Chief Justice Tom Gray, on the Waco Court of Appeals, frequently finds himself disagreeing with the 2 majority votes on that Court. He has begun to simplify his opinions. This is perhaps his best in a recent case (after criminal case was dismissed, defendant sought release of grand jury testimony):

Concurring Opinion

"Yeah, everything that guy just said is [dicta]...." My Cousin Vinny (Twentieth Century Fox 1992)(motion picture).

The proceeding was purportedly filed under article 20.02 of the Code of Criminal Procedure. This article provides, in part, that a defendant may file a petition in the district court in which the defendant's prosecution is pending. TEX. CODE CRIM. PROC. ANN. art. 20.02(e) (Vernon Supp. 2004-2005)(emphasis added). Because Kelly had no prosecution pending in the district court where the proceeding was filed, the trial court had no jurisdiction to rule on the merits of the motion.

When the trial court has no jurisdiction, the proper procedure for the appellate court is to vacate the lower court's judgment and dismiss the proceeding for want of jurisdiction. TEX. R. APP. P. 43.2(e).

Thus, I concur only in the dismissal of this appeal.

TOM GRAY Chief Justice

[This message was edited by John Bradley on 11-25-04 at .]

Another nugget, reminding the majority of the error of their ways:

Dissenting Opinion


A majority of this Court has previously found unassigned error. E.g., Hailey v. State, 50 S.W.3d 636 (Tex. App.?Waco 2001), rev?d, 87 S.W.3d 118 (Tex. Crim. App. 2002); In re B.L.D., 56 S.W.3d 203 (Tex. App.?Waco 2001) (per curiam), rev?d, 113 S.W.3d 340 (Tex. 2003). The Court has been reversed. E.g., Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 1060 (2003); In re B.L.D., 113 S.W.3d 340, 350-51 (Tex. 2003), cert. denied sub nom. Dossey v. Tex. Dep?t of Protective & Reg. Servs., 124 S.?Ct. 1674 (2004). There is virtually no such thing as unassigned error. Id. There is none to be addressed here.


A majority of this Court has previously found fundamental error. E.g., Rushing v. State, 50 S.W.3d 715, 722-25 (Tex. App.?Waco 2001), aff?d on other grounds, 85 S.W.3d 283, 284-87 (Tex. Crim. App. 2002); B.L.D., 56 S.W.3d at 214-15; In re J.F.C., 57 S.W.3d 66, 74 (Tex. App.?Waco 2001), rev?d, 96 S.W.3d 256 (Tex. 2002). The Court has been reversed and been held to have erred. E.g., Rushing v. State, 85 S.W.3d 283, 284-87 (Tex. Crim. App. 2002); B.L.D., 113 S.W.3d at 350-51; In re J.F.C., 96 S.W.3d 256, 272-74, 277-79 (Tex. 2002). There is almost no such thing as fundamental error. Mendez v. State, 138 S.W.3d 334, 340-42 (Tex. Crim. App. 2004); Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002); Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (reasonable doubt instruction not absolute systemic requirement). There is no fundamental error in the charge without egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh?g). There is no fundamental error here.


The majority again finds unassigned and fundamental error here. I dissent.


TOM GRAY
Chief Justice

I wonder if these points of 'Error' can be addressed in the judges' next election?

I had one of our convictions reversed by that court with that same 2-1 split (the case was transferred from the 9th Court of Appeals). Thankfully, Jeff Van Horn and the good folks at Matthew Paul's office got the CCA to grant discretionary review. More recently, I had another case transferred to Waco which was affirmed on appeal but then I got an order in the mail the other day where the 10th Court withdrew its opinion. Same 2-1 split. I'm not sure what's up with that one. Can anyone shed some light on what's going on in Waco? And, more importantly, is there any way to keep cases from getting transferred out of your own local appellate court district? Every conviction I've ever had reversed was on an appeal that was transferred to some other appellate court. In such instances, I can't even vent my frustration at the ballot box.

Lee, if you are asking why Justice Reyna votes the way he does, I guess only he knows for sure (since Gray's dissents often seem to make more sense). But imagine two things: the Tenth Court without Tom Gray or Bill Vance as one of the nine (instead of Sharon Keller) on the CCA, and you will see how things could be a lot worse.

Until the courts of appeals districts are equalized, the docket transfers will only increase and you will continue to be at the mercy of someone on the other side of the State. The Supreme Court supposedly does it on a random basis and no party has any right to complain either immediately or at the ballot box. But, since Waco is now automatically getting all of the Brazos County business and has the highest backlog (per judge) of any of the CoA's, maybe your next transfer will go to Eastland, El Paso, Texarkana, or Amarillo.

[This message was edited by Martin Peterson on 11-29-04 at .]

The Supreme Court (not the CCA) does indeed decide when, where, and how to transfer cases among the intermediate courts. Case transfers between courts of appeals are generally made in batches, with the size of each batch varying according to the Tex. S. Ct.'s needs to equalize the dockets of the courts. For example, the 6th Court of Appeals in Texarkana has traditionally received batches of 25 and 50 case from other courts, but I seem to remember one grouping last year--from either Beaumont or Tyler--that was an odd number like 37 or something.

There is no way to predict which cases will be transferred in any given batch. Nor is there any way to rig the system. This is because the transfer orders from the Tex. S. Ct. generally say "Ninth Court of Appeals, thou shalt send thy next [insert number of] cases to the Tenth Court of Appeals in Waco. [So let it be said, so let it be written....]" The Tex. S. Ct. generally hasn't a clue which cases will ultimately be transffered, nor do the sending and receiving courts -- until the sending court actually receives the order and determines the order of the cases docketed (at which time, the docket is already set and the clerk can't change the numbers so as to be able to keep or send specific cases).

I hope this helps explain the process...

Something I have wondered about docket equalization is whether there is any set rule for when there is a split in opinion between the courts of appeals. Is there a simple rule for when there is no set rule from the CCA, and a trial court follows the case law in their home district but then is reviewed by a court in a different region with different law? Since docket equalization is random, shouldn't the law of the region where the trial court sits rule, just for predictability�s sake? Has anyone faced this before?

Andrew, it has been suggested that the Legislature either deal with this issue or that the Supreme Court or perhaps CCA adopt an administrative rule to resolve it. There are good arguments on both sides. See Jaubert, 65 S.W.3d at 91, fn. 1 and compare American Nat'l Ins., 933 S.W.2d at 688. American Nat'l seems to be the easiest to apply in the CoA and gives recognition to the higher courts' responsibility as caretakers of the law. If the Leg adopts the Chief Justices' plan of sending more money to the Dallas and Houston courts (or were, God forbid, to increase the number of intermediate appellate judges), perhaps for a few years at least the number of transfers will diminish and the litigators in those districts which have been at risk of transfers could relax. There were only 221 criminal cases transferred last FY anyway, and that number will diminish even more with the realignment of the 8th, 9th, 10th, and 11th courts. So there really isn't much of a problem to begin with.

Here is yet another fine opinion from Justice Gray:

IN THE TENTH COURT OF APPEALS


No. 10-02-00282-CR


Shawna Beller, Appellant


v.


The State of Texas, Appellee


From the 411th District Court
Polk County, Texas
Trial Court # 16480


ABATEMENT ORDER


The State charged Shawna Beller with third degree felony theft. Tex. Pen. Code Ann. � 31.03(e)(5) (Vernon Supp. 2004). Beller filed a motion to suppress her written confession. The trial court denied Beller's motion, yet failed to enter findings of fact and conclusions of law regarding the voluntariness of her confession. A jury found Beller guilty, and she was sentenced to four years' confinement. She complains on appeal that the court erred by admitting her written confession because it was coerced.


Beller argues in her second issue that the trial court erred by not entering findings of fact and conclusions of law on the voluntariness of her confession, and asks this Court to abate this appeal and direct the trial court to enter its findings. The Texas Code of Criminal Procedure requires a trial court to enter written findings of fact and conclusions of law that specifically support its conclusion that the defendant's statements were voluntary. Tex. Code Crim. Proc. Ann. art. 38.22, � 6 (Vernon Supp. 2004). This requirement is mandatory, regardless of whether a defendant has objected to the lack of findings. Urias v. State, No. 335-03, 2004 WL 2347789, **1-*2 (Tex. Crim. App. Oct. 20, 2004).


Because the trial court has failed to make the required findings of fact and conclusions of law, we sustain Beller's second issue. We abate this appeal and direct the trial court to enter findings of fact and conclusions of law concerning the voluntariness of Beller's written confession.


The trial court shall, within thirty days after the date of this Order: (1) make appropriate orders and findings of fact and conclusions of law; and (2) deliver any orders and findings of fact and conclusions of law to the trial court clerk.


The trial court clerk shall: (1) prepare a supplemental clerk�s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk�s record with the Clerk of this Court within forty-five days after the date of this Order.


If Beller determines, after reviewing the trial court's findings, that she should amend or supplement her brief, her amended or supplemental brief will be due thirty days after the supplemental record is filed. If Beller files an amended or supplemental brief, the State will have thirty days thereafter to file a responsive brief.


PER CURIAM


Before Chief Justice Gray, Justice Vance, and Justice Reyna



Abated


Order delivered and filed December 1, 2004


Publish


[CR25]
(Chief Justice Gray dissents with the following note: Because the majority now chooses to run over me by not allowing an adequate time for me to prepare a full and proper dissent, I will issue my dissent on a later date. The majority gave no notice to me that this order would issue today.)

Hmm, doesn't sound to me like that court is a very collegial place to work. Not like the court where I clerked, not at all . . .

So, that note was published?

Umm. Wow. Sounds like a really friendly place.

To my mind, no dissent will ever equal Judge Womack's in Ex Parte Busby. Erroneously released from prison, Busby demanded the time he enjoyed on the outside as "street time." Until the court came to its senses two years later in Hale, the law was that he got it! The dissent was satisfying enough that the opinion was worth it, wrong-headed as it was.

The applicant wants credit against his sentence for a period of time in which he was released from prison by a grant of probation that the trial court had no jurisdiction to give. This issue first came before the Court in 1981. We held that such a defendant was not entitled to a credit.
The appellant was sentenced on March 27, 1978, and he went to the Department of Corrections on the same day. Therefore, "the execution of the sentence actually beg(an)" no later than that day. Thereafter the appellant applied for "shock probation." The court granted "shock probation" on August 7, 1978, or 133 days after the execution of the sentence actually began. This it was without jurisdiction to do, for V.A.C.C.P. Article 42.12, Section 3e continue [d] the jurisdiction of the trial court to grant "shock probation" for only 120 days after *175 the execution of the sentence actually begins. ...
The appellant claims that he is entitled to "flat time" credit for the time he was released on probation. He makes analogy to the cases in which inmates were released from prison erroneously, through no fault of their own. Those prisoners were not released at their request. The closer analogy is to Ex parte Massie, 161 Tex.Crim. 568, 278 S.W.2d 851 (1955). Massie applied for probation, but he was sentenced to 5 years' confinement. After the judgment was affirmed by this court, the trial court placed Massie on probation, which it had no authority to do. Massie claimed that he was entitled to credit for the time he was on probation. This court disagreed, saying that the void order was due, at least in part, to Massie's own actions.
Relator applied for probation when he pleaded guilty. He will not now be heard to say that by no conduct on his part did he escape confinement during the period he was at large under the void order.
278 S.W.2d at 853. This was an application of the rule of Ex parte Moneyhun, 161 Tex.Crim. 19, 274 S.W.2d 546, 547 (1955): "When appellant's attorney requested his release he became the moving factor and cannot now take advantage of a void order (of conditional release) on the part of the County Judge." Accord, Ex parte Williams, 164 Tex.Crim. 568, 301 S.W.2d 84 (1957). The appellant is not entitled to credit for the time he spent on the "shock probation" which he had requested; he is entitled only to credit for the time he actually was incarcerated. [FN1]
In 1985, a divided court declined to follow our 1981 decision for the following reason: "We believe that the foregoing rules penalize a defendant for asserting his statutory right to probation. A defendant should not be penalized if the relief he requests is proper and only through the improper actions of the trial court does the order become void." [FN2] Today the Court accepts this reason, saying, "When an applicant makes a proper and timely request for shock probation, but the trial court's order is untimely and therefore void, the applicant should not be penalized for asserting his statutory rights." [FN3]

The principle that a person should not be penalized for asserting a right is, no doubt, a good one. But it has nothing to do with this case, since the applicant's assertion of a right led to a benefit, not a penalty.
The first question is, what right did the applicant assert? The Court was obviously wrong in 1985 when it said that denying a time credit to the defendant would "penalize a defendant for asserting his statutory right to probation," [FN4] since there is no statutory right to probation, and with particular relevance to today's case, there is no statutory right to release on shock probation. There is not even a statutory right to a hearing of a request for shock probation. [FN5] Today the Court avoids the mistake it made in 1985 by failing to specify any right; it says only that if we deny the time credit the applicant will "be penalized for *176 asserting his statutory rights." [FN6] The only possible right is the right to request shock probation.

Now what was the penalty for requesting shock probation? The request was granted and the applicant was released on shock probation. Surely this was not a penalty. If the applicant thought it was a penalty, he would not have asked for it. He did not complain about this "penalty" when he was released or at any time during the period of his release on probation from August 30, 1988 to September 10, 1992. During this time, the record shows, he was convicted of public intoxication and driving while intoxicated. He smoked marihuana, used cocaine, was fired from one job for stealing the same kind of property that he was convicted of stealing in this case, and was fired from another job for refusing to work. He was not suffering a penalty.
He was penalized by being put back in prison when his unauthorized probation was revoked. But that penalty was not a result of his requesting probation; it was a result of his violating the conditions of probation. This cannot be the penalty to which the Court refers, nor does the applicant complain of the revocation, for the very good reason that it is nothing more than the exact penalty that was assessed by the district court when the applicant pleaded guilty and agreed to the sentence.
The "penalty" of which the applicant complains is that he has not gotten credit against his sentence for a period of time when he was not serving the sentence. This is no penalty. In my view, giving a defendant credit against a sentence for time in which he was not serving the sentence is contrary to law and reason. A defendant may not get credit for the time during which the execution of the sentence was suspended. [FN7] The same is true for the time a prisoner was released on parole. [FN8]


__________________________________________________________________________________________________

The applicant claims that he should serve less time on his sentence, because he got a vacation from it, than a prisoner who has gotten no vacation will serve. What law justifies that result? By what reason could the denial of that result be deemed a penalty? If the Court has another penalty in mind, what is it?
The applicant would be penalized if the district court granted him another probation and did not give him credit on the period of probation for the time he was erroneously on probation, but that time should have no more effect on his sentence than any time on probation has on any sentence. If a defendant is sentenced to ten years in prison, probated for a period of five years, and the court revokes probation on the last day of the fifth year, the defendant's sentence is still ten years.
The idea that a prisoner should have his sentence decreased because he got an erroneous vacation from prison should be met with hearty laughter, not the acceptance the Court gives it today. I respectfully dissent.
Tex.Crim.App.,2001.
Ex parte Busby
67 S.W.3d 171

My fave:

"Here we go raising the price of dildos again. Since this appears to be the law in Texas I must concur."

Regalado v. State, 872 S.W.2d 7, 11 (Tex. App.--Houston [14th Dist.], pet. ref'd)(Brown, J., concurring), cert. denied, 513 U.S. 871 (1994).

(Is he saying Justice Gray was too slow?)

No. 10-02-00282-CR


Shawna Beller, Appellant

v.

The State of Texas, Appellee

From the 411th District Court
Polk County, Texas
Trial Court # 16480

CONCURRING OPINION TO ORDER WITHDRAWING OPINION

I write in response to Chief Justice Gray's dissenting opinion to point out that the reason the majority could not "correct or modify" its opinion within the thirty days allowed by Rule 50 was his delay in reviewing the opinion that was proposed to "correct" our mistake.

The original opinion was issued on September 15, 2004. The PDR was filed on October 18.

On October 20, the Court of Criminal Appeals issued the opinion in Urias v. State, by a 7-2 vote, which unmistakably held that the correct procedure after a failure of a trial court to file findings of fact and conclusions of law after ruling on the voluntariness of a statement is to direct the trial judge to do so. Urias v. State, 2004 WL 2347789, at *2 (Tex. Crim. App. October 20, 2004). The majority then believed that we had erred in relying on an earlier opinion that suggested the contrary. See State v. Terrazas, 4 S.W.3d 720, 728 (Tex. Crim. App. 1999). On October 25, we approved an abatement order directing the trial judge to act, as the "corrected or modified" opinion, and forwarded it to Chief Justice Gray for his consideration. When it had not been acted on by the 30-day deadline provided for in Rule 50, November 17, we acted to withdraw the incorrect opinion. Tex. R. App. P. 50.

A similar situation presented itself in Parsons v. State. Parsons v. State, No. 10-03-00007-CR, 2004 WL 2005547 (Tex. App.?Waco September 8, 2004) (not designated for publication). The original opinion was issued on June 23, 2004. The PDR, filed on July 20, called to our attention a Court of Criminal Appeals case that we believed varied from our holding. The majority approved a "corrected" opinion and forwarded it to Chief Justice Gray for his consideration. Shortly before the 30-day period in Rule 50 was to expire, I received a note from Chief Justice Gray, saying "I suggest that you go ahead with the withdrawal." When we did, he dissented. What are we to do?

I believe that Rule 50 was designed to let us correct errors in our opinions that are called to our attention in a PDR. Because no motion for rehearing is required before seeking further review, Rule 50 is the vehicle provided. It makes little sense for a case which we believe contains an error to be transmitted to the Court of Criminal Appeals, only to be reversed and remanded to us to correct that error. When opinions designed to correct such an error do not receive timely internal review, we have no choice but to withdraw our prior opinion so that we can issue the corrected opinion in due course. Whether we "correct or modify" or withdraw and reissue at a later date, the result is the same?the purpose of the Rule has been fulfilled. In either event, a new PDR is required to address our new opinion.

BILL VANCE
Justice

DISSENTING OPINION ON ORDER WITHDRAWING
JUDGMENT AND OPINION ON PETITION FOR
DISCRETIONARY REVIEW

This Court lacks jurisdiction to take the action that it purports to take. Accordingly, I dissent.


[Parts of opinion deleted for length]

RESPONSE TO THE SO CALLED CONCURRING OPINION


While I disagree with the characterization of events as contained in Justice Vance's concurring opinion, I have not, and at least for now will not, comment upon the internal operations and decision making process within the Court. Well, I guess I must at least place his effort to quote me in context. Note the quote specifically references "withdrawal" not correct or modify. See Tex. R. App. P. 19. The Court had previously taken the position it could withdraw an opinion after a PDR was filed pursuant to Rule 19, a position to which I had expressed my disagreement. Parsons v. State, No. 10-03-00007-CR, 2004 Tex. App. LEXIS 7527 (Tex. App.Waco, Aug. 18, 2004, order)(Gray, C.J., dissenting). And if the Court had been consistent in the way it was dealing with this situation, then I had my dissent already prepared by a simple reference to my prior dissenting opinion. But, alas, inconsistency runs rampant. The Court, when challenged on its legal theory, runs a different direction, and creates new problems. It reminds me of The NeverEnding Story (Warner Brothers 1984)(motion picture). I do note that after delaying the issuance of my dissent by four weeks the concurring opinion does not offer any substantive analysis about the relevant issue. It does not matter, then or now; we still have no jurisdiction.


CONCLUSION


The Court lacks jurisdiction on reconsideration on petition for discretionary review to issue an order purporting to withdraw its judgment and opinion, without submitting a corrected or modified judgment or opinion. Moreover, failing such, the Clerk can only forward the petition and record to the Court of Criminal Appeals. I dissent from the Court's order.


TOM GRAY
Chief Justice

[I can't wait for the next reply.]

Justice Gray's dissenting words made their way into yet another reversal by the CCA. For details, go to the opinion.

In a recent dissent to a "mind-numbing" majority opinion Waco Court of Appeals Presiding Judge Gray offers the following warning about dicta:

"That is one of the reasons why I feel such a compelling need to alert the reader to the prospective problem of including unnecessary discussion, also known as dicta, in an opinion. See Nu-Way Energy Corp. v. Delp, No. 10-05-00065-CV, 2006 Tex. App. LEXIS 8003, *41, 43 (Tex. App.�Waco Sept. 6, 2006, no pet. h.) (Gray, C.J., concurring); Walker v. State, No. 10-04-00313-CR, 2006 Tex. App. LEXIS 6213, *28 (Tex. App.�Waco July 19, 2006, pet. filed) (Gray, C.J., concurring); Wachovia Bank of Del., N.A. v. Gilliam, No. 10-04-00038-CV, 2005 Tex. App. LEXIS 5039, *10 (Tex. App.�Waco June 29, 2005, pet. filed) (mem.op.) (Gray, C.J., concurring); Hasty v. State, No. 10-04-00131-CR, 2005 Tex. App. LEXIS 6597, *11-12 (Tex. App.�Waco Aug. 17, 2005, no pet.) (mem. op.) (Gray, C.J., concurring); Fewins v. State, 170 S.W.3d 293, 298 (Tex. App.�Waco 2005, order) (Gray, C.J., concurring); In re Clark, No. 10-03-00037-CV, 2004 Tex. App. LEXIS 6587, *20 (Tex. App.�Waco July 21, 2004, orig. proceeding) (Gray, C.J., dissenting on rehearing); Kelly v. State, 151 S.W.3d 683, 687 (Tex. App.�Waco 2004, no pet.) (Gray, C.J., concurring); Loredo v. State, 157 S.W.3d 26, 34 (Tex. App.�Waco 2004, pet. ref�d) (Gray, C.J., concurring); Jefferson v. State, No. 10-03-00334-CR, 2004 Tex. App. LEXIS 11796, *8 (Tex. App.�Waco Dec. 29, 2004, no pet.) (mem. op.) (Gray, C.J., concurring); State v. Fowler, 97 S.W.3d 721, 722 (Tex. App.�Waco 2003, no pet.) (Gray, J., concurring); In re Keeter, 134 S.W.3d 250, 258 (Tex. App.�Waco 2003, orig. proceeding) (Gray, J., dissenting); Shugart v. State, 32 S.W.3d 355, 369 (Tex. App.�Waco 2000, pet. ref�d) (Gray, J., concurring); Leander Cut Stone Co. v. Brazos Masonry, Inc., 987 S.W.2d 638, 641 (Tex. App.�Waco 1999, no pet.) (Gray, J., concurring); Johnson v. State, 995 S.W.2d 926, 932 (Tex. App.�Waco 1999, no pet.) (Gray, J., concurring). It is because dicta has a nasty way of coming back cited to me as a precedential holding. So the only tool which I have to push back with on this type of improper development of the law is my pen, a lone voice crying in the judicial wilderness, begging the majority to please abide by the rule and limit our discussion to only that which is necessary for a disposition of the appeal. I must constantly push back."

OK, JB is Gray's opinion in Williams a concurring opinion? (See footnote 1) Does the first in time rule determine the proper label for a court opinion? And who is the "we" referred to? Obviously not Gray and Vance. I again assert that the opinions coming out of Waco are unlike any before in our judicial history- for better or worse.

Yeah, I guess it really is a concurring opinion because the outcome would be the same. But it sure sounds like a dissent, eh?

When does a higher court step in and exercise some supervisory control over that court? I am sympathetic to Gray, who faces an openly hostile Vance and a passive Reyna.

When will voters solve this thing?