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The Texas Court of Criminal Appeals, which has had the image of being a friend to prosecutors, showed its even-handedness this term. Williamson County District Attorney John Bradley says the court’s decisions were “very evenly distributed” in terms of outcomes that favor the defense and prosecution. Although a prosecutor sought review in a case that ended up being one of the CCA’s biggest decisions of the term, a number of defense lawyers say the unanimous June 28 ruling in State v. Cullen could prove beneficial to defendants. “It’s more important to the defense bar than anybody else,” Austin criminal-defense solo David Schulman says of the court’s ruling in Cullen. In that case, Judge Sarah Garrahan-Moulder of Bexar County Court-at-Law No. 4 granted Christopher Cullen’s pretrial motion to suppress statements and evidence that prosecutors contended supported a charge of driving while intoxicated against Cullen. Garrahan-Moulder declined the state’s request that she issue findings of fact and conclusions of law explaining her reasons for suppressing the evidence. The state appealed to the CCA, after the 4th Court of Appeals in San Antonio affirmed the trial court’s decision on the motion to suppress after finding that there was no state law requirement for a judge to file findings of fact and conclusions of law. The CCA reversed the 4th Court. Under the CCA’s reasoning in Cullen, a trial court must enter findings of fact and conclusions of law when asked to do so by the losing party. “It’s going to make appellate review a whole lot easier for the courts,” says CCA Judge Lawrence Meyers, author of the opinion in Cullen. Kevin Yeary, the Bexar County assistant district attorney who argued Cullen before the CCA, says of the opinion, “It brings the light of day to the reasons behind judges’ rulings.” Yeary says that, in the long run, the decision will benefit prosecutors more than it benefits people accused of crimes. “I believe that justice is going to be on the side of the prosecution in most cases.” But Bradley says he believes prosecutors will regret the ruling, because they will need to draft most of the findings of fact and conclusions of law for the trial judges. “It’s going to be a ton more work for the prosecution,” Bradley says, noting that the state usually wins on motions to suppress evidence. Mark Stevens, a San Antonio solo who represents Cullen, says the ruling benefits the defense bar more than the prosecution, because defendants lose on about 90 percent of all motions to suppress. Cullen will no longer allow reviewing courts simply to assume what the trial court’s reasons for denying a motion to suppress were. “I think it’s going to be malpractice for a [defense] lawyer not to request findings of fact when he loses on a motion for suppression,” Stevens says. “The message is clear for defense attorneys who want to ensure a good record for an appeal: Request findings of fact for the trial judge’s decision, and object if you don’t get them,” says Charles Bubany, a Texas Tech University School of Law professor who teaches criminal law and criminal procedure. As Meyers notes, the concept of requiring a trial court to state its essential findings when granting or denying a motion to suppress is not new. CCA Judge Paul Womack suggested in his concurring opinion in 2000′s Ross v. State the need for a rule that makes it an independent ground for reversal if a trial court refuses, over objections, a timely request for findings of fact. Prosecutors may have another reason to be wary of the Cullen ruling. Stevens predicts that clever defense lawyers will try to expand Cullen to require trial courts to write findings of fact and conclusions of law when they find defendants guilty in bench trials or when the courts render decisions admitting or excluding evidence. Campaign Trail Politics provided a distraction for three CCA judges prior to the March Republican primary. Presiding Judge Sharon Keller defeated Judge Tom Price to claim the Republican nomination in the race for the CCA’s top job. This was the second time Keller and Price ran against each other; Keller also defeated Price in the 2000 GOP primary when she first ran to become presiding judge of the court. Several CCA judges say the political contest between Keller and Price did not affect the court. “No animosity spilled over into conference,” Judge Mike Keasler says. While Keller and Price were campaigning for the presiding judge’s position, Judge Charles Holcomb was engaged in a court battle to keep his name on the ballot. One of Holcomb’s Republican primary challengers, state Rep. Terry Keel, R-Austin, pointed out deficiencies in the petitions that Holcomb and another candidate, Dallas County Criminal District Court No. 3 Judge Robert Francis, submitted to GOP officials. Although 250th District Judge John Dietz of Austin ruled against Holcomb and Francis in the resulting litigation, the Texas Supreme Court held on Jan. 27 in In Re: Holcomb and In Re: Francis that the two challenged candidates should have an opportunity to cure the petition deficiencies. Holcomb, who went on to win the Republican nomination, says the episode presented him with more of a financial distraction than a problem in keeping up with his caseload � meaning it cost him quite a bit in legal fees to get his name back on the ballot. The CCA judges wrote approximately the same number of opinions in the most recent term � which began on Sept. 1, 2005, and ends Aug. 31 � as it did in the 2004-2005 term. According to statistics provided by the clerk’s office for the court, the CCA wrote 468 opinions during the 2005-2006 term, compared to 458 for 2004-2005. However, the number of signed majority opinions dropped from 166 in the previous term to 147 in 2005-2006. Referring to the CCA’s caseload, Holcomb says, “We’ve got this huge pile here, and we keep nibbling away at it.” [ See the chart below.] Louise Pierson, clerk of the court, says that, as of Aug. 23, the court had disposed of 9,121 cases � a figure that doesn’t include motions and other matters the court considers. One of the cases the CCA once again did not address in this term is Ex Parte Gonzales, a habeas corpus writ petition that a death row inmate filed in January 2000. According to the clerk’s office, Gonzales is the oldest case pending at the court. In 1997, a San Antonio jury found Gabriel Gonzales guilty of the 1994 murder of a pawn shop owner during a robbery. Susan Reed, who was then judge of the 144th District Court and is now the criminal district attorney in Bexar County, presided over the trial. San Antonio solo Michael Gross, Gonzales’ attorney, says the CCA granted review on Gonzales’ assertion that his trial counsel failed to put on mitigating evidence during the punishment phase of the trial. Gonzales also raised an issue about Reed allowing him to be shackled during the trial, Gross says, adding that the CCA could act on any issue. Gross says the last time he heard from the CCA on Gonzales was in April 2000, when the court granted review of the habeas petition. “That’s six years of no adverse ruling, at least,” Gross says. “I’ve got high hopes they’ll rule in our favor.” Keller, the CCA’s presiding judge, declines comment. “I am not allowed to discuss the reasons for the delay,” she says. San Antonio solo Raymond Fuchs, a former assistant criminal district attorney who was assigned to the case as a special prosecutor, did not return a phone call seeking comment before presstime on Aug. 24. Term Trends Bubany says the CCA’s decisions in this term exhibit application of the rules for preservation of error on appeal and a heavy emphasis on harm analysis of those issues that are in fact determined to be adequately preserved for appeal. The March 1 decision in Ex Parte Smith, a death penalty habeas corpus case that the CCA heard on remand from the U.S. Supreme Court, is a prime example of the court’s approach, he says. At issue in the case is the jury nullification instruction the trial court gave in the punishment phase of Laroyce Smith’s 1991 trial for the robbery and murder of a Taco Bell clerk. The CCA found in April 2004 that the trial court’s instruction � that the jury should consider any evidence that, in the jury’s opinion, was mitigating � did not constitute constitutional error. But the 7-2 Supreme Court held in November 2004 that the instruction was constitutionally inadequate, even though it did allow the jury to consider all of Smith’s mitigating evidence. The court found that the instruction required the jury to sentence Smith to death unless jurors answered “no” to one of the two special issues related to deliberateness and future dangerousness, according to the per curiam opinion. But when the Supreme Court remanded the case to the CCA, the CCA found a way to reach the same outcome it had reached in its initial decision. “In a way the CCA just circumvented what the U.S. Supreme Court said in that case,” says State Prosecuting Attorney Matthew Paul. To do that, Paul says, the CCA used the state’s harmless-error law. In a 7-1 decision, with Meyers not participating, the CCA denied Smith habeas corpus relief. Judge Cathy Cochran wrote the majority opinion, in which the CCA held that, assuming the statutory special issues were not wholly sufficient to allow the jury to give “full consideration and full effect” to Smith’s mitigation evidence, Smith failed to show that the unobjected-to jury-charge error caused him “egregious harm.” Under the standard the CCA set in 1984′s Almanza v. State, if a defendant fails to object to the jury charge, he must show the error caused him such egregious harm that he did not have “a fair and impartial trial.” Holcomb dissented in Smith, writing, “Because our holding was reversed by a higher court, a court which addressed the merits and found our holding on the merits to be erroneous, we may not now remedy the problem by failing to address the merits, and instead, decide that the substantive complaint was not preserved.” The CCA could see Smith again. Jordan Steiker, co-director of the Capital Punishment Center at the University of Texas School of Law, says he has filed a petition with the Supreme Court for a writ of certiorari on Smith’s behalf. Steiker says the CCA originally declined to impose any kind of procedural obstacle to Smith’s claim. “It’s our position that it’s too late in the day for the CCA to impose any procedural obstacle that it previously declined to apply.” In one of several actual-innocence cases the CCA considered during the term, the court vacated the judgment against Brandy Del Briggs in connection with the 1999 death of her 2-month-old son. The CCA did not grant relief in Ex Parte Briggs based on the actual-innocence claim. Instead, the court’s holding stems from Briggs’ contention that she received ineffective assistance of counsel. According to the majority opinion, Briggs’ trial attorney threatened to withdraw because she paid him only $10,400 of his quoted $15,000 fee and also stated that he could not go to trial without money to hire experts. Briggs pleaded guilty to injury to a child without a recommendation by the state, and the 232nd District Court in Houston sentenced her to 17 years in prison. Just because trial counsel was not paid his entire fee did not obviate his duty to investigate the case, the CCA held in Briggs. “If any reasonable attorney appointed to represent an indigent would be expected to investigate and request expert assistance to determine a deceased infant’s cause of death, a privately retained attorney should be held to no lower standard,” Cochran wrote for the majority. Cochran’s opinion “absolutely resonated,” says Austin solo Keith Hampton. “It was as if the writer understood what the defense lawyer’s role is.” In her dissenting opinion in Briggs, Keller wrote: “We must assume that applicant pled guilty because she is guilty.” Prosecutors claimed one of their biggest victories of the term on June 21, when the CCA held in Gonzalez v. State that, under the doctrine of forfeiture by wrongdoing, convicted capital murderer Ray Gonzalez, by his own wrongful act, forfeited his Sixth Amendment right to confront the woman he had shot multiple times. Wes Mau, Hays County’s first assistant criminal district attorney, says the CCA’s decision in Gonzalez limits the effect of the U.S. Supreme Court’s decision in Crawford v. Washington (2004) that, where testimonial statements are at issue, a defendant must be able to confront a witness. Mau says prosecutors have been concerned that long-standing hearsay exceptions would no longer apply. The Gonzalez ruling shows that Crawford does not have the breadth that many thought it would, he says. Bradley calls the Gonzalez ruling “a huge, huge development. It will probably make it even easier to get hearsay statements in than before Crawford.”
Court of Criminal Appeals Caseload 2005-2006 Term
Judge Signed Per Curiam Concur Dissent Concur/Dissent Total
Sharon Keller 16 30 12 12 0 70
Lawrence Meyers 18 20 1 12 0 51
Tom Price 22 12 1 3 0 38
Paul Womack 11 20 7 7 0 45
Cheryl Johnson 20 22 8 3 1 54
Mike Keasler 8 21 0 0 0 29
Barbara Hervey 16 27 10 4 0 57
Charles Holcomb 14 39 0 4 0 57
Cathy Cochran 22 34 8 3 0 67
Total 147 225 47 48 1 468
Source: Texas Court of Criminal Appeals Clerk’s Office. Numbers are for fiscal year ending Aug. 31, 2006.
Texas Lawyer, August 2006

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