By Rob Kepple
TDCAA Executive Director in Austin
The recent passing of former Court of Criminal Appeals Presiding Judge Michael McCormick invites us to re-examine just how much influence a single person can have on the world around us. Judge McCormick served on the Court of Criminal Appeals as an associate judge from 1981 to 1988, then as the presiding judge from 1989 to 2000. I will suggest to you that the presiding judge’s influence on our criminal jurisprudence can’t be overstated. During his tenure, Texas criminal law evolved from a rigid and sometimes illogical series of rules in the 1970s and ’80s to a more common-sense approach focused on actual harm and fairness.
When I was a young Texas prosecutor in the 1980s, our criminal jurisprudence felt like a series of bear traps for the unwary or inexperienced. The legal principle of fundamental error was applied to all sorts of errors, and the law dispensed with the need for objection or a showing of harm. If a fundamental error occurred, the case was reversed on appeal.
Enter Funda the Mental Error, a character Judge McCormick made up in homage to Johnny Carson’s old Carnac the Magnificent bit on “The Tonight Show.” When the judge would present case updates at TDCAA conferences, he dressed like Carson’s Carnac character, a comedy fortune teller. In Carson’s version, Carnac would dramatically hold a sealed envelope to his forehead and announce the punchline to the joke that was inside the envelope, then open the envelope to read the set-up to the joke. In Judge McCormick’s version, Funda would hold up an envelope containing an appellate opinion and try to predict the fundamental error that demanded a reversal. Truly entertaining—but painful too.
For prosecutors and the general public, it seemed like things changed with a 1993 unpublished opinion from the CCA in Lionel Gonzales Rodriguez v. State—the infamous “jury shuffle” case. (Read a PDF of it below.) Lionel Rodriguez was convicted of the random and brutal murder of a young woman named Tracy Gee; he shot her in the head and dragged her lifeless body out of her car at a Houston intersection just because he wanted the car. (Read about it at www.clarkprosecutor.org/html/death/US/rodriguez1081.htm.) In an unpublished per curiam opinion to which Judge McCormick and three other judges dissented, the Court of Criminal Appeals reversed the conviction because the trial court had allowed not one, but two jury shuffles of one of 12 mini-panels used in jury selection. The Court summarily refused to consider harmless error, even though no one could, or did, argue that a second shuffle caused harm.
The reversal of this conviction outraged the public and reverberated through the courts and legislature. Indeed, Tracy Gee became a cause célebre and is memorialized with a community center in Houston named in her honor. In the wake of that case, Judge McCormick led the Court in a new direction that focused on harm and common sense. Without fanfare, the presiding judge and his Court slowly refashioned Texas jurisprudence with a dose of common sense and justice. What a wonderful legacy for one of the nicest and most unassuming people you would have ever met. He will be dearly missed.
Civil Practitioner Boot Camp
In conjunction with our yearly Advanced Trial Advocacy Course, which we host every summer in Waco, TDCAA hosted its first-ever Civil Practitioner Boot Camp. The purpose of the boot camp was to afford civil practitioners the kind of trial skills and practical insights that have been the focus of our criminal law training efforts. By all accounts it was a great success. I’d like to thank our training team, Brian Klas, Andie Peters, and LaToya Scott, for working so hard to put on a great program, and the faculty (listed below) for the time and expertise they contributed.
Deborah Bonner
C. Scott Brumley
Amy Davidson
Leslie Dippel
Michael Hull
Rebecca Lundberg
Carlos Madrid
Ann Montgomery
Dwayne Simpson
Legislative Update
The legislature was plenty busy in 2023, making up for a pandemic-era low in activity in 2021. We saw a record number of new crimes (58!) and a host of new enhancements. What has garnered the most interest so far: fentanyl murder, the Texas Racketeering Act, and changes to the child pornography laws.
I can report that rural prosecutors are very happy that the legislature, with the leadership of Lieutenant Governor Dan Patrick, has invested more than ever in distributing state money to smaller jurisdictions to bolster the salaries of prosecutor office staff, which allows existing employees to stay longer and attracts new workers to come on board. Many of you have used the term “game changer” with regard to the new salary funding.
Stay tuned as the comptroller’s office continues to work out the details of that program.
DWI training in 2023 and 2024
Most of you know W. Clay Abbott, our DWI Resource Prosecutor, quite well. Clay is a true road warrior, spending weeks on end crisscrossing the state in the TDCAA van (lovingly named Frank the Tank) to offer DWI training for prosecutors and law enforcement alike. Clay’s grant has been renewed for another year, so now is the time to contact him and make your request that he brings his outstanding training to your jurisdiction! Drop him an email at Clay.Abbott@tdcaa .com to schedule a date in 2024.