The easiest means for an appellate court to reach the decision it desires is to overlook/ignore a party's argument or, even worse, materially misstate the facts. Is this becoming a more common practice? I note the CCA seems to be becoming more sensitive to this problem. At least three PDRs have been granted this year in part on the grounds that the CA violated Rule 47.1: Trevino, No. 01-2360 (Tarrant County); Peterson, No. 02-0201 (Collin County); and Cates, No. 02-0421 (Harris County). I have petitioned for review on the same basis in a recent case (arguing such practice calls for exercise of the CCA's power of supervision under Rule 66.3(f) and that "implicit in the abuse of discretion standard of review is the idea that the appellate court must take a 'reasonable view of the record'").

I agree that "fact control" is becoming more difficult as caseloads increase (and submission times decrease) in the appellate courts.

At lease part of the problem must be due to the failure of parties and the court to maintain discipline and scrupulously document fact statements in briefs and opinions with record cites. When I was a briefing attorney, parties often made factual claims without citing the record. We'd search and search and not find it, but the party might finally pony the cite up at argument, on rehearing, or when seeking review. That practice cause much wasted time combing the record and/or reaching incorrect dispositions in opinions and memoranda. It seems obvious, but it still happens all the time . . .

The move away from briefs (and opinions) containing ad nauseum summaries of the trial evidence also contributes to the problem.

It just highlights the value of good briefing. Identify the issue correctly, identify the law correctly, give record cites to all the relevant facts, and don't hide the necessary stuff within a bunch of junk the court doesn't need.

One of my law professors gave some truly sage advise on writing statements of facts and of the case: If you have a sentence, you must also have the corresponding citation to the record. Every time. No exceptions.

He also believed that fact references in the argument should be accompanied by record citations.

For me, adopting that policy also made it easier for me to prepare for oral arguments. When the judges asked where "x, y, & z" are located in the record, I always had that information readily available.

John, misstatements in the parties' briefs concerning the facts is really a separate (but equally important) problem. I am referring to situations where clear arguments or quotations of the evidence are made in the brief and the court truly sets out to decide the case on their own concoction of the facts (or a different set of law books, you know, the ones omitting the cases cited in the brief). For example, in its brief in Trevino the State argued Trevino's reaction to the alleged firing of a gun at him by his girlfriend was not one that society would be willing to recognize as normal or justified. While the court held there was some evidence viewed in favor of the defense that would require submission of the mitigation issue (sudden passion), it hardly addressed the very point raised by the State. In Cates you even have a dissenting opinion saying the record was being misconstrued by the majority.

[This message was edited by Martin Peterson on 10-21-02 at .]

I think if you consistently hit them with correct factual and legal statetments, then the court's conscious decision to forge into unbriefed (unsupported) territory should lead inexorably to discretionary review.Cf. Hailey v. State, 2002 Tex. Crim. App. Lexis 182 (Sept. 25, 2002)(court of appeals erred in reversing case on theory not presented at trial or on appeal). Maybe we'll see some rollback of the courts of appeals' authority to consider unassigned error. That can't be bad.

I've had two recent reversals where I thought the courts were reaching out of bounds to reverse. In one, the court refused to acknowledge a clear statutory limitation on its power to review the underlying order. In the other, the court misread gratuitous, factually incorrect dicta in a remand order and reversed the conviction.

We have a fairly comprehensive set of appellate rules, but the appellate courts are on occasion rather slack in following them. I can only speak of my experience with the Austin court, but they are very lax in enforcing time limits, etc., with criminal appellants, while they hold the State's feet to the fire with no extensions (although actually the State has up to when a case is submitted to get its brief in). I've been told that the Appellant gets such leeway because the appellate court is concerned about federal appeals, etc. It would seem to me that if the courts would enforce and stick to the rules as written, this would be a moot discussion.