The CCA did not consider Richard’s pleadings, and the Supreme Court denied Richard’s final stay motion shortly before he was executed. [See "Out of Time," Texas Lawyer, Nov. 19, 2007, page 1.]

Richard’s execution, hours after the nation’s highest court had agreed to consider the lethal injection issue he had tried to raise, sparked an immediate outcry against the CCA and Keller. Stories about Richard’s execution appeared not only in Texas newspapers but also in The New York Times and USA Today.

Ultimately, on April 16, the Supreme Court rejected the challenge to the lethal injection protocol raised by the two Kentucky men in Baze, and executions resumed in Texas and the rest of the country. But criticism of the CCA over Richard’s case has continued.

“It certainly made it [the CCA] look bad nationally,” says Texas Civil Rights Project director James C. Harrington of Austin, who coordinated 25 attorneys’ filing of a complaint against Keller with the State Commission on Judicial Conduct in October 2007. The attorneys alleged in their complaint that Keller denied Richard access to the courts and due process, which led to his execution.

Also in October 2007, the Texas Criminal Defense Lawyers Association (TCDLA) and the National Association of Criminal Defense Lawyers filed complaints against Keller with the judicial conduct commission. The complaints remain pending before the commission.

Confidentiality requirements prevent Seana Willing, the judicial conduct commission’s executive director, from discussing the case. “I can’t confirm or deny that complaints were filed against Sharon Keller,” Willing says.

Because of the Richard case, about 350 attorneys filed a petition with the CCA in October 2007, asking the court to create an electronic filing system. The court established an e-mail link for emergency filings, effective Nov. 6, but CCA Judge Cathy Cochran said the court began developing the new system before the attorneys filed their petition. [See "CCA Creates E-Mail Filing System for Urgent Pleadings," Texas Lawyer, Nov. 12, 2007, page 5.]

In an interview, Cochran says that what happened in the Richard case brought the need for an emergency filing system to the court’s attention. “Although we were concerned about the public debate, that is not why we acted,” Cochran says.

The CCA recently adopted another new rule aimed at preventing last-minute filings on behalf of death-row inmates, but Cochran says the Richard case was not the impetus for that action. Cochran says Miscellaneous Rule 08-101, which the CCA adopted June 23, came about because of late filings in a number of death penalty cases after executions resumed in the wake of the Supreme Court’s ruling in Baze.

Modeled after the 5th U.S. Circuit Court of Appeals’ Local Rule 8.10, the CCA’s new rule requires inmates facing imminent execution to file motions for a stay, subsequent applications for a writ of habeas corpus and other motions related to death sentences at least 48 hours before the warrant for their execution takes effect. Under the rule, an attorney who files an untimely petition must attach a detailed explanation statement under oath as to the reasons why the attorney could not file the pleadings in a timely manner.

The new rule also requires the CCA to sanction a lawyer who fails to attach a sworn, detailed explanation to an untimely filing or who fails to adequately justify the necessity for an untimely filing. Possible sanctions under the rule include a referral to the State Bar of Texas chief disciplinary counsel, contempt of court, removal from the list of attorneys eligible for appointment to represent death-row inmates in habeas corpus writ applications or restitution of the opposing counsel’s costs incurred because of the untimely filing.

Cochran says the rule is not meant to prevent all last-minute filings in death penalty cases. “If you have a good reason for filing last minute, that’s quite all right,” she says.

Although the Richard case prompted the CCA to adopt the e-mail filing system, Williamson County District Attorney John Bradley says the ruckus over what happened in that case has not impacted the CCA’s rulings. Bradley says that after the Supreme Court issued its decision in Baze, the CCA resolved lethal injection challenges raised in two Texas cases on procedural issues. In June 9 decisions in Ex Parte Alba and Ex Parte Chi, the CCA held that challenges to the lethal injection mixture were not cognizable in habeas corpus writ applications.

“I think those cases suggest the court has not been intimidated by all the clamor and hoopla,” Bradley says.

However, the CCA produced few major decisions during the 2007-2008 term. “It was kind of uneventful,” says State Prosecuting Attorney Jeff Van Horn.

The term did provide the CCA its first opportunity to examine a 2003 statute, Texas Penal Code §1.07(a)(26), which defines an “individual” to include an unborn child. The killing of a child younger than 6 is a capital murder offense. The CCA held the Penal Code provision constitutional in Nov. 21, 2007′s Lawrence v. State and Feb. 13′s Flores v. State, both capital murder cases. Terence Lawrence is serving a life sentence for shooting to death his pregnant girlfriend. Gerardo Flores received a life sentence for stomping on the stomach of his pregnant girlfriend, causing the death of unborn twin boys.

Keller wrote for the unanimous court in Lawrence that the Legislature “is free to protect the lives of those whom it considers to be human beings,” and that such a policy decision “should not be subject to judicial second-guessing.”

Edward L. “Chip” Wilkinson, an assistant district attorney in the appellate section of the Tarrant County District Attorney’s Office, says the CCA distinguished Lawrence and Flores from the U.S. Supreme Court’s landmark 1973 decision in Roe v. Wade, which struck down Texas abortion laws and made abortion legal around the country.

As Keller noted in Lawrence, the reasoning that the Supreme Court articulated in Roe for affording substantive due process to a woman’s decision to have an abortion presupposes that a woman wants to have an abortion. “Only then will a statute implicate a woman’s liberty interest in exercising the choice to do so,” Keller wrote.

But, as noted in the opinion, Lawrence involves no such liberty interest, and arguments that there is no compelling state interest for §1.07(a)(2) or that there was no evidence of the fetus’ viability are not applicable against a statute that prohibits a third party from causing the death of a woman’s unborn child against her will.

According to the majority opinion in Flores, also written by Keller, Flores argued, among other things, that §1.07(a)(26) violates constitutional equal protection and due process requirements in his case, because he could be prosecuted for the death of the unborn twins, but his girlfriend could not. Texas Penal Code §19.06 exempts a pregnant woman and health-care providers from prosecution if a fetus’ death is the result of an abortion.

But Cochran wrote in a concurring opinion in Flores that an unresolved issue is whether the failure to apply the §19.06 exemption to the capital murder statute might violate the equal protection or due process rights of someone who assisted a pregnant woman in obtaining an abortion or inducing a miscarriage. But, as Cochran noted in her opinion, that issue was not directly before the CCA in Flores.

Austin solo David Schulman says Cochran raised a valid point. “Even though the woman can’t be prosecuted [for terminating a pregnancy], someone who helps the woman probably could,” Schulman says. “In my mind, it’s just a question of time.”

In her concurring opinion in Lawrence, CCA Judge Cheryl Johnson also cited another potential future issue: What if someone murdered a woman without realizing she was pregnant?

“In such a case, the statute may be unconstitutional as applied, because the defendant did not have actual knowledge of the pregnancy, and could not, therefore, have intended the death of the fetus,” Johnson wrote.

Factual Sufficiency

The CCA’s term was a mixed bag for Texas prosecutors.

State prosecuting attorneys’ 12 year effort to persuade the CCA to overrule its 1996 decision in Clewis v. State ended with the June 25 decision in Grotti v. State. In its 8-1 decision in Grotti, the CCA affirmed a court of appeals’ reversal of Dr. Lydia Grotti’s conviction of criminally negligent homicide for placing her finger over the breathing tube of a patient who died. Also in Grotti, the CCA stood by the Clewis factual sufficiency standard that intermediate courts of appeal use to analyze whether a verdict is “manifestly unjust, shocks the conscience or clearly demonstrates bias.”

Texas Criminal Defense Lawyers Association president Rick Hagen, owner of Jackson & Hagen in Denton, says, “In Grotti, the court spoke very clearly that they’re not going to overrule Clewis. That battle is over now.”

On Sept. 10, the CCA denied the state’s petition for rehearing in Grotti. Van Horn, the state’s prosecuting attorney, says the CCA also granted the state’s petition for discretionary review in Martin v. State on Sept. 10 but indicated that the court would not consider the state’s Clewis factual-sufficiency argument.

“Until something significant happens, we won’t be pursuing it [the overruling of Clewis] anymore,” Van Horn says.

In another case that one prosecutor finds alarming, the CCA addressed jury instructions when there is a question about whether a confession is voluntary. Bradley says the CCA’s unanimous decision in Oursbourn v. State is going to have a “catastrophic effect on how we litigate cases.”

As noted in the CCA’s opinion, written by Cochran, the court held that when evidence raises a question about the voluntariness of a defendant’s statement to police, the trial judge must provide the jury instruction on the law pertaining to such a statement. The CCA further held that if the defendant fails to request the statutorily requested instruction, an appellate court reviews the error only to determine whether the defendant suffered “egregious harm.”

Cochran wrote in Oursbourn that raising a question about the voluntariness of the defendant’s statement triggers a requirement in Texas Code of Criminal Procedure Article 38.22(6) for the trial judge to hold a hearing, without the jury present, to decide whether the confession was voluntary. According to the opinion, the trial judge must provide an instruction that if the jury has a reasonable doubt about whether the confession was voluntary, the jury must ignore the confession.

Bradley says the opinion allows juries to act as judges and to impose their personal understanding of the word “voluntary” on decisions. He says judges understand that the voluntariness of a confession hinges on whether the defendant was coerced to make a statement, but jurors may not have the same understanding of voluntariness.

“Frankly, it’s an issue the Legislature needs to revisit,” Bradley says.

Hagen, the TCDLA president, says the CCA handed down a decision significant to trial lawyers in Jan. 16′s Fischer v. State. Decided on a 5-4 vote, Fischer presented the court with a novel question in Texas evidentiary law: Are statements that a law enforcement officer dictated into his patrol car’s videotape as he observed someone suspected of driving while intoxicated admissible at trial as a present-sense impression exception to the hearsay rule under Texas Rule of Evidence 803(1)?

The CCA held such statements inadmissible.

“This calculated narrative in an adversarial setting was a ‘speaking offense report,’ ” Cochran wrote for the majority.

Wilkinson, the Tarrant County ADA, found some good news for prosecutors in the CCA’s July 2 decision in State v. Barbernell, a DWI case. According to the opinion written by Judge Mike Keasler, a unanimous CCA held in Barbernell that the definitions of “intoxicated” in Texas Penal Code 49.01(2) were evidentiary and therefore do not have to be alleged in the charging instrument. The decision overturns 1991′s State v. Carter, in which the CCA held that a charging instrument was insufficient, because it failed to allege which definitions of intoxicated and which types of intoxicant the state would seek to prove at trial.

Under Barbernell, prosecutors no longer have to allege the “manner and means of intoxication” in the charging instrument, Wilkinson says. “That makes our life simpler.”



Inmate Trust Accounts on High Courts’ ’09-’09 Dockets

Inmates upset that trial courts have ordered the Texas Department of Criminal Justice (TDCJ) to withdraw money from their prison trust accounts to pay court costs, without providing them due process, have asked the state’s top two courts to step in.

In cases pending at the Texas Supreme Court and the Court of Criminal Appeals, inmates complain that they were not given notice or a chance to speak out before their money was taken. The Supreme Court will consider the issue Nov. 13, when Harrell v. State is set for arguments before the court. The CCA has been wrestling with the issue since June 4, when the court heard arguments in In Re: Johnson.

In 1993, the Texas Legislature passed Government Code §501.014(e), which requires TDCJ officials to withdraw money from an inmate trust fund to pay, among other things, court costs assessed against an inmate. To make sure inmates pay those costs, the Legislature passed Texas Code of Criminal Procedure Art. 103.0033 in 2005. That statute requires large municipalities and counties to improve on collecting court costs, or they will forfeit certain fees that they retain from the revenue they collect. Inmates have filed suits around the state in response to trial court orders requiring the TDCJ to withdraw money from their prison trust accounts to pay the court costs.

Johnson is before the CCA on a petition for writ of mandamus that 54th District Judge Matt Johnson of Waco filed in February. In his petition, Johnson asks the CCA to compel Waco’s 10th Court of Appeals to withdraw its mandamus order against Johnson in an inmate trust fund case, In Re: Goad. In July 2003, Stevin Frank Goad pleaded guilty to two indictments charging him with seven counts of indecency with a child. In September 2006, the 54th District Court ordered the TDCJ to withdraw funds from Goad’s trust account to pay court costs. In 2007, Goad petitioned the 10th Court for a writ of mandamus to compel Johnson to withdraw the order, and the 10th Court conditionally granted that petition in January. [ See "Trial Judge Seeks Mandamus Against 10th Court in Inmate Suit," Texas Lawyer , March 31, 2008, page 1.]

As noted in inmate Walter E. Harrell’s brief to the Supreme Court, Harrell appealed the 121st District Court’s 2006 order to TDCJ to withdraw money from his trust account, but Amarillo’s 7th Court of Appeals dismissed the appeal “for want of jurisdiction” in 2007. Harrell petitioned the Supreme Court for review.

An overarching question in the cases is whether a trial court should issue an order to withdraw funds from an inmate’s trust account as part of the criminal proceedings or in separate civil proceedings. State intermediate courts of appeals have disagreed on that issue.

In January 2007, a unanimous 6th Court of Appeals in Texarkana held in Abdullah v. State that the state should have initiated garnishment proceedings, as permitted under Texas Civil Practice & Remedies Code §63.007(a), to withdraw money from an inmate’s trust account.

In a 2-1 decision in June 2007′s In Re: Keeling, the 10th Court classified the court order for withdrawal of money from an inmate’s trust account as a criminal proceeding and held the order void because it was issued without notice to the inmate. The 10th Court based its decision in Goad on the Keeling decision.

But 10th Court Chief Justice Tom Gray wrote in his dissenting opinion in Keeling that the majority erroneously docketed the case as a criminal proceeding, which it is not. “The process for garnishing an inmate’s trust account is a civil proceeding,” Gray wrote.

Jason Bujnosek, assistant Terry County attorney who will argue for the state in Harrell, says, “It’s a criminal action.”

The state argues in its brief to the Supreme Court that the court costs and attorney fees that the 121st District Court assessed against Walter E. Harrell stem from criminal actions, Harrell’s 1997 and 2003 convictions on drug charges.

But James C. Scott, a trial associate with Gardere Wynne Sewell in Dallas, who represents Harrell pro bono, says the 121st District Court already adjudicated Harrell for failing to follow the law.

“That’s not what’s at issue now,” Scott says. “We think it’s a civil case.”

Harrell argues in his brief to the Supreme Court that the 121st District Court chose to garnish Harrell’s trust account without following the garnishment procedures in the Civil Practice & Remedies Code. Those procedures include providing notice before the taking of an individual’s property.

Bujnosek says the 121st District Court now gives notice to defendants at the time of conviction that withdrawals will be made from their prison trust accounts to pay any court costs assessed by the court.

McLennan County Criminal District Attorney John Segrest, who represents Johnson in the mandamus proceeding before the CCA, was unavailable for comment by presstime, Sept. 11.

Waco solo John Kuchera, Goad’s attorney, says he believes the court order for withdrawal of money from Goad’s account was a criminal proceeding. “It all arose out of a criminal matter,” Kuchera says.

St. Mary’s University School of Law professor John Schmolesky, who teaches criminal law, says he believes the cases involve the alleged wrongful taking of property. “It seems to me it’s clearly civil,” Schmolesky says.

Schmolesky says the two cases present the possibility for conflicting opinions, a situation that he believes the Supreme Court and the CCA would want to avoid. “The Court of Criminal Appeals is more likely to bow out,” he says.

— Mary Alice Robbins

Court of Criminal Appeals Caseload – 2007-2008 Term
Judge Signed Per Curiam Concur Dissent Concur/
Dissent		 Grant
Rehearing		 Total
Sharon Keller 17 25 8 18 0 0 68
Lawrence E. Meyers 20 20 4 5 0 0 49
Tom Price 19 28 8 6 0 0 61
Paul Womack 19 34 4 1 0 0 58
Cheryl Johnson 13 27 10 8 2 0 60
Michael Keasler 18 27 1 4 0 0 50
Barbara Hervey 18 30 0 2 0 0 50
Charles Holcomb 16 24 1 5 0 0 46
Cathy Cochran 18 26 9 5 0 0 58
Totals 158 241 45 54 2 0 500
Source: Texas Court of Criminal Appeals clerk’s office. Numbers are for fiscal year ending Aug. 31, 2008.
Texas Lawyer, September 2008