Monday, February 14, 2011

Let the Record Reflect...

I cringe when I hear an attorney say "Let the record reflect."  Of course the record will reflect!  If you're saying something out loud in court and there is a court reporter present taking the transcripts, the record will reflect.  There is no need for the superfluous phrase.  But alas, through movies and TV dramas, the phrase has become a seemingly permanent part of our litigation lexicon.  Use it if you want, but you won't ever hear me say it.  I apologize for the rant.  That is not what this post is about.

Below are a couple of recent cases from the Texas Court of Criminal Appeals.

Newman v. State (on appeal from the 14th District Court of Appeals - Houston) - Appellant filed an unsworn motion in the trial court, challenging the eight-year delay from indictment to trial as a violation of his constitutional right to a speedy trial.  The trial court denied the motion and indicated that it did so after a hearing.  The appellate record, however, did not contain a reporter's record of this hearing.  Noting that the record was "sparse" and cautioning "practitioners regarding the importance of developing a record," the court of appeals, nonetheless, overturned the trial court's ruling and held that Appellant's right to a speedy trial had indeed been violated.  The CCA reversed the court of appeals, holding that Appellant has "failed to present a record demonstrating that the trial court's decision should be overturned."  The CCA noted that "an unsworn motion does not, by itself, present evidence upon which relief can be granted" and held that "the court of appeals would have erred to consider the factual assertions in Appellant's unsworn speedy-trial motion."  Simply put, the record did not reflect.

Ex Parte Chamberlain (on appeal from the 2nd District Court of Appeals - Fort Worth) - In this case, Appellant alleged that the lifetime sex-offender registration requirement violates his substantive due process rights because there is no mechanism to permit any future risk reassessment concerning the probability or likelihood of recidivism.  The lower court rejected the claim because under the Texas Code of Criminal Procedure Articles 62.401 through 62.408, there is a statutory mechanism that allows a person subject to lifetime registration requirement to seek early termination.  After the lower court's ruling but before the CCA's decision, the Council on Sex Offender Treatment (CSOT) published a new list regarding the classes of sex offenders which may apply for deregistration.  Accordingly, because the court of appeals did not consider this new list, the CCA remanded the case back to the court for another proceeding.  The CSOT's new list is available HERE.