APPELLATE ISSUES PRESENTED APRIL 15, 2017 THE 7 TH ANNUAL DEFINITIVE AD LITEM SEMINAR IN DFPS CASES HOUSTON, TEXAS

Transcription

1 APPELLATE ISSUES Formulation of the Case for Appeal, Preservation of Error and Perfection of Appeal; Ethical Obligations; Effective Assistance of Counsel PRESENTED APRIL 15, 2017 AT THE 7 TH ANNUAL DEFINITIVE AD LITEM SEMINAR IN DFPS CASES HOUSTON, TEXAS William M. Thursland Attorney At Law 440 Louisiana St., Ste Houston, TX wmthursland@hotmail.com (713) x 105 Fax: (713)

2 I. OVERVIEW Every lawyer who tries CPS cases should be acquainted with the appellate process. The purpose of this paper is not to provide an exhaustive review of the rules regarding appellate procedure or the preservation of error. Rather it is to give a general overview of the procedures necessary to preserve error for appellate review and to ensure that when representing a parent or child in a parental termination or child protection case, our clients do not inadvertently lose their right to appeal. II. ADVISING CLIENTS Appellate Process: Our clients expectations of the appellate process and the prospects for relief it actually affords are often vastly different. They believe the appeal is an opportunity to retry the case in front of a different fact finder. At a minimum, they think it affords a chance to prove the decision in the lower court was unjust. Therefore, we should explain the kinds of issues that may be appealed and that generally the governing appellate doctrines favor stability and disfavor reversals. In fact this tendency is embodied in TRAP 44.1(a) which states that no judgment in a civil case may be reversed unless the error complained of (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. Unless, the client fully appreciates the difficulty in meeting this standard, he or she may be overly optimistic about the likelihood of relief.

3 Right to Appeal & How to Withdraw: Trial counsel should consider the possibility of an appeal from the very beginning of the case. Clients must be informed of their right to appeal well before trial and again after an adverse verdict. If your client could not attend the trial for whatever reason then be certain to inform him or her by letter of the right to appeal in forma pauperis. This letter should highlight the presumption of indigence and that the notice of appeal must be filed within 20 days after the date the judgment is signed. Most of our clients in CPS cases are indigent and therefore entitled to a free appeal. As their court appointed attorneys we continue to serve in that capacity until all appeals are dismissed or we are relieved of our duties or replaced by another attorney after a finding of good cause is rendered by the court on the record TFC and In re E.A.F., 424 S.W.3d 742 (Tex. App. Houston [14 th Dist.] 2014, pet. denied,)( appointed counsel not permitted to withdraw absent a finding of good cause ) As a practical matter, trial counsel can satisfy the good cause requirement by merely stating they do not practice appellate law or their current workload prevents them from undertaking an accelerated appeal. A sample motion to withdraw, appoint appellate counsel and confirm indigence with a proposed order is attached as exhibit A. Of course, counsel must consult the client before requesting to withdraw. Also, the motion should be filed as soon as possible after the court pronounces judgment. Try to have the motion heard on the entry date. Remember the appellate timetable begins to

4 run from the date the judgment is signed and the notice of appeal must be filed within twenty (20) days. Just this month the Supreme Court offered some guidance on what is not good cause. See In re P.M., No (Tex. 4/1/16)( Mere dissatisfaction of counsel or client with each other is not good cause. Nor is counsel s belief that the client has no grounds to seek further review from the court of appeals decision. ) Perhaps more importantly, In re P.M. provides guidance on the application of the Anders procedures in parental termination cases. Anders Procedures: In certain cases, after thoroughly reviewing the appellate record, counsel determines that there are no non-frivolous issues to assert on appeal. This situation creates a problem for appointed counsel because the client decides whether to appeal and the attorney decides what issues to assert. While we are obligated to advocate for our clients, we are ethically prohibited from urging frivolous issues on appeal. This problem was addressed in the criminal context in Anders v. California, 386 U.S. 738 (1967) and Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) The Anders procedures are applicable to parental termination cases. Under Anders we are not only required to thoroughly examine the appellate record but we must also act as an advocate for the client by addressing potential issues that could be asserted. If there is any arguable issue it must be raised and an Anders brief is not appropriate. Remember the threshold is extremely low: the argument merely

5 has to be non-frivolous. If counsel determines there are no non-frivolous issues to assert they must file a motion to withdraw and send a copy of the motion and brief to the client. Counsel must also inform the client of their right to the appellate record; to file a pro se brief on the merits; and, the applicable time limits to file a petition for review in the in Supreme Court. The court of appeals conducts its own independent examination of the record. If it concludes there is a non-frivolous issue to assert then it will grant the motion to withdraw and instruct the trial court to appoint another appellate attorney. For that reason, an Anders brief should only be filed after carefully perusing the record and researching the applicable law. On the other hand, if the court of appeals agrees that the appeal lacks merit it will permit counsel to withdraw and order that he or she comply with the Anders procedures. What happens when your indigent client instructs you to file a petition for review but there are no non-frivolous issues you can assert? In re P.M. provides the answer. First, even if the court of appeals granted your motion to withdraw, it must still provide for the appointment of new counsel to pursue a petition for review. Secondly, if substituted appellate counsel concludes that there are no non-frivolous grounds to assert in the Supreme Court the Anders requirements must be satisfied.

6 III. PROCEDURES TO PERFECT THE APPEAL Filing the Notice of Appeal: To invoke the jurisdiction of the court of appeals a timely notice of appeal must be filed with the trial court clerk. TRAP 25.1(a) Appeals involving child protective cases or those where a governmental entity seeks managing conservatorship are accelerated. TRAP 28.4 This means the notice must be filed within 20 days of the final order being signed. TRAP 26.1(b) If you miss this deadline, the court of appeals may grant a 15 day extension upon a showing of good cause. However, you should always remember that the consequences for failing to file a timely notice of appeal are draconian; i.e. the appeal will be dismissed for lack of jurisdiction. In re K.A.F., 160 S.W. 3d 923, 927 (Tex. 2005)( in an accelerated appeal, absent a rule 26.3 motion, the deadline for filing a notice of appeal is strictly set at 20 days after the judgment is signed, with no exceptions. Contents: The contents of the notice are found in TRAP 25.1(d). In addition, to including the information required in civil appeals generally, the notice must state whether it is a parental termination case or a child protection case, as defined by TRAP 28.4; if the appellant is presumed indigent and may proceed without advance payment of costs as provided by TRAP 20.1(a)(3). A sample notice of appeal is attached as exhibit B Changes:

7 In 2011 the rules pertaining to CPS appeals were dramatically changed. To briefly recap for those who were practicing before that date, if the trial court appointed you to represent an indigent parent that he or she was already found to be indigent. Therefore, they are presumed to be indigent on appeal and executing a second indigence affidavit is no longer required. Mercifully the archaic rules set forth in former section are gone. There is no longer a fifteen-day requirement to file a statement of points on appeal, obtain frivolous findings or file a motion for new trial. As in any civil case you have 30 days to file a motion for new trial even though in CPS cases you have only 20 days to file the notice of appeal. So it makes sense to file your motion for new trial and obtain a hearing date as soon as possible. If you do not want to do the appeal, file the motion for new trial at the same time you file the motion to withdraw and appoint appellate counsel. A sample motion for new trial with a proposed order is attached as exhibit C. Obtaining the Record: Within a few days of filing the notice of appeal you will receive notices from the clerks of both the district and appellate courts. The notice from the district clerk will instruct you to immediately file a designation of items on appeal. The one from the appellate court will explain what actions you are required to comply with the appellate rules. There is some urgency here because both the clerk and reporter s records must be

8 filed within 10 days of the date the notice of appeal is filed. TRAP 34 The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. Each extension must not exceed 10 days in an accelerated appeal. TRAP 35.3(c) The extensions of time may not exceed 30 days cumulatively, absent extraordinary circumstances. TRAP 28.4(b)(2) Due to the accelerated deadline, it makes sense to review the clerk s record and speak with the court reporter before filing the notice of appeal. That way, counsel can file the designation of items and the request for the reporter s record contemporaneously with filing the notice of appeal. IV. THE BRIEF When to File & Contents: Twenty days after the appellate record is filed appellant s brief is due. Typically, courts will grant one 20-day extension. Any further extensions will only be granted for a really good cause. The appellee s brief must be filed twenty days after the date the appellant s brief is filed. A reply brief, if any, must be filed twenty days after the date the appellee s brief is filed. The requisites of briefs as well as the applicable timetables are found in TRAP 38. It is a good idea to review this rule before you start to write the brief. In your brief, you must inform the court if you are requesting oral argument. If you have raised some novel issues then by all means request it. Although courts do not generally grant oral arguments, when they do it means an issue has piqued their

9 attention. In that case, oral arguments provide the last opportunity to persuade the court to rule in your favor. Formatting and Word Counts: Texas appellate courts now have unified rules regarding formatting and word counts. TRAP 9.4 specifies the following: (e) Typeface: A document produced on a computer must be printed in a conventional typeface no smaller than 14-point except for footnotes, which must be no smaller than 12-point. (i) Length: (1) In calculating the length count every word except the following: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. (2)(B) A brief and response in an appellate court in an original proceeding: 15,000 words. In civil cases in court of appeals, the aggregate of all briefs filed by a party must not exceed 27,000 words. (2)(C) A reply brief 7,500 words. (2)(D) 4,500 words in the Supreme Court for a petition and response in original proceedings as well as for a petition for review and response. Same limit for a motion for rehearing and response in an appellate court. (2)(E) 2,400 words for a reply to a response to a petition for review in the

10 Supreme Court and a reply to a response to a petition for review in an original proceeding in the Supreme Court. (3) Certificate of Compliance: A computer generated document that is subject to the word limit under this rule must include a certificate by counsel or an unrepresented party stating the number of words in the document. The person certifying may rely on the word count of the computer program used to prepare the document. After Issuance of the Opinion: The court of appeals can only reverse the trial court s judgment in a civil case if it finds not only that an error of law was committed but also that the error either caused the rendition of an improper judgment or probably presented the appellant from properly presenting the case in the court of appeals. TRAP 44 So establishing that the trial court committed an error is not enough. Once the court of appeals issues its judgment a party has 15 days to file either a motion for rehearing and/or reconsideration en banc. Whether to file this motion depends on the result and the issues presented in the case. For example, if there is a dissent and the judgment is adverse to your client it may be advisable to file such a motion. If the court of appeals does not want an opinion to a set a precedent it is designated as a memorandum opinion. Usually, this is done because the decision merely applies well-settled law to the facts of the case. In recent years, slightly less than half of opinions received this designation.

11 Supreme Court: Either party has the right to file a petition for review with the Texas Supreme Court. Last term the court granted slightly over 10% of the petitions it received. Clearly, to have any hope of success the petition must present a meritorious issue. Unless the court orders an earlier filing deadline, the petition must be filed within 45 days of the date the court of appeals rendered its judgment or the date the court of appeals last ruling on a all timely filed motions for rehearing or en banc reconsideration. V. PRESERVATION OF ERROR IN DEFENDING A DFPS CASE Introduction: The rules regarding preservation of error can be very technical although at first glance they appear straightforward. The Supreme Court noted that at times the requirements of preserving error make compliance a labyrinth daunting to the most experienced trial lawyer. State Dept. of Highways & Public Transp. v. Payne, 838 S.W. 2d 235, 240 (Tex. 1992) It is well beyond the scope of this paper to address all of the myriad circumstances whereby trial error can be preserved or waived. Counsel representing indigent parents in CPS cases should be familiar with such topics as how to use responses to discovery requests, particularly the TRCP 194 disclosure request, to exclude evidence; how to challenge evidence which is predicated on a business record affidavit and how to challenge the admissibility of public documents based on relevance. Those topics will not be covered here. Rather it will cover the general requirements for preserving a

12 complaint for appellate review. General Requirements: Compliance with TRAP 33.1 is a prerequisite to presenting a complaint for appellate review. The record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and, (B) complied with the requirements of Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and, (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion and the complaining party objected to the refusal. TRAP 33.1(a) only sets forth the minimum requirements to preserve a complaint for appellate review. In addition, trial counsel must comply with the Texas Rules of Evidence and Procedure. For example, if you are trying to impeach a witness with a prior inconsistent statement under TRE 613 you must first ask the witness if he made the contradictory statement at a certain time and place and to a certain person. If this predicate is not laid then error is not preserved for appellate review. The Complaint Must Appear In the Record, Be Specific and Timely: The appellate court cannot consider any complaints that do not appear in the record. Nelson v. Neal, 787 S.W.2d 343, 346 (Tex. 1990) As noted above, the record

13 consists of the clerk and reporter s records. The clerk's record includes the written materials contained in the trial court's file such as pleadings, the final judgment, docket sheet and notice of appeal. The reporter's record contains the transcription of the oral proceedings occurring in the trial court. Therefore, your specific complaint must be raised in a written request, objection or motion contained in the clerk's record or if oral it must be transcribed by the court reporter. Certain motions must always be in writing such as motions for continuance or to transfer venue. TRCP 251 & 257 It follows that if your specific complaint is not found in the appellate record it is waived. TRAP 33.1 also requires that the request, objection or motion be timely and stated with sufficient specificity to make the trial court aware of the complaint. Complying with this section of the rule is not always easy particularly in the heat of trial. The timeliness requirement entails using common sense. Similarly, the specificity requirement is not subject to a precise definition. Nevertheless, it is clear that if you object to a question posed by opposing counsel without stating the grounds or you state the incorrect ground; i.e. based on relevance and the proper ground is hearsay, you have not preserved error. The Court Must Rule On the Record. Making a valid objection is not enough. In order to preserve error, you must obtain a ruling from the trial judge on your objection. The ruling does not have to be in a signed separate order and it may even be ruled upon implicitly. TRAP

14 33.1(a)(2)(a). If there is no signed order, the court's ruling may be found on the docket sheet or in the reporter's record. Appellate courts have been grappling one a case-bycase basis with the issue of whether a ruling is implicit. To avoid this problem always endeavor to have the court make an express ruling on the record. Unfortunately, if the trial court refuses to rule on your request, objection, or motion, you must object on the record to the refusal in order to preserve error. TRAP 33.1(2)(B) Preserving Error for Erroneously Excluded Evidence: What happens when you are trying to admit evidence and the court rules that it is inadmissible? TRE 103(a)(2) provides that a ruling excluding evidence is not reversible error in the absence of an offer of proof. The offering party must make the substance of the evidence... known to the court by offer unless it was apparent from the context in which the questions were asked. The offer of proof need not be made at the time the evidence is exclude but it must be made before the court's charge is read to the jury. TRE 103(b). The safest way to preserve error for the exclusion of evidence is to comply with each of the following steps: (1) attempt during the evidentiary portion of the trial to introduce evidence; (2) if an objection is lodged, specify the reason the evidence is admissible; (3) obtain a ruling from the court; and, (4) if the judge rules the evidence inadmissible, make a record, through a formal or informal bill of exception of the precise evidence the party desires admitted. Richards v. Comm'n for Lawyer Discipline,

15 35 S.W.3d 243, 252 (Tex. App. - Houston [14 th Dist.] 2000, n.p.h) Practical Considerations: Be specific and concise: If you state on the record, Objection. Assumes facts not in evidence and the Judge responds Overruled. You have just preserved error. On the other hand, if you merely state Objection, without stating the specific ground for your objection, it is waived. Similarly, if you state the incorrect ground; i.e., your objection is hearsay when it should have been relevance, you have also waived error. Never argue with the Judge: This seems so obvious but it happens all too frequently. After the Judge says denied, granted, sustained or overruled just keep quiet. It's an argument you can t win; it doesn t help your client and does absolutely nothing to preserve error on appeal. To Object or Not to Object: There may be tactical reasons for not objecting to inadmissible hearsay. For instance, a document being offered into evidence from the DFPS caseworker's file may contain inadmissible hearsay that is beneficial to your client. In that context, a hearsay objection is clearly unwarranted. In other situations, you may decide to refrain from objecting to the offered inadmissible evidence because it is simply immaterial in that it neither supports DFPS' case against your client nor supports your client's defenses. In short, use objections judiciously. The Judge Does Not Rule: This is as much of a diplomatic problem as a legal one. Of course, you must first request as respectfully as possible for the court to make a ruling. If the court still refuses you must then object to the refusal on the record.

16 Fortunately, our juvenile district court judges will make a ruling when requested.

17 EXHIBITS NO J IN THE INTEREST OF IN THE DISTRICT COURT JOHN DOE OF HARRIS COUNTY, TEXAS CHILD 31_ TH JUDICIAL DISTRICT MOTION TO WITHDRAW, APPOINT APPELLATE COUNSEL AND CONFIRM INDIGENCE TO THE HONORABLE JUDGE OF SAID COURT: JANE DOE, respondent, moves the court to permit her court appointed trial counsel to withdraw, appoint appellate counsel and confirm she is indigent for the purpose of appeal and in support thereof shows: 1. Respondent s appointed attorney ad litem, John Lawyer, does not practice in the area of appellate law and she requests that the Court appoint counsel to represent her on appeal. As additional grounds, trial counsel s current workload does not permit him to undertake an accelerated appeal at this time. 2. The Court previously found respondent indigent. Her financial circumstances have not changed since that finding was made and she is, therefore, presumed to be indigent for the purpose of appeal pursuant to TRAP 20.1(a)(3). WHEREFORE, JANE DOE, respondent, prays that this motion be in all things granted. Respectfully submitted, John Lawyer TBN: Texas St., Ste. 0 Houston, TX lawyer@gmail.com Tel: (713) ; Fax: (713) CERTIFICATE OF SERVICE

18 NO J IN THE INTEREST OF IN THE DISTRICT COURT JOHN DOE OF HARRIS COUNTY, TEXAS CHILD 314 TH JUDICIAL DISTRICT ORDER APPOINTING APPELLATE COUNSEL AND CONFIRMING THAT RESPONDENT IS INDIGENT On this day the Court considered the motion to withdraw and appoint appellate counsel brought by JANE DOE, respondent as well as to confirm the Court s prior finding that respondent is indigent. The Court after considering the evidence and arguments of counsel finds that good cause exists to permit, John Lawyer, to withdraw as respondent s attorney of record and appoint appellate counsel. The Court further finds that respondent is indigent for the purposes of appeal; accordingly, it is ORDERED that: 1. JOHN LAWYER be permitted to withdraw as respondent s attorney of record and JANE ATTORNEY is hereby appointed as her appellate counsel. 2. The Harris County District Clerk and the court reporter of this court shall, upon request of respondent s counsel and at no cost to respondent or her counsel, prepare and file with the Court of Appeals the clerk and reporter s records; and, 3. There shall be no charge to respondent or his counsel for any court costs and/or filing fees assessed in the trial court or in any appellate court. SIGNED:. Judge Presiding EXHIBIT A

19 NO J IN THE INTEREST OF IN THE DISTRICT COURT JOHN DOE OF HARRIS COUNTY, TEXAS CHILD 31_ TH JUDICIAL DISTRICT NOTICE OF APPEAL TO THE HONORABLE JUDGE OF SAID COURT: JOHN DOE, SR., a respondent in the above entitled and numbered cause, files his notice of appeal and in support thereof shows: 1. The trial court, cause number and style of this case are shown in the above caption. 2. The order being appealed is entitled Decree of Termination dated March 1, The party desiring to appeal is John Doe, Sr.. 4. This appeal is taken to the First or Fourteenth Court of Appeals at Houston, Texas. 5. A motion for new trial was timely filed in the trial court. 6. This appeal involves the termination of the parent-child relationship as defined by TRAP 24.4 that entitles respondent to an accelerated appeal. 7. Appellant is presumed indigent and may proceed without advance payment of costs as provided by TRAP 20.1(a)(3). Respectfully submitted, John Lawyer TBN: Texas St., Ste. 0 Houston, TX lawyer@gmail.com Tel: (713) ; Fax: (713) CERTIFICATE OF SERVICE EXHIBIT B

20 NO J IN THE INTEREST OF IN THE DISTRICT COURT JOHN DOE OF HARRIS COUNTY, TEXAS CHILD 31_ TH JUDICIAL DISTRICT JOHN DOE SR. S MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: JOHN DOE, SR., respondent and the established father of the child who is the subject of this suit, files his motion for new trial and in support thereof respectfully shows: 1. Respondent moves the Court to set aside the final order scheduled to be entered on March 1, 2012, terminating his parental rights to JOHN DOE ( child ), based on (1) (E), (O) and (2), Texas Family Code, because the evidence is factually and legally insufficient to support the Court s findings that: a. Respondent engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well being of the child as required by (1)(E); b. Respondent failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of the child who were in the managing conservatorship of DFPS for not less than 9 months as a result of the child s removal from respondent under Chap. 262 for abuse or neglect as required by (1)(O); and, c. Termination of respondent s parental rights is in the best interest of the child as required by (2). WHEREFORE, JOHN DOE, SR., respondent, prays that the Court set aside the final order dated March 1, 2012 and grant a new trial. Respectfully submitted, John Lawyer TBN: Texas St., Ste. 0 Houston, TX 77002

21 Tel: (713) ; Fax: (713) NOTICE OF ORAL HEARING PLEASE BE ADVISED that the foregoing motion is set for oral hearing on March, 2014 at 9:30 a:m. in the 315 th District Court of Harris County, Texas. John Lawyer CERTIFICATE OF SERVICE NO J IN THE INTEREST OF IN THE DISTRICT COURT JOHN DOE OF HARRIS COUNTY, TEXAS CHILD 31_ TH JUDICIAL DISTRICT ORDER ON MOTION FOR NEW TRIAL On this day the Court considered the motion for new trial brought by JOHN DOE, SR., respondent, and the Court after considering the evidence and arguments of counsel; ORDERS that said motion be GRANTED/DENIED. SIGNED:. Judge Presiding EXHIBIT C