Another case where Gray got it right in his dissent? Read the opinion on remand.

Now, read Gray's dissent in the original opinion:

Let me see if I've got this straight.

A man enters a house after he has been told to leave. When the woman in the house confronts him in her kitchen she screams, telling him to get out. Instead of leaving, he drops his pants revealing his erect penis. The woman, being in the kitchen, grabs a knife (good for her). Rather than flee, the intruder grabs the end of the knife. The woman twists it in the intruder's hand, he releases it, pulls up his pants and leaves.

And from these facts a person is not rationally justified in finding beyond a reasonable doubt that the intruder entered the home with the intent to sexually assault the woman? I guess my response to the majority opinion - "You have got to be kidding" - makes me irrational, along with 12 jurors and the trial court.

When I line up the same cases the majority does, I see the following:

1. Use of force against victim - grabbed the knife.

2. Failure to immediately retreat even after challenged - unlike Walls.

3. Exposed himself - unlike Baldwin or Hays.


I dissent.

[And to add insult to the original injury of reversing the case, the Waco court of appeals votes not to publish the affirmance, even though the original reversal and CCA opinion reversing the CA was published. Shameless.]

10th Court Chief Justice Repeatedly Blasts Colleagues in Dissent
By Mary Alice Robbins
Texas Lawyer
Monday, June 25, 2007


When 10th Court of Appeals Chief Justice Tom Gray disagrees with his colleagues about a case, he's apt to get personal, using his dissenting opinions to skewer the other two justices on the Waco-based court.

In his June 13 dissenting opinion in Newton v. State, Gray wrote that Justices Felipe Reyna and Bill Vance have "developed a pattern of processing the same proceeding multiple times." Gray noted in the dissent the number of cases Reyna and Vance have pending. [See the court's opinion and the dissent.]

According to the dissent, the statewide average number of cases pending per intermediate appellate court justice was 99.2 cases. In comparison, Reyna had 148 pending cases at the end of May, 43 more than Vance, the justice on the 10th Court with the next most pending cases, Gray wrote.

Gray says in an interview that he had 95 of the 348 cases pending at the 10th Court at the end of May.

Asked whether he considered these comments to be personal attacks on his colleagues, Gray says, "Generally, I do not make those kinds of statements without it being connected to the legal analysis."

Reyna declines comment, but Vance says he takes personally the statements that Gray makes in his opinions. "It's difficult to think anybody would not take it personally," Vance says.

"I do not characterize them as personal attacks," Gray says of the comments he has made in opinions. "They are intended to be directed or responsive to the legal issues and my legal analysis. If they [his colleagues] take it personally, it is not intended."

Vance says Gray's comments in opinions have generated negative publicity about the 10th Court. "I think the adverse publicity this court has been getting is regrettable for the judiciary as a whole," he says.

Gray wrote in the dissenting opinion in Newton that the 10th Court is the most reversed court in the state. As noted in Gray's dissent, the Texas Supreme Court and Court of Criminal Appeals have reversed eight decisions by the 10th Court in the current calendar year as of June 13.

The state's Office of Court Administration (OCA) does not have statistics to verify that specific claim. But Angela Garcia, judicial information manager for the OCA, says the mid-level appellate court with the highest percentage of petitions for review granted by the Supreme Court in fiscal year 2006 was Beaumont's 9th Court of Appeals. Garcia says the Supreme Court granted review of 26.1 percent of the petitions filed from the 9th Court and reversed in five cases.

Garcia says the Supreme Court granted 25.5 percent of the petitions filed from the 10th Court, which had the second highest percentage of petitions for review granted in fiscal 2006. The Supreme Court reversed six of the 10th Court's cases, according to OCA statistics.

In the Court of Criminal Appeals, the 10th Court had the highest percentage of petitions for discretionary review (PDRs) granted last year, with 31.9 percent of those filed granted, Garcia says. However, she says the OCA does not have statistics on the total number of cases for each court of appeals that resulted in reversals at the CCA.

Vance says the eight cases that the higher courts have reversed in 2007 make up only 4.5 percent of the 193 cases filed in the 10th Court so far this year.

The 10th Court's rate of reversals by the Supreme Court and CCA is a recurring theme for Gray in his opinions. On May 2, Gray ended his dissenting opinion in City of Waco v. Kelley, an appeal of a civil service hearing examiner's judgment in the suspension of an assistant police chief, with a section titled "Epilogue," written in the form of a letter to the city. [See the court's opinion.]

"Sorry to have 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 than any appellate court in Texas," Gray wrote.

The reason for Gray's criticism in Newton is the majority's decision to reverse Bobby Blake Newton's conviction for indecency with a child and aggravated sexual assault by contact in a case involving one of Newton's stepdaughters. Reyna and Vance reversed the 272nd District Court's judgment in Newton after reconsidering the 10th Court's earlier unanimous decision to affirm Newton's conviction. Gray was the author of the original opinion in Newton, which the 10th Court issued on March 28.

The majority's decision to reverse the conviction is based on Newton's argument in his petition for review that the trial court erred in admitting the state's evidence of an approximately 25-year-old alleged extraneous offense � the evidence was testimony by Newton's former stepdaughter that he had sexually abused her � to rebut Newton's defense that his younger stepdaughter had fabricated the allegations that led to his conviction.

Acting under Texas Rule of Appellate Procedure 50, the majority issued its new opinion within 30 days after Newton filed his PDR. Rule 50 allows an intermediate appellate court to act on a PDR within the 30-day period set by the rule; if the court doesn't take action, it must send the petition to the Court of Criminal Appeals. Gray wrote in the dissenting opinion that the 30-day deadline provided too little time for the state to file additional briefing or for him to conduct additional research.

"The majority must have something larger at work here than just getting to what the majority believes is the correct judgment, because there is no issue raised in the petition for discretionary review that had not already been presented to us," Gray wrote.

Vance declines comment on Gray's statement that Newton's PDR did not raise a new issue, because the case is still pending.

Charles "Chuck" Mallin, appellate chief in the Tarrant County District Attorney's Office, says he sees appeals courts issue new opinions under Rule 50 fairly often. "I've seen it a lot," Mallin says. "I think it's an abuse, but it's allowed. I think the rule has to be changed."

However, Jeff Van Horn, the state's prosecuting attorney, says courts don't issue Rule 50 opinions that often. "The purpose of the rule is to allow a court 30 days to reconsider their opinion," Van Horn says.

Van Horn says courts also use Rule 50 to issue a new opinion that reinforces their holding in the original opinion.

The June 13 dissenting opinion was Gray's second criticism of his 10th Court colleagues in Newton. In a May 9 dissenting opinion, Gray lambasted Reyna and Vance for granting Newton's motion to publish the 10th Court's original memorandum opinion, contending that the CCA's granting of an extension of time for Newton to file his PDR removed the 10th Court's authority over the case.

"Their action shows they have no respect for the rules of appellate procedure, and therefore, no respect for the rule of law," Gray wrote in regard to Reyna and Vance in his May 9 dissent.

Houston solo Brian Wice, Newton's attorney, contends that Gray was wrong in the original opinion in Newton. "What he takes the majority to task for is doing their job," Wice says of Gray.

Doug Howell, the Brazos County assistant district attorney who represents the state in Newton, says prosecutors agreed with the 10th Court's original opinion in the case and are reviewing the appeals court's second opinion to determine what their next move will be. "We haven't made any decisions," Howell says.

Gray, a Republican who has served on the 10th Court since 1999, has been taking jabs at Reyna, a Republican who has been on the court since 2004, and Vance, a Democrat who has been on the court since 1991, in opinions for the past several years. In October 2004, Gray criticized the two justices for holding in In Re: Ryan that Charles Larry Ryan was entitled to a writ of mandamus to compel the state to comply with the Interstate Agreement on Detainers Act (IADA). Ryan had sought dismissal of his case with prejudice.

"Like a first-year law student, the majority leaps to the issue of the remedy, without considering the prerequisite issues of whether Relator's [Ryan's] case "falls within the parameters' of the IADA or how Relator is "entitled' to relief," Gray wrote in the dissenting opinion in Ryan. [See "Divided They Sit: Opinions Expose Deep Rift at Waco's 10th Court," Texas Lawyer, Jan. 17, 2005, page 1.]

Independence

But Gray's opinions aren't likely to prompt scrutiny by any disciplinary agency. Cynthia Gray, director of the American Judicature Society's Center for Judicial Ethics, says judges generally do not face disciplinary proceedings for their statements in appellate opinions because of concerns about judicial independence.

"There has never been a case in which a judge has been disciplined for something he said in an appellate court opinion," Cynthia Gray says.

She says disciplinary action against a judge is not impossible, particularly if the judge uses vulgar, sexist, racist or biased terms in an opinion.

James Hall, former chairman of the State Commission on Judicial Conduct in Texas, says no one complained about statements a judge made in an opinion during the more than five years he served on the commission.

"In the time I served on the commission, I never saw anybody make a complaint like that," says Hall, a shareholder in San Antonio's Branton & Hall who left the commission in November 2005.

However, the Investigative Panel of the Florida Judicial Qualifications Commission has a case pending against First District Court of Appeal Judge Michael E. Allen of Tallahassee for statements Allen made in a concurring opinion in Wyon Dale Childers v. State of Florida. The Notice of Formal Charges in Inquiry Concerning a Judge 06-249 Re: Judge Michael E. Allen alleges that Allen questioned in an opinion a fellow judge's impartiality in deciding a case.

Brooke W. Kennerly, executive director of the Judicial Qualifications Commission, says the Allen case is the first in which the Florida commission has brought charges against a judge for statements in a written opinion. She declines further comment on the case.

On June 12, Allen filed a motion to dismiss the Notice of Formal Charges, arguing that the allegations fail to state a legally sufficient basis for initiating the charges against him.

"He certainly denies that he violated any code of conduct rule or Florida bar rule," says Bruce S. Rogow, an attorney representing Allen and the principal in Bruce S. Rogow PA in Fort Lauderdale, Fla.

The Childers bribery/kickback case is extremely complex and has a long history. Judge Allen, in my opinion, was probably justified in his concerns about Judge Kahn's participation in the case. I get the impression Judge Kahn just has a lot of influence with the Florida Judicial Qualifications Commission.

As far as I can tell, here is the writing that has Allen in trouble:

During his tenure as governor, Lawton Chiles appointed nine judges to this court. The very first of these appointments went to Fred Levin's 39 year-old law partner, Charles Kahn. It is certainly possible that neither Judge Kahn's senior law partner, Mr. Levin, nor Mr. Levin's well-placed friend, Senator Childers, exercised their reputed considerable influence with their friend, Governor Chiles, in seeking Judge Kahn's appointment to this court. It is even possible that Judge Kahn's relationship with the governor's friend, Mr. Levin, had nothing to do with the governor's decision to appoint Judge Kahn. But a member of the public familiar with the reported relationships between these persons, and also familiar with the realities of the political process, would not be considered unduly cynical to doubt these possibilities.

When Mr. Childers's appeal from his convictions in this case was assigned to a panel of this court, Judge Kahn was a member of that panel. Oral argument was heard by the panel on November 9, 2004, and it was apparent from Judge Kahn's persistent questioning of the assistant attorney general assigned to the appeal that Judge Kahn found merit in Mr. Childers's argument that he had been denied the opportunity to fully develop, through cross-examination, critical state witness Willie Junior's bias and motive to testify falsely. (A video of the oral argument can be viewed at this court's website.)

At the time of the oral argument, a reversal on the cross-examination issue would likely have resulted in a new trial for Mr. Childers, but subsequent developments revealed that reversal on the cross-examination issue might result in Mr. Childers not being required to further answer for the crimes for which he had been convicted. News reports contained in the Pensacola News Journal revealed that Willie Junior disappeared on the evening of November 9, 2004, and that his body was found in the crawl space beneath a house in Pensacola a month later, dead from ingestion of a lethal quantity of antifreeze. Mr. Junior's death seemingly added additional significance to Mr. Childers's appeal because Mr. Junior would be unavailable to testify in a new trial. In light of the recent decision of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), it appears unlikely that evidence of Mr. Junior's former trial testimony would be admissible in a new trial following a holding by this court that the defense had not been afforded an adequate opportunity to cross-examine Mr. Junior. And in light of the importance of Mr. Junior's testimony to the state's case, it also appears unlikely that the state would be able to prove its case upon a retrial without this testimony. (Mr. Junior's death obviously had no impact upon this court's en banc decision. His death and its likely legal implications are recounted here only to reflect the resulting heightened importance of this court's decision, from the perspective of Mr. Childers and his friends.)

In June 2005, a divided panel reached its proposed decision in this case. The majority opinion, authored by Judge Kahn, proposed to reverse Mr. Childers's convictions based upon the argument that Mr. Childers had been denied an adequate opportunity to cross-examine Mr. Junior. A dissenting judge disagreed, concluding that the cross-examination issue should be decided in accordance with the reasoning later reflected in the en banc majority opinion. Accordingly, if this panel decision had stood, Mr. Childers's convictions would have been reversed on a ground making retrial unlikely--thus likely extricating Mr. Childers from what the June 23, 2002, St. Petersburg Times article called "the most serious predicament of his political career." And the deciding vote on this decision would have been cast by Fred Levin's former law partner.

Less suspicious members of the public familiar with the information contained in the articles quoted above and also familiar with Judge Kahn's former association with Mr. Levin and his firm would have found it inappropriate for Judge Kahn to have participated in the case. And more suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers, thus allowing them, once again, to "snooker the bastards."

Before the proposed panel decision was filed, another judge of this court moved for en banc consideration of this case. I cast my vote in favor of the motion.

One of my mentors was Circuit Judge Ben Willis, who served for many years as the chief judge of the Second Judicial Circuit. I was honored to have him speak at my investiture as a judge of this court many years ago. Judge Willis's remarks included a story with a concluding observation. He told the audience that he had himself been invested as a circuit judge on the very day this court came into existence, July 1, 1957, and that after Governor Collins spoke at the investiture of the first judges of this court he then walked over to the Leon County Courthouse to speak at Judge Willis's investiture. Judge Willis explained that it was especially meaningful to him that his judicial service and that of this court's first judges had begun on the same day, because he so greatly admired this court. After naming and praising the work and integrity of a number of this court's former judges he particularly admired, he concluded with this observation: "I don't know of this court ever having been the subject of a breath of scandal."

Although Judge Willis's comments might seem unremarkable to some, they have special meaning for me. I was honored to become a member of a court respected by the public for its integrity, honor, and impartiality, and possessed of a record unblemished by public suspicion. This court is still deserving of this reputation. It is comprised of dedicated judges who, from my perspective, work very hard to impartially decide the cases assigned to them in accordance with the requirements of law. But this reputation will not survive if we are oblivious to public perceptions.

The law sometimes requires us to decide cases in ways that displease members of the public. There is nothing that we can do about that. It is an occupational hazard required by the oath we take. But we should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions. Yet, I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration of this case.

If the public's perception of Judge Kahn's commitment to impartiality were the only concern here, I might not have voted for en banc consideration of this case. But far more is involved. In light of the composition of the original panel, the proposed panel decision would have been a reflection upon this entire court and would have provoked far more than a mere "breath of scandal." Because I dearly value the respect this court rightly deserves for the integrity of its judges and for the impartiality of its decisions, I cast my vote for consideration of this case by the full court, not to affect the outcome of the ultimate decision but to see that the ultimate decision of this court is made by judges unblemished by public suspicion. The threat this case presented to the reputation of this court, in my judgment, made it a case of exceptional importance.

An editorial about the Waco Court of Appeals appeared in a Bryan newspaper recently. Click here to read it. You know things are getting bad when a reporter notices a court of appeals.

Doesn't it take two to tango? If the judges no longer meet together to discuss their cases, then I guess that means the meetings were nonproductive. Someone was too brazen and someone else was unwilling to listen, but neither was totally right nor overly mature. If the editorial pointed out even one example where Gray's dissenting opinion was not based on the law but rather was merely a way to spew his dislike for Vance or Reyna, then that would truly be cause for concern. The Eagle seems to assume the wording of Gray's opinions is of greater importance than the logic. If his colleagues are consistently wrong on the law, then perhaps the dissenting justice should be praised rather than told he should voluntarily leave. It seems reasonable to me to say that no court should have to change or rewrite its opinions very often.

I knew as soon as I read the opinions that Vance got it wrong in Keeter, 43 S.W.3d 667 and Reyna wrong in Bryant, 135 S.W.3d 130 and Cocke, 170 S.W.3d 747. That is what concerns me more about the Tenth Court. Justice would not have been served by re-trials in any of those cases and each was contrary to the law.

The editorial writer clearly assumed that since the vote is 2-to-1 on Gray's dissents, that Gray must be wrong. It is equally clear that he has not read any of them, since he challenges whether they are based on the law or mere personal dislike for the other judges, but anyone who reads them could judge that for themselves. In addition, he implies that Justice Gray's assertion that the court is the most reversed court in the state is false, since he says Gray cannot provide statistics to back it up. As a journalist, you'd think he could easily figure out how to come by those statistics himself, instead of making irresponsible criticisms of a statement that could easily be shown to be true or not with a little research. It is not the job of the justice to provide the statistics to the journalist, but I think it is the job of the journalist to provide those facts and sources to us if he is going to write about them.

This editorial is a clearly biased and poorly informed view of the situation.

The following letter was sent to the Texas Supreme Court after a litigant became tired of the back and forth bickering by the Waco court of appeals judges:

FULBRIGHT & JAWORSKI L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP
2200 ROSS AVENUE, SUITE 2800
DALLAS, TEXAS 75201-2784
WWW.FULBRIGHT.COM

BEN TAYLOR
PARTNER

November 15, 2007

Blake Hawthorne, Clerk
Supreme Court of Texas
P.O. Box 12248
Austin, Texas 78711

Re: Cause No. 05-1023 in the Supreme Court of Texas;
Montgomery County, Texas vs. David Park

Dear Mr. Hawthorne:

Please receive the original and twelve copies this letter as a supplemental submission on behalf of amici curiae Zachry Construction Corporation and H.B. Zachry Company (hereafter �the Zachry defendants�). Please distribute the copies of this letter to the members of the Court for consideration.

Yesterday, the Zachry defendants again lost on motion for rehearing. Justice Vance�s opinion on rehearing for the majority dated November 14, 2007, and Chief Justice Gray�s supplemental special note filed November 14, 2007, are accessible on the Internet . . .

http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8623

http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8624

and copies are attached to this letter for the Justices� consideration and convenience.

These new opinions only magnify concerns that litigants are not receiving appellate due process due to internal disagreements among the Honorable members of the Tenth Court of Appeals. The Zachry defendants again urge this Court not only to address the merits of this dispute, but also to provide some helpful guidance that may protect litigants� rights to appropriate appellate process in all fourteen of our Texas state courts of appeals.

Certificate of Service

By my signature below, I certify that copies of this letter (with accompanying attachments) have been mailed today by first-class United States mail to petitioner�s and respondent�s counsel, properly posted an deliverable as indicated below.

Ben Taylor (SBOT #19684500)
counsel in this Court for amici curiae
Zachry Construction Corporation
and H.B. Zachry Company

Blimey!

For the unitiated (an explanation from an American-English dictionary--of sorts):


blimey expl a nice mild expletive, in terms of rudeness on a par with "wow" or "my goodness". It was originally part of the phrase "cor blimey", which was likely a contraction of "god blind me", which was in turn an abbreviated version of "may god blind me if it is not so". There has been little evidence of god blinding users of the word, whether what they were saying was true or not. The original phrase "cor blimey" is still used but rarely.

JAS

As a former briefing attorney for a Texas Court of Appeals, I find these opinions deeply disturbing. This court is a different planet compared to the collegial environment where I began my practice.

Does the Supreme Court slap down Waco as often as does the Court of Criminal Appeals?

When judges start putting quotes from dueling e-mails into their opinions, it may be time to call in the Texas Rangers.

Yep, someone needs to step in. The integrity of the judiciary is at stake. After all, we don't want to adopt Californian justice in Texas.

JAS

[See CJ Gray's note at the end. Of course, the CJ is absolutely correct. The opinion on the writ is also worth reading. In fact, it is interesting to scan everything issued by this court.]

IN THE

TENTH COURT OF APPEALS



No. 10-06-00335-CR


John Dee Gill, Jr.,

Appellant

v.



The State of Texas,

Appellee









From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-995-C

MEMORANDUM Opinion

A jury convicted John Dee Gill, Jr. of possession of cocaine with intent to deliver and sentenced him to forty years in prison. On appeal, Gill argues that: (1) the trial court erred by not sua sponte including a limiting instruction on extraneous offenses in the guilt-innocence charge; and (2) trial counsel rendered ineffective assistance. We affirm.


LIMITING INSTRUCTION ON EXTRANEOUS OFFENSES


In his first issue, Gill argues that the trial court had a sua sponte duty to include a limiting instruction on extraneous offense evidence in the guilt-innocence charge.

The Court of Criminal Appeals recently rejected the position that a trial court has a sua sponte duty to include a limiting instruction on extraneous offenses:

[A] limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted. When the defendant has properly requested a limiting instruction in the jury charge, the trial court must also include an instruction on the State�s burden of proof at that time.

Delgado v. State, No. PD-0203-07, 2007 Tex. Crim. App. Lexis 1235, at *16-17 (Tex. Crim. App. Sept. 26, 2007).

Gill did not object to the complained of evidence, request a limiting instruction when the evidence was offered, or request a limiting instruction in the jury charge. Accordingly, even if a limiting instruction would have been proper, the trial court did not err by failing to include a limiting instruction in the guilt-innocence charge. See id. at *27. We overrule Gill�s first issue.

INEFFECTIVE ASSISTANCE

In his second issue, Gill argues that his trial counsel rendered ineffective assistance by failing to request a limiting instruction on extraneous offenses.

To prove ineffective assistance, an appellant must show that: (1) counsel�s performance was deficient; and (2) the defense was prejudiced by counsel�s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). There is �a strong presumption that counsel�s conduct fell within a wide range of reasonable representation.� Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). �[A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.� Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Gill did not file a motion for new trial alleging ineffective assistance. The record is silent as to trial counsel�s reasons for not requesting a limiting instruction. It is possible that trial counsel did not request a limiting instruction in order to avoid drawing further attention to the extraneous offense evidence. See Rodriguez v. State, 974 S.W.2d 364, 372 (Tex. App.�Amarillo 1998, pet. ref�d) (counsel may have chosen not to request a limiting instruction �because he did not want to bring further attention to the evidence�; see also Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.�Beaumont 1996, pet. ref�d) (failure to request limiting instruction may have been �trial strategy� to avoid �draw[ing] further attention to the extraneous offenses�. However, we are not permitted to speculate as to trial counsel�s reasons for failing to request a limiting instruction on extraneous offenses. See McNeil v. State, 174 S.W.3d 758, 760 (Tex. App.�Waco 2005, no pet.); see also Bone, 77 S.W.3d at 835; Thompson, 9 S.W.3d at 814.

Absent a record revealing trial counsel�s strategy or motivation, Gill has not defeated the strong presumption that trial counsel�s actions fell within the wide range of reasonable professional assistance. See McNeil, 174 S.W.3d at 760 (citing Thompson, 9 S.W.3d at 814). Because Gill�s ineffective assistance claim is better raised through an application for a writ of habeas corpus, we overrule his second issue. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Bone, 77 S.W.3d at 837 n.30.

Having overruled Gill�s two issues, we affirm the trial court�s judgment.


FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment with a note. �Contrary to the last, and unnecessary, sentence in the opinion, we are not overruling the issue because an ineffective assistance of counsel claim is better raised through an application for writ of habeas corpus. That sentence is the majority�s effort to tell the defendant what to do next. We are overruling the issue because the defendant has met neither prong necessary to sustain an ineffective assistance of counsel point of error.�

Affirmed

Opinion delivered and filed November 28, 2007

Do not publish

[CRPM]

JAS

Oh to be a fly on the wall at their office Christmas party.

Try practicing in Waco's district. Planning and anticipating legal maneuvers that will ultimately be reviewed by that court is a dicey proposition, to say the least. There's the law. And then there's the Waco court!

Check out the latest "note" from CJ Gray in dissent by clicking here.

Looks like Chief Justice Gray may have gone too far in taking his sharp words outside the arena of an appellate opinion. Details.

As part of the findings:

In March 2007, Justice Felipe Reyna introduced Justice Gray as the keynote speaker at a fundraiser for the Republican Club of Somervel County in Glen Rose, Texas. At the conclusion of his introduction to the approximately 60 Republicans attending the fundraiser, Justice Reyna told the group, "Please join me in welcoming my good friend, Chief Justice Tom Gray," or words to that effect. Justice Gray began his remarks to the audience by thanking Justice Reyna for the introduction, but went on to state, "Really, we are not friends. He's never been in my home. I've never been in his home. And furthermore, every time there's a close vote on the Court, he always votes with Bill Vance," or words to that effect.

Incidentally, Judge Vance is no longer on the Waco Court of Appeals. Beginning January 1, Judge Rex Davis replaced him.

[This message was edited by JB on 01-18-09 at .]

While the voters will know about this action against Chief Justice Gray, will they know how many times Justice Reyna and Justice Vance have been reversed by the Court of Criminal Appeals, especially when Gray dissented? Don't agree with his actions -- but shouldn't the public be voting for justices who know the law and don't try to rewrite it?

It would sure seem that persistent failure to follow the law should be some sort of negative for a judge. Gray has perhaps lost his cool in pointing out that negative to the public. Deep breath. Now, back to work.

John, the interesting thing is that it is questionable whether Gray was engaging in judicial conduct or was dealing with others in his official capacity during his appearance at the Somervell County Republican Party event. While his comments were viewed at the time as being in poor taste, did they really even come close to violating Canons 2B or 3B(4) of the Code of Judicial Conduct? Maybe the Commission just recites findings of fact 2-10 as evidence of the acrimony/discord between Gray and his colleagues that "needed to be examined and addressed," because it had spilled over to the daily operations of the court. In any event, acerbic statements in court opinions (which are much more widely disseminated and clearly emanate from judicial capacity) seem more deplorable to me than what someone says in response to a false statement at a political association.

Vance continues to sit as a senior judge on the court. If Gray's actionable conduct merited nothing more than an admonition, it hardly constitutes a reason to resign four years before the end of one's term. Gray did not even draw an opponent last time around.

It is important read the actual findings (click here). The Commission on Judicial Conduct was careful to say that their public admonition was NOT based on his sharp words as contained in his published dissents. Rather, it was based on his words and conduct in public and within the office and staff of the court.

I suppose Chief Justice Gray could challenge the admonition on the grounds that his conduct is protected by his First Amendment right to free speech and his political status as an elected official. The one issue that would likely not be protected by such defenses is the incidents involving Justice Gray going into the offices of Justices Reyna and Vance. From the findings, it appears he did so without permission. That's not good.

What Justice Gray said, though, is true. Justice Reyna had voted consistently with Justice Vance. Without that second vote, Justice Vance could not have been wrong and reversed so frequently by the Court of Criminal Appeals.

By the way, the Commission opinion mentions that discussion of the Waco Court of Appeals' problems had reached "internet blogs." Hey, that's us.