On Zombie Animation and Interpreting Splits Among Texas Court of Criminal Appeals Judges

As a long time Texas Court of Criminal Appeals watcher, Grits finds it pays to pay attention when usual factions split. Regardless of the relative importance of the case, these divisions perhaps can hone our understanding of individual members' priorities, which sometimes can be masked by their alliances when the court votes in factions.

For example, one almost never sees Judges Barbara Hervey and Michael Keasler split with Presiding Judge Sharon Keller in court opinions. But the case State v. Copeland found the two of them siding against Keller and Judge Kevin Yeary to support a trial judge's suppression of prescription pain pills found in Ms. Copeland's makeup bag at a traffic stop. In fact, Hervey authored the majority opinion, while Keller authored the dissent.

In essence, the trial judge suppressed the results of the search and the state has now appealed three different times, being denied each time. The last go-round, Keller's faction succeeded in requiring the lower courts to more fully articulate their reasoning for upholding suppression, but the results came back the same. In a dissent to that ruling, Judge Larry Meyers opined that:

As demonstrated by the multiple remands of this case, it is clear the majority is just trying to find a defibrillator it can hook up to the court of appeals to shock it into finding a heartbeat to support reversal of the trial court's grant of this motion to suppress. It seems to me, however, that the coroner has already put a toe tag on this case and we are just wasting judicial resources by trying to avoid the correct conclusion that the evidence was validly suppressed. Had the roles in this case been reversed, and it was Appellee seeking review of the court of appeals' decision, Appellee's issues would have been long ago dispatched to the funeral home to be buried alive.

So what we're witnessing is Keller looking at a petty case long ago fitted for a "toe tag," to use Judge Meyers' analogy, and thinking, "Still, we could animate it as a zombie."

It's quite possible that Keller is the smartest judge on the court, and her perspicacity shows in this opinion. She tries to portray the majority decision upholding the trial court's ruling as somehow infringing on the trial judge's authority because they didn't yet again remand the case for more fact finding instead of respecting the judge's original decision. But after giving prosecutors so many bites at the apple, her fellow judges clearly had enough. Hervey's brief does not out-argue her, the other side just out-voted her.

Grits' interest in the procedural questions debated in this latest round of opinions is fairly minimal. More interesting to me is the rare split among what I've called the Government-Always-Wins (GAW) faction on the Texas Court of Criminal Appeals. Normally, Keller, Hervey, and Keasler tag team on the court. Keller is the principle intellect among that faction, Hervey provides an enthusiastic choir for the Presiding Judge to preach to, and Keasler is their attack dog, aggressively hounding the other judges into siding with the GAW group. (Judge Yeary often votes with this faction, with the notable exception of several death penalty cases, but he's not been on the court long enough for Grits to ferret out his motivations from the record.)

So it's helpful to understand when and why the GAW faction splits apart, and this case perhaps provides some insight in that regard. To me, the issues at stake were less about the procedural matters, which are largely a diversion, and instead boiled down to a simple question: Do the judges' ultimate loyalties lie with the prosecution or the judiciary?

For Keller, the Government-Always-Wins moniker pretty much means always (with the notable and interesting exception of First Amendment cases, where she is the court's most informed and progressive jurist). It's difficult to find opinions in workaday cases in which she does not mirror or amplify the prosecution's position in a case, and she writes a disproportionate number of opinions for that faction.

For Hervey and Keasler, though, they are ultimately judges first and their core loyalty lies with the judiciary, not the prosecutor's office. When push came to shove, they backed the trial judge's play because, in fact, he had authority to make it. Plus, at some point CCA judges are obliged to take into consideration judicial economy and the absurdist waste of resources expended over a few pain pills found in a makeup bag at a traffic stop five years ago.

While such an interpretation amounts to tea-leaf reading, that's the inference I'd take from this rare split.

Because so many elected judges in Texas criminal courts are either former or wannabe prosecutors in robes, usually the interests of judges and prosecutors don't diverge in the issues the court faces. Thus, the CCA has adopted policies of near total deference to trial judges' discretion on these Fourth Amendment questions, which clearly Judge Keller laments when judges act contrary to her preference.

Hervey and Keasler are being consistent and also acknowledging that there are limits to how far they'll go to maximize state power. Judge Keller's limits in that regard remain mostly unexplored.