Friday, July 28, 2006

Mistrials and Sanctions

This week the Civil Law Series, “Client Sues Lawyer,” looked at situations in which clients and lawyers had disagreements which ended up in the courtroom. There are also situations where the lawyer gives a client legal advice that results in improper conduct on either the lawyer or client’s part. Today in Part IV of the Civil Law Series investigation into lawyer-client disagreements, The Texas Law looks at a case from the Court of Appeals for the Seventh District in Amarillo. In the case we shall see what can happen when a lawyer gives a client advice that turns out to be contrary to law.

Texas law prohibits certain forms of evidence, for example hearsay. In many cases, the prohibited evidence contains information which would benefit a lawyer’s case. To get around the prohibition lawyers use other rules which may allow the evidence to be admitted. Here, lawyers walk a very fine line. When they cross the line the danger exists that the trial may be tainted because the jury sees evidence which may be so prejudicial that it makes a fair trial impossible. When this occurs, the judge must declare a mistrial. Today in Part IV of the Criminal Law Series on Evidence, The Texas Law looks at a case from the Court of Appeals, Ninth District at Beaumont to investigate when evidence introduced is so prejudicial that the judge is left with no choice but to declare a mistrial.

Civil Law Series
Part IV of “Client Sues Attorney”

Yolanda Nelson and her attorney, James L. Johnson, sued Albertson’s Inc. for damages resulting from Nelson’s fall in an Albertson’s store. When James W. Watson, attorney for Albertson’s, was taking Nelson’s deposition, Johnson advised her not to respond to several of Watson’s questions. Johnson claimed the information sought by Watson was protected by the Attorney-Client Privilege. Watson disagreed and filed a motion with the court to compel Nelson to provide the information sought. He also filed a motion to impose sanctions on Nelson and Johnson for improperly withholding evidence. The court granted both motions and imposed sanctions on Nelson in the amount of $1,202. Nelson appealed.

When a party claims information is protected by the attorney client privilege, they have the burden of presenting evidence to support the privilege. Then the judge will view the materials in camera review, i.e. in his chambers. If the party does not produce evidence to justify the claim of attorney-client privilege, then the party may not use the privilege to protect information and may not later appeal the decision to impose sanctions for improperly claiming the privilege.

In this case, Nelson and Johnson failed to provide any evidence to the court to support their claim that the information sought by Watson was privileged. The appeals court held that they merely sought to “cloak” the alleged materials in the privilege without proving they were worthy of protection as attorney work product. The appeals court sustained the amount of sanctions against Nelson and Johnson.

Yolanda Nelson and James Johnson, Appellants V. Albertson’s Inc., Appellee
From the County Court at Law No. 1 of Tarrant County
Before Quinn C.J., and Reavis and Hancock, JJ.


Criminal Law Series
Part IV of “Evidence”

Rico DeShawn Holland was charged with aggravated assault for allegedly shooting Jerry Sylvester. At trial, the prosecutor asked a witness whether she was aware of any other shootings that occurred around the time and place of the shooting for which Holland was charged. Holland objected to the question as being irrelevant. Before the judge could rule on the objection, the witness stated that she was aware of other shootings. After the witness said this, the judge sustained Holland’s objection and then instructed the jury to disregard this testimony about other shootings. Holland then requested a mistrial, which the judge denied. Holland was convicted and sentenced to twenty years imprisonment. Holland appealed, claiming the trial court erred in not granting a mistrial.

Generally, asking an improper question will seldom provide grounds for granting a mistrial because in most cases an instruction from the judge to disregard the improper evidence will suffice to cure any harm. However, there are circumstances where evidence is so improper that it results in incurable prejudice to one or both parties. Prejudice ranges in severity from curable to incurable. When prejudice is curable, an instruction from judge to jury will suffice to save the trial. However, when evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds, then the judge is left with no choice but to declare a mistrial.

Regarding the Holland request for a mistrial, the Appeals Court noted that it was unlikely that the question, as posed to the witness, had an impact on the verdict. The court reasoned that the trial judge promptly instructed the jury to disregard the statement. The court held that “whatever the prosecution’s question about ‘other shootings that have taken place around there’ referenced, neither the question nor the answer was so clearly prejudicial to Holland as to preclude the jurors from following the trial court’s instruction to disregard.” The appeals court affirmed Holland’s conviction.

RICO DESHAWN HOLLAND, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the
Criminal District Court Jefferson County, Texas
Opinion by Gaultney; Before McKeithen, C.J., Gaultney and Horton, JJ.

Thursday, July 27, 2006

The Mechanics of Impeachment and Disciplinary Problems

Yesterday in Part II of the Criminal law Series on Evidence, The Texas Law investigated impeachment as a means of discrediting witnesses. Today The Texas Law investigates the mechanics of impeachment with a case from the Fourteenth Court of Appeals in Houston.

Earlier in Parts I and II of the Civil Law Series “Client Sues Lawyer,” The Texas Law investigated claims by clients against lawyers. Occasionally, these claims by clients result in inquiries by the Commissioner for Lawyer Discipline. Today in Part III of “Client Sues Lawyer,” The Texas Law visits the Court of Appeals Fourteenth District in Corpus Christi to investigate a trial in which a lawyer was charged with professional misconduct by the Commissioner for Lawyer Discipline.

Criminal Law Series:
Part III of Evidence Issues

On February 14, 2004 Eric Madry shot Demetria Jackson in the mouth. He was charged with aggravated assault. Madry’s defense was that the shooting was accidental. At trial Jackson testified that the shooting was intentional. Madry sought to impeach Jackson with the testimony of Ms. Michelle Permanter, who allegedly would testify that Jackson told her the shooting was accidental. That is, Madry sought to impeach Jackson with a prior inconsistent statement. The trial court denied his request. Madry was convicted and he then appealed, claiming the trial court erred by preventing him from calling his impeachment witness.

Under Rule 613 of the Texas Rules on Evidence, a party at trial may introduce evidence that a witness made a prior inconsistent statement if the party “lays a proper foundation.” To lay this foundation the party seeking to introduce the evidence must (1) confront the witness about the content of his or her prior inconsistent statement; and (2) tell the witness the time, place, and person to whom the statement was made.

During trial, Madry asked Jackson only the following question regarding whether the shooting was accidental or not: “You did tell the officers it was an accident, right?” The appeals court held that Madry did not comply with Rule 613 as he did not confront Jackson with a prior inconsistent statement, nor did he summarize the time, place and contents of any prior inconsistent statements that Jackson allegedly made to Permanter.

ERIC MADRY, Appellant V. THE STATE OF TEXAS, Appellee;
On Appeal from the
176th District Court; Harris County, Texas
/s/ Kem Thompson Frost, Justice; Panel consists of Justices Anderson, Edelman, and Frost
Judgment rendered and Opinion filed July 25, 2006
.

Civil Law Series:
Part III of "Client Sues Attorney"

In 1992 Colin Kaufman was appointed as trustee for CFI under a bankruptcy plan of reorganization. As trustee, Kaufman was charged with collecting and distributing to creditors approximately $354,000.00. In 2002, the Commission for Lawyer’s Discipline filed a disciplinary petition against Kaufman stemming from Kaufman’s improper handling of the money. Kaufman was charged with (1) co-mingling his personal funds with those of CFI; (2) failing to render a full accounting of the funds; (3) failing to deliver the funds to the persons entitled to receive the funds; (4) charging an unconscionable fee; and (5) engaging in conduct involving dishonesty, deceit, or misrepresentation.

Rule 1.14 of the Texas Disciplinary Rules requires an attorney to keep safe and separate, a client’s property which is entrusted to the attorney. A client’s money is considered property. The evidence showed that Kaufman failed to maintain a separate account in which to keep CFI monies. Rather, Kaufman mixed the funds with his own funds in a personal account.

Texas Rule of Professional Conduct 1.14(b) provides that a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon timely request by the client or third person, shall promptly render a full accounting regarding such property. The evidence showed that Kaufman failed to provide an accounting of the property belonging to CFI. Also, the evidence showed that most, if not all, of any accounting of the CFI property was prepared specifically in anticipation of his trial. Thus, the trial court held Kaufman violated 1.14(b).

Texas Rule of Professional Conduct 1.14(a) provides that a lawyer shall not enter into an arrangement for, charge, or collect an illegal or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. The evidence showed that Kaufman’s standard practice involved repeated billing each month for the same services rendered. Kaufman paid most of the CFI monies (at least $278,000.00 of the $354,000.00) to himself. The trial court ruled no competent lawyer could reasonably believe such a fee was reasonable.

The trial court found that Kaufman violated the Texas rules of disciplinary conduct and engaged in conduct involving dishonesty, deceit and misrepresentation. Kaufman was disbarred.

COLIN KELLY KAUFMAN, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
On appeal from the
214th District Court of Nueces County, Texas.Before Justices Hinojosa, Yañez and Castillo; Opinion by Justice Yanez.

Wednesday, July 26, 2006

Texas Legal News; July 26, 2006 (Click on headline to read entire story)

Federal Judge Rules TABC must obtain a judge's permission to seize porn

Citing First Amendment requirments, a federal judge has barred the Texas Alcoholic Beverage Commission from seizing material it deems obscene without first obtaining a judge's ruling that the material is obscene.

Judge approves $37.5 million settlement between fromer Enron employees and the trustee of Enron employees' 401(k)

U.S. District Judge Melinda Harmon approved the plan, bringing to $264.3 million the total amount of money collected on behalf of foremer Enron employees.

U.S. Justice Department raises concerns that Love Field plan violates antitrust laws

A memo attributed to the Justice Department says the plan to cap the number of gates at 20 may prohibit free competition. The memo has caused much outcry and reaction.

Tuesday, July 25, 2006

Runaway Clients and Impeachment

Today in Part II of the Client Sues Lawyer Series, The Texas Law Civil Law Series investigates a situation where a client runs away and hides from his attorney. What is an attorney to do when this occurs? Today, The Texas Law visits the Fourth Court of Appeals in San Antonio to answers this question.

In Part II of Evidence Issues in the Criminal Law Series, The Texas Law continues with the case involving Mr. Villarreal from the Third Court of Appeals in Austin. Yesterday we dealt with the Hearsay Rule. There are various ways in which saavy lawyers try to work around the Hearsay Rule. Today The Texas Law investigates one such tactic.

Civil Law Series:
Part II of Client Sues Attorney Series

Mr. Saul Guerrero, Jr. was driving a car that rolled over, killing two passengers. Mr. Guerrero sued Ford Motor Company for the personal injuries he sustained in the accident. As the date for trial approached, Mr. Guerrero’s attorney, Christopher Weixel, tried repeatedly and frantically to contact Mr. Guerrero, but to no avail. He visited Mr. Guerrero’s residence, sent several registered letters and left numerous phone messages. Weixel finally succeeded in contacting Mr. Guerrero’s parents. They informed Weixel that their son did not wish to pursue his claim against Ford. Weixel set up a meeting to meet with Mr. Guerrero to sign the dismissal documents. Mr. Guerrero failed to show up for the meeting. Weixel then filed a motion to withdraw his representation of Mr. Guerrero.

Typically, in allowing an attorney to withdraw, the trial court must give the party time to find a new lawyer and time for the new lawyer to prepare for the trial. But when a lawyer seeks to withdraw because of his client’s failure to communicate with his or her lawyer the judge may permit the attorney to withdraw regardless of much time is remaining before trial. Rule 10 of the Code of Civil Procedure sets out rules which require the attorney to notify his client of his decision to withdraw.

Here, the trial court permitted Weixel to withdraw. The court noted Weixel’s numerous, diligent and repeated attempts to contact Mr. Guerrero. Further, Mr. Guerrero’s conduct made the decision easy. The trial court and all concerned believed that Mr. Guerrero had abandoned his claim against Ford.
Perhaps Mr. Guerrero is not as hapless as his conduct implies. After the trial court allowed Weixel to withdraw, Mr. Guerrero secured new counsel. With Guy Allison as his lawyer, a jury later awarded Mr. Guerrero a judgment against Ford in the amount of thirty-one million dollars.

Saul GUERRERO, Jr. , Appellant v. FORD MOTOR COMPANY, Appellant/Appellee v. Rosanna GARCIA, Arturo Guerrero, and Maria Del Carmen Boddie, Appellees.
From the 293rd Judicial District Court, Zavala County, Texas
Opinion by: Alma L. López, Chief Justice; Sitting: Alma L. López, Chief Justice; Catherine Stone , Justice; Sandee Bryan Marion, Justice. Opinion Delivered and Filed: July 19, 2006


Criminal Law Series:
Part II of Evidence Series

Recall from yesterday that Mr. Villarreal was convicted of felony assault- family violence. The appeals court affirmed the trial court’s decision to permit hearsay testimony, allowed into testimony under the “excited utterance” exception to the Hearsay Rule. Mr. Villarreal also claimed on appeal that the trial court was incorrect in allowing the prosecution to “elicit inadmissible impeachment testimony.” The Texas Law investigates this claim today in Part II of The Criminal Law Series on Evidence Issues.

Texas evidence law permits any party to use a witnesses’ prior statement as a means of impeachment. Impeachment is a process by which lawyers discredit witnesses. Impeachment evidence may not be considered by the jury for what the witness says (substantively). Rather, the jury must consider only the fact that the witness made the statement. The most widely used method of impeachment is the use of a witnesses’ previously made statements when it contradicts a witnesses’ more recent statements. When there are conflicting statements made by a witness, attorneys seek to bring this inconsistency to the jury’s attention. By doing so, these lawyers are calling into doubt the witnesses’ credibility and truthfulness. This is a perfectly legitimate and widely used trial tactic by all trial attorneys.

However, Texas law does not permit an attorney to use impeachment as a means of circumventing other evidence rules. In other words, a lawyer may use impeachment evidence only to impeach a witness, not to get otherwise inadmissible evidence admitted into testimony. When an attorney introduces impeachment evidence in order to side-step the Hearsay Rule, the law refers to such conduct as “the use of impeachment as a mere subterfuge to get otherwise inadmissable hearsay evidence before a jury.” The danger of allowing such tactics is that the jury may consider the evidence not for impeachment purposes but for what the testimony says, that is, for its truthfulness. This is the crux of Mr. Villarreal’s second claim on appeal.

Mr. Villarreal claims that the prosecution called his wife and step-daughter to testify for the purpose of getting their prior hearsay statements to the police repeated in front of the jury. (Recall that hearsay is the second hand repetition of statements that are made outside of court). The prosecution answers this claim by asserting that they elicited the testimony for the sole purpose of impeaching the witnesses. The appeals court held that, even if the prosecution did use impeachment as a means of getting otherwise inadmissible hearsay evidence before the jury, the error was harmless because the jury had already heard this particular evidence when the trial court earlier admitted this evidence based on the excited utterance exception to the Hearsay Rule. Thus, the appeals court held, there was no harm from the jury’s potential consideration of the witnesses prior statements as substantive evidence.

Elias Villarreal, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
Bob Pemberton, Justice; Before Chief Justice Law, Justices Pemberton and Waldrop. Filed: July 21, 2006

Legal Headlines from Texas- July 25, 2006

Growing number calling for independant review of Cantu execution:
This morning the Houston Chronicle reports that the movement to appoint an independant review into the possible wrongful execution of Ruben Cantu is gaining momentum. Cantu was executed in 1993 for the robbery and murder of a Mexican-born contractor. The NAACP and the New York based Innocence Project are now involved in the call for the independant review. The eyewitnesses who testified against Cantu said recently that he was pressured by detectives to identify Cantu as the killer.

Yates fate now rests with jury:
The jury in the Andrea Yates trial began deliberations yesterday afternoon following four hours of closing statements from prosecutor Kaylynn Williford and Yates defense attorney, George Parnham. If the jury finds Yates guilty of capital murder she will receive a sentence of life imprisonment. The other option for the jury, not guilty by reason of insanity, will send Yates to a state mental hospital.

Candidate for governor joins lawsuit against state budget increases:
Carol Keeton Strayhorn joined a Houston taxpayor group that is suing Texas legislative leaders about a constitutional spending cap. The group is asking the court to enforce a provision of the Texas Consitution that limits the state budget from growing more than the state's economy.

Dallas hospital pursuing people who lie to get free care:
Parkland Hospital in Dallas is working with prosecutors to go after out-of-county residents who lied about being indigent to get free medical services. The hospital is also considering civil suits.

Parties to Texas redistricting lawsuit sound off
The Associated Press reports that parties to a federal lawsuit expressed their views concerning the case.

Monday, July 24, 2006

Hearsay and Attorney Malpractice

This is Client Sues Attorney Week in the Civil Law Series as The Texas Law investigates lawsuits by clients against attorneys. Today The Texas Law visits the Texas Court of Appeals, Third District, at Austin. The case below presents a situation where an attorney offers proper legal advice to persons who then sue the attorney for breach of duty of care after they are arrested for engaging in criminal conduct beyond the scope of the attorney’s advice.

Today in the Criminal Law Series The Texas Law begins a five-part series investigating evidence issues. Today, The Texas Law looks at a case from Austin that deals with two long-held and firmly embedded principles of evidence: the Hearsay Rule and the Confrontation Clause.

Civil Law Series
Part I of Client Sues Attorney Series

Mr. Eddie Evans was charged with forgery after he presented forged checks to Ms. Fatimah Ghanbarzadeh. Mr. Yogi Evans and Mr. Jim Evans are related to Eddie. Yogi and Jim wanted to pay restitution to Ms. Ghanbarzadeh so that she would drop the charges against Eddie. Yogi and Jim contacted Eddie’s attorney, Mr. Samuel D. Adamo, and asked him whether it was legal for them to contact Ms. Ghanbarzadeh about paying restitution. Mr. Adamo assured Yogi and Jim that is was legal to offer to assist Ms. Ghanbarzadeh. Adamo told Yogi and Jim that any agreement with Ms. Ghanbarzadeh would have to be in writing. Adamo’s assistant typed up an affidavit for Ghanbarzadeh to sign.

When Yogi and Jim met with Ghanbarzadeh, they were unaware that police were monitoring the meeting because Ghanbarzadeh had complained to police that Yogi and Jim were harassing her. During the course of the meeting, Jim and Yogi threatened Ghanbarzadeh with physical evidence if she did not recant her story. Police later arrested Jim and Yogi and charged them with witness tampering. Yogi and Jim then filed suit against Adamo, alleging legal malpractice. Adamo’s defense was that Yogi and Jim’s criminal conduct, and not any alleged legal malpractice on his part, was the cause of their injuries.

In Texas, one who sues a lawyer for legal malpractice must show (1) that the lawyer owed a duty to the person who is suing; (2) that the lawyer breached that duty; (3) that the lawyer’s breach of the duty caused injury to the person who is suing; and (4) that the person suffered damage. Lawyers in Texas are held to the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances.

The court found that Yogi and Jim failed to show that Adamo breached his duty of care owed to them. On the contrary, he informed them it was permissible for them to contact Ghanbarzadeh and prepared an affidavit for her to sign in the even Jim and Yogi were able to convince her to drop the charges. The court ruled that Adamo’s conduct was fairly what would have been performed by a reasonably prudent attorney in the same or similar circumstances.


Criminal Law Series:
Part I of Evidence Series

Police were called to the home of Elias Villarreal to investigate a family disturbance. When the police arrived several family members told the police that Mr. Villarreal hit his wife and step-daughter. Later, Mr. Villarreal was charged and tried for felony assault family violence. At trial these family members changed their stories and testified that Mr. Villarreal did not hit the two ladies. The prosecution then asked these two witnesses to repeat what they told the police the night of the incident (they told the police that Mr. Villarreal hit his wife and step-daughter). Mr. Villarreal objected on hearsay grounds. The court overruled the objection based upon the “excited utterance” exception to the Hearsay Rule. The jury found Mr. Villarreal guilty and sentenced him to 28 years imprisonment. Mr. Villarreal appealed the conviction, claiming the court improperly admitted hearsay evidence.

Hearsay occurs when a witness seeks to testify at trial about a statement which is not made by the witness while testifying. For example, a response to a lawyer’s request of a witness to repeat what a witness heard someone else say is classic hearsay. Generally, such hearsay statements are inadmissible because the law prefers first-hand testimony. One important aspect of the rule is that the law permits such statements when they are not introduced into evidence to prove the truth of what is asserted in the statement. The danger of hearsay evidence is that it permits a person to bring into trial an outside statement. This denies the party against whom the evidence is offered the opportunity to confront in front of the jury the person who made the statement about its truthfulness.

A well-recognized exception to the Hearsay Rule is the “excited utterance” exception. When a person is under the stress of excitement caused by an event or condition he or she ordinarily loses the capacity for reflection necessary for “the fabrication of a falsehood and the truth will come out in his excited utterance.” Such statements are considered trustworthy because they “represent an event speaking through the person rather than the person speaking about the event.”

In this trial the prosecution sought to introduce the statements made by the wife and step-daughter to police on the night of the event regarding the fact that Mr. Villarreal had hit them. Mr. Villarreal objected that this inquiry elicited hearsay response. The prosecution claimed the testimony was admissible because the statements were made while the two ladies were under the stress of the event. The judge overruled the objection according to the excited utterance exception to the Hearsay Rule.

Mr. Villarreal also claimed that the Wife’s and Step-daughter’s testimony was offered for the primary purpose of eliciting otherwise inadmissible testimony. Tomorrow on The Texas Law we investigate this claim.

Sunday, July 23, 2006

United States Court of Appeals for the Fifth Circuit; Week of July 17-21, 2006:

Canal Street in New Orleans separates the French Quarter from the Central Business District. One block from Canal Street on Camp Street sits the magnificent John Minor Wisdom Courthouse, home of the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit hears appeals from the United States District Courts and the several state appellate courts in Louisiana, Mississippi, and Texas. This week the Fifth Circuit issued 61 rulings. Below are a few decisions of note, dealing with civil and criminal matters of procedure and substance.

CIVIL:

1. To determine the meaning of ambiguous contract terms, specific terms overcome and control general contract terms.

BARNARD CONSTRUCTION COMPANY, Inc., Plaintiff - Appellant,
v. CITY OF LUBBOCK, Defendant - Appellee.
Appeal from the United States District Court for the Northern District of Texas


Barnard signed a contract with the City of Lubbock. Per the agreement, Barnard was to install pipeline throughout the city. The contract stated that one portion of the project required rock excavation. Barnard attempted to bill the City for rock excavation in other portions of the project. The City initially paid for the additional excavation, then later offset these payments from other monies owed to Barnard under the contract. Barnard sued for breach of contract. The United States District Court for the Northern District of Texas dismissed the suit because there was no genuine issue as to any material fact to be determined by a court, i.e. a motion for summary judgment. The Fifth Circuit affirmed the dismissal.

The case raised the issue of ambiguity in contract terms. Where a contract is worded such that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous. To determine such definiteness, courts will consider the circumstances surrounding the contract’s execution. The court will NOT consider statements of the parties as to what they intended at the time they drafted the contract.

In the contract there were specific provisions which provided that only one segment of the project required rock excavation. Another provision provided that costs for additional labor not explicitly called for in the contract would be borne by the bidder. These specific terms overcame and controlled the general terms in the contract upon which Barnard relied.

PER CURIUM; Before JONES, Chief Judge, WIENER, and PRADO, Circuit Judges.

2. Petitioner for review of CSA applications must satisfy standing requirements.

MICHAEL E. BONDS, Petitioner, v. KAREN TANDY,ADMINISTRATOR, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION Respondent.
Petition for Review from a Decision of the Drug Enforcement Administration

Michael Bonds was a registered pharmacist whose license was revoked by the DEA for illegally dispensing narcotics. He applied for a job with Medical Plaza Pharmacy, which applied for a waiver which would allow Mr. Bonds to work for the pharmacy. The waiver application was denied. Mr. Bonds appealed the denial under the Controlled Substances Act (CSA) provision permitting judicial review of waiver denials. The court ruled Mr. Bonds lacked standing to pursue judicial review and dismissed the appeal.

Judicial Review under the CSA is available only to those who can meet two requirements: (1) that the person seeking review has suffered an injury in fact, for which the law recognizes a remedy; and (2) the interest the petitioner seeks to enforce is an interest the CSA protects, i.e. the petitioner is a “person aggrieved.”

In this case, the court ruled that the CSA does not protect the interests of pharmacists in employment. Rather, the CSA protects the interest of the public in the legitimate use of controlled substances. Thus, Mr. Bonds is not a person aggrieved within the meaning of the CSA.

EDWARD C. PRADO, Circuit Judge; Before GARZA, PRADO, and OWEN, Circuit Judges.


CRIMINAL:

1. To avoid execution based upon a claim of mental retardation, petitioner must show significantly sub-average intellectual functioning which is accompanied by related limitations in adoptive functioning the onset of which occurs prior to age 18.

JAMES LEE CLARK, Petitioner-Appellant, v. NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of Texas


James Lee Clark was sentenced to death in May 1994 for the rape and murder of 17-year-old Shari Catherine Crews in June 1993. Mr. Clark filed a habeas petition, arguing that he suffers from significantly sub-average intellectual functioning to the point of mental retardation and thus may not be executed. The Fifth Circuit denied Mr. Clark’s petition.

Texas uses a three-part test to determine mental retardation: (1) whether the defendant has significantly sub-average intellectual functioning; (2) which is accompanied by related limitations in adoptive functioning; and (3) the onset of which occurs prior to age 18.

The court rejected Mr. Clark’s argument that adaptive limitations in specific cognitive areas define mental retardation. The court considered testimony from state records, employment records, Mr. Clark’s former landlord, a Texas Ranger who investigated the crime, and acquaintances of Mr. Clark. The testimony demonstrated that Mr. Clark had successfully completed a GED program, completed a welding program, held a job with numerous responsibilities, was able to get along with other people, kept his premises clean, was able to think on his feet, took thoughtful steps to conceal his crime, and had assisted other inmates with legal issues. The court held that these strengths prevented a finding that Mr. Clark has significantly sub-average intellectual functioning.

DENNIS, Circuit Judge; Before DAVIS, GARZA and DENNIS, Circuit Judges.


2. Extrinsic evidence of sexual assaults to show propensity is allowed, even those assaults for which the defendant has not been charged.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWAUN JABBAR GUIDRY, Defendant - Appellant.
Appeal from the United States District Court for the Western District of Texas


Dwaun Guidry, a police officer from Balcones Heights, Texas, was convicted of kidnapping and raping several females while carrying out his on-duty obligations as a police officer. He was sentenced to 38 years in federal prison. He appealed his conviction, claiming the trial court erred by improperly allowing propensity evidence.

In the course of Mr. Guidry’s trial, Ms. Julie Ristaino testified that Mr. Guidry had, on several occasions, sexually assaulted her. Although Mr. Guidry was not charged for any of these alleged assaults, the trial court permitted the prosecution to offer Ms. Ristaino’s testimony about these incidents in order to show Mr. Guidry’s propensity to sexually assault women.

Mr. Guidry claimed that in order for such propensity evidence to be allowed, the testimony must relay evidence concerning sexual assaults for which the defendant has been charged. The court disagreed, holding that the terms “crime” and “offense” are interchangeable terms, and are used to describe a harm that may be punishable by law. Thus, Federal Rule of Evidence 413 allows the admission of other sexual assaults, including those for which the defendant has not been charged.

EDWARD C. PRADO, Circuit Judge; Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.

Saturday, July 22, 2006

THE FOURTEENTH COURT OF APPEALS: WEEK OF JULY 17-21, 2006

Today on Texas Law we showcase the Fourteenth Court of Appeals. This week the court dealt with procedural and substantive issues in both civil and criminal matters ranging from witness mis-identification of a defendant to whether failing to supply a warranty certificate to a customer can be a violation of the Texas Deceptive Trade Practices Act.

Tomorrow we’ll venture into the federal realm and visit the Fifth Circuit.

CRIMINAL CASES:

1. To preserve appeal, Defendant must object to court's substitution of counsel:

CARLOS DEWAYNE ROGERS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court; Washington County, Texas

Conrad Day represented Carlos Dewayne Rogers during a trial in which the latter was convicted of first-degree felony injury to a child. Attorney Margaret Polansky represented defendant at the punishment phase. Defendant contended that the trial court’s sua sponte substitution of his appointed counsel violated his constitutional and statutory rights to qualified appointed counsel.

A trial court has no discretion to substitute appointed counsel sua sponte over counsel and defendant’s objection if the court’s only justification is its personal preference, practice, expertise, or feelings. This rule does not apply if a trial court merely substitutes a court-appointed attorney to represent a defendant at a particular hearing, the defendant agrees to the substitution, and the original attorney does not object. Further, if a defendant is displeased with his appointed counsel at any stage of the proceeding, the defendant must bring the matter to the court’s attention.

Here, the record did not reflect why one attorney represented the defendant at the pleading phase and another represented him at the sentencing phase. The record also is silent as to whether defendant or his original counsel objected to the substitution. A defendant must make a timely and specific objection to preserve error. Thus, defendant has failed to preserve his complaint for appellate review.

/s/ Adele Hedges & Chief Justice; Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Judgment rendered and Opinion filed July 20, 2006.

2. Court of appeals jurisdiction to hear appeals from municipal court judgment requires county court to affirm municipal court judgment:

AARESH A. JAMSHEDJI, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 13; Harris County, Texas

Aaresh A. Jamshedji pled guilty to speeding and was placed on deferred disposition. Later, a municipal court revoked Mr. Jamshedji’s deferred disposition and adjudged him guilty of the charged offense. The municipal court fined Mr. Jamshedji $115, plus $85 in court costs. Mr. Jamshedji appealed the revocation of his deferred disposition to the county criminal court. The court determined it lacked jurisdiction and dismissed the appeal. Mr. Jamshedji then appealed to the Fourteenth Court of Appeals. This court also dismissed the appeal because it lacked jurisdiction.

Per statute, an appellant has a right to appeal a municipal court judgment to the court of appeals if two requirements are met: one, the fine assessed exceeds $100; and two, the judgment is affirmed by the county court.

Here, the county court did not affirm the municipal court judgment. Rather, it dismissed the appeal because it lacked jurisdiction. Thus, the court of appeals ruled it lacked jurisdiction to hear the appeal because the two statutory requirements were not satisfied.

3. Defendant must demonstrate irreparable misidentification resulting from suggestive identification procedures:

MARSHALL EDWARD LEWIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court; Harris County, Texas

Marshall Edward Lewis was convicted of aggravated robbery and sentenced to twenty-five years imprisonment. He appealed the conviction on two grounds: First, he claimed that the trial court erred in allowing an in-court identification. Second, the evidence was factually insufficient to sustain his conviction. The Fourteenth Court of Appeals affirmed the conviction.

Regarding Mr. Lewis’s first ground for appeal, he contended the trial court erred in allowing Catrena Young to identify him in court because her identification was based on a pretrial procedure that was impermissibly suggestive and because the jury was not informed that Ms. Young had an opportunity to identify Mr. Lewis at the first trial for this offense (which ended in a mistrial).

The two-step analysis to determine whether the trial court erroneously admitted in-court identification testimony evaluates: (1) whether the pretrial identification procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial.

The court ruled that the identification was not impermissibly suggestive because, prior to the identification, the witness was able to identify distinguishing marks on the defendant. The court further held that, in any event, the defendant cannot demonstrate harm because the jury viewed a videotape of the robbery and there were other witnesses who corroborated Ms. Young’s identification.

The court also ruled that the jury need not have been apprised that the witness was able to view the defendant at the first trial. The court gave two reasons: (1) the witness’s testimony at both trials was largely the same, and (2) the witness was unequivocal in her identifications at both trials.

As to Mr. Lewis’s second ground for appeal, the court held the evidence was factually sufficient to sustain his conviction. In reviewing the evidence, the appellate court will find that the evidence is factually insufficient if (1) the evidence is too weak to support a finding of guilt beyond a reasonable doubt, or (2) if the contradictory evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Deference is given to the jury’s finding.

The court held the description by Ms. Young of defendant’s distinguishing features, including facial tattoos, and the videotape of the incident was strong enough evidence to support a finding of guilt beyond a reasonable doubt. Further, the evidence which contradicted a finding of guilt beyond a reasonable doubt was overcome by witnesses explanations and refutations.

/s/ Wanda McKee Fowler, Justice
Judgment rendered and Memorandum Opinion filed July 20, 2006. Panel consists of Justices Hudson, Fowler, and Seymore.

4. To claim self-defense, defendant must admit charged offenses at trial; To be considered fatal, a variance in sharging instrument must be material; To preserve appeal, party must pursue a sustained objection to an adverse ruling; The use of pre-arrest silence to impeach a defendant's credibility does not violate the Fifth Amendment of the United States Constitution:

GEORGE HERNANDEZ, JR. , Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1; Harris County, Texas

George Hernandez, Jr. was convicted of assault on a family member. He was sentenced to 180 days in jail, probated for fifteen months, with ten days to be served in jail as a condition of the probation. Mr. Hernandez appealed, contending that (1) the evidence was legally insufficient to sustain his conviction, (2) the trial court erred in refusing to instruct the jury on the law of self-defense and on the law of defense of a third person, and (3) certain questions posed by the prosecutor violated his right to remain silent. The court affirmed.

Regarding Mr. Hernandez’s first claim, he claims that the evidence was factually insufficient because he was charged with assaulting Ms. Karen Secura, while the testimony at trial demonstrated that he assaulted Karen Segura. Thus, appellant raised a variance between the charging instrument and the proof at trial.

A variance will be considered fatal and render the evidence insufficient only when the variance is material. A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare a proper defense, or (2) would subject the defendant to the risk of being twice prosecuted for the same crime. The burden of proving materiality rests with the defendant.

The court found the variance between the charging instrument and the proof at trial to be immaterial. First, the victim’s name is not an element of assault. Second, the defendant alleged neither that the charging instrument provided him with insufficient notice of the charges against him, nor that the variance subjected him to risk of being twice prosecuted for the same offense. Further, the court found stated that the entire record, not just the charging instrument, can be referred to in protecting against double jeopardy.

Mr. Hernandez’s second claim is that the trial court erred in refusing to instruct the jury on the law of self-defense and on the law of self-defense of a third person. A defendant is entitled to an instruction on self-defense whenever the evidence raises the issue, regardless of the strength of the evidence. However, a defendant must have first admitted that he or she committed the charged offense and the offered self-defense as a justification for the conduct. These rules apply as well regarding a jury instruction on self-defense of a third person.

Here, defendant did not assert that he admitted the charged offenses at trial. Thus, defendant is not entitled to jury instructions regarding self-defense.

Defendant’s third claim is that the trial court erred in permitting the State to ask him whether he had contacted the police regarding being attacked by the complainant. Defendant asserts this violates his right to silence under the Fifth Amendment of the United States Constitution.

The court dismissed this claim on both substantive and procedural grounds. On procedural grounds, the court ruled that this claim was not preserved for appeal because Mr. Hernandez objected to the prosecutor’s question but failed to pursue his objection to an adverse ruling. Without an adverse ruling, there are no grounds for appeal. On substantive grounds, the court ruled that the question did not violate the Fifth Amendment because it inquired about pre-arrest silence. The Supreme Court of the United States has held that the use of pre-arrest silence to impeach a defendant’s credibility does not violate the Fifth Amendment.

Judgment rendered and Opinion filed July 20, 2006. /s/ Adele Hedges Chief Justice; Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

CIVIL CASE:

1. To sustain a Texas Deceptive Trade Practices Act claim of unconscionablity, plaintiff must show noticeable, flagrant, complete and unmitigated unfairness; To sustain claim of mental anguish, plaintiff must show more than mere worry, anxiety, vexation, embarrassment or anger:

MOMENTUM MOTOR CARS, LTD. D/B/A MOMENTUM SAAB AND TAVAX, INC. D/B/A DISCOUNT CAR CLINIC, Appellants V. KARL AND SUE HAUENSTEIN, Appellees
On Appeal from the 240th District Court; Fort Bend County, Texas

Karl and Sue Hauenstein brought their vehicle to Momentum Motor Cars and Discount Car Clinic (Appellants) to repair a faulty transmission. Three transmissions later the Hauensteins sued Appellants for violations of the Texas Deceptive Trade Practices Act. A jury found that the Appellants engaged in false, misleading, or deceptive trade practices, knowingly engaged in unconscionable conduct and that the Hauensteins suffered damages for mental anguish. Appellants appealed, claiming that the evidence was legally insufficient to support the findings. The Fourteenth Court of Appeals affirmed the judgment regarding the deceptive trade practice and unconscionability violations, finding that the evidence presented at trial would enable reasonable and fair-minded people to reach such a verdict. However, the court removed the award of mental anguish damages.

The court ruled that by attempting to avoid honoring the applicable warranty the Appellants took advantage of their superior knowledge, ability, experience and capacity to a grossly unfair degree. This unconscionable conduct resulted in noticeable, flagrant, complete, and unmitigated unfairness to the Hauensteins.

Further, the court ruled that Appellants knowingly engaged in false, deceptive and unfair conduct when it failed to timely obtain replacement transmissions and to give the Hauensteins their warranty documents.

Finally, the court ruled that although the Hauensteins endured a substantial disruption in their daily routine as a result of Appellants conduct, the evidence failed to demonstrate a high degree of mental pain and distress that was more than mere worry, anxiety, vexation, embarrassment , or anger.

/s/ Adele Hedges; Chief Justice; Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Judgment rendered and Memorandum Opinion filed July 20, 2006.

Wednesday, July 19, 2006

ERROR IN JURY CHARGE

In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-03
-00215-CR
MARVIN LUTHER MARSHALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the
6th Judicial District Court
Lamar County, Texas
Trial Court No.
19374

Marshall was convicted of burglary of a habitation. The Court of Criminal Appeals reversed the sentence because of two procedural errors: One, the verdict form was error in that it did not allow the jury to find either or both of two enhancement allegations untrue. Two, the trial court failed to read the enhancement allegations or to take Marshall's plea to them at the beginning of the punishment phase. The Court of Appeals for the Sixth Appellate District of Texas at Texarkana found the errors were not egregiously harmful.

Errors in jury charges are egregiously harmful if they are so harmful as to deny the defendant a fair and impartial trial. Harm is determined from the entire record. Error causes egregious harm where the error affects the very basis of the case; deprives the defendant of a valuable right; or vitally affects a defensive theory.

Marshall effectively conceded the enhancement allegation during his closing statement by arguing for a sentence of 25 years. A 25 year sentence is the minimum applicable sentence for an individual who has been twice previously, finally, and sequentially convicted of felony offenses. Marshall did not ask the jury to find that he had not committed the two previous felonies. Rather, his defensive theory on punishment was that he had not been violent and thereby deserved a sentence at the lower end of the punishment range. Thus, the errors did not “affect the very basis of the case, deprive Marshall of a valuable right, or vitally affect Marshall’s defensive theory.
Before Morriss, C.J., Ross and Carter, JJ; Memorandum Opinion by Chief Justice Morriss

A BRICK IS A DEADLY WEAPON

In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-06-00047-CR
EVERETT M. BRYANT, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 76th Judicial District Court
Morris County, Texas
Trial Court No. 9231


A jury found Bryant guilty of aggravated robbery. Bryant appealed claiming the evidence was insufficient to show that he used a brick as a deadly weapon during the commission of the robbery. The Court of Appeals affirmed, holding the evidence was legally sufficient to support the jury's verdict that the brick used by Bryant was, in its use and its intended use, capable of causing death or serious bodily injury.

A deadly weapon finding can survive a legal sufficiency challenge only if there is legally sufficient evidence to support a jury’s finding that (1) the deadly weapon was used or exhibited during the commission of the offense and (2) that the deadly weapon, in its use or intended use, was capable of causing death or serious bodily injury.

The victim, Ms. Nicole Gomba, testified at trial that during the robbery she was within arm’s length reach of Bryant as he held the brick and that she “was scared for [her] life. [She] thought he was going to kill [her].” Police officer Doug Stanley testified that the brick had a sharp edge and stated that the brick “was the type of weapon that could be used to cause a person like Nicole Gamba serious bodily injury or harm.” A video surveillance of the robbery showed Bryant exhibited a threatening demeanor throughout the robbery.

When the Court reviewed the legal sufficiency of the evidence offered to support the finding that Bryant used the brick during the robbery and that the brick was a deadly weapon, the court viewed the evidence in the light most favorable to the guilty verdict and determined that any rational trier of fact could have made such a finding beyond a reasonable doubt.
Before Morriss, C.J., Ross and Carter, JJ.; Memorandum Opinion by Justice Ross
July 19, 2006
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