The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas, United States. The Court, which is based in the Supreme Court Building in the state capital, Austin, is composed of a Presiding Judge and eight Judges.
Article V of the Texas Constitution vests the judicial power of the state and describes the Court's jurisdiction and sets rules for judicial eligibility, elections, and vacancies.
Jurisdiction
Only Texas and Oklahoma have two courts of last resort. In Texas, the Court of Criminal Appeals has final jurisdiction over all criminal matters (excluding juvenile proceedings, which are considered civil matters), while the Texas Supreme Court is the last word on all civil matters including juvenile proceedings even if a criminal act is involved.
The Court of Criminal Appeals exercises discretionary review over criminal cases, which means that it may choose whether or not to review a case. The only cases that the Court must hear are those involving the sentencing of capital punishment or the denial of bail.
Court Composition
The Court is composed of a Presiding Judge and eight Judges (unlike the Texas Supreme Court which is composed of a Chief Justice and eight Justices). Each Judge serves a six-year term, and they are elected in staggered partisan elections. Although all nine seats are elected at large; the Presiding Judge seat is separately designated from the other seats.
In order to be a Judge, a person must be at least 35 years of age, a United States and Texas citizen, licensed to practice law in Texas, and must have practiced law at least 10 years. A person 75 years or older cannot run for a seat on the Court of Criminal Appeals. A person who becomes 75 during their term of office cannot serve more than four years of their term of office. The Governor of Texas, subject to Senate confirmation, may appoint a Judge to serve out the remainder of any unexpired term until the next general election.
Like the Texas Supreme Court, the Judges of the Court of Criminal Appeals are currently all Republican.
The current Judges of the Court are:
- Sharon Keller, Presiding Judge
- Lawrence E. Meyers, Judge
- Tom Price, Judge
- Paul Womack, Judge
- Cheryl Johnson, Judge
- Michael Keasler, Judge
- Barbara Hervey, Judge
- Charles Holcomb, Judge
- Cathy Cochran, Judge
Controversy
According to a 2000 special article in the Chicago News Tribune, from 1995 to 2000, records show that the court has granted new trials in capital cases only eight times, and new sentencings just six times while affirming 270 capital convictions.
On those rare occasions when the Court of Criminal Appeals does grant relief, it sometimes reconsiders. At least six defendants executed since 1995, were granted new trials by the court because of fundamental violations of their rights only to have the court change its mind and reinstate the conviction.
Selection of Attorneys for Indigent Appellants
The appointment of attorneys for indigent defendants in capital cases has always been a source of controversy. District Court judges appoint lawyers for trial and a defendant's initial appeal, however, of the 131 inmates executed under Governor George W. Bush, 43 were represented by an attorney who at some point has been disbarred, suspended or otherwise sanctioned.
The appointment of attorneys for an inmate's final appeals, which allow attorneys to move beyond what occurred at trial and investigate for new evidence has also proved troublesome. Attorneys at this stage can argue, for instance, that prosecutors improperly concealed evidence favorable to the defendant.
Before 1995, appellants were not guaranteed an attorney for final appeals. In 1995, Texas revamped its system with a new law that collapsed the layers of appeal and set strict filing deadlines seeking to ensure that defendants received one full, fair set of appeals. The state agreed to pay for court-appointed attorneys to handle the final appeals for Death Row inmates. The Court of Criminal Appeals got the job of making these appointments. While assigning attorneys in about 300 cases, the Court of Criminal Appeals tapped some with questionable credentials or little experience.
For at least eight Death Row inmates, the court handpicked an attorney who previously had been sanctioned by the State Bar of Texas for misconduct, including one attorney who was still on probation. He was among four attorneys appointed by the court who had been disciplined more than once. In a ninth case, the attorney was sanctioned shortly after his appointment. The misconduct ranged from relatively minor infractions to serious violations. They included failing to show up in court, lying to the State Bar of Texas or to a judge, and dismissing a client's legal claim without the client's permission or knowledge.
Ricky Kerr Case
In, April 1996, Robert McGlohon, who had worked as a briefing attorney for one of the appeals court judges, had been a lawyer for less than three years when he was appointed by the court, to handle Ricky Kerr's state habeas corpus petition. He filed only one claim, a perfunctory challenge to the law itself, rather than raise substantive issues that might have granted Kerr a new trial. Thus, per Texas law, he forfeited Kerr's right to raise other issues later.
The court, though noticing how thin McGlohon's petition was, denied Kerr's appeal. When Kerr could not contact McGlohan, he wrote to the court and asked for another lawyer and a new appeal. McGlohan submitted a sworn affidavit in which he admitted "it may be that I was not competent to represent Mr. Kerr." He blamed a lack of experience and health problems. Prosecutors told the court they would not oppose Kerr's motion for a new lawyer.
However, in 1998, the court responded with a two-paragraph denial. Judge Morris Overstreet, dissented and stated that the court had made a "farce and travesty" of Kerr's rights and that that if Kerr were executed, the court would "have blood on its hands." "By this dissent," Overstreet concluded, "I wash my hands of such repugnance."
Kerr was granted a stay of execution by a Orlando Garcia, a federal judge, two days from his scheduled execution by lethal injection. Judge Garcia found that McGlohon's appointment "constituted a cynical and reprehensible attempt to expedite execution at the expense of all semblance of fairness and integrity. Kerr is still on death row and continuing his appeals.
Cesar Fierro case
In 1996 the court in a 5-4 vote denied a new trial to Cesar Fierro who had been coerced into confessed to murdering an El Paso cab driver. It had been revealed after trial, that the Juarez police had threaten to torture his mother and stepfather unless he confessed. A detective. Al Medrano, was aware that the confession had been coerced but denied same at trial. The prosecutor and the trial judge agreed that Fierro deserved a new trial, however Keller and the CCA disagreed.
Fierro is on Death Row for the 1979 murder of Nicolas Castanon, an El Paso taxi driver shot in the head and shoulder. He was, a laborer born in Juarez and grew up on both sides of the border, was arrested when Gerardo Olague, a 16-year-old, implicated Fierro, five months after Castanon's slaying. Before that, nothing had linked Fierro to the crime.
Olague testified that Castanon had agreed to give Fierro and Olague a ride to Juarez and Fierro shot and killed Castanon on the way there. Fierro was in an El Paso jail when police questioned him about the Castanon murder. He stated that local police told him that his parents were being held hostage in Mexico by Juarez detectives. Fierro said in a recent interview from Death Row in Livingston: "He told me if I signed, then they'd let them go, and if not, they were going to torture them," At Fierro's trial, Juarez and El Paso police denied wrongdoing.
The opinion, written by presiding judge Sharon Keller, accepted the trial court's conclusion of law that "there was a strong likelihood that the Defendant's confession had been coerced by the actions of the Juarez police and by the knowledge and acqiesence of those actions by Det. Medrano." However, though acknowledging that Fierro's "due process rights were violated", it concluded that "the error was harmless" and denied the motion for a new trial.
The majority indicated that the "knowing use of perjured testimony" is trial error and that applicant had to prove harm by a preponderance of evidence. In addition to the confession, the State also had the testimony of Gerardo Olague, an eyewitness to the murder. Though, Fierro's confession alleged that Olague was an accomplice if the confession had been excluded, there would have been no need to corroborate Olague's testimony and Fierro has shown no reason to doubt Olague's testimony. Thus it was more probable than not that the outcome of the trial would have been the same without the confession and Fierro had not met his burden.
There were four dissents filed, by Judges Clinton, Frank Maloney, Charles Baird, and Morris Overstreet. Morris Overstreet, called a confession the "most powerful piece of evidence" a prosecutor can offer. He said it was "totally inconceivable" that Fierro's confession did not convince the jurors of his guilt. Maloney and Ov
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