Is it just me, are is the DWI jurisprudence getting weirder by the decision?

First there was Mata and the retrograde analysis problem (as seen by the CCA and 4th COA)

Now there is Bagheri. Were we have both retrograde analysis and impairment evidence. But the 4th says that impairment evidence even though sufficient does not trump a faulty(?) retrograde analysis.

At about the same time the CCA in Motilla says that evidence of a defendant's guilt is a necessary part of any harm analysis.

I am going to stop now, close the door, turn off the lights, and sit in the corner.

I sometimes think that a dichotomy of judicial philosophy exists in this state such that DWI's and dopeheads are simply treated in differently than murderers, robbers, and rapists. I've just never been able to figure out which track the child molesters are on.

From what I can read, the courts of appeals, being a generally more liberal bunch than the Court of Criminal Appeals, are quite resistant to using the harmless error rule as it was intended. Many of the judges on the courts of appeals do not appreciate the history of procedural default and harmless error analysis. They yearn for the days when an error meant a reversal.

In addition, I agree that offenses that could be committed by a judge or a judge's child are somehow treated differently than rape, murder, and robbery. But the rules of harmless error should be the same for both types of offenses.

The Court of Criminal Appeals, however, continues to gently remind the courts of appeals that the rules shall be followed. The recent harmless error case (Motilla), saying that overwhelming evidence of guilty is, indeed, a factor in an error being harmless, is a giant step in the right direction.

Our office recently had great success in reminding our court of appeals (The Third Court) of how the harmless error rule should be applied. Initially, the court of appeals reversed and said bad things about the error. Following a motion for rehearing, the entire three-member panel changed their vote to affirm the conviction and sentence. They agreed they had looked at the rule incorrectly and then found the error harmless.

I continue to think that gentle persuasion will work over time.