Please describe the qualifications and experience that make you the best candidate for the office you are seeking.
I have worked at this court for two different judges, so I know how the court works. For ten years I was appointed by the court to an advisory panel to advise the court on changes to the rules of evidence and Rules of Appellate Procedure as they apply to criminal cases, a panel composed of one prosecutor, one defense lawyer, one trial judge, one court of appeals court judge, and two law school deans. Currenly I am in the appeals section of the Bexar County District Attorney's Office, where I have represented the State in hundreds of criminal appeals. Before that I was in private practice, so I have experience on both sides of the bar. The Court of Criminal Appeals has discretionary review authority, so it accepts only a small percentage of the cases it's asked to review. I have had many petitions for review granted, and argued and filed briefs at that court in many cases. The Court also has exclusive jurisdiction over death penalty cases, and I have worked on quite a few of those. The Court has exclusive jurisdiction over writs, a fairly complicated post-conviction procedure with which few lawyers are familiar. As the first chief of the Conviction Intgegrity Unit in the Bexar County District Attorney's Office, I spent two years reviewing every writ filed in this county, so I am very familiar with writs. I also wrote and filed writs in private practice, including in death penalty cases. I have much, much more of the exact type of experience needed for a judge of this Court.
Do you think judges should be elected by the people, or appointed by a commission?
I still believe judges should be chosen by the people they serve. It would be nice if there were more organizations that addressed the qualifications of judicial candidates in order to inform voters. Most voters know very little about judicial candidates, and don't have many good ways of learning their qualifications.
What differentiates you from your opponents?
Experience is what differentiates me from my opponents. From my search of the records, one of them has done very few criminal appeals and the other has done none. That just isn't acceptable for a judge of the Court of Criminal Appeals. I am the only one with experience in death penalty cases and writs, two procedures over which this Court has exclusive jurisdiction. I am not a judge, I am a working appellate lawyer. When a judge wants to know the law applying to a particular cases, he or she says to the parties, "Bring me some law on this." I'm the person who does that, looks up the law (if I don't already know it) and writes the brief or memorandum. This is almost exactly what a judge of the Court of Criminal Appeals does, so I have exactly the experience needed for that Court.
Please describe the changes you will make to improve the efficiency of your court, yet remain thoughful about rulings/orders - that allows all parties to be heard and their arguments considered. Please specifically address how many days a year your court will be “in session.”
The Court of Criminal Appeals takes a summer recess, from approximately mid-June to mid-September, when the Court issues no opinions or very few. This mirrors the Supreme Court of the United States, which takes a similar recess. This tradition comes from a time before air conditioning, when summers were fairly unbearable in both Austin and Washington. That is no longer the case. Given the workload of the Court of Criminal Appeals, I see no reason for continuing this tradition. I would work year-round, as I have for years. Other than that, the Court very efficiently handles its caseload. I would improve the efficiency just by my presence. I have always done more work, written more briefs, reviewed more cases, than anyone else I know. The Court has to deal with thousands of writs a year, but I don't think that process can be streamlined. Very few of these writs, most filed by inmates without the aid of lawyers, have any merit, but the Court has to find the few that do. Since I have a great deal of experience with writs, I can help with that.
Are the United States and Texas constitutions living documents? Please answer in the context of Progressivism versus Originalism.
They are living documents in that they can be amended, as we recently voted to do in Texas (although the U.S. constitution hasn't been amended since 1972.) But they are not otherwise subject to change, certainly not by judges. An appellate court judge has nothing to do with changing the Texas constitution or laws, although opinions may suggest such changes (which should only rarely be done) and the legislature may choose to act on that suggestion or not. But an appellate judge is only to determine the intent of the original document, not to change it. If a constitution is to evolve, it should be by the will of a majority of citizens.
Please describe what you believe are the most significant issues in this race, why and what you'll do to address them?
The main issue in this race is experience. We're all conservative, so the issue remains of which of us could do this job most effectively. I've essentially already done this job, having worked at the court doing research and writing drafts of opinions. I also have much more experience in criminal appeals, post-conviction writs, and death penalty cases than any other potential candidate. I would begin work immediately on the Court to continue and improve if possible its efficiency as the highest criminal court in Texas
What Texas State court decision do you think has most impacted society? How and Why?
In Texas, this well may be some Texas Supreme Court decision about water rights, which are so important in Texas, but I wouldn't know about those. In my realm, criminal law, there are fewer decisions that have an effect on all of society, such as many U.S. Supreme Court decisions. There is one case from recent years, in which I represented the State, that will have consequences for society whether people know about it or not. In Ford v. State the defendant was accused of murdering his ex-girlfriend (and her dog). They had broken up but still socialized in the same circles, so they were at a New Year's Eve party together. The defendant got mad for some reason and left early. He claimed he went home and to bed, being asleep before midnight. But someone broke into the woman's condo, strangled her, killed her dog, and threw the dog's body into a nearby wooded area. There was no attempt at robbery or sexual assault. Defendant became a suspect because his DNA was on a towel covering the victim's face. There was no reason for his DNA to be there since they had broken up months earlier and she watched her towels weekly. But that wasn't enough to convict. There was a grainy footage from a security camera across the street showing a car like Defendant's going by more than once, and the figure of a man dressed as Defendant had been that evening going into the condo complex. Again, not enough for conviction; the images weren't sharp enough. But the prosecution obtained the defendant's cell phone records using a new statute that allows such records to be obtained with a court order showing the records are "reasonably related to a crime," something less than the probable cause required for a warrant. These records only showed location data, not the contents of the cell phone. They showed while he claimed to be home asleep, his phone was at different locations in the small area around the party, his home, and the condo. He was convicted on that basis. On appeal, in two oral arguments including at the Court of Criminal Appeals, I successfully defended the state's use of this statute. The opinion was unanimous. This wasn't an undue invasion of the defendant's privacy because he had agreed his carrier could maintain those records, and no one forced him to carry his cell phone with him. And this led to a conviction for a murder that otherwise would have gone unsolved. The effects are wide-ranging. Criminals' movements can be traced if they carry cell phone, which almost everyone does.
As a judge, what do you believe the goals of the criminal justice system should be?
As a judge on the Court of Criminal Appeals, my goal would be to ensure fair trials in criminal cases in Texas, to review significant cases of statewide importance, and to issue clearly-written opinions that tell trial courts exactly how to ensure trials are fair, which errors are signficant enough to require reversal, and which are not. The goals would also be to fairly and closely review cases in which death penalties have been assessed, and post-conviction writs, especially those claiming an innocent person is wrongfully imprisoned.
Apparently in conflict with current pratice in the courts Art. 19.27. of the Texas Code of Criminal Procedure states "ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge." What is the practical application of this statute?
I have been practicing criminal law in Texas for thirty years, and I've never heard of a defendant challenging the array of a grand jury or an individual grand juror while the grand jury is deliberating. Occasionally a defendant will challenge the array of a grand jury after it has indicted him or after he has been convicted, but I have never known of such a challenge being successful in Texas, certainly not in the modern era. There is very little practical application of this statute currently.
Who or which class of Texan does the Code of Criminal procedure 20.09. have in mind when it mentions "any Credible Person". How does the particular class invoke initiation of a Grand Jury investigation? CCP Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.
The phrase "any Credible Person" means what it says. The grand jury could determine who is credible. The statute gives no other procedure for this. Opinions have held that the grand jury may investigate any crime in its own county that is brought to the grand jury's attention. Almost universally grand juries only hear cases that are brought to them by district attorneys' offices, but the statute does not limit them to that. Grand juries are usually in session, at least in the more populous counties, and any citizen of Texas should have the right to address the grand jury and present evidence of a crime. The grand jury then chooses to act by issuing an indictment or not. This is designed to protect the rights of Texas citizens so they are not limited by what a particular district attorney chooses to do or to ignore.