Okay, so it is probably none of my business, but my curiosity and desire to learn from other's mistakes compel me to inquire: exactly what did y'all say in your colorful motion for rehearing that prompted the court's rather mean-spirited comments in Fortier, 105 S.W.3d at 700 (note 1) and 702 (note 6)? I guess it was cases like this that prompted Judge Gist's inquiry about pleading the correct range of punihsment in an indictment.

I also have a more esoteric question. If evidence of prior criminal conduct is admissible under art. 37.07, sec. 3, presumably to enable assessment of a proper punishment, what difference does it make that the court thinks it also enhances the range of punishment? Is it not the duty of the court to assess a proper punishment regardless of the range? Why assume the range impresses one more than the conduct? Particularly where the court chose the proper range in its admonishment, how is the fact that the punishment assessed "approached the maximum authorized" any indication of harm? What substantial right of the defendant was abridged by the fact that the trial judge mentioned the phrase "once enhanced" in describing the offense for which Fortier was found guilty and was to be punished? Could not the court of appeals have considered that not so long ago a proper punishment for Fortier's conduct was up to life imprisonment (unenhanced)?

If an appellate court is going to trash somebody's work in a published opinion, they should have the courage of their convictions and quote (or append) the allegedly offensive part of the brief in the opinion. As somebody says: "We report, you decide."
When courts fail to do that,the appropriate response from the reader is to assume that the appellate court is making a mountain out of a mole hill.
I'm actually more intrigued by the reference to the multi-colored cover to the motion -- how are 5 colors possible on a motion cover? -- or is that some kind of metaphor?

[This message was edited by david curl on 07-16-03 at .]

Guess Mr. Owen and group are busy working on their PDR. If they are technologically advanced enough to produce it though, you would think that they (a la Ed spillane) could at least send us a nice color picture of the cover to the motion. David, I like the way you think.

John R., apparently you deleted your response to my inquiry, but I will pose a thought anyway. As you stated, the appellate courts have routinely reversed a sentence where the trial court was operating on a false assumption as to the applicable range of punishment. But, isn't it the very crux of the rationale behind Cartwright, 833 S.W.2d at 136 that you must examine whether the judge was truly persuaded by what he regarded as the law's assessment of the severity of the offense rather than his own? I agree that in many cases that may be an impossible task, but is it always? Should not the court examine something other than just whether the actual assessed punishment "approached" the maximum permissible? After all, recidivism is an important factor, whether it bumps the punishment range or not.

Martin, I guess I got a little worried after reading David's response. I don't want to assume the court was right to criticize a prosecutor any more than I want to assume another prosecutor filed a brief or MFR that contained improper statements.Given that caveat, I stand by my thoughts on what an MFR should do and how to make sure your tone does not offend.

In reading the case you cite, it appears to me you can argue harmlessness in certain circumstances. For example, if a defendant is charged as a third degree felon, but the sentencer is operating under the misapprehension that it is second degree felony, yet assesses the minimum sentence of 2 years, it is nigh on impossible to show harm. If the sentencer gives 9, though, the devil will advocate that the possible range affected the sentencer's decision, that the broadened range itself moved the pointer.

Other than that, I'm not sure Cartwright helps much because don't most common errors of this sort cut some of the lower range off from consideration? For example, mistaking first degree for second degree deprives the defendant of the possiblity of less than five years. Mistaking an enhanced range usuallly does the same thing. Cartwright did not overrule Uribe, where egregious harm was found when the jury charge precluded the jury from considering between 5 and 15 years when it was in fact applicable to the charge.

[This message was edited by John Rolater on 07-21-03 at .]