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 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."

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On July 25th, the Supreme Court of Texas issued five identical decisions indicating that it would hold off on deciding the constitutionality of a provision of the Family Code dealing with appeals from terminations of parental rights.  That's probably a hint to the Texas Legislature to address the issue in the next session.  All well and good.  But what should trial judges do while waiting for a new statute?

Well, two of today's twenty-two decisions from the Texas Supreme Court deal with appeals from terminations of parental rights.  One case, In the interest of G.B., et al., reiterates the high court's position that it will hold off on deciding the constitutional issues.  The other, In the interest of M.N., a child, offers some help for trial judges in these in-between times.

Under the Family Code, terminated parents have fifteen days to file their statement of appellate issues.  But is that fifteen days a hard-and-fast deadline, or may a trial court grant extensions?  Today, the Supreme Court of Texas said that trial courts have the authority to extend the fifteen day deadline.

But there was a lone dissent.  Rather than butcher Justice Willett's brief words, here they are

For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy of this hard-and-fast deadline, but few can dispute its clarity.

I fully understand the Court’s desire for leniency in enlarging the fifteen-day deadline beyond the statute’s terms. Appealing the termination of one’s parental rights is serious business, and having such rights vanish because of a counsel’s (or pro se litigant’s) mis-calendaring is nigh unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible.

The Legislature wanted these cases to proceed with alacrity, reducing post-judgment delay by barring appellate consideration of tardy points. I would take lawmakers at their word: fifteen days means fifteen days. Squeezing out delay, however, does not permit squeezing out due process. It is one task to honor a fast-tracking statute’s unambiguous text and refuse to judicially rewrite it under the guise of construction. It is quite another to examine whether that text, however plain, unconstitutionally restricts due process or other guarantees. Terminating parental rights cannot warrant terminating constitutional rights.

I would (1) hold that court-made rules of procedure do not trump the Family Code’s fifteen-day deadline and then, assuming preservation, (2) confront head-on whether this statutory deadline violates Durham’s due-process rights or any other constitutional provision.  Because the Court does neither, I respectfully dissent.

 

In a footnote, Justice Willett notes that the Supreme Court of Texas has granted review of a petition squarely presenting the constitutional questions.  I still stand by my earlier prediction that the issue won't be decided until the Legislature takes another look at this.  But I could be wrong.  The 81st Regular Session of the Texas Legislature convenes on January 13th, 2009.  If there aren't any good bills in the works on day one, Justice Willett may have an easy time of bringing other Justices over to his way of thinking.

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Chapman v. TDCJ-ID (Published Memo): An inmate on a work detail fell from a ladder.  He sues, alleging improper supervision, and a defect in the ladder (lack of non-slip rubber feet).  The suit is dismissed as frivolous under Texas Civil Practice and Remedies Code Chapter 14.

Following the Chapter 14 standards the trial court found that the claim's "realistic chance of ultimate success is slight."

The Tyler court reviews that decision under an abuse of discretion standard.  The State of Texas is immune from suit unless it has given permission to sue.  Permission to sue has been given for the "use of tangible personal property."  But no such permission has been given for cases of mixed use and nonuse.  Chapman's complaint about the ladder and being left alone is a mixed claim.  The claim was therefore frivolous.

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Bailey v. State (Unpublished Memo): Evocative, provocative, loaded with death.  A reproach, but not a relic.  Yet sometimes, a source of justice.  Bailey is an African-American.  There were no African-Americans on his jury.  The Tyler court affirms his conviction of aggravated assault with a deadly weapon.

Bailey appeals on Batson grounds.  In 1986 the Supreme Court of the United States shifted the burden in jury selection.  Before Batson, defendants who felt that the prosecutor struck a prospective juror over race had to come up with proof that the prosecutor had an improper motive.  A daunting task as long as the prosecutor kept tight lips on the matter.  But the Batson decision changed that.  All a defendant need do is allege that a prospective juror was excluded based on race, and the burden then falls on the prosecutor to come forward with a race-neutral basis for the exclusion.  The move-counter-move doesn't end there.  The defendant can offer proof that the prosecutor's supposed legitimate basis is nothing but a pretext.

The Tyler court finds that the prosecutor's reasons were not a pretext.  The prosecutor used four of his ten strikes on four African Americans.  When Bailey lodged a Batson challenge, the prosecutor said that he struck the four because they were young, favored rehabilitation over punishment, or knew the defense attorney.  Bailey then pointed out that whites meeting those criteria had not been struck.  The prosecutor testified those prospective juror's ties to law enforcement outweighed their youth and rehabilitation leanings.  The trial court believed the prosecutor, and the Tyler court believed the trial court.

Bailey isn't exactly Tom Robinson.  Bailey admitted that he was the shooter, but said that he was't shooting at anyone -- he was just shooting in the air.  To prove a point to a man in the front yard, and in front of a house full of children.  "But," says the Tyler court, "shooting in a person's direction is not required to commit an aggravated assault."  Normally, that would end things. 

The prosecutor, however, unnecessarily alleged that Bailey shot at the man in the front yard.  Even so, the Tyler court doesn't get into the question of whether the prosecution must prove allegations that go beyond the statutory elements of the crime.  Let's assume they did have to prove it.  There was plenty of evidence that Bailey was lying -- that he was shooting at someone.  Thus there is evidence to support the conviction.

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Harris v. State (Unpublished Memo): It's tampering with evidence if there's an investigation underway, or you know you committed a crime.  Harris was riding his bike on the wrong side of the street at night without "proper illumination."  He was in what Tyler PD officers describe as a "high drug" area.  The cops stopped Harris to question him.  He mumbled his name, because he was busy eating something.  The officers asked Harris to spit whatever it was out of his mouth.  But all that was left in the spit and in his mouth were a few green leafy flakes.  The officers had their suspicions, and Harris admitted that he had swallowed a marijuana "roach."

By eating the evidence, Harris turned a possession charge into a tampering with evidence charge.  That's a bad deal.  Especially in light of his prior felony DWI.  He got sixteen years.

Harris contends that he can't be guilty of tampering with evidence because there was no ongoing investigation at the time he was chewing.  In essence, Harris contends you can't be convicted of tampering when the investigation was really into whether there was tampering.

But that misses the Tyler court's point.  Texas Penal Code Section 37.09 make the destruction of evidence illegal if there is an ongoing investigation or if you know you've committed a crime and you try to cover your tracks before an investigation even gets started.  The conviction is affirmed on that prong of the statute.

Harris also argues that sixteen years is disproportionately long for eating a roach.  The Tyler court rejects that argument because: 1. Harris waived it because he didn't make it to the trial court; 2. His sentence is within statutory guidelines so, at least on the face of it, the sentence is constitutional; and 3. The Supreme Court of the United States, in Rummel, affirmed the constitutionality of a habitual offender law that turned a $120.75 crime into a life sentence.

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Crocker v. State (Published): Since 2005, DWIs from as far back as records can be found can be used to enhance the sentence of a new DWI.  That's a change.  It used to be that DWI convictions more than ten years old couldn't be used.  Like it or not, the change is constitutional.  Someone needs to give a heads up to folks currently having a mid-life crisis who are figuring that all of that "college stuff" in the 1970's, 80's or 90's is water under the bridge.

Crocker had 1992 and 1993 convictions and new, 2006 offense.  He argued that the ten years had run on his old counts as of 2003, and (under the ex post facto doctrine) the 2005 change in the law should not revive them.  The infinite look-back should only apply to offenses committed in 2005 and beyond, after the infinte look-back took effect.

Crocker's argument is rejected.  True, the constitutions of both the United States and the State of Texas prohibit ex post facto laws (i.e., punishing someone for acts that only became criminal because of a law passed after the fact). But Crocker is in trouble because of his 2006 actions; the State is not coming back and trying to give him stiffer sentences for the 1992 and 1993 offenses.

Crocker also argues that the old law, the ten year limit, was a promise that he was entitled to rely on.  He makes an analogy to a deferred adjudication case, Scott.  In Scott, the defendant plead guilty to a sex crime, was sentenced to deferred adjudication, and successfully completed his sentence.  At that time, the law provided that successful completion of deferred adjudication would prevent the offense from ever being used to enhance a sentence for a future crime.  Sure enough, the Texas Legislature decided to change the law to allow deferred adjudications to enhance future sentences.  And, (also sure enough) Scott committed another crime.  But the Court of Criminal Appeals held that Scott was entitled to rely on the law at the time he completed his deferred adjudication.  So his prior offense could not be used to enhance the sentence for his current one.

Unfortunately for Crocker, the analogy doesn't hold.  The limitation on the future use of Scott's deferred adjudication was a clear and definite part of the deal for that offense.  The ten year DWI look-back window was not a clear and definite limitation on his 1992 and 1993 sentences.  Instead, it was a conditional pledge by the Legislature that could be changed.  In the words of the Tyler court :

"the former ten year time limitation on the use of DWI convictions 'was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.'" (quoting a Houston case, and citing cases from Austin and San Antonio that reached the same conclusion on this issue.)

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Hamilton v. Thompson, et al. (Published Memo): Prisoner's civil rights suits against eleven TDCJ-ID employees is dismissed without a hearing (or rehearing) for failure to comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  There have been several decisions by the Tyler court this year on this provision.  This time, the prisoner listed his prior pro se lawsuits, as required, but did not provide the required summaries of what he was claiming in those suits and their outcomes.

The prisoner also objects on equal protection grounds to the portion of the dismissal order that assessed court costs against him.  He hadn't raised that issue before the trial court, so the Tyler court rules that it was waived.  Even so, the Tyler court goes on to say that the equal protection argument fails because the prisoner made no showing of disparate treatment.

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A blogger just pointed out a factual error in a Supreme Court decision, Kennedy v. Louisiana..  The Supreme Court recently said that it would be cruel and unusual for Louisiana to execute child rapists.  The reason?  "Evolving standards of decency" determine what is cruel and unusual, so the Supreme Court looks to "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions."  This tallying of jurisdictions for and against a  punishment is known as the "consensus" analysis.  Granted, the consensus analysis isn't the only factor (if it were, the Supreme Court would be a Romanoff Czar worthy ostentatiously glorified Faberge Egg of an adding machine).  The Supreme Court also lists its "own independent judgment" as a factor.

But, let's be honest, Kennedy was much more of a consensus case than an "independent judgment" case.  For example, here are some excerpts from the opinion:

In 1925, 18 States, the District of Columbia, and the Federal Government had statutes that authorized the death penalty for the rape of a child or an adult.

Between 1930 and 1964, 455 people were executed for those crimes.

To our knowledge the last individual executed for the rape of a child was Ronald Wolfe in 1964.

Then came Furman in 1972, and a period of wholesale re-analysis of the death penalty.  As to the post-Furman  era ...

44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty.As mentioned above, only six of those jurisdictions authorize  the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

See what I mean?  Kennedy is a "consensus" case.  The problem? 

The Supreme Court got the tally wrong -- there's an Act of Congress authorizing the death penalty for child rape.  It's in a 2006 revision to the Code of Military Justice.  The Justices didn't catch it.  Their briefing clerks didn't catch it.  None of the attorneys filing briefs with the Supreme Court caught it.  (Maybe this is a sign we've got too many laws).

Dwight Sullivan, former top-level JAG sort who has a blog on military justice caught it, as he was reading the decision.  The the NY Times coverage is here.  As Sullivan said, the military justice system remains "the Rodney Dangerfield of legal systems."  Which is odd, given all of the Gitmo/non-combatant detainee cases working their way through the judicial system.

Will the Supreme Court revisit Kennedy because of this?  Highly unlikely.  So we're left with a Supreme Court case that's the equivalent of Super Bowl XIII.  For those of you who aren't Cowboys fans, it boils down to this: There were glaring late-game officiating errors that hurt the 'Boy's chances of winning.  In fact, the Steelers won.  They probably would have won anyway.  Probably. 

Questionable outcomes are great for sports radio.  Horrible for the judicial system.

Update: Don Cruse over at the Supreme Court of Texas Blog has an excellent post on this topic.  Don has a link to the Solicitor General's statement accepting some responsibility for this oversight.  What's more, Don did the legwork to discover that the Senate voted 98-0 in favor of the 2006 bill.  So, yes, Don thinks this is a big-deal.

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Thompson v. State (Unpublished Memo): As the United States Supreme Court was holding that the death penalty for child rape is cruel and unusual punishment, the Tyler court was deciding its own, much lower profile, cruel-and-unusual case.

Thompson pled guilty to aggravated robbery.  A trial on punishment resulted in a forty year sentence.   The statutory punishment range for aggravated robbery is 5 to 99 years, or life.  Although Thompson did not object on cruel-and-unusual grounds at trial, the Tyler court nonetheless considers the issue.  Since the punishment is within the statutory range, and in light of Rummel v. Estelle, the Tyler court upholds the sentence.

In 1980, in Rummel, the United States Supreme Court considered the habitual offender aka "three time loser" law.  The Supreme Court upheld a life sentence for the three successive crimes of fraudulent use of a credit card to obtain $80.00 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses.

But an interesting twist to the Kennedy v. Louisiana case is that it doesn't mention Rummel.  It's not because the Supreme Court's memory doesn't go back that far.  The opinion in Kennedy contains this bit:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic "precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367 (1910).

So what does it mean, if anything, that the Supreme Court reached all the way back to 1910, but didn't mention anything about a 1980 case?  Should Kennedy be put into a special category because it was a death penalty case?  Or does it signal that Rummel would be decided differently today?  And what of the broad "5 to life" statutory range?

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There's only one Tyler case in this week's orders from the Texas Supreme Court.  It's a denial of the petition for review in Geiger v. Williams.  Geiger is prisoner's civil rights suit against five TDCJ employees and six employees of UT Medical Branch.  In December, 2007, the Tyler court had affirmed the dismissal of Geiger's claims because Geiger failed to comply with Tex. Civ. Prac. & Rem Code Chapter 14.  What's interesting to me is that the Tyler court's April, 2008, decision in Archer held that Chapter 14 doesn't apply to claims against individual employees.  I'm wondering if Geiger made this point, or if Geiger's claims were otherwise barred by sovereign immunity.  Archer's claims fit within the Tort Claims Act waiver of immunity because they involved the use of a motor vehicle by the TDCJ employees.

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Archer v. TDCJ-ID, et al. (Published Memo): On January 9, 2008, the Tyler court issued the Crosby decision.  It held that inmate civil right suits could be dismissed without a hearing if the inmate's pleadings don't comply with Tex. Civ. Prac. & Rem. Code Chapter 14.  This case shows that Crosby doesn't apply to suits against prison officials in their individual capacity.

Archer is an inmate at the Powledge unit in Palestine, Texas. He got burned when attempts to start a diesel engine went awry. He had been working on the engine at the direction of TDCJ-ID employees. He filed suit against TDCJ-ID, as well as the individual employees.

The Texas Civil Practice and Remedies Code imposes procedural requirements on inmates filing civil rights claims against the State. For one thing, the prisoner has to exhaust administrative appeals within the prison. Archer did not do that here. Consequently, his claims against the State were rightly dismissed by the trial court.

But Archer had sued the employees, too.

The Texas Tort Claims Act waives sovereign immunity for claims involving the use of a motor vehicle. Since that's how Archer got his burns, his claims against the individual employees could proceed. What's more, the administrative grievance process within the prison only covers claims against the prison itself, not the prison's employees. It was an abuse of discretion to dismiss those claims for failing to comply with the Texas Civil Practice and Remedies Code.

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