When I’m retained to write a petition for discretionary review in the Court of Criminal Appeals, I have to read their briefs. When I see an interesting opinion out of one of the intermediate courts or the CCA I read the briefs that the decision is based on.

It’s not too pretty at all.

I use that as a writing test for potential law clerks. A fairly competent law student will find 15 errors in this one paragraph. You can probably spot three errors in the first sentence.

It’s the first paragraph of the argument section of a petition for discretionary review. It is intended to convince the Court of Criminal Appeals that the issue is interesting and important. “Interesting and important” is not, I think, the message conveyed by fifteen errors in 129 words.

If I were a judge, this paragraph would make me not want to hear more from this lawyer.

The PDR is one filed by a chief appellate public defender. This is not a dig at appellate public defenders generally. Some of the best appellate lawyers I know are in public defenders’ offices. This is just ordinary appellate lawyering.

Commoditized Error

Ordinary appellate lawyering is not only bad writing, but also cookie-cutter lawyering: read the trial record, find objections, see if error was preserved, brief them. Argue legal insufficiency if you can—that doesn’t require a trial objection. If you see jury-charge language that you know is controversial, argue that it was harmful and that the harm was egregious.

All of this is commoditized error. You don’t need any special creativity to find the errors that anyone can find. Any appellate lawyer can do it. A frontier LLM (Opus 4.6, as of the writing) can do it as well as any lawyer, and can write the outline (but can’t for the life of itself give you accurate quotations from real cases).

But this error that Opus 4.6 and any appellate lawyer can recognize, judges and prosecutors can also recognize. That’s not to say judges don’t commit reversible commoditized error. They do it every day, mostly because:

• trial lawyers don’t recognize it;
• judges listen to prosecutors;
• prosecutors, even if they recognize it, are too arrogant to “lose” an argument that will result in the avoidance of error.

Three Types of Case

So generally we can see three types of case:

1. The lost cause. The State tried a clean case, the judge followed the law, and even if the defense made all the right objections there’s nothing that will win on appeal. Maybe 95% of cases.
2. The sure thing. The judge screwed something up after trial counsel preserved some error by warning him or her; or the jury charge omitted something that it had to include. Maybe 3%.
3.  The hidden win. There was error that the defense didn’t object to and didn’t have to; or error on which the law is not yet clear; or error on which the law appears clear but is (because of something that courts have in the past not duly considered) incorrectly decided. Maybe 2% of cases.

100% of appellate lawyers will catch the rare sure thing.

Ten percent of lawyers will reliably catch the error that didn’t have to be preserved.

Five percent will reliably catch the error on which the law is not clear, and will write a brief that will convince the court to clarify the law in this client’s favor.

One percent will reliably find and make the argument that turns the law from unfavorable to favorable.

I’m probably being charitable in those percentages. But here’s a graph showing how I picture it.

The interesting stuff happens between 0% (the case nobody could win) and 100% (the case anyone could). And in that arena, 80% of appellate lawyers aren’t even showing up to play.

90% of people can’t be in the top 10%. And where—as in criminal appellate law—you have to be in the top 10% to accomplish things that not everyone can accomplish, that means that 90% of people are mediocre.

A Real-Life Hidden Win

Let me give you an example.

S., a lawyer, was convicted in a jury trial of a drug crime. In the trial he had taken on the role of lawyer as well as client. He had cocounsel, so he was not doing it alone.

On appeal, he had appointed counsel, D. When S. sent me D.’s brief draft, I saw that D. had raised three points of error. I reviewed the appellate record and found that the first and second were argued about at trial but the record did not show error, and the third was an ineffective-assistance-of-counsel claim based on  trial counsel “opening the door” to admission of a statement that had previously been suppressed, by cross-examining the arresting officer in a way that suggested someone might have planted the drugs on S.

Ineffective assistance of counsel is really hard to prove on direct appeal, because the record on direct appeal almost never shows that the decision was not a valid strategic choice. That was a problem here. The greater problem, however, is S.’s role as cocounsel on the case. You don’t get to claim ineffective assistance of counsel when you were counsel. Even if you could, the record did not show that S. had not acquiesced to his cocounsel’s strategy.

S.’s trial team (which included S.) might have had a strategic reason to open the door to the suppressed evidence. Sometimes as trial lawyers we will let into evidence one thing that we would rather not have in evidence, in order to get something else more important admitted.

But what I wondered, on reading D.’s brief and the trial record, was whether S.’s team had in fact, by aggressive cross-examination of the arresting officer, opened the door to the suppressed statement. You see, the “opening the door” rule is a rule of evidence, and suppression is either constitutional or statutory, and a rule of evidence cannot trump a constitutional or statutory rule.

And in fact the suppression statute, article 38.22 of the Texas Code of Criminal Procedure, includes an opening-the-door provision for impeachment of a testifying defendant. If you get your own statement suppressed under article 38.22, you cannot testify free of impeachment based on that statement. The existence of that provision suggests that the Legislature did not mean for there to be other exceptions to suppression.

So whether it was ineffective or not, S.’s trial counsel’s aggressive cross-examination of the arresting officer did not open the door to the admission of the suppressed statement. That is the point of error that D. should have raised.

Fortunately, I figured this out before the brief was filed, and S. hired me to take over the appeal. We argue it before the court of appeals next month.

I would call this a five-percenter—something on which there is no clear controlling precedent—or maybe even a one-percenter, since everyone else seemed to think the law was clear in a way that I think is clearly wrong.

The fact that D. didn’t even see the issue, despite being appointed to the case and writing a full brief, is the chart in action. D. found commoditized issues (two arguments made in the trial court but for which error was not shown; and an IAC claim that couldn’t survive the record), missed the hidden win entirely, and would have filed a brief that lost a case that should be won.

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• In the first one, the defendant is delusional. He believes that an angel has ordered him to kill the victim, and it’s the right thing to do.
• In the second one, the defendant knows that what he is doing is wrong. He knows that he is making the world a worse place. He killed the victim because he felt like it.

Who are you more mad at? The second guy, right? The law agrees with you—the first guy may be not guilty by reason of insanity (his behavior is excused), but the second guy is going away.

Make those the two ends of a slider. As you move from “entirely delusional” to “entirely clearheaded” is there a point where there’s a qualitative change, or is it a continuum where a killer is more or less wrong? I think it’s the latter. A few points on the continuum might be:

An angel ordered it—the CIA ordered it—nobody ordered it but he’s a danger—he’s not a danger but it’ll make the world a much better place—it’ll make the world a little better place—it won’t make the world any worse—it’ll make the world a worse place but I’m going to do it anyway.

My sense is that the less wrong the defendant, the more worthy of condemnation his behavior, and it’s a continuum.

The urge for retribution is about the feeling that, if we were that person, we would not have done the same thing. Intellectually, it’s fallacious—if we were that person, we would be that person, would have the same genes and same upbringing as him, and we can’t say that we would have done differently.

But the idea that the farther someone transgressed from what we should expect of someone in that position, the greater the punishment should be is not a terrible guide to calibrating retribution. Sometimes retribution is described as “getting even with” the wrongdoer, and there’s no getting even with someone if he just did what an angel ordered him to.

So if—as I believe—the retributive urge is strongest when people deviate farthest from what we expect of someone in their position, then for the same killing the retributive urge should be strongest against the people at the “it’ll make the world a worse place but I’m going to do it anyway” end of the spectrum, and weakest against those at the “an Angel ordered it” end.

My gut tells me that this is how people actually work.

People don’t ultimately choose to be delusional. They become delusional because they are somehow broken, or because someone forces the delusion on them. We might feel frustrated and frightened and sad toward people because they have delusions, but we don’t get mad at them for having delusions (and if we think we do, that anger is probably just frustration and fear and sadness).

Which brings us to Tyler Robinson, and the killing of Charlie Kirk. I have no special information that Tyler did it, but to avoid repeatedly saying “allegedly,” let’s say arguendo that he did.

Nobody ordered Robinson to kill Kirk, but he thought it would make the world a better place. “I had enough of his hatred,'” Robinson reportedly said. “‘Some hate can’t be negotiated out.” Robinson killed Kirk because he thought it would make the world a better place.

I don’t think killing Kirk made the world a better place. It made the world a worse place for Robinson and his family and loved ones, and for Kirk’s family and loved ones. It didn’t silence but amplified the voice of a man whose premise—regardless of his ideas—was “let’s talk about it.”

Even if you think it’ll make the world a better place, that doesn’t justify killing. The law—a thousand years of Western norms—is pretty clear about this. But even if it could justify killing, it was delusional for Robinson to have thought that he was going to make the world a better place.

How do you feel about someone who is so mistaken not only about what effect he expects his actions to have, but also about whether those expected effect justify the actions?

This is not the guy who the angel told to kill. But it also is not the guy who, knowing he was making the world worse, pulled the trigger for the thrill.

Robinson didn’t choose his delusional beliefs. Someone gave him those ideas. I pity him.

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There’s a style of thought experiment that starts Imagine how this looks to someone without your preconceptions ….

Imagine a Venusian looking at your political system.

Imagine a future archaeologist unearthing your bathroom ritual.

Imagine how advanced spacefaring civilizations see your planet.¹

We take things for granted. That’s not entirely a bad thing—none of us have the time or the mental capacity to question everything, much less to re-derive all societal rules from first principles. Most of us don’t have the mental capacity to question anything. And generally our cultural practices are what they are because they work. So we generally go along with the way things are done. We don’t even think about it.

Imagine a dry-land creature looking at our aquatic world.²

A creature that didn’t have our preconceptions and cultural baggage might see things in a different way than we do. What was obvious to it might appear deeply insightful to us.

Lawyers are people too.

Lawyers, like the rest of us, generally go along unthinkingly with the way things are done. When I was in law school, a prof asked, “Why do lawyers use yellow notepads?” His answer: “Because lawyers use yellow notepads.”

Why do lawyers charge by the hour? Because, as Abraham Lincoln famously said, that’s part of their stock in trade. What if we challenged that quantification? We might discover the insight that—

The regime of the billable hour presupposes a distorted and harmful account of the meaning and purpose of a lawyer’s time, and therefore, the meaning and purpose of a lawyer’s life, which, after all, is lived in and through time. The account, which ultimately reduces the value of time to money, is deeply inimical to human flourishing.

—and opt out of the billable-hour regime.

But lawyers take it for granted that the answer that everyone else seems to agree with is the right answer. And so we had yellow legal pads, and we still have the billable hour.

Going Along to Get Along

And if the Eastland Court of Appeals said in an unpublished opinion that the rule is X, and no other court says the rule is Y, then the rule is X and not Y.

Most of the time that works well enough, because everyone is playing by the same rules, and most of those rules are correct. If your client loses because the rules are against him—because the Eastland Court of Appeals said in an unpublished opinion that the rule is one that does not favor him—well, then … he loses, and that’s not your problem.

But most of the time is not all of the time, most of the rules are not all of the rules,³ and the Eastland Court of Appeals⁴ is not inerrant.

I exaggerate: good criminal appeals lawyers don’t think an unpublished opinion from the Eastland Court of Appeals is inerrant. Good appellate lawyers know that unpublished opinions are not authority, so they’re looking at published opinions; they know that sometimes courts of appeals disagree, so they’re seeing what the consensus is among those intermediate courts about whether the law is X or Y. Unless there seems to be serious disagreement among those courts, then the law is not Y.

That is so even though it might seem that Y is the better rule After all, they might say, generations of Texas’s smartest criminal lawyers have had a chance to convince courts that the law is Y, and isn’t it arrogant for us to think that we might succeed where they have not?⁵

Lest you think I’m still being hyperbolic: I admit it when I am, and now I’m not. I read a lot of briefs, and most of them don’t apply reasoning beyond “this is what the cases say.” Very rarely do I see that followed with a cogent “and here’s why they’re wrong.” Still, let’s give our notional appellate bar a little more credit⁶ and trust them not to take the intermediate courts’ word for it, but instead to treat the rule as unsettled until the Texas Court of Criminal Appeals has said that the rule is X.

If the Court of Criminal Appeals has said that the rule is X, there are very few Texas criminal appellate lawyers eager to frame an argument, with authorities, that the rule is Y.

The Court of Criminal Appeals generally attracts a smarter class of judge than the intermediate courts of appeals,⁷ than the intermediate courts. While the Court of Criminal Appeals gets the last word on matters of Texas criminal law, the last word is not always the final word: sometimes the court changes its mind.

Lifting the Constitutional Iron Curtain

An example: Texas has its own constitution, which is different than—uses different words than, was written at a different time and for different people than—the United States Constitution. In 1944 the Court of Criminal Appeals declared that, in interpreting the Texas Constitution’s search and seizure provisions it would follow the United States Supreme Court’s interpretation of the Fourth Amendment.⁸ 47 years later, the Court of Criminal Appeals reversed course. Article I, section 9 of the Texas Constitution has independent meaning, and would be interpreted in the light of Texas legal history.

The Court of Criminal Appeals changed its mind. The appellate bar could have attacked every Texas search-and-seizure case decided between 1944 and 1991.

Did it? What do you think?

Forty-Seven Years in the Wilderness

Almost every lawyer who had been around before the Court of Criminal Appeals decided to simply follow the United States Supreme Court in 1944 was, by the time the Court of Criminal Appeals changed its mind in 1991, dead or retired. The entire criminal appellate bar had never won an appeal based on independent state constitutional grounds.

The behavior had been extinguished. Since then—34 years—there have been three times when a Texas constitutional argument has prevailed over U.S. Supreme Court authority. More often, courts of appeals have noted that criminal appellate lawyers asserted that the Texas Constitution provides more protection than the Fourth Amendment, but then have provided no authority or analysis for why.

The analysis and authority exist, but nobody thought of the analysis. Nobody found the authority.

Enter the Martian Appellate Lawyer

What it took to see the argument and find the authority was a foreigner looking at the law without preconceptions.

The Texas Constitution says such-and-such. The men who wrote that had something in mind. To figure out what that was, we don’t look at cases from past, say, 1900. The farther in time those cases get from 1876,⁹ the less reliable their interpretation. So let’s look at cases from the 19th Century.

In fact, a nearly identical search and seizure provision was in the Texas Republic’s constitution of 1845, so let’s look at what the men who wrote that might have thought. How? Let’s look at pre-1845 cases from Texas and the United States. Even U.S. Supreme Court cases from before 1845 are fair game, because Texans knew about the Fourth Amendment and the Supreme Court.

Looking at those cases, we see that in the young republics judges depended on treatises to tell them what the common law said. So let’s look at those treatises, which in this millennium have been scanned to PDF and made available to the public online.

Those treatises digest cases from the various states, and from England, and refer to other treatises, which are also available online.

Following this trail, the Martian appellate lawyer can show what the Texas Bill of Rights meant to the men who wrote it, and to the first couple of generations of Texans—broadly, the rights of Englishmen under the common law, with some improvements. Not coincidentally, that was what the United States Bill of Rights meant to the men who wrote it.

They meant the same thing, so we’re back to 1944? We can look to the U.S. Supreme Court’s Fourth Amendment jurisprudence in interpreting Article I, section 9?

Yes and no.

In 1944, nobody foresaw cases such as Terry v. Ohio, in which the Supreme Court diverged from the common law to create a category of seizure that was less than an arrest, and that required less than probable cause. The Court of Criminal Appeals had no reason to know that the United States Supreme Court would stop interpreting the United States Constitution with fidelity to prior law.

Our Martian appellate lawyer, though, with hindsight and without preconceptions, might observe that the Supreme Court had diverged from the common law, might argue to the Court of Criminal Appeals that that divergence required a review of all Texas search-and-seizure cases from the iron-curtain era, and might show how a Terry stop, specifically, does not comply with Article I, section 9.

All of which is to say …

Your appellate lawyer should be a Martian.

1. “Mostly harmless.”
2. The Industrial Revolution and its consequences….
3. Statistics are astrology for midwits.
4. If it actually exists.
5. Yes it is, and such arrogance is not only appropriate but a requisite for doing this job.
6. than they deserve
7. Intermediate courts have general jurisdiction, but the Court of Criminal Appeals handles only criminal cases, so the judges can be more specialized) but the Court of Criminal Appeals is no more infallible ((There are no degrees of infallibility—you are infallible, or you are not.
8. The Fourth Amendment would not be incorporated against the States until 1961
9. My impression is that the Civil War devastated the Texas criminal bar, but I know of no scholarship on the topic.

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I came in to help Jemadari in the Court of Criminal Appeals. The San Antonio Court had made the right ruling (the indictment was defective) but for the wrong reason. In the CCA we (Jemadari is a smart guy, and we bounced drafts of his brief back and forth) argued right-ruling-wrong-reason (which works for the party that won in the trial court, but not generally for the defense) and also that the indictment was defective because it charged multiple distinct offenses in one paragraph.

This is my manners-vs.-elements argument: Texas courts of appeals confuse elements of distinct offenses with manners of committing a single offense. It makes a difference because the jury has to be unanimous on all elements of a distinct offense, but does not have to be unanimous on the manner of committing an offense.

So, for example, a person commits a crime if he manages, promotes, or finances a prostitution enterprise.

If the three verbs are manners then the jury does not have to be unanimous on which applies. Four jurors can believe that the defendant managed but did not promote or finance; four that he promoted but did not manage or finance; four that he financed but did not promote or manage. As long as every juror believes beyond a reasonable doubt that one or the other of the manners applies, a guilty verdict is appropriate.

If the three verbs are elements of distinct offenses (managing a prostitution enterprise; promoting a prostitution enterprise; financing a prostitution enterprise) then all twelve jurors have to agree on at least one of the verbs—twelve have to believe that he managed, or twelve have to believe that he promoted, or twelve have to believe that he financed.

Jury unanimity is really important. The Sixth Amendment requires it. So while jurors don’t have to tell us which they agree on, they have to agree on at least one.

But the Sixth Amendment has only required it in state cases since 2020. Before that the U.S. Constitution didn’t care what the elements of a state offense were. A state legislature could define the elements of an offense almost without constitutional limitation.

In 2020 the rules changed, so my manners-vs.-elements argument is new. Nobody had the chance to argue before that the Sixth Amendment limits what state legislatures can call “manners” (instead of elements) of committing an offense.

But I digress. Much more on the manners-vs.-elements argument in coming months, I promise. Back to Jemadari’s case.

Because Jemadari hadn’t made the manners-vs.-elements argument in the Court of Appeals (everyone before me had thought that the various ways to commit the crime were manners, on which the jury didn’t have to be unanimous) the Court of Criminal Appeals didn’t consider it.

And so the Court of Criminal Appeals reversed the San Antonio Court of Appeals. This was the State’s petition for discretionary review, remember, so that meant we lost in the Court of Criminal Appeals, and were to go back to the San Antonio court for consideration of Jemadari’s other points of error.

Back in the San Antonio Court of Appeals, we were able to file a new brief. In that brief I argued the grounds that Jemadari should have argued in the beginning—the right reason for the court’s previous decision; and the manners-vs.-elements argument.

After the briefs were filed, the court wanted to hear oral argument. It’s here:

https://www.youtube.com/watch?v=03ysOH490U8

My adversary in the argument is David Schulman. David does a lot of work on the defense side; I’m disappointed in his contract work for the State. What we do in appellate court matters to more than just the defendant. Appellate lawyers advocate for positions that can make the system better or worse for everyone, and not just the defendant. With his contract work for the State, David is making things worse. (Fortunately, he’s just phoning it in.)

That was May 15th, and last week we got an opinion in the case. We won. Jemadari gets a new trial. And David is talking about filing another petition for discretionary review, but his client (the State) has already spent more than $40,000 defending this appeal—the elected DA, Stephen Harpold, had to go back to commissioners court for a budget increase—and at some point they’re going to stop throwing money at this losing proposition.

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One in a million Americans will be struck by lightning in the next twelve months. What is your chance of being struck by lightning?

The answer to both is that you have no idea.

Whether you are in a car crash depends on how careful you are—especially how well you avoid distractions—the condition of your car, how many miles you drive, where you drive, when you drive, and the weather you drive in.

Whether you are struck by lightning, likewise, depends on your behavior. If you like playing golf in the rain, your chances increase. If you live in a city, they decrease.

You know that the statistics don’t predict what will happen to you, much less the things that you can control.

The Court of Criminal Appeals grants about 7% of the petitions for discretionary review filed in a year. What are your chances it will grant discretionary review on your case?

You have no idea.

The Court of Criminal Appeals is looking for interesting issues of importance to the law. Most appeals don’t involve such issues. Most of the time the intermediate courts of appeals get things right, and most of the things they get wrong are object level and of interest only to the particular defendant: was the evidence legally sufficient? were the rules of evidence violated? was the defendant harmed by the introduction of inadmissible evidence?

Most petitions for discretionary review are not well written. About half of them are filed pro se by people who aren’t lawyers, and most of the lawyers filing PDRs don’t know what they’re doing—you’ll see them arguing that the court of appeals was wrong, but not arguing that the issues are important and interesting.

Part of showing the court that the issues are important and interesting is spotting the important and interesting issues. “The evidence was legally insufficient” is probably not important to anyone but the defendant; “the court of appeals got the legal-insufficiency argument wrong because it did not apply Texas Constitutional law to the question” might spark interest in the court.

Like the car crash or the ligtning strike, whether the court grants discretionary review depends on factors beyond your control—are there issues that are important and interesting? is it of particular interest to some of the judges (or their briefing attorneys)? how are the judges (or their briefing attorneys) feeling today?—and factors within your control—how good is your lawyer at this? can he or she find those interesting and important issues, and show them to the court?

Don’t be ruled by statistics.

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• Ex parte Estevez
• Ex parte McGee and Ex parte Eugene
• State v. Cuarenta
• Owens v. State
• Alkayyali v. State
• Ex parte Cook

Estevez: Double Jeopardy

Owens: Free Speech

Cuarenta: When the State Can Appeal

Alkayyali: Jury Charge

A Broader Issue

Cook: Actual Innocence

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This is my argument from a couple of weeks ago in a pretrial habeas case with some (to me) really interesting issues.

My client, first of all, was arrested for DWI and put on bail. She got out on a bond with conditions; these conditions included “don’t break the law, and don’t do anything that could result in your arrest.” (Set aside the absurdity of the second part for a moment—either it means the same thing as the first, or it means nothing at all because anything you do could result in your arrest.)

She got arrested for another DWI, and the then-judge of Harris County Criminal Court at Law 16, The Ignominious Darrell Jordan, had her arrested and issued a show-cause order, warning that he was considering holding her in contempt for violating her conditions of bail. He had a hearing, at which the State presented evidence (the new charging instrument) that she had committed the new DWI.  At that time she was represented by the Redoubtable Gianpaolo “GP” Macerola.

GP explained the situation to me—I didn’t know then that The Ignominious DJ had been holding people in contempt for violations of bail conditions, a practice that he had (I figured out) learned from his mentor, The Despicable Mike Fields, former judge of Harris County Criminal Court at Law 14.

So this is interesting legal issue #1: While bail conditions are a court order, they are a type of order that has specific ramifications in the Texas Code of Criminal Procedure, and are not enforceable by a court’s general contempt power. So we could have attacked the contempt on those grounds, but we kept our mouths shut until January 13, 2025. (At which point GP let me loose, and I put a stop to the Ignominious DJ’s practice in other cases, but that’s a story for another post, one on the extraordinary writs of prohibition and mandamus.)

We picked January 13, 2025 because it was 31 days after the client had been held in contempt. In Texas—in either civil or criminal court—a trial court loses plenary jurisdiction to do anything about the judgment. There are a few narrow exceptions (Interesting legal issue #2). On January 13, it was too late for The Ignominious DJ to undo the client’s contempt judgment, and we didn’t want to undo the contempt judgment; we wanted to use the contempt judgment as a double-jeopardy bar to the client’s prosecution for that DWI.

That’s Interesting Legal Issue #3: There’s a United States Supreme Court case called U.S. v. Dixon in which the trial court held the defendant in contempt for committing a new law violation (dealing drugs) in violation of a condition of his bond. The Supreme Court held that the “don’t violate the law” condition of bond effectively incorporated the whole universe of criminal laws, and that Mr. Dixon’s contempt trial for violating that condition by dealing drugs barred, under the Double Jeopardy Clause, his criminal trial for dealing drugs.

So, based on the reasoning in Dixon, we filed a pretrial habeas petition in the new DWI case, alleging that our client’s contempt punishment for conduct that only violated her bail conditions because it was DWI barred her prosecution for DWI.

After we’d filed that petition, but before we got a hearing, the IDJ signed an order purporting to vacate the client’s contempt judgment. If I’m right about plenary jurisdiction, that order was of no effect.

A pretrial habeas petition can be heard by a variety of courts, but customarily the judge whose court the trial will be in gets the first shot at it. The IDJ, of course, denied relief.

Appeal from denial of a pretrial habeas petition goes to the intermediate court of appeals. The First Court of Appeals affirmed The IDJ. From there we go to the Court of Criminal Appeals.

The Court of Criminal Appeals, like the United States Supreme Court (I will never write those two phrases together again), is a court of discretionary review—it accepts only a small fraction of the cases offered to it. The CCA granted our petition for discretionary review, and gave us oral argument.

The State ignored Dixon, and argued that the contempt judgment did not count as jeopardy because it had been void for lack of notice—a problem that The Redoubtable GPM had waived at the double-jeopardy contempt hearing.

Remember Interesting Legal Issue #2. One exception to the general rule is that a court can, outside its plenary jurisdiction, vacate an order if the order is void and the trial court lacked jurisdictional power to enter it. The State read cases saying that a contempt judgment entered without proper notice is “void,” and assumes that “void” means “a nullity.”

That’s common sense, but it’s not the law. A couple of times in the argument I butted heads with the judges, because “void” in Texas appeals means “subject to collateral attack, as in habeas” as distinguished from “voidable,” which means “only subject to attack in a direct appeal.”

The IDJ’s contempt judgment was void in the sense “subject to collateral attack,” but we didn’t attack it collaterally, and until we successfully do so (our waiver of notice probably forecloses that particular argument) the judgment is effective.

This makes sense in the double-jeopardy context: If we are tried for a crime, and the conviction is subject to attack, we get to decide whether we are going to attack the conviction, knowing that if we are successful we might be retried for the same crime, potentially receiving harsher punishment.

In fact, that’s a central question in most direct appeal or habeas cases: “Be careful what you wish for. If we win this,” I will tell the client, “you get a new trial. Are you sure you want that?” Often a client will decide that he doesn’t want to spend the tremendous amount of money required to put himself back in the position that he was in before he went to trial or pled guilty.

The principle that the court should follow in the case you see me arguing here, which decides the case in our client’s favor, is the one that I led off my argument with: The State cannot circumvent a federal constitutional rule with a state rule.

Even if Texas law said that our client’s contempt judgment was a nullity because the judge was not wearing a red bowtie, the U.S. Constitution does not care what Texas law says.

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