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Republican Primary, Tuesday, March 1, 2016

Texas Court of Criminal Appeals

The lone Democrat on the court, incumbent Judge Larry Meyers, who was elected as a Republican but switched parties last cycle, is running unopposed in the Democratic Primary. Three Republican District Judges filed. This race may well end up in a Republican Primary Runoff.

We feel that Chris Oldner is the best choice for voters in this race. Judge Oldner is a graduate of Texas Tech School of Law. His entire career has been in criminal law. He began as a prosecutor in the Smith County D.A.'s office and then in Collin County where he quickly rose to Chief Felony Prosecutor. He joined the judiciary in 2000 on a Collin County Court at Law bench and then the 416th District Court. He is board certified in Criminal Law. His resume of bar activities, awards, publications and accomplishments is arguably the best one of the three candidates in this race.

He was assigned the task of overseeing the grand jury that was convened to hear the case against Collin County native Texas Attorney General Ken Paxton. Contrary to what many believe, he is not the judge who hired the two special prosecutors in that case and agreed to their fees. After the indictments were returned, Judge Oldner no longer has any role in that matter.

But many of Paxton's supporters have attacked Oldner. Irregularities in the grand jury process were alleged but those matters were addressed by Judge Gallagher, the judge presiding over the Ken Paxton case and determined that Judge Oldner did not violate any rules and dismissed the complaints. The other Collin County District Court judge in the race, Ray Wheless has also been critical of Oldner on issues related to the Paxton matter. A Paxton supporter recently filed a complaint with the Judicial Conduct Commission against Oldner and announced it to the press. That is a common political tactic. The Commission will not rule on the issue until long after the election.

It should be noted that the McKinney Police Association, the Collin County Deputies Association and the Dallas Police Association have endorsed Oldner.

Judge Mary Lou Keel is a District Judge from Houston. She spent many years in the District Attorney's office before ascending to the bench in 1994. A University of Texas School of Law Graduate, Keel is board certified in Criminal Law.
Several cases are problematic for Judge Keel.

One of them is the Brandy Briggs case where a young mother was imprisoned for five years for killing her infant daughter. Despite the autopsy report's finding of cause of death being changed from "homicide" to unknown by a new medical examiner, and after medical testimony from three doctors who testified that the cause of death was from infection and medical treatment errors, Judge Keel refused to allow a new trial. An appeal based on ineffective assistance of counsel was also turned down by Judge Keel. Ultimately the Court of Criminal Appeals did release Briggs from prison, disagreeing with Judge Keel in the case.

Another case that in our view is controversial is the Mary Ann Rivera case. While most people believe (rightly so) that there is no statute of limitations in murder cases, Judge Keel dismissed the case against a 76 year old woman who spent more than four decades on the run after being accused of killing her husband by dousing him with hot grease.

Mary Ann Rivera was arrested after a Texas investigator tracked her down in Lake Park, Georgia. She was brought back to Houston to face the murder charge.
Prosecutors claim Rivera threw grease on her husband, Cruz Rivera, in October 1970 at their home in Houston. He died several days later from liver problems caused by his burns. Authorities say she fled with her three children, including twin sons, after being indicted in November 1970 and eventually made her way to Georgia.

Jules Johnson, one of Rivera’s public defenders, said District Judge Mary Lou Keel dismissed the charge because too much time had elapsed between Rivera’s indictment and her arrest, making it difficult for her to put on a defense.

Johnson had filed a motion saying Rivera’s Sixth Amendment right to a speedy trial had been violated in the case. Let's see here. She fled the state after she was indicted for murder, evaded arrest for 40 years and gets away with murder because her 6th Amendment right to a speedy trial had been violated. Really?

Another case that raised eyebrows was the case of Former State Senator Don Henderson. After imbibing heavily, Henderson was driving his Jaguar, crossed the midline colliding head-on with oncoming traffic, severely injuring three people. They all eventually recovered. He was charged with three counts of intoxication assault and a Harris County jury found him guilty. He chose to have the jury determine his punishment and they gave him four years in prison and three $10,000 fines. He appealed, first to the Court of Appeals where he lost and then to the Court of Criminal Appeals where he lost again. He was sent to prison to serve his time but after only five months in jail Judge Keel ordered him released on "shock probation" and dismissed two of the $10,000 fines.

While there is a role for shock probation in certain cases it is normally used when a defendant admits guilt, accepts responsibility and exhibits remorse. This author has asked 12 different District Court judges from all over the State of Texas if they have ever heard of using shock probation to release a prisoner-- over a jury sentencing of hard time. None of them had ever heard of it, expressed amazement and said that is not something they would ever do. The common thread of the responses was that the judge should not overturn the jury's decision in a case like this.

We cannot recommend a vote for Judge Keel.

The third candidate is Collin County Judge Ray Wheless. Prior to joining the bench he was a personal injury trial lawyer. He is board certified in Civil Trial Law and Personal Injury Trial Law but not boarded in Criminal Law.

He was interviewed at the time of the Florida recount debacle in 2000 and expressed his opinion that the U. S. Supreme Court should not have intervened. (It was that intervention that led to George W. Bush becoming the 43rd President of the United States instead of Al Gore.)

He has been attacked by Judge Keel over his record of reversals by the appellate court on many of his rulings, and most frequently his rulings that were reversed were when he ruled against the State and for the criminal/accused criminal.

He has attacked both of his opponents. Judge Keel over several cases, including the Brandy Briggs case cited above as well as reminding voters that Keel's husband is a Democrat personal injury lawyer. He is critical of Judge Oldner's handling of the Paxton grand jury indictments.

Collin County seems to be divided into two camps- a pro-Ken Paxton camp that is behind Wheless and against Oldner and a smaller group who support Judge Oldner.

(The only open seat, currently held by retiring Republican Judge Cheryl Johnson, drew four Republican filers and this race could easily end up in a runoff)

We recommend a vote for Judge Sid Harle. Sid Harle is a super star in the Texas judicial world. A St. Mary's Law school graduate, Judge Harle entered private practice as a criminal defense lawyer in San Antonio. He won several high profile cases and quickly earned a reputation as "one of the good ones". He then was offered a job by the District Attorney as a chief felony prosecutor, bypassing the lower echelon positions that young prosecutors normally get. He again was very successful in the courtroom. After four years there, he returned to private practice until 1988 when Gov. Bill Clements appointed him to the District Court. He is still serving on that bench after 25 years. He has tried capital murder cases as a defense lawyer, a prosecutor and a trial judge. He has tried more capital murder cases than any other currently sitting judge in Texas. None of those cases were overturned on appeal. He was the first judge in Texas to rule that a viable but unborn fetus was a person in a murder case when the pregnant mother was murdered, making it a "capital" case. That ruling was appealed all the way to the U. S. Supreme Court and upheld. He was the first judge to preside over a capital murder case involving the mental retardation defense after the U.S. Supreme Court ruled that mentally retarded individuals could not receive a death sentence. He developed the protocols for defining mental retardation, the steps in the process that have to be followed in trying such cases and after a conviction in the case, it was appealed to the U. S. Supreme Court which concurred with Judge Harle's rulings. The protocols developed by Judge Harle are still the ones universally followed since the legislature has yet to address the issue and pass legislation codifying the procedures.

He was also the judge who presided over the investigation of the miscarriage of justice when Michael Morton was wrongfully convicted of murdering his wife. After 25 years in jail, Judge Harle uncovered irrefutable evidence of Morton's innocence that had been withheld from the defense lawyer's in the case by the District Attorney in Williamson County. He exonerated Michael Morton and instituted a special court of inquiry that found the D.A (who by then was a District Judge) culpable, leading to the Judge resigning from the bench, relinquishing his law license and going to jail.

Since the Bexar County Bar Association began doing bar polls about ten years ago, Judge Harle has finished first every year. Despite now running for statewide office and campaigning extensively across every part of the state since early 2015, Judge Harle's court has the most current docket of any Bexar County District Court.

He has been endorsed by Senator John Cornyn (who served as a District Court Judge in San Antonio alongside Judge Harle), the San Antonio Express News, every significant law enforcement agency in Bexar County, numerous Tea Party organizations, Houston Super Lawyer Rusty Hardin and many more.

In its endorsement of Judge Harle, the Dallas Morning News said: " The 59-year-old judge is the only candidate in this Texas Court of Criminal Appeals race with gravitas in all three areas of the law — prosecution, defense and on the bench."

STEVE SMITH (no image available)
Perennial candidate Steve Smith (a.k.a. Steven Wayne Smith) is making his 6th run for statewide judicial office. The previous five were for the Texas Supreme Court. He won one time when he defeated the highly regarded Judge Xavier Rodriguez. Smith was turned out of office two years later by the voters.

This is his first run for a criminal court. A search of the records of every appellate court in Texas fails to find a single criminal case that he has any involvement in.

Having a law license and having been a lawyer for at least 10 years, but having no criminal law experience hardly seems qualification to serve on the highest criminal appellate court in Texas.

Mr. Scott Walker is a solo practitioner specializing in criminal law. He has offices in Burleson, Mansfield and Fort Worth. Prior to that he practiced in Marshall, TX and Longview, TX. While he has filed numerous appeals for his clients who were convicted of various crimes, he has rarely, if ever argued a case on appeal.

The only civil appeal he has done (at least in recent years) is when he was sued for non-payment of his credit card debt. He represented himself in the trial court and lost. He appealed to the Court of Appeals where he lost again and instituted an appeal at the Texas Supreme Court which he failed to pursue.

While he may need the job to pay his bills, the State of Texas does not need someone with that track record and paucity of credentials on the Court of Criminal Appeals.

Mr. Webster is currently an assistant in the District Attorney's office in Williamson County. His campaign seems to be based on touting his conservative credentials and touting his mother's long standing opposition to abortion.

He has very limited experience in criminal law, and has tried perhaps as few as two felony criminal cases in his brief career . He lost the only murder case he tried as a prosecutor. He no longer tries cases for the Williamson County District Attorney's office.

There is no record of his doing any criminal appellate work. He is barely constitutionally qualified to run for this office based on the length of time he has had a law license to practice in Texas.

(Republican incumbent Judge Mike Keasler is running for reelection and he drew a Republican Primary opponent.)

We recommend Michael Keasler to the voters. Judge Michael Edward "Mike" Keasler, a fifth generation Texan, has been a conservative anchor for this court since he joined it in 1999. Republican voters should cast their vote for him without reservation. The comparison between Judge Keasler's qualifications and those of his opponent should leave no doubt in any voter's mind.

Keasler earned his B.A. (1964) and L.L.B. (1967) degrees from the University of Texas at Austin.

After two years in private practice, he joined the Dallas County District Attorney's Office in 1969 where he spent the next 12 years. He was a senior felony chief prosecutor in the Career Criminal Division and tried over four hundred cases to a jury.

In 1981, Gov. Bill Clements appointed Keasler to the 292nd District Court in Dallas, a position he held for over 17 years. In 1996 he ran unsuccessfully for the Court of Criminal Appeals but won the election in 1998.

His resume is incredibly long and impressive. A few selected highlights include (past and present)

Chair of the State Bar Judicial Section
Member of the Board of the State Bar Judicial Section
Chair of the Texas Center for the Judiciary's Board of Directors
Chair of the Dallas County Juvenile Board
Chair of the Dallas County Criminal District Judges
Presiding Local Administrative Judge
Chair, Dallas County Criminal District Judges, 1983
Chair of the ABA State Trial Judges' Ethics Committee
Dean of continuing judicial education in Texas (1990-97)
Instituted the Texas College of Advanced Judicial Studies in 1993
Dean of the Texas College of Advanced Judicial Studies
Faculty member at The National Judicial College since 1992
Member of The American Law Institute
Fellow of both the Texas and American Bar Foundations
Court of Criminal Appeals liaison to the State Bar Board of Directors

He teaches judicial ethics, constitutional criminal law, statutory construction, and appellate standards of review nationally.

RICHARD DAVIS (no image available)
Mr. Richard D. Davis is a solo practitioner in Burnet, Texas. He received his law degree from Baylor University School of Law in 1982. He lists his practice as including Personal Injury, Criminal, Family, and Commercial Law.

He has run for judicial office twice before. He lost in the Republican Primary race for the 33rd District Court race in 2012. He then ran for the Court of Criminal Appeals in 2014. He did little if any campaigning in 2014 and came in third in a three way Republican Primary. He lists no Courts of Admittance on his State Bar of Texas practice profile page. He is not board certified in any area of the law.

The only record available about any contact with any appellate court in Texas involves his representation of a client charged with murder. His client was convicted and sentenced to 75 years in prison in 2012. Davis filed an appeal but it was denied by the Austin Court of Appeals because Davis missed a well known time limit for filing appeals.

He then appealed to the Court of Criminal Appeals which did what is usually does in this circumstance and granted his client the right to appeal. (this is done on the theory of "ineffective assistance of counsel" or more bluntly incompetence of his attorney). The District Court appointed an appellate lawyer to pursue the appeal initially filed by Davis with the 3rd Court of Appeals. That lawyer subsequently filed an "Anders brief" which asked two things of the 3rd Court- first that the appeal be dismissed because it was "frivolous". And secondly he asked the court to allow him to remove himself from the case. The 3rd Court of Appeals agreed.

IN SUMMARY: Davis is now asking voters to put him on the highest criminal appellate court in Texas despite the fact that he has essentially no criminal appellate experience, no judicial experience, and recently convinced that very court that it was his screw-up that caused his client's problem!



Paid for by Texas Bipartisan Justice Committee;
John Coppedge, M.D., Treasurer
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