Citizens Against Corrupt Judges

Bankers Welfare .......they are so poor they want an insurance policy

2008-11-13T00:36:00.000-08:00

J.A.I.L. News Journal
Judicial Accountability Initiative Law

______________________________________________________
Los Angeles, CA November 11, 2008

A Public Service Announcement to America

(To be removed from this PSA see instructions below)

______________________________________________________

The Battle Lines are Drawn: J.A.I.L. versus The Foreign Power

A Power Foreign to Our Constitution

Mission Statement JNJ Library Federal J.A.I.L.

FAQs What?MeWarden?

Where Is America Financially Headed?

By Ron Branson – National J.A.I.L. Commander-In-Chief VictoryUSA@jail4judges.org

Twelve years ago in 1996 this author wrote an article on where America was headed financially, and behold! he was extremely accurate as if written this year. At that time, J.A.I.L. (which was then called “The Judicial Reform Act of 1996") had neither a website, nor was connected with the internet. The article was merely distributed as a printed pamphlet.

Now the news reveals that Americans are giving their hard-earned money to bail out the bankers to the tune of $700,000,000 (seven hundred billion dollars). People are being laid off in droves from their jobs in the millions. People are losing their homes; they are watching their 401(k)s being depleted; and their retirements failing, all the while the banksters are wining and dining in pure luxury.

In yesterday's news (11/10/08) the AIG bank, (whose website www.AIGbank.com states, “Banking is now as easy as AIG!” and who has already reaped over a hundred billion dollars from the taxpayers in bail-out funds), is now claiming to be destitute of funds and asking for billions more in bail-out money from Congress. They have been caught living it up in riotous conditions at a confidential luxurious hotel, drinking, celebrating and making merry, including swimming, golf, massages, etc. --all at taxpayers' expense! These banksters are now avoiding the media who discovered them by using hidden cameras at this secret location.

The powers-that-be are even now looking to the heads of the Federal Reserve to come up with innovative ideas on how to save the economy from ruination, when it is precisely this same private Federal Reserve banker consortium that is at the helm of our economic woes.

Read the following and see if you agree that it appears that the below was written this very year instead of in 1996.

-Ron Branson

VictoryUSA@jail4judges.org

___________________________________________________

The Judicial Reform Act
vs.
The New World Order
* * *
The Final Showdown for America

The subject matter you are about to read is of utmost importance, barring religious and eternal values, inasmuch as it deals with a national emergency involving you and the future of your children and grandchildren. Whether you find it difficult to grasp or understand makes it of no less importance. This message is directed toward middle-class America, the wealthy, and to all who have ears to hear.

This publication consists of two parts: 1) The Problem: What is planned for your future; and 2) The Cure: What you can do to avert those plans. Give your undivided attention to what follows. Do not stop until you have finished. We are driving at a point you must not miss.

1) The Problem

"Permit me to issue a nation's money, and I care not who makes its laws."

--Meyer Anshelm Rothchild ~1780

Thomas Jefferson cautioned, "If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks ... will deprive the people of all property until their children wake up homeless on the continent their fathers conquered." Similarly, James Madison said, "History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling money and its issuance." Despite these warnings, the unthinkable happened.

On December 23, 1913, after Congress went home for Christmas, private bankers through craft, intrigue and deceit. indeed grasped control of the nation's currency, and thereby predestined the total collapse of America. Congress was told that the Federal Reserve Act would not be taken up until Congress returned after Christmas. As soon as the opposition left, those few congressmen, privy and complicit with the bankers' plans, stealthily brought the FRA to the floor (without a quorum) and quickly "passed" it. They then sent it posthaste in the middle of the night via a confidant of President Woodrow Wilson, who, having not read it, asked, "Is this a good bill?" Upon his friend affirming it was, the President signed it. After President Wilson realized the impact of what he had signed, he said, "I am a miserable man. I have unwittingly ruined my country. ... The growth of the nation, therefore, and all our activities are in the hands of a few men."

Today, the Federal Reserve Board controlling our nation's "money" is 76% foreign owned by private interests. They have no allegiance whatsoever to America, as they think only in global profit$, nothing else! America is now controlled by a few very extremely wealthy globalists.

In the book Blueprint for Victory, we are told the bankers long ago planned our demise. Their plan is to gently lower your living standard, while juggling figures and presenting lying reports that "better days are coming," "prosperity is around the corner," "the economy is growing," and "unemployment is down," when the
truth is just the opposite.

In reality, the entire middle-class is planned to be obliterated, including you who are influential reading this. It is predetermined you be financially gutted. Your business is to be slowly depleted through "unfortunate" circumstances of debt foreclosure, bankruptcy, bad decisions, unable to meet tax obligations, poor business, and legislative control of your business and private property. It's not that these bankers don't believe in private ownership of property; they do. It is just a question of who owns it.

Remember when the average man graduated from school or college, got married, bought a new home, a new car, had a house full of children, was the sole bread-winner, (his wife stayed home and raised the children), he paid all his bills, and had plenty of money left over to put away into savings, and to plan for the future of his children? Today the average man graduates from school, gets married, rents a cheap apartment, buys a new car, both parents work full time outside the home, both struggle to pay the rent, utilities, baby sitter, car payments and insurance, and have nothing left over. Yet they're making more money than ever. Someone said, "I'm now making the money I used to dream of making on which I am now starving." Remember when "inflation" meant something you did to your bicycle tire?

Imagine for a moment the power of the Federal Reserve. They can shut down the housing market and cause all construction to cease with one phone call. They can just pick up the phone, place a call, and cause upheaval in the entire world market. They can send the stock market into a tailspin within minutes. They can bring about massive layoffs in all industries, or create a national depression at whim. They can do what no military power on earth can do, ruin the nation over the weekend and
never fire a shot. October 1929 was but an illustration. Multi-millionaires instantly became paupers. Rich men and CEOs jumped wholesale from skyscraper windows or off bridges, unable to cope with the "permanent prosperity" that had been assured them by President Hoover.

Congressman Charles A. Lindberg rightly said, "Under the Federal Reserve Act panics are scientifically created; the present is the first scientifically created one, worked out as we figure a mathematical problem." They turn the economy off and on like a faucet, and manipulate the stock market to their ends.

CALLER to San Francisco Federal Reserve Bank public relations man, Ron Supinski, October 8, 1992: How many Federal Reserve Notes are in circulation?

SUPINSKI: $263 billion and we can only account for a small percentage.

CALLER: Where did they go?

SUPINSKI: People's mattresses, buried in their back yards and illegal drug money.

CALLER: Since the debt is payable in Federal Reserve Notes, how can the $4 trillion national debt be paid off with the total Federal Reserve Notes in circulation?

SUPINSKI: I don't know.

CALLER: If the Federal Government would collect every Federal Reserve Note in circulation, would it be mathematically possible to pay the $4 trillion national debt?

SUPINSKI: No. (Note: Is this not proof from the horse's mouth of inevitable national bankruptcy affecting everyone?)

The Banker's Manifest of 1892, as quoted from the book Economic Pinch by Charles Lindberg, Sr. says, "When through the process of law, the common people have lost their homes, they will be more tractable and easily governed.... People without homes will not quarrel with their leaders."

In New Lies For Old by Anatoliy Golitsyn, it says the insiders themselves describe their goal as "the end of history." "This agenda has been followed systematically since the end of World War II, with no interruptions in strategy and only occasional
shifts and tactics. What may appear to be rapidly unfolding events are in fact policies of long standing."

2) The Cure --America's Only Hope-- The Judicial Reform Act

"Permit the People direct control over immunity of a nation's judiciary, and I care not who makes the money."
Ronald Branson -- 1996

While hard to grasp, it is nonetheless true. There is no future hope for America outside the principles set forth in the Judicial Reform Act (JRA). It has been called the most important proposed legislation in the last 200 years dating back to the Magna Carta or the Declaration of Independence. The JRA is a workable and peaceable means by which the People will begin to regain control and accountability over their government, starting with California. JRA creates Special Grand Juries that will exclusively investigate the misconduct of all judges of the State of California. JRA will influence every state in the union, and will become the stepping-stone to federal judicial reform.

The only thing the Federal Reserve Bankers fear is a "rogue" federal judge ruling in favor of a constitutional challenge of their monetary system. The Constitution prohibits private control of our nation's money by mandating, "Congress shall ... coin money, regulate the value thereof." Article I, Section 8. The bankers, therefore, must maintain their control of five justices of the U.S. Supreme Court on this issue. When they lose that, the People will regain their freedom and the New World Order will lose its stranglehold.

Since its inception, the Federal Reserve has been constantly under attack through court action, and the federal judges have continuously ruled for the bankers. The Banker's Manifest acknowledges, "The courts must be called to our aid." Without bankers controlling the courts, they know the banking fraud is over. The key to America's victory, and your children's future then, is in the creation of a unique Special U.S. Grand Jury after the order of the JRA with one sole purpose: to hold all federal judges directly accountable to the People. This Grand Jury will be autonomous and without government control of any kind. These Grand Jurors shall have complete authority to strip any federal judge of immunity, should they continue to cover for the bankers, violating their oath to uphold and defend the Constitution.

NATIONAL EMERGENCY
JRA vs. NWO draws a battle line for national survival, a cause for which we cannot give up and must not lose. The JRA is proposed legislation with immutable truth that will never die! It will ever be present and persistent, urging itself as the only answer to government out of control. Democrats support it; Republicans support it; Independents support it; so do liberals and conservatives. Police support it; lawyers support it; and yes, even some honest judges are confidentially supporting it, knowing corrupt judges make it hard for honest judges to be honest.

The JRA Initiative was filed November 30, '95. Our first attempt to gather a million signatures and qualify it was done entirely by volunteers. Through experience we are forced to reckon with the fact that volunteers alone cannot do it. We must raise the money to bring it to pass. It may be encouraging to some of you to consider that freedom is only a matter of a money investment in your children's future. Our challenge before us then is, can we who love America and freedom, raise the money to pass the JRA before the New World Order depletes us of our property, our assets and our wealth, leaving us with nothing by which we may oppose them?

What's the Bid for your Children's Future? Our plan of action is getting people to sponsor blocks of signatures which will collectively total somewhere over a million signatures at one dollar apiece. This may seem a lot to most of us, however, consider the alternative. We stand to lose everything. Collectively, we can do it. It begins with you buying the first block. How much will you bid for freedom? Do I hear 25 signatures? 50 signatures? 100 signatures? 250 signatures? 500 signatures? 1,000 signatures? 5,000 signatures? 10,000 signatures? "Nothing" is not an answer! Freedom is not FREE.

This is an emergency. Your future, your children, your assets, your country, everything rests upon you! Don't wait for the other guy to finance your freedom. If you do, everyone loses. Don't gamble with your future! How many signatures will you sponsor? Decide and write a check, even if it's a small check; but write a check now. "For lack of a nail, a shoe was lost. For lack of a shoe, a horse was lost. For lack of a horse, the battle was lost." We must not lose America for want of a nail. If JRA doesn't prevail, we ask that you take down the flag furling over Arlington Cemetery, and turn out the lights shining on the Statue of Liberty.

The question the court must decide before certifying a class, after rigorous analysis and not merely a lick and a prayer, ......licking ??????a come?

2008-07-30T02:35:00.000-07:00

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NUMBER 13-06-629-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS SOUTH RENTALS, INC., A/K/A TEXAS

SOUTH INC. AND THE HERTZ CORPORATION, Appellants,

JOSE M. GOMEZ, INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED PERSONS, Appellee.

On appeal from the 214th District Court of Nueces County, Texas.

O P I N I O N

Before Justices Yañez, Rodriguez, and Benavides

Opinion by Justice Benavides This is an interlocutory appeal by appellants, the Hertz Corporation and Texas South Rentals, Inc.,⁽¹⁾ from an order certifying a class of plaintiffs and designating appellee, Jose M. Gomez, as class representative. Hertz and Texas South have raised numerous issues challenging the class-certification order.⁽²⁾ For the following reasons, we reverse the trial court's order, decertify the class, and remand to the trial court for further proceedings consistent with this opinion.

I. Background

Hertz is a nationally operated rental car company. Texas South is an independently owned and operated Hertz licensee. As part of these companies' rental agreements, a customer is presented with three refueling options. First, the companies offer a "fuel purchase option" or "FPO." Under this option, the companies charge the customer up-front for a full tank of gas at a specified price per gallon. The customer can then return the car with less than a full tank of gas without incurring any additional charge. According to Gomez, the FPO is typically close to the market price for gas in the immediate surrounding area.

Second, a customer may refuel the car before returning it to the rental location. This option requires the customer to return the car with a full tank of gas, and the price the customer paid for the gas is obviously dependent upon his or her selection of a gas station.

The dispute in this case centers on the third option. If the customer does not pre-pay for gas under the FPO option and does not return the car with a full tank of gas, the companies charge a "fuel and service charge" or "FSC" to refuel the car. The price per gallon of gasoline under this option is higher than the FPO.

On January 17, 2003, Gomez rented a car from Texas South. At the time of the rental, these options were explained in the rental agreement and by the customer service representative. In fact, Gomez's rental agreement states, in all caps, that "THE PER GALLON COST OF THE FUEL PURCHASE OPTION WILL ALWAYS BE LOWER THAN THE FUEL AND SERVICE CHARGE." In Gomez's rental agreement, the price for the FSC was $3.99 per gallon.

Gomez did not purchase the FPO and did not refuel the car before returning it to Texas South. Texas South, therefore, imposed an FSC of $52.04. Gomez paid the charge and did not dispute it with Texas South. Over a year later, Gomez filed suit against Hertz on February 6, 2000. Later, on September 15, 2000, he amended his pleadings to include Texas South.

Gomez alleged claims for common-law fraud, illegal penalty, unconscionability, and breach of contract. In order to establish liability on Hertz, Gomez alleged several agency theories of liability, including apparent authority, agency by estoppel, ratification, vice principal, joint enterprise, conspiracy, and partnership. Gomez pleaded class allegations and sought to certify a class action of all Texas residents who paid an FSC after February 6, 2000.

Hertz and Texas South pleaded numerous affirmative defenses, such as voluntary payment, waiver, ratification, estoppel, and accord and satisfaction. Additionally, Texas South asserted that claims by class members who paid an FSC before September 15, 2000 would be barred by the four-year statute of limitations.

Gomez moved to certify the class. After numerous filings by the parties and a hearing, the trial court certified a class consisting of "[a]ll Texas residents who were charged an FSC in Texas after February 6, 2000." Appendix at p. 36. The trial court's order further clarified the limits of the class definition as follows:

This is a statewide Class only. Excluded from the foregoing Class are rentals that commenced anywhere other than at a Hertz location in the State of Texas; the presiding judge of the court in which this cause is filed, any other judge assigned to that court or to this cause, the immediate family of such judge(s), Class counsel, and each of the defendants and their respective officers, directors, employees, agents, and attorneys.⁽³⁾

Id. at pp. 35-36.⁽⁴⁾ This interlocutory appeal ensued. Tex. Civ. Prac. & Rem. Code § 51.014(a)(3) (Vernon Supp. 2007).

II. Standard of Review

We review an order certifying a class under an abuse of discretion standard. Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201, 204-05 (Tex. 2007). However, we must do so "without indulging every presumption in favor of the trial court's decision." Id. at 205 (citing Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002)). We review the trial court's order to determine whether the plaintiff demonstrated actual compliance with Texas Rule of Civil Procedure 42. Id. Compliance may not be presumed, but it must be apparent from the record and the trial court's order. See id.

All class actions must satisfy the four threshold requirements set out in rule 42(a): (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and (4) the representative parties must be capable of fairly and adequately protecting the interests of the class. Tex. R. Civ. P. 42(a); see Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 433 (Tex. 2000).

Additionally, the class must satisfy at least one of the requirements set forth in rule 42(b). Tex. R. Civ. P. 42(b). In this case, Gomez has alleged that he satisfies rule 42(b)(3), which requires that common questions of law or fact predominate over questions affecting only individual class members and that class treatment is superior to other methods of adjudication. Id. at R. 42(b)(3).

The trial court is required to look beyond the parties' pleadings, investigate the factual and legal bases for all the claims, and explain in a detailed trial plan how the claims will proceed as a class. Bernal, 22 S.W.3d at 435. In the absence of such an analysis, it is nearly impossible for a reviewing court to evaluate whether the class requirements have been satisfied. State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 556-57 (Tex. 2004).

III. Predominance Requirement

Hertz and Texas South assail the trial court's findings regarding typicality, adequacy of representation, predominance of common issues, superiority of the class vehicle, and the trial plan requirement. Because the predominance requirement is one of the "most stringent prerequisites to class-action certification," we begin by addressing Hertz and Texas South's arguments that common issues will not predominate in this case. Stonebridge Life Ins. Co., 236 S.W.3d at 205.

A class may be certified under Texas Rule of Civil Procedure 42(b)(3) when "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members . . . ." Tex. R. Civ. P. 42(b)(3). Stated conversely, a class cannot be certified under this provision when "complex and diverse individual issues would overwhelm or confuse a jury or severely compromise a party's ability to present otherwise viable claims or defenses." Stonebridge Life Ins. Co., 236 S.W.3d at 205 (citing Henry Schein, Inc., 102 S.W.3d at 690).

Predominance of common issues, as with all prerequisites to certification, must be rigorously examined by the trial court. Henry Schein, Inc., 102 S.W.3d at 694; Bernal, 22 S.W.3d at 434. "The test for predominance is not whether common issues outnumber uncommon issues but . . . whether common or individual issues will be the object of most of the efforts of the litigants and the court." Bernal, 22 S.W.3d at 434 (quoting Central Power & Light Co. v. City of San Juan, 962 S.W.2d 602, 610 (Tex. App.-Corpus Christi 1998, pet. dism'd w.o.j.)). The trial court must decide at the outset that any individual issues can be determined in a "manageable, time-efficient and fair manner"; otherwise, certification is improper. Stonebridge Life Ins. Co., 236 S.W.3d at 205.

In conducting this inquiry, the trial court must identify the substantive issues involved, assess which of those issues will predominate, and determine if the predominating issues are those common to the class. Id. at 205; Bernal, 22 S.W.3d at 434. "Ideally, 'a judgment in favor of the class members should decisively settle the entire controversy, and all that should remain is for other members of the class to file proof of their claim.'" Exxon Mobil Corp. v. Gill, 221 S.W.3d 841, 856 (Tex. App.-Corpus Christi 2007, pet. filed) (quoting Bernal, 22 S.W.3d at 434).

The trial court analyzed Gomez's claims and found that there are no individual issues with respect to any of the claims. Appendix at pp. 16, 19, 21, 22, 24, 26, 30, 34-35. Thus it found that common issues would predominate. Both Hertz and Texas South advance several arguments against this finding. First, they argue that the class fraud claims demand an individualized inquiry into whether the alleged misrepresentations were material to the class members and whether the class members justifiably relied on the alleged misrepresentations. Second, they argue that the class claims are subject to the voluntary payment defense, which requires an individualized inquiry into the class members' knowledge. Third, they argue that to the extent the class's breach of contract and U.C.C. claims are based on unconscionability, those claims raise individual issues of the class members' knowledge, ability, experience, and capacity. Finally, Texas South raises an additional argument, which Hertz has not argued in its briefs. Texas South argues that consumer status is required for the class claims under the U.C.C., and that this inquiry will raise insurmountable individual issues.⁽⁵⁾

A. Fraud Claim

The elements of a fraud or fraudulent concealment claim are: (1) the speaker made a material representation; (2) the representation is false; (3) the speaker knew the representation was false or made it recklessly without any knowledge of the truth; (4) the speaker made the representation with the intent that the other party act upon it; (5) the party acted in reliance on the representation; and (6) the relying party suffered an injury. See Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998); Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). Hertz and Texas South argue that Gomez's fraud claims will require individualized inquiry into whether the alleged misrepresentations were material to the class members and whether the class members relied on the alleged misrepresentations. Accordingly, they argue that individualized issues will predominate, as they will have to question each class member regarding his or her knowledge and understanding of the FSC.

Gomez counters, and the trial court agreed, that materiality and reliance can be determined on a class-wide basis. Specifically, the trial court held:

This is a case where Plaintiff's claim for fraudulent misrepresentation, as will be demonstrated in the proposed Trial Plan, is subject to Class-wide treatment, because it is based upon a uniform, written misrepresentation, and reliance is evidenced by the act of paying that express charge at the conclusion of the rental.

Appendix at p. 19. The trial court cited Henry Schein, Inc. v. Stromboe, where the Texas Supreme Court stated in dicta that class-wide proof of reliance could be possible in a fraud claim where class-wide evidence existed. 102 S.W.3d at 693-94. The trial court concluded that class-wide evidence existed here because the "act of paying demonstrates that [the customers] are relying upon the charge as what it states: A charge for fuel and for service." Appendix at p. 19. The trial court referred to this as the "invoice theory of reliance." Id. at p. 21.

The analysis of these issues necessarily requires a discussion of the Texas Supreme Court's decision in Schein. 102 S.W.3d at 693-94. In Schein, the trial court certified a class of consumers who purchased computer software. Id. at 678. The purchasers alleged that the software company falsely represented that the software could perform certain tasks and was suitable for the purchasers' use in their dental practices. Id. at 679-80. The software company argued that the class should not be certified because individual reliance issues would predominate. Id. at 693.

After noting that several of the purchasers' claims⁽⁶⁾

required reliance as an element of proof, the supreme court reiterated its holding in Southwest Refining Co. v. Bernal that the class vehicle is not supposed to enhance or diminish a party's ability to present the substantive merits of its case:

[t]he class action is a procedural device intended to advance judicial economy by trying claims together that lend themselves to collective treatment. It is not meant to alter the parties' burdens of proof, right to a jury trial, or the substantive prerequisites to recovery under a given tort. Procedural devices may "not be construed to enlarge or diminish any substantive rights or obligations of any parties to any civil action." Although a goal of our system is to resolve lawsuits with "great expedition and dispatch and at the least expense," the supreme objective of the courts is "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." This means that "convenience and economy must yield to a paramount concern for a fair and impartial trial." And basic to the right to a fair trial--indeed, basic to the very essence of the adversarial process--is that each party have the opportunity to adequately and vigorously present any material claims and defenses.

Id. at 693 (quoting Bernal, 22 S.W.3d at 437) (internal citations omitted). In other words, class plaintiffs must be held to the same standards of proof as an individual plaintiff. Id.

However, the supreme court's next statement is the spark that ignited the instant dispute between the parties in this case. The supreme court clarified that it was not holding that a fraud class could never be certified due to individual reliance issues. Id. Rather, the court suggested the possibility that a class representative could produce class-wide evidence of reliance, satisfying the predominance requirement:

This does not mean, of course, that reliance or other elements of their causes of action cannot be proved class-wide with evidence generally applicable to all class members; class-wide proof is possible when class-wide evidence exists. But evidence insufficient to prove reliance in a suit by an individual does not become sufficient in a class action simply because there are more plaintiffs. Inescapably individual differences cannot be concealed in a throng. The procedural device of a class action eliminates the necessity of adducing the same evidence over and over again in a multitude of individual actions; it does not lessen the quality of evidence required in an individual action or relax substantive burdens of proof. If a plaintiff could prove reliance in an individual action with the same evidence offered to show class-wide reliance, then the issue is one of law and fact common to the class. The question the court must decide before certifying a class, after rigorous analysis and not merely a lick and a prayer, is whether the plaintiffs have demonstrated that they can meet their burden of proof in such a way that common issues predominate over individual ones.

Id. at 693-94 (emphasis added).

Gomez seizes upon this language and argues that he presented class-wide evidence of reliance by merely showing that Hertz and Texas South customers were charged the FSC. In other words, because Hertz and Texas South misrepresented that the FSC was for "fuel and service" and did not disclose the hidden profit element, and the class members paid for the FSC without knowing what it truly was, the class members necessarily relied on the misrepresentation. Gomez reasons, therefore, that if reliance is established as to Gomez, it is established as to the entire class. We disagree that this is the rare case the supreme court envisioned by its statements in Schein.

In Schein, the purchasers argued that they presented class-wide evidence of reliance. Id. at 694. The court looked to the record and determined that although there was "evidence that Schein wanted purchasers to rely on its advertisements and other representations about its software products," there was "no evidence that purchasers actually did rely on Schein's statements so uniformly that common issues of reliance predominate over individual issues." Id. In doing so, the court placed the burden on the plaintiff to bring forward a record demonstrating that the trial court had complied with the requirements for certifying a class under rule 42(b)(4). Id.

Furthermore, the court noted that the record actually supported the opposite of the purchasers' arguments--testimony appeared in the record showing that some of the purchasers relied on recommendations by colleagues in purchasing the software rather than on Schein's representations. Id. Accordingly, the court held that the purchasers failed to demonstrate compliance with the predominance requirement in rule 42(b)(4). Id. Since the supreme court's decision in Schein, we have addressed class claims involving reliance elements on two separate occasions.⁽⁷⁾ In Ford Motor Co. v. Ocanas, we reviewed an order certifying a class of plaintiffs who purchased Ford F-150 trucks with an optional towing package. 138 S.W.3d 447, 449 (Tex. App.-Corpus Christi 2004, no pet.). The F-150 with a towing package was marketed as having a larger radiator than those without the towing package, but due to a manufacturing error, the larger radiator was not included. Id. The class alleged "laundry list" violations of the Texas Deceptive Trade Practices Act ("DTPA"), which required reliance as an element of proof. Id. at 453.

After summarizing the holding in Schein, we focused particularly on Schein's determination that the plaintiffs had not produced any class-wide evidence that purchasers actually relied on the defendants' misrepresentations in a uniform manner. Id. (citing Henry Schein, Inc., 102 S.W.3d at 693). For those same reasons, we held that the trial court improperly certified the class of F-150 purchasers:

Like the plaintiffs in Henry Schein, Inc., appellees pleaded breach of express and [implied] warranties and DTPA "laundry list" violations which require each class member to prove reliance as a prerequisite to recovery. Further, although there is evidence that appellant intended for customers to rely on representations that F-150s with a Class III towing package would come with larger radiators, "there is no evidence that purchasers actually did rely" on appellant's statements "so uniformly that common issues of reliance predominate over individual issues." The supreme court noted that it is possible to certify a class where reliance is a required element of proof if the plaintiffs can "prove reliance in an individual action with the same proof offered to show class-wide reliance." However, appellee did not meet this burden.

Id. (citations omitted).

Later, in Fidelity & Guaranty Life Insurance Co. v. Pina, we reviewed an order certifying a consumer fraud class. 165 S.W.3d 416, 418 (Tex. App.-Corpus Christi 2005, no pet.). There, the consumers purchased annuities that paid a high interest rate on deposits into the annuities. Id. The consumers alleged that the defendant failed to disclose that a lower interest rate would apply to payments the consumers made into the annuities after the first year of ownership. Id. at 419. Addressing the reliance element of the consumers' DTPA and fraud claims, we noted the difficulty of establishing reliance in a group setting:

Reliance is a thought process or one step in a larger thought process; . . . [it] can be shown only by demonstrating the person's thought processes in reaching the decision. Proof of reliance or lack of reliance necessarily requires an individualized determination because, under all the same facts and circumstances, one person may have relied on the misrepresentation in reaching a decision while another did not rely on it in reaching the same decision.

Id. at 423 (quoting Grant Thornton, L.L.P. v. Suntrust Bank, 133 S.W.3d 342, 355 (Tex. App.-Dallas 2004, pet. filed) (emphasis added)). After crediting Schein's invitation to establish reliance on a class-wide basis, we relied on our earlier holding in Ford and held that the consumers had not put on class-wide evidence of reliance. Id. at 424. Although each of the named plaintiffs testified that they relied on the high interest rate applicable in the first year of their contracts, none of the named plaintiffs indicated "how or whether other members of the class may have weighed the importance of the new money interest rate in making their investment decision." Id. Accordingly, the plaintiffs did not produce any evidence of class-wide reliance. Id.

We noted that although the supreme court in Schein "did not entirely preclude class actions in which reliance was an issue, . . . it did make such cases a near-impossibility." Id. at 423. We questioned whether given the individualized nature of reliance, any class action could ever be certifiable under Schein, and we noted that from the time of the Schein decision in 2002 to the time we decided Fidelity in 2005, no Texas court had "encountered a situation in which class-wide proof of reliance could be found." Id. at 424-25. The same still holds true--no court since Schein has ever found evidence of class-wide reliance.

Like the plaintiffs in Schein, Ford Motor Co., and Fidelity, Gomez has failed to point us to any evidence in the record demonstrating that the class as a whole relied on representations by Hertz and Texas South that the FSC constituted only a charge for fuel and service. In fact, Gomez does not point to any evidence in the record demonstrating that he actually relied on a belief that the FSC was only for fuel and service. Moreover, under the facts of this case, it is not hard to imagine how individual issues of reliance could arise. There are numerous circumstances in which a customer might choose the convenience of the FSC regardless of his or her knowledge of the FSC's composition. Accordingly, "[i]t is thus clear that answering the questions of materiality and reliance as to one plaintiff does not answer the same question as to other putative class members." Peltier Enters., Inc. v. Hilton, 51 S.W.3d 616, 623 (Tex. App.-Tyler 2000, pet. denied). Gomez failed in his burden to show that reliance issues will not predominate in the litigation.

Nevertheless, Gomez directs us to pre-Schein cases that he argues demonstrate that class-wide evidence exists in this case due to the mere fact that Hertz and Texas South's customers paid the FSC. First, he cites Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 34 (Tex. App.-Houston [1st Dist.] 2000, pet. dism'd w.o.j.). In Chastain, the plaintiffs stored their property with a company while they were overseas. Id. at 28. The plaintiffs' contract said that the defendant company had purchased insurance for the property, and the plaintiffs were charged for the insurance. Id. As it turned out, the plaintiffs were not named as insureds on the policies, and they brought a class action for fraud. Id. The trial court certified the class, and the court of appeals affirmed. Id. at 35.

On appeal, the defendant argued that reliance issues would predominate at trial. Id. at 34. The court of appeals disagreed and held that common issues predominated, making the following statements:

The predominant issue in this case is not whether Graebel made misrepresentations to each individual class member; the predominant issue is whether Graebel billed and collected premiums for "storage insurance," and then failed to procure such a policy. Although some issues, such as the Chastains' claim for damage to their property, will have to be litigated individually, the trial court did not abuse its discretion in finding that the common issues regarding the refund of "insurance premiums" predominate in this case.

Id.

Additionally, Gomez cites to Alford Chevrolet-Geo v. Jones, 91 S.W.3d 396 (Tex. App.-Texarkana 2002, pet. denied). In that case, the plaintiffs brought a fraud class action against several car dealerships that were charging what they called a "vehicle inventory tax." Id. at 399. Really, the tax was imposed on the dealerships, not the customers, but the dealerships were allegedly passing the taxes through to the customers and representing that the customers, not the dealers, owed the taxes. Id. The trial court certified the fraud class, id., and the dealers argued on appeal that common issues did not predominate. Id. at 404-05.

The Texarkana Court of Appeals held that reliance could be proven on a class-wide basis by the mere fact that the customers paid the tax billed by the dealerships:

The Dealers also take the position that at the least each class member must demonstrate he or she relied on the misrepresentation. The allegations are that the consumers paid a tax they did not owe because they were billed for the tax by the Dealers. That alone is an allegation of reliance.

Id. at 405. The court of appeals then reviewed and relied on the Chastain decision, concluding that in Chastain, the charge itself was sufficient to satisfy the certification requirements. Id. at 406.

Although Chastain and Alford appear to hold that payment alone sufficed to prove reliance,⁽⁸⁾ we decline to follow them. First, the Chastain opinion glossed over the reliance and materiality elements. Chastain, 26 S.W.3d at 34. In Chastain, the court identified the representation and the later charge for insurance as the "predominant issue," the court did not actually address materiality and reliance and the effect those elements had on certifying the class. Id. The Texarkana Court of Appeals in Alford read Chastain as holding that mere payment by the plaintiffs showed reliance, but we do not read it as definitively resolving the questions of whether materiality and reliance issues would predominate. Alford, 91 S.W.3d at 406. Moreover, we have located no other Texas case that has expressly recognized an "invoice theory" of reliance, as was apparently adopted in Alford.

More importantly, both these cases were decided before Schein. Although these cases were decided before Schein, Schein did not cite to either case as exemplifying class-wide evidence of reliance. In fact, Schein did not cite to any cases as examples of when class-wide reliance had existed. Henry Schein, Inc., 102 S.W.3d at 694-95. Because there is no evidence in this case of class-wide reliance and materiality, the trial court abused its discretion in determining that individual issues will not predominate.

B. Voluntary Payment Defense

Hertz and Texas South attack the trial court's evaluation of the voluntary payment defense and its application to the class claims. Here, the trial court certified the following claims: (1) an unconscionability claim, Tex. Bus. & Comm. Code Ann. § 2A.108 (Vernon 1994) ("U.C.C. § 2A.108"); (2) an illegal penalty claim, id. § 2A.504 (Vernon 1994) ("U.C.C. § 2A.504"); (3) breach of contract; and (4) fraud. Hertz and Texas South argue that the U.C.C. and breach of contract claims are subject to the voluntary payment defense, which bars the recovery of money voluntarily paid "with full knowledge of all the facts and without fraud, deception, duress, or coercion." BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 765 (Tex. 2005). Hertz and Texas South argue that this defense bars the class claims as a matter of law or, at the least, will require an individual evaluation of the facts as they relate to each unnamed class member. In particular, Hertz and Texas South argue that each class member will have to be questioned about whether he or she had "full knowledge of all the facts."

Gomez, on the other hand, argues that his allegation of fraud defeats the voluntary payment defense as a matter of law. He argues that he did not have full knowledge of the facts because the "fuel and service charge" label is misleading, although he admits that he knew what the FSC was and how much it cost relative to his other re-fueling options. Hertz and Texas South respond that the allegation of fraud itself involves several individual issues, including materiality of the alleged representation and the customer's reliance on the representation.

The trial court determined that the voluntary payment rule "is not supported in regards to Plaintiff's claims as asserted, or under controlling authority." Appendix at p. 9. The trial court held that the voluntary payment defense would not likely apply to the claims because Gomez alleged fraud and because Gomez did not receive "full knowledge" of the facts until discovery was completed. Id. at p. 10. Finally, the trial court held that if the defense applied, it would apply to all class members and could be handled on a class-wide basis. Id. at p. 9. The trial plan does not specifically state how these issues could be handled class-wide, except to reiterate that the inquiry would apply to the class as a whole. Id. at pp. 32-33.

Hertz and Texas South argue that (1) the trial court's determination that the defense does not apply was erroneous; (2) the defense cannot be applied on a class-wide basis; (3) the trial court deprived them of their ability to present the defense at all by concluding that the defense can be applied on a class-wide basis; and (4) individual issues will predominate. Because Hertz and Texas South attack the trial court's analysis of the underlying law, we must first examine the class claims and the contours of the voluntary payment defense. Exxon Mobil Corp., 221 S.W.3d at 847-48.

1. UCC Illegal Penalty Claim

The Texas Supreme Court recently addressed the voluntary payment defense in BMG Direct Mktg., 178 S.W.3d at 765. In that case, BMG's customers were charged late fees after they failed to timely pay for compact disks in accordance with their agreements with BMG. Id. at 765. Peake, a BMG customer, brought a class action alleging that the late fees were illegal penalties that did not "reasonably forecast BMG's actual damages resulting from customers' late payments." Id. at 766. The trial court certified a class consisting of "all present and former BMG club members in Texas who had paid BMG late fees since May 16, 1998." Id.

BMG argued that the voluntary payment defense applied to each customer's claim and caused individual issues to predominate. Id. The trial court, however, held that it was "unlikely" the voluntary-payment rule would apply because the "rule is equitable and 'need not be applied where the rationale for its existence does not exist.'" Id. Additionally, the trial court held that the defense did not raise individual issues and could be determined on a class-wide basis. Id.

On appeal, the Texas Supreme Court explained that under the voluntary payment defense, "'[m]oney voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, deception, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.'" Id. at 768 (quoting Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572, 576 (1951)). Peake argued that because BMG did not disclose how the late fees were calculated, he did not pay the late fees with "full knowledge of all the facts"; therefore, the defense was not implicated. Id. at 773. BMG argued that because it disclosed the late fee and the circumstances under which the fees would be imposed, the customers had "full knowledge of the facts" sufficient to implicate the defense. Id.

The Texas Supreme Court agreed with BMG that "knowledge of a late fee's amount and the circumstances under which it will be imposed is sufficient to charge one with 'full knowledge of the facts' for purposes of the voluntary-payment rule's application." Id. Accordingly, the trial court erred in determining that the defense likely did not apply to Peake's illegal penalty claim. Id. at 773-74.

We see no distinction between BMG and the present case--although Gomez claims that Hertz and Texas South failed to disclose that the FSC had a hidden profit component, Hertz and Texas South disclosed the FSC and the circumstances under which it would apply. Thus, Gomez's knowledge was sufficient to trigger the defense's application to his illegal penalty claim. See id. But that does not end the inquiry here.

Hertz and Texas South argue that the "full knowledge" requirement will involve such an individualized inquiry that common questions do not predominate. We disagree. That is not what BMG held. Id. In fact, BMG conceded that the "knowledge" requirement could be established on a class-wide basis. Id. Hertz and Texas South can invoke the defense by merely proving that all their rental contracts contained a disclosure of the FSC and the circumstances under which it would apply. Id. The "thornier" issue, as the supreme court put it, is whether the defense can be defeated by Gomez's allegation of fraud. Id. The supreme court recognized in BMG that the traditional exceptions to the voluntary payment defense--fraud, duress, deception, and coercion--still apply. Id. at 776. In BMG, Peake argued that the late fees were not a reasonable estimation of the damages BMG suffered as a result of the customers' late payments. Id. at 775-76. The court acknowledged that for purposes of the "full knowledge" requirement to invoke the rule, it would not make sense to require companies to disclose the method of calculating a particular charge. Id. at 773. Thus, the allegation of an illegal penalty alone would not preclude "full knowledge" sufficient to invoke the rule. Id. The court also held that the illegal penalty allegation, by itself, did not rise to the level of fraud to defeat the application of the voluntary payment defense. Id. at 775. The court was careful, however, to note that "the late fees were a set amount per month, and there is no allegation of mistake or fraud as to their calculation." Id. Because the court could not determine on the record in BMG whether Peake alleged any other reason that payment of the charge was involuntary, it remanded to the trial court to consider how the defense affected the ability to certify the class and how the claims could be tried. Id. at 778.

In contrast, Gomez has alleged that the label attached to the charge in this case, "Fuel and Service Charge," was misleading and fraudulent because it did not reveal the true nature of the charge. In other words, Gomez has alleged fraud as to the calculation of the charge. This is precisely the type of fraud allegation that BMG recognized was not present in that case. Id. at 775. Gomez argues that by alleging that Hertz and Texas South fraudulently misrepresented the purpose of the FSC, which was really a hidden profit stream, he has defeated the application of the voluntary payment defense as a matter of law. The trial court agreed with this argument. Appendix at p. 10.

Hertz and Texas South, on the other hand, argue that a mere allegation of fraud will not defeat the defense as a matter of law. They argue that to defeat the defense, Gomez will have to bring forward evidence of fraud, which includes proving that the purpose for the FSC and its calculation was "material" to the customers and that they relied on the alleged misrepresentations.

Gomez cites BMG to support his argument. However, BMG did not hold that the mere allegation of fraud will defeat the voluntary payment defense. See BMG Direct Mktg., Inc., 178 S.W.3d at 775. Rather, the supreme court noted that there was no allegation of fraud in BMG. Id. Not only is Gomez's argument contrary to BMG, it ignores several Texas cases that have held otherwise.

Texas courts have consistently held that once the voluntary payment defense is invoked, the plaintiff must plead and prove one of the exceptions to the defense to defeat its application. See Spring Branch Bank v. Mengden, 628 S.W.2d 130, 135-37 (Tex. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.); Am. Cas. & Life Ins. Co. v. Boyd, 394 S.W.2d 685, 689-91 (Tex. Civ. App.-Tyler 1965, no writ); see also Gaither v. Lindsey, 37 Tex. Civ. App. 149, 83 S.W. 225, 226 (Tex. Civ. App. 1904, no writ). If the plaintiff alleges fraud, he or she must prove materiality and reliance as elements of the fraud in order to defeat the voluntary payment defense. Gaither, 83 S.W. at 226 ("If, however, appellant in any way represented himself to be a practicing physician, when he was not authorized to practice medicine, and appellee was thereby induced to employ and pay him for professional services, he could recover back the money so paid.").

Hertz and Texas South are correct that Gomez's fraud allegation will require him to prove the elements of materiality and reliance in order to defeat their voluntary payment defense. As we held above, fraud cannot be determined on a class-wide basis in this case, and individual issues will, therefore, predominate. Accordingly, the trial court abused its discretion in certifying Gomez's U.C.C. illegal penalty claims.

2. Breach of Contract Claim

To recover for breach of contract, a claimant must prove that: (1) there is a valid, enforceable contract between the parties; (2) the plaintiff performed as required under the contract; (3) the defendant breached the contract; and (4) the defendant's breach caused the claimant injury. Exxon Mobil Corp., 221 S.W.3d at 853 (citing Valero Mktg. & Supply Co. v. Kalama, Int'l, 51 S.W.3d 345, 351 (Tex. App.-Houston [1st Dist.] 2001, no pet.)). The parties apparently disagree about the factual theory supporting this claim. Texas South characterizes this claim as follows: "As a result of the FSC being an illegal and unenforceable penalty under the Texas UCC, the stated daily rental rate was inflated in breach of contract." Texas South Appellant's Brief at p. 8. Hertz, on the other hand, asserts that the breach of contract claim is identical to Gomez's U.C.C. unconscionability claim. Hertz Corp. Appellant's Brief at p. 7.

However, neither of these interpretations is supported by Gomez's pleadings. See Exxon Mobile Corp., 221 S.W.3d at 848-49 (rejecting Exxon's characterization of the plaintiffs' contract claims as disguised fraud claims). Rather, the pleadings demonstrate an entirely different factual theory based solely in general contract principles: Gomez alleges that a customer contracts to rent a car at a specific daily rate, but when the FSC is included, the rental rate is actually inflated, making the FSC a breach of the daily rate provision in the contract. This allegation does not depend on whether the FSC is a reasonable estimation of the harm suffered by Hertz and Texas South or on whether the charge is unconscionable. Rather, it requires a mere interpretation of the contractual terms.

In fact, the trial court recognized the claim as distinct from Gomez's U.C.C. claims in its certification order. In the certification order, the trial court found the following common issues:

(a) Whether the FSC is unconscionable and therefore unenforceable;

(b) Whether the FSC violates TX-UCC § 2A-504;

(d) Whether Defendants fraudulently misrepresented the FSC; and

(e) Whether Plaintiff and members of the Plaintiff Class are entitled to damages, and if so, what is the proper measure of such damages.

Appendix at p. 5. The trial court clearly contemplated that Gomez's U.C.C. claims were distinct from his standard breach of contract claims.

This Court recently held that the voluntary payment defense does not apply to a simple breach of contract action. Exxon Mobil Corp., 221 S.W.3d at 857; see also BMG Direct Mktg., Inc., 178 S.W.3d at 775 ("It is true that, to the extent the subject matter of Peake's claims is covered by the parties' contract, the rule would not apply."). "The rule is a defense to claims asserting unjust enrichment, not to claims for breach of contract." Exxon Mobil Corp., 221 S.W.3d at 857 (citing BMG Direct Mktg., Inc. 178 S.W.3d at 775). As the supreme court explained, an adequate legal remedy prevents the application of unjust enrichment and the voluntary payment defense. BMG Direct Mktg., Inc., 178 S.W.3d at 770 (citing Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) for proposition that unjust enrichment does not apply when an express contract governs the dispute). Accordingly, the trial court did not abuse its discretion in determining that the voluntary payment defense would not apply to Gomez's breach of contract claim.

C. Unconscionability Claim

Gomez makes his unconscionability claim under U.C.C. 2A.108, which provides, in relevant part:

(a) If the court as a matter of law finds a lease contract or any clause of a lease contract to have been unconscionable at the time it was made, the court may refuse to enforce the lease contract, or it may enforce the remainder of the lease contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(b) With respect to a consumer lease, if the court as a matter of law finds that a lease contract or any clause of a lease contract has been induced by unconscionable conduct or that unconscionable conduct has occurred in the collection of a claim arising from a lease contract, the court may grant appropriate relief.

Tex. Bus. & Comm. Code Ann. § 2A.108. Gomez alleged that the FSC is an unconscionable clause that takes advantage of the plaintiff class to a grossly unfair degree, adopting the standard definition of unconscionability recognized by Texas law. See id. cmt. ("Subsections (1) and (3) of this section apply the concept of unconscionability reflected in the provisions of Section 2-302 to leases."); id. § 2.302 cmt. ("The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract."); see also Gallardo v. TCI Cablevision of Tex., Inc., No. 13-02-460-CV, 2004 WL 1932662, at *3 (Tex. App.-Corpus Christi Aug. 31, 2004, no pet.) (mem. op.) (defining unconscionability under U.C.C. as "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree."); Peltier, 51 S.W.3d at 623-64.

The trial court held that no individual issues would be involved in the analysis of this claim:

Plaintiff's UCC and contract Class claims are based upon the standard, uniform written rental agreement signed by each Class member and the attendant FSC. If plaintiff has a UCC or contract cause of action against Hertz for over [sic] the FSC, then every member of the Class does. If Hertz violated the applicable law in charging its FSC as to one Class member, it violated it as to all-in exactly the same manner. The finite and straightforward nature of Plaintiff's contract claims thereby clearly demonstrates the feasibility and practicability of submitting this case to a single jury. Not only will common issues predominate [at] the trial of this case, there are no individualized questions left to submit to the trier of fact as to the contract claims. Neither individual intent, nor individual knowledge, nor individual reliance are elements of, or prerequisites to, Plaintiff's UCC and contract Class claims. The same is true as to the UCC claims, which will be determined by the Court as set forth in the Trial Plan.

Appendix at pp. 15-16 (citations omitted).

Hertz and Texas South appear to argue that Gomez's unconscionability claim under the U.C.C. is also barred by the voluntary payment defense, but they do not specifically brief whether this defense has ever been applied to an unconscionability claim. We have not located any Texas cases applying the defense in this manner. However, we need not decide this issue because the unconscionability claim, even in the absence of the voluntary payment defense, raises numerous individual issues that would cause the class mechanism to dissolve into a series of mini-trials.

"The predominance requirement prevents class certification when complex and diverse individual issues would overwhelm or confuse a jury or severely compromise a party's ability to present otherwise viable claims or defenses." Stonebridge Life Ins. Co., 236 S.W.3d at 205. Texas courts have consistently held that unconscionability claims involve highly individualized inquiries that are not appropriate for resolution by a class action. Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 106-08 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (concluding that individual issues would predominate because defendants must be able to inquire what purchasers would have done with concealed information); Peltier, 51 S.W.3d at 623-24 (concluding that individual questions of knowledge, ability, experience, and capacity would predominate).

As Hertz and Texas South point out, customers have varying degrees of knowledge, ability, experience, and capacity that would affect what they knew or cared to know about the FSC. Hertz and Texas South have a due process right to investigate these issues and present them at trial. Stonebridge Life Ins. Co., 236 S.W.3d at 205; Bernal, 102 S.W.3d at 437. Certifying a class to prosecute an unconscionability claim would severely compromise this right and deny Hertz and Texas South their ability to defend against the claim. Accordingly, the trial court abused its discretion in determining that common issues would predominate with respect to the unconscionability claim.⁽⁹⁾

IV. Rigorous Analysis and Trial Plan

Texas South and Hertz point to several infirmities in the trial plan that they assert require reversal and decertification. It is undisputed that Gomez did not rent from a Hertz corporate location. Instead, he rented from Texas South, a Hertz licensee. Hertz and Texas South argue, therefore, that in order to impose liability on Hertz, Gomez and other similar class members will have to establish some sort of agency or "vicarious liability" principal to establish Hertz's contractual liability. Texas South and Hertz attack nearly every class certification requirement based on the fact that Gomez rented from Texas South and not directly from Hertz.

Hertz and Texas South both focus their arguments on whether Gomez's claims are typical of the class members' claims, and Texas South further argues that common issues will not predominate due to Gomez's unique position in relation to the class. Texas South argues that the trial plan fails to adequately distinguish between Hertz and Texas South and does not explain how the claims will proceed against each defendant, which is particularly egregious given the problems with Gomez's representation of the class. Texas South further argues that Gomez did not put on any evidence demonstrating that he has a viable claim against Texas South because all the evidence presented to the trial court related to FSCs charged by Hertz corporate locations.

Second, Texas South argues that Gomez did not join Texas South as a defendant until September 15, 2004, yet the trial court certified a class of consumers that were charged an FSC after February 6, 2000. According to Texas South, the four-year statute of limitations applicable to this case would bar any claims by class members charged an FSC between February 6, 2000 and September 15, 2000. Texas South argues that this time period accounts for 18.85% of all Texas South's rentals to class members. It argues that the trial court did not address this defense in its trial plan. We agree with both arguments.

A. Trial Plan Requirement

In Southwestern Refining Co. v. Bernal, the Texas Supreme Court explained that it "is improper to certify a class without knowing how the claims can and will likely be tried." 22 S.W.3d at 435. Thus, the supreme court imposed a "trial plan" requirement: "A trial court's certification order must indicate how the claims will likely be tried so that conformance with Rule 42 may be meaningfully evaluated." Id. The court admonished trial courts not to rely on the mere assurances of counsel that any problems with rule 42's requirements can be overcome--rather, the trial court must go beyond the pleadings, understand the claims and defenses, relevant facts, and substantive law in order to determine the certification issues. Id.

B. Problems with Gomez's Representation of the Class

Because we have held that individual issues will predominate with respect to Gomez's fraud and U.C.C. claims, the only remaining claim is Gomez's breach of contract claim. Gomez pleaded apparent authority, agency by estoppel, ratification, vice-principal, joint enterprise, conspiracy, and partnership theories in an attempt to establish a claim against Hertz directly. Hertz and Texas South argue that each of these theories will require an individual analysis that will subsume the litigation.

The trial court's order does not analyze the specific elements of each of these theories. In fact, the trial court's discussion of predominance does not mention these issues at all. In discussing typicality, however, the trial court seems to suggest that these issues could be handled on a class-wide basis:

The fact that Plaintiff will be required to establish corporate liability upon the theories pled does not, as Hertz argues, create a 'unique hurdle' that impermissibly distinguishes Plaintiff from those who rented from a corporate location. There is no conflict between Plaintiff and these corporate renters going to the very subject matter of the lawsuit, if there is any conflict at all. Everyone in the Class was charged an FSC in Texas after February 6, 2000, whether they rented from a licensee or from a corporate location.

Appendix at p. 8. The trial court's order failed to rigorously analyze the predominance requirement by failing to address the elements of proof required for these liability theories and by failing to set out in detail how each element can be managed efficiently on a class-wide basis. Stonebridge Life Ins. Co., 236 S.W.3d at 205; Henry Schein, Inc., 102 S.W.3d at 694; Bernal, 22 S.W.3d at 434.

For example, apparent authority "may arise either from a principal knowingly permitting an agent to hold herself out as having authority or by a principal's actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading a reasonably prudent person to believe that the agent has the authority she purports to exercise." Gibson v. Bostick Roofing and Sheet Metal Co., 148 S.W.3d 482, 491 (Tex. App.-El Paso 2004, no pet.) (citing Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984)); see Patel v. Kuciemba, 82 S.W.3d 589, 596 (Tex. App.-Corpus Christi 2002, pet. denied). Apparent authority is an estoppel principle--that is, it is based on a representation by the principal that causes justifiable reliance and resulting harm. Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 & n.2 (Tex. 1998); Wyndham Hotel Co. v. Self, 893 S.W.2d 630, 634 (Tex. App.-Corpus Christi 1994, writ denied) (providing that party's justifiable, detrimental reliance on representation of authority is element of apparent authority); Ybanez v. Anchor Constructors, Inc., 489 S.W.2d 730, 735 (Tex. Civ. App.-Corpus Christi 1972, writ ref'd n.r.e.) ("The doctrine of apparent authority does not apply if the third person . . . who, by dealing with the agent . . . , was not mislead to such an extent that he has been induced to change his position to his detriment."). The trial court did not analyze whether reliance, under these circumstances, could be established on a class-wide basis, nor did it discuss how such issues could be handled at trial.

In State Farm v. Lopez, the supreme court addressed arguments similar to those advanced by Texas South. 156 S.W.3d at 556. In that case, a class of State Farm policyholders in Texas was certified to prosecute claims for fraud, malicious suppression of dividends, breach of fiduciary duty, and misrepresentation. Id. at 552. The trial court did not include a trial plan in its order certifying the class, and on appeal, the court of appeals held that because predominance and superiority of the class vehicle were not challenged, a trial plan was not required. Id. at 553.

The Texas Supreme Court held that Bernal's trial plan requirement was not limited to an analysis of predominance and superiority. Id. at 555. Rather, the court held that "[r]equiring a certification order to contain a trial plan allows a reviewing court to meaningfully evaluate whether certification of the class conforms with all Rule 42 prerequisites." Id.

State Farm argued that Illinois law applied to bar the class representatives' claims, and because the class representatives had no viable claims, the class representatives' claims were not typical of the class. Id. State Farm also argued that the class representatives were inadequate to represent the class. Id. at 555. It reasoned that current policyholders, like the class representatives, could potentially have an interest in seeking less damages against State Farm to ensure that funds would be available to pay policy claims, whereas former policyholders would not have such an interest. Id. at 556. Furthermore, State Farm argued that the trial court did not consider how to protect the interests of policyholders outside of Texas or the application of Illinois law. Id. at 556.

The supreme court agreed and decertified the class. Id. It held that because the trial court did not (1) identify the specific causes of action to be decided in this case, or (2) indicate how the claims would be tried or the substantive issues that would control the litigation, it could not meaningfully evaluate the challenged requirements for certifying the class. Id. at 556-57.

Here, the trial plan is entirely devoid of any discussion of how the claims against Texas South and Hertz will proceed, given that Gomez did not rent directly from Hertz. Without such an analysis, it is difficult, if not impossible, for us to determine if the class should have been certified. Id. We can surmise that the trial court's failure to include any discussion of these issues in the trial plan is a result of its failure to rigorously analyze the agency principles in light of the predominance requirement, as we held above. It may be that sub-classes should be formed, and a class representative may need to be appointed to represent a subclass of plaintiffs who rented directly from Hertz. The trial court did not explore any of these alternatives. Additionally, the trial court did not analyze how it would handle Texas South's limitations defense. This may be dealt with easily if the trial court chooses to divide the class into subclasses. Again, the trial court did not consider this option.

The trial court held that "[b]ecause all issues in this case are common, the trial plan can be relatively simple, and would require only one jury and one trial." As is apparent from our discussion above, this holding was incorrect, and the landscape of this case has been significantly altered through our discussion of Hertz and Texas South's complaints. Accordingly, we decertify the class breach of contract claims against Hertz and Texas South without prejudice. On remand, the trial court must consider the issues we outlined above and must complete a thorough trial plan that (1) examines the agency theories above in detail; (2) identifies common issues and examines whether those issues will predominate; (3) examines the possibility of subclasses with separate class representatives, or explains how Gomez, if he remains the only class representative, could efficiently prove his claims against Hertz and Texas South in light of the pleaded agency principles.

V. Conclusion

For all the foregoing reasons, we decertify the class and remand to the trial court for proceedings consistent with this opinion.

_____________________________

GINA M. BENAVIDES,

Justice

Opinion delivered and filed

this the 17th day of July, 2008.

1. Texas South Rentals, Inc. is also known as Texas South, Inc. We will refer to it as "Texas South."

2. The order certifying the class is thirty-six pages long, and we have attached the entire order as an appendix to this opinion.

3. It is arguable that this exclusion, by its terms, certifies the class claims only against Hertz and not against Texas South. The trial court's certification order rarely mentions Texas South or identifies it as a separate defendant--an infirmity we rely upon for our holding in Part IV. The trial court assumed that the FSC was "borne out of and distributed by a corporate policy, regardless of whether the entity imposing the charge is a corporate location or a licensee," Appendix at p. 5, and we believe that the trial court did not intend by the language in its order to exclude Texas South as a defendant. Texas South likewise assumes that the order certifies a class against it. We will do the same.

4. In the interest of brevity, we will only discuss the contents of the order where it is pertinent to our analysis.

5. Hertz and Texas South further argue that individual issues will predominate with respect to agency theories Gomez pleaded as a means to establish liability against Hertz. That issue is discussed in Part IV.

6. The court addressed the purchasers' fraud, breach of express warranty, negligent misrepresentation, promissory estoppel, and DTPA "laundry list violations," which all had reliance as an element. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002).

7. In dicta in Southwestern Bell Telephone Co. v. Marketing on Hold, Inc., we surmised that class-wide evidence of reliance could exist in that case. 170 S.W.3d 814, 827-28 (Tex. App.-Corpus Christi 2005, pet. granted). However, we did so only on the assumption that reliance was not an element of the causes of action pleaded in that case. Id. The parties do not dispute that reliance is an issue in this case, and we are not constrained by our prior decision in Southwestern Bell, which is currently under review by the Texas Supreme Court.

8. The supreme court denied review in Alford and dismissed for want of jurisdiction in Chastain. A denial of review or a dismissal of a petition for want of jurisdiction by the Texas Supreme Court is not a comment on the correctness of the court of appeals' opinion below, although parties often argue as much. See Tex. R. App. P. 56.1(b)(1), (2); see also Dylan O. Drummond, Citation Writ Large, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 20 No. 2, pp. 103-05 (Winter 2007).

9. Hertz and Texas South lodge several other arguments against a predominance finding in this case. First, Hertz and Texas South argue that Gomez's claims under the U.C.C. are defensive in nature and cannot provide a method for affirmative relief after a contract has been fully performed. Furthermore, Texas South argues that Gomez's U.C.C. claims require a determination that each plaintiff qualifies as a consumer, raising numerous individual issues. Given our disposition, we need not decide these issues and express no opinion as to these arguments. See Tex. R. App. P. 47.1.

Bully on the Bench~ Our CACJ's "SJ" award goes to ........No robes Judge Gene Knize of the 40th Judicial District.......

2008-04-14T03:42:00.000-07:00

Dallas Observer- Glenna Whitley, April 2007

Wednesday, April 11, 2007
News
Blogs

Article By Glenna Whitley

Bully on the Bench

When big-city lawyers appear in the courtroom of Judge Gene Knize, they better be prepared to duck and cover.

By Glenna Whitley Published: April 12, 2007

The 120 dutiful souls who'd answered their jury summons on January 9 had been sitting in the historic Waxahachie courthouse listening to lawyers drone on for hours. Then suddenly things got weird.

The prosecutor had finished asking questions of potential jurors when David Finn stood up. The 43-year-old Dallas defense lawyer was representing truck driver Leon Williams in the court of state District Judge Gene Knize. The judge, an Ellis County fixture, likes to choose four or five juries in one day. Saves time and money.

Knize's courtroom—ochre walls, rich wood paneling, tall windows, a long curving balcony and a soaring ceiling—is the embodiment of what comes to mind when great old films about American justice are mentioned. But the judge doesn't quite fit the picture. Knize has long made it a policy to wear a suit instead of a black robe while occupying the bench. He doesn't need one.
As his hawk-like face scans the courtroom, there's no doubt who's in charge.

At the defense table sat Williams, a black Air Force veteran accused of negligent homicide in a multi-vehicle crash in which two Ellis County residents had been killed. Though tests showed no drugs or alcohol in Williams' system at the time of the wreck, he was indicted for criminally negligent homicide nine months later.

The state was alleging that he'd been "inattentive" or asleep when the accident occurred. Williams had rejected a plea bargain offered by prosecutors.

"As the judge said a little while ago, my name is David Finn and I'm 43," the defense attorney said. "I live in Dallas, got four kids and a wife."
Knize interrupted. "No biographies." "But it's my time, judge," Finn said. He thought better and moved on.

As Finn asked questions, Jeffrey Spence, a diesel mechanic on the jury panel, could see a sneer develop on Knize's face. Spence would later testify that the judge looked at Finn as if the defense attorney were "a neighbor's dog" running loose in his yard, according to an account of the proceedings in the Waxahachie Daily Light.

To jury panelist Deborah Kuykendall, the tension seemed to be coming from the judge, not Finn. Knize hadn't interrupted the prosecutor, but he kept stopping Finn to argue with him. It was like Knize "was establishing his dominance."

Leon Williams was aghast. The judge was going after the man who stood between him and prison.

The exchanges ratcheted up as Knize argued with Finn. A former judge himself, Finn refused to back down.

"All right," Finn said as his 30 minutes ended. "Judge, I turn it back to you. Ladies and gentlemen, thank you very much. You've been wonderful, and it will be an interesting trial."

The jurors heard clapping. Knize had risen, walked around the witness chair and was looking at Finn with contempt. "Am I supposed to bow and genuflect now?" he said.
"No," Finn replied. "That's what I do." He knelt in front of the judge and crossed himself.

Now Knize was furious. "Move it," he yelled. "Get over there. I would suggest you cut it out." The judge walked up to Finn. Knize, so angry he was shaking, said in a low tone, "I suggest you better make darn sure you're never one minute late for my court—ever—if you know what's good for you."

Only someone listening to a ball game on their iPod could have failed to notice that the judge regarded Finn like something nasty on the bottom of his shoe.

The lawyers left the room and returned 10 minutes later. Finn and the prosecutor read off their "strikes"—the people they didn't want on the jury. As the 12 people who made the cut took their seats, Finn was pleased to see that several jurors were truck drivers or wives of truck drivers; one was married to a man who'd spent his career in the Air Force, like Williams. Two knew his co-counsel, Waxahachie lawyer Mark Griffith.

Though the dozen citizens were white and his client was black, Finn considered it a "home run," the perfect jury to hear all the facts in Texas v. Williams. Despite the judge's strange behavior, Finn, Williams and Griffith were pleased.

Knize told the jurors to show up on January 29 and to anticipate a three-day trial. But in the week after jury selection, Finn heard something astonishing. Knize planned to dismiss the panel. No reason. No hearing. Nothing. Not even a courtesy call.

Finn's research showed that never in the history of Texas jurisprudence had a judge done such a thing. On January 12, Finn received a one-page letter from Knize saying that the jury which had been "seated but not sworn" was discharged, meaning Finn's "home run" jury would not be hearing the case.

No defense attorney could let this go unchallenged. It was like the umpire in a baseball game calling strikes before they crossed the plate, a referee tripping a receiver after he intercepted a pass. Justice requires a judge who is unbiased and even-handed.

Someone quite unlike Judge Wesley Gene Knize.

The Texas Code of Judicial Conduct describes the decorum and duties of judges, whether they sit on the Texas Supreme Court or occupy a Justice of the Peace office in Loving County, population 52. A judge should be dignified, patient, courteous to all parties, knowledgeable of the law. He should maintain order in the court. He shall be unbiased. He shall recuse himself if there's a conflict of interest.

According to lawyers who have appeared in his court, Knize is often sarcastic, impatient, rude, arbitrary and short-tempered. Though smart and knowledgeable of the law, Knize in the past has imposed rules in his court that plainly deny defendants' rights to a fair trial.

In his 35 years of legal experience, Knize has never served as a defense attorney. His attitude is that of a prosecutor—the job he held during the first half of his career. An Ellis County native and lifelong member of St. John Catholic Church in Ennis, 65-year-old Knize attended St. Mary's University in San Antonio for both his bachelor's degree and law degree, which he received in 1967. He served two years in the military and signed on as an assistant district attorney in Waxahachie soon after he left the Army. After two years as a prosecutor, Knize became Ellis County district attorney and held that office from October 1, 1969, until January 16, 1986.
His office tried cases in front of 40th District Court Judge Joe Grubbs, now the district attorney. Though he began his career as a Democrat, Knize jumped to the Republican Party in 1993. He said it was because the GOP represented his conservative values, though it also happened that Ellis County Democrats were becoming an endangered species.

Knize often gives the appearance of favoring prosecutors. "He's more of a prosecutor than the prosecutors are," says one Dallas defense attorney who refuses to try any cases in Ellis County as a result of an unpleasant encounter with the judge.

Don't like his rulings? "Take it to Waco," Knize has been known to say. That's where the Court of Criminal Appeals handles cases coming out of his court. That court has twice subjected Knize to conditional "writs of mandamus," which are used by the appellate justices only in drastic cases. In these instances, the justices told Knize to quit violating defendants' rights.

One of two state district judges in Ellis County, Knize hears all criminal and civil trials of any consequence and is well-known for ruling his domain like a fiefdom. Lawyers who practice in the county must learn to get along with Knize if they want to succeed. Lawyers who don't like Knize—and there are many—argue that he is a petty tyrant. Those who consider him a friend would simply say he's a tyrant.

Rodney Ramsey, a former police officer who got a law degree, calls Knize "old-school." Ramsey, who has appeared in Knize's court as a witness but not as a lawyer, says, "His attitude, personality and persona are not likable or warm. I think he's harsh as far as the law goes. Strict and stern but fair. The prosecutors love him; the defense attorneys—some feel he's too hard, but not all."

Attorneys who've practiced in his court are quick to offer Knize horror stories—mostly off the record.

In the '90s, a Dallas lawyer representing a poor client with a pregnant wife agreed to a plea bargain, which required the defendant to make payments to the court on the 15th of every month. But when the lawyer asked Knize if they could change the date to coincide with his client's payday, Knize slammed down the file and stormed off the bench.

In January 1999, when Paul Ray Davis pleaded guilty to a drug charge, Knize gave him eight years of probation. But Knize threw a fit when he discovered that Davis had taken the plea bargain and then appealed the judge's earlier decision denying his motion to suppress evidence.
Knize responded by filing his own motion for a hearing. The judge found in his own favor and signed an order directing Davis, his attorney and the prosecutor to appear for a hearing on whether a new trial would be granted. At the end of that hearing, Knize granted his own motion, setting aside the judgment and ordering a new trial.

To say this is bizarre is an understatement. Judges don't file motions; they rule on others' motions. At least that's what the appellate court told Knize.

Another priceless Knize incident occurred when a Hispanic defendant was late to a court hearing and the lawyer explained that the man didn't understand the court's directions. Knize's reported response: "I'm throwing you in jail until you learn to speak English."

Lawyers and clients claim Knize often appears inattentive and has fallen asleep—allegedly four times in one trial. One lawyer told a newspaper that he saw AOL reflected in the judge's glasses and believes the judge was surfing the Internet on the bench. Knize is known to prop his feet on the back wall, his back to the proceedings. (In a recent capital murder case, Knize turned his back to the jury while lawyers made their closing arguments.)

Attorneys who ask for a postponement of a trial risk Knize moving the trial even earlier.

Lawyers who challenge his rulings get threatened with arrest for contempt of court. One attorney says he carries a motion in his briefcase at all times to file immediately if Knize follows through.

Though a Republican, Knize has a reputation for being lenient with sex offenders. He even delayed the sentencing of a local lawyer on child abuse charges until after the last election; the man got probation.

He also has unusual ideas about property rights. In a lawsuit concerning a feud between two former business partners, Knize ordered a local organic farmer not to spread manure within 500 feet of his neighbor's property because it stank, a contention that wasn't part of the lawsuit.
Another man embroiled in a feud collapsed and died on the courthouse steps in 1999. His wife blamed the stress on Knize's rulings regarding their property. Knize had ordered the man to remove his fence so the neighbor could drive on his property rather than remove her tree.
The populace keeps electing him anyway. Why not? The editor of the county's largest local paper, the Waxahachie Daily Light, is an unabashed advocate.

Most voters never see the inside of his courtroom and know little about the law. He's been endorsed by District Attorney Joe Grubbs, Ellis County Sheriff Ray Stewart, U.S. Congressman Joe Barton and former 10th Court of Appeals Chief Justice Rex Davis.

In a Texas Lawyer survey of attorneys practicing in Ellis County, Knize was named "Best Judge."

But Knize's rulings galvanized opposition last year when he drew his first opponent in the Republican primary.

Knize declined a request for an interview, saying he was unable to comment on pending cases. He also declined to talk about his policies.

But he's left a long paper trial, and his attitude toward jurisprudence, especially when someone's freedom is at stake, can be determined by looking at a handful of cases where judges of higher courts have rebuked him.

In 1994, James and Regina Kozacki were indicted for engaging in organized criminal activity. They stewed in jail on $75,000 bail because Knize refused to let their attorneys appear for a bond reduction hearing unless they agreed to represent the Kozackis through the entire criminal proceedings. This wasn't required by law; it was just one of Knize's arbitrary rules.
After denying a second motion to hear their request for a bond reduction, Knize told the Kozackis to "take it to Waco."

In an unusual twist, Knize presented oral arguments to the Court of Appeals on his own behalf, saying that his rule was designed to prohibit defendants from "piece-mealing" their legal representation to "thwart the ability of the court to expeditiously manage its docket and administer justice."

In other words, it was more convenient for Knize.

The appellate court slapped Knize down, saying the court had no option once a motion for a hearing to reduce bail was properly filed and presented. The effect of his "absolute rule" would be to deny the defendants their constitutional right to choose counsel, a violation of the 6th Amendment.

But local attorneys say Knize still requires them to represent indigent clients throughout the criminal proceedings if they receive appointments by the court. Why? Because he can.

One of Knize's fundamental beliefs is that plea bargains are good, jury trials are bad. Not only do trials clog up his courtroom, they are expensive. And jurors, well, they are always getting things wrong.

The case of Nathan Kniatt is quintessential Knize.

On June 10, 2001, Nathan Kniatt, 18, was searched by Ellis County police without a warrant and arrested when they found methamphetamine. He bonded out of jail about a week later.
Two months later, Kniatt was indicted for possession of less than a gram of methamphetamine. In a pretrial hearing in December 2001, Kniatt's lawyer Ted Redington and Assistant District Attorney Patrick Wilson told Knize that Kniatt had agreed to a plea bargain but had changed his mind after talking to his father and now wanted a jury trial.

"As I understand from the attorneys," Knize said, "they thought they had a plea agreement. In fact they did have a plea agreement and today the defendant has reneged on that...I've also been informed he wants to fire his lawyer. All that's OK with me...Defendant's bond is revoked. He's going to jail pending trial. Have a seat over there, sir. We'll set your trial when we get around to it."

Kniatt would later testify that he had not agreed to the plea. He claimed prosecutor Wilson had "threatened" him "that if he didn't take the plea bargain on that day, that they wouldn't offer it again and they would give him the maximum sentence."

Nathan's father Paul Kniatt testified that immediately before the December hearing he heard Redington warn his son that if he rejected the deal "the judge was going to put him in jail" and that his only option was an "arguable" motion to suppress the evidence because police had no warrant.

But the threat of sitting in jail for "who knows how long" prompted Nathan Kniatt to take the plea four days later. In court, Kniatt said that he was making the plea voluntarily and received three years of community supervision, a fine of $3,000 and deferred adjudication.

Two years later the district attorney's office filed a motion to revoke Kniatt's deferred adjudication for allegedly violating the supervision order, and he was re-arrested. Knize found him guilty of the original charge and ordered him jailed for 200 days.

Kniatt filed a writ of habeas corpus to get out of jail, appealed his convict
ion and tried to get Knize recused from the case. This led to a hearing in which Knize refused to step down and admitted that he had "sanctioned" Kniatt by revoking his first bond because of his decision to renege on the plea bargain and replace his counsel.

" Waco" would later rule that Kniatt's plea agreement was involuntarily coerced by Knize's threat of jail and that his revocation of bond was unlawful because bonds are used to ensure that defendants appear in court, not as punishment. That court reversed Kniatt's conviction and ordered a new trial. If you read between the lines, the appellate justices seem to be asking Grubbs and Knize, "What the hell are you doing down there in Waxahachie?"

After various appeals up and down the chain, the case now resides in Waco. In oral arguments before that court, counsel for the state admitted that what Knize had done was illegal.

"What Judge Knize was running was assembly-line justice," says Denton lawyer Richard Gladden, who now represents Kniatt. "If you don't plead guilty, he'll throw you in jail. I'm astonished that the voters of Ellis County keep electing him."

Last year, Knize drew his first opponent in the Republican primary: Dan Altman, who practices law in Dallas.

"I had a case in his court six months before the election, and it wasn't what I expected in decorum from a judge," Altman says. The civil case involved a widow who owned a building that had fallen into disrepair after her husband died. Altman produced case law that indicated the woman had the right to do what she wanted with her building as long as she wasn't violating city codes.

"If it's not the law the way I saw it is," Knize told Altman, "it should be."

"He went out of his way saying that he didn't find my client credible or telling the truth," Altman says, "which makes it unappealable. His attitude was contemptuous. It was obvious he wasn't listening to my client."

After talking to other lawyers and hearing their tales about Knize, the mild-mannered Altman decided the judge didn't deserve to win without a challenge.

"A lot of people who supported me had been on jury panels and felt he was condescending and wasted their time," Altman says. "He'll often get up in front of the jury and go on for an hour. He's not someone who doesn't know criminal law. He uses it to run the court the way he wants to and to favor the prosecution."

Knize touted his statistics: "Despite an almost 40 percent increase in the number of cases filed in the last five years, there is no backlog in the 40th District Court." He boasted of his 35 years of service as district attorney and judge and derided Altman as a "personal injury and criminal defense attorney." Signs supporting Knize sprouted in law firms' windows.

At a civic luncheon, Knize described why plea bargains were a necessity. "You want to know why you can't live without plea bargaining?" Knize said, as reported by Matt Cook in the Ennis Daily News. "Because you can't afford it. You don't want to pay for jury members, which has gone up to $40 a day." In addition, those who plead are better about paying their fines; fines levied after conviction by a jury trial are rarely paid, he said. (Most inmates don't have jobs to pay fines.)

Without plea bargains, Knize argued, the truth wouldn't come out. "We think in our minds that a trial will get to the truth," Knize said. "I use the O.J. Simpson trial as a notorious case. Anyone who had an opinion going in had the same opinion going out. It didn't change."

Then the election turned nasty. On one side was the Waxahachie Daily Light supporting Knize; in Altman's corner was the Ellis County Press and a feisty 26-year-old named Joey Dauben, a former reporter for the Press who started a blog called the Ellis County Observer. Dauben went after both Grubbs and Knize, accusing them of cronyism, violations of people's rights and, in one case, sending an innocent man to prison.

"I'm so sick and tired of this corruption I'm going to law school so I can become a judge in Ellis County," Dauben says. He's running for a Waxahachie city council seat.

Marshall Evans, a real estate investor and past chair of a local group called Taxpayers Alliance for Good Government, worked hard for Altman's campaign.

"During the election, [Knize] called around to attorneys and pressured them to put campaign signs in their windows," Evans claims. "You have all these establishment types in town, and they won't cross him. You cannot get justice in his court if you show up with a big-city attorney. There are people who have said they'll file a grievance with the folks in Austin, and he says, 'Fine, your client will spend that time in jail.' But Ellis County is growing, and people aren't going to accept that anymore."

The Daily Light dug up the fact that Altman's law license had twice been briefly suspended: once for a month in 1996 because he failed to pay a $10 fine assessed after he was nine days late paying his occupational license fee.

The other suspension occurred when he submitted his required continuing education paperwork online before the deadline but it wasn't received. That led to an administrative suspension for nine days. Altman told the editor of the newspaper that they were "technical errors" that he rectified as soon as he learned about them.

The Daily Light ran those two words in a second-coming-of-Jesus-size headline and blasted Altman for his dereliction of duty.

People supporting Altman dragged out a 14-year-old letter Knize had written to Dallas Bishop Charles Grahmann in support of his priest, Rudy Kos, then serving at St. John in Ennis.

Knize identified himself as a judge, gave a lengthy biography and told the bishop to ignore those criticizing Kos for matters involving church and school business. He contended that Kos was doing a great job with the school and other parish ministries. "Please do not make a decision based on claims of the ever-present malcontents," he wrote.

Though there was no indication that Knize knew about Kos' proclivity for sex with altar boys, the priest's subsequent indictment and conviction made the judge's motives look questionable, especially after several victims at St. John alleged the church leadership ignored efforts to investigate allegations of Kos' sexual misconduct. The letter later ended up as evidence in a lawsuit against Kos and the diocese.

In a deposition, Knize said he wrote the letter in defense of Kos because the bishop was receiving complaints from the church school's administration that the priest was "interfering with the principals." Kos was concerned that the conflict might result in his transfer, so Knize, who had served on four school boards and three parish councils, volunteered to write a letter of support. Though he did no further research to find out what the real problems were, Knize wrote the letter singing Kos' praises.

In a Daily Light editorial, the editor blasted whomever leaked the letter. "The obvious attempt to assassinate the character of incumbent Judge Gene Knize is nothing more than an act of shameless cowards hell-bent on winning at all costs," the editorial said. "It is no different than an act of terror—the only difference being that most terror organizations, such as the Klan and al Qaeda, openly claim responsibility for their acts."

Some of Knize's rulings appear to support the contention of detractors that Knize is soft on sex offenders. In the case of Dr. Aniruddha Ashok Chitale, an Ennis physician who was charged with sexual misconduct involving four patients, including ejaculating on them while they were under anesthesia, Knize agreed to a plea bargain of six months in jail and 10 years' probation.

Local attorney James Leonard pleaded guilty and received a 10-year probated sentence for three counts of sexually assaulting two children less than 14 years old. He served only six months in jail. (Knize delayed the sentencing until after the election.) The Daily Light reported that one protester appeared at a campaign event carrying a sign that said, "Does Knize Love Baby Rapers?"

The campaign became blistering at a public forum. Altman pledged to be "tough on crime, to apply civil law in a fair and predictable manner and...[to] protect your constitutional rights."Knize got angry at a question from a member of the audience about "jury nullification," which allows citizens to acquit defendants if they believe the prosecution has committed misconduct. Altman argued that juries usually reach the right verdict. Knize lost his temper and started yelling.

Farmers Branch city councilman and fellow Republican Tim O'Hare wrote a letter to the Daily Light before the election, calling for Knize's ouster. O'Hare had represented residents of Midlothian in a civil case in Ellis County.

"Our experience in Judge Knize's court was the most egregious example of favoritism and disregard for the plain rule of law that I have ever experienced," O'Hare wrote.

"Judge Knize forced our clients to try their case with approximately 14 days notice when the state rule plainly required a 45-day notice. During the trial, Judge Knize disregarded the law and made improper rulings even though there was absolutely no evidence supporting his rulings. This is not simply my opinion.

The Court of Appeals in Waco agreed.

The appellate court found that Judge Knize disregarded the facts, the law and the evidence and reversed his judgment entirely...I truly wonder whether Judge Knize's decision in our case was based on the fact that the law firm we were up against supports him politically and employs a couple of his biggest campaign contributors."

Altman lost the primary but ended up with 35 percent of the vote, not bad for an unknown. With no Democratic opponent, Knize kept his bench.

David Finn's battle with Knize was just beginning when the judge dismissed the jury impaneled for the Leon Williams case.

But this time Knize picked a fight with the wrong out-of-towner. Finn's father, Frank Finn, once head of the Dallas County Republican Party, is fond of saying that David "goes through life like his hair is on fire." He's been a federal and state prosecutor, a judge and now practices criminal defense and civil litigation.

But during jury selection in Knize's court, Finn says, "I felt like the 'two youths' in My Cousin Vinny."

This was actually the second jury to be picked for the trial of Leon Williams, who was out of jail on bond. The first had been chosen last fall. When several jurors got sick before the trial began, Knize's solution was to bring in several replacements without the required questioning by the attorneys. When Finn protested that he knew nothing about those jurors, Knize got angry. He dismissed that jury and told Finn to come back in January to pick another.

After hearing that Knize planned to dismiss the second jury, Finn filed a hasty motion requesting a hearing, saying: "In this unprecedented action, the Court has unilaterally undermined the defendant's right to a fair trial."

In an affidavit, Williams said he had been very pleased with the jury. "I do not believe I will ever get a better jury to hear the facts of my case," even though he was black and the jury all white.
When Knize refused to reinstate the jury, Finn filed a motion saying another judge should hear the case because Knize had threatened him and could no longer give Williams a fair trial.

Four members of the jury pool testified they didn't think Knize could give Williams a fair trial, including diesel mechanic Spence, who told Senior Judge Bill Coker of Dallas that Knize seemed unprofessional.

Finn testified that Knize "was trying to bully me and I stood up to him and that's what made him upset. He was furious. He was shaking, and I felt like he was going to punch me."

Coker ruled in favor of Finn, who had posted the transcript of the jury selection on his blog. The district attorney's office asked for reconsideration, saying the jurors' testimony showed Knize was right to discharge them. But Coker let the recusal stand.

Another jury and Judge Richard Davis of Canton will hear the case on July 30, 2007.
Knize never explained why he dismissed the jury.

Maybe it was just because he could.
Posted by dannoynted1 at 7:41 AM 0 comments Links to this post
Labels: Catholic Priest, Church Business, David Finn, Ellis, Jury Tampering, Knize, KOS
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"Under our Constitution, the condition of being a boy does not justify a kangaroo court."

2008-03-28T03:35:00.001-07:00

IN RE GAULT

387 U.S. 1; 18 L. Ed. 2d 527; 87 S.Ct. 1428 (1967)

Mr. Justice Fortas delivered the opinion of the Court.

. . . On Monday, June 8, 1965, at about 10 a.m., Gerald Francis Gault and a friend, Ronald Lewis, were taken into custody by the Sheriff of Gila County. Gerald was then still subject to a six months' probation order which had been entered on February 25, 1964, as a result of his having been in the company of another boy who had stolen a wallet from a lady's purse. The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, Mrs. Cook, about a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly, offensive, adolescent, sex variety.

At the time Gerald was picked up, his mother and father were both at work. No notice that Gerald was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. Gerald was taken to the Children's Detention Home. When his mother arrived home at about 6 o'clock, Gerald was not there. Gerald's older brother was sent to look for him at the trailer home of the Lewis family. He apparently learned then that Gerald was in custody: He so informed his mother. The two of them went to the Detention Home. The deputy probation officer, Flagg, who was also superintendent of the Detention Home, told Mrs. Gault "why Jerry was there" and said that a hearing would be held in Juvenile Court at 3 o'clock the following day, June 9.

Officer Flagg filed a petition with the court on the hearing day, June 9, 1964. It was not served on the Gaults. Indeed, none of them saw this petition until the habeas corpus hearing on August 17, 1964. The petition was entirely formal. It made no reference to any factual basis for the judicial action which it initiated. It recited only that "said minor is under the age of eighteen years and is in need of the protection of this Honorable court; [and that] said minor is a delinquent minor;" It prayed for a hearing and an order regarding "the care and custody of said minor." Officer Flagg executed a formal affidavit in support of the petition.

On June 9, Gerald, his mother, his older brother, and Probation Officers Flagg and Henderson appeared before the Juvenile Judge in chambers. Gerald's father was not there. He was at work out of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared. Our information about the proceedings and the subsequent hearing on June 15, derives entirely from the testimony of the Juvenile Court Judge, Mr. and Mrs. Gault and Officer Flagg at the habeas corpus proceeding conducted two months later. From this, it appears that at the June 9 hearing Gerald was questioned by the judge about the telephone call. There was conflict as to what he said. His mother recalled that Gerald said he only dialed Mrs. Cook's number and handed the telephone to his friend, Ronald. Officer Flagg recalled that Gerald had admitted making the lewd remarks. Judge McGhee testified that Gerald "admitted making one of these [lewd] statements." At the conclusion of the hearing, the judge said he would "think about it." Gerald was taken back to the Detention Home. He was not sent to his own home with his parents. On June 11 or 12, after having been detained since June 8, Gerald was released and driven home. There is no explanation in the record as to why he was kept in the Detention Home or why he was released. At 5 p.m. on the day of Gerald's release, Mrs. Gault received a note signed by Officer Flagg. It was on plain paper, not letterhead. Its entire text was as follows:

Mrs. Gault:

Judge McGhee has set Monday, June 15, 1964 at 11:00 a.m. as the date and time for further Hearings on Gerald's delinquency.

/s/Flagg

At the appointed time on Monday, June 15, Gerald, his father and mother, Ronald Lewis and his father, and Officer Flagg and Henderson were present before Judge McGhee. Witnesses at the habeas corpus proceeding differed in their recollections of Gerald's testimony at the June 15 hearing. Mr. and Mrs. Gault recalled that Gerald again testified that he had only dialed the number and that the other boy had made the remarks. Officer Flagg agreed that at this hearing Gerald did not admit making the lewd remarks. But Judge McGhee recalled that "there was some admission again of some of the lewd statements. He -- he didn't admit any of the more serious lewd statements." Again, the complainant, Mrs. Cook, was not present. Mrs. Gault asked that Mrs. Cook be present "so she could see which boy that done the talking, the dirty talking over the phone." The Juvenile Judge said "she didn't have to be present at that hearing." The judge did not speak to Mrs. Cook or communicate with her at any time. Probation Officer Flagg had talked to her once--over the telephone on June 9.

At this June 15 hearing a "referral report" made by the probation officers was filed with the court, although not disclosed to Gerald or his parents. This listed the charge as "Lewd Phone Calls." At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School "for the period of his minority [that is, until 21] unless sooner discharged by due process of law." . . .

No appeal is permitted by Arizona law in juvenile cases. On August 3, 1964, a petition for a writ of habeas corpus was filed with the Supreme Court of Arizona and referred by it to the Superior Court for hearing.

At the habeas corpus hearing on August 17, Judge McGhee was vigorously cross-examined as to the basis for his actions. He testified that he had taken into account the fact that Gerald was on probation. He was asked "under what section of . . . the code you found the boy delinquent."

His answer is set forth in the margin. In substance, he concluded that Gerald came within ARS 8-201-6(a), which specifies that a "delinquent child" includes one "who has violated a law of the state or an ordinance or regulation of a political subdivision thereof." The law which Gerald was found to have violated . . . provides that a person who "in the presence of hearing of any woman or child . . . uses vulgar, abusive or obscene language, is guilty of a misdemeanor. . ." The penalty specified in the Criminal Code, which would apply to an adult, is $5 to $50, or imprisonment for not more than two months. The judge also testified that he acted under ARS 8-201-6(d) which includes in the definition of a "delinquent child" one who, as the judge phrased it, is "habitually involved in immoral matters."

Asked about this basis for his conclusion that Gerald was "habitually involved in immoral matters," the judge testified, somewhat vaguely, that two years earlier, on July 2, 1962, a "referral" was made concerning Gerald, "where the boy had stolen a baseball glove from another boy and lied to the Police Department about it." The judge said there was "no hearing," and "no accusation" relating to this incident, "because of lack of material foundation." But it seems to have remained in his mind as a relevant factor. The judge also testified that Gerald had admitted making other nuisance phone calls in the past which, as the judge recalled the boy's testimony, were "silly calls, or funny calls, or something like that."

The Superior Court dismissed the writ, and appellants sought review in the Arizona Supreme Court. . . .

The Supreme Court handed down an elaborate and wide-ranging opinion affirming dismissal of the writ and stated the court's conclusions as to the issues raised by appellants and other aspects of the juvenile process. In their jurisdictional statement and brief in this Court, appellants do not urge upon us all of the points passed upon by the Supreme Court of Arizona. They urge that we hold the Juvenile Code of Arizona invalid on its face or as applied in this case because, contrary to the Due Process Clause of the Fourteenth Amendment, the juvenile is taken from the custody of his parents and committed to a state institution pursuant to proceedings in which the Juvenile Court has virtually unlimited discretion, and in which the following basic rights are denied:

1. Notice of the charges;

2. Right to counsel;

3. Right to confrontation and cross-examination;

4. Privilege against self-incrimination;

5. Right to a transcript of the proceedings;

and

6. Right to appellate review.

. . . From the inception of the juvenile court system, wide differences have been tolerated--

indeed even insisted upon--between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In addition to the specific problems involved in the present case, for example, it has been held that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury. It is frequent practice that rules governing the arrest and interrogation of adults by the police are not observed in the case of juveniles.

The history and theory underlying this development are well-known, but a recapitulation is necessary for purposes of this opinion. The juvenile court movement began in this country at the end of the last century. From the Juvenile Court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico. The constitutionality of Juvenile Court laws has been sustained in over 40 jurisdictions against a variety of attacks.

The early reformers were appalled by adult procedures and penalties and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was "guilty" or "innocent," but "What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." The child--especially good, as they saw it--was to be made "to feel that he is the object of [the state's] care and solicitude," not that he was under arrest or on trial. The rules of criminal procedure were therefore altogether inapplicable. The apparent rigidities, technicalities, and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded. The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated" and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive.

These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae. The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historic credentials are of dubious relevance. The phrase was taken from chancery practice, where, however, it was used to describe the power of the state to act in loco parentis for the purpose of protecting the property interests and the person of the child. But there is no trace of the doctrine in the history of criminal jurisprudence. At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders. In these old days, the state was not deemed to have authority to accord them fewer procedural rights than adults.

The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody." He can be made to attorn to his parents, to go to school, etc. If his parents default in effective performing their custodial functions--that is, if the child is "delinquent"--the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil" not "criminal" and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.

Accordingly, the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is--to say the least--debatable. And in practice, . . . the results have not been entirely satisfactory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: "The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts. . . ." The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. The Chairman of the Pennsylvania Council of Juvenile Court Judges has recently observed: "Unfortunately, loose procedures, high-handed methods and crowded court calendars, either singly or in combination, all too often, have resulted in depriving some juveniles of fundamental rights that have resulted in a denial of due process. . . .

It is claimed that juveniles obtain benefits from the special procedures applicable to them which more than offset the disadvantages of denial of the substance of normal due process. As we shall discuss, the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process. But it is important, we think that the claimed benefits of the juvenile process should be candidly appraised. Neither sentiment or folklore should cause us to shut our eyes, for example, to such startling findings as that reported in an exceptionally reliable study of repeaters or recidivism conducted by the Stanford Research Institute for the President's Commission on Crime in the District of Columbia. This Commission's Report states:

In fiscal 1966 approximately 66 percent of the 16- and 17-year-old juveniles referred to the court by the Youth Aid Division had been before the court previously; 1965, 56 percent of those in the Receiving Home were repeaters. The SRI study revealed that 61 percent of the sample Juvenile Court referrals in 1965 had been previously referred at least once and that 42 percent had been referred at least twice before. * * *

Certainly, these figures and the high crime rates among juveniles to which we have referred, could not lead us to conclude that the absence of constitutional protections reduces crime, or that the juvenile system, functioning free of constitutional inhibitions as it has largely done, is effective to reduce crime or rehabilitate offenders. We do not mean by this to denigrate the juvenile court process or to suggest that there are not aspects of the juvenile system relating to offenders which are valuable. But the features of the juvenile system which its proponents have asserted are of unique benefit will not be impaired by constitutional domestication. For example, the commendable principles relating to the processing and treatment of juveniles separately from adults are in no way involved or affected by the procedural issues under discussion. Further, we are told that one of the important benefits of the special juvenile court procedures is that they avoid classifying the juvenile as a "criminal." The juvenile offender is now classed as a "delinquent." There is, of course, no reason why this should not continue. It is disconcerting, however, that this term has come to involve only slightly less stigma than the term "criminal" applied to adults. It is also emphasized that in practically all jurisdictions, statutes provide that an adjudication of the child as a delinquent shall not operate as a civil disability or disqualify him for civil service appointment. There is no reason why the application of due process requirements should interfere with such provisions. . . .

Further, it is urged that the juvenile benefits from informal proceedings in the court. The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help "to save him from a downward career." Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising unanimity, entered sharp dissent as to the validity of this gentle conception. They suggest that the appearance as well as the actuality of fairness, impartiality and orderliness--in short, the essentials of due process--may be a more impressive and more therapeutic attitude so far as the juvenile is concerned. . . .

Ultimately, however, we confront the reality of that portion of the Juvenile Court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence--and of limited practical meaning--that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemestic the title, a "receiving home" or an "industrial school" for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes "a building with whitewashed walls, regimented routine and institutional hours. . . ." Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and "delinquents" confined with him for anything from waywardness to rape and homicide.

In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it--was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected? Under traditional notions, one would assume that in a case like that of Gerald Gault, where the juvenile appears to have a home, a working mother and father, and an older brother, the Juvenile Judge would have made a careful inquiry and judgment as to the possibility that the boy could be disciplined and dealt with at home, despite his previous transgressions. Indeed, so far as appears in the record before us . . . the points to which the judge directed his attention were little different from those that would be involved in determining any charge of violation of a penal statute. The essential difference between Gerald's case and a normal criminal case is that safeguards available to adults were discarded in Gerald's case. The summary procedure as well as the long commitment was possible because Gerald was 15 years of age instead of over 18. . . .

Appellants allege that the Arizona Juvenile Code is unconstitutional or alternatively that the proceedings before the Juvenile Court were constitutionally defective because of failure to provide adequate notice of the hearings. . . .

. . . Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must "set forth the alleged misconduct with particularity." It is obvious that no purpose of shielding the child from the public stigma of knowledge of his having been taken into custody and scheduled for hearing is served by the procedure approved by the court below. The "initial hearing" in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. . . .

Appellants charge that the Juvenile Court proceedings were fatally defective because the court did not advise Gerald or his parents of their right to counsel, and proceeded with the hearing, the adjudication of delinquency and the order of commitment in the absence of counsel for the child and his parents or an express waiver of the right thereto. . . . A proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child "requires the guiding hand of counsel at every step in the proceedings against him."

. . .

We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. . . .

Appellants urge that the writ of habeas corpus should have been granted because of the denial of the rights of confrontation and cross-examination in the Juvenile Court hearings, and because the privilege against self-incrimination was not observed. . . .

The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth. The roots of the privilege are, however, far deeper. They tap the basic stream of religious and political principle because the privilege reflects the limits of the individual's attornment to the state and--in a philosophical sense--insists upon the equality of the individual and the state. In other words, the privilege has a broader and deeper thrust than the rule which prevents the use of confessions which are the product of coercion because coercion is thought to carry with it the danger of unreliability. One of its purposes is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction.

It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. . . .

Against the application to juveniles of the right to silence, it is argued that juvenile proceedings are "civil" and not "criminal," and therefore the privilege should not apply. It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person "shall be compelled in any criminal case to be a witness against himself." However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.

It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the grounds that these cannot lead to "criminal" involvement. In the first place, juvenile proceedings to determine "delinquency," which may lead to commitment to a state institution, must be regarded as "criminal" for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the "civil" label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is no even assurance that the juvenile will be kept in separate institutions, apart from adult "criminals." In those States juveniles may be placed in or transferred to adult penal institutions after having been found "delinquent" by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called "criminal" or "civil" And our Constitution guarantees that no person shall be "compelled" to be a witness against himself when he is threatened with deprivation of his liberty--a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom. . . .

We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique--but not in principle--depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair. . . .

Absent a valid confession adequate to support the determination of the Juvenile Court, confrontation and sworn testimony by witnesses available for cross-examination were not essential for a finding of "delinquency. . . ."

. . . We now hold that, absent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements.

Appellants urge that the Arizona statute is unconstitutional under the Due Process Clause because, as construed by its Supreme Court, "there is no right of appeal from a juvenile court order. . . ." The court held that there is no right to a transcript because there is no right to appeal and because the proceedings are confidential and any record must be destroyed after a prescribed period of time. Whether a transcript or other recording is made, it held, is a matter for the discretion of the juvenile court. . . .

As the present case illustrates, the consequences of failure to provide an appeal, to record the proceedings, or to make findings or state the grounds for the juvenile court's conclusion may be to throw a burden upon the machinery for habeas corpus, to saddle the reviewing process with the burden of attempting to reconstruct a record, and to impose upon the Juvenile Judge the unseemly duty of testifying under cross-examination as to the events that transpired in the hearings before him.

For the reasons stated, the judgment of the Supreme Court of Arizona is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black, concurring. . . .

Mr. Justice White, concurring. . . .

Mr. Justice Harlan, concurring in part and dissenting in part. . . .

Mr. Justice Stewart, dissenting.

The Court today uses an obscure Arizona case as a vehicle to impose upon thousands of juvenile courts throughout the Nation restrictions that the Constitution made applicable to adversary criminal trials. I believe the Court's decision is wholly unsound as a matter of constitutional law, and sadly unwise as a matter of judicial policy.

Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, a juvenile proceeding's whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act.

In the last 70 years many dedicated men and women have devoted their professional lives to the enlightened task of bringing us out of the dark world of Charles Dickens in meeting our responsibilities to the child in our society. The result has been the creation in this century of a system of juvenile and family courts in each of the 50 States. There can be no denying that in many areas the performance of these agencies has fallen disappointingly short of the hopes and dreams of the courageous pioneers who first conceived them. For a variety of reasons, the reality has sometimes not even approached the ideal, and much remains to be accomplished in the administration of public juvenile and family agencies--in personnel, in planning, in financing, perhaps in the formulation of wholly new approaches.

I possess neither the specialized experience nor the expert knowledge to predict with any certainty where may lie the brightest hope for progress in dealing with the serious problems of juvenile delinquency. But I am certain that the answer does not lie in the Court's opinion in this case, which serves to convert a juvenile proceeding into a criminal prosecution. . . .

the State offered into evidence the Predisposition and Social History report prepared by the juvenile department.

2008-01-16T04:16:00.000-08:00

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NUMBER 13-04-552-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

J.A.W.R., A CHILD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the County Court of Refugio County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, J.A.W.R., a child, was found to have engaged in delinquent conduct[1] by committing the offense of endangering a child.[2] He was committed to the Texas Youth Commission for an indeterminate period of time not to exceed his twenty-first birthday. In his sole point of error, appellant argues that the trial court abused its discretion by ordering him committed to the Texas Youth Commission. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

I. STANDARD OF REVIEW

A juvenile judge has broad discretion to determine the proper disposition of a child who has been adjudicated as engaging in delinquent behavior. In re K.J.N., 103 S.W.3d 465, 465-66 (Tex. App.BSan Antonio 2003, no pet.). Absent an abuse of discretion, we will not disturb the trial court=s determination. Id. An abuse of discretion occurs when the trial court acts unreasonably or arbitrarily and without reference to guiding rules and principles. Id. The guiding rules and principles in juvenile cases involving commitment outside the child=s home are found in the Texas Family Code. Id.; see Tex. Fam. Code Ann. ' 54.04 (Vernon Supp. 2004-05).

The family code permits a trial judge to commit a child to the Texas Youth Commission if: (1) it is in the child=s best interest to be placed outside the home; (2) reasonable efforts have been taken to prevent or eliminate the need for the child=s removal from the home; and (3) while in the home, the child cannot receive the quality of care and level of support and supervision needed to meet the conditions of probation. Tex. Fam. Code Ann. ' 54.04(i).

II. ANALYSIS

By his sole point of error, appellant argues that the trial court abused its discretion by ordering appellant committed to the Texas Youth Commission. Specifically, appellant argues that there is no evidence to support the trial court=s finding that Athe child, in the child=s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.@[3] We disagree.

At the disposition hearing the State offered into evidence the Predisposition and Social History report prepared by the juvenile department. The recommendation in the report was that appellant be placed outside the home due to his need for more structure and discipline than was being provided by his parents. The report stated that appellant had been unsuccessful on a six-month deferred adjudication and unsuccessful on the subsequent court-ordered probation. Appellant was also unsuccessful on a second court-ordered probation on another cause. He was exhibiting serious signs of mental and emotional instability as well as more serious behavioral problems than in the past. The report also stated that appellant had failed to graduate to the eleventh grade because he did not complete his makeup work or his absences. Appellant had been referred for truancy.

Under the record in this case, we find that the trial court did not err in determining that appellant, in his home, cannot be provided the quality of care and level of support and supervision that he needs to meet the conditions of probation. We therefore conclude that the trial court did not abuse its discretion in committing appellant to the Texas Youth Commission. Appellant=s sole point of error is overruled.

III. CONCLUSION

Accordingly, we affirm the order of the trial court.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 7th day of July, 2005.

[1] See Tex. Fam. Code Ann. ' 51.03 (Vernon Supp. 2004-05).

[2] See Tex. Pen. Code Ann. ' 22.041(c) (Vernon 2003).

[3] Appellant also argues that the trial court erred in making the following findings: (1) that no community-based intermediate sanction is available to adequately address the needs of the juvenile or to adequately protect the needs of the community; and (2) that the gravity of the offense requires that the juvenile be confined to a secure facility. However, these findings made by the trial court are not required by statute in order to commit a juvenile to the Texas Youth Commission. See Tex. Fam. Code Ann. ' 54.04(i) (Vernon Supp. 2004-05). Therefore, we will not address these findings as our conclusion would not affect the disposition of this appeal.

I can not wait to read her appeal brief when she files in Hell! What ??????????? They are closed .....better relax and enjoy ridin the highway.......

2007-10-14T02:07:00.000-07:00

Texas Monthly

And Justice for Some

Over the past ten years, the Texas Court of Criminal Appeals has disregarded exculpatory DNA evidence, threats of torture , bad lawyering, and in some cases, all common sense to uphold convictions in keeping with its tough-on-crime philosophy. Why should toughness steamroll fairness?

by Michael Hall

IT WAS, BY ALL ACCOUNTS, the high court’s low point. A teenage girl named Deanna Ogg had been raped, bludgeoned, and stabbed to death on a late September afternoon in 1986 near the tiny town of New Caney, north of Houston. Roy Criner, a 21-year-old logger, was arrested after three friends said that, within hours of the time of Ogg’s death, Criner had bragged about picking up a hitchhiker, threatening her with a screwdriver, and forcing her to have sex. No other evidence tied him to the crime, but Criner was convicted and given 99 years for aggravated sexual assault. In 1997 newly available DNA tests showed that the sperm found in Ogg was not Criner’s. To be certain, the Montgomery County district attorney did a second test in the state’s lab and got the same results. Criner’s attorneys moved for a new trial, and in January 1998 the trial court agreed he deserved it.

Four months later, the Texas Court of Criminal Appeals, the highest criminal court in the state, went against law, science, and, it seemed, all common sense when it wrote, “The new evidence does not establish innocence,” and overruled the trial court. Sharon Keller, who had been on the CCA only a little more than three years but was rapidly becoming the court’s philosophical leader, cited the incriminating statements to the three friends as “overwhelming, direct evidence” of Criner’s guilt. New evidence ofinnocence, she argued, had to be so clear and convincing that no reasonable jury would have convicted Criner had it known about it. DNA, she said, was not enough. Keller noted that perhaps Criner had worn a condom or failed to ejaculate. There was also testimony, she wrote, that the victim had said that she “loved sex,” so perhaps she had had sex with someone and then met her demise at the hands of the logger. These theories had not been alleged at trial, nor was there evidence that Ogg had had sex with anyone else within 48 hours of her death, and court watchers wondered why an appellate judge was posing alternate theories that the prosecutor could have offered years before at trial. It seemed that Keller and the court really wanted to keep Criner in prison.

In 2000 the PBS show Frontline aired an episode called “The Case for Innocence,” featuring Criner’s story. Keller was interviewed, and she defended the CCA’s opinion and characterized the victim as “a promiscuous girl.” When asked about the possibility that Criner was innocent, Keller said, “I suppose that that is a possibility. But he certainly hasn’t established it.” When asked how a person could establish it, Keller replied, “I don’t know. I don’t know.” She appeared to be lost in her own circular reasoning. All Criner was asking for was a new trial, but that, said Keller, was out of the question. It was the last in-depth interview she would give to the media.

Later that year more DNA tests were done, this time on saliva from a cigarette butt found at the crime scene. The DNA matched that of the sperm, and a month later the DA and the county sheriff joined the trial judge in calling for a pardon for Criner. The state Board of Pardons and Paroles, which almost always denies such requests, voted 18–0 to grant one, and in August Governor George W. Bush, in the heat of a presidential campaign, relented. Roy Criner was freed.

It was a stunning rebuff to the CCA. One of Keller’s fellow judges, Tom Price, later said that the case (in which he had dissented) had made the court a “national laughingstock.” The Criner case was proof to some people that the court was ruled by a bunch of pro-prosecutor, right-wing ideologues with one goal in mind: keeping inmates behind bars, no matter what. The court, which handles thousands of petitions each year, mostly dealing with everyday criminals but also with death row inmates and their appeals, had been growing increasingly conservative since 1994. That year, on the heels of Bush’s successful run for governor, Republicans, including Keller, swept into statewide office. Six years later the national media, from the Chicago Tribune to Rolling Stone, were flocking to Bush’s home state to analyze Texas’s impressive death penalty machine. Most were trying to find evidence that the presidential nominee had executed an innocent man, and they inevitably wrote stories about a runaway criminal justice system and a gatekeeper high court that did nothing to control it. They ridiculed the court for Criner. The CCA, the national media reported, was a powerful group of nine conservative Republicans. Though they were public officials, elected in staggered six-year terms, theirs was a “stealth court,” shrouded in secrecy, whose sometimes outrageous decisions often came with no explanation. The court handled only criminal appeals (the Texas Supreme Court took care of civil matters), and the judges were mostly ex-prosecutors whose main goal seemed to be to satisfy the state’s appetite for execution; the court reversed only 3 percent of the death penalty convictions that came before it, less than any other state high court. It even had a group of staff lawyers called the Death Squad who worked on nothing but death penalty cases.

Since 2000, partly in response to the uproar over Criner, the CCA has moderated somewhat. But the past continues to haunt it. In the first half of this year, federal courts second-guessed a dozen Texas cases, ten of which had been acted on by the CCA after the 1994 election. The federal courts stayed two executions, set aside two death sentences, ordered three new trials, and mandated further hearings and other action in the rest. Criner, it was clear, had not been the only hard-luck Texan to run up against an inflexible court. Some, like Ernest Willis, had it even worse. Willis (whose story is told in detail in “Death Isn’t Fair” in the December 2002 Texas Monthly) had been convicted in 1987 for setting fire to a house in Iraan that killed two women. There was no physical evidence—no gasoline on his clothes, no witnesses, no fingerprints. Eight years later new attorneys found evidence of appalling misconduct, which they offered at hearings in 1996 and 1998: Willis had been drugged with powerful antipsychotic medicine for months before his trial, turning him into a drooling zombie, something the prosecutor made full use of in front of the jury. Moreover, the prosecution withheld a psychological report stating that Willis was not a future danger to society. His court-appointed lawyer did almost nothing for him, dooming him to death row. In 2000 the trial judge wrote a 33-page opinion recommending a new trial. The CCA, in 6 pages, denied it.

In October a federal judge ordered the state to either retry Willis or set him free. The attorney general of Texas declined to appeal, and the Pecos County DA dismissed the murder indictment, saying that the fire was an accident. Willis walked free from death row, the first inmate to do so since 1997. The state cheated, the defense gave up, and as a result, an innocent man was sentenced to die. Worst of all, the CCA knew all about it.

Why would a court keep an innocent man on death row? Why would a court look the other way in the face of DNA evidence? Antagonists—and there are many, most of them defense lawyers whose clients have lost before the CCA—say the court is full of heartless, result-oriented hacks. In fact, the CCA is full of hardworking, responsible, churchgoing men and women. But time and again over the past decade, whenever judges have had a choice between tolerating bad behavior by prosecutors and police or enforcing the due process rights of criminals, they have sided with the state. For some judges it has been a conscious choice, a turning away from the court’s previous technicality-based, defense-oriented decisions. For others it has been merely a reflection of their prosecutorial backgrounds. For all, it is politics: The judges on the CCA are elected politicians and are careful to paint themselves as tough on crime and criminals, whatever the cost. And so they have developed an overriding concern with preventing further hearings, appeals, and new trials. As Keller told the Frontline crew, attempting to explain the Criner judgment but also expressing an underlying rationale for the way the court does business: “Finality of judgments is important.” Of course it is; without finality, cases would drag on forever and the system would fall apart. But over and over before the CCA, finality has trumped everything else, especially fairness.

AN OLD FRIEND OF SHARON KELLER’S remembers hearing about Keller’s comments on Frontline and being dumbfounded: “I didn’t know where that absolute moral conviction came from. She didn’t question herself at all.” The friend reminisced about their youth in the early seventies and said, “She didn’t do anything wilder than anyone else. But I don’t know how she sleeps at night.”

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Killers on the bench

2007-10-09T06:44:00.000-07:00

Sunday, November 14, 2004

Highest TX Criminal Court a "Laughingstock"

Texans haven't realized yet the extent to which the Austin-based Texas Court of Criminal Appeals has become a "national laughingstock," as Justice Tom Price put it. Perhaps that's starting to change.

Texas Monthly's November issue includes an article by the intrepid Michael Hall, perhaps at the moment the magazine's best reporter, dissecting the CCA's numerous failures. In a featured case that made national news, the court failed to accept exonerating DNA evidence so conclusive that the Board of Pardons and Paroles released the defendant in a "stunning rebuff."

One case like that might be an anomaly, but Hall shows how it exemplifies a pattern of behavior that's callous to concerns of justice:

"[T]he judges [on the CCA] were mostly ex-prosecutors whose main goal seemed to be to satisfy the state’s appetite for execution; the court reversed only 3 percent of the death penalty convictions that came before it, less than any other state high court. It even had a group of staff lawyers called the Death Squad who worked on nothing but death penalty cases.

"Since 2000, partly in response to the uproar over [the case involving the court's failure to accept DNA evidence], the CCA has moderated somewhat. But the past continues to haunt it. In the first half of this year, federal courts second-guessed a dozen Texas cases, ten of which had been acted on by the CCA after the 1994 election. The federal courts stayed two executions, set aside two death sentences, ordered three new trials, and mandated further hearings and other action in the rest."

CCA Chief Justice Sharon Keller, along with Justices Barbara Hervey and Charles Holcomb are up for re-election in 2006. These three easily constitute the weakest statewide Republican targets available to Democats that year -- much weaker than any holder of a statewide executive seat like governor, lt. governor, attorney general or even land commissioner. The GOP started its Texas takeover twenty years ago with Karl Rove targeting relatively obscure court races. As Democrats begin their own long march back, they too should start with the courts -- in particular, this one.

Google Yourself Corpus Christi: Is Fil Vela going into the fraud abuse prosecution racket & the manufacturing of fraud abuse prosecutions? Inroads (fo

2007-09-19T00:03:00.000-07:00

Google Yourself Corpus Christi: Is Fil Vela going into the fraud abuse prosecution racket & the manufacturing of fraud abuse prosecutions? Inroads (for GOP) into South Texas?Word on the streets of Kleberg, Jim Wells and Nueces Counties:

Is Fil Vela going into the fraud abuse prosecution racket and the manufacturing of fraud abuse prosecutions? I understand from certain entities that Vela has been hiring young attorneys out of the small South Texas Towns for his new specialization. It is also whispered that Mr Vela met with a Federal Prosecutor last week to discuss Federal Judgeship Appointments.

Junior John has got to figure in this mix and Fil is the inroads (for Cornyn) into South Texas. We need to put a Big Stop Sign up in Robstown and inform them about Connie Scott as I understand Fil Vela is her campaign manager or treasurer (will check) and Mike Scott is a TLR guy with a title.

>Why hasn't anyone gone after Filemon personally as a way to derail Rose?
>If you go to www.fec.gov and follow the instructions on finding out who
>gave to whom, how much, and when, then load up Filemon Vela as an
>Individual Search you'll see he's made significant contributions to two
>notorious politicians. Rep. Duncan Hunter (R-CA) and Senator Robert
>Menendez (D-NJ). Hunter is an undicted coconspirator in the very same mess
>that sent ex-rep "Duke" Cunningham's ass to prison recently, and Menendez
>is currently under federal investigation for shady real estate dealings by
>renting a building he owns to a non-profit and pocketing $300, 000.00 in
>taxpayer subsidies.

The Velas are strictly personal with me for reasons of
>>>>>extreme hubris on their parts. There's a rather simple story
>>>>>associated with all of this and it's one of an extremely cruel act on
>>>>>their part that I witnessed and in no way involved me beyond being a
>>>>>spectator. And it was at that time that they got on my shit list.
>>>>>That he's a spoiled brat millionaire and she's a jurist and both with
>>>>>political agendas is purely coincidental. I only want to teach them a
>>>>>lesson. Be nice to everybody...because some people won't give a damn
>>>>>who or what you are and will come after you. That's what guerillas do
>>>>>kingal...go after the bigger bullies of the world.
>>>>>
>>>>>Another coincidence is that I would appear to be an unpaid, unknown and
>>>>>coincidental campaign worker for Hinojosa. I'm not. I'm about as
>>>>>apolitical as they come. My own personal view is that we've long (if
>>>>>ever it was the case) passed the time when getting the right person in
>>>>>office is a viable solution. To me, it's not so much of getting the
>>>>>best person in...but keeping the worst asshole OUT. I'm just that
>>>>>simple man.

Duke University Malicious Prosecutor Behind Bars. John Hubert must Alocute, Acquit and Apologize to my family.

2007-09-01T19:57:00.000-07:00

Mike Nifong, the disgraced former Durham County district attorney, was held in criminal contempt of court Friday for lying to a judge when pursuing rape charges against three falsely accused Duke University lacrosse players.

Hopefully Mc Clure's burden will have to show this opinion is favorable to constitution......but the burden is always on the state ~ BE FAIR!

2007-08-12T22:45:00.000-07:00

An accused has a Sixth Amendment right to compulsory process which includes the right to call and present witnesses in one’s own defense. Coleman v. State, 966 S.W.2d 525, 527 (Tex.Crim.App. 1998). However, this right guarantees only the right to secure the attendance of witnesses whose testimony would be both favorable and material to the defense. Id. at 527-28. The burden is on defendant to make a plausible showing to the trial court, by sworn evidence or agreed facts, that the particular witness’s testimony would be both material and favorable. Id. at 528. Failure to make this demonstration results in no Sixth Amendment violation, and no error is shown. Id.; Perkins v. State, 902 S.W.2d 88, 97 (Tex.App.--El Paso), supplemental op., 905 S.W.2d 452 (Tex.App.--El Paso 1995, pet. ref’d).

This Texas Supreme Court Judge is "uncomfortable” workplace but not “the ring of hell” required to establish an intentional infliction claim...Define!

2007-08-02T01:25:00.000-07:00

IN THE SUPREME COURT OF TEXAS

════════════

No. 02-1076

════════════

Creditwatch, Inc. & Harold E. “Skip” Quant, Petitioners

v.

Denise Jackson, Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Second District of Texas

════════════════════════════════════════════════════

Argued October 19, 2004

Justice Brister delivered the opinion of the Court.

For the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort.[1]

Denise Jackson filed suit against Creditwatch, Inc. and its chief executive officer, Harold E. “Skip” Quant, on June 17, 1996.[2] Initially, she alleged numerous acts of sexual harassment in violation of the Texas Commission on Human Rights Act (TCHRA),[3] but withdrew those claims when the defendants moved for summary judgment based on limitations.[4]

In her amended complaint, Jackson alleged only an intentional infliction of emotional distress claim, still based on Quant’s sexual advances and on retaliatory conduct allegedly continuing even after her termination on January 3, 1995. The defendants continued to press their motion for summary judgment, asserting the sole remaining claim was barred by (1) preemption, (2) limitations, and (3) no evidence of outrageous conduct. The trial court granted the motion, and Jackson appealed.

The court of appeals (one justice dissenting) affirmed the summary judgment as to pre-termination conduct, holding Jackson’s affidavits described an “unpleasant and uncomfortable” workplace but not “the ring of hell” required to establish an intentional infliction claim.[5] But the court reversed and remanded for trial her infliction claim based on post-termination conduct.[6] Applying the usual standard of review,[7] we reverse for two of the reasons stated in the defendants’ motion.[8]

First, assuming the court of appeals is correct that nothing in the TCHRA preempts other common-law causes of action,[9] the tort involved here nevertheless has its own boundaries. As we recently reiterated, intentional infliction of emotional distress is a “gap-filler” tort never intended to supplant or duplicate existing statutory or common-law remedies.[10] Even if other remedies do not explicitly preempt the tort, their availability leaves no gap to fill.

Here, Jackson’s complaints all stemmed from Quant’s lewd advances, including the subsequent retaliation that often follows when offensive advances are refused.[11] Jackson suggests no other reason for Quant’s actions. As her complaints are covered by other statutory remedies, she cannot assert them as intentional infliction claims just because those avenues may now be barred.[12]

Second, we disagree with the court of appeals’ conclusion that some of the defendants’ post-termination actions were sufficiently outrageous to constitute intentional infliction. It is for the court to determine in the first instance whether conduct is extreme and outrageous, and such claims are submitted to a jury only when reasonable minds may differ.[13] Even assuming the acts alleged here were independent of Jackson’s sexual harassment claims,[14] they do not rise to the level necessary to establish the tort.

The court of appeals recognized that intentional infliction claims do not extend to ordinary employment disputes,[15] but concluded that such disputes end upon termination.[16] But some employment disputes are not so easily ended.[17] As a result, while post-termination conduct may constitute intentional infliction if it goes “beyond all possible bounds of decency,”[18] “ordinary” post-termination disputes are insufficient to support liability.[19]

Here, Jackson alleged that Quant refused to give her a reference letter, and other Creditwatch employees declined to take reference calls on her behalf during business hours. She also complains of a company-wide email stating a general policy forbidding employees to contact ex-employees. Even assuming all of these actions were the result of a vendetta directed at Jackson, we hold this post-termination conduct is legally insufficient.[20]

Finally, the court of appeals reversed based on a post-termination eviction allegedly orchestrated by Creditwatch. Shortly before her termination, Jackson had moved out of corporate housing due to financial difficulties, and into the home of another Creditwatch manager, Terri Blevins, who provided shelter gratis. Viewing the evidence in the light most favorable to Jackson, two months after the termination Quant told Blevins to evict Jackson, and implied that Blevins’ own job was in jeopardy if she did not. Blevins complied, and Jackson moved elsewhere the next day.

Assuming all this is true, it was callous, meddlesome, mean-spirited, officious, overbearing, and vindictive B but not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”[21] Roommates C sadly, even family members C may find mutual living arrangements unsuitable, and juries generally need not decide which evictions are tortious absent conditions much more “intolerable” than those involved here. Moreover, Texas law already recognizes claims for wrongful eviction and tortious interference with contract, neither of which allow mental anguish damages.[22] Intentional infliction claims cannot be used “to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines."[23] Accordingly, we hold Jackson may not assert such a claim here.

* * *

We certainly understand judicial reticence to dismiss claims like this one stemming from heinous acts. But except in circumstances bordering on serious criminal acts, we repeat that such acts will rarely have merit as intentional infliction claims.[24]

This tort was never intended as an easier and broader way to pursue claims already protected by our expanding civil and criminal laws. If the tort is to remain viable where “gaps” still remain, litigants and judges cannot entertain it as a catch-all that avoids the careful balancing behind alternate legal claims.

Accordingly, we reverse that part of the court of appeals’ judgment remanding Jackson’s claims, and render judgment that she take nothing.

______________________________________

Scott Brister

Justice

OPINION DELIVERED: February 25, 2005

[1] See Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 441 (Tex. 2004); Wal‑Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 737 (Tex. 2003) (per curiam); Tiller v. McLure, 121 S.W.3d 709, 710-11 (Tex. 2003) (per curiam); Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 606 (Tex. 2002); Bradford v. Vento, 48 S.W.3d 749, 751-52 (Tex. 2001); City of Midland v. O'Bryant, 18 S.W.3d 209, 211 (Tex. 2000); Brewerton v. Dalrymple, 997 S.W.2d 212, 213-14 (Tex. 1999); Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 63 (Tex. 1998); Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 53 (Tex. 1998) (per curiam).

[2] Jackson’s suit was joined by Brenda Simcox, and later by Terri Blevins, both Creditwatch employees asserting similar claims. After the trial court granted summary judgment on Jackson’s claims, the other employees’ claims were settled during trial.

[3] See Tex. Lab. Code §§ 21.001‑.556.

[4] See id. § 21.202 (requiring administrative complaint to be filed within 180 days of occurrence); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996) (per curiam) (holding failure to file timely administrative complaint bars suit).

[5] 84 S.W.3d 397, 407.

[6] Id. at 407-08.

[7] See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137 (Tex. 2004) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003) (reviewing summary judgment de novo, viewing all evidence in nonmovant’s favor to see if no genuine issue of material fact exists and movant is entitled to judgment as a matter of law)).

[8] On the third, limitations, the court of appeals held Quant’s acts more than two years before suit could not form the basis for damages, but were admissible as “background and context.” 84 S.W.3d at 405. As the defendants do not appeal that ruling, we do not reach the court of appeals’ invocation of the “continuing tort doctrine,” a doctrine we have neither endorsed nor addressed, but that has been used by some courts of appeals to toll limitations until the last act of intentional infliction occurs. See Toles v. Toles, 45 S.W.3d 252, 262 (Tex. App.CDallas 2001, pet. denied); Newton v. Newton, 895 S.W.2d 503, 506 (Tex. App.CFort Worth 1995, no writ); Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex. App.CAustin 1990), rev'd on other grounds, 855 S.W.2d 619 (Tex. 1993).

[9] 84 S.W.3d at 403.

[10] Zeltwanger, 144 S.W.3d at 447.

[11] See id. at 448-49.

[12] Id. at 447.

[13] Id. at 445; GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 616 (Tex. 1999).

[14] See Zeltwanger, 144 S.W.3d at 448-49 (expressing skepticism but not deciding whether subsequent retaliatory acts were independent of sexual harassment claim).

[15] 84 S.W.3d at 405-06; see also GTE Southwest, 998 S.W.2d at 612-13.

[16] 84 S.W.3d at 407.

[17] See Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 612 (Tex. 2002) (holding employer’s post-termination reports about employee to federal and state agencies insufficient to establish intentional infliction absent proof that employer violated any laws or knew reports were false); Wornick Co. v. Casas, 856 S.W.2d 732, 735-36 (Tex. 1993) (holding that having security guard escort terminated employee from premises insufficient to establish intentional infliction).

[18] Zeltwanger, 144 S.W.3d at 445 (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).

[19] Sears, 84 S.W.3d at 611; see also Wornick, 856 S.W.2d at 735 (holdings acts within legal rights cannot constitute outrageous behavior).

[20] See Sears, 84 S.W.3d at 612 (holding personal vendetta insufficient to constitute intentional infliction if act taken was not outrageous); see also Restatement (Second) of Torts § 46 cmt. g (“The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.”).

[21] Zeltwanger, 144 S.W.3d at 445 (citing Twyman, 855 S.W.2d at 621) (quoting Restatement (Second) of Torts § 46 cmt. d).

[22] See Tex. Prop. Code § 92.0081 (providing for lockout damages of one month’s rent plus $500, actual damages, court costs, and reasonable attorney’s fees); Am. Nat’l Petroleum Co. v. Transcontinental Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex. 1990) (holding damages for tortious interference with contract are the same as damages for breach of contract interfered with, thus putting claimant in same economic position as if contract had been performed).

[23] Zeltwanger, 144 S.W.3d at 447 (quoting Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)).

[24] See, e.g., Morgan v. Anthony, 27 S.W.3d 928, 930-31 (Tex. 2000); GTE Southwest v. Bruce, 998 S.W.2d 605, 613-14, 617 (Tex. 1999).

Corpus Christi Watchdog Authority: Fwd: [Bay of Pigs] Judge Westergren has been given the opportunity to produce the ...

2007-07-31T22:27:00.000-07:00

Adriana,

Did you not receive the attachment word doc? The original email went to you and a private investigator by the name of Don Shawver. Don Shawver conducted an investigation on DMC Regent Linda Garcia. We feel it is in the Public's Right to know the details of this investigation and the person or entity who funded it. Did the Caller Times hire Mr Shawver and if so why not the same scrutiny of all the other candidates? A DMC Public Records Requests turned out nothing significant except the fact that DMC answered it (the FOIA request) readily before the time period. I understand that there is an agreement between the In House Counsel (DMC) and the Caller as there is a recording of the in house counsel responding to what he believed to be a Caller TImes Reporter. The Reporter was questioning the in house counsel regarding the following published FOIA request:

Corpus Christi Watchdog Authority: Fwd: [Bay of Pigs] Judge Westergren has been given the opportunity to produce the ...

Preeminence shall be given to this Amendment in any case of conflicts with statute, case law, common law, or constitutional provision.

2007-07-31T01:49:00.000-07:00

Judicial Accountability Initiative Law (J.A.I.L.)
(California Initiative – Ver. 2-7-07)

Preamble. We, the People of California, find that the doctrine of judicial immunity has been greatly abused; that when judges abuse their power, the People are obliged - it is their duty - to correct that injury, for the benefit of themselves and their posterity. In order to ensure judicial accountability and domestic tranquility, we hereby amend our Constitution by adding the following provisions as Sec. 32 to Article I, which shall be known as "The J.A.I.L. Amendment."

1. Definitions. To avoid absurd results, words shall be given their plain, ordinary and literal meanings; and where appropriate, the singular shall include the plural and vice-versa. For purposes of this Amendment, the following terms shall mean:

1. Judge: A judicial officer hearing and adjudicating legal actions and proceedings within the judicial branch of government (to include arbitrator, mediator, or a private judge, any of whom is assigned by a court to hear involuntary proceedings). This definition shall not be construed to mean trial juror, prosecutor, or any administrative official.
2. Material allegations: Statements essential to the claim or defense presented in a pleading filed in court.
3. Blocking: Any unlawful act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of an unlawful or void judgment or order.
4. Corporate litigant: A party holding a corporate charter, as distinguished from a business license.
5. Juror: A Special Grand Juror.
6. Strike: An adverse immunity decision or a criminal conviction against a judge.

2. Exclusions of immunity. Notwithstanding common law or any other provision to the contrary, no immunities shielding a judge from frivolous and harassing actions shall be construed to extend to any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material allegations, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitutions of California or the United States. The foregoing judicial misconduct shall not be construed to mean court decisions made within the authorized capacity of a judge.

3. Special Grand Juries. For the purpose of returning power to the People and ensuring the integrity of the judiciary, there are hereby created within this State three twenty-five member Special Grand Juries with statewide jurisdiction having inherent power to judge both law and fact. This body shall exist independent of statutes governing county Grand Juries. Their responsibility shall be limited to determining, based on the evidence shown on the record, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions of immunity as set forth in paragraph 2, or whether there is probable cause of criminal conduct by the judge against whom a petition/complaint is brought before the Special Grand Jury.

4. Professional Counsel. Each Special Grand Jury shall have exclusive power to retain non-governmental advisors, special prosecutors, and investigators, as needed, who shall serve no longer than one year, and thereafter shall be ineligible to serve; except a special prosecutor may be retained to prosecute to conclusion ongoing cases through all appeals and any complaints to the Special Grand Jury. Each Special Grand Jury may hire clerical staff, as needed, without time limitation.

5. Establishment of Special Grand Jury Facilities. Within ninety days following the passage of this Amendment, the Legislature shall provide a suitable facility for each Special Grand Jury. Each facility shall be reasonably placed proportionately according to population throughout the State, but no facility shall be located within a mile of any judicial body.

6. Annual Funding. The Legislature shall cause to be deducted two and nine-tenths percent from the gross judicial salaries of all judges, which amount shall be deposited regularly into an exclusive trust account created by this Amendment in paragraph 10 for its operational expenses, together with filing fees under paragraph 7, surcharges under paragraph 8, forfeited benefits of disciplined judges under paragraph 18, and fines, if any, imposed by sentencing under paragraph 16.

7. Filing Fees. Attorneys representing a party filing a civil petition or response before the Special Grand Jury shall, at the time of filing, pay a fee equal to the filing fee due in a civil appeal to the State Supreme Court. Individuals filing a civil petition or response on their own behalf before the Special Grand Jury as a matter of right shall, at the time of filing, post a fee of fifty dollars, or file a declaration, which shall remain confidential, stating that they are impoverished and unable to pay and/or object to such fee, pursuant to First Amendment right of redress.

8. Surcharges. Should this Amendment lack sufficient funding through its fines, fees, and forfeitures (including deductions in paragraph 6), the Legislature shall impose appropriate surcharges upon the civil court filing fees of corporate litigants as necessary to supplement the funding of this Amendment so as not to be chargeable to the public.

9. Compensation of Jurors. Each Juror shall receive a salary commensurate to that of a Superior Court judge, prorated according to the number of days actually served by the Juror.

10. Annual Budget. The Special Grand Juries shall have an annual operational budget commensurate to double the combined salaries of the seventy-five Jurors serving full time, which sum shall be initially deposited by the Legislature into an exclusive trust account to be annually administered by the State Treasurer. Should the trust balance, within any budget year, drop to less than an amount equivalent to the annual gross salaries of fifty Superior Court judges, the State Treasurer shall so notify the Legislature which shall replenish the account, prorated based on the actual average expenditures during the budget year. Should the trust balance in any subsequent year exceed the annual operational budget at the beginning of a new budget year, the State Treasurer shall transfer such excess to the state treasury. Except for the initial year, no expenses in paragraphs 6, 7, 9 and 10 of this Amendment shall be chargeable to the public.

11. Jurisdiction. Each Special Grand Jury shall have exclusive power to appoint a foreperson, establish rules assuring their attendance, to provide internal discipline, and to remove any of its members on grounds of misconduct. The Special Grand Jury shall immediately assign a docket number to each petition/complaint brought before it, unless such case is transferred to another Special Grand Jury to achieve caseload balance. A transfer shall not prejudice a docketing deadline. The Special Grand Jury first docketing a complaint shall have sole jurisdiction of the case. Except as provided in paragraphs 17 and 22, no petition of misconduct shall be considered by any Special Grand Jury unless the petitioner shall have first attempted to exhaust all judicial remedies available in this State within the immediately preceding six-month period. (Such six-month period, however, shall not commence in petitions of prior fraud or blocking of a lawful conclusion until after the date the Special Grand Juries become functional. This provision applies remedially and retroactively.) Should the petitioner opt to proceed to the United States Supreme Court, such six-month period shall commence upon the disposition by that Court.

12. Qualifications of Jurors. A Juror shall have attained to the age of thirty years, and have been nine years a citizen of the United States, and have been an inhabitant of California for two years immediately prior to having his/her name drawn. Those not eligible for Special Grand Jury service shall include elected and appointed officials, members of the State Bar, judges (active or retired), judicial, prosecutorial and law enforcement personnel, without other exclusion except previous adjudication of mental incapacity, imprisonment, or parole from a conviction of a felonious act.

13. Selection of Jurors. The Jurors shall serve without compulsion and their names shall be publicly drawn at random by the Secretary of State from the list of registered voters and any citizen submitting his/her name to the Secretary of State for such drawing. The initial Special Grand Juries shall be established within thirty days after the fulfillment of the requirements of paragraph 5.

14. Service of Jurors. Excluding the establishment of the initial Special Grand Juries, each Juror shall serve one year. No Juror shall serve more than once. On the first day of each month, two Jurors shall be rotated off each Special Grand Jury and two new Jurors seated, except in January it shall be three. Vacancies shall be filled on the first of the following month in addition to the Jurors regularly rotated, and the Juror drawn to fill a vacancy shall complete only the remainder of the term of the Juror replaced.

15. Procedures. The Special Grand Jury shall serve a copy of the filed petition upon the subject judge and notice to the petitioner of such service. The judge shall have twenty days to serve and file a response. The petitioner shall have fifteen days to reply to the judge's response. (Upon timely request, the Special Grand Jury may provide for extensions of time upon the showing of good cause.) In criminal matters, the Special Grand Jury shall have power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses under oath. Each Special Grand Jury shall determine the causes properly before it with their reasoned findings in writing within one hundred twenty calendar days, serving on all parties their determination as to whether or not immunity shall apply as a defense to any civil action that may thereafter be pursued against the judge. A rehearing may be requested of the Special Grand Jury within fifteen days with service upon the opposition. Fifteen days shall be allowed to reply thereto. Thereafter, the Special Grand Jury shall render final determination in writing within thirty days. All allegations in the petition shall be liberally construed. The Jurors shall keep in mind, in making their determinations, that they are entrusted by the People of this State with the duty of restoring judicial accountability and the perception of justice. The standard of authority by which the Jurors shall be guided in making their determinations shall not be opinions of courts, but shall be the Constitutions of California and of the United States and laws made in pursuance thereof. The Jurors shall avoid all influence by judicial and government entities. The statute of limitations on any civil suit brought pursuant to this Amendment against a judge shall not commence until a final determination by the Special Grand Jury. Special Grand Jury files shall always remain public record following their final determination. A majority of thirteen Jurors shall determine any matter.

16. Indictment. Should the Special Grand Jury also find probable cause of criminal conduct on the part of any judge against whom a petition is docketed, it shall have the power to indict such judge. The Special Grand Jury shall, without voir dire beyond personal impartiality, relationship, or lack of fluency in English, cause to be impaneled twelve special trial jurors, plus alternates, which trial jurors shall be instructed that they have power to judge both law and fact. The Special Grand Jury shall also select a non-governmental special prosecutor and a judge with no more than four years on the bench from a county other than that of the defendant judge, having jurisdiction solely to maintain a fair and orderly proceeding. The trial jury shall be selected from the same pool of jury candidates as any regular jury. The special prosecutor shall thereafter prosecute the cause to a conclusion, having all the powers of any other prosecutor within this State. Upon conviction, sentencing shall be the province of the special trial jury, and not that of the selected judge. Such term of sentence shall conform to statutory provisions.

17. Criminal Procedures. In addition to any other provisions of this Amendment, a complaint for criminal conduct against a judge may be brought directly to the Special Grand Jury, when all of the following conditions have been met: (1) an affidavit or declaration of criminal conduct has been lodged with the appropriate prosecutorial entity within ninety days of the commission of the alleged crime; (2) the prosecutor declines to prosecute, or one hundred twenty days have passed following the lodging of such affidavit or declaration, and prosecution has not commenced; (3) an indictment, if sought, has not been specifically declined on the merits by a county Grand Jury; and (4) the criminal statute of limitations has not run. Any criminal conviction (including a plea bargain) under any judicial process shall constitute a strike.

18. Removal. Whenever any judge has received three strikes, the judge shall be permanently removed from office, and thereafter shall not serve in any State judicial office. Judicial retirement for such removed judge shall not exceed one-half of the benefits to which such judge would have otherwise been entitled. Retirement shall not avert third-strike penalties.

19. Public Indemnification. No judge against whom a petition/complaint is brought, or sued civilly by a complainant pursuant to this Amendment, shall be defended at public expense or by any elected or appointed public counsel, nor shall any judge be reimbursed from public funds for any losses sustained under this Amendment.

20. Enforcement. No person exercising strict enforcement of the findings of a Special Grand Jury shall be held liable civilly, criminally, or in contempt.

21. Redress. The provisions of this Amendment are in addition to other redress that may exist and are not mutually exclusive.

22. Challenges. No judge under the jurisdiction of the Special Grand Jury, or potentially affected by the outcome of a challenge hereto, shall have any jurisdiction to sit in judgment of such challenge. Such pretended adjudication shall be null and void for all purposes and a complaint for such misconduct may be brought at any time, without charge, before the Special Grand Jury by class action, or by any adversely affected person.

23. Preeminence. Preeminence shall be given to this Amendment in any case of conflicts with statute, case law, common law, or constitutional provision. The foreperson of each Special Grand Jury shall read, or cause to be read, this Amendment to the respective Jurors semi-annually during the first week of business in January and July. Should any part of this Amendment be determined unconstitutional, the remainder shall remain in full force and effect as though no challenge thereto existed.

Copyrighted Library of Congress 9/12/03

*** END ***

OMG ~OH the GOOD and Lawful good ole days..........

2007-07-13T01:41:00.000-07:00

ABSTRACTS OF CITY COURT RECORDS OF CORPUS CHRISTI, Nueces Co. TX
APRIL 1877 -- PAGES 373 - 384

Transcribed by Charlie Ward* CCCharlie1@aol.com

Photostats for City court records, 1873-1877, are on file at the Local History Room of the Corpus
Christi Public Library. The court recorder tended to spell surnames phonetically, and the
transcriber has transcribed them as written. The breakdown of the fine imposed is not shown
here. For further information, please consult the records at the library.

Page 373

No. 200 - The City of Corpus Christi vs Charles SHAEFFER

In Recorders Court April 2nd 1877. Complaint filed by Wm OHLER charging defendant with being
guilty of drunkeness and the unlawful bearing of fire arms on April 1st 1877. And now defendant
being brought before the court announced himself ready for trial and plead guilty as charged.
When it was ordered by the court that he be fined five dollars and all costs in this behalf and that
he stand committed until said fine and costs are paid. (Note: Paid in full $11.00) Recorder C.C.C.

Page 374

No. 201 - The City of Corpus Christi vs Henry GAYLORD

In Recorders Court April 4th 1877. Complaint filed by Wm OHLER charging defendant with being
drunk and down in violation of City ordinance in such case made & provided on April 2nd 1877.
And now defendant being brought before the court announced himself ready for trial and plead
guilty as charge. When it was ordered by the court that he be fined one dollar and all costs in this
behalf and that he stand committed to custody of City Marshal until said fine and costs are paid.
(Note: Total $7.50; Served his time out in jail). Recorder C.C.C.

No. 202 - The City of Corpus Christi vs Louis MAYS

In Recorders Court April 4th 1877. Complaint filed by Wm OHLER charging defendant with
drunkeness and disorderly conduct on April 1st 1877 in violation of city ordinance in such case
made and provided. And now defendant being brought before the court announced himself ready
for trial and plead guilty as charged when it was ordered by the court that he be fined five dollars
and all costs in this behalf and that he stand committed to custody of City Marshal until said fine
and costs are paid. (Note: Paid in full $10.00) Recorder C.C.C.

Page 375

No. 203 - City of Corpus Christi vs Martin KELLER

In Recorders Court April 4th 1877. Complaint filed by J. B. MURPHY, Esq., charging defendant
with being guilty of committing an assault upon said affiant by the use of abusive, insulting and
obscene language in a public street in said City on April 2nd 1877, in violation of City ordinance in
such case made and provided. And now the defendant being brought before the court announced
himself ready for trial and plead guilty as charged. When it was ordered by the court that he be
fined ten dollars and all costs in this behalf and that he stand committed to custody of City
Marshal until said fine and costs are paid. (Note: Paid in full $16.00) Recorder C.C.C.

No. 204 - City of Corpus Christi vs Felepie(?) ROBLEDO

Mayors Court April 6th 1877. Complaint filed by Felepa VERA, charging disorderly conduct on
April 3rd 1877, in violation of city ordinance in such case made & provided. And now defendant
being brought before the court announced ready for trial and plead guilty as charged. When it
was ordered by the court that he be fined ten dollars and all costs in this behalf and that he stand
committed to custody of City Marshal until said fine and costs are paid. (Note: Total $14.50)
Mayor C.C.C.

Page 376

No. 205 - City of Corpus Christi vs Felix CORTEZ

In Recorders Court April 8th 1877. Complaint filed by Wm OHLER charging drunkeness and
disorderly conduct on April 7th 1877. And now defendant being brought before the court
announced ready for trial and plead guilty as charged. When it was ordered by the court that he
be fined five dollars and all costs in this behalf and that he stand committed to custody of City
Marshal until said fine and costs are paid. (Note: $9.00) Recorder C.C.C.

(Transcriber^Òs note: Starting Page 377, a different court recorder took over. His/her handwriting is
very poor and difficult to undertstand. Punctuation has been added to help clarify the records.)

Page 377

No. 206 - City of Corpus Christi vs BETOL

Disorderly conduct and discharge of fire arms. Complaint filed charging deft with disorderly
conduct warrant issued made returnable forthwith. Subs (abbreviation for subpeonas?) for two
witnesses. Warrant returned executed by arresting deft. Cause came on for trial, defendant
waived jury and the evidence having been heard and duly considered, it is the opinion of the court
that the defendant is guilty as charged. It is therefore ordered that the City of Corpus Christi to
have and recover of and from the defendant the sum of five dollars and all costs in this behalf
expended and that he be held in the custody of the Marshal until paid. (Note: Settled in full Apr
10th 1877 and Marshals costs paid to T. BASCUS) J. C. RUSSELL, Mayor

Page 378

No. 207 - The City of Corpus Christi vs Henry GEULLARO

Charge drunk & down. April 11th 1877. Complaint filed by Wm OHLER, policeman, charging
defendant with the above offense. Upon which warrant issued made returnable forthwith.
Executed same day by arresting the defendant and bringing him before the court. The cause
coming on to be heard, the defendant announced ready and entered the plea of guilty and threw
himself upon the mercy of the court. It is therefore considered and adjudged by the court that the
defendant is guilty as charged and that the city do have and recover of said defendant the sum of
one dollar, being the fine assessed and all costs in this behalf expended, and that he be held in
the custody of the City Marshal until said fine and costs are paid. (Note: $6.75, settled in jail) J.C.
RUSSELL Mayor, C.C.C.

Page 379

No. 208 - The City of Corpus Christi vs A. WOODNESEN(?)

Disorderly conduct & fighting. April 16th complaint filed against the defendant charging him with
disorderly conduct and fighting in said city, upon which a warrant issued made returnable
forthwith, returned same day executed by arresting defendant and said defendant appearing in
court announced himself ready for trial and waives a jury. Thereupon the cause was heard by the
court and the defendant having plead guilty, it is considered that said defendant be fined five
dollars and all costs. (Note: $8.50, settled in full & Marshals costs paid to P. WHELAN) J.C.
RUSSELL Mayor

No. 209 - The City of Corpus Christi vs William WOESSNER

Disorderly conduct & fighting. Complaint filed Apr 16th 1877, and warrant issued made returnable
forthwith. Warrant returmed s(ame?) day of April 1877 executed. Defendant being present in
court announced ready for trial and waived a jury and plead guilty to the charge. It is therefore
considered that the defendant is guilty and his fine is assessed at five dollars. It is therefore
adjudged and considered by the court that the city have and recover of said defendant the sum of
five dollars and costs of such and that said defendant be held in the custody of the Marshal until
said fine and costs are paid. (Note: $8.50 settled in full P. LAWLER returning his fee for arrest.)
J. C. RUSSELL Mayor

Page 380

No. 210 - The City of Corpus Christi vs John COLSAN

Assault and Battery. Complaint filed April 16th 1877. Warrant issued same day made returnable
forthwith. April 17th 1877, warrant returned executed. Subpoena issued for three witnesses also a
jury warrant all made returnable forthwith. Thereupon this deft. announced himself ready, and the
jury being duly sworn, the cause was submitted and the evidence being heard, the judge retired
and after consideration returned the following verdict: We the jury find the defendant not guilty.
P.A. McMANIGLO, foreman. It is therefore considered by the court that said defendant be
discharged and go hence without day. J. C. RUSSELL Mayor

No. 211 - The City of Corpus Christi vs PEYTON

Drunk and disorderly. Complaint filed April 16th 1877. Warrant issued same day made returnable
forthwith. Warrant returned on 17th and deft. appeared and announced ready for trial, waived a
jury and plead guilty and threw himself upon the mercy of the court. It is therefore considered that
he is guilty as charged and that the city have and recover of said defendant one dollar fine and
costs of prosecution and that he be held in the custody of the Marshal until said fine and costs are
paid (Note: $3.50, Entry not signed, but same handwriting as above)

Page 381

No. 212 - The City of Corpus Christi vs Trinadad MARTINAS

Abusive and insulting language. Complaint filed Apr 16th 1877, and warrant issued for defendant,
also subpeonas for three witnesses, all returnable forthwith. April 17, warrant returned executed
and defendant announced ready for trial and waived a jury. Whereupon the evidence was heard
by the court and being duly considered, it is considered by this court that the defendant is guilty
and that the city have and recover of said defendant five dollars and costs of prosecution, and
that he be held in the custody of the marshal until the fine and costs are paid. (Note: $14.25,
settled in jail) J.C. RUSSELL Mayor

No. 213 - The City of Corpus Christi vs Jose Ma MENDES

Drunk & disorderly. Complaint under oath filed charging defendant with drunkeness and
disorderly conduct, upon which warrant issued returned forthwith, also 3 subs for witnesses for
plaintiff April 21st defendant being arraigned on trial plead not guilty and thereupon the evidence
was heard by the court and upon due consideration it is the opinion of the court that the
defendant is guilty and his fine is assessed at the sum of twenty-five dollars. It is therefore
considered by the court that the City of Corpus Christi have and recover of and from the
defendant sum of twenty-five dollars and costs of prosecution. (Note: Settled by serving his time
out in the city jail)

Page 382

No. 214 - The City of Corpus Christi vs M. L. MERRITT

Abusive and insulting language. Complaint filed April 21st 1877. Warrant & sub. issued and
executed same day. Cause being called defendant announced ready for trial and plead guilty to
the complaint. It is therefore considered that this defendant is guilty as charged and his fine fixed
at five dollars. It is therefore adjudged that the City have and recover of and from defendant the
sum of five dollars fine and costs of such and that he be held in the custody of the Marshal until
the fine & costs are paid. (Note: Settled in full & policeman LAWLERS cost paid) J. C. RUSSELL
Mayor

No. 215 - The City of Corpus Christi vs Dave MATTHIAS, Ferd(?) HOWELL

Disorderly conduct. Complaint filed Apr 24th charging defendants with disorderly conduct upon
which warrants issued for their arrest. Subpeonas were also issued for witnesses for the plaintiff
all returnable forthwirth. April 25 cause came on for the trial of defendant Ferd(?) HOWELL, and
thereupon came a jury of six men who were duly impanneled and sworn in said cause, who after
hearing the evidence returned this following verdict, to wit: We the jury find the defendant guilty of
the charge and assess the fine at five dollars. Chas L. LEYE foreman. It is therefore considered
by the court that the City of Corpus Christi have and recover of said defendant the sums of five
dollars and all costs of prosection and that he stand committed to the custody of the Marshal until
the fine and costs are paid. (Note: Settled in full and costs paid to P. WHELAN, City Marshal).

Page 383

No. 216 - The City of Corpus Christi vs Dave MATTHIAS

Disorderly conduct. Complaint filed April 24th 1877 charging deft with disorderly conduct, upon
which warrant issued for his arrest, also subs for witnesses, made returnable forthwith. The
defendant appeared and being ready entered the plea of guilty. It is therefore considered that the
defendant is guilty, and his fine is assessed at five dollars. It is therefore considered that the City
have and recover of said defendant five dollars and all costs of such and that he stand committed
to the custody of the marshal until the fine and costs are paid. (Note: Fine and costs settled in full,
also Marshal^Òs cost paid over to P. WHELAN, City Marshal)

No. 217 - The City of Corpus Christi vs Thos. PARKER

Charge - assault & battery. Apr 28th 1877, complaint filed and warrant issued, also four
subpoenas for witnesses for City all executed and returned forthwith. The defendant appeared
and being ready entered the plea of not guilty. Thereupon cause a jury of six good and lawful
men who being duly impaneled, (unreadable), and sworn according to law, after hearing the
evidence retired and afterwards returned the following verdict, to wit: We the jury find the
defendant guilty as charged and assess a fine of five dollars and costs. James McGHEE,
foreman. It is therefore considered by the court that the city have and recover of said defendant
the sum of five dollars & costs of prosectuion, and that he stand committed to the custody of the
Marshal until said fine and costs are paid. (Note: Settled and costs paid to Whelan) J. C. Russell
Mayor

Page 384

No. 218 - The City of Corpus Christi vs Peter LUNA

Charge drunk & disorderly. Complaint filed April 30th 1877. Defendant arrested and brought
before the court same day and being ready for trial entered the plea of guilty. Thereupon his fine
was assessed at two dollars and fifty cents and costs. It is therefore considered by the court that
the city have and recover of defendant the said sum of two dollars and fifty cents and all costs of
prosecution and that he stand committed to the hands of the Marshal until the said fine and costs
are paid. (Note: Settled in jail) J. C. RUSSELL Mayor

No. 219 - The City of Corpus Christi vs Romcon (Ramon?) MARTINAS

Charge drunkeness & disorderly conduct. Complaint filed April 30th 1877, and defendant arrested
same day. Cause came on for trial and defendant plead guilty to the charges. Thereupon, his fine
was fixed at two dollars and fifty cents. It is therefore considered that the City have and recover of
said defendant the sum of two dollars and fifty cents and all costs of suit and that he stand
committed to the custody of the City Marshal until said fine and costs are paid. (Note: Paid $5.00
and released this 2nd day of May 1877. Paid William OHLER 1.50) J.C. RUSSELL Mayor

"IN THE KNOW": For those of you who are "In the Know"

2007-07-02T04:55:00.000-07:00

"IN THE KNOW": For those of you who are "In the Know"

Quantum meruit: Ask no more and give no less than honesty, courage, loyalty, generosity, and fairness

Corpus Christi Watchdog Authority: "nobody knows Mikal Watts better than Corpus Christi." But does Mikal Watts know us (the people of Corpus Christi)?

The Kenedy Pasture Company: A Civil Action in the Making?

2007-07-02

A Civil Action in the Making?

Why must we flex our muscles?

Nueces County, CCISD, 105th Judicial District Attorney; how many kids were locked up without an attorney?

There is no excuse for violating the basic human rights afforded under the United States Constitution.
How many kids were locked up by a court of nonrecord?
Not even with a parent's consent unless the parent has been given the opportunity to consult with counsel.
How many children taken into custody were advised of their Miranda Rights?
Oh yeah, Plaisted and every CCISD kid for whom, he provided service

.

What do we want?

Go do some homework, we want responsive representation with transparent operation.

We want to not be railroaded for tardies or for absences when the District does not practice due diligence in interdicting but is very diligent in recording the events and adamantly prosecutes and collects half of the fine. When the people cant pay the kids are picked up from class and taken in handcuffs to the court of nonrecord. The Parent is contacted and ordered to appear immediately. When the Parent arrives he or she is told to pay or your kid goes to jail and sometimes the parent is threatened and / or locked up as well. I have never seen a kid who has been provided counsel but I have witnessed many a kid go to jail.

And this from non responsive legislators who have enabled the School Administration to blame the parent when they allow children in their custody to roam at large unaccounted for and the District in coordination with the Courts of non record get paid (profit) from it.

2007-07-01

"Court Appointed Rolodex's". Nanotechnology and "Confessing Error" in a dog and pony show who operate like they are in a Kangaroo Court.

Nanotechnology at work right before our eyes finally an acknowledgment of what has been going on for quite a while now. The information in those "Court Appointed Rolodex's", there is gold in them hills. And this is going to start becoming available when? and for who? We have came to a narrowing of the road here in this alligning of energy fields. I can see it now we got Mikal who who is the adversary of my adversary John Cornyn. We also have the Honorable Judge Manuel Banales who needs to align with Mr Watts and vice versa. Does he want to run for mayor unopposed? I would rather see him correct the errors and run for Governor or Ascend to the Texas Supreme Court. Now, John Cornyn has "Confessed Error" and I assure you it wasn't out of fairness but in the essence of knocking the checkers off of the Table because he was going to lose. And Carlos Valdez & John Hubert "Confess Error" on appeal from the 105th. Hubert & Valdez "confess error" so they can conceal Mary Cano. And that is as painless as it gets.
Anton

CCCT Political Pulse
Mikal Watts seeks to round up list of Democrats for self, others
By Jaime Powell
A Monday noontime fundraiser at Vietnam restaurant for U.S. Senate hopeful Mikal Watts was a who's who of the local bar association and judiciary, including five district judges. Watts, who is living in San Antonio, told the crowd that "nobody knows Mikal Watts better than Corpus Christi."

Watts, a Democrat, who is seeking the seat held by Republican Sen. John Cornyn, asked the gathering to dig through their Rolodexes and e-mail address lists because he hopes to compile a statewide database to reach Democratic voters that can be used by all Texas Democrats.

"That way, when Judge (J. Manuel) Bañales runs for mayor he can use it," Watts joked, to uproarious laughter from the crowd and a big grin from Bañales, who was sitting on the front row.

2007-06-30

If you need an attorney.....if he is any good he will tell you watt an "Ander's Appeal" is? If he tells you not to worry about it.........FIRE HIM !!!

Confession of error minus the confession of error on remand from the SCOTUS

2007-06-28T05:29:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-72,556

VICTOR HUGO SALDANO, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

CAUSE NO. 199-80049-96 FROM THE 199TH DISTRICT COURT

COLLIN COUNTY

Hervey, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Keasler, and Holcomb, JJ., joined. Price, Womack, and Johnson, JJ., concurred. Cochran, J., concurred in points of error one, two, three, and five but otherwise joined the opinion of the court.

O P I N I O N

In 1996, appellant was convicted of capital murder and sentenced to death. The conviction was upheld, but the death sentence was overturned in federal habeas corpus proceedings based on a procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial. (1) In 2004, appellant was again sentenced to death at another punishment hearing in state court. Appellant raises 66 points of error on direct appeal to this Court. Finding none of these points to present reversible error, we affirm.

The record reflects that, since his 1996 trial, appellant has resided on death row, where he has committed numerous acts of misconduct that resulted in him being placed in the most restrictive and isolated level of death row. (2) The defense claimed that it intended to explain this misconduct with testimony from a psychiatrist (Peccora), who treated appellant on death row "on well over 100 occasions" from "late 1997 or early 1998" until "early 2001." It appears that Peccora would have testified that the conditions on death row caused appellant to suffer psychological deterioration and to misbehave. The State claimed, and the trial court agreed, that the defense could not present Peccora's testimony without first having appellant examined by a state psychiatric expert pursuant to this Court's decision in Lagrone v. State. (3) Appellant would not submit to a Lagrone examination, and Peccora's testimony was not presented.

We understand appellant to have three basic, separate complaints on appeal regarding Lagrone. First, appellant should not have been required to submit to a Lagrone examination. Second, if appellant was required to submit to a Lagrone examination, this examination should have been limited to rebuttal of Peccora's testimony on appellant's mental decline. And, third, if appellant was required to submit to a Lagrone examination, the State should have been precluded from using any evidence derived from this examination on the future-dangerousness special issue. We find appellant's actual claims at trial to have been less clear.

Points of error one through three and five relate to the trial court conditioning the admissibility of Peccora's testimony on appellant submitting to a Lagrone examination. Specifically, appellant claims that the trial court constitutionally erred by not guaranteeing that any evidence the State obtained during this Lagrone examination would be limited to rebutting Peccora's testimony concerning appellant's mental decline on death row and by further failing to guarantee such evidence not be used by the State on the future-dangerousness special issue. In point of error one, appellant claims that this led the trial court "to incorrectly bar [Peccora's] expert testimony and deny the defendant's motion to dismiss the death penalty proceedings" before the punishment hearing began. In point of error two, appellant claims that this also "unconstitutionally permit[ted] the State to introduce evidence [at the punishment hearing] of misconduct by the defendant while on death row." In point of error three, appellant claims that this constitutional error also "effectively" prevented him from presenting constitutionally relevant mitigating evidence (in the form of Peccora's testimony concerning appellant's mental decline on death row) at the punishment hearing. (4) And, in point of error five, appellant claims that the trial court should have granted him a new trial based on these claims.

The record reflects that the Lagrone issue first arose rather late in the proceedings during a November 5, 2004, hearing on a written motion that appellant had filed on October 21, 2004, in the middle of individual voir dire. (5) The second part of that motion requested a ruling from the trial court that the State was constitutionally prohibited from seeking another death sentence and "therefore that [appellant] be sentenced to life imprisonment." The third part of the motion alternatively requested an in limine ruling from the trial court "to exclude all evidence of [appellant's death-row misconduct] subsequent to his first trial in July 1996." (6)

Appellant claimed at the November 5, 2004, hearing on this motion that the State should not be permitted to seek another death sentence or, alternatively, not be permitted to use any evidence of appellant's death-row misconduct after his 1996 trial because of the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial. See Footnote 1. (7) Appellant evidently claimed that he would not have misbehaved on death row but for this "misconduct" by the State. To support these claims, appellant stated that he intended to introduce Peccora's testimony at the hearing to show appellant's mental decline on death row since his 1996 trial. (8)

[THE DEFENSE]: Sure. And the first part of the motion won't be the focus today. We're looking just, really, at the second part and the third part.

And regarding those parts, there are just two factual issues that we need to put evidence on.

The first factual issue is whether [appellant] has suffered a decline in his cognitive abilities and emotional stability as a result of his isolation on death row; and the second issue is whether [appellant] would have committed aggressive acts while incarcerated were it not for the isolation on death row.

[THE COURT]: Gotcha.

[THE DEFENSE]: Now, in legal terms, the way this fits in is, the State should not be able to enjoy the fruits of [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] that it committed eight and one-half years ago.

And if the Court finds that [appellant] has suffered a decline in his cognitive abilities and emotional stability-and, your Honor, it doesn't require a finding on our part that he is psychotic, we're not arguing he's not competent to stand trial; we're only arguing a significant decline in cognitive ability and emotional stability.

If that's the case, our argument is he may no longer be tried. The State committed [the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial] by putting him on death row, they caused him to be diminished as a result of many years in isolation there, and they can't enjoy the fruits of that at the new sentencing proceeding today.

And, in fact, he can't even be evaluated fairly as a future danger because he's not just the same person today, and the statute requires an evaluation of future dangerousness as of the time of trial.

Second, on the issue of whether [appellant] would have committed aggressive acts while incarcerated if not for the isolation that he was subjected to, the question is whether the State can present evidence of his misconduct on death row on the issue of future dangerousness.

And our position is that the State committed the primary illegality here [with the procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial].

If the State can show by a preponderance of the evidence that the defendant's misconduct on death row would have occurred anyway, then we have nothing to complain about.

If you think of this in terms of an illegal search and seizure, and the fruits of an illegal search and seizure, clearly the illegality occurred. That means that the State can certainly try to overcome that illegality; show that, for instance, the evidence would have been obtained anyway; but they have the burden of showing that this misconduct would have occurred in any case.

We maintain that it's very clear from the testimony we'll present that the misconduct occurred precisely because of the isolation on death row that the State illegally placed him in.

The State claimed that appellant should not be permitted to present Peccora's testimony without the State having an opportunity to have appellant examined by a state psychiatric expert, and the trial court agreed.

[THE COURT]: Let me get something up front here.

I have had a chance to read, during some of that testimony, that Lagrone case, and I believe the State has a right to have [appellant] examined if the State's-if the defense is going to offer the evidence along the lines set out in [Peccora's] affidavit, which I've now reread.

The defense would not agree to a Lagrone examination "for the purposes of this pretrial motion" because of the risk that appellant's "examination to a psychiatrist of the State could actually be used against him at trial."

[DEFENSE LAWYER #1]: Well, let me-let me make this even more clear.

The reason that we're putting that into evidence at this point is, we are not going to allow [appellant] to be looked at by a psychiatrist.

[THE COURT]: I gotcha.

[DEFENSE LAWYER #1]: He'll invoke his Fifth Amendment right.

[DEFENSE LAWYER #2]: Your Honor, may I add?

I'd like to point out that we're being placed in a situation risking that [appellant's] testimony-[appellant's] examination to a psychiatrist of the State could actually be used against him at trial. Faced with that possibility, we can't have the-our client examined for the purposes of this pretrial motion. It's just a risk that we can't run.

The record, therefore, reflects that appellant took the position at this November 5, 2004, hearing that any evidence obtained by the State during a Lagrone examination might be used by the State on any issue at the punishment hearing (including future dangerousness). At this point, appellant had not alerted the trial court to any claim that the trial court should guarantee that a Lagrone examination be limited to rebutting any testimony by Peccora on appellant's mental decline and not to prove future dangerousness.

On Friday, November 12, 2004, the State rested its punishment hearing case-in-chief during which the State had presented evidence of appellant's death-row misconduct. On Monday morning, November 15, 2004, appellant filed another written motion requesting that the trial court reconsider its earlier ruling on the Lagrone issue. (9) In this November 15, 2004, motion, appellant offered for the first time to submit to a Lagrone examination. Appellant also specifically alerted the trial court for the first time to the claim that this Lagrone examination should be limited to rebutting any testimony by Peccora on appellant's mental decline.

This motion also requested that a hearing be scheduled five days later on November 20, 2004, because that was "the only possible date for [Peccora's] voluntary attendance." This motion further "encourage[d] the Court to have the jury begin deliberations prior to any hearing, with the jury simply refraining from pronouncing its verdict before the hearing." This motion finally asserted that appellant was "willing to wait and have a hearing held after the verdict, in the context of a motion for a new trial, which in the present case might better be described as a motion for reconsideration of the sentence."

Appellant's November 15, 2004, motion contained no claim that the trial court's earlier ruling on the Lagrone issue was effectively preventing appellant from presenting constitutionally relevant mitigating evidence to the jury in the form of Peccora's testimony concerning appellant's mental decline. And, appellant made no claim that he wanted to present Peccora's testimony to the jury at the punishment hearing. In relevant part, appellant's November 15, 2004, written motion stated:

Defendant continues to insist that the Court ruled incorrectly in barring [Peccora] from testifying at the hearing of November 5, 2004 without a prior examination of [appellant] by the State's expert, but more seriously, as the Court recognized at the hearing, its decision created a risk for the Defendant-that the State would use its own examination of the Defendant not only on the pre-trial motion of Defendant's impairment, but to prove future dangerousness before the jury. The Defendant returns to the Court in this motion to request that the Court develop some device to permit it to overcome its dilemma.

* * *

Defendant has two proposals for the Court to overcome the problem it faces in needing to consent to an examination of [appellant] prior to any testimony by [Peccora]. First, Defendant asks the Court to order that the prosecution be permitted to examine [appellant], but on condition that the examination not be used for any purpose other than the question of his decline in cognitive ability and emotional stability on Death Row. Because [Peccora] will need to travel to McKinney from Houston, and because [Peccora's] mother is receiving chemotherapy this week and his patient schedule is therefore especially tight, the Defendant also requests that the hearing be scheduled for Saturday, November 20, since that is the only possible date for [Peccora's] voluntary attendance. The Defendant appreciates the difficulties that this causes the Court, but is unable to demand more of [Peccora] at a very trying time for him. Defendant would encourage the Court to have the jury begin deliberations prior to any hearing, with the jury simply refraining from pronouncing its verdict before the hearing.

Second, the Defendant is willing to wait and have a hearing held after the verdict, in the context of a motion for a new trial, which in the present case might be better described as a motion for reconsideration of the sentence. . . . Defendant would have preferred to have any competency-type issue resolved pre-trial, but in the context of the difficulty that [Peccora] will have attending a hearing, it is willing to accept this alternative, of the Court ruling against the Defendant for the purpose of the trial, but reconsidering the issue with an evidentiary hearing post-trial.

The trial court held a hearing on appellant's November 15, 2004, motion on the morning that it was filed. At this hearing, the defense agreed with the trial court that it was requesting the trial court to reconsider its earlier ruling on the Lagrone issue.

[THE COURT]: This is-it's titled basically the same way. They-the defense wants me to reverse my ruling barring [Peccora] from testifying about [appellant's] deterioration, is the best word I can recall-call it, because of his confinement death row for the last several years.

I had earlier ruled that I would not let-the issue arose that, if the I had allowed [Peccora] to testify, that the State was going to insist on having [appellant] examined by their expert, which I tended to agree they could do because of the case law as I read it. At that point, as I recall, the defense decided that it would not-they did not want to insist on [Peccora] testifying; but, instead, offered his affidavit which he had attached to the original motion instead, which I, of course, considered, and did consider.

And at that point that pretty much any of the-now, the State has filed a controverting affidavit; I believe I saw that one day last week.

And that was by [Price]? Is that your doctor?

[STATE]: Yes, your Honor.

[THE COURT]: Which I also-but I had earlier, before I'd actually seen [Price's] affidavit, I had denied the defense motion, and let it go at that. I have not done more on it.

And then Price's motion was filed, and now the defense has filed a motion-I think it's asking to reconsider, [defense lawyers]? Is that a fair statement?

[DEFENSE LAWYER]: Yes.

The State claimed at this hearing that the defense was "only stalling and asking for a delay in tactics." The State also stated that it wanted to make it "crystal clear" that it had never requested the trial court to bar Peccora's testimony, and that, in the pretrial context in which Peccora's testimony was initially offered at the November 5, 2004, hearing, the State had requested a Lagrone examination "to present controverting evidence if the defense presented that evidence." The State also requested the trial court to deny appellant's motion because it was, among other things, "untimely."

The trial court expressed the view that a Lagrone examination "would probably open everything up" about "anything relevant to [appellant's] mental state, including future dangerousness, which is the defense concern."

[THE COURT]: I did not have a chance to fully brief the-how far, if I could-if I could even restrict your expert if he didn't-assuming [Peccora] was allowed to testify, and then, consistent with my earlier ruling, then he would be entitled-the State would be entitled then to have their expert examine [appellant], and what that would open up.

And my belief is that it would probably open everything up. And if your witness testifies and-examines [appellant] and testified to whatever it is in response to Mr.-[Peccora's] testimony going to be, which, generally, is going to be that [appellant] deteriorated, degradated-degraded, I should say-on death row, I would suspect your witness would be entitled to testify about anything relevant to his mental state, including future dangerousness, which is the defense concern.

So I don't know how I can-Mr. Franklin, I don't know how I can limit, under the case law, their expert. I mean, I guess I could order it, but I'm not going to disregard the law.

So I don't know-I don't have-and the other option he suggests is to wait and have a hearing after the verdict. I-

The trial court ultimately denied appellant's request to limit a Lagrone examination to rebutting Peccora's testimony on appellant's mental decline. Appellant made no claim that this effectively prevented him from presenting constitutionally relevant mitigating evidence in the form of Peccora's testimony. Appellant again would not submit to a Lagrone examination, and he did not offer Peccora's testimony at the punishment hearing or any other hearing.

The record fairly reflects that it was not until after the State had rested its case-in-chief at the punishment hearing, during which it had presented evidence of appellant's death-row misconduct, that appellant for the first time alerted the trial court to the claim that it should guarantee that a Lagrone examination be limited to rebutting Peccora's testimony on appellant's mental decline. This was too late for appellant to have preserved for appeal the claims presented in points of error one and two. See Tex. R. App. Proc. 33.1(a)(1)(A) (to preserve error for appeal, complaining party must timely present claim to trial court with sufficient specificity to make trial court aware of complaint); Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App. 1992) ("all a party has to do to [preserve error] is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it").

In addition, appellant made no claim, in either his November 15, 2004, written motion or at the hearing on this written motion, that the trial court's ruling on the Lagrone issue effectively prevented him from presenting constitutionally relevant mitigating evidence in the form of Peccora's testimony on appellant's mental decline. See id. Appellant, therefore, failed to preserve for appeal the claim presented in point of error three.

Even if appellant had timely presented a claim to the trial court that its ruling on the Lagrone issue prevented appellant from presenting constitutionally relevant mitigating evidence, appellant still would not be entitled to appellate review of that claim under the principles discussed in Luce v. United States, 469 U.S. 38 (1984). In Luce, the Supreme Court held that a trial court's in limine ruling, (10) permitting a defendant's impeachment with a prior conviction, is not reviewable unless the defendant testifies, because appellate review of these in limine rulings is difficult "outside a factual context" also rendering any attempt to apply a harm analysis "wholly speculative." See Luce, 469 U.S. 41-43. (11) The considerations discussed in Luce apply with equal force here:

Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible conviction.

Luce, 469 U.S. at 41-42.

In a dissenting opinion in another case decided about sixteen years after Luce, Justice Souter approvingly described the decision in Luce:

We held [in Luce] that a criminal defendant who remained off the stand could not appeal an in limine ruling to admit prior convictions as impeachment evidence under Federal Rule of Evidence 609(a). Since the defendant had not testified, he had never suffered the impeachment, and the question was whether he should be allowed to appeal the in limine ruling anyway, on the rationale that the threatened impeachment had discouraged the exercise of his right to defend by his own testimony. The answer turned on the practical realities of appellate review.

An appellate court can neither determine why a defendant refused to testify, nor compare the actual trial with the one that would have occurred if the accused had taken the stand. With unavoidable uncertainty about whether and how much the in limine ruling harmed the defendant, and whether it affected the trial at all, a rule allowing a silent defendant to appeal would require courts either to attempt wholly speculative harmless-error analysis, or to grant new trials to some defendants who were not harmed by the ruling, and to some who never even intended to testify.[ (12)] In requiring testimony and actual impeachment before a defendant could appeal an in limine ruling to admit prior convictions, therefore, Luce did not derive a waiver rule from some general notion of fairness; it merely acknowledged the incapacity of an appellate court to assess the significance of the ruling for a defendant who remains silent.

Ohler v. United States, 529 U.S. 753, 760-61 (2000) (Souter, J., dissenting).

Appellate review of the trial court's ruling not limiting a Lagrone examination to rebutting any testimony that Peccora might have provided at the punishment hearing on appellant's mental decline is difficult "outside a factual context" and renders any attempt to apply a harm analysis "wholly speculative." See Luce, 469 U.S. at 41-43. In Luce, appellate review of the trial court's in limine ruling, permitting the eventually nontestifying defendant's impeachment with a prior conviction, was practically impossible without a record showing actual testimony by the defendant and actual impeachment of the defendant by the State with the prior conviction. See id. Similarly, appellate review of the trial court's ruling in this case is practically impossible without a record showing Peccora's actual testimony before the jury and the State's actual use before the jury of the results of a Lagrone examination. It is practically impossible to "compare the actual trial with the one that would have occurred" had Peccora testified and appellant submitted to a Lagrone examination. See Ohler, 529 U.S. at 760-61 (Souter, J., dissenting). (13)

In order to be entitled to appellate review of the trial court's ruling not limiting a Lagrone examination to rebutting any testimony that Peccora might have provided on appellant's mental decline, we decide that appellant was required to submit to the Lagrone examination and suffer any actual use by the State of the results of this examination. See Luce, 469 U.S. at 41-43; Ohler, 529 U.S. at 760 (Souter, J., dissenting). It is noteworthy that this is the procedure the defendant in Bradford followed before complaining on appeal that he was required to submit to an examination by a state psychiatrist on the future-dangerousness special issue as a condition for the admission of the defendant's psychiatric evidence on the same issue. See Bradford, 873 S.W.2d at 24-26 (Campbell, J., dissenting). (14) Points of error one through three and five are overruled.

In point of error four, appellant asserts that the future-dangerousness special issue is unconstitutionally vague. This special issue requires the jury to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." See Article 37.071, Section 2(b)(1), Tex. Code Crim. Proc. We have previously held that this special issue is not unconstitutionally vague. See Jurek v. Texas, 428 U.S. 262, 274-76 (1976); Sells v. State, 121 S.W.3d 748, 767-68 (Tex.Cr.App. 2003) (future-dangerousness special issue not unconstitutionally vague for failing to define "probability"); Murphy v. State, 112 S.W.3d 592, 606 (Tex.Cr.App. 2003) (future-dangerousness special issue not unconstitutionally vague for failing to define "probability," "criminal acts of violence," and "continuing threat to society"). Point of error four is overruled.

In points of error six through sixteen, appellant claims that the trial court erroneously denied his challenges for cause to eleven veniremembers: Vanlokeren (point six), Janszen (point seven), Gilbert (point eight), Wilson (point nine), Kunesh (point ten), Powers (point eleven), Kleber (point twelve), Gaus (point thirteen), Farris (point fourteen), Baird (point fifteen), and Garfield (point sixteen). As a result of the trial court's denial of these defense challenges for cause to these eleven veniremembers, appellant claims that he "suffered a detriment from the loss of [an] additional peremptory strike" and that "objectionable and biased jurors to the defense were seated on the Jury."

We review a trial court's ruling on a challenge for cause with "considerable deference" because the trial court is in the best position to evaluate the veniremember's demeanor and responses. See Colburn v. State, 966 S.W.2d 511, 517 (Tex.Cr.App. 1998). We will reverse a trial court's ruling on a challenge for cause "only if a clear abuse of discretion is evident." See id.

Harm from the erroneous denial of a defense challenge for cause occurs: (1) when a defendant uses a peremptory challenge to remove a veniremember whom the trial court should have excused for cause at the defendant's request, (2) the defendant uses all of his statutorily allotted peremptory challenges, and (3) the defendant unsuccessfully requests an additional peremptory challenge which he claims he would use to remove another veniremember whom the defendant identifies as "objectionable" and who actually sits on the jury. See Newbury v. State, 135 S.W.3d 22, 30-31 (Tex.Cr.App. 2004); Wolfe v. State, 178 S.W.2d 274, 281 (Tex.Cr.App. 1944) (op. on reh'g). When these conditions are met, this Court has stated that the trial court's erroneous denial of a defense challenge for cause harms the defendant by wrongfully depriving him of at least one of his statutory peremptory challenges that he could have used to remove the juror whom the defendant identifies as "objectionable." See Newbury, 135 S.W.3d at 31; Wolfe, 178 S.W.2d at 280.

The record reflects that appellant used a peremptory challenge to remove each veniremember identified in points six through fifteen after the trial court denied appellant's challenges for cause to them. (15) The record also reflects that appellant received two extra peremptory challenges from the trial court. Appellant, however, had no peremptory challenges left when he challenged Garfield for cause (point sixteen). Garfield was seated as the twelfth juror after the trial court denied appellant's challenge for cause to Garfield and appellant's request for additional peremptory challenges and after appellant informed the trial court that the defense was "forced to accept" Garfield even though Garfield was a juror whom the defense "would not want on the panel."

[DEFENSE]: Your Honor, based on the Court's decision to deny the challenge [to Garfield], we would request additional preparatory [sic] strikes at this time.

Would, for the record, point out that, in addition to this juror that we would not want on the panel, the challenges for cause that also having been made and used on the other jurors-specifically Juror Number 189, Kleber-the challenges for cause that were denied by the Court, 189, Dennis Kleber; 175, Joyce Powers; 127, Marie Kunesh; 101, Don Wilson; 28, Patti Gilbert-especially Patti Gilbert-Juror-I'm sorry; Juror 6, Bruce Van Lokeren.

For those reasons, we request an additional peremptory at this time.

[THE COURT]: Mr. Harrison I'm going to decline to do that. I'm conscious of your position.

I feel like the Court's been very careful in considering your challenges, and somebody else may think otherwise; but I'll decline to give you additional challenges at this time.

So what says you all about the Juror Garfield?

[DEFENSE]: Well, based on the decision, we are forced to accept.

It is necessary to first address point of error sixteen (denial of defense challenge for cause to Garfield). Appellant arguably identified Garfield as the "objectionable juror" (16) for purposes of attempting to show that the trial court's rulings on his challenges for cause to the other veniremembers identified in points six through fifteen harmed him by wrongfully depriving him of at least one of his statutory peremptory challenges that he could have used to remove Garfield.

Though it is not clear from his brief, appellant also appears to argue that the inclusion of Garfield on his jury deprived him of a fair punishment hearing. (17) The record reflects that appellant challenged Garfield for cause on the basis that Garfield "would require the defense to have the burden to show mitigating circumstances." We have held that a veniremember is not challengeable for cause "simply because he would place the burden of proof on mitigation on the defense." See Ladd v. State, 3 S.W.3d 547, 559 (Tex.Cr.App. 1999).

In addition, the portion of the record of Garfield's voir dire set out in appellant's brief does not support the assertion that Garfield stated that he would require the defense to show mitigating circumstances.

Q. [DEFENSE]: Now, along with the [mitigation special issue] kind of comes into play the Fifth Amendment.

The Fifth Amendment, the defendant's right not to incriminate himself, applies to the punishment phase just like it does the guilt-innocence phase.

If a defendant does not testify in the punishment phase, the Judge will instruct you to not consider that for any purpose. It's a nonfactor. Look at all the other evidence that you have, make a decision based on all the other evidence, but don't consider that.

Do you have a problem following that law.

A. [GARFIELD]: Um, I understand the law. I understand the Constitution. But I have to say, in my own mind, a complete lack of defense-okay; in other words, rebuttal to any of the claim-would psychologically be a factor for me.[ (18)]

Garfield also stated that he could "keep an open mind and consider everything for mitigation on the [mitigation special issue]."

Q. [DEFENSE]: The law requires that you've still got to keep an open mind and consider everything for mitigation on [the mitigation special issue].

Can you promise me you can do that?

A. [GARFIELD]: I can promise you that.

* * *

Q. Okay. And the reason I ask, especially on [the mitigation special issue], we have some jurors tell us that, you know, if I'm going to make a determination if there's mitigating circumstances, I kind of need to hear from the defendant; that's the only way I can make that decision.

Other jurors say, that's not a problem for me; I can follow the law and base it on the testimony and the evidence I hear.

Can you do that?

A. I can.

On this record, no "clear abuse of discretion is evident" in the trial court's denial of appellant's challenge for cause to Garfield. See Colburn, 966 S.W.2d at 517. Point of error sixteen is overruled.

Since appellant received two extra peremptory challenges, appellant must show that the trial court erroneously denied at least three of his challenges for cause to the other veniremembers identified in points six through fifteen. See Newbury, 135 S.W.3d at 31; Chambers v. State, 866 S.W.2d 9, 23 (Tex.Cr.App. 1993). This would satisfy the required showing for harm by demonstrating that appellant was wrongfully deprived of at least one of his statutory peremptory challenges. See Newbury, 135 S.W.3d at 31.

In point of error six, appellant claims that veniremember Vanlokeren was challengeable for cause because "he had a strong bias in favor of law enforcement and would want the defendant to testify." The record reflects that appellant did not challenge Vanlokeren on the latter basis of wanting appellant to testify, so we do not consider this claim. The record further reflects that Vanlokeren, whose father was a police officer, stated on voir dire that this would not prevent him from being able to "follow the law" as it had been explained during voir dire or prevent him "from looking at things objectively." Appellant even stated in making his challenge for cause that Vanlokeren "vacillated back and forth."

[DEFENSE]: Yeah. You said challenge.

Judge, I would challenge [Vanlokeren] based on the bias he's expressed and the-the way he's kind of vacillated back and forth with that as to-as to being able to hold the State to its burden [on the future-dangerousness special issue], proving beyond a reasonable doubt in the punishment phase.

[THE COURT]: Briefly, Ms. Scanlon, do you want to respond to that?

[STATE]: Your Honor, I believe that [Vanlokeren] was unequivocal in saying that he could follow the law as given. After multiple times of being asked by Mr. Harrison, he still stated that he would follow the law; he would put those biases aside and decide the facts of the case based on the evidence presented.

[THE COURT]: All right.

Mr. Harrison, I'm going to deny your challenge. I watched the juror and heard his answers, of course. He's a very thoughtful person. And the record won't necessarily reflect; he paused before he answered-well, the record may reflect since I've said it now-before he responded to some of your questions.

And I conclude on totality of his answers that he would be able to follow this law and discharge his oath as a juror, so I'll deny your challenge.

The trial court was in the best position to determine whether Vanlokeren was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error seven, appellant claims that veniremember Janszen was challengeable for cause because she was "predisposed to automatically answering 'yes' to [the future-dangerousness special issue] if someone was convicted of murder" and because she "wanted to hear from the defense why the defendant should not get the death penalty." The record reflects that appellant did not challenge Janszen on the latter basis of wanting to hear from the defense on why appellant should not get the death penalty, so we do not consider this claim.

The record reflects that Janszen initially stated to the defense that she would answer "yes" to the future-dangerousness issue if the only evidence presented was an intentional killing during a robbery. She later stated that there "would be some cases of capital murder where [she] would say yes to the [future-dangerousness special issue], and there would be some that [she] would say no." She later stated that she thought that she could keep an open mind and require the State to prove the future-dangerousness special issue.

Appellant challenged Janszen for cause on the basis that she was "predisposed" to answering the future-dangerousness issue "yes" after convicting someone of capital murder. The trial court denied the challenge.

[DEFENSE]: Your Honor, the defense would challenge [Janszen] based on the answer she gave to [the future-dangerousness special issue].

I think she gave some honest answers and feeling that she was predisposed to find somebody a continuing threat if they were guilty of capital murder.

The law was explained to her a number of times. The first item of couples [sic] of times she stuck with her answer, and I feel like that that's her honest feeling; that if somebody had been found guilty of capital murder, that she was predisposed to answer that yes and not require the State to meet the burden of proof on that issue.

So we challenge her-challenge [Janszen] on that.

[THE COURT]: Ms. Leyko, do you just want to respond-I don't want to bring her back in to do it, but-

[STATE]: Your Honor, no. I believe she said she could be fair. The only time she said she would answer [the future-dangerousness special issue] yes is when she thought she had a specific set of facts. And that was actually pinning her, and probably in violation of Standefer.

But when given a different scenario, she said no. And when asked specifically, are you predisposed, she said she could be fair. She'd make us prove the case-prove that question to her beyond a reasonable doubt.

And when Mr. Harrison would back off the specific fact scenario and just say, are there some capital murders that would be yes and some no, she said yeah. I mean, to her it depends on the facts, and she understands it's our burden, and she said she could follow the law.

[THE COURT]: Mr. Harrison, I'll deny your challenge. I think she's qualified.

The trial court was in the best position to determine whether Janszen was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error eight, appellant claims that veniremember Gilbert was challengeable for cause because she, too, "had predetermined that if a person was convicted of capital murder, she would automatically answer 'yes' to [the future-dangerousness special issue]." The record, however, reflects that Gilbert vacillated. For example, during questioning by the defense, she stated that she'd be "leaning toward finding them dangerous" after a conviction for capital murder.

Q. [DEFENSE]: Honestly, you told me that, honestly, you felt like you'd be leaning toward somebody being found dangerous once they'd been convicted of capital murder.

A. [GILBERT]: Yes, I do.

Q. And you indicated-the law says you can't do that, but you're telling me that, even though you know you're supposed to start it out as no, and make the State prove, yes, they are a continuing threat, being honest with me and being true to your oath, you'd already be leaning toward finding the person dangerous. And you wouldn't start it out as a no.

A. This is all so new to me.

Q. Oh, sure.

A. And I know I probably have contradicted myself a thousand times already, but, um-

Q. Well, but it's like you said. I need your honest answer. I mean, if you honestly feel that way, and that's how you feel, that's fine. We have plenty of people feel that way, too. They say, hey, look, Rick, if somebody's already been found guilty of capital murder, and there's no excuse given, and they specifically intended to kill somebody, you know, being honest with you, I know the law says I'm supposed to start that question out no and make the State prove it to me beyond a reasonable doubt; but being honest with you, and the way I honestly feel, I wouldn't be able to start it out as no; I'd be leaning toward finding them dangerous; and you know, you almost have to prove to me that they weren't.

A. Right. I agree that way.

Q. Is that how you honestly feel?

A. Yes.

When subsequently questioned by the State, Gilbert stated, however, that she could "set [her] biases aside, follow the law, and presume [the future-dangerousness special issue] no until [the State] prove[d] it to [her] beyond a reasonable doubt."

Q. [STATE]: Ms. Gilbert, not to continue to harp on this same issue; I just want to kind of clarify and make sure we understand you completely.

You indicated that you had a predisposition or a leaning toward-on [the future-dangerousness special issue], a leaning toward, yes, you'd find him to be a future danger.

We all have predispositions; we all have beliefs; we all-as much as we like to think we're unbiased and neutral, we all have our leanings. We're just designed that way.

We don't like murderers; we don't like child molesters. We're built that way.

To be fair, and to be qualified to be on a jury, what you have to be able to do is set those leanings, those biases, aside and follow the law.

A. [GILBERT]: Exactly.

Q. With regard to [the future-dangerousness special issue], though you have a leaning toward, yeah, I would find him to be a future danger, understanding we have the burden on that question-and what that means is, that question is presumed to be no.-can you set your biases aside, follow the law, and presume that question no until we prove it to you beyond a reasonable doubt?

A. Yes. I could do that.

Q. And so even though they've asked you your leaning, your predisposition, and knowing that's your true feeling, you could wipe that, start out with a clean slate, you're presuming this question no, until we've proven it to you beyond a reasonable doubt.

A. Yes. I could do that.

The trial court did not abuse its discretion to deny appellant's challenge for cause to Gilbert based on her conflicting answers. See Colburn, 966 S.W.2d at 517. On this record, no "clear abuse of discretion is evident." See id.

In point of error nine, appellant claims that veniremember Wilson was challengeable for cause because he, too, was "predetermined that if a person was convicted of capital murder, he would automatically answer 'yes' to [the future-dangerousness special issue]" and because he would require the defense "to prove the issue of mitigation." The record reflects that appellant did not challenge Wilson on the former basis that he would automatically answer "yes" to the future-dangerousness special issue when a defendant has been convicted of capital murder, so we do not consider this claim. And, Wilson was not challengeable for cause "simply because he would place the burden of proof on mitigation on the defense." See Ladd, 3 S.W.3d at 559. Wilson also testified that, if the evidence from whatever source showed mitigation, he would consider it in answering the mitigation special issue.

Q. [DEFENSE]: Well, I understand that. But in-and sometimes that's what happens. Sometimes-like Ms. Scanlon says, all the defense-all the defendant has to do is show up, and we show up with him. And a lot of times in a case the defense doesn't do anything but show up.

And in-in a situation like this, in answer to [the mitigation special issue], I take it that you would really want the defense to do something in order for you to answer-

A. [WILSON]: I would want evidence, you know.

Q. From the defense.

A. From everybody. Yes. I'd want to be able to understand what the whole situation was.

I mean, if you don't present a defense, it's hard to agree one way or the other.

Q. If the defense did not present any evidence to you, any evidence to you, would you just close off any deliberation on mitigation altogether and not look for it anywhere else that it may come up?

Because it can be anywhere.

A. It can be anywhere. I would look for whatever the possibilities are.

I would prefer it came from the defense; that would be my preference. But I have to look at the evidence, and, if the evidence showed something along that nature, then I would have to look at that and examine it and proceed on it accordingly.

The trial court was in the best position to determine whether Wilson was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error ten, appellant claims that veniremember Kunesh was challengeable for cause because "she could not consider a number of mitigating circumstances." Kunesh stated that what she defined "as mitigating or extenuating has to meet an extraordinarily high bar before we say that it indeed is what we're going to use as a safety net to back off on the death penalty." There "is no per se evidence that must be viewed by a juror as having definitive mitigating effect." See McFarland v. State, 928 S.W.2d 482, 497-98 (Tex.Cr.App. 1996). The trial court, therefore, did not abuse its discretion to deny appellant's challenge for cause to Kunesh.

In point of error eleven, appellant claims that veniremember Powers was challengeable for cause because "she had predetermined that if a person was convicted of capital murder, she would automatically answer 'yes' to [the future-dangerousness special issue], she could not consider alcohol or drug use as mitigating circumstances and she would place a burden on the defense to prove mitigation." The record reflects that Powers vacillated on whether she would automatically answer "yes" to the future-dangerousness special issue after a capital murder conviction. She ultimately stated that she could presume a "no" answer and wait for the State to prove it.

Q. [DEFENSE]: Okay. So let's try it one more time.

The law says you've got to presume [the future-dangerousness special issue] to be, no, he's not a continuing threat, and the State has to prove it to you.

Now, I asked you, and you and some other jurors feel like sometimes that, even though that's what the law is, I'd have a problem presuming that to be no, and I would presume that to be yes. That's the way I'm-even though the law says I'm supposed to presume it no, being honest with you, if he's already been convicted of capital murder, I'm going to probably be presuming that to be yes.

And, I'm asking you, do you have that same problem, or not?

A. [POWERS]: My-my first thought would be yes.

Q. Right.

A. Now, I have to wait for the State to give me the evidence to prove to me that they are a future danger to society.

Q. Right. So the question becomes-

A. I will look at the evidence before I make a final decision.

Q. Okay. And that's great. But the question still that we need to know is, can you presume [the future-dangerousness special issue] to be no, even though somebody's been convicted of capital murder?

A. Yes.

Q. Okay. So everything you said earlier, were you just confused with what I was saying?

A. Yes.

And, there is no per se evidence that Powers was required to view as having definitive mitigating effect. See McFarland, 928 S.W.2d at 497-98. Powers also was not challengeable "simply because [s]he would place the burden of proof on mitigation on the defense." See Ladd, 3 S.W.3d at 559. Powers also ultimately stated that she could consider a life sentence even if the defense did not present "anything" to her.

Q. [DEFENSE]: Okay. So you would feel the defense would have to bring you something-

A. [POWERS]: Yeah.

Q. -to warrant a life sentence versus a death sentence with a [sic] mitigating circumstances.

A. Yes.

Q. Okay. And if the defense didn't bring that to you, or that wasn't brought, that might be a problem for you in considering a life sentence.

A. No. It wouldn't be a problem if it-if you're not presenting anything to me-

Q. Right.

A. -it's not going to be a problem.

The trial court was in the best position to determine whether Powers' was challengeable for cause. On this record, no "clear abuse of discretion is evident." See Colburn, 966 S.W.2d at 517.

In point of error twelve, appellant claims that veniremember Kleber was challengeable for cause apparently because he would not consider as mitigating "drug use, alcohol use, some of those things; anything that you do on your own that you've made a decision on your own to use." Kleber was not required to consider these things to be mitigating. See McFarland, 928 S.W.2d at 497-98. The trial court, therefore, did not abuse its discretion to deny appellant's challenge for cause to Kleber.

In point of error thirteen, appellant claims that veniremember Gaus was challengeable for cause because "he would give the death penalty to someone who was convicted of capital murder and had found [the future-dangerousness special issue] to be yes." Appellant challenged Gaus for cause on the basis that he "would not be really interested in moving on down to [the mitigation special issue] and considering mitigation" after answering "yes" to the future-dangerousness special issue.

Gaus stated, during questioning by the State, that he thought the mitigation special issue was necessary and that he would be "able to listen to all the evidence and weigh it accordingly."

Q. [STATE]: -what was your impression, or what do you think of this [mitigation special issue]? What do you take it to be?

A. [GAUS]: (No audible response)

Q. Nothing.

A. (No audible response)

Q. Nothing?

A. It's just-it-the way I understand it, and my take on it, would be that there's something-evidence or special circumstances involved here whereas the murder would not-or the death sentence would not be justified.

Q. And that's exactly-that's exactly it. The legislature created this vehicle or this question as a vehicle, as a chance, if you will, to take a step back; that a defendant has been found guilty beyond a reasonable doubt of capital murder, has been proven to you beyond a reasonable doubt to be a probable continuing threat to society; regardless of those two factors, is there anything that you've heard, any evidence, that is sufficiently mitigating to warrant life rather than death.

A. Mm-hmm.

Q. What do you think about that? Do you think that's a good thing? Bad thing?

A. I think it's necessary.

Q. Okay. Since we're dealing with someone's life?

A. Sure.

Q. Okay.

Mitigating evidence is not going to be defined for you. It's going to be whatever you think it is.

To be qualified as a juror, we just need you to have an open mind and not automatically exclude a piece of evidence just because of the nature of the evidence. For instance, saying, I won't consider someone's background, because I know people that came from a poor or abusive background, and they don't kill people.

Do you think you'd be qualified as a juror; able to listen to all the evidence and weigh it accordingly?

A. Yes.

Gaus later stated, during questioning by the defense, that "[t]here's a very good chance he'd go with the death penalty" after a "yes" answer to the future-dangerousness special issue and that there were "probably very few things" that he would consider "as mitigating factors." On this record, the trial court would not have abused its discretion to find that Gaus never expressed a categorical refusal to consider the mitigation special issue after a "yes" answer to the future-dangerousness special issue. See Colburn, 966 S.W.2d at 517.

Based on the foregoing, we conclude that the trial court did not erroneously deny appellant's challenges for cause to Vanlokeren (point six), Janszen (point seven), Gilbert (point eight), Wilson (point nine), Kunesh (point ten), Powers (point eleven), Kleber (point twelve), and Gaus (point thirteen). Since appellant has to show that the trial court erroneously denied his challenges for cause to at least three of the veniremembers identified in points six through fifteen, it is unnecessary to decide whether the trial court erroneously denied his challenges for cause to Farris (point fourteen) and Baird (point fifteen). See Newbury, 135 S.W.3d at 41. Points of error six through fifteen are overruled.

In point of error eighteen, appellant claims that the evidence is legally insufficient to support the jury's finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. We apply the Jackson v. Virginia standard in determining whether the evidence is sufficient to support this finding. See Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991) (appellate court views the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that the defendant would probably commit criminal acts of violence that would constitute a continuing threat to society).

The evidence shows that appellant and an accomplice (Chavez) forced the victim into the victim's car in the parking lot of a grocery store. Appellant and Chavez took the victim in his own car to a remote location and parked. Appellant led the victim into some woods while Chavez waited at the car. Appellant shot the victim five times with the last shot to the head at close range to make sure the victim was dead. Appellant was confrontational when the police arrested him about an hour later. That evening, several police officers observed that appellant was unremorseful and that his situation seemed like "a joke to him." One officer told appellant several times that he should take his situation seriously and stop laughing. Appellant was involved in an attempted armed robbery about five days before the victim's murder. Appellant engaged in numerous acts of misconduct while incarcerated on death row. We decide that the evidence is sufficient to support the jury's finding on the future-dangerousness special issue. Point of error eighteen is overruled.

In point of error seventeen, appellant claims that the trial court erred in not allowing him to present, as constitutionally relevant mitigating evidence, evidence that Chavez received a life sentence for his lesser role in the victim's murder. This Court has held that "evidence of a co-defendant's conviction and punishment is not included among the mitigating circumstances which a defendant has a right to present" in part because this evidence does not relate to the defendant's "own circumstances." See Morris v. State, 940 S.W.2d 610, 613-14 (Tex.Cr.App. 1996).

Appellant claims that more recent United States Supreme Court cases such as Tennard v. Dretke, 542 U.S. 274 (2004), have "impliedly overrule[d] any prior rule of Texas evidence that would normally prevent the use of this type of evidence at a punishment hearing because of the special nature of a capital murder death case." We disagree, because, even though cases such as Tennard establish a "low threshold for [constitutional] relevance," these cases still require that the proffered evidence relate to the defendant's "own circumstances." See Tennard, 542 U.S. at 284-85 (placing virtually no limits on evidence that a capital defendant may introduce "concerning his own circumstances"). Point of error seventeen is overruled.

In point of error nineteen, appellant claims that "the trial court erred in not concluding the punishment hearing and imposing a life sentence based on the trial court being made aware of the issues supporting the reversal of the recent death penalty case of Smith v. State, 543 U.S. 37 (2004)." Appellant claims that the statutory mitigation special issue set out in the version of Article 37.071, Tex. Code Crim. Proc., applicable to appellant's case "is nothing more than a nullification issue to [the future dangerousness special issue]."

The Supreme Court's decision in Smith addressed the constitutionality of a non-statutory, "nullification" special issue that effectively instructed the jury to compromise its ethics and disregard its oath and instructions by changing one of its "yes" answers to one of the other statutory special issues to a "no" answer if the jury believed that mitigating circumstances existed warranting a sentence less than death. See Smith, 543 U.S. at 38-39, 45-49. The statutory mitigation special issue submitted in this case is nothing like the "nullification" instruction at issue in Smith. The statutory mitigation special issue in this case provided appellant's jury a vehicle to "fully" consider and give effect to appellant's mitigating evidence without requiring the jury to disregard its oath and instructions by changing its answer to the future-dangerousness special issue. Unlike Smith, the jury in this case could have "fully" considered and given effect to appellant's mitigating evidence by providing a "yes" answer to the mitigation special issue. Point of error nineteen is overruled.

In point of error twenty, appellant claims that the trial court erroneously admitted "numerous autopsy photographs in violation of [Tex. R. Evid. 403], where the prejudicial effect of the evidence far outweighed any probative value." (19) Appellant claimed at trial that the "inflammatory and prejudicial value outweigh[ed] the probative value" of the photographs. (20) The trial court overruled appellant's objection finding "that the probative value of the particular exhibits outweighs the prejudicial value, given the nature of this case and the evidence." The record reflects that the medical examiner used the autopsy photographs to help explain his testimony about the victim's five gunshot wounds. For example,

Q. [STATE]: State's Exhibit No. 57, what is this a photograph of?

A. [MEDICAL EXAMINER]: Well, this is the entry site behind [the victim's] left ear.

Now, this is a photograph that is dirty, or not cleaned up. I haven't shaved away the hair so you can better see the entry, and haven't cleaned up any blood. This is as it is uncleaned.

* * *

Q. Dr. Rohr, looking at State's Exhibit No. 50, what are we looking at here?

A. Well, this is a cleaned-up photograph of the entry site behind the left ear. Here I have the hair shaved away, and I've cleaned away a lot of the blood, and you can easily see the entry wound.

One of the things I'd like to point out is that there's characteristics of a contact wound here, and that there's splitting of the wound here, a long laceration; and if you look a little harder, the edges are serrated, or jagged, right up in here, which is-it's not a smooth round defect like you'd expect in a distant shot. Only a contact wound against a flat bone would create this sort of a situation.

Appellant's claim on appeal boils down to the argument that it was "unfairly prejudicial" for the jury to see the autopsy photographs that helped explain the medical examiner's testimony and that depicted the victim's gun shot wounds inflicted by appellant because this evidence was "meant to appeal to emotion rather than the fact finding process." The case law, however, actually refers to an "undue tendency" to suggest decision on an "improper basis" such as an "emotional one." See Newbury, 135 S.W.3d at 43. The photographs in this case depict what appellant caused and what verbal testimony properly described. (21) See id. Under these circumstances, the trial court would not have abused its discretion to determine that any tendency of the photographs to suggest a decision on an emotional basis was not "undue" or that any "undue tendency" to suggest decision on an emotional basis did not "substantially outweigh" or even "outweigh" the probative value of the photographs. See id.; see also Escamilla v. State, 143 S.W.3d 814, 826 (Tex.Cr.App. 2004), cert. denied, 544 U.S. 950 (2005) (trial court did not abuse its discretion to admit autopsy photographs because they helped explain the medical testimony describing the victim's various injuries caused by the defendant). Point of error twenty is overruled.

In point of error twenty-one, appellant asserts that "the trial court erred in overruling appellant's objection to oral statements made by the defendant while he was in custody." The record reflects that the State intended to elicit testimony from officer Giddings concerning his observations of appellant's demeanor during the booking process after his arrest. (22) Appellant generally objected "to anything [appellant] said while he was in custody." The trial court ruled that Giddings could not offer an opinion of what appellant's "mental processes might have been" but that he could describe for the jury "what he saw [appellant] do, whatever that was; smiling, not smiling, or casual or uncasual, or whatever." We understand appellant to complain on appeal that Giddings also testified before the jury that appellant did not "seem to express any remorse for what he had done."

Q. [STATE]: How would you describe the defendant's demeanor while y'all were doing the book-in process and removing his clothes?

A. [GIDDINGS]: Nice. He was not unhappy. He seemed to be nonchalant about the whole thing.

At times he would laugh; and during-during the book-in process, he-he would laugh and cut up and just seemed like everything was fine.

Q. At the time you were dealing with him, did he seem to express any remorse for what he had done?

A. None whatsoever.

Assuming that this lack of expression of remorse testimony constituted an opinion of what appellant's "mental processes might have been," appellant failed to preserve any error in the admission of this testimony because he did not object to this foreseeable event or move for an instruction to disregard it, if it was not foreseeable. See Young v. State, 137 S.W.3d 65, 69-70 (Tex.Cr.App. 2004) (objection required to preserve error to any foreseeable occurrence, and request for instruction to disregard or motion for mistrial required to preserve error to unforeseeable occurrence). In addition, any error in admitting this lack of expression of remorse evidence was harmless because other evidence of appellant's lack of expression of remorse was admitted without objection from appellant. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Cr.App. 1998). For example, Detective Bennett testified, without objection, that she observed appellant on the night of his arrest "laughing, smirking, smiling," which Detective Bennett interpreted as appellant having "no remorse whatsoever." (23) Point of error twenty-one is overruled.

In point of error twenty-two, appellant again asserts that "the trial court erred in overruling appellant's objection to oral statements made by the defendant while he was in custody." Appellant claims that, "after counsel made an objection to all evidence involving statements by the defendant while in custody," the trial court erroneously permitted officer Pero to testify that appellant never expressed any remorse. Appellant's brief contains no citation to the record where this objection was made. And, the record citation provided in appellant's brief indicates that no such objection was ever made to Pero's testimony. (24)

Q. [STATE]: And were you assigned at some point to watch [appellant] while he was in jail?

A. [PERO]: Yes. In the interview room in the police station.

Q. And what were your duties regarding [appellant] that evening?

A. I was basically stationed outside of the interview room, and-which is off one of the hallways. I was instructed to make sure no person, officer or otherwise, had any conversations in that general vicinity so no one-so [appellant] couldn't hear what we were talking about; and also to watch over him, guard the room; and I also facilitated several of his requests he made to me; things such as a trip to the restroom, water, food. I think he may have requested a blanket, at one point.

Q. And did he ever make those-did he make those requests in English, or in Spanish?

A. In English.

Q. And at the time that he was requesting things from you, what was his demeanor?

A. He was very-the word I use to describe it is very amused with the situation he was in. On several occasions he chuckled or laughed; just-

Q. Did it seem unusual, given his circumstances?

A. Yes. I was surprised by his demeanor.

Q. At any point did he give you a hand gesture that is sometimes determined-deemed to be offensive?

A. On one of the times where I opened the door to the interview room to check on [appellant], he flipped me off and chuckled as I exited.

Q. And was-what events led up to that?

A. Simply that; simply me opening the door to check on him, as I did periodically. There was no words spoken, just the gesture and the chuckle.

Q. And did you respond?

A. I did not.

Q. During the time that you were dealing with [appellant] and interacting with him, did you ever see him express any remorse for the reason he was in there.

A. No.

Appellant did not preserve any error because he failed to properly object to this testimony. Point of error twenty-two is overruled.

In point of error twenty-three, appellant again complains that "the trial court erred in overruling appellant's objection to oral statements made by [appellant] while he was in custody." In point of error twenty-four, appellant complains that "the trial court erred when it permitted the State to present testimony of a confession by [appellant] to prior murders as a prior bad act, since the State failed to name the alleged victim of the crime, or indicate when or where it occurred, and left the defendant with too little time and information to respond."

The record reflects that, as appellant was being transported back to the court house from jail after a lunch break during the punishment hearing, appellant spontaneously told a county detention officer (Poindexter) that he had "killed three people in Oak Cliff." Appellant objected to the admission of this evidence on hearsay grounds. The State responded that it was a "party opponent admission" and not hearsay. The trial court overruled appellant's objection. Poindexter provided the following testimony before the jury.

Q. [STATE]: Now, on your way over back to the courtroom after lunch today, did you have a conversation with [appellant]?

A. [POINDEXTER]: Yes, ma'am.

Q. And what was the nature of that conversation?

A. I was asking him from where about in Argentina he was, as we were walking through the tunnel.

Q. And during the course of this conversation, did the-did [appellant] make any statements that alarmed you?

A. Yes, ma'am. He stated kind of in a-we were talking about Argentina, and then there was a pause, and out of nowhere he just kind of turned and looked at me and said, You know I killed three people in Oak Cliff.

We decide that the trial court did not abuse its discretion to admit this evidence. The trial court would not have abused its discretion to decide that the very fact that appellant would make such a statement (without regard to its truthfulness) in the course of his capital-sentencing proceeding would have some relevance to both special issues. (25) Points of error twenty-three and twenty-four are overruled.

In points of error twenty-five through forty-nine, appellant presents various challenges to the court's jury charge. In point of error twenty-five, appellant claims that "the trial court erred in failing to provide a rational process for the jury to determine life or death." In point of error twenty-six, appellant claims that "the trial court erred in failing to instruct the jury how to rationally resolve the tension between the requirement of an individualized sentencing procedure and the provision of a mechanism to deter others from committing similar crimes." In point of error twenty-seven, appellant claims that "the punishment charge as a whole is legally insufficient." In point of error twenty-eight, appellant claims that the "punishment charge as a whole is legally insufficient because it fails to provide a rational process to permit a discretionary grant of mercy based on mitigating circumstances." In point of error twenty-nine, appellant claims that "the punishment charge as a whole fails to provide a rational process to permit a discretionary grant of mercy based on mitigating circumstances." In point of error thirty, appellant claims that "the trial court erred in failing to instruct the jury that they may consider 'non-Penry' mitigating evidence to rebut, and raise a reasonable doubt about, the State's claim of future dangerousness, deliberation and reasonable expectation of death, as well as in consideration of [the mitigation special issue] on mitigating circumstances."

In point of error thirty-one, appellant claims that "the trial court erred in failing to instruct the jury that there is no presumption in favor of death." (Emphasis in original). In point of error thirty-two, appellant claims that "the trial court erred in failing to instruct the jury on the meaning of the phrase 'criminal acts of violence.'" In point of error thirty-three, appellant claims that "the trial court erred in failing to instruct the jury that 'continuing threat to society' does not mean 'any threat of harm or death, no matter how minor or remote." In point of error thirty-four, appellant claims that "the trial court erred in failing to submit a definitional instruction to the jury to define continuing threat to society so as to select only the 'worst of the worst' for the death penalty." In point of error thirty-five, appellant claims that "the punishment charge as a whole is legally insufficient."

In point of error thirty-six, appellant claims that "the trial court erred in failing to limit the jury's consideration of victim impact evidence." In point of error thirty-seven, appellant claims that "the trial court erred in failing to instruct the jury that victim character or impact evidence does not meet or relieve the State of its burden to prove the continuing threat issue beyond a reasonable doubt." In point of error thirty-eight, appellant claims that "the trial court erred in failing to instruct the jury that jurors are not to use the victim evidence to make any comparative worth analysis contrary to the holding in [citation omitted]."

In point of error thirty-nine, appellant claims that "the trial court erred in failing to instruct the jury that it shall answer 'yes' to [the future-dangerousness special issue] if 10 jurors agree that one or more mitigating circumstances exist." (26) In point of error forty, appellant claims that "the trial court erred in failing to instruct the jury that even if they disagree as to which mitigating circumstance or circumstances is or are sufficient, a sentence of life imprisonment rather than death be imposed." In point of error forty-one, appellant claims that "the trial court erred in failing to instruct the jury that it shall answer 'yes' to [the mitigation special issue] even if the jurors disagree as to which mitigating circumstance or circumstances is or are sufficient to warrant that a sentence of life imprisonment rather than death be imposed." (Emphasis in original). In point of error forty-two, appellant claims that "the trial court erred in failing to instruct the jury that it may answer 'yes' to [the mitigation special issue] even if the jurors disagree as to which mitigating circumstance or circumstances is or are sufficient to warrant that a sentence of life imprisonment rather than death be imposed." In point of error forty-three, appellant claims that "the trial court failed to inform the jury of all their options provided by law, which renders the capital sentencing process irrational and unreliable under the Eighth and Fourteenth Amendments."

In point of error forty-four, appellant claims that "the trial court erred in failing to inform the jury that if they do not unanimously agree on special issues one through two, that has the same dignity and respect as a 'yes' or 'no' answer and is the same in legal effect as a 'no' answer." In point of error forty-five, appellant claims that "the trial court erred in failing to inform the jury that a life sentence, not a mistrial, results from a failure to answer the special issues." In point of error forty-six, appellant claims that "the jury instruction which instructs the jury that 10 of them must agree in order to answer [the future-dangerousness special issue] with a 'no' answer which will result in a life sentence is a misrepresentation."

In point of error forty-seven, appellant claims that "the trial court erred in instructing the jury to decide any issue of fact that was not alleged in the indictment returned against the defendant." (27) In point of error forty-eight, appellant claims that "the trial court erred in failing to instruct the jury in [the mitigation special issue] that the State has the burden to prove beyond a reasonable doubt that no circumstances exists that would justify a sentence of life." And, in point of error forty-nine, appellant claims that "the trial court erred in failing to require proof of extraneous offenses and other misconduct beyond a reasonable doubt." (Emphasis in original). (28)

The record reflects that appellant made various objections to the court's charge. These objections seem consistent with the points of error raised on appeal. Appellant argues in his brief:

These [trial] objections were made to either bring about a reality of truth in jury charges, especially in death cases, or to implement recommendations of the American Bar Association's position as published by its Section of Individual Rights and Responsibilities "Death Without Justice: A Guideline for Examining the Administration of the Death Penalty in the United States," published June, 2001 and included in the publication of the State Bar of Texas "Capital Punishment: A Review of Recent Developments and Their Implications," February 8, 2006.

We believe it sufficient to dispose of these points (29) by recognizing that the trial court submitted a charge consistent with applicable state statutes, which have withstood numerous constitutional challenges. These state statutory provisions meet federal constitutional requirements by narrowing the class of "death-eligible defendants" and they arguably provide more than required by the federal constitution by providing a jury a vehicle to "fully" consider mitigating evidence "in every conceivable manner in which the evidence might be relevant." See Cockrell v. State, 933 S.W.2d 73, 92-93 (Tex.Cr.App. 1996). Points of error twenty-five through forty-nine are overruled.

In points of error fifty through sixty-six, appellant raises various constitutional challenges to Texas' death penalty statutes. In point of error fifty, appellant claims that various Texas capital murder statutory provisions were improperly applied to appellant "because the State of Texas has not developed appropriate ways to enforce the constitutional restriction against execution of mentally retarded offenders upon its execution of death sentences." In point of error fifty-one, appellant claims that "the statute under which [he] was sentenced to death is unconstitutional in violation of the cruel and unusual punishment prohibition of the Eighth Amendment because it allows the jury too much discretion to determine who should live and who should die and because it lacks the minimal standards and guidance necessary for the jury to avoid the arbitrary and capricious imposition of the death penalty."

In point of error fifty-two, appellant claims that "the statute under which [he] was sentenced to death" violates the Eighth Amendment "because the mitigation special issue sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerable and unreliable." In point of error fifty-three, appellant claims that "the statute under which [he] was sentenced to death" violates the due process "because it implicitly puts the burden of proving the mitigation special issue on appellant rather than requiring a jury finding against appellant on that issue under the beyond a reasonable doubt standard."

In point of error fifty-four, appellant claims that "the trial court erred in denying appellant's motion to hold Article 37.071 Sec. 2(E) and (F) concerning burden of proof unconstitutional as a violation of Article One Sec. 10 and Sec. 13 of the Texas Constitution." In point of error fifty-five, appellant claims that the "Texas death penalty scheme violates due process protections of the United States Constitution because the punishment special issue related to mitigation fails to require the State to prove the absence of sufficient mitigating circumstances beyond a reasonable doubt, contrary to [Apprendi v. New Jersey, 530 U.S. 466 (2000)] and its progeny."

In point of error fifty-six, appellant claims that the "Texas death penalty scheme violated appellant's rights against cruel and unusual punishment and due process of law under the Eighth and Fourteenth Amendments to the United States Constitution by requiring as least ten 'no' votes for the jury to return a negative answer to the punishment special issues." In point of error fifty-seven, appellant claims that the "Texas death penalty scheme violated appellant's rights against cruel and unusual punishment, an impartial jury and to due process of law under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution because of vague, undefined terms in the jury instructions at the punishment phase of the trial that effectively determine the difference between a life sentence and the imposition of the death penalty."

In point of error fifty-eight, appellant claims that the "Texas death penalty scheme denied appellant due process of law, and imposed cruel and unusual punishment in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence militating against the imposition of the death penalty." In point of error fifty-nine, appellant also claims that this also "denied [him] due course of law, and imposed cruel and unusual punishment, in violation of Article I, §§ 13 and 19, of the Texas Constitution."

In point of error sixty, appellant claims that "the trial court erred in overruling appellant's motion to hold Art. 37.071 Sec. 2(e) and (f) unconstitutional because said statute fails to require the issue of mitigation be considered by the jury." In point of error sixty-one, appellant claims that the mitigation special issue is "unconstitutional because it fails to place the burden of proof on the State regarding aggravating evidence."

In point of error sixty-two, appellant claims that the mitigation special issue is "unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution because it permits the very type of open-ended discretion condemned by the United States Supreme Court in [Furman v. Georgia, 408 U.S. 238 (1972)]." In point of error sixty-three, appellant claims that "Texas' statutory capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because it does not permit meaningful appellate review."

In point of error sixty-four, appellant claims that the "trial court erred in overruling appellant's second motion to set aside the indictment as being unconstitutional based on the enumerated constitutional defects of the Texas capital murder death penalty law." In point of error sixty-five, appellant claims that the "cumulative effect of the above-enumerated constitutional violations denied appellant due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution." In point of error sixty-six, appellant claims that this also denied him "due course of law under Article I, § 19, of the Texas Constitution."

In his brief, appellant asserts that:

[These] Constitutional Issues have been previously submitted to this Honorable Court; which previously has turned them down. Appellant submits these issues in this case not to cause unnecessary litigation but to invite this Court to review any prior stand on any issue and more importantly to preserve each issue for further review in the Federal Court system, which has final constitutional power of review.

We decline appellant's invitation to review our prior decisions on these issues. (30) Points of error fifty through sixty-six are overruled.

The judgment of the trial court is affirmed.

Hervey, J.

Delivered: June 6, 2007

Publish

1. See generally Saldano v. State, 70 S.W.3d 873 (Tex.Cr.App. 2002); Saldano v. Dretke, 363 F.3d 545 (5th Cir. 2004).

2. Appellant's death-row misconduct includes assaulting and threatening to kill guards, throwing urine and feces at guards, and setting fires. A death-row guard testified that appellant's death-row misconduct was a "daily thing."

3. See Lagrone v. State, 942 S.W.2d 602, 609-612 (Tex.Cr.App. 1997) (defendant's presentation of psychiatric testimony on future-dangerousness is a "limited" waiver of Fifth Amendment rights entitling State to compel defendant to an examination by State's psychiatric expert for rebuttal purposes "provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert") (emphasis supplied); Bradford v. State, 873 S.W.2d 15, 24-27 (Tex.Cr.App. 1993) (Campbell, J., dissenting) (same).

4. Point of error three states:

The trial court committed constitutional error by effectively barring mitigation testimony when it held that if [appellant] permitted a Lagrone examination by the State in order to present its expert testimony on mitigation the State could use its examination to present testimony on issues besides mitigation.

5. The record reflects that individual voir dire began on October 4, 2004. Appellant filed the written motion on October 21, 2004. The hearing on this written motion occurred on November 5, 2004. Individual voir dire also concluded on November 5, 2004. The punishment hearing commenced on November 10, 2004.

6. Appellant's October 21, 2004, motion was entitled:

Motion That The Court Rule: A) That Texas Code Crim. Proc. Art. 37.071 § 2(b)(1) Is Unconstitutionally Vague; B) That Texas Code Crim. Proc. Art. 37.071§ 2(b)(1) May Not Be Constitutionally Applied Under The Facts Of The Present Case; And Alternatively, Should The Statute Not Be Held Unconstitutional; C) In Limine To Exclude All Evidence Of [Appellant's] Conduct Subsequent To His First Trial In July 1996[.]

7. The procedurally defaulted claim of prosecutorial misconduct at appellant's 1996 trial involved a state expert's use of race as one of several factors upon which this expert concluded that appellant is dangerous. This claim was procedurally defaulted because appellant did not object to this testimony thereby not providing the trial court or the State with an opportunity to correct the problem and remove the basis of objection. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Cr.App. 1998).

8. Appellant attached to his written motion Peccora's affidavit detailing appellant's alleged mental decline on death row.

9. Appellant's new written motion was entitled:

Motion That The Court Rule On All Aspects Of Defendant's Motion Of October 21, 2004 After Ordering Examination Of The Defendant Solely For The Purpose Of The Motion, And That The Court Order That The Hearing On The Motion Take Place Either At A Time That Takes Into Account [Peccora's] Personal Needs Or Post-Trial[.]

10. See Luce, 469 U.S. at 40 n.2 (using term "in limine" to "refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered").

11. The State also claims that it "could be argued" that appellant did not preserve error "because he did not call [Peccora] to testify and then object to the State's attempts to introduce its psychiatric expert."

12. Applying these principles to cases like this would also discourage a defendant from pursuing a strategy of "planting" reversible error in the record based on, for example, a ruling not to limit a Lagrone examination to rebutting the testimony of a defense expert whose testimony the defendant never even intended to present to the jury. See also Luce, 469 U.S. at 42 (requiring defendant to testify in order to preserve claim that prior conviction could not be used for impeachment "will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to 'plant' reversible error in the event of conviction").

13. For example, appellant requests this Court to reverse his death sentence based on speculation that he actually would have presented Peccora's testimony and that a Lagrone examination would have resulted in the presentation of evidence unfavorable to him on the future-dangerousness special issue. It is also possible to speculate that a Lagrone examination might have revealed that appellant's misconduct on death row is due to appellant being a dangerous sociopath and not to any mental decline. It is possible to further speculate that this would have been relevant to rebut Peccora's testimony (if appellant had decided to present it) about appellant's mental decline while also showing appellant's future dangerousness. It is possible to even further speculate that the possible admission of this evidence under these circumstances would probably have been harmless depending on what else that we may speculate would have unfolded at appellant's trial. Of course, all of this is "wholly speculative." See Luce, 469 U.S. at 41.

14. The defendant in Lagrone also submitted to an examination by a state psychiatrist before complaining on appeal that he was required to do so. See Lagrone, 942 S.W.2d at 609-10.

15. The record also reflects that appellant used a peremptory challenge to remove veniremember Clampit after the trial court denied appellant's challenge for cause to Clampit. Appellant does not claim on appeal that the trial court erroneously denied his challenge for cause to Clampit.

16. See Long v. State 823 S.W.2d 259, 265 (Tex.Cr.App. 1991) (accepting a juror "under protest" arguably made her an "objectionable juror").

17. In his brief, appellant asserts that Garfield's "inclusion on the jury was a violation of Article 37.071, of the Tex. Code Crim. Proc.," which, according to appellant, "mandates that mitigation be considered in death penalty cases." There is case law stating that a conviction should be reversed "when the accused challenged a venireman for cause on the basis that he could not be a fair and impartial juror, the challenge was [erroneously] denied" and the venireman sat on the jury "because the accused had no remaining peremptory challenges to prevent it." See Delrio v. State, 840 S.W.2d 443, 445 n. 3 (Tex.Cr.App. 1992); Johnson v. State, 43 S.W.3d 1, 12-14 (Tex.Cr.App. 2001) (Hervey, J., dissenting).

18. This portion of the voir dire record seems to indicate that Garfield might have drawn some adverse inference from appellant's failure to testify. Shortly thereafter, Garfield stated that "the defendant not testifying would not play-would not play a role" in his decision.

19. In his brief, appellant claims that the trial court erroneously admitted State's Exhibits 50-52 and 54-60. The record, however, reflects that appellant did not object to the admission of State's Exhibit 60. In addition, appellant did not include State's Exhibits 50-52 as part of the record on appeal. These exhibits are, however, adequately described in the record and in the parties' briefs.

20. Among other things, the State claimed:

We're at the punishment phase. This jury didn't hear the guilt-innocence. We're establishing cause of death; we're also establishing the defendant is a future danger in that he wanted to make sure that this defendant [sic] was dead by shooting him five times, as well as the contact wound to the head, and this is best illustrated by showing these pictures to the jury.

21. See Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Cr.App. 1991) (photographs generally admissible if verbal testimony of matters depicted in them is also admissible).

22. See Lane v. State, 933 S.W.2d 504, 507 (Tex.Cr.App. 1996) (opinion of police, derived from their observations of a defendant, about that defendant's character and likelihood of future violence, is some evidence of future-dangerousness).

23. See also Garcia v. State, 126 S.W.3d 921, 924-25 (Tex.Cr.App. 2004) (prosecutorial comment concerning defendant's lack of remorse supported by police observations of in-custody defendant as "cocky" and as "very nonchalant, very laid back and calm . . . There were several things that had a tone of arrogance to it").

24. The record actually reflects that, during a hearing outside the jury's presence, appellant's counsel stated that he had "no legal valid objection" to Pero's testimony. Appellant's counsel later confirmed this when Pero was about to testify before the jury.

[THE COURT]: Because I think I'm going to admit Pero's testimony. You had no objection to it.

[THE DEFENSE]: Well, not a legally valid objection. I object to it just because I think it's-it's-I don't like any prejudicial evidence introduced against the defendant.

[THE COURT]: I certainly don't disagree with you on that.

[STATE]: I'm sorry. I didn't hear anything. What?

[THE COURT]: He just objects generally to any prejudicial evidence.

25. And, during closing jury arguments, the State argued:

Even if [appellant] didn't [kill three people in Oak Cliff], even if it's just a statement, what does that tell you about his state of mind? Middle of his own capital murder trial, tells the bailiff, you know, I killed three people in Oak Cliff.

26. The Court assumes that the reference to the future-dangerousness special issue is a mistake.

27. In his brief, appellant provides the following argument in support of point of error forty-seven:

Appellant argues that the trial court erred in instructing the jury to decide any issue of fact that was not alleged in the indictment returned against the Defendant. Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002). Specifically, the Defendant would object to the jury being asked to determine whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background and the personal moral culpability of the defendant there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. The lack of a mitigating circumstance is not alleged in the indictment and accordingly the jury should not be asked to decide the question. The court should find that the case is one in which the state cannot seek the death penalty and sentence the Defendant to life in prison pursuant to [Article 37.071(1), Tex. Code Crim. Proc.]."

28. The record, however, reflects that the jury was instructed that it could not consider extraneous offenses unless it found beyond a reasonable doubt that appellant committed them.

29. The State claims that the record does not support appellant's factual assertions under point of error forty-nine and that points of error twenty-five through forty-eight present nothing for review because they are inadequately briefed. See Tex. R. App. Proc. 38.1.

30. See, e.g., Perry v. State, 158 S.W.3d 438, 446-49 (Tex.Cr.App. 2004), cert. denied, 546 U.S. 933 (2005); Russell v. State, 155 S.W.3d 176, 183 (Tex.Cr.App. 2005); Escamilla v. State, 143 S.W.3d 814, 827-29 (Tex.Cr.App. 2004), cert. denied, 544 U.S. 950 (2005); Rayford v. State, 125 S.W.3d 521, 532 (Tex.Cr.App. 2003); Hughes v. State, 24 S.W.3d 833, 844 (Tex.Cr.App. 2000); Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Cr.App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Cr.App. 1999); Pondexter v. State, 942 S.W.2d 577, 587 (Tex.Cr.App. 1996).

South Texas Judicial Watch Dog Authority: Dear Officers of the Court, submitted for further investigation

2007-05-22T00:31:00.000-07:00

South Texas Judicial Watch Dog Authority: Dear Officers of the Court, submitted for further investigation

In Re: State v Villa

Do a little research on Del Mar College's in house counsel, Sean Meredeth, DMC Auditorium, Ballet Nacional, little girls, Joe Alaniz, and the relationship with our DA

Why is this evidence not included in the current prosecution of Villa?

Why not drag the whole bunch down to the Courthouse?

Friends of the Prosecution or not, enough of the selective prosecutions. Plaisted, Applebee, and the one's who covered it up at Parkdale Baptist & St Joseph's here in the Jurisdiction of the Nueces County / 105th District Attorney. Zealously

Possible Brady Material?

Does this material not merit a Grand Jury Investigation?

Pervert in Auditorium

9-42.010 Coordination of Criminal and Civil Fraud Against the Government Cases

2007-02-12T22:27:00.000-08:00

US Attorneys > USAM > Title 9
prev | next | Criminal Resource Manual

9-42.000
FRAUD AGAINST THE GOVERNMENT

9-42.100 Introduction
9-42.010 Coordination of Criminal and Civil Fraud Against the Government Cases
9-42.160 False Statements to a Federal Criminal Investigator
9-42.191 Application of Appropriate Statute
9-42.420 Federal Procurement Fraud Unit
9-42.430 Department of Defense Voluntary Disclosure Program
9-42.440 Provisions for the Handling of Qui Tam Suits Filed Under the False Claims Act
9-42.451 Plea Bargaining in Medicare-Medicaid Frauds
9-42.500 Referral Procedures -- Relationship and Coordination With the Statutory Inspectors General
9-42.510 Social Security Fraud
9-42.530 Department of Defense Memorandum of Understanding

9-42.100 Introduction

This chapter contains a discussion of the federal statutes that can be used to investigate and prosecute various frauds against the government, including 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 287 (false claims), and 18 U.S.C. § 371 (conspiracy to defraud the government), as well as the Department's working relationship with the agencies that investigate fraud against the government.

Related and supporting material can also be found in the Criminal Resource Manual

Scope of the General Statutes Prohibiting Fraud Against the Government	Criminal Resource Manual at 901
1996 Amendments to 18 U.S.C. § 1001	Criminal Resource Manual at 902
False Statements, Concealment -- 18 U.S.C. § 1001	Criminal Resource Manual at 903
Purpose of Statute	Criminal Resource Manual at 904
Items Not Required to Be Proved	Criminal Resource Manual at 905
Jurisdictional Requirements Satisfied	Criminal Resource Manual at 906
Statements Warranting Prosecution	Criminal Resource Manual at 907
Elements of 18 U.S.C. § 1001	Criminal Resource Manual at 908
False Statement	Criminal Resource Manual at 909
Knowingly and Willfully	Criminal Resource Manual at 910
Materiality	Criminal Resource Manual at 911
Falsity	Criminal Resource Manual at 912
Department or Agency	Criminal Resource Manual at 913
Concealment--Failure to Disclose	Criminal Resource Manual at 914
False Statements as to Future Actions	Criminal Resource Manual at 915
False Statements to a Federal Investigator	Criminal Resource Manual at 916
Corporate Crimes	Criminal Resource Manual at 917
False Statements and Venue	Criminal Resource Manual at 918
Multiplicity, Duplicity, Single Document Policy	Criminal Resource Manual at 919
General Versus Specific Statutes	Criminal Resource Manual at 920
False Claims	Criminal Resource Manual at 921
Elements of 18 U.S.C. § 287	Criminal Resource Manual at 922
18 U.S.C. § 371: Conspiracy to Defraud the United States	Criminal Resource Manual at 923
Defrauding the Government of Money or Property	Criminal Resource Manual at 924
Obstructing or Impairing Legitimate Government Activity	Criminal Resource Manual at 925
Government Instrumentality	Criminal Resource Manual at 926
Anti-Kickback Act of 1986	Criminal Resource Manual at 927
Procurement Integrity Act	Criminal Resource Manual at 928
Obstruction of Federal Audit	Criminal Resource Manual at 929
Major Fraud Against the United States	Criminal Resource Manual at 930
Department of Defense Voluntary Disclosure Program	Criminal Resource Manual at 931
Provisions for the Handling of Qui Tam Suits Filed Under the False Claims Act	Criminal Resource Manual at 932
Medicare-Medicaid Frauds	Criminal Resource Manual at 933
Policy Statement of the Department of Justice on Its Relationship and Coordination with the Statutory Inspectors General of the Various Departments and Agencies of the United States	Criminal Resource Manual at 934
Implementation of the Policy Statement	Criminal Resource Manual at 935
Social Security Violations	Criminal Resource Manual at 936
Department of Agriculture-Food Stamp Violations	Criminal Resource Manual at 937
Department of Defense Memorandum of Understanding	Criminal Resource Manual at 938

9-42.010 Coordination of Criminal and Civil Fraud Against the Government Cases

The United States has both statutory (e.g., the False Claims Act, 31 U.S.C. §§ 3729-3733) and common law rights of action arising from fraud against the government and from the corruption of its officials. Every report of fraud or official corruption should be analyzed for its civil potential before the file is closed. In the first instance, this review should be conducted by an Assistant United States Attorney or Departmental Trial Attorney assigned to the initial referral. Claims of fraud against the government involving more than $1,000,000 in single damages plus civil penalties also should be referred to the Civil Division's Commercial Litigation Branch.
The Federal Bureau of Investigation has been directed to furnish both the Fraud Section of the Criminal Division and the Commercial Litigation Branch of the Civil Division with copies of all reports in all matters involving fraud against the government, or bribery or conflict of interest involving a public employee. Other federal investigative agencies are required to forward similar reports of investigation to the Branch Director or appropriate United States Attorney.
Cases pursued criminally must also be analyzed for civil potential. This analysis should be conducted at the earliest possible stage. Criminal dispositions by plea bargain should not waive or release the government's civil interests, except in return for adequate consideration, as measured by the Department's standards for civil settlements generally. Proposed civil dispositions involving over $1,000,000 in single damages plus civil penalties must be referred to the Commercial Litigation Branch for approval. See 28 C.F.R. § 0.160, § 0.164, and Civil Division Directive No. 14-95, 60 Fed. Reg. 17457 (April 6, 1995), reprinted in 28 C.F.R. Pt. 0, Subpart Y, Appendix.
As to cases referred to it, the Commercial Litigation Branch notifies the appropriate United States Attorney and other interested offices within the Department of Justice of potential civil actions that come to the Branch's attention. The Branch coordinates its cases with the appropriate United States Attorney to ensure the pursuit of both civil and criminal redress. Cases are similarly coordinated within the United States Attorneys' offices. This coordination may include the simultaneous initiation of civil and criminal proceedings in cases in which the monetary recovery to the government and the deterrent effect will be enhanced, giving due consideration to the risks to the criminal case and the availability of protective orders and stays.
The attorney from the Commercial Litigation Branch or Assistant United States Attorney assigned to the matter follows the investigation as it develops and, where necessary, requests, in coordination with other interested offices of the Department of Justice, that an investigation be conducted relating to areas such as damages, which are particularly pertinent to civil actions. It is the policy of the Department to coordinate jointly the investigation of criminal and civil actions. Pursuant to this policy, an Attorney General memorandum to the United States Attorneys dated July 16, 1986 states that "where possible, documents should be obtained by methods other than grand jury subpoenas." This Attorney General memorandum encourages the use of Inspector General subpoenas as an alternative to grand jury subpoenas in those cases where an Inspector General has determined that such usage is appropriate.
The Branch attorney or AUSA assigned to the matter, should give consideration at the earliest possible date to the initiation of civil action and advise other interested offices in the Department or United States Attorneys' offices of any contemplated civil action. Absent a specific, detailed statement that there is a strong likelihood that institution of a civil action would materially prejudice contemplated criminal prosecution of specific subjects, the decision to institute civil action is governed solely by the standards specified in 38 Op. Att'y Gen. 98 (1934). That is, the suit is instituted unless there is
1. doubt as to collectibility
  or
2. doubt as to the facts or law.
Provisional relief may be sought in cases in which the investigation warrants the conclusion that dissipation of any substantial amounts of assets is likely, notwithstanding the degree to which the criminal aspects of the matter have been concluded. The Commercial Litigation Branch and/or assigned Assistant United States Attorney should advise other interested offices of the Department or United States Attorneys' offices of any provisional action. Such provisional relief is sought unless there is a clear likelihood that efforts to prevent dissipation of assets would materially prejudice criminal prosecution of specific subjects. Where there is a possible criminal component to the case, the criterion for determining "substantial assets" is set at $50,000, which is the minimum debt that must exist for the United States to obtain discovery in connection with a request for provisional relief under the Federal Debt Collection Procedures Act, 28 U.S.C. § 3015(b). In cases in which assets of $50,000 or more may be dissipated, efforts at provisional relief to secure recovery on behalf of a client agency should, if a conflict exists, be resolved within the Department at the appropriate level.
The Commercial Litigation Branch and the United States Attorneys offices are accorded significant latitude in urging client agencies to withhold payment of claims presented by any subject known to have engaged in fraudulent conduct. The Branch will advise the appropriate United States Attorney's Office and other interested offices of the Department when taking such actions. Absent a specific, detailed statement that withholding action would materially prejudice contemplated criminal prosecution of specific subjects, the decision to withhold is governed by the usual Department standards. The government's common law right to withhold payment by setoff has been upheld by the United States Supreme Court. United States v. Munsey Trust Co., 332 U.S. 234 (1947). Withholding is an important tool for effecting civil redress, and in recent years the government has successfully defended a number of cases in which client agencies have employed this self-help remedy. See, e.g., Peterson v. Weinberger, 508 F.2d 45 (5th Cir. 1975); Brown v. United States, 524 F.2d 693 (Cl. Ct. 1975), as amended, (1976); Continental Management, Inc. v. United States, 527 F.2d 613 (Cl. Ct. 1975). The negotiation of favorable settlements in unliquidated matters also may be enhanced by the bargaining leverage which withholding affords. Client agencies also should be urged to withhold pay and retirement benefits to Federal employees separated because of evidence of wrongdoing. The current regulations regarding the withholding or setoff of backpay are found at 4 C.F.R. § 102.3, 5 C.F.R. §§ 550.805(e)(2), 845.206(b). The current regulations regarding the withholding or setoff of retirement benefits are found at 4 C.F.R. § 102.4 and 5 C.F.R. §§ 179.213(a)(4), 831.1306, 831.1801, 845.206(a).
The existing delegations of authority to file suit, settle or close civil fraud claims are set forth in 28 C.F.R. § 0.160, § 0.164, and Civil Division Directive No. 14-95, 60 Fed. Reg. 17457 (April 6, 1995), reprinted in 28 C.F.R. Pt. 0, Subpart Y, Appendix. They provide for redelegation of the authority of the Civil Division's Assistant Attorney General over fraud claims (set out in 28 C.F.R. § 0.45(d)) to the Division's Branch Directors and United States Attorneys in certain circumstances. Under Directive 14-95, the United States Attorneys are authorized to file suit, close a case, or "take any other action necessary to protect the interests of the United States," wherever "the gross amount of the original claim does not exceed" $1,000,000. Directive No. 14-95, § 1(c). Agencies are also authorized to refer matters directly to United States Attorneys involving "[m]oney claims by the United States, except claims involving penalties and forfeitures, where the gross amount of the original claim does not exceed $1,000,000." Id. § 4(a)(1).
In the following instances, cases within the monetary range normally within the authority of the United States Attorneys shall not be delegated and shall be submitted to the Assistant Attorney General:
1. where a proposed action "will control or adversely influence the disposition of other claims totaling more than" the amount within the United States Attorney's authority, id. § 1(e)(1);
2. where "a novel question of law or a question of policy is presented," id. § 1(e)(2);
3. where the "agencies involved are opposed to the proposed action," id. § 1(e)(3); and
4. where, "for any other reason, the proposed action should * * * receive the personal attention of the Assistant Attorney General, Civil Division," id. § 1(e)(2).

The Directive also provides that "[a]ny case involving bribery, conflict of interest, breach of fiduciary duty, breach of employment contract, or exploitation of public office" will "normally" not be delegated to United States Attorneys for handling. Id. § 4(c)(4).

Similarly, "[a]ny fraud or False Claims Act case where the amount of single damages, plus civil penalties, if any, exceeds $1,000,000" will "normally" not be delegated to United States Attorneys. Id. § 4(c)(5). Nevertheless, upon the recommendation of the Director, Commercial Litigation Branch, "the Assistant Attorney General, Civil Division may delegate to United States Attorneys suit authority involving any claims or suits where the gross amount of the original claim does not exceed $5,000,000 where the circumstances warrant such delegations." Id. § 4(b). Any authority exercised by the United States Attorneys under Directive No. 14-95 may be redelegated to Assistant United States Attorneys who supervise other Assistant United States Attorneys handling civil litigation. Id. § 1(d).

Where the matter was originally within their authority, United States Attorneys may accept any offer in compromise where either the gross amount of the original claim or the principal amount of the proposed settlement does not exceed $1,000,000, id. §§ 1(b)(2)(a) & (b). In cases where the gross amount of the original claim is more than $1 million but less than $5 million, the United States Attorney may accept any settlement in which "the difference between the gross amount of the original claim and the proposed settlement does not exceed $1,000,000." Id. § 1(b)(2)(a)(ii).

Inquiries should be directed to: Director, Commercial Litigation Branch, Civil Division, and Chief, Fraud Section, Criminal Division.

Each United States Attorney's Office has an Affirmative Civil Enforcement (ACE) coordinator, who should be consulted on issues arising from parallel criminal and civil cases.

9-42.160 False Statements to a Federal Criminal Investigator

It is the Department's policy not to charge a Section 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government. This policy is to be narrowly construed, however; affirmative, discursive and voluntary statements to Federal criminal investigators would not fall within the policy. Further, certain false responses to questions propounded for administrative purposes (e.g., statements to border or United States Immigration and Naturalization Service agents during routine inquiries) are also prosecutable, as are untruthful "no's" when the defendant initiated contact with the government in order to obtain a benefit. See the Criminal Resource Manual at 916 for a brief discussion of the case law.

Prior consultation with the Criminal Division is not required before initiating prosecutions for false statements to Federal investigators; however, the Fraud Section is available for consultation on cases involving these principles.

9-42.191 Application of Appropriate Statute

It is the policy of the Department that in those instances in which the United States Attorney (USA) has a choice of statutes, charges normally should be brought pursuant to the more specific statute. In those cases in which special aggravating circumstances exist, the USA retains the discretion to charge a violation of the more serious general statute. See also the Criminal Resource Manual at 920 (General versus Specific Statutes).

9-42.420 Federal Procurement Fraud Unit

In August 1982, the Attorney General and the Secretary of Defense established the Defense Procurement Fraud Unit in the Criminal Division's Fraud Section to help concentrate and coordinate the law enforcement resources of the Department in prosecuting significant procurement fraud cases involving the Department of Defense's ("DOD") multi-billion dollar procurement of equipment and services. That unit is now called the Federal Procurement Fraud Unit (Unit), and handles a variety of fraud cases affecting both civilian and defense agency procurements, including product substitution, false testing, cost mischarging, defective pricing, and kickback cases. In addition to conducting major procurement investigations, the Unit provides expertise and guidance on procurement fraud issues to investigative agencies and United States Attorneys' Offices that request their assistance.

9-42.430 Department of Defense Voluntary Disclosure Program

In July 1986, the Department of Defense initiated its Voluntary Disclosure Program which is designed to encourage self-policing and voluntary disclosure by Defense contractors of procurement-related problems. The Fraud Section's Federal Procurement Fraud Unit (Unit) is the contact point in the Department of Justice to oversee voluntary disclosure matters. See the Criminal Resource Manual at 931 for a listing of the Unit's responsibilities and procedures.

9-42.440 Provisions for the Handling of Qui Tam Suits Filed Under the False Claims Act

In 1986, Congress amended the False Claims Act, 31 U.S.C. § 3729 et seq., see generally False Claims Act Amendments of 1986, Pub.L. 99-562, 100 Stat. 3153 (October 27, 1986), reprinted in, 10A USCCAN (December 1986). One of the Congress's objectives in modifying the Act was to encourage the use of qui tam actions in which citizens are authorized to bring, as "private Attorneys General," lawsuits on behalf of the United States alleging frauds upon the government.

When United States Attorneys receive information about a qui tam action, they should promptly forward a copy of the complaint and statement of evidence to the Commercial Litigation Branch of the Civil Division, particularly because relators frequently fail to serve the Attorney General or delay in doing so. The Commercial Litigation Branch will contact the agency involved, the Criminal Division, and, frequently, the Inspector General of the agency, to determine if the allegations are known to them and to obtain an assessment of the material evidence furnished by the relator. The Criminal Division will, in turn, check with appropriate United States Attorneys' offices USAOs and investigative agencies to determine if the allegations relate to a pending criminal investigation. Because of the 60-day deadline, it must be emphasized that a prompt response is required to these inquiries.

See the Criminal Resource Manual at 932 for an additional discussion of this issue.

9-42.451 Plea Bargaining in Medicare-Medicaid Frauds

A potential problem area has been identified regarding the practice of plea bargaining as it relates to administrative sanctions available to the Health Care Financing Administration, United States Department of Health and Human Services (HHS), in Medicare-Medicaid fraud cases.

Specifically, provision 229 of Pub.L. No. 92-603, enacted on October 30, 1972, amended Sections 1862 and 1866(b) of the Social Security Act to enable the Secretary of HHS to deny payment under Title XVIII of the act upon determining that a provider or person has committed fraud or abuse against the Medicare program. Subsequent to such determinations, Section 1903(i)(2) of the act also prohibits Federal financial participation (FFP) for payments to these providers or persons in the Medicaid program. In addition, the legislation (Pub.L. No. 95-142, Medicare-Medicaid Anti-Fraud and Abuse Amendments) enacted on October 25, 1977, contains a provision (Section 7) that requires the Secretary of HHS to suspend program participation for a physician or individual practitioner convicted of a criminal offense involving the Medicare or Medicaid programs. Suspension from program participation is immediate and applicable to both programs. The Section 7 provision is incorporated in the Code of Federal Regulations at 42 C.F.R. § 405.315-2 for Title XVIII and at 42 C.F.R. § 450.85 for Title XIX.

Since the administrative sanction would generally be effectuated after any criminal proceedings, plea bargains that include commitments to forego or restrict administrative remedies, which the HHS may elect to pursue under the aforementioned provisions, should be rare and made only after obtaining prior explicit approval from the Criminal Division.

See USAM 9-16.000 et seq. and 9-27.000 et seq. for additional guidance regarding plea agreements.

See the Criminal Resource Manual at 933 for further discussion of the Medicaid/Medicare Programs and statutes that can be used to prosecute fraud against these programs. See also USAM 9-44.000 et seq. (Health Care Fraud).

9-42.500 Referral Procedures -- Relationship and Coordination With the Statutory Inspectors General

Policy Statement of the Department of Justice on its Relationship and Coordination with the Statutory Inspectors General of the Various Departments and Agencies of the United States: The investigation and prosecution of fraud and corruption in federal programs is a major priority of the Department of Justice. On June 3, 1981, the Deputy Attorney General issued a "Policy Statement of the Department of Justice on its Relationship and Coordination with the Statutory Inspectors General of the Various Departments and Agencies of the United States." This statement is summarized in the Criminal Resource Manual at 934. The statement was first announced at a meeting of the President's Council on Integrity and Efficiency (Inspectors General group) and was the result of a combined effort of the Criminal Division, the Federal Bureau of Investigation (FBI) and the Executive Office for United States Attorneys.

The policy statement has two principal purposes: an early alert system for prosecutors relative to ongoing investigations and increased emphasis on coordination and cooperation between the FBI and the Inspectors General. Several particular provisions deserve special emphasis. Consistent with an Inspector General's obligation to "report to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of law," the Inspector General is to report to "the United States Attorney in the District where the crime occurred." Simultaneously, the Inspector General is expected to notify the appropriate FBI field office. The FBI is committed to investigating every criminal violation which the prosecutor determines will be prosecuted, if proved.

The timing of the report to the prosecutor is discussed in the policy statement. In an ordinary investigation involving completed events, the policy statement simply tracks the Inspector General legislation and requires a report whenever there are reasonable grounds, i.e., some evidence to believe that a Federal crime has occurred. Immediate reporting is required for crimes of an ongoing nature and organized crime allegations. Such urgent and sensitive matters often require use of sophisticated investigative techniques, and the Inspector General is to make an immediate report upon receipt of the information. The policy statement requires the FBI to advise the appropriate Inspector General when it initiates an investigation and to keep the Inspector General regularly informed of its progress.
Implementation of the Policy Statement: Since the Department of Justice issued the June 3, 1981 policy statement, there have been discussions over its meaning, with requests from various Inspectors General and the FBI for further clarification of their respective investigative responsibilities.
The Department is concerned about the allocation of limited investigative resources and the possibility of competitive and, at times, redundant and unproductive relationships among law enforcement agencies. The policy statement addresses these issues and establishes a structure for early reporting of instances of criminality to the prosecutor. As a further refinement, to set out more clearly the Department's expectations regarding the use of the limited investigative resources in both the FBI and the Offices of individual Inspectors General, the policy statement has been supplemented by a February 19, 1982 statement on the implementation of the policy statement (see the Criminal Resource Manual at 935), which allocates investigative responsibility between the Inspectors General and the FBI with respect to four types of crime in which both have an investigative interest:
1. bribery
2. significant allegations of fraud involving federal employees
3. organized crime matters and
4. fraud against the government.
Implementation of the policy statement requires the cooperation and support of the USAs, the FBI, and the Inspectors General. The Fraud Section of the Criminal Division is charged with overseeing the operations of the policy and resolving any uncertainties or differing interpretations which arise in its implementation. Any questions or information should be directed to the Fraud Section.

9-42.510 Social Security Fraud

Pursuant to an agreement reached between the Department of Justice and the Social Security Administration (SSA) in April 1977, the SSA will not refer matters in which one or more of the factors below is present unless additional aggravating circumstances are present:

The suspect is 75 or more years old;
The suspected violation did not result in improper payment. This exception does not apply in criminal misuse cases such as conversion by a representative payee, SSN misuse or improper disclosure;
There is evidence that the suspect has an illness expected to result in his/her death in the near future; or
The suspected violation is solely a failure to disclose an increase in a pension amount.

The SSA has discontinued its procedure of summarizing each case involving one or more of the aforementioned factors and recommending against further action. The SSA will, however, continue to take administrative action directed toward recovering any overpayments in those cases not warranting criminal prosecution. Matters in which the factors cited above are either not present or not compelling will be referred with an appropriate recommendation.

Each referral with a recommendation for prosecution contains the name and telephone number of the SSA Regional Integrity Specialist familiar with the facts of the case. You are invited to contact that individual for discussion or additional investigation.

For additional discussion of Social Security Numbers and criminal violations involving misuse of Social Security Numbers, see the Criminal Resource Manual at 936.

9-42.530 Department of Defense Memorandum of Understanding

In August 1984, the United States Attorney General and the Secretary of Defense signed a Memorandum of Understanding ("MOU") between the Departments of Justice and Defense relating to the investigation and prosecution of certain crimes. Special attention is directed to the treatment of investigative jurisdiction of corruption, fraud and theft cases. The prosecutor has the responsibility to

concur before Department of Defense can initiate any corruption investigation;
confer to determine investigative jurisdiction in all fraud and theft matters; and
concur before the Department of Defense initiates any administrative investigation or actions during the pendency of any criminal investigation.

The MOU was developed with the expectation that the more complex cases require the joint efforts of the Departments of Defense and Justice. In this regard a repeated theme of the MOU is the prosecutor's responsibility for coordinating and effectuating the various interests of the United States. The Federal Procurement Fraud Unit, Fraud Section, Criminal Division, of the Department of Justice has developed substantial expertise in these investigations and can assist in structuring and conducting the investigations requiring expertise from the FBI and Department of Defense. Questions concerning the MOU should be directed to the Justice Department's Fraud Section, Criminal Division.

See the Criminal Resource Manual at 938 for the text of the MOU.

October 1997	USAM Chapter 9-42