Mea culpa: Keller, Hervey surprise while Alcala prevails in absence

A reader sends Grits a note to "keep [me] honest," declaring "In your post from June 20, 2011 about Judge Alcala, you talk about an opinion in which she dissented while she was still at the 1st Court of Appeals." Readers may recall the piece he's discussing analyzed notable criminal opinions authored by rookie Court of Criminal Appeals Judge Elsa Alacala while she was an appellate judge on the First Court of Appeals in Houston. On the item in question, Grits had written:

In one of Alcala's rare dissents in a criminal case, she would have reversed and remanded a conviction because the trial court did not instruct the jury to consider the possibility of convicting only on a lesser included offense, since the jury could have plausibly inferred that the defendant was not in immediate flight when an assault occurred a half hour after a theft.  I don't suspect for a moment Judge Keller or Hervey on the CCA, for example, would have blinked before signing off on the majority opinion , but Alcala's dissent smartly parses the case law to make distinctions between the instant case and those cited by her colleagues affirming the decision." (emphasis added by my esteemed reader)

Continued my reader, "This case made it to the CCA, and an opinion written by Judge Hervey was handed down 3 days ago.  It actually affirmed Judge Alcala's dissenting opinion from the Court of Appeals. And it turns out you were wrong about Judges Keller and Hervey in this instance." Indeed! The case was overturned on those grounds and sent back to the lower courts for a harm analysis. Judge Hervey authored the opinion in the case, siding with Alcala's dissent (Alcala sat out arguments because she heard it at the appellate level).

So my apologies, Judge Keller and Hervey, for underestimating you, but congrats to Judge Alcala, whose arguments ruled the day even without the presence of her vote. And for what it's worth, I appreciate the reader "keeping [me] honest." My pessimism about the court was unfounded, at least in this case and indeed in several notable, recent rulings. In such matters, I'm pleasantly surprised to see evidence stack up contrary to my expectations. It's particularly nice to see because after Ex Parte Robbins this summer, your correspondent was getting a little jaded. Mea culpa.