Just noticed the Texas Lawyer article claiming that the Texas Supreme Court issued just 67 opinions in its last term? It sure makes me appreciate the Court of Criminal Appeals.

The article says the Court of Criminal Appeals did 400 opinions. People once talked about abolishing the Court of Criminal Appeals and rolling its function into the Supreme Court. Maybe it's time to consider the opposite solution.

Having read a number of the Texas Supreme Court opinions issued last term, I can honestly say that their low number is not due to an increase in quality over quantity. Respectfully, your honors . . .

The real work of the Court of Criminal Appeals is disguised in what they decide not to do.

Over 6,000 postconviction writs get read and (for the most part) denied. Lots of PDR's also get read and refused. The Supreme Court, while it has petition jurisdiction, doesn't handle any writs.

John Bradley
District Attorney
Williamson County, Texas

Regardless of how well they do their job in any particular case, one can only marvel that the CCA has been able to keep up with its caseload. I am sure the Supreme Court is plenty busy too. Their briefs are filed by lawyers who really believe they have good reason to be asking for review and likely cover a far greater spectrum of legal issues, but we can all be happy that we have 18 hard working judges and not just 9. Nebraska can get by with just one set of legislators and another 48 states with only one final judicial authority, but I really think Texas had a better idea in having two top courts. Even the Okies seem to agree.

I was at the advanced civil appellate course last week and learned the following: (1) Petitions are studied by the justices for about 5 minutes and (2) if you are lucky enough to be asked to do a brief on the merits, the only person who will read your brief is a 1st year law clerk (that is, unless the petition is granted). Worse, being asked to do briefs on the merits only increases your chance to get the petition granted to 1 in 3.
Maybe we should try to get juvenile cases moved to the court of criminal appeals.

Are you under the impression that the Court of Criminal Appeals spends any more time than the Supreme Court on petitions? Not likely.

John Bradley
District Attorney
Williamson County, Texas

I'd imagine that a staff attorney at the cca spends more than 5 minutes on a petition -- which seems to me to be a far better system than having 9 justices barely looking at them.
Plus, when you throw out all pdr's written in crayon and all the ones that are truly meritless, I'd bet the pdr's that have some merit to them get a respectable looking at.

Did anyone notice in this last hand-down that the CCA ordered a bunch of PDR's "redrawn"? Anyone ever seen that before? Does this mean PDR's will no longer be summarily refused if they do not comply with the rules?

While we're on the topic, has anyone noticed that when a conviction is afformed by an appellate court, the State is never given any credit for its research. If your brief cites the "white horse" case that resolves the issue, the State is never given any recognition for its research. I always thought that there was both a theory for the appellant and one for the appellee, but only the whining defendant is recognized for making any research effort, misplaced or otherwise.

I've certainly noticed that our coa only acknowledges my research when they want to disagree with me. I suspect that since we're normally right about the law that the coa is afraid they'd look biased if they constantly wrote about how they agreed with our arguments.

The comment on the fact that petitions get read by the first year law clerks hit home. When I was doing appellate work for DPS' ALR program a few years ago, I always carefully explained EVERYTHING, including the relevant case cites. I figured the average first year law clerk would need the education in some of those little things you don't pick up in law school. A good example is a case where the officer arrested the defendant for DWI without a warrant after an accident when the officer didn't witness the offense. I taught an Arrest, Search, & Seizure update to all of troopers after the last session. When I asked for a show of hands from troopers who had county or district attorneys who wouldn't accept a DWI case filed as the result of an accident, I was somewhat shocked at the number of affirmative responses I received. I estimate that about 15% of my troopers had problems with prosecutors believing that the arrests were unlawful. I handed out dozens of copies of Warrick v. State!

I've noticed a few more positive remarks lately, i.e. "The State contends ________. We agree." Still, I'm always willing to accept the silent praise of the court lifting paragraphs from a State's brief.

Now, what really irks me is when the court identifies my argument according to the defense characterization of it. "The State argues ______." No I didn't, No I didn't!!!

On occasion the courts go out of their way to demean our advocacy. E.g., Lisa Tanner's argument concerning compliance with the notice requirement of art. 38.072 in Wheeler. In the trial court she said there was case law to support her argument. Chief Justice Walker wrote in his opinion: "The prosecutor was correct that there is case law on the point, but not in support of her position." 79 S.W.3d at 84.

There's apparently an unpublished dissent in one of the "redraft" cases. That might explain what's going on.

The most effective advocate convinces the panel to adopt a particular point of view by leading them to write something they believe to be their own idea. Encourage them to do that by quoting their own opinions and referring to individual justices.

Judges have egos, too.

As for the redrafted PDR's, the court does have an obligation (as evidenced by the recent debate on the quality of death penalty counsel) to improve the competence of all lawyers. Although it is a shame for the court to have to re-read a PDR, perhaps by requiring some of them to redraft, the quality of the PDR's will improve.

As a former briefing and research attorney, I can tell you, it is no fun to read badly written PDR's. And, while it is easy to just refuse them for rule violations, there may be a better long-term solution in making them redraft.

John Bradley
District Attorney
Williamson County, Texas

Having applauded the court above, I must now add one of my continued frustrations with the court. Cases such as Gilmore, No. 99-0469 (is evidence alone sufficient to require lesser-included charge); Otto and McLaren, No. 99-1801 and 99-1802 (does law of parties apply to organized criminal activity); and Hernandez, No. 00-0818 (DWI stipulations) all involve very important questions of law that prosecutors need answers to. Yet the court takes 3 years or more to provide the answers. The last great example of this was Cooper. Surely the problems presented cannot be that hard to solve. Later cases of lesser significance may need attention, but surely there is a better way of handling these cases too. For example, while I am sure Mr. Rodriguez wanted to know how the court would match the sex offender registration law against the ex post facto clause, everyone knows that case is really going to be decided in Washington, D.C. anyway (when the SC examines the Alaska and Connecticut statutes in Doe and Doe). I realize it was a unanimous opinion, but maybe those take even longer to concoct. Any case more than 18 months old should come up for discussion at least once a month . . . and get decided.

I got raked over the coals last time as was down their arguing because we took 3 1/2 to try a guy (who already had a life sentence). I bit my tongue from saying that I once had a case that took roughly 9 years from submission in the cca to mandate. Soria v. State.

Feb. of 89 to June of 94 is a pretty good chunk of time to take to decide a case after submission alright! Makes me wonder what the record is. Soria was a direct appeal, so maybe it is in a different class, since with PDRs the court at least starts with a written opinion already in existence (and thus theoretically should have a better idea what it wants to say and fewer points to deal with). I know I saw an article a few years back saying the court had a few 3 or 4 year old undecided cases (at that time). Anyone know of cases in which PDR was granted but no opinion issued for more than 4+ years? When writing those opinions the court should at least say something like "we have carefully reviewed the record" or "this case presents difficult issues of first impression" to make themselves look a little better.

Franklin, No. 00-1841, may be a good example of the delay associated with the "appellate orbit" process. After being convicted in January, 1998, the result was first affirmed on Feb. 3, 1999. The CCA, however, vacated that decision on Feb. 16, 2000 and the CofA then reversed the conviction on May 24, 2000. The State's PDR was not ruled upon (granted) until June 25, 2003, and we may not have an opinion or final decision for many more months. Hard to understand why it would take so long for the CCA to decide whether the PDR met the standards for review the second time around.

If the conviction is not ultimately affirmed, then any re-trial will take place no less than 6 years after the first trial (although I understand Franklin was convicted on other charges anyway so this may not be too important).