Texas Fair Defense Act: 2007

Sunday, December 16, 2007

All those TYC "clients" fund "machine" and by golly they will be tried as adults or denied 6th amendment, but Delay will get paid with out Delay!

Chisme is not verdad, but it would be prudent to tell all of you Medicaid coverage is bankrolled by the government to the tune of $600 dollars per recipient /per month.

Now you do the math.

Right John?

Malicious Prosecutor.....your damn right it is personal!

http://stxv.blogspot.com/

Sunday, November 25, 2007

The Mootness of this Act is the Joke of the ABA~Texas Justice~ $$$$$$$

Breach of confidence
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The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of the claimant.

Establishing breach of confidentiality depends on proving the existence and breach of a duty of confidentiality. Courts in the US look at the nature of the relationship between the parties. Most commonly, breach of confidentiality applies to the patient-physician relationship but it can also apply to relationships involving banks, hospitals, insurance companies.

Saturday, November 17, 2007

Texas court of Criminal appealsdid not take any action on this motion.......

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NUMBER 13-02-439-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

IN RE: JESSICA GARCIA

On Petition for Writ of Mandamus

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Relator, Jessica Garcia, has filed a petition for writ of mandamus complaining that the trial court abused its discretion in reinstating the lawsuit of the real party in interest, Virginia Carroll-Boyd. We conditionally grant relief.

Background

The trial court dismissed a personal injury case for want of prosecution. Thirteen days later, the plaintiff filed an unverified motion for new trial and to reinstate, alleging merely that:

The Plaintiff requests that her case be reinstated and that she be granted a new trial. The Plaintiff=s attorney was in Austin, Texas on February 22, 2002, and desires to proceed . . . .

The trial court did not take any action on this motion. One hundred and eight days after the order of dismissal was entered, the plaintiff=s attorney filed an affidavit stating that he Areceived no Notice of this case being placed on the Dismissal Docket or of the hearing scheduled for February 22, 2002 . . . .@ The affidavit provided that the attorney had moved his law office to Austin in October of 2001, and had notified the Nueces County District Clerk regarding his change of address. Thus, the attorney alleged that the cause was dismissed without proper notice, and that the plaintiff wished to pursue her case. The trial court granted the motion to reinstate and motion for new trial the day after this affidavit was filed. The defendants in this case have filed a petition for mandamus on grounds that the trial court acted without jurisdiction in granting the motion to reinstate and for a new trial.

Mandamus is Proper Remedy

If the trial court erroneously reinstates a case after it loses jurisdiction, the ruling can be challenged by mandamus. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994); see, e.g., City of McAllen v. Ramirez, 875 S.W.2d 702, 704 (Tex. App.BCorpus Christi 1994, orig. proceeding).

Analysis

A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution. Tex. R. Civ. P. 165(a)(3), (4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.BHouston [1st Dist.] 1995, no writ). A verified motion to reinstate filed within thirty days of dismissal extends plenary power for the same amount of time as would a motion for new trial. Tex. R. Civ. P. 165(a)(3), (4); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding).

In this case, the plaintiff=s motion to reinstate was not verified and did not include affidavits. An unverified motion is a nullity and does not extend the trial court=s plenary jurisdiction or the deadlines for perfecting an appeal. McConnell, 800 S.W.2d at 194. Therefore, the trial court=s plenary jurisdiction expired because the plaintiff did not file a verified motion within thirty days after the order of dismissal. Id. Accordingly, the trial court had no authority to grant the reinstatement motion after March 25, 2002, thirty days after the February 22, 2002, dismissal (the thirtieth day falls on a weekend).

We cannot consider the late-filed affidavit as an amended motion to reinstate because any amended motion was also required to be filed within thirty days of the date the dismissal order was signed. See Mandujano v. Oliva, 755 S.W.2d 512, 514 (Tex. App.BSan Antonio 1988, writ denied).

We cannot treat the plaintiff=s AMotion for a New Trial and to Reinstate@ as a motion for new trial, which is not required to be verified to extend plenary power. See Tex. R. Civ. P. 329(b) (no verification requirement for a motion for new trial). We cannot construe the motion to reinstate as one for a new trial even though it is labeled as such; rather, we look at the substance of the motion, which is one to reinstate. City of McAllen v. Ramirez, 875 S.W.2d 702, 704-05 (Tex. App.BCorpus Christi 1994, no writ) (a litigant may not circumvent the verification requirements of rule 165(a)(3) by labeling a motion for reinstatement as a motion for new trial); see State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding).

Therefore, the trial court=s jurisdiction expired thirty days after entry of the order of dismissal. Even if we were to somehow manage to construe the motion to reinstate as a motion for new trial, the trial court=s plenary jurisdiction had expired. The motion for reinstatement was overruled by operation of law because it was not decided within seventy-five days after the judgment was signed. Tex. R. Civ. P. 165(a)(3). The trial court had plenary power to reinstate the case until thirty days after any such timely filed motion was overruled. Id. May 8, 2002 was the seventy-fifth day after the order dismissing the case; June 7, 2002, was the thirtieth day after the motion to reinstate was overruled; and the reinstatement order was not entered until June 11, 2002.

Conclusion

We conclude that the trial court lacked jurisdiction to reinstate the case. We conditionally grant the petition for writ of mandamus. The writ will only issue if the trial court refuses to withdraw its order reinstating the case.

ROGELIO VALDEZ

Chief Justice

Publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 12th day of December, 2002.

Wednesday, November 07, 2007

We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising

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NUMBER 13-05-00181-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,

v.

ESTANISLADO MORIN, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

The State appeals from the trial court's order granting appellee Estanislado Morin's application for writ of habeas corpus and granting a new trial. (1) In three issues, the State contends the trial court (1) used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim, (2) abused its discretion in granting his application for writ of habeas corpus based on newly-discovered evidence, and (3) failed to enter the habeas corpus order within the statutory time limit. We reverse and remand.

A. Factual & Procedural Background

A jury found appellee guilty of two counts of indecency with a child and assessed his punishment at five years' imprisonment and a $ 5,000 fine for each count. Because the jury recommended that the prison sentences and fines for both counts be suspended and that appellee be placed on community supervision, the trial court suspended the prison sentences and fines for both counts, and placed appellee on community supervision for five years for each count. (2) Subsequently, appellee was deported and complied with the terms of his community supervision by mail.

On October 10, 2003, appellee applied for a post-conviction writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, alleging (1) ineffective assistance of counsel and (2) newly-discovered evidence of innocence. In support of his newly-discovered evidence allegations, appellee attached an affidavit of the complaining witness, Veronica Salazar, (3) dated September 19, 2003, wherein she recanted her prior testimony. The State did not receive notice of the application until April 27, 2004, and filed a response on May 24, 2004. The State attached an affidavit, dated May 4, 2004, wherein Salazar recanted her September 19, 2003 recantation. The State also noted that appellee should have filed his post-conviction writ pursuant to article 11.072, instead of article 11.07. (4) See Tex. Code Crim. Proc. Ann. arts. 11.07, 11.072 (Vernon 2005).

On May 27, 2004, the trial court overruled appellee's claim of ineffective assistance of counsel and ordered a hearing on appellee's issue regarding the newly-discovered evidence of innocence. That hearing was held on June 29, 2004, and Salazar testified about her conflicting affidavits. The proceedings were then recessed to July 16, 2004, so that appellee, who was absent because of his deportation, could be present.

The hearing resumed on July 16, 2004, without appellee, who waived his presence. Both sides discussed the sixty-day statutory deadline at great length, and several times the State told the trial court that it would waive the sixty-day deadline, if it could be waived. Both sides mistakenly told the court when they thought the sixty-day deadline would elapse. Salazar testified again regarding her affidavits, explaining that she was pressured by family members to execute the September 19, 2003 affidavit, and her testimony at trial was truthful. After the hearing, the trial court said that before it ruled, it wanted additional memorandums from both sides. On October 22, 2004, the trial court ruled that Salazar's credibility was a question for a jury, and orally granted appellee a new trial. A written order reflecting this ruling was signed on March 4, 2005.

B. Standard of Review

In reviewing a district court's decision to grant a habeas corpus petition, we review the application of legal standards de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). However, "if the record will not support the trial judge's conclusions, then this Court may make contrary findings." See Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).

C. Discussion

In its third issue, the State contends the trial court erred by failing to enter its written order within the statutory deadline of sixty days. The State argues that because the order was not entered within the sixty-day period, the order is void and appellee's application was denied by operation of law. (5)

Article 11.072 of the code of criminal procedure provides that: "Not later than the 60th day after the day on which the State's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application." Tex. Code Crim. Proc. Ann. art. 11.072. Because the State's answer to appellee's application was filed on May 24, 2004, the 60th day was July 23, 2004.

Habeas corpus petitions are to be heard without delay. See Tex. Const. art. I, § 12; Tex. Code Crim. Proc. Ann. art 11.07; Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578, 578-79 (Tex. Crim. App. 1992). The proper remedy to a trial court's delay in ruling on a habeas corpus petition under article 11.072 is to file for a petition for a writ of mandamus from this Court. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). After a trial court's ruling on a habeas corpus petition, compliance with statutory deadlines becomes moot. See McCree, 824 S.W.2d at 579; see also Ex parte Kendrick, No. 01-95-00161-CR, 1996 Tex. App. LEXIS 3400, *2 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (not designated for publication).

The record shows the trial court failed to rule on appellee's habeas corpus petition within the sixty days required by article 11.072. However, because the trial court ultimately ruled on the petition, we conclude that the timing issue is moot. (6) The State's third issue is overruled.

In its first issue, the State contends the trial court used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim. Claims of actual innocence fall into two categories: Herrera claims and Schlup claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A bare claim of actual innocence based solely on newly-discovered evidence is an Herrera claim, whereas a claim of actual innocence that is tied to a claim of constitutional error at trial is a Schlup claim. Schlup, 513 U.S. at 314. Because the Herrera and Schlup claims are different, they employ different burdens of proof. Id.

Because the verdict of a constitutional-error-free trial commands the greatest respect, the criminal justice system has a need for finality, and retrying stale cases that were originally tried years before imposes a heavy burden on the State, the burden of proof in Herrera claims is "extraordinarily high." See Herrera, 506 U.S. at 417; Davila v. State, 147 S.W.3d 572, 577-78 (Tex. App.-Corpus Christi 2004, pet. ref'd). To succeed in an Herrera claim, "the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

Appellee's first trial was found to be error-free by this Court in Morin v. State, No. 13-01-00001, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd) (not designated for publication). Furthermore, appellee's claim of innocence is unaccompanied by a claim of constitutional error and is therefore an Herrera claim. Accordingly, appellee must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Because the trial court ruled that "the proper forum to decide the credibility of a victim is the jury," we conclude it used the wrong legal standard. The State's first issue is sustained.

In light of our disposition of the State's first and third issues, it is unnecessary to address the State's second issue. See Tex. R. App. P. 47.1.

The trial court's order granting appellee's application for a writ of habeas corpus is reversed. The case is remanded to the trial court to timely determine whether appellee has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. (7)

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 17th day of August, 2006.

1.
See Tex. Code Crim. Proc. Ann. art. 44.01(k) (Vernon Supp. 2006) ("The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072.").

2.
This Court affirmed appellee's conviction on May 23, 2002. See Morin v. State, No. 13-01-001-CR, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd).

3. Appellee is Veronica Salazar's uncle by marriage to her mother's sister.

4. The record reflects that the parties agreed to proceed under article 11.072, and that relator did not need to refile.

5.
Because the State's third issue affects our ability to consider the State's remaining two issues, we will decide it first.

6.
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising to waive it in any event, is now raising it as an issue on appeal.

7.
It would be improper for this Court to evaluate the merits of appellee's petition de novo because only the district court has the power to grant appellee's petition. See Tex. Code Crim. Proc. Ann. art 11.072 (Vernon 2005); see also Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (ordering remand of article 11.07 habeas petition to consider under correct standard).

Sunday, October 14, 2007

Yup,The dishonorable Sharon Killer, Is a Texas size disgrace and Texans are dehumanized, humiliated and judges kill time legallly.........

Justice is not a title this Killer deserves.

Time is of the essence Keller,now you are a killer.
Unilateral decision making is "like a death row pardon 2 minutes too late...isn't it ironic?"

Any excuse is moot and ignorance aint a defense.

I know, I know, she can not recall.

Life unworthy of life (in German: Lebensunwertes Leben) was a Nazi term for those human beings who, by reason of their purported racial or genetic background, the Nazis believed had no right to live and thus should be killed. This concept formed a large component of the Nazi mindset. The phrase first occurs in the title of a 1920 book, Die Freigabe der Vernichtung Lebensunwerten Lebens, (Release for Annihilation of Life Unworthy of Life) by Karl Binding and Alfred Hoche.

People considered to be deviant or a source of social turmoil were put together in this category. The deviant category included the mentally or physically disabled, political dissidents, homosexuals or criminals; the social turmoil category included the clergy, communists, Jews, Roma, Sami, Jehovah's Witnesses, and a variety of other groups in society. More than any other of these groups, the Jews soon became the primary focus of this ideology.

This philosophy found its purest expression in extermination camps built and operated by the Nazis during the Holocaust in order to systematically kill these and other groups that the Nazis decided were unfit to be permitted to live.

Thursday, October 11, 2007

in a civil case, we may take as true facts stated in an appellant's brief that are not contradicted by the appellee, this is a criminal case. Fair? No

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NUMBER 13-06-494-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID C. MATTHEWS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law of Lavaca County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides, and Vela

Memorandum Opinion by Justice Benavides

Appellant David Matthews, appearing pro se, appeals his conviction for failure to reduce his speed while passing an authorized emergency vehicle. Tex. Transp. Code Ann. § 545.157 (Vernon Supp. 2006). After a jury trial, Matthews was fined $100.00, assessed court costs of $224.00, and assessed a transaction fee of $2.00. Matthews contends (1) that the prosecutor's closing argument conclusively demonstrates that he could not have slowed down to the speed required by law, and (2) that the prosecutor committed misconduct by prosecuting Matthews with knowledge of these "extenuating circumstances" surrounding his alleged traffic violation. We affirm.

I. Background

On March 19, 2006, Matthews was ticketed for failure to reduce his speed while passing an emergency vehicle. The traffic citation appears in the record, and it states that Matthews was traveling at a speed of sixty miles per hour in a seventy mile per hour zone while passing the emergency vehicle. (1)

Matthews contested the traffic citation in the Justice Court of Lavaca County. After a non-jury trial, the justice court found Matthews guilty and assessed a fine of $196.00. Matthews appealed that decision to the County Court of Lavaca County. There, he pleaded not guilty and requested a jury trial. A jury of six was empaneled, and the case was tried on August 28, 2006.

The jury charge and verdict appear in the clerk's record. The jury found Matthews guilty and assessed a fine of $100.00 plus court costs. The reporter's record, however, consists of only a small portion of the trial-specifically, it includes only the Lavaca County Attorney's closing argument.

The Lavaca County Attorney argued that the evidence showed that Matthews was the driver of a vehicle on public highway US 77 in Lavaca County. She argued that Matthews failed to reduce his speed while passing a state trooper's parked emergency vehicle. The state trooper, Corporal Matthew Southall, had his emergency lights on and was issuing a traffic ticket to another driver. The county attorney argued that according to Southall's testimony, Matthews was traveling at sixty miles per hour where the posted speed limit was seventy miles per hour.

The portion of the transcript that Matthews relies on for his appeal is as follows:

[The radar] hit Mr. Matthews. He said 60. He said 58 for the truck that was behind him. Common sense tells you Mr. Matthews is in front, truck's in back. Truck's going 58. Mr. Matthews has to be going faster than 58. Mr. Matthews wants you to believe that the fact - if the radar - here's Corporal Southall's car, if the radar hits him and he is already passing by it's not a legitimate offense. Yes, it is. And the corporal said it is. It is because there is no way, physically, when Mr. Matthews is approaching this stationary emergency vehicle, that he could have been going 50 miles an hour. That is what the corporal testified to. . . . Corporal said there's no way that Mr. Matthews was ever going 50 miles-an-hour when he was passing the stationary emergency vehicle. It's that simple.

After his conviction, Matthews filed a pro se brief with this Court. The State has not filed a brief.

II. Analysis

Matthews's issue apparently revolves around whether the county attorney admitted a significant fact during her closing argument. He asserts that the county attorney

[i]n her closing argument . . . pointed out that the vehicle following mine was traveling at 58 mph and therefore I could not have slowed down to 50 mph traveling through the emergency scene. . . . I submit that having been fully aware of these extenuating circumstances [the county attorney] still decided to proceed to trial which in turn means that this was not a good faith prosecution. In fact, deciding to proceed against an individual in full knowledge of their innocence constitutes malicious prosecution.

Matthews misconstrues the county attorney's closing argument. Nowhere in the transcript does the county attorney ever say that it was impossible for Matthews to slow down to an appropriate speed while passing the emergency vehicle. Rather, the county attorney was attempting to counter Matthews's argument that, although the radar registered him as traveling at sixty miles per hour after he had already passed the emergency vehicle, he was actually traveling fifty miles per hour while passing.

The county attorney merely stated that it was impossible that Matthews was traveling at fifty miles per hour when he passed the trooper. Her argument was that Matthews must have been going faster because the car immediately behind him was traveling at fifty-eight miles per hour when it passed. Nothing in this statement indicates that Matthews was unable to apply his brakes and reduce his speed, as Matthews contends. If such evidence was presented by Matthews at trial, we have no knowledge of it because the record is incomplete.

Although in a civil case, we may take as true facts stated in an appellant's brief that are not contradicted by the appellee, this is a criminal case. Tex. R. App. P. 38.1(f). Even so, we are not authorized to ignore the record on appeal and reverse a lower court based on statements by the appellant that are directly contradicted by the record. The record simply does not support Matthews's argument.

Moreover, the record does not reveal any objection to the allegedly inappropriate prosecution and closing argument; no motion for a mistrial related to prosecutorial misconduct was filed. Accordingly, Matthews's two complaints were not preserved for review. Tex. R. App. P. 33.1.

Finally, even had Matthews preserved error, his brief is entirely devoid of citations to legal authority. See Tex. R. App. P. 38.1(h). Although we recognize that pro se litigants are entitled to greater leniency, they are not exempt from the rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005). We cannot remedy deficiencies in a litigant's brief or provide an adequate record when none is presented by the appellant. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.-Dallas 2005, no pet.). Both of Matthews's issues are overruled.

III. Conclusion

Finding that Matthews has not presented anything for our review, we affirm the trial court's judgment of conviction.

__________________________

GINA M. BENAVIDES

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this the 23rd day of August, 2007.

1. Texas Transportation Code section 545.157(a) provides:

(a) On approaching a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702, an operator, unless otherwise directed by a police officer, shall:

(1) vacate the lane closest to the emergency vehicle when driving on a
highway with two or more lanes traveling in the direction of the
emergency vehicle; or

(2) slow to a speed not to exceed:

(A) 20 miles per hour less than the posted speed limit when the
posted speed limit is 25 miles per hour or more; or

(B) five miles per hour when the posted speed limit is less than 25
miles per hour.

Sunday, September 16, 2007

Too bad John Hubert and Patti Hubert need to read this again

THE TEXAS LAWYER'S CREED
A Mandate for Professionalism
Promulgated by The Supreme Court of Texas and the Court of Criminal Appeals November 7, 1989

I am a lawyer; I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore, "My word is my bond."
2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3. I commit myself to an adequate and effective pro bono program.
4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this Creed when undertaking representation.
2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5. I will advise my client of proper and expected behavior.
6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8. I will advise my client that we will not pursue tactics which are intended primarily for delay.
9. I will advise my client that we will not pursue any course of action which is without merit.
10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.
2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
3. I will identify for other counsel or parties all changes I have made in documents submitted for review.
4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.
8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.
12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16. I will refrain from excessive and abusive discovery.
17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
2. I will conduct myself in court in a professional manner and demonstrate my respect for the Court and the law.
3. I will treat counsel, opposing parties, witnesses, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.
4. I will be punctual.
5. I will not engage in any conduct which offends the dignity and decorum of proceedings.
6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

Order of the Supreme Court of Texas and the Court of Criminal Appeals

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics, instead of being part of the solution, have become part of the problem.

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon reenforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt "The Texas Lawyer's Creed -- A Mandate for Professionalism" described above.

In Chambers, this 7th day of November, 1989.

The Supreme Court of Texas

Thomas R. Phillips, Chief Justice
Franklin S. Spears, Justice
C. L. Ray, Justice
Raul A. Gonzalez, Justice
Oscar H. Mauzy, Justice
Eugene A. Cook, Justice
Jack Hightower, Justice
Nathan L. Hecht, Justice
Lloyd A. Doggett, Justice

The Court of Criminal Appeals

Michael J. McCormick, Presiding Judge
W. C. Davis, Judge
Sam Houston Clinton, Judge
Marvin O. Teague, Judge
Chuck Miller, Judge
Charles F. (Chuck) Campbell, Judge
Bill White, Judge
M. P. Duncan, III, Judge
David A. Berchelmann, Jr., Judge

Friday, September 14, 2007

Clayton v. State, 169 S.W.3d 254, 255 (Tex. App.-Corpus Christi 2005, pet. granted). This Court reversed his conviction and ordered a judgment acqu...

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NUMBER 13-07-513-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

IN RE LEVIYAS JAMAIL CLAYTON

____________________________________________________________

On Petition for Writ of Mandamus
____________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Per Curiam Memorandum Opinion (1)

Relator, Leviyas Jamail Clayton, pro se, filed a petition for writ of mandamus in the above cause on August 20, 2007. Relator contends that he is being illegally incarcerated and asks this Court to compel his release. We deny the petition for writ of mandamus.

Relator was convicted of murder and sentenced to thirty years' imprisonment. See Clayton v. State, 169 S.W.3d 254, 255 (Tex. App.-Corpus Christi 2005, pet. granted). This Court reversed his conviction and ordered a judgment of acquittal. See id. at 258. The court of criminal appeals has granted the State's petition for discretionary review.

Through this original proceeding, relator contends that Texas Rule of Appellate Procedure 51.2(d) compels his immediate release from prison. See Tex. R. App. P. 51.2(d). Rule 51.2(d) provides that "When the appellate court reverses a judgment and orders the defendant's acquittal, the defendant-if in custody-must be discharged, and no further order or judgment of the trial court is necessary." See id.

Rule 51.2(d) must be read in conjunction with the code of criminal procedure. Under article 44.04(h):

If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review. If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail. If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail. The sureties on the bail must be approved by the court where the trial was had. The defendant's right to release under this subsection attaches immediately on the issuance of the Court of Appeals' final ruling as defined by Tex. Cr. App. R. 209(c).

Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon 2006). Accordingly, to the extent that relator is seeking release from imprisonment pending the resolution of his appeal, relator would be required to request bail from the court of criminal appeals. See id.

The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not shown himself entitled to the relief sought. Accordingly, the petition for writ of mandamus is DENIED. See Tex. R. App. P. 52.8(a). Any pending motions are denied as moot.

PER CURIAM

Do not publish.

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

Memorandum Opinion delivered and

filed this 11th day of September, 2007.

1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).

Thursday, August 30, 2007

Of course this act is a a Joke and don't forget "the issue of his actual innocence" claim WILL B ReJECTED~

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-27,818-05

EX PARTE DAROYCE LAMONT MOSLEY

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 21,932-B FROM THE

124^TH DISTRICT COURT OF GREGG COUNTY

Per Curiam. keasler, j., not participating.

ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is actually innocent of the capital murder for which he was convicted and sentenced to death.

Applicant was convicted of capital murder on October 17, 1995. We affirmed the conviction and sentence on direct appeal. Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). On October 9, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. While that application was pending in the convicting court he filed an untimely supplement on December 14, 1998. We denied relief on his initial application and dismissed the untimely supplement as an abuse of the writ. Ex parte Mosley WR-27,818-02 & 27,818-03 (Tex. Crim. App. June 30, 1999). On August 20, 2007, applicant filed a second subsequent application, we again dismissed as an abuse of the writ. Ex parte Mosley, WR-27,818-04 (Tex. Crim. App. August 21, 2007).

At trial, on appeal, in his initial application and in his subsequent application for writ of habeas corpus, applicant raised the issue of his actual innocence; the claim was rejected each time. Applicant again raises the same issue, that he did not shoot any of the four victims who died or the fifth victim who survived. We have reviewed this application and find that it does not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5(a). This application is dismissed as an abuse of the writ; the motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 28^TH DAY OF AUGUST, 2007.

Do Not Publish

Monday, August 27, 2007

Vendido~disservice to our citizens, harmful to clients, and demeaning to our profession.

The Texas Lawyer's Creed
A Mandate for Professionalism

PROMULGATED BY
THE SUPREME COURT OF TEXAS
THE COURT OF CRIMINAL APPEALS
NOVEMBER 7, 1989

ORDER OF
THE SUPREME COURT OF TEXAS
AND
THE COURT OF CRIMINAL APPEALS

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem.

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt "The Texas Lawyer's Creed - A Mandate for Professionalism" as attached hereto and made a part hereof.

In Chambers, this 7th day of November, 1989.



 The Supreme Court of Texas  The Court of Criminal Appeals

 Thomas. R. Phillips, Chief Justice Michael J. McCormick, Presiding Judge
 Franklin S. Spears, Justice  W. C. Davis, Judge
 C. L. Ray, Justice   Sam Houston Clinton, Judge
 Raul A. Gonzales, Justice  Marvin O. Teague, Judge
 Oscar H. Mauzy, Justice   Chuck Miller, Judge
 Eugene A. Cook, Justice   Charles F. (Chuck) Campbell, Judge
 Jack Hightower, Justice   Bill White, Judge
 Nathan L. Hecht, Justice  M. P. Duncan, III, Judge
 Lloyd A. Doggett, Justice  David A. Berchelmann, Jr., Judge

THE SUPREME COURT OF TEXAS

AND

THE COURT OF CRIMINAL APPEALS

THE TEXAS LAWYER'S CREED -- A MANDATE FOR PROFESSIONALISM

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

l. I am passionately proud of my profession. Therefore, "My word is my bond."

2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

l. I will advise my client of the contents of this creed when undertaking representation.

2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.

3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.

4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5. I will advise my client of proper and expected behavior.

6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

8. I will advise my client that we will not pursue tactics which are intended primarily for delay.

9. I will advise my client that we will not pursue any course of action which is without merit.

10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.

11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.

2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

3. I will identify for other counsel or parties all changes I have made in documents submitted for review.

4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.

5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are canceled.

6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.

7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.

8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.

10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.

12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.

13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

14. I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

16. I will refrain from excessive and abusive discovery.

17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.

18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

19. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

l. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.

2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.

3. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.

4. I will be punctual.

5. I will not engage in any conduct which offends the dignity and decorum of proceedings.

6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.

7. I will respect the rulings of the Court.

8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.

9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

Back to Codes of Professional Ethics

Thursday, August 23, 2007

Acquiesce or confess error.........unless you got "brass in your pocket".........

Monday, June 5, 2000

US SUPREME COURT GRANTS STATE'S MOTION IN CAPITAL CASE

Case Remanded for New Sentencing Hearing

AUSTIN - Texas Attorney General John Cornyn today said the United States Supreme Court has granted a request by the State of Texas that the death sentence imposed in the capital murder case against Victor Hugo Saldano be vacated and remanded for a new sentencing hearing. The new trial will concern only the issue of punishment, not the judgment of guilt, which remains intact.

Saldano was convicted in 1996 of capital murder in Collin County for the murder of Paul King. Evidence presented at the trial showed that Saldano and an accomplice used a handgun to kidnap King from a grocery store parking lot. He was taken to a secluded spot on a country road where Saldano fatally shot King five times, including once in the head at point-blank range. Saldano stole King's wallet and watch.

"There is no doubt of Mr. Saldano's guilt. A jury properly convicted him of capital murder and that conviction remains in place. During the sentencing phase of the trial, there was sufficient evidence submitted to the jury of Mr. Saldano's 'future dangerousness,' justifying the imposition of the death penalty," Cornyn stated. "Unfortunately, however, evidence of the defendant's race was also introduced before the jury by a district attorney as a factor for the jury to weigh in making its determination. This violated Mr. Saldano's constitutional right to be sentenced without regard to the color of his skin."

Cornyn also said, "We've been conducting an audit over the past couple of months. We've identified eight other cases that may be similar. We will release our findings by the end of the week. We will continue to vigilantly monitor all death penalty cases. Our goal is to assure the people of Texas that our criminal justice system is fairly administered."

- Texas Attorney General John Cornyn today said the United States Supreme Court has granted a request by the State of Texas that the death sentence imposed in the capital murder case against Victor Hugo Saldano be vacated and remanded for a new sentencing hearing. The new trial will concern only the issue of punishment, not the judgment of guilt, which remains intact.

AUSTIN - Texas Attorney General John Cornyn today said the United States Supreme Court has granted a request by the State of Texas that the death sentence imposed in the capital murder case against Victor Hugo Saldano be vacated and remanded for a new sentencing hearing. The new trial will concern only the issue of punishment, not the judgment of guilt, which remains intact.

Contact Mark Heckmann, Heather Browne, or Andrea Horton at (512) 463-2050.

Rod ellis and Perry pretend they are going to provide you a Colleen McHugh, no, no, no,....poor , now then there is a system for you

Press Release from State Senator Rodney Ellis

For Immediate Release
Thursday, June 14, 2001
Contact: Jeremy Warren, (512) 463-0113

Perry Signs Landmark Texas Fair Defense Act

New Law Overhauls Texas' Indigent Criminal Defense System

(Austin)//Governor Rick Perry today signed into law the Texas Fair Defense Act, landmark legislation to overhaul Texas' indigent criminal defense system. Senator Rodney Ellis (D-Houston), author of the legislation, praised Governor Perry's action.

"I am extremely pleased by Governor Perry's decision to sign the Texas Fair Defense Act into law," said Senator Ellis. "With today's signature, Texas has taken an historic stand for fairness. The Texas Fair Defense Act balances the scales of justice to ensure that poor Texans are not sentenced to a poor defense."

Texas' criminal justice system has been the focus of national and international criticism, particularly the lack of standards and state oversight of attorneys appointed to represent indigent defendants. The Texas Fair Defense Act addresses this criticism by focusing on four critical issues -- timely appointment of counsel, method of counsel appointment by the courts, reporting of information about indigent representation services, and minimum standards for counsel. The legislation also creates a task force within the Judicial Council to recommend further improvements and direct funding to assist counties in the improvements.

Senate Bill 7 ensures prompt appointment of an attorney for indigent criminal defendants in Texas. The legislation gives courts three options of appointment - a rotation or "wheel" system, a locally-controlled public defender system, or an alternate fair system designed by the judges in the county and approved by a regional presiding administrative judge. The legislation ensures ultimate decision making remains with judges and counties while providing necessary state input and oversight. Senate Bill 7 also requires counties and judges to collect and report information to the state on indigent criminal defense procedures and expenditures.

Senator Ellis has led the fight to reform Texas' indigent criminal defense system. The Texas Fair Defense Act is the product of nearly two years of bipartisan collaboration between legislators, the State Bar, district judges, prosecutors, defense attorneys, and reform groups to provide indigent Texans with timely, adequate counsel at trial.

"A lot of Texans were embarrassed by the problems in our criminal justice system revealed over the past two years," said Ellis. "The Texas Fair Defense act is not a magic potion that will cure all of those ills, but it is a significant first step toward creating a criminal justice system that Texans can be proud of."

###

Monday, August 06, 2007

"The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours"

Cheapskate Justice May Come Back to Bite Collin County

"The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours"

-Gideon v. Wainwright, 1963

Here's an example of a growing county that would really benefit from establishing a public defender office, but instead chooses to curb the constitutional rights of low-income defendants. Reported the Dallas Morning News ("Collin cuts court costs, but at what price?," Aug. 4):

Collin County, fed up with soaring court costs, has become the toughest county in Texas for criminal defendants seeking court-appointed lawyers to defend them.

Some legal experts say the new county-imposed limits on a defendant's income and assets raise questions about the quality of justice in Collin County, one of the state's wealthiest suburban enclaves.

The new rules also set Collin apart from Dallas and other Texas counties whose judges routinely grant court-appointed attorneys to criminal defendants with no financial background check.

Collin County Commissioner Joe Jaynes, who originally approved the new guidelines, says he is having second thoughts.

"I hate to see us starting to chip away at constitutional rights in the name of trying to save money," Mr. Jaynes said. "It's a very slippery slope we're starting to tread."

More than 1,000 defendants in Collin County who applied for a court-appointed lawyer last year failed to receive one because they didn't meet new strict financial guidelines, records show. That figure represents about a third of those who sought free counsel.

Consequently, Collin County's indigent-defense costs fell more than 20 percent in the year ending last September, the first full year under the new crackdown.

Officials defend the policy based on savings, but isn't that penny wise and pound foolish? If the county later endures civil litigation, for example, over failing to ensure defendants' constitutionally guaranteed right to counsel, the savings will appear minimal. If defendants later begin getting new trials because Collin County prosecutors inappropriately bullied them into pleas without a lawyer, will these savings really have been worth it?

Malia Brink of the National Association of Criminal Defense Lawyers said Collin's definitions of indigency are now among the most stringent in the nation, posing significant risks:

"If the system isn't balanced, it doesn't work," Ms. Brink said. "Defenses aren't presented appropriately, the wrong people go to jail, the real criminal remains at large.

"The whole process becomes more expensive because there are more appeals – more valid appeals – and then you have to try the case all over again."

Bottom line, Collin commissioners and judges want to have their cake and eat it, too. They want to keep the current system of appointing private counsel for indigent defendants but don't want to pay the attorney's fees.

Every county in Texas has seen its indigent defense costs increase after the Texas Fair Defense Act in 2001 strengthened requirements that counties appoint counsel in all adversarial proceedings against defendants from B misdemeanors up. But there are smarter ways to handle the problem than Collin officials have chosen.

In Dallas, a county public defender office has kept their costs from rising nearly so quickly. Neighboring Kaufman County just opened a public defender office to reduce costs, move cases more quickly through the system, reduce jail overcrowding and provide defendants a more consistent quality of counsel. Hiring staff counsel for indigent defense makes economic sense for the same reason it would be impractical to contract out prosecuting every criminal case.

Simply telling people who can't afford an attorney you won't get them one won't fly - if defendants denied attorneys are winding up defending themselves "pro se" in significant numbers, I wouldn't be surprised to see Collin County become the target of successful civil litigation. (See comments for discussion of correction.)

The News reports that "in every case file The News reviewed, original paperwork revealed that one of two things happened to a defendant who was denied court-appointed counsel: the accused hired his own attorney or the judge reversed county government staffers and appointed one."

That tells me that judges are consistently finding many defendants indigent who the county said were not. Collin County's indigency rules by that standard are wrong on their face, since the judges are routinely finding many cases where people really couldn't afford counsel. In the meantime, taxpayers must house these folks in the jail at $40+ per day until a judge overrules the county, or until people sell off assets or find some relative to pay for a private lawyer. That's not a cost-effective or sustainable system in the long haul.

Labels: County jails, Indigent defense

posted by Gritsforbreakfast at 7:50 AM 4 comments

Tuesday, July 31, 2007

Texas Fair defense Act~ Is it just an illusion ........yes.

Home : Criminal Justice : Indigent Defense
Promise of Right to Counsel for Poor Remains an Illusion 40 Years After Gideon v. Wainwright (3/18/2003)

Joint Statement of Diann Rust-Tierney, Director, ACLU Capital Punishment Project, Robin Dahlberg and Vincent Warren, ACLU National Staff Attorneys

FOR IMMEDIATE RELEASE

Take Action!

Stop the Execution of the Innocent!

ACLU Resources

Indigent Defense Docket

Death Penalty Issue Page

Related Publications

Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts (2002)

Assembly Line Justice: Mississippi's Indigent Defense Crisis

Report of Georgia Supreme Court Chief Justice's Commission on Indigent Defense

Death Without Justice: A guide for examining the administration of the death penalty in the US

NEW YORK--The American Civil Liberties Union today marks the 40th anniversary of the historic Supreme Court decision in Gideon v. Wainwright by calling on states to provide adequate legal defense for the poor -- particularly those who face the death penalty.

The landmark 1963 decision held that the Constitution guarantees every person charged with a felony the right to an attorney even if he or she cannot afford one. Subsequent cases have refined the ruling to extend to misdemeanor cases and to require "competent" representation.

Unfortunately, the promise of Gideon remains largely unfulfilled four decades later because the legal representation many poor people receive is grossly inadequate. Many states still do not have an indigent defense system and rely instead on court-appointed attorneys who are not required to meet any type of standard for competency.

The ACLU has developed a focused and sustained program of litigation and public education aimed at improving indigent defense systems throughout the nation. ACLU challenges to inadequate indigent defense programs in Pennsylvania and Connecticut have brought about unprecedented changes in each state's public defender program. In both cases, settlements have resulted in increased government funds flowing into the representation of indigent defendants. Presently, the ACLU is undertaking a series of non-litigation reform and public education strategies in about 10 states.

Nowhere is the deficiency in counsel for the poor more sorely felt than in the representation many people receive in capital cases. A glaring example of this is the case of Delma Banks, Jr., a Texas man who would be dead today if it weren't for the last-minute stay he received less than a week ago.

Banks had such poor representation that former FBI Director and United States District Judge William Sessions intervened and asked the Supreme Court to temporarily stay his execution. As Judge Sessions wrote in his brief, "When a criminal defendant is forced to pay with his life for his lawyer's errors, the effectiveness of the criminal justice system as a whole is undermined."

The Banks case epitomizes the type of representation that poor people in capital cases can expect -- especially in cases where the defendant is black and the victim is white. The only evidence against Banks was the testimony of an informant who received $200 and the dismissal of an arson charge that could have gotten him a life sentence as a habitual offender. Banks' lawyer did not vigorously cross-examine the informant, nor did he investigate the case. Had he done so, he would have learned that Banks was in another city at the time of the crime.

After a one-day trial in which the prosecutors systematically struck all blacks from the jury -- a move not challenged by Banks' attorney -- Banks was sentenced to death. Banks' trial lawyer did not refute the state's claim that his client posed a "future danger to society" -- a requirement for a death sentence in Texas - even though Banks had no criminal record or history of violence.

The Supreme Court-the final protector of constitutional rights-has done little to make good on Gideon's guarantee of competent counsel. Last year, the Court upheld death sentences in a Virginia case where the lawyer had previously represented the murder victim and in a Tennessee case where the lawyer offered no closing argument on behalf of his client. Other courts have ruled that counsel was competent in cases where the lawyer was unaware of the governing law, intoxicated, or even asleep.

Fortunately, not all of the High Court justices are oblivious to the problem of incompetent counsel. Justice Ruth Bader Ginsberg has been quoted as saying that she has "yet to see a death case, among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well-represented at trial." Justice Sandra Day O'Connor recently suggested "perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used."

The problem of bad lawyering is not limited to Texas, nor is it limited to death cases. According to the American Bar Association, no state meets its standards for competent counsel in a death case. Judges often appoint the attorney who will get the case through the system the fastest, instead of the attorney who will most zealously safeguard the rights of the accused. A recent report on indigent defense in Georgia revealed some disturbing examples:

* A judge appointed a newly admitted member of the Georgia bar to handle a death penalty case on her fifth day of practice;
* An attorney who handled real estate cases out of his home asked to be relieved of representing juveniles in criminal cases because he did not have the experience, and when the judge declined he sued the county;
* One court-appointed attorney had 94 cases scheduled for trial on the same day; most were resolved by a hastily negotiated plea, and none went to trial.

Examples from other states include:

* In Pittsburgh, Pennsylvania, a 19-year-old innocent man sat in jail for 15 months because his public defender had neither the time nor the resources to visit him or to investigate his case;
* In Connecticut, a 23-year-old mentally retarded man spent 18 months in jail after pleading guilty to a charge of attempted robbery on the advice of his public defender, who was unaware that the man was so disabled that he had been found incompetent to stand trial on a previous charge;
* A Kentucky judge had difficulty finding someone to represent Gregory Wilson on a death case because a state statute capped attorneys' fees at $2,500. The head of a local indigent defense program suggested sponsoring a cruise down the Ohio River to raise money for the defense. Instead the judge posted a sign on the courthouse that read, "Please help. Desperate." The lead lawyer who came forward provided a contact number at a bar called "Kelly's Keg," and had recently been indicted for receiving stolen property.

Banks' fate is still to be decided. The temporary stay may be short-lived and the state may yet carry out his execution. Hopefully, instead, the Justices will use this case as an opportunity to fulfill some of Gideon's initial promise -- proving Banks with a competent lawyer who is capable of protecting his rights. If the Justices do not provide relief to Banks, then the concept of equal treatment under the law -- and under Gideon v. Wainwright -- remains unfulfilled.

Friday, July 27, 2007

No payment is to be made to the attorney unless the judge approves the payment.

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Fair Defense Act -- Core Requirements
Introduction
Task Force Background
In January 2002, the 77
th
Texas Legislature established the Task Force on Indigent Defense
(“Task Force”). The mission of the Task Force is to improve the delivery of indigent defense
services through fiscal assistance and professional support to State, local judicial, county, and
municipal officials. The purpose of the Task Force is to promote justice and fairness to all
indigent persons accused of criminal conduct, including juvenile respondents, as provided by the
laws and constitutions of the United States and Texas. The Task Force is given a directive under
Tex. Gov’t Code § 71.062(b) to monitor local jurisdiction compliance with the Fair Defense Act
(“FDA”).
Goal
Promote local compliance and accountability with the requirements of the Fair Defense Act
through evidence-based practices and provide technical assistance to improve processes where
needed.
Core Requirements of the Fair Defense Act
1. Conduct prompt magistration proceedings:
• Inform and explain right to counsel to accused;
• Provide reasonable assistance to accused in completing necessary forms to request
counsel;
• Maintain magistrate processing records.
2. Determine indigence according to standard in local indigent defense plan.
3. Establish minimum attorney qualifications.
4. Appoint counsel promptly.
5. Institute a fair, neutral, and non-discriminatory attorney selection process.
6. Promulgate standard attorney fee schedule and payment process.
Core requirement 1. Conduct prompt and accurate magistration proceedings:
• Inform and explain right to counsel to accused;
• Provide reasonable assistance to accused in completing necessary forms to request
counsel;
• Maintain magistrate processing records.
Statutory Provisions
The Fair Defense Act (FDA) requires that magistration is conducted without unnecessary delay,
but not later than 48 hours after the person is arrested. At magistration, the arrestee is to be
informed in clear language of the following:
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- the accusation against him/her and of any affidavit filed;
- the right to retain counsel;
- the right to remain silent;
- the right to have an attorney present during any interview with peace officers or
attorneys representing the state;
- the right to terminate the interview at any time;
- the right to have an examining trial; and
- the person's right to request the appointment of counsel if the person cannot afford
counsel.
The magistrate shall inform the person arrested of the procedures for requesting appointment of
counsel. If the person does not speak and understand the English language or is deaf, the
magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as
appropriate. The magistrate shall ensure that reasonable assistance in completing the necessary
forms for requesting appointment of counsel is provided to the person at the same time. Tex.
Code Crim. Proc. Art. 15.17(a). If the arrestee requests appointed counsel, the arrestee is
required to complete under oath a questionnaire concerning his financial resources. Tex. Code
Crim. Proc. Art. 26.04(n).
The record of the magistrate’s warning must comply with Article 15.17(e), and must contain
information indicating:
(1) the magistrate informed the person of the person's right to request appointment of
counsel;
(2) the magistrate asked the person whether the person wanted to request appointment of
counsel; and
(3) whether the person requested appointment of counsel.
This record may consist of written forms, electronic recordings, or other documentation as
authorized by procedures adopted in the county under Article 26.04(a). Tex. Code Crim. Proc.
Art. 15.17(e)-(f).
Core Requirement 2. Determine indigence according to standard in local
indigent defense plan:
Statutory Provisions
Each jurisdiction must establish procedures and financial standards for determining indigence.
The procedures must apply to each defendant equally, regardless of whether or not bail has been
posted. In determining whether a defendant is indigent, the court or the court’s designee may
consider the defendant's income, source of income, assets, property owned, outstanding
obligations, necessary expenses, the number and ages of dependents, and spousal income that is
available to the defendant. The court or the courts' designee may not consider whether the
defendant has posted or is capable of posting bail, except to the extent that it reflects the
defendant's financial circumstances as measured by the considerations previously listed. Tex.
Code Crim. Proc. Art. 26.04(l)-(m).
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A defendant who requests a determination of indigence and appointment of counsel must:
(1) complete under oath a questionnaire concerning his financial resources;
(2) respond under oath to an examination regarding his financial resources by the judge
or magistrate responsible for determining whether the defendant is indigent; or
(3) complete the questionnaire and respond to examination by the judge or magistrate.
Tex. Code Crim. Proc. Art. 26.04(n).
In addition the defendant is required to sign an oath that substantially conforms to the following:
On this ________ day of ____________, 20 ___, I have been advised by the
(name of the court) Court of my right to representation by counsel in the trial of
the charge pending against me. I certify that I am without means to employ
counsel of my own choosing and I hereby request the court to appoint counsel for
me. (signature of the defendant)
Tex. Code Crim. Proc. Art. 26.04(o).
A defendant who is determined by the court to be indigent is presumed to remain indigent for the
remainder of the proceedings in the case unless a material change in the defendant's financial
circumstances occurs. If there is a material change in financial circumstances after a
determination of indigence or non-indigence is made, the defendant, the defendant's counsel, or
the attorney representing the state may move for reconsideration of the determination. Tex.
Code Crim. Proc. Art. 26.04(p).
For juveniles, Tex. Fam. Code § 51.10(f)-(g) states:
(f) The court shall appoint an attorney to represent the interest of a child entitled
to representation by an attorney, if:
(1) the child is not represented by an attorney;
(2) the court determines that the child's parent or other person responsible
for support of the child is financially unable to employ an attorney to
represent the child; and
(3) the child's right to representation by an attorney:
(A) has not been waived under Section 51.09 of this code; or
(B) may not be waived under Subsection (b) of this section.
(g) The juvenile court may appoint an attorney in any case in which it deems
representation necessary to protect the interests of the child.
The rules of Article 26.04 still apply to juveniles, except that the income and assets of the
person responsible for the child’s support are used in determining whether the child is
indigent. Tex. Fam. Code § 51.102(b)(1).
Core Requirement 3. Establish minimum attorney qualifications
:
Statutory Provisions
Judges of the statutory county courts are to establish an appointment list of qualified attorneys to
provide representation in misdemeanor cases. Likewise, judges of the district courts are to
establish an appointment list of qualified attorneys to provide representation in felony cases. The
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judges are to specify objective qualifications necessary to be included on the list and may
establish graduated lists, according to the seriousness of the offense. Each attorney applying to
be on an appointment list must be approved by a majority of the judges who try criminal cases at
that court level. In a county where a public defender is used, the courts may appoint the public
defender to represent defendants. Tex. Code Crim. Proc. Art. 26.04(d)-(f). Attorneys accepting
appointments are required to annually obtain 6 hours of criminal law continuing legal education
(CLE) credit per Title 1, §174.1 of the Texas Administrative Code.
For juveniles, the judges are to establish qualifications necessary for an attorney to be included
on the appointment list. The plan must recognize the differences in qualifications and experience
necessary for appointments involving supervision, delinquent conduct, or commitment to the
Texas Youth Commission. Tex. Fam. Code § 51.102. Attorneys accepting appointments are
required to annually obtain 6 hours of juvenile law continuing legal education (CLE) credit per
Title 1, §174.2 of the Texas Administrative Code.
Appointed attorneys are to contact the defendant by the end of the first working day after
receiving the appointment and to interview the client as soon as practicable. Tex. Code. Crim.
Proc. Art. 26.04(j). The public defender may have additional objective qualifications in
providing quality representation as the duties of the public defender are to be specified by the
commissioner’s court in a written agreement. Art. 26.044(b). Attorneys must also meet the
standard of care set by the Texas Bar in the Texas Disciplinary Rules of Professional Conduct.
Core Requirement 4. Appoint counsel promptly:
Statutory Provisions
An indigent defendant is entitled to have an attorney appointed to represent him/her in any
adversarial judicial proceeding that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of justice require representation.
Tex. Code Crim. Proc. Art. 1.051(a). If the magistrate is authorized under Article 26.04 to
appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in
accordance with Article 1.051. Art. 15.17(a). For counties with a census population over
250,000, if an indigent defendant is not released from custody prior to the appointment of
counsel, the court or court’s designee shall appoint counsel as soon as possible, but not later
than the end of the first working day after the date on which the court or the court’s designee
receives the defendant's request for appointment of counsel. For counties with a census
population under 250,000, if an indigent defendant is not released from custody prior to the
appointment of counsel, the court or court’s designee shall appoint counsel as soon as possible,
but not later than the end of the third working day after the date on which the court or the
court’s designee receives the defendant's request for appointment of counsel. Art. 1.051(c). If
an indigent defendant is released from custody prior to the appointment of counsel under
this section, appointment of counsel is not required until the defendant's first court
appearance or when adversarial judicial proceedings are initiated, whichever comes first.
Art. 1.051(j).
Page 5
For juveniles, if the child does not have counsel at the detention hearing and a determination was
made to detain the child, the child is entitled to immediate representation of an attorney. The
court must order the retention of an attorney or appoint an attorney. Tex. Fam. Code § 51.10(c).
If a determination was not made to detain the child, determinations of indigence are made on the
filing of a petition if: (1) the child is released by intake; (2) the child is released at the initial
detention hearing; or (3) the case was referred to the court without the child in custody. Tex.
Fam. Code § 51.101(c). A juvenile court that makes a finding of indigence under Subsection
51.101(c) must appoint an attorney to represent the child on or before the fifth working day after
the date the petition for adjudication or discretionary transfer hearing was served on the child. §
51.101(d).
Core Requirement 5. Institute a fair, neutral, and non-discriminatory
attorney selection process:
Statutory Provisions
Tex. Code Crim. Proc. Art. 26.04(b) requires that appointments are allocated among qualified
attorneys in a fair, neutral, and non-discriminatory manner. Article 26.04(a) states: “A court
shall appoint an attorney from a public appointment list using a system of rotation, unless the
court appoints an attorney under Subsection (f), (h), or (i).” Subsection (f) allows for the court to
appoint the public defender. Subsection (h) allows the court to appoint counsel via an alternative
program. Subsection (i) allows for appointment of attorneys from the court’s administrative
judicial region when a person is accused of a felony and the court is unable to adequately appoint
appropriate counsel. When a rotational system is used for appointments, “the court shall appoint
attorneys from among the next five names on the appointment list in the order in which the
attorneys’ names appear on the list, unless the court makes a finding of good cause on the record
for appointing an attorney out of order”. Art. 26.04(a).
Core Requirement 6. Promulgate standard attorney fee schedule and
payment process:
Statutory Provisions
Attorneys are to be paid a reasonable fee for the following: time spent in court making an
appearance; reasonable and necessary time spent out of court on the case, supported by
documentation that the court requires; preparation of an appellate brief and preparation and
presentation of oral argument to an appellate court; and preparation of a motion for rehearing. A
fee schedule is to govern these payments, taking into account reasonable and necessary overhead
rates. No payment is to be made to the attorney unless the judge approves the payment. If the
judge disapproves the requested amount, the judge shall make written findings stating the
amount of payment and the reasons for any disapproval. An attorney whose request for payment
is disapproved may appeal the disapproval. Tex. Code Crim. Proc. Art. 26.05(a)-(e).
Page 6
Counsel is to be reimbursed for reasonable and necessary investigation and expert witness fees.
Expenses incurred without prior court approval shall be reimbursed if the expenses were
reasonably necessary and reasonably incurred. Tex. Code Crim. Proc. Arts. 26.05(d), 26.052(h).

Texas Fair Defense Act

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