In 2015, three new judges will take seats on the Texas Court of Criminal Appeals. It will be the first time since 1997 that the nine-member CCA has experienced that large of a turnover.
CCA Judges Tom Price, Paul Womack and Cathy Cochran disclosed in September that they will not seek re-election in 2014.
Republicans first won a majority on the CCA in 1996, when Price, a Republican, defeated CCA Judge Frank Maloney, a Democrat, and two other Democrats, Judge Sam Houston Clinton and Judge Bill White, opted not to run again. Sue Holland and Womack won the Clinton and White seats, respectively.
Austin criminal-defense solo David Schulman says, “The court went from having no Republicans in 1991 to having six in 1997.”
With the departure of Price, Womack and Cochran, a significant block on the now all-Republican CCA will be changing, Schulman says.
“Those judges are at the center of the court’s voting. . . . You need those three to get a majority,” says Schulman, who served as a staff attorney at the CCA from 1991 to 1993 and regularly appears before the court.
Chuck Mallin, appellate section chief in the Tarrant County District Attorney’s Office, has practiced before the CCA since the mid-1970s. He says Price, Womack and Cochran are part of a five-member group, which also includes Judges Cheryl Johnson and Elsa Alcala, all of whom he says are not oriented toward the prosecution.
Mallin says a recent example of the five judges voting together for a defendant came Sept. 11 in Ex Parte Steven Kenneth Staley. In Staley, Price, Womack, Johnson and Cochran joined Alcala, author of the majority opinion, in reversing a trial court’s determination that a mentally ill death row inmate found incompetent to be executed became competent for execution after being forcibly medicated.
How the departures of Price, Womack and Cochran will affect the CCA depends on who takes their places on the court, Mallin says.
Potential candidates already are indicating an interest in running in 2014. The Texas Ethics Commission’s website lists seven people — all Republicans — who have filed forms for campaign treasurer appointments for CCA races.
Those listed for Place 3, Price’s seat, are Douglas K. Norman, a state prosecutor in Corpus Christi; Bert Richardson, a senior judge from San Antonio; and Judge Barbara Walther of San Angelo, presiding judge of the 51st District Court.
Norman says he served as a briefing attorney at the 13th Court of Appeals in Corpus Christi from 1987 to 1989 and then spent a dozen years as a staff attorney there. As an assistant district attorney in the appellate section of the Nueces County District Attorney’s office, he has practiced before the CCA for the past 13 years and has the experience to serve on the court, Norman says.
“I feel it’s something I’ve been training for all my career,” he says.
Richardson served first as an assistant criminal district attorney in Bexar County and then an assistant U.S. attorney for the Western District of Texas from 1988 to 1999, when then-Gov. George W. Bush appointed him to the 379th District Court. Since leaving the district court in 2008, he has served as a visiting judge, Richardson says.
Third Administrative Judicial Region Presiding Judge Billy Ray Stubblefield assigned Richardson to preside over a Texans for Public Justice complaint that alleges Gov. Rick Perry engaged in coercion and abuse of official capacity when he threatened to veto, and eventually vetoed, funding for the Travis County Public Integrity Unit unless District Attorney Rosemary Lehmberg resigned following her conviction for driving while intoxicated. [See "Judge Overseeing Gov. Perry Criminal Complaint Picks Grand Jury," Texas Lawyer Sept. 16, 2013, page 1.]
Asked why he decided to run for the CCA, Richardson says, “I think it’s a good opportunity to get on the court and contribute the experience I’ve had.”
Walther says she has served as judge of the five-county 51st Judicial District since 1993 and previously was a Title IV-D family law master for the 7th Administrative Judicial Region. She presided over the 2008 hearing on the state’s removal of more than 400 children from a Fundamentalist Latter Day Saints church compound near Eldorado and over the 2011 trial of FLDS president Warren Jeffs, who was convicted of aggravated sexual assault of a child and sexual assault of a child.
Walther says she loves criminal law and has always wanted to serve on the CCA.
“I’m passionate about making the system work for defendants and victims, and being on that court, I think I can do that,” Walther says.
Listed on the TEC website for CCA Place 4, Womack’s seat, are Jani Wood, an assistant public defender in the Harris County Public Defender’s Office, and Kevin Yeary, an appellate prosecutor in the Bexar County Criminal District Attorney’s Office.
Wood says she has worked in the public defender’s office since 2011 and was in private practice for about 12 year before that. She says she worked as a staff attorney at the CCA from 1997 to 1998.
“When I was working there and I would see the judges go into conference to vote, I remember thinking, ‘I would love to do that one day,’ ” Wood says.
Yeary says he worked as a briefing attorney for White at the CCA from 1991 to 1992. He says he has been an appellate prosecutor for 18 years and has worked for the Bexar County Criminal DA’s Office for almost 15 years.
Asked why he decided to run for a seat on the CCA, Yeary says, “Somebody needs to take the job, and I believe I am qualified to do the job.”
As noted on the TEC website, Judge W.C. “Bud” Kirkendall of Seguin, presiding judge of the second 25th District Court and David C. Newell, an appellate prosecutor in the Harris County District Attorney’s Office, have filed campaign treasurer appointments in the race for CCA Place 9, Cochran’s seat.
Kirkendall says he began his career in 1974 as a law clerk for then-CCA Commissioner Carl Dally, who later became a judge on the court. He says he served 21 years as the district attorney for Colorado, Guadalupe, Gonzales and Lavaca counties before winning election to the district court in 2004.
“I’ve been doing criminal law for the better part of 40 years,” Kirkendall says. “I’ve seen it from every angle. I think I have something to bring to arguments going on in criminal law.”
Newell says he has been doing criminal appellate work for the past 16 years, first in Fort Bend County and currently in Harris County. He says he decided to run for Place 9 because Cochran has been a “true asset to the court,” providing “scholarly insight grounded in common sense decision-making.”
Newell says, “I believe my background puts me in the best position to carry on that tradition.”