because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Is that relevent??

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NUMBER 13-02-00130-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,

INDEPENDENT EXECUTRIX OF THE ESTATE OF

MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,

MARTHA DE LLANO DE OLIVERA, FERNANDO

DE LLANO, JR., AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FERNANDO DE LLANO, AND

JOSEFINA DE LLANO, Appellants,



v.



PABLO SUESS AND FROST NATIONAL BANK,

TRUSTEES OF THE JOHN G. KENEDY, JR.

CHARITABLE TRUST, Appellees.



On appeal from the 206th District Court of Hidalgo County, Texas.



MEMORANDUM OPINION



Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.

A. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

B. Finality of Judgment

In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]

Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.

Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).

The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.

Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.

C. Participation of Attorney General

In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.

The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:

For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.



Tex. Prop. Code Ann. '123.002 (Vernon 1995).



Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:

We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.



When asked a second time by the trial court what relief appellants were requesting, counsel responded:

. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities.



The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@

The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.

Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.

D. Improper Jury Argument

In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@

Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied).

Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.

During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.



E. Disqualification of Defense Counsel

In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.

F. Jurisdiction

Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@

In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.

Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.

G. Adverse Possession

In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice



Memorandum Opinion delivered and filed this

the 16th day of June, 2005.

[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).



[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:



This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?

No it is about how do you know what happened 105 years ago? Mommy told you vendido?

Not to do this.........your avarice is quite well known and will be your legacy far longer than 105 years.

This is "We're dealing with people who are just out and out cheating and lying to the state of Texas, stealing money from the taxpayers of the state

....and you just now noticed? too busy playing with Insurance 20 million scam for your bud rick James Perry to redo his "uninsured" Mansion?

Too busy to notice John Hubert and his malicious prosecution of innocent Kleberg Kenedy County and his latest election fraud where he lost then miraculously won the next morning?

WHined to Texas Governor Rick perry till Hubert got his JOB created for him by The governor for what? What will Perry get in return? Hubert is a malicious prosecutor, a liar, falsified documents, hid a material witness that could have exonerated me, yet you let the Mary Cano/Rick Perry/john Hubert's work for the State of Texas when the are the biggest frauds in South Texas.

Who in Texas gets a JOB in this economy created for them by the Rick Perry?

John Hubert ~ the longer the fraud goes on the more you look involved and if nothing is done you are obviously not that good.

LeeAnn Haley
Corpus Christi, Texas


Ambulance firms raided in Medicaid fraud inquiry

Companies in Dallas, 11 other cities searched in billing investigation

12:00 AM CST on Thursday, December 7, 2006

By TANYA EISERER / The Dallas Morning News

Fraud investigators served 19 search warrants in Dallas and 11 other cities in a wide-ranging inquiry into allegations of fraudulent billing practices by ambulance companies, the Texas attorney general said Wednesday.

"This is a statewide fleecing of millions of dollars from Texas taxpayers of the Medicaid system," said Attorney General Greg Abbott. "There were billings that were either for more than the amount of services provided, or even billings for services that were not provided. [The] bottom line is we have a statewide operation cracking down on Medicaid fraud."

The investigation centers on ambulance companies suspected of submitting false claims to Medicare, Medicaid, private insurers and the Federal Employees Health Benefits Plan, said Jerry Strickland, a spokesman for the attorney general's office.

The inquiry, Operation Easy Rider, began at least six months ago after the Texas Health and Human Services Commission reported discrepancies in billing practices, Mr. Strickland said. The agency oversees the disbursement of Medicaid funds.

"The fraud that we're dealing with really doesn't have anything to do with any kind of complexities that may exist in the system," Mr. Abbott said. "We're dealing with people who are just out and out cheating and lying to the state of Texas, stealing money from the taxpayers of the state of Texas.

"They thought, gosh, that [they] could take money by overcharging the state of Texas, overcharging the Medicaid system, maybe no one would see."

Officials declined to release further details, citing the continuing investigation.

The attorney general's Medicaid Fraud Control Unit was involved in the operation, along with federal agents from the inspector general's office at the U.S. Department of Health and Human Services, the FBI, the inspector general's office for the U.S. Office of Personnel Management, the U.S. Postal Inspection Service and the U.S. Department of Homeland Security.

North Texas ambulance companies that were searched included Carefirst EMS on Centre Street and Judd Court in Dallas; Greater Dallas EMS on South Hall Street in Dallas; All State Ambulance Service in Rowlett; Advicare Ambulance Transfer Service in DeSoto; and Visions EMS in Cedar Hill.

Officials with the ambulance companies either declined to comment or could not be reached for comment.

Mr. Strickland also confirmed that law officers arrested the owners of an ambulance service in McAllen, Texas, as part of the raids.

Chris Heinbaugh of WFAA-TV (Channel 8) contributed to this report.

E-mail teiserer@dallasnews.com

This Prosecutor is Malicious and Does not seek Justice

Homer, with all due respect this, article does not make sense. You keep saying that idiot hubert talks about the jury finding it difficult to convict yet he elected the Judge to assess punishment?
Why would he do that? it seems that hubert gets off on taking idiotic cases to trial when he really should take himself for fabricating evidence and charging this man falsely. How could he burglarize when it is clear from the article the authorities were there because of the interfering with an emergency call.
I don't know.
I do know Hubert is a liar, Malicious Prosecutor and does not seek justice as the JOB he holds is required. What a waste, but he did help his friend Chaney out though.

Schools demeanor are based upon credibility of its teaching and students

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 57,060-01 EX PARTE DANIELLE SIMPSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM ANDERSON COUNTY Cochran, J., delivered the order for a unanimous court. ORDER Applicant presents thirty-seven allegations, including a claim of mental retardation, in his original application for habeas corpus relief in this death-penalty capital-murder case. The trial judge entered findings of fact and conclusions of law and recommended that relief be denied. We have reviewed the record, and we adopt the trial judge's findings and conclusions. Therefore, we deny relief. We also dismiss applicant's "Motion to Consider Additional Evidence of Mental Retardation" because that supplemental material was improperly and untimely filed with this Court instead of the convicting court. Article 11.071 (1) does not authorize piecemeal submission of evidence, nor does it permit the original filing of evidence with this Court rather than the convicting court. Because the trial judge's written findings were so thorough and complete, we need discuss only applicant's mental- retardation claim and the motions applicant filed directly in this Court. I. Applicant was indicted for the robbery and murder of Geraldine Davidson on January 26, 2000. In November 2002, a jury convicted him of that capital murder and, based upon the jury's answers to the punishment special issues, the trial judge sentenced applicant to death. The evidence at trial showed that the 20-year-old applicant, a member of the Southside Cryps gang, planned and executed a burglary at the Palestine, Texas, home of Mrs. Davidson, an 84-year-old widow and retired teacher. He had burglarized Mrs. Davidson's home before, but this time he enlisted the aid of his sixteen-year-old wife and thirteen-year-old cousin. Mrs. Davidson returned home during the burglary, so applicant and his cohorts tied her up with duct tape, put her into the trunk of her car, and then spent the afternoon driving around in her car buying and smoking formaldehyde-laced marijuana cigars. Later, they picked up applicant's younger brother and stopped at a Jack-in-the-Box, where applicant sent the others inside to buy food while he waited, outside surveillance camera range, in Mrs. Davidson's car. After the foursome ate and smoked more marijuana, applicant drove the car to the Neches River. He and his younger brother pulled Mrs. Davidson out of the trunk, tied her legs to a cinder block, beat her with her gardening shovel, kicked her in the head, and finally threw her in the river to drown. After dropping off his three cohorts, applicant "rented" Mrs. Davidson's car to friends in return for two rocks of crack cocaine. His friends were later pulled over in Mrs. Davidson's car, and they told the police about applicant "renting" them the stolen car. Police came to applicant's house to arrest him but he fled. The officers arrested applicant later that day, after he and his brother were found hiding in a neighborhood "dope house." Applicant was wearing Mrs. Davidson's gold wedding ring when he was booked into jail. We affirmed applicant's conviction and sentence on direct appeal. (2) Meanwhile, on December 3, 2002, applicant filed his original writ of habeas corpus with the presiding judge of the convicting court. (3) Accompanying his writ application were two volumes of material, including various affidavits, treatise excerpts in support of his mental-retardation claim, documents from the underlying trial, and published law review and behavioral science articles. The State filed its response five months later. On June 23, 2003, after consulting with the attorneys, the trial judge entered an order that found that there were no factual issues that could not be resolved by using the trial record and the written writ materials. Thus he decided that a live evidentiary hearing was unnecessary. He ordered both the State and applicant to file proposed findings of fact and conclusions of law. On July 14, 2003, applicant filed an additional affidavit by Dr. Windel Dickerson who, based on a personal examination of applicant and his review of various other materials, concluded that applicant was mildly mentally retarded. Two weeks later the trial judge signed an order permitting both the State and applicant to acquire and file additional educational records for applicant. On that same day, the trial judge denied applicant's proposed findings of fact and conclusions of law and signed the State's proposed findings. On August 7, 2003, applicant's special-education records were filed with the convicting court, and, one month later, applicant filed a videotaped statement made by Dr. Dickerson. (4) All of these materials were then forwarded to this Court on September 10, 2003. Applicant has continued to file additional motions in this Court, culminating, on May 19, 2004, with a "Motion to Consider Additional Evidence of Mental Retardation." Attached to this motion is a letter from Dr. Dickerson and an accompanying psychological-services test report, again setting out his opinion that applicant is mentally retarded. II. Applicant contends that he is mentally retarded and thus, under Atkins v. Virginia, (5) he is exempt from execution. Here, as in Hall v. State, (6) the convicting court did not hold a live evidentiary hearing on applicant's post-conviction habeas corpus allegation of mental retardation. But, also as in Hall, the issue of mental retardation was fully litigated during the punishment phase of applicant's original capital-murder trial. Although applicant's trial took place before the Supreme Court decided Atkins, his able trial counsel presciently predicted the outcome of that case and presented extensive mental-retardation evidence as calling for a "Yes" answer to the mitigation special issue submitted to the jury. Applicant's habeas writ relies almost exclusively upon that extensive testimony. Although it is advisable to have an evidentiary hearing to determine mental-retardation claims raised for the first time in post-Atkins habeas applications, (7) it is not necessary where, as here, the habeas applicant relies primarily upon trial testimony. In this case, both sides had an opportunity to fully develop the pertinent facts at trial, and the habeas judge had an opportunity to assess the credibility and demeanor of the witnesses when he presided over the trial. Although the discrete fact of mental retardation was not an ultimate issue at the capital-murder trial, the punishment phase testimony fully developed that contested fact. (8) During the punishment phase of applicant's trial, the defense called applicant's father, mother, and two sisters. Significantly, none of these witnesses-the persons who knew him best during his youth-testified that they had thought, during his formative years, that applicant was mentally retarded. (9) Applicant's father remembered that applicant had twice suffered head injuries as a child, but he did not know whether he suffered any brain injury as a result. He testified that applicant had had school truancy problems and usually got into trouble alone. While applicant's father stated that applicant had a history of seizures, his sister said that she did not believe that applicant had ever suffered seizures. Applicant's elder sister, a TDCJ-CID prison guard, said that there was very little good that she could say about him other than the fact that he attended church. Applicant's mother testified that applicant failed kindergarten and third grade, that he was sometimes placed in special-education classes, and that he was "very slow and had a learning disability." He missed a lot of school because he had headaches, felt bad about himself, and because she could not drive him to school all the time, as she had to work two jobs. She made him move out of her home about a year before the murder because he had sexually assaulted her adopted daughter. The defense also called a psychologist, a pediatric neurologist, and a psychiatrist to testify to applicant's mental condition and abilities. Dr. Andrews, the psychologist, testified that applicant has borderline intellectual functioning. He stated that applicant's academic knowledge is "low" and that he reads at an early high-school level, and has a fifth-grade spelling ability and sixth-grade math ability. When applicant was 14 years old, his full-scale IQ score on the Wechsler Intelligence Scale for Children was 71, and he scored a 72 on the TONI. (10) The next year he received a 78 full-scale IQ score on the Wechsler and an 86 on the TONI-2. No one discussed the significance of this improvement in IQ scores. Applicant dropped out of school in the ninth grade. His teachers consistently noted his high truancy rate as an educational impediment. Dr. Andrews stated that applicant has adaptive deficits and a low ability to complete planning and organization tests. He did not believe that applicant was faking mental deficiencies, but he did think that applicant is "a chronic liar" and that his manipulative conduct in jail demonstrated adaptive behavior. (11) Dr. Andrews concluded that applicant is in the "borderline mentally retarded range" and would not resolve complex situations very well. (12) Dr. Andrews also stated that applicant has an anti-social personality. Dr. Wise, a pediatric neurologist, reviewed applicant's EEG (electroencephalogram) and testified that applicant has an abnormal neurological status, a generalized slowing of brain function. He stated that the brain changes as a person ages and is influenced by such things as diet, smoking, drug use, and trauma. He had not personally examined applicant. Dr. Barry Mills, the chief psychiatrist for the Maximum Security Behavior Management Program at Vernon State Hospital, examined applicant and concluded that applicant has two subdural hematomas (blood clots on both sides of his brain) which have caused brain damage. As a result, applicant has poor judgment, an inability to learn from his mistakes or to change his actions in response to complicated situations, and an inability to control frustration or manage himself. Dr. Mills acknowledged that there is nothing in applicant's medical records to confirm any head injury. He did agree that smoking embalming fluid may cause EEG changes. Dr. Mills stated that applicant was not malingering during his examination but that he had been "manipulative and dishonest throughout a large part of his life." He testified that "I did not say [applicant] was mentally retarded. I said he was borderline mentally retarded, essentially functioning at that level, but his I.Q. score was not mentally retarded." He agreed that applicant had never been diagnosed by anyone as "borderline mentally retarded" until after he was charged with capital murder, and he stated that applicant's TONI IQ of 86 was "a more accurate measure of [applicant's] intelligence." In rebuttal, the State called Dr. David Self, a psychiatrist, who had also examined applicant. In his opinion, applicant was malingering and faking his psychiatric symptoms. He stated that, during his interview, applicant spontaneously launched into a narrative of various mental complaints, including visual and auditory hallucinations, depression, an attempted suicide, and a history of head trauma. In Dr. Self's opinion, applicant's intellectual functioning is in the borderline-to-low average range and he does not have significant adaptive deficits. Dr. Self described applicant's letter-writing campaign from jail to various friends and relatives asking them to smuggle contraband to him as adaptive, albeit anti-social, behavior. In his opinion applicant's lack of empathy, his callous disregard for others, and his prior conduct, including his sexual assault of his adopted sister, his shooting at his ex-girlfriend, and his assaults on his wife and children, were traits consistent with a psychopathy. Dr. Self stated that applicant's MRI showed evidence of a prior "head trauma," but no evidence of any brain damage. He concluded that applicant has an anti-social personality disorder, but is not mentally retarded. Additional evidence was timely submitted for the convicting court's consideration on the writ. This evidence included most of applicant's school records, his two written statements to police after his arrest for this murder, twenty inmate-request forms that applicant submitted while he was in jail awaiting trial, letters that he wrote to family and friends from jail, a letter that he had written from jail to a venireperson whose name and address he had memorized in the courtroom from his attorney's jury list, and applicant's medical and mental-health records from TDCJ-CID. Applicant's school records showed that, in almost every year, he missed a large number of school days, but nonetheless he achieved passing grades in almost all classes. Seventeen "Notices of Concern" were sent to his family during one school year; they noted that applicant failed to complete assignments, failed to make up missed tests, and that he exhibited "excessive absences" and "lack of effort." Applicant's jail letters are clear, coherent, and clever. In one, he explains to his cousin how to smuggle photographs of his three girlfriends into the jail by taping them to extra pages in an incoming letter. In letters to his brother, applicant writes jocularly in gang slang. In letters to his mother, on the other hand, applicant writes in standard English, without slang. He uses a polite tone as he instructs her on how to smuggle tobacco and rolling papers into the jail by putting them in envelopes labeled "Legal Mail," and having them delivered by his defense investigator. He tells his mother that he is working on getting joint custody of his son for her and his wife's mother, and asks her to call the defense investigator and have him bring applicant a small tape recorder so he can record his wife's custody concessions on the phone. Applicant's TDCJ-CID medical and mental-health records show that applicant achieved an IQ result of 84 on a TONI test when he arrived on death row which, according to the records, "precluded other need for I.Q. testing." The trial judge entered findings of fact, based on his review of the trial and writ evidence, that applicant failed to present a cognizable claim of mental retardation because he failed to show facts that prove he is mentally retarded. The trial judge found that Dr. Dickerson's affidavit concluding that applicant is mentally retarded was untimely submitted and therefore should not be considered. In the alternative, he found it unpersuasive. (13) Although the trial court did not have the benefit of this Court's opinion in Ex parte Briseno, (14) it followed the methodology and legal standards set out in that opinion. Applicant claims that his execution would violate the Supreme Court's rulings in Atkins and Ring v. Arizona (15) unless a jury has found, beyond a reasonable doubt, that he is not mentally retarded, brain damaged, or otherwise lacking in mental culpability. This is a claim that we rejected in Briseno, (16) and it is a claim that the habeas judge in this case rejected as well. In sum, although there was some evidence in the trial and writ record suggesting the possibility of mild mental retardation, there was also ample evidence in the record supporting the trial court's finding that applicant is not mentally retarded. We conclude that the trial court did not abuse its discretion in reaching this factual conclusion. Therefore, we deny applicant relief on his mental retardation claim. III. We also dismiss applicant's recently filed "Motion to Consider Additional Evidence of Mental Retardation" because we do not have statutory authority to consider additional evidence. Applicant's writ application, the State's response, all associated exhibits, and the trial court's written findings of fact and conclusions of law were received by this Court on September 10, 2003. Article 11.071, § 9(f) explicitly states that once all of the appropriate materials have been timely submitted to the trial court and the trial court has made its written findings of fact and conclusions of law, the clerk of the convicting court shall immediately transmit these materials to this Court. Then, under article 11.071, § 11, this Court shall "expeditiously review" the habeas application. We may (but need not) set the case for oral argument and we may (but need not) request further briefing. (17) "After reviewing the record" as it was developed in the trial court, this Court "shall enter its judgment remanding the applicant to custody or ordering the applicant's release, as the law and facts may justify." (18) In the present case, applicant asks us to act outside of our statutory authority. On November 24, 2003, more than a month after the clerk of the trial court transmitted all of the appropriate writ materials to this Court, applicant filed a motion with this Court entitled "Motion to Declare Simpson Mentally Retarded under Atkins or Alternatively, Motion to Remand for Evidentiary Hearing to Determine Mental Retardation." This motion alleged that applicant's counsel was "trying to set up an appointment with Dr. Dickerson to re-examine Mr. Simpson." (19) He requested that this Court stay further action until Dr. Dickerson could file a new report directly with this Court. On February 9, 2004, this Court received applicant's "Supplemental Reply to State's Response to Petitioner's Mental Retardation Summary." This document stated that Dr. Dickerson had completed his second examination of applicant and a preliminary report was attached. Although the document was filed with this Court, applicant asked that the habeas judge read the attached preliminary report and make supplemental findings. We do not know whether the habeas judge received and read this document, but he did not file any supplemental findings, presumably because he did not have statutory authority to do so. Finally, on May 19, 2004, applicant filed his Motion to Consider Additional Evidence of Mental Retardation. He states that this motion is a supplement to the motion he filed with this Court on November 24, 2003. According to that motion and Dr. Dickerson's attached report, the results of this second mental-status test were obtained under better conditions than those under which earlier tests were taken. Dr. Dickerson again opines that applicant is mildly mentally retarded and suffers from organic brain damage. There is no provision in article 11.071 that permits either the State or the habeas applicant to submit original evidence directly to this Court. Evidentiary affidavits, letters, transcripts, or other documents relating to a habeas claim should not be attached to motions or briefs, and they shall not, and will not, be considered by this Court. As we recently stated in another context: An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. While the record may be supplemented under the appellate rules if something has been omitted, the supplementation rules cannot be used to create new evidence. Moreover, an appellate court's review of the record itself is generally limited to the evidence before the trial court at the time of the trial court's ruling. (20) In the ordinary case, if this Court were to consider evidentiary materials that were never submitted to, or considered by, the habeas court, the statutory purpose in having the convicting court gather the pertinent evidence and make the appropriate written findings of fact would be entirely frustrated. (21) The legislative framework of article 11.071 contemplates that the habeas judge is "Johnny-on-the-Spot." He is the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. This Court then has the statutory duty to review the trial court's factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law. (22) We are not the convicting trial court, and we are not the original factfinders. It is generally fruitless, if not counterproductive, to file original evidentiary materials relating to a habeas claim with this Court rather than the trial court. Although we might have the implicit authority to consider evidentiary materials filed directly with this Court, normally the jurisprudential considerations of efficiency, effectiveness, and comity to the habeas court counsel against such consideration. Because applicant has failed to offer proof of any compelling and extraordinary circumstances, we decline to consider the evidentiary materials that he has filed directly with this Court. Therefore, based upon our review and our adoption of the trial court's ninety-five pages of thorough and comprehensive findings of fact and conclusions of law which were submitted to this Court, we deny relief and dismiss applicant's motions filed directly in this Court. Cochran Filed: June 30, 2004. Publish 1. Tex. Code Crim. Proc. art. 11.071. 2. Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003). 3. In his writ application, applicant candidly admits that his claims 20-37 are ones that have been previously rejected by this Court and "are therefore segregated at the end of the application and need not delay the Court." Nonetheless, we have carefully reviewed those claims, as well as all of his other non-mental retardation claims, and deny them based upon the trial court's findings of fact and conclusions of law. 4. Applicant submitted these materials to the trial court after that court had filed its findings of fact and conclusions of law and thus they are not discussed within the trial court's written findings. Nonetheless, we have independently reviewed the materials and conclude that they do not present any significant additional information that was not already before the trial court at the time he made his findings. 5. 536 U.S. 304 (2002). 6. ___ S.W.3d ___, ___ 2004 Tex.Crim.App. LEXIS 817 (Tex. Crim. App. 2004). 7. See Hall, __ S.W.3d at ___ (Price, J., concurring) (noting that "generally, for the review of a contested Atkins v. Virginia claim, the trial court will need to hold a live hearing and not base its decision solely on affidavits submitted by the parties"); id. at ___, (Johnson, J., dissenting) (noting that "[n]o trier of fact in this case has ever heard live testimony, subject to testing or cross-examination, on the specific issue of whether appellant is mentally retarded"); and id. at __ (Holcomb, J., dissenting) (noting that capital murder defendant "was not provided with a live evidentiary hearing ... [and] was not able to cross examine the affiants and the judge was not able to evaluate their credibility"). 8. See Hall, ___ S.W.3d at ___. In Hall, as in the present case, mental retardation was not an ultimate discrete fact litigated during the capital-murder punishment phase. We noted that: the parties introduced a significant amount of evidence regarding whether appellant was mentally retarded, mental retardation was not considered as a discrete issue by the trial judge or the jury. Although the parties certainly had incentive to litigate the question of appellant's intelligence, the litigation occurred as a question of degree: defense counsel could contend that appellant's low intelligence mitigated his moral culpability even if it did not amount to mental retardation, while the State could contend that, even if appellant were in the mental retardation range, he appreciated the consequences of his actions to a sufficient degree to deserve the death penalty. Had mental retardation been an ultimate issue, the parties may well have litigated the issue even more robustly than they did, as the issue would be a question of kind (which side of the mental divide appellant was on) rather than degree (how much did appellant appreciate the immorality of his conduct). Id. Nonetheless, during this writ proceeding, both parties could, and did, present whatever additional evidence they believed supported or negated the fact of mental retardation. It was only after consulting with the attorneys that the trial judge determined that a live evidentiary hearing was not necessary. 9. LaTonya, one of applicant's sisters, did testify that applicant was twice held back in elementary school and "had a bunch of problems." She testified that he missed a lot of school: "I'm not saying he was retarded, but I'm just saying that he was slow." Applicant's other sister, Tangela, testified that applicant was slow "as far as educational level," but not in other things. 10. Test of Non-Verbal Intelligence. 11. Dr. Andrews agreed that applicant's conduct in writing his mother-in-law from jail saying that he would serve his time for this capital murder in a mental hospital by telling "my lawyer and the judge that I need some help and I'm having problems and seeing things and hearing things" was goal-directed and showed a knowledge of the legal system and how to avoid the death penalty. Dr. Andrews stated that he did not believe applicant when applicant told him he had auditory and visual hallucinations. Applicant also told Dr. Andrews that he had been hospitalized for psychiatric problems, but Dr. Andrews could not find corroboration for this assertion. 12. Concerning the issue of "significant adaptive deficits," Dr. Andrews explained: Well, he was not able to function well in school. He was not able to function well in a work setting. These could be adaptive deficits. They might be problems with personality as well. I am not terming him mentally retarded but I do think he has some adaptive deficits. He noted that applicant had been diagnosed with a learning disability, not mental retardation, by school officials based upon his IQ test of 78 and TONI results of 86. 13. Specifically, he found that the prison testing conditions "likely affected" the test scores; the IQ score of 59 that Dr. Dickerson reached was completely at odds with all prior test scores; only portions of tests were given; separate tests for malingering were not given; Dr. Dickerson's assertion that applicant was treated as a mentally retarded person in school was contrary to all other evidence which indicated applicant had a learning disability and truancy problem; Dr. Dickerson appeared not to have reviewed all of the trial testimony; his "adaptive behavior" assessment did not describe behavior that is necessarily the result of mental retardation; Dr. Dickerson's assessment was based largely upon applicant's self-reporting, but applicant's veracity to mental-health experts had been called into serious question by other experts. Dr. Dickerson's videotaped interview, which was submitted to the trial court after the written findings were signed, does not differ substantively from his affidavit. 14. Ex parte Briseno, ___ S.W.3d ___ , 2004 Tex. Crim. App. LEXIS 199 (Tex. Crim. App. 2004). 15. 536 U.S. 584 (2002) (holding that "if a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt"). 16. Ex parte Briseno, ___ S.W.3d at __ (concluding that Ring is inapplicable to claims of mental retardation because "[a] lack of mental retardation is not an implied element of the crime of capital murder which the State is required to prove before it may impose a sentence above the maximum statutory punishment for that crime"). 17. Tex. Code Crim. Proc. art. 11.071, § 11. 18. Id. 19. Ostensibly, applicant's counsel wanted this re-examination because the trial judge discounted Dr. Dickerson's first untimely filed affidavit for the various reasons set out earlier. 20. Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). Cf. Ex parte Harris, 825 S.W.2d 120 (Tex. Crim. App. 1991) (noting that Penry claims are limited to evidence contained in the record. "Evidence outside of the record is wholly irrelevant to such claim"); and Pye v. State, 71 Tex. Crim. 94, 101, 154 S.W. 222, 226 (1913) ("Should we consider these ex parte affidavits it would be necessary that we have the State served with a copy of them, and permit it to introduce evidence in rebuttal thereof; in fact, reopen the case and convert this court into a trial court on the merits of the case, and then substitute our finding on the facts as thus presented to us for that of the verdict of the jury. This we are not authorized to do. If such was the rule, very nearly every case that was appealed to this court would have to be tried de novo. This would be wholly impracticable, and it was never contemplated that this court should become a trial court"). 21. See Pye, 71 Tex. Crim. at 101, 154 S.W. at 226. 22. See Hall, ___ S.W.3d at ___ (stating, in context of mental retardation claim raised in habeas application, that "we afford almost total deference to the trial judge's findings of fact, especially when those findings of fact are based upon credibility and demeanor").

The District Attorney requested the Grand Jury to subpoena the District Judge.......

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.

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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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.

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.