Issues Granted - Allen Ray Shipp v. State

On January 27, 2009, the CCA granted discretionary review in the following case:

PD-1346-09, Allen Ray Shipp v. State: The CCA granted the State's petition for discretionary review without oral argument in this forgery of a commercial instrument case out of Fannin County on the following issues:

1. Is a store receipt a “commercial instrument” under the forgery statute when the receipt is used as proof of purchase for items that were not actually purchased?

2. Should Collier v. State be overruled?

To hear Allen Shipp tell it, his wife gave him the shopping cart at the local Wal-Mart. It contained a computer and a computer desk. She also gave him what she said was the receipt and told him everything was already paid for. He just needed to take it all to the car. When loss prevention officers stopped him in the parking lot, he held up the commercial talisman bestowed upon him by his caring wife only to find that the receipt was forged. The State charged him with forgery of a commercial instrument.

The court of appeals reversed, holding that the receipt was not a commercial instrument.

Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion. The trial court had defined "commerical instrument" as basically a writing connected to trade. The court of appeals explained, at the risk of being pedantic (yes, they were actually concerned about that), that all the other types of forged instruments relate to legal rights or relationships. In contrast, a store receipt simply memorializes a transaction that previously occurred. A "fait accompli" if you swing that way. Consequently, because the receipt does not convey any future benefit, it was not a commercial instrument according to the court of appeals.

What's all this about Collier then? Frankly, I'm at a loss. It's not cited in the opinion. I'm going to assume it has to do with the court of appeals reliance upon the doctrine of ejusdem generis, which is apparently a Harry Potter way of saying that you restrict the meaning of an undefined thing that follows an enumeration of particular thing to something that makes your thing similar to the enumerated things. I think it's actually Latin for "one of these kids doesn't belong here." Or perhaps it has something to do with how the court of appeals morphed the sufficiency challenge into a jury charge harm analysis. I don't know. I'm sure all will be made clear.

Update: Spoke with a person much smarter than myself who indicated that Collier holds that a judgment cannot be reformed to reflect a conviction on a lesser-included offense unless that lesser was submitted to the jury. D'oh! I was just being too specific. In any case, here's a link to the archived hand down list that features Collier.

[Note: I don't know that I found the relationship distinction drawn by the court of appeals too persuasive. Sure a receipt memorializes a transaction, but you do use it to get your money back. Not quite commercial paper, but still more than a docket notation. Conversely, I couldn't help but feel that maybe the court thought this should've been a shoplifting case or that one of the judges got punked out by his wife at the local Wal-Mart.]

Today's Opinions - 1/27/10

Today, the CCA handed down a few unpublished opinions and a few published ones in the following cases:

PD-0197-09, Sam Wesley Dudley v. State: The CCA remanded this case for reconsideration in light of Murray v. State and Evans v. State. The State had tried the defendant for aggravated sexual assault, but ended up requesting a lesser-included of indecency with a child to which Dudley plead no contest. The two cases held that the Hall test for lesser-included offense instructions applies, but that indecency with a child may be a lesser-included offense of aggravated sexual assault of a child. Here's a link to the court of appeals case information. Here's a link to the court of appeals opinion.

PD-0737-09, Anthony Wasylina v. State: Here, the State tried Wasylina for manslaughter, but requested an instruction on the lesser-included offense of criminally negligent homicide. The court of appeals held there was no evidence to negate the greater offense, so the instruction should not have been submitted. The CCA remanded the case for reconsideration in light of Grey v. State, which holds a trial court can instruct the jury on a lesser-included offense requested by the State even though there's no evidence to negate the greater offense. Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion.

PD-1494-08, Melanie Denise McFatridge v. State: The CCA held that the trial court did not abuse its discretion in finding that the defendant could afford to pay for the record rather than get a free one. The trial court's rejection of the indigence claim was founded in the record, even though McFatridge failed to present additional evidence of indigence on appeal (such as a child-support lien on a second property). The CCA held that the appeal was not the place for this new evidence and upheld the trial court's decision. Judge Meyers concurred to note that indigency is a question of law and should not be evaluated under an abuse of discretion standard. Judge Cochran dissented without an opinion. Here's a link to the court of appeals case information. Here's a link to the court of appeals order.

PD-0261-09, Delvetra Lasherl Jennings v. State: The CCA held that a defendant's failure to object to the lack of a verdict form for a lesser-included offense does not waive error because an included verdict form is part of the jury charge subject to an Almanza harm analysis. Presiding Judge Keller dissented noting that the issue was not clear-cut as the majority made it sound because the precedent cases came out at a time when jurors were responsible for their own verdict forms. Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion.

Judge Keller Should Not Be Punished

Originally, I was going to call this post "The Examiner Crapped Out" to keep with my dice theme from the previous posts on this subject, but I felt it was too downbeat.

In any event, Judge David Berchelmann, issued his findings today in the removal proceedings. Here's a link to Mary Alice Robbins take on it from Texas Lawyer. And here's a link to the findings. I expected actual "findings" rather than having the judge basically call everyone into the living room while he tells us the story of what happened from his favorite rocking chair. But, I'm not familiar with how these things go, so I don't know if his format is truly that weird. He certainly takes everyone to task to some degree (even the misleading media reports get some share of blame), but ultimately, he felt that The Texas Defender Service was to blame:

"Judge Keller's silence on several occasions conflicts with the ideal that courts should foster open communication among court staff and litigants. But Judge Keller's omission did not cause the TDS to be late in its filings, to forget the other available avenues, or to fail to have any of its experienced lawyers contact the TCCA. She did not violate any written or unwritten rules or laws. Of course, that does not absolve her of the responsibility to ensure that the courts remain fair and just. Her conduct, however, does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered."

Of course, both sides can object to these findings. I can't imagine they won't, but I hope they don't. I'm also pre-emptively tired at the thought of the complaints that the fix was in based upon political affiliation. But the findings read pretty reasonably in light of what I'd read about the events, and for now, common sense prevails.

Today's Opinions - 1/20/10

Today the CCA handed down several orders, but no published opinions.

Issues Granted - 1/13/10

On January 13, 2010, the CCA granted discretionary review in the following three cases:

PD-0622-09, PD-0623-09, PD-0624-09, PD-0625-09, & PD-0626-09, Mario Rico Martinez v. State: The CCA granted Martinez's petition for discretionary review with oral argument in this violation of a court order case out of Wichita County on the following issues:

1. Does the legislature’s delegation of authority to the judiciary to create rules of conduct, violation of which are punishable by incarceration, violate the separation of powers doctrine?

2. Is the injunction provision prohibiting Appellant from making “gang signs” and wearing “gang clothing” unconstitutionally vague and overbroad?

Here's a link, link, link, link, & link to the court of appeals case information. Here's a link, link, link, link, & link to the court of appeals unpublished opinions.

PD-1491-09, Wilton Larron Mahaffey v. State: The CCA granted Mahaffey's petition for discretionary review with oral argument in this DWI case out of Henderson County on the following issue:

The Court of Appeals incorrectly decided the sole issue in direct conflict with the Texas Transportation Code and in direct conflict with the decisions of other Courts of Appeals in Texas. The question presented is whether the Court of Appeals improperly ruled that a movement from right to left on a roadway amounts to a "turn" under chapter 545 of the Texas Transportation Code.

Here's a link to the court of appeals case information. Here's a link to the unpublished court of appeals opinion.

PD-0298-09, Sherry Lynn Grimes v. State: The CCA granted the State's petition for discretionary review with oral argument in this capital murder case out of Grimes County on the following issues:

1. The Court of Criminal Appeals should reexamine and abandon the automatic application of the accomplice witness rule as applied to a witness who has been indicted for the same offense as the accused.

2. Does the mere fact that a witness was once indicted for the same crime as Appellee make that witness an accomplice as a matter of law absent an affirmative showing that there was a quid pro quo exchange of a dismissal of the indictment for testimony.

3. In reviewing whether the evidence is sufficient to corroborate an accomplice witness testimony, should the appellate court look for "alternative" explanations to "explain away" inculpatory evidence or should the evidence be viewed in a light most favorable to the jury's implicit finding that the evidence "tends to connect" Appellee to the offense.

The CCA also granted discretionary review on its own motion in the same case on the following issue:

What is the appropriate remedy if a court of appeals finds insufficient evidence to corroborate accomplice witness testimony?

Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion. And here's a link to the underlying dissenting opinion.

Today's Opinions - 1/13/10

On January 13, 2010 the CCA handed down some opinions, though none of them were published. There was an unpublished death penalty opinion, but it was not legally remarkable.

(And . . . Here . . . We . . . Go.) No New Opinions - 1/6/10

Back to the Auld Langxiety. Perhaps I should have sought grant funds to hire another me.

Anyway, the CCA handed down a number of orders, but no published opinions. See for yourself here.

Going forward, I will be going back to posting on the cases that were issued between now and then when I get an opportunity. I have also ordered the oral arguments, which should be forthcoming soon. Note, however, that I will be out of state this coming week and will not be able to post on the opinions likely to be issued next Wednesday until the weekend.