This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 20
This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)
D1: OMG, talk about or should I say writing about "advancing argument on behalf of the state."
Does the defendant who is "also denied the opportunity to develop a complete record on the issue on which" ever get this issue concerning opportunities of denied to develop a complete record on the issue of preserving complaints on appeal "in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: by using the record to deny the defendants documentation of prosecutions remarks at Def MTN4NT constitutes "obstruction of justice" and distortion of truth and justice.
For the essence to be taken as fact there would need the 2 prerequisites.....
Thursday, April 03, 2008
* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint .........
Thursday, April 3, 2008
* Preservation of error is an inter-court systemic requirement, it is not an intra-court requirement. Both trial and appellate courts have the authority to exercise discretion and consider claims and arguments that were not timely made in that particular court as long as they are made while the parties are still in that particular court and the court otherwise has jurisdiction to hear them. State v Herndon (February 28, 2007, PD-1954-03)
* A trial judge may, but need not, grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant's substantial rights. State v Herndon (February 28, 2007, PD-1954-03)
* Nothing in the Rules of Appellate Procedure or any Texas statute requires, as a predicate to the trial court's authority to exercise its discretion to grant a motion for new trial, a defendant to have preserved the error during trial that he asserts in his post-trial motion for new trial. State v Herndon (February 28, 2007, PD-1954-03)
* Def failed to take steps required to preserve error where his motion for mistrial following admission of evid in violation of motion in limine was too late. In instant case, grounds for def's motion for mistrial first became apparent during testimony of witness, yet def failed to move for a mistrial until after both that witness and following witness had concluded their testimony. Griggs v State (January 31, 2007, PD-0727-05)
* Errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court. Sanchez v State (December 13, 2006, PD-1754-05)
* Def's motion for new trial was sufficient under Rule 33.1 to preserve for review his "unconstitutionally vague as applied" challenge to sec. 42.07(a)(4) PC. Def filed pretrial motion to quash information, citing due process and due course of law clauses of US and Texas constitutions and arguing that terms of the statute were unconstitutionally vague; at start of trial, before any evidence had been adduced, def urged his motion to quash and argued that "the vagueness" of the statute was "readily apparent"; during guilt stage (once during c/w's testimony and once after both sides had rested) def objected again that the language of the statute was "unconstitutionally vague." Each time def objected, the trial court overruled his objection. Def filed a timely motion for new trial and presented it to the trial court for a ruling. In his motion, def, again citing the due process and due course of law clauses of US and Texas constitutions, argued the statute was "unconstitutional as applied to him in his case." Although def did not use the word "vague" or "vagueness" in his motion for new trial, he did argue that "[n]ow that the evidence has been adduced," the trial court could "more readily discern the unconstitutionality of the statute" as it had been applied against him. Motion for new trial was later overruled by operation of law. Motion for new trial was adequately specific on the vagueness-as-applied claim: Although the word "vague" or "vagueness" appeared nowhere in the motion, any reasonable trial judge probably would have understood the motion, in context, to be asserting an "unconstitutionally vague as applied" challenge to the statute, since def's consistent complaint throughout trial had been that the statute was too vague to be enforceable. On the other hand, no reasonable trial judge would have understood the motion for new trial, even in context, to be asserting an "unconstitutionally overbroad as applied" challenge to the statute. Neither the word "overbroad" nor the word "overbreadth" appeared in the motion for new trial, and at no point during the trial did def make an overbreadth challenge to the statute. The motion for new trial was timely within the meaning of Rule 33.1: (1) It provided trial court with opportunity to take corrective action - granting the motion for new trial - without burdening the parties and the judicial system with a costly appeal and retrial. (2) It gave the state a fair opportunity to respond. Although def could have filed a motion to dismiss after the close of all the evidence, his delay until the motion for new trial did not prejudice the state in any way. (3) Def's delay until his motion for new trial did not impair the orderly and effective presentation of the case to the jury. Cause remand to court of appeals so that it may reconsider def's point of error. Gillenwaters v State (September 27, 2006, PD-1443-05)
* Actions and statements of trial judge unquestionably indicated judge overruled def's motion to suppress, and issue was preserved for review, where record showed that at end of hearing on def's motion to suppress trial judge stated, "I would assume that I can probably review the tape this afternoon. But I may wait till tomorrow to have it - - to have the opportunity to read whatever the State's brief before I - - where I can see where both of you are coming from and then view the tape, and I'll rule." The last line on trial court's docket sheet stated, "appeal preserved as to issues presented." Def's amended notice of appeal stated, "This is notice of the defendant's right to appeal to the court of appeals from the judgment or other appealable order in this case." Included on the document containing def's amended notice was trial judge's certification of def's right to appeal. Trial judge certified that def's appeal "is in a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial." Montanez v State (April 26, 2006, PD-0894-04)
* Timely objection requirement did not prevent def from raising complaint on appeal (that conditions of probation imposing two consecutive 180-day periods of confinement in jail violated requirement under 3.03(a) PC that sentences be served concurrently), where grounds for complaint were not apparent at time trial judge announced sentence and conditions of probation in open court, and grounds for complaint were first apparent on the next day, when def signed "Conditions of Community Supervision" in each case. There was no reporter's record of this proceeding; it was not noted on the court's docket sheets; the record did not show whether either the state or def was represented by counsel; no counsel signed the conditions; the trial judge did not participate (the conditions were signed by another judge "for" the trial judge); and def and a "court liaison officer" also signed the conditions. Appeals court concluded the document was signed in def's meeting with a community supervision officer, rather than during a hearing before the trial judge. Thus, def had no meaningful opportunity to object to these specific conditions of his probations. Therefore def did not "waive," or fail to preserve, his complaint for appellate review. Kesaria v State (April 5, 2006, PD-1802-04)
* Where def claimed juror was asleep during trial, court of appeals erred in concluding nothing was preserved for review on the ground that counsel's statement in the trial record that a juror was sleeping was no evid of the matter; counsel's trial record statement was some evid; cause remanded for further proceedings. Thieleman v State (December 14, 2005, No. PD-1743-04)
* A trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred. The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non-oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for appellate review. Thieleman v State (December 14, 2005, No. PD-1743-04)
* Ordinarily, after court of criminal appeals concludes that the court of appeals erred in holding that a defendant did not preserve his complaint for appellate review, it would remand to that court to determine whether the trial court abused its discretion. In instant case, because the court of appeals had already performed a thorough review of the substance of the def's motion for continuance, court of criminal appeals did not remand, but instead addressed def's complaint that the court of appeals' opinion did not accurately reflect the record. Harrison v State (December 14, 2005, No. PD-1511-04)
* Although the Rule of Evidence 103(a) makes clear that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling, that is not always suff. Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Reyna v State (June 29, 2005, No. PD-0255-04)
* It was error for court of appeals to reverse conviction and order case dismissed, on theory of prosecutorial vindictiveness that was never pleaded, proved, or ruled upon in trial court. Def's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, def never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The state was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness. Neal v State (November 17, 2004, No. 1559-03)
* Waiver requires "an intentional relinquishment or abandonment of a known right or privilege" by actual renunciation or intentional conduct inconsistent with claiming that known right. Wappler v State (June 30, 2004, No. 772-03)
* The concept of "systemic requirement" has to do with preservation of error, while the concept of "structural error" has to do with harmfulness of error. A "structural error" is not subject to a harmless-error test. Mendez v State (June 30, 2004, No. 817-01)
* A "systemic requirement" (also known as an "absolute requirement or prohibition") is a law that a trial court has a duty to follow even if the parties wish otherwise. Any party that is entitled to appeal may complain on appeal that such a requirement was violated, even if the party failed to complain about the failure or waived the application of the law. A party may be estopped from complaining about an error that it invited, however. Mendez v State (June 30, 2004, No. 817-01)
* The general requirement for preservation of complaints for appeal is Rule of Appellate Procedure 33.1(a). It could be summarized as requiring a timely, specific objection and a ruling by the trial court. Rule 33.1(a) was meant to reaffirm the basic principles of adversary litigation, not to amend or repeal them. It applies only to actions of the trial court concerning which a party forfeits the benefit of a right belonging to him if he does not complain about it at trial. The rule does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal. That is, there are two types of complaints to which Rule 33.1(a) does not apply. Mendez v State (June 30, 2004, No. 817-01)
* Court of criminal appeals listed several ways that statement in Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Cr. App. 1999), about Rule 33.1(a) ["Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1."] was incorrect: (1) It omitted one of the types of complaints to which the rule does not apply: complaints about rights that are waivable only. (2) It incorrectly described complaints about systemic requirements as "complaints involving fundamental constitutional systemic requirements." Systemic requirements are not necessarily constitutional. Ibarra used the word "fundamental" to describe the systemic requirements, which could be misleading. "Fundamental" has been used to identify complaints that may be raised for the first time on appeal. Questions of "fundamental error" now are considered in the framework of Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993). (3) It was a mistake in Ibarra to say that noncompliance with Rule 33.1(a) results in complaints being "waived." Marin carefully distinguished waiver, which requires the intentional relinquishment or abandonment of a known right or privilege, from the forfeiture that is the consequence of not complying with Rule 33.1(a). A statement that is correct, and perhaps less susceptible of being misread, would be, "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v State (June 30, 2004, No. 817-01)
* A law that puts a duty on the trial court to act sua sponte creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. Mendez v State (June 30, 2004, No. 817-01)
* A defendant may preserve error for appeal by moving for a mistrial without first making an objection and requesting an instruction to disregard, and in such case it is error to overrule such a motion for mistrial when an instruction to disregard could not have cured the harm of the objectionable event. Because the objection, the request for an instruction to the jury, and the motion for mistrial seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to seek them in sequence - that is, (1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. However, this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. In most instances, an objection will prevent the occurrence of the prejudicial event, and the failure to make a timely, specific objection prevents appellate review. If an objectionable event occurs before a party could reasonably have foreseen it, the omission of objection will not prevent appellate review, because it is not possible to make a timely objection to an unforeseeable occurrence, and an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Similarly, the request for an instruction to disregard an objectionable occurrence is essential only when the such an instruction could have had the desired effect, which is to enable the continuation of the trial by a impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal. Accordingly, when a party's first action is to move for mistrial, the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead to reversal on an appeal by the party who did not request these lesser remedies in the trial court. Limited as this scope of appellate review may be, such an appellate review is available to such a party. Young v State (June 9, 2004, No. 904-02)
* Court of Appeals erred in addressing the merits of def's claim regarding one of his challenges for cause, where def stood mute in the face of the court stating erroneous facts as the basis for the denial and requesting correction if necessary before denying def's request for an additional peremptory strike. Although court of appeals was correct that def fulfilled the steps for preservation of error regarding denial of a challenge for cause, in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner so that it can be corrected. The trial court's ruling was based not on the record but on the judge's erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary. Defense counsel said nothing to cast doubt on the trial court's recollection of events. The trial court had no obligation to grant def's request for additional peremptory strikes unless def first showed his challenge for cause should have been granted. Loredo v State (April 7, 2004, No. 1075-03)
* When a trial judge is aware that def has a problem understanding the English language, def's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right [Marin v S, 851 S.W.2d 275 (Tex. Crim. App. 1993)]. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by def. The judge may become aware of def's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. Garcia v State (March 24, 2004, No. 0489-03)
* On claim by def that was error for trial court to rule that simply asking witness a question for impeachment purposes would render entire videotaped interview of extraneous offenses admissible under rule 107, no merit to state's contention that def failed to preserve error for review because he never actually called witness to testify and tape was never played for jury. Requirements of rule 33.1 were satisfied; court distinguised cases relied on by state, which held that def must actually testify in order to preserve error on ruling allowing state to impeach def with prior convs. Sauceda v State (March 10, 2004, No. 0612-02)
* Where hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, def preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized. Cause remanded to court of appeals to address merits of admissibility of evid. Garza v State (January 28, 2004, No. 1691-02)
* Def preserved complaint on admission of evid where def filed motion to suppress and trial judge told def that he would hear the evidence as it was presented before the jury, commenting that, "[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict ... and if I deny your motion [to suppress], it doesn't make any difference, the jury gets to hear it all anyway." The judge further stated, "any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we'll make a determination as to that." Though the general rule would require def to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed def to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by def to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told def that he would not rule on the motion until the jury had heard the evidence. Def was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state's presentation of evidence, and not sooner. Cause remanded to court of appeals to address merits of issue. Garza v State (January 28, 2004, No. 1691-02)
* Def was estopped on appeal from complaining of trial court denying mistrial, and trial court instead excusing juror, after was learned during trial that juror knew person who was father of victim in extraneous offense and who might testify, where at trial def made alternative requests for mistrial and for excusal of juror. Def could not complain where trial court granted one of options requested by def. Jones v State (November 5, 2003, No. 74,060)
* Rule 33 governs the preservation of appellate complaints. To preserve error for appellate review under Rule 33.1(a) the record must show (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he refused to rule and the complaining party objected to that refusal. Geuder v State (September 10, 2003, No. 1005-02)
* Court of criminal appeals has authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute. Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act. Castaneda v State (July 2, 2003, No. 2012-01 through 2016-01)
* No harm shown on claim was error to refuse to rule on def's formal bill of exception under rule 33.2, where much of info included in her formal bill of exception was already in record on appeal, and remaining info did not relate to her claims on appeal. Routier v State (May 21, 2003, No. 72,795)
* It was error for court of appeals to rule that def had preserved error by proper objection to gang-related evid, where counsel did not object to all the gang-related evid, failed to request a running objection, and failed to request a hearing outside presence of jury on admissibility of gang-related evid. Martinez v State (February 12, 2003, No. 0185-02)
* It was error for court of appeals to reverse conviction on a theory not presented at trial or on appeal. At trial and on appeal def claimed that trial court erred in denying him an article 38.23 instruction regarding whether def had failed to maintain a single lane of traffic, but court of appeals held that def was entitled to an article 38.23 jury instruction concerning whether a police officer could stop def outside of his geographical jurisdiction and reversed and remanded the case to the trial court. Gerron v State (February 5, 2003, No. 1963-01)
* No merit to contention that state's tactics for introducing document prejudiced def by requiring def to repeatedly object in front of jury, where record did not support def's assertions. Canales v State (January 15, 2003, No. 73,988)
* Nothing presented for review on claim was error to overrule objection to permitting prosecutor to read letter to jury with prejudicial inflection, where def made objection before letter was read, trial court ruled state could read letter and def could object to manner of reading letter during reading of letter, and def made no objection during reading of letter. Canales v State (January 15, 2003, No. 73,988)
* Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question. And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. This "raise it or waive it" forfeiture rule applies equally to the state and defendant. Martinez v State (December 11, 2002, No. 344-02)
* No merit to state's contention that under rule 33.1 def failed to preserve error because he did not obtain a ruling on his objection to trial court granting challenge for cause. An objection after a challenge for cause is sustained is by itself sufficient to preserve error. So long as the objection is made immediately after the challenge is granted, the discharge of the prospective juror from service is tantamount to an adverse ruling on the objection. Ortiz v State (September 25, 2002, No. 73,692)
* Where def's motion to suppress asserted that traffic stop and search were done without a warrant, under 28.01 sec. 1(6) the motion to suppress was itself an allegation of a Fourth Amendment violation, so was error for court of appeals to rule that failure to allege absence of warrant in def's affidavit submitted to trial court in support of motion authorized trial court to deny motion; court of appeals should have considered both the motion to suppress and the affidavits in addressing def's complaint about the trial court's ruling on that motion. Bishop v State (September 25, 2002, No. 1887-01)
* It was error for court of appeals to reverse trial court's decision on a theory not presented to the trial court and upon which the trial court had no opportunity to rule. This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)
* State's confession of error in U.S. Supreme Court was contrary to state's procedural law for presenting a claim on appeal, as well as U.S. Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims. After independent examination of the claim, court of criminal appeals held that no complaint was presented for appellate review because def did not make a trial objection to testimony on future dangerousness issue at punishment stage in capital case, that there is a correlation between ethnicity and recidivism. Saldano v State (March 13, 2002, No. 72,556)
* Rule 33.1 provides in part that "as a prerequisite to presenting a complaint for appellate review," a timely request, objection or motion must be made and ruled upon by the trial court. This rule ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate time - when the mistakes are alleged to have been made. Hull v State (January 30, 2002, No. 1812-00)
* Def waived complaint regarding trial court's "zero tolerance" probation where he raised his complaint for the first time on appeal. Fact that "zero tolerance" was not a listed condition in trial judge's probation order did not result in situation where there was nothing to object to at the time of sentencing. Fact that written probation conditions stated that a violation "may result" in revocation, did not entitle def to rely upon that representation rather than the court's stated "zero tolerance" policy. Def was not without grounds on which to move to recuse the judge until after the judge actually applied the zero tolerance policy and revoked appellant's probation. Record showed that def understood the "zero tolerance" policy and was not confused by the court's admonishment in light of the written conditions, and that def understood the "zero tolerance" policy to be overriding and controlling. At the very least def could have objected to a discrepancy between the written conditions and the court's stated policy. Hull v State (January 30, 2002, No. 1812-00)
* Appeals court accepts as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Hayden v State (November 14, 2001, No. 610-00)
* No merit to state's contention that def did not preserve error because his written motion to suppress did not attempt to suppress expert's testimony, but only attempted to suppress the results of the breath test, where at the suppression hearing def argued for the suppression of expert's testimony on the grounds that it was not reliable, and trial court denied the motion to suppress after hearing def's argument. Def timely informed the trial court of his grounds with sufficient specificity and, therefore, he preserved error. Mata v State (June 6, 2001, No. 133-00)
* One of the obvious linguistic differences between Rule 33.1(a) and prior Rule 52(a) is that Rule 33.1(a) allows for a ruling by the trial court "either expressly or impliedly" while Rule 52(a) simply required that the party obtain "a ruling." Gutierrez v State (January 31, 2001, No. 693-00)
* While the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error (TRAP 33.1), pursuant to Texas Rule of Evidence 103(d), appeals court is authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Some rights are widely considered so fundamental to the proper functioning of adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. Blue v State (December 13, 2000, No. 1254-99)
* Comments* of trial judge in instant case could not be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting his right to a fair trial. The comments of the trial judge, which tainted def's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Def's failure to object to the trial judge's comments did not waive error. Blue v State (December 13, 2000, No. 1254-99)
* Helms Rule (that a knowing and voluntary guilty plea waives all nonjurisdictional errors "that occurred prior to the entry of the guilty plea.") did not apply to def's challenge to constitutionality of sex registration law imposed as condition of probation. Regardless of when the trial court ruled that there would be a condition that required def to register as a sex offender, the plea of guilty did not "waive" the issue. If the ruling was made before the plea, it was not waived under the Helms Rule because of recent decision in Young v. State, 8 S.W.3d 656 (Tex. Cr. App. 2000), that Helms Rule no longer applies, and a valid plea of guilty or nolo contendere does not "waive" or forfeit the right to appeal a claim of error, when the judgment of guilt is not rendered independent of, and is supported by, the error. If the trial court's ruling was made after the plea of guilty, when the condition of probation was imposed, the Helms Rule never came into play, and the plea of guilty that was entered before the ruling did not "waive" this issue. Cause remanded for consideration of def's points of error. Brasfield v State, 18 S.W.3d 232 (May 24, 2000)
* Def did not preserve for appeal, claim that his mother lacked authority to consent to search of def's room, where the focus of def's motion to suppress and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From the record, court could not conclude that the trial court was made aware that def was contesting his mother's authority to consent to a search. Martinez v State, 17 S.W.3d 677 (May 17, 2000)
* Nothing preserved for review on claim of exclusion of evid, where trial court never ruled on the admissibility of X's testimony. Although def objected to the trial court's refusal to rule at the time it was first offered, after the state rested the trial court gave def the opportunity to introduce X's testimony and def made no subsequent attempt to introduce it. Martinez v State, 17 S.W.3d 677 (May 17, 2000)
* Reasons previously given by court of criminal appeals for not enforcing a procedural bar under Rule 33.1(a) to raising ineffective assistance of counsel claim, include: (1) A defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. (2) There is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)
* Court of Appeals erred in concluding that def forfeited his right to complain that his attorney rendered ineffective assistance of counsel by failing to comply with Rule 33.1(a). There was no evidence in the record that def waived his right to the effective assistance of counsel. There was also no meaningful or realistic opportunity for def to present his ineffective assistance of counsel claim to the trial court either at trial or in a motion for new trial. In instant case, the time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)
* To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)
* Under Rule 33.1, where issue was first raised at hearing on motion for new trial, nothing was preserved for review on claim case should be reversed because def (a Mexican national) was not informed of his rights, upon arrest, as guaranteed by the Vienna Convention on Consular Relations (which grants a foreign national who has been arrested, imprisoned, or taken into custody a right to contact his consulate and requires the arresting authorities to inform the individual of this right ôwithout delayö). Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)
* Where def objected at trial to the failure to record bench conferences, and after the objection all conferences were recorded, the objection was untimely as to the earlier conferences. Moore v State, 999 S.W.2d 385 (April 21, 1999)
* When bench conferences are not recorded, an objection and request for a mistrial without some attempt to supplement the trial record with the substance of the unrecorded bench conferences is an inadequate basis for alleging that anything pertinent for the purpose of appeal transpired. Moore v State, 999 S.W.2d 385 (April 21, 1999)
* It was not error to refuse to instruct jury to disregard unresponsive answer by defense witness during direct examination (emotional outburst by def's mother berating the court with obscenities), where def did not object to the outburst at earliest opportunity, but waited until end of testimony. Moore v State, 999 S.W.2d 385 (April 21, 1999)
* Where def, after state rested, said ôAt this time the defense would like to make an opening statement,ö and court ruled ôThat will be denied,ö and defense counsel said, ôOkay. In that case we will call [our first witness],ö def preserved the right to raise issue on appeal that the ruling was in error. In context, the word ôOkayö did not waive issue. Def did all that is generally required to preserve this complaint for review of appeal. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)
* The general prerequisite to presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)
* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint for appellate review. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)
* Rule 33.1 ensures that trial courts are provided the opportunity to correct their own errors before a case need be appealed. If a defendant fails to inform the trial judge of the potential error through a timely request, objection, or motion, there is no such opportunity for correction at the trial level. It is for this reason that defendants must object to alleged errors on the record before those errors may be appealed. Vidaurri v State (June 20, 2001, No. 515-99)
rules (TRAP Rule 33. Preservation of Appellate Complaints.)
* When def requests a procedure that varies from proper procedure, and his request is followed, he can obtain relief only if the proper procedure is an ôabsolute requirement or prohibitionö to be implemented regardless of the partiesÆ wishes. Busby v State, 990 S.W.2d 263 (March 31, 1999)
issue not preserved (TRAP Rule 33. Preservation of Appellate Complaints.)
* Nothing presented for review on claim trial court erred in admitting certain testimony during the punishment phase of trial where was no trial objection. Brooks v State, 990 S.W.2d 278 (March 31, 1999)
* Where def made no request to proceed ex parte concerning his request for a jury consultant, he failed to preserve error on issue of denial of ex parte hearing. Busby v State, 990 S.W.2d 263 (March 31, 1999)
Labels: Leavenworth, Political Prosecution. Kangaroo Court, What is behind the White House?
posted by dannoynted1 | 2:01 AM | 0 comments
Labels: 13th Court of Appeals, Marshall dissents, Marshall dissents in Strickland v Washington, RESPECT, Texas Justice injustice for poor defendants, THINK
posted by dannoynted1 | 4:20 AM | 0 comments
Thursday,
D1: OMG, talk about or should I say writing about "advancing argument on behalf of the state."
Does the defendant who is "also denied the opportunity to develop a complete record on the issue on which" ever get this issue concerning opportunities of denied to develop a complete record on the issue of preserving complaints on appeal "in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: by using the record to deny the defendants documentation of prosecutions remarks at Def MTN4NT constitutes "obstruction of justice" and distortion of truth and justice.
For the essence to be taken as fact there would need the 2 prerequisites.....
Thursday, April 03, 2008
* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint .........
Thursday, April 3, 2008
* Preservation of error is an inter-court systemic requirement, it is not an intra-court requirement. Both trial and appellate courts have the authority to exercise discretion and consider claims and arguments that were not timely made in that particular court as long as they are made while the parties are still in that particular court and the court otherwise has jurisdiction to hear them. State v Herndon (February 28, 2007, PD-1954-03)
* A trial judge may, but need not, grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant's substantial rights. State v Herndon (February 28, 2007, PD-1954-03)
* Nothing in the Rules of Appellate Procedure or any Texas statute requires, as a predicate to the trial court's authority to exercise its discretion to grant a motion for new trial, a defendant to have preserved the error during trial that he asserts in his post-trial motion for new trial. State v Herndon (February 28, 2007, PD-1954-03)
* Def failed to take steps required to preserve error where his motion for mistrial following admission of evid in violation of motion in limine was too late. In instant case, grounds for def's motion for mistrial first became apparent during testimony of witness, yet def failed to move for a mistrial until after both that witness and following witness had concluded their testimony. Griggs v State (January 31, 2007, PD-0727-05)
* Errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court. Sanchez v State (December 13, 2006, PD-1754-05)
* Def's motion for new trial was sufficient under Rule 33.1 to preserve for review his "unconstitutionally vague as applied" challenge to sec. 42.07(a)(4) PC. Def filed pretrial motion to quash information, citing due process and due course of law clauses of US and Texas constitutions and arguing that terms of the statute were unconstitutionally vague; at start of trial, before any evidence had been adduced, def urged his motion to quash and argued that "the vagueness" of the statute was "readily apparent"; during guilt stage (once during c/w's testimony and once after both sides had rested) def objected again that the language of the statute was "unconstitutionally vague." Each time def objected, the trial court overruled his objection. Def filed a timely motion for new trial and presented it to the trial court for a ruling. In his motion, def, again citing the due process and due course of law clauses of US and Texas constitutions, argued the statute was "unconstitutional as applied to him in his case." Although def did not use the word "vague" or "vagueness" in his motion for new trial, he did argue that "[n]ow that the evidence has been adduced," the trial court could "more readily discern the unconstitutionality of the statute" as it had been applied against him. Motion for new trial was later overruled by operation of law. Motion for new trial was adequately specific on the vagueness-as-applied claim: Although the word "vague" or "vagueness" appeared nowhere in the motion, any reasonable trial judge probably would have understood the motion, in context, to be asserting an "unconstitutionally vague as applied" challenge to the statute, since def's consistent complaint throughout trial had been that the statute was too vague to be enforceable. On the other hand, no reasonable trial judge would have understood the motion for new trial, even in context, to be asserting an "unconstitutionally overbroad as applied" challenge to the statute. Neither the word "overbroad" nor the word "overbreadth" appeared in the motion for new trial, and at no point during the trial did def make an overbreadth challenge to the statute. The motion for new trial was timely within the meaning of Rule 33.1: (1) It provided trial court with opportunity to take corrective action - granting the motion for new trial - without burdening the parties and the judicial system with a costly appeal and retrial. (2) It gave the state a fair opportunity to respond. Although def could have filed a motion to dismiss after the close of all the evidence, his delay until the motion for new trial did not prejudice the state in any way. (3) Def's delay until his motion for new trial did not impair the orderly and effective presentation of the case to the jury. Cause remand to court of appeals so that it may reconsider def's point of error. Gillenwaters v State (September 27, 2006, PD-1443-05)
* Actions and statements of trial judge unquestionably indicated judge overruled def's motion to suppress, and issue was preserved for review, where record showed that at end of hearing on def's motion to suppress trial judge stated, "I would assume that I can probably review the tape this afternoon. But I may wait till tomorrow to have it - - to have the opportunity to read whatever the State's brief before I - - where I can see where both of you are coming from and then view the tape, and I'll rule." The last line on trial court's docket sheet stated, "appeal preserved as to issues presented." Def's amended notice of appeal stated, "This is notice of the defendant's right to appeal to the court of appeals from the judgment or other appealable order in this case." Included on the document containing def's amended notice was trial judge's certification of def's right to appeal. Trial judge certified that def's appeal "is in a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial." Montanez v State (April 26, 2006, PD-0894-04)
* Timely objection requirement did not prevent def from raising complaint on appeal (that conditions of probation imposing two consecutive 180-day periods of confinement in jail violated requirement under 3.03(a) PC that sentences be served concurrently), where grounds for complaint were not apparent at time trial judge announced sentence and conditions of probation in open court, and grounds for complaint were first apparent on the next day, when def signed "Conditions of Community Supervision" in each case. There was no reporter's record of this proceeding; it was not noted on the court's docket sheets; the record did not show whether either the state or def was represented by counsel; no counsel signed the conditions; the trial judge did not participate (the conditions were signed by another judge "for" the trial judge); and def and a "court liaison officer" also signed the conditions. Appeals court concluded the document was signed in def's meeting with a community supervision officer, rather than during a hearing before the trial judge. Thus, def had no meaningful opportunity to object to these specific conditions of his probations. Therefore def did not "waive," or fail to preserve, his complaint for appellate review. Kesaria v State (April 5, 2006, PD-1802-04)
* Where def claimed juror was asleep during trial, court of appeals erred in concluding nothing was preserved for review on the ground that counsel's statement in the trial record that a juror was sleeping was no evid of the matter; counsel's trial record statement was some evid; cause remanded for further proceedings. Thieleman v State (December 14, 2005, No. PD-1743-04)
* A trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred. The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non-oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for appellate review. Thieleman v State (December 14, 2005, No. PD-1743-04)
* Ordinarily, after court of criminal appeals concludes that the court of appeals erred in holding that a defendant did not preserve his complaint for appellate review, it would remand to that court to determine whether the trial court abused its discretion. In instant case, because the court of appeals had already performed a thorough review of the substance of the def's motion for continuance, court of criminal appeals did not remand, but instead addressed def's complaint that the court of appeals' opinion did not accurately reflect the record. Harrison v State (December 14, 2005, No. PD-1511-04)
* Although the Rule of Evidence 103(a) makes clear that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling, that is not always suff. Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Reyna v State (June 29, 2005, No. PD-0255-04)
* It was error for court of appeals to reverse conviction and order case dismissed, on theory of prosecutorial vindictiveness that was never pleaded, proved, or ruled upon in trial court. Def's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, def never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The state was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness. Neal v State (November 17, 2004, No. 1559-03)
* Waiver requires "an intentional relinquishment or abandonment of a known right or privilege" by actual renunciation or intentional conduct inconsistent with claiming that known right. Wappler v State (June 30, 2004, No. 772-03)
* The concept of "systemic requirement" has to do with preservation of error, while the concept of "structural error" has to do with harmfulness of error. A "structural error" is not subject to a harmless-error test. Mendez v State (June 30, 2004, No. 817-01)
* A "systemic requirement" (also known as an "absolute requirement or prohibition") is a law that a trial court has a duty to follow even if the parties wish otherwise. Any party that is entitled to appeal may complain on appeal that such a requirement was violated, even if the party failed to complain about the failure or waived the application of the law. A party may be estopped from complaining about an error that it invited, however. Mendez v State (June 30, 2004, No. 817-01)
* The general requirement for preservation of complaints for appeal is Rule of Appellate Procedure 33.1(a). It could be summarized as requiring a timely, specific objection and a ruling by the trial court. Rule 33.1(a) was meant to reaffirm the basic principles of adversary litigation, not to amend or repeal them. It applies only to actions of the trial court concerning which a party forfeits the benefit of a right belonging to him if he does not complain about it at trial. The rule does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal. That is, there are two types of complaints to which Rule 33.1(a) does not apply. Mendez v State (June 30, 2004, No. 817-01)
* Court of criminal appeals listed several ways that statement in Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Cr. App. 1999), about Rule 33.1(a) ["Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1."] was incorrect: (1) It omitted one of the types of complaints to which the rule does not apply: complaints about rights that are waivable only. (2) It incorrectly described complaints about systemic requirements as "complaints involving fundamental constitutional systemic requirements." Systemic requirements are not necessarily constitutional. Ibarra used the word "fundamental" to describe the systemic requirements, which could be misleading. "Fundamental" has been used to identify complaints that may be raised for the first time on appeal. Questions of "fundamental error" now are considered in the framework of Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993). (3) It was a mistake in Ibarra to say that noncompliance with Rule 33.1(a) results in complaints being "waived." Marin carefully distinguished waiver, which requires the intentional relinquishment or abandonment of a known right or privilege, from the forfeiture that is the consequence of not complying with Rule 33.1(a). A statement that is correct, and perhaps less susceptible of being misread, would be, "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v State (June 30, 2004, No. 817-01)
* A law that puts a duty on the trial court to act sua sponte creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. Mendez v State (June 30, 2004, No. 817-01)
* A defendant may preserve error for appeal by moving for a mistrial without first making an objection and requesting an instruction to disregard, and in such case it is error to overrule such a motion for mistrial when an instruction to disregard could not have cured the harm of the objectionable event. Because the objection, the request for an instruction to the jury, and the motion for mistrial seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to seek them in sequence - that is, (1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. However, this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. In most instances, an objection will prevent the occurrence of the prejudicial event, and the failure to make a timely, specific objection prevents appellate review. If an objectionable event occurs before a party could reasonably have foreseen it, the omission of objection will not prevent appellate review, because it is not possible to make a timely objection to an unforeseeable occurrence, and an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Similarly, the request for an instruction to disregard an objectionable occurrence is essential only when the such an instruction could have had the desired effect, which is to enable the continuation of the trial by a impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal. Accordingly, when a party's first action is to move for mistrial, the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead to reversal on an appeal by the party who did not request these lesser remedies in the trial court. Limited as this scope of appellate review may be, such an appellate review is available to such a party. Young v State (June 9, 2004, No. 904-02)
* Court of Appeals erred in addressing the merits of def's claim regarding one of his challenges for cause, where def stood mute in the face of the court stating erroneous facts as the basis for the denial and requesting correction if necessary before denying def's request for an additional peremptory strike. Although court of appeals was correct that def fulfilled the steps for preservation of error regarding denial of a challenge for cause, in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner so that it can be corrected. The trial court's ruling was based not on the record but on the judge's erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary. Defense counsel said nothing to cast doubt on the trial court's recollection of events. The trial court had no obligation to grant def's request for additional peremptory strikes unless def first showed his challenge for cause should have been granted. Loredo v State (April 7, 2004, No. 1075-03)
* When a trial judge is aware that def has a problem understanding the English language, def's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right [Marin v S, 851 S.W.2d 275 (Tex. Crim. App. 1993)]. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by def. The judge may become aware of def's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. Garcia v State (March 24, 2004, No. 0489-03)
* On claim by def that was error for trial court to rule that simply asking witness a question for impeachment purposes would render entire videotaped interview of extraneous offenses admissible under rule 107, no merit to state's contention that def failed to preserve error for review because he never actually called witness to testify and tape was never played for jury. Requirements of rule 33.1 were satisfied; court distinguised cases relied on by state, which held that def must actually testify in order to preserve error on ruling allowing state to impeach def with prior convs. Sauceda v State (March 10, 2004, No. 0612-02)
* Where hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, def preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized. Cause remanded to court of appeals to address merits of admissibility of evid. Garza v State (January 28, 2004, No. 1691-02)
* Def preserved complaint on admission of evid where def filed motion to suppress and trial judge told def that he would hear the evidence as it was presented before the jury, commenting that, "[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict ... and if I deny your motion [to suppress], it doesn't make any difference, the jury gets to hear it all anyway." The judge further stated, "any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we'll make a determination as to that." Though the general rule would require def to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed def to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by def to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told def that he would not rule on the motion until the jury had heard the evidence. Def was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state's presentation of evidence, and not sooner. Cause remanded to court of appeals to address merits of issue. Garza v State (January 28, 2004, No. 1691-02)
* Def was estopped on appeal from complaining of trial court denying mistrial, and trial court instead excusing juror, after was learned during trial that juror knew person who was father of victim in extraneous offense and who might testify, where at trial def made alternative requests for mistrial and for excusal of juror. Def could not complain where trial court granted one of options requested by def. Jones v State (November 5, 2003, No. 74,060)
* Rule 33 governs the preservation of appellate complaints. To preserve error for appellate review under Rule 33.1(a) the record must show (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he refused to rule and the complaining party objected to that refusal. Geuder v State (September 10, 2003, No. 1005-02)
* Court of criminal appeals has authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute. Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act. Castaneda v State (July 2, 2003, No. 2012-01 through 2016-01)
* No harm shown on claim was error to refuse to rule on def's formal bill of exception under rule 33.2, where much of info included in her formal bill of exception was already in record on appeal, and remaining info did not relate to her claims on appeal. Routier v State (May 21, 2003, No. 72,795)
* It was error for court of appeals to rule that def had preserved error by proper objection to gang-related evid, where counsel did not object to all the gang-related evid, failed to request a running objection, and failed to request a hearing outside presence of jury on admissibility of gang-related evid. Martinez v State (February 12, 2003, No. 0185-02)
* It was error for court of appeals to reverse conviction on a theory not presented at trial or on appeal. At trial and on appeal def claimed that trial court erred in denying him an article 38.23 instruction regarding whether def had failed to maintain a single lane of traffic, but court of appeals held that def was entitled to an article 38.23 jury instruction concerning whether a police officer could stop def outside of his geographical jurisdiction and reversed and remanded the case to the trial court. Gerron v State (February 5, 2003, No. 1963-01)
* No merit to contention that state's tactics for introducing document prejudiced def by requiring def to repeatedly object in front of jury, where record did not support def's assertions. Canales v State (January 15, 2003, No. 73,988)
* Nothing presented for review on claim was error to overrule objection to permitting prosecutor to read letter to jury with prejudicial inflection, where def made objection before letter was read, trial court ruled state could read letter and def could object to manner of reading letter during reading of letter, and def made no objection during reading of letter. Canales v State (January 15, 2003, No. 73,988)
* Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question. And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. This "raise it or waive it" forfeiture rule applies equally to the state and defendant. Martinez v State (December 11, 2002, No. 344-02)
* No merit to state's contention that under rule 33.1 def failed to preserve error because he did not obtain a ruling on his objection to trial court granting challenge for cause. An objection after a challenge for cause is sustained is by itself sufficient to preserve error. So long as the objection is made immediately after the challenge is granted, the discharge of the prospective juror from service is tantamount to an adverse ruling on the objection. Ortiz v State (September 25, 2002, No. 73,692)
* Where def's motion to suppress asserted that traffic stop and search were done without a warrant, under 28.01 sec. 1(6) the motion to suppress was itself an allegation of a Fourth Amendment violation, so was error for court of appeals to rule that failure to allege absence of warrant in def's affidavit submitted to trial court in support of motion authorized trial court to deny motion; court of appeals should have considered both the motion to suppress and the affidavits in addressing def's complaint about the trial court's ruling on that motion. Bishop v State (September 25, 2002, No. 1887-01)
* It was error for court of appeals to reverse trial court's decision on a theory not presented to the trial court and upon which the trial court had no opportunity to rule. This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)
* State's confession of error in U.S. Supreme Court was contrary to state's procedural law for presenting a claim on appeal, as well as U.S. Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims. After independent examination of the claim, court of criminal appeals held that no complaint was presented for appellate review because def did not make a trial objection to testimony on future dangerousness issue at punishment stage in capital case, that there is a correlation between ethnicity and recidivism. Saldano v State (March 13, 2002, No. 72,556)
* Rule 33.1 provides in part that "as a prerequisite to presenting a complaint for appellate review," a timely request, objection or motion must be made and ruled upon by the trial court. This rule ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate time - when the mistakes are alleged to have been made. Hull v State (January 30, 2002, No. 1812-00)
* Def waived complaint regarding trial court's "zero tolerance" probation where he raised his complaint for the first time on appeal. Fact that "zero tolerance" was not a listed condition in trial judge's probation order did not result in situation where there was nothing to object to at the time of sentencing. Fact that written probation conditions stated that a violation "may result" in revocation, did not entitle def to rely upon that representation rather than the court's stated "zero tolerance" policy. Def was not without grounds on which to move to recuse the judge until after the judge actually applied the zero tolerance policy and revoked appellant's probation. Record showed that def understood the "zero tolerance" policy and was not confused by the court's admonishment in light of the written conditions, and that def understood the "zero tolerance" policy to be overriding and controlling. At the very least def could have objected to a discrepancy between the written conditions and the court's stated policy. Hull v State (January 30, 2002, No. 1812-00)
* Appeals court accepts as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Hayden v State (November 14, 2001, No. 610-00)
* No merit to state's contention that def did not preserve error because his written motion to suppress did not attempt to suppress expert's testimony, but only attempted to suppress the results of the breath test, where at the suppression hearing def argued for the suppression of expert's testimony on the grounds that it was not reliable, and trial court denied the motion to suppress after hearing def's argument. Def timely informed the trial court of his grounds with sufficient specificity and, therefore, he preserved error. Mata v State (June 6, 2001, No. 133-00)
* One of the obvious linguistic differences between Rule 33.1(a) and prior Rule 52(a) is that Rule 33.1(a) allows for a ruling by the trial court "either expressly or impliedly" while Rule 52(a) simply required that the party obtain "a ruling." Gutierrez v State (January 31, 2001, No. 693-00)
* While the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error (TRAP 33.1), pursuant to Texas Rule of Evidence 103(d), appeals court is authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Some rights are widely considered so fundamental to the proper functioning of adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. Blue v State (December 13, 2000, No. 1254-99)
* Comments* of trial judge in instant case could not be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting his right to a fair trial. The comments of the trial judge, which tainted def's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Def's failure to object to the trial judge's comments did not waive error. Blue v State (December 13, 2000, No. 1254-99)
* Helms Rule (that a knowing and voluntary guilty plea waives all nonjurisdictional errors "that occurred prior to the entry of the guilty plea.") did not apply to def's challenge to constitutionality of sex registration law imposed as condition of probation. Regardless of when the trial court ruled that there would be a condition that required def to register as a sex offender, the plea of guilty did not "waive" the issue. If the ruling was made before the plea, it was not waived under the Helms Rule because of recent decision in Young v. State, 8 S.W.3d 656 (Tex. Cr. App. 2000), that Helms Rule no longer applies, and a valid plea of guilty or nolo contendere does not "waive" or forfeit the right to appeal a claim of error, when the judgment of guilt is not rendered independent of, and is supported by, the error. If the trial court's ruling was made after the plea of guilty, when the condition of probation was imposed, the Helms Rule never came into play, and the plea of guilty that was entered before the ruling did not "waive" this issue. Cause remanded for consideration of def's points of error. Brasfield v State, 18 S.W.3d 232 (May 24, 2000)
* Def did not preserve for appeal, claim that his mother lacked authority to consent to search of def's room, where the focus of def's motion to suppress and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From the record, court could not conclude that the trial court was made aware that def was contesting his mother's authority to consent to a search. Martinez v State, 17 S.W.3d 677 (May 17, 2000)
* Nothing preserved for review on claim of exclusion of evid, where trial court never ruled on the admissibility of X's testimony. Although def objected to the trial court's refusal to rule at the time it was first offered, after the state rested the trial court gave def the opportunity to introduce X's testimony and def made no subsequent attempt to introduce it. Martinez v State, 17 S.W.3d 677 (May 17, 2000)
* Reasons previously given by court of criminal appeals for not enforcing a procedural bar under Rule 33.1(a) to raising ineffective assistance of counsel claim, include: (1) A defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. (2) There is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)
* Court of Appeals erred in concluding that def forfeited his right to complain that his attorney rendered ineffective assistance of counsel by failing to comply with Rule 33.1(a). There was no evidence in the record that def waived his right to the effective assistance of counsel. There was also no meaningful or realistic opportunity for def to present his ineffective assistance of counsel claim to the trial court either at trial or in a motion for new trial. In instant case, the time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)
* To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)
* Under Rule 33.1, where issue was first raised at hearing on motion for new trial, nothing was preserved for review on claim case should be reversed because def (a Mexican national) was not informed of his rights, upon arrest, as guaranteed by the Vienna Convention on Consular Relations (which grants a foreign national who has been arrested, imprisoned, or taken into custody a right to contact his consulate and requires the arresting authorities to inform the individual of this right ôwithout delayö). Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)
* Where def objected at trial to the failure to record bench conferences, and after the objection all conferences were recorded, the objection was untimely as to the earlier conferences. Moore v State, 999 S.W.2d 385 (April 21, 1999)
* When bench conferences are not recorded, an objection and request for a mistrial without some attempt to supplement the trial record with the substance of the unrecorded bench conferences is an inadequate basis for alleging that anything pertinent for the purpose of appeal transpired. Moore v State, 999 S.W.2d 385 (April 21, 1999)
* It was not error to refuse to instruct jury to disregard unresponsive answer by defense witness during direct examination (emotional outburst by def's mother berating the court with obscenities), where def did not object to the outburst at earliest opportunity, but waited until end of testimony. Moore v State, 999 S.W.2d 385 (April 21, 1999)
* Where def, after state rested, said ôAt this time the defense would like to make an opening statement,ö and court ruled ôThat will be denied,ö and defense counsel said, ôOkay. In that case we will call [our first witness],ö def preserved the right to raise issue on appeal that the ruling was in error. In context, the word ôOkayö did not waive issue. Def did all that is generally required to preserve this complaint for review of appeal. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)
* The general prerequisite to presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)
* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint for appellate review. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)
* Rule 33.1 ensures that trial courts are provided the opportunity to correct their own errors before a case need be appealed. If a defendant fails to inform the trial judge of the potential error through a timely request, objection, or motion, there is no such opportunity for correction at the trial level. It is for this reason that defendants must object to alleged errors on the record before those errors may be appealed. Vidaurri v State (June 20, 2001, No. 515-99)
rules (TRAP Rule 33. Preservation of Appellate Complaints.)
* When def requests a procedure that varies from proper procedure, and his request is followed, he can obtain relief only if the proper procedure is an ôabsolute requirement or prohibitionö to be implemented regardless of the partiesÆ wishes. Busby v State, 990 S.W.2d 263 (March 31, 1999)
issue not preserved (TRAP Rule 33. Preservation of Appellate Complaints.)
* Nothing presented for review on claim trial court erred in admitting certain testimony during the punishment phase of trial where was no trial objection. Brooks v State, 990 S.W.2d 278 (March 31, 1999)
* Where def made no request to proceed ex parte concerning his request for a jury consultant, he failed to preserve error on issue of denial of ex parte hearing. Busby v State, 990 S.W.2d 263 (March 31, 1999)
Labels: Leavenworth, Political Prosecution. Kangaroo Court, What is behind the White House?
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Labels: 13th Court of Appeals, Marshall dissents, Marshall dissents in Strickland v Washington, RESPECT, Texas Justice injustice for poor defendants, THINK
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Thursday,
Labels: Jill Williams, Kenedeno, saldano v state, Texas court of criminal appeals, Texas justice
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