tag:blogger.com,1999:blog-217937992024-03-13T16:56:08.959-07:00South Texas Judicial Watch Dog AuthorityWe are here in the interests of reform in the South Texas Judiciary. Nueces Kleberg & Kenedy Counties will be our main focus however any input from the Valley is welcome thank you.dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.comBlogger41125tag:blogger.com,1999:blog-21793799.post-54926534672379889832009-09-12T22:59:00.000-07:002009-09-12T23:04:36.021-07:00because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Is that relevent??Send this document to a colleague Close This Window<br /><br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> NUMBER 13-02-00130-CV<br /><br /> <br /><br /> COURT OF APPEALS<br /><br /> <br /><br /> THIRTEENTH DISTRICT OF TEXAS<br /><br /> <br /><br /> CORPUS CHRISTI B EDINBURG<br /><br /> <br /><br />SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,<br /><br />INDEPENDENT EXECUTRIX OF THE ESTATE OF<br /><br />MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,<br /><br />MARTHA DE LLANO DE OLIVERA, FERNANDO<br /><br />DE LLANO, JR., AS PERSONAL REPRESENTATIVE<br /><br />OF THE ESTATE OF FERNANDO DE LLANO, AND<br /><br />JOSEFINA DE LLANO, Appellants,<br /><br /> <br /><br /> v.<br /><br /> <br /><br />PABLO SUESS AND FROST NATIONAL BANK,<br /><br />TRUSTEES OF THE JOHN G. KENEDY, JR.<br /><br />CHARITABLE TRUST, Appellees.<br /><br /> <br /><br /> On appeal from the 206th District Court of Hidalgo County, Texas.<br /><br /> <br /><br /> MEMORANDUM OPINION<br /><br /> <br /><br /> Before Justices Hinojosa, Yañez, and Garza<br /><br /> Memorandum Opinion by Justice Hinojosa<br /><br /> <br /><br />Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.<br /><br /> A. Background<br /><br />As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.<br /><br /> B. Finality of Judgment<br /><br />In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]<br /><br />Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.<br /><br /> Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).<br /><br />The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.<br /><br />Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.<br /><br /> C. Participation of Attorney General<br /><br />In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.<br /><br />The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:<br /><br />For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.<br /><br /> <br /><br />Tex. Prop. Code Ann. '123.002 (Vernon 1995).<br /><br /> <br /><br />Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:<br /><br />We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.<br /><br /> <br /><br />When asked a second time by the trial court what relief appellants were requesting, counsel responded:<br /><br />. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities. <br /><br /> <br /><br />The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@<br /><br />The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.<br /><br />Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.<br /><br /> D. Improper Jury Argument<br /><br />In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@<br /><br />Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied). <br /><br />Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.<br /><br />During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.<br /><br /> <br /><br /> E. Disqualification of Defense Counsel<br /><br />In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.<br /><br /> F. Jurisdiction<br /><br />Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@<br /><br />In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.<br /><br />Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.<br /><br /> G. Adverse Possession<br /><br />In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.<br /><br />An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.<br /><br />The judgment of the trial court is affirmed.<br /><br /> <br /><br />FEDERICO G. HINOJOSA<br /><br />Justice<br /><br /> <br /><br />Memorandum Opinion delivered and filed this<br /><br />the 16th day of June, 2005.<br /><br />[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).<br /><br /> <br /><br />[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:<br /><br /> <br /><br />This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?<br /><br />No it is about how do you know what happened 105 years ago? Mommy told you vendido?<br /><br />Not to do this.........your avarice is quite well known and will be your legacy far longer than 105 years.dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com1tag:blogger.com,1999:blog-21793799.post-68995174282015133202009-09-05T21:39:00.000-07:002009-09-05T21:42:46.395-07:00Where was his Slick Attorney?<span style="font-weight:bold;">Judge sentences tagger to 18 months in jail<br />Man was part of group that hit Southside<br /><br />By Mary Ann Cavazos (Contact)<br />Originally published 05:23 p.m., September 4, 2009<br />Updated 11:32 p.m., September 4, 2009<br /><br /><br /></span><br /><br /><br /><br /><br />a punk that tagged rich people not poor Sales~ That is why exploiting a child to an adult violant institution 4 business contributions?"<br />2 Comments - Show Original Post Collapse comments<br /><br />Blogger dannoynted1 said...<br /><br /> So you give him a fine that he cant pay and you expect business to be good?<br /> But I guess that will lead him (Hernandez) and Sales to the path of righteousness?<br /><br /> Paul James Rick Perry Sale your sole to the highest bitter.<br /><br /> 9:12 PM<br /> Deletedannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-15795573705359712702009-06-21T20:25:00.000-07:002009-06-21T20:42:10.491-07:00This is "We're dealing with people who are just out and out cheating and lying to the state of Texas, stealing money from the taxpayers of the state....and you just now noticed? too busy playing with Insurance 20 million scam for your bud rick James Perry to redo his "uninsured" Mansion?<br /><br />Too busy to notice John Hubert and his malicious prosecution of innocent Kleberg Kenedy County and his latest election fraud where he lost then miraculously won the next morning?<br /><br />WHined to Texas Governor Rick perry till Hubert got his JOB created for him by The governor for what? What will Perry get in return? Hubert is a malicious prosecutor, a liar, falsified documents, hid a material witness that could have exonerated me, yet you let the Mary Cano/Rick Perry/john Hubert's work for the State of Texas when the are the biggest frauds in South Texas.<br /><br />Who in Texas gets a JOB in this economy created for them by the Rick Perry?<br /><br />John Hubert ~ the longer the fraud goes on the more you look involved and if nothing is done you are obviously not that good.<br /><br />LeeAnn Haley<br />Corpus Christi, Texas<br /><br /><br />Ambulance firms raided in Medicaid fraud inquiry<br /><br />Companies in Dallas, 11 other cities searched in billing investigation<br /><br />12:00 AM CST on Thursday, December 7, 2006<br /><br />By TANYA EISERER / The Dallas Morning News<br /><br />Fraud investigators served 19 search warrants in Dallas and 11 other cities in a wide-ranging inquiry into allegations of fraudulent billing practices by ambulance companies, the Texas attorney general said Wednesday.<br /><br />"This is a statewide fleecing of millions of dollars from Texas taxpayers of the Medicaid system," said Attorney General Greg Abbott. "There were billings that were either for more than the amount of services provided, or even billings for services that were not provided. [The] bottom line is we have a statewide operation cracking down on Medicaid fraud."<br /><br />The investigation centers on ambulance companies suspected of submitting false claims to Medicare, Medicaid, private insurers and the Federal Employees Health Benefits Plan, said Jerry Strickland, a spokesman for the attorney general's office.<br /><br />The inquiry, Operation Easy Rider, began at least six months ago after the Texas Health and Human Services Commission reported discrepancies in billing practices, Mr. Strickland said. The agency oversees the disbursement of Medicaid funds.<br /><br />"The fraud that we're dealing with really doesn't have anything to do with any kind of complexities that may exist in the system," Mr. Abbott said. "We're dealing with people who are just out and out cheating and lying to the state of Texas, stealing money from the taxpayers of the state of Texas.<br /><br />"They thought, gosh, that [they] could take money by overcharging the state of Texas, overcharging the Medicaid system, maybe no one would see."<br /><br />Officials declined to release further details, citing the continuing investigation.<br /><br />The attorney general's Medicaid Fraud Control Unit was involved in the operation, along with federal agents from the inspector general's office at the U.S. Department of Health and Human Services, the FBI, the inspector general's office for the U.S. Office of Personnel Management, the U.S. Postal Inspection Service and the U.S. Department of Homeland Security.<br /><br />North Texas ambulance companies that were searched included Carefirst EMS on Centre Street and Judd Court in Dallas; Greater Dallas EMS on South Hall Street in Dallas; All State Ambulance Service in Rowlett; Advicare Ambulance Transfer Service in DeSoto; and Visions EMS in Cedar Hill.<br /><br />Officials with the ambulance companies either declined to comment or could not be reached for comment.<br /><br />Mr. Strickland also confirmed that law officers arrested the owners of an ambulance service in McAllen, Texas, as part of the raids.<br /><br />Chris Heinbaugh of WFAA-TV (Channel 8) contributed to this report.<br /><br />E-mail teiserer@dallasnews.comdannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-35964028875439078502009-04-09T22:57:00.000-07:002009-04-09T23:01:44.950-07:00This Prosecutor is Malicious and Does not seek JusticeHomer, with all due respect this, article does not make sense. You keep saying that idiot hubert talks about the jury finding it difficult to convict yet he elected the Judge to assess punishment?<br />Why would he do that? it seems that hubert gets off on taking idiotic cases to trial when he really should take himself for fabricating evidence and charging this man falsely. How could he burglarize when it is clear from the article the authorities were there because of the interfering with an emergency call.<br />I don't know.<br />I do know Hubert is a liar, Malicious Prosecutor and does not seek justice as the JOB he holds is required. What a waste, but he did help his friend Chaney out though.dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com1tag:blogger.com,1999:blog-21793799.post-40107294316322154972008-10-12T02:59:00.000-07:002008-10-12T03:03:41.942-07:00Schools demeanor are based upon credibility of its teaching and students<!--MAIN Content Table Begin--> <table width="100%"> <tbody><tr> <td class="TextSmall"> <a href="mailto:?subject=An%20opinion%20from%20the%20Texas%20Judiciary%20Online:%20Court%20of%20Criminal%20Appeals&body=This%20opinion%20is%20from%20the%20Texas%20Court%20of%20Criminal%20Appeals%20web%20site.%20%20http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=12603" class="TextSmall"> <img src="http://www.cca.courts.state.tx.us/resource/opinions/images/icoEMail.gif" align="absmiddle" border="0" /> Send this document to a colleague</a> </td><td class="textSmall" align="right"> Close This Window<a href="javascript:window.close()"><img src="http://www.cca.courts.state.tx.us/resource/images/icons/close.gif" width="16" align="absmiddle" border="0" height="16" hspace="3" /></a> </td> </tr><tr> <td class="TextJustify" colspan="2"> <hr /> <br /><br /> <center><img src="http://www.cca.courts.state.tx.us/opinions/simps0%7Bnewimage0%7D.gif" width="139" height="133" /></center><center></center> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <p><span style="font-family: Courier;"><center><span style="font-family: Albertus Extra Bold Bold;"><strong>IN THE COURT OF CRIMINAL APPEALS</strong></span></center> <strong></strong></span></p> <p><span style="font-family: Albertus Extra Bold Bold;"><strong><center>OF TEXAS</center> </strong></span></p> <br /><br /> <p><span style="font-family: Times New Roman Bold;"><strong></strong></span><span style="font-family: Times New Roman Bold;"><strong></strong><center><hr width="30%" align="center"> </center> </span></p> <strong></strong><center>NO. <a name="1">57,060-01</a></center> <p><span style="font-family: Times New Roman Bold;"><strong><hr width="30%" align="center"> </strong></span></p> <center>EX PARTE <a name="2">DANIELLE SIMPSON</a>, Applicant</center> <br /><br /> <p><span style="font-family: Times New Roman Bold;"><strong><center></center> </strong></span></p> <p><span style="font-family: Times New Roman Bold;"><strong><hr width="76%" align="center"> </strong></span></p> <center>ON APPLICATION FOR A WRIT OF HABEAS CORPUS</center> <p><span style="font-family: Times New Roman Bold;"><strong><center>FROM <a name="3">ANDERSON</a> COUNTY</center> </strong></span></p> <p><span style="font-family: Times New Roman Bold;"><strong><hr width="76%" align="center"> </strong></span></p> <span style="font-size: 13pt;"></span> <span style="font-family: Times New Roman Bold;">Cochran, J., </span><span style="font-family: Times New Roman Bold;"><em>delivered the order for a unanimous court</em>.</span> <br /><br /> <br /><br /> <p><span style="font-family: Times New Roman Bold;"><center><span style="font-family: Times New Roman Bold;"><strong><span style="text-decoration: underline;">ORDER</span></strong></span><span style="font-family: Times New Roman Bold;"></span><span style="font-family: Times New Roman;"></span></center> </span></p> <br /><br /> <p><span style="font-family: Times New Roman;"> Applicant presents thirty-seven allegations, including a claim of mental retardation, in his original application for habeas corpus relief in this death-penalty capital-murder case. The trial judge entered findings of fact and conclusions of law and recommended that relief be denied. We have reviewed the record, and we adopt the trial judge's findings and conclusions. Therefore, we deny relief. We also dismiss applicant's "Motion to Consider Additional Evidence of Mental Retardation" because that supplemental material was improperly and untimely filed with this Court instead of the convicting court. Article 11.071<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_1_"><sup> (1)</sup></a> does not authorize piecemeal submission of evidence, nor does it permit the original filing of evidence with this Court rather than the convicting court. Because the trial judge's written findings were so thorough and complete, we need discuss only applicant's mental- retardation claim and the motions applicant filed directly in this Court.</span></p> <p align="center"><span style="font-family: Times New Roman;">I. Applicant was indicted for the robbery and murder of Geraldine Davidson on January 26, 2000. In November 2002, a jury convicted him of that capital murder and, based upon the jury's answers to the punishment special issues, the trial judge sentenced applicant to death. </span></p> <p><span style="font-family: Times New Roman;"> The evidence at trial showed that the 20-year-old applicant, a member of the Southside Cryps gang, planned and executed a burglary at the Palestine, Texas, home of Mrs. Davidson, an 84-year-old widow and retired teacher. He had burglarized Mrs. Davidson's home before, but this time he enlisted the aid of his sixteen-year-old wife and thirteen-year-old cousin. Mrs. Davidson returned home during the burglary, so applicant and his cohorts tied her up with duct tape, put her into the trunk of her car, and then spent the afternoon driving around in her car buying and smoking formaldehyde-laced marijuana cigars. Later, they picked up applicant's younger brother and stopped at a Jack-in-the-Box, where applicant sent the others inside to buy food while he waited, outside surveillance camera range, in Mrs. Davidson's car. After the foursome ate and </span><span style="font-family: Times New Roman;">smoked more marijuana, applicant drove the car to the Neches River. He and his younger brother pulled Mrs. Davidson out of the trunk, tied her legs to a cinder block, beat her with her gardening shovel, kicked her in the head, and finally threw her in the river to drown. After dropping off his three cohorts, applicant "rented" Mrs. Davidson's car to friends in return for two rocks of crack cocaine. His friends were later pulled over in Mrs. Davidson's car, and they told the police about applicant "renting" them the stolen car. Police came to applicant's house to arrest him but he fled. The officers arrested applicant later that day, after he and his brother were found hiding in a neighborhood "dope house." Applicant was wearing Mrs. Davidson's gold wedding ring when he was booked into jail.</span></p> <p><span style="font-family: Times New Roman;"> We affirmed applicant's conviction and sentence on direct appeal.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_2_"><sup> (2)</sup></a> Meanwhile, on December 3, 2002, applicant filed his original writ of habeas corpus with the presiding judge of the convicting court.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_3_"><sup> (3)</sup></a> Accompanying his writ application were two volumes of material, including various affidavits, treatise excerpts in support of his mental-retardation claim, documents from the underlying trial, and published law review and behavioral science articles. The State filed its response five months later. On June 23, 2003, after consulting with the attorneys, the trial judge entered an order that found that there were no factual issues that could not be resolved by using the trial record and the written writ materials. Thus he decided that a live evidentiary hearing was unnecessary. He ordered both the State and applicant to file proposed findings of fact and conclusions of law. On July 14, 2003, applicant filed an additional affidavit by Dr. Windel Dickerson who, based on a personal examination of applicant and his review of various other materials, concluded that applicant was mildly mentally retarded. Two weeks later the trial judge signed an order permitting both the State and applicant to acquire and file additional educational records for applicant. On that same day, the trial judge denied applicant's proposed findings of fact and conclusions of law and signed the State's proposed findings.</span></p> <p><span style="font-family: Times New Roman;"> On August 7, 2003, applicant's special-education records were filed with the convicting court, and, one month later, applicant filed a videotaped statement made by Dr. Dickerson.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_4_"><sup> (4)</sup></a> All of these materials were then forwarded to this Court on September 10, 2003. Applicant has continued to file additional motions in this Court, culminating, on May 19, 2004, with a "Motion to Consider Additional Evidence of Mental Retardation." Attached to this motion is a letter from Dr. Dickerson and an accompanying psychological-services test report, again setting out his opinion that applicant is mentally retarded. </span></p> <p><span style="font-family: Times New Roman;"><center>II.</center> </span></p> <p><span style="font-family: Times New Roman;"> Applicant contends that he is mentally retarded and thus, under </span><span style="font-family: Times New Roman;"><em>Atkins v. Virginia</em>,<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_5_"><sup> (5)</sup></a> he is exempt from execution. Here, as in </span><span style="font-family: Times New Roman;"><em>Hall v. State</em>,<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_6_"><sup> (6)</sup></a> the convicting court did not hold a live evidentiary hearing on applicant's post-conviction habeas corpus allegation of mental retardation. But, also as in </span><span style="font-family: Times New Roman;"><em>Hall</em>, the issue of mental retardation was fully litigated during the punishment phase of applicant's original capital-murder trial. Although applicant's trial took place before the Supreme Court decided </span><span style="font-family: Times New Roman;"><em>Atkins</em>, his able trial counsel presciently predicted the outcome of that case and presented extensive mental-retardation evidence as calling for a "Yes" answer to the mitigation special issue submitted to the jury. Applicant's habeas writ relies almost exclusively upon that extensive testimony. Although it is advisable to have an evidentiary hearing to determine mental-retardation claims raised for the first time in post-</span><span style="font-family: Times New Roman;"><em>Atkins</em> habeas applications,<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_7_"><sup> (7)</sup></a> it is not necessary where, as here, the habeas applicant relies primarily upon trial testimony. In this case, both sides had an opportunity to fully develop the pertinent facts at trial, and the habeas judge had an opportunity to assess the credibility and demeanor of the witnesses when he presided over the trial. Although the discrete fact of mental retardation was not an ultimate issue at the capital-murder trial, the punishment phase testimony fully developed that contested fact.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_8_"><sup> (8)</sup></a></span></p> <p><span style="font-size: 13pt;"> During the punishment phase of applicant's trial, the defense called applicant's father, mother, and two sisters. Significantly, none of these witnesses-the persons who knew him best during his youth-testified that they had thought, during his formative years, that applicant was mentally retarded.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_9_"><sup> (9)</sup></a> Applicant's father remembered that applicant had twice suffered head injuries as a child, but he did not know whether he suffered any brain injury as a result. He testified that applicant had had school truancy problems and usually got into trouble alone. While applicant's father stated that applicant had a history of seizures, his sister said that she did not believe that applicant had ever suffered seizures. Applicant's elder sister, a TDCJ-CID prison guard, said that there was very little good that she could say about him other than the fact that he attended church. Applicant's mother testified that applicant failed kindergarten and third grade, that he was sometimes placed in special-education classes, and that he was "very slow and had a learning disability." He missed a lot of school because he had headaches, felt bad about himself, and because she could not drive him to school all the time, as she had to work two jobs. She made him move out of her home about a year before the murder because he had sexually assaulted her adopted daughter.</span></p> <p><span style="font-size: 13pt;"> The defense also called a psychologist, a pediatric neurologist, and a psychiatrist to testify to applicant's mental condition and abilities. Dr. Andrews, the psychologist, testified that applicant has borderline intellectual functioning. He stated that applicant's academic knowledge is "low" and that he reads at an early high-school level, and has a fifth-grade spelling ability and sixth-grade math ability. When applicant was 14 years old, his full-scale IQ score on the Wechsler Intelligence Scale for Children was 71, and he scored a 72 on the TONI.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_10_"><sup> (10)</sup></a> The next year he received a 78 full-scale IQ score on the Wechsler and an 86 on the TONI-2. No one discussed the significance of this improvement in IQ scores.</span></p> <p><span style="font-size: 13pt;"> Applicant dropped out of school in the ninth grade. His teachers consistently noted his high truancy rate as an educational impediment. Dr. Andrews stated that applicant has adaptive deficits and a low ability to complete planning and organization tests. He did not believe that applicant was faking mental deficiencies, but he did think that applicant is "a chronic liar" and that his manipulative conduct in jail demonstrated adaptive behavior.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_11_"><sup> (11)</sup></a> Dr. Andrews concluded that applicant is in the "borderline mentally retarded range" and would not resolve complex situations very well.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_12_"><sup> (12)</sup></a> Dr. Andrews also stated that applicant has an anti-social personality.</span></p> <p><span style="font-size: 13pt;"> Dr. Wise, a pediatric neurologist, reviewed applicant's EEG (electroencephalogram) and testified that applicant has an abnormal neurological status, a generalized slowing of brain function. He stated that the brain changes as a person ages and is influenced by such things as diet, smoking, drug use, and trauma. He had not personally examined applicant. </span></p> <p><span style="font-size: 13pt;"> Dr. Barry Mills, the chief psychiatrist for the Maximum Security Behavior Management Program at Vernon State Hospital, examined applicant and concluded that applicant has two subdural hematomas (blood clots on both sides of his brain) which have caused brain damage. As a result, applicant has poor judgment, an inability to learn from his mistakes or to change his actions in response to complicated situations, and an inability to control frustration or manage himself. Dr. Mills acknowledged that there is nothing in applicant's medical records to confirm any head injury. He did agree that smoking embalming fluid may cause EEG changes. Dr. Mills stated that applicant was not malingering during his examination but that he had been "manipulative and dishonest throughout a large part of his life." He testified that "I did not say [applicant] was mentally retarded. I said he was borderline mentally retarded, essentially functioning at that level, but his I.Q. score was not mentally retarded." He agreed that applicant had never been diagnosed by anyone as "borderline mentally retarded" until after he was charged with capital murder, and he stated that applicant's TONI IQ of 86 was "a more accurate measure of [applicant's] intelligence." </span></p> <p><span style="font-size: 13pt;"> In rebuttal, the State called Dr. David Self, a psychiatrist, who had also examined applicant. In his opinion, applicant was malingering and faking his psychiatric symptoms. He stated that, during his interview, applicant spontaneously launched into a narrative of various mental complaints, including visual and auditory hallucinations, depression, an attempted suicide, and a history of head trauma. In Dr. Self's opinion, applicant's intellectual functioning is in the borderline-to-low average range and he </span><span style="font-size: 13pt;">does not have significant adaptive deficits. Dr. Self described applicant's letter-writing campaign from jail to various friends and relatives asking them to smuggle contraband to him as adaptive, albeit anti-social, behavior. In his opinion applicant's lack of empathy, his callous disregard for others, and his prior conduct, including his sexual assault of his adopted sister, his shooting at his ex-girlfriend, and his assaults on his wife and children, were traits consistent with a psychopathy. Dr. Self stated that applicant's MRI showed evidence of a prior "head trauma," but no evidence of any brain damage. He concluded that applicant has an anti-social personality disorder, but is not mentally retarded. </span></p> <p><span style="font-size: 13pt;"> Additional evidence was timely submitted for the convicting court's consideration on the writ. This evidence included most of applicant's school records, his two written statements to police after his arrest for this murder, twenty inmate-request forms that applicant submitted while he was in jail awaiting trial, letters that he wrote to family and friends from jail, a letter that he had written from jail to a venireperson whose name and address he had memorized in the courtroom from his attorney's jury list, and applicant's medical and mental-health records from TDCJ-CID. </span></p> <p><span style="font-size: 13pt;"> Applicant's school records showed that, in almost every year, he missed a large number of school days, but nonetheless he achieved passing grades in almost all classes. Seventeen "Notices of Concern" were sent to his family during one school year; they noted that applicant failed to complete assignments, failed to make up missed tests, and that he exhibited "excessive absences" and "lack of effort." </span></p> <p><span style="font-size: 13pt;"> Applicant's jail letters are clear, coherent, and clever. In one, he explains to his cousin how to smuggle photographs of his three girlfriends into the jail by taping them to extra pages in an incoming letter. In letters to his brother, applicant writes jocularly in gang slang. In letters to his mother, on the other hand, applicant writes in standard English, without slang. He uses a polite tone as he instructs her on how to smuggle tobacco and rolling papers into the jail by putting them in envelopes labeled "Legal Mail," and having them delivered by his defense investigator. He tells his mother that he is working on getting joint custody of his son for her and his wife's mother, and asks her to call the defense investigator and have him bring applicant a small tape recorder so he can record his wife's custody concessions on the phone. </span></p> <p><span style="font-size: 13pt;"> Applicant's TDCJ-CID medical and mental-health records show that applicant achieved an IQ result of 84 on a TONI test when he arrived on death row which, according to the records, "precluded other need for I.Q. testing."</span></p> <p><span style="font-size: 13pt;"> The trial judge entered findings of fact, based on his review of the trial and writ evidence, that applicant failed to present a cognizable claim of mental retardation because he failed to show facts that prove he is mentally retarded. The trial judge found that Dr. Dickerson's affidavit concluding that applicant is mentally retarded was untimely submitted and therefore should not be considered. In the alternative, he found it unpersuasive.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_13_"><sup> (13)</sup></a> </span></p> <p><span style="font-size: 13pt;"> Although the trial court did not have the benefit of this Court's opinion in </span><span style="font-size: 13pt;"><em>Ex parte Briseno</em>,<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_14_"><sup> (14)</sup></a> it followed the methodology and legal standards set out in that opinion. Applicant claims that his execution would violate the Supreme Court's rulings in </span><span style="font-size: 13pt;"><em>Atkins</em> and </span><span style="font-size: 13pt;"><em>Ring v. Arizona</em><a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_15_"><sup> (15)</sup></a> unless a jury has found, beyond a reasonable doubt, that he is </span><span style="font-size: 13pt;"><em>not</em> mentally retarded, brain damaged, or otherwise lacking in mental culpability. This is a claim that we rejected in </span><span style="font-size: 13pt;"><em>Briseno</em>,<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_16_"><sup> (16)</sup></a> and it is a claim that the habeas judge in this case rejected as well. </span></p> <p><span style="font-size: 13pt;"> In sum, although there was some evidence in the trial and writ record suggesting the possibility of mild mental retardation, there was also ample evidence in the record supporting the trial court's finding that applicant is not mentally retarded. We conclude that the trial court did not abuse its discretion in reaching this factual conclusion. Therefore, we deny applicant relief on his mental retardation claim.</span></p> <p><span style="font-size: 13pt;"> </span></p> <p><span style="font-size: 13pt;"><center>III.</center> </span></p> <p><span style="font-size: 13pt;"> We also dismiss applicant's recently filed "Motion to Consider Additional Evidence of Mental Retardation" because we do not have statutory authority to consider additional evidence. </span></p> <p><span style="font-size: 13pt;"> Applicant's writ application, the State's response, all associated exhibits, and the trial court's written findings of fact and conclusions of law were received by this Court on September 10, 2003. Article 11.071, § 9(f) explicitly states that once all of the appropriate materials have been timely submitted to the trial court and the trial court has made its written findings of fact and conclusions of law, the clerk of the convicting court shall immediately transmit these materials to this Court. Then, under article 11.071, § 11, this Court shall "expeditiously review" the habeas application. We may (but need not) set the case for oral argument and we may (but need not) request further briefing.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_17_"><sup> (17)</sup></a> "After reviewing the record" as it was developed in the trial court, this Court "shall enter its judgment remanding the applicant to custody or ordering the applicant's release, as the law and facts may justify."<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_18_"><sup> (18)</sup></a></span></p> <p><span style="font-size: 13pt;"> In the present case, applicant asks us to act outside of our statutory authority. On November 24, 2003, more than a month after the clerk of the trial court transmitted all of the appropriate writ materials to this Court, applicant filed a motion with this Court entitled "Motion to Declare Simpson Mentally Retarded under </span><span style="font-size: 13pt;"><em>Atkins</em> or Alternatively, Motion to Remand for Evidentiary Hearing to Determine Mental Retardation." This motion alleged that applicant's counsel was "trying to set up an appointment with Dr. Dickerson to re-examine Mr. Simpson."<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_19_"><sup> (19)</sup></a> He requested that this Court stay further action until Dr. Dickerson could file a new report directly with this Court.</span></p> <p><span style="font-size: 13pt;"> On February 9, 2004, this Court received applicant's "Supplemental Reply to State's Response to Petitioner's Mental Retardation Summary." This document stated that Dr. Dickerson had completed his second examination of applicant and a preliminary report was attached. Although the document was filed with this Court, applicant asked that the habeas judge read the attached preliminary report and make supplemental findings. We do not know whether the habeas judge received and read this document, but he did not file any supplemental findings, presumably because he did not have statutory authority to do so.</span></p> <p><span style="font-size: 13pt;"> Finally, on May 19, 2004, applicant filed his Motion to Consider Additional Evidence of Mental Retardation. He states that this motion is a supplement to the motion he filed with this Court on November 24, 2003. According to that motion and Dr. Dickerson's attached report, the results of this second mental-status test were obtained under better conditions than those under which earlier tests were taken. Dr. Dickerson again opines that applicant is mildly mentally retarded and suffers from organic brain damage. </span></p> <p><span style="font-size: 13pt;"> There is no provision in article 11.071 that permits either the State or the habeas applicant to submit original evidence directly to this Court. Evidentiary affidavits, letters, transcripts, or other documents relating to a habeas claim should not be attached to motions or briefs, and they shall not, and will not, be considered by this Court. As we recently stated in another context: </span></p> <p><span style="font-size: 13pt;"> An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. While the record may be supplemented under the appellate rules if something has been omitted, the supplementation rules cannot be used to create new evidence. Moreover, an appellate court's review of the record itself is generally limited to the evidence before the trial court at the time of the trial court's ruling.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_20_"><sup> (20)</sup></a></span></p> <br /><br /> <p><span style="font-size: 13pt;"> In the ordinary case, if this Court were to consider evidentiary materials that were never submitted to, or considered by, the habeas court, the statutory purpose in having the convicting court gather the pertinent evidence and make the appropriate written findings of fact would be entirely frustrated.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_21_"><sup> (21)</sup></a> The legislative framework of article 11.071 contemplates that the habeas judge is "Johnny-on-the-Spot." He is the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. This Court then has the statutory duty to </span><span style="font-size: 13pt;"><em>review</em> the trial court's factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law.<a href="http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=12603#N_22_"><sup> (22)</sup></a> We are not the convicting trial court, and we are not the original factfinders. It is generally fruitless, if not counterproductive, to file original evidentiary materials relating to a habeas claim with this Court rather than the trial court. Although we might have the implicit authority to consider evidentiary materials filed directly with this Court, normally the jurisprudential considerations of efficiency, effectiveness, and comity to the habeas court counsel against such consideration. Because applicant has failed to offer proof of any compelling and extraordinary circumstances, we decline to consider the evidentiary materials that he has filed directly with this Court.</span></p> <p><span style="font-size: 13pt;"> Therefore, based upon our review and our adoption of the trial court's ninety-five pages of thorough and comprehensive findings of fact and conclusions of law which were submitted to this Court, we deny relief and dismiss applicant's motions filed directly in this Court.</span></p> <p><span style="font-size: 13pt;">Cochran</span></p> <p><span style="font-size: 13pt;">Filed: June 30, 2004.</span></p> <p><span style="font-size: 13pt;">Publish <p><a name="N_1_">1. </a> Tex. Code Crim. Proc. art. 11.071. </p><p><a name="N_2_">2. </a> </p></span><span style="font-family: Times New Roman;"><em>Simpson v. State</em>, 119 S.W.3d 262 (Tex. Crim. App. 2003). <p><a name="N_3_">3. </a> In his writ application, applicant candidly admits that his claims 20-37 are ones that have been previously rejected by this Court and "are therefore segregated at the end of the application and need not delay the Court." Nonetheless, we have carefully reviewed those claims, as well as all of his other non-mental retardation claims, and deny them based upon the trial court's findings of fact and conclusions of law. </p><p><a name="N_4_">4. </a> Applicant submitted these materials to the trial court </p></span><span style="font-family: Times New Roman;"><em>after</em> that court had filed its findings of fact and conclusions of law and thus they are not discussed within the trial court's written findings. Nonetheless, we have independently reviewed the materials and conclude that they do not present any significant additional information that was not already before the trial court at the time he made his findings. <p><a name="N_5_">5. </a> 536 U.S. 304 (2002). </p><p><a name="N_6_">6. </a> ___ S.W.3d ___, ___ 2004 Tex.Crim.App. LEXIS 817 (Tex. Crim. App. 2004). </p><p><a name="N_7_">7. </a> </p></span><span style="font-family: Times New Roman;"><em>See Hall</em>, __ S.W.3d at ___ (Price, J., concurring) (noting that "generally, for the review of a contested </span><span style="font-family: Times New Roman;"><em>Atkins v. Virginia</em> claim, the trial court will need to hold a live hearing and not base its decision solely on affidavits submitted by the parties"); </span><span style="font-family: Times New Roman;"><em>id.</em> at ___, (Johnson, J., dissenting) (noting that "[n]o trier of fact in this case has ever heard live testimony, subject to testing or cross-examination, on the specific issue of whether appellant is mentally retarded"); and </span><span style="font-family: Times New Roman;"><em>id</em>. at __ (Holcomb, J., dissenting) (noting that capital murder defendant "was not provided with a live evidentiary hearing ... [and] was not able to cross examine the affiants and the judge was not able to evaluate their credibility"). <p><a name="N_8_">8. </a> </p></span><span style="font-family: Times New Roman;"><em>See Hall,</em> ___ S.W.3d at ___. In </span><span style="font-family: Times New Roman;"><em>Hall</em>, as in the present case, mental retardation was not an ultimate discrete fact litigated during the capital-murder punishment phase. We noted that:</span></p> <p><span style="font-family: Times New Roman;"> the parties introduced a significant amount of evidence regarding whether appellant was mentally retarded, mental retardation <a name="SDU_45"></a>was not considered as a discrete issue by the trial judge or the jury. Although the parties certainly had incentive to litigate the question of appellant's intelligence, the litigation occurred as a question of degree: defense counsel could contend that appellant's low intelligence mitigated his moral culpability even if it did not amount to mental retardation, while the State could contend that, even if appellant were in the mental retardation range, he appreciated the consequences of his actions to a sufficient degree to deserve the death penalty. Had mental retardation been an ultimate issue, the parties may well have litigated the issue even more robustly than they did, as the issue would be a question of kind (which side of the mental divide appellant was on) rather than degree (how much did appellant appreciate the immorality of his conduct).</span></p> <p><span style="font-size: 13pt;"><em>Id</em>. Nonetheless, during this writ proceeding, both parties could, and did, present whatever additional evidence they believed supported or negated the fact of mental retardation. It was only after consulting with the attorneys that the trial judge determined that a live evidentiary hearing was not necessary. <p><a name="N_9_">9. </a> LaTonya, one of applicant's sisters, did testify that applicant was twice held back in elementary school and "had a bunch of problems." She testified that he missed a lot of school: "I'm not saying he was retarded, but I'm just saying that he was slow." Applicant's other sister, Tangela, testified that applicant was slow "as far as educational level," but not in other things. </p><p><a name="N_10_">10. </a> Test of Non-Verbal Intelligence. </p><p><a name="N_11_">11. </a> Dr. Andrews agreed that applicant's conduct in writing his mother-in-law from jail saying that he would serve his time for this capital murder in a mental hospital by telling "my lawyer and the judge that I need some help and I'm having problems and seeing things and hearing things" was goal-directed and showed a knowledge of the legal system and how to avoid the death penalty. Dr. Andrews stated that he did not believe applicant when applicant told him he had auditory and visual hallucinations. Applicant also told Dr. Andrews that he had been hospitalized for psychiatric problems, but Dr. Andrews could not find corroboration for this assertion. </p><p><a name="N_12_">12. </a> Concerning the issue of "significant adaptive deficits," Dr. Andrews explained:</p></span></p> <p><span style="font-size: 13pt;"> Well, he was not able to function well in school. He was not able to function well in a work setting. These could be adaptive deficits. They might be problems with personality as well. I am not terming him mentally retarded but I do think he has some adaptive deficits.</span></p> <p><span style="font-size: 13pt;">He noted that applicant had been diagnosed with a learning disability, not mental retardation, by school officials based upon his IQ test of 78 and TONI results of 86. <p><a name="N_13_">13. </a> Specifically, he found that the prison testing conditions "likely affected" the test scores; the IQ score of 59 that Dr. Dickerson reached was completely at odds with all prior test scores; only portions of tests were given; separate tests for malingering were not given; Dr. Dickerson's assertion that applicant was treated as a mentally retarded person in school was contrary to all other evidence which indicated applicant had a learning disability and truancy problem; Dr. Dickerson appeared not to have reviewed all of the trial testimony; his "adaptive behavior" assessment did not describe behavior that is necessarily the result of mental retardation; Dr. Dickerson's assessment was based largely upon applicant's self-reporting, but applicant's veracity to mental-health experts had been called into serious question by other experts. Dr. Dickerson's videotaped interview, which was submitted to the trial court after the written findings were signed, does not differ substantively from his affidavit. </p><p><a name="N_14_">14. </a> </p></span><span style="font-size: 13pt;"><em>Ex parte Briseno</em>, ___ S.W.3d ___ , 2004 Tex. Crim. App. LEXIS 199 (Tex. Crim. App. 2004). <p><a name="N_15_">15. </a> 536 U.S. 584 (2002) (holding that "if a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt"). </p><p><a name="N_16_">16. </a> </p></span><span style="font-size: 13pt;"><em>Ex parte Briseno</em>, ___ S.W.3d at __ (concluding that </span><span style="font-size: 13pt;"><em>Ring</em> is inapplicable to claims of mental retardation because "[a] lack of mental retardation is not an implied element of the crime of capital murder which the State is required to prove before it may impose a sentence above the maximum statutory punishment for that crime"). <p><a name="N_17_">17. </a> Tex. Code Crim. Proc. art. 11.071, § 11. </p><p><a name="N_18_">18. </a> </p></span><span style="font-size: 13pt;"><em>Id.</em> <p><a name="N_19_">19. </a> Ostensibly, applicant's counsel wanted this re-examination because the trial judge discounted Dr. Dickerson's first untimely filed affidavit for the various reasons set out earlier. </p><p><a name="N_20_">20. </a></p></span><span style="font-family: Times New Roman;"><em>Whitehead v. State</em>, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)</span><span style="font-size: 13pt;">. </span><span style="font-size: 13pt;"><em>Cf. Ex parte Harris,</em> 825 S.W.2d 120 (Tex. Crim. App. 1991) (noting that </span><span style="font-size: 13pt;"><em>Penry </em>claims are limited to evidence contained in the record. "Evidence outside of the record is wholly irrelevant to such claim"); and</span><span style="font-size: 13pt;"><em> Pye v. State</em>, 71 Tex. Crim. 94, 101, 154 S.W. 222, 226 (1913) ("Should we consider these ex parte affidavits it would be necessary that we have the State served with a copy of them, and permit it to introduce evidence in rebuttal thereof; in fact, reopen the case and convert this court into a trial court on the merits of the case, and then substitute our finding on the facts as thus presented to us for that of the verdict of the jury. This we are not authorized to do. If such was the rule, very nearly every case that was appealed to this court would have to be tried de novo. This would be wholly impracticable, and it was never contemplated that this court should become a trial court"). <p><a name="N_21_">21. </a> </p></span><span style="font-size: 13pt;"><em>See Pye</em>, 71 Tex. Crim. at 101, 154 S.W. at 226. <p><a name="N_22_">22. </a> </p></span><span style="font-size: 13pt;"><em>See Hall</em>, ___ S.W.3d at ___ (stating, in context of mental retardation claim raised in habeas application, that "we afford almost total deference to the trial judge's findings of fact, especially when those findings of fact are based upon credibility and demeanor").</span></p> </td> </tr> </tbody></table>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-10659217821007451122008-07-16T11:35:00.000-07:002008-07-16T11:35:30.635-07:00BROWNSVILLE VOICE<a href="http://brownsvillevoice.blogspot.com/2008/07/dannebaum-it-is-time-to-sell-port-of.html">BROWNSVILLE VOICE</a><br /><br /><br /><blockquote><span style="font-style: italic;">The law, which is relevant provides strict oversight by the judge.<br /><br />"(l) Proceedings commenced under this chapter may not proceed to hearing unless the judge who is to conduct the hearing is satisfied that this article has been complied with and that the attorney representing the state will introduce into evidence at the hearing any answer received from an inquiry required by Subsections (c)-(h) of this article. "<br /><br />Judge Banales like every other trained judicial monkey proved he would sign his own death warrant. Judge Banales’ willingness to sign anything without insuring strict compliance with the law is a major cause for the corruption which has Cameron County by the short hairs. It is time Governor Perry rethink Judge Banales’ appointment and demand his resignation. Oh, that is right, Governor Perry is in a permanent state of holding is knees at the command of Dannenbaum.<br /><br />The law required that the BND be given notice of the lawsuit, and in fact served a copy of the lawsuit.<br /><br />"Furthermore, Arambula didn't mind that District Attorney Armando Villalobos did not give BND notice of the intended forfeiture of $1 million from Dannenbaum's firm, perhaps stripping BND's right to claim the money for itself."<br /><br />http://www.brownsvilleherald.com/news/bnd_86143___article.html/board_bridge.html<br /><br />"This is cover-up Brownsville style - "we are so confident we can get away with it, we are going to announce it publicly." Any BND Board Member unwilling to demand a criminal investigation into how DA Villalobos secured the forfeiture without being able to name the source of the money, is not fit for public office. In my opinion a deal was cut to protect Dannenbaum from further exposure in exchange for 1 million dollars.</span><span style="font-weight: bold;"></span></blockquote>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-21133314387217425302008-07-02T04:22:00.000-07:002008-07-02T04:38:18.589-07:00Boy...the defense witness sure makes exposure to amateur hour our entertainment tonExpert doubts exposure claims<br />Doctor admits he didn't seek sample from Citgo tanks<br /><br />By Fanny S. Chirinos (Contact)<br />Originally published 04:00 a.m., July 1, 2008<br />Updated 04:00 a.m., July 1, 2008<br /><br /> * STORY TOOLS<br /> * MOST EMAILED<br /> * HOT TOPICS<br /><br />More Business<br /><br /> * Agent, broker, mentor Edge dies<br /> * Citgo nurse: No worker complaints<br /> * Longtime real estate broker Edge dead at 92<br /><br />SHARE THIS STORY<br />Newsvine Del.icio.us Digg<br />Fark Yahoo! Reddit<br />STORY TOOLS<br /><br /> * EMAIL STORY<br /> * COMMENTS<br /> * IPOD FRIENDLY<br /> * PRINT<br /> * PRINT W/COMMENTS<br /><br />The most emailed stories in the last 3 days<br /><br /> * Woman killed in shooting on Everhart<br /> * Corpus Christi man killed in morning accident<br /> * Angel Food Ministry sees drop in boxes<br /> * Juarez leaves lasting legacy in Kingsville<br /> * Ham radio operators reach out to world<br /> * Texas Treasure taking on trouble<br /> * Man fatally shoots his wife, police say<br /> * Orchestra ties youth with strings, lessons<br /> * Well-dressed birds<br /> * Port of CC aims to be ready for Navy's Ingleside exit<br /><br />The hottest topics in the last 24 hours.<br /><br /> * What does council want? (42)<br /> * Judge rules against Wal-Mart on work breaks (38)<br /> * $3M later, UIL catches 2 student-athletes using steroids (38)<br /> * Man fatally shoots his wife, police say (39)<br /> * Police say woman's baby was cut from womb (33)<br /> * Corpus Christi man killed in morning accident (31)<br /> * Estranged husband made threats before fatal shooting, attorney says (30)<br /> * CCPD: 3 teens attack shelter staff (29)<br /> * Woman killed in shooting on Everhart (185)<br /> * No retrial in death of lawmaker's dad (19)<br /><br />VIEW MORE HOT TOPICS »<br />ADVERTISEMENT<br /><br />An occupational health expert with knowledge of chemical exposure testified Monday that 13 alleged victims of Citgo's emissions weren't exposed to chemicals coming from two of the refiner's oil/water separator tanks. But he admitted under oath that he didn't know exactly what was in the tanks and never requested a report on the tanks' contents.<br /><br />The doctor was the sole defense witness to take the stand in U.S. District Judge John Rainey's courtroom. The sentencing hearing continues at 9 a.m. today on the third floor in federal court.<br /><br />Citgo and its parent company, Citgo Petroleum Corp., were convicted last year of operating two tanks at the refiner's East Plant without the required roofs. Citgo is the first refiner in U.S. history found guilty by a jury of violating federal regulations.<br /><br />Jeffrey D. Britton, a Houston physician, said that although many of the victims shared the same symptoms, their medical records rarely showed that they shared concerns about Citgo Refining and Chemicals Co.'s East Plant. He added that many of the alleged victims were taking medications for symptoms such as coughing and high blood pressure, that might have reacted with one another.<br /><br />"I believe that they smelled something bad, but don't rely on what they claim it is," Britton said. "I did not find scientific evidence that (the) symptoms were caused by the refinery."<br /><br />Dick DeGuerin, the lead defense attorney, went through several alleged victims' medical records with Britton attempting to discredit chemical exposure as the cause of their symptoms. Although parenthetical references by some physicians showed they could not rule out environmental or refinery emissions exposure, Britton said they didn't diagnose the patients with such.<br /><br />Britton also said some of the patients were long-time smokers or had been treated for bacterial infections.<br /><br />Howard Stewart, the Justice Department's lead prosecutor, countered that lab work, such as a throat culture, was not performed and, therefore, the doctors would not have been able to diagnose them accurately.<br /><br />"Just because (someone) smokes doesn't mean she hasn't been exposed, does it?" Stewart asked.<br /><br />Britton answered no.<br /><br />Stewart also sought to establish that Britton could not be certain the alleged victims weren't exposed to emissions coming off the tanks because he didn't know their chemical content. During cross examination, Britton said he hadn't received a sample report for tanks 116 and 117 and was asked if he had ever sought one.<br /><br />"I did not," he answered.<br /><br />Contact Fanny S. Chirinos at 886-3759 or chirinosf@caller.comdannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-62168087488920035142008-03-15T22:21:00.000-07:002008-03-15T22:22:53.684-07:00The District Attorney requested the Grand Jury to subpoena the District Judge.......dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-18942924268168405612008-01-16T03:45:00.000-08:002008-01-16T03:53:39.190-08:00we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the fSend this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-05-004-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />JULIE ANNE FLOWERS A/K/A<br /><br />JULIE ANNE RICHARDSON, Appellant,<br /><br /><br />v.<br /><br /><br />THE STATE OF TEXAS, Appellee.<br /><br />On appeal from the 105th District Court<br /><br />of Kleberg County, Texas<br /><br /><br /><br />MEMORANDUM OPINION ON REMAND<br /><br /><br />Before Chief Justice Valdez and Justices Rodriguez and Garza<br /><br />Memorandum Opinion by Justice Rodriguez<br /><br /><br />Appellant, Julie Anne Flowers a/k/a Julie Anne Richardson, was charged with twenty-two counts of forgery, a state jail felony. See Tex. Penal Code Ann. § 32.21(b), (d) (Vernon Supp. 2005). The jury returned a verdict of not guilty on counts 1, 2, and 5 through 22, and a verdict of guilty on counts 3 and 4, which charged forgery of a check in the amount of $253.08 made payable to Aaron's Rental. (1) See id. § 32.21(a)(1)(A)(i), (B). The trial court sentenced Flowers to one year confinement in a state jail facility, probated for a period of three years. It also assessed a $500.00 fine plus court costs and restitution in the amount of $253.08. By two points of error, Flowers challenges the legal and factual sufficiency of the evidence to support the verdict.<br /><br />In our original opinion and judgment, we held that the evidence was legally sufficient but factually insufficient under the standards of review in effect at the time. Flowers v. State, No. 13-05-004-CR, 2006 Tex. App. LEXIS 4360 (Tex. App.--Corpus Christi May 18, 2006), rev'd and judgm't vacated, In re Flowers, PD-1298-06, 2007 Tex. Crim. App. LEXIS 41 (Tex. Crim. App. Jan. 10, 2007) (per curiam). On January 10, 2007, the Texas Court of Criminal Appeals vacated our opinion and judgment and remanded the case for reconsideration in light of its opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), which re-articulated the factual sufficiency standard of review. Id. at 415-17. Reconsidering the factual sufficiency point of error in light of Watson, we affirm the trial court's judgment.<br /><br />I. Standard of Review<br /><br />In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard applies regardless of whether the case is founded upon direct or circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd).<br /><br />When reviewing the factual sufficiency of the evidence we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. This Court will not reverse the jury's verdict unless, we can say with some objective basis in the record, the great weight and preponderance of the evidence contradicts the verdict. Id. at 415.<br /><br />We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.--Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240.<br /><br />Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.<br /><br />II. Analysis<br /><br />A. The Law<br /><br />If a person forges a writing with intent to defraud or harm another, he commits an offense. Tex. Penal Code Ann. § 32.21(b) (Vernon Supp. 2005). Section 32.21 of the Texas Penal Code provides, in relevant part, that "forge" means "to make . . . or execute any writing so that it purports . . . to be the act of another who did not authorize that act." Id. § 32.21(a)(1)(A)(i). "Forge" also means to pass that writing. See id. § 32.21(a)(1)(B). Proof of intent to defraud is derivative of other elements; thus, in a forgery case, the culpable mental state of "intent to defraud or harm" can be inferred if the State proves that the defendant knew that the writing in question was forged. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (op. on reh'g) (en banc). Here, it is undisputed that Flowers executed the check at issue by signing Young's name to it and passing it to Aaron's Rental. The State's burden was therefore to prove that Flowers acted without Young's authorization. See id.<br /><br />B. Testimony and Evidence Admitted at Trial<br /><br />At trial, Flowers, who was hired as a bookkeeper but who also assumed other responsibilities at Young's bed and breakfast inn, admitted signing Young's name to check number 10530 dated January 12, 2004, that was made payable to Aaron's Rental for a payment on her big-screen television rental contract agreement. She also admitted passing the check to Aaron's Rental. Flowers testified, however, that she had Young's permission to sign and pass the check. Flowers testified that Young borrowed her television in order to honor a coupon being used by clients of the bed and breakfast inn. She explained that in mid-December/January, she and Young discussed reservations and the need for a big screen television. Flowers had a big screen television and was a payment behind on its rental. Flowers testified that "[Young] agreed to make the payment on . . . the big screen TV, and [Flowers] would make up the difference but [Young] would pay the entire amount, and that's exactly what happened . . . ." Flowers testified that they "had discussed it several times before." Additionally, Flowers's February 15, 2004 pay stub reflected a $120.36 deduction from her paycheck. This amount was approximately half of the $253.08 paid to Aaron's Rental.<br /><br />Testifying at trial, Young agreed that he was aware Flowers was going to sign a check for the rental of a big screen television and that Flowers did so at his direction to ensure that his clients would have a television available to them during their stay at the bed and breakfast inn. Young testified that "[Flowers], at that point was more or less running what was going on" and he "trusted [his] business to [Flowers] to watch over these type of things." Young stated that he assumed Flowers had rented a television as they had done that in the past. He admitted that Flowers may have told him that they could use hers, "but in the confusion of everything, [he didn't] really remember." He may have known that they were going to use Flowers's television, but not that they were going to rent a television set for $250. Young testified that he thought the rental was for one night, not for a whole week. Flowers told him she would bring a big screen television, and Young assumed she was going to rent one for thirty or forty dollars a night. Young testified that he did not authorize Flowers to write a check for her account balance on the television.<br /><br />Colby Urbanovsky, a former employee of the bed and breakfast inn, testified that he and another co-worker picked up a big screen television from Flowers's house and delivered it to the main house at the bed and breakfast inn. The television was there for about two weeks, even though the coupon used by the clients was for one weekend. Urbanovsky also testified that he believed Young knew the television had been brought from Flowers's house because Aaron's Rental did not deliver it.<br /><br />Regarding the signing of business checks, Young testified that he would give Flowers permission to sign his name on certain checks, but then he would tell her not to sign any other checks. There is also testimony that on a number of occasions, after Flowers had signed his name on checks to vendors, Young authorized those acts as to regular vendors. Aaron's Rental, however, was not one of those vendors. Additionally, Young authorized Flowers to sign his name on a $3,100.00 check made payable to Flowers to be used to buy a new car. (2) Nonetheless, Young testified that he never gave Flowers carte blanche to sign checks. He testified that he told her, "Julie, do not - [y]ou know, if you're going to - [i]f you're in an emergency and you're going to sign one, you must call me and we must talk it over, and I must approve it on an individual basis." Flowers testified that Young did not tell her not to write anymore checks, although he would say not to sign any more of a specific type of check until they talked about it. Finally, Urbanovsky testified that, on occasion, he heard Young tell Flowers to sign a check because he was not there to do so. He also heard Young tell Flowers not to sign any more checks and if she had to, to call him. In addition, other employees testified that, some time after March 2004, they heard Young tell Flowers not to sign any more checks.<br /><br />C. Legal Sufficiency<br /><br />By her first point of error, Flowers contends that the evidence is legally insufficient to sustain her conviction for forgery. She asserts that no rational trier of fact could have found beyond a reasonable doubt (1) that claimant, Luther Young, III, had not authorized her to sign his name to a business check made payable to Aaron's Rental and (2) that Flowers passed a check with intent to defraud or harm Young. (3)<br /><br />Considering all of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Young did not authorize Flowers to sign his name and pass check number 10530. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95.<br /><br />Young testified that although he authorized Flowers to sign his name on certain checks, he did not authorize a payment towards her Aaron's Rental account balance. Moreover, Aaron's Rental was not one of his regular vendors for which he would authorize her to sign checks. He assumed that Flowers, who performed numerous tasks in addition to the bookkeeping at the bed and breakfast inn, had rented a television as they had done in the past, for perhaps thirty or forty dollars a night. Although Flowers testified that Young agreed to make her payment to Aaron's Rental, questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact, and the jury could have given more credibility and weight to Young's testimony. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7.<br /><br />Concluding that the jury could have found Young did not authorize the check at issue in this case, the jury was entitled to infer that Flowers possessed the culpable mental state of "intent to defraud or harm." See Huntley, 4 S.W.3d at 814. Accordingly, we hold that the evidence was legally sufficient to support the jury's verdict as to counts three and four of the indictment. Flowers's first point of error is overruled.<br /><br />D. Factual Sufficiency<br /><br />In her second point of error, Flowers complains that the evidence is factually insufficient to sustain her conviction for forgery. More specifically, Flowers complains that the evidence is factually insufficient to establish the "not authorized" element of the offense. We disagree.<br /><br />In our original opinion in this appeal, our factual sufficiency review was largely guided by the following standard articulated by the court of criminal appeals in Zuniga v. State:<br /><br />When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. We may find the evidence to be factually insufficient in the following ways: (1) if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then we must find the evidence insufficient; or (2) if, when we weigh the evidence supporting and contravening the finding, we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient.<br /><br />Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), overruled by Watson, 204 S.W.3d at 417. In Watson, the court of criminal appeals stated the following:<br /><br />Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence "preponderates" in favor of a conviction is inconsistent with that historically required high level of skepticism.<br /><br />. . . We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. . . . We have always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.<br /><br /><br />Watson, 204 S.W.3d at 417. Therefore, we must now apply the standard articulated in Watson to Flowers's factual sufficiency challenge.<br /><br />Flowers argues that there was evidence that (1) Young allowed Flowers to handle business regarding the bed and breakfast inn, (2) Young gave Flowers prior authorization to sign checks, including this check, (3) Young directed her to get a television to honor a coupon, (4) Flowers acquired a big screen television for the bed and breakfast inn, (5) Young was aware that Flowers's television was to be used and was, in fact, used for his clients' stay at the bed and breakfast inn, and (6) Young took a deduction from Flowers's paycheck which equaled approximately half of the monthly rental amount paid to Aaron's Rentals for the television.<br /><br />Young testified that although he gave Flowers permission to sign his name on certain checks, he told her several times not to sign his name on any checks without his prior authorization. Young testified that he told Flowers, "If you're in an emergency and you're going to sign one [a check], you must call me and we must talk it over, and I must approve it on an individual basis." Moreover, when the State asked Young, "Did you ever authorize Julie Richardson [Flowers] to write a check for the [Aaron Rentals'] account balance for this T.V.?" Young answered, "Absolutely not." Kirk Scott, a former employee of the bed and breakfast inn, testified that he overheard Young tell Flowers he did not want her signing his name on any checks. Leticia G. Ramirez, an employee of Young, testified she heard Young "tell Julli [sic] not to sign any more checks." Ramirez reiterated during re-cross examination that she heard Young tell Flowers, "Do not sign any checks."<br /><br />As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to believe that Young did not authorize Flowers to sign his name to the check to pay her account balance with Aaron's Rentals. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Therefore, after reviewing all of the evidence in a neutral light, we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the finding is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d 404, 414-15. We overrule Flowers's second point of error.<br /><br />IV. Conclusion<br /><br />Finding no error, we affirm the trial court's judgment. NELDA V. RODRIGUEZ<br /><br />Justice<br /><br /><br />Do not publish.<br /><br />Tex. R. App. P. 47.2(b).<br /><br /><br />Memorandum Opinion on Remand delivered<br /><br />and filed this 10th day of January, 2008.<br /><br />1.<br />In relevant part, Charge 3 of the indictment read as follows:<br /><br /><br />[D]efendant . . . on or about January 12, 2004, in, KLEBERG County, Texas, did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Luther Young, III, who did not authorize the act, and said writing was a check of the tenor following: #10530 payable to Aaron's Rental for $253.08 on 1/12/04, . . .<br /><br /><br />Charge 4 identified the elements identified in Charge 3 and added that Flowers passed "to Aaron's Rental a forged writing, knowing such writing to be forged."<br /><br />2. Flowers told Young she was expecting a check from her insurance company which she would use to repay him. At the time of trial, Flowers had not repaid the loan.<br /><br />3. Flowers also generally contends that the evidence is legally insufficient because the State failed to prove that this check was signed and passed in Kleberg County, Texas, as alleged in the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (en banc).dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-69597668266163226482007-12-23T11:23:00.000-08:002007-12-23T11:23:18.459-08:00Dancing Politicos: Texas Monthly Web Press: Fil & Junior John ( the Two Juniors) dont give a hoot about a VA Hospital or Children’s Healthcare, they d<a href="http://choreographichegemony.blogspot.com/2007/12/texas-monthly-web-press-fil-junior-john.html">Dancing Politicos: Texas Monthly Web Press: Fil & Junior John ( the Two Juniors) dont give a hoot about a VA Hospital or Children’s Healthcare, they dont care about S TX</a><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html"><br /></a><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html"><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>On the lamb........</b></span><br /><span style="">Posted on December 23, 2007 at 07:27:59 AM by Borrego/Laurels Acres sold ....?title<br /></span><br /><br />Post 1 December 23, 2007 at 6:02 a.m. (Suggest removal)<br /><br />What a superficial column! This is never about anything substantive- never discusses any real political issues. This lady is just a groupie at council and commissioner's meetings, reporting the stupid things they do or say.<br /><br />The last week of the year is when people are making their final decisions to run for office. Something could have been written about attorneys thinking of challenging the rude Judge Longoria or what happened about possible opponents to Juan Garcia but no she'd rather talk about nonsense. If she wants to learn more about what commissioners are thinking when they dress the same perhaps she can do a series hiding out in each politician's closet and watching and listening to them dress- and the Caller - Times can get someone to deal with the more serious issues.<br /><br />~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~<br /><br />Yes post 1 , it may be superficial , but is that earning the money we paid for them to "work harder"?<br /><br />How much does faux "cleric" Tyne r Little earn? Enough for him to be elevated by the County Judge to "Reverend, are you all set?"<br /><br />When did this happen? Dress rehearsal for another Loyd (Insurance) deal perhaps, but it was whatever "Kneel" wanted it to be.<br /><br />What is 9/10th's of the law? Abandonment?<br />WACO?!?<br /><br />This is criminal why does Jaime Powell not report "eminent domain" this crime fraud? Paul Jones & Ennis Joslin land giveaway?<br /><br />Or the Pat rick Birmingham CCCC discrimination?<br /><br /><br /><br />"A-B-C.....easy as 1-2-3.....it-is -free, it is wise to remember, no one rides for free.<br /><br />We can always tell when you lie, your lips move.<br /><br /></span></a><span style="font-family:verdana,helvetica,arial;"><a href="http://caller.com/news/2007/dec/23/political-pulse/">Paid to fluff, all that is tough.... </a></span><br /><br /><br /><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>I'll take......</b></span><br /><span style="">Posted on December 23, 2007 at 12:27:41 PM by Jaime Kenedeno<br /></span><br /><img src="http://www.mainlesson.com/books/winter/aesop/zpage075.gif" /><br /><br /><span style="font-weight: bold;">prime rib for 1000 Alex. </span><br /><br />I mean, really..... we need to give Alex Garcia the boot and find somebody who will not only unite but to invigorate the State of the County Politics and engage the Citizenry of Nueces County Voters Voting.<br /><br />We need to realize the one's who profit from division and it is not the average Nueces County Citizen.<br /><br />We have State of the County events held with the publics money; yet the public was never invited.<br /><br />We have the hyenas circling and making advances (but we do not see them). They are dressed in Lambs Clothing. </span><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html"><br /><br /></a><div style="text-align: right;"><div style="text-align: center; font-weight: bold;"><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">Texas Monthly Web Press: Fil & Junior John ( the Two Juniors) dont give a hoot about a VA Hospital or Children’s Healthcare</a></div><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.projecthep.com/bluerose.jpg"><img style="cursor: pointer; width: 400px;" src="http://www.projecthep.com/bluerose.jpg" alt="" border="0" /></a><br /></div><div style="text-align: right;"><div style="text-align: right;"><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">Fil Junior only seeks a Federal Bench for Rose </a></div><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://tlr.quicksilveris.com/files/tlrbanner.jpg"><img style="margin: 0px auto 10px; display: block; text-align: center; cursor: pointer; width: 592px; height: 65px;" src="http://tlr.quicksilveris.com/files/tlrbanner.jpg" alt="" border="0" /></a><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">South Texas Chisme: Could it be true, Is Fil Vela involved with Connie Scott? </a><br /><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">Treasurer? </a><br /><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">TLR hates South Texas, does that include Connie and her Hubby? </a><br /><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">WATTS his name? Mike Scott?<br /><br />The Two Juniors represent not a mainstream Texas but they represent the Transplanted Texans (like Bush) and the Elite Texans (like K.C.Rove). </a><br /><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html"><span style="font-weight: bold;">Junior John will say WATT ever it takes to get re elected. </span></a><br /><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" >>Why hasn't anyone gone after Filemon personally as a way to derail Rose? </span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > >If you go to </span><a style="font-style: italic; font-family: arial,sans-serif; color: rgb(153, 102, 51);" href="http://www.fec.gov/" target="_blank" onclick="return top.js.OpenExtLink(window,event,this)"> www.fec.gov</a><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > and follow the instructions on finding out who</span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > >gave to whom, how much, and when, then load up Filemon Vela as an </span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" >>Individual Search you'll see he's made significant contributions to two </span><span style="color: rgb(153, 102, 51);"> </span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" >>notorious politicians. Rep. Duncan Hunter (R-CA) and Senator Robert </span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" >>Menendez (D-NJ). Hunter is an undicted coconspirator in the very same mess</span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > >that sent ex-rep "Duke" Cunningham's ass to prison recently, and Menendez</span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > >is currently under federal investigation for shady real estate dealings by </span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > >renting a building he owns to a non-profit and pocketing $300, 000.00 in</span><br /><span style="font-style: italic; color: rgb(153, 102, 51);font-family:arial,sans-serif;" > >taxpayer subsidies.</span><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhn3zrPJHASm03ID1ut_pP8-2zOXwWTCs_J9v_HAFIZ2QaJ01eleebUE7xJOZ6aACXHGtT4aJMjqnHtNYeUI3zbCwXcvp29IP-h5riLZ6yVFYjn-hQn9r8yk3f00xAe-azkbODoFA/s1600-h/rhodes+vela.jpg"><img style="margin: 0px auto 10px; display: block; text-align: center; cursor: pointer; width: 501px; height: 286px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhn3zrPJHASm03ID1ut_pP8-2zOXwWTCs_J9v_HAFIZ2QaJ01eleebUE7xJOZ6aACXHGtT4aJMjqnHtNYeUI3zbCwXcvp29IP-h5riLZ6yVFYjn-hQn9r8yk3f00xAe-azkbODoFA/s400/rhodes+vela.jpg" alt="" id="BLOGGER_PHOTO_ID_5144826053261508018" border="0" /></a><br /><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">Junior John is working with Fil Vela Jr. & Federal Prosecutors (in the Valley, CC, SA & Houston) to Manufacture White Collar Crime and use it as a Political Strongarm when the Political Strongarm should be accomplishments and the actual construction of a VA Hospital in the Valley. </a><br /><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html"><br /></a><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg9zE9Q9ibD3Hl2xiknwSGAyBg61Tij9upfmAQ-OB-FYcvsyNRFHlbavhmBb9OUC27oZUEhjl_Lj56IA9Gv0TNT97MASRldcpeRngyWQfmtrB0P5LPbOEMPHmuVrb8YwpXudsvXHw/s400/junior+john+in+cc+who+knew.jpg" alt="" id="BLOGGER_PHOTO_ID_5144810204832185730" border="0" /><br /><br /><span style="font-style: italic;"><blockquote>Junior John has got to figure in this mix and Fil is the inroads (for Cornyn) into South Texas. We need to put a Big Stop Sign up in Robstown and inform them about <span style="font-weight: bold;">Connie Scott</span> as I understand Fil Vela is her campaign manager or treasurer and <span style="font-weight: bold;">Mike Scott</span> is a <span style="font-weight: bold;"> TLR</span> guy with a title</blockquote></span><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh6P4yaqq9mCYutGPCFCG0l1UIbO-dgy8HESZVun9etVEZCQ2cw-TnGsyEzVUViQQsurqHaKE08yOpMuF1MUMdCytW2jY24KYGN7IZCcw4HG6QK3PJopQV2sp0lrg3sqsVgLqxNrQ/s1600-h/TLR+collage.jpg"><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh6P4yaqq9mCYutGPCFCG0l1UIbO-dgy8HESZVun9etVEZCQ2cw-TnGsyEzVUViQQsurqHaKE08yOpMuF1MUMdCytW2jY24KYGN7IZCcw4HG6QK3PJopQV2sp0lrg3sqsVgLqxNrQ/s400/TLR+collage.jpg" alt="" id="BLOGGER_PHOTO_ID_5144810209127153042" border="0" /></a></div><div style="text-align: right;"><br /><div style="text-align: center;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg5Xy87x6DBuERpzcRbojUAFrCl147jVtWlqb2W0N7-AcbRzNeXDr9Wd0KF0wmwgwmrPpP8CRE6-ab7X6PmlF5J06-caJ3l4szceVBZAwCYpYRjQg0m5e7XO7uUGOFWo4jGeN4v1A/s1600-h/fil+vela+multiples.jpg"><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg5Xy87x6DBuERpzcRbojUAFrCl147jVtWlqb2W0N7-AcbRzNeXDr9Wd0KF0wmwgwmrPpP8CRE6-ab7X6PmlF5J06-caJ3l4szceVBZAwCYpYRjQg0m5e7XO7uUGOFWo4jGeN4v1A/s400/fil+vela+multiples.jpg" alt="" id="BLOGGER_PHOTO_ID_5144829386156129730" border="0" /></a><br /></div><br /><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEifx4daPWzEKZRIG7sFEGme0tg49j-_v4E2HWTEfgt7Vbog0leNAt54p4IikGYbULOGZwmEvLqPGmgMAN2tpjVA2ycDOen9ya6Z5YmO-iG8Rq5HKmBCbcyGXfHnQAGqEzrsjZimQA/s1600-h/tlr+logo.jpg"><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEifx4daPWzEKZRIG7sFEGme0tg49j-_v4E2HWTEfgt7Vbog0leNAt54p4IikGYbULOGZwmEvLqPGmgMAN2tpjVA2ycDOen9ya6Z5YmO-iG8Rq5HKmBCbcyGXfHnQAGqEzrsjZimQA/s400/tlr+logo.jpg" alt="" id="BLOGGER_PHOTO_ID_5144829386156129746" border="0" /></a><br /></div><div style="text-align: right;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhclgRqyJ2hqTsr7rch5sSfKA0oF4I_E0ffka5nB3NyDdw7WCRV8lzx5GfFp5sOhKebQD889L6b8ycf34QChyphenhyphen-s2IMZ-awy_Tnm5zV726FhCOOiUFKu1etcaBIgC0DZRW3YFKJ31Q/s1600-h/chuck+hopson+on+far+right+tlr+supports.jpg"><img style="cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhclgRqyJ2hqTsr7rch5sSfKA0oF4I_E0ffka5nB3NyDdw7WCRV8lzx5GfFp5sOhKebQD889L6b8ycf34QChyphenhyphen-s2IMZ-awy_Tnm5zV726FhCOOiUFKu1etcaBIgC0DZRW3YFKJ31Q/s400/chuck+hopson+on+far+right+tlr+supports.jpg" alt="" id="BLOGGER_PHOTO_ID_5144810213422120354" border="0" /></a><br /></div><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqF5H0IifuZRqkH-R-v8_j69NLVQXcAJ5qF55_RijqW4LQkNylKd-sav63I4jCrKcf29ebDNV6aPhH2ntBmB8ghZMVOMA5MpjZrGNaBGQVvuCwmDMnn52wTXSv1bNGGKi8mNuhzA/s1600-h/rhodes+vela.jpg"><img style="cursor: pointer; width: 400px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqF5H0IifuZRqkH-R-v8_j69NLVQXcAJ5qF55_RijqW4LQkNylKd-sav63I4jCrKcf29ebDNV6aPhH2ntBmB8ghZMVOMA5MpjZrGNaBGQVvuCwmDMnn52wTXSv1bNGGKi8mNuhzA/s1600-h/rhodes+vela.jpg" alt="" border="0" /></a><br /><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqF5H0IifuZRqkH-R-v8_j69NLVQXcAJ5qF55_RijqW4LQkNylKd-sav63I4jCrKcf29ebDNV6aPhH2ntBmB8ghZMVOMA5MpjZrGNaBGQVvuCwmDMnn52wTXSv1bNGGKi8mNuhzA/s1600-h/rhodes+vela.jpg"><img style="cursor: pointer; width: 400px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqF5H0IifuZRqkH-R-v8_j69NLVQXcAJ5qF55_RijqW4LQkNylKd-sav63I4jCrKcf29ebDNV6aPhH2ntBmB8ghZMVOMA5MpjZrGNaBGQVvuCwmDMnn52wTXSv1bNGGKi8mNuhzA/s1600-h/rhodes+vela.jpg" alt="" border="0" /></a><br /><div style="text-align: right;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://mas.scripps.com/CCCT/2006/04/25/p-1rendon0425_d.jpg"><img style="cursor: pointer; width: 400px;" src="http://mas.scripps.com/CCCT/2006/04/25/p-1rendon0425_d.jpg" alt="" border="0" /></a><br /></div><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://images.amazon.com/images/P/0307237923.01._AA240_SCLZZZZZZZ_V66499694_.jpg"><img style="margin: 0pt 0pt 10px 10px; float: right; cursor: pointer; width: 400px;" src="http://images.amazon.com/images/P/0307237923.01._AA240_SCLZZZZZZZ_V66499694_.jpg" alt="" border="0" /></a><div style="text-align: center;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.thesmokinggun.com/graphics/art3/1020051delay1.jpg"><img style="cursor: pointer; width: 400px;" src="http://www.thesmokinggun.com/graphics/art3/1020051delay1.jpg" alt="" border="0" /></a><br /><a href="http://texasmonthly.blogspot.com/2007/08/south-texas-chisme-its-monday-it-must.html">We dont need to speculate or debate how Junior John will vote<br /><br />, who he will benefit and who he represents. No if ands or buts about it Junior John’s Record is who he is, how he votes, who he represents and it is not the average Texan</a><br /><br /></div><div style="text-align: right;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://img.coxnewsweb.com/B/07/06/29/image_5829067.jpg"><img style="cursor: pointer; width: 400px;" src="http://img.coxnewsweb.com/B/07/06/29/image_5829067.jpg" alt="" border="0" /></a><br /></div><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqF5H0IifuZRqkH-R-v8_j69NLVQXcAJ5qF55_RijqW4LQkNylKd-sav63I4jCrKcf29ebDNV6aPhH2ntBmB8ghZMVOMA5MpjZrGNaBGQVvuCwmDMnn52wTXSv1bNGGKi8mNuhzA/s1600-h/rhodes+vela.jpg"><img style="cursor: pointer; width: 400px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqF5H0IifuZRqkH-R-v8_j69NLVQXcAJ5qF55_RijqW4LQkNylKd-sav63I4jCrKcf29ebDNV6aPhH2ntBmB8ghZMVOMA5MpjZrGNaBGQVvuCwmDMnn52wTXSv1bNGGKi8mNuhzA/s1600-h/rhodes+vela.jpg" alt="" border="0" /></a>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-72185250073326439562007-11-14T22:48:00.000-08:002007-11-14T23:51:39.563-08:00A Bill for the Creation of a Robstown Nueces County Constitutional Judge?<span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>Sen Bill 1951 of the 80th Leg: 1 District Court with 2 District Attorneys no where else but the 105 </b></span><br /><span style="">Posted on November 14, 2007 at 11:52:34 PM by Jaime Kenedeno<br /></span><br /><img src="http://haftegi.7rooz.com/images/Alfred%20E.%20Neuman%20milk.jpg" /><br /><br />Isn't that like having 2 Attorney Generals for the same state.<br /><br />Can a County elect 2 County Attorneys<br /><br />Can a County have 2 County Attorneys for the same county.<br /><br />ADA's & ACA's are not elected nor are they appointed to serve by the Governor.<br /><br />I submit the legislation to be illegal, unconstitutional and in violation of election codes, government codes and a circumvention of trickery to spite the failed legislation that attempted to create a new district in Kleberg & Kenedy Counties.<br /><br />The legislation that created the New District Attorney Position in Kleberg & Kenedy County must be challenged. <br /><br />There is only one district.<br /><br />There can only exist 1 District Attorney per District.<br /><br /><i>"Anything else, would be uncivilized"</i><br /><br /><a href="http://423judicialdistrict.blogspot.com/">Senate Bill 1951 of the 80th Legislature</a><br /><br /></span><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>Political Bigomy After All Karl Rove is From Utah</b></span><br /><span style="">Posted on November 15, 2007 at 00:41:33 AM by Jaime Kenedeno<br /></span><br /><img src="http://www.thesmokinggun.com/graphics/art3/1020051delay1.jpg" /><br /><br />Is it not illegal for two to be espoused to one?<br /><br />Think we can legislate another Congressional Rep for the 27th Cong Dist to help Solomon with the "backlog" of legislation in the applicable counties.<br /><br />The precedent has been created get busy and start exploiting it.<br /><br />A Robstown Nueces County Constitutional Judge?<br /><br />Create a County Constitutional Judge's office for both Robstown & Calallen/Annavile, and get Gov. Rick Perry to give the nod to Patti or Randolph Boothe or Sam Keech as first County Constitutional Judge of Robstown & Calallen/Annaville.<br /></span><br /><span style="font-family:verdana,helvetica,arial;"><br /></span><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>Political Bigomy After All Karl Rove is From Utah</b></span><br /><span style="">Posted on November 15, 2007 at 00:41:33 AM by Jaime Kenedeno<br /></span><br /><img src="http://www.thesmokinggun.com/graphics/art3/1020051delay1.jpg" /><br /><br />Is it not illegal for two to be espoused to one?<br /><br />Think we can legislate another Congressional Rep for the 27th Cong Dist to help Solomon with the "backlog" of legislation in the applicable counties.<br /><br />The precedent has been created get busy and start exploiting it.<br /><br />A Robstown Nueces County Constitutional Judge?<br /><br />Create a County Constitutional Judge's office for both Robstown & Calallen/Annavile, and get Gov. Rick Perry to give the nod to Patti or Randolph Boothe or Sam Keech as first County Constitutional Judge of Robstown & Calallen/Annaville.<br /><br /><br /></span><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b></b></span><span style="font-size:130%;"><b></b></span><blockquote style="font-style: italic;"><span style="font-size:130%;"><b>Potential Juror 26........</b></span><br /><span style="">Posted on November 15, 2007 at 00:59:29 AM by d1<br /></span><br />was told "Just trying to stay out of trouble"....LIAR...because If you were "you lied"!<br /><br />Go back to Iraq where they need your kind of prosecution......I forgot your Farsi/Arabic sucks.<br /><br />"Your Honor, I'm gonna have to spend the rest of the summer in the library"<br /><br />More like the rest of your life......Your hate is well documented as you can READ English, do you understand/comprehend English?<br /><br />TLR/Totally Live Recognition........Now, Dick Cheney can shoot who he pleases and whenever he choices to.<br /><br />With you in his pocket....no need to utilize Jaime Powell.</blockquote></span><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>WATT is the Number of the Judicial District for this so called District Attorney</b></span><br /><span style="">Posted on November 15, 2007 at 01:21:39 AM by Jaime Kenedeno<br /></span><br />Sec. 43.182. DISTRICT ATTORNEY FOR KLEBERG AND KENEDY<br /> COUNTIES. (a) The voters of Kleberg and Kenedy Counties elect a<br /> district attorney. The district attorney has the same powers and<br /> duties as other district attorneys and serves the district courts<br /> of Kleberg and Kenedy Counties.<br /> (b) The district attorney shall attend each term and session<br /> of the district courts of Kleberg and Kenedy Counties and shall<br /> represent the state in criminal cases pending in those courts. The<br /> district attorney has control of any case heard on petition of writ<br /> of habeas corpus before any district or inferior court<b> <span style="color: rgb(204, 0, 0);font-size:130%;" >in the<br /> district.</span><br /></b> (c) The commissioners courts of the counties comprising the<br /> district may supplement the state salary of the district attorney.<br /> The amount of the supplement may not exceed $12,000 a year. The<br /> supplemental salary must be paid proportionately by the<br /> commissioners court of each county according to the population of<br /> the county. The supplemental salary may be paid from the officers'<br /> salary fund of a county. If that fund is inadequate, the<br /> commissioners court may transfer the necessary funds from the<br /> general fund of the county.</span><br /><span style="font-family:verdana,helvetica,arial;"><br /></span><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>The Legislation Failed but if you notice the language is the same</b></span><br /><span style="">Posted on November 15, 2007 at 01:26:39 AM by Jaime Kenedeno<br /></span><br /><img src="http://www.geocities.com/KarenSpecial/images/comics/nowheretogo.jpg" /><br /><br />Sec.i24.567.ii423RD JUDICIAL DISTRICT (KENEDY AND KLEBERG COUNTIES). (a) The 423rd Judicial District is composed of Kenedy and Kleberg Counties.<br /><br />(b)iiThe 423rd District Court shall give preference to criminal cases.<br /><br />(c)iiIn addition to other jurisdiction provided by law, the 423rd District Court has concurrent jurisdiction with the county courts in Kenedy and Kleberg Counties and the statutory county court in Kleberg County over all matters of civil and criminal<br /><br />3832 79th Legislature — Regular Session 79th Day<br /><br />jurisdiction, original and appellate, in cases over which a county court has jurisdiction under the constitution and laws of this state. Matters and proceedings in the concurrent jurisdiction of the 423rd District Court and the county court or county court at law may be filed in either court and all cases of concurrent jurisdiction may be transferred between the 423rd District Court, the county court, and the county court at law. However, a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred, and a case may not be transferred unless it is within the jurisdiction of the court to which it is transferred.<br /><br />(b)iiSection 24.207, Government Code, is amended to read as follows:<br /><br />Sec.i24.207.ii105TH JUDICIAL DISTRICT ([KENEDY, KLEBERG, AND] NUECES COUNTY [COUNTIES]). (a) The 105th Judicial District is composed of [Kenedy, Kleberg, and] Nueces County [counties]. The court shall give preference to criminal cases.<br /><br />(b)iiThe terms of the 105th District Court begin[:<br /><br />[(1)iiin Kenedy County on the first Mondays in June and December;<br /><br />[(2)iiin Kleberg County on the first Mondays in April and October; and<br /><br />[(3)iiin Nueces County] on the first Mondays in February and August.<br /><br />(c)iiThe judge, with the approval of the commissioners court, may appoint an official interpreter of the court [in Nueces County] who serves at the will of the judge. The official interpreter shall take both the constitutional oath of office and an oath that he will faithfully interpret all testimony in the district court as official interpreter. The oath is sufficient for his service as official interpreter in all cases in the court [in Nueces County] during the interpreter's term of office. The judge may also assign the official interpreter to assist the court's probation officer in the discharge of the probation officer's duties.<br /><br />(c)iiThe heading to Section 43.148, Government Code, is amended to read as follows:<br /><br />Sec.i43.148.iiKENEDY, KLEBERG, AND NUECES COUNTIES [105TH JUDICIAL DISTRICT].<br /><br />(d)iiSubsections (a) and (c), Section 43.148, Government Code, are amended to read as follows:<br /><br />(a)iiThe voters of Kenedy, Kleberg, and Nueces counties [the 105th Judicial District] elect a district attorney. The district attorney has the same powers and duties as other district attorneys and serves all the district, county, and justice courts of Nueces County and the district courts of Kleberg and Kenedy counties.<br /><br />(c)iiThe commissioners courts of Kenedy, Kleberg, and Nueces [the] counties [comprising the district] may supplement the state salary of the district attorney. The amount of the supplement may not exceed $12,000 a year. The supplemental salary must be paid proportionately by the commissioners court of each county according to the population of the county. The supplemental salary may be paid from the officers' salary fund of a county. If that fund is inadequate, the commissioners court may transfer the necessary funds from the general fund of the county.<br /><br />(e)iiThe local administrative district judge shall transfer all cases from Kenedy and Kleberg Counties that are pending in the 105th District Court on September 1, 2005, to the 423rd District Court.<br /><br />Thursday, May 26, 2005 SENATE JOURNAL 3833<br /><br />(f)iiWhen a case is transferred as provided by Subsection (e) of this section, all processes, writs, bonds, recognizances, or other obligations issued from the 105th District Court are returnable to the 423rd District Court as if originally issued by that court. The obligees on all bonds and recognizances taken in and for the 105th District Court and all witnesses summoned to appear in the 105th District Court are required to appear before the 423rd District Court as if originally required to appear before that court.<br /><br />(g)iiThe 423rd Judicial District is created September 1, 2005.<br /><br />SECTIONi7.ii(a)iiEffective January 1, 2007, Subchapter C, Chapter 24, Government Code, is amended by adding Section 24.569 to read as follows:<br /><br /><a href="http://tlo2.tlc.state.tx.us/sjrnl/79r/html/sj05-26-f.htm">Failed Creation of the 423rd District</a><br /><br /></span><span style="font-family:verdana,helvetica,arial;"><span style="font-size:130%;"><b>Why did they try to create the 423rd Judcial District?</b></span><br /><span style="">Posted on November 15, 2007 at 01:36:58 AM by Jaime Kenedeno<br /></span><br /><img src="http://www.sevenstories.com/html/custom/images/Paradise.jpg" /><br /><br />Sounds like how Hitler thought<br /><br />Did they think they needed a new Judicial District to create the new District Attorney position?<br /><br />We have here in this situation a District Attorney without a Judicial District.<br /><br />Tell me I am wrong and back it up, any takers? </span><br /><span style="font-family:verdana,helvetica,arial;"><br /></span><span style="font-family:verdana,helvetica,arial;"><br /><blockquote></blockquote></span>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-59113571046421939402007-11-11T01:03:00.000-08:002007-11-11T01:09:35.309-08:00Writ of Mandamus: to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing<h1 class="firstHeading">Mandamus</h1><div id="contentSub"><div style="position: absolute; z-index: 100; right: 100px; top: 0px;" class="metadata" id="anontip"><div style="text-align: right; font-size: 87%;">•</div></div></div> <!-- start content --> <p>A <b>writ of mandamus</b> or simply <i><b>mandamus</b></i>, which means "we command" in <a href="http://en.wikipedia.org/wiki/Latin" title="Latin">Latin</a>, is the name of one of the <a href="http://en.wikipedia.org/wiki/Prerogative_writ" title="Prerogative writ">prerogative writs</a> in the <a href="http://en.wikipedia.org/wiki/Common_law" title="Common law">common law</a>, and is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.<sup id="_ref-0" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-0" title="">[1]</a></sup></p> <p>Mandamus is a <a href="http://en.wikipedia.org/wiki/Judicial_remedy" title="Judicial remedy">judicial remedy</a> which is in the form of an order from a superior court to any government, subordinate court, <a href="http://en.wikipedia.org/wiki/Corporation" title="Corporation">corporation</a> or <a href="http://en.wikipedia.org/wiki/Public_authority" title="Public authority">public authority</a> to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.<sup id="_ref-1" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-1" title="">[2]</a></sup> It cannot be issued to compel an authority to do something against statutory provision.</p> <p>Mandamus can be supplemented by the statement that it is not only the command to do but also a command not to do a particular thing against the rights of the petitioner. Mandamus is supplemented by <a href="http://en.wikipedia.org/wiki/Legal_right" title="Legal right">legal rights</a>. It must be a judicially enforceable and legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.</p><br /><p>The <a href="http://en.wikipedia.org/wiki/Prosecutor" title="Prosecutor">applicant</a> pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the <a href="http://en.wikipedia.org/wiki/Respondent" title="Respondent">respondent</a> to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:<sup id="_ref-2" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-2" title="">[3]</a></sup></p> <ol><li>It must be a <a href="http://en.wikipedia.org/w/index.php?title=Legal_duty&action=edit" class="new" title="Legal duty">duty</a> of public nature</li><li>The duty must be imperative and should not be <a href="http://en.wiktionary.org/wiki/discretionary" class="extiw" title="wikt:discretionary">discretionary</a>.</li></ol> <p>Normally, a writ of mandamus does not issue to, or an order in the nature of mandamus is not made against, the <a href="http://en.wikipedia.org/w/index.php?title=Private_individual&action=edit" class="new" title="Private individual">private individual</a>. It is not necessary that the person or the authority on whom the statutory duty is imposed be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the <a href="http://en.wikipedia.org/wiki/Statute" title="Statute">statute</a> under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would be equally applicable for a company constituted by a statute for the purposes of fulfilling <a href="http://en.wikipedia.org/w/index.php?title=Public_responsibilities&action=edit" class="new" title="Public responsibilities">public responsibilities</a>. The court to which the application for the issue of mandamus is made will not constitute itself a court of appeal from the decision of the administrative authority and will not examine the correctness or otherwise of a decision on merits.<sup id="_ref-3" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-3" title="">[4]</a></sup> The exercise of administrative discretion is not interfered upon by the court, but it will do so if there has been an illegal exercise of the discretion. There is an illegal exercise of discretion where:</p> <ol><li>The order is made without, or in excess of jurisdiction</li><li>The order made is <i><a href="http://en.wikipedia.org/wiki/Bad_faith" title="Bad faith">mala fides</a></i>, or</li><li>The authority is influenced by extraneous consideration.</li></ol> <p><a name="History_of_Mandamus" id="History_of_Mandamus"></a></p> <h2><br /><span class="editsection"></span></h2><h2><span class="editsection"></span><span class="mw-headline">History of Mandamus</span></h2> <p>The writ of mandamus is of a very ancient origin, dating back at the latest to the times of <a href="http://en.wikipedia.org/wiki/Edward_II_of_England" title="Edward II of England">Edward II</a>.<sup id="_ref-4" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-4" title="">[5]</a></sup> It seems originally to have been one of that large classes of writs by which the <a href="http://en.wikipedia.org/wiki/England" title="England">Sovereign of England</a> directed the performance of any desired act by his subjects, the word "missive" in such writs and letters, having given rise to the present name of the writ. These letters, missives or mandates, to which the generic term mandamus was applied, were in no sense judicial writs but were merely commands issuing directly from the <a href="http://en.wikipedia.org/wiki/Head_of_state" title="Head of state">sovereign</a> to the <a href="http://en.wikipedia.org/wiki/Citizen" title="Citizen">subject</a> without the intervention of the court. The writ in the shape of these commands, however, became obsolete at a very early stage and gradually it came to be confined to the judicial writ issued by the King's Bench which has by steady growth developed into the writ of mandamus, which is, in general, a command issuing in the King's name from the Court of King's bench and directed to any person, corporation or inferior court of jurisdiction within the King's Dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's bench has previously determined, or at least supposes to be a consonant to right and justice. It is high prerogative writ of a most extensive remedial nature... And issues in all cases where a party has a right to have anything done, and hath no other specific means of compelling its performance.<sup id="_ref-5" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-5" title="">[6]</a></sup></p> <p><a name="Purpose_of_Mandamus" id="Purpose_of_Mandamus"></a></p> <h2><span class="editsection"></span><span class="mw-headline">Purpose of Mandamus</span></h2> <p>The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. It also lies in cases where there is an alternative remedy but the mode of redress is less convenient, less beneficial or less effectual. Generally, it is not available in anticipation of any injury except when the petitioner is likely to be affected by an official act in contravention of a statutory duty or where an illegal or unconstitutional order is made. The grant of mandamus is a matter for the discretion of the court, the exercise of which is governed by well-settled principles.<sup id="_ref-6" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-6" title="">[7]</a></sup></p> <p>Mandamus, being a discretionary remedy, the application for that must be made in good faith and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus. The petitioner must, of course, satisfy the Court that he has the legal right to the performance of the legal duty as distinct from mere discretion of authority.<sup id="_ref-7" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-7" title="">[8]</a></sup></p> <p>A mandamus is normally issued when an officer or an authority by compulsion of statute is required to perform a duty and which despite demand in writing has not been performed. In no other case will a writ of mandamus issue unless it be to quash an illegal order.</p> <p><a name="Kinds_of_Mandamus" id="Kinds_of_Mandamus"></a></p> <h2><span class="editsection"></span> <span class="mw-headline">Kinds of Mandamus</span></h2> <p>There are essentially three kinds of Mandamus:</p> <ol><li><b>Alternative Mandamus</b>: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.</li><li><b><a href="http://en.wikipedia.org/wiki/Peremptory_Mandamus" title="Peremptory Mandamus">Peremptory Mandamus</a></b>: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.<sup id="_ref-8" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-8" title="">[9]</a></sup> <sup id="_ref-9" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-9" title="">[10]</a></sup></li><li><b><a href="http://en.wikipedia.org/wiki/Continuing_Mandamus" title="Continuing Mandamus">Continuing Mandamus</a></b>: A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.<sup id="_ref-10" class="reference"><a href="http://en.wikipedia.org/wiki/Mandamus#_note-10" title="">[11]</a></sup></li></ol> <p><a name="Mandamus_in_the_United_States" id="Mandamus_in_the_United_States"></a></p> <h2><span class="editsection"></span> <span class="mw-headline">Mandamus in the United States</span></h2><br /><p><a name="In_general" id="In_general"></a></p> <h3><span class="editsection"></span> <span class="mw-headline">In general</span></h3> <p>In the <a href="http://en.wikipedia.org/wiki/Administrative_law" title="Administrative law">administrative law</a> context in the <a href="http://en.wikipedia.org/wiki/United_States" title="United States">United States</a>, the requirement that mandamus can be used only to compel a <a href="http://en.wikipedia.org/wiki/Ministerial_act" title="Ministerial act">ministerial act</a> that has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the <a href="http://en.wikipedia.org/wiki/U.S._state" title="U.S. state">U.S. states</a>, acts of <a href="http://en.wikipedia.org/wiki/Administrative_agency" title="Administrative agency">administrative agencies</a> are now subject to <a href="http://en.wikipedia.org/wiki/Judicial_review" title="Judicial review">judicial review</a> for <a href="http://en.wikipedia.org/wiki/Abuse_of_discretion" title="Abuse of discretion">abuse of discretion</a>. Judicial review of agencies of the <a href="http://en.wikipedia.org/wiki/United_States_federal_government" title="United States federal government">United States federal government</a> for abuse of discretion is authorized by the <a href="http://en.wikipedia.org/wiki/Administrative_Procedure_Act" title="Administrative Procedure Act">Administrative Procedure Act</a>.</p> <p><a name="Federal_courts" id="Federal_courts"></a></p> <h3><span class="editsection"></span> <span class="mw-headline">Federal courts</span></h3> <p>The power of the <a href="http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States" title="Supreme Court of the United States">Supreme Court of the United States</a> to issue a writ of mandamus outside its appellate jurisdiction was the controversy that led the Court to delve into the much more significant issue of judicial review in the famed case of <i><a href="http://en.wikipedia.org/wiki/Marbury_v._Madison" title="Marbury v. Madison">Marbury v. Madison</a></i>. In modern practice, the Court has effectively abolished the issuance of mandamus and other prerogative writs although it theoretically retains the power to do so.</p> <p>In the context of <i>mandamus</i> from a <a href="http://en.wikipedia.org/wiki/United_States_court_of_appeals" title="United States court of appeals">United States Court of Appeals</a> to a <a href="http://en.wikipedia.org/wiki/United_States_district_court" title="United States district court">United States District Court</a>, the Supreme Court has ruled that the appellate courts have discretion to issue <i>mandamus</i> to control an abuse of discretion by the lower court in unusual circumstances, where there is a compelling reason not to wait for an <a href="http://en.wikipedia.org/wiki/Appeal" title="Appeal">appeal</a> from a final <a href="http://en.wikipedia.org/wiki/Judgment" title="Judgment">judgment</a>. This discretion is exercised very sparingly.</p> <p>The authority of the <a href="http://en.wikipedia.org/wiki/United_States_district_court" title="United States district court">United States district courts</a> to issue mandamus has been expressly abrogated by Rule 81(b) of the <a href="http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure" title="Federal Rules of Civil Procedure">Federal Rules of Civil Procedure</a>, but relief in the nature of mandamus can be had by other remedies provided for in the Rules, where provided by statute, or by use of the District Court's equitable powers.</p> <p><a name="State_courts" id="State_courts"></a></p> <h3><span class="editsection"></span> <span class="mw-headline">State courts</span></h3> <p>In some state-court systems, however, <i>mandamus</i> has evolved into a general procedure for discretionary appeals from nonfinal trial-court decisions.</p> <p>In some U.S. states, including <a href="http://en.wikipedia.org/wiki/California" title="California">California</a>, the writ is now called <i>mandate</i> instead of <i>mandamus</i>, and may be issued by <i>any</i> level of the state court system to any lower court or to any government official. It is still common for Californians to bring "<a href="http://en.wikipedia.org/wiki/Taxpayer" title="Taxpayer">taxpayer</a> actions" against public officials for wasting public funds through mismanagement of a government agency, where the relief sought is a writ of mandate compelling the official to stop wasting money and fulfill his duty to protect the public fisc.</p> <p>Other states, including <a href="http://en.wikipedia.org/wiki/New_York" title="New York">New York</a>, have replaced <i>mandamus</i> (as well as the other prerogative writs) with statutory procedures. In New York, this is known as an <i>Article 78</i> review after the <a href="http://en.wikipedia.org/wiki/Civil_procedure" title="Civil procedure">civil procedure</a> law provision that created the statutory procedure.</p><p><br /></p><p><br /></p>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-65811335778784180832007-10-14T02:44:00.000-07:002007-10-14T02:53:13.829-07:00Keller should be removed for "Her actions also brought the integrity of the Texas judiciary and of her court in just a tipof the iceburg dead ahead...Wednesday, October 10, 2007<br />Complaint to be filed against Judge Sharon Keller with Commission on Judicial Conduct: With Michael Richard's death, did she go too far?<br /><br />All I can say is it's about time. A reader emails to report:<br /><br /> there will be a press conference at 1:30 PM Wednesday, Oct 10, in front of the Texas Court of Criminal Appeals to announce the filing of a complaint with the State Commission on Judicial Conduct against Sharon Keller.<br /><br /> Jim Harrington, director of the Texas Civil Rights Project and Scott Cobb, of Texas Moratorium Network, will be present, along with others.<br /><br />This couldn't be more justified after the stunt Keller pulled recently, refusing to extend the deadline on a death penalty appeal when the defendant's lawyers' computer malfunctioned. Her fellow CCA judges didn't know about the decision, including the judge assigned to evaluate the case who stayed late after work on the assumption the appeal would be coming. This wasn't just a petty decision by Keller, it was an outright abuse of power in a life or death decision, usurping the rightful authority of both her colleagues and the US Supreme Court. It was not an "incompetent" decision, it was a nasty and mean-spirited one.<br /><br />The "Queen of Mean" deserves the formal complaint, and if Texas judges are to retain public confidence and credibility in the legal community, the Commission should sustain the complaint and sanction Judge Keller harshly. If I had my druthers, I think she should be removed from the bench because of her consistently bad record over the years. According to the Frequently Asked Questions page on on the Commission's website, the Commission may issue sanctions on its own, but it may also:<br /><br /> request that the Supreme Court of Texas suspend a judge under the provisions of Rule 15(b) of the Procedural Rules for Removal of Retirement of Judges. Rule 15(b) states, Upon filing with the Commission of a sworn complaint charging a person holding such office with willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of office, willful violation of the Code of Judicial Conduct, or willful and persistent conduct that is clearly inconsistent with the proper performance of his duties or cases public discredit upon the judiciary or the administration of justice, the Commission, after giving the person notice and an opportunity to appear and be heard before the Commission (under the provisions of Rule 6), may recommend to the Supreme Court the suspension of such person from office.<br /><br />That course of action sounds like exactly what's needed to restore credibility and integrity to Texas' highest criminal court. Keller is not up for re-election until 2012, but Texans shouldn't have to wait that long to remove this judicial cancer from our midst.<br /><br />MORE: See initial coverage from the Houston Chronicle, featuring Judge Keller pointing the finger at everyone but the one person who made the decision that ended Michael Richard's life prematurely - herself. Reported the Chronicle:<br /><br /> Twenty lawyers from across Texas today filed a formal judicial conduct complaint against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of violating the constitutional due process of a condemned man.<br /><br /> The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that led to the execution of Michael Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.<br /><br /> "Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state."<br /><br /> Those lawyers signing the complaint included former State Bar President Broadus Spivey, Houston criminal defense lawyer Dick DeGuerin, University of Houston law professor Mike Olivas, former appellate Judge Michol O'Connor, state Rep. Harold Dutton, D-Houston, and former Nueces County Attorney Mike Westergren.<br /><br />UPDATE: The full text of the complaint is now available here.<br /><br />Posted by Gritsforbreakfast at 12:46 PM <br /><br />Labels: CCA, Death penalty, Judiciary<br /><br />7 comments:<br /><br />Anonymous said...<br /><br /> The Houston Chronicle has another quote from Judge Cheryl Johnson in their story covering today's filing.<br /><br /> Judge Cheryl Johnson was the appeals court jurist in charge of Richard's case. She said she never heard anything about the clerk's office closing off the appeal until the following day.<br /><br /> "I wasn't consulted," Johnson said. "I have been here almost nine years. My understanding was that on a death case we were here up until the time of the execution and we would take filings that came in up until 6 o'clock and the execution is underway."<br /><br /> Johnson said it is not a question of whether Richard is guilty but did he have the right to appeal."<br /><br /> End of Chronicle excerpt.<br /><br /> The Code of Judicial Conduct says that, "a judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action."<br /><br /> From the way, Judge Johnson has been quoted in the media, it sounds like she believes Keller's behavior was innappropriate at the least. If she also believes that it violates the Code of Judicial Conduct, then she is ethically obligated to take action.<br /> 10/10/2007 03:34:00 PM <br />Anonymous said...<br /><br /> In some of the earlier articles on this case, I remember reading several ethics scholars who stated that Keller's refusal to extend the hours of operation for the clerk did not violate any specific ethical rule. The Commission cannot sanction a judge just for doing something they don't like, it has to violate a canon of their code. Anyone know what canon the complaint is going to allege to have been violated?<br /> 10/10/2007 03:54:00 PM <br />Anonymous said...<br /><br /> While we're at it, maybe the Texas Defender Service should be grieved. DP lawyers love to play this brinksmanship game of waiting until the last minute to file their habeas petitions, knowing their chances of getting a stay will be increased if the other side doesn't get to respond.<br /><br /> Sure, it's a nice advantage, but it's a gamble. You don't know if something bad is going to happen at the last minute that might prevent your incredible, Brandeis-like piece of legal gold from saving your client's neck.<br /><br /> Yeah, I know the SCt took cert in the Kentucky case that day, but it's not like this is some novel legal theory. It's been batted around for several years nationally and in Texas for at least the last couple of years.<br /><br /> So waiting until 3 pm the day your client is going to die doesn't seem like the greatest use of time management.<br /> 10/10/2007 04:09:00 PM <br />PersianCowboy said...<br /><br /> To close at 5 PM and refuse to accept an appeal by a person about to be executed is a violation of judicial responsibility. When a person is about to be executed, our state's highest criminal court needs to remain open for business. Keller should resign or be impeached and removed from office for her unethical conduct. This is not the first time that Keller has behaved like a buffoon. According to Tom Price, one of the other conservative judges on the Texas Court of Criminal Appeals, as far back as 2001 she made Texas' highest criminal appeals court "a national laughingstock." As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity.<br /> 10/11/2007 01:59:00 AM <br />Michael said...<br /><br /> This is one reason I always sign my name to comments. anonymous (10/10. 3:54 p.m.) says there are "some other articles" where "several ethics scholars" state that Judge Keller "did not violate any specific rule". Could you be a little more obtuse, please? Maybe instead of hearsay within hearsay, you could try to embed hearsay within hearsay within hearsay. What ethics scholars? I believe Newt Gingrich considers himself an ethics scholar. In light of the Complaint's citation to four specific Canons of the Code of Judicial Conduct, I'll take the word of the signatories -- including a past State Bar of Texas President, as well as the most visible criminal attorney in Texas, Dick DeGuerin.<br /><br /> By the way, can we dispense with referring to "The Honorable Sharon Keller" now?<br /> 10/11/2007 10:26:00 AM <br />PJ or said...<br /><br /> I know this is going to seem like a long statement but if you're going to impeach a judge you'd better know you're state's rules!<br /><br /> Defendant's in this case under color of law and who have caused the constitutional deprivation which was their policy and procedure to do so are not immune, not even under qualified immunity.<br /> JUDICIAL IMMUNITY TO BAD BEHAVIOR:<br /> Therefore the JUDGE IS NOT IMMUNE TO ARREST BECAUSE THE ONLY PERSONS WHO HAVE LIMITED IMMUNITY is Senators and Representatives, coming and going and while in session, and that is limited. If they commit Treason, Felony and Breach of the Peace, they maybe arrested in session.<br /><br /> a. TITLE 28 > PART I > CHAPTER 21 > § 454 Practice of law by justices and judges<br /> Any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor.<br /><br /> Constitution Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.<br /><br /> h. TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE PART I--ORGANIZATION OF COURTS CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES Sec. 453. Oaths of justices and judges Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: ``I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.''<br /><br /> i. TITLE 28 > PART I > CHAPTER 17 > § 372. Retirement for disability; substitute judge on failure to retire (a) Any justice or judge of the United States appointed to hold office during good behavior who becomes permanently disabled from performing his duties may retire from regular active service, and the President shall, by and with the advice and consent of the Senate, appoint a successor. Any justice or judge of the United States desiring to retire under this section shall certify to the President his disability in writing.<br /><br /> TEXAS CONSTITUTION ON IMPEACHMENT:<br /> Article 15 - IMPEACHMENT<br /> Section 4 - JUDGMENT; INDICTMENT, TRIAL, AND PUNISHMENT<br /> Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State. A party convicted on impeachment shall also be subject to indictment, trial and punishment according to law.<br /><br /><br /> § 665.002. INDIVIDUALS WHO MAY BE IMPEACHED. An individual may be removed from an office or a position by impeachment in the manner provided by the constitution and this chapter if the individual is:<br /> (1) a state officer;<br /> (2) a head of a state department or state institution; or<br /> (3) a member, regent, trustee, or commissioner having control or management of a state institution or enterprise.<br /><br /> § 665.052. CAUSES FOR REMOVAL. (a) An individual may be removed from office by address for:<br /> (1) Willful neglect of duty;<br /> (2) Incompetence;<br /> (3) Habitual drunkenness;<br /> (4) Oppression in office;<br /> (5) Breach of trust; or<br /> (6) any other reasonable cause that is not a sufficient ground for impeachment.<br /> (b) In this section, "incompetence" means:<br /> (1) Gross ignorance of official duties;<br /> (2) Gross carelessness in the discharge of official duties; or<br /> (3) Inability or unfitness to discharge promptly and properly official duties because of a serious physical or mental defect that did not exist at the time of the officer's election.<br /><br /><br /> TEXAS CHAPTER 39. ABUSE OF OFFICE § 39.01. DEFINITIONS.<br /> (1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly:<br /> (A) imposes a duty on the public servant; or<br /> (B) governs the conduct of the public servant.<br /> (2) "Misuse" means to deal with property contrary to:<br /> (A) an agreement under which the public servant holds the property;<br /> (B) a contract of employment or oath of office of a public servant;<br /> (C) a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or<br /> (D) a limited purpose for which the property is delivered or received.<br /><br /> TEXAS § 39.02. ABUSE OF OFFICIAL CAPACITY.<br /> (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:<br /> (1) violates a law relating to the public servant's office or employment; or<br /> (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.<br /> (b) An offense under Subsection (a)(1) is a Class A misdemeanor.<br /> (c) An offense under Subsection (a)(2) is:<br /> (1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;<br /> (2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ;<br /> (3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500;<br /> (4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000;<br /> (5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000;<br /> (6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or<br /> (7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.<br /> (d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.<br /><br /> ANSWER TO IMMUNITY<br /><br /> This means ALL JUDGES! The judges, both of the supreme and inferior courts, shall hold their offices during good behavior. The judicial power shall extend to all cases, in law and equity, arising under this Constitution. Impeachment is the ONLY crime that maybe charged without a Trial by JURY!<br /> 10/11/2007 09:24:00 PM <br />Anonymous said...<br /><br /> I practice appellate law, mostly civil cases. I've been involved in dozen of "emergency" matters over the years. Every time a computer glitch, traffic or anything else has contributed to a brief getting to the courthouse after 5 p.m. the court has accomodated us -- and no one was about to die, with his procedural rights irretrievably lost.<br /><br /> If Texas courts can routinely offer relief in matters of money or family disputes, for Keller to not do so in a matter of death is despicable.<br /> 10/11/2007 10:49:00 PM <br /><br />Post a Commentdannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com1tag:blogger.com,1999:blog-21793799.post-83220226215850718952007-09-11T15:02:00.000-07:002007-09-11T15:02:09.464-07:00Texas Monthly Web Press: "IN THE KNOW": Carlos Truan | Hugo Berlanga & The Primrose Path & Rangel Law School @ Texas A&I University.The Original <a href="http://texasmonthly.blogspot.com/2007/05/in-know-carlos-truan-hugo-berlanga.html"><br />Irma Lerma Rangel Legislation</a> was for the establishment of a law school at Texas A & I.Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-9703402088467369412007-09-03T22:30:00.000-07:002007-09-03T22:32:59.686-07:00<span style="font-family:verdana, helvetica, arial;font-size:-1;"><span style="font-size:130%;"><b>Re(3): Abhor what is evil; hold fast to what is good.</b></span><br /><span style="font-size:-2;">Posted on June 23, 2007 at 04:11:40 AM by 4 ringo......you know watt.......<br /></span><br />Jules: Wanna know what I'm buyin' Ringo?<br />Pumpkin: What?<br />Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?<br />Pumpkin: Not regularly.<br />Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.<br /></span>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-73285585567495031182007-08-07T04:27:00.000-07:002007-08-07T04:38:32.969-07:00Anne Armstrong was a Halliburton director when that corporation hired Cheney. She is Kay Bailey Hutchison�s best friend, having helped ...............This is G o o g l e's cache of http://www.apfn.net/messageboard/02-14-06/discussion.cgi.37.html as retrieved on Jul 26, 2007 17:31:07 GMT.<br />G o o g l e's cache is the snapshot that we took of the page as we crawled the web.<br />The page may have changed since that time. Click here for the current page without highlighting.<br />This cached page may reference images which are no longer available. Click here for the cached text only.<br />To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:JHxDRC7QelYJ:www.apfn.net/messageboard/02-14-06/discussion.cgi.37.html+caller+times+king+ranch+subsidies&hl=en&ct=clnk&cd=4&gl=us&client=firefox-a<br /><br />Google is neither affiliated with the authors of this page nor responsible for its content.<br />These search terms have been highlighted: caller king ranch subsidies <br />These terms only appear in links pointing to this page: times<br /><br /> CALLER.COM<br /> ORG SOURCE: Vice President accidentally shoots lawyer<br /> Sun Feb 12, 2006 23:53<br /><br /> <br /><br /> Vice President accidentally shoots lawyer<br /><br /> http://www.caller.com/<br /><br /> Vice President Dick Cheney accidentally sprayed Austin lawyer Harry Whittington in the face and chest with shotgun pellets at the Armstrong Ranch on Saturday. Whittington is in stable condition at Christus Spohn in Corpus Christi.<br /> BREAKING NEWS Cheney's shotgun pellets sprayed fellow hunter at Armstrong Ranch<br /> Vice President Dick Cheney accidentally shot Austin attorney and Armstrong family friend Harry Whittington with shotgun pellets while hunting for quail at about 5:30 p.m. Saturday at the Kenedy County ranch<br /> FULL STORY »<br /> http://www.caller.com/ccct/local_news/article/0,1641,CCCT_811_4461615,00.html<br /><br /> MORE ON ARMSTRONG RANCH<br /> Ranch leader Tobin Armstrong<br /> http://www.caller.com/ccct/local_news/article/0,1641,CCCT_811_4143236,00.html<br /><br /> USGS GNIS (GNIS)<br /> Armstrong Ranch Airport. Feature Type:, airport. Elevation (feet):, 27. Description:, Facility is located 2 mi NE from Armstrong. State:, Texas ...<br /> HTTP://geonames.usgs.gov/pls/gnis/web_query.GetDetail?tab=Y&id=1386171<br /><br /><br /><br /><br /> Location of Armstrong Ranch Airport, Texas<br /><br /><br /> This information is provided by Texans for Public Justice.<br /><br /> Go to our searchable Ranger and Pioneer database<br /><br /> Name Mr. & Mrs. Tobin Armstrong<br /> Appointed To<br /> Industry Agriculture<br /> Employer Armstrong Ranch<br /> Occupation Owner<br /> Address Armstrong, TX 78338<br /> Status for 2000 Pledged to raise $100,000<br /> Status for 2004 not listed<br /> Profile<br /> Pioneer Tobin Armstrong�s ancestor, Texas Ranger John B. Armstrong, bought the beginnings of the Armstrong Ranch in 1882 with the $4,000 bounty he received for capturing outlaw John Wesley Hardin. In 1944 Tobin�s older brother wed an heir of legendary King Ranch (see Fausto Yturria), linking two of the biggest ranches in Texas. The Armstrong Ranch has since gone global, with tracts in Australia and South America. In recent years, Tobin and his wife, Anne, have hosted many GOP dignitaries--including the first and second President Bush--on their 50,000-acre Armstrong Ranch in South Texas. �We go out when the dew is still on the grass, and then hunt until we shoot our limit,� Tobin said in 2000 of his ranch outings with Dick Cheney. �Then we pick a fine spot and have a wild game picnic lunch.� True conservatives might choke on their javelina steaks if they knew that Tobin Armstrong dunned the government for $11,336 in farm subsidies between 1995 and 2002, according to the Environmental Working Group. Anne Armstrong served as: a close advisor to President Nixon; President Ford�s British Ambassador; and approved covert actions on the President�s Foreign Intelligence Advisory Board under Reagan. A veteran of blue-chip corporate boards, Anne Armstrong was a Halliburton director when that corporation hired Cheney. She is Kay Bailey Hutchison�s best friend, having helped launch the senator�s career as Republican National Committee co-chair in 1971. George W. Bush appointed Anne Armstrong as a Texas A&M regent in 1997. She and her husband were part of Laura Bush�s delegation to the funeral of Queen Mother Elizabeth in 2002. As a Kenedy County Commissioner in 2001, Tobin Armstrong expressed serious reservations about a short-lived Bush administration plan to relocate a Navy bomb-testing site from Puerto Rico to the fragile sand dunes of a local beach. Daughter Katharine Armstrong--formerly Katherine Idsal--and ex-son-in-law Warren Idsal also are Pioneers. President Bush invited Tobin, Anne and Katharine Armstrong to a White House sleepover.<br /> http://www.whitehouseforsale.org/ContributorsAndPaybacks/pioneer_profile.cfm?pioneer_ID=509<br /><br /> South Texas Natives - Advisory Group & Technical Committee<br /> Advisory Group. Co-chairs:. Katharine Armstrong, Armstrong Ranch; Will Harte, Cerrito Prieto Ranch. Members:. James F. Anderson, Haas-Anderson Construction, ...<br /> HTTP://www.southtexasnatives.org/advisors/<br /><br /> Daughter Katharine Armstrong--formerly Katherine Idsal--and ex-son-in-law Warren Idsal<br /> http://www.whitehouseforsale.org/ContributorsAndPaybacks/pioneer_profile.cfm?pioneer_ID=622<br /><br /> This information is provided by Texans for Public Justice.<br /><br /> Go to our searchable Ranger and Pioneer database<br /> Name Warren Bruce Idsal<br /> Appointed To<br /> Industry Insurance<br /> Employer UICI Co's<br /> Occupation Ex-Vice President<br /> Address Dallas, TX 75205<br /> Status for 2000 Pledged to raise $100,000<br /> Status for 2004 not listed<br /> Profile<br /> Warren Idsal and Katharine Armstrong both worked for major investment firms at the time of their 1982 wedding, with the Paine Webber (see Joseph Grano) groom marrying a Smith Barney bride. During the 2000 Bush campaign the then-married couple still romantically shared a common Pioneer tracking number. Katharine is the daughter of Pioneer Tobin Armstrong, an heir to the fabled Armstrong and King Ranch fortunes. Her mother, Anne Armstrong, who is Kay Bailey Hutchison�s best friend, helped launch the senator�s career as Republican National Committee co-chair in 1971. As Texas Treasurer in the early 1990s, Kay Bailey Hutchison returned the favor by hiring Armstrong�s son-in-law, Warren Idsal, as a top aide. But Hutchison fired him after a short tenure. Warren Idsal also was an executive at health and life insurer United Insurance Companies (UICI) for several years in the late 1990s. Then-Governor George W. Bush appointed Katharine Idsal to the Texas Parks and Wildlife Commission in 1999. The Idsals divorced and Katharine reclaimed her maiden name after Bush�s gubernatorial successor appointed Katharine chair of the commission. This heir apparent to the Armstrong Ranch resigned her state post in 2003, citing her need to make a living for her three children. Armstrong cited lobbying as one possible career move.<br /><br /> ---------------------------<br /><br /> http://www.tpj.org/index.jsp<br /><br /><br /> Main Page - Tuesday, 02/14/06<br /><br /> Message Board by American Patriot Friends Network [APFN]<br /><br /> APFN MESSAGEBOARD ARCHIVES<br /><br /> messageboard.gif (4314 bytes)dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-25810040476864633742007-08-01T01:03:00.000-07:002007-08-01T01:03:11.235-07:00Hector P Garcia Institute of Education, Integrity, Culture and Public Policy: Corpus Christi Watchdog Authority: Fwd: [Bay of Pigs] Judge Westergren hActionable?<br /><br />Well dont just stand there!!<br /><br />Get To Work!!!<br /><br /><a href="http://hectorpgarcia.blogspot.com/2007/07/corpus-christi-watchdog-authority-fwd.html">Hector P Garcia Institute of Education, Integrity, Culture and Public Policy: Corpus Christi Watchdog Authority: Judge Westergren has been given the opportunity to produce the ...</a>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-35771119641851233062007-07-27T03:23:00.000-07:002007-07-27T03:25:43.261-07:00We note that neither party explains who Mr. Gonzalez might be.....hmmmmmmSend this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-06-035-CV<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,<br /><br /><br />v.<br /><br /><br />ROEL OLIVARES, Appellee.<br /><br /><br /><br />On appeal from the 404th District Court<br /><br />of Cameron County, Texas.<br /><br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Justices Rodriguez, Garza, and Benavides<br /><br />Memorandum Opinion by Justice Rodriguez<br /><br /><br />Appellant, the Texas Department of Public Safety (DPS), appeals from the trial court's order expunging the arrest of appellee, Roel Olivares, from all public records. By two issues, DPS contends (1) that the trial court issued the expunction order in error because Olivares presented no evidence to support the expunction, and (2) that the court abused its discretion in resetting the expunction hearing without notice. We reverse and render.<br /><br />I. Background<br /><br />Olivares was arrested for driving while intoxicated, see Tex. Penal Code Ann. � 49.04 (Vernon 2003), and pled guilty to the charge. The trial court sentenced Olivares to twelve months' incarceration and ordered him to pay a $100 fine. The trial court suspended Olivares's sentence and placed him on probation for a period of twelve months.<br /><br />Olivares later filed a petition to expunge his arrest from public records. The trial court set a hearing on Olivares's expunction petition for September 1, 2005. Pursuant to article 55.02 of the Texas Code of Criminal Procedure, the trial court sent notice of the petition and the September 1st hearing date to all parties believed to possess records of Olivares's arrest. See Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon 2006). Both DPS and the Cameron County District Attorney filed an answer and special exceptions to the petition.<br /><br />On September 1st, the date of the originally scheduled hearing on the expunction petition, the court signed an order setting a hearing for September 29th. The trial court's docket entry for September 1st reflects that (1) the September 29th hearing was related to the district attorney's special exceptions, and (2) the hearing on the expunction petition was reset for October 20th per the agreement of the parties.<br /><br />The following reflects the complete transcription of the September 29th hearing:<br /><br />The Court: Mr. de la Fuente, on your expunction, I'm just going to sign the order.<br /><br /><br />Defense Counsel: Very Well.<br /><br /><br />The Court: On 2005-07-3649, Olivares.<br /><br /><br />Defense Counsel: Yes, Your Honor.<br /><br /><br />The Court: All right.<br /><br />Defense Counsel: Thank you, Judge. Let me make sure there is an order there, if not I'll get one to the Court.<br /><br /><br />The Court: They withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception and so I informed him that it was not necessary for him to appear.<br /><br /><br />Defense Counsel: Very well.<br /><br /><br />The Court: There is no opposition.<br /><br /><br />Defense Counsel: We ask the court to sign the order then, Judge.<br /><br /><br />The Court: I think you are going to have to get me one.<br /><br /><br />Defense Counsel: I will. (1)<br /><br /><br />The trial court signed an order of expunction on October 3rd and an amended order of expunction on October 13th. DPS moved for a new trial, arguing that no evidence was presented by Olivares and that Olivares was not entitled to the expunction as a matter of law. The trial court denied the motion, and this appeal ensued.<br /><br />II. No Evidence<br /><br />By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. We agree.<br /><br />A. Standard of Review<br /><br />A trial court's order in an expunction proceeding is reviewed under an abuse of discretion standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to do so. Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.-Waco 1997, pet. denied).<br /><br />In conducting a legal sufficiency review, we "view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We will sustain a no evidence challenge when the record shows that (1) there is a complete absence of a vital fact, (2) the court is barred from considering the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)); Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 649 (Tex. App.-Corpus Christi 2002, no pet.)<br /><br />B. Applicable Law<br /><br />"The expunction statute was created to allow persons wrongfully charged to expunge their arrest records." Williams, 76 S.W.3d at 650 (citing Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.-Corpus Christi 1997, no writ); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.-Houston [14th Dist.] 1991, no writ)). Expunction is only available when all statutory conditions have been met. Id.; see Tex. Code Crim. Proc. Ann. art. 55.01-.02 (Vernon 2006). The petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650 (citing Butler, 941 S.W.2d at 321; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.-Corpus Christi 1991, no writ)).<br /><br />A petitioner, such as Olivares, who has neither been acquitted of the offense in the petition, nor convicted and subsequently pardoned, must show that each of the following conditions are met to be entitled to expunction:<br /><br />(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:<br /><br /><br />(i) the limitations period expired before the date on which the petition for expunction was filed under Article 55.02; or<br /><br /><br />(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;<br /><br />(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and<br /><br /><br />(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.<br /><br /><br />Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).<br /><br />C. Analysis<br /><br />By its first issue, DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to satisfy the statutory requirements for expunction. In response, Olivares argues that DPS is precluded from raising its no-evidence issue on appeal because (1) DPS was "bound by any representation by a party adverse to said proceeding," and, therefore, induced any purported error, and (2) DPS was required to raise its no-evidence challenge below and failed to do so. Therefore, before we reach the merits of DPS's first issue, we will first address Olivares's challenges to DPS's ability to raise its no-evidence issue on appeal.<br /><br />To support his first argument, that DPS was "bound by any representation by a party adverse to said proceedings," and, therefore, induced any purported error, Olivares relies on Tex. Dep't of Pub. Safety v. Cryan, No. 14-04-00507-CV, 2005 Tex. App. LEXIS 6419 (Tex. App.-Houston [14th Dist.] Aug. 11, 2005, no pet.) (mem. op.). However, we find Cryan distinguishable from the instant case and conclude that Olivares's reliance on Cryan is without merit.<br /><br />In Cryan, the district attorney appeared at the expunction hearing and argued as follows:<br /><br />We did talk to the D.P.S. who filed an extensive answer [in this case]. I think he has talked to [Cryan's attorney] and talked to me. . . . The other two arrests [that did not result in deferred adjudication], we have no problem with expunging those records, but we would oppose any kind of expunction as far as the deferred adjudication is concerned at this point in time because I think, legally, it can not [sic] be done.<br /><br /><br />Based on this argument by the district attorney, the Fourteenth Court of Appeals found that the district attorney "expressly represented to the trial court that neither he, nor DPS, opposed expunction of records related to these arrests." See id. at *6 (emphasis added). In addition, the Fourteenth Court of Appeals concluded that (1) the district attorney's express representation that there was "no problem" with expunging certain records "clearly invited" error by the trial court, and (2) the district attorney, and the parties he represented at the hearing, could not inconsistently contend on appeal that the trial court erred by expunging the petitioner's records. See id. at *6-*7. The Fourteenth Court of Appeals further concluded that because DPS did not appear at the expunction hearing, the district attorney represented DPS's interests at the hearing. Id. at *7. As a result, the Fourteenth Court of Appeals held that "the district attorney's representation that neither he, nor DPS, opposed expunction of records . . . is binding on DPS and precludes DPS from challenging on appeal the legal sufficiency of the evidence to support expunction of records . . . ." Id. at *8.<br /><br />Here, however, neither the district attorney nor DPS was present at the September 29th hearing. Although the trial court stated that "they withdrew the special exception to this case and Mr. Gonzalez came in and I told him - - he told me that there would be an agreement and that they would withdraw their special exception," it is unclear from the record who Mr. Gonzalez was. (2) In addition, it is unclear from the record what the context of any such would-be agreement was-whether it related to special exceptions, to the expunction, or to any other matter. Furthermore, other than the trial court's statement that "there would be an agreement," the record does not show an express representation of any such agreement by Mr. Gonzalez, himself; nor does the record show that Mr. Gonzalez expressly represented that DPS was part of any such agreement. Therefore, based on the record before us, we cannot conclude that (1) Mr. Gonzalez represented DPS's interest at the hearing, (2) DPS was bound by any would-be agreement, or (3) DPS invited any purported error by the trial court regarding the expunction of Olivares's arrest record. Thus, we cannot conclude that DPS is precluded from raising its no-evidence issue on this basis.<br /><br />With respect to his second argument, Olivares asserts that DPS is precluded from raising its no-evidence challenge on appeal because DPS failed to raise its no-evidence challenge in the trial court. However, we conclude that Olivares's argument is without merit. First, DPS raised its no-evidence challenge in its motion for new trial, which the trial court denied. Moreover, it is well settled that when appealing from a non-jury trial, a legal sufficiency challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d) (providing that in a non-jury case, a legal sufficiency challenge may be raised for the first time on appeal in the complaining party's brief); Tex. R. Civ. P. 324(a), (b). Therefore, we conclude that DPS's no-evidence challenge is properly before this Court. Accordingly, we will now address the merits of DPS's no-evidence issue.<br /><br />DPS contends that the trial court erred in granting Olivares's petition for expunction because Olivares presented no evidence to support the expunction. Specifically, DPS asserts that Olivares was required to prove that he satisfied the requirements of article 55.01(a)(2) of the Texas Code of Criminal Procedure in order to be entitled to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). We agree.<br /><br />It is well settled that the petitioner has the burden of proving that all statutory requirements have been satisfied in order to be entitled to expunction. Williams, 76 S.W.3d at 650. Because Olivares had neither been acquitted of the offense identified in the petition, nor convicted and subsequently pardoned for said offense, Olivares was required to prove that he satisfied the conditions set out in article 55.01(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). However, the record does not reflect that Olivares presented any evidence to prove satisfaction of these requirements. (3) Therefore, there is a complete absence of the vital facts necessary for Olivares to establish his entitlement to expunction. See City of Keller, 168 S.W.3d at 810; see also Williams, 76 S.W.3d at 649. Thus, we conclude that there is no evidence to support Olivares's expunction and that the trial court erred in ordering Olivares's records expunged. We sustain DPS's first issue.<br /><br />Having sustained DPS's first issue, we need not address DPS's second issue regarding proper notice of the hearing. See Tex. R. App. P. 47.1.<br /><br />III. Conclusion<br /><br />Accordingly, we reverse the trial court's order and render judgment denying the expunction. Pursuant to DPS's prayer for relief, we order any documents surrendered to the trial court or to Olivares returned to the submitting agencies. See Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the order of expunction applies to all respondents, even if they did not participate in the appeal).<br /><br />NELDA V. RODRIGUEZ<br /><br />Justice<br /><br /><br />Memorandum Opinion delivered and<br /><br />filed this 26th day of July, 2007.<br /><br />1. 1<br />We note that the trial court's docket sheet entry for September 29th shows that the October 20th expunction hearing was canceled.<br /><br />2. 2<br />We note that neither party explains who Mr. Gonzalez might be.<br /><br />3. Moreover, we note that in order to have shown his entitlement to expunction, appellee would have had to prove, among other things, that his DWI charge did not result in a final conviction and that the trial court did not order community supervision for the offense. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C). However, appellee does not dispute that the trial court convicted him of DWI and ordered him to complete twelve months of probation. Thus, even if appellee had presented some evidence as to the other statutory requirements for expunction, he would not have been able to prove his satisfaction of article 55.01(a)(2)(C). See id.dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-58998844349305018222007-07-13T21:10:00.000-07:002007-07-13T21:22:28.652-07:00Yeah for Carlos Valdez.........it takesprecious time to do things right<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://media.caller.com/ccct/content/img/photos/2007/07/13/20070713-035249-pic-990572484_t600.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 320px;" src="http://media.caller.com/ccct/content/img/photos/2007/07/13/20070713-035249-pic-990572484_t600.jpg" border="0" alt="" /></a><br />Local<br />Kleberg official faces inquiry<br />Prosecutor may have intervened on behalf of aunt facing felony<br /><br />By Dan Kelley (Contact)<br />Originally published 12:00 a.m., July 13, 2007<br />Updated 04:18 a.m., July 13, 2007<br />Isassi suggested politics might be behind the investigation.<br />Isassi suggested politics might be behind the investigation.<br /><br /><br /><br />related linksMore Local News<br /><br /> * Corpus Christi named birdiest in nation<br /> * Former King student stabbed to death in Austin<br /> * Couple who paid for trips to China sentenced in visa fraud scheme<br /><br />related linksSHARE THIS STORY<br />Newsvine Del.icio.us Digg Fark Yahoo! Reddit<br /><br />Alfred Isassi describes himself as a career prosecutor. Since graduating from law school in 1999, he has handled felony cases for the District Attorney's Office, and now is the elected Kleberg County attorney, where he oversees misdemeanor prosecutions.<br /><br />Isassi may find himself on the other side of the courtroom. A judge has appointed a special prosecutor to investigate a nearly two-year-old allegation that Isassi intervened improperly on behalf of an aunt, Anna Gonzalez, arrested on felony perjury charges after being accused of failing to disclose an earlier theft conviction when being chosen to serve on a grand jury.<br /><br />Isassi hasn't been formally notified of an investigation.<br /><br />District Attorney Carlos Valdez said the investigation stems from allegations that his former employee interfered with the Kleberg County's Pretrial Services Division. After Gonzalez was arrested, Valdez said, she was released from jail but had to comply with some terms of a pretrial release program.<br /><br />Isassi is accused of calling the office and asking that his aunt not be made to comply with those terms because the district attorney was not going to prosecute. Valdez added that a witness told investigators Isassi said he had talked to the DA about the case. He had not, Valdez said.<br /><br />"He never talked to any of us," Valdez said. He has recused his office from the case because he and two top aides could be made to testify.<br /><br />Isassi said he was not able to recall any conversation with that department regarding the matter.<br /><br />Valdez, as district attorney for the 105th Judicial District, prosecutes felony cases in Nueces, Kleberg and Kenedy counties. That will change in September when Gov. Rick Perry can appoint a district attorney for Kleberg and Kenedy counties, the result of new legislation passed this year.<br /><br />Isassi is seeking that appointment.<br /><br />District Judge Manuel Bañales appointed Retha Cable, an assistant district attorney in San Patricio and Aransas counties, to investigate and prosecute the matter if a grand jury hands up an indictment.<br /><br />She declined to comment on the case, and said she would present some evidence to a grand jury on July 19.<br /><br />Noel Peña, director of the Kleberg County Supervision and Direction Department, said his office has provided statements to investigators but declined to elaborate. He said he was surprised to hear that the investigation is still ongoing.<br /><br />"I'm totally surprised that something developed," Peña said.<br /><br />The 2005 arrest also caused problems for Gonzalez. At the time of her arrest, she had served on a grand jury for four months. Authorities discovered she had a theft conviction, making her ineligible for grand jury service. She was charged with perjury because she hadn't disclosed the conviction. Prosecutors had to re-present about 100 cases to the grand jury, Valdez said. She now is undergoing a pretrial diversion program that could lead to dismissal of charges.<br /><br />Attempts to reach Gonzalez on Thursday were unsuccessful.<br /><br />It is unclear why the case has taken so long to investigate. Valdez believes Kingsville police referred the matter to a federal agency.<br /><br />Peña said he was unaware of any federal investigation.<br /><br />Kingsville Police Chief Ricardo Torres declined comment.<br /><br />Isassi suggested politics might lay behind the investigation.<br /><br />"You're talking about something that happened over two years ago," Isassi said.<br /><br />Isassi had just returned from visiting a prominent Republican -- he won't say who -- in hopes that the person would intercede with Perry to secure appointment to the district attorney's office.<br /><br />Kleberg County Commissioner Romeo Lomas concurs that politics could play a role in the timing of the investigation.<br /><br />"I think some might be political," Lomas said, "because he's given notice to everyone in the county that he is going to run for that DA."<br /><br />Contact Dan Kelley at 886-4316 or kelleyd@caller.com<br /><br />View latest stories with comments »<br />Post Your Comments<br /><br />Posted by sgran77482 on July 13, 2007 at 8:46 a.m. (Suggest removal)<br /><br />Valdez trying someone for perjury???That is laughable!!!<br /><br />Posted by colorderosa on July 13, 2007 at 10:05 a.m. (Suggest removal)<br /><br />Politics, politics, politics, the dirty, lowdown and sometimes just plain hateful, even if true or false, it will bring anyone down and the people behind this, will be the winners and will surface when they run for this position. It's just too bad it had to happen in Kleberg County, AGAIN, and as usual the press and media will milk it for all they can.<br /><br />Posted by newsman on July 13, 2007 at 10:21 a.m. (Suggest removal)<br /><br />It is a shame but 95% of all politicians give the rest a bad name.<br /><br />Posted by dannoynted1 on July 13, 2007 at 10:55 p.m. (Suggest removal)<br /><br />Hello ~technically Ms. Anna is ineligible for pre trial diversion because she has been convicted of a "crime"!<br /><br />Watt did she steal? or watt "theft"?<br /><br />Did she steal an egg roll?<br /><br />Did she steal "Mary Cano's milk money?<br /><br />or maybe she indicted people because her nephew said so.<br /><br />Posted by dannoynted1 on July 13, 2007 at 11:08 p.m. (Suggest removal)<br /><br />i hope Alfred hires John Kearney that way they both can be "the prosecution" darlings they worked so hard in law school for.<br /><br />How does it feel?<br /><br />Perry progressive Vanosdannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-59432697749090193242007-07-02T04:50:00.000-07:002007-07-02T04:51:07.053-07:00<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://www.boazvet.com/Images/Dogs/Working/bullmastiff.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;width: 400px;" src="http://www.boazvet.com/Images/Dogs/Working/bullmastiff.jpg" border="0" alt="" /></a>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-33892749503119145472007-06-26T21:00:00.000-07:002007-06-26T21:02:53.674-07:00it would not have mattered if he had 2 affadavits or 200.......NUMBER 13-06-087-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />MICHAEL MARTINEZ, Appellant,<br /><br /><br />v.<br /><br /><br />THE STATE OF TEXAS, Appellee.<br /><br />On appeal from the 214th District Court of Nueces County, Texas.<br /><br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Justices Yañez, Rodriguez, and Garza<br /><br />Memorandum Opinion by Justice Yañez<br /><br />A jury convicted appellant, Michael Martinez, of criminal mischief and sentenced him to two years' imprisonment. Appellant complains the trial court erroneously denied his motion for change of venue. We affirm. (1)<br /><br />Discussion<br /><br />Appellant contends he was denied his right to a fair trial due to the trial court's error in denying his motion for change of venue. A trial court's denial of a motion for change of venue is reviewed for abuse of discretion. (2) A trial court's decision concerning venue will not be disturbed so long as it was within the realm of reasonableness given the facts presented to the trial court. (3)<br /><br />Article 31.03(a) of the Texas Code of Criminal Procedure provides<br /><br />(a) A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted. . . . (4)<br /><br /><br />At a pre-trial hearing, appellant presented his motion for change of venue to the court. Appellant's motion was supported by affidavits from two witnesses. However, the record does not reveal that the motion was supported by appellant's own affidavit as required by article 31.03. The omission of appellant's own affidavit renders the motion fatally defective. (5) When a motion is not in the proper form, a trial court does not abuse its discretion in denying it. (6) Thus, we conclude that appellant's motion for change of venue is defective, and the trial court did not err in denying it.<br /><br />Conclusion<br /><br />We overrule appellant's point of error and affirm the judgment of the trial court.<br /><br /><br /><br /><br /><br /><br /><br /><br />LINDA REYNA YAÑEZ, Justice<br /><br /><br /><br /><br /><br /><br /><br /><br />Do not publish. Tex. R. App. P. 47.2(b).<br /><br /><br />Memorandum opinion delivered and filed this<br /><br />the 14th day of June, 2007.dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-38875315045808287652007-06-26T20:53:00.000-07:002007-06-26T20:57:42.009-07:00How can a jury find appellant guilty if he "pled guilty"?Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-05-156-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />JONATHAN BRIDGES, Appellant,<br /><br /><br />v.<br /><br /><br />THE STATE OF TEXAS , Appellee.<br /><br /><br /><br />On appeal from the 105th District Court of Nueces County, Texas.<br /><br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Justices Yañez, Rodriguez, and Garza<br /><br />Memorandum Opinion by Justice Yañez<br /><br />Appellant, Johnathan Bridges, pled guilty to the offense of possession of cocaine. A jury found appellant guilty and sentenced him to fifteen months' imprisonment. Appellant, through five issues, contends that he received ineffective assistance of counsel. We affirm. (1)<br /><br />Standard of Review<br /><br />To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different but for the deficiency. (2) The first prong of the Strickland test requires that the appellant show that counsel's performance fell below an objective standard of reasonableness. (3) Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel's representation fell below professional standards. (4) The second prong requires that the defendant show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (5) Under the first prong, however, a reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (6) Any allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness. (7)<br /><br />Discussion<br /><br />Appellant asserts he received ineffective assistance of counsel as a result of counsel's failure to (1) file a motion to suppress evidence, (2) obtain rulings on appellant's pretrial motions, (3) obtain a ruling on counsel's motion to withdraw, and (4) set a hearing on appellant's motion for new trial. In his fifth issue, appellant asserts that his counsel's ineffectiveness is further evidenced by counsel's own admission to ineffective assistance of counsel.<br /><br />We begin by addressing appellant's fifth issue, wherein appellant complains that his counsel was ineffective by his own alleged admission to that effect in a motion for new trial. In the motion, appellant's counsel stated: "The Defendant's basis for a new trial is that he was provided with ineffective assistance of counsel. Defense Counsel files this motion on his clients [sic] behalf in order to protect the Defendant's appellate rights and asks that New Counsel be appointed to represent Mr. Bridges on appeal." The State contends that appellant's counsel "filed the motion alleging ineffective assistance as a ground in order to preserve his client's rights, he made no general or specific admissions that he was, in fact, ineffective in his representation." We agree. Because the motion does not constitute an admission and has no significance to the present allegations of ineffective assistance of counsel, appellant's fifth issue is overruled.<br /><br />In issues three and four, appellant asserts that his counsel was ineffective in his post-judgment conduct. Appellant contends that this ineffectiveness delayed the appointment of new counsel, and that this delay left appellant's newly appointed counsel with little time to prepare for a hearing on appellant's motion for new trial.<br /><br />With regard to post-judgment conduct, this Court has held that when the record does not show that trial counsel withdrew or was replaced by new counsel after sentencing, there is a rebuttable presumption that trial counsel continued to effectively represent the accused during the time for filing a motion for new trial. (8) The facts presented to us do not rebut this presumption. There is no evidence to show that counsel had abandoned appellant, or that appellant was not counseled by his attorney regarding the merits of a motion for new trial. Furthermore, appellant admits in his brief that he was given a hearing on his motion for new trial, but that "since Appellant could not be brought back in time from the State Jail Facility the hearing was held and said motion died by operation of law." We thus find that appellant has not presented this Court with any evidence to show that his counsel was ineffective, nor has appellant shown how any alleged ineffectiveness could have conceivably harmed him since appellant missed his hearing through no fault of his counsel. In light of appellant's inability to satisfy both prongs of the Strickland test, issues three and four are overruled.<br /><br />In issues one and two--failure to file a motion to suppress and obtain rulings on pretrial motions--appellant complains of matters that occurred before his plea of guilty. A defendant who knowingly and voluntarily pleads guilty without a plea bargain agreement waives all nonjurisdictional defects that occurred before the entry of the plea. (9) Ineffective assistance of counsel is a nonjurisdictional defect. (10) An attack upon a guilty plea based on a claim of ineffective assistance of counsel will succeed only if appellant shows that his attorney's alleged deficiencies caused his plea to be unknowing and involuntary. (11)<br /><br />We first note that to prevail on a claim of ineffective assistance based on counsel's failure to file a motion to suppress, appellant has to prove that the trial court would have granted the motion. (12) Appellant has presented no evidence to satisfy this burden. Second, the failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. (13) Appellant has not rebutted this possibility with regard to his counsel's decision not to file a motion to suppress. Lastly, appellant makes no contention that any of his trial counsel's deficiencies rendered his plea unknowing or involuntary. There is no evidence that appellant would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. We find that the judgment of guilt was rendered independent of, and is not supported by, the alleged ineffective assistance of counsel claimed by appellant. Appellant has thus failed to satisfy both prongs of the Strickland test; accordingly, issues one and two are overruled.<br /><br />Conclusion<br /><br />We affirm the trial court's judgment.<br /><br /><br /><br /><br />LINDA REYNA YAÑEZ,<br /><br />Justice<br /><br /><br /><br /><br /><br /><br />Do not publish. Tex. R. App. P. 47.2(b).<br /><br /><br />Memorandum opinion delivered and filed<br /><br />this the 14th day of June, 2007.<br /><br />1. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.<br /><br />2. Strickland v. Washington, 466 U.S. 668, 687 (1984).<br /><br />3. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).<br /><br />4. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).<br /><br />5. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.<br /><br />6. Strickland, 466 U.S. at 689.<br /><br />7. Thompson, 9 S.W.3d at 813.<br /><br />8. Jones v. State, 39 S.W.3d 691, 693 (Tex. App.-Corpus Christi 2001, no pet.).<br /><br />9. Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003).<br /><br />10. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994).<br /><br />11. Santos v. State, 877 S.W.2d 15, 17 (Tex. App.-Dallas 1994, no pet.).<br /><br />12. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).<br /><br />13. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.).dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-61673330439154021052007-06-08T05:26:00.000-07:002007-06-08T05:26:38.097-07:00Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?<a href="http://googleurself.blogspot.com/2007/06/when-carlos-valdez-confesses-error-does.html#links">Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?</a><br /><blockquote><br /><br /><span style="font-style: italic;">First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities.<br /><br /></span><span style="font-style: italic;" class="smalltext">"courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases."</span></blockquote><span style="font-style: italic;" class="smalltext"></span><br /><br />And if they are <span style="font-style: italic;" class="smalltext">"willing to overlook even obvious constitutional flaws </span><span style="font-style: italic;">and glaring illegalities</span><span style="font-style: italic;" class="smalltext"> when Prosecuting & reviewing death penalty cases."<br /><br /></span><span class="smalltext">WATT about all of the other cases?<br /><br />How many "overlooks" of </span><span style="font-style: italic;" class="smalltext">"constitutional flaws" </span><span class="smalltext">or "</span><span style="font-style: italic;">glaring illegalities" </span><span class="smalltext">have become tools of Cheating Prosecutors who have forgotten "</span><span class="smalltext">Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.<br /><br />How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?<br /></span><br /><br /><br /><a href="http://writ.news.findlaw.com/lazarus/"><img src="http://images.findlaw.com/writ/edward.lazarus.jpg" border="0" height="120" width="90" /></a><!-- BEGIN TITLE AND AUTHOR INSERTION --> ----<br /><span class="title"><b style="color: black; background-color: rgb(255, 255, 102);">CONFESSING</b> <b style="color: black; background-color: rgb(160, 255, 255);">ERROR</b></span><br /><a href="http://writ.news.findlaw.com/lazarus/" class="graybold">By EDWARD <b style="color: black; background-color: rgb(153, 255, 153);">LAZARUS</b><br /></a>---- <div class="smalltext-date" align="right">Friday, Jun. 16, 2000<br /></div> <span class="smalltext"><br /><p>Earlier this month, Vincent Saldano, one of the 468 inmates on Texas' death row, had his death sentence vacated. This development was duly reported in the press. But accounts of Saldano's good fortune uniformly failed to appreciate what makes his reprieve truly newsworthy and potentially a landmark. </p> <p><b>Saving Saldano: Texas Confesses <b style="color: black; background-color: rgb(160, 255, 255);">Error</b></b></p> <table align="right" border="0" cellpadding="0" cellspacing="0"><tbody><tr> <td colspan="2" height="14"><br /></td> </tr><tr> <td width="26"><br /></td> <td align="center" valign="top"><img src="http://writ.news.findlaw.com/images/illustrations/e-chair_cropped.jpg" alt="[Illustration]" height="206" width="171" /></td> </tr><tr> <td colspan="2" height="22"><br /></td> </tr></tbody></table> <p>Saldano was not freed from the prospect of execution by the actions of a court or even, as occasionally happens, by the clemency of a governor. His death sentence was erased because Texas, through its newly created office of the solicitor general, "confessed <b style="color: black; background-color: rgb(160, 255, 255);">error</b>" in his case -- that is, it admitted, despite defeating Saldano's initial appeals in court, that his death sentence was illegally obtained. Quite simply, this never happens, either in Texas or in the dozens of other states with active death penalty laws. It is thus worth pausing to consider the value and potential implications of Saldano's case as well as the notion of <b style="color: black; background-color: rgb(255, 255, 102);">confessing</b> <b style="color: black; background-color: rgb(160, 255, 255);">error</b>.</p> Saldano had received a death sentence in part due to profoundly troubling testimony by a state expert witness at the sentencing phase of his trial. The expert, a clinical psychologist named Walter Quijano, suggested that Saldano should be executed because, as an Hispanic, he posed a special risk of future dangerousness to society. To support this astonishing conclusion, the expert pointed out that Hispanics make up a disproportionately large amount of Texas' prison population. <p>It does not take a tenured professor of constitutional law to realize that linking racial identity with a propensity for violence was not only bizarre but also a violation of the equal protection clause. Indeed, that it should take a confession of <b style="color: black; background-color: rgb(160, 255, 255);">error</b> by the state to correct this problem highlights at least two problems in the current administration of the death penalty. First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities. The same flaw identified in Saldano's case infects at least seven other Texas capital cases. Second (and perhaps even more distressing), courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases. After all, before the state's confession of <b style="color: black; background-color: rgb(160, 255, 255);">error</b>, Saldano had <i>lost</i> all of his appeals.</p> <p>Under these circumstances, one might think that confessions of <b style="color: black; background-color: rgb(160, 255, 255);">error</b> would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses <b style="color: black; background-color: rgb(160, 255, 255);">error</b> in two or three criminal cases every year -- even though it is a safe bet that federal prosecutions, conducted by better trained lawyers with greater supervision, are less likely to contain obvious legal errors than their state counterparts. As the Supreme Court recognized when endorsing the practice in 1942, "the public trust reposed in the law enforcement officers of the Government requires that they be quick to confess <b style="color: black; background-color: rgb(160, 255, 255);">error</b>, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess <b style="color: black; background-color: rgb(160, 255, 255);">error</b> in death penalty cases (even though courts overturn roughly two-thirds of all death sentences as legally infirm) -- and some states candidly admit that their policy is never to confess <b style="color: black; background-color: rgb(160, 255, 255);">error</b>.</p> <p><b>Mutual Distrust</b></p> <p>Why? One crucial and usually overlooked factor is the deep antagonism that has grown up over time between state death penalty prosecutors and the death penalty abolitionist lawyers who seek to foil them in every case. The abolitionists, prosecutors know all too well, never concede that their clients deserve the death penalty or that the death penalty was legally imposed -- no matter how flimsy their arguments in a given case. Rather, they use every procedural and substantive trick in the book to delay executions. </p> <p>There can be no denying that such abolitionist tactics have angered and frustrated state prosecutors. And one response to these understandable emotions has been for prosecutors to mirror the fight-to-the-bitter-end approach of their opponents. </p> <p>The problem with this reciprocation, however, is simply that the ethical duties of prosecutors and defense attorneys are vastly different. Defense attorneys are duty-bound to scratch and claw to win for their clients. Prosecutors, by contrast, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case. </p> <p> <script language="JavaScript" src="http://pagead2.googlesyndication.com/pagead/show_ads.js"></script><script language="JavaScript1.1" src="http://pagead2.googlesyndication.com/pagead/ads?client=ca-findlaw_js&dt=1181301393765&hl=en&adsafe=high&num_ads=5&output=js&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;correlator=1181301393755&channel=channel2&url=http%3A%2F%2Fwww.google.com%2Fsearch%3Fq%3Dconfessing%2Berror%2Blazarus%26ie%3Dutf-8%26oe%3Dutf-8%26aq%3Dt%26rls%3Dorg.mozilla%3Aen-US%3Aofficial%26client%3Dfirefox-a&kw_type=broad&kw=VOIP&flash=9&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;u_h=864&u_w=1152&u_ah=830&u_aw=1062&u_cd=32&u_tz=-300&u_his=2&u_java=true&u_nplug=21&u_nmime=76"></script><br /><a name="continue"></a> That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of <b style="color: black; background-color: rgb(160, 255, 255);">error</b> -- knowing when to fold them, as it is known -- establish credibility. They create trust in the system, a sense that someone is being careful and exercising sound judgment, that extends far beyond any single case. And that can make a world of difference for someone like me, who is not morally opposed to the death penalty but skeptical of how it is imposed.</p> <p><b>Death Penalty Politics</b></p> <p>In addition, the reluctance of state prosecutors to confess <b style="color: black; background-color: rgb(160, 255, 255);">error</b> is a clear reflection of how politics affects the death penalty. Up until now, anyway, undoing a death sentence was akin to political suicide for an elected district attorney or state attorney general, or for any state official with ambitions for re-election or higher office. And yet the willingness of Texas' new solicitor general to confess <b style="color: black; background-color: rgb(160, 255, 255);">error</b> in the Saldano case suggests a possible turning point. With the current groundswell of death penalty opposition based on the possibility of executing an innocent person, elected officials may now find some advantage in approaching capital cases (even those where innocence is not an issue) with a greater degree of care and honesty.</p> case will start a broad trend. But there is reason to believe that the tide is indeed turning. On June 9, Texas Attorney General John Cornyn announced the results of an investigation into other death penalty cases involving testimony by state expert Walter Quijano. Cornyn acknowledged that Dr. Quijano had provided testimony in six other death penalty cases similar to his improper testimony in the Saldano case. Cornyn's staff has advised defense lawyers for the six inmates now on death row that his office will not oppose efforts to overturn their sentences based on Quijano's testimony. In response, a pessimist might note that Texas is appealing a ruling in another capital case that the defendant received inadequate counsel -- when, indisputably, his lawyer slept through much of the trial. But doing the right thing has a contagious quality to it. Or at least so we can hope. </span> <p align="center"> <span style="font-weight: bold; color: rgb(0, 0, 0);font-family:Verdana,Arial,Helvetica,sans-serif;font-size:13;" ></span><a style="font-family: Verdana,Arial,Helvetica,sans-serif; font-size: 13px; font-weight: bold;" href="http://boards.lp.findlaw.com/cgi-bin/WebX.fcgi?13@102.ZxwuaGEdqrE%5E3@.ef272cd"><br /></a> </p> <!-- END COMMENTARY--><!-- BEGIN AUTHORS FOOTNOTE --> Edward <b style="color: black; background-color: rgb(153, 255, 153);">Lazarus</b>, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-3102144703827817152007-05-22T00:18:00.000-07:002007-05-22T00:21:03.837-07:00Dear Officers of the Court, submitted for further investigation<strong><br /></strong> <hr style="color: rgb(153, 153, 153);" size="1"> <!-- / icon and title --> <!-- message --> <div id="post_message_353">In Re: State v Villa<br /><br />Do a little research on Del Mar College's in house counsel, Sean Meredeth, DMC Auditorium, Ballet Nacional, little girls, Joe Alaniz, and the relationship with our DA<br /><br />Why is this evidence not included in the current prosecution of Villa?<br /><br />Why not drag the whole bunch down to the Courthouse?<br /><br />Friends of the Prosecution or not, enough of the selective prosecutions. Plaisted, Applebee, and the one's who covered it up at Parkdale Baptist & St Joseph's here in the Jurisdiction of the Nueces County / 105th District Attorney. Zealously<br /><br />Possible Brady Material?<br /><br />Does this material not merit a Grand Jury Investigation?<br /><br /><a href="http://delmarhousekeeping.blogspot.com/2006/06/here-is-some-more-of-crap-going-on-at.html" target="_blank">Pervert in Auditorium</a><br /><br /><br /><br /> <a href="http://delmarhousekeeping.blogspot.com/2006/08/is-this-in-retaliation-for-scrutiny-of.html" target="_blank">Is this in retaliation for the scrutiny of late? Why now?</a><br /> __________________<br />To encourage full participation, promote mutual understanding and cultivate shared responsibility throughout our community. To support everyone to do their best thinking and express it, To enable community members to search for inclusive solutions and build sustainable agreements<br /><br /><br />This letter refers to an incident that took place in Richardson Auditorium after I was placed on administrative leave under the guise of false complaints which were never investigated. As I understand it the person identified in this letter is the individual who was made the acting auditorium manager. The sexual harrasment complaints made against this individual were never investigated or taken seriously. Nor was any action taken against this individual. I want to make it clear that I am not the individual in question and that in the almost twelve years I worked in the auditorium there were never any sexual harrasment claims made against me. In fact the only false complaints that were made against me can be traced back to my desire to enforce and maintain a safe and healthy environment in the Auditorium in spite of an administration and Regents who were constantly ignoring the problems and placing students health and safety in danger. Not only in Richardson Auditorium but just to name a few in the Business Building and Music Building. So when DMC boosters write in and talk about the students and how the administration and regents are doing all this corrupt stuff in the name of the students. I say Bullsh/t! Administrators run the DMC like their own private little Kingdom. It's administrators and faculty first and students second. I was there I witnessed it. Judge Westergren is on the payroll now and one thing I learned at Del Mar College is your either with them or against them. Either you ignore the corruption or you are enveloped by it or you fight it. I fought it and lost. I was just one guy against a lot of very powerful determined people. I have no regrets. I hear the same old party line about the students coming from Judge Westergren. Dont listen to what they say, watch what they do. By the way most people do not know that the Richardson Auditorium was operated until it was shut down for the "upgrade" without a Certificate of Occupancy. Try doing that with a private buisness unless your connected and see how far you get when the Buildings and Fire depts find out.<br /> <a href="http://delmarhousekeeping.blogspot.com/2006/06/here-is-some-more-of-crap-going-on-at.html#115051484225520198" target="_blank">8:27 PM</a><br /><br /><br />--<br />Kenedeno & Associates</div> <!-- / message --> <!-- sig --> <div> __________________<br />To encourage full participation, promote mutual understanding and cultivate shared responsibility throughout our community. To support everyone to do their best thinking and express it, To enable community members to search for inclusive solutions and build sustainable agreements </div>Jaime Kenedeñohttp://www.blogger.com/profile/12787459880135027366noreply@blogger.com0tag:blogger.com,1999:blog-21793799.post-32174600178877405252007-04-29T03:40:00.000-07:002007-04-29T03:42:12.193-07:00Man in jail over 6 months without formal chargesMan in jail over 6 months without formal charges<br /><br />By Gloria Bigger-Cantu - A man who has been in the Kleberg County jail for six months without formal charges or an indictment returned back to Kleberg County Jail Monday after his bond reduction hearing. Meanwhile a county official wants everyone involved in this situation to be held accountable for keeping a man in jail for six months without being considered for an indictment.<br />Precinct 4 County Commissioner Romeo L. Lomas voiced concern the man is being housed and fed at the taxpayers’ expense.<br />He said someone dropped the ball because of missing paperwork, and the situation itself may be a violating the law.<br />The case involves Israel Morales, 35, who appeared before County Court at Law Judge Martin Chiuminatto Monday afternoon for a writ of habeas corpus hearing with his court appointed attorney Carlos Morin at his side.<br />Morales was arrested by the Kingsville Specialized Crimes & Narcotics Task Force with three other people in the parking lot of a convenience store on King St. near Highway 77 in the early morning of Oct. 3, 2006.<br />Morales was taken to the Kleberg County Law Enforcement Center just a block away.<br />Morales was magistrated by Precinct 1 interim Justice of the Peace Ron Lewis.<br />Law enforcement officials said Morales was being held on what is called an affidavit of complaint alleging possession of marijuana and engaging in organized criminal activity.<br />Lewis set a bond of $25,000 for the and a $40,000 bond for engaging in criminal activity. The three other people posted the bond and were released.<br />Jaime R. Garza, commander of the TASK force, said Tuesday the paperwork had been completed on Morales but the file had been misplaced and was lost. Garza said he had not filed the case with the District Attorney Ida Trevino.<br />“We have taken measures that this type of situation would not occur again,” Garza said.<br />At the hearing, Morin reported his client had been in jail over 90 days and was entitled to an affordable bond and he did not know what happened to the file. District Attorney Aida Trevino said the state would accept the bond reduction.<br />“This man has been in jail since Oct. 3, 2006?” Chiuminatto questioned the district attorney. Trevino replied she had not pulled the history of the defendant.<br />Morin then asked the judge for a personal recognizance bond. Morin explained Morales worked as an auto mechanic in Houston where he lived. Morales told the court he worked to support his family and mother.<br />“I have my obligation to work and I am a victim of this case and want to resolve this issue and have been asking questions why this has taken so long,” Morales said.<br />“Where do you live and if you were bonded out today would you get a job?” Trevino asked Morales. Morales replied that he lived in Houston and would return back there and work at his brother’s shop.<br />Trevino asked the inmate about his immigration status and he replied he had been a legal residence since 1988.<br />Chiuminatto agreed to lower the POM bond from $40,000 to $5,000 and engaging in organized criminal activity from $40,000 to $5,000. Morales was returned back to jail because he could not post bond and an INS issue that was not clarified in court.<br />Morin said he had been court appointed attorney on Dec. 21 and pointed to that date on a letter. He filed for application for a writ of habeas corpus on Jan. 12. Chiuminatto said that when Morales was arrested on Oct. 3 he stated “he would be his own lawyer.” Later that month on Oct. 25 Morales requested legal representation. Chiuminatto appointed an attorney for Morales on Oct. 31. He explained that court appointed attorneys are contacted in three ways: in his office, faxed papers or through letters. There is a pool of l7 attorneys who can accept court appointments. Many of them live in other counties. District Court 105 Judge Manuel Banales chooses the attorneys.<br />Lomas emphasized people like Morales and everyone else have rights because we live in this great country of America. Lomas questioned the time span when Morales was appointed an attorney.<br />The county commissioner brought documentation from Senate Bill 7 under the Texas Fair Defense Act that states the law “requires a court or the court’s designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county…to appoint counsel immediately following the expiration of three working days after the date on the court or the courts’ designee receives the defendants request for appointment of counsel.”<br />Lomas became involved in this case because a mother of an inmate contacted him last week to inform him that a man was sitting in jail that had not been charged with any crime.<br />“Are we going to hold this man forever? Lomas stated. He said this was not the first time an incident like this had occurred and this type of situation needs to stop. He said other people should have taken notice of the man’s time in jail because they receive daily jail logs. Jail logs are sent to the offices of the District Attorney, County Attorney, County Clerk, and District Court 105 every day. He said pre-trial officers also visit with prisoners and could have related information to the courts.<br />“Once they land in jail a legal procedure needs to be followed if not we are violating the prisoners’ rights and then we could end up with a lawsuit,” Lomas said.<br />“If everybody in the legal system had been working together we would not have this problem,” Lomas said, “why are we having a prisoner here, feeding him and housing him without any charges filed. Kleberg County pays $57,000 to other counties to house prisoners, according to him.<br />“We are not following the correct procedure on this case and we need to do what is right because every prisoner is innocent until proven guilty.” Lomas said.<br />He added there was no excuse for this situation.dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0