In an unusual move on Dec. 14, the Texas Court of Criminal Appeals withdrew an opinion in a case involving the death of an infant after the judge who considered the appeal in a state habeas corpus proceeding claimed the opinion misquoted her findings.
“We withdrew the opinion to correct a factual error and hope to reissue a corrected opinion soon,” says CCA Presiding Judge Sharon Keller.
Judge Mary Lou Keel, of Houston’s 232nd District Court, notified the CCA of the error in a letter sent after the court posted its opinion online in Ex Parte Brandy Del Briggs. Keel noted in the letter that the opinion, written by CCA Judge Cathy Cochran, seems to quote Keel’s findings. “Instead, however, the higher court quotes proposed findings that the court never adopted,” Keel wrote in the letter.
Keel and Cochran decline comment because the appeal in Briggs is still pending.
“I think it’s a great injustice,” says Charles Portz, who represents Briggs in the habeas proceeding.
Portz, a partner in Houston’s Portz & Portz, notified Briggs on Dec. 14 that the CCA overturned her conviction but had to notify her the following day that the court withdrew its opinion.
In an 8-1 decision, with Keller dissenting, the CCA had reversed Briggs’ conviction for injury to a child in connection with the death of her son, Daniel Lemons, in May 1999.
The error in the opinion doesn’t affect the CCA’s reason for reversing the conviction. Lynn Hardaway, the Harris County assistant district attorney who currently handles the case in the habeas proceeding, says the CCA granted relief based on Briggs’ allegation of ineffective assistance by her trial counsel. Hardaway says the error in the opinion related to Briggs’ claim of newly discovered evidence.