I have noticed that as I get busy and old, I tend to fall into bad habits. One of those habits, which I have also noticed in other attorneys (none in TCDLA, of course) I call “practicing law by word of mouth.” By this, I mean relying on what other attorneys or judges say the law is rather than actually looking it up and reading it oneself. At that point, we may as well be taking legal advice from our client’s cell mate’s cousin, who once took a criminal justice class, and has reported to most of the tank that they are all entitled to that famous and elusive provision, §12.44(a).
I thought recently of my Southern Baptist adolescence, spent desperately paging through daily devotionals, where one read a short chunklet of the Bible and then a brief explanation or illustration of what it said with the intention of eventually familiarizing oneself with the most important selections of that impenetrable tome. If one can get twelve-year-olds to solemnly read the Pentateuch, I feel strongly that us grown-ups with law degrees can muddle our way through our own books of the law in similar fashion.
So, in order to try and combat my own laziness and ineffectiveness, I am endeavoring to read the entire Texas Code of Criminal Procedure, start to finish, and I am inviting you, dear friend, to do it with me. Of course, it would not be effective or efficient to reproduce the Code in its entirety in this humble article, but I will focus on what I think is interesting and important as we move forward. C’mon, you’ve already gotten this far, let’s go.
Dust off your code book and let’s open together to TCCP Art. 1.03, The Objects of this Code.
Section 1.03 outlines the reasons the State wanted to write this code in the first place – namely, to prevent crime, ensure the secure confinement of prisoners, effectuate fair and speedy trials, to produce relevant evidence, and to make sure sentences actually get carried out when they’re pronounced. Section 1.03 proclaims that it “make[s] the rules of procedure […] intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them.”
I’m unconvinced that the code actually achieves any of these quite aspirational goals, starting with intelligibility, but I suppose as we move forward in this endeavor, we shall see for ourselves. I like the idea, though, of putting us all on notice of the rights we are losing to the State. The 4,000 year-old code of Ur-Namu, the written law of an ancient Sumerian king, emphasizes how important the availability of the law to the public is in its prologue, “…so the orphan is not delivered up to the rich man, so the widow is not delivered up to the mighty man…” I like that. That’s what our CCP says it’s trying to do, too, in its own inelegant way.
Check out Parker v. State, 745 SW 2d 934, which is an interesting case. In Parker, the trial judge threatened both the State and Defense attorneys in a DWI case with contempt if they dare tell the jury they could review evidence during deliberations. It seems that this inordinate pique came from the judge’s ill humor and desire to get things over with. The record is silent as to why neither attorney objected to this or what came later. One would imagine that the video would probably be helpful to one side or the other or why on earth would it be relevant in the first place? But during closing arguments, no one mentioned the option to the jury.
The jury, acting on its own, requested to see the video during deliberations. The judge pulled the jury out into the courtroom and basically told them, “Look, that’s going to be a real pain. We don’t have a lot of VCRs down here, one of them eats tapes, and we’d have to wait for the court next door to be done with theirs, so, like, I don’t really want to go through all that since you already saw it once. Just make up your minds and let’s gooooooooo.” More or less.
Parker got convicted and appealed. The 14th COA really felt strongly about the fact that this, in spite of being unpreserved by a lack of objection, was harmful and prevented a fair trial. They felt so strongly, in fact, they quoted a flowery old 1914 case, from back when judges wrote with a bit of a flourish:
“No one, under any circumstances, should be deprived of any right given him by the laws of this state, and, if any provision of our [CCP] has been overlooked or disregarded, if, in the remotest degree, it could have been hurtful or harmful to the person on trial, the verdict should be set aside.”
Dang. That’s beautiful.
