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May 18, 2012
New trial for man who challenged pedophilia test as junk science
The Texas Supreme Court today ordered a new sentence for Michael Arena, a Harker Heights man who has served almost 13 years of a 20-year sentence for molesting a young cousin who later said the incident never happened.
The court ruled that Arena deserves a new sentencing trial because of false testimony by a psychologist, who during Arena’s 1999 trial labeled him a pedophile who was likely to strike again.
The psychologist, Fred Willoughby, based his conclusion on a test that required the then-16-year-old to click through images of swimsuit-clad people of various ages while the computer secretly measured how long he viewed each photo.
According to the unanimous opinion, written by Justice Eva Guzman, Willoughby testified that the test had an 85 percent accuracy rate. In reality, it was 65 percent.
Willoughby also misstated the scientific support for the test, saying independent studies had verified its effectiveness (none had) and quoting a Brigham Young University study as establishing its accuracy. Instead, the study raised serious questions about the test, noting that its ability to distinguish pedophiles from “nonoffenders was not significantly better than chance.”
Had he testified truthfully, Guzman wrote, “the trial court would have excluded Willoughby’s testimony.”
Instead, prosecutors repeatedly referred to Willoughby’s testimony in closing arguments, urging jurors to choose a significantly long sentence to protect the community from a continuing threat. Jurors, who could have chosen probation, sentenced Arena to 20 years in prison.
“Indeed, the state’s closing argument made more express references to Willoughby’s testimony than to any other testimony in the case,” Guzman noted.
Having established that the testimony should not have been allowed in court, and that it contributed to the length of his sentence, Arena met the legal standard for getting a new sentencing hearing, the court ruled.
Defense lawyers have said they are confident that, if given a new sentencing trial, Arena would receive a sentence of less than the almost 13 years he has served in prison, essentially freeing him.
But defense lawyer Dustin Howell pushed for a finding of actual innocence, telling the Supreme Court during oral arguments in January that Arena would otherwise have to register as a sex offender for 10 years, limiting his employment and housing options “for a crime he did not commit.”
Two years after testifying that Arena molested her when she was 7 and he was 15, cousin Stephanie Arena recanted her accusations, saying she was urged to lie by her mother as part of a bitter child-custody battle.
A Bell County district judge who reviewed the case, however, concluded that her recantation was not credible, ruling that it could have been coerced by Michael Arena’s family. That finding, the Supreme Court ruled today, means Arena fell short in legally proving his innocence.
Read a prior story on Arena’s case here.
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April 25, 2012
New trial rejected in child choking case
The state’s highest criminal court today declined to order a new trial for Rosa Olvera Jimenez, convicted in 2005 of killing a 21-month-old boy by stuffing paper towels down his throat.
District Judge Charlie Baird had recommended that Jimenez receive a new trial, citing fresh medical evidence and expert opinion that the child’s death was likely accidental.
But the Court of Criminal Appeals rejected the recommendation from Baird, who is no longer a judge. In an 8-0 opinion, the court said some of Baird’s findings were not supported by the trial record or evidence presented after Jimenez’s conviction.
“After reviewing all of the evidence, we find that applicant has failed to show that she is entitled to a new trial,” said the opinion, written by Judge Cathy Cochran.
Jimenez is serving a 99-year sentence for injury to a child and concurrent 75-year sentence for murder in the death of Bryan Gutierrez, a boy she had been babysitting. Jimenez told police she had taken her eyes off Gutierrez while preparing lunch and then noticed him struggling for air. She said she didn’t know how the paper towels got in his throat.
Prosecutors argued that because Jimenez had been the only adult with the boy, who died about three months later, she must have shoved the towels down his throat. Doctors and medical examiners testified that the boy couldn’t have done so himself.
Baird, however, found that Jimenez was not provided enough money to hire her own experts to counter the prosecution’s theories of the boy’s death.
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April 20, 2012
Supreme Court tosses $200,000 award for improperly fired trucker
Under a Texas Supreme Court ruling delivered today, a trucker fired for refusing to drive an unsafe vehicle — he feared for himself and other drivers — may have fared better in the courts had he followed his employer’s demand, driven the truck and had an accident.
Trucker Louis Martinez III filed suit for wrongful termination in 2007 after he was fired for refusing to drive a truck carrying a load of steel shelving that was stacked higher than permitted and was improperly secured with broken straps, court records show.
It was the fifth time the company, Safeshred Inc., had asked him to drive an improperly loaded or permitted truck, the Supreme Court acknowledged. After pointing out the safety concerns, Martinez agreed to drive the truck but soon returned after feeling the load shift, the court said, adding that he was fired after refusing an order to return to the road.
A jury determined that Martinez, whose route for Safeshred included Austin, was improperly fired for refusing to perform an illegal act and awarded him $7,569 in lost wages (he found a new job within two months), $10,000 in mental anguish damages and $200,000 in punitive damages.
A lower appeals court later threw out the $10,000 award, ruling that such damages were not allowed in Martinez’s claim.
Today, the Supreme Court also tossed out the $200,000 award, ruling that Martinez did not qualify for punitive damages, either.
To receive punitive damages, Justice Debra Lehrmann wrote for the unanimous court, Martinez had to show he was fired with malice.
The court, however, rejected Martinez’s argument that malice could be shown by Safeshred’s indifference to the risk facing Martinez or the public had he driven an improperly loaded truck.
In cases involving workers terminated for refusing to perform an illegal act, the court said, malice can apply only to the act of firing, such as circulating untrue rumors about employees, interfering with their ability to find a new job or post-firing harassment.
“A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business,” Lehrmann wrote.
The court acknowledged a certain Catch-22 in its reasoning.
Had Martinez chosen to drive the truck and been hurt, he could have sued Safeshred and sought punitive damages based on “the employer’s malicious intent in ordering the illegal act,” the ruling stated.
But by refusing to drive, Martinez never performed the illegal, and potentially dangerous, act he was ordered to perform. “Thus, allowing punitive damages based on the unrealized consequences of the illegal directive would amount to impermissibly punishing the employer for harm the plaintiff never actually endures,” Lehrmann wrote.
Today’s opinion was based on previous rulings affirming Texas as an employment-at-will state, allowing employers wide latitude to fire workers “for a good reason, a bad reason, or no reason at all,” the court said.
Expanding punitive damages to actions beyond the act of firing an employee “would be an improper expansion” of the employment-at-will doctrine, the court said.
The case is Safeshred v. Martinez, 10-0426.
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April 19, 2012
Court upholds YFZ Ranch conviction
The 3rd Court of Appeals in Austin today upheld the conviction and 10-year sentence for Raymond Merril Jessop, accused of sexually assaulting his underage “celestial bride” at the Yearning for Zion Ranch in West Texas.
Jessop, a lifelong member of the break-away Mormon sect that operates the ranch, was 32 when he made a 15-year-old girl his ninth wife in 2004. A year later, she gave birth to Jessop’s daughter, DNA tests confirmed.
Jessop’s lawyer argued that the state lacked the jurisdiction to prosecute Jessop because prosecutors did not prove that the sexual encounter that led to the birth had occurred in Texas. In a 3-0 ruling, the appeals court rejected the claim, saying circumstantial evidence adequately established that Jessop and the teen “lived together in a sexually intimate relationship … on the YFZ Ranch in Schleicher County, Texas, prior to, during and after the birth of their child.”
The court also overruled 34 other points of error claimed by Jessop.
Read about the oral arguments, held last October, here.
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March 30, 2012
Supreme Court affirms ruling on Open Beaches Act
A state law meant to preserve public access to the shoreline does not entitle state officials to seize private property that suddenly moves onto public beaches because of erosion from hurricanes or storms, the Texas Supreme Court ruled today.
The court came to the same conclusion in the same case in 2010 — prompting loud protests from state officials, Gulf of Mexico communities and beach advocates — but agreed last year to reconsider its ruling.
Today’s 5-3 ruling said the easement that allows public access to the Gulf of Mexico can shift according to gradual changes due to coastal erosion. But that easement cannot jump many feet inland, encroaching on private property, after large storms ravage the coastline, said the opinion by Justice Dale Wainwright.
”On one hand, the public has an important interest in the enjoyment of the public beaches. But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners,” Wainwright wrote.
State officials had argued that the court’s original ruling jeopardized enforcement of the Open Beaches Act, a 53-year-old law. Public access to the Gulf of Mexico shoreline is a fundamental public right that has existed since Texas was a republic, officials argued.
But property advocates argued that enforcement of the Open Beaches Act imperiled private property rights, inappropriately giving government the authority to condemn homes that suddenly encroach on the public portion of beaches after a major storm reshapes the shoreline.
Three justices wrote dissents: David Medina, Eva Guzman and Debra Lehrmann.
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February 27, 2012
Oral arguments set in Open Meetings Act challenge
A federal appeals court will hear oral arguments on April 5 in a lawsuit that claims the Texas Open Meetings Act unconstitutionally limits the free speech rights of elected officials.
The 5th Circuit Court of Appeals will hear arguments in Houston, the court announced today.
More than a dozen city officials from across Texas argue that the act unconstitutionally targets one class of speaker — politicians — with a criminal penalty that forces them to limit interactions with constituents and hampers their ability to do their jobs.
Last March, U.S. District Judge Robert Junell issued a strongly worded ruling that labeled some of the officials’ arguments as nonsensical. Open meetings laws are intended to promote good government and citizen involvement, not thwart free speech, he ruled.
Open meetings “enable public discussion and discourage government secrecy and fraud,” Junell wrote, noting that politicians are still free to voice their opinions.
“Their election to public office allows them a bullhorn for their ideas. Plaintiffs are merely asked to limit their group discussions about these ideas to forums in which the public may participate,” he wrote.
Since 1967, the Open Meetings Act has required quorums of a governmental body to discuss most public business in a properly called meeting, generally with at least 72 hours’ notice, that is open to the public. Violators can receive up to six months in jail and a $500 fine.
Junell upheld the law in a similar case in 2006 after Alpine City Council members, accused of violating the act by discussing city business in private emails, filed suit arguing that their First Amendment free speech rights were violated.
A three-judge panel of the 5th U.S. Circuit Court of Appeals reversed Junell in 2009, but others on the court determined that the issue needed to be considered by all 17 judges. But before that could happen, the appeal was dismissed as moot because the public officials had left office and no longer had standing to sue.
The latest challenge was filed after more plaintiffs were recruited to ensure that the case could continue through the appeals process.
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February 24, 2012
Supreme Court delivers major ruling on water regulation
Updated at 11:25 a.m. with reaction from the Sierra Club. Updated at 4 p.m. with reaction from supporters of the decision.
In a ruling likely to have a wide impact on the regulation of water use in Texas, the state Supreme Court today ruled that landowners have an ownership interest in water beneath their land and may be compensated if regulations limit their access to it.
The legal dispute involves a ranch owner who sued when the Edwards Aquifer Authority issued a permit that limited the amount of underground water that could be used.
The authority had argued that if landowners can be compensated for limiting access to their water, the result would be a disaster, creating an unknown number of legal disputes and a financial burden that could make regulating water impossible.
The unanimous opinion, written by Justice Nathan Hecht, noted regulation of underground water is essential to conserve a limited resource that provides 60 percent of all water used by Texans.
“Unquestionably, the state is empowered to regulate groundwater production,” the opinion states. “ In many areas of the state, and certainly in the Edwards Aquifer, demand exceeds supply.”
Even so, the state Constitution’s takings clause, which says no property can be taken for public use without adequate compensation, applies to underground water, Hecht wrote.
“We cannot know, of course, the extent to which the authority’s fears will yet materialize, but the burden of the takings clause on government is no reason to excuse its applicability,” the opinion said.
Ken Kramer, director of the Sierra Club’s Lone Star Chapter, said the decision could have disastrous impact on the state economy and environment.
“The court has done a huge disservice to everyone who has been working for proper management of the groundwater resources needed for our state’s people and our environment,” Kramer said.
“The likely result of this opinion will be more, not less, litigation over groundwater management in Texas. The decision creates uncertainty about how state, regional, and local entities will now be able to protect groundwater resources,” he said.
Texas Agriculture Commissioner Todd Staples praised the decision as an affirmation of private property rights.
“The private ownership of water and land has been protected by generations of Texans and now it is our duty to continue this proud heritage,” Staples said.
“For over 100 years, landowners have believed that the law gave them a vested private property right in the groundwater beneath their land and I am pleased that the current court upheld that today,” said state Sen. Troy Fraser, R-Horseshoe Bay.
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November 23, 2011
Court upholds life sentence for 9th DWI
An appeals court today upheld the life sentence given to Bobby Joe Stovall for his ninth Texas conviction for driving while intoxicated.
Stovall’s appeal argued that the blood test evidence should have been thrown out because it was based on an invalid search warrant that failed to properly list the date and time of the alleged offense, as required by law.
But the 3rd Court of Appeals in Austin today dismissed Stovall’s argument, saying the judge who issued the warrant had enough information to conclude that Stovall had been driving the car involved in the accident.
Police were dispatched “quickly enough to find Stovall, his damaged vehicle and a witness still at the accident scene,” the court ruled. “Stovall admitted twice that he had been driving, and the witness, who had observed the accident, also identified Stovall as one of the drivers.”
An affidavit from police also detailed Stovall’s poor performance in sobriety tests, giving the judge “a substantial basis to determine that evidence of intoxication would still be present in Stovall’s blood” three hours after the accident, said the opinion by Justice Diane Henson.
Stovall’s DWI charge was enhanced to a first-degree felony because of eight DWI convictions in six other Texas counties, as well as convictions for cocaine possession, credit card abuse and burglary.
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August 26, 2011
Search of polygamist ranch legal, court rules
The 3rd Court of Appeals today upheld the child sexual assault conviction of Michael Emack, a member of a polygamist sect at the Yearning for Zion Ranch in West Texas.
Emack argued that evidence used against him should have been suppressed because it was the fruit of an improper 2008 search that was based on a hoax phone call to authorities.
But the Austin appeals court ruled today that the evidence was properly gathered, including interviews with underage girls who reported being married to, and having children with, adult men who lived at the ranch.
The court also said the investigation of Emack did not violate the free exercise of his religion. Emack is a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway Mormon sect that encourages polygamy.
The search of the Yearning for Zion Ranch near Eldorado prompted state officials to take temporary custody of hundreds of sect children and charge 12 men with child sexual assault and bigamy. Emack was among eight who have been convicted thus far.
Emack pleaded no contest to the sexual assault charge as part of a plea bargain and is serving a seven-year sentence. He also pleaded no contest to bigamy; his appeal of that conviction is pending.
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Supreme Court upholds Texas 'pole tax'
The Texas law that imposes a $5-per-customer fee on nude dancing establishments does not violate free speech rights, the Texas Supreme Court ruled today.
The unanimous ruling validates the so-called “pole tax,” created by the Legislature in 2007 but found to be unconstitutional by the 3rd Court of Appeals.
“We think a $5 fee presents no greater burden on nude dancing,” Justice Nathan Hecht wrote for the court. “The fee is not a tax on unpopular speech but a restriction on combining nude dancing, which unquestionably has secondary effects, with the aggravating influence of alcohol consumption.”
The ruling overturns the 3rd Court’s opinion that the $5 fee was improperly based on the content of protected speech because it singled out nude dancing.
The opinion returns the case to Travis County District Court to address claims that the fee also violates the Texas Constitution.
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August 24, 2011
Court denies Laura Hall appeal
The Third Court of Appeals today denied Laura Ashley Hall’s latest challenge to her conviction and 10-year sentence for evidence tampering in the mutilation of a West Campus murder victim.
Lawyers for Hall (pictured) claimed she should have been granted a new trial because prosecutors did not fully reveal details about allegations that the Austin Police Department forensics lab had performed shoddy DNA analyses and had lax training and quality controls.
The appeals court noted that internal and external audits cleared the crime lab of the allegations, which were made by a former employee.
What’s more, the court said, raising questions about the lab’s analysis would likely have hurt Hall’s case. Hall’s defense team emphasized the results because tests found none of Hall’s DNA on most of the items from the crime scene, the court said.
“Thus, the disclosure … might have undermined the state’s theory that DNA evidence proved Hall was present in the condominium on the night in question, (but it) could have also undermined the defense theory that the DNA evidence exonerated her,” the court noted in a 3-0 opinion written by Justice Bob Pemberton.
Finally, Hall’s DNA expert testified that he reviewed the lab’s results and agreed with the findings, Pemberton wrote.
The Austin-based appeals court also denied Hall’s claims that she received substandard legal help.
Hall originally received a five-year sentence for evidence tampering in the 2005 death of Jennifer Cave. Prosecutors said Hall helped her friend Colton Pitonyak dismember Cave’s body in his West Campus apartment before driving him to Mexico. Pitonyak is serving a 55-year sentence for murder.
The Austin appeals court threw out Hall’s sentence but affirmed her conviction in 2009. Hall’s appeal backfired, however, when a new jury sentenced her to 10 years for the same crime.
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August 10, 2011
Court orders release of man jailed for child sex assault
Citing a mistake made by Travis County court officials 16 years ago, the state’s highest criminal court today ordered prison officials to free a former Austin businessman serving a 10-year sentence for sexual assault of a child.
Stanley Blackwell, convicted in 1992 of assaulting a 14-year-old boy in Blackwell’s Austin home, had been freed on bond while his appeal progressed through the court system.
Blackwell’s appeals ended without success in April 1995, but when he tried to turn himself in to begin his sentence the following May and July, sheriff’s deputies turned him away because no arrest warrant had been issued, according to the Court of Criminal Appeals.
Blackwell moved to Houston and went on with his life. In 2002, he completed probation for an unrelated conviction - stealing about $43,000 in insurance proceeds for which he was a trustee - and filed an appeal arguing that his sex-assault sentence should be discharged. That appeal was dismissed because he wasn’t in custody for the crime.
Then, last March, Blackwell was arrested and jailed on the sexual-assault conviction.
He filed a new appeal, arguing that his sentence should be discharged because county officials failed to timely issue an arrest warrant, known as a capias.
Today, the Texas Court of Criminal Appeals agreed. In a unanimous ruling, the court ordered Blackwell to be immediately released from Travis County Jail, saying he had been left free for 16 years “through no fault of his own.”
“(Blackwell) did not violate any conditions of his appellate bond and in fact tried to turn himself in twice and was turned away,” the court ruled. “He was not attempting to conceal himself, and the state made no efforts to secure (Blackwell) so that he may begin to serve his sentence.”
The court pinned the blame on the Travis County District Clerk’s Office, noting that “no capias was ever issued.”
District clerk officials declined to comment on the ruling but provided a document showing that an arrest warrant for Blackwell was issued in October 1995, about three months after he last attempted to turn himself in. Blackwell was taken into custody by Montgomery County deputies in March 2011, the document shows.
Blackwell, now 58, owned the Blackwell Funeral Home in North Austin. The business closed after his arrest.
A call to Blackwell’s lawyer, Rip Collins, has not yet been returned. Collins is in the middle of a federal court trial, where he is defending Triton Financial executive Kurt Barton against charges of running a Ponzi scheme.
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August 5, 2011
Former Austin police chief did not discriminate, court rules
A federal appeals court ruled today that a former Austin police commander, Harold Piatt, failed to show he was discriminated against when he was not promoted to assistant police chief in 2006.
Piatt sued the City of Austin claiming that then-police chief Stan Knee improperly took race into consideration when he promoted Charlie Ortiz, a Hispanic commander, to assistant chief. Piatt is white.
Today’s ruling by the 5th U.S. Circuit Court of Appeals said that while Knee did take Ortiz’s race into account, the former chief established a permissible defense against charges of discrimination by showing that he would have promoted Ortiz anyway.
Knee testified during a U.S. District Court trial on Piatt’s claims that he was impressed with the way Ortiz handled a controversial police shooting, the appeals court noted. Knee also said Ortiz favored his approach to community policing.
Piatt retired from the department in 2007.
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July 29, 2011
Supreme Court punts on Open Beaches question
The Texas Supreme Court said today that it cannot determine whether to proceed with a case challenging the Open Beaches Act, ruling that the question must be answered by the 5th U.S. Circuit Court of Appeals.
The legal question about the state’s Open Beaches Act originated from the federal appeals court, so the answer will have to come from there as well, the Supreme Court said.
The Texas Attorney General’s Office last month asked the Supreme Court to vacate its 2010 ruling on the Open Beaches Act, criticized by state officials who said it jeopardized public access to the Gulf of Mexico shoreline.
The court is reconsidering that 6-2 opinion after granting a rare motion to rehear the case.
But Attorney General Greg Abbott asked the court to dismiss the case and vacate its prior ruling, saying property owner Carol Severance has no standing to pursue her legal challenge after selling her last Galveston home on June 24.
“She no longer owns her properties, so there is no live controversy between the parties to resolve,” said the letter by Arthur D’Andrea, assistant solicitor general for Texas.
Lawyers for Severance dispute that contention.
Severance, a California resident, owned several Galveston homes that were damaged by Hurricane Rita in 2005. She challenged the Open Beaches Act after she was told to move or raze several of the structures because the storm had shifted the shoreline.
The court backed Severance in a November ruling, saying the law improperly imperiled private property rights by allowing state officials to condemn homes that suddenly encroach on the public portion of beaches after a major storm reshapes the shoreline.
Five months later, however, the court reheard oral arguments in the case but gave no reasons for allowing the do-over. That ruling is still pending, at least for now.
The case is Severance v. Land Commissioner Jerry Patterson, 09-0387.
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June 10, 2011
Alcala welcomed to highest criminal court
Gov. Rick Perry formally gave the oath of office to Judge Elsa Alcala, the newest member of the Texas Court of Criminal Appeals, during investiture ceremonies today in the House of Representatives chamber.
Her husband, Dan Spjut, held the Bible, and her three children - Harlan, Lina and Erin - stood at her side as Alcala promised to “faithfully execute the duties of the office” of the state’s top criminal court.
Spjut, an attorney and retired Houston Police Department lieutenant (they met during her nine years with the Harris County District Attorney’s Office), then slipped Alcala’s judicial robes over her shoulders.
Alcala, one of five children who lost both parents by age 14, marveled that an “impoverished, orphaned Mexican-American girl can, through public education and the grace of God, become a jurist on one of the state’s highest courts.”
“Today, all children know - regardless of their economic status, their ethnicity or their race - that they too can become jurists on one of the state’s highest courts,” she told a crowd that included members of many of the appellate courts in Texas.
Perry appointed Alcala to the nine-member Court of Criminal Appeals earlier this year. She received unanimous approval from the Texas Senate in April and began working at the downtown Austin court May 23 after a private swearing-in ceremony.
Photo by Larry Kolvoord AUSTIN AMERICAN-STATESMAN
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June 3, 2011
Appeals court overturns graduation prayer ban
Update: The federal appeals court this afternoon overturned the injunction on student-led prayer during Saturday night’s graduation ceremonies at Medina Valley High School.
Liberty Institute, a Christian legal advocacy organization, represented a class valedictorian’s attempt to overturn the prayer ban, which had been sought by the family of an agnostic student.
“No citizen has the right to ask the government to bind and gag the free speech of another citizen,” said Kelly Shackelford, president of Liberty Institute.
Texas Attorney General Greg Abbott today filed a friend-of-the-court brief today asking a federal appeals court to allow San Antonio-area student speakers to pray during high school graduation ceremonies.
The prayer ban by a federal district judge threatens the right of Texas students to express their religious beliefs in public, Abbott told the 5th U.S. Circuit Court of Appeals.
Abbott asked the court overturn an injunction, issued Wednesday by U.S. Judge Fred Biery, that ordered Medina Valley High School to remove the words “invocation” and “benediction” from the graduation program and prohibited student speakers from asking the audience members to stand in prayer or bow their heads.
“Because Medina Valley officials are currently faced with the choice to either obey the district court’s order and violate the First Amendment rights of the student speakers, or permit the students to freely speak and risk incarceration and other contempt sanctions, emergency relief from this court is not just warranted, it is required,” Abbott argues in the brief.
Gov. Rick Perry also weighed in today, issuing a statement supporting Abbott’s action.
“This reprehensible action taken by a federal judge underscores the increasingly inappropriate federal encroachment into the lives of Americans,” Perry said.
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April 29, 2011
Supreme Court: Local governments immune from certain lawsuits
The Texas Supreme Court today ruled that former employees cannot sue local governments over allegations that they were improperly fired for filing a worker’s compensation claim.
The unanimous ruling threw out a lawsuit by Diane Lee Norman, who alleged that the Travis Central Appraisal District improperly fired her in 2006.
An earlier Supreme Court ruling said state law waived sovereign immunity, which protects government from being sued over most issues, for claims under the Texas Anti-Retaliation Act. But today’s opinion, written by Justice David Medina, held that recent changes to the Political Subdivisions Law stripped the sovereign immunity waiver for cities, counties, school districts and other local governments.
Plaintiffs lawyers say the ruling weakens employee protection and gives local governments free rein to fire workers’ comp recipients without proper cause.
But Jennifer Powell, who argued the case on behalf of the appraisal district, said fear of lawsuits has kept governments from firing workers’ comp recipients for legitimate but unrelated reasons. Employees who believe they were improperly fired can still seek protection under the Americans With Disabilities Act and internal grievance procedures, Powell added.
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April 20, 2011
U.S. Supreme Court backs Texas in prison lawsuit
The U.S. Supreme Court ruled today that Texas cannot be sued for money damages by an inmate who claimed his religious freedom was violated by prison disciplinary rules that restricted him to his cell.
Harvey Leroy Sossamon III, an inmate in the Robertson Unit near Abilene, claimed the practice kept him from attending religious services or visiting the prison chapel in violation of the Religious Land Use and Institutionalized Persons Act of 2000.
The prison changed its policies after Sossamon filed a grievance and his lawsuit, the Supreme Court ruling notes. But the inmate’s attempt to get money damages from Texas was thrown out in U.S. District Court. That ruling was affirmed by the 5th U.S. Circuit Court of Appeals, leading to the Supreme Court case.
In a 6-2 opinion written by Justice Clarence Thomas, the Supreme Court said Texas did not waive its sovereign immunity, protecting it from Sossamon’s lawsuit, merely because the state accepts federal money to operate its prison system.
Thomas wrote that Congress, in drafting the religious freedom law, did not clearly state that money damages apply to prison violations when it authorized “appropriate relief” for violations.
But a dissent by Justice Sonia Sotomayor said that there is nothing ambiguous about the concept of appropriate relief, which typically includes money awards.
Justice Stephen Breyer joined the dissent. Justice Elena Kagan did not participate in the case.
Read the majority and dissenting opinions here.
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April 15, 2011
Lawsuit in Cedar Park teen's drowning tossed out
The Texas Supreme Court today threw out a lawsuit from the family of a Cedar Park teenager who was killed at a dangerous bridge over the Pedernales River in 2004.
The family of Courtney Foreman, who was 18 when she drowned, argued that Allen Keller Co. was responsible for leaving a 15-foot gap — unprotected by a guardrail — alongside a narrow bridge near Fredericksburg.
The car Foreman was riding in slid through that gap on a rainy night. The driver and another passenger escaped. Foreman, a Cedar Park High School graduate, did not.
In a unanimous opinion written by Justice Debra Lehrmann, the Supreme Court acknowledged that the bridge was left in a dangerous condition after Keller built a concrete channel next to the one-lane bridge.
But the court said the construction company did not have a duty to fix the gap — or warn drivers about it — because it followed contract specifications that did not allow for deviations.
“The presence of an unreasonably dangerous condition, of course, weighs in favor of recognizing a duty,” Lehrmann wrote. “The consequences of placing a duty on Keller to rectify the condition in these circumstances, however, lead us to conclude that Keller owed no such duty.”
The construction project was designed by O’Malley Engineers of San Antonio, which agreed to pay $400,000 to settle a wrongful death lawsuit from Foreman’s family. Gillespie County, which extended the guardrail and added warning signs after the accident, also settled for $50,000.
But Foreman’s family cannot sue Keller, the court ruled, because it was not in control of the project. Any construction changes had to be made by the county or the engineer, both of which had inspectors on site to monitor progress, the court noted.
The court also noted industry concerns that holding contractors responsible for faulty designs “would substantially increase the costs of construction.”
“Any decision that Keller would have made to rectify the dangerous condition would have had the effect of altering the terms of the contract,” Lehrmann wrote. “Moreover, because Keller did not own the property, it was not in a position to make decisions about how to make the premises safe.”
Read the opinion here.
Here is our prior story.
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March 11, 2011
Supreme Court to rehear open beaches case
The Texas Supreme Court said today that it will reconsider a 6-2 November ruling that blunted state enforcement of the Open Beaches Act, a 51-year-old law meant to preserve public access to the shoreline.
Property rights advocates had praised the decision, which barred state officials from ordering landowners to raze or move homes that encroach on Gulf of Mexico beaches after a major storm reshaped the shoreline.
But state officials and coastal communities objected, saying the court jeopardized continued public access to Texas shores.
The court gave no reason for granting the motion for rehearing filed by Land Commissioner Jerry Patterson, Attorney General Greg Abbott and the district attorney for Galveston County, Kurt Sistrunk. Five of the court’s nine justices must agree to rehear a case.
Oral arguments will be heard April 19.
Motions to rehear are rarely granted and hard to decipher, sometimes resulting in changed rulings, sometimes in nothing more than minor factual or technical corrections to the original opinion.
For further reading:
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March 4, 2011
Court orders Texas to pay exonerated prisoners
The Texas Supreme Court today ordered the state comptroller’s office to pay $2.7 million to three wrongfully convicted Texans who spent, in total, 52 years in prison for crimes they did not commit.
Wrongfully convicted Texans may collect $80,000 for every year in prison, but Comptroller Susan Combs’ office ruled that the three men were ineligible for full compensation because each had also been on parole for a prior crime.
But a unanimous Supreme Court said Combs’ office was too restrictive in applying the law, passed in 1965 and updated in 2009 to compensate those wrongly accused for the emotional, physical and economic toll of prison.
Being on parole at the time of their wrongful arrest does not disqualify the men from full compensation, the opinion by Justice David Medina said.
“Oh, that is great, man,” former inmate Ronald Taylor said when reached at his Atlanta home. “It’s been a long time coming. It’s going to solve a lot of problems for me.”
After spending 14 years imprisoned for a Houston rape he did not commit, Taylor was eligible for a $1.14 million payment. Instead, the comptroller offered $20,000.
“Now I’m going to have the money to fulfill my end of our obligations. I can get my house, take my wife on a honeymoon,” he said. “I’m not going to even tell her yet — that’s going to be a surprise.”
Taylor and the other exonerated inmates will receive full payment for their prison time — plus a matching annuity that earns 5 percent annual interest and pays out monthly for as long as they live — totaling almost $2.7 million.
The American-Statesman profiled this legal fight in a November story.
Read more in the newspaper and online Friday.
CORRECTION: Story corrected on the number in inmates affected, total cost of compensation.
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February 23, 2011
Chief justice issues call to action at Capitol
Wallace Jefferson, chief justice of the Texas Supreme Court, issued four “calls to action” during his fourth State of the Judiciary speech before both houses of the state Legislature today:
1. Try to keep juvenile offenders in school. Noting that 80 percent of Texas inmates had dropped out of school, Jefferson said charging students with crimes - or suspending or expelling them from school - for “low-level behavioral issues” only exacerbates the problem.
“Of course, disruptive behavior must be addressed, but criminal records close doors to opportunities that less punitive intervention would keep open,” he said.
2. Make sure indigent Texans have access to civil court legal help. Jefferson asked legislators to reissue a $20 million grant, provided last session as a one-time fix, and raise civil court filing fees to address a crisis in legal aid funding.
3. Support legislation, particularly bills proposed by Sen. Rodney Ellis, D-Houston, to address wrongful convictions. “In the last 10 years, more than 40 Texas prisoners have been exonerated based on DNA evidence. This is not just a Texas problem, but no other state has found an equal number of wrongfully convicted prisoners,” Jefferson said.
4. Address the negative impact of having Texas judges run in partisan elections. Jefferson renewed previous calls for selecting judges based on merit instead of political party affiliation. But with the Legislature steadfastly refusing to take that step, he lowered his sights by calling for:
Eliminating straight-party voting for judicial races.
Lengthening judicial terms to eight years for appellate judges, up from six years, and six years for district judges, up from four years.
Allowing judges who are appointed to fill a vacant seat to serve a full term before running for election, in order to give them experience “and a record to run on.” Currently, appointed judges must run in the next election, giving them no more than two years on the bench.
Here is a copy of his speech, as written.
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February 8, 2011
Court to hear DPS appeal in Hays drunken driving case
The Texas Supreme Court announced Tuesday that it will determine whether a state trooper’s unsworn report can be admitted into evidence in a Hays County drunken driving case.
The Department of Public Safety revoked the license of Stephen Joseph Caruana after breath tests during Dec. 30, 2007 traffic stop revealed a blood-alcohol content of 0.16, well above the legal driving limit of 0.08.
Two courts, however, have ordered the agency to reinstate Caruana’s license because DPS trooper Eric Flores did not swear to his report of the traffic stop, rendering it inadmissible in court.
No date has been set for oral arguments in the case.
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January 27, 2011
Court OKs legal fees in Raul Meza case
The Texas Board of Pardons and Paroles must pay $146,225 in fees and expenses to lawyers who helped child killer Raul Meza challenge the way Texas places sex-offender conditions on some parolees, a federal appeals court ruled today.
In December 2009, U.S. District Judge Lee Yeakel ordered the parole board to pay Meza’s legal fees after the Texas Civil Rights Project successfully sued on his behalf, winning rulings that found serious flaws in Texas’ parole system.
The parole board challenged the award, but today the 5th U.S. Circuit Court of Appeals said Yeakel correctly calculated fees owed to the nonprofit legal firm.
Meza, now 50, was convicted of killing 8-year-old Kendra Page on the playground of a Southeast Austin elementary school in 1982.
His lawsuit resulted in Yeakel’s 2009 ruling that Meza and other parolees were mistreated when they were labeled as sex offenders — even though they were not convicted of a sex crime — without being provided a hearing, seeing the evidence used against them or confronting their accusers.
The appeals court later upheld Yeakel’s ruling and ordered Texas to overhaul its system of imposing sex-offender conditions, which can include mandatory counseling, electronic monitoring and registration as a sex offender.
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January 12, 2011
Houston death penalty challenge must end, court rules
UPDATED with response from Green’s lawyers and add dropped word to the top: highest criminal court.
A Houston defendant cannot challenge the state’s death penalty laws as unconstitutional before his capital murder trial begins, the state’s highest criminal court ruled today.
John Edward Green Jr., charged with robbing and killing a Houston woman in 2008, had challenged the Texas death penalty law because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.”
District Judge Kevin Fine held a Dec. 6 hearing on Green’s motion, hearing from defense experts who testified about 138 exonerations of U.S. death row inmates since 1978, including 12 in Texas.
At the urging of prosecutors, the Texas Court of Criminal Appeals halted the hearing the following day and requested briefs to determine if proceedings should continue.
Today, the court ruled 6-2 that Fine exceeded his authority and ordered him to dismiss Green’s challenge. Texas law does not allow judges to hold pretrial hearings on the constitutionality of a law, said the opinion by Judge Cathy Cochran.
In addition, until the death penalty statute is applied against Green, he does not have legal standing to challenge the law, the court ruled.
“One does not put the cart before the horse: a defendant has no claim of wrongful conviction or wrongful sentencing before he has even gone to trial,” Cochran wrote.
“It bears noting that no provision of the current (death penalty statute) has been held unconstitutional by the Supreme Court or this Court, although that statute has been attacked many times,” Cochran added.
Judges Tom Price and Paul Womack dissented without submitting an opinion stating their reasons. Recently retired Judge Charlie Holcomb did not participate.
Green’s lawyers — Dick Burr, Casey Kiernan and Robert Loper of Houston — said they were disappointed the court ignored the main issue: the continuing threat of wrongful convictions in death-penalty cases.
“Before the court blocked Mr. Green’s evidence, there were two days of testimony that showed the system is riddled with errors, inherently unreliable and in urgent need of reforms,” the lawyers said in a statement. “Innocent people can and do get sentenced to death in Texas and across the country. Anyone who looks the other way is fooling himself.”
Fine made national news last spring when, in response to a motion from Green’s lawyers, he declared the Texas death penalty law unconstitutional. He later rescinded that ruling and ordered the December hearing, saying he should have heard evidence before reaching such a conclusion.
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January 6, 2011
Court tosses limits on Comal quarry
The 3rd Court of Appeals on Thursday threw out an injunction limiting how Hanson Aggregates West operates a rock quarry near Garden Ridge in Comal County.
Nearby homeowners had sued arguing that the quarry was a nuisance, but a jury disagreed. Even so, the judge issued a permanent injunction limiting the size and location of blasting operations at the quarry, ruling that the explosions “can and do create a nuisance.”
In a 3-0 opinion written by Justice Bob Pemberton, the Austin appeals court ruled that given the jury verdict, District Judge Dib Waldrip lacked the authority to issue the injunction.
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December 9, 2010
Court blocks lawsuit over Lake Travis water levels
A lawsuit accusing the Lower Colorado River Authority of improperly draining Lake Travis during the 2008-09 drought cannot proceed, an Austin appeals court ruled today.
Houston dentist Robert Wynne, who has owned a house on Lake Travis since 1993, alleged that excessive water releases by the LCRA deprived him of recreational use of the lake and the aesthetic use of his property.
Wynne asked a Travis County court to order the LCRA to maintain Lake Travis at a minimum level capable of supporting recreation and safe boating.
Instead, District Judge Jeff Rose threw out the lawsuit earlier this year, and the 3rd Court of Appeals today agreed that the LCRA, as a governmental body, had sovereign immunity from Wynne’s lawsuit. (Rose, now a member of the 3rd Court, did not participate in today’s ruling.)
Wynne also sued the LCRA’s board of directors, alleging they exceeded their authority by allowing excessive water releases through Mansfield Dam, which creates Lake Travis. That portion of the lawsuit was not affected by Tuesday’s 3-0 ruling.
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December 3, 2010
Having home office no reason to deny insurance, court rules
The Texas Supreme Court ruled today that an insurance company improperly denied workers’ compensation coverage to a traveling saleswoman injured while driving her company car toward her company-furnished office.
But the Supreme Court, ruling 8-1, said Leordeanu was injured while on a work-related mission, driving from an employer-sponsored dinner in South Austin to an employer-provided storage facility, then on to her home office to finish some paper work.
“Generally, traveling home from work is not in the ‘course and scope of employment,’” said the opinion by Justice Nathan Hecht. “But is traveling from one workplace to another while on the way home?”
Yes, Hecht said in an opinion with implications for the growing number of Texans who combine home and office.
The accident on Loop 360 left Leordeanu in a three-month coma and led to 26 surgeries to rebuild her face and skull.
“After eight years and all the emotions, I don’t even have all the words to describe it. I started crying when I heard,” said Leordeanu, 36, who now lives in California. “I’m mostly glad how this is going to impact a lot of people who have an office in their house.”
The American-Statesman wrote about this case in May. Read it here.
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State worker birth dates not public record, court rules
Ruling that the threat of identity theft outweighs the public’s right to know, the Texas Supreme Court ruled Friday that state agencies cannot be forced to disclose the birth dates of government employees.
A date of birth, when combined with other readily available information, can reveal sensitive personal data that can lead to identity theft, one of the fastest-growing criminal offenses in the 21st century, the court said in a 5-2 ruling, with two justices not participating.
The case began with a 2005 request, made by the Dallas Morning News, for the comptroller’s payroll database for state employees. The comptroller’s data included the full name, age, race, sex, salary, job description, work address, date of initial employment, pay rate and work hours for each employee.
The agency declined the newspaper’s request for birth dates.
“Disclosing employee birth dates constitutes a clearly unwarranted invasion of personal privacy,” said Friday’s opinion, written by Chief Justice Wallace Jefferson.
Open-government advocates warned that the ruling could have far-reaching impact, potentially closing information in government personnel files — including performance evaluations and sexual harassment allegations — that is currently open to public inspection.
A dissenting opinion by Justice Dale Wainwright accused the majority of overstating the identity-theft risk and placing unnecessary, short-sighted limits on the public’s ability to monitor government performance. What’s more, Wainwright noted, Texas has for 13 years sold information about driver’s licenses — including the owners’ dates of birth — without any evidence of problems.
“Arguments that the same information about (government employees) will greatly increase the possibility of identity theft ring hollow,” said the dissent, joined by Justice Phil Johnson. “The sky is not falling.”
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November 17, 2010
Life without parole OK for juveniles, Texas court rules
Sentencing juvenile murderers to life in prison without any chance of parole is not unreasonably harsh, the Texas Court of Criminal Appeals ruled Wednesday.
Although Texas law no longer allows the practice, life without parole was available for juvenile defendants who were tried as adults from 2005-09. Twenty teens were sentenced to remain jailed until they died, including Chris Joshua Meadoux of San Antonio.
Meadoux, who killed two San Antonio teens when he was 16, argued that his life sentence violated the U.S. Constitution’s ban on cruel and unusual punishment because juveniles lack maturity and an adult’s sense of responsibility.
But in a 7-2 ruling, the state’s highest criminal court disagreed.
“Given the enormity of the crimes committed by juvenile capital offenders, the Legislature could reasonably conclude that such offenders are incorrigible … and that the only prudent course of action is to separate them from society forever,” said the opinion, written by Judge Charles Holcomb.
The majority also noted that the Legislature did not make the law retroactive when it banned no-parole terms for juveniles in 2009.
A dissenting opinion by Judge Lawrence Meyers noted that after the U.S. Supreme Court banned executions for juvenile killers in 2005, their death sentences were commuted to life terms with the possibility of parole. “It’s ridiculous to say that a juvenile who was not even eligible for the death penalty” should receive a harsher sentence, Meyers wrote.
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November 12, 2010
Kyle housing rules stand, appeals court rules
A federal appeals court has allowed City of Kyle zoning and subdivision rules to stand, ruling that a civil rights group and two homebuilding associations did not have standing to sue the city.
The state and local branches of the National Association for the Advancement of Colored People had argued that the rules, passed in 2003 to mandate larger home and lot sizes and all-masonry exteriors, would price many black and Hispanic buyers out of the Kyle market.
Kyle officials said the new standards were designed to slow growth.
In 2009, U.S. Judge Lee Yeakel ruled that the groups, including the Home Builders Association of Greater Austin and the National Association of Home Builders, did not prove the new building standards were discriminatory.
The groups appealed to the 5th U.S. Circuit Court of Appeals, which ruled Thursday night that the groups provided no evidence that one of their members was unable to buy a Kyle home because of the rules.
“Instead, plaintiffs have pointed only to evidence suggesting, in the abstract, that some minority members may be less able to afford such residences due to the revised ordinances,” the court ruled.
The groups did not have to pay Kyle’s attorney fees, however, because their lawsuit was not frivolous, the court ruled.
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October 27, 2010
Driver didn't want brick in windshield after all, court rules
Some legal questions are easier than others.
Take the issue raised on appeal by Bradley Morales, who was sentenced to 30 days in the Milam County Jail after he tossed a brick through Ruby Lattimore’s windshield, causing about $300 in damage.
Morales admits that he threw the brick after Lattimore parked her car and entered Central Texas Hospital in Cameron.
Even so, Morales last year asked the 3rd Court of Appeals in Austin to overturn his criminal mischief conviction, arguing that it was never proved that Lattimore didn’t want him to damage her car.
According to Morales’ appeal, Lattimore never indicated during court testimony that she didn’t want Morales to break her windshield. Without that fact established, he argued, there was no legal basis for his conviction.
Prosecutors urged the appeals court to read between the lines in Lattimore’s testimony, noting:
She said she had never met Morales and did not know him.
She said she was upset by the damage.
That was good enough for the jury in Milam County Court-at-Law Judge Frank Summers’ courtroom, and it was also good enough for the 3rd Court of Appeals, which upheld Morales’ conviction Wednesday.
The opinion by Justice David Puryear also turned the tables on Morales, noting that he cited no evidence suggesting that he had Lattimore’s permission to smash the windshield.
Appeal denied.
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October 6, 2010
Texas appeals court upholds phone harassment law
The state law punishing telephone harassment with up to six months in jail does not violate free speech rights and should not be struck down, the Court of Criminal Appeals ruled Wednesday.
Ruling 7-1, the state’s highest criminal court reversed a lower court that found the law was too vaguely worded when it banned repeated phone calls intended to “harass, annoy, alarm, abuse, torment or embarrass.”
“(The law) is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another person’s personal privacy and do so in a manner reasonably likely to inflict emotional distress,” said the opinion, written by Judge Charles Holcomb.
People typically targeted by the harassment law do not intend “to engage in the legitimate communication of ideas, opinions or information; they will have only the intent to inflict emotional distress for its own sake,” Holcomb wrote.
Presiding Judge Sharon Keller dissented, warning that the First Amendment does not allow conduct to be outlawed merely because it is annoying. Yet the Texas harassment law criminalizes phone calls when the intent is to annoy or inflict similar “low-intensity emotional states” such as alarm and embarrassment, she wrote.
Keller would not scrap the entire law, however, noting that the First Amendment does not protect phone calls meant to harass, abuse or torment the listener.
Keller also warned that the harassment law does not define what constitutes repeated harassment. “Is conduct ‘repeated’ if it occurs twice? If the two occurrences are a year apart?” she asked.
“The mischief this statute can create is enormous,” Keller wrote. “If First Amendment freedoms are at stake, we cannot allow the ambiguity in a statute to chill protected expression.”
The court ruled on the case of Samuel Scott, charged by Bexar County prosecutors with harassing a woman by making repeated telephone calls in December 2005 and again three months later by leaving drunken, abusive late-night voice mail messages.
Scott pleaded no contest to harassment after the trial court denied his motion to quash the charges because, he said, they violated the First Amendment. Scott was sentenced to two days in jail and a $50 fine for the Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine.
The 4th Court of Appeals in San Antonio threw out the charges and acquitted Scott in 2009, ruling that the law was so vague it violated Scott’s free speech rights.
But the Court of Criminal Appeals reinstated the conviction Wednesday, saying government may limit speech that invades a person’s “substantial privacy interests,” including repeated phone calls designed to inflict harm on the victim.
Judge Lawrence Meyers did not participate in the decision in Scott v. Texas, PD-1069-09.
Judge Cheryl Johnson filed a concurring opinion.
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September 29, 2010
Court upholds death sentence in Satanism case
Evidence that a death row inmate practiced Satanism was properly introduced at his trial, the Court of Criminal Appeals ruled today.
Defense lawyers had asked the court to throw out Irving Alvin Davis’ death sentence, arguing that prosecutors improperly introduced evidence that dabbling in Satanism showed Davis presented a danger of continued violence.
But the court declined, ruling unanimously that evidence of Satanism did not improperly prejudice jurors or violate Davis’ First Amendment right to freely practice his religion.
“Satanism was ‘another piece of the puzzle’ for the jury to consider,” said the opinion by Judge Cheryl Johnson, who noted that prosecutors also presented evidence of Davis’ past aggressive behavior and the brutality of his crime - the rape, beating and strangulation of a 15-year-old El Paso girl, whose fingers he cut off to remove potential DNA evidence.
Davis’ choice of religion also served to rebut defense claims that Davis had become “a good person” and tried to do the right things while in prison, Johnson wrote.
Evidence showed that Davis changed his religion from Buddhism to Satanism on jail forms in 2005, three years after he was convicted and sentenced to death. In 2007, the Court of Criminal Appeals ordered a new sentencing trial, where prosecutors discussed Davis’ practice of Satanism.
At the new trial and in the appeal, defense lawyers argued that discussing Satanism violated the First Amendment’s protection of religious expression.
But the Court of Criminal Appeals said religious practice may be discussed in court if it can be shown to be “relevant to the issues involved in the case.”
For a capital punishment sentencing trial, where jurors must agree that the defendant remains a danger to society, the court said prosecutors had to show proof of “violent and illegal activities” by Satanists.
A prosecution expert testified that some Satanists advocate violence and that Satanic books, including those found in Davis’ cell, discussed destruction rituals and human sacrifice, Johnson wrote.
“The First Amendment … protects an individual’s right to join groups and to associate with others holding similar beliefs,” Johnson wrote. “It was within the zone of reasonable disagreement for the trial court to decide that the evidence of Satanism was relevant to the issue of future dangerousness and outside the protection of the First Amendment.”
I wrote about this case in July.
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September 22, 2010
Court throws out conviction based on dog scent lineup
The state’s highest criminal court today threw out the murder conviction of an East Texas man, ruling that controversial “dog scent” lineups are not reliable enough to stand on their own in court.
Richard Winfrey Sr. was sentenced to 75 years in prison for the brutal 2004 murder of Murray Burr in his home in Coldspring, about 20 miles east of Huntsville.
No physical evidence tied Winfrey to Burr’s murder, but three deputy-trained bloodhounds indicated that they found his scent on the victim’s clothing.
On appeal, Winfrey’s lawyers claimed he was the victim of unreliable, unscientific scent lineups, where dogs sniff crime scene evidence and try to match it to smells obtained from suspects or from items they have touched.
The Court of Criminal Appeals, however, declined to delve into the bigger question of whether dog scent lineups should be admissible at all. Because Winfrey’s lawyer failed to object to the lineup at trial, the issue was not preserved for review by the appeals courts, a concurring opinion by four judges noted.
Instead, the court ruled 8-0 that prosecutors failed to present any credible evidence, beyond the dog scent lineup, that tied Winfrey to the crime.
“We acknowledge the invariable truth espoused by Justice (David) Souter that ‘the infallible dog, however, is a creature of legal fiction,’” reads the opinion by Judge Barbara Hervey. “We conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.”
I wrote about Winfrey’s case in April, focusing on potential problems with dog scent lineups.
And here’s the story from oral arguments before the Court of Criminal Appeals.
Read more about this decision in tomorrow’s Austin American-Statesman or on-line at statesman.com.
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September 8, 2010
Waldrop quietly leaves 3rd Court of Appeals
Justice Alan Waldrop has left the Austin-based 3rd Court of Appeals, submitting only a vaguely worded letter of resignation to Gov. Rick Perry.
The letter, dated Sept. 2, informed the governor that Waldrop’s last day would be Sept. 10, more than two years before his term was set to expire.
Waldrop gave no reason for leaving, and the 3rd Court of Appeals has yet to announce his retirement. The court’s website still lists Waldrop as one of six sitting judges.
Calls to Waldrop’s chambers were referred to the court clerk, who had no additional information.
Perry appointed Waldrop to the 3rd Court in 2005, and the Republican justice was elected to a six-year term in 2006.
Perry can appoint a replacement to serve out the remainder of Waldrop’s term, which ends in 2012. (It’s too close to November to get the race on the general election ballot, so Perry’s appointee can seek re-election as a two-year incubment.)
Waldrop graduated from the University of Texas Law School in 1987 and joined the Austin office of Locke Liddell & Sapp in 1988, where he focused on civil litigation for 17 years. He also taught trial advocacy at as an adjunct professor at UT in the 1990s.
Waldrop’s departure could deal a blow to the 3rd Court’s efforts to reduce its backlog of cases, once the worst among the state’s 14 regional appellate courts. New judges typically take several months to begin making meaningful contributions to the court’s docket. And longtime Justice Jan Patterson chose not to seek re-election and will leave the court at the end of December, leaving a second vacancy to fill in November’s election.
The 3rd Court of Appeals serves 24 counties, including Travis, Williamson, Hays and Bastrop.
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August 25, 2010
Court upholds Allen death sentence
The Texas Court of Criminal Appeals today upheld the death sentence given to Guy Allen, convicted in 2004 of killing his former girlfriend and her daughter in Northeast Austin.
The brief, unanimous ruling gave no reasons for denying Allen’s petition for a writ of habeas corpus, noting only that the district judge had held a hearing on the petition and recommended that relief be denied.
The court had already upheld Allen’s conviction on a separate appeal.
Barbara Hill and her 19-year-old daughter, Janette Johnson, were stabbed to death in 2002. Hill had thrown Allen out of her house the night before, but he returned early the next morning, court testimony showed.
In a frantic 911 call, Johnson begged police to help her mother, who she said was being repeatedly hit.
“Who’s hitting your mom?” the 911 operator asked as screaming could be heard in the background.
“Oh my God, he locked the door,” Johnson said. “My mom’s friend. He won’t stop hitting her. I can’t open the door. Please, please.”
Police arrived minutes after the 5:05 a.m. call to find both women dead. Hill had been stabbed 46 times, Johnson 10 times. Police found a 3-inch knife used in the killings with Allen’s blood on it, along with the blood of the victims.
Allen, 47, is one of six former Travis County residents on death row. None is scheduled for execution.
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August 20, 2010
Texas Supreme Court takes travel voucher case for Perry's security detail
The Texas Supreme Court will determine whether three newspapers, including the Austin American-Statesman, can see payment and travel records for out-of-state trips made by Gov. Rick Perry’s security detail.
The Department of Public Safety argues that releasing the records would compromise security by giving would-be assailants details of how governor’s security team operates.
The newspapers, citing the Public Information Act, sought the records in 2007 to verify how tax money was spent on the trips.
A state District Court and the 3rd Court of Appeals ordered DPS to disclose the records to the newspapers, ruling that the information is open to public inspection and does not pose a security risk.
The Supreme Court will hear oral arguments in the case Sept. 15.
The other newspapers in the case are the Houston Chronicle and San Antonio Express-News.
Read the Supreme Court briefing here.
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August 19, 2010
Court reinstates indictment in cold case murder
Jimmie Dale White, arrested seven years ago by cold case investigators for the 1986 murder of his North Austin roommate, is going to trial after all.
The 3rd Court of Appeals ordered White to stand trial Thursday, reinstating a murder indictment that was tossed out in 2006 when now-retired state District Judge Jon Wisser ruled that a fair trial was unlikely after the passage of so much time and the death of many witnesses who could have vouched for White.
But the Austin appeals court said dismissal was improper because the delay was not intentional or a bad-faith attempt by law enforcement to gain a prosecutorial advantage over White.
White was arrested in 2003, 17 years after an Austin patrol officer discovered the body of Michael DesJardins in a parking lot at 5550 N. Lamar Blvd. The 23-year-old had been shot in the head, chest and abdomen and dumped in the parking lot.
The investigation led detectives 1.5 miles north, to the home DesJardins shared with White at 1211 Dwyce Drive. The investigation stalled, but according to court records, new information arose through the years, including:
White told his sister that he killed a man in his house and dumped the body in a Lamar Boulevard parking lot. That information came from White’s brother-in-law in 1990.
Also in 1990, a family friend told police that White’s sister once discussed cleaning blood from White’s house while he drove away with a body.
In 1996, a bar patron recalled a 10-year-old conversation in which an intoxicated White had mentioned wanting to kill DesJardins over a debt. White offered to pay the bar patron to help with the killing, police said.
A couple who had purchased White’s house after the murder claimed to have found a bullet hole inside.
Wisser threw out the indictment after defense lawyers presented testimony from their investigator, Lester Ray Johnson, who said as many as 27 witnesses who could have vouched for White’s whereabouts around the time of the murder had died during the intervening years.
Defense lawyers argued that prosecuting White would violate his constitutional right to due process. But the appeals court ruled Thursday that White’s lawyers failed to prove that the delay was intentional, a necessary element for a due process violation.
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June 23, 2010
Court denies appeal in Bastrop child assault
The Texas Court of Criminal Appeals today denied, without comment, an appeal by Stephen Douglas James, a Bastrop man sentenced to two life terms for sexually abusing his adopted daughter.
After his arrest, James (pictured right) jumped bail in 2004 and faked his suicide, leaving his severed finger and a tape-recorded suicide note in a Galveston motel room. He was arrested a year and a half later in Louisiana.
James pleaded guilty in 2007 to two counts of aggravated sexual assault of a child and will be eligible for parole in 2037.
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June 21, 2010
Newest Texas justice sworn in
Gov. Rick Perry’s newest appointment to the Texas Supreme Court, Debra Lehrmann, was sworn into office in a private ceremony early Monday so she could participate in a court conference and discuss pending cases.
During a public swearing-in ceremony Monday afternoon, Lehrmann recalled her plans to pursue a psychology doctorate at the University of Texas. But an internship at the Austin State Hospital, where she met people who had been abused or neglected as children, diverted her to UT Law School in an attempt to help people “earlier in their lives.”
Lehrmann also tearfully thanked her departed parents, “who instilled a sense that I could do anything if I worked hard. … So this is for my mother and father who have done so much for me. Thank you so much, Mother and Daddy.”
The public ceremony at the Capitol included Lerhmann’s husband Greg and sons Gregory, 19, and Jonathan, 18, all eight Supreme Court justices and Attorney General Greg Abbott, a former justice.
Lehrmann, a Republican, now enters her November general election contest against Democrat Jim Sharp, a Houston appeals court judge, as an incumbent, which typically provides a substantial fund-raising advantage.
Lehrmann prevailed in a six-way GOP primary to replace O’Neill, winning a runoff election against Dripping Springs lawyer and former legislator Rick Green.
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June 16, 2010
Appeals court upholds Davis death sentence
A state appeals court today upheld the conviction of Selwyn Davis (pictured below), sentenced to die for the 2006 killing of his girlfriend’s mother in her Austin apartment.
Davis fatally beat and stabbed Regina Lara, a 57-year-old mother of three and grandmother of eight. Prosecutors said Davis was angry that Lara wanted him to stay away from her daughter, Linda Martinez.
The killing capping a two-day, drug-fueled crime binge that included Davis beating and torturing Martinez, sexually assaulting a teenage girl and slicing his uncle with a knife.
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June 14, 2010
Appeals court declines to spare Powell's life
UPDATE: Powell’s lawyer this morning filed an appeal with the U.S. Supreme Court based on the same arguments made to the Texas appeals court.
The Texas Court of Criminal Appeals this morning rejected death row inmate David Lee Powell’s request to halt tomorrow’s execution.
Seven members of the nine-member court unanimously rejected Powell’s request without ruling on its merits. Instead, the court declined to accept the appeal, ruling that it violated a state law that limits death row inmates to one application for a writ of habeas corpus — unless they unearth information that wasn’t available during the first appeal.
Two judges, Paul Womack and Cheryl Johnson, did not participate in the decision.
Defense lawyer Dick Burr had argued that Powell’s exemplary life on death row was new information proving that jurors wrongly concluded that he was a continuing danger. Because the death sentence was based on inaccurate information, executing Powell would be cruel and unusual punishment and violate his due process rights under the U.S. Constitution, Burr argued.
Within an hour of the Texas court’s decision, Burr filed the same arguments with the U.S. Supreme Court.
Powell was sentenced to die for the 1978 shooting death of Austin police officer Ralph Ablanedo. He was 27; the officer was 26 and the father of two young boys.
Now 59, Powell is scheduled to be executed after 6 p.m. Tuesday in Huntsville.
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May 28, 2010
Supreme Court to hear Hyde Park church abuse suit
The Texas Supreme Court agreed Friday to hear Hyde Park Baptist Church’s appeal of a $163,562 award granted to a family whose 1-year-old was injured by a teacher while attending the church’s day care in 2004.
Oral arguments will be scheduled on a future date.
In January 2009, the Third Court of Appeals in Austin sided with the family of Parker Curtis, ordering the church to pay damages for the boy’s future mental anguish and future medical expenses.
The appeals court also rejected the defense argument that the jury erred when it declared Hyde Park Baptist 80 percent responsible for the acts of teacher Sue Lowry, who was accused of using her hip to bump Parker to the classroom floor, where his head was injured.
The case is Hyde Park Baptist Church v. Tara Turner and Terry Curtis, 09-0190.
Read the briefs here.
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May 21, 2010
Appeals court rules in favor of child-killer Raul Meza
Texas improperly placed sex-offender conditions on convicted child killer Raul Meza, a federal appeals court ruled, affirming a lower court decision that said Texas’ parole scheme is seriously flawed.
Parolees labeled as sex offenders, but not convicted of a sex crime, are improperly treated because Texas does not allow them to see the information used against them, does not allow them to appear at a hearing and does not allow them to confront their accusers, the 5th U.S. Circuit Court of Appeals ruled.
In addition to correcting those mistakes, parole officials also must provide Meza and similar parolees with a written decision listing the evidence relied upon and the reasons for attaching sex-offender conditions to mandatory supervision.
The appeals court backed U.S. Judge Lee Yeakel in all but one of the conditions he imposed on Texas last year — inmates like Meza are not entitled to a lawyer when they contest sex-offender conditions, the appeals court ruled.
Meza was convicted of killing of 8-year-old Kendra Page in the playground of a Southeast Austin elementary school in 1982. He was sentenced to 30 years in prison and later received another four years for having a weapon in prison.
Under the state’s mandatory supervision law, which has since been changed, he was released in 1993 when his time served and good-behavior time equaled the length of his sentence. He was put on parole, then returned to prison in 1994 after a curfew violation.
In 2002, he was transferred to a minimum security section of the Travis County Jail when his time served and good-behavior credit again equaled the length of his sentence — and there he has stayed.
Meza’s lawyers say parole restrictions — he must be escorted by a parole officer and cannot approach or cross “child-safety zones such as schools and day cares — have made it impossible for him to find a job. And without a job, Meza cannot obtain housing, requiring him to remain incarcerated beyond his sentence, defense lawyers say.
Last February, Meza was charged with violating terms of his parole by making a terroristic threat and attempting to obtain a pistol. In March, the parole board voted to continue his supervision unchanged, a Texas Department of Criminal Justice spokesman said. Further details were not available.
Read more about the Meza ruling in Saturday’s American-Statesman.
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April 28, 2010
Appeals court says money-laundering law applies in case involving DeLay associates
The Austin appeals court erred in deciding that the state’s money-laundering statute - used to prosecute associates of former U.S. House Majority Leader Tom DeLay - did not apply to transfers made via checks, the Texas Court of Criminal Appeals ruled today.
The court’s 9-0 decision also upheld the state’s election laws prohibiting corporations from making political contributions to candidates. DeLay’s associates - John Colyandro and Jim Ellis - had challenged the law as an unconstitutional infringement on First Amendment rights.
In 2002, the Public Integrity Section of the Travis County District charged Colyandro - working on behalf of Texans for a Republican Majority PAC - with accepting political contributions from corporations.
Colyandro and Ellis also were charged with money laundering by transferring $190,000 in corporate contributions to the Republican National Committee by a check, with a similar amount later returned to the state organization.
The men asked the trial court to dismiss the charges, arguing the money-laundering statute was unconstitutionally vague if it were interpreted to apply to transactions involving something other than cash, including checks.
When the trial court declined, they appealed to the 3rd Court of Appeals in Austin.
In 2008, the appeals court ruled that the money-laundering law did not apply to Colyandro and Ellis because it did not specifically refer to checks.
The law reads: “A person commits an offense if the person knowingly … conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity.” The law defines proceeds as coin or paper money, U.S. Treasury notes and silver certificates and official foreign bank notes.
However, in its ruling today, the state’s highest criminal court chastised the lower court for applying an improper legal standard to its analysis of the money laundering statute.
Writing for the Court of Criminal Appeals, Presiding Judge Sharon Keller said Colyandro and Ellis improperly challenged the constitutionality of the money-laundering statute in a pretrial petition for a writ of habeas corpus. The appeals court had no authority to determine that the law only applies to cash payments, Keller wrote.
Keller also noted, however, that the statute could also be read to apply to checks, Keller wrote, noting that “foreign bank notes” operate on the same principle as checks.
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April 19, 2010
Supreme Court rejects Texas case with judge-prosecutor affair
The U.S. Supreme Court rejected Monday an appeal from Charles Dean Hood, a Texas death row inmate who complained that he was denied a fair trial because his trial judge and prosecutor had engaged in a secret years-long affair.
Announced without comment from the court, the rejection appears to put the issue of the amorous judge and prosecutor to rest for future Hood appeals, though defense lawyers said they were evaluating additional litigation options.
“No one should be prosecuted for a parking ticket, let alone for capital murder, by the district attorney who has had a sexual affair with the judge handling the case,” said Andrea Keilen, director of the Texas Defender Service, which represents Hood. “We will continue to zealously represent Mr. Hood as we believe his case was marred by a fundamental injustice.”
The Texas Court of Criminal Appeals rejected that argument last September, ruling 6-3 that Hood’s lawyers waited too long to raise the issue on appeal — despite defense claims that the affair was impossible to confirm until 2008, when a court ordered the now-retired judge and prosecutor to answer questions under oath.
Last February, however, the Texas court threw out Hood’s death sentence on an unrelated issue — flawed jury instructions — while keeping intact his conviction in the 1989 shooting deaths of two people in Plano.
None of the appeals claimed Hood was innocent, only that his trial or conviction violated the U.S. Constitution.
The Collin County District Attorney’s Office had no comment Monday, but officials said earlier that they were likely to seek the death penalty during Hood’s new punishment trial.
Though they disagreed on the dates, former District Judge Verla Sue Holland and Thomas O’Connell Jr., the former Collin County district attorney who prosecuted Hood, testified that their affair lasted about five years.
Holland, who would later serve on the Texas Court of Criminal Appeals with eight of the nine current judges, recalled their relationship beginning in late 1982, O’Connell in 1984 or 1985. Both testified that they were married at the time and took pains to keep the relationship secret, limiting sexual encounters to each other’s homes when their spouses were away.
Both also had different recollections of when the relationship ended. Holland said the romantic meetings stopped in 1987, O’Connell in mid-1989 or later. Both testified that they remained good friends long afterward, taking several joint trips in 1991. Hood was tried in Holland’s court in 1990.
Hood’s case prompted 30 top legal ethicists and 21 former judges and prosecutors from across the country to file briefs urging the Supreme Court to grant a new trial because the affair undermined public trust in the law, violated the “bedrock principle” that judges must avoid conflicts of interest and tainted the results of Hood’s legal proceedings.
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February 24, 2010
Death sentence thrown out by sharply divided court
A bitterly divided Texas Court of Criminal Appeals today tossed out the death sentence for convicted murderer Charles Dean Hood — but not because his trial judge and prosecutor were having an affair.
The state’s highest criminal court granted a new sentencing trial for Hood, convicted in 1990 of killing two people in Plano, based on frequently shifting U.S. Supreme Court rulings on flawed jury instructions used in the early 1990s.
Hood’s conviction was not affected by the ruling, written by Judge Cathy Cochran.
Hood has been fighting for a new trial based on the revelation — confirmed after several years of digging by defense lawyers — that then-District Judge Verla Sue Holland had been having an extramarital affair with Thomas O’Connell Jr, the former Collin County district attorney who prosecuted Hood.
That effort is pending before the U.S. Supreme Court after the Texas court ruled in September that Hood’s lawyers waited too long to raise the issue on appeal.
Today’s ruling reversed the court’s 2007 decision on the same question — drawing sharp criticism, and even a pointed attack on a fellow judge, in a dissent by Judge Michael Keasler.
“Notably, there is nothing but silence from Judge (Tom) Price, who agreed with our disposition of this case on original submission,” Keasler wrote. “Judge Price’s contrary opinion today is the sole reason that yesterday’s minority view is now the law.”
But Keasler didn’t stop there, accusing the judges who granted relief of engaging in judicial activism — fighting words in the judicial sphere.
“This case provides yet another egregious example of judges legislating from the bench, ignoring what the plurality of our citizens, through their various state representatives, have declared is the law of the state,” Keasler wrote.
Presiding Judge Sharon Keller and Judge Barbara Hervey joined Keasler’s dissent.
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February 12, 2010
Supreme Court to hear appeal on strip club 'pole tax'
The Texas Supreme Court will decide whether the state’s $5 charge on strip club patrons violates the First Amendment right of free expression.
The court agreed today to review a lower-court opinion that found that the so-called “pole tax” improperly singled out a form of expression — nude dancing in establishments that serve alcohol — for regulation.
Oral arguments will be March 25 at St. Mary’s University in San Antonio as the court continues its practice of periodically hearing arguments away from its Austin courtroom.
Last June, the 3rd Court of Appeals in Austin issued a 2-1 ruling affirming a 2008 decision by state District Judge Scott Jenkins to strike down the law, enacted in 2007 to raise money for sexual assault prevention and an insurance fund for low-income Texans.
“While nude dancing ‘falls only within the outer ambit of the First Amendment’s protection,’ it is nevertheless protected as expressive conduct,” said the majority opinion by Justice Diane Henson.
Henson said the $5 fee was an attempt to regulate the content of speech — a practice that is severely limited by the First Amendment — because the comptroller’s office must determine whether a performance is intended to be live nude entertainment.
The tax is imposed “only in those situations in which the taxing authority — the comptroller — determines, after examining the content of the expression, that it represents the ‘essence’ of live nude entertainment,” Henson wrote.
Chief Justice Woodie Jones issued a concurring opinion) that acknowledged that the Legislature could pass such a tax. With this law, however, lawmakers failed to properly establish their reasons for doing so, he wrote.
Justice David Puryear dissented, saying the fee was proper because it did nothing to limit how nude dancers perform.
“Rather than prohibiting any particular act of expression, the statute simply imposes a fee on establishments that desire to allow the consumption of alcohol on their premises and that provide erotic entertainment,” he wrote.
Read the Supreme Court briefs in Susan Combs and Greg Abbott v. Texas Entertainment Association Inc., 09-0481, here.
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January 4, 2010
Appeals court primaries set
There will be only two contested primaries for the state’s highest courts.
On the Texas Supreme Court, incumbent Justice Eva Guzman, named to the court in October, will face Rose Vela of the Corpus Christi Court of Appeals in a Republican primary.
Six GOP candidates will compete to replace retiring Justice Harriet O’Neill — former state Rep. Rick Green from Dripping Springs; appeals court judges Jeff Brown, Jim Moseley, Rebecca Simmons and Rick Strange; and Fort Worth District Judge Debra Lehrmann.
Justice Paul Green drew no GOP opponent.
Democrats will field a candidate for all three Supreme Court seats up for election in November.
Tyler lawyer Blake Bailey will try for Guzman’s seat, El Paso District Judge Jim Moody will take on Green, and Jim Sharp — the only Democrat on the 1st Court of Appeals in Houston — will challenge the winner of the six-way GOP race for O’Neill’s vacated seat.
Moody was the Democrats’ leading statewide vote-getter in 2006 during an unsuccessful attempt to unseat Justice Don Willett.
On the Court of Criminal Appeals, all three incumbents filed for re-election— Cheryl Johnson, Michael Keasler and Lawrence Meyers — and are unopposed in the primary.
Only one Democrat filed, Austin defense lawyer Keith Hampton, who will challenge Keasler in November.
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November 20, 2009
Supreme Court agrees to rehear Exxon well-plugging case
The Texas Supreme Court today granted a rare do-over on its March decision to toss out an $18.6 million verdict against Exxon Corp., which was found liable for sabotaging oil wells in Refrugio County.
The court originally ruled 8-0 that the landowners waited too long to sue Exxon after discovering metal junk, dismantled pipe and randomly placed cement plugs in wells Exxon abandoned in the early 1990s.
Exxon had failed to list many of the obstructions on documents that must be filed with the Texas Railroad Commission whenever oil wells are shut down.
When a new drilling company, Emerald Oil & Gas, tried to re-enter the wells a few years later, the unknown obstructions dramatically increased drilling costs and rendered several wells inoperable, according to court records.
Without comment, the Supreme Court today granted a motion for rehearing from the landowners — heirs of Thomas O’Connor, a penniless Irish immigrant who amassed a land and cattle empire, dying in 1887 as the state’s richest man. The court also will rehear a related case by Emerald.
After a 1999 trial, Refugio County jurors found that Exxon acted with malice in plugging the wells after witnesses, many of them current or former Exxon employees and contractors, testified that plugs and metal refuse were intentionally left at random, unidentified depths.
But on appeal to the Supreme Court, Exxon successfully argued that the landowners did not meet a two-year statute of limitations when filing their lawsuit in August 1996.
The O’Connors argued that the time limit did not begin running until 1995. That’s when Exxon’s well files — acquired from a third party — revealed that the Railroad Commission documents did not tell the true story of how the wells were plugged.
The 13th Court of Appeals in Corpus Christi agreed, noting that the extent of the damage — hidden so far underground — could not be discovered until revealed by the Exxon files.
But the Supreme Court said the clock began ticking in July 1994, when Emerald sent a letter advising the O’Connors about cut casing and junk in one or more wells. The letter “conclusively” established that the O’Connors knew or suspected the wells had been damaged, the court ruled, meaning the family was two months late in filing the lawsuit.
Here’s my original story on the Exxon case.
And here’s a story about Texas Land Commissioner Jerry Patterson’s crusade to have Exxon fined for what he calls the wasteful and deliberate destruction of oil wells after a royalty dispute with the O’Connors.
Briefs in the O’Connor case.
Briefs in the Emerald case.
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November 18, 2009
Abbott asks court to throw out sponge lawsuit
Attorney General Greg Abbott today filed a brief asking the Texas Supreme Court to throw out a lawsuit by Emmalene Rankin, who discovered a surgical sponge lodged against her colon 10 years and eight months after her hysterectomy.
I wrote about her case, and a related sponge case, last September.
The brief, written by state solicitor general James Ho, asks the court to support the Texas statute of repose, which places a strict 10-year deadline on filing a medical malpractice lawsuit.
“Our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not re-examine acts from the distant past that have long since faded from memory,” Ho writes.
“The rule of law is served by clear rules — and that includes traditional rules governing the timing of suit.”
In 1995, Rankin had a hysterectomy at Southwest Texas Methodist Hospital in San Antonio.
Just over a decade later, after pain sent her to a succession of doctors, a surgeon discovered an old surgical sponge lodged in her abdomen.
Rankin’s lawsuit against the hospital and two doctors, however, was quickly thrown out of court for violating the statute of repose, enacted in 2003 as part of “tort reform” legislation designed to lower medical and insurance costs by reducing the number of malpractice lawsuits and limiting the size of malpractice awards.
But last year, an appeals court reinstated Rankin’s lawsuit, ruling that the statute of repose violated the Texas Constitution’s open courts provision.
“The Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit,” ruled the 4th Court of Appeals in San Antonio.
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November 5, 2009
Austin MUD opts out of Voting Rights Act oversight
It’s official. The Northwest Austin Municipal Utility District No. 1 — better known as the Canyon Creek neighborhood in Northwest Austin — is free to make election changes without prior approval from the U.S. Justice Department.
The utility district made national headlines earlier this year by challenging Section 5 of the Voting Rights Act, a key provision that places additional burdens on eight states (and parts of eight others) with a history of voting discrimination.
Any voting jurisdiction in those areas — even a small utility like the Austin district, which elects five board members — cannot make any election change unless the feds agree that minority rights have been protected.
Last summer, the U.S. Supreme Court declined to rule on the utility district’s challenge to Section 5, but the justices did allow small jurisdictions to opt out of the preclearance process if they can prove a history of clean hands in prior elections.
Last Tuesday, a three-judge federal court panel agreed that the Austin district no longer needs Justice Department oversight. Under federal law, the court panel will retain jurisdiction over the case for 10 years in case future accusations of voter discrimination are levied against the utility district.
Read the court order here
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Appellate Courts
November 4, 2009
Appeal denied in Cedar Park strangling
Williamson County prosecutors said Klapesky killed Sansone in her Cedar Park home and hoped to bury her in the backyard of a Hays County friend.
But alerted by that friend, police officers stopped Klapesky near Kyle and found Sansone’s body in the trunk and the couple’s 15-month-old child in the back seat, unharmed. The couple had been married but were separated.
Jurors sentenced Klapesky to life in prison. Today, the Court of Criminal Appeals denied Klapesky’s appeal without elaboration.
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Court denies appeals of DWI murder charge
The Texas Court of Criminal Appeals declined Poth’s appeals without elaborating.
Carolyn Bowles, 54, was driving on FM 1626 in southern Travis County when Poth drove his Honda into oncoming traffic, slamming head-on into Bowles’ Cadillac. Poth’s blood alcohol level was more than twice the legal limit.
Poth, a Smithville resident with three prior drunken-driving convictions, pleaded guilty to murder in 2007. He also pleaded guilty to intoxication assault for injuring his passenger in the same wreck.
Before his trial, Poth’s murder charge was dismissed in favor of intoxication manslaughter, a second-degree felony. The murder charge was reinstated when the Court of Criminal Appeals, in a 6-2 decision, upheld DWI murder charges for defendants with at least two prior drunken-driving convictions.
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October 28, 2009
Laura Ashley Hall loses appeal for new trial, but court grants new sentencing
The state’s highest criminal court refused today to grant a new trial to Laura Ashley Hall, convicted of tampering with evidence and hindering apprehension in the 2005 West Campus murder and mutilation of Jennifer Cave.
Prosecutors sought to reverse a lower-court ruling that threw out Hall’s five-year sentence for evidence tampering. The court ruled that prosecutors unfairly withheld from the defense information about the state’s only sentencing witness.
Hall has been free on $150,000 bail since that February ruling.
The nine-member Court of Criminal Appeals unanimously denied, without explanation, separate appeals by Hall and the Travis County District Attorney’s Office.
The action lets stand the February ruling by the 3rd Court of Appeals in Austin, which said prosecutors improperly withheld information that could have raised questions about the credibility of prosecution witness Doug Conley, a cabdriver who portrayed Hall as “just cold, callous.”
Conley testified during Hall’s punishment phase that she made disparaging remarks about Cave during a taxi ride a year after the murder.
After the trial, however, Conley contacted Hall’s lawyer and revealed that he was unable to identify Hall in a photo lineup with Austin police.
In a sworn affidavit, Conley said he told the district attorney’s office about the lineup. In response, he said, prosecutors showed him a single photo to confirm Hall’s identity, court records show.
In her appeals, Hall argued that prosecutors neglected constitutional protections that require defendants to receive all information that could raise questions about their guilt or impeach the credibility of prosecution witnesses.
Travis County District Attorney Rosemary Lehmberg called the withheld information an unintentional oversight and has vowed to present prosecutors’ full case against Hall to any new jury.
Tampering with evidence carries a punishment of two to 10 years in prison, raising the possibility that Hall could get more jail time — or less.
Hall was accused of helping University of Texas student Colton Pitonyak dismember Cave, whose body was found in Pitonyak’s bathtub with her head and hands removed. Hall and Pitonyak also fled together to Mexico in Hall’s Cadillac.
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October 21, 2009
Skeptical questions greet lawyer of pregnant probationer
The lawyer for Amber Lovill, who claims she was improperly targeted for prosecution because she was pregnant while taking drugs, faced skeptical questioning Wednesday by the Court of Criminal Appeals.
(Read prior coverage on this case here.)
Judge Michael Keasler led the charge, asking what could have been improper about incarcerating Lovill in a drug-treatment facility. After all, Keasler noted, the sentence was imposed after she failed her second drug test while on probation.
Brian Miller, Lovill’s lawyer, insisted that Lovill was selectively prosecuted — treated differently from others on probation — because she was pregnant.
At Lovill’s 2007 probation revocation hearing, a probation officer testified that normal procedure would have been to test Lovill for drugs one week later to determine if her methamphetamine use had continued, Miller said. Other options frequently employed include more testing and random testing, he said.
Instead, Lovill’s probation officer testified several times that Lovill’s pregnancy, and concern her unborn child’s health, motivated officials to recommend that the Corpus Christi woman be immediately incarcerated in a drug-treatment facility, Miller said.
“She was put before the court for an improper reason” — gender discrimination, Miller said.
But, asked Keasler, can’t prosecutors act to protect the health of an unborn child, or is Lovill free to remain an outpatient “with access to drugs?”
“What I’m saying,” Miller replied, “is that (it’s improper) to single out women for additional punishment.”
Judge Cheryl Johnson asked whether Miller would have objected to Lovill’s placement in a treatment center if she was not pregnant. No, he said, because there would have been no improper reason triggering prosecution.
Judge Cathy Cochran said the state should be “given points” for trying to protect the welfare of Lovill’s child.
“If that’s the goal, it’s unsuccessful,” Miller said, warning that a ruling against his client would give two options to pregnant women who experience a relapse in drug use — “be pregnant and go to jail, or show up not pregnant (after an abortion) and be treated like you are a man or nonpregnant woman.”
“We are not advocating for special treatment, we’re advocating for equal treatment,” Miller said.
Doug Norman, assistant district attorney for Nueces County, received a gentler round of questioning, particularly from Keasler, who criticized an appeals court ruling that found Lovill was improperly discriminated against because of her gender and pregnancy.
Keasler said the state has an interest in the health and well being of its citizens. He also noted that the judge who sentenced Lovill to serve time in a treatment center expressly stated that his decision was based on the positive drug test, not the woman’s pregnancy. “Even then, he didn’t revoke probation, he sent her to (treatment),” Keasler said.
Norman said other probationers in a similar situation also have been sentenced to inpatient drug treatment programs.
Judge Charles Holcomb did not participate in oral arguments Wednesday. A decision isn’t expected for several months.
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October 2, 2009
Abbott appeals gay marriage ruling
Texas Attorney General Greg Abbott filed a notice of appeal Friday, halting a Dallas trial court from enforcing its day-old ruling that the state’s ban on gay marriage violated the U.S. Constitution.
Abbott followed through on his promise to appeal Thursday’s ruling by District Judge Tena Callahan, a Democrat, in the case of two Dallas men seeking a divorce after their 2006 wedding in Massachusetts, where same-sex marriage is legal.
Callahan had ruled that the state’s gay marriage ban — enforced by state law as well as an amendment to the Texas Constitution that was approved by 76 percent of voters in 2005 — violated the federal Constitution’s guarantee of equal protection under the law.
All proceedings in the divorce case are on hold until the 5th Court of Appeals acts on Abbott’s appeal.
Abbott’s next move is to file a merits brief outlining his arguments in the case, to be followed by briefing from the other side. That process could take about two months.
(The link to Abbott’s notice of appeal also contains a copy of Judge Callahan’s one-page order.)
Previous story: Texas judge clears way for gay divorce
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September 16, 2009
No new trial for death row inmate Hood
Death row inmate Charles Dean Hood is not entitled to a new trial despite proving that his judge and prosecutor were having an affair during his 1990 trial, the state’s highest court ruled Wednesday.
In a 6-3 ruling, the Texas Court of Criminal Appeals refused to consider Hood’s appeal, saying details of the affair were not properly raised by his lawyers.
State law gives death row inmates one appeal known as a petition for a writ of habeas corpus. Subsequent filings, such as the petition Hood’s lawyers filed last year, cannot be considered unless they contain facts that were not available to lawyers exercising “reasonable diligence” in the earlier appeal.
Hood’s lawyers failed to meet that standard, the court’s unsigned opinion stated without elaboration.
Three judges — Cathy Cochran, Charles Holcomb and Tom Price — dissented, saying they would have sent Hood’s appeal to a lower court to explore the merits of his claim.
Wednesday’s ruling contradicted findings by state District Judge Greg Brewer of Collin County.
Brewer, assigned by the Court of Criminal Appeals to review the latest appeal, determined that Hood’s lawyers demonstrated “extraordinary” diligence in confirming rumors that then-District Judge Verla Sue Holland and Thomas O’Connell Jr., the former district attorney of Collin County, had been having a sexual relationship before and during Hood’s trial.
The judge and prosecutor strove to keep the affair secret, Brewer said, revealing the relationship only when forced to testify under oath in 2008.
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August 14, 2009
Court upholds life sentence for seventh DWI
A state appeals court today upheld the conviction of Martin DiCarlo (pictured), a Williamson County man sentenced to life in prison in 2008 after his seventh drunken driving conviction.
The 3rd Court of Appeals in Austin rejected DiCarlo’s arguments that prosecutors improperly questioned potential jurors.
The appeals court also ruled that a recorded jailhouse phone conversation between DiCarlo and his brother was properly introduced into evidence. In the call, the brother berates DiCarlo for previous drunken driving episodes, and DiCarlo responds, “We all make mistakes.”
The appeals court ruled that the conversation was properly introduced to impeach DiCarlo’s claims that he was suffering a diabetic episode, and that the brother’s coarse language did not make the jury more likely to convict.
The opinion, written by Justice Alan Waldrop, noted other factors that were more likely to sway jurors:
“In a separate, recorded conversation with his ex-wife discussing why he was in jail, (DiCarlo) stated, ‘It’s my fault for drinking and driving.’”
“The arresting officer reported observing signs consistent with intoxication while appellant was driving and while he was performing field sobriety tests.”
“Most compelling is appellant’s blood-alcohol concentration measured by the breath test on which both readings—.139 and .144—were well higher than the acceptable .08 level for legal driving.”
DiCarlo had been previously sentenced to life in prison, in 1997, as a felon in possession of a firearm. He served about 10 years in prison and was on parole for the offense when he was arrested for his seventh DWI in October 2007.
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July 28, 2009
Appeals court to reconsider its open meetings decision
A federal appeals court will reconsider a ruling that, Texas and 18 other states have argued, could cripple laws that require elected officials to conduct most government business in public.
All 17 judges on the 5th U.S. Circuit Court of Appeals will hear the case of two Alpine City Council members who were prosecuted for discussing city business in private e-mails in 2004.
Last April, a three-judge panel of the court ruled that the council members’ free speech rights trumped the Texas Open Meetings Act.
Oral arguments in Rangra v. Brown will be held during the week of Sept. 21 on a date to be determined.
Read earlier coverage here.
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July 8, 2009
Court denies child abuse appeal
A state appeals court today upheld Cesar Mojica Carmona Sr.’s life sentence for causing serious bodily injury to his three young children.
The Hays County man was arrested in 2006 after child-welfare workers discovered his 2-year-old twins with numerous bite marks, broken bones and serious malnourishment. A 3-year-old girl also had bite marks and other injuries.
In his appeal, Mojica Carmona said jurors should not have heard details of his police interview, during which he admitted to hitting and biting the children, because the detective had not honored his request for a lawyer.
The 3rd Court of Appeals, however, said the confession was valid because Mojica Carmona “knowingly waived” his right to have a lawyer present during the interview.
Mojica Carmona also argued, unsuccessfully, that the trial judge should have declared a mistrial because a prosecution witness gave a TV interview after testifying, and that a detective should not have been allowed to demonstrate suspected beating methods by striking a table with a looped electric cord.
In a separate trial, Sara Amaya — Mojica Carmona’s wife — pleaded guilty to injury to a child and received a 30-year sentence.
Wednesday’s 3-0 opinion, written by Justice Jan Patterson, did not discuss Amaya’s case.
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June 19, 2009
Zoning improperly targeted religious practice, court rules
The Texas Supreme Court this morning ruled that a Corpus Christi-area town violated a state law that expanded protection for religious expression when it zoned two Christian-themed halfway houses out of existence.
In a unanimous ruling, the court said the Texas Religious Freedom Restoration Act protected the halfway houses from the town’s zoning rules, which were written to ban correctional facilities from locating within 1,000 feet of a home, school or church — even if the rules did not single out or mention religious practices.
The religious freedom act, passed by the Texas Legislature in 1999, says government may not “substantially burden” a person’s free exercise of religion unless it demonstrates that the law furthers a compelling government interest and is the least restrictive way to further that interest.
Sinton — a San Patricio County town of less than 6,000 residents — clearly placed a substantial burden on Pastor Rick Barr when it effectively banned his halfway houses from locating inside city limits in 1999, said the opinion by Justice Nathan Hecht.
“As a practical matter, the ordinance ended Barr’s ministry, as the City Council surely knew it would,” Hecht wrote.
Further, he wrote, the city failed to prove that its interest in protecting citizens outweighed Barr’s right to practice his religion.
The ruling, however, does not give churches free rein over zoning ordinances, the court warned: “The city’s failure to establish a compelling interest in this case in no way suggests that the government never has a compelling interest in zoning for religious use of property or in regulating halfway houses operated for religious purposes. (The act) guarantees a process, not a result.”
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June 8, 2009
LaCresha Murray lawyer: U.S. Supreme Court appeal likely
The lawyer for LaCresha Murray, who was 11 when she was charged with capital murder in the death of a 2-year-old in 1996, said today he will most likely ask the U.S. Supreme Court to revive Murray’s lawsuit against former Travis County District Attorney Ronnie Earle, police detectives and others.
Last week, the 5th U.S. Circuit Court of Appeals ruled that Murray’s lawsuit had been properly dismissed by a federal judge in Austin.
“I feel pretty strongly that we’ll take it up (to the Supreme Court),” Dallas lawyer Frank Hernandez said, acknowledging that the appeal will be a longshot because the high court takes only a small fraction of appeals.
“You hate to go that long and that far and not say let’s give it one more shot,” he said.
Murray, whose two convictions in the killing of Jayla Belton were overturned after she spent three years in juvenile prison, had sought $30 million for alleged civil rights violations by Earle and several assistant prosecutors, Child Protective Services employees and others.
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June 5, 2009
Appeals court strikes down $5 strip club fee
A $5 charge on strip club patrons, enacted in 2007 to raise money for a sexual assault program and an insurance fund for low-income Texans, must be struck down for violating the First Amendment right of free expression, a state appeals court ruled Friday.
The tax improperly singles out a form of expression — nude dancing — for regulation, the 3rd Court of Appeals in Austin said in a 2-1 ruling.
“While nude dancing ‘falls only within the outer ambit of the First Amendment’s protection,’ it is nevertheless protected as expressive conduct,” said the opinion by Justice Diane Henson.
The appeals court affirmed a 2008 ruling by state District Judge Scott Jenkins to strike down the law on free speech grounds — though the state has continued to collect the tax while the appeals process has continued.
Justice David Puryear dissented, saying the fee is valid because it does not target a specific type of expression.
“The statute imposes no direct limitation on the type of expression that may be exhibited through erotic entertainment,” Puryear wrote.
Chief Justice Woodie Jones wrote a concurring opinion clarifying his views on the use of evidence to determine the Legislature’s purpose in enacting laws.
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June 3, 2009
Appeals court dismisses LaCresha Murray lawsuit
A civil rights lawsuit by LaCresha Murray, who was 11 when she was charged with capital murder in the beating death of a 2-year-old in 1996, was properly dismissed by an Austin judge, a federal appeals court ruled Wednesday.
Murray, whose two convictions in the killing of Jayla Belton were overturned after she spent three years in juvenile prison, had sought $30 million for alleged civil rights violations by former District Attorney Ronnie Earle and several assistants as well as police detectives, Child Protective Services employees and others.
U.S. District Judge Sam Sparks dismissed the lawsuit last year.
Murray and several family members asked the 5th U.S. Circuit Court of Appeals to reinstate portions of the lawsuit. The Murrays also asked the appeals court to reconsider its earlier opinion granting immunity from lawsuit to three police detectives, two assistant district attorneys and a CPS supervisor.
The court denied all requests in a 3-0 ruling.
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May 29, 2009
Appeals court rules in Statesman's favor on DPS records fight
The Texas Department of Public Safety must release payment and travel records for out-of-state trips by Gov. Rick Perry’s security detail, the Austin appeals court said Friday in a ruling that significantly narrows the government’s ability to keep records out of public view.
A 2007 lawsuit by three newspapers, including the Austin American-Statesman, sought travel vouchers for a detailed accounting of how public money was spent by DPS security officers who traveled with Perry or his wife, Anita, to Europe, Mexico, Japan, Grand Cayman, Turkey and other locations from 2001 to 2007.
The lawsuit also targeted a long-standing practice by the Texas Attorney General’s Office to exempt government records from public disclosure if the information could place somebody in “imminent threat of physical danger.”
Known as the “special circumstances” exception, the provision has been used with increasing frequency in recent years, said William Christian, lawyer for the newspapers. In this case, DPS argued that releasing the information would put the governor and security agents at risk during future trips.
But in a 3-0 ruling, the 3rd Court of Appeals said DPS did not prove the existence of a specific or likely threat.
“Rather, the evidence was to the effect that disclosure of the vouchers at all could result in their falling into the hands of some currently unknown person or persons who may turn out to be a threat,” said the opinion, written by Justice Alan Waldrop and joined by Justices Jan Patterson and Bob Pemberton.
The appeals court also declined Attorney General Greg Abbott’s invitation to adopt the special circumstances exception as defined by his agency, noting that the practice violates Texas Supreme Court precedent on privacy rights.
Unless successfully appealed, the decision means the attorney general must apply a far stricter standard — withholding documents only if the information is not a legitimate public concern and contains intimate or embarrassing facts that would be “highly objectionable” to ordinary people, such as sexual assaults or suicide attempts.
DPS and Abbott’s office are reviewing the opinion, spokesmen said Friday.
Read more in Saturday’s print editions.
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April 22, 2009
Court throws out conviction of Crawford protesters
An Austin psychologist and another protester should not have been arrested in 2006 for erecting tents near Crawford as part of Cindy Sheehan’s anti-war protests, the Court of Criminal Appeals ruled today.
Em Hardy of Austin and Hiram Myers of Oklahoma were arrested after refusing to leave tents erected on “Camp Casey I,” a triangle of land formed by three roads near then-President George W. Bush’s ranch.
McLennan County Commissioners Court issued the ordinance banning roadside tents after residents complained about the impact several thousand of protesters were having on the area.
The ordinance, however, did not include any penalty provisions. So when protesters erected tents in April 2006 to challenge the order, Hardy and Myers were arrested for obstructing a highway. A jury found them guilty, and they were fined $150.
An appeals court tossed out the convictions, and the Court of Criminal Appeals agreed, ruling 5-4 that the law banning highway obstructions did not extend to tents pitched several feet away from the pavement.
“Any potential obstruction must be capable of rendering the highway impassable or to render passage unreasonably inconvenient or hazardous,” read the majority opinion written by Judge Cheryl Johnson.
Johnson also noted that the road had been closed to accommodate protesters and media, making obstruction “unlikely,” and that a line of protesters in folding chairs sat closer to the road than the tents but were not arrested.
“Nothing in the record indicates (Hardy and Myers), by sitting in a small tent erected in the bar ditch or by any other conduct, rendered passage more … hazardous than by sitting in a chair in the same location,” Johnson wrote.
“I am so pleased,” said Hardy, who estimated she had attended about 15 protests in Crawford. “I thought it was a real important free speech issue against an administration that was creating crimes and killing a lot of innocent people.”
Presiding Judge Sharon Keller, writing for the dissent, said there was indeed evidence that the tents and protesters were encroaching on the road and presenting an obstacle. Keller pointed to the testimony of a law officer who said vehicles passing side by side could not have traversed the road.
“Video recordings of the offenses were introduced into evidence by both the State and the defense. I have watched them, and they provide further support for the convictions,” Keller wrote, noting that the video shows “how close the tents were to the paved part of the roadway.”
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March 27, 2009
Exxon wins case on plugged oil wells
The Texas Supreme Court on Friday tossed out an $18.6 million verdict that found Exxon Corp. liable for sabotaging oil wells on land belonging to heirs of Thomas O’Connor, who arrived in Texas as a penniless Irish immigrant and died in 1887 as the state’s richest man.
The Supreme Court ruled 8-0 that the O’Connor family waited too long to sue Exxon after discovering metal junk, cut pipe and randomly placed cement plugs in wells Exxon abandoned in the early 1990s.
When a new drilling company, Emerald Oil, tried to re-enter the wells a few years later, the obstructions dramatically increased drilling costs and rendered several of the 34 wells inoperable, court records show.
The O’Connor family can still pursue fraud claims against Exxon, the court ruled, but Emerald has no standing to sue the oil giant because it held no interest in the mineral leases when the wells were plugged.
Read more about the ruling in Saturday’s Statesman.
This is a fascinating case about quintessential Texas industries — ranching and oil — that I wrote about in December 2007.
Friday’s opinions were written by Justice Dale Wainwright, with Justice Harriet O’Neill not participating.
The opinion relating to the O’Connor family is here in a pdf.
The opinion on Emerald is here.
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March 25, 2009
Kucinich loses challenge to Texas Dems' loyalty oath
A federal appeals court has upheld the Texas Democratic Party’s loyalty oath, which requires losing presidential candidates to “fully support” the eventual nominee.
Presidential candidate Dennis Kucinich, whose name was kept off the Texas primary ballot last year after he scratched out the oath on his ballot application, challenged the oath as an unconstitutional limit on his freedom of speech.
The 5th U.S. Circuit Court of Appeals, however, noted that Texas law describes a party loyalty oath as a “moral obligation” because the courts cannot be used to compel compliance.
“Kucinich (pictured right) was thus asked to undertake an unenforceable, moral obligation,” the court said in an opinion released Tuesday night. “More to the point, how a candidate complies with the oath is up to him; the nature of his message is not compelled.”
A candidate may decide that criticizing some of the nominee’s positions does not violate the oath, the opinion said.
“Or, since the oath is legally unenforceable, he may repudiate it, at the risk of losing party members’ support. Or, he may say nothing. The oath, in short, neither abridges his speech, nor tells him what to say, nor impairs the flow of information to the public,” the opinion said.
The opinion — written by Chief Judge Edith Jones and joined by Judges Priscilla Owen and Leslie Southwick — took a passive-aggressive swipe at the Democratic Party practice, twice noting that the ruling does not endorse “the wisdom or utility” of the oath.
“That we find the oath permissible does not, of course, suggest that it is prudent,” the opinion said.
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March 24, 2009
Judge Keller files response to charges
Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, this afternoon filed her response to charges that she violated her judicial duty when she refused to accept an after-hours appeal in 2007.
Keller denies all charges, levied in February by the State Commission on Judicial Conduct, and in the filing offers a six-page list of “additional facts omitted by the commission.”
Keller says she was never informed that lawyers for death row inmate Michael Richard were experiencing computer problems on the day Richard was scheduled to be executed. Asked only if the court clerk’s office could stay open past 5 p.m. to accept a Richard appeal, Keller said no — never intending to shut Richard’s lawyers out of the court, the filing says.
There are other ways to file after-hours documents, Keller says — including contacting a judge or the court’s general counsel. Richard’s lawyers did neither, she says.
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February 25, 2009
U.S. Supreme Court sets date for local case
The U.S. Supreme Court will hear oral arguments April 29 in an Austin utility district’s challenge to a key portion of the Voting Rights Act.
Northwest Austin Municipal Utility District No. 1, which serves about 3,500 customers in the Canyon Creek neighborhood, has asked the high court to overturn a provision requiring that every government in Texas receive approval from the U.S. Justice Department before changing voting procedures.
The “preclearance” provision, known as Section 5 of the act, applies to seven other states - and portions of another eight states - with a history of racial discrimination in voting. Most are in the South.
The utility district claims Section 5 is outdated and no longer necessary to protect minority voters. The case could produce a milestone decision in election law and civil rights.
The district’s brief is here. The reply brief from U.S. Attorney General Eric Holder is pending.
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February 24, 2009
Keller gets extension on filing deadline
Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, now has until March 24 to answer charges that she violated her judicial duties by declining to accept an after-hours appeal from a death row inmate in 2007.
Keller requested, and received, an extension to a 15-day response deadline after the State Commission on Judicial Conduct filed the charges last Thursday.
The next step in the process — appointing a sitting judge to serve as special master for Keller’s trial — cannot take place until the response is filed.
A quick reminder of the process:
The special master, appointed by the Texas Supreme Court, will hold a trial and deliver findings of fact to the Commission on Judicial Conduct, which will vote to exonerate, rebuke or begin proceedings to remove Keller from office.
A removal recommendation is reviewed by a special tribunal of seven appellate court judges, who can dismiss charges, deliver a reprimand or remove a judge from office. A removal ruling can be appealed to the Texas Supreme Court.
Prior coverage includes a story on the charges here and a follow-up looking more closely at the issues here.
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February 19, 2009
Keller violated judicial canons, state agency charges
The state judicial ethics commission Thursday charged Sharon Keller, the presiding judge of the state’s highest criminal court, with violating her duty and bringing discredit upon the judiciary when she declined to allow a death row prisoner to file an after-hours appeal in 2007.
Keller will face a public trial to answer the charges and could be removed from office, reprimanded or exonerated.
“Judge Keller’s willful and persistent failure to follow (her court’s) execution-day procedures on Sept. 25, 2007, constitutes incompetence in the performance of duties of office,” according to a notice of formal proceedings from the state Commission on Judicial Conduct.
The Texas Supreme Court will appoint a special master — a sitting judge from outside Travis County — to preside over Keller’s trial, which has yet to be scheduled.
Keller will be allowed to present evidence, raise objections, and call and cross-examine witnesses in a forum that will resemble many civil court trials, said Seana Willing, executive director of the Commission on Judicial Conduct.
“The judge can put on her case and we can put on our case,” Willing said.
The notice advised Keller of five charges that she violated the Texas Code of Judicial Conduct when she advised the clerk’s office of the Court of Criminal Appeals to close at 5 p.m. on the day death row inmate Michael Richard was to be executed in Huntsville.
Richard’s lawyers, experiencing computer problems, had asked the court to stay open for an appeal based on that morning’s decision by the U.S. Supreme Court to examine whether lethal injection amounted to cruel and unusual punishment.
The Supreme Court review halted all executions for the next seven months — except for Richard’s. Denied the proper forum to raise the appeal, he was executed at 8:20 p.m. that night.
One week later, the Austin American-Statesman reported that Keller made the decision to close without consulting the other eight judges on the appeals court, even though several stayed past 5 p.m. in anticipation of a late appeal. The report ignited global protests and several complaints to the judicial ethics commission claiming that Keller violated her legal obligations and deprived Richard of his constitutional right to court access.
Keller referred questions to her lawyer, Chip Babcock of Dallas, who has not yet returned a call.
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February 18, 2009
Court revives Latino lawsuit against Democratic Party
An appeals court has revived a lawsuit by Latino voter advocates who say the Texas Democratic Party’s method for apportioning presidential delegates is discriminatory.
U.S. District Judge Fred Biery ruled last May that the party did not violate the federal Voting Rights Act, which protects minority voters, as alleged by the League of United Latin American Citizens and other plaintiffs.
But the appeals court ruled Tuesday night that Biery did not have the authority to decide the case. Only a three-judge district court can determine whether the Texas delegate system unfairly dilutes Latino votes by allotting fewer presidential delegates to heavily Hispanic areas, the 5th Circuit Court said.
Read the ruling here.
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February 11, 2009
High court feels disrespected
Texas Supreme Court Chief Justice Wallace Jefferson will give his State of the Judiciary speech today at 11 a.m. in the Texas House chambers.
The audience will include lawmakers, lawyers and legal watchdog groups — but not members of the Texas Court of Criminal Appeals, the state’s “other” high court.
The biennial report on Texas courts will coincide with long-scheduled oral arguments before the Court of Criminal Appeals — and its nine judges didn’t learn of the conflict until a letter from Jefferson arrived in the U.S. mail last week. By then, it was too late to reschedule arguments that will draw lawyers from across Texas.
Learning about the speech by an impersonal letter — and without consultation — left members of the Court of Criminal Appeals steaming.
“It’s disrespectful in our view,” one criminal appeals judge said. “It’s kind of high handed.”
According to Supreme Court spokesman Osler McCarthy, Jefferson and his assistant worked with House schedulers to find a convenient time for the speech. Jefferson did not consult with other justices or the Court of Criminal Appeals “and pleads mea culpa,” McCarthy said.
Jefferson apologized to his counterpart on the criminal court, Presiding Judge Sharon Keller, “for the oversight,” McCarthy said by e-mail.
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January 30, 2009
Hyde Park Baptist loses appeal in abuse case
Hyde Park Baptist Church must pay the full amount of damages awarded to a family whose 1-year-old was abused while attending the church’s day care in 2004, an Austin appeals court ruled today.
Hyde Park Baptist asked the court to throw out most of the $163,562 award to the family of Parker Curtis, saying there was no basis for the future medical expenses award ($34,980) or the future mental anguish award ($100,000).
The 3rd Court of Appeals saw it differently in this decision.
The church also argued that the jury erred when it declared Hyde Park Baptist 80 percent responsible for the acts of teacher Sue Lowry, who was accused of using her hip to bump Parker to the classroom floor, where he injured his head.
The appeals court ruling, written by Justice Diane Henson, made short work of that argument:
“The Curtis family presented evidence that Hyde Park administrators had received numerous complaints from parents and teachers regarding Lowry’s inappropriate and abusive behavior towards toddlers in her care.
“Despite these reports, which spanned a period of 10 years, Hyde Park chose to retain Lowry as a lead teacher in a classroom with children under the age of 2.
“Even after Hyde Park administrators received reports that Lowry had injured (Parker) by intentionally knocking him to the ground, that she had previously knocked other children to the ground, and that she frequently singled (Parker) out for rough treatment, Hyde Park left (Parker) and his classmates in Lowry’s care for several more days.
“The jury also heard evidence that Hyde Park administrators attempted to conceal Lowry’s treatment of (Parker) — and his resulting injury” — even though CPS was investigating the boy’s treatment, Henson wrote.
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January 29, 2009
Supreme Court's Hecht appeals ethics fine
The Texas Supreme Court’s longest serving current justice, Nathan Hecht, has appealed last month’s $29,000 fine for violating campaign finance rules.
Hecht, who received a $167,200 discount on legal fees from the Jackson Walker law firm, should have listed the reduction on his campaign finance reports, the Texas Ethics Commission ruled.
The commission also said the discount — for legal work that helped Hecht overturn a 2006 ethics reprimand from the State Commission on Judicial Conduct — violated the $5,000 legal limit on donations from law firms and from individual lawyers.
In a lawsuit filed Tuesday in Travis County district court, Hecht said the Ethics Commission decision improperly requires lawyers to charge judges differently than other clients.
The decision also creates an absurd result, Hecht charged — law firms that reduce rates provide an illegal campaign contribution, but those that provide free representation are exempt from fund-raising limits.
Representing Hecht in the matter are lawyers Steve McConnico and Diane Reinhart with Scott, Douglass and McConnico in Austin.
Hecht’s lawsuit was reported this morning by Texas Watch, the nonprofit watchdog that filed the complaint that led to Hecht’s fine. They provide the petition here.
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January 13, 2009
Court orders new hearing for 'not guilty' parolee
Two years ago, I wrote about Jimmy Lee Page, a Nacogdoches man who was found not guilty of capital murder, yet served more than 20 years in prison for the crime.
Instead of going free after the 1987 trial in Austin, Page was sent back to prison because his parole had been revoked after his arrest for murder. A hearing examiner ruled that Page probably committed the crime based on the testimony of one witness, a police detective.
(Page was released last summer after his 13th parole review since returning to prison.)
That story revealed that in 2006, 91 Texas parolees were returned to prison after being charged with a new crime, even though the charges against them were later dropped or they were acquitted in court.
Today, a prisoner in a similar situation was granted a new parole revocation hearing by the 5th U.S. Court of Appeals.
The court ruled that Michael Williams of Houston was improperly denied the right to call three witnesses at his 2003 revocation hearing, even though two were housed at the Harris County Jail, where the hearing took place.
The three would have testified that Williams was 30 miles away, fishing, at the time a woman accused him of assault, and “their testimony could very well have tipped the scales for Williams,” the court ruled.
Williams, who claimed the woman falsified the charge in retaliation for his refusal to lend her money, was tried for assault and acquitted. Even so, his parole — granted after he served 21 years of a 99-year sentence for murder — was later revoked.
Williams appealed, unsuccessfully, to the Texas Court of Criminal Appeals and U.S. district court before today’s ruling.
Read the court decision here.
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October 29, 2008
The law's a harrowing preposition
Delivering a grammar lesson and playfully misquoting Shakespeare, the state’s top criminal court today threw out the deadly conduct conviction of a Brazos County man who shot his hallway wall while fighting his twin brother in 2002.
Michael Reed was sentenced to eight years of probation under a state law that enhances the penalty for people who shoot “at or in the direction of” a building — a statute commonly applied to drive-by shooters.
But firing “at” a building requires the shooter to be outside the building, the Court of Criminal Appeals said in a 6-3 ruling. If the lawmakers meant to include shooting “in” a building, they could have chosen another preposition, Judge Cheryl Johnson wrote for the majority.
In a concurring opinion, Judge Cathy Cochran expounded on the three prepositions of place — at, on and in — and noted how each would affect the meaning of the state’s deadly conduct law.
Cochran turned to Shakespeare to drive the point home.
“Didn’t Richard III cry out, while he was at, on, or in Bosworth Field, ‘My kingdom for a proper preposition!’ Well, perhaps it was a horse, but in this case the state’s prosecution fails for want of a proper preposition,” Cochran wrote.
As for Reed, not all is well than ends well. His conviction for misdemeanor assault still stands.
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October 23, 2008
Court stays tonight's execution of Woods
The Texas Court of Criminal Appeals issued a stay of execution this morning for Bobby Wayne Woods, a child killer who claims he is ineligible for the death penalty because he is mentally retarded.
Maurie Levin, a University of Texas adjunct law professor who is representing Woods in his appeal, said the court’s order does not list an explanation for staying Woods’ execution.
Presiding Judge Sharon Keller and Judge Lawrence Meyers dissented, also without explanation.
Levin said she is awaiting further direction from the court, which may include an order for additional briefs or a remand to the trial court for additional fact finding.
“We don’t know what’s coming,” Levin said. “I don’t anticipate hearing anything else today.”
In an appeal filed Tuesday, Woods asked the Texas Court of Criminal Appeals for another chance to prove that he is mentally retarded, a condition that makes him ineligible for the death penalty under a 2002 U.S. Supreme Court ruling.
The Court of Criminal Appeals considered, and rejected, Woods’ mental retardation claims in 2005. But in the new appeal, Woods blamed the adverse ruling on Fort Worth attorney Richard Alley.
Alley, Woods alleged, failed to challenge the prosecutors’ IQ tests as antiquated, did not unearth an easy-to-find test showing Woods’ IQ was 60 and did not collect crucial affidavits from friends and family about Wood’s inability to fully communicate or take care of himself. The new filing has 10 such affidavits.
“Mr. Alley failed in all aspects to adequately represent Mr. Woods,” the petition says.
Alley was featured in a 2006 American-Statesman analysis of court-appointed lawyers for writs of habeas corpus, one of two appeals granted to death row inmates. The analysis found Alley copied large parts of his petitions from previous filings and from other appeals that cannot be considered in a habeas review. A federal court also reprimanded Alley for repeated unethical behavior and poor work on a death penalty appeal in 2002.
Shortly after the newspaper report, the Court of Criminal Appeals removed Alley from its list of lawyers eligible to handle habeas petitions.
Woods was sentenced to die for raping and killing 11-year-old Sarah Patterson of Granbury in 1997. He also tried to strangle her 9-year-old brother, who survived and identified Woods as his attacker.
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October 14, 2008
Justice Ken Law denies intent to suppress dissent in case of DeLay associates
Chief Justice Ken Law of the Austin-based 3rd Court of Appeals has denied that he tried to suppress a colleague’s dissent in a case involving two associates of former U.S. House Majority Leader Tom DeLay.
In an appeal to the Texas Supreme Court, Justice Jan Patterson accuses Law of refusing to file her dissent to last week’s court ruling that Justice Alan Waldrop should not be removed from the money laundering case. Read today’s Statesman story on the matter here.
But in a reply to the Supreme Court, Law says he did not seek to stop Patterson from filing a dissent, only to make her follow the court’s internal procedures by circulating her opinion first among colleagues to give them the opportunity to respond.
“Justice Patterson was informed… that she would not be allowed to circumvent the court’s circulation policy…” Law wrote in his reply. “She was also informed, in writing, that she would be allowed to release her dissenting opinion in accordance with standard court procedure…
“Justice Patterson’s dissenting opinion is currently in circulation at the court and will be released together with any other opinions in the matter upon completion of that process.”
Read Law’s reply to Patterson’s appeal to the Texas Supreme Court here.
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October 8, 2008
Court rejects appeal by Austin death row inmate
The Texas Court of Criminal Appeals rejected death row inmate Louis Perez’s request to overturn his 1999 conviction and sentence for the murders of three people in a South Austin home.
The state’s highest criminal court, with little elaboration, rejected seven points raised by Perez in his application for a writ of habeas corpus. The court had previously rejected Perez’s automatic appeal, which raised alleged points of error that occurred during Perez’s trial.
Perez, 46, of Austin, was convicted in 1999 of killing friend Michelle Fulwiler; her roommate, Cinda Barz; and Barz’s 9-year-old daughter, Staci Mitchell, in their home on Rock Terrace Drive.
During his trial, prosecutors produced evidence that Perez left his shoes, socks and a bloody handprint at the murder scene. DNA matching Perez’s was found under the fingernails of Barz and her daughter, jurors were told.
Perez has maintained his innocence, and his family in 2006 persuaded Travis County prosecutors to conduct additional DNA tests seeking a link to Angel Maturino Resendiz, the infamous “Railroad Killer” who was charged or suspected in at least 14 killings near railroad tracks in Texas and several other states.
No link was found, however, and Resendiz was executed in June 2006.
Perez’s death row information is here.
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Court declines to hear Pitonyak appeal
The state’s highest criminal court refused today to consider an appeal from Colton Pitonyak, who is serving a 55-year sentence for murdering Jennifer Cave in his West Campus apartment in 2005. (That’s Pitonyak in the picture at right, testifying at his 2007 trial.)
The Court of Criminal Appeals denied Pitonyak’s petition for review without comment.
A lower court, the 3rd Court of Appeals in Austin, upheld Pitonyak’s conviction in March.
His lawyers had argued that the evidence was insufficient to sustain the guilty verdict, that the trial court erred by refusing to instruct the jury on lesser offenses such as manslaughter, and that the trial court failed to conduct an inquiry into Pitonyak’s competence to stand trial. A three-judge panel unanimously rejected those arguments.
Pitonyak fled to Mexico after killing Cave, 21, aided by then-fellow University of Texas student Laura Ashley Hall. Hall is serving five years in the case after being convicted of evidence tampering and hindering apprehension.
Hall’s appeal is pending in the 3rd Appeals Court.
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August 4, 2008
Rothgery lawsuit going back to Gillespie County
The 5th U.S. Circuit Court of Appeals has made it official. Walt Rothgery, the Llano man mistakenly arrested in Fredericksburg in 2002, can pursue his lawsuit against Gillespie County.
The appeals court, reacting to Rothgery’s victory before the U.S. Supreme Court in June, returned his lawsuit to Gillespie County in a decision released late Friday.
Rothgery (pictured at right) was wrongfully arrested and jailed in 2002 as a felon in possession of a firearm. Only he wasn’t a felon. A California database listing him as guilty of drug possession was mistaken. But Rothgery, unable to afford a lawyer, could convince nobody in Gillespie County of the error.
Rothgery finally got his court-appointed lawyer — but only after he was indicted by the grand jury and jailed again. The lawyer quickly straightened out the problem and the charge was dropped.
Once free, however, Rothgery found his reputation in tatters. He couldn’t find a job, and his debts piled up.
He sued Gillespie County with help from the Texas Fair Defense Project, an Austin nonprofit, claiming that he should have been appointed a lawyer from the start, when his liberty was restricted by a stay in jail.
The trial court threw out his lawsuit, and the 5th Circuit Court agreed, setting up this summer’s Supreme Court showdown.
The 8-1 decision stated that a criminal defendant’s first appearance before a judge, when his liberty is at stake, triggers the Sixth Amendment’s right to representation by a lawyer.
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July 31, 2008
Voting lawsuit by Texas Democrats loses on appeal
An appeals court has declined to revive a Texas Democratic Party lawsuit that claimed thousands of state voters could be disenfranchised by electronic voting machines used in 100 counties and most major cities, including Austin.
The 5th U.S. Circuit Court of Appeals ruled late Wednesday that U.S. District Judge Sam Sparks of Austin properly dismissed the lawsuit last year.
The eSlate machines are made by Hart InterCivic Inc. of Austin, but the party’s lawsuit targeted the Texas Secretary of State’s Office, which administers state elections.
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July 21, 2008
Court ruling backs TXU coal plant
The 5th U.S. Circuit Court of Appeals refused today to reinstate a lawsuit against Oak Grove, a lignite-burning power plant that TXU Corp. hopes to build in Robertson County.
The Clean Air Act does not allow citizen lawsuits before a facility is built, the court ruled, upholding a lower court decision to toss out the lawsuit by two environmental groups — CleanCOALition and Robertson County: Our Land, Our Lives.
A separate lawsuit in the state courts is still pending, however. That lawsuit challenges a permit to build the power plant, approved last summer by the Texas Commission on Environmental Quality despite a recommendation for denial by two state administrative law judges.
The Oak Grove power plant could provide power for nearly 850,000 homes, but environmentalists fear it will harm air quality as far away as Austin, about 100 miles to the southwest.
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July 17, 2008
3rd Court affirms conviction of man who gave alcohol to Georgetown teen
There are many cases in the local court systems encountered by reporters that don’t gain a mention in the Austin American-Statesman or statesman.com, but that’s not to say they are not interesting. From time to time we’ll utilize Austin Legal to report on some of these cases.
One such case, detailed in an opinion released today by Austin’s 3rd Court of Appeals, chronicles some wild — and potentially dangerous — times after hours at a Georgetown pizzeria. In the opinion, written by Justice Diane Henson, the court decided that evidence in a Williamson County misdemeanor alcohol case was not improperly allowed at trial.
The opinion settles an appeal by Gregory Charles Gorman, who was convicted by a jury last year in Williamson County’s County Court-at-Law #2 of serving alcoholic beverages to a minor. Gorman received a two-year suspended sentence, a form of probation. He also was fined $4,000, half of which he won’t have to pay if he successfully completes probation.
The following is an account of the trial from the opinion, (which you can read in its entirety here):
Gorman was a manager at the Brooklyn Pie Company on February 11, 2006. Before cleaning the restaurant after closing, he prepared some margaritas in a bucket. With Gorman, who was 32 at the time, was a then 17-year-old female employee who was not identified.
At trial, the girl testified that she drank throughout the night from the bucket while helping Gorman clean. The girl’s boyfriend began looking for her and at one point went to the restaurant. He heard loud music and banged on the doors and windows. Finally, Gorman came to the door but denied the girl was inside. While they spoke, the girl appeared briefly naked while Gorman was at the door.
Police were called and found the girl, who testified she did not remember much of the night, hiding in the restaurant, this time with her clothes on. She was taken to the hospital where tests determined she had a .247 blood alcohol level, more than three times the legal limit for driving.
Gorman took the stand and denied that he gave the girl alcohol. His lawyers elicited testimony that he took steps to keep underage employees from consuming alcohol at work.
Prosecutors in turn presented testimony of a former employee who said when she was 17, Gorman frequently gave her alcohol while she was working.
The 3rd Court upheld the trial judge’s decision that the testimony of the former employee was admissible because it showed that Gorman knew that alcohol could be accessed at the restaurant by underage employees and that it was not a mistake that it was available to the 17-year-old girl the night he was charged.
Check back to Austin Legal for future updates on cases in Central Texas that may otherwise escape notice.
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July 16, 2008
David Lee Powell, cop killer, loses appeal
A man convicted and sentenced to death for the fatal shooting of an Austin police officer 30 years ago will not get a fourth trial, the U.S. 5th Circuit Court of Appeals has ruled.
The decision, issued today, paves the way for David Lee Powell to face execution for killing Officer Ralph Ablanedo, who was gunned down during a routine traffic stop in South Austin.
Powell is among the longest-serving inmates on Texas’ Death Row.
“I am just relieved that maybe justice will be served,” said Bruce Mills, who was Ablanedo’s patrol partner the night of the shooting. “I am not surprised. I am pretty confident from what we heard that they would deny the appeal.”
Mills, who is now the director for Austin’s Public Safety and Emergency Management agency, had traveled to New Orleans with dozens of Austin police officers in June for a hearing in front of the court.
Powell’s attorney could not be reached for comment.
Read the opinion here.
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July 14, 2008
Tony Davis, ex-con with unproven legal theory, fined again
Davis, who is not a lawyer, developed the legal argument as part of numerous appeals to his 1998 conviction for fraud and money laundering that resulted in a five-year stay in prison.
None of the appeals succeeded. All Davis managed to get was a $500 fine and sanctions from two courts for filing frivolous petitions.
Today, one of the courts slapped Davis again.
The 5th U.S. Circuit Court of Appeals, which had previously barred Davis from filing petitions without first getting the court’s approval, fined him $1,000 for ignoring its order.
“Davis has continued to file frivolous, disrespectful and vexatious pleadings without obtaining the requisite permission,” according to the order filed Friday but released today.
The three-judge panel also offered some advice: “Davis is cautioned that he should review any pending complaints, motions, and appeals and withdraw any that are frivolous.”
Pending or future frivolous filings will result in additional fines, the court warned.
Read the original story here and follow-up stories here and here.
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July 9, 2008
Murder conviction in Southwest Austin oilman's slaying stands
The Texas Court of Criminal Appeals has declined a petition to review the Travis County murder conviction and 46-year prison sentence of Rhonda Glover, a former rodeo queen who killed her on-again, off-again oilman boyfriend Jimmy Joste in 2004.
The 3rd Court of Appeals in Austin had previously affirmed the sentence and conviction. (Read that opinion here.) With the high criminal court’s decision to decline review in the case, filed last week, the conviction and sentence stand.
Glover, who owned an employee recruiting business, shot Joste 10 times in the home on Mission Oaks Boulevard in Southwest Austin they once shared. At the time, Joste lived there alone.
Before the shooting, she had taken firearms training and one of her trainers testified she once asked how to shoot someone from behind while he was sitting on a sofa. She had practiced firing her gun the day of the shooting at Red’s Indoor Range in Oak Hill.
Glover and Joste had a history of delusional behavior, drug use, excessive drinking and domestic abuse, according to trial testimony. Glover once told a Child Protective Services worker checking on the couple’s son, who was 9 when Joste was shot, that the boy was Jesus Christ; Joste said the boy could “pull stars from the sky.”
Prosecutors said Glover had grown sick of Joste after draining him of most of his family and self-made wealth. Glover said it was self-defense. Her testimony in her own defense made great courtroom dram. A Statesman story on that testimony is linked here.
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Lawsuit against Austin cops can proceed
On Aug. 1, 2004, a troubled man named Shawn Barnard called Austin police to a northside apartment complex. He said his depressed and suicidal ex-girlfriend was inside, and he feared for her safety.
Two officers kicked in the door but found nobody inside. When the door wouldn’t shut, they left Barnard in charge of repairing it.
Instead, he stayed inside to set up an ambush.
An hour later, Staci Bovill returned to her apartment with her new boyfriend, Alex Hopgood. The key slid into the lock, the door slid open, and Bovill found herself staring at a gun.
Her new boyfriend leapt forward to take the gun from Barnard but was shot in the head and back and died. Barnard then killed himself.
Bovill and Hopgood’s family sued the two police officers — Edward Johnson and Yvonne Gunnlaugsson, who is now retired.
On Tuesday, they learned that their lawsuit can proceed.
The 5th U.S. Circuit Court in New Orleans ruled that the officers did not qualify for immunity often granted to public officials. A district court properly declined the officers’ request to dismiss the lawsuit, the appellate judges said.
But the judges noted that their jurisdiction over the case was limited to one question — whether the officers’ conduct could be seen as “objectively unreasonable.” Under the facts presented, that question deserves to be litigated, they said.
Still, the trial judge will need to resolve other unspecified issues to determine whether the officers’ deserve immunity, the panel noted.
Read the opinion, by Judges Jerry Smith, Harold DeMoss Jr. and Carl Stewart, here.
This is a copy of the only photo Staci Bovill had of her boyfriend, Alex Hopgood, who was killed in August 2004.
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June 27, 2008
Supreme Court throws out jury award on religious grounds
The Texas Supreme Court today tossed out a $188,000 judgment against members of a Pentecostal church who physically restrained a teen-ager they feared had come under demonic influence.
Laura Schubert claimed rough handling during the 1996 rituals — involving the “laying on” of hands and intensive prayer — left her disabled by post-traumatic stress disorder. Jurors found that Schubert, then 17, was falsely imprisoned and assaulted by members of the Pleasant Glade Assembly of God church in suburban Fort Worth.
But the state Supreme Court, in a 6-3 decision, said Schubert’s lawsuit violated First Amendment protections on religious expression.
A dissent by Chief Justice Wallace Jefferson, joined in part by two justices, said the Pleasant Glade decision improperly confers sweeping immunity to those who “merely allege a religious motive to deprive a Texas court of jurisdiction.”
The majority opinion.
Jefferson’s dissent.
Justice Paul Green’s dissent.
Justice Phil Johnson’s dissent.
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June 20, 2008
Death penalty defendant complains of Statesman coverage
Got a letter from Milton Dwayne Gobert this week. He’s the Travis County capital murder defendant facing the death penalty whose case will be heard soon by the Texas Court of Criminal Appeals.
Gobert, 35, didn’t like the Statesman coverage (read it here) of the announcement by the state’s highest court that it granted discretionary review in the case.
“When you write about me, write the whole truth and not half truth and implied guilt toward me,” wrote Gobert in opening his four-page letter.
Gobert has has been awaiting trial in the Travis County jail since 2003, when he was arrested and charged with stabbing his ex-girlfriend’s friend, 30-year-old Mel Cotton, in North Austin. Gobert was also accused of stabbing Cotton’s then 5-year-old son, who survived.
His case has been held up on appeals centered around whether a confession prosecutors say he gave to Austin police should be allowed at trial.
State District Judge Bob Perkins, the trial judge, ruled it should not be allowed because Austin homicide detectives continued to question him after Gobert invoked his right to an attorney. The 3rd Court of Appeals agreed with Perkins, and then reversed course and ruled Gobert’s statement was lawfully obtained.
Most of Gobert’s letter quoted from 3rd Court Justice Jan Patterson’s dissenting opinion in the case.
“Police deceived me of why I was there to be questioned and there (sic) manner of questioning,” Gobert wrote. “Your facts were wrong, and implying guilt on me through innuendo were (sic) wrong; so if you want to print something print the truth.”
June 18, 2008
Charles Dean Hood reflected on fear of going to death chamber
Charles Dean Hood, who last night was spared execution when the clock ran out on his death warrant, reflected on his fear of being executed in a recent interview with Texas Monthly, part of which is shown in a video on Editor Evan Smith’s blog here.
After a flurry of appeals yesterday, Hood returned to death row, (read today’s Statesman story here) giving his lawyers more time to pursue recent allegations that he deserves a new trial because when he was convicted of two murders and sentenced to death in 1990, his trial judge and the district attorney on the case were having a secret intimate relationship.
Permalink | Comments (11) | Categories: Appellate Courts, Death penalty cases
Time ran out to carry out execution, officials say
After prison officials said they did not have enough time to carry out Charles Dean Hood’s execution before a midnight deadline last night, officials in Gov. Rick Perry’s office agreed with prison officials’ decision put off the execution, according to a Department of Criminal Justice spokeswoman.
The move ended a legal tennis match (read the Statesman story here) last night in the case of the convicted double murderer who claims he didn’t get a fair trial in Collin County in 1990 because of allegations his trial judge and the district attorney on the case were having a secret intimate relationship.
Following orders from the Texas Court of Criminal Appeals, a Dallas-area judge reinstated Hood’s death warrant after 10 p.m. Hood’s final appeals to the U.S. Supreme Court were denied after 11 p.m., clearing the way for Hood’s execution.
At about 11:30 p.m., Texas Department of Criminal Justice spokeswoman Michelle Lyons said Hood’s execution would commence “any minute.” Hood’s death warrant was set to expire at midnight and officials said it could not be extended.
But Lyons said prison officials, who usually have from 6 p.m. to midnight to carry out executions under standard death warrants, did not feel they had enough time to follow their usual protocol.
Lyons said Hood’s case now returns to the trial court for issuance of a new death warrant. The execution could not be set within 30 days.
Hood was convicted of killing his boss, Ronald Williamson, and Williamson’s girlfriend, Tracie Wallace, in their Plano home. Lyons said family members of Hood’s victims were gathered at the Walls Unit in Huntsville last night and were frustrated by the delay.
Hood’s case is drawing national attention, particularly by legal ethicists, some who say that regardless of whether he is guilty or innocent Hood should get a new trial if an intimate relationship existed between Judge Verla Sue Holland and then-Collin County District Attorney Tom O’Connell.
The action last night was fast and furious and Austin Legal did not have a chance to post any court filings in the case. So here are a few of the more interesting ones:
Motion by Charles Dean Hood’s lawyers asking Court of Criminal Appeals to allow subsequent appeal (includes a statement of Hofstra University Law School Professor Monroe H. Freedman that Hood’s should be granted a new trial. It was endorsed by nine legal ethics scholars and attorneys from Texas and around the country.) See the pdf here.
Collin County prosecutors’ petition to the Court of Criminal Appeals asking the court to order a Collin County trial judge to reinstate Hood’s death warrant. pdf here
Court of Criminal Appeal order that presiding judge in the case reinstate death warrant. pdf here
All documents were provided by Hood’s lawyers, including those with the Texas Defender Service.
June 17, 2008
Time runs out on window to execute Hood
UPDATE, 11:55: The Associated Press is reporting that Charles Dean Hood’s execution was halted because of there was not enough time to carry it out before the midnight deadline set by his execution warrant.
UPDATE, 11:19 p.m.: The U.S. Supreme Court has denied Charles Dean Hood’s final appeals and the condemned double murderer is set to be executed “any minute now,” according to Michelle Lyons, a spokesperson with the Texas Department of Criminal Justice.
UPDATE, 11:10 p.m.: A North Texas judge has reinstated the death warrant ordering the execution of Charles Dean Hood, according to his lawyers. Hood remains in a cell adjacent to the Texas death chamber in Huntsville as prison officials await word on his final appeals.
The Court of Criminal Appeals has ordered a North Texas judge to reinstate the death warrant for Charles Dean Hood. The warrant had been recalled earlier in the day. Prosecutors in Collin County successfully asked the state’s highest court to order the region’s presiding judge to reinstate the case. Hood could be executed this evening if the order is reinstated by midnight, when the warrant expires.
UPDATE, 9:13 p.m.: Prosecutors in Collin County have again this evening asked the Court of Criminal appeals to reinstate the execution warrant for Charles Dean Hood. In one court filing, Collin County Assistant District Attorney Jeffrey Garon asked the court to order the presiding judge of the state’s First Administrative Judicial District to order the execution warrant reinstated tonight. In another filing, Garon asked for “extraordinary writ relief” because “no judge is available to withdraw the order.
Meanwhile, Texas prison officials say that Hood remains in a holding cell adjacent to death row in Huntsville. The execution warrant that prosecutors are trying to reinstate expires at midnight.
Update: The Court of Criminal Appeals has ordered that a district judge in Collin County had no authority to withdraw Charles Dean Hood’s death warrant. However, the state’s highest court said in an unsigned order that since the judge has now recused himself from the case, the Court of Criminal Appeals has no authority to order the judge to reinstate the death warrant. Hood’s lawyers say they are unsure whether Collin County prosecutors will file additional motions this evening in an attempt to prompt Hood’s execution.
Charles Dean Hood’s scheduled execution today was delayed after a state district judge recalled Hood’s death warrant in the wake of recent allegations that the district attorney and trial judge in the case had a secret intimate relationship that may have undermined Hood’s right to a fair trial.
But Hood’s fate this evening remains unresolved as prosecutors in Collin County have appealed for the state’s highest criminal court to overrule the district judge and order the execution to proceed. The Associated Press reports that state prison officials have declined to return Hood to death row, pending the outcome of the appeal.
“Only in Texas. Only in Texas,” said Lawrence Fox, who teaches law at Harvard University and the University of Pennsylvania and has been watching the case closely.
“If we’re going to have the death penalty in America, then we better conduct the proceedings in a pristine way … If it (the relationship between the judge and district attorney) is true, he is entitled to a new trial in front of another judge and it doesn’t make a difference that everyone thinks he is guilty.”
Hood is a former bouncer for a topless club convicted of killing his boss, Ronald Williamson, and Williamson’s girlfriend Tracie Wallace in their Plano home. He claims he is innocent.
Last week, Hood’s lawyers argued in appeals that the trial judge in the case, Verla Sue Holland, could not have provided Hood with a fair trail while involved in a long-term intimate relationship with then-Collin County District Attorney Tom O’Connell. O’Connell actively participated in the case, the appeals said. Holland is now retired and O’Connell is in private practice.
The Court of Criminal Appeals on Monday ruled unanimously that the allegations came too late in the process to be considered.
Hood’s lawyers then appealed to court where he was convicted and sentenced for relief.
After hearing arguments by telephone today, Judge Curt B. Henderson, sitting in the 296th District Court in Collin County, where Hood was convicted in 1990, submitted an order recalling the “execution “date and the death warrant.”
In a separate order, Henderson recused himself from the case. He gave no explanation for his actions.
At 5:36 p.m., Hood’s lawyers were notified that the Collin County District Attorney John R. Roach filed two motions asking the Court of Criminal Appeals to overrule Henderson, who Roach claimed “clearly abused his discretion by attempting to withdraw the execution date without authority.”
Hood's death warrant withdrawn but prosecutors challenging
UPDATE: At 5:36 p.m. this evening, the Collin County prosecutors filed a motion asking the Texas Court of Criminal Appeals to withdraw the trial court’s order and allow Charles Hood’s execution to proceed tonight, according to Hood’s lawyers.
A state district judge in Collin County has withdrawn the death warrant for Charles Dean Hood, who had been scheduled to die this evening for a 1989 double murder in Plano, according to his lawyers.
They had argued in recent appeals that Hood deserves a new trial because of allegations that the trial judge and the then-Collin County district attorney had a secret romantic relationship during the trial.
With execution imminent, lawyers may appeal to Supreme Court
Lawyers for Charles Dean Hood, a former Dallas-area topless club bouncer scheduled to be executed this evening, said they are considering an appeal to the U.S. Supreme Court to challenge his conviction citing allegations that Hood’s trial judge had a romantic relationship with the district attorney.
Hood’s lawyers contend he should get a new trial because of the allegations they made in appeals last week that Hood’s trial judge, Verla Sue Holland, and then-Collin County District Attorney Tom O’Connell, had a romantic relationship at the time of the trial. Read Chuck Lindell’s stories on the appeals here and their rejection by the Texas Court of Criminal Appeals here.
Texas Defender Service Executive Director Andrea Keilen issued the following statement on behalf of Hood’s lawyers this afternoon:
“Nothing is more fundamental to the right to a fair trial under the U.S. and Texas constitutions than an impartial judge. Mr. Hood’s right to a fair trial was denied when Judge Verla Sue Holland failed to recuse herself even though she was engaged in an intimate relationship with Collin County District Attorney Tom O’Connell. It is unacceptable that the Texas Court of Criminal Appeals dismissed Mr. Hood’s application for writ of habeas corpus and motion for stay of execution on technical grounds, rather than hearing the merits of his case.
This is an outcome that Texans cannot accept. Ten of the nation’s leading legal ethicists agree that the romantic relationship between the DA who prosecuted Mr. Hood and the judge who presided over the case renders the proceedings ‘invalid per se.’ Today, we are considering other avenues of litigation, including an appeal to the U.S. Supreme Court.
No court has ever been presented with the facts of Judge Holland’s relationship with District Attorney O’Connell. It is an irrevocable wrong to send a man to his death without ever hearing this critical evidence.
Only days ago, on June 3, 2008, Matthew Goeller, an assistant district attorney in the Collin County District Attorney’s Office from 1987 to 1996, filed an affidavit testifying that “[i]t was common knowledge” that Judge Holland and District Attorney O’Connell “had a romantic relationship” for several years, including the time of Mr. Hood’s trial and death sentence.
It is nonsensical for the Court of Criminal Appeals to hold that Mr. Hood should have brought this claim sooner when key witnesses came forward only recently. Dismissals on such technicalities in death cases belong in fiction, not our state courts.
Almost a year ago, Michael Richard was executed because the Court of Criminal Appeals locked the courthouse doors after Richard’s attorney’s computer broke down and the attorney requested an extra 20 minutes to file the stay motion. Incredibly, as Mr. Hood’s case shows, little has changed in Texas. Texans demand that their judges care enough to be impartial and fair, especially when it is literally a matter of life and death.”
June 11, 2008
State's highest criminal court to decide if Austin police violated rights of defendant facing death penalty
A man facing the death penalty in Travis County in the 2003 stabbing death of his ex-girlfriend’s friend will have his case heard by the Texas Court of Criminal Appeals, the court announced Wednesday.
The state’s highest criminal court will determine whether Milton Dwayne Gobert’s recorded confession to stabbing 30-year-old Mel Cotton in North Austin should be admissible at his trial.
At issue is what Gobert (shown at right) said to Austin homicide Detective Michael Burgh the day after Cotton was found dead.
“I don’t want to give up any right, though, if I don’t got no lawyer,” Gobert said, according to court documents.
Burgh and Detective Kerry Scanlon both asked: “You don’t want to talk?” Gobert then agreed to talk to them and signed a card saying he understood the rights he was waiving.
After a few questions, Scanlon again asked Gobert if he was sure he wanted to give up his right to a lawyer. Gobert said he was sure.
During the interview Gobert said he wrestled a knife away from Cotton and stabbed her with it, court documents show. Her 5-year-old son also was stabbed but survived.
Defense lawyers say Gobert clearly asserted his right to a lawyer and that police should have ceased questioning him. Prosecutors say that Gobert’s statement about a lawyer was not clear.
In 2006, state District Judge Bob Perkins sided with Gobert’s defense lawyers and ruled that nothing Gobert said could be used at his capital murder trial.
A three-judge panel of the Austin-based 3rd Court of Appeals in April 2007 affirmed Perkins’ ruling. Chief Justice Kenneth Law and Justice Jan Patterson agreed with Perkins and Justice David Puryear dissented.
Prosecutors asked the Court of Criminal Appeals to take the case, but before the 3rd Court forwarded the case up the ladder for review, the justices took another look. In October, Law changed his mind and sided with Puryear. The court then ordered that Gobert’s statements could be used during his trial.
Gobert’s lawyers then asked the Court of Criminal Appeals to take the case. With its ruling Wednesday that it would accept, the court said it would entertain oral arguments in the case. The date has not been set.
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June 3, 2008
Read the appeals in today's stay of execution
The Texas Court of Criminal Appeals granted a stay of execution for Derrick Sonnier this afternoon.
The stay was requested by Texas Defender Service lawyers, including Maurie Levin in Austin.
The request for a stay is here.
The organization also filed a second petition that goes into greater detail.
Both petitions argued that the Texas court has not reviewed the way the state administers lethal injection despite requesting briefs on two challenges. The motions also noted that Texas recently changed its execution protocol, but no court has reviewed the change.
The court halted tonight’s execution without elaborating.
Sonnier, 40, was sentenced to die for the 1991 killing of a suburban Houston woman and her son. Melody Flowers and her 2-year-old son, Patrick, were stabbed. She also was beaten with a hammer and strangled. He has maintained his innocence.
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For appeals team in sect case, timing was crucial
According to conventional wisdom, Child Protective Services was going to prevail in the Texas Supreme Court — proving once again that the word “wisdom” may not belong in that phrase.
Prognosticators saw portents in the Supreme Court’s incredibly tight deadline, issued last Tuesday afternoon, that gave sect mothers less than one day to submit a brief opposing CPS.
Lawyers for the state, and even a lawyer for the mothers, privately figured the 9 a.m. next-day deadline was a slap that meant the justices were ready to back CPS in the child-custody fight and merely wanted to cross every T before ruling.
Doug Alexander, one of five appellate lawyers who would spend the next 19 hours developing the mothers’ brief, said he didn’t think about what the dealine meant.
“We didn’t have time to be nervous,” Alexander said. “Our focus was getting that sucker on file before 9.”
Appellate law is frequently tedious and, aside from the challenge of making oral arguments before nine often skeptical justices, rarely described as electrifying.
But “it was an exciting 19 hours” as Alexander and the appellate team banged out the ideas, and then the brief.
The room also contained Amy Warr from Alexander Dubose Jones & Townsend (Alexander has been practicing before the Supreme Court for about 20 years. Warr joined the firm last year but made an impression a decade ago by beating Alexander in her first Texas Supreme Court case. Or as Alexander puts it: “She kicked my butt.”)
The other lawyers were from Texas RioGrande Legal Aid — Robert Doggett, Julie Balovich and Amanda Chisholm. Their organization directly represented about 50 of the mothers and — with Warr — filed the original appeal that succeeded at the 3rd Court of Appeals in Austin.
“It was a collaboration in the best meaning of the word, where we really did during 19 hours bounce a bunch of ideas off each other, and in the division of labor,” Alexander said.
The team made the court’s deadline, and the justices delivered their 6-3 ruling around 4 p.m. the same day — setting up Monday’s reunion of sect families across Texas.
Doug Alexander
Amy Warr
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May 29, 2008
Baby scalding verdict upheld, despite lost tapes
The 3rd Court of Appeals in Austin today upheld the murder and injury to a child conviction of a woman who killed a baby in 2003 by putting him in a scalding bath, ruling in part that her trial was not rendered unfair when the state lost potentially exculpatory videotapes containing interviews of her children.
Carmen Mejia is serving three concurrent life sentences in the death of 10-month-old Abelardo Casiano, whom she watched while his father, who rented a room at her North Austin duplex, worked as a roofer.
Lawyers for Mejia, who was 34 when convicted and sentenced by a jury in state District Judge Mike Lynch’s court in 2005, argued that the evidence was insufficient to convict her of injury to a child and that she should get a new trial because prosecutors lost the videotapes.
The 3rd Court opinion, written by Justice David Puryear and joined by Justice Jan Patterson and Chief Justice Kenneth Law, can be found here.
“Appellant notes that the videotapes were potentially exculpatory evidence, “ Puryear wrote, “but a showing that lost evidence might have been favorable is not sufficient.”
Puryear explained that Mejia’s children, whom she suggested could have put Abelardo in the scalding tub, were available to testify and written notes from their previous interviews were provided to the defense. There was no proof that the state acted in bad faith in losing the interviews, Puryear wrote.
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