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Clewis overruled

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October 06, 2010, 09:21
John A. Stride
Clewis overruled
Judge Hervey wrote the majority opinion in Brooks, delivered today, overruling the factual sufficiency test in Clewis. CLEWIS IS DEAD!
October 06, 2010, 09:23
David Newell
Majority opinion here.

Concurring opinion here.

Dissenting opinion here.

The dissent refers to this as a plurality opinion. Is it?
October 06, 2010, 09:26
Andrea W
Yes. Majority opinion is Hervey, Keller, Keasler, and Cochran. Womack joined on Cochran's concurrence.
October 06, 2010, 09:26
John A. Stride
Time will tell--but, at first blush,Judge Womack falls on BOTH sides! He joins Judge Cochran's opinion concurring with the lead opinion and also concurs with the dissent. Closer analysis required!!
October 06, 2010, 09:30
David Newell
Yeah, I don't understand that. They don't list him as joining the dissent. He just concurred and joined Cochran's "dustbin of history" opinion. It's like a double rainbow. What does it mean!
October 06, 2010, 09:37
It is a majority opinion as to the result: no more Clueless litigation. As for the reasoning, there may be minor differences that focus on whether overruling is justified by law or practicality.

Ding dong. The witch is dead.

Perhaps TDCAA could organize an honorary funeral. The original author of Clewis could speak fondly of him, describing him as a complex person, someone we never really understood.

[This message was edited by JB on 10-06-10 at .]
October 06, 2010, 09:50
David Newell
Congrats to John Messinger and John Segrest of McLennan County for their work in this case!
October 06, 2010, 09:50
Andrea W
I think the notation just meant that Womack concurred in the opinion, not that he was somehow concurring with the dissent. Just an odd phrasing.

This is exciting! I was expecting it to come eventually, but not quite yet. Great job, McLennan County!
October 06, 2010, 10:02
Here is a nugget from Judge White's dissent to Judge Maloney's original majority opinion from Clewis:

"Law-abiding Texans, hold on to your hats. We have another 'run-away train' and it is again driven by a reckless, careless, and mischievous driver, Judge Maloney."

Fifteen years later, his wisdom stops that train.

A nugget from Presiding Judge McCormick's dissent:

"The majority opinion unnecessarily expands the power of the judiciary to release dangerous criminals back into society."

A nugget from Judge Meyers' original concurring opinion in Clewis:

"Those who are inclined to be alarmed by our lead opinion should withhold judgment at least until they see how it actually works in practice."

Hmm. How did that work out?

Pop Quiz:

What other judge from that opinion is still on the CCA?

Did you know that Clewis' first name was Elbert?

[This message was edited by JB on 10-06-10 at .]

[This message was edited by JB on 10-07-10 at .]
October 06, 2010, 10:46
Hi, my name is John and I was the Clewis-whipping boy of the 1990's.

I had three cases reversed under Clewis (one of them twice). All three were ultimately resolved in favor of the state: one successful retrial; one affirmed after remand from the CCA and rehearing by the court; and one on rehearing by the court.

There never was a bigger waste of time than Clewis. If only the Court could give back the time prosecutors and defense lawyers wasted arguing Clewis points. If only we could replant the trees we mowed down arguing it, attacking it, and justifying it.

October 06, 2010, 16:12
Wow. I can greatly reduce the huge standard of review that I cut and paste into my reply briefs now.

Also, will this be a big enough case for RJ to bring back his CCA blog?
October 06, 2010, 16:34
Andrea W
One can only hope. I've missed RJ's case analyses.

Amen to the saved paper now. I wonder how many millions of trees we just saved. Wink
October 07, 2010, 08:36
It is confusing about Womack, but the actual dissenting opinion does not list Womack as concurring, so did he concur with the dissent? It looks like he concurred with the dissent, but I think it only meant since Cochran joined with Hervey's opinion and Womack did not, it just means he concurred with the result.
October 07, 2010, 14:13
Maybe he just quietly left the room when they voted. Sort of a vote of absent.

Pretty funny how many times Price feels compelled to use the word plurality during his dissent. Whatever.
October 09, 2010, 00:08
Martin Peterson
It is a plurality opinion. Strange thing is that Judge Cochran says very nearly the same thing she said in Watson almost exactly two years before, yet Womack voted with Price on that occasion.

Merely "joining" in Cochran's opinion now hardly explains his change of heart. But, all can be glad for it, whatever his reason. Personally, I did not see this happening until Holcomb's replacement was on the court, but Brooks vividly illustrated how difficult the role of thirteenth juror was.

I know of at least one case that is still in the appellate process where Clewis was applied against the State. Anyone know of other convictions that might be saved by Brooks?
October 10, 2010, 15:53
Cory Crenshaw
I've got one with Guyton 271 S.W.3d 773. Bring it on back ...

Nice job McLennan County!
October 22, 2010, 09:16
Martin Peterson
What may be the first victim of Brooks came with a rather heated dissent. Guess there will now be multiple ways of interpreting Jackson.
October 22, 2010, 09:54
Andrea W
The entire dissent sounded like something you would hear in the jury room as they deliberate over the evidence. Isn't the entire point the CCA made when overruling Clewis that the judges are NOT supposed to act like a 13th juror? Whether you found evidence particularly persuasive or thought of other theories of the case isn't the standard.
October 29, 2010, 12:13
Martin Peterson
Looks to me like the final decision in Guyton will be affirmed based on Brooks, rather than changed (unless the final decision came too late).

But, Denton County looks to have a new winner in Klein, No. 02-03-00390-CR (pending review under Rule 50).
November 19, 2010, 08:59
Martin Peterson
So, would the evidence have been so clearly insufficient in Ramirez, before Brooks, that the issue could be unanimously decided in a per curiam opinion? Does this mean one should always be sure there are multiple persons present whenever drugs are to be possessed?