In the latest dissenting salvo from Chief Justice Gray on the Waco Court of Appeals, he has this to say about Judge Vance's reversal (following the CCA vacating and remanding the prior reversal):

"It should come as no surprise that on remand when the majority simply rewords their opinion, they come to the same conclusion. I do not believe their conclusion is any more supportable now than it was then. I dissent for the same reasons I dissented before, and I hope we get the same result, again. Wheat v. State, 160 S.W.3d 631, 637-38 (Tex. App.--Waco), vacated and remanded, 178 S.W.3d 832 (Tex. Crim. App. 2005)."

For Justice Vance's opinion, go to this link.

The debate about the utility of dissenting opinions will likely be reinvigorated by the occurrences in Waco. And will now move to the topic of how best to write a dissent. Tom Gray is determined to leave his mark on Texas jurisprudence. What would it be like if all courts had such vocal dissents and rancor among its members?

he's also right. i never really looked at him as trying to make a mark, though i guess he is. i always thought he was just trying to make sure the cases were in line with the court of criminal appeals. is that making a mark?

I have never thought CJ Gray was attempting to make a mark purely to attract attention to himself. Before he became CJ, I met him and thought him humble, concerned with justice, and the integrity of the law. Having practiced before that court and undeservingly lost a number of cases, it was always valuable to have his dissent as a point in favor before the CCA. Experience has shown that he is often right too. But I suspect Martin merely meant that he will leave a mark as a result of his concern for the law.

i had the same suspicions myself, john. sorry if i sounded snarky, martin (i really tried not to). like john (and a lot of other people who post here), i'm a big fan of judge gray. i've met him on a few occasions (never having appeared before him) and he remembered me from the first time we met. now, i'm sure there's some political sheen to that, but i can look past that for a judge who is, like you say, very concerned about justice and the integrity of the law.

I feel a bit like Luther Heggs. I too share an affection for the Chief Justice. His dissent in Vicioso, 54 S.W.3d 104 was the primary factor that motivated me to apply to have that decision reviewed by the SCOTUS.

I just consider it very bold on his part to do what he has done. Many judges would either not write the dissent to begin with or would be far less direct. Whether he is right or not (and the defense bar feels quite differently about the matter), Gray can legitimately be called a maverick in the judicial world.

This dissent by Chief Justice Gray is in reply to the decision of Vance and company, saying that shooting a firearm INSIDE of a habitation is not deadly conduct:

DISSENTING OPINION

"That depends on what your definition of ... [at] is." (Bill Clinton; quotation supplied by Thinkexist.com.) (I believe this quote was in response to a question regarding Clinton's relationship with Monica Lewinski.).

In the context of discharging a firearm, what does it mean to shoot "at" something? According to Bubba, when he shot at the juke box and hit it, it was not the reckless discharge of a gun because, in Bubba's words, "reckless hell I hit just where I was aimin'." MARK CHESNUTT, Bubba Shot the Jukebox, on LONGNECKS AND SHORT STORIES (Universal 1992). But we know that just because you hit what you are aiming at does not make the discharge any less reckless, or any more lawful. Thus we know that Bubba's definition is too narrow to be used in connection with defining "at" for purposes of the Penal Code provision.

Likewise, I would suggest that the majority opinion has put far too narrow of a definition upon the word. Black's Law Dictionary discusses the term as follows:

At. A term of considerable elasticity of meaning, and somewhat indefinite. A function word to describe or indicate presence or occurrence in, on, or near; or to indicate the means, cause, or manner; or to indicate that with which one is occupied or employed. As used to fix a time, it does not necessarily mean eo instante or the identical time named, or even a fixed definite moment. Often expresses simply nearness and proximity, and consequently may denote a reasonable time.

BLACK'S LAW DICTIONARY 124 (6th ed. 1990).

Obviously "at" is a word with a very wide range of uses and meaning. So much so that its "elasticity" is noted in this venerable legal reference book.

But the jury would not have a legal dictionary in the jury room. So how is "at" defined in an ordinary dictionary? The American Heritage College Dictionary defines "at" as follows:

At . .. 1.a. In or near the area occupied by; in or near the location of; at the market. b. In or near the position of; at the center of the page. 2. To or toward the direction of, esp. for a specific purpose: Questions came at us from all sides. 3. Present during; attending: at the dance. 4. Within the interval or span of: at a glance. 5. In the state of: at peace. 6. In the activity or field of: good at math. 7. To or using the rate, extent, or amount of; to the point of: at 350� F. 8. On, near, or by the time or age of: at three o'clock. 9. On account of; because of. 10. By way of; through: exited at the rear gate. 11. In accord with; following: at my request. 12. Dependent upon: at the mercy of the court. 13. Occupied with: at work. - idiom. At it. Informal. Engaged in verbal or physical conflict.

THE AMERICAN HERITAGE COLLEGE DICTIONARY 85 (3d ed. 1997). The Merriam Webster's Collegiate Dictionary defines "at" as "used as a function word to indicate presence or occurrence in, on, or near." THE MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 72 (10th ed. 1993).

In the context of the Penal Code, this case, according to the majority, turns upon whether the "actor is outside the habitation." Balderdash.

The majority's definition is only one of many that could be used by a jury in evaluating the evidence. Because the term is not defined in the statute the jury is not limited to the definition the majority would like to use. The jury could use any common usage of the term.

I need go no further than the first definition in the general dictionary cited above to know that the majority's reading is entirely too restrictive. If "at" means "in or near" then I have no problem determining that the jury was within its prerogative to determine that Reed fired the gun "at" the house. Maybe an English linguistic expert could analyze it in such a manner as to construct the argument that such a use is improper, but the average juror in Texas is not, no disrespect intended, a linguistic expert.

Let us examine the issue from a different perspective, literally. Should the result in this appeal be different if the struggle occurred on the porch or in the yard rather than in the hall? I think not. But under the majority's analysis, if they struggled on the porch or in the yard, then the conviction stands; but if the same struggle occurs in the hall, it does not? That seems terribly illogical.

Let us examine the issue from yet another perspective, literally. The perspective is from that of the house. Oh, if only walls could talk. If the house could tell us how it felt about it I have no doubt that it would say, "Let us not forget that the bullet came to rest in my wall." There is no indication that it came to rest there as a result of a ricochet. Because bullets tend to leave the gun from which they were fired in a straight line, the location of where the bullet stopped is all but conclusive evidence that the gun was pointed "at" the wall, a part of the house, when it was discharged. So from the perspective of the habitation: "Not only did Reed shoot at me, he hit me!"

Based upon the foregoing, I conclude that the jury was well within the bounds of being rational when it determined, based upon the evidence, that Reed discharged "a firearm at or in the direction of a habitation." From the jury's perspective, Reed could hardly have missed.

I dissent.

TOM GRAY Chief Justice

Dissenting opinion delivered and filed December 20, 2006

Artist/Band: Chesnutt, Mark
Lyrics for Song: Bubba Shot The Jukebox
Lyrics for Album: Longnecks And Short Stories

We were all down at Margie's bar
Telling stories if we had one
Someone fired the old jukebox up
The song sure was a sad one
A teardrop rolled down Bubba's nose
From the pain the song was inflicting
And all at once he jumped to his feet
Just like somebody kicked him

Bubba shot the juke box last night
Said it played a sad song it made him cry
Went to his truck and got a forty five
Bubba shot the juke box last night

Bubba ain't never been accused of being mentality stable
So we did not draw an easy breathe
Until he laid that colt on the table
He hung his head till the cops showed up
They dragged him right out of Margie's
Told him "Don't play dumb with us, son"
"Know damn well what the charge is."

Bubba shot the juke box last night
Said it played a sad song it made him cry
Went to his truck and got a forty five
Bubba shot the juke box last night

Well, the sheriff arrived with his bathrobe on
The confrontation was a tense one
Shook his head said, "Bubba Boy,"
"You was always a dense one."
Reckless discharge of a gun
That's what the officers are claiming
Bubba hollered, "Reckless! Hell!"
"I shot just where I was aiming."

Bubba shot the juke box last night
Said it played a sad song it made him cry
Went to his truck and got a forty five
Bubba shot the juke box stopped it with one shot
Bubba shot the jukebox last night
Well he could not tell right from wrong
Through the teardrops in his eyes
Beyond a shadow of a doubt
It was justifiable homicide
Bubba shot the juke box stopped it with one shot
Bubba shot the jukebox last night

Unfortunately, the decision of Justices Vance and Reyna in Wheat survived review in Austin despite the concerns of the CJ. State's PDR refused 10/18/06. But, as JS has pointed out, we owe Gray a lot for keeping some reins on the rest of the court.

Most lawyers put an asterisk beside a Waco court of appeals opinion. I wouldn't let the opinion stop me from prosecuting a case.

The Chief Justice is keeping an impressive list of the court's failures. Newton. Who is the real Republican on the 10th Court, Reyna or Gray?

Maybe CJ Gray's colleagues are looking to the 9th circuit as a way to stand out from the other Texas intermediate courts? If only!!!

The article below even made the How Appealing blog.


Sunday, June 10, 2007

By Tommy Witherspoon

Tribune-Herald staff writer

In judiciously charitable terms, call it a loss of collegiality.

Chief Justice Gray disagrees
The hostility that 10th Court of Appeals Chief Justice Tom Gray has shown toward his fellow justices has surprised some observers. Some examples:

�It is hard to imagine how the majority could make more errors in a single proceeding.�


�It is impossible for me to convey the level to which I am disappointed by my colleagues. ... Their action shows that they have no regard for the rules of appellate procedure, and, therefore, no respect for the rule of law.�


�If the majority is going to throw the rule book away, then they should tell the world so litigants, and I, for that matter, understand what we are doing.�



--------------------------------------------------------------------------------

From the desk of
Chief Justice Tom Gray
The following are examples of 10th Court of Appeals Chief Justice Tom Gray's colorful writing style, mostly taken from dissenting opinions:

"As a dog returns to its vomit, so a fool repeats his folly," Gray writes, quoting Proverbs 26:11.

"Dear City of Waco. Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any."

"Like a first-year law student, the majority leaps directly to the issue of the remedy. ... The majority's order is ill-conceived, poorly thought out and will be difficult for others to implement. It is a testament to a failure in the system."

"How far will the majority pervert the rules to help Carl Long? A long, long, very long way."

"What I do mind is the majority's schizophrenic application of the rules based upon factors which I cannot identify, determine, assess, or evaluate."

"If Texas was a dartboard, and Waco was the bull's eye, the court's opinion on the third issue hits Ardmore, Oklahoma."

"The majority's opinion glosses over two properly dispositive parts ... in order to publish its 36-page, mediocre law-review article on the merits ..."

"Wrong on the facts. Wrong on the law. Wrong on the result. Because of the timing of what the majority has done, I am unable to explain very much more than that."

"Maybe the majority has forgotten, if they ever knew, what it is like going to trial with $50,000,000 on the line."

"Nevermind the rules just play to win. And hate your neighbor for the shade of his skin. Skip a rope," Gray writes, quoting from the song "Skip a Rope." "I like the rules that apply to everyone. I think that is called equal protection. I do not like it when rules are ignored. I think that is called violating the rule of law. I am not very good at skipping rope."

"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 of law. "
To put it more bluntly, the 10th Court of Appeals, the three-judge intermediate appellate court based in Waco, has become a statewide punch line among legal circles because of the frequency with which it disagrees and the eroding tenor of those disagreements.

Chief Justice Tom Gray, a Republican, and Justice Bill Vance, a Democrat, don�t like each other. They do not speak, except for the occasional, forced �good morning.�

The relationship between Gray, 50, and Justice Felipe Reyna, who Gray likes to point out �was elected as a Republican,� is �strained,� using Gray�s term.

Those relationship difficulties used to simmer behind the scenes, rising to the surface from time to time in one of Gray�s colorful barbs from one of his many dissenting opinions.

However, in the past six months, Gray�s pen has turned more vitriolic and his jabs appear to be aimed squarely at Vance, 67, and Reyna, 61.

Some references are more veiled than others. However, in recent published dissenting opinions, Gray has used terms such as schizophrenic, irrational and unlawful to describe the other justices. He has compared their work to a first-year law student�s, said one opinion was like a �mediocre law-review article� and charged that they have no respect for the rule of law.

�I�m passionate about what I do and I write with passion because I believe in the points of law that I am making,� Gray said. �I do not view those statements as a jab to my colleagues. My analysis and comments are directed at the legal analysis expressed in the opinions to which I am responding.�

But Gray�s feelings for his colleagues also are spilling over into public events, such as at a March 10 Ronald Reagan Day celebration by the Somervell County Republican Party in Glen Rose. The 10th Court hears civil and criminal appeals from 18 Central Texas counties, including Somervell.

The local party leaders invited Gray to speak and asked Reyna to introduce him. After a glowing introduction, Reyna asked the 60 members of the audience to stand and welcome �my good friend, the honorable Chief Justice Tom Gray.�

As Gray took the podium, he started by thanking Reyna for referring to him as his good friend.

�But really, we have nothing in common,� Gray continued. �I have never been in his home. He has never been in my home, and whenever there is a disagreement on the court, he always sides with Bill Vance.�

The crowd stared in hushed disbelief, not knowing how to take the comment. Reyna and his wife, Cheryl, did.

Fuel for dissents

It is those disagreements, lack of collegiality and breakdown in communication between members of the court that have fueled Gray�s eye-popping number of dissents in the past few years.

In 2005, the 80 appellate judges on the state�s 14 intermediate appellate courts wrote a total of 226 dissenting opinions. Gray wrote 107 of them, or 47 percent. Last year, Gray wrote 49 dissenting opinions, 26 percent of the statewide total of 190. So far this year, Gray has written 58 dissenting opinions, or 48 percent of the statewide 120 written thus far.

From 2000 to 2003, Gray, elected to the court in 1999 and formerly from Navarro County, averaged 25 dissents a year. In those same years, Vance, a former Brazos County judge elected to the court in 1990, averaged seven dissenting opinions annually.

By contrast, in 1997, when Rex Davis was chief justice, the entire court, which included Vance and Justice Bob Cummings, wrote 7 dissenting opinions. The year before, that same court issued six dissenting opinions.

In 1994, when Bob Thomas was chief justice, he, Vance and Cummings wrote a total of three dissenting opinions. The year before, Vance wrote five, Thomas wrote two, and Cummings wrote none.

Davis, one of only three living former members of the court, declined comment about the current operations of the court.

While dissenting opinions are not uncommon on appeals courts, it�s the sheer volume of those dissents and the tone with which Gray writes them that causes judges and lawyers gathered at statewide judicial conferences to start snickering at the mere mention of the 10th Court.

�As a dog returns to its vomit, so a fool repeats his folly,� Gray began a recent dissenting opinion, quoting Proverbs 26:11 and referring to a case that was returned to the court a second time by the Texas Court of Criminal Appeals. That one really grabbed the attention of those at a recent conference.

For their part, Vance and Reyna have chosen to respond by inserting footnotes into two recent majority opinions to express their views about the chief justice.

�I stand by what the majority opinion in the Kelly and Pena cases said,� Vance said. �The statements that were included in those dissents were unnecessary, they contributed nothing to the legal issue before us, they were highly unprofessional, they reflect poorly on the judge who made them and they undermine the integrity of the judicial system.�

Reyna declined comment, deferring questions about the situation to those footnotes, which also included a quote from U.S. Supreme Court Justice Anthony M. Kennedy.

�The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse,� Kennedy wrote. �Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.�

Quoting from movies

Gray, who also has quoted from movies like Cool Hand Luke, My Cousin Vinny, Men in Black and Pretty Woman, and quoted from songs like �Skip a Rope,� said he tries to write in an interesting style and to make his points clearly so the general public at large, not just legal eagles, can understand.

�What difference does it make if we do not like each other or do not get along in our personal lives, because what we are elected to do is decide cases. If we get that right, it doesn�t matter. And that is what I am focused on � getting it right. Unfortunately, the high courts have told the majority of this court on many occasions that we did not get it right.�

Gray said the 10th Court was reversed more than 40 times in 2006 and he wrote dissenting opinions in 95 percent of those cases. That doesn�t mean that the court sided with him or reversed cases for points on which he dissented in all of those cases, he said.

�The cases with novel or close legal questions are the ones most likely to draw a dissenting opinion,� Vance said. �They are also the ones most likely to be appealed to a higher court. That�s why the higher courts exist. So, if a judge dissents in every one of those cases, he can boast that he was right when the higher court reverses the lower court�s decision. But nothing will be said about all the times the dissenting views do not prevail in the higher court.�

An attorney who follows the court closely said the higher courts agreed with Gray no more than 25 percent of the time last year in cases in which he wrote a dissent.

�I don�t like the infamy of being on the most reversed court in the state of Texas, but I can�t do anything other than to give them the opportunity to get to the right result and point that out in a dissenting opinion,� Gray said.

�My role here is not to go along or to be their friend or to be their confidante. It is to decide cases, disputes brought to us by litigants. In the sense that that may not be the good ol� boy system, I don�t view it as my role to foster that system either as chief or as a judge,� Gray said.

�It�s personal�

Brian Wice, one of Houston�s top criminal defense attorneys who specializes in appellate and post-conviction matters, has handled more than 300 appeals, including 13 death penalty cases. Included in the more than 30 cases he has successfully reversed was the Rev. Jim Bakker�s 45-year prison term in 1991.

He said he has watched the workings of the 10th Court in amazement the past few years.

�I don�t understand why Tom Gray continues to go to work if he hates these guys as much as his opinions suggest,� Wice said. �It is not business. It�s personal with him. To use his words, any first-year law student knows the canons of ethics preclude Bill Vance and Felipe Reyna from defending themselves.�

Wice disputes Gray�s contention that there are no intended personal affronts toward his fellow justices in the body of his dissents.

�Those are personal attacks. If you read some of them, Justice Gray believes Justice Vance and Justice Reyna are lawbreakers,� Wice said. �Do I need to bring in Ken Starr to answer the question, is it personal? He is calling them lawbreakers. This notion of judicial collegiality, it is Rule One in the playbook. It is as important as the 2,100 points you get on the SAT for spelling your name right.�

Wice said he continues to be surprised by the number and tone of dissenting opinions written by Gray. He says when judges attack their colleagues, it �totally devalues the currency of respect for the judiciary.�

�Judge Gray can�t possibly think that he has a monopoly on wisdom,� Wice said. �When you recruit judges from the human race, we are going to have human error. But nobody, particularly Judge Vance and Judge Reyna, could have possibly been wrong that many times.

�Is he entertaining in his opinions? Yes, but so is the village idiot. I don�t think you get style points for entertainment in your opinions. They just want the court to get it right,� he said.

�Drag on output�

A Waco attorney who appears regularly before the court and who asked for anonymity because he feared reprisals said there is no question that Gray has gotten personal in his references to his fellow judges.

�The problem is the drag on the output of the court, because every time you have to dissent, three, four times a week, you cannot have the output of an appellate court,� the attorney said. �These courts are meat grinders because they receive all the criminal and civil appeals of the district courts. They are the workhorses of the state. If they are not putting out a product, then the system bogs down, and the truth of it all is, that is exactly what is happening.�

He said Gray�s judicial approach is �far, far different� from any other appeals judge he has known.

�I�m not saying the guy doesn�t have a point from time to time. He is certainly a bright guy and a scholar at times on the issues that he is right on. The problem is you dilute the issues that have merit by slogging through every minute issue and airing your dirty laundry out for all to see. It is out there forever. They are in bound volumes. He just has to tone the rancor down. I just don�t know why his need to dissent is there.�

Communication�s role

Earl Dudley, a professor at the University of Virginia Law School graduate program for judges, said it is important for appeals courts judges to maintain a high level of communication so that they can discuss cases and come to a reasoned decision.

�It seems to me that if a judge gets to the point where his or her comments and opinions are undermining the collegiality and the ability of the court to reason together collectively, you have a problem,� Dudley said. �But on the other hand, judges are people in public life and they know they have to have thick skins. But if you get to the point where the court is not operating as a deliberate, collective body, you�ve got problems.�

Dudley said the number of dissenting opinions written each year is increasing.

�If you look back to the turn of the 20th century, the Supreme Court of the United States had more unanimous opinions than it does today,� he said. �I think that reflects society�s increasing fragmentation in terms of how they approach and how they see legal issues.�

George Dix, a law professor at the University of Texas in Austin, said there is a big difference between respectful dissent and the kind of language that demeans judges and, in turn, the very issues before the court.

�It is unseemly and harmful to the court in general for there to be that kind of exchange that frequently,� said Dix, who is familiar with the work of the 10th Court. �It detracts from the work. Certainly, you read the opinions and you come away maybe not remembering what was held or what was discussed, but you do remember the personal animosity. It does detract from what otherwise might be good, professional work.�

twitherspoon@wacotrib.com

[This message was edited by JAS on 06-14-07 at .]

Shouldn't the article include some statistical evidence that Justice Gray is RIGHT most of the time, as evidenced by the opinions reversing the court?

JB. Only if the article was meant to be fair.

It would certainly put another spin on it to note for how long Judge Gray put up with having his conclusions ignored in favor of wrong decisions before the tone of his dissents started to get "less collegial." I'm sure that my sarcastic streak would become more pronounced if I felt like nobody was listening to me despite my being right more often than my colleagues.

I knew Tommy Witherspoon and he had most of the courthouse beat a long time ago and still does. His reputation for being fair was good while I worked there. The paper leans to the left on editorials, but the courthouse reporting is pretty good.

I'm not sure a "fair" article quotes anonymous attorneys who spit out unsubstantiated statistics like "the higher courts agreed with Gray no more than 25 percent of the time". A "fair" journalist would want to know the source of that statistic and would document that source.

Of course, a 25% reversal rate for a prosecutor would indicate a serious problem. A 25% rate of wrongful conviction would be appalling. But, gee, if an appellate court gets it wrong only 25% of the time when reviewed by a higher court, doesn't that mean a fantastic success rate of 75%?

This is the hidden agenda of the media. The decision was made before the article was written: Gray is rude and must be stopped.

The lead could just have easily have been: A liberal judge rules without any legal bounds and is being called on the carpet by a strict constructionist.

quote:

---

It is important for appeals courts judges to maintain a high level of communication so that they can discuss cases and come to a reasoned decision. If a judge gets to the point where his or her comments and opinions are undermining the collegiality and the ability of the court to reason together collectively, you have a problem. Where the court is not operating as a deliberate, collective body, you've got problems.

---

Is this really true? If the judges are destined to disagree with each other, will their ability to better communicate that disagreement result in any different outcome. I do not think any of the three judges involved are merely spatting between themselves and taking positions just to be oppositional. They genuinely feel differently about the law. Gray is frustrated because what seems clear to him (and apparently quite often to the judges on higher courts) is not grasped by his "colleagues." But, just because someone may be a poor lawyer (or judge) does not necessarily call for vitriol. It would be simpler to just say "I disagree with this proposition because . . ." and leave it at that.

I also see no problem with responding to someone's public claim that they are my good friend with a true description of the relationship. One of my favorite TV shows is "Keeping Up Appearances." The problem in Glen Rose arose from the choice of who would introduce Gray. They should have known better.

Having previously practiced in this jurisdiction, and seen the work up close, I can feel Gray's pain, as he too often finds himself the lone voice of reason on this court.

One of the things I know we all strive to do when presenting a brief is to be painstakingly accurate with our summary of the facts, citing to the record often to make it clear we are being accurate. Credibility at stake, and all.

How frustrating I found it then, when I read an opinion written by Reyna which upheld my case but absolutely butchered significant facts. It made me nuts to have it happen that one time, I can't imagine having to live with it daily.

Pray for Gray.