w w w . t e x a s l a w y e r . c o m
SEPTEMBER 21, 2009 • VOL. 25 • NO. 25 • $9.00
BUSINESS AS USUAL? JUDGES SAY CCA UNAFFECTED BY KELLER CASE
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
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
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
TREND WATCH: TEXAS SUPREME COURT EXPANDS MANDAMUS REVIEW
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
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
TEXAS SUPREME COURT CASELOAD
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
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.”
Statistics show that the high court is willing to
NUMBER OF MAJORITY OPINIONS
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
Q: Why do you see so many criminal
average,” Hecht says. “At one point, we were
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,”
“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,”
• 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 firstname.lastname@example.org.
• 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 • TexasLawyerPress.com W W W . T E X A S L A W Y E R . C O M
SEPTEMBER 21, 2009 TEXAS LAWYER 17
BUSINESS AS USUAL? JUDGES SAY CCA UNAFFECTED BY KELLER CASE
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
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 | andrewskurth.com
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
email@example.com 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
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
COURT OF CRIMINAL APPEALS CASELOAD
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
Over 500 Appeals
Strength Training Representing business in
high-risk litigation for 40 years
Sauna Robert B. Gilbreath
Chair of Appellate Department
Board Certiﬁed in Civil Appellate
Steam Law by the Texas Board of Legal
Daily & Private Specialization.
Call for a complimentary trial membership. Laundry Service
HAWKINS PARNELL & THACKSTON LLP
4514 COLE AVENUE • 5TH FLOOR • DALLAS TX 75205
214.780.5100 • WWW . HAWKINSPARNELL . COM
800 Main Street
Floor 15 ATLANTA • CHARLESTON • DALLAS • LOS ANGELES
Dallas • 75202
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 firstname.lastname@example.org. 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
www.texaslawyer.com. 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
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
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 www.texaslawyerpress.com or 800.456.5484.
tion motion denied her rights under — MARY ALICE ROBBINS