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

In the best interest and protection of R.M. (Published Memo): Civil commitment case under Tex. Health & Safety Code Ann. § 574.034(a) (Vernon 2003).   R.M.  threatened his brother.  When the police came, he threatened them, too.  He was taken into custody and given a psychiatric evaluation.  The doctor then sought to have R.M. sent to Rusk State Hospital.

R.M. had some interesting things to say to the doctor that night.  Turns out R.M.'s a Texas Ranger, and Governor Bush named him superintendent of the Rusk State Hospital.  At a hearing the next morning, the doctor testified to these statements, and R.M.'s erratic and aggressive behavior.

That's evidence supporting the application for a 90 day commitment.

R.M. points out that, at the hearing, he admitted that he was bipolar.  He promised to take his meds.  He denied the bit about running the assylum.  He explained that his claims of being a Ranger, while admittedly misleading, were truthful (R.M. is a graduate of Kilgore College, and in that sense, is a Ranger).  All-in-all, R.M. tried to talk his way out of going to Rusk State Hospital.  That's actually a sensible thing to do.

But the trial court had ruled against him.  R.M. would have liked a "do-over" before in the Tyler court.  He didn't get it.  Because of the standards of review on his legal and factual sufficiency points, the Tyler court just looks to see if there was evidence to support the trial court's decision.  In the words of the opinion:

The trial court was entitled to disbelieve R.M.'s testimony and disregard evidence contrary to the State's position. See id. at 27. Further, R.M.'s testimony does not negate the evidence that he is unable to have his needs met in the community. In light of the entire record, we cannot say that the trial court could not reasonably form a firm belief or conviction that R.M. is distressed and that his ability to function has deteriorated, thereby requiring further inpatient mental health services.

R.M. may not get to run the place, but he's going there.

P.S., an anonymous poster once pointed out that all civil decisions are published.  True. But I didn't want to get into a discussion of the Texas Rules of Appellate Procedure and the difference between the publication standards for civil and criminal cases.  I figured most trial practitioners and the general public would find the blog more accessible if I used a common nomenclature. Apologies to my non-lawyer readers.  My blog is listed on the new website for the Appellate Section of the State Bar of Texas, and there are all sorts of fellow appellate geeks who may be looking at TylerAppeals for the first time.

• Email This
• Print
• Comments
• Trackbacks

In the best interest and protection of B.L. (Published Memo): Another case where a defendant declared incompetent to stand trial refuses the medication that could render him competent.  Here, the doctor for the State filed an application to force B.L. to take his meds.  But the Tyler court has already held that a bare application isn't evidence.  So B.L. wins this appeal.

This is the same result, and the same reasoning, of the earlier Tyler case of In re E.G.  As noted in that post, the Rusk State Hospital is in the jurisdiction of the Tyler court.  As you might imagine, there are constitutional issues raised by forcing someone to take medications.  If I had to place bets on what sort of Tyler case might eventually end up in the Supreme Court of the United States, this is where I'd go "all in."

• Email This
• Print
• Comments
• Trackbacks

Christopher v. State (Unpublished Memo): What county has venue when an officer feels something as he pats a suspect down, but doesn't conduct a strip search until he takes the suspect to a jail in a nearby county?  Answer: the county with the jail.

Christopher was pulled over 937 yards on the Smith side of the Smith/Cherokee county line.  He was pulled over because his car didn't have a front license plate.  To make matters worse, Christopher didn't have a driver's license, and his passenger had an open alcoholic beverage.  The DPS Trooper patted them down for weapons.  The Trooper didn't feel weapons, but did feel something he figured was contraband.  The Trooper then took the two to the Cherokee County Jail. A strip search of Christopher revealed several "Halloween bags" of cocaine in a place that it taint polite to mention.

Christopher appeals his Cherokee County convictions on grounds that Smith County had jurisdiction.  The statute on county-line crimes provides that: "An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties. . . ." Tex. Code Crime. PRC. Ann. art. 13.04 (Vernon 2005).  The Trooper had mistakenly believed that he was within that zone, and that's why he took Christopher to Cherokee County.  But that doesn't mean Christopher wins the venue issue.

The key question is whether it's fair to say that Christopher possessed cocaine in Cherokee County, or the Trooper manufactured venue by taking him there.  First off, the Trooper had no obligation to conduct a strip search in the field.  Second off, Christopher's back seat ride with the Trooper qualifies, in the words of the Tyler court as:

"voluntary under section 6.01(a) of the penal code in that it was not accidental. See Alford v. State, 866 S.W.2d 619, 623 (Tex. Crime. App. 1993); Brown v. State, 89 S.W.3d 630, 632-33 (Tex. Crime. App. 2002).

Finally, it's worth mentioning that Christopher resided in Cherokee County.  The venue challenge is denied conviction affirmed. 

By the way, Christopher's challenge to the chain-of-custody of the cocaine goes nowhere.  If you want to accuse the cops of misplacing something, try something a little less conspicuous than Halloween bags.

• Email This
• Print
• Comments
• Trackbacks

Wells et al. v. Dotson (Published): A simple fact pattern results in a decision of "affirm in part, reverse and render in part, reverse and remand in part, and dismiss for want of jurisdiction in part."

Put this one in your files for the proposition that ratification is not a defense to breach of fiduciary duty, breach of contract, fraud, statutory fraud, or unjust enrichment.  Also, note that conduct surrounding and leading up to a contract is logically related to the contract and part of the same transaction for purposes of Tex. Civ. Prac. & Rem. Code Section 16.069.

• Email This
• Print
• Comments
• Trackbacks

Palestine Herald Press v. Zimmer (Published): High school football coach's defamation suit dismissed because a column calling his end-of-game victory dance unsportsmanlike and "obscene" was not a matter subject to "objective verification" and hence, not actionable.

I don't know if I'd be able to recognize the place if East Texans ever stopped being a little crazy about their high school football.  Fear not.  Craziness still reigns.

Jacksonville and Palestine have a long rivalry.  In 2006, the game was in Palestine.  The home crowd's hearts were broken when, down by two, their Wildcats' last second field goal attempt was blocked.  Naturally, the visiting Jacksonville Indians erupted in jubilation.  Including the D-Coordinator, who (in the words of the decision)  ...

ran onto the field with his right arm overhead ... leapt into one of his players' arms near the middle of the field between the twenty and thirty yard lines ... [then, after the player let him go] turned generally toward the Palestine team's sideline as he pumped his right fist in the air once ... then raised both fists to the side of his head, and abruptly thrust his arms downward to his hips three times while slightly bending his knees and sidestepping toward the thirty yard line ... [all the while] yelling with elevated excitement as he motioned ... then ....

There was a little more, but you get the idea.

The sports columnist for the defeated home team took umbrage.  He wrote a column calling out the coach.  The coach could have blown off the column.  Or he could have issued a statement that he was caught up in the moment and didn't intend to offend.  Instead, the coach sued.  The suit went nowhere because the columnist was entitled to express his opinion. 

As any fan of NBC"s Friday Night Lights would tell you, Coach Taylor (played by Kyle Chandler and pictured above) wouldn't have done the dance.  And wouldn't have sued.

• Email This
• Print
• Comments
• Trackbacks (1)

In the matter of RR (Published Memo): Juvenile conviction for negligent homicide affirmed.  A fourteen year old was driving two of his friends in his dad's Suburban at high speed along a dirt road in stormy conditions.  He lost control and hit a tree.  One of the driver's friends was killed.  They had gotten bored at the driver's dad's house, and were on their way to the driver's mom's house to get a Sony Playstation.

RR challenges the State's petition for failure to state an offense, failure to meet the Family Code's standards of specificity, and failure to meet the "particularity" threshold needed to satisfy due process in juvenile cases.  All of these are denied.

RR also contended that this was just a plain and simple accident, not criminally negligent homicide.  Basically, RR argues the reasonableness of his speed.  There were some pieces of evidence that could be construed to get the speed down into a more reasonable range.  The friend that survived testified that he saw the Suburban's speedometer, and it read 65 m.p.h.,  He admitted, however, that the vehicle was skidding at that point, and the freely spinning wheels may have caused a higher reading than the vehicle's actual speed.  Likewise, the Trooper who investigated the wreck admitted that he didn't do a precise speed workup from the length of the skid marks, etc.

The Tyler court doesn't get into the speed debate.  The Tyler court begins by observing that RR didn't have a license, and shouldn't have been driving at any speed.  And, as to speed, the evidence may not have established it to the exact mph, but it did establish that RR was driving too fast for a wet dirt road.  That's enough to support the trial court's judgment.  RR was placed on probation until he turns 18.

• Email This
• Print
• Comments
• Trackbacks (1)

State for the Protection and Best Interest of EG (Published): Statements in a civil application to compel an incompetent criminal defendant to take his meds aren’t proof warranting forced medication.

EG was declared incompetent to stand trial on a cocaine possession charge. He was ordered to a mental hospital. In the hospital, he’d do crazy things like snort artificial sugar.

His doctor diagnosed him with schizophrenia, and prescribed several drugs to treat him (and restore his competency to stand trial). EG may be crazy, but he ain’t stupid: he refused to take the meds. (Who didn’t see that one coming?)

So the doctor filed an application under Tex. Health & Safety Code Ann. § 574.106 to compel EG to take the meds. This statute is relatively new.  For an overview, here is the bill analysis from the 79th Texas Legislature in 2005.

The trial court granted the application. The Tyler court of appeals reversed and rendered.

Statements in the doctor’s application were not backed up by testimony. Under the statute, there must be clear and convincing evidence that: 1. the patient doesn’t have the “capacity” to make his own decision about the meds, and 2. the meds are in the patient’s best interest. The factors going into “capacity” are the patient’s ability to: a.) understand the nature and consequence of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and b.) make a decision whether to undergo the proposed treatment. These factors are viewed in light of: i.) the patient’s expressed preferences regarding treatment with psychoactive medication, ii.) the patient’s religious beliefs, iii.) the risks and benefits, from the perspective of the patient, of taking psychoactive medication, iv.) the consequences to the patient if the psychoactive medication is not administered, v.) the prognosis for the patient if the patient is treated with psychoactive medication, and vi.) alternatives to treatment with psychoactive medication.

That’s a lot of i’s to dot and t’s to cross. Perhaps the doctor could have done that here. The problem was that the doctor made the right assertions in the application, but didn’t touch all the bases in his testimony. In particular, the doctor explained neither EG’s illness, nor how (untreated) the illness robs his capacity to make decisions about medication, nor how treatment would be in EG’s best interest. Since the court found there was “no evidence” on these elements of the State’s burden of proof, there was no need to get into the finer points of the legal sufficiency standard of review, and certainly no need to reach the factual sufficiency question.

Forcing incompetent criminal defendants to restore their competency with meds is a very knotty and very hot issue. Take, for example, the Elizabeth Smart case. The Utah Supreme Court is currently (March, 2008) considering the emergency motion of one of the defendants, Wanda Barzee. Like EG, Barzee, was declared incompetent to stand trial, and also like EG, Barzee refuses to take psychiatric medications. The United States Supreme Court issued a decision in this area in 2003, Sell v. United States, 539 U.S. 166, 177 (2003)(holding that a person has a “’significant’ constitutionally protected liberty interest in avoiding an unwanted administration of anti-psychotic drugs.”)

And then there’s the related issue of: “How much wiggle room is there between criminal ‘competency’ to stand trial and civil ‘capacity’ to refuse medication?”

With Rusk State Hospital in the Tyler court's jurisdiction, the Tyler court is, and will be, on the front lines of this issue.

• Email This
• Print
• Comments
• Trackbacks (1)

Connor v. State (Unpublished Memo): If there’s one thing worse than drunk dialing, it’s drunk dialing from jail as the conversation is being recorded. It’s just not a good time to threaten your cheating wife.

Nothing remarkable about the case except the facts. Conner objects to the recording as inadmissible and the officer’s testimony as opinion and hearsay. 

The officer's testimony was hearsay.  He didn't hear the conversation live.  A jailer did.  The jailer called the officer to come listen to the recording.  The jailer didn't testify.  The officer did -- based on what he'd heard on the tape.  Connor objected to some of the officer's hearsay, but also let some of it come in without objection.

The officer also offered an inadmissible opinion.  The officer testified that Connor's wife must have been "annoyed" by the call.

"Annoyed" didn't begin to cover it for the wife.  She testified that Connor told her that she "needed to be out of town prior to him being released from jail . . . and he told me that we would talk but it would be with his fist.”  She (sensibly) took that as a threat of serious bodily injury.  That covers anything the officer said and then some.

Unanswered question:  Are routinely recorded jailhouse calls admissible? The Tyler court didn't rule on the admissibility of the tape.  Instead, the Tyler court assumed, "without deciding" that playing the tape for the jury was error.  Error that was made harmless by, among other things, the wife's testimony.

• Email This
• Print
• Comments
• Trackbacks