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An appellate court issued an opinion in which it stated that the State's reliance upon two cases was "misguided" and "incorrect." The issue was one of legal sufficiency; specifically, whether the State corroborated the defendant's extra-judicial confession. The problem is, those cases were never cited or otherwise utilized by the State in its brief to the court.
The cases in question had been cited by the trial prosecutor to the trial court. However, I did not think those cases supported the State's position, and therefore, did not rely upon those cases on appeal. In fact, the position I took on appeal was not one advanced by the trial prosecutor. The appellate opinion makes no reference to the fact that the cases had not been cited on appeal, it simply discuses the State's "misguided" and "incorrect" reliance upon those cases. Anyone reading the opinion would necessarily believe that the cases had in fact been utilized by the State on appeal.
Has anyone else been criticized at the appellate level for cases not even cited in the State's brief? It's the first for me.
As an aside, one of the three counts of aggravated sexual assault was affirmed. Since the 23 year sentences were concurrent, the appellant isn't going anywhere anytime soon.
Posts: 9 | Registered: October 26, 2001Reply With QuoteReport This Post
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Did the COA fail to address an issue you raised that was necessary to final disposition of the appeal? Take a look at TRAP 47.1
"The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."
Posts: 72 | Location: San Antonio, Texas, USA | Registered: December 13, 2004Reply With QuoteReport This Post
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