In Re: AIU Insurance. Those two deci-            The increase in mandamus relief since 2004 may be
                                                                                           sions signaled that a majority of the court was willing to      related to specific statutory questions that arrive at the
                                                          TERM                             use a more subjective standard in determining whether           court via mandamus, Hecht says.
                                                                                           mandamus review is available, she says.                             For example, the court has struggled with the question
     Source: Texas Supreme Court Clerk’s Office.
                                                                                               “I would attribute it to that. That significantly loos-
                                                                                           ened the standard,” O’Neill says of Prudential and AIU                                                  c o n t i n u e d o n p a g e 16
16    TEXAS LAWYER                                                                                                                                                       SEPTEMBER 21, 2009

     c o n t i n u e d f r o m p a ge 1 5                      with the majority’s mandamus analysis but argued that,        reviewed by mandamus or none of them can. It’s not a
                                                               in some cases, a deficient report could be so bad it is akin   one-size-fits-all review.”
of what constitutes a statutorily required expert report in    to filing no expert report at all.
medical-malpractice cases as a result of the sweeping H.B.         Former Justice Scott Brister, who wrote the majority      Low Backlog
4 tort reform measure the Texas Legislature passed in          opinion in Watkins, which denied mandamus review of              A look at the court’s 2008-2009 term shows that it
2003. The court has taken that issue up nearly three dozen                                                                   has the lowest backlog of cases in six years. [See “Texas
                                                               deficient med-mal expert reports, usually sided with the
times since the law passed. [See “Adversaries Willing to                                                                     Supreme Court Cases to Watch,” page 13.]
                                                               majority in decisions expanding mandamus review. His
Talk About Most-Litigated Part of H.B. 4,” Texas Lawyer,                                                                        The court carried over 28 cases, according to a docket
                                                               decision in Watkins shows how unpredictable the high
May 25, 2009, page 1.] And expert report cases reach the                                                                     analysis report prepared by Austin appellate solo Pamela
                                                               court justices can be when making decisions that affect       Stanton Baron for the State Bar of Texas’ Annual Advanced
court via mandamus.
                                                               mandamus jurisprudence, he says.                              Civil Appellate Law Course. That number is down from a
    One such mandamus decision dealing with expert
                                                                   “My experience has been that former trial judges          high of 60 cases pending at the end of the 2006-2007 term.
reports in the court’s 2008-2009 term was In Re: Watkins.
In a Jan. 23 opinion, the court upheld an important tenet of   think there should be less mandamus. Former trial             [See “Texas Supreme Court Case Backlog,” page 14.]
Chapter 74 of the Texas Civil Practice & Remedies Code:        lawyers and appellate judges think there should some-            Turnover at the court and the learning curve for
If the plaintiffs do not file an expert report, a defendant     times be more. But really it comes down to the issue,”        incoming justices contributed to the backlog. But the
can file an interlocutory appeal, but if the report is merely   says Brister, who resigned from the court on Sept. 7          court has had the same justices since Aug. 24, 2005, when
deficient, then an interlocutory appeal is prohibited. The      and now is a partner in the Austin office of Andrews           Justice Don Willett was sworn into office.
majority also found that allowing mandamus review of           Kurth. “And that was part of the point of Prudential —           That four-year stretch marks the longest time the
such disputes would subvert the Legislature’s intent in        we’re going to look at the impact in this case. We’re         court has had the same membership since it became a
creating Chapter 74. Two concurring opinions agreed            not trying to write a rule that all expert reports can be     nine-justice court in September 1945, Hecht says.
                                                                                                                                               “Over 160 years, we’ve gotten a new judge
                                                                                                                                           about once a year. And the U.S. Supreme

                                                                                                                                           Court gets one about every two years, on

                                                                                                                     No ilab
     Q: Why do you see so many criminal

                                                                                                                                           average,” Hecht says. “At one point, we were

                                                                                                                        w le!
                                                                                                                                           getting a new judge every six months. That’s
                                                                                                                                           just a lot of turnover.”

                           lawyers toting the “Texas Criminal                                                                             A look at the court’s
                           Codes & Rules” around the courthouse?                                                                          2008-2009 term
                                                                                                                                          shows that it has the
                                             A:          Because it is the single best                                                    lowest backlog of
                                                         source of the latest Texas                                                       cases in six years.
                                                         criminal law and procedure.                                                           And the consistency of the court’s mem-
                                                                                                                                          bership has helped the court get cases
                                                                                                                                          decided, he says. [See “Texas Supreme Court
                                                                                                                                          Majority Opinions Over the Past 11 Terms,”
                                                                                                                                          page 15.]
                                                                                                                                               “I think that’s the principal reason for it.
                                                           The thoroughly up-to-date “2010 Texas Criminal                                 It just helps a lot if there’s not that turnover,”
                                                           Codes & Rules” includes:                                                       Hecht says.
                                                                                                                                               But with Brister no longer on the court
                                                                  • Over 120 new annotations
                                                                                                                                          and O’Neill’s announcement that she will
                                                                  • Court of Criminal Appeals rules,                                      not seek re-election when her term expires
                                                                    procedures and instructions                                           in 2010, there will be more turnover on the
                                                                  • Pull-out chart listing controlled substance                           state’s highest civil court.
                                                                                                                                               Johnson says he is not worried that the
                                                                    offenses, punishment ranges and enhanced
                                                                                                                                          departures will slow the court’s opinion
                                                                    felony punishment ranges — a great                                    production again. “Quite frankly, knowing
                                                                    reference when you’re on the go at the                                that you’re going to have turnover . . . makes
                                                                    courthouse                                                            you want to dig and put out extra effort,”
                                                                                                                                          he says.
                                                                  • A glossary of Spanish legal terms for Texas
                                                                                                                                               But soon, an appointment by Gov. Rick
                                                                    criminal practice                                                     Perry to replace Brister will end a record
                                                                  • Code of Criminal Procedure                                            set by Willett as the nine-member court’s
                                                                  • Penal Code                                                            longest serving junior justice.
                                                                                                                                               “I’m the Cal Ripken of court cabooses,”
                                                                  • Rules of Evidence
                                                                                                                                          Willett says. “When I joined the court, I
                                                                  • Rules of Appellate Procedure                                          was a 30-something father of one. I’m now a
                                                                  • Selected portions of the Family Code,                                 40-something father of three — almost 1,500
                                                                    Health & Safety Code, Transportation Code                             days, and every one as junior justice.”
                                                                    and the Controlled Substances Act
                                                                  • Direct quotes from Texas court opinions
                                                                                                                                                   John Council’s e-mail address is
                                                                  • Cross-references to other applicable                              
                                                                  • Comprehensive index
                                                                                                                                                     The Texas Supreme Court
                                                                                                                                                  opinions noted above are available
                                                                                                                                                    Look for the links within the
         Order your copy for only $69.95.                                                                                                           online version of this article.
       800-456-5484 •                                                                                                  W W W   .   T E X A S L A W Y E R    .   C O M
SEPTEMBER 21, 2009                                                                                                                                                                                         TEXAS LAWYER                  17

     c o n t i n u e d f r o m p a ge 1                                                                the CCA’s ability to

    Womack says the number of majority opinions and
                                                                                                       handle its workload,
                                                                                                       but he says the case
                                                                                                                                                            CCA MAJORITY OPINIONS
the importance of the issues addressed by the CCA
depend on what cases are filed at the court. [See “CCA
                                                                                                       has taken a toll on
                                                                                                       the court. “It not only
                                                                                                                                                            OVER THE PAST 11 TERMS
                                                                                                       affected her, it affect-                                     210
Majority Opinions Over the Past 11 Terms,” this page.]
    “We don’t get to go out and hunt the cases,” he says.                                              ed the whole court,”                                         200
“We have to take what cases come to us.”                                                               Meyers says.
    Judge Cathy Cochran says no issue, including Keller’s                                                  Meyers, who has

                                                                                                                                      NUMBER OF MAJORITY OPINIONS
situation, has had an effect on the CCA’s productivity and                                             backed Keller in her                                         160

that the court is current with its docket. “There’s no               stand that she did nothing wrong, says the judicial                                            140
discord that’s affected opinions,” Cochran says.                     conduct commission basically has examined the CCA’s
                                                                     internal rules with regard to death penalty cases. “Our                                        120
    Judge Barbara Hervey says, “We go into conference.
We are professionals, [and] we act as such.”                         court was under scrutiny as to how we dealt with the                                           100
    But the Keller controversy has dogged the court. In              death penalty,” he says.
                                                                         Keller declines comment. Judge Mike Keasler says                                            80
February, the State Commission on Judicial Conduct
initiated formal proceedings against Keller in connec-               he does not feel comfortable discussing what, if any,                                           60
tion with the case of Michael Richard, whom the state                impact the allegations against Keller have had on the
                                                                     CCA.                                                                                            40
executed on Sept. 25, 2007. The commission alleges
                                                                         Three CCA judges — Cheryl Johnson, Tom Price
in its first amended petition, filed in June, that Keller                                                                                                              20
                                                                     and Charles Holcomb — did not return telephone calls
violated the CCA’s execution day procedures when she                                                                                                                 0
                                                                     to each of their offices before presstime on Sept. 17.
failed to direct to the judge assigned to that case an                                                                                                                    ‘98- ‘99- ‘00- ‘01- ‘02- ‘03- ‘04- ‘05- ‘06- ‘07- ‘08-
inquiry about keeping the clerk’s office open past 5 p.m.             Midstream Miranda Warnings                                                                           ’99 ’00 ’01 ’02 ’03 ’04 ’05 ’06 ’07 ’08 ’09
Representatives of Richard had called the clerk’s office                  Austin criminal-defense solo David Schulman, who
to say they needed to make a late filing on Richard’s                 monitors the CCA’s opinions each week, says 2008-2009                                                                        TERM
behalf. In August, Judge David Berchelmann Jr. of San                was a “blah” term. “It seems to me to be one of the                   Source: Texas Court of Criminal Appeals Clerk’s Office.
Antonio’s 37th District Court, the special master presid-            court’s more lackluster terms. Nothing stands out to
ing over In Re: The Honorable Sharon Keller, spent four              me,” Schulman says.
                                                                                                                                      one of the more important cases of the term. On Dec.
days hearing testimony in the case. Berchelmann will                     David Newell, a Harris County assistant district
                                                                                                                                      17, 2008, the CCA decided Martinez — a case that
report his findings to the judicial conduct commission,               attorney, echoes Schulman’s assessment. “I didn’t see
                                                                                                                                      deals with so-called “midstream Miranda warnings” —
which can dismiss the charges against Keller, publicly               anything groundbreaking,” says Newell, who reviews
                                                                                                                                      applying one U.S. Supreme Court justice’s concurring
censure her or recommend to the Texas Supreme Court                  the CCA’s opinions for State Bar of Texas continuing
                                                                                                                                      opinion in 2004’s Missouri v. Seibert. In Seibert, the
that she be removed from the bench. [See “Tough Fight                legal education seminars and Texas District & County
                                                                                                                                      Supreme Court considered the case of a defendant
at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug.               Attorneys Association programs.
24, 2009, page 1.]                                                       While most attorneys inter viewed for this article           whom police first questioned before administering the
    Judge Lawrence Meyers says the judicial conduct                  say the CCA produced few major opinions in the 2008-             Miranda warning and then questioned again after she
commission’s charges against Keller have not impacted                2009 term, five lawyers point to State v. Martinez as                                                                                     c o n t i n u e d o n p a g e 18

                                                                             is pleased to announce that

                          Former Supreme Court Justice Scott A. Brister
                                                            has joined the firm as a partner in the Austin office.

                                          In addition to leading the firm’s Appellate Practice Group, Judge Brister will focus his practice on
                                                             all aspects of Litigation and Alternative Dispute Resolution.

                                                 111 Congress Avenue, Suite 1700, Austin, TX 78701 | 512.320.9200 |

                                                                                          Judge Brister is Board Certified in Civil Appellate, Civil Trial and Personal
                                                        Scott A. Brister                  Injury Trial Law by the Texas Board of Legal Specialization. He served as a
                                                       Partner                            briefing attorney for Chief Justice Joe Greenhill of the Texas Supreme
                                                       Phone: 512.320.9220                Court in 1980 and 1981. He also served as a Justice on the First Court of
                                                       Fax: 512.542.5220                  Appeals in Houston and Chief Justice on the Fourteenth Court of Appeals
                                                   in Houston. He received his JD, cum laude, from Harvard Law School in
                                                                                          1980 and his BA, summa cum laude, from Duke University in 1977.
18   TEXAS LAWYER                                                                                                                                                     SEPTEMBER 21, 2009

     c o n t i n u e d f r o m p a ge 1 7                       In 2006, the 13th Court affirmed Martinez’s convic-         first and giving him the Miranda warning later is totally
                                                            tion based on the Supreme Court’s plurality decision           contrary to the Supreme Court’s Miranda ruling. The
received the warning. As noted in the Seibert plurality     in Seibert. The 13th Court found that Martinez failed          purpose of Miranda is for people to know they have the
opinion, written by then-Justice David Souter, there        to show that a police interrogation of him before he           right to talk or not to talk in an interrogation, she says.
was a short break between the two interrogations. The       received a Miranda warning undermined the effective-              Kugler says the Supreme Court is scheduled to
four-justice plurality concluded that the defendant’s       ness of that warning. The CCA disagreed, reversed the          decide whether it will hear Martinez at its Sept. 29
second confession was admissible only if the warn-                                                                         conference.
                                                            13th Court and remanded the case to that court.
ings and break in the questioning gave her sufficient
                                                                Eric Kugler, the Harris County assistant district
belief that she did not have to speak to police. But
                                                            attorney who represents the state in the petition for writ
                                                                                                                           Doctrine of Chances
in a concurrence, Justice Anthony Kennedy said the                                                                             Another interesting CCA opinion is March 25’s
                                                            of certiorari in Martinez, says the CCA majority applied       Delapaz v. State, three attorneys say. A jury convicted
police used a two-step technique in a “calculated way”
to defeat the protections of the high court’s ruling in     the rationale of one justice on the Supreme Court rather       former Dallas police detective Mark Delapaz of two
Miranda v. Arizona (1966). No other justice joined          than that of the four-justice plurality. The subjective test   charges involving making false statements in connec-
Kennedy in his concurrence.                                 on which the CCA majority based its decision in Martinez       tion with 2001 busts involving fake drugs. Delapaz
    The state argues in a petition for writ of certiorari   was not the Supreme Court’s holding in Seibert, Kugler         was sentenced to five years in prison. He appealed to
filed March 13 with the Supreme Court that the CCA           says.                                                          the 5th Court of Appeals in Dallas, which reversed the
majority misapplied the high court reasoning in Seibert         Houston solo Frances Northcutt, Martinez’s appel-          convictions in 2007.
when it reversed the capital murder conviction of Raul      late attorney, says, “We think the CCA was correct in              In reversing Delapaz’s convictions, the 5th Court held
Martinez Jr. based on the rationale in Kennedy’s concur-    applying Seibert.”                                             that the trial court’s admission of extraneous-offense evi-
rence.                                                          Northcutt says that police questioning of a suspect        dence was harmful and violated Texas Rule of Evidence
                                                                                                                                          404(b). As noted in the CCA’s opinion in
                                                                                                                                          Delapaz, the trial court admitted the state’s
                                                                                                                                          evidence that the former police detective
                                                                                                                                          made purportedly false statements in police
                                                                                                                                          reports about seeing drug deals between
                                                                                                                                          suspects and a confidential informant on
                                                                                                                                          two occasions other than that for which he
                                                                                                                                          was charged.
                                                                                                                                              The CCA decided Delapaz by an 8-0 vote
                                                                                                                                          and reversed the 5th Court, with Keller not
                                                                                                                                          participating in the case. The CCA held that
                                                                                                                                          the extraneous-offense evidence concern-
                                                                                                                                          ing Delapaz’s alleged involvement in two
                                                                                                                                          other similar acts of purported fabrication
                                                                                                                                          of drug deals was admissible to rebut the
                                                                                                                                          defense’s theory that the state’s witnesses
                                                                                                                                          who were on site when the alleged drug
                                                                                                                                          deal occurred lied.
                                                                                                                                              The CCA also held that the extraneous-
                                                                                                                                          offense evidence alleging Delapaz was
                                                                                                                                          involved in the other two acts of purported
                                                                                                                                          fabrication of drug deals was admissible
                                                                                                                                          under the “doctrine of chances.”
                                                                                                                                              Cochran, author of the opinion in Dela-
                                                                                                                                          paz, wrote for the court, “The ‘doctrine of
                                                                                                                                          chances’ tells us that highly unusual events
                                                                                                                                          are unlikely to repeat themselves inadver-
                                                                                                                                          tently or by happenstance. . . . The chance
                                                                                                                                          that a man innocently collects on his mur-
                                                                                                                                          dered business partner’s insurance policy
                                                                                                                                          decreases significantly when it is learned
                                                                                                                                          that he collected on his murdered wife’s
                                                                                                                                          insurance policy just three years earlier.”
                                                                                                                                              According to the opinion, “The extraor-
                                                                                                                                          dinary coincidence that appellant saw drug
                                                                                                                                          deals that no one else did three different
                                                                                                                                          times flies in the face of common sense.”
                                                                                                                                          Under the doctrine of chances, jurors could
                                                                                                                                          conclude objectively that Delapaz was incor-
                                                                                                                                          rect in the police report at issue in the case
                                                                                                                                          or that he was not truthful in testifying that
                                                                                                                                          he saw the drug deal he reported, Cochran
                                                                                                                                              Mesquite solo April Smith, who repre-
                                                                                                                                          sented Delapaz, did not return a telephone
                                                                                                                                          call seeking comment. Dallas County Assis-
                                                                                                                                          tant District Attorney Kristin Hagge, who
                                                                                                                                          represented the state, did not respond to a
                                                                                                                                          telephone call and an e-mail.
                                                                                                                                              Botsford, who was not involved in
                                                                                                                                          Delapaz but who reviewed the CCA’s
                                                                                                                                          opinion, says, “I don’t buy into the doctrine
                                                                                                                                          of chances.” He says he does not think it is
                                                                                                                                          proper to inject a probability analysis into
                                                                                                                                          the question of whether extraneous-offense
                                                                                                                                          evidence is admissible because of the pos-
                                                                                                                                          sibility of prejudicing the jury against the
                                                                                                                                          defendant. Jurors typically believe that if
                                                                                                                                          people violate the law, they are going to
                                                                                                                                          violate it again and again, Botsford says.
SEPTEMBER 21, 2009                                                                                                                                                                                                    TEXAS LAWYER                  19

 2008-2009 Term
 JUDGE                                                  MAJORITY                   PER CURIAM                        CONCUR                    DISSENT              CONCUR/DISSENT           REHEARING GRANTED               TOTAL
 SHARON KELLER                                                13                           33                             7                         13                      0                          0                         66
 LAWRENCE MEYERS                                              11                           26                             2                          9                      0                          0                         48
 TOM PRICE                                                    13                           18                             9                          3                      2                          0                         45
 PAUL WOMACK                                                  19                           23                             8                          4                      0                          0                         54
 CHERYL JOHNSON                                               16                           12                             9                          3                      0                          0                         40
 MIKE KEASLER                                                 11                           24                             3                          1                      0                          0                         39
 BARBARA HERVEY                                               13                           17                             2                          6                      0                          0                         38
 CHARLES HOLCOMB                                              15                           21                             2                          4                      0                          0                         42
 CATHY COCHRAN                                                20                           38                            14                          2                      0                          1                         75
 TOTALS                                                      131                          212                            56                         45                      2                          1                        447
 Note: With the exception of Presiding Judge Sharon Keller, the judges are listed in order of seniority. Numbers are for Sept. 1, 2008, to Aug. 31, 2009.
 Source: Texas Court of Criminal Appeals Clerk’s Office.

Constitutional Challenge                                                                     offend another.”                                                                   challenge of a statute at trial.
    Four attorneys say the CCA’s April 22 decision in                                            According to the 2nd Court’s opinion, Karenev did                                  Denton solo William Trantham, who represents
Karenev v. State is important because the majority                                           not challenge the constitutionality of the harassment                              Karenev, says the CCA majority opinion basically says
held that a defendant cannot raise a challenge to the                                        statute at trial. Dauphinot noted in the opinion that                              that it is not fair to the state and trial court to raise a
                                                                                             §42.07(a)(7) does not define the term “repeated” or                                 facial challenge to a statute for the first time on appeal.
constitutionality of a statute for the first time on appeal,
                                                                                             indicate the requisite frequency of communications                                 “We now have an it-wouldn’t-be-fair decision,” he says.
reversing a 2008 ruling by Fort Worth’s 2nd Court of
                                                                                             for there to be an offense. The 2nd Court held that the                            “I think clearly the statute is a mess.”
                                                                                             statute is unconstitutionally vague and reversed the trial                             State Prosecuting Attorney Jeffrey Van Horn, who
    The 2nd Court’s opinion in Karenev, written by Justice                                                                                                                      represents the state in Karenev, says a defendant
                                                                                             court, rendering a judgment of acquittal for Karenev.
Lee Ann Dauphinot, presents the following background                                                                                                                            formerly had an opportunity to raise for the first time
                                                                                                 The CCA disagreed. Meyers, Keasler, Hervey and
on the case: A Denton County jury convicted Nikolai                                          Holcomb joined Keller, author of the majority opinion                              on appeal a facial challenge that a statute was unconstitu-
Ivanov Karenev on one count of harassment stemming                                           in Karenev, in holding that a defendant must raise a                               tional because of vagueness in all circumstances. But Van
from e-mails he sent to his estranged wife. The trial                                        constitutional challenge to a statute at trial to preserve                         Horn says challenges involving the constitutionality of a
court sentenced Karenev to 120 days in jail, probated                                        the error. “The State and the trial court should not be                            statute as it applies to a particular individual have to be
for 18 months, and fined him $500. In his appeal to the                                       required to anticipate that a statute may later be held                            raised in the trial court. Van Horn says he sees no reason
2nd Court, Karenev challenged the constitutionality of                                       unconstitutional,” Keller wrote. Cochran wrote in a con-                           to treat those two types of challenges differently.
Texas Penal Code §42.07(a)(7), which makes it unlaw-                                         curring opinion, in which Price, Womack and Johnson                                    Newell, who was not involved in Karenev but who
ful to send repeated electronic communications “likely                                       joined, that the majority “paints with too broad a brush”
to harass, annoy, alarm, abuse, torment, embarrass or                                        in deciding absolutely that a defendant must raise a facial                                                                 c o n t i n u e d o n p a g e 20

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20    TEXAS LAWYER                                                                                                                                                                   SEPTEMBER 21, 2009

     c o n t i n u e d f r o m p a ge 1 9                            Kevin Yeary, the Bexar County assis-

reviewed the Court of Criminal Appeals
                                                                 tant district attorney who filed the peti-
                                                                 tion, says, “We respectfully disagree with      PREGNANT PROBATIONER CLAIMS STATE’S
                                                                 the court of appeals that the statute is
opinions, says the CCA did not decide
whether §42.07(a)(7) is unconstitution-                          unconstitutionally vague as it currently        PUNISHMENT JUST DOES NOT FIT
ally vague but held only that a defendant                        exists.”
                                                                     Yeary says that while the 2nd and 4th           One of the most interesting cases
cannot wait until an appeal to raise a facial                                                                    coming up in the Texas Court of
challenge to a statute.                                          Courts of Appeals have held that certain
                                                                 provisions of the harassment statute are        Criminal Appeals’ 2009-2010 term
    However, the CCA now has an oppor-                                                                           involves alleged gender discrimina-
tunity to address whether provisions of                          unconstitutionally vague, three other
                                                                                                                 tion. A woman claims the state
the harassment statute pass constitutional                       intermediate appellate courts — Austin’s
                                                                                                                 punished her more severely for using
muster. On June 24, San Antonio’s 4th                            3rd Court, Dallas’ 5th Court and Hous-
                                                                                                                 drugs while on probation than it does
Court of Appeals held in Scott v. State that                     ton’s 14th Court — have held that the
                                                                                                                 probationers who are not pregnant.
Penal Code §42.07(a)(4), which addresses                         statute is not overbroad. According to the
                                                                                                                     On Oct. 21, the CCA will hear
repeated, harassing telephone calls, and                         state’s petition in Scott, the 3rd Court held
                                                                                                                 arguments in State v. Lovill. The
§42.07(a)(7), which addresses repeated,                          in 2007’s Gillenwaters v. State and 2006’s
                                                                                                                 Nueces County District Attorney’s
harassing electronic communications, are                         Park v. State that §42.07(a)(4) “does not
                                                                                                                 Office petitioned the CCA in June to
unconstitutionally vague.                                        implicate conduct protected by the First
                                                                                                                 review Lovill in response to Corpus
    According the 4th Court clerk’s office,                       Amendment.”
                                                                                                                 Christi’s 13th Court of Appeals’ rul-
Bexar County prosecutors filed their peti-                            But Donald H. Flanary III, attorney for
                                                                                                                 ing in the case.
tion for discretionary review (PDR) of Scott                     Samuel Scott and an associate with San                                                    Douglas Norman says the fact that
                                                                                                                     Brian Miller, Amber Lovill’s attor-
in the 4th Court on Aug. 24 for submission                       Antonio’s Goldstein, Goldstein & Hilley,                                                  Amber Lovill was pregnant was only
                                                                                                                 ney, contends the case involves the
to the CCA. Under Texas Rule of Appellate                        says he believes the harassment statute,                                                  one consideration in the decision to file
                                                                                                                 selective prosecution of his client
Procedure 68.3, a party files a PDR in the                        as written, is so broad that it makes unlaw-                                              a probation violation report against her.
                                                                                                                 in violation of her equal-protection
court of appeals that decided the case. The                      ful the unsolicited “robocalls” placed by
                                                                                                                 rights to be free from gender bias.
intermediate appeals court then has 60                           political parties. “I don’t see any way                                                   the due-process and equal-protection
                                                                                                                 “The outcome of this case, hope-
days to issue a new opinion or it is required                    constitutionally this statute can stand,”                                                 clauses of the 14th Amendment to the
                                                                                                                 fully, will preclude any attempts to
to forward the petition to the CCA.                              Flanary says.                                                                             U.S. Constitution and the Equal Rights
                                                                                                                 impose more severe punishment on
                                                                                                                                                           Amendment and due-process clause
                                                                                                                 women because they are or become
                                                                                                                                                           of the Texas Constitution. At an Oct.
                                                                                                                 pregnant,” says Miller, of counsel at
       Mary Alice Robbins’ e-mail address is                                                                          4, 2007, hearing two CSCD officers
                                                                                                                 Royston, Rayzor, Vicker y & Williams
                                                                                                                                                           testified that Lovill’s pregnancy was a
                                                                                                                 in Corpus Christi.
                                                                                                                     Douglas Norman, the Nueces            factor in the decision to file the viola-
                                                                                                                 County assistant district attorney who    tion report. The trial court denied the
                                            The CCA opinions noted above are available on                        filed the state’s petition in the CCA,    motion for new trial on the day of the
                                     Look for the links                            says the fact that Lovill was pregnant    hearing, finding that the motion to
                                               within the online version of this article.                        was only one consideration in the         revoke probation was not prosecuted
                                                                                                                 decision to file a probation violation    because of her pregnancy. Then, Lovill
                                                                                                                 repor t against her. “The primar y        filed a petition for writ of habeas
                                        W W W    .   T E X A S L A W Y E R      .   C O M                                                                  corpus, which the trial court denied
                                                                                                                 consideration was she tested positive
                                                                                                                 for drug use,” Norman says.               without a hearing. Lovill appealed to
                                                                                                                     The 13th Court’s opinion provides     the 13th Court.
                                                                                                                 the following background on the               According to the 13th Court’s
        Fully                                              Cornell & Martin’s                                    case: In Januar y 2005, Lovill pleaded
                                                                                                                 guilty to two counts of felony forger y
                                                                                                                                                           opinion, the trial court must have dis-
                                                                                                                                                           regarded all the evidence presented

                                                            Texas Insurance
                                                                                                                                                           at the hearing on Lovill’s motion for
      Updated                                                                                                    as part of a plea bargain with the
                                                                                                                 state. The trial court sentenced Lovill   a new trial. Justice Gina Benavides,
                                                                                                                                                           author of the opinion, wrote for the
                                                               Law Digest
                                                                                                                 to two years in state jail, which the
     4th Edition                                                                                                 court suspended, and it placed Lovill
                                                                                                                 on probation for three years. The
                                                                                                                                                           court, “In this case, the trial court
                                                                                                                                                           was not free to disregard evidence
                                                                                                                 state twice filed motions to revoke       presented at the hearing showing a
                                                                                                                 Lovill’s probation for alleged viola-     discriminator y effect, which allowed
                                                                                                                 tions, including testing positive for     only a single conclusion. We hold the
                                                              Cornell & Martin’s Texas Insurance Law Di-         amphetamines, and Lovill admitted         fact finding is not supported by the
                                                                                                                 the alleged violations. A Nueces          evidence.”
                                                              gest is written by two of Texas’ top                                                             The 13th Court reversed the trial
                                                                                                                 County Community Super vision and
                                                                                                                 Corrections Department (CSCD) offi-       court’s order denying Lovill’s writ
                                                              insurance law practitioners, James L. Cornell
                                                                                                                 cer recommended at an August 2007         petition and remanded the case to the
                                                              and Christopher W. Martin, and contains            hearing that Lovill be “sanctioned” by    trial court for further proceedings.
                                                                                                                 placing her in the Substance Abuse        Chief Justice Rogelio Valdez and
                                                              summaries of more than 500 Federal and             Felony Punishment Facility (SAFPF)        Justice Dori Contreras Garza joined
                                                                                                                 special needs unit. The officer testi-    Benavides in the decision.
                                                              State insurance law opinions relating to
                                                                                                                 fied that the reason for the violation        Lovill argues in her brief to the
                                                              Texas law from the past ten years. This            report against Lovill was the positive    CCA that using pregnancy as a
                                                                                                                 urinalysis and “her being pregnant.”      factor in punishment increases the
                                                              convenient desktop reference will benefit           The trial cour t ordered Lovill to        likelihood a woman will conceal or
              Now                                             the general practitioner (who, from time
                                                                                                                 ser ve from three to 12 months in the
                                                                                                                 SAFPF and added a year to her term
                                                                                                                                                           terminate a pregnancy rather than
                                                                                                                                                           get prenatal care.
            Available                                         to time, may represent either an insurance         of probation.                                 The state argues in its brief to the
                                                                                                                     The 13th Court’s opinion also         CCA that Lovill failed to prove that the
           List Price: $79.95                                 carrier or consumer) as well as the insurance      provides the following procedural         violation report at issue in her case
                                                                                                                 background on the case: Lovill filed a     was submitted by the CSCD because
                                                              specialist who needs timely access to              motion for new trial on Aug. 20, 2007,    she was pregnant or that pregnancy
                                                                                                                 asserting that the motion to revoke her   was even a factor in the super visor’s
                                                              summaries of important opinions.
                                                                                                                 probation should have been dismissed      decision to file the report.
                                                                                                                 because she was prosecuted selec-             “The super visor who made the
                                                                                                                 tively based on her gender. Lovill also   decision never testified,” Norman
                                                                                                                 argued that prosecution of the revoca-    says.
                            Order at or 800.456.5484.
                                                                                                                 tion motion denied her rights under                 — MARY ALICE ROBBINS