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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
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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.
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Page 1
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:
Page 2
- 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).
Page 3
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
Page 4
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).
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To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:02haPNqmfYkJ:www.courts.state.tx.us/tfid/pdf/Core%2520Requirements.pdf+fair+defense+act&hl=en&ct=clnk&cd=10&gl=us&client=firefox-a
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Page 1
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:
Page 2
- 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).
Page 3
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
Page 4
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).
epresentation of any such agreement by Mr. Gonzalez, himself; nor does the record show that Mr. Gonzalez expressly represented that DPS was part .....
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NUMBER 13-06-035-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
ROEL OLIVARES, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant, the Texas Department of Public Safety (DPS), appeals from the trial court's order expunging the arrest of appellee, Roel Olivares, from all public records. By two issues, DPS contends (1) that the trial court issued the expunction order in error because Olivares presented no evidence to support the expunction, and (2) that the court abused its discretion in resetting the expunction hearing without notice. We reverse and render.
I. Background
Olivares was arrested for driving while intoxicated, see Tex. Penal Code Ann. � 49.04 (Vernon 2003), and pled guilty to the charge. The trial court sentenced Olivares to twelve months' incarceration and ordered him to pay a $100 fine. The trial court suspended Olivares's sentence and placed him on probation for a period of twelve months.
Olivares later filed a petition to expunge his arrest from public records. The trial court set a hearing on Olivares's expunction petition for September 1, 2005. Pursuant to article 55.02 of the Texas Code of Criminal Procedure, the trial court sent notice of the petition and the September 1st hearing date to all parties believed to possess records of Olivares's arrest. See Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon 2006). Both DPS and the Cameron County District Attorney filed an answer and special exceptions to the petition.
On September 1st, the date of the originally scheduled hearing on the expunction petition, the court signed an order setting a hearing for September 29th. The trial court's docket entry for September 1st reflects that (1) the September 29th hearing was related to the district attorney's special exceptions, and (2) the hearing on the expunction petition was reset for October 20th per the agreement of the parties.
The following reflects the complete transcription of the September 29th hearing:
The Court: Mr. de la Fuente, on your expunction, I'm just going to sign the order.
Defense Counsel: Very Well.
The Court: On 2005-07-3649, Olivares.
Defense Counsel: Yes, Your Honor.
The Court: All right.
Defense Counsel: Thank you, Judge. Let me make sure there is an order there, if not I'll get one to the Court.
The Court: They withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception and so I informed him that it was not necessary for him to appear.
Defense Counsel: Very well.
The Court: There is no opposition.
Defense Counsel: We ask the court to sign the order then, Judge.
The Court: I think you are going to have to get me one.
Defense Counsel: I will. (1)
The trial court signed an order of expunction on October 3rd and an amended order of expunction on October 13th. DPS moved for a new trial, arguing that no evidence was presented by Olivares and that Olivares was not entitled to the expunction as a matter of law. The trial court denied the motion, and this appeal ensued.
II. No Evidence
By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. We agree.
A. Standard of Review
A trial court's order in an expunction proceeding is reviewed under an abuse of discretion standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to do so. Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.-Waco 1997, pet. denied).
In conducting a legal sufficiency review, we "view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We will sustain a no evidence challenge when the record shows that (1) there is a complete absence of a vital fact, (2) the court is barred from considering the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 649 (Tex. App.-Corpus Christi 2002, no pet.)
B. Applicable Law
"The expunction statute was created to allow persons wrongfully charged to expunge their arrest records." Williams, 76 S.W.3d at 650 (citing Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.-Corpus Christi 1997, no writ); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.-Houston [14th Dist.] 1991, no writ)). Expunction is only available when all statutory conditions have been met. Id.; see Tex. Code Crim. Proc. Ann. art. 55.01-.02 (Vernon 2006). The petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650 (citing Butler, 941 S.W.2d at 321; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.-Corpus Christi 1991, no writ)).
A petitioner, such as Olivares, who has neither been acquitted of the offense in the petition, nor convicted and subsequently pardoned, must show that each of the following conditions are met to be entitled to expunction:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which the petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).
C. Analysis
By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. In response, Olivares argues that DPS is precluded from raising its no-evidence issue on appeal because (1) DPS was "bound by any representation by a party adverse to said proceeding," and, therefore, induced any purported error, and (2) DPS was required to raise its no-evidence challenge below and failed to do so. Therefore, before we reach the merits of DPS's first issue, we will first address Olivares's challenges to DPS's ability to raise its no-evidence issue on appeal.
To support his first argument, that DPS was "bound by any representation by a party adverse to said proceedings," and, therefore, induced any purported error, Olivares relies on Tex. Dep't of Pub. Safety v. Cryan, No. 14-04-00507-CV, 2005 Tex. App. LEXIS 6419 (Tex. App.-Houston [14th Dist.] Aug. 11, 2005, no pet.) (mem. op.). However, we find Cryan distinguishable from the instant case and conclude that Olivares's reliance on Cryan is without merit.
In Cryan, the district attorney appeared at the expunction hearing and argued as follows:
We did talk to the D.P.S. who filed an extensive answer [in this case]. I think he has talked to [Cryan's attorney] and talked to me. . . . The other two arrests [that did not result in deferred adjudication], we have no problem with expunging those records, but we would oppose any kind of expunction as far as the deferred adjudication is concerned at this point in time because I think, legally, it can not [sic] be done.
Based on this argument by the district attorney, the Fourteenth Court of Appeals found that the district attorney "expressly represented to the trial court that neither he, nor DPS, opposed expunction of records related to these arrests." See id. at *6 (emphasis added). In addition, the Fourteenth Court of Appeals concluded that (1) the district attorney's express representation that there was "no problem" with expunging certain records "clearly invited" error by the trial court, and (2) the district attorney, and the parties he represented at the hearing, could not inconsistently contend on appeal that the trial court erred by expunging the petitioner's records. See id. at *6-*7. The Fourteenth Court of Appeals further concluded that because DPS did not appear at the expunction hearing, the district attorney represented DPS's interests at the hearing. Id. at *7. As a result, the Fourteenth Court of Appeals held that "the district attorney's representation that neither he, nor DPS, opposed expunction of records . . . is binding on DPS and precludes DPS from challenging on appeal the legal sufficiency of the evidence to support expunction of records . . . ." Id. at *8.
Here, however, neither the district attorney nor DPS was present at the September 29th hearing. Although the trial court stated that "they withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception," it is unclear from the record who Mr. Gonzalez was. (2) In addition, it is unclear from the record what the context of any such would-be agreement was-whether it related to special exceptions, to the expunction, or to any other matter. Furthermore, other than the trial court's statement that "there would be an agreement," the record does not show an express representation of any such agreement by Mr. Gonzalez, himself; nor does the record show that Mr. Gonzalez expressly represented that DPS was part of any such agreement. Therefore, based on the record before us, we cannot conclude that (1) Mr. Gonzalez represented DPS's interest at the hearing, (2) DPS was bound by any would-be agreement, or (3) DPS invited any purported error by the trial court regarding the expunction of Olivares's arrest record. Thus, we cannot conclude that DPS is precluded from raising its no-evidence issue on this basis.
With respect to his second argument, Olivares asserts that DPS is precluded from raising its no-evidence challenge on appeal because DPS failed to raise its no-evidence challenge in the trial court. However, we conclude that Olivares's argument is without merit. First, DPS raised its no-evidence challenge in its motion for new trial, which the trial court denied. Moreover, it is well settled that when appealing from a non-jury trial, a legal sufficiency challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d) (providing that in a non-jury case, a legal sufficiency challenge may be raised for the first time on appeal in the complaining party's brief); Tex. R. Civ. P. 324(a), (b). Therefore, we conclude that DPS's no-evidence challenge is properly before this Court. Accordingly, we will now address the merits of DPS's no-evidence issue.
DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to support the expunction. Specifically, DPS asserts that Olivares was required to prove that he satisfied the requirements of article 55.01(a)(2) of the Texas Code of Criminal Procedure in order to be entitled to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). We agree.
It is well settled that the petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650. Because Olivares had neither been acquitted of the offense identified in the petition, nor convicted and subsequently pardoned for said offense, Olivares was required to prove that he satisfied the conditions set out in article 55.01(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). However, the record does not reflect that Olivares presented any evidence to prove satisfaction of these requirements. (3) Therefore, there is a complete absence of the vital facts necessary for Olivares to establish his entitlement to expunction. See City of Keller, 168 S.W.3d at 810; see also Williams, 76 S.W.3d at 649. Thus, we conclude that there is no evidence to support Olivares's expunction and that the trial court erred in ordering Olivares's records expunged. We sustain DPS's first issue.
Having sustained DPS's first issue, we need not address DPS's second issue regarding proper notice of the hearing. See Tex. R. App. P. 47.1.
III. Conclusion
Accordingly, we reverse the trial court's order and render judgment denying the expunction. Pursuant to DPS's prayer for relief, we order any documents surrendered to the trial court or to Olivares returned to the submitting agencies. See Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the order of expunction applies to all respondents, even if they did not participate in the appeal).
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 26th day of July, 2007.
1. 1
We note that the trial court's docket sheet entry for September 29th shows that the October 20th expunction hearing was canceled.
2. 2
We note that neither party explains who Mr. Gonzalez might be.
3. Moreover, we note that in order to have shown his entitlement to expunction, appellee would have had to prove, among other things, that his DWI charge did not result in a final conviction and that the trial court did not order community supervision for the offense. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C). However, appellee does not dispute that the trial court convicted him of DWI and ordered him to complete twelve months of probation. Thus, even if appellee had presented some evidence as to the other statutory requirements for expunction, he would not have been able to prove his satisfaction of article 55.01(a)(2)(C). See id.
NUMBER 13-06-035-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
ROEL OLIVARES, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant, the Texas Department of Public Safety (DPS), appeals from the trial court's order expunging the arrest of appellee, Roel Olivares, from all public records. By two issues, DPS contends (1) that the trial court issued the expunction order in error because Olivares presented no evidence to support the expunction, and (2) that the court abused its discretion in resetting the expunction hearing without notice. We reverse and render.
I. Background
Olivares was arrested for driving while intoxicated, see Tex. Penal Code Ann. � 49.04 (Vernon 2003), and pled guilty to the charge. The trial court sentenced Olivares to twelve months' incarceration and ordered him to pay a $100 fine. The trial court suspended Olivares's sentence and placed him on probation for a period of twelve months.
Olivares later filed a petition to expunge his arrest from public records. The trial court set a hearing on Olivares's expunction petition for September 1, 2005. Pursuant to article 55.02 of the Texas Code of Criminal Procedure, the trial court sent notice of the petition and the September 1st hearing date to all parties believed to possess records of Olivares's arrest. See Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon 2006). Both DPS and the Cameron County District Attorney filed an answer and special exceptions to the petition.
On September 1st, the date of the originally scheduled hearing on the expunction petition, the court signed an order setting a hearing for September 29th. The trial court's docket entry for September 1st reflects that (1) the September 29th hearing was related to the district attorney's special exceptions, and (2) the hearing on the expunction petition was reset for October 20th per the agreement of the parties.
The following reflects the complete transcription of the September 29th hearing:
The Court: Mr. de la Fuente, on your expunction, I'm just going to sign the order.
Defense Counsel: Very Well.
The Court: On 2005-07-3649, Olivares.
Defense Counsel: Yes, Your Honor.
The Court: All right.
Defense Counsel: Thank you, Judge. Let me make sure there is an order there, if not I'll get one to the Court.
The Court: They withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception and so I informed him that it was not necessary for him to appear.
Defense Counsel: Very well.
The Court: There is no opposition.
Defense Counsel: We ask the court to sign the order then, Judge.
The Court: I think you are going to have to get me one.
Defense Counsel: I will. (1)
The trial court signed an order of expunction on October 3rd and an amended order of expunction on October 13th. DPS moved for a new trial, arguing that no evidence was presented by Olivares and that Olivares was not entitled to the expunction as a matter of law. The trial court denied the motion, and this appeal ensued.
II. No Evidence
By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. We agree.
A. Standard of Review
A trial court's order in an expunction proceeding is reviewed under an abuse of discretion standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to do so. Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.-Waco 1997, pet. denied).
In conducting a legal sufficiency review, we "view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We will sustain a no evidence challenge when the record shows that (1) there is a complete absence of a vital fact, (2) the court is barred from considering the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 649 (Tex. App.-Corpus Christi 2002, no pet.)
B. Applicable Law
"The expunction statute was created to allow persons wrongfully charged to expunge their arrest records." Williams, 76 S.W.3d at 650 (citing Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.-Corpus Christi 1997, no writ); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.-Houston [14th Dist.] 1991, no writ)). Expunction is only available when all statutory conditions have been met. Id.; see Tex. Code Crim. Proc. Ann. art. 55.01-.02 (Vernon 2006). The petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650 (citing Butler, 941 S.W.2d at 321; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.-Corpus Christi 1991, no writ)).
A petitioner, such as Olivares, who has neither been acquitted of the offense in the petition, nor convicted and subsequently pardoned, must show that each of the following conditions are met to be entitled to expunction:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which the petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).
C. Analysis
By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. In response, Olivares argues that DPS is precluded from raising its no-evidence issue on appeal because (1) DPS was "bound by any representation by a party adverse to said proceeding," and, therefore, induced any purported error, and (2) DPS was required to raise its no-evidence challenge below and failed to do so. Therefore, before we reach the merits of DPS's first issue, we will first address Olivares's challenges to DPS's ability to raise its no-evidence issue on appeal.
To support his first argument, that DPS was "bound by any representation by a party adverse to said proceedings," and, therefore, induced any purported error, Olivares relies on Tex. Dep't of Pub. Safety v. Cryan, No. 14-04-00507-CV, 2005 Tex. App. LEXIS 6419 (Tex. App.-Houston [14th Dist.] Aug. 11, 2005, no pet.) (mem. op.). However, we find Cryan distinguishable from the instant case and conclude that Olivares's reliance on Cryan is without merit.
In Cryan, the district attorney appeared at the expunction hearing and argued as follows:
We did talk to the D.P.S. who filed an extensive answer [in this case]. I think he has talked to [Cryan's attorney] and talked to me. . . . The other two arrests [that did not result in deferred adjudication], we have no problem with expunging those records, but we would oppose any kind of expunction as far as the deferred adjudication is concerned at this point in time because I think, legally, it can not [sic] be done.
Based on this argument by the district attorney, the Fourteenth Court of Appeals found that the district attorney "expressly represented to the trial court that neither he, nor DPS, opposed expunction of records related to these arrests." See id. at *6 (emphasis added). In addition, the Fourteenth Court of Appeals concluded that (1) the district attorney's express representation that there was "no problem" with expunging certain records "clearly invited" error by the trial court, and (2) the district attorney, and the parties he represented at the hearing, could not inconsistently contend on appeal that the trial court erred by expunging the petitioner's records. See id. at *6-*7. The Fourteenth Court of Appeals further concluded that because DPS did not appear at the expunction hearing, the district attorney represented DPS's interests at the hearing. Id. at *7. As a result, the Fourteenth Court of Appeals held that "the district attorney's representation that neither he, nor DPS, opposed expunction of records . . . is binding on DPS and precludes DPS from challenging on appeal the legal sufficiency of the evidence to support expunction of records . . . ." Id. at *8.
Here, however, neither the district attorney nor DPS was present at the September 29th hearing. Although the trial court stated that "they withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception," it is unclear from the record who Mr. Gonzalez was. (2) In addition, it is unclear from the record what the context of any such would-be agreement was-whether it related to special exceptions, to the expunction, or to any other matter. Furthermore, other than the trial court's statement that "there would be an agreement," the record does not show an express representation of any such agreement by Mr. Gonzalez, himself; nor does the record show that Mr. Gonzalez expressly represented that DPS was part of any such agreement. Therefore, based on the record before us, we cannot conclude that (1) Mr. Gonzalez represented DPS's interest at the hearing, (2) DPS was bound by any would-be agreement, or (3) DPS invited any purported error by the trial court regarding the expunction of Olivares's arrest record. Thus, we cannot conclude that DPS is precluded from raising its no-evidence issue on this basis.
With respect to his second argument, Olivares asserts that DPS is precluded from raising its no-evidence challenge on appeal because DPS failed to raise its no-evidence challenge in the trial court. However, we conclude that Olivares's argument is without merit. First, DPS raised its no-evidence challenge in its motion for new trial, which the trial court denied. Moreover, it is well settled that when appealing from a non-jury trial, a legal sufficiency challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d) (providing that in a non-jury case, a legal sufficiency challenge may be raised for the first time on appeal in the complaining party's brief); Tex. R. Civ. P. 324(a), (b). Therefore, we conclude that DPS's no-evidence challenge is properly before this Court. Accordingly, we will now address the merits of DPS's no-evidence issue.
DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to support the expunction. Specifically, DPS asserts that Olivares was required to prove that he satisfied the requirements of article 55.01(a)(2) of the Texas Code of Criminal Procedure in order to be entitled to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). We agree.
It is well settled that the petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650. Because Olivares had neither been acquitted of the offense identified in the petition, nor convicted and subsequently pardoned for said offense, Olivares was required to prove that he satisfied the conditions set out in article 55.01(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). However, the record does not reflect that Olivares presented any evidence to prove satisfaction of these requirements. (3) Therefore, there is a complete absence of the vital facts necessary for Olivares to establish his entitlement to expunction. See City of Keller, 168 S.W.3d at 810; see also Williams, 76 S.W.3d at 649. Thus, we conclude that there is no evidence to support Olivares's expunction and that the trial court erred in ordering Olivares's records expunged. We sustain DPS's first issue.
Having sustained DPS's first issue, we need not address DPS's second issue regarding proper notice of the hearing. See Tex. R. App. P. 47.1.
III. Conclusion
Accordingly, we reverse the trial court's order and render judgment denying the expunction. Pursuant to DPS's prayer for relief, we order any documents surrendered to the trial court or to Olivares returned to the submitting agencies. See Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the order of expunction applies to all respondents, even if they did not participate in the appeal).
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 26th day of July, 2007.
1. 1
We note that the trial court's docket sheet entry for September 29th shows that the October 20th expunction hearing was canceled.
2. 2
We note that neither party explains who Mr. Gonzalez might be.
3. Moreover, we note that in order to have shown his entitlement to expunction, appellee would have had to prove, among other things, that his DWI charge did not result in a final conviction and that the trial court did not order community supervision for the offense. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C). However, appellee does not dispute that the trial court convicted him of DWI and ordered him to complete twelve months of probation. Thus, even if appellee had presented some evidence as to the other statutory requirements for expunction, he would not have been able to prove his satisfaction of article 55.01(a)(2)(C). See id.
Friday, July 13, 2007
Improper argument is to trust the government especially when they "confess error"
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NUMBER 13-00-015-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
MARK ANTHONY WEAD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from County Criminal Court at Law No. 14
of Harris County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Baird[1]
Opinion by Justice Baird
Appellant was charged by information with the misdemeanor offense of assault. A jury convicted appellant of the charged offense. The trial judge assessed punishment at confinement for one year and a fine of $4,000. Appellant raises ten points of error. We reverse.
I. Sufficiency Challenges.
The ninth and tenth points of error challenge the legal and factual sufficiency of the evidence to support the jury=s verdict, respectively. When reviewing such challenges, we apply the well known standards of Jackson v. Virginia, 443 U.S. 307, 315‑16 (1979), and Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). When determining legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318‑19. In determining factual sufficiency, we do not view the evidence "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Rather, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates the proof of guilt is either so obviously weak as to undermine confidence in the jury's determination, or, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).
A. Factual Summary.
Andrea Moore testified she was living with appellant and his wife, the complainant, on the date alleged in the information. Moore heard appellant and the complainant arguing in the bedroom. The complainant exited the bedroom and said she had been slapped by appellant. Moore then witnessed appellant approach the complainant from behind, and punch her left eye. Moore testified the complainant put her hands over her face and appeared to be in pain. Appellant continued hitting the complainant on the back of her head. When appellant ordered Moore from the apartment, she responded that she was going to call the police. The altercation ended and appellant returned to the bedroom.
Corporal Mary Krebs worked with the Domestic Violence and Victims Services Unit of the Harris County Precinct Four Constable=s Office. The complainant came to Krebs=s office in an hysterical state. Krebs could see that the complainant had injuries to her left eye, neck and breasts. Krebs photographed the complainant=s injuries. These photographs were admitted into evidence. Krebs described the complainant as having Aswelling in her left eye, and it was a bluish, purplish color.@
The State rested at the conclusion of the testimony from these two witnesses. Appellant moved for an instructed verdict on the basis that the State had failed to prove Abodily injury.@ The trial judge overruled the motion due to the swelling of the complainant=s eye. Appellant now argues the evidence is insufficient to prove the elemental fact of bodily injury because the complainant did not testify.
C. Analysis.
The Penal Code defines bodily injury as "physical pain, illness, or any impairment of physical condition." Tex. Pen. Code Ann. ' 1.07(a)(8) (Vernon 1997). This definition is "purposely broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). In the instant case, Moore testified the complainant appeared to be in pain after being struck in the left eye by appellant. The photographs taken by Krebs show a swelling to the complainant=s left eye, as well as other injuries. Appellant has not directed us to any authority which requires the complainant to personally testify to the elemental fact of bodily injury. Similarly, our independent research has not revealed any such authority. While it may be preferable to have the complainant testify to that element, that testimony is not required to sustain a conviction. Consequently, we hold this evidence is both legally and factually sufficient to support the jury=s verdict. Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (evidence that complainant suffered small bruise and physical pain sufficient evidence of bodily injury). Therefore, points of error nine and ten are overruled.
II. Jury Argument.
The third point of error contends the trial judge erred in denying a mistrial following the prosecutor=s comment on appellant=s failure to testify.
A. Factual Summary.
Appellant did not testify during the guilt phase of the trial. The trial judge instructed the jury as follows:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.
During the State=s closing argument, the following exchange occurred:
THE PROSECUTOR: Now, we all heard very credible testimony from an independent witness who sat right there on the stand and told you that that man, the Defendant (indicating), sitting here right now looking like he really doesn=t care one way or another what happens here today[2] B
DEFENSE COUNSEL: Your Honor, I=m gonna object to the attack on the Defendant as improper argument.
THE COURT: Sustained. Uh, please disregard the Prosecutor=s comment about the Defendant=s appearance. Consider it for no purpose whatsoever.
DEFENSE COUNSEL: Move for a mistrial, Your Honor.
THE COURT: That will be denied.
B. Analysis.
i. Preservation of Error.
As a general rule, to raise a jury argument complaint on appeal an appellant must show he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.1996). Otherwise, an appellant forfeits his right to complain. Id. In the instant case, appellant pursued his objection to an adverse ruling. Therefore, the issue is preserved for our review.
ii. Closing Argument.
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980); Faulkner v. State, 940 S.W.2d 308, 311 (Tex. App.BFort Worth 1997, pet. ref'd) (en banc op. on reh'g). The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney. Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App.1984); To be permissible, the State's jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
Our law is clear that commenting upon the defendant's non-testimonial courtroom behavior to establish guilt is improper argument. Good v. State, 723 S.W.2d 734, 737 (Tex. Crim. App. 1986).[3] The State concedes this point, and states the argument could have led the jury to reflect on appellant=s failure to testify. App br. pg. 9.[4] Accordingly, we find the State erred in making the complained of argument.
C. Curative Instruction.
Even if an argument is outside of one of the permissible areas, an instruction to disregard the remarks will normally cure the error, unless "in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused." Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). In the instant case, the improper argument commented upon the defendant=s election to not testify. Article 38.08 of the Code of Criminal Procedure provides as follows:
Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.
Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979).
Therefore, the prosecutor=s improper argument violated this mandatory statute. Campbell v. State, 900 S.W.2d 763, 766 (Tex. App.BWaco 1995, no pet.) (recognizing also article 38.08 is mandatory statute). Additionally, the comment was prejudicial because it was accompanied by a gesture by the prosecutor specifically identifying appellant when the objectionable remark was uttered. When the improper comment and accompanying gesture are viewed from the jury=s standpoint, the jury would naturally and necessarily take it as a comment on appellant=s election to not testify. Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990) (The offensive language, Awhen viewed from the jury's standpoint, must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify.@). Accordingly, we hold the improper argument was violative of a mandatory statute, and so inflammatory that its prejudicial effect could not be reasonably removed by the instruction from the trial judge to disregard. Therefore, we conclude the error was not cured by the trial judge=s instruction. Reed, 991 S.W.2d at 363. See also Dickinson, 685 S.W.2d at 322 (argument violating art. 38.08 Ararely cureable by an instruction to the jury to disregard.@).
D. Harm Analysis.
Having determined the error was not cured, we must conduct a harm analysis. Madden, 799 S.W.2d at 699. Of course, a prosecutor who comments on an accused's failure to testify violates both the United States and Texas Constitutions. U.S. Const. art. V; Tex. Const. art. I, ' 10; Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983). The harm resulting from error of constitutional magnitude is gauged by the standard of Rule 44.2(a) of the Texas Rules of Appellate Procedure. Under this rule, we must reverse the judgment of the trial court unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. When performing this analysis, the following factors are to be considered: 1) the source of the error; 2) the nature of the error; 3) whether the error was emphasized and its probable collateral implications; 4) the weight a juror would probably place upon the error; and 5) whether declaring the error harmless would encourage the State to repeat it with impunity. Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990). Though no one factor is dispositive, the existence and severity of these factors are indicative of the harm caused by the State's improper argument. Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996).
When these factors are considered in the instant case, we find the source of the error was the State. Therefore, this factor favors a finding of harm. The nature of the error was to undermine a fundamental principle of criminal jurisprudence, the right against self-incrimination. Even more egregious was the use of appellant=s mere presence in the courtroom to undermine this basic right. This factor weighs heavily toward a finding of harm.
Regarding the third factor, we note that defense counsel used his argument to undermine the State=s case B pointing out that the complainant had not testified, and that Moore had been impeached with her prior written statement. The State did not make an opening argument but rather waited until final summation to make the improper argument and accompanying gesture. This tactical advantage had the effect of committing the error at a time the jury would most likely consider appellant's failure to testify as evidence of guilt. Consequently, the third factor militates toward a finding of harm.
The fourth factor is concerned with the weight a juror would probably place upon the error. Unlike, Orona and Wilson, where the trial judge overruled the objections, in the instant case, the trial judge sustained the objection. However, the curative instruction was tepid and, as noted above, not strong enough to cure the error. Compare Glauser v. State, 66 S.W.3d 307, 321 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d.) (recognizing Astrong instruction to disregard@). Therefore, we consider this factor neutral.
Finally we consider the probable effect of holding the State's improper argument harmless. We, like the Court of Criminal Appeals and our sister courts, cannot understand why prosecutors continue to depart from the well established rules for proper jury argument. Wilson, 938 S.W.2d at 62 (quoting Summers v. State, 147 Tex. Crim. 519, 182 S.W.2d 720, 721 (1944)); Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986); Lomas v. State, 707 S.W.2d 566, 569 (Tex. Crim. App. 1986); Washington v. State, 16 S.W.3d 70, 75 (Tex. App.BHouston [1st Dist.] 2000, pet. ref'd) (State strikes "foul blow" arguing incriminating "fact" not substantiated in record); Mayberry v. State, 830 S.W.2d 176, 179 (Tex. App.BDallas 1992, pet. ref'd). Additionally, the Supreme Court has held that "courts must be alert to factors that may undermine the fairness of the factfinding process." Estelle v. Williams, 425 U.S. 501, 503 (1976). The probability of deleterious effects on fundamental rights, such as the Fifth Amendment guarantee against self‑incrimination which every defendant is entitled to, calls for close judicial scrutiny. Id. Our independent research has revealed literally hundreds of cases where the State has engaged in improper argument. In the majority of those cases, reversal was not required because the error was either not preserved, or was cured by the trial judge=s instruction to disregard the improper argument.[5] However, affirming convictions on the basis that defense counsel has not done his job, or that the trial judge has taken curative action does nothing to prevent prosecutors from breaking our established rules for jury argument. Instead, those opinions actually serve to embolden and encourage those prosecutors determined to violate the established rules defining the parameters for proper argument. The sheer number of these cases lead us to the conclusion that declaring harmless the argument in the instant case would further encourage the State to continue this type of offensive conduct. This we will not do. As stated by the Court of Criminal Appeals more than fifty years ago, when a matter such as this is brought before an appellate court, that court's duty is clear, and the responsibility for the reversal must rest solely upon the prosecuting attorney. Lankford v. State, 156 Tex. Crim. 113, 239 S.W.2d 394, 395 (1951).
For the reasons stated above, the relevant considerations weigh heavily in favor of finding the error harmful. Therefore, we are unable to determine beyond a reasonable doubt that the prosecutor's argument made no contribution to the conviction. Accordingly, we sustain the third point of error.[6]
III. Contempt.
The eighth point of error relates to the trial judge holding appellant in contempt for a comment allegedly made at the punishment phase of the trial. However, we have held decisions in contempt proceedings are not appealable. Mendez v. Attorney Gen. of Tex., 761 S.W.2d 519, 521 (Tex. App.BCorpus Christi 1988, no writ). This is so even where the contempt order is being appealed along with a judgment that is appealable. Id. The validity of a contempt order can be attacked only by a writ of habeas corpus. Ex parte Williams, 690 S.W.2d 243, 243 n. 1 (Tex. 1985); Saenz v. Saenz, 756 S.W.2d 93, 95 (Tex. App.BSan Antonio 1988, no writ). Therefore, the eighth point of error is dismissed for want of jurisdiction.
The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.
CHARLES F. BAIRD
Justice
Publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 14th day of November, 2002.
[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).
[2] All emphasis is supplied unless otherwise indicated.
[3] A prosecutor may comment on the defendant's non‑testimonial demeanor only if it occurs during testimony. Id.
[4] It should be noted that the prosecutor handling this appeal is not the attorney who made the improper argument. The public trust reposed in the law enforcement officers of the Government requires that prosecutors be quick to confess error. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). We are pleased to see the attorney representing the State on this appeal is mindful of and has fulfilled her ethical obligation.
[5] In the instant case, appellant=s first point of error raises another claim of improper argument. The State responds that the error was not preserved.
[6] We need not address the sixth point of error. However, we are troubled that the State asked Moore to identify appellant by his armband which signified appellant was in custody at the time of his trial. Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App. 1992) (clothing that "bears the indicia of incarceration" that subverts a defendant's right to a presumption of innocence).
NUMBER 13-00-015-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
MARK ANTHONY WEAD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from County Criminal Court at Law No. 14
of Harris County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Baird[1]
Opinion by Justice Baird
Appellant was charged by information with the misdemeanor offense of assault. A jury convicted appellant of the charged offense. The trial judge assessed punishment at confinement for one year and a fine of $4,000. Appellant raises ten points of error. We reverse.
I. Sufficiency Challenges.
The ninth and tenth points of error challenge the legal and factual sufficiency of the evidence to support the jury=s verdict, respectively. When reviewing such challenges, we apply the well known standards of Jackson v. Virginia, 443 U.S. 307, 315‑16 (1979), and Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). When determining legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318‑19. In determining factual sufficiency, we do not view the evidence "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Rather, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates the proof of guilt is either so obviously weak as to undermine confidence in the jury's determination, or, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).
A. Factual Summary.
Andrea Moore testified she was living with appellant and his wife, the complainant, on the date alleged in the information. Moore heard appellant and the complainant arguing in the bedroom. The complainant exited the bedroom and said she had been slapped by appellant. Moore then witnessed appellant approach the complainant from behind, and punch her left eye. Moore testified the complainant put her hands over her face and appeared to be in pain. Appellant continued hitting the complainant on the back of her head. When appellant ordered Moore from the apartment, she responded that she was going to call the police. The altercation ended and appellant returned to the bedroom.
Corporal Mary Krebs worked with the Domestic Violence and Victims Services Unit of the Harris County Precinct Four Constable=s Office. The complainant came to Krebs=s office in an hysterical state. Krebs could see that the complainant had injuries to her left eye, neck and breasts. Krebs photographed the complainant=s injuries. These photographs were admitted into evidence. Krebs described the complainant as having Aswelling in her left eye, and it was a bluish, purplish color.@
The State rested at the conclusion of the testimony from these two witnesses. Appellant moved for an instructed verdict on the basis that the State had failed to prove Abodily injury.@ The trial judge overruled the motion due to the swelling of the complainant=s eye. Appellant now argues the evidence is insufficient to prove the elemental fact of bodily injury because the complainant did not testify.
C. Analysis.
The Penal Code defines bodily injury as "physical pain, illness, or any impairment of physical condition." Tex. Pen. Code Ann. ' 1.07(a)(8) (Vernon 1997). This definition is "purposely broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). In the instant case, Moore testified the complainant appeared to be in pain after being struck in the left eye by appellant. The photographs taken by Krebs show a swelling to the complainant=s left eye, as well as other injuries. Appellant has not directed us to any authority which requires the complainant to personally testify to the elemental fact of bodily injury. Similarly, our independent research has not revealed any such authority. While it may be preferable to have the complainant testify to that element, that testimony is not required to sustain a conviction. Consequently, we hold this evidence is both legally and factually sufficient to support the jury=s verdict. Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (evidence that complainant suffered small bruise and physical pain sufficient evidence of bodily injury). Therefore, points of error nine and ten are overruled.
II. Jury Argument.
The third point of error contends the trial judge erred in denying a mistrial following the prosecutor=s comment on appellant=s failure to testify.
A. Factual Summary.
Appellant did not testify during the guilt phase of the trial. The trial judge instructed the jury as follows:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.
During the State=s closing argument, the following exchange occurred:
THE PROSECUTOR: Now, we all heard very credible testimony from an independent witness who sat right there on the stand and told you that that man, the Defendant (indicating), sitting here right now looking like he really doesn=t care one way or another what happens here today[2] B
DEFENSE COUNSEL: Your Honor, I=m gonna object to the attack on the Defendant as improper argument.
THE COURT: Sustained. Uh, please disregard the Prosecutor=s comment about the Defendant=s appearance. Consider it for no purpose whatsoever.
DEFENSE COUNSEL: Move for a mistrial, Your Honor.
THE COURT: That will be denied.
B. Analysis.
i. Preservation of Error.
As a general rule, to raise a jury argument complaint on appeal an appellant must show he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.1996). Otherwise, an appellant forfeits his right to complain. Id. In the instant case, appellant pursued his objection to an adverse ruling. Therefore, the issue is preserved for our review.
ii. Closing Argument.
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980); Faulkner v. State, 940 S.W.2d 308, 311 (Tex. App.BFort Worth 1997, pet. ref'd) (en banc op. on reh'g). The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney. Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App.1984); To be permissible, the State's jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
Our law is clear that commenting upon the defendant's non-testimonial courtroom behavior to establish guilt is improper argument. Good v. State, 723 S.W.2d 734, 737 (Tex. Crim. App. 1986).[3] The State concedes this point, and states the argument could have led the jury to reflect on appellant=s failure to testify. App br. pg. 9.[4] Accordingly, we find the State erred in making the complained of argument.
C. Curative Instruction.
Even if an argument is outside of one of the permissible areas, an instruction to disregard the remarks will normally cure the error, unless "in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused." Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). In the instant case, the improper argument commented upon the defendant=s election to not testify. Article 38.08 of the Code of Criminal Procedure provides as follows:
Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.
Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979).
Therefore, the prosecutor=s improper argument violated this mandatory statute. Campbell v. State, 900 S.W.2d 763, 766 (Tex. App.BWaco 1995, no pet.) (recognizing also article 38.08 is mandatory statute). Additionally, the comment was prejudicial because it was accompanied by a gesture by the prosecutor specifically identifying appellant when the objectionable remark was uttered. When the improper comment and accompanying gesture are viewed from the jury=s standpoint, the jury would naturally and necessarily take it as a comment on appellant=s election to not testify. Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990) (The offensive language, Awhen viewed from the jury's standpoint, must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify.@). Accordingly, we hold the improper argument was violative of a mandatory statute, and so inflammatory that its prejudicial effect could not be reasonably removed by the instruction from the trial judge to disregard. Therefore, we conclude the error was not cured by the trial judge=s instruction. Reed, 991 S.W.2d at 363. See also Dickinson, 685 S.W.2d at 322 (argument violating art. 38.08 Ararely cureable by an instruction to the jury to disregard.@).
D. Harm Analysis.
Having determined the error was not cured, we must conduct a harm analysis. Madden, 799 S.W.2d at 699. Of course, a prosecutor who comments on an accused's failure to testify violates both the United States and Texas Constitutions. U.S. Const. art. V; Tex. Const. art. I, ' 10; Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983). The harm resulting from error of constitutional magnitude is gauged by the standard of Rule 44.2(a) of the Texas Rules of Appellate Procedure. Under this rule, we must reverse the judgment of the trial court unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. When performing this analysis, the following factors are to be considered: 1) the source of the error; 2) the nature of the error; 3) whether the error was emphasized and its probable collateral implications; 4) the weight a juror would probably place upon the error; and 5) whether declaring the error harmless would encourage the State to repeat it with impunity. Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990). Though no one factor is dispositive, the existence and severity of these factors are indicative of the harm caused by the State's improper argument. Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996).
When these factors are considered in the instant case, we find the source of the error was the State. Therefore, this factor favors a finding of harm. The nature of the error was to undermine a fundamental principle of criminal jurisprudence, the right against self-incrimination. Even more egregious was the use of appellant=s mere presence in the courtroom to undermine this basic right. This factor weighs heavily toward a finding of harm.
Regarding the third factor, we note that defense counsel used his argument to undermine the State=s case B pointing out that the complainant had not testified, and that Moore had been impeached with her prior written statement. The State did not make an opening argument but rather waited until final summation to make the improper argument and accompanying gesture. This tactical advantage had the effect of committing the error at a time the jury would most likely consider appellant's failure to testify as evidence of guilt. Consequently, the third factor militates toward a finding of harm.
The fourth factor is concerned with the weight a juror would probably place upon the error. Unlike, Orona and Wilson, where the trial judge overruled the objections, in the instant case, the trial judge sustained the objection. However, the curative instruction was tepid and, as noted above, not strong enough to cure the error. Compare Glauser v. State, 66 S.W.3d 307, 321 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d.) (recognizing Astrong instruction to disregard@). Therefore, we consider this factor neutral.
Finally we consider the probable effect of holding the State's improper argument harmless. We, like the Court of Criminal Appeals and our sister courts, cannot understand why prosecutors continue to depart from the well established rules for proper jury argument. Wilson, 938 S.W.2d at 62 (quoting Summers v. State, 147 Tex. Crim. 519, 182 S.W.2d 720, 721 (1944)); Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986); Lomas v. State, 707 S.W.2d 566, 569 (Tex. Crim. App. 1986); Washington v. State, 16 S.W.3d 70, 75 (Tex. App.BHouston [1st Dist.] 2000, pet. ref'd) (State strikes "foul blow" arguing incriminating "fact" not substantiated in record); Mayberry v. State, 830 S.W.2d 176, 179 (Tex. App.BDallas 1992, pet. ref'd). Additionally, the Supreme Court has held that "courts must be alert to factors that may undermine the fairness of the factfinding process." Estelle v. Williams, 425 U.S. 501, 503 (1976). The probability of deleterious effects on fundamental rights, such as the Fifth Amendment guarantee against self‑incrimination which every defendant is entitled to, calls for close judicial scrutiny. Id. Our independent research has revealed literally hundreds of cases where the State has engaged in improper argument. In the majority of those cases, reversal was not required because the error was either not preserved, or was cured by the trial judge=s instruction to disregard the improper argument.[5] However, affirming convictions on the basis that defense counsel has not done his job, or that the trial judge has taken curative action does nothing to prevent prosecutors from breaking our established rules for jury argument. Instead, those opinions actually serve to embolden and encourage those prosecutors determined to violate the established rules defining the parameters for proper argument. The sheer number of these cases lead us to the conclusion that declaring harmless the argument in the instant case would further encourage the State to continue this type of offensive conduct. This we will not do. As stated by the Court of Criminal Appeals more than fifty years ago, when a matter such as this is brought before an appellate court, that court's duty is clear, and the responsibility for the reversal must rest solely upon the prosecuting attorney. Lankford v. State, 156 Tex. Crim. 113, 239 S.W.2d 394, 395 (1951).
For the reasons stated above, the relevant considerations weigh heavily in favor of finding the error harmful. Therefore, we are unable to determine beyond a reasonable doubt that the prosecutor's argument made no contribution to the conviction. Accordingly, we sustain the third point of error.[6]
III. Contempt.
The eighth point of error relates to the trial judge holding appellant in contempt for a comment allegedly made at the punishment phase of the trial. However, we have held decisions in contempt proceedings are not appealable. Mendez v. Attorney Gen. of Tex., 761 S.W.2d 519, 521 (Tex. App.BCorpus Christi 1988, no writ). This is so even where the contempt order is being appealed along with a judgment that is appealable. Id. The validity of a contempt order can be attacked only by a writ of habeas corpus. Ex parte Williams, 690 S.W.2d 243, 243 n. 1 (Tex. 1985); Saenz v. Saenz, 756 S.W.2d 93, 95 (Tex. App.BSan Antonio 1988, no writ). Therefore, the eighth point of error is dismissed for want of jurisdiction.
The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.
CHARLES F. BAIRD
Justice
Publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 14th day of November, 2002.
[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).
[2] All emphasis is supplied unless otherwise indicated.
[3] A prosecutor may comment on the defendant's non‑testimonial demeanor only if it occurs during testimony. Id.
[4] It should be noted that the prosecutor handling this appeal is not the attorney who made the improper argument. The public trust reposed in the law enforcement officers of the Government requires that prosecutors be quick to confess error. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). We are pleased to see the attorney representing the State on this appeal is mindful of and has fulfilled her ethical obligation.
[5] In the instant case, appellant=s first point of error raises another claim of improper argument. The State responds that the error was not preserved.
[6] We need not address the sixth point of error. However, we are troubled that the State asked Moore to identify appellant by his armband which signified appellant was in custody at the time of his trial. Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App. 1992) (clothing that "bears the indicia of incarceration" that subverts a defendant's right to a presumption of innocence).
Confession of error by the Government ~Just to capture Jurisdiction from the FEDS!!!
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NUMBER 13-03-726-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GUADALUPE T. RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of De Witt County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Castillo, and Garza
Memorandum Opinion by Justice Garza
Appellant, Guadalupe T. Rivera, was charged by indictment with the second degree felony offense of aggravated assault with a deadly weapon; appellant pleaded not guilty. See Tex. Pen. Code Ann. ' 22.02 (Vernon Supp. 2004-05). Appellant was tried by a jury and found guilty of the offense. The trial court sentenced appellant to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000. The trial court denied appellant=s motion for new trial. This appeal ensued.
Appellant=s counsel has filed an Anders brief with this Court in which he states that he has reviewed the record and concludes that only two possible issues exist for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel=s brief further concludes that these issues lack merit and any appeal in this case would be frivolous. See id. The brief meets the requirements of Anders, as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment. Counsel certifies that he has served a copy of his brief on appellant and informed appellant of his right to file a pro se brief. More than thirty days have passed and no pro se brief has been filed. See Tex. R. App. P. 38.6.
I. Article 38.38 and the Right to Remain Silent
By his first issue, appellant contends that the trial judge should have sua sponte declared a mistrial as a result of the prosecutor=s comments on appellant=s invocation of his right to counsel and right to remain silent. See U.S. Const. amend. V; see also Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon 2005).[1] Appellant argues that the prosecutor=s questions, AYou lawyered up, didn=t you?@ and AYou lawyered up, right?@ were improper because they constituted a comment on appellant=s invocation of his right to counsel and Fifth Amendment right to remain silent. See Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (holding that adverse use of evidence that an accused invoked a right or privilege is constitutionally impermissible).
The State responds that appellant waived any error by failing to object to this line of questioning. See Tex. R. App. P. 33.1(a) (requiring specific objection and a ruling from the trial judge to preserve error for appellate purposes). We agree.
To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103; see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). Generally, a party=s failure to timely and specifically object at trial waives error. See Blue, 41 S.W.3d at 131. Specifically, a timely objection is required to preserve error in the admission of evidence. Tex. R. App. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc). In such situations, the proper method to preserve error is to (1) make a timely objection and secure a ruling, (2) request the trial court to instruct the jury to disregard the statement, and (3) move for mistrial. Tex. R. App. P. 33.1(a); Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).
Constitutional guarantees may be forfeited by the failure to raise a timely, specific objection. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (finding waiver of Fourteenth Amendment right). Nonetheless, in a criminal case, rule of evidence 103(d) authorizes us to take notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court. Tex. R. Evid. 103(d). ASome rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.@ Blue, 41 S.W.3d at 131. A principal characteristic of these rights is that they cannot be forfeited. Id. That is to say, they are not extinguished by inaction alone. Id. Instead, an accused must expressly relinquish a fundamental right. Id. However, a comment on a defendant=s invocation of his right to counsel is not a fundamental error that will be preserved for appeal without proper objection. See Cacy v. State, 901 S.W.2d 691, 699-700 (Tex. App.BEl Paso 1995, pet. ref=d). Likewise, the right to remain silent is not so fundamental as to require the special protection of relieving the appellant of the necessity of an objection. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Objection is required to preserve the issue. Wheatfall, 882 S.W.2d at 836; Smith, 721 S.W.2d at 855. We have reviewed the record and find that appellant=s counsel did not object and thus failed to preserve this error for appeal. See Tex. R. App. P. 33.1. Accordingly, we overrule appellant=s first issue.
II. Admission of Photographs
In his second issue, appellant complains that the admission of State=s exhibits 2 through 10, photographs of the scene of the shooting, was misleading because the photographs were taken during daylight hours and the shooting actually occurred at night.[2]
An appellate court reviewing a lower court=s ruling on the admissibility of evidence must apply an abuse of discretion standard of review. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). The court abuses its discretion only when the probative value of the photographs is slight and its inflammatory aspect is great. See Mathews v. State, 40 S.W.3d 179,185 (Tex. App.BTexarkana 2001, pet. ref=d.). A photograph is generally admissible if verbal testimony about the matters depicted in the photograph is also admissible. Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994); Mathews, 40 S.W.3d at 185.
An abuse of discretion does not occur if discrepancies between the picture and the subject at its relevant time are properly pointed out. Johnson v. State, 583 S.W.2d 399, 404 (Tex. Crim. App. 1979). The record establishes that defense counsel cross-examined Officer Corey Tolbert as to the accuracy of the photographs and as to the fact that the photographs were taken during the day and the crime occurred at night.[3] Officer Tolbert testified that, despite the difference in lighting, the photographs accurately depicted the scene of the crime and the surrounding area.[4] The jury was made aware of the lighting differences. See id. No error is shown. Appellant=s second issue is overruled.
III. Independent Review of Record
As stated above, appellant=s counsel has filed a brief and motion to withdraw in which he concludes that appellant has no non-frivolous grounds for appeal. See Anders, 386 U.S. at 744. Upon receiving a Afrivolous appeal@ brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). Having reviewed the entire record, we find that there are no reversible grounds of error and we affirm the judgment of the trial court.
IV. Motion to Withdraw
In accordance with Anders, appellant=s counsel has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant his motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
_______________________
DORI CONTRERAS GARZA,
Justice
Concurring Memorandum Opinion
by Justice Errlinda Castillo.
Do not publish.
Tex.R.App.P. 47.2(b)
Memorandum Opinion delivered
and filed this the 14th day of July, 2005.
[1] Article 38.38 provides:
Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense. In a criminal case, neither the judge nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case.
Tex. Code Crim. Proc. Ann. art. 38.38.
[2] In his brief, counsel states that he is complaining of exhibits 2 through 12. However, only exhibits 2 through 10 are photographs of the scene.
[3] Officer Tolbert was one of the officers present at the investigation of the crime scene.
[4] The photographs in question apparently depicted no more than distances, landmarks, and the lay of the land. Other than the daytime/nighttime distinction, there is nothing inflammatory in the photographs.
NUMBER 13-03-726-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GUADALUPE T. RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of De Witt County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Castillo, and Garza
Memorandum Opinion by Justice Garza
Appellant, Guadalupe T. Rivera, was charged by indictment with the second degree felony offense of aggravated assault with a deadly weapon; appellant pleaded not guilty. See Tex. Pen. Code Ann. ' 22.02 (Vernon Supp. 2004-05). Appellant was tried by a jury and found guilty of the offense. The trial court sentenced appellant to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000. The trial court denied appellant=s motion for new trial. This appeal ensued.
Appellant=s counsel has filed an Anders brief with this Court in which he states that he has reviewed the record and concludes that only two possible issues exist for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel=s brief further concludes that these issues lack merit and any appeal in this case would be frivolous. See id. The brief meets the requirements of Anders, as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment. Counsel certifies that he has served a copy of his brief on appellant and informed appellant of his right to file a pro se brief. More than thirty days have passed and no pro se brief has been filed. See Tex. R. App. P. 38.6.
I. Article 38.38 and the Right to Remain Silent
By his first issue, appellant contends that the trial judge should have sua sponte declared a mistrial as a result of the prosecutor=s comments on appellant=s invocation of his right to counsel and right to remain silent. See U.S. Const. amend. V; see also Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon 2005).[1] Appellant argues that the prosecutor=s questions, AYou lawyered up, didn=t you?@ and AYou lawyered up, right?@ were improper because they constituted a comment on appellant=s invocation of his right to counsel and Fifth Amendment right to remain silent. See Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (holding that adverse use of evidence that an accused invoked a right or privilege is constitutionally impermissible).
The State responds that appellant waived any error by failing to object to this line of questioning. See Tex. R. App. P. 33.1(a) (requiring specific objection and a ruling from the trial judge to preserve error for appellate purposes). We agree.
To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103; see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). Generally, a party=s failure to timely and specifically object at trial waives error. See Blue, 41 S.W.3d at 131. Specifically, a timely objection is required to preserve error in the admission of evidence. Tex. R. App. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc). In such situations, the proper method to preserve error is to (1) make a timely objection and secure a ruling, (2) request the trial court to instruct the jury to disregard the statement, and (3) move for mistrial. Tex. R. App. P. 33.1(a); Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).
Constitutional guarantees may be forfeited by the failure to raise a timely, specific objection. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (finding waiver of Fourteenth Amendment right). Nonetheless, in a criminal case, rule of evidence 103(d) authorizes us to take notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court. Tex. R. Evid. 103(d). ASome rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system.@ Blue, 41 S.W.3d at 131. A principal characteristic of these rights is that they cannot be forfeited. Id. That is to say, they are not extinguished by inaction alone. Id. Instead, an accused must expressly relinquish a fundamental right. Id. However, a comment on a defendant=s invocation of his right to counsel is not a fundamental error that will be preserved for appeal without proper objection. See Cacy v. State, 901 S.W.2d 691, 699-700 (Tex. App.BEl Paso 1995, pet. ref=d). Likewise, the right to remain silent is not so fundamental as to require the special protection of relieving the appellant of the necessity of an objection. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Objection is required to preserve the issue. Wheatfall, 882 S.W.2d at 836; Smith, 721 S.W.2d at 855. We have reviewed the record and find that appellant=s counsel did not object and thus failed to preserve this error for appeal. See Tex. R. App. P. 33.1. Accordingly, we overrule appellant=s first issue.
II. Admission of Photographs
In his second issue, appellant complains that the admission of State=s exhibits 2 through 10, photographs of the scene of the shooting, was misleading because the photographs were taken during daylight hours and the shooting actually occurred at night.[2]
An appellate court reviewing a lower court=s ruling on the admissibility of evidence must apply an abuse of discretion standard of review. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997). The court abuses its discretion only when the probative value of the photographs is slight and its inflammatory aspect is great. See Mathews v. State, 40 S.W.3d 179,185 (Tex. App.BTexarkana 2001, pet. ref=d.). A photograph is generally admissible if verbal testimony about the matters depicted in the photograph is also admissible. Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994); Mathews, 40 S.W.3d at 185.
An abuse of discretion does not occur if discrepancies between the picture and the subject at its relevant time are properly pointed out. Johnson v. State, 583 S.W.2d 399, 404 (Tex. Crim. App. 1979). The record establishes that defense counsel cross-examined Officer Corey Tolbert as to the accuracy of the photographs and as to the fact that the photographs were taken during the day and the crime occurred at night.[3] Officer Tolbert testified that, despite the difference in lighting, the photographs accurately depicted the scene of the crime and the surrounding area.[4] The jury was made aware of the lighting differences. See id. No error is shown. Appellant=s second issue is overruled.
III. Independent Review of Record
As stated above, appellant=s counsel has filed a brief and motion to withdraw in which he concludes that appellant has no non-frivolous grounds for appeal. See Anders, 386 U.S. at 744. Upon receiving a Afrivolous appeal@ brief, appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). Having reviewed the entire record, we find that there are no reversible grounds of error and we affirm the judgment of the trial court.
IV. Motion to Withdraw
In accordance with Anders, appellant=s counsel has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant his motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
_______________________
DORI CONTRERAS GARZA,
Justice
Concurring Memorandum Opinion
by Justice Errlinda Castillo.
Do not publish.
Tex.R.App.P. 47.2(b)
Memorandum Opinion delivered
and filed this the 14th day of July, 2005.
[1] Article 38.38 provides:
Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense. In a criminal case, neither the judge nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case.
Tex. Code Crim. Proc. Ann. art. 38.38.
[2] In his brief, counsel states that he is complaining of exhibits 2 through 12. However, only exhibits 2 through 10 are photographs of the scene.
[3] Officer Tolbert was one of the officers present at the investigation of the crime scene.
[4] The photographs in question apparently depicted no more than distances, landmarks, and the lay of the land. Other than the daytime/nighttime distinction, there is nothing inflammatory in the photographs.
Sunday, July 08, 2007
Sunday, July 08, 2007.....another promo by the "patriot group'" to promote the Nazi wall Agenda......Reaganomics don't work
Watts Law Firm
Sunday, July 08, 2007
Another fabrication by Cornyn to promote his racist and Nazi Wall agenda
Saturday, August 05, 2006
New Sentencing Trial for Texas Death Row Inmate
The Odessa American has a story on the new sentencing trial previously ordered for Michael Dean Gonzales. The U.S. Fifth Circuit Court of Appeals last week denied his habeas petition which raised claims that prosecutors failed to turn over exculpatory evidence and ineffective assistance of counsel at his capital murder trial.
The Odessa American story is here.
Not at issue before the Fifth Circuit was a federal district court's earlier order that Gonzales receive a new sentencing trial because of racist testimony by the state's expert witness.
The pertinent paragraph is on page 7 of the circuit court's decision:
Gonzales filed a supplemental petition in August, 2000, asserting that the State’s psychological expert witness testified, unconstitutionally, that race is an indicator of future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this point.
This is from the Odessa American story; the person quoted is Ector County District Attorney Bobby Bland (presumably no relation to the legendary soul singer Bobby Blue Bland):
Bland said that it’s his understanding that the penalty phase of the trial was overturned because of a faulty witness in the case handled by a previous district attorney.
“My understanding was that we had an expert witness who’d been called in to witness on other cases, and his testimony created some problems in the cases, because there were comments on race,” Bland said. “In our case, I don’t think he testified that way.”
On June 11, 2000, then-State Attorney General John Cornyn announced six convicted killers, including Gonzales, would likely have their death sentences overturned. The U.S. Supreme Court found that psychologist Walter Qijano was racially biased in his testimony in the case of Victor Saldano. Qijano had also testified as an expert witness in Gonzales’ case.
Actually, that understates Cornyn's role. The state's expert psychologist, Quijano, had testified in six separate cases that being Hispanic was an aggravating factor, and for that reason the Hispanic men would represent a future danger and that the death penalty was the appropriate punishment. In a rare move, the Attorney General announced that he would not defend such blatantly racist testimony.
It was a courageous stand that drew opposition from some Texas district attorneys. Unfortunately, as the junior U.S. Senator, Cornyn has stood with a handful of Republicans in the House and Senate over the past year who have repeatedly attempted to severely limit federal court review of state death penalty convictions. Yesterday, the Ohio Death Penalty Information blog had this post noting Cornyn's latest attempt to put such language in a bill designed for judicial security. LINK
Saturday, August 05, 2006 at 06:21 PM in Fifth Circuit, Race, Specific Case | Permalink | Comments (0)
Labels: Prejudice, race, SCOTUS, Texas Fair Defense Act
// posted by dannoynted1 @ 6:48 PM 0 comments links to this post
Cornyn on punking the SCOTUS to get this SCOTUS case back to Texas to punk the justice system and the US Constitution
Wednesday, September 27, 2006
Super-Bad Bush Nominees Get a Needless Day in Court
That's the title of Cragg Hines' column in today's Houston Chronicle. Hines, the paper's Washington, D.C. based columnist, reports on the Senate Judiciary Committee hearings on two federal court nominees, including one nominated for the U.S. Fifth Circuit Court of Appeals. LINK
As afternoon moved toward evening, it became clear that one purpose of the hearing was to allow Republican members to beat up on the ABA for daring to buck even a couple of Bush nominees. This was a preoccupation of Sen. John Cornyn, R-Texas, in his loaded softballs.
Unfortunately, one of the nominees is for a vacancy on the 5th U.S. Circuit Court of Appeals, which hears cases from Texas, Louisiana and Mississippi. That's the federal appeals circuit, according to the NAACP Legal Defense and Educational Fund, with the highest percentage of minority residents.
So, naturally, Bush has nominated a lawyer with a career-long antipathy to such basic civil rights touchstones as the Voting Rights Act and single-member districts.
It's sort of a sick joke, but it's also perversely real. Bush wants this guy to have a lifetime seat on a court that remains an important gatekeeper in the world of civil rights litigation.
The superbly unsuited nominee is Michael B. Wallace, a politically well-connected Jackson, Miss., attorney.
He might be the only appeals circuit nominee who has received a unanimous "not qualified" rating from the ABA's standing committee on the federal judiciary. No one can recall another.
After two separate ABA inquiries into Wallace's nomination earlier this year, the bar committee came up with the same conclusion: Wallace, while of the "highest professional competence," lacks a judicial temperament and a commitment to equal justice.
Wallace's rating is hard to come by. Of the 90 Bush judicial nominations that the ABA committee has rated in the current, 109th Congress, only Wallace received a unanimous "not qualified" rating. Twice — after he was nominated in February, and then when, because of procedural rules, he was nominated again earlier this month.
With the changing committee membership over the year, Leahy pointed out, 21 different members of the ABA panel have rated Wallace. "None found him to be qualified," Leahy said.
The ABA committee is not, as some Republicans seek to paint it, an ideologically driven panel. Almost half of Bush's nominees in this term have received a unanimous rating of "well qualified."
Only three other nominees have been rated as "not qualified" by what the committee calls a "substantial majority" (with a minority rating them qualified).
Wednesday, September 27, 2006 at 09:50 AM in ABA, Fifth Circuit | Permalink | Comments (0) | TrackBack (0)
Labels: consent, lies, Prejudice, SCOTUS, Texas Fair Defense Act, warrant
// posted by dannoynted1 @ 6:40 PM 0 comments links to this post
Tuesday, July 03, 2007
Mikal Watts in San Antono
// posted by dannoynted1 @ 9:57 AM 0 comments links to this post
Sunday, May 27, 2007
money buys for giving ?/////////
One day in Iraq
The son of a friend is a soldier stationed in Iraq. Recently, he and his buddy were on patrol. A sniper shot his buddy in the head. He was unharmed. A young man is dead and his friend will most likely live with the memory of that horrible scene the rest of his life.
We hear on the news of "Five U.S. asualties in Iraq today" and we think, "That's terrible." But when you know a young person (or his family) who will never come home or by the experience be traumatized forever, you will feel their loss and anguish. How many more of our young people will be killed in this senseless morass?
My grandson is stationed on the USS John Stennis in the Persian Gulf. Every day I'm thankful he is not patrolling the streets of Iraq.
Molly Mulle
(Rockport)
Bomb-scare change
I must express my concern regarding CCISD's new policy of "locking down" the students rather than "evacuating" them during possible bomb threats. What prompted the change in this policy?
My children brought home letters from Ray High School on May 15 regarding a possible bomb threat. I have real issues with the district's new policy allowing the schools to "lock down" students during an investigation to determine whether a bomb threat is valid. Previous policy to evacuate students while the situation was investigated and return students to classrooms when the situation was cleared was a more logical way to protect our students and staff. Granted, the majority of these "threats" turn out to be pranks or just threats. Security is an issue everywhere now and a real bomb would not be a surprise anymore.
If the district is concerned about funding because of valuable time lost due to this criminal behavior, then time should be made up just as time lost for inclement weather is made up.
Individuals cannot "joke" about bombs in airports, etc., without severe penalty. It should be the same in schools. What happened to "zero" tolerance?
Pat Dunegan
Parade in the dark
The "Illuminated" Buccaneer Night Parade at the stadium was anything but illuminated. I was greatly disappointed, and all the people I have spoken to concerning the parade feel the same.
In the beginning, when there was still some light, it was all right, but as night came and the lights were turned off (we knew the lights were going to be off), it was pitch black. I know that a lot of money and time are spent by everyone involved, especially the high-school bands, and for the public not to be able to see their performance is a big letdown. Some "lights" were supposed to have been given to the people sitting in the aisles, but nobody in my section got any lights. Many elderly people had trouble walking up the steps to their seats. About the only floats with plenty of lights were the floats from out of town. The Corpus Christi floats did not compare to them.
I am hoping that next year's parade will be better planned. I love a parade. The band's music is good therapy for our tired bodies. Let us have a real "illuminated" night parade so that we can feel the enthusiasm of the participants. It brings back memories of when I participated with the Buccaneer Band and later with the Veteran's Band of Corpus Christi.
Luis R. Corona Sr.
Good public servant
Melody Cooper is one of the most dedicated members on the City Council that we know. She is honest and very dependable, always ready to go the extra mile to help. Why doesn't the Caller-Times tell her side of the story?
Dorothy Earwood
Ethical compass
Trial lawyers invented the term "moral relativity." Trial lawyer Mikal Watts has attempted to frivolously dismiss a complaint filed with the Texas Ethics Commission against state Rep. Juan Garcia. Voters should question Watt's moral relativity. Watts is the financier and instigator behind Juan Garcia. Why?
Watts has a huge stake invested in Garcia. Watts' good government PAC practically funded Garcia's campaign. In Jaime Powell's column about Garcia's ethics violations, Watts said Garcia didn't have time to respond to constituents' complaints about Garcia's unreported $42,000 in contributions. Watts said Garcia needs "to work the people's business instead of spending time responding to complaints." What?
Why is Mikal Watts telling us that Garcia is too busy to respond to his constituents? Please, Mr. Watts, let Rep. Garcia speak and let him speak for himself. Does he need a trial lawyer to speak for him? Let Juan Garcia tell us about his misreporting $42,000 in contributions. Rep. Garcia, we teach our children that our government representatives are morally ethical individuals. Hopefully, that belief is instilled, will make them great supporters, advocates and voting participants in our democracy. Sad, but true; you sir, have let them down. The compass of your moral relativity has cracked.
Leo O. GildersleevE
No one's perfect
For 12 years Melody Cooper has served us well, the residents of Corpus Christi, in the capacity of City Council member. Personally, I see no reason for her to resign as some are suggesting.
Those asking for her to resign should ask of themselves, "Have I ever made a mistake?" Where is your compassion?
We humans are not perfect and should have consideration for others when they err. Who are we to judge? Let the Almighty take care of this.
Also, the recent city elections are over, the people who voted have spoken, so let us give the new council our support, show the members respect and allow them to work together as a team for the betterment of our city.
Cefe F. Valenzuela
Shamsie's folly
Thank you, Judge Shamsie, for your years of service. Just one question, could you tell us how much more your bungled job is going to cost the taxpayers of Nueces County?
Between the Fairgrounds and the road projects, Judge Shamsie has cost the taxpayers hundreds of thousands of dollars in legal fees and penalties. How much more is hidden in the ongoing projects and contracts that we don't know about yet? For the sake of a few minutes of his time we paid a huge chunk of fees and expenses to clear up the Fairgrounds issues.
It is sorry that in his wake the new judge has to clean up his mess, and at our expense. What is more sorry is that there doesn't seem to be any accountability for the mistakes made by our elected officials.
Think of all the good a couple of hundred thousand dollars could do. It could have been used to fix some of the drainage issues, rather than draining the funds to the lawyers who have to fix the mess.
We taxpayers really have bigger needs and better use for the dollars that Judge Shamsie wasted by lack of attention to detail. Please, Judge Neal, pay more attention to the fine points that so readily waste our hard-earned money.
Steven Cohen
Post Your Comments
Posted by drtcpip on May 22, 2007 at 7:59 a.m. (Suggest removal)
Amen Judge Sham. Indeed your legacy will be like your predecessor, Lord High Protector of Robstown, Borchard. Spends millions of our dollars for your little pet projects. Adios amigo and good riddance.
Posted by rabbit78418 on May 22, 2007 at 9:29 a.m. (Suggest removal)
How can you intentionally falsify legal documents and then say sorry I made a mistake? The mistake was thinking she could lie and get away with it.
Posted by smfuentes1 on May 22, 2007 at 10:20 a.m. (Suggest removal)
I totally agree with Pat Dunegan, if there is a bomb threat, how can you lock down the school and keep the kids inside, while you search to see if the threat is valid, and if it is valid, and the bomb goes off, you just lost alot of innocent lives, by the decision not to evacuate as soon as you got the bomb threat. Most likely if there is a bomb, it will be inside the school, so whoever came up with this bright idea to keep the kids in lockdown, better start thinking twice, before something bad really happens.
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// posted by dannoynted1 @ 3:24 AM 0 comments links to this post
Tuesday, May 01, 2007
In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1633-05
ERNEST M. GUTIERREZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
NUECES COUNTY
Price, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Keasler, hervey, Holcomb and Cochran joined. Johnson, J., concurred in the result. Womack, J., filed a dissenting opinion.
O P I N I O N
We granted review in this case to examine whether the Thirteenth Court of Appeals erred in deciding that a police officer's warrantless intrusion into the appellant's home was allowable under the theory of exigent circumstances and probable cause. We conclude the court of appeals did err in its analysis. However, we affirm the judgment of the court of appeals on grounds that the police entry and search was justified by the appellant's consent.
THE FACTS AND PROCEDURAL POSTURE
On March 7, 2002, Detective Douglas Rush of the Corpus Christi Police Department was informed by a detective in Plano that a laptop computer had been stolen. (1) The Plano detective informed Rush that the computer was equipped with an anti-theft program which, when activated, would provide the address and phone number of the location where the computer was last used to access the internet. The Plano detective relayed to Rush that the computer had been used at 3129 Eisenhower in Corpus Christi the previous night.
On this information, Rush and Detective Felix Gonzalez proceeded to the Eisenhower address, which is the appellant's home. Prior to the detectives' arrival, the appellant was smoking marijuana inside his house. When the officers arrived at the address, (2) the appellant heard car doors close, saw the approaching officers out of his window, put out his marijuana cigarette and met the detectives on his porch, closing his front door behind him. Rush asked the appellant about the stolen computer. The appellant initially denied having the computer, but recanted and then admitted the computer was inside his house. (3) While the conversation between Rush and the appellant was taking place, Gonzalez smelled marijuana and observed that the appellant had bloodshot eyes and was very nervous.
The appellant told the officers he would go into the house and bring the computer out to the officers. Rush explained that he could not let the appellant go into the house alone, as a matter of officer safety and police policy. Rush filled out a consent to search form on the appellant's porch, and explained the form to the appellant. (4) The detective asked the appellant if he and Gonzalez could enter the home. The appellant agreed, opened his door, and reentered his home. Though the consent form was still unsigned, the detectives followed the appellant into his home. (5) After the appellant and the detectives entered the threshold of the house, the appellant signed the consent to search form.
Once inside, the appellant retrieved the computer and gave it to Rush. Both detectives noticed the odor of burnt marijuana and a marijuana cigarette in plain view on a table in the living room. The detectives continued a cursory visual search and found cash, a police scanner, and several plastic baggies. The detectives called for assistance from narcotics officers. Upon their arrival, the narcotics officers conducted a thorough warrantless search of the appellant's house. This search resulted in the discovery of cocaine, cash, a pistol and ammunition, digital scales, and other drug paraphernalia. Subsequently, the appellant gave two statements regarding his possession of marijuana, cocaine, and the computer.
The appellant was indicted for possession with the intent to deliver 400 grams or more of cocaine. He filed a pretrial motion to suppress the evidence, and the trial court held a hearing on the motion. At the hearing, the appellant argued that consent was not freely and voluntarily given and all evidence subsequently found in the appellant's home was the fruit of the poisonous tree. After listening to the testimony of several witnesses, including the appellant, the trial court denied the motion. At trial, the legality of the search, specifically whether the appellant gave valid consent, was again litigated. The issue was submitted to the jury, and the jury ultimately convicted the appellant.
On appeal, the appellant alleged the consent obtained by the detectives, both prior to and after entry, was not voluntarily given. The State refuted the appellant's contention that consent was not voluntarily obtained, and further argued that, under a theory of probable cause and exigent circumstances, the warrantless entry into the appellant's home and the ensuing search did not violate the protections guaranteed by the Fourth Amendment. In a memorandum opinion, the court of appeals adopted the State's latter position, holding that, "[w]ithout determining appellant's arguments regarding the voluntariness of his consent, we conclude the police had ample probable cause and exigent circumstances to enter the home." (6) We granted the appellant's petition for discretionary review to examine the issue of whether the warrantless intrusion by the police into his home was justified by the existence of probable cause coupled with exigent circumstances.
ANALYSIS
The Fourth Amendment grants individuals "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (7) In determining the reasonableness of a search or seizure, the actions of police are judged by balancing the individual's privacy interest against the Government's interest in law enforcement. (8) The balancing test is utilized to ensure that an individual's Fourth Amendment rights are not subjected to "arbitrary invasions at the unfettered discretion of officers in the field." (9)
There is a strong preference for searches to be administered pursuant to a warrant. (10) In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable. (11) However, this does not mean all searches must necessarily be conducted under the authority of a warrant. For example, if police have probable cause coupled with an exigent circumstance, or they have obtained voluntary consent, or they conduct a search incident to a lawful arrest, the Fourth Amendment will tolerate a warrantless search. (12) Yet, the warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies. (13)
To validate a warrantless search based on exigent circumstances, the State must satisfy a two-step process. (14) First, there must be probable cause to enter or search a specific location. (15) In the context of warrantless searches, probable cause exists "when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found." (16) Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. (17) We have identified three categories of exigent circumstances that justify a warrantless intrusion by police officers: 1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; 2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and 3) preventing the destruction of evidence or contraband. (18) If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. (19)
Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. (20) The court of appeals then observed:
Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone . . . . A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety. (21)
We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant's home. The detectives' response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disproportionate it may be to the perceived exigency. (22)
Because we reject the court of appeals's reliance upon exigent circumstances, we must next address the issue of consent. An exception to the warrant requirement, consent is valid when it is voluntarily given. (23) The validity of a consensual search is a question of fact, and the State bears the burden to prove by clear and convincing evidence that consent was obtained voluntarily. (24) This burden includes proving that consent was not the result of duress or coercion. (25) To determine whether this burden is met, we examine the totality of the circumstances. (26)
In the case before us, the issue of consent was hotly contested at both the pretrial suppression hearing and the trial on the merits. The appellant and the State presented diametrically opposed versions of the search of the appellant's residence. When there is contradictory evidence and witness credibility is at issue, a longstanding standard of review guides our analysis.
In reviewing a trial court's ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court's ruling. (27) When the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports these implied findings. (28) Generally, implied findings would be limited to the record produced at the suppression hearing. (29) However, when the parties subsequently re-litigate the suppression issue at the trial on the merits, we consider all evidence, from both the pre-trial hearing and the trial, in our review of the trial court's determination. (30)
Construed in the light most favorable to the trial court's ruling, the testimony shows that the appellant, after his initial lie, was cooperative with the detectives. On the porch, Rush explained to the appellant that he could not allow the appellant to reenter his home alone. Rush then filled out a consent form and explained the form to the appellant. It is true that the evidence indisputably establishes that the consent form was not signed until the detectives were already inside the appellant's home. But the detectives testified that they entered initially with oral consent from the appellant. Although the appellant disputed their account, (31) we presume that the trial court resolved this dispute against him.
The consent form that the appellant signed, if in fact voluntary, unquestionably authorized a complete search of the premises. (32) If the appellant's testimony is credited, the appellant apparently signed the consent form only after the detectives threatened to take away his property and his family. (33) Implicit in the trial court's resolution of this issue, however, is that it found the detectives' account the more reliable. Crediting that account, we find that the evidence shows that the consent form was signed voluntarily. The appellant was cooperative, and aside from his initial lie to the detectives, he answered their questions willingly and courteously. The exchange was neither confrontational nor provocative. When asked, the appellant agreed to let the detectives enter his home. Discounting the appellant's own testimony, the evidence does not suggest his will was overborne at any point with threats. According to the detectives, his consent was free of the taint of duress or coercion, and he voluntarily, of his own free will, consented to the police entry and search. Reviewing the evidence, thus, in the light most favorable to the trial court's ruling, we hold that the State satisfied its burden of proving, by clear and convincing evidence, that the appellant's consent was obtained voluntarily.
CONCLUSION
We hold that the actions of law enforcement in searching the appellant's home without a search warrant were not justified under the exigent circumstances exception to the Fourth Amendment. The police were not faced with an exigent circumstance that necessitated a full-blown search of the home. By responding disproportionately to the scope of the exigent circumstances, the detectives needlessly tipped the delicate balance between government and individual in favor of the government.
However, the police officers' conduct is justified under another exception: consent. The appellant voluntarily consented to the police entry and search of his home. All evidence found inside the premises was lawfully obtained under this exception to the warrant requirement. Accordingly, we affirm the judgment of the court of appeals.
Delivered: April 25, 2007
Publish
1. We present the factual background in the light most favorable to the trial court's ruling.
2. Detectives Rush and Gonzalez were dressed in plain clothes, but their badges were displayed. The appellant noticed their badges and testified at the pretrial hearing that he was aware the two individuals were police officers.
3. The appellant claimed he purchased the laptop from a third party. He was not ultimately charged for any offense relating to the stolen computer.
4. The Consent to Search form authorized a complete search of the appellant's home.
5. The appellant described a vastly different version of the events that transpired after he admitted to possessing the computer. According to the appellant, he asked the detectives whether they would leave if he went inside and retrieved the computer. The detectives agreed. The appellant then entered his home and attempted to shut his front door to prevent marijuana smoke from escaping outside. As he tried to close his door, Rush stuck his foot into the doorway. Rush then forced open the door, and he and Gonzalez burst into the house. The appellant grabbed the computer, handed it over to Rush, and asked the detectives to leave. The detectives responded that they would not leave, and Rush stated that he needed the appellant to sign a Consent to Search form. The appellant did not think he needed to sign the consent form because he believed he fully cooperated by retrieving the computer.
Also, during this time, the appellant's wife and daughter emerged from the back of house into the living room where the appellant and the detectives were. Gonzalez told the appellant that he was going to call Child Protective Services(CPS) to come and pick up the appellant's daughter. The detectives threatened to seize his property, take his wife to jail, and take his daughter to CPS if he did not sign the consent form. The appellant agreed to sign the form if they would allow his mother-in-law to come pick up his daughter and wife. The detectives allowed the daughter to leave with the appellant's mother-in-law, but his wife stayed. The appellant then signed the consent form. By this time the detectives had discovered a bag of marijuana and a bag of money, in addition to the plainly visible marijuana cigarette the appellant had smoked prior to the detectives' arrival.
6.
Gutierrez v. State, No. 13-04-186-CR, 2005 Tex. App. LEXIS 6949, at *3 (Tex. App.--Corpus Christi Aug. 25, 2005) (not designated for publication).
7. U.S. Const. amend. IV.
8.
Schenekl v. State, 30 S.W.3d 412, 413 (Tex. Crim. App. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
9.
Schenekl, 30 S.W.3d at 413.
10.
United States v. Ventresca, 380 U.S. 102, 106 (1965); Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). See also Illinois v. McArthur, 531 U.S. 326, 338 (2001) (Souter, J., concurring) ("[A] search with a warrant has a stronger claim to justification on later, judicial review than a search without one.").
11.
Payton v. New York, 445 U.S. 573, 586 (1980).
12.
McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
13.
United States v. Robinson, 414 U.S. 218, 243 (1973); see also McGee, 105 S.W.3d at 615.
14.
Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).
15.
Id.
16.
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005).
17.
Parker, 206 S.W.3d at 597.
18.
McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991).
19.
Parker, 206 S.W.3d at 597.
20.
Gutierrez, 2005 Tex. App. LEXIS 6949, at *4.
21.
Id. at *5.
22.
See Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (declaring "warrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment")
23.
Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); Ohio v. Robinette, 519 U.S. 33, 40 (1996).
24.
See, e.g., Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (stating consent is a question of fact); Robinette, 519 U.S. at 40 (concluding that consent is a question of fact); Harrison, 205 S.W.3d at 552 (stating that clear and convincing evidence is the burden of proof for voluntariness of consent in Texas); Reasor, 12 S.W.3d at 818 (articulating the State's burden of proof).
25.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991); Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1972).
26.
Harrison, 205 S.W.3d at 552; Reasor, 12 S.W.3d at 818; Robinette, 519 U.S. at 40.
27.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
28.
Kelly, 204 S.W.3d at 818-19; Ross, 32 S.W.3d at 855; Carmouche, 10 S.W.3d at 328. But see State v. Cullen, 195 S.W.3d 696, 698-700 (Tex. Crim. App. 2006) (holding that when the losing side at a suppression hearing requests findings of fact and conclusions of law, the trial court is required to make such findings). The appellant did not request findings from the trial court.
29.
See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
30.
Id. ("Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review.")
31.
See note 5, ante.
32. The text of the Consent to Search form reads:
I, Ernest M. Gutierrez, having been informed by the hereafter named Texas Peace Officer that I have a Constitutional right to be free from having him or any other officer make a warrantless search of the hereafter mentioned place under my control and a constitutional right to refuse to give him or any other officer consent to make a search of that kind and those rights are guaranteed by both the Texas and Federal Constitutions, do hereby authorize
[Detective Douglas Rush]
Texas Peace Officer
and any officers working with him to conduct a complete search of the following place located in Nueces County, Texas, namely:
3129 Eisenhower
Corpus Christi
Nueces Co., TX
and to seize and take from there any item of personal property they may believe to constitute evidence in a criminal proceeding.
I have given this consent of my own free will and accord and without being subjected to any compulsion, threats, promises, or persuasion of any kind.
I know that any items of personal property seized by the above named officer or other officers with him and taken by them from such place can and will be used against me in a criminal proceeding.
(Italics represent handwritten portions on the consent form.)
33.
See note 5, ante.
Labels: consent, lies, warrant
// posted by dannoynted1 @ 12:04 AM 0 comments links to this post
Tuesday, March 20, 2007
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// posted by dannoynted1 @ 3:19 AM 0 comments links to this post
Tuesday, March 13, 2007
is this a crime or a fine??????//////
Carlos E. Zamora, M.D., DAB No. 1104 (1989)
DEPARTMENT OF HEALTH AND HUMAN SERVICES
DEPARTMENTAL APPEALS BOARD
In the Case of
Carlos E. Zamora, M.D.,
Petitioner
vs.
The Inspector General
Date: September 25, 1989
Appellate Docket No. 89-100
Decision No. 1104
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
The Petitioner, Dr. Carlos E. Zamora, appealed the decision of
Administrative Law Judge (ALJ) Steven T. Kessel affirming the
determination of the Inspector General (the I.G.) to exclude the
Petitioner from participating in the Medicare program (Title XVIII of
the Social Security Act, (Act)) for five years and to direct that he be
excluded from participating in State health care programs (including
Medicaid, Title XIX of the Act) for the same length of time.
Criminal proceedings were instituted against the Petitioner in a Texas
state court based on his alleged submission of false Medicaid claims.
The petitioner pled nolo contendere to the charges against him and was
placed on probation. After successfully completing his probation, the
Petitioner was allowed to withdraw his plea and the charges against him
were dismissed. Consequently, under Texas law, no conviction existed
under those circumstances. However, the I.G. found that, under the
applicable federal statute, the Petitioner had been convicted of a
criminal offense and excluded him from participation in Medicare.
Before Judge Kessel, the Petitioner relied on state law to argue that
since he had not been convicted of a criminal offense, there was no
basis for his exclusion from the Medicare program. Judge Kessel
rejected the Petitioner's argument and sustained the exclusion. On
appeal to this Board, the Petitioner relied on his arguments before the
ALJ as well as those made in the Petitioner's motion for a preliminary
injunction to enjoin his suspension from Medicare. See Zamora v. Bowen,
Civil Action No. A-88-CA-987 (W.D. Texas 1988); I.G. Exhibit (Ex.) D.
Additionally, the Petitioner raised a new argument in which he alleged
that the I.G.'s decision to exclude him was contrary to the applicable
program regulations. Petitioner's Brief (Br.), pp. 1-2.
Based on the following analysis, we conclude that the ALJ's decision to
exclude Dr. Zamora was correct. Accordingly, we affirm Judge Kessel's
decision in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Judge Kessel made the following findings and conclusions:
1. Petitioner is a physician who has practiced in Texas.
2. In 1988, the State of Texas indicted Petitioner for
tampering with a governmental record for submitting false
Medicaid claims.
3. On May 18, 1988, Petitioner entered a nolo contendere plea
in Texas state court to a misdemeanor offense of tampering with
a government[al] record. In accepting the plea, the Court found
that the evidence substantiated the Petitioner's guilt of
tampering with a governmental record.
4. The Court also found that the ends of justice and the best
interests of both society and the Petitioner would be served by
deferring further proceedings without entering an adjudication
of guilt at that time, and by placing the Petitioner on
probation.
5. On November 2, 1988, an order was entered in Texas state
court, pursuant to Art. 42.12, Sec. 7 of the Texas Code of
Criminal Procedure, modifying Petitioner's period of probation
to the time served from May 18, 1988, discharging Petitioner
from probation, withdrawing Petitioner's nolo contendere plea,
and dismissing the prosecution against him.
6. On October 28, 1988, the I.G. advised Petitioner that he was
excluding Petitioner from participating in the Medicare program,
and was directing that Petitioner be excluded from participating
in State health care programs, for five years. The exclusions
were based on the I.G.'s determination that Petitioner had been
convicted of a criminal offense related to the delivery of an
item or service under the Medicaid program.
7. Petitioner's nolo contendere plea in Texas state court
constitutes a "conviction" within the meaning of 42 U.S.C.
1320a-7(i), notwithstanding the provisions of Article 42.12 of
the Texas Code of Criminal Procedure, or the terms of the
November 2, 1988 Order entered in Texas state court in
Petitioner's case.
8. The actions taken by the I.G., excluding Petitioner from
participating in the Medicare program and directing his
exclusion from participating in State health care programs, were
mandated by 42 U.S.C. 1320a-7(a)(1).
Decision No. C-74, pp. 4-5 (citations to that record omitted).
PROCEDURAL BACKGROUND
During its February 1988 term, the Grand Jury for Hays County, Texas,
indicted the Petitioner for tampering with a governmental record, by
submitting false Medicaid claims. On May 18, 1988 the petitioner
entered a plea of nolo contendere to this charge in the 22nd Judicial
District Court of Hays County. That Court found that the evidence
before it substantiated Dr. Zamora's guilt and accepted the plea.
However, the Court deferred adjudication and placed Dr. Zamora on
probation. See State of Texas v. Carlos Zamora, No. CR 88-74; I.G. Ex.
A. On November 2, 1988 the Court granted the Petitioner's motion for
termination of probation (reduced to time served), dismissed the charges
against Dr. Zamora, and allowed him to withdraw his plea. I.G. Ex. B.
On October 28, 1988 the I.G. notified the Petitioner that, due to his
program-related conviction, he would be suspended from participation in
Medicare on November 17, 1988 pursuant to subsection 1128(a) of the Act.
On November 16, the Petitioner unsuccessfully sought to enjoin the I.G.
from excluding the Petitioner from Medicare. See Zamora v. Bowen,
supra.
The Petitioner then timely requested a hearing as to the exclusion
before an ALJ. The basis of that appeal was that since no judgment of
conviction was entered by the state court, then, under Texas law, the
Petitioner had not been convicted. Accordingly, there was no basis for
his exclusion from Medicare. On March 30, 1989, the ALJ issued his
decision in which he found that the Petitioner's nolo contendere plea
was a "conviction" as defined by the Act, regardless of how that plea
was viewed by the Texas court.
The Petitioner took specific exception "to Findings of Fact and/or
Conclusions of Law Number 7 and 8" (set out above), arguing that the
ALJ's interpretation of the federal statutes and regulations relating to
exclusion from the Medicaid and Medicare programs was erroneous.
Further, the Petitioner generally contended that those findings and
conclusions represented an erroneous application of the federal statutes
and regulations to the facts of this case. Petitioner Br., p. 4.
Analysis
1. The ALJ's decision to exclude Dr. Zamora was fully supported by
the law and was, therefore, correct.
The Petitioner's argument that, since the nolo contendere plea was
vacated by a Texas Court, he had not been "convicted" for purposes of
subsection 1128(a), ignores the plain language of the federal statute
and its underlying legislative history. There is simply no question
that under the circumstances presented here, the Petitioner cannot avoid
the exclusion. This point was driven home emphatically, both by Judge
Kessel's decision and by Judge James R. Nowlin in U.S. District Court
proceedings denying the Petitioner's Motion for a preliminary
injunction. See I.G. Ex. D.
Subsection 1128(i) of the Act defines "conviction" for purposes of
subsection 1128(a). In relevant part, that section provides that a
person or entity is considered to have been convicted of a criminal
offense--
* * *
(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State or local court;
or
(4) when the individual or entity has entered into
participation in a . . . deferred adjudication . . . program
where judgment of conviction has been withheld.
Although the statutory language is clear, the corresponding legislative
history emphatically affirms that Congress intended to include a plea of
nolo contendere within the scope of the term "conviction", even though
under state law and practice no judgment of conviction is ever entered.
The Congressional committee charged with drafting the 1986 amendments to
the statute stated--
The principal criminal dispositions to which the exclusion
remedy [currently] does not apply are the "first offender" or
"deferred adjudication" dispositions. It is the Committee's
understanding that States are increasingly opting to dispose of
criminal cases through such programs, where judgment of
conviction is withheld. The Committee is informed that State
first offender or deferred adjudication programs typically
consist of a procedure whereby an individual pleads guilty or
nolo contendere to criminal charges, but the court withholds the
actual entry of a judgment of conviction against them and
instead imposes certain conditions of probation, such as
community service or a given number of months of good behavior.
If the individual successfully complies with these terms, the
case is dismissed entirely without a judgment of conviction ever
being entered.
These criminal dispositions may well represent rational criminal
justice policy. The Committee is concerned, however, that
individuals who have entered guilty or nolo [contendere] pleas
to criminal charges of defrauding the Medicaid program are not
subject to exclusion from either Medicare or Medicaid. These
individuals have admitted that they engaged in criminal abuse
against a Federal health program and, in the view of the
Committee, they should be subject to exclusion. If the
financial integrity of Medicare and Medicaid is to be protected,
the programs must have the prerogative not to do business with
those who have pleaded to charges of criminal abuse against
them.
H.R. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S. CODE CONG.
& AD. NEWS 3607, 3665.
The committee added --
With respect to convictions that are "expunged," the Committee
intends to include all instances of conviction which are removed
from the criminal record of an individual for any reason other
than the vacating of the conviction itself, e.g., a conviction
which is vacated on appeal. Id.
Thus, it is readily apparent that Congress intended to exclude from the
Medicare program not only those individuals convicted of criminal
wrongdoing by a judge or jury, but those, such as the Petitioner, who
pleaded nolo contendere, had their pleas entered and accepted by the
court, but after serving a period of probation had the case against them
dismissed without a judgment of conviction ever being entered. Thus,
the statute focuses the I.G.'s inquiry on whether an individual (or
entity) pled guilty or nolo contendere to the criminal charges against
him, rather than allowing an individual state's ultimate disposition of
a case without entering a judgment of conviction to dictate the I.G.'s
course of action. As the ALJ pointed out, Congress determined that
parties who pled guilty (or nolo contendere) to program-related offenses
were as untrustworthy as those convicted after a trial. Decision C-74,
p. 8.
In view of the clear direction of the controlling statute, the
Petitioner's argument regarding the manner in which Texas law views
deferred adjudication is not persuasive. As the ALJ noted, the purpose
of the deferred adjudication and expungement provisions in Texas law was
to provide an individual with limited protection from further penalties
by Texas. See Decision C-74, pp. 9-10; citing Gonzalez de Lara v.
United States, 439 F.2d 1316 (5th Cir. 1971). Whatever its underlying
purpose, the state law cannot reasonably be read as altering an
individual's status under federal law.
Based on the foregoing analysis we affirm Judge Kessel's Findings and
Conclusions Numbers 7 and 8 to which the Petitioner had taken exception.
2. The Petitioner alleged that the I.G.'s exclusion of Dr. Zamora
was contrary to the applicable implementing regulations.
The Petitioner noted that in 1987 section 1128 of the Act was amended to
define the term "conviction." The Petitioner then cited 42 C.F.R.
1001.136 which provides that the I.G. "will reinstate a suspended party
whose conviction has been reversed or vacated." The Petitioner asserted
that, since the regulation had not been repealed or amended to reflect
the statutory definition, the I.G. was bound to reinstate Dr. Zamora
after the court vacated his conviction.
The I.G. asserted that since the Petitioner's argument was one which
could have and should have been raised before the ALJ, the Board should
not consider it here. Alternatively, the I.G. contended that the
Petitioner's argument is without merit. The I.G. noted (and we have
pointed out elsewhere in this decision) that the legislative history of
the statute clearly contemplated that a vacated conviction is one that
is overturned or vacated on appeal. The I.G. indicated that acceptance
of the Petitioner's plea of nolo contendere was based on the Court's
belief that the Petitioner had committed the charged offense. The
conviction was vacated on the Court's determination that the defendant
had satisfactorily fulfilled the conditions of his probation. The I.G.
distinguished this situation from a court's finding that an adjudication
of a defendant's guilt was in error so that it should be rendered void;
in that case, there would not be a "conviction" under the statutory
definition. Thus, the I.G. argued, dismissal of proceedings against the
Petitioner after probation cannot be considered a disposition on appeal.
Rather, only a reversal by an appellate court would require the I.G. to
reinstate an individual. I.G. Br., pp. 22-24.
The Appellate Division Guidelines provide in relevant part --
III. (c) . . . The Panel will not consider issues not raised
in the appeal, nor issues which could have been presented to the
ALJ but were not.
As we note in section III.(b) of the Guidelines, the standard which we
employ in reviewing a disputed factual issue is whether the ALJ's
decision is supported by substantial evidence in the record. The
standard of review which we use regarding a disputed issue of law is
whether the ALJ's decision is erroneous. Our process was not meant to
be one of de novo review. See 42 C.F.R. 498.80 - 498.95.
Clearly, the Petitioner's argument as to whether the I.G. followed the
regulation at 42 C.F.R. 1001.136 should have been raised before the ALJ.
Since this argument cannot be raised at this stage in the process, we do
not consider whether the Petitioner could avoid the statutory exclusion.
In any event, the I.G. is correct that the regulation does not apply.
Conclusion
Based on the foregoing, we affirm the five-year exclusion imposed on the
Petitioner.
_____________________________ Cecilia Sparks
Ford
_____________________________ Theodore J. Roumel
U.S. Public Health Service
_____________________________ Alexander G. Teitz
Presiding Board
// posted by dannoynted1 @ 4:52 AM 0 comments links to this post
Sunday, February 11, 2007
Although there is no bright-line rule defining conduct violative
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Jacobson v. Garaas, 2002 ND 181, 652 N.W.2d 918
[Go to Docket]
Filed Nov. 15, 2002
[Download as WordPerfect]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2002 ND 181
In the Matter of Disciplinary Action Against Jonathan T. Garaas, a Member of the Bar of the State of North Dakota
Paul W. Jacobson, Disciplinary Counsel, Petitioner
v.
Jonathan T. Garaas, Respondent
No. 20020103
Jonathan T. Garaas, Petitioner
v.
Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent
No. 20020113
Petitions for disciplinary review.
REPRIMANDED.
Per Curiam.
Paul W. Jacobson, P.O. Box 2297, Bismarck, N.D. 58502-2297, for petitioner.
Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, P.O. Box 6017, Fargo, N.D. 58108-6017, for respondent.
In re Garaas
Nos. 20020103 & 20020113
Per Curiam.
[¶1] Jonathan T. Garaas and Disciplinary Counsel have both petitioned for review of a hearing panel's report and order of reprimand, which found Garaas had violated the North Dakota Rules of Professional Conduct and ordered that Garaas be publicly reprimanded and pay costs of the disciplinary proceeding. We conclude Garaas has violated N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $7,312.42.
I
[¶2] Garaas has represented TAG Investments in lengthy and contentious litigation with Matrix Properties Corporation over a disputed option to purchase real estate. That litigation has spawned numerous appeals. See Matrix Properties Corp. v. JCG Investments, L.L.C., 2002 ND 99, 647 N.W.2d 706; Matrix Properties Corp. v. TAG Investments, 2002 ND 86, 644 N.W.2d 601; Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674; Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432; Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737. This disciplinary proceeding arose out of Garaas's conduct at post-judgment proceedings in the Matrix litigation occurring in November 2000 and January 2001.
[¶3] At a November 7, 2000, hearing on Matrix's motion to compel transfer of the real estate, Garaas made repeated assertions that opposing counsel was making false representations of fact and had lied to the court. Garaas at one point stated:
Your Honor, I cannot let it go by one more time because Mr. Spaeth just lied to you one more time. . . . That representation by Mr. Spaeth is an absolute falsehood and he can't get away with it anymore. . . . And we will never accept Mr. Spaeth's false representation in violation of the Canons and in violation of every concept of due process that I know.
[¶4] At status conference on January 2, 2001, Garaas argued the court lacked jurisdiction in the matter because there was an appeal pending in this Court. The trial judge asked Garaas if his client would sign deeds conveying the disputed property if ordered to do so by the court at a court-supervised closing scheduled for January 5, 2001. In responding to the court's question, Garaas suggested that the trial judge was placing himself "at risk":
There is a lot of things that are going to have to be resolved, and I guess frankly I have a question in my mind as to whether or not the Court wants to enter into a course of action that places the trial court judge and the State of North Dakota at risk. . . .
So when you ask me a question as to whether or not we are going to sign a deed, there are so many things that still have yet to be resolved that why would the Court want to put this Court and the State of North Dakota at risk when we are guaranteed to have another lawsuit, guaranteed to have another trial to determine whether or not there has been damages or a quiet title action and establish what the record is for this property.
[¶5] On January 5, 2001, the court held a "Court Overseen Closing" to convey the disputed property. At the outset of that proceeding, the trial court stated it was acting pursuant to this Court's December 12, 2000, opinion in Matrix Properties, 2000 ND 213, 622 N.W.2d 432, in which we summarily affirmed an earlier post-judgment order and directed the trial court "to order specific performance requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement." Garaas again argued the trial court lacked jurisdiction to order conveyance of the property, and asserted this Court had falsely represented the issues in the prior appeal:
The first issue was that the North Dakota Supreme Court has wrongfully identified the issue on appeal. Actually they made a false representation of what the issue was being appealed.
[¶6] At the January 5 hearing Garaas was allowed to argue at length, challenging jurisdiction of the trial court and whether Matrix had complied with the terms of the option. The court ultimately determined Matrix was prepared to tender payment of the purchase price and indicated it was TAG's "last chance" to execute deeds conveying the property or it would be judicially conveyed. The court then asked Garaas and his client, "Do you wish to comply with the order of the Court to convey this property?" After Garaas again reiterated his argument that Matrix had failed to comply with the option and the option had expired, the following colloquy occurred between Garaas and the court:
THE COURT: The Defendant -- the Defendant's counsel [Garaas] in the presence of the Court has informed the Court that they'll not comply with the Court's order. Proceed.
MR. GARAAS: Which Court order are you talking about, Your Honor?
THE COURT: The order to convey it's [sic] property.
MR. GARAAS: Which one was that, Your Honor?
THE COURT: The one they just made.
MR. GARAAS: At this point in time?
THE COURT: Yes.
MR GARAAS: On what legal basis, Your Honor?
THE COURT: Enough. Sit. Enough.
MR. GARAAS: On what legal basis? I only ask that this Court identify on what legal basis it acts, because my client has a right to know. My client has a right to due process of law, Your Honor.
THE COURT: Proceed.
MR. GARAAS: You will not answer my question, Your Honor?
THE COURT: Mr. Garaas, I've already put on the record that we're proceeding pursuant to the Supreme Court's directive of December 12th.
MR. GARAAS: And how does the court get around the fact that it isn't a final Supreme Court order and the mandate has not been returned to you and jurisdiction still is at the Supreme Court, Your Honor? How can this Court act in derogation of it's [sic] duties to honor the fact that jurisdiction is now at the Supreme Court level not back here. This Court can't act, Your Honor, on the basis of the December 12, 19 -- of the year 2000 decision of the Supreme Court. How can the Court act when it doesn't have jurisdiction based upon that order, Your Honor? My client would like to know.
THE COURT: The Court's been directed by the Supreme Court to proceed. The Supreme Court directs the District Court what to do. I am proceeding under that directive.
MR. GARAAS: Is there a directive that's different than the December 12, 2000, order, Your Honor? Has there been direct communication between the Supreme Court and this Court that is not of record and not reported on December 12th. Because there is no such directive other than the December 12th and that's not a final order. Is there a directive from the Supreme Court to this Court to proceed today that is not placed of record, Your Honor? Have you had telephone conversations with any member of the Supreme Court?
THE COURT: Mr. Garaas, of course not. But this now is getting to be ridiculous. You've tried these arguments now in front of eight different judges, five in the Supreme Court, Judge Erickson, this Court, Judge Webb. It's over now so we're gonna proceed. Go ahead.
MR. GARAAS: Has there been communications with any representative of the Supreme Court of North Dakota?
THE COURT: Sit down now, Mr. Garaas. Proceed.
MR. GARAAS: May I -- my client and I would like to know, Your Honor.
THE COURT: Mr. Garaas, this is the last time now before I ask you to be removed from the Court. We're gonna proceed with the hearing. Your partner will have to sit in your place. But this is beyond any appropriate measure of conduct for an attorney.
MR. GARAAS: I merely wanted to know what jurisdiction the Court was exercising, Your Honor.
THE COURT: Proceed.
[¶7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:
The Court's repeatedly heard arguments as to deficiencies in the Plaintiff's attempt to close this matter but these matters have been adjudicated or have no merit. The Defendants' arguments from the Court's perspective are for the purposes of delay. . . .
. . . .
This has been a case that's involved a lot of patience I guess on all parties involved. The Court's been disappointed in some of the conduct exhibited here with the way other officers of the Court have been treated, the way this Court and the Supreme Court has been referred to in these proceedings as doing or considering anything inappropriate.
[¶8] At the disciplinary hearing, the trial judge characterized Garaas's behavior as "threatening," "defiant," and "obstructionist," and stated "I didn't view him as attempting to help the Court resolve the matter on a legal basis." When asked about Garaas's comment that the judge might be putting himself "at risk," the judge testified he perceived it "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment."
[¶9] A petition for discipline was served charging Garaas with violations of N.D.R. Prof. Conduct 3.5(a), 3.5(b), 4.4, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel concluded Garaas's "at risk" comments and the lengthy colloquy with the trial court during the January 5 hearing violated the disciplinary rules. The hearing panel further concluded Garaas's statement that Mr. Spaeth had lied did not constitute a breach of N.D.R. Prof. Conduct 4.4, and that Garaas's statement that this Court had made a false representation, while improper, had not been pleaded as a basis for discipline. Taking into consideration substantial mitigating circumstances, the hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings in the amount of $7,312.42. Both Garaas and Disciplinary Counsel petitioned for review of the hearing panel's report and order of reprimand. We granted the petitions for review.
[¶10] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Garaas and Disciplinary Counsel timely filed petitions for review under N.D.R. Lawyer Discipl. 3.1(F)(1). This Court has jurisdiction under N.D.R. Lawyer Discipl. 3.1(F)(1).
II
[¶11] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the findings and conclusions of the hearing panel, but we do not act as a mere rubber stamp. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.
[¶12] Rule 3.1(F)(1), N.D.R. Lawyer Discipl., requires the petition for review of a hearing panel's order of reprimand to contain "a clear statement of the reasons petitioner believes the panel's decision is arbitrary, capricious, or unreasonable." That language is relevant only to our initial determination whether to grant the petition for review. If the petition is granted, and briefing and oral argument are ordered under N.D.R. Lawyer Discipl. 3.1(F)(1), we employ our traditional de novo review in determining whether discipline is warranted and the appropriate sanctions to be assessed. See Toth v. Disciplinary Board, 1997 ND 75, ¶¶ 10-11, 562 N.W.2d 744 (the "arbitrary, capricious, or unreasonable" standard under N.D.R. Lawyer Discipl. 3.1(D)(8) governs only the initial determination whether to grant leave to appeal from an informal disposition, and this Court will review the substantive evidence and the merits de novo on the record).
[¶13] Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 23; Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Each disciplinary case must be considered on its own facts to decide what discipline is warranted. Edwardson, at ¶ 9; Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.
III
[¶14] Disciplinary Counsel argues the hearing panel erred in concluding that Garaas's statements about this Court making false representations "were not part of the petition for discipline."
[¶15] The hearing panel did not explain the basis for its conclusion these statements were not part of the petition for discipline. The petition for discipline quoted Garaas's statements that this Court had "wrongfully identified the issue on appeal" and had "made a false representation of what the issue was being appealed." The petition alleged Garaas's conduct violated N.D.R. Prof. Conduct 8.4(e), which provides it is professional misconduct to engage in conduct that is a basis for revocation or suspension of a lawyer's certificate of admission, and N.D.C.C. § 27-13-01(1), which provides that an attorney shall maintain respect for courts of justice and judicial officers.
[¶16] Although there is no dispute that the petition alleges that Garaas made the statements about this Court, Garaas contends that the petition failed to specifically detail the statutes and rule that would make his conduct sanctionable. Garaas claims the pleading is defective because it fails to specifically enumerate N.D.C.C. § 27-14-02(3), which is a necessary middle step between Rule 8.4(e) and N.D.C.C. § 27-13-01(1).
[¶17] In order to place Garaas's argument in context, a brief overview of the interplay between the rule and statutes is helpful. Rule 8.4(e) provides that it is professional misconduct for a lawyer to "engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer's certificate of admission." Section 27-14-02(3), N.D.C.C., provides that a lawyer's certificate may be revoked or suspended if he willfully violates any of the duties of an attorney or counselor at law. Section 27-13-01(1), N.D.C.C., enumerates the duties of attorneys, and provides that every lawyer and counselor at law shall "[m]aintain respect for courts of justice and judicial officers." Thus, an attorney may be sanctioned for failing to maintain respect for the court.
[¶18] Garaas contends the petition failed to properly plead a violation based upon Garaas's statements because it did not specifically refer to N.D.C.C. § 27-14-02(3). Our rules for pleading in disciplinary proceedings are not so strict and arcane. Rule 3.1(E)(1), N.D.R. Lawyer Discipl., provides that the petition must be "sufficiently clear and specific to inform the lawyer of the alleged misconduct." In addition, N.D.R. Lawyer Discipl. 3.5(B) provides that, except as otherwise provided and insofar as appropriate, the North Dakota Rules of Civil Procedure apply in disciplinary proceedings. See In re Howe, 2001 ND 7, ¶ 7, 621 N.W.2d 361. Under the civil rules, a pleading is sufficient if it contains (1) a short, plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for the relief the pleader seeks. N.D.R.Civ.P. 8(a); Kaler v. Kraemer, 1998 ND 56, ¶ 7, 574 N.W.2d 588; In re Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992).
[¶19] Both N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a) adopt notice pleading, where the purpose is to place the party on notice as to the nature of the pleader's claim, and pleadings that indicate generally the type of claim that is involved are sufficient. See Estate of Hill, 492 N.W.2d at 296; Jablonsky v. Klemm, 377 N.W.2d 560, 565 (N.D. 1985). Pleadings are to be liberally construed to do substantial justice. See N.D.R.Civ.P. 8(f); Kaler, 1998 ND 56, ¶ 7, 574 N.W.2d 588; Estate of Hill, at 296. Under these liberal pleading rules, a pleading need not specifically allege every element of the claim. Kaler, at ¶ 7; Jablonsky, at 565.
[¶20] The petition for discipline in this case unambiguously placed Garaas on notice of the nature of the "claim" against him. The specific facts were alleged, including quotation of the exact statements alleged to have violated the rules. The petition further specified that Garaas's conduct violated N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e). Any doubt whether violation of a duty of an attorney under N.D.C.C. § 27-13-01 was a sanctionable offense is dispelled by the Comment to N.D.R. Prof. Conduct 8.4, which specifically enumerates N.D.C.C. § 27-13-01 as one of the statutes providing the basis for revocation or suspension of a lawyer's certificate of admission, and thus for sanctions under the rule. Furthermore, this Court has explicitly stated that failure to maintain respect for the court under N.D.C.C. § 27-13-01(1) will provide the basis for sanctions under N.D.R. Prof. Conduct 8.4(e). See In re Gronneberg, 2001 ND 158, ¶ 12, 634 N.W.2d 491.
[¶21] We conclude the petition adequately placed Garaas on notice of the nature of the allegations against him and satisfied the requirements of N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a).
IV
[¶22] There is no real factual dispute about Garaas's conduct. All of the alleged misconduct consisted of statements made in open court, and Garaas does not dispute the accuracy of the transcripts of what he said. The dispositive issue is whether Garaas's conduct constituted ethical violations. Garaas contends that his conduct during the hearings did not violate the disciplinary rules, but was merely zealous representation of his client.
[¶23] Garaas argues that his conduct, while perhaps at times impolite, was merely zealous representation of his client. "[A] lawyer is not always protected by following the client's specific directions." In re Boulger, 2001 ND 210, ¶ 27, 637 N.W.2d 710 (Sandstrom, J., concurring). Not every lawyer excess is justified by the mantra of zealous representation.
[¶24] The Comment to N.D.R. Prof. Conduct 3.5 explains:
The lawyer's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the lawyer's right to speak on behalf of litigants. . . . A lawyer can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Similarly, the Supreme Court of Minnesota has stated:
Respondent asserts he has a right, indeed an obligation, to represent his clients vigorously, aggressively, and zealously. To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.
In re Williams, 414 N.W.2d 394, 397 (Minn. 1987).
[¶25] There is a line of demarcation between zealous representation of a client and unethical conduct.
V
[¶26] Garaas argues the statements he made are protected under the First Amendment and he cannot be sanctioned for exercising his right to free speech. Relying upon Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), Garaas argues "an attorney may not be disciplined based solely on his/her speech unless such speech becomes so extreme as to become prejudicial to the administration of justice."
[¶27] Garaas has misread Gentile. While the Court concluded that a lawyer's out-of-court speech could be the basis for disciplinary sanctions if it creates a "substantial likelihood of material prejudice" in a pending case, see id. at 1074-75, the Court noted that a lawyer's free speech rights in a courtroom are even more limited:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.
Id. at 1071.
[¶28] The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding. Addressing Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:
An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.
In re Coe, 903 S.W.2d 916, 917 (Mo. 1995).
[¶29] The United States Court of Appeals for the First Circuit, addressing a lawyer's claim of free speech rights in the courtroom, noted:
A courthouse—and, especially, a courtroom—is a nonpublic forum. A courtroom's very function is to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure "that [the] courthouse is a place in which rational reflection and disinterested judgment will not be disrupted."
Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (citations omitted) (quoting Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir. 1995)).
[¶30] A lawyer's right to exercise free speech does not permit a lawyer appearing in a judicial proceeding in open court to call opposing counsel a liar, to threaten a judge with personal liability if he rules a certain way, to accuse an appellate court of false misrepresentation, or to engage in a lengthy, disruptive, belligerent, and disrespectful exchange with the court. We conclude that sanctioning Garaas for his statements during the post-judgment proceedings does not violate his right to free speech.
VI
A
[¶31] At the November 7, 2000, hearing, Garaas accused opposing counsel of lying to the court. Disciplinary Counsel argues this conduct violated N.D.R. Prof. Conduct 3.5(b) and 4.4.
[¶32] Rule 4.4, N.D.R. Prof. Conduct, requires that, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person." Rule 3.5(b), N.D.R. Prof. Conduct, states that a lawyer "shall not . . . engage in conduct intended to disrupt a tribunal." The commentary to Mod. R. Prof. Conduct 3.5(c), which is identical to N.D.R.Prof. Conduct 3.5(b), indicates that, "[a]lthough there is no bright-line rule defining conduct violative of Rule 3.5(c), disruptive conduct is commonly evaluated in light of the totality of the circumstances." American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 343 (3d ed. 1996).
[¶33] Garaas's conduct in accusing opposing counsel of lying to the court was reprehensible. See Johnson v. Johnson, 544 N.W.2d 519, 522 (N.D. 1996). Viewing this conduct in light of the totality of the circumstances, however, we do not conclude there was a violation of N.D.R. Prof. Conduct 3.5(b) or 4.4, and Disciplinary Counsel has not argued the conduct violated other provisions.
B
[¶34] At the January 2, 2001, status conference, Garaas warned the trial judge that he would be placing himself "at risk" if he continued with the proceedings and ordered Garaas's client to sign the deeds. Garaas's statement was a clear threat to sue the judge personally. At the disciplinary hearing, the trial judge testified he perceived Garaas's statements "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment." Rule 3.5(a), N.D.R. Prof. Conduct, states that a lawyer shall not "seek to influence a judge . . . by means prohibited by law." A judge must be free to determine cases based upon the evidence and applicable law, without threats of potential personal liability. See N.D. Code Jud. Conduct Canon 3(B)(2). Garaas's threat that the judge was placing himself "at risk" violated N.D.R. Prof. Conduct 3.5(a).
C
[¶35] At the January 5, 2001, hearing, Garaas stated that this Court had "made a false representation of what the issue was" in an earlier appeal. Section 27-13-01(1), N.D.C.C., provides that a lawyer must "[m]aintain respect for courts of justice." As previously discussed, a violation of a lawyer's duty under N.D.C.C. § 27-13-01(1) is sanctionable under N.D.R. Prof. Conduct 8.4(e). While a lawyer is certainly free to register his disagreement with a court's ruling, he must do so without showing disrespect to the court. Garaas's statement that this Court made a "false representation" carries a connotation of intentional wrongful conduct. We conclude Garaas's statement crossed the line beyond criticism to disrespectful assertion of wrongdoing by the Court, and constitutes a violation of N.D.R. Prof. Conduct 8.4(e).
D
[¶36] During the January 5 hearing, Garaas also engaged in the lengthy colloquy with the court in which Garaas repeatedly questioned the court on what basis it was proceeding and accused the court of having ex parte contacts with the Supreme Court. Garaas's conduct can be characterized as disruptive, belligerent, and disrespectful. Rule 3.5(b), N.D.R. Prof. Conduct, provides a lawyer shall not "engage in conduct intended to disrupt a tribunal." Under N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e), a lawyer is also prohibited from engaging in conduct that fails to maintain proper respect for the court. Garaas's conduct was disruptive, belligerent, and disrespectful to the court and violated N.D.R. Prof. Conduct 3.5(b) and 8.4(e).
VII
[¶37] Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception. In the final analysis, we will not allow this lawyer to drag to a new low the baseline of acceptable courtroom conduct. Garaas's conduct went beyond acceptable zealous representation and constituted violations of the disciplinary rules.
[¶38] We have determined Garaas violated various disciplinary rules by his conduct at the post-judgment proceedings. The hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings. The hearing panel found substantial mitigating factors on Garaas's behalf.
[¶39] We have considered the nature of Garaas's conduct, the multiple violations, Garaas's prior disciplinary record, and the substantial mitigating factors. We conclude that under the circumstances of this case, a public reprimand and payment of costs are appropriate sanctions.
[¶40] We order that Garaas be publicly reprimanded for violating N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e). We further order that Garaas pay the costs of the disciplinary proceedings in the amount of $7,312.42.
[¶41] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
James H. O'Keefe, S.J.
[¶42] The Honorable James H. O'Keefe, Surrogate Judge, sitting in place of Kapsner, J., disqualified.
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Sunday, July 08, 2007
Another fabrication by Cornyn to promote his racist and Nazi Wall agenda
Saturday, August 05, 2006
New Sentencing Trial for Texas Death Row Inmate
The Odessa American has a story on the new sentencing trial previously ordered for Michael Dean Gonzales. The U.S. Fifth Circuit Court of Appeals last week denied his habeas petition which raised claims that prosecutors failed to turn over exculpatory evidence and ineffective assistance of counsel at his capital murder trial.
The Odessa American story is here.
Not at issue before the Fifth Circuit was a federal district court's earlier order that Gonzales receive a new sentencing trial because of racist testimony by the state's expert witness.
The pertinent paragraph is on page 7 of the circuit court's decision:
Gonzales filed a supplemental petition in August, 2000, asserting that the State’s psychological expert witness testified, unconstitutionally, that race is an indicator of future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this point.
This is from the Odessa American story; the person quoted is Ector County District Attorney Bobby Bland (presumably no relation to the legendary soul singer Bobby Blue Bland):
Bland said that it’s his understanding that the penalty phase of the trial was overturned because of a faulty witness in the case handled by a previous district attorney.
“My understanding was that we had an expert witness who’d been called in to witness on other cases, and his testimony created some problems in the cases, because there were comments on race,” Bland said. “In our case, I don’t think he testified that way.”
On June 11, 2000, then-State Attorney General John Cornyn announced six convicted killers, including Gonzales, would likely have their death sentences overturned. The U.S. Supreme Court found that psychologist Walter Qijano was racially biased in his testimony in the case of Victor Saldano. Qijano had also testified as an expert witness in Gonzales’ case.
Actually, that understates Cornyn's role. The state's expert psychologist, Quijano, had testified in six separate cases that being Hispanic was an aggravating factor, and for that reason the Hispanic men would represent a future danger and that the death penalty was the appropriate punishment. In a rare move, the Attorney General announced that he would not defend such blatantly racist testimony.
It was a courageous stand that drew opposition from some Texas district attorneys. Unfortunately, as the junior U.S. Senator, Cornyn has stood with a handful of Republicans in the House and Senate over the past year who have repeatedly attempted to severely limit federal court review of state death penalty convictions. Yesterday, the Ohio Death Penalty Information blog had this post noting Cornyn's latest attempt to put such language in a bill designed for judicial security. LINK
Saturday, August 05, 2006 at 06:21 PM in Fifth Circuit, Race, Specific Case | Permalink | Comments (0)
Labels: Prejudice, race, SCOTUS, Texas Fair Defense Act
// posted by dannoynted1 @ 6:48 PM 0 comments links to this post
Cornyn on punking the SCOTUS to get this SCOTUS case back to Texas to punk the justice system and the US Constitution
Wednesday, September 27, 2006
Super-Bad Bush Nominees Get a Needless Day in Court
That's the title of Cragg Hines' column in today's Houston Chronicle. Hines, the paper's Washington, D.C. based columnist, reports on the Senate Judiciary Committee hearings on two federal court nominees, including one nominated for the U.S. Fifth Circuit Court of Appeals. LINK
As afternoon moved toward evening, it became clear that one purpose of the hearing was to allow Republican members to beat up on the ABA for daring to buck even a couple of Bush nominees. This was a preoccupation of Sen. John Cornyn, R-Texas, in his loaded softballs.
Unfortunately, one of the nominees is for a vacancy on the 5th U.S. Circuit Court of Appeals, which hears cases from Texas, Louisiana and Mississippi. That's the federal appeals circuit, according to the NAACP Legal Defense and Educational Fund, with the highest percentage of minority residents.
So, naturally, Bush has nominated a lawyer with a career-long antipathy to such basic civil rights touchstones as the Voting Rights Act and single-member districts.
It's sort of a sick joke, but it's also perversely real. Bush wants this guy to have a lifetime seat on a court that remains an important gatekeeper in the world of civil rights litigation.
The superbly unsuited nominee is Michael B. Wallace, a politically well-connected Jackson, Miss., attorney.
He might be the only appeals circuit nominee who has received a unanimous "not qualified" rating from the ABA's standing committee on the federal judiciary. No one can recall another.
After two separate ABA inquiries into Wallace's nomination earlier this year, the bar committee came up with the same conclusion: Wallace, while of the "highest professional competence," lacks a judicial temperament and a commitment to equal justice.
Wallace's rating is hard to come by. Of the 90 Bush judicial nominations that the ABA committee has rated in the current, 109th Congress, only Wallace received a unanimous "not qualified" rating. Twice — after he was nominated in February, and then when, because of procedural rules, he was nominated again earlier this month.
With the changing committee membership over the year, Leahy pointed out, 21 different members of the ABA panel have rated Wallace. "None found him to be qualified," Leahy said.
The ABA committee is not, as some Republicans seek to paint it, an ideologically driven panel. Almost half of Bush's nominees in this term have received a unanimous rating of "well qualified."
Only three other nominees have been rated as "not qualified" by what the committee calls a "substantial majority" (with a minority rating them qualified).
Wednesday, September 27, 2006 at 09:50 AM in ABA, Fifth Circuit | Permalink | Comments (0) | TrackBack (0)
Labels: consent, lies, Prejudice, SCOTUS, Texas Fair Defense Act, warrant
// posted by dannoynted1 @ 6:40 PM 0 comments links to this post
Tuesday, July 03, 2007
Mikal Watts in San Antono
// posted by dannoynted1 @ 9:57 AM 0 comments links to this post
Sunday, May 27, 2007
money buys for giving ?/////////
One day in Iraq
The son of a friend is a soldier stationed in Iraq. Recently, he and his buddy were on patrol. A sniper shot his buddy in the head. He was unharmed. A young man is dead and his friend will most likely live with the memory of that horrible scene the rest of his life.
We hear on the news of "Five U.S. asualties in Iraq today" and we think, "That's terrible." But when you know a young person (or his family) who will never come home or by the experience be traumatized forever, you will feel their loss and anguish. How many more of our young people will be killed in this senseless morass?
My grandson is stationed on the USS John Stennis in the Persian Gulf. Every day I'm thankful he is not patrolling the streets of Iraq.
Molly Mulle
(Rockport)
Bomb-scare change
I must express my concern regarding CCISD's new policy of "locking down" the students rather than "evacuating" them during possible bomb threats. What prompted the change in this policy?
My children brought home letters from Ray High School on May 15 regarding a possible bomb threat. I have real issues with the district's new policy allowing the schools to "lock down" students during an investigation to determine whether a bomb threat is valid. Previous policy to evacuate students while the situation was investigated and return students to classrooms when the situation was cleared was a more logical way to protect our students and staff. Granted, the majority of these "threats" turn out to be pranks or just threats. Security is an issue everywhere now and a real bomb would not be a surprise anymore.
If the district is concerned about funding because of valuable time lost due to this criminal behavior, then time should be made up just as time lost for inclement weather is made up.
Individuals cannot "joke" about bombs in airports, etc., without severe penalty. It should be the same in schools. What happened to "zero" tolerance?
Pat Dunegan
Parade in the dark
The "Illuminated" Buccaneer Night Parade at the stadium was anything but illuminated. I was greatly disappointed, and all the people I have spoken to concerning the parade feel the same.
In the beginning, when there was still some light, it was all right, but as night came and the lights were turned off (we knew the lights were going to be off), it was pitch black. I know that a lot of money and time are spent by everyone involved, especially the high-school bands, and for the public not to be able to see their performance is a big letdown. Some "lights" were supposed to have been given to the people sitting in the aisles, but nobody in my section got any lights. Many elderly people had trouble walking up the steps to their seats. About the only floats with plenty of lights were the floats from out of town. The Corpus Christi floats did not compare to them.
I am hoping that next year's parade will be better planned. I love a parade. The band's music is good therapy for our tired bodies. Let us have a real "illuminated" night parade so that we can feel the enthusiasm of the participants. It brings back memories of when I participated with the Buccaneer Band and later with the Veteran's Band of Corpus Christi.
Luis R. Corona Sr.
Good public servant
Melody Cooper is one of the most dedicated members on the City Council that we know. She is honest and very dependable, always ready to go the extra mile to help. Why doesn't the Caller-Times tell her side of the story?
Dorothy Earwood
Ethical compass
Trial lawyers invented the term "moral relativity." Trial lawyer Mikal Watts has attempted to frivolously dismiss a complaint filed with the Texas Ethics Commission against state Rep. Juan Garcia. Voters should question Watt's moral relativity. Watts is the financier and instigator behind Juan Garcia. Why?
Watts has a huge stake invested in Garcia. Watts' good government PAC practically funded Garcia's campaign. In Jaime Powell's column about Garcia's ethics violations, Watts said Garcia didn't have time to respond to constituents' complaints about Garcia's unreported $42,000 in contributions. Watts said Garcia needs "to work the people's business instead of spending time responding to complaints." What?
Why is Mikal Watts telling us that Garcia is too busy to respond to his constituents? Please, Mr. Watts, let Rep. Garcia speak and let him speak for himself. Does he need a trial lawyer to speak for him? Let Juan Garcia tell us about his misreporting $42,000 in contributions. Rep. Garcia, we teach our children that our government representatives are morally ethical individuals. Hopefully, that belief is instilled, will make them great supporters, advocates and voting participants in our democracy. Sad, but true; you sir, have let them down. The compass of your moral relativity has cracked.
Leo O. GildersleevE
No one's perfect
For 12 years Melody Cooper has served us well, the residents of Corpus Christi, in the capacity of City Council member. Personally, I see no reason for her to resign as some are suggesting.
Those asking for her to resign should ask of themselves, "Have I ever made a mistake?" Where is your compassion?
We humans are not perfect and should have consideration for others when they err. Who are we to judge? Let the Almighty take care of this.
Also, the recent city elections are over, the people who voted have spoken, so let us give the new council our support, show the members respect and allow them to work together as a team for the betterment of our city.
Cefe F. Valenzuela
Shamsie's folly
Thank you, Judge Shamsie, for your years of service. Just one question, could you tell us how much more your bungled job is going to cost the taxpayers of Nueces County?
Between the Fairgrounds and the road projects, Judge Shamsie has cost the taxpayers hundreds of thousands of dollars in legal fees and penalties. How much more is hidden in the ongoing projects and contracts that we don't know about yet? For the sake of a few minutes of his time we paid a huge chunk of fees and expenses to clear up the Fairgrounds issues.
It is sorry that in his wake the new judge has to clean up his mess, and at our expense. What is more sorry is that there doesn't seem to be any accountability for the mistakes made by our elected officials.
Think of all the good a couple of hundred thousand dollars could do. It could have been used to fix some of the drainage issues, rather than draining the funds to the lawyers who have to fix the mess.
We taxpayers really have bigger needs and better use for the dollars that Judge Shamsie wasted by lack of attention to detail. Please, Judge Neal, pay more attention to the fine points that so readily waste our hard-earned money.
Steven Cohen
Post Your Comments
Posted by drtcpip on May 22, 2007 at 7:59 a.m. (Suggest removal)
Amen Judge Sham. Indeed your legacy will be like your predecessor, Lord High Protector of Robstown, Borchard. Spends millions of our dollars for your little pet projects. Adios amigo and good riddance.
Posted by rabbit78418 on May 22, 2007 at 9:29 a.m. (Suggest removal)
How can you intentionally falsify legal documents and then say sorry I made a mistake? The mistake was thinking she could lie and get away with it.
Posted by smfuentes1 on May 22, 2007 at 10:20 a.m. (Suggest removal)
I totally agree with Pat Dunegan, if there is a bomb threat, how can you lock down the school and keep the kids inside, while you search to see if the threat is valid, and if it is valid, and the bomb goes off, you just lost alot of innocent lives, by the decision not to evacuate as soon as you got the bomb threat. Most likely if there is a bomb, it will be inside the school, so whoever came up with this bright idea to keep the kids in lockdown, better start thinking twice, before something bad really happens.
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Tuesday, May 01, 2007
In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1633-05
ERNEST M. GUTIERREZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
NUECES COUNTY
Price, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Keasler, hervey, Holcomb and Cochran joined. Johnson, J., concurred in the result. Womack, J., filed a dissenting opinion.
O P I N I O N
We granted review in this case to examine whether the Thirteenth Court of Appeals erred in deciding that a police officer's warrantless intrusion into the appellant's home was allowable under the theory of exigent circumstances and probable cause. We conclude the court of appeals did err in its analysis. However, we affirm the judgment of the court of appeals on grounds that the police entry and search was justified by the appellant's consent.
THE FACTS AND PROCEDURAL POSTURE
On March 7, 2002, Detective Douglas Rush of the Corpus Christi Police Department was informed by a detective in Plano that a laptop computer had been stolen. (1) The Plano detective informed Rush that the computer was equipped with an anti-theft program which, when activated, would provide the address and phone number of the location where the computer was last used to access the internet. The Plano detective relayed to Rush that the computer had been used at 3129 Eisenhower in Corpus Christi the previous night.
On this information, Rush and Detective Felix Gonzalez proceeded to the Eisenhower address, which is the appellant's home. Prior to the detectives' arrival, the appellant was smoking marijuana inside his house. When the officers arrived at the address, (2) the appellant heard car doors close, saw the approaching officers out of his window, put out his marijuana cigarette and met the detectives on his porch, closing his front door behind him. Rush asked the appellant about the stolen computer. The appellant initially denied having the computer, but recanted and then admitted the computer was inside his house. (3) While the conversation between Rush and the appellant was taking place, Gonzalez smelled marijuana and observed that the appellant had bloodshot eyes and was very nervous.
The appellant told the officers he would go into the house and bring the computer out to the officers. Rush explained that he could not let the appellant go into the house alone, as a matter of officer safety and police policy. Rush filled out a consent to search form on the appellant's porch, and explained the form to the appellant. (4) The detective asked the appellant if he and Gonzalez could enter the home. The appellant agreed, opened his door, and reentered his home. Though the consent form was still unsigned, the detectives followed the appellant into his home. (5) After the appellant and the detectives entered the threshold of the house, the appellant signed the consent to search form.
Once inside, the appellant retrieved the computer and gave it to Rush. Both detectives noticed the odor of burnt marijuana and a marijuana cigarette in plain view on a table in the living room. The detectives continued a cursory visual search and found cash, a police scanner, and several plastic baggies. The detectives called for assistance from narcotics officers. Upon their arrival, the narcotics officers conducted a thorough warrantless search of the appellant's house. This search resulted in the discovery of cocaine, cash, a pistol and ammunition, digital scales, and other drug paraphernalia. Subsequently, the appellant gave two statements regarding his possession of marijuana, cocaine, and the computer.
The appellant was indicted for possession with the intent to deliver 400 grams or more of cocaine. He filed a pretrial motion to suppress the evidence, and the trial court held a hearing on the motion. At the hearing, the appellant argued that consent was not freely and voluntarily given and all evidence subsequently found in the appellant's home was the fruit of the poisonous tree. After listening to the testimony of several witnesses, including the appellant, the trial court denied the motion. At trial, the legality of the search, specifically whether the appellant gave valid consent, was again litigated. The issue was submitted to the jury, and the jury ultimately convicted the appellant.
On appeal, the appellant alleged the consent obtained by the detectives, both prior to and after entry, was not voluntarily given. The State refuted the appellant's contention that consent was not voluntarily obtained, and further argued that, under a theory of probable cause and exigent circumstances, the warrantless entry into the appellant's home and the ensuing search did not violate the protections guaranteed by the Fourth Amendment. In a memorandum opinion, the court of appeals adopted the State's latter position, holding that, "[w]ithout determining appellant's arguments regarding the voluntariness of his consent, we conclude the police had ample probable cause and exigent circumstances to enter the home." (6) We granted the appellant's petition for discretionary review to examine the issue of whether the warrantless intrusion by the police into his home was justified by the existence of probable cause coupled with exigent circumstances.
ANALYSIS
The Fourth Amendment grants individuals "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (7) In determining the reasonableness of a search or seizure, the actions of police are judged by balancing the individual's privacy interest against the Government's interest in law enforcement. (8) The balancing test is utilized to ensure that an individual's Fourth Amendment rights are not subjected to "arbitrary invasions at the unfettered discretion of officers in the field." (9)
There is a strong preference for searches to be administered pursuant to a warrant. (10) In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable. (11) However, this does not mean all searches must necessarily be conducted under the authority of a warrant. For example, if police have probable cause coupled with an exigent circumstance, or they have obtained voluntary consent, or they conduct a search incident to a lawful arrest, the Fourth Amendment will tolerate a warrantless search. (12) Yet, the warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies. (13)
To validate a warrantless search based on exigent circumstances, the State must satisfy a two-step process. (14) First, there must be probable cause to enter or search a specific location. (15) In the context of warrantless searches, probable cause exists "when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found." (16) Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. (17) We have identified three categories of exigent circumstances that justify a warrantless intrusion by police officers: 1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; 2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and 3) preventing the destruction of evidence or contraband. (18) If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. (19)
Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. (20) The court of appeals then observed:
Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone . . . . A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety. (21)
We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant's home. The detectives' response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disproportionate it may be to the perceived exigency. (22)
Because we reject the court of appeals's reliance upon exigent circumstances, we must next address the issue of consent. An exception to the warrant requirement, consent is valid when it is voluntarily given. (23) The validity of a consensual search is a question of fact, and the State bears the burden to prove by clear and convincing evidence that consent was obtained voluntarily. (24) This burden includes proving that consent was not the result of duress or coercion. (25) To determine whether this burden is met, we examine the totality of the circumstances. (26)
In the case before us, the issue of consent was hotly contested at both the pretrial suppression hearing and the trial on the merits. The appellant and the State presented diametrically opposed versions of the search of the appellant's residence. When there is contradictory evidence and witness credibility is at issue, a longstanding standard of review guides our analysis.
In reviewing a trial court's ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court's ruling. (27) When the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports these implied findings. (28) Generally, implied findings would be limited to the record produced at the suppression hearing. (29) However, when the parties subsequently re-litigate the suppression issue at the trial on the merits, we consider all evidence, from both the pre-trial hearing and the trial, in our review of the trial court's determination. (30)
Construed in the light most favorable to the trial court's ruling, the testimony shows that the appellant, after his initial lie, was cooperative with the detectives. On the porch, Rush explained to the appellant that he could not allow the appellant to reenter his home alone. Rush then filled out a consent form and explained the form to the appellant. It is true that the evidence indisputably establishes that the consent form was not signed until the detectives were already inside the appellant's home. But the detectives testified that they entered initially with oral consent from the appellant. Although the appellant disputed their account, (31) we presume that the trial court resolved this dispute against him.
The consent form that the appellant signed, if in fact voluntary, unquestionably authorized a complete search of the premises. (32) If the appellant's testimony is credited, the appellant apparently signed the consent form only after the detectives threatened to take away his property and his family. (33) Implicit in the trial court's resolution of this issue, however, is that it found the detectives' account the more reliable. Crediting that account, we find that the evidence shows that the consent form was signed voluntarily. The appellant was cooperative, and aside from his initial lie to the detectives, he answered their questions willingly and courteously. The exchange was neither confrontational nor provocative. When asked, the appellant agreed to let the detectives enter his home. Discounting the appellant's own testimony, the evidence does not suggest his will was overborne at any point with threats. According to the detectives, his consent was free of the taint of duress or coercion, and he voluntarily, of his own free will, consented to the police entry and search. Reviewing the evidence, thus, in the light most favorable to the trial court's ruling, we hold that the State satisfied its burden of proving, by clear and convincing evidence, that the appellant's consent was obtained voluntarily.
CONCLUSION
We hold that the actions of law enforcement in searching the appellant's home without a search warrant were not justified under the exigent circumstances exception to the Fourth Amendment. The police were not faced with an exigent circumstance that necessitated a full-blown search of the home. By responding disproportionately to the scope of the exigent circumstances, the detectives needlessly tipped the delicate balance between government and individual in favor of the government.
However, the police officers' conduct is justified under another exception: consent. The appellant voluntarily consented to the police entry and search of his home. All evidence found inside the premises was lawfully obtained under this exception to the warrant requirement. Accordingly, we affirm the judgment of the court of appeals.
Delivered: April 25, 2007
Publish
1. We present the factual background in the light most favorable to the trial court's ruling.
2. Detectives Rush and Gonzalez were dressed in plain clothes, but their badges were displayed. The appellant noticed their badges and testified at the pretrial hearing that he was aware the two individuals were police officers.
3. The appellant claimed he purchased the laptop from a third party. He was not ultimately charged for any offense relating to the stolen computer.
4. The Consent to Search form authorized a complete search of the appellant's home.
5. The appellant described a vastly different version of the events that transpired after he admitted to possessing the computer. According to the appellant, he asked the detectives whether they would leave if he went inside and retrieved the computer. The detectives agreed. The appellant then entered his home and attempted to shut his front door to prevent marijuana smoke from escaping outside. As he tried to close his door, Rush stuck his foot into the doorway. Rush then forced open the door, and he and Gonzalez burst into the house. The appellant grabbed the computer, handed it over to Rush, and asked the detectives to leave. The detectives responded that they would not leave, and Rush stated that he needed the appellant to sign a Consent to Search form. The appellant did not think he needed to sign the consent form because he believed he fully cooperated by retrieving the computer.
Also, during this time, the appellant's wife and daughter emerged from the back of house into the living room where the appellant and the detectives were. Gonzalez told the appellant that he was going to call Child Protective Services(CPS) to come and pick up the appellant's daughter. The detectives threatened to seize his property, take his wife to jail, and take his daughter to CPS if he did not sign the consent form. The appellant agreed to sign the form if they would allow his mother-in-law to come pick up his daughter and wife. The detectives allowed the daughter to leave with the appellant's mother-in-law, but his wife stayed. The appellant then signed the consent form. By this time the detectives had discovered a bag of marijuana and a bag of money, in addition to the plainly visible marijuana cigarette the appellant had smoked prior to the detectives' arrival.
6.
Gutierrez v. State, No. 13-04-186-CR, 2005 Tex. App. LEXIS 6949, at *3 (Tex. App.--Corpus Christi Aug. 25, 2005) (not designated for publication).
7. U.S. Const. amend. IV.
8.
Schenekl v. State, 30 S.W.3d 412, 413 (Tex. Crim. App. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
9.
Schenekl, 30 S.W.3d at 413.
10.
United States v. Ventresca, 380 U.S. 102, 106 (1965); Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). See also Illinois v. McArthur, 531 U.S. 326, 338 (2001) (Souter, J., concurring) ("[A] search with a warrant has a stronger claim to justification on later, judicial review than a search without one.").
11.
Payton v. New York, 445 U.S. 573, 586 (1980).
12.
McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
13.
United States v. Robinson, 414 U.S. 218, 243 (1973); see also McGee, 105 S.W.3d at 615.
14.
Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).
15.
Id.
16.
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005).
17.
Parker, 206 S.W.3d at 597.
18.
McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991).
19.
Parker, 206 S.W.3d at 597.
20.
Gutierrez, 2005 Tex. App. LEXIS 6949, at *4.
21.
Id. at *5.
22.
See Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (declaring "warrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment")
23.
Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); Ohio v. Robinette, 519 U.S. 33, 40 (1996).
24.
See, e.g., Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (stating consent is a question of fact); Robinette, 519 U.S. at 40 (concluding that consent is a question of fact); Harrison, 205 S.W.3d at 552 (stating that clear and convincing evidence is the burden of proof for voluntariness of consent in Texas); Reasor, 12 S.W.3d at 818 (articulating the State's burden of proof).
25.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991); Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1972).
26.
Harrison, 205 S.W.3d at 552; Reasor, 12 S.W.3d at 818; Robinette, 519 U.S. at 40.
27.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
28.
Kelly, 204 S.W.3d at 818-19; Ross, 32 S.W.3d at 855; Carmouche, 10 S.W.3d at 328. But see State v. Cullen, 195 S.W.3d 696, 698-700 (Tex. Crim. App. 2006) (holding that when the losing side at a suppression hearing requests findings of fact and conclusions of law, the trial court is required to make such findings). The appellant did not request findings from the trial court.
29.
See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
30.
Id. ("Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review.")
31.
See note 5, ante.
32. The text of the Consent to Search form reads:
I, Ernest M. Gutierrez, having been informed by the hereafter named Texas Peace Officer that I have a Constitutional right to be free from having him or any other officer make a warrantless search of the hereafter mentioned place under my control and a constitutional right to refuse to give him or any other officer consent to make a search of that kind and those rights are guaranteed by both the Texas and Federal Constitutions, do hereby authorize
[Detective Douglas Rush]
Texas Peace Officer
and any officers working with him to conduct a complete search of the following place located in Nueces County, Texas, namely:
3129 Eisenhower
Corpus Christi
Nueces Co., TX
and to seize and take from there any item of personal property they may believe to constitute evidence in a criminal proceeding.
I have given this consent of my own free will and accord and without being subjected to any compulsion, threats, promises, or persuasion of any kind.
I know that any items of personal property seized by the above named officer or other officers with him and taken by them from such place can and will be used against me in a criminal proceeding.
(Italics represent handwritten portions on the consent form.)
33.
See note 5, ante.
Labels: consent, lies, warrant
// posted by dannoynted1 @ 12:04 AM 0 comments links to this post
Tuesday, March 20, 2007
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// posted by dannoynted1 @ 3:19 AM 0 comments links to this post
Tuesday, March 13, 2007
is this a crime or a fine??????//////
Carlos E. Zamora, M.D., DAB No. 1104 (1989)
DEPARTMENT OF HEALTH AND HUMAN SERVICES
DEPARTMENTAL APPEALS BOARD
In the Case of
Carlos E. Zamora, M.D.,
Petitioner
vs.
The Inspector General
Date: September 25, 1989
Appellate Docket No. 89-100
Decision No. 1104
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
The Petitioner, Dr. Carlos E. Zamora, appealed the decision of
Administrative Law Judge (ALJ) Steven T. Kessel affirming the
determination of the Inspector General (the I.G.) to exclude the
Petitioner from participating in the Medicare program (Title XVIII of
the Social Security Act, (Act)) for five years and to direct that he be
excluded from participating in State health care programs (including
Medicaid, Title XIX of the Act) for the same length of time.
Criminal proceedings were instituted against the Petitioner in a Texas
state court based on his alleged submission of false Medicaid claims.
The petitioner pled nolo contendere to the charges against him and was
placed on probation. After successfully completing his probation, the
Petitioner was allowed to withdraw his plea and the charges against him
were dismissed. Consequently, under Texas law, no conviction existed
under those circumstances. However, the I.G. found that, under the
applicable federal statute, the Petitioner had been convicted of a
criminal offense and excluded him from participation in Medicare.
Before Judge Kessel, the Petitioner relied on state law to argue that
since he had not been convicted of a criminal offense, there was no
basis for his exclusion from the Medicare program. Judge Kessel
rejected the Petitioner's argument and sustained the exclusion. On
appeal to this Board, the Petitioner relied on his arguments before the
ALJ as well as those made in the Petitioner's motion for a preliminary
injunction to enjoin his suspension from Medicare. See Zamora v. Bowen,
Civil Action No. A-88-CA-987 (W.D. Texas 1988); I.G. Exhibit (Ex.) D.
Additionally, the Petitioner raised a new argument in which he alleged
that the I.G.'s decision to exclude him was contrary to the applicable
program regulations. Petitioner's Brief (Br.), pp. 1-2.
Based on the following analysis, we conclude that the ALJ's decision to
exclude Dr. Zamora was correct. Accordingly, we affirm Judge Kessel's
decision in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Judge Kessel made the following findings and conclusions:
1. Petitioner is a physician who has practiced in Texas.
2. In 1988, the State of Texas indicted Petitioner for
tampering with a governmental record for submitting false
Medicaid claims.
3. On May 18, 1988, Petitioner entered a nolo contendere plea
in Texas state court to a misdemeanor offense of tampering with
a government[al] record. In accepting the plea, the Court found
that the evidence substantiated the Petitioner's guilt of
tampering with a governmental record.
4. The Court also found that the ends of justice and the best
interests of both society and the Petitioner would be served by
deferring further proceedings without entering an adjudication
of guilt at that time, and by placing the Petitioner on
probation.
5. On November 2, 1988, an order was entered in Texas state
court, pursuant to Art. 42.12, Sec. 7 of the Texas Code of
Criminal Procedure, modifying Petitioner's period of probation
to the time served from May 18, 1988, discharging Petitioner
from probation, withdrawing Petitioner's nolo contendere plea,
and dismissing the prosecution against him.
6. On October 28, 1988, the I.G. advised Petitioner that he was
excluding Petitioner from participating in the Medicare program,
and was directing that Petitioner be excluded from participating
in State health care programs, for five years. The exclusions
were based on the I.G.'s determination that Petitioner had been
convicted of a criminal offense related to the delivery of an
item or service under the Medicaid program.
7. Petitioner's nolo contendere plea in Texas state court
constitutes a "conviction" within the meaning of 42 U.S.C.
1320a-7(i), notwithstanding the provisions of Article 42.12 of
the Texas Code of Criminal Procedure, or the terms of the
November 2, 1988 Order entered in Texas state court in
Petitioner's case.
8. The actions taken by the I.G., excluding Petitioner from
participating in the Medicare program and directing his
exclusion from participating in State health care programs, were
mandated by 42 U.S.C. 1320a-7(a)(1).
Decision No. C-74, pp. 4-5 (citations to that record omitted).
PROCEDURAL BACKGROUND
During its February 1988 term, the Grand Jury for Hays County, Texas,
indicted the Petitioner for tampering with a governmental record, by
submitting false Medicaid claims. On May 18, 1988 the petitioner
entered a plea of nolo contendere to this charge in the 22nd Judicial
District Court of Hays County. That Court found that the evidence
before it substantiated Dr. Zamora's guilt and accepted the plea.
However, the Court deferred adjudication and placed Dr. Zamora on
probation. See State of Texas v. Carlos Zamora, No. CR 88-74; I.G. Ex.
A. On November 2, 1988 the Court granted the Petitioner's motion for
termination of probation (reduced to time served), dismissed the charges
against Dr. Zamora, and allowed him to withdraw his plea. I.G. Ex. B.
On October 28, 1988 the I.G. notified the Petitioner that, due to his
program-related conviction, he would be suspended from participation in
Medicare on November 17, 1988 pursuant to subsection 1128(a) of the Act.
On November 16, the Petitioner unsuccessfully sought to enjoin the I.G.
from excluding the Petitioner from Medicare. See Zamora v. Bowen,
supra.
The Petitioner then timely requested a hearing as to the exclusion
before an ALJ. The basis of that appeal was that since no judgment of
conviction was entered by the state court, then, under Texas law, the
Petitioner had not been convicted. Accordingly, there was no basis for
his exclusion from Medicare. On March 30, 1989, the ALJ issued his
decision in which he found that the Petitioner's nolo contendere plea
was a "conviction" as defined by the Act, regardless of how that plea
was viewed by the Texas court.
The Petitioner took specific exception "to Findings of Fact and/or
Conclusions of Law Number 7 and 8" (set out above), arguing that the
ALJ's interpretation of the federal statutes and regulations relating to
exclusion from the Medicaid and Medicare programs was erroneous.
Further, the Petitioner generally contended that those findings and
conclusions represented an erroneous application of the federal statutes
and regulations to the facts of this case. Petitioner Br., p. 4.
Analysis
1. The ALJ's decision to exclude Dr. Zamora was fully supported by
the law and was, therefore, correct.
The Petitioner's argument that, since the nolo contendere plea was
vacated by a Texas Court, he had not been "convicted" for purposes of
subsection 1128(a), ignores the plain language of the federal statute
and its underlying legislative history. There is simply no question
that under the circumstances presented here, the Petitioner cannot avoid
the exclusion. This point was driven home emphatically, both by Judge
Kessel's decision and by Judge James R. Nowlin in U.S. District Court
proceedings denying the Petitioner's Motion for a preliminary
injunction. See I.G. Ex. D.
Subsection 1128(i) of the Act defines "conviction" for purposes of
subsection 1128(a). In relevant part, that section provides that a
person or entity is considered to have been convicted of a criminal
offense--
* * *
(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State or local court;
or
(4) when the individual or entity has entered into
participation in a . . . deferred adjudication . . . program
where judgment of conviction has been withheld.
Although the statutory language is clear, the corresponding legislative
history emphatically affirms that Congress intended to include a plea of
nolo contendere within the scope of the term "conviction", even though
under state law and practice no judgment of conviction is ever entered.
The Congressional committee charged with drafting the 1986 amendments to
the statute stated--
The principal criminal dispositions to which the exclusion
remedy [currently] does not apply are the "first offender" or
"deferred adjudication" dispositions. It is the Committee's
understanding that States are increasingly opting to dispose of
criminal cases through such programs, where judgment of
conviction is withheld. The Committee is informed that State
first offender or deferred adjudication programs typically
consist of a procedure whereby an individual pleads guilty or
nolo contendere to criminal charges, but the court withholds the
actual entry of a judgment of conviction against them and
instead imposes certain conditions of probation, such as
community service or a given number of months of good behavior.
If the individual successfully complies with these terms, the
case is dismissed entirely without a judgment of conviction ever
being entered.
These criminal dispositions may well represent rational criminal
justice policy. The Committee is concerned, however, that
individuals who have entered guilty or nolo [contendere] pleas
to criminal charges of defrauding the Medicaid program are not
subject to exclusion from either Medicare or Medicaid. These
individuals have admitted that they engaged in criminal abuse
against a Federal health program and, in the view of the
Committee, they should be subject to exclusion. If the
financial integrity of Medicare and Medicaid is to be protected,
the programs must have the prerogative not to do business with
those who have pleaded to charges of criminal abuse against
them.
H.R. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S. CODE CONG.
& AD. NEWS 3607, 3665.
The committee added --
With respect to convictions that are "expunged," the Committee
intends to include all instances of conviction which are removed
from the criminal record of an individual for any reason other
than the vacating of the conviction itself, e.g., a conviction
which is vacated on appeal. Id.
Thus, it is readily apparent that Congress intended to exclude from the
Medicare program not only those individuals convicted of criminal
wrongdoing by a judge or jury, but those, such as the Petitioner, who
pleaded nolo contendere, had their pleas entered and accepted by the
court, but after serving a period of probation had the case against them
dismissed without a judgment of conviction ever being entered. Thus,
the statute focuses the I.G.'s inquiry on whether an individual (or
entity) pled guilty or nolo contendere to the criminal charges against
him, rather than allowing an individual state's ultimate disposition of
a case without entering a judgment of conviction to dictate the I.G.'s
course of action. As the ALJ pointed out, Congress determined that
parties who pled guilty (or nolo contendere) to program-related offenses
were as untrustworthy as those convicted after a trial. Decision C-74,
p. 8.
In view of the clear direction of the controlling statute, the
Petitioner's argument regarding the manner in which Texas law views
deferred adjudication is not persuasive. As the ALJ noted, the purpose
of the deferred adjudication and expungement provisions in Texas law was
to provide an individual with limited protection from further penalties
by Texas. See Decision C-74, pp. 9-10; citing Gonzalez de Lara v.
United States, 439 F.2d 1316 (5th Cir. 1971). Whatever its underlying
purpose, the state law cannot reasonably be read as altering an
individual's status under federal law.
Based on the foregoing analysis we affirm Judge Kessel's Findings and
Conclusions Numbers 7 and 8 to which the Petitioner had taken exception.
2. The Petitioner alleged that the I.G.'s exclusion of Dr. Zamora
was contrary to the applicable implementing regulations.
The Petitioner noted that in 1987 section 1128 of the Act was amended to
define the term "conviction." The Petitioner then cited 42 C.F.R.
1001.136 which provides that the I.G. "will reinstate a suspended party
whose conviction has been reversed or vacated." The Petitioner asserted
that, since the regulation had not been repealed or amended to reflect
the statutory definition, the I.G. was bound to reinstate Dr. Zamora
after the court vacated his conviction.
The I.G. asserted that since the Petitioner's argument was one which
could have and should have been raised before the ALJ, the Board should
not consider it here. Alternatively, the I.G. contended that the
Petitioner's argument is without merit. The I.G. noted (and we have
pointed out elsewhere in this decision) that the legislative history of
the statute clearly contemplated that a vacated conviction is one that
is overturned or vacated on appeal. The I.G. indicated that acceptance
of the Petitioner's plea of nolo contendere was based on the Court's
belief that the Petitioner had committed the charged offense. The
conviction was vacated on the Court's determination that the defendant
had satisfactorily fulfilled the conditions of his probation. The I.G.
distinguished this situation from a court's finding that an adjudication
of a defendant's guilt was in error so that it should be rendered void;
in that case, there would not be a "conviction" under the statutory
definition. Thus, the I.G. argued, dismissal of proceedings against the
Petitioner after probation cannot be considered a disposition on appeal.
Rather, only a reversal by an appellate court would require the I.G. to
reinstate an individual. I.G. Br., pp. 22-24.
The Appellate Division Guidelines provide in relevant part --
III. (c) . . . The Panel will not consider issues not raised
in the appeal, nor issues which could have been presented to the
ALJ but were not.
As we note in section III.(b) of the Guidelines, the standard which we
employ in reviewing a disputed factual issue is whether the ALJ's
decision is supported by substantial evidence in the record. The
standard of review which we use regarding a disputed issue of law is
whether the ALJ's decision is erroneous. Our process was not meant to
be one of de novo review. See 42 C.F.R. 498.80 - 498.95.
Clearly, the Petitioner's argument as to whether the I.G. followed the
regulation at 42 C.F.R. 1001.136 should have been raised before the ALJ.
Since this argument cannot be raised at this stage in the process, we do
not consider whether the Petitioner could avoid the statutory exclusion.
In any event, the I.G. is correct that the regulation does not apply.
Conclusion
Based on the foregoing, we affirm the five-year exclusion imposed on the
Petitioner.
_____________________________ Cecilia Sparks
Ford
_____________________________ Theodore J. Roumel
U.S. Public Health Service
_____________________________ Alexander G. Teitz
Presiding Board
// posted by dannoynted1 @ 4:52 AM 0 comments links to this post
Sunday, February 11, 2007
Although there is no bright-line rule defining conduct violative
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Jacobson v. Garaas, 2002 ND 181, 652 N.W.2d 918
[Go to Docket]
Filed Nov. 15, 2002
[Download as WordPerfect]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2002 ND 181
In the Matter of Disciplinary Action Against Jonathan T. Garaas, a Member of the Bar of the State of North Dakota
Paul W. Jacobson, Disciplinary Counsel, Petitioner
v.
Jonathan T. Garaas, Respondent
No. 20020103
Jonathan T. Garaas, Petitioner
v.
Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent
No. 20020113
Petitions for disciplinary review.
REPRIMANDED.
Per Curiam.
Paul W. Jacobson, P.O. Box 2297, Bismarck, N.D. 58502-2297, for petitioner.
Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, P.O. Box 6017, Fargo, N.D. 58108-6017, for respondent.
In re Garaas
Nos. 20020103 & 20020113
Per Curiam.
[¶1] Jonathan T. Garaas and Disciplinary Counsel have both petitioned for review of a hearing panel's report and order of reprimand, which found Garaas had violated the North Dakota Rules of Professional Conduct and ordered that Garaas be publicly reprimanded and pay costs of the disciplinary proceeding. We conclude Garaas has violated N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $7,312.42.
I
[¶2] Garaas has represented TAG Investments in lengthy and contentious litigation with Matrix Properties Corporation over a disputed option to purchase real estate. That litigation has spawned numerous appeals. See Matrix Properties Corp. v. JCG Investments, L.L.C., 2002 ND 99, 647 N.W.2d 706; Matrix Properties Corp. v. TAG Investments, 2002 ND 86, 644 N.W.2d 601; Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674; Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432; Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737. This disciplinary proceeding arose out of Garaas's conduct at post-judgment proceedings in the Matrix litigation occurring in November 2000 and January 2001.
[¶3] At a November 7, 2000, hearing on Matrix's motion to compel transfer of the real estate, Garaas made repeated assertions that opposing counsel was making false representations of fact and had lied to the court. Garaas at one point stated:
Your Honor, I cannot let it go by one more time because Mr. Spaeth just lied to you one more time. . . . That representation by Mr. Spaeth is an absolute falsehood and he can't get away with it anymore. . . . And we will never accept Mr. Spaeth's false representation in violation of the Canons and in violation of every concept of due process that I know.
[¶4] At status conference on January 2, 2001, Garaas argued the court lacked jurisdiction in the matter because there was an appeal pending in this Court. The trial judge asked Garaas if his client would sign deeds conveying the disputed property if ordered to do so by the court at a court-supervised closing scheduled for January 5, 2001. In responding to the court's question, Garaas suggested that the trial judge was placing himself "at risk":
There is a lot of things that are going to have to be resolved, and I guess frankly I have a question in my mind as to whether or not the Court wants to enter into a course of action that places the trial court judge and the State of North Dakota at risk. . . .
So when you ask me a question as to whether or not we are going to sign a deed, there are so many things that still have yet to be resolved that why would the Court want to put this Court and the State of North Dakota at risk when we are guaranteed to have another lawsuit, guaranteed to have another trial to determine whether or not there has been damages or a quiet title action and establish what the record is for this property.
[¶5] On January 5, 2001, the court held a "Court Overseen Closing" to convey the disputed property. At the outset of that proceeding, the trial court stated it was acting pursuant to this Court's December 12, 2000, opinion in Matrix Properties, 2000 ND 213, 622 N.W.2d 432, in which we summarily affirmed an earlier post-judgment order and directed the trial court "to order specific performance requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement." Garaas again argued the trial court lacked jurisdiction to order conveyance of the property, and asserted this Court had falsely represented the issues in the prior appeal:
The first issue was that the North Dakota Supreme Court has wrongfully identified the issue on appeal. Actually they made a false representation of what the issue was being appealed.
[¶6] At the January 5 hearing Garaas was allowed to argue at length, challenging jurisdiction of the trial court and whether Matrix had complied with the terms of the option. The court ultimately determined Matrix was prepared to tender payment of the purchase price and indicated it was TAG's "last chance" to execute deeds conveying the property or it would be judicially conveyed. The court then asked Garaas and his client, "Do you wish to comply with the order of the Court to convey this property?" After Garaas again reiterated his argument that Matrix had failed to comply with the option and the option had expired, the following colloquy occurred between Garaas and the court:
THE COURT: The Defendant -- the Defendant's counsel [Garaas] in the presence of the Court has informed the Court that they'll not comply with the Court's order. Proceed.
MR. GARAAS: Which Court order are you talking about, Your Honor?
THE COURT: The order to convey it's [sic] property.
MR. GARAAS: Which one was that, Your Honor?
THE COURT: The one they just made.
MR. GARAAS: At this point in time?
THE COURT: Yes.
MR GARAAS: On what legal basis, Your Honor?
THE COURT: Enough. Sit. Enough.
MR. GARAAS: On what legal basis? I only ask that this Court identify on what legal basis it acts, because my client has a right to know. My client has a right to due process of law, Your Honor.
THE COURT: Proceed.
MR. GARAAS: You will not answer my question, Your Honor?
THE COURT: Mr. Garaas, I've already put on the record that we're proceeding pursuant to the Supreme Court's directive of December 12th.
MR. GARAAS: And how does the court get around the fact that it isn't a final Supreme Court order and the mandate has not been returned to you and jurisdiction still is at the Supreme Court, Your Honor? How can this Court act in derogation of it's [sic] duties to honor the fact that jurisdiction is now at the Supreme Court level not back here. This Court can't act, Your Honor, on the basis of the December 12, 19 -- of the year 2000 decision of the Supreme Court. How can the Court act when it doesn't have jurisdiction based upon that order, Your Honor? My client would like to know.
THE COURT: The Court's been directed by the Supreme Court to proceed. The Supreme Court directs the District Court what to do. I am proceeding under that directive.
MR. GARAAS: Is there a directive that's different than the December 12, 2000, order, Your Honor? Has there been direct communication between the Supreme Court and this Court that is not of record and not reported on December 12th. Because there is no such directive other than the December 12th and that's not a final order. Is there a directive from the Supreme Court to this Court to proceed today that is not placed of record, Your Honor? Have you had telephone conversations with any member of the Supreme Court?
THE COURT: Mr. Garaas, of course not. But this now is getting to be ridiculous. You've tried these arguments now in front of eight different judges, five in the Supreme Court, Judge Erickson, this Court, Judge Webb. It's over now so we're gonna proceed. Go ahead.
MR. GARAAS: Has there been communications with any representative of the Supreme Court of North Dakota?
THE COURT: Sit down now, Mr. Garaas. Proceed.
MR. GARAAS: May I -- my client and I would like to know, Your Honor.
THE COURT: Mr. Garaas, this is the last time now before I ask you to be removed from the Court. We're gonna proceed with the hearing. Your partner will have to sit in your place. But this is beyond any appropriate measure of conduct for an attorney.
MR. GARAAS: I merely wanted to know what jurisdiction the Court was exercising, Your Honor.
THE COURT: Proceed.
[¶7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:
The Court's repeatedly heard arguments as to deficiencies in the Plaintiff's attempt to close this matter but these matters have been adjudicated or have no merit. The Defendants' arguments from the Court's perspective are for the purposes of delay. . . .
. . . .
This has been a case that's involved a lot of patience I guess on all parties involved. The Court's been disappointed in some of the conduct exhibited here with the way other officers of the Court have been treated, the way this Court and the Supreme Court has been referred to in these proceedings as doing or considering anything inappropriate.
[¶8] At the disciplinary hearing, the trial judge characterized Garaas's behavior as "threatening," "defiant," and "obstructionist," and stated "I didn't view him as attempting to help the Court resolve the matter on a legal basis." When asked about Garaas's comment that the judge might be putting himself "at risk," the judge testified he perceived it "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment."
[¶9] A petition for discipline was served charging Garaas with violations of N.D.R. Prof. Conduct 3.5(a), 3.5(b), 4.4, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel concluded Garaas's "at risk" comments and the lengthy colloquy with the trial court during the January 5 hearing violated the disciplinary rules. The hearing panel further concluded Garaas's statement that Mr. Spaeth had lied did not constitute a breach of N.D.R. Prof. Conduct 4.4, and that Garaas's statement that this Court had made a false representation, while improper, had not been pleaded as a basis for discipline. Taking into consideration substantial mitigating circumstances, the hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings in the amount of $7,312.42. Both Garaas and Disciplinary Counsel petitioned for review of the hearing panel's report and order of reprimand. We granted the petitions for review.
[¶10] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Garaas and Disciplinary Counsel timely filed petitions for review under N.D.R. Lawyer Discipl. 3.1(F)(1). This Court has jurisdiction under N.D.R. Lawyer Discipl. 3.1(F)(1).
II
[¶11] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the findings and conclusions of the hearing panel, but we do not act as a mere rubber stamp. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.
[¶12] Rule 3.1(F)(1), N.D.R. Lawyer Discipl., requires the petition for review of a hearing panel's order of reprimand to contain "a clear statement of the reasons petitioner believes the panel's decision is arbitrary, capricious, or unreasonable." That language is relevant only to our initial determination whether to grant the petition for review. If the petition is granted, and briefing and oral argument are ordered under N.D.R. Lawyer Discipl. 3.1(F)(1), we employ our traditional de novo review in determining whether discipline is warranted and the appropriate sanctions to be assessed. See Toth v. Disciplinary Board, 1997 ND 75, ¶¶ 10-11, 562 N.W.2d 744 (the "arbitrary, capricious, or unreasonable" standard under N.D.R. Lawyer Discipl. 3.1(D)(8) governs only the initial determination whether to grant leave to appeal from an informal disposition, and this Court will review the substantive evidence and the merits de novo on the record).
[¶13] Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 23; Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Each disciplinary case must be considered on its own facts to decide what discipline is warranted. Edwardson, at ¶ 9; Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.
III
[¶14] Disciplinary Counsel argues the hearing panel erred in concluding that Garaas's statements about this Court making false representations "were not part of the petition for discipline."
[¶15] The hearing panel did not explain the basis for its conclusion these statements were not part of the petition for discipline. The petition for discipline quoted Garaas's statements that this Court had "wrongfully identified the issue on appeal" and had "made a false representation of what the issue was being appealed." The petition alleged Garaas's conduct violated N.D.R. Prof. Conduct 8.4(e), which provides it is professional misconduct to engage in conduct that is a basis for revocation or suspension of a lawyer's certificate of admission, and N.D.C.C. § 27-13-01(1), which provides that an attorney shall maintain respect for courts of justice and judicial officers.
[¶16] Although there is no dispute that the petition alleges that Garaas made the statements about this Court, Garaas contends that the petition failed to specifically detail the statutes and rule that would make his conduct sanctionable. Garaas claims the pleading is defective because it fails to specifically enumerate N.D.C.C. § 27-14-02(3), which is a necessary middle step between Rule 8.4(e) and N.D.C.C. § 27-13-01(1).
[¶17] In order to place Garaas's argument in context, a brief overview of the interplay between the rule and statutes is helpful. Rule 8.4(e) provides that it is professional misconduct for a lawyer to "engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer's certificate of admission." Section 27-14-02(3), N.D.C.C., provides that a lawyer's certificate may be revoked or suspended if he willfully violates any of the duties of an attorney or counselor at law. Section 27-13-01(1), N.D.C.C., enumerates the duties of attorneys, and provides that every lawyer and counselor at law shall "[m]aintain respect for courts of justice and judicial officers." Thus, an attorney may be sanctioned for failing to maintain respect for the court.
[¶18] Garaas contends the petition failed to properly plead a violation based upon Garaas's statements because it did not specifically refer to N.D.C.C. § 27-14-02(3). Our rules for pleading in disciplinary proceedings are not so strict and arcane. Rule 3.1(E)(1), N.D.R. Lawyer Discipl., provides that the petition must be "sufficiently clear and specific to inform the lawyer of the alleged misconduct." In addition, N.D.R. Lawyer Discipl. 3.5(B) provides that, except as otherwise provided and insofar as appropriate, the North Dakota Rules of Civil Procedure apply in disciplinary proceedings. See In re Howe, 2001 ND 7, ¶ 7, 621 N.W.2d 361. Under the civil rules, a pleading is sufficient if it contains (1) a short, plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for the relief the pleader seeks. N.D.R.Civ.P. 8(a); Kaler v. Kraemer, 1998 ND 56, ¶ 7, 574 N.W.2d 588; In re Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992).
[¶19] Both N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a) adopt notice pleading, where the purpose is to place the party on notice as to the nature of the pleader's claim, and pleadings that indicate generally the type of claim that is involved are sufficient. See Estate of Hill, 492 N.W.2d at 296; Jablonsky v. Klemm, 377 N.W.2d 560, 565 (N.D. 1985). Pleadings are to be liberally construed to do substantial justice. See N.D.R.Civ.P. 8(f); Kaler, 1998 ND 56, ¶ 7, 574 N.W.2d 588; Estate of Hill, at 296. Under these liberal pleading rules, a pleading need not specifically allege every element of the claim. Kaler, at ¶ 7; Jablonsky, at 565.
[¶20] The petition for discipline in this case unambiguously placed Garaas on notice of the nature of the "claim" against him. The specific facts were alleged, including quotation of the exact statements alleged to have violated the rules. The petition further specified that Garaas's conduct violated N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e). Any doubt whether violation of a duty of an attorney under N.D.C.C. § 27-13-01 was a sanctionable offense is dispelled by the Comment to N.D.R. Prof. Conduct 8.4, which specifically enumerates N.D.C.C. § 27-13-01 as one of the statutes providing the basis for revocation or suspension of a lawyer's certificate of admission, and thus for sanctions under the rule. Furthermore, this Court has explicitly stated that failure to maintain respect for the court under N.D.C.C. § 27-13-01(1) will provide the basis for sanctions under N.D.R. Prof. Conduct 8.4(e). See In re Gronneberg, 2001 ND 158, ¶ 12, 634 N.W.2d 491.
[¶21] We conclude the petition adequately placed Garaas on notice of the nature of the allegations against him and satisfied the requirements of N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a).
IV
[¶22] There is no real factual dispute about Garaas's conduct. All of the alleged misconduct consisted of statements made in open court, and Garaas does not dispute the accuracy of the transcripts of what he said. The dispositive issue is whether Garaas's conduct constituted ethical violations. Garaas contends that his conduct during the hearings did not violate the disciplinary rules, but was merely zealous representation of his client.
[¶23] Garaas argues that his conduct, while perhaps at times impolite, was merely zealous representation of his client. "[A] lawyer is not always protected by following the client's specific directions." In re Boulger, 2001 ND 210, ¶ 27, 637 N.W.2d 710 (Sandstrom, J., concurring). Not every lawyer excess is justified by the mantra of zealous representation.
[¶24] The Comment to N.D.R. Prof. Conduct 3.5 explains:
The lawyer's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the lawyer's right to speak on behalf of litigants. . . . A lawyer can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Similarly, the Supreme Court of Minnesota has stated:
Respondent asserts he has a right, indeed an obligation, to represent his clients vigorously, aggressively, and zealously. To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.
In re Williams, 414 N.W.2d 394, 397 (Minn. 1987).
[¶25] There is a line of demarcation between zealous representation of a client and unethical conduct.
V
[¶26] Garaas argues the statements he made are protected under the First Amendment and he cannot be sanctioned for exercising his right to free speech. Relying upon Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), Garaas argues "an attorney may not be disciplined based solely on his/her speech unless such speech becomes so extreme as to become prejudicial to the administration of justice."
[¶27] Garaas has misread Gentile. While the Court concluded that a lawyer's out-of-court speech could be the basis for disciplinary sanctions if it creates a "substantial likelihood of material prejudice" in a pending case, see id. at 1074-75, the Court noted that a lawyer's free speech rights in a courtroom are even more limited:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.
Id. at 1071.
[¶28] The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding. Addressing Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:
An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.
In re Coe, 903 S.W.2d 916, 917 (Mo. 1995).
[¶29] The United States Court of Appeals for the First Circuit, addressing a lawyer's claim of free speech rights in the courtroom, noted:
A courthouse—and, especially, a courtroom—is a nonpublic forum. A courtroom's very function is to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure "that [the] courthouse is a place in which rational reflection and disinterested judgment will not be disrupted."
Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (citations omitted) (quoting Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir. 1995)).
[¶30] A lawyer's right to exercise free speech does not permit a lawyer appearing in a judicial proceeding in open court to call opposing counsel a liar, to threaten a judge with personal liability if he rules a certain way, to accuse an appellate court of false misrepresentation, or to engage in a lengthy, disruptive, belligerent, and disrespectful exchange with the court. We conclude that sanctioning Garaas for his statements during the post-judgment proceedings does not violate his right to free speech.
VI
A
[¶31] At the November 7, 2000, hearing, Garaas accused opposing counsel of lying to the court. Disciplinary Counsel argues this conduct violated N.D.R. Prof. Conduct 3.5(b) and 4.4.
[¶32] Rule 4.4, N.D.R. Prof. Conduct, requires that, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person." Rule 3.5(b), N.D.R. Prof. Conduct, states that a lawyer "shall not . . . engage in conduct intended to disrupt a tribunal." The commentary to Mod. R. Prof. Conduct 3.5(c), which is identical to N.D.R.Prof. Conduct 3.5(b), indicates that, "[a]lthough there is no bright-line rule defining conduct violative of Rule 3.5(c), disruptive conduct is commonly evaluated in light of the totality of the circumstances." American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 343 (3d ed. 1996).
[¶33] Garaas's conduct in accusing opposing counsel of lying to the court was reprehensible. See Johnson v. Johnson, 544 N.W.2d 519, 522 (N.D. 1996). Viewing this conduct in light of the totality of the circumstances, however, we do not conclude there was a violation of N.D.R. Prof. Conduct 3.5(b) or 4.4, and Disciplinary Counsel has not argued the conduct violated other provisions.
B
[¶34] At the January 2, 2001, status conference, Garaas warned the trial judge that he would be placing himself "at risk" if he continued with the proceedings and ordered Garaas's client to sign the deeds. Garaas's statement was a clear threat to sue the judge personally. At the disciplinary hearing, the trial judge testified he perceived Garaas's statements "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment." Rule 3.5(a), N.D.R. Prof. Conduct, states that a lawyer shall not "seek to influence a judge . . . by means prohibited by law." A judge must be free to determine cases based upon the evidence and applicable law, without threats of potential personal liability. See N.D. Code Jud. Conduct Canon 3(B)(2). Garaas's threat that the judge was placing himself "at risk" violated N.D.R. Prof. Conduct 3.5(a).
C
[¶35] At the January 5, 2001, hearing, Garaas stated that this Court had "made a false representation of what the issue was" in an earlier appeal. Section 27-13-01(1), N.D.C.C., provides that a lawyer must "[m]aintain respect for courts of justice." As previously discussed, a violation of a lawyer's duty under N.D.C.C. § 27-13-01(1) is sanctionable under N.D.R. Prof. Conduct 8.4(e). While a lawyer is certainly free to register his disagreement with a court's ruling, he must do so without showing disrespect to the court. Garaas's statement that this Court made a "false representation" carries a connotation of intentional wrongful conduct. We conclude Garaas's statement crossed the line beyond criticism to disrespectful assertion of wrongdoing by the Court, and constitutes a violation of N.D.R. Prof. Conduct 8.4(e).
D
[¶36] During the January 5 hearing, Garaas also engaged in the lengthy colloquy with the court in which Garaas repeatedly questioned the court on what basis it was proceeding and accused the court of having ex parte contacts with the Supreme Court. Garaas's conduct can be characterized as disruptive, belligerent, and disrespectful. Rule 3.5(b), N.D.R. Prof. Conduct, provides a lawyer shall not "engage in conduct intended to disrupt a tribunal." Under N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e), a lawyer is also prohibited from engaging in conduct that fails to maintain proper respect for the court. Garaas's conduct was disruptive, belligerent, and disrespectful to the court and violated N.D.R. Prof. Conduct 3.5(b) and 8.4(e).
VII
[¶37] Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception. In the final analysis, we will not allow this lawyer to drag to a new low the baseline of acceptable courtroom conduct. Garaas's conduct went beyond acceptable zealous representation and constituted violations of the disciplinary rules.
[¶38] We have determined Garaas violated various disciplinary rules by his conduct at the post-judgment proceedings. The hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings. The hearing panel found substantial mitigating factors on Garaas's behalf.
[¶39] We have considered the nature of Garaas's conduct, the multiple violations, Garaas's prior disciplinary record, and the substantial mitigating factors. We conclude that under the circumstances of this case, a public reprimand and payment of costs are appropriate sanctions.
[¶40] We order that Garaas be publicly reprimanded for violating N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e). We further order that Garaas pay the costs of the disciplinary proceedings in the amount of $7,312.42.
[¶41] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
James H. O'Keefe, S.J.
[¶42] The Honorable James H. O'Keefe, Surrogate Judge, sitting in place of Kapsner, J., disqualified.
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