Wednesday, October 10, 2007
Complaint to be filed against Judge Sharon Keller with Commission on Judicial Conduct: With Michael Richard's death, did she go too far?
All I can say is it's about time. A reader emails to report:
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.
Jim Harrington, director of the Texas Civil Rights Project and Scott Cobb, of Texas Moratorium Network, will be present, along with others.
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.
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:
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.
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.
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:
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.
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.
"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."
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.
UPDATE: The full text of the complaint is now available here.
Posted by Gritsforbreakfast at 12:46 PM
Labels: CCA, Death penalty, Judiciary
7 comments:
Anonymous said...
The Houston Chronicle has another quote from Judge Cheryl Johnson in their story covering today's filing.
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.
"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."
Johnson said it is not a question of whether Richard is guilty but did he have the right to appeal."
End of Chronicle excerpt.
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."
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.
10/10/2007 03:34:00 PM
Anonymous said...
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?
10/10/2007 03:54:00 PM
Anonymous said...
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.
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.
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.
So waiting until 3 pm the day your client is going to die doesn't seem like the greatest use of time management.
10/10/2007 04:09:00 PM
PersianCowboy said...
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.
10/11/2007 01:59:00 AM
Michael said...
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.
By the way, can we dispense with referring to "The Honorable Sharon Keller" now?
10/11/2007 10:26:00 AM
PJ or said...
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!
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.
JUDICIAL IMMUNITY TO BAD BEHAVIOR:
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.
a. TITLE 28 > PART I > CHAPTER 21 > § 454 Practice of law by justices and judges
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.
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.
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.''
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.
TEXAS CONSTITUTION ON IMPEACHMENT:
Article 15 - IMPEACHMENT
Section 4 - JUDGMENT; INDICTMENT, TRIAL, AND PUNISHMENT
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.
§ 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:
(1) a state officer;
(2) a head of a state department or state institution; or
(3) a member, regent, trustee, or commissioner having control or management of a state institution or enterprise.
§ 665.052. CAUSES FOR REMOVAL. (a) An individual may be removed from office by address for:
(1) Willful neglect of duty;
(2) Incompetence;
(3) Habitual drunkenness;
(4) Oppression in office;
(5) Breach of trust; or
(6) any other reasonable cause that is not a sufficient ground for impeachment.
(b) In this section, "incompetence" means:
(1) Gross ignorance of official duties;
(2) Gross carelessness in the discharge of official duties; or
(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.
TEXAS CHAPTER 39. ABUSE OF OFFICE § 39.01. DEFINITIONS.
(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:
(A) imposes a duty on the public servant; or
(B) governs the conduct of the public servant.
(2) "Misuse" means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant;
(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
(D) a limited purpose for which the property is delivered or received.
TEXAS § 39.02. ABUSE OF OFFICIAL CAPACITY.
(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:
(1) violates a law relating to the public servant's office or employment; or
(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.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is:
(1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;
(2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ;
(3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500;
(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;
(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;
(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
(7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
(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.
ANSWER TO IMMUNITY
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!
10/11/2007 09:24:00 PM
Anonymous said...
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.
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.
10/11/2007 10:49:00 PM
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Sunday, October 14, 2007
Tuesday, September 11, 2007
Texas Monthly Web Press: "IN THE KNOW": Carlos Truan | Hugo Berlanga & The Primrose Path & Rangel Law School @ Texas A&I University.
The Original
Irma Lerma Rangel Legislation was for the establishment of a law school at Texas A & I.
Irma Lerma Rangel Legislation was for the establishment of a law school at Texas A & I.
Monday, September 03, 2007
Re(3): Abhor what is evil; hold fast to what is good.
Posted on June 23, 2007 at 04:11:40 AM by 4 ringo......you know watt.......
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
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.
Posted on June 23, 2007 at 04:11:40 AM by 4 ringo......you know watt.......
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
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.
Tuesday, August 07, 2007
Anne Armstrong was a Halliburton director when that corporation hired Cheney. She is Kay Bailey Hutchison�s best friend, having helped ...............
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CALLER.COM
ORG SOURCE: Vice President accidentally shoots lawyer
Sun Feb 12, 2006 23:53
Vice President accidentally shoots lawyer
http://www.caller.com/
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.
BREAKING NEWS Cheney's shotgun pellets sprayed fellow hunter at Armstrong Ranch
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
FULL STORY »
http://www.caller.com/ccct/local_news/article/0,1641,CCCT_811_4461615,00.html
MORE ON ARMSTRONG RANCH
Ranch leader Tobin Armstrong
http://www.caller.com/ccct/local_news/article/0,1641,CCCT_811_4143236,00.html
USGS GNIS (GNIS)
Armstrong Ranch Airport. Feature Type:, airport. Elevation (feet):, 27. Description:, Facility is located 2 mi NE from Armstrong. State:, Texas ...
HTTP://geonames.usgs.gov/pls/gnis/web_query.GetDetail?tab=Y&id=1386171
Location of Armstrong Ranch Airport, Texas
This information is provided by Texans for Public Justice.
Go to our searchable Ranger and Pioneer database
Name Mr. & Mrs. Tobin Armstrong
Appointed To
Industry Agriculture
Employer Armstrong Ranch
Occupation Owner
Address Armstrong, TX 78338
Status for 2000 Pledged to raise $100,000
Status for 2004 not listed
Profile
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.
http://www.whitehouseforsale.org/ContributorsAndPaybacks/pioneer_profile.cfm?pioneer_ID=509
South Texas Natives - Advisory Group & Technical Committee
Advisory Group. Co-chairs:. Katharine Armstrong, Armstrong Ranch; Will Harte, Cerrito Prieto Ranch. Members:. James F. Anderson, Haas-Anderson Construction, ...
HTTP://www.southtexasnatives.org/advisors/
Daughter Katharine Armstrong--formerly Katherine Idsal--and ex-son-in-law Warren Idsal
http://www.whitehouseforsale.org/ContributorsAndPaybacks/pioneer_profile.cfm?pioneer_ID=622
This information is provided by Texans for Public Justice.
Go to our searchable Ranger and Pioneer database
Name Warren Bruce Idsal
Appointed To
Industry Insurance
Employer UICI Co's
Occupation Ex-Vice President
Address Dallas, TX 75205
Status for 2000 Pledged to raise $100,000
Status for 2004 not listed
Profile
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.
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CALLER.COM
ORG SOURCE: Vice President accidentally shoots lawyer
Sun Feb 12, 2006 23:53
Vice President accidentally shoots lawyer
http://www.caller.com/
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.
BREAKING NEWS Cheney's shotgun pellets sprayed fellow hunter at Armstrong Ranch
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
FULL STORY »
http://www.caller.com/ccct/local_news/article/0,1641,CCCT_811_4461615,00.html
MORE ON ARMSTRONG RANCH
Ranch leader Tobin Armstrong
http://www.caller.com/ccct/local_news/article/0,1641,CCCT_811_4143236,00.html
USGS GNIS (GNIS)
Armstrong Ranch Airport. Feature Type:, airport. Elevation (feet):, 27. Description:, Facility is located 2 mi NE from Armstrong. State:, Texas ...
HTTP://geonames.usgs.gov/pls/gnis/web_query.GetDetail?tab=Y&id=1386171
Location of Armstrong Ranch Airport, Texas
This information is provided by Texans for Public Justice.
Go to our searchable Ranger and Pioneer database
Name Mr. & Mrs. Tobin Armstrong
Appointed To
Industry Agriculture
Employer Armstrong Ranch
Occupation Owner
Address Armstrong, TX 78338
Status for 2000 Pledged to raise $100,000
Status for 2004 not listed
Profile
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.
http://www.whitehouseforsale.org/ContributorsAndPaybacks/pioneer_profile.cfm?pioneer_ID=509
South Texas Natives - Advisory Group & Technical Committee
Advisory Group. Co-chairs:. Katharine Armstrong, Armstrong Ranch; Will Harte, Cerrito Prieto Ranch. Members:. James F. Anderson, Haas-Anderson Construction, ...
HTTP://www.southtexasnatives.org/advisors/
Daughter Katharine Armstrong--formerly Katherine Idsal--and ex-son-in-law Warren Idsal
http://www.whitehouseforsale.org/ContributorsAndPaybacks/pioneer_profile.cfm?pioneer_ID=622
This information is provided by Texans for Public Justice.
Go to our searchable Ranger and Pioneer database
Name Warren Bruce Idsal
Appointed To
Industry Insurance
Employer UICI Co's
Occupation Ex-Vice President
Address Dallas, TX 75205
Status for 2000 Pledged to raise $100,000
Status for 2004 not listed
Profile
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.
---------------------------
http://www.tpj.org/index.jsp
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Hector P Garcia Institute of Education, Integrity, Culture and Public Policy: Corpus Christi Watchdog Authority: Fwd: [Bay of Pigs] Judge Westergren h
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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 ...
Well dont just stand there!!
Get To Work!!!
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 ...
Friday, July 27, 2007
We note that neither party explains who Mr. Gonzalez might be.....hmmmmmm
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NUMBER 13-06-035-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
ROEL OLIVARES, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
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.
I. Background
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.
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.
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.
The following reflects the complete transcription of the September 29th hearing:
The Court: Mr. de la Fuente, on your expunction, I'm just going to sign the order.
Defense Counsel: Very Well.
The Court: On 2005-07-3649, Olivares.
Defense Counsel: Yes, Your Honor.
The Court: All right.
Defense Counsel: Thank you, Judge. Let me make sure there is an order there, if not I'll get one to the Court.
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.
Defense Counsel: Very well.
The Court: There is no opposition.
Defense Counsel: We ask the court to sign the order then, Judge.
The Court: I think you are going to have to get me one.
Defense Counsel: I will. (1)
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.
II. No Evidence
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.
A. Standard of Review
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).
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.)
B. Applicable Law
"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)).
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:
(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:
(i) the limitations period expired before the date on which the petition for expunction was filed under Article 55.02; or
(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;
(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
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).
C. Analysis
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.
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.
In Cryan, the district attorney appeared at the expunction hearing and argued as follows:
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.
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.
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.
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.
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.
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.
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.
III. Conclusion
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).
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 26th day of July, 2007.
1. 1
We note that the trial court's docket sheet entry for September 29th shows that the October 20th expunction hearing was canceled.
2. 2
We note that neither party explains who Mr. Gonzalez might be.
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.
NUMBER 13-06-035-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
ROEL OLIVARES, Appellee.
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
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.
I. Background
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.
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.
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.
The following reflects the complete transcription of the September 29th hearing:
The Court: Mr. de la Fuente, on your expunction, I'm just going to sign the order.
Defense Counsel: Very Well.
The Court: On 2005-07-3649, Olivares.
Defense Counsel: Yes, Your Honor.
The Court: All right.
Defense Counsel: Thank you, Judge. Let me make sure there is an order there, if not I'll get one to the Court.
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.
Defense Counsel: Very well.
The Court: There is no opposition.
Defense Counsel: We ask the court to sign the order then, Judge.
The Court: I think you are going to have to get me one.
Defense Counsel: I will. (1)
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.
II. No Evidence
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.
A. Standard of Review
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).
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.)
B. Applicable Law
"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)).
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:
(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:
(i) the limitations period expired before the date on which the petition for expunction was filed under Article 55.02; or
(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;
(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
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).
C. Analysis
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.
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.
In Cryan, the district attorney appeared at the expunction hearing and argued as follows:
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.
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.
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.
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.
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.
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.
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.
III. Conclusion
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).
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 26th day of July, 2007.
1. 1
We note that the trial court's docket sheet entry for September 29th shows that the October 20th expunction hearing was canceled.
2. 2
We note that neither party explains who Mr. Gonzalez might be.
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.
Friday, July 13, 2007
Yeah for Carlos Valdez.........it takesprecious time to do things right
Local
Kleberg official faces inquiry
Prosecutor may have intervened on behalf of aunt facing felony
By Dan Kelley (Contact)
Originally published 12:00 a.m., July 13, 2007
Updated 04:18 a.m., July 13, 2007
Isassi suggested politics might be behind the investigation.
Isassi suggested politics might be behind the investigation.
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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.
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.
Isassi hasn't been formally notified of an investigation.
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.
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.
"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.
Isassi said he was not able to recall any conversation with that department regarding the matter.
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.
Isassi is seeking that appointment.
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.
She declined to comment on the case, and said she would present some evidence to a grand jury on July 19.
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.
"I'm totally surprised that something developed," Peña said.
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.
Attempts to reach Gonzalez on Thursday were unsuccessful.
It is unclear why the case has taken so long to investigate. Valdez believes Kingsville police referred the matter to a federal agency.
Peña said he was unaware of any federal investigation.
Kingsville Police Chief Ricardo Torres declined comment.
Isassi suggested politics might lay behind the investigation.
"You're talking about something that happened over two years ago," Isassi said.
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.
Kleberg County Commissioner Romeo Lomas concurs that politics could play a role in the timing of the investigation.
"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."
Contact Dan Kelley at 886-4316 or kelleyd@caller.com
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Post Your Comments
Posted by sgran77482 on July 13, 2007 at 8:46 a.m. (Suggest removal)
Valdez trying someone for perjury???That is laughable!!!
Posted by colorderosa on July 13, 2007 at 10:05 a.m. (Suggest removal)
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.
Posted by newsman on July 13, 2007 at 10:21 a.m. (Suggest removal)
It is a shame but 95% of all politicians give the rest a bad name.
Posted by dannoynted1 on July 13, 2007 at 10:55 p.m. (Suggest removal)
Hello ~technically Ms. Anna is ineligible for pre trial diversion because she has been convicted of a "crime"!
Watt did she steal? or watt "theft"?
Did she steal an egg roll?
Did she steal "Mary Cano's milk money?
or maybe she indicted people because her nephew said so.
Posted by dannoynted1 on July 13, 2007 at 11:08 p.m. (Suggest removal)
i hope Alfred hires John Kearney that way they both can be "the prosecution" darlings they worked so hard in law school for.
How does it feel?
Perry progressive Vanos
Monday, July 02, 2007
Tuesday, June 26, 2007
it would not have mattered if he had 2 affadavits or 200.......
NUMBER 13-06-087-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
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)
Discussion
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)
Article 31.03(a) of the Texas Code of Criminal Procedure provides
(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)
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.
Conclusion
We overrule appellant's point of error and affirm the judgment of the trial court.
LINDA REYNA YAÑEZ, Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this
the 14th day of June, 2007.
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
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)
Discussion
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)
Article 31.03(a) of the Texas Code of Criminal Procedure provides
(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)
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.
Conclusion
We overrule appellant's point of error and affirm the judgment of the trial court.
LINDA REYNA YAÑEZ, Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this
the 14th day of June, 2007.
How can a jury find appellant guilty if he "pled guilty"?
Send this document to a colleague Close This Window
NUMBER 13-05-156-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONATHAN BRIDGES, Appellant,
v.
THE STATE OF TEXAS , Appellee.
On appeal from the 105th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
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)
Standard of Review
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)
Discussion
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.
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.
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.
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.
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)
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.
Conclusion
We affirm the trial court's judgment.
LINDA REYNA YAÑEZ,
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed
this the 14th day of June, 2007.
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.
2. Strickland v. Washington, 466 U.S. 668, 687 (1984).
3. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
4. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
5. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
6. Strickland, 466 U.S. at 689.
7. Thompson, 9 S.W.3d at 813.
8. Jones v. State, 39 S.W.3d 691, 693 (Tex. App.-Corpus Christi 2001, no pet.).
9. Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003).
10. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994).
11. Santos v. State, 877 S.W.2d 15, 17 (Tex. App.-Dallas 1994, no pet.).
12. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).
13. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.).
NUMBER 13-05-156-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONATHAN BRIDGES, Appellant,
v.
THE STATE OF TEXAS , Appellee.
On appeal from the 105th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
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)
Standard of Review
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)
Discussion
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.
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.
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.
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.
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)
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.
Conclusion
We affirm the trial court's judgment.
LINDA REYNA YAÑEZ,
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed
this the 14th day of June, 2007.
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.
2. Strickland v. Washington, 466 U.S. 668, 687 (1984).
3. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
4. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
5. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
6. Strickland, 466 U.S. at 689.
7. Thompson, 9 S.W.3d at 813.
8. Jones v. State, 39 S.W.3d 691, 693 (Tex. App.-Corpus Christi 2001, no pet.).
9. Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003).
10. Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994).
11. Santos v. State, 877 S.W.2d 15, 17 (Tex. App.-Dallas 1994, no pet.).
12. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam).
13. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.).
Friday, June 08, 2007
Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?
Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?
And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."
WATT about all of the other cases?
How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
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?
----
CONFESSING ERROR
By EDWARD LAZARUS
----
First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities.
"courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases."
And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."
WATT about all of the other cases?
How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
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?
----CONFESSING ERROR
By EDWARD LAZARUS
----
Friday, Jun. 16, 2000
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.
Saving Saldano: Texas Confesses Error
![[Illustration]](http://writ.news.findlaw.com/images/illustrations/e-chair_cropped.jpg) | |
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 error" 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 confessing error.
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.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 error 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 error, Saldano had lost all of his appeals.
Under these circumstances, one might think that confessions of error would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses error 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 error, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess error 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 error.
Mutual Distrust
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.
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.
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.
That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of error -- 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.
Death Penalty Politics
In addition, the reluctance of state prosecutors to confess error 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 error 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.
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. Edward Lazarus, 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.Tuesday, May 22, 2007
Dear Officers of the Court, submitted for further investigation
In Re: State v Villa
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
Why is this evidence not included in the current prosecution of Villa?
Why not drag the whole bunch down to the Courthouse?
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
Possible Brady Material?
Does this material not merit a Grand Jury Investigation?
Pervert in Auditorium
Is this in retaliation for the scrutiny of late? Why now?
__________________
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
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.
8:27 PM
--
Kenedeno & Associates
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
Why is this evidence not included in the current prosecution of Villa?
Why not drag the whole bunch down to the Courthouse?
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
Possible Brady Material?
Does this material not merit a Grand Jury Investigation?
Pervert in Auditorium
Is this in retaliation for the scrutiny of late? Why now?
__________________
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
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.
8:27 PM
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Kenedeno & Associates
__________________
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
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
Sunday, April 29, 2007
Man in jail over 6 months without formal charges
Man in jail over 6 months without formal charges
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.
Precinct 4 County Commissioner Romeo L. Lomas voiced concern the man is being housed and fed at the taxpayers’ expense.
He said someone dropped the ball because of missing paperwork, and the situation itself may be a violating the law.
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.
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.
Morales was taken to the Kleberg County Law Enforcement Center just a block away.
Morales was magistrated by Precinct 1 interim Justice of the Peace Ron Lewis.
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.
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.
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.
“We have taken measures that this type of situation would not occur again,” Garza said.
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.
“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.
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.
“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.
“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.
Trevino asked the inmate about his immigration status and he replied he had been a legal residence since 1988.
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.
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.
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.
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.”
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.
“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.
“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.
“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.
“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.
He added there was no excuse for this situation.
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.
Precinct 4 County Commissioner Romeo L. Lomas voiced concern the man is being housed and fed at the taxpayers’ expense.
He said someone dropped the ball because of missing paperwork, and the situation itself may be a violating the law.
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.
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.
Morales was taken to the Kleberg County Law Enforcement Center just a block away.
Morales was magistrated by Precinct 1 interim Justice of the Peace Ron Lewis.
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.
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.
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.
“We have taken measures that this type of situation would not occur again,” Garza said.
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.
“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.
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.
“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.
“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.
Trevino asked the inmate about his immigration status and he replied he had been a legal residence since 1988.
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.
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.
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.
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.”
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.
“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.
“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.
“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.
“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.
He added there was no excuse for this situation.
Friday, April 20, 2007
Thursday, April 05, 2007
Boss Hogg stuck in the Hazard County of Nueces De La Parra
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County: Tell us more on courthouse
Commissioners hear idea to turn building into a legal center
By Beth Wilson Caller-Times
April 5, 2007
The 1914 Nueces County Courthouse may be priceless to preservationists, but local developers are putting an $11 million price tag on restoring its legal legacy.
County commissioners didn't offer the courthouse to Judson Partners, a group with a plan to turn it into a law center, but indicated Wednesday they were interested in hearing more from the state and other developers.
In a commissioners workshop meeting, developer Dan Judson presented his plan to buy the building and find the private funds to renovate it and bring in a law center that eventually would become affiliated with a law school.
County Judge Loyd Neal said he'd be interested in any deal that made financial and historical sense for the building that was the site that handled the county's business through much of the previous century.
"We have a long way to go from workshop to reality," he said. "If you make a good offer, we might sell you a courthouse, and I'm not sure I'd want a reversionary clause."
Commissioner Chuck Cazalas said any sale discussion would have to consider value of the land in addition to the building.
Neal said later that he has no estimate of the value of either the land or building and he's not sure the county would be able to sell the courthouse because a deed restriction was placed on the building when the county accepted grants from the Texas Historical Commission.
Judson said that if the county is willing to sell the building to his group, it is willing to put in about $200,000 for further studies to determine what would be the best use for the building that's been vacant since 1977.
Judson said Wednesday a law center or school would keep the legal history of the building intact and two restored courtrooms could be used in learning. He has spoken to some law schools in Texas but said it is too early to say which ones. He has not received confirmation of interest in establishing a branch campus or center here.
He said he's also interested in using the building for residential and office space. While he doesn't have firm costs for such projects, he said renovation and the land could be between $11 million and $15 million and would be entirely privately funded.
"We are crystal clear that you don't want to use taxpayer money," he said.
Commissioner Peggy Banales, whose precinct includes the courthouse near the Harbor Bridge, said she wants to restore the courthouse to "its grand ole' lady style," but confirmed the county didn't want to put any more taxpayer money into its restoration or renovation.
A $2.85 million renovation of the building's south wing exterior was completed last year.
Community donations and county funds provided the local match of $950,000, but in 2005, commissioners declined to put up $1.76 million to match state grant funds to continue renovation. Cost for complete restoration has been estimated as high as $30 million.
Any contract to sell the building likely will include a clause returning it to the county if it isn't completed. Neal said Wednesday he's not sure whether the court would ask for such a clause.
The building can't be demolished until 2025 because a deed restriction was placed on the building when the county accepted renovation grants from the Texas Historical Commission.
Judson said he expects the county, if the county proceeds, to go through a public process to approve the sale and a renovation project, including asking if other developers are interested in any courthouse reuse plans.
Commissioners took no action to approve Judson's plan but authorized county staff to confer with the Texas Historical Commission, which must approve any changes in the building as a condition of accepting state grant funds.
"We will certainly consider this further under the advice of our county attorney and others," Neal said.
The county must notify the state of any changes, including transfer of the building, said Stan Graves, director of the commission's Historic Courthouse Preservation Program. He said the commission prefers historic courthouses remain county-owned, used for government and open to the public.
"The specific idea of using the facility as a law school has a certain appeal in that it would allow the courtrooms, judge's chambers and other major spaces to remain in the use originally intended," he said in a written statement. "Such a proposal would be preferable to something that would change the original structure and intent of the building."
Contact Beth Wilson at 886-3748 or HYPERLINK mailto:wilsonb@caller.com wilsonb@caller.com
Tuesday, April 03, 2007
plans to establish a law school in Corpus Christi,
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New ideas for the old Nueces Courthouse
One developer's idea: Make it a law school
By Beth Wilson Caller-Times
April 3, 2007
The site of many historic courtroom battles could become a training ground for lawyers and judges of the future under a local developer's plans to turn the old Nueces County Courthouse, which was completed in 1914, into a law school.
Dan Judson, of Judson Partners, said the idea is just conceptual, and future studies would determine the best use for the building that has been vacant since 1977.
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"We know the county doesn't have the funds or any real desire to do this," he said. "We're looking at it as a purely private venture. We buy the building and we fix it up."
Judson has not formalized plans to establish a law school in Corpus Christi, nor has he gotten a commitment from an existing school to open a campus here.
Commissioners will consider Judson's plan during a presentation Wednesday.
Commissioner Peggy Banales put the item on the commissioners' agenda.
Judson, owner of Ocean Drive Marina, has presented reuse plans to the city for Memorial Coliseum, including such ideas as an indoor market and restaurant and placing the Columbus ships under its green roof.
The city recently announced its plans with another developer to bring an amusement park to the bayfront site had fallen through.
If the county is interested in selling the building, Judson said his group and investors would determine what should be in the building and bring in the money to make that happen. He estimates renovations could cost between $9 million and $11 million.
The old courthouse, near the Harbor Bridge, received a $2.85 million exterior renovation of its south wing last year.
"The courthouse is a very beloved building by a lot of people, but in so being beloved, there are still issues we need to be aware of," she said. "And we don't want to use taxpayer money, if we can help it, to do what we need to do."
Banales said she'd like to see the courthouse keep its historical credibility and be useable. That could then stimulate economic growth for the downtown area, which is in her precinct, she said.
County Judge Loyd Neal said the county has been committed to spending money on the fairgrounds complex in Robstown and will have to consider other capital needs, like repairs to the jail and the occupied courthouse, as it goes into the next budget cycle.
"I've said all along I have no desire to put any more taxpayer dollars into the (1914) courthouse," he said.
The building can't be demolished until 2025 because of a deed restriction placed on the building when the county accepted grants from the Texas Historical Commission. The commission also prohibits any exterior changes, and would likely be involved in any reuse plans.
Commissioner Chuck Cazalas agreed that taxpayers shouldn't foot the bill for restoration, and said the county should find a private sector partner for the project.
"If it turns from an eyesore into an asset for the community, than I would be 100 percent behind it," he said.
Commissioners Oscar Ortiz and Betty Jean Longoria said they are open to ideas for the old building, and may consider putting in some county funds.
"Right now as it's sitting there, it's just deteriorating, so we need to at least be open to any suggestions," Ortiz said.
Community donations and county funds provided the local match of $950,000 for the $2.85 million renovation that was completed last year.
In 2005, commissioners declined to put up $1.76 million to match state grant funds to continue renovation. Cost for complete restoration has been estimated atas much as $30 million.
The latest plan called for turning the building into a science and technology museum, but funding for the idea never materialized.
Contact Beth Wilson at 886-3748 or HYPERLINK mailto:wilsonb@caller.com wilsonb@caller.com
Tuesday, December 05, 2006
prisoners for profit courtesy of the delays
OPPRESSION FOR PROFIT?
Panelists kick around the prison-industrial complex
by Victor A. Patton
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." —Article 13, U.S. Constitution
Nearly 1 million African Americans are incarcerated in prisons and jails in the United States, according to recent Justice Department statistics. Tukufu Kalonji considers that an emergency—although, he concedes, few others do.
"As you can see by the turnout here today, there are not a whole lot of people worried about us," said Kalonji, referring to the rows of empty chairs at an Aug. 9 forum at the Malcolm X library in Encanto. "Many people don't believe they can do anything about it. Other people don't know or just don't care."
The forum, titled "The Black Community and the Prison Industrial Complex: Critical Issues and Struggles for Strategies," questioned the growing number of African Americans locked up, as well as the ever-expanding corporate interest in seeking prison labor as an alternative workforce.
The panel of 10 African Americans from various professions agreed that what they call the "prison-industrial complex" emphasizes incarceration, then exploits inmates for profit—inmates who are paid a few cents per hour, without any meaningful effort toward rehabilitation. That a majority of those incarcerated are poor, African American and Latino leads some to believe the system strongly resembles chattel slavery.
"At the same time while these corporations say that they are investing in education, they are also heavily in the incarceration of [Blacks], Latinos, poor Whites and anyone else who falls victim to this trap," said panelist Jaja Malik Atenra of the Sirius Research Group.
While the panelists agreed on the dire need for organized confrontation of a worsening incarceration/exploitation prison system, their solutions were wide and varied, ranging from grassroots activism to more eccentric approaches. One participant suggested asking the United Nations to level charges against the U.S. for crimes against humanity. Another even suggested that African Americans own and operate their own prisons.
Other panelists, such as Minister Masada of the organization My Brothers Keeper, suggested action at the legislative level, amending California's three-strikes law to include language requiring a third-strike crime to be, at a minimum, a violent felony. "No one should be spending life in prison for stealing a beer," said Masada, who also advocated for a nationwide boycott of companies who benefit from prison labor. "America has more prisoners than any other country, and California even has more prisoners than some countries," said Masada. "We need to have a national organization for prisoners, and we need to build relationships with lawyers and young people in law school."
Many of the businesses that profit from prison construction and inmate labor were identified by name during the discussion, some names very familiar. According to Kalonji, the two main private prison industries are Correctional Corporations of America (CCA) and Wackenhut Corporation. "Fifty-one percent of [CCA's] founding monies [was from] Kentucky Fried Chicken," said Kalonji, who also fingered K-mart, Dell Computer, Starbuck's Coffee, Victoria's Secret, Microsoft and JC Penny as corporations who use inmate labor for products and industries.
While education, health and social programs all suffered deep cutbacks in this year's state budget, California's prison industry, said one panelist, continues to grow. "There have been no cuts to the prison system—they're spending more, while cutting health and education," said Dr. Richard Butcher of Caregivers Medical group, adding that fewer dollars for education today will surely mean more African Americans in prison in the future.
According to Department of Justice statistics, 2,033,331 people nationwide were incarcerated in federal and state prisons and county jails in 2002. Of those incarcerated, about 887,700 were African American (818,900 men, 68,800 women). In California, a total of 159,390 people are currently incarcerated. Of that number, Hispanics, Blacks and Whites each comprise about a third of the total prison population, according to the California Department of Corrections.
While some African American pundits have expressed concern about the disproportionately high numbers of incarcerated Blacks, with the exception of UC Santa Cruz professor Angela Davis, none have mounted any sizable opposition to the issues of systemic bias or corporate exploitation of inmate labor. Most conservatives—including African Americans—believe that increasing the number of prisons in the nation is necessary and that it's responsible for a decade-long decline of crime rates.
"[The high number of Blacks in prison] is generally interpreted as evidence that African American people are arrested out of proportion to their numbers in society, since they constitute only 13 percent of the population," wrote conservative John McWhorter, an African American UC Berkeley professor in his book Losing the Race: Self Sabotage in African American America. "However, the figures must be seen in light of the fact that as sad as it is, nationwide African Americans commit not 13 percent, but 42 percent of the violent crimes in the country. In other words, contrary to the idea that African Americans are arrested disproportionately, their proportion of the prison population neatly reflects the rate at which they commit crimes," writes McWhorter.
Angela Davis, however, sees prisons more as a modern-day plantation, where expanding corporate interests vie for control, playing on a society that ignores the actual socio-economic conditions responsible for why people commit crimes.
"Prisons thus perform a feat of magic. Or rather the people who continually vote in new prison bonds and tacitly assent to a proliferating network of prisons and jails have been tricked into believing in the magic of imprisonment," Davis wrote in a Colorlines Magazine article. "But prisons do not disappear problems, they disappear human beings. And the practice of disappearing vast numbers of people from poor, immigrant, and racially marginalized communities has literally become big business."
"There's a legacy going back to slavery," said panelist Atenra, who argued that large numbers of African Americans in prison can be traced back to being disenfranchised as an ethnic group, beginning with slavery and continuing today. He also pointed out that convict leasing agreements between private entrepreneurs and states first appeared with the abolition of legal slavery. Subsequently, Southern states passed the notorious "black codes," which placed severe restrictions on freed slaves and effectively guaranteed a steady flow of inmate labor to exploit.
"When you have dominated a group of people... controlled them psychologically and physically, and then all of a sudden you set them free, they're not in the mindset, or have the means, to fend for themselves, to do for themselves. This is what we're seeing from the end of slavery after the Civil War, all the way up to 1954 with Brown vs. the Board of Education…. There was institutional racism, policies that kept us in that place, [along with] poor education or no education," he added.
While most of the panelists viewed the incarceration problem through a socio-historical lens, others in the audience viewed the issue specifically as one of economics, the political pathos of poverty in America.
"I know race is a big deal, but it is about class…it's poor people that are in prison—people with no economic or political voice," said Modesta Brown of the California Coalition for Women Prisoners. "We need to identify [the prison-industrial complex] as the money maker that it is. Right now, they are building prisons before they even have the prisoners to fill them. If we can identify it as being a dysfunctional system, then we can do something about it."
Even though Kalonji said that he was somewhat disappointed with Saturday's relatively meager turnout of about 37 people, he aims to create a larger organization to address the prison-industrial complex, among other criminal justice-related issues. He offered one more possible solution:
"I don't believe that we can't make change. The established order operates as it does, in terms of unethical and inequitable treatment of us, because we allow it. We need to take responsibility and demand better treatment."
© 2003-2006 Southland Publishing, All Rights Reserved
Panelists kick around the prison-industrial complex
by Victor A. Patton
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." —Article 13, U.S. Constitution
Nearly 1 million African Americans are incarcerated in prisons and jails in the United States, according to recent Justice Department statistics. Tukufu Kalonji considers that an emergency—although, he concedes, few others do.
"As you can see by the turnout here today, there are not a whole lot of people worried about us," said Kalonji, referring to the rows of empty chairs at an Aug. 9 forum at the Malcolm X library in Encanto. "Many people don't believe they can do anything about it. Other people don't know or just don't care."
The forum, titled "The Black Community and the Prison Industrial Complex: Critical Issues and Struggles for Strategies," questioned the growing number of African Americans locked up, as well as the ever-expanding corporate interest in seeking prison labor as an alternative workforce.
The panel of 10 African Americans from various professions agreed that what they call the "prison-industrial complex" emphasizes incarceration, then exploits inmates for profit—inmates who are paid a few cents per hour, without any meaningful effort toward rehabilitation. That a majority of those incarcerated are poor, African American and Latino leads some to believe the system strongly resembles chattel slavery.
"At the same time while these corporations say that they are investing in education, they are also heavily in the incarceration of [Blacks], Latinos, poor Whites and anyone else who falls victim to this trap," said panelist Jaja Malik Atenra of the Sirius Research Group.
While the panelists agreed on the dire need for organized confrontation of a worsening incarceration/exploitation prison system, their solutions were wide and varied, ranging from grassroots activism to more eccentric approaches. One participant suggested asking the United Nations to level charges against the U.S. for crimes against humanity. Another even suggested that African Americans own and operate their own prisons.
Other panelists, such as Minister Masada of the organization My Brothers Keeper, suggested action at the legislative level, amending California's three-strikes law to include language requiring a third-strike crime to be, at a minimum, a violent felony. "No one should be spending life in prison for stealing a beer," said Masada, who also advocated for a nationwide boycott of companies who benefit from prison labor. "America has more prisoners than any other country, and California even has more prisoners than some countries," said Masada. "We need to have a national organization for prisoners, and we need to build relationships with lawyers and young people in law school."
Many of the businesses that profit from prison construction and inmate labor were identified by name during the discussion, some names very familiar. According to Kalonji, the two main private prison industries are Correctional Corporations of America (CCA) and Wackenhut Corporation. "Fifty-one percent of [CCA's] founding monies [was from] Kentucky Fried Chicken," said Kalonji, who also fingered K-mart, Dell Computer, Starbuck's Coffee, Victoria's Secret, Microsoft and JC Penny as corporations who use inmate labor for products and industries.
While education, health and social programs all suffered deep cutbacks in this year's state budget, California's prison industry, said one panelist, continues to grow. "There have been no cuts to the prison system—they're spending more, while cutting health and education," said Dr. Richard Butcher of Caregivers Medical group, adding that fewer dollars for education today will surely mean more African Americans in prison in the future.
According to Department of Justice statistics, 2,033,331 people nationwide were incarcerated in federal and state prisons and county jails in 2002. Of those incarcerated, about 887,700 were African American (818,900 men, 68,800 women). In California, a total of 159,390 people are currently incarcerated. Of that number, Hispanics, Blacks and Whites each comprise about a third of the total prison population, according to the California Department of Corrections.
While some African American pundits have expressed concern about the disproportionately high numbers of incarcerated Blacks, with the exception of UC Santa Cruz professor Angela Davis, none have mounted any sizable opposition to the issues of systemic bias or corporate exploitation of inmate labor. Most conservatives—including African Americans—believe that increasing the number of prisons in the nation is necessary and that it's responsible for a decade-long decline of crime rates.
"[The high number of Blacks in prison] is generally interpreted as evidence that African American people are arrested out of proportion to their numbers in society, since they constitute only 13 percent of the population," wrote conservative John McWhorter, an African American UC Berkeley professor in his book Losing the Race: Self Sabotage in African American America. "However, the figures must be seen in light of the fact that as sad as it is, nationwide African Americans commit not 13 percent, but 42 percent of the violent crimes in the country. In other words, contrary to the idea that African Americans are arrested disproportionately, their proportion of the prison population neatly reflects the rate at which they commit crimes," writes McWhorter.
Angela Davis, however, sees prisons more as a modern-day plantation, where expanding corporate interests vie for control, playing on a society that ignores the actual socio-economic conditions responsible for why people commit crimes.
"Prisons thus perform a feat of magic. Or rather the people who continually vote in new prison bonds and tacitly assent to a proliferating network of prisons and jails have been tricked into believing in the magic of imprisonment," Davis wrote in a Colorlines Magazine article. "But prisons do not disappear problems, they disappear human beings. And the practice of disappearing vast numbers of people from poor, immigrant, and racially marginalized communities has literally become big business."
"There's a legacy going back to slavery," said panelist Atenra, who argued that large numbers of African Americans in prison can be traced back to being disenfranchised as an ethnic group, beginning with slavery and continuing today. He also pointed out that convict leasing agreements between private entrepreneurs and states first appeared with the abolition of legal slavery. Subsequently, Southern states passed the notorious "black codes," which placed severe restrictions on freed slaves and effectively guaranteed a steady flow of inmate labor to exploit.
"When you have dominated a group of people... controlled them psychologically and physically, and then all of a sudden you set them free, they're not in the mindset, or have the means, to fend for themselves, to do for themselves. This is what we're seeing from the end of slavery after the Civil War, all the way up to 1954 with Brown vs. the Board of Education…. There was institutional racism, policies that kept us in that place, [along with] poor education or no education," he added.
While most of the panelists viewed the incarceration problem through a socio-historical lens, others in the audience viewed the issue specifically as one of economics, the political pathos of poverty in America.
"I know race is a big deal, but it is about class…it's poor people that are in prison—people with no economic or political voice," said Modesta Brown of the California Coalition for Women Prisoners. "We need to identify [the prison-industrial complex] as the money maker that it is. Right now, they are building prisons before they even have the prisoners to fill them. If we can identify it as being a dysfunctional system, then we can do something about it."
Even though Kalonji said that he was somewhat disappointed with Saturday's relatively meager turnout of about 37 people, he aims to create a larger organization to address the prison-industrial complex, among other criminal justice-related issues. He offered one more possible solution:
"I don't believe that we can't make change. The established order operates as it does, in terms of unethical and inequitable treatment of us, because we allow it. We need to take responsibility and demand better treatment."
© 2003-2006 Southland Publishing, All Rights Reserved
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