East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Brown v. State (Unpublished Memo): Thirteen year old steps into an argument between his mother and her boyfriend.  The boyfriend hits the young man in the head with a boot (it appears that the boot was wielded by hand).  The (now-ex) boyfriend is convicted of injury to a child.  He appeals on grounds that there's insufficient evidence to support the conviction.

On the one hand, there's: the testimony of the kid, the testimony of his mother, the testimony of an officer who saw the freshly-swollen knot on the kid's head, and the fact that the boyfriend had boots on him.

On the other hand, the boyfriend says he didn't do it.

Outcome: The Tyler court gives the boyfriend's appeal a "Boot to the Head!" (my reference, not the court's, to a late-80's comedy bit by the Frantics.)  The album art depicts the application of the boot to the the boyfriend, not the kid. 

Hate to see kids having to grow up in a heartbeat.  Kudos to the kid for being the biggest man in the room.

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In re Sames (Published Memo):  An attorney's effort to get two attorney-members of the District 2B Grievance Committee disqualified was denied a hearing by the trial court. On mandamus, the Tyler court rules that the trial court had discretion to deny the hearing.  There was no point in the trial court hearing a motion that was doomed to failure.  The attorney had filed a disqualification motion based on Tex. R. Civ. P. 18a, which deals with judges, instead of Texas Disciplinary Rule 2.06, which deals with the disqualification of grievance panelists. 

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In re Pilgrim's Pride (Per curiam dismissal): Normally, you won't see posts about one-line dismissals by agreement of the parties.  But this one got my interest.  The case involves one man, Magdiel Rivera, against Pilgrim's Pride.  It appears that Pilgrim's Pride wanted to force the case into arbitration.  The trial court had ruled against Pilgrim's Pride, keeping the case in the judicial system.  Pilgrim's Pride brought a mandamus action in the Tyler court.  While the mandamus was pending, the parties agreed to arbitration.

What was Rivera's case about?  Did it have any merit?  Were there any twists in the case that would flesh out unsettled areas of the law?  We'll never know. 

See this prior post about a Tyler decision dealing with arbitration.  The decision in that post resulted in a third party being left out of an arbitration that would directly address claims that the third party had standing to bring in court.  If you want to get a feel for the mess generated by the multi-party ramifications of arbitration, take a look at last year's In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex. 2007) (Discussed in the extented post.)

Continue Reading...

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Johnson v. State (Unpublished Memo): Robbery conviction affirmed.  Prospective juror's brother worked at the store that was robbed (a Brookshire Bros. grocery store in Lufkin), but the brother was not involved in the Johnson incident.  The record was silent on whether the prospective juror was personally acquainted with his brother's co-workers.  The prospective juror at first indicated that he'd definitely favor his brother if his brother testified (he didn't) and might favor his brother's co-workers.  Then the prospective juror backed off, saying: "No, I don't think I would.  I'd try not to."  The trial court refused to disqualify this prospective juror, and he was seated.  Given the prospective juror's ambivalent answers, the Tyler court defers to the trial court's discretion to judge the prospective juror's demeanor and tone of voice.

Johnson had stolen a sausage.  He hid it in his pants.  I know, I know, some of you are wondering why I didn't have a witticism about this in the title.  Well, Justice Bass took the high road, and so will I.  Here's why: this was not a joke.

Store personnel confronted Johnson in the parking lot.  Johnson stopped, answered their questions, and gave back the sausage.  When asked if he had anything else, Johnson answered: "I got a .38."  The store manager sent everyone else back inside to call the police.  Johnson stayed around.  When the police came, they didn't find a weapon on Johnson.  They did, however, find a crack pipe.

On appeal, Johnson says that there was no reason to turn this petty theft into a robbery charge.  Johnson says that, since he didn't really have a gun,  the store personnel had no real reason to fear him.  Justice Bass disagreed.  In an eloquent turn of phrase, he stated: "An escaping thief's announcement that he has a pistol is enough to inspire fear in the boldest citizen."

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Gipson v. State (Unpublished Memo):  This is the companion piece to the Skinner case.  Gipson was convicted of helping Skinner and Skinner's common-law wife steal copper in Angelina County.  Gipson argues that the circumstances and the testimony of his accomplices don't add up to evidence that he knew the copper was stolen.  The Tyler court thinks they do.  Especially in light of Gipson's story to police.  Though he lives in Lufkin, Gipson told police that he was in Houston on the morning of the crime when Skinner just happened to look him up for help unloading the truckload of copper.  The problem with that story is that, at the early hour Gipson said he was being picked up, video at the Angelina County recycling plant showed two men stealing the copper.  In the words of the Tyler court: "The jury could have reasonably concluded that Skinner and the copper could not be in two places at the same time."

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Reggie v. State (Unpublished Memo): It's a state jail felony to use a vehicle to evade arrest.  Texas Penal Code § 38.04(b).  Under Texas Penal Code § 38.04(b)(2)(A), it's a third degree felony to use a vehicle to evade arrest if you've got a prior conviction "under this section."  Reggie had a prior conviction for evading arrest, but that one wasn't in a vehicle.  So does "under this section" mean any evading arrest conviction, or is it limited to a prior vehicular evading arrest?

Any evading arrest will do.  Section 38.04 is entitled "Evading Arrest or Detention."  The provision concerning the use of a vehicle is a subsection.

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Skinner v. State (Unpublished Memo): A jury acquitted Skinner of stealing copper from an Angelina County recycling center.  But they convicted him of theft for trying to sell the stolen copper.  Skinner says the acquittal on the burglary charge means that he shouldn't have been tried in Angelina County on the theft charge.  True enough, the attempted sale of the copper was in Houston.  But Skinner took possession of the stolen copper in Angelina County.  Venue was proper.  Conviction affirmed. 

Copper theft case. Security video at an Angelina County recycling center caught two people getting out of a rented moving van at 4 a.m. and loading it with copper. The van was rented to Skinner’s common-law wife. Around 5 a.m., Skinner, and a friend picked up Skinner’s wife in the van. They headed for Houston. By 9:00 a.m., they arrived, and set about trying to sell the copper. The first facility they tried refused to buy the copper -- something just didn’t seem right. The manager of the second facility was on the phone with the Angelina County recycling center getting a “heads up” when Skinner arrived. Skinner was arrested on the spot. Skinner was charged with burglary of the recycling center and theft of the copper.

The key fact in the case is that Skinner’s wife lived in Angelina County. While the jury wasn’t convinced that Skinner was one of the two people on the security video, they were convinced that Skinner was in the van in Angelina County, there was stolen copper in the van, and Skinner wasn’t exactly bringing it back to the Angelina County recycling center.

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Goshen v. State (Unpublished Memo): This case points out the "Vannortrick Gap."  Before accepting a plea, trial courts are supposed to let defendants know about the rights they are waiving, and the potential consequences of a guilty plea.

If a trial court doesn't touch all of the bases on the discussion of rights, the defendant doesn’t get a slam dunk appeal. Instead, under “harmless error” analysis, he must show that his plea would have changed had he been told his rights and/or the potential consequences of the plea. Except ...

The Court of Criminal Appeals made a blanket rule requiring that pleas be set aside if the defendant’s citizenship status isn’t in the record and he wasn’t told that a guilty plea could result in deportation. Vannortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App. 2007).  So the defendant can get a slam-dunk appeal after all.

The trial court didn't know about Vannortrick because it hadn't been handed down at the time of the plea hearing.  Thankfully for Goshen, Vannortrick was handed down before his appellate brief was due.  See the docket sheet. 

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Hole v. State (Unpublished Memo): When there’s no objection at trial, a party claiming his counsel had a conflict of interest must show that the conflict was “actual” not potential, and must also show that the conflict actually impacted the quality of the representation: Counsel’s prior representation of defendant’s partner-in-crime (now turned State’s witness) was not an actual conflict and did not taint counsel’s representation of defendant.

The chase was on. Mr. Hole was at the wheel. Mr. Wilson was in the passenger seat, using Hole’s rifle to fire at the pursuing officers. Wilson made a plea agreement with the State and testified against Hole. Wilson said this escapade was Hole’s idea. Hole said it was Wilson’s.

To be precise, Hole claimed he’d never have fled but for his fear of the crack-addled Wilson.

Hole’s trial counsel had represented Wilson a year earlier on a drug-related matter, but did not represent Wilson concerning this event. Even so, Hole said the prior representation created an “actual conflict-of-interest” for his counsel, requiring a new trial.

The Tyler court ruled that the prior matter and the current trial were “not connected.” There was no conflict.

In any event, Hole had to do more than show that there was a conflict, he had to show that the alleged conflict tainted the representation.

Hole’s gripe was that his counsel didn’t cross-examine Wilson about his crack habit. But Hole hadn’t told his attorney about Wilson’s drug-of-choice. And the record was clear: Hole’s counsel didn’t cut Wilson any slack. During cross-examination, counsel got Wilson to admit that he was “highly intoxicated” at the time of the event, and that his memory “wasn’t too good.” But the real clincher was that Wilson had more to lose that Hole from being arrested – on account of Wilson being on deferred adjudication for failure to register as a sex offender.

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In re Herbert (Unpublished Memo): Herbert's appeal bond was revoked in a criminal case.  He brought a combined habeas corpus/mandamus motion in the Tyler court.  The habeas motion was dismissed for want of jurisdiction because "courts of appeals do not have original habeas corpus jurisdiction in criminal law matters."  The mandamus was denied because there was an adequate remedy at law -- a regular appeal of the order revoking the bond.

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