appeal of a criminal case part 1

By February 15, 2017Criminal

Coming to listen to what I hope would be an interesting talk! I’m not here to read the rules of the appellate procedure to you because you can do that, all by yourself. And that’s what a, lots of appellate seminars are, is they talk about the rules of appellate procedure and how to apply them. I’m taking a little bit different perspective here because I am now, 50. I turned 50 on Monday.

So, I’m the youngest to the old people. Ok? So what I’ve tried to do, is that I’ve taken what I’ve seen in appeals over the last 25 years, and ,and, give you some, some tips, give you some ideas, and urge you to be relentless in creating your appellate record.

Okay! Many of you I’m sure are familiar with court of criminal appeals. I worked there twice, in my career as a briefing attorney for Judge Davis, way back in the 80’s! And then again as the head of the rit section for about a year, filling in after they lost some personnel. If they can find a way, to say that either you did not preserve it or the record is unclear or there is not enough information on which to rule in the record, they will do so. So, you have to be relentless and you have to be courageous, and you have to be creative, when you’re trying to put information in the record for the appellate court, to review.

First I’m going to just, take you from the very beginning, of a case and then take you all way through appeal how to get your exhibits, your CDs, now that we’re in this area of technology. I’m not as cool as Don Flannery. They did not have computers when I was in law school and, my college son and my daughter who is in high school, they’re the ones who tend to help me a lot preparing my information. My son helped me with this PowerPoint. But we don’t have any of the music; he usually inserts so, hopefully you all bear with me.
So we have to catch up with technology just as Don was explaining earlier, even in the appellate arena. Okay? And in the appellate arena you have to know, what was used, how it was used and what the jury had before it! What could they take back to the jury room in view! Those become very, very very real issues. Okay, let’s get started! I call this how appealing! Okay?

Litigate your case before, during and after trial. You can also think of it as Angie’s list. Okay, there you go! All right! Okay we had Roth Gary decide in my backyard In Kerrville. I live In Burney. And many of us have practiced in raw areas and not just in major metropolitan areas. If you’re in a major metropolitan area like Dallas, San Antonio, Austin, Houston. You’re going to have 24 hour Mag duty, generally! You’re going to have people magistrate and they get to meet with pretrial services 24 hours the day, pretty much! Ok? But, in Big Burney and Kendall county or Kerr county, you’re not going to have that luxury, in many parts of state, you’re not going to have that luxury. So it’s very important when you first are handed a case to look at; when were they arrested, when were they magistrated, when were they able to assert their 5th and 6th amendment rights.

Okay, Roth Gary came, came about in 2008 which seems like yesterday. But Roth Gary involved a gentleman who was held for 3 years in Kerrville. That term, we had like 3 U.S Supreme Court cases come out of Kerrville; Pinnate, Roth Gary and was it Darla VTA, is that who I’m thinking of? I think so a big DNA case. All out of little Kerrville. So the questions US Supreme Court answered in Roth Gary, isn’t indictment required to commence adversary judicial proceedings and cause the right to counsel to attach. Now keep in mind, you have a right to counsel for 5th amendment purposes I don’t want to, I don’t want to talk to the cops without my lawyer. Then you have an opportunity to have an attorney for trial purposes, 6th amendment purposes. Don’t forget that those are 2 separate rights.

In Roth Gary they sort of merged those rights. Okay? And they said that; a pretrial magistration hearing triggered, your 5th amendment; right to counsel. Well it doesn’t anymore!

Now we have a case called Montejo case. And when this came out, I was fortunate enough to have a discussion with Henry Bemprod who’s now one of our magistrates. And he was telling me,” all was lost, all was lost” you know after Montejo. And then in Federal Court, it really kind of is! But, now we have a case in Texas called Pasina and to Elsa al Claw, justice, excuse me! Judge Al Claw, there’s a couple of them in here in Texas but Elsa, she wrote a really good concurrent. Now I want to explain to you what the court of criminal appeals, held in Pasina. Pasina looks at, Roth Gary and looks at Montejo and says,” ok! Well what’s left? What’s left? When did these clients have to assert their rights?

Francisco Hernandez

Author Francisco Hernandez

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