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The wheels of justice sometimes turn slowly at the Texas Court of Criminal Appeals; in some cases, it’s taking more than two years for the court to render a decision after it’s agreed to consider a petition for review. Fifty-four petitions have been pending for a year or more without the CCA deciding whether to grant or deny review, the court’s records show. “None of these cases has gotten lost,” says CCA Presiding Judge Sharon Keller. “They’re pending for a reason.” Keller says a ruling may be delayed because five judges can’t agree or because of turnover on the court. Former Presiding Judge Michael J. McCormick and Judge Steve Mansfield left in January, and Judge Sue Holland leaves next month. Internal rules adopted by the court in 1997 set deadlines for the judges to circulate draft opinions in cases they’ve been assigned. If a judge doesn’t circulate an opinion within 120 days, another judge can take the case and write an opinion, Keller says. Four opinions are being circulated in one of the 16 cases that’s been stalled at the CCA for two years or more, she says. As for the 54 petitions still in limbo, Keller says the CCA may hold up a decision to grant or deny review until it rules in a similar case. A decision also can be delayed at that stage, she says, because the judges can’t agree on whether to consider a case. State Prosecuting Attorney Matthew Paul says the CCA moves faster on cases than it did in the past. “Compared to 10 years ago, the court is a lot more up to date,” Paul says. But criminal defense attorneys and prosecutors who are awaiting rulings find it difficult to understand why it takes the CCA so long to decide some cases. A case in point: The court agreed in March 1999 to review the case of Sean Smith, who alleges in his petition that he was convicted of murder after Randall County prosecutors reneged on a plea bargain agreement. CCA records show that Smith v. State was submitted to the court on June 23, 1999, and remains pending. Smith appealed his conviction for murder in the 1990 beating death of 72-year-old Hilton Raymond Merriman by a group of teen-age boys who broke into his rural Randall County mobile home. “I never anticipated waiting this long,” says Canyon solo William Kelly III, who represents Smith. “We’re baffled,” says Randall County Criminal District Attorney James Farren, who contends the CCA ruled on a similar issue in Graham v. State on June 2, 1999 — three weeks before Smith’s case was submitted to the court. In his petition, Smith asked the CCA to uphold a deal he struck with Randy Sherrod, Randall County’s former criminal district attorney, to testify against his co-defendants. Sherrod dismissed a capital murder charge against Smith in 1993. Farren, who took office in 1995, says he indicted Smith for murder because he wasn’t truthful in his testimony. Farren also says that 251st District Judge Pat Pirtle, the trial judge, never approved Smith’s agreement with Sherrod. A Randall County jury convicted Smith in 1997 and assessed him 10 years’ probation and a $10,000 fine — a sentence that has been abated while his case is on appeal, Kelly says. Kelly contends that the agreement that Smith had with Sherrod is binding, but Farren disagrees. In Graham, the CCA held that a defendant can’t rely on a prosecutor’s agreement to grant immunity from prosecution that has not been approved by a court. Farren says the facts in Graham are the same as in Smith and questions why the CCA is taking so long. Although puzzled by the delay, Kelly says he wants the court to be thorough because the opinion could have an impact on plea bargains in Texas. Harris County prosecutors and Houston defense attorney Michael McEnrue have been waiting even longer for a ruling in Fielder v. State, the oldest unresolved case pending at the CCA, according to the court’s online records. The court agreed to consider Leroy Fielder’s petition in November 1997. “I really don’t have a feel for what’s happening or why,” says McEnrue, a shareholder in Houston’s Mosier & McEnrue. Alan Curry, a section head in the appellate division of the Harris County District Attorney’s Office, says he doesn’t know why the Fielder case is taking so long because delays in rulings are “relatively rare,” especially in one-issue cases. In 1996, Fielder was convicted of selling less than one gram of cocaine, a state felony punishable by up to two years behind bars. In his petition filed with the CCA, Fielder alleged that his sentence was boosted to six years’ imprisonment based on an invalid prior conviction. Fielder alleged in the petition that the 208th District Court in Harris County erroneously entered a “deadly weapon” finding in its 1990 judgment against him on a voluntary manslaughter charge. Since the CCA’s 1985 decision in Polk v. State, a trial court has no authority to make an affirmative finding regarding the use of a deadly weapon in a jury trial, the petition alleged. The petition also alleged that the previous conviction is void and that the “enhancement of any sentence with that affirmative finding was also clearly void.”

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