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Appellate Practice Perspectives: Representing the State | John Messinger

Texas’s Office of the State Prosecuting Attorney (SPA) may be one of the most important state agencies you didn’t know. The SPA is an independent agency that represents the State of Texas before the state’s highest criminal court, the Court of Criminal Appeals. While the Texas Solicitor General appears in both state and federal courts, the SPA focuses on monitoring cases of interest throughout the courts of appeals and handling petitions and writs to the CCA. John Messinger, one of the SPA’s attorneys, joins Todd Smith and Jody Sanders to discuss what his office does and the outsized impact that it has on the Texas criminal justice system. John talks about how his office selects cases, tips for drafting petitions, and issues that affect both sides of the CCA’s docket.

Listen to the podcast here:

Appellate Practice Perspectives: Representing the State | John Messinger

Our guest is John Messinger and he’s going to tell us about working in the State Prosecuting Attorney’s Office. John, thanks for joining us. Can you tell our guests a little bit about who you are, where you came from, and how you got where you are?

I’m originally from New Jersey. I moved out here to go to law school at Baylor in 2003. I graduated and shortly thereafter, I started as a part-time employee under a federal grant doing protective orders at the office. It took me about 6 or 8 months to get on full-time as an assistant district attorney. Two months later, the appellate chief, who was the person in charge of all the appeals in our office, announced she’d be leaving and a couple of months later, I was the appellate guy in Waco.

TALP 52 | State Prosecuting Attorney

State Prosecuting Attorney: Look for opportunities if you know what you want to do. If you don’t, just keep your eyes open.

 

McLennan County Office, at the time, had 21 or 22 attorneys. I was doing about 30 to 35 appeals a year plus the oddball stuff that everybody else that the “firm” dumps on you. I’m sure you understand what that’s like. After about 3 or 3.5, Lisa McMahon, who was the state prosecuting attorney at the time asked me to apply. That was coming up in 2010 when she was going to be appointed. I almost didn’t take the job because it was an election year. Unfortunately, my boss lost in 2010. A lifelong Democrat, he took the same bath everybody did up and down the ticket so I decided to take a chance and come down here. I’ve been here for a little over ten years at the State Prosecuting Attorney’s Office.

One of the things you mentioned is the idea of unexpected opportunities and not closing the door. Do you want to elaborate a little bit on that?

I haven’t done a podcast. I was listening to the interview you did with Justice Busby just to get a feel for it. Immediately he says, “My mom was a lawyer so here I am at the breakfast table reviewing briefs and doing these other things.” The idea that he always knew he was going to be a lawyer and his career trajectory matched that. He knew he wanted to go to this firm. He didn’t go to the AG’s office to get this experience to be an appellate judge to one day be on the Supreme Court.

If you have that idea of what you want to do, that’s great. I went to college wanting to be a mechanical engineer. I quickly decided I’d much rather work with people than numbers so I went into business. I finished with a degree in marketing, and they had a five-year master’s program so I did that. I worked in marketing for a meat company, retail and foodservice. After that, I quit and moved because I was young and stupid and thought, “I can live for a while without having a job.”

Do the best you can wherever you're at. Click To Tweet

I came back when my dad got sick. When he was well enough for me to leave the house, I did what everyone did when you don’t have a job, and especially, this is right after 9/11. The business job market up in the Northeast was pretty bad. I go to grad school. I went to law school planning to do family law, and then a little bit into it, professors there were teaching criminal procedure and criminal law and I loved that.

They had an internship program in the DA’s office so I said, “I like this and I want to do appeals,” but they had an appellate person so I started on doing misdemeanors. Unexpectedly, the appellate chief leaves, then I’m at Waco. I bought a house and loved my job there. I wasn’t looking to come down here and work at the State Prosecuting Attorney’s Office. I almost didn’t take the job. Anytime I’ve talked to a civic group, high school kids, or something, it’s that, “Maybe you shouldn’t tell them,” but I just say, “Don’t have a plan.” Do the best you can wherever you’re at and look for opportunities if you know what you want to do, but if you don’t, just keep your eyes open. That’s what’s got me here and also, ignorance and unjustified self-confidence.

It’s an important part of any lawyer’s tool kit, though.

It’s a blessing to not know what you don’t know sometimes because it might change the course of things.

It’s the mentality of almost a four-year-old like, “Why do we do it that way?” It’s like, “Because we always have.” “Why?” At some point, you have to grow up and provide the answer, but it’s the idea that this doesn’t make sense and someone’s going to have to explain it to me before I go along with it. Thankfully, I’ve had opportunities to ask the people who make those decisions to change and it works sometimes.

Tell us a little bit about what the State Prosecuting Attorney’s Office is and what they do, because a lot of our readers probably aren’t familiar with it.

There are some prosecutors who never hear from us and never seek us out. Discover us. The people who have been prosecutors for 5, 10 years. As near as I can tell, we’re the smallest agency in Texas, Agency 213 which is all merchandise. It’s Stacey Soule, who’s our State Prosecuting Attorney, me, and Emily Johnson-Liu, plus a secretary. We are a four-person agency. The State Prosecuting Attorney is an appointed position. The Court of Criminal Appeals will appoint to the SPA, and he or she serves in terms of two years at a time. There are no term limits. Usually, if you join this office, you either die or retire. Those are the only ways people leave this office.

The position itself was created by the Statute of 1923. In theory, we could represent the state in every matter before the Court of Criminal Appeals, but that would be dozens of cases on discretionary review every year, however many death penalty cases are still coming up. Miscellaneous things like Writs of Mandamus and Prohibition. In any given year, somewhere between 3,500 and 5,500 Writs of Habeas Corpus come out of prisons. There’s no way a three-lawyer office is going to be doing a tiny fraction of that.

The majority of what we do is keep an eye on the Courts of Appeals and we read every case that comes out adverse to the state. We figure out as best as we can on the limited information there. Thankfully, most of the briefings are available online from the fourteen Courts of Appeals. We figure out if it looks like something bad happened. If we think so, we’ll call out to the local office, ask if there’s something we’re missing, if there’s any information that they can give us otherwise.

Also, in terms of not keeping the piece but figure out exactly what’s going on in a given case, sometimes they’ve worked out an agreement, sometimes that case is going to go away on a factual basis. If they’d like something to be done about it and depending on the size of the office, they may ask us to do it or need us to do it. As you might be aware, there are some district attorneys who are the person in their office. Maybe they have an assistant for 3 or 4 counties in some of the more rural districts. Us calling out is sometimes a godsend.

We will figure out if it needs to be done and if so, we’ll file the petition for discretionary review. Sometimes, we do a motion for rehearing first and then follow up the process. Sometimes, we will get involved in the Court of Appeals. If there’s an interesting issue, they contact us first. You know how it is when you work at a firm where you have people doing trials. It would be fantastic if they asked you about the issue before they walked into the courtroom.

It sounds familiar.

Sometimes, that doesn’t happen. I was blessed in Waco that everyone would come to me first before there was something weird to happen or they would call me down to the courthouse, and that was easy to do. I would appear in three pages of a record here or there out of the presence of the jury. Sometimes, it’s done by the time it becomes a defense PDR and then it’s granted. Occasionally, we’ll represent the state in the response brief in the CCA.

I looked at our numbers just to give you a sense of this because I don’t know what’s going on across the hall at the Supreme Court. In 2020, we filed 40 petitions for discretionary review. That’s the real number. Technically, we filed 84, but an additional 44 happened to do with this court cost issue that’s on the side. It’s literally a cut and paste each time. The CCA is just going to have to make a decision, but in terms of real different substantive PDRs, we filed 40 in the calendar year 2020.

Based on what the CCA granted, they granted another five cases for review. They’re sitting on 100. Some of them go back to 2018 but they’ve got 100 cases they promised an opinion on. Twenty of those are on our PDR, and we represent the state in another six. About 1/4 of what’s in front of the Court of Criminal Appeals, our office is representing the state. Because civil practice is decentralized, except for whatever’s going on at the AG’s Office, I don’t know if their numbers are comparable. I don’t know if you have the same relationship because I can’t imagine anything that happened civil that’s them not representing the state would give them any power to step in for a private party. That’s our gig.

The overview suggests to me are some similarities between your office and the Solicitor General’s Office. I want to explore that, but before I jump into that, you mentioned those six cases pending at the CCA that were not PFRs filed by the State Prosecuting Attorney’s Office. Do you guys get involved when the state is the respondent in a preceding review?

Sometimes, when it’s a defense PDR that’s granted, we’ll immediately call out. In fact, there have been times I’ve looked at the PDRs as they come in and I say, “This one is probably a grant. This one was a little sticky,” and talk to the DA or the appellate attorney in the office who handled it and make a soft commitment and seeing how things go that we might be able to take it up for them. Sometimes, they call us when it gets granted. “What do we do? I don’t know how to do this. I’m a great trial attorney. I’m not an appellate guy.”

For example, the ones that I’m doing, I’m representing the state in something related already. I am neck-deep in self-defense cases. It’s been a thing for the last couple of years and First Amendment cases, also. If it’s something like that, I will reach out. I’ve been on their ranks and so I don’t like taking projects. It’s like those movies where the police are there and then the FBI comes. It’s like, “This is a federal office building. We’re taking over.” We can do that. The statute says we can.

I don’t remember the last time we did and that’s under Stacey or Lisa McMahon. We want to get along and be helpful. As long as who we’re talking to sounds like they’ve got a good handle on things, we’re happy to read things over. We’re happy to spend as much time on the phone as possible. We’re not trying to steal anybody else’s work because I’ve been there. Lisa let me do things when I was in Waco that gave me the experience to give her the confidence to hire me. You have to let people do that. Most of the time it’s, “I’ve already read this. Would you mind if I did it for you?” Most of the time, they said, “Sure. I have many other things to do.” It works out well that way. I should also say we do a couple of amicus briefs here and there. I’ll file one, so that’ll be 4 out of the 100 we’ve also chimed in.

In the last few years, there have been a couple of times on a particular issue that the Texas Supreme Court will ask the Solicitor General’s Office to weigh in. I know the US Supreme Court does that frequently. Does the CCA ever call out to the State Prosecuting Attorney’s Office for views on anything or is that not done?

No, partially because we’re ready to file an amicus brief if we want to be involved. I don’t think they’ve ever asked us to. The 10th Court did one time when the Michael Morton Act passed and they first started seeing a bunch of cases coming up. They asked through the Attorney General to chime in. They asked for us. They cast a wide net, and they set an argument day. I think they had 4 or 5 cases then. Not in the ten years I’ve been here that the CAA said, “We would love to hear from your office.”

You mentioned you are an agency. You’re a separate silo from the AG’s Office that has the SG under it. You’re your own independent group.

TALP 52 | State Prosecuting Attorney

State Prosecuting Attorney: The majority of what the SPA does is keep an eye on the Courts of Appeals and read every case that comes out adverse to the state.

 

Yes, and as near as I can tell, we’re the only entity that does statewide prosecution that isn’t part of the Attorney General’s Office. Every two years, there’s always talk about, “We can save $5,000 a year if we don’t have a separate agency and the AG just takes them all.” Every year, it doesn’t happen. I don’t remember the last time there was a big fight. Normally, when there’s a big-budget crunch, but I don’t know how they would break that up because you would have to sever the tie between our office and the Court of Criminal Appeals.

I imagine they like, at least, choosing the person who represents them. It’s weird. I admit that it’s weird. I didn’t expect that to be the case when I first found out about the office. I wouldn’t mind seeing a defense analog on the other side, but the problem is, we can attempt to speak for the entire state, even though prosecutors can differ on what a law should be. A defense attorney’s entire obligation is to their current client. It would almost be self-defeating to try to keep one eye on the general state of the law. At some point, you would not be serving that client effectively.

The fact that there can’t be a balance on the other side doesn’t mean that the appointment is less good. We are apolitical. You wouldn’t have the State Prosecuting Attorney on a ticket every four years, but ostensively, everybody could be on the block depending on what happens. I think it just works out this way. I say that because this is what pays my mortgage and I don’t want things to change. We’re here. I don’t know that anybody particularly has a problem with our office on the defense side. I don’t think the complaints about us being aligned with the court would go away if we were part of the Attorney General’s Office. We’re here quietly doing our thing.

That’s quite a contrast with the Solicitor General’s Office being a part of the Attorney General’s Office, which of course the AG is a publicly elected position. The CCA appoints the State Prosecuting Attorney. Those two-year terms are pretty short but it’s interesting to hear that it’s practically lifetime tenure.

I’m going back. Lisa retired at 53. She had a lot of service in Fort Worth before she came on to work here, and before that, it was Jeff who retired. Before that, Matthew Paul died unexpectedly. That is the case. We’re a tiny little office of nerds that like doing prosecution. It’s a great gig. I don’t know that there’s a better job for appellate prosecutors. Maybe being in charge of the appellate section of a larger office so you have more of an opportunity to teach and coach people.

I happen to know Judge Newell, and I joke with him a lot. He’s extremely well-read and whereas he’s likely to give you a quote from Shakespeare, I’ll give you a quote from a Star Trek episode that I didn’t realize was based on Shakespeare. I think of Generations where Kirk meets Picard, and Kirk says, “When you’re in the chair, you can make a difference. Don’t let them promote you. Don’t let them retire you. Don’t let them do anything that takes you off the bridge of that ship.”

I feel the same way here. I get to talk to people I call and thankfully, people call us from around the state wanting help, and I get to work with them. It’s one of the things I missed being in Waco. You know how it is with appellate attorneys. You never have to deal with witnesses. If you’re doing the appeals, yes, you literally have to deal with clients less so on the criminal side, but at least in the criminal setting, I don’t get to talk to the victim’s family.

I don’t get to have that direct contact where you know you’re helping somebody to make a difference. Working with the people who did and being their support was something I missed. I’m glad I get a chance to do that here through speaking at CLEs, putting out papers and things like that. We try to keep teaching people to do that. I’m young. It’s going to be a long time before I’d have to think about retiring, but it still is hard to believe that there’ll be a time when I wouldn’t want to be doing what I’m doing.

You are in a unique position because potentially, you can work with lawyers from any of the 254 different counties across Texas. On the civil side of things, we may or may not know lawyers in a particular jurisdiction or that Court of Appeals or there just may not be a lot of civil cases out there. Every county has some sort of criminal issue come up at one time or another that is going to have to be addressed on appeal, I would imagine.

Some of the most interesting issues have come from the smallest counties. You would think, if you’re in Harris or in Dallas County, by sheer volume, everything’s going to come up here, but odd issues from around the state. I’ve represented the state in 70 some odd cases in front of the Court of Criminal Appeals. If you flip through an annotated penal code, you’re going to see tons of cases that we’re represented by our office. We make a real difference in the way prosecution works.

Sometimes you think it’s a giant deal because it’s a high-profile statute. The legislative process was messy, and everyone’s looking at this, but then you do something on the unit of prosecution for the failure to appear in court. It’s a short PDR. The issue is what it is, the opinion comes out quickly, and you’re like, “Good, this guy gets two convictions.” You then get random emails from people across the state saying, “This is a giant help to us. You have no idea.”

Being able to get that feedback and realizing that the things you think are extremely important, maybe are interesting for the appellate crowd but don’t make a giant difference in everyday prosecution, but some of the other stuff does. It’s a blessing to be here. You just hope you’re doing something that’s helpful to the real prosecutors every time they call. The view from the ivory tower is nice, but it helps to stay grounded and talk to people who are having to make split-second decisions in court, having to sit down with the victim’s family, or having to look the defendant in the eye. The things that I don’t get to and don’t have to do.

You have obligations to your client, but you have more of an obligation to justice. Click To Tweet

That’s an amazing record that you’ve got over these years or so period with 70 appearances before the CCA. What a great opportunity for you as an advocate and the state, being a great client, you get all these variations. You get to work with 254 counties in Texas with all the different DA’s offices around who want varying degrees of assistance, as you’ve pointed out. Do you co-counsel with some of these DA’s sometimes or is your tendency to take the file over?

Stacey did one where they split the arguments, and they were both listed as co-counsel. Otherwise, if you want us to do it, great. If you want to do it, I have ghostwritten things, for whatever reason, our office didn’t want to, it’s like, “Here it is, put your name on it, that’s fine.” Everything from we’ll give it a quick read or a phone call with you if you want to bounce some stuff to I’ll have it drafted for you, which doesn’t happen often. Maybe a couple of times in the last years.

If we’re not going to take it over, it’s yours and we’ll help as much as you want to get it across the line. I’ve been on the other side. There are some elected district attorneys who literally do everything, they’ll go out to JV court and make deals on speeding tickets and have to do the grand jury and everything. They are more than smart enough to do the appeal, but it’s a different skillset and the amount of time it would take for them to do a PDR, it is just not worth it. When we’re happy to do it, let us do it. I try hard to make sure it is done and a draft is sent to them with enough time for them to give me ideas and feedback. They lived it and there are some things that I may have missed because I was not in the courtroom at the time and I always try to be mindful of that.

We have the same conversations about civil trial lawyers and there are all kinds of arrangements that can be made in working with the appellate lawyer. For a lot of us, there’s that preference of, “I would take it over.” Co-counseling is fine but when you start talking about trying to merge work product, it starts to get into the territory of what Jody describes as a Franken brief which is funny but you get the concept. That’s impressive. One of the things I don’t have a good feel about on the criminal side is how developed the criminal appellate bar is. You’re one of our first guests, John, who has a criminal practice representing the state but that’s your area of practice. Do you see the same lawyers over and over again on the other side of cases that you’re arguing? Is there a well-developed criminal appellate bar?

There is. Every city seems to have their made guys, so to speak. I have eyes on every PDR that comes in. That’s largely a waste of time to grant rate hovers between 6% and 9%. I’m not going to say I read every PDR that comes in but I glance at it. I look at the issues quickly and I look to see who it’s from. There are certainly a lot of names that come up regularly. In the appellate world, I know Houston’s got a pretty developed defense bar and I’m more familiar with them, but also Dallas and Fort Worth, if I sat down to look at it.

Frankly, a lot of them have people who were at the DA’s offices in those counties long enough to where they eventually go into private practice. Fort Worth had people who have been there for 20 and 25 years. I do not know if it was a result of regime change or it was that time, but there are a lot of people who all of a sudden from both Dallas and Tarrant County went to the other side, which is good. You’ve been there, there’s nothing worse than trying to answer a brief that you can’t understand. I’d much rather face a well-written devastating brief and deal with it.

Especially on the criminal side when they are going to rightfully construe things to make sure somebody’s right to an appeal is honored. This should never be the case. When I was in Waco and doing run-of-the-mill appeals, I can’t tell you how many times my response was longer than their brief. You wouldn’t think that would happen, you think they would have crystallized the issues and you can get down to it because hopefully, they haven’t misrepresented the facts. Hopefully, they’ve identified the proper law. You can cut and paste that stuff but I try to make things as short as possible. It’s almost a game now.

It’s a real skill but it’s super challenging to do that when the other side hasn’t drilled down on the issues and you have to anticipate how the court is going to respond to whatever it is they did file. Maybe make a little thread of an argument and run with it in a way that you wouldn’t think would happen. It is a difficult part of it from the civil side. It’s interesting to hear and I’m not surprised that you see it on the criminal side as well.

It goes back to something you said about the amount of time I’ve been practicing almost exclusively in front of the CCA. It’s the familiarity with the court. I can guess which judge would be likely to grab onto something that is underdeveloped but something in their wheelhouse. That’s gotten harder. I have now been at this office longer than seven judges have been on the court so we’ve had a lot of turnover in the time that I’ve been here. Thankfully, I knew Judge Yuri, before he was Judge Yuri, and I knew Judge Newell before he was Judge Newell.

Because of our proximity to the court, I’m able to interact with them, pre-COVID anyway, at functions. We go to every argument and we’re always there in person when they’re held. I think that gives me a little bit more leeway. I honestly don’t know if this is the way it happens on the civil side of things, but when teaching oral argument or brief writing, I’ve always tried to help them solve a problem. We have more of an obligation to justice, you have obligations to your client. There’s only so much you can do.

I worry sometimes that I become overly familiar, but I try to have the attitude of, “The ten of us need to work this out. I understand the weakness in my argument. You don’t even need the other guy or girl. I’m telling you I understand my argument has flaws but here’s how we get around them. Here’s why this is the better outcome.” Some stuff is cut and dry and, frankly, I’ve probably lost more unanimous decisions, but most of the time, there are equities on both sides. You’re dealing with issues of fundamental fairness, which I understand on the civil side, you have that too, but sometimes I’m not sure that I could do half the job I’m doing on civil appeals.

I glance at them occasionally to figure out what the issues are and what’s going on and it’s impressive. It’s such a broader array of things. That’s why it’s always confusing to me because I think Criminal Law is easy so when we have these courts of appeals that have to go both sides. If you’ve had to master regulatory law, governance law, and everything else, you can pick up some search and seizure stuff. I like to think it’s not that difficult but it is, and every time I think we’ve tackled the big issue, the CCA, there’s a new big issue to be addressed. It’s an interesting ground. I can’t imagine having a single Supreme Court the way SCOTUS does it. They have an army of people helping them out, but to have somebody comfortably say, “I am a master of both criminal and civil law.” God bless him. I don’t know.

You talked a little bit about the outsized influence that your office has but as you were talking, it clicked for me. The Supreme Court standard to take a case in Texas is important to the jurisprudence of the state and that can vary wildly from case to case. In your cases, every time the state comes in whichever way the decision goes, it does have a huge impact on all potential criminal prosecutions in Texas, depending on the issue. It’s something every county is going to have to look at, think about, study, and make sure it doesn’t impact the way that they do their jobs in a way that I don’t think is necessarily true on the civil side. There are certainly cases where it does, especially when you talk about rules and you know, jury charge practice and that kind of stuff, but just the nuts and bolts impact on everybody’s daily practice across the state is not necessarily the same in the Supreme Court as it is in the CCA.

Yeah, and some of the bread and butter issues like traffic stops. There aren’t new laws on traffic stops. There are occasionally new Supreme Court cases and you sometimes hit an interesting issue or just a factual scenario that makes you have to rethink things. The rules for granting review on paper look about the same as the Supreme Court’s. I was interested to find out that you do a pre-grant briefing on a petition. I guess that helps you make sure it’s worth taking but it seems like it’s semi-granted at that point.

Everything is briefed before the court grants it. When they grant it, it is generally, “You’re now set for oral argument, come show up,” or you’ll get a per curiam opinion a few months later that you didn’t know it got granted but, “By the way, it’s granted and here’s our opinion.” We don’t have the practice like at the US Supreme Court where you have a petition, and then they’ll grant it and ask for merits briefing. It all happens here before that. That was one of the things I wanted to talk about was the differences in criminal and CCA practice. At the CCA, you start with the petition and then it gets granted then you move to merits briefs?

TALP 52 | State Prosecuting Attorney

State Prosecuting Attorney: The view from the ivory tower is nice, but it helps to stay grounded and talk to people who are having to make split-second decisions in court.

 

Right. Interestingly, as near as I can tell, all the other courts of appeals around the state, since they have to take it without granting review, won’t decide whether or not to have argument until somebody drafted an opinion and they’ve hit a roadblock. It’s like, “Your briefing didn’t address this so we’ve come up with something new. We’d like to talk to you about it.” The CCA will grant oral arguments when it grants your petition and the petition is limited to 4,500 words, which isn’t awful. I don’t think you need anything close to that if you have a truly reviewable issue. My average is about 1,300 and change. To me, 4,500 words, using rule 9.5 that requires you to count. That can be 27 pages at 14 point, double spaced if you don’t abuse footnotes like I do.

It’s awful but I refuse to skim seven lines of string sight in the body of a brief. I can’t do it. If the case needs to be discussed, it’s in a body. If it’s uncontroversial, I bury it. That way, you can come back and read it clean without having citations breaking it up. You do what is usually a pretty short PDR and they decide, “This is worth talking about.” Which I’ve always thought is odd because sometimes argument is not helpful. Maybe it’s not necessary but sometimes it is what it is and they did a good briefing. Committing to doing an oral argument before you have the briefing may make it unnecessary. I don’t get it but that’s the way it’s been done and nobody’s made me judge yet. That’s the way they’ll keep going.

My understanding of things is after the briefings are done unless they spot something else, it gets set for submission pretty quickly. After that, they have internal non-binding guidelines and I know they’re non-binding because there’s no indication that they’re followed, but they’re arbitrary. Any guideline would be arbitrary. You say, “It’s been assigned to you. You voted for what’s now the majority opinion has been assigned you. You have six months to get it out.” Maybe it’s more complicated than six months. Maybe you’re working on three other things that were all too weak opinions and everybody needs time so you set out having guidelines.

There are also pick-up guidelines for the side opinions and things like that and sometimes the majority shifts, but they sometimes get things out quicker than other times. That’s demonstrably true. They’ve got 100 cases, including eight they’ve granted in two weeks, so figure 90 cases before that. Some of them were submitted in early 2019. Eight of them have got a 2018 petition number. It doesn’t mean they were submitted. That’s just when the PDR was filed and it could have been as latest December 31st, 2018. To give you an idea, the revenge porn case, I’m representing the state in. We are just barely getting into year three of when it was submitted. It’s a complicated case. Nobody has made the First Amendment easy to do. I’m not necessarily knocking the court, but I think it’s the oldest one they have pending. I’ve had opinions come out three months after submission. It depends on what it is and that’s not even helpful. That gives you no insight. Sometimes, things take longer than others, says Mr. Messinger.

It’s old wisdom right there. You mentioned that your optimum length of a PDR is a little under 1,500 words. On behalf of the State, you’re zeroing in on probably one issue, it would seem at that sort of brevity. We’ve talked here a lot about issue selection and how many are the optimum number of issues to take up on the civil side. I would suspect that on the defense side of things, you probably see the same thing that we see sometimes in civil practice which is people who aren’t super experienced in handling appeals tend to present more issues and not necessarily present them as well as someone who was more experienced would do. What would you say about the general number of issues that you see not only in your own petitions but also on the defense side?

I do a PDR presentation on the Advanced Criminal Law course and usually, they make me do it each time they hold it. What I’ve seen is, not only are people not reconsidering what the purpose of a PDR is as opposed to their brief to the lower court. You’re speaking to a different court. You’re trying to convince them to take an issue, not convince somebody else you’re right. It helps, but not only do they not get the point and write it differently than they should. I’ve seen lots of people straight up cut and paste.

I know this because one, you can go back and look at their briefing, but two, they didn’t even change the references to this court and the Court of Criminal Appeals. First off, don’t cheat. That is cheating, but two, your brief to the Court of Appeals is not going to serve the same purpose. It’s not going to be as good. Not even your motion for rehearing in the Court of Appeals is going to do what a PDR does. That’s why you get these PDRs that literally raise all seven points of error that were raised in the Court of Appeals.

That’s garbage and immediately someone’s going to take this less seriously. I will say that when you’re the state, you artificially have fewer issues to pick from because they don’t have to address all the issues when the state loses. They’re not going to reverse on sufficiency which would grant the greatest relief for acquittal, then they would just go to the first one that would grant a new trial. Maybe they’ll look at another issue that is likely to be an issue in a new trial and that’s it. You’ve artificially cut down on what I could be doing. I would like to say that I’m good at picking the best issue and I never leave anything on the table, but a lot of it is like, “No, you screwed us on the length of the stuff so my PDR is now about the length of the stuff.” That’s it.

Everything can be subdivided and on at least one occasion, I have written what actually was a laser-focused question for review and that the Court of Criminal Appeals was like, “We’re going to refuse yours but we’re going to grant our own motion on something that looks just like it but slightly vaguer.” They ended up deciding exactly how I asked them to and on the same grounds but I can see that they wanted to give themselves more wiggle room. In my paper, I’ll walk through a progression just like the worst thing you can do is say, “The Court of Appeals erred when it held the trial court didn’t err when it did ask.” Don’t do that and in all caps.

It’s like, “Now, I have no idea what this is about.” It’ll say like, “The admission of evidence,” and I’m like, “There are only two grounds to admit evidence so this is easy.” Even when you get away from that, you can still expand something. Sometimes if you want to break it down into a separate question about the error and you think they did the harm analysis wrong alternatively. I do keep track of all this because I do the paper with the qualification that it’s easier to be brief when you’re the state to say like, “These are how many heads.” I call it a case event and then the number of questions that spun out of it. The case event was the motion to suppress or the ruling on this piece of evidence or this jury charge question. I’m complaining about one thing. If it has three sub-questions, then it has three, but the court will be pretty liberal about addressing what’s embraced in the argument section of your petition.

Are you saying that the court will grant review on only some issues, less than all issues that are raised in a petition?

I’ve seen some where they want to grant the error but not the harm issue because they’ve done it a lot. Usually, they’ll just grant it and then not reach it but there are definitely times when you’ve asked them to review three, what I call case events, and they’re like, “Nope. We’re just taking the second one.”

Do you know that before you even get to your merits briefing stage and the oral argument usually?

That’ll be on the white card. It’ll say, “Granted as to the issue for.”

That sounds really nice from a civil perspective where you have the total opposite. You’ve put everything in the kitchen sink into your brief on the merits. It’s all there. The Supreme Court grants your petition. Typically, if they’re going to grant one petition and there’s another one, they’ll grant them both and bring it up together and then you’re getting ready for oral argument. Being prepared to discuss everything in the case. It would be very nice if you had the opposite where you don’t even have to get into it in your merits brief until the court has told you what they want to talk about and then you get to oral argument and you know the issue that they’re interested in.

I know that some courts of appeals will send out a letter designating a specific issue. That’s what we do in death penalty cases. You can imagine how many points of error because the death penalty cases are a direct appeal to the CCA. There could be 57 or 78 issues and a third of them are the same Eighth Amendment stuff that comes up in every case but they’re like, “We’ve set it for arguments.” They don’t give you a number, but you really can’t possibly do more than two separate issues. You almost always argue one and a half just because of the way the conversation goes, but if you’re the appellant, they ask you to pick a couple. Maybe once or twice, I’ve seen the state designate something other than that. I’m surprised given how many issues you can have in a civil case that the Supreme Court doesn’t give you a heads up as to what they’re curious about.

To your point, I’ve seen a couple of times, the Court of Appeals will send a letter to the parties that say, “We want to talk about X.” Even that is very rare on the civil side. I can maybe think of 1 or 2 times in the last years that I’ve seen that.

Think about how much shorter merits briefs can be. If the party raises five issues in their petition and the Supreme Court says, “We only want to hear about one of those.” The time that would be saved on the briefing side and the expense of it. I can see it both ways, I suppose but change is hard. Trying to put a movement to do something like this on the civil side might be pretty difficult. I like to look at things from an efficiency standpoint. If the court knows it’s only interested in that one issue, what a neat little trick to be able to say, “Focus on issue three. We don’t need to hear any more about the other 2 or 3 issues.”

Especially when combined with the pre-grant brief, do you think that would help them say, “These issues are garbage so double up your effort?” It’s not like they give you more words to work with if there are more issues. I’m the last person to say because this is what I learned from one of my professors. He said, “If they give you 50 pages, use 50 pages to advocate for your client. If they give you an hour to talk then talk for an hour.” Even as a know-nothing law student, I said, “That sounds like awful advice.”

Can I talk for an hour? Yes sir. Do you want to hear me talk for an hour? One of the lines I used in my PDR presentation is, “You all may be good legal writers. How many of you think a judge has ever gotten to the end of your brief and said, ‘That’s it? We’re done? I want another twenty pages.’” It doesn’t happen. I’ve tried to focus on writing, not tersely, but as concisely as possible with getting the point across. It reads better. I don’t know any professional who’s telling people, “Write more because judges don’t have enough to read.”

I imagine that’s particularly true at the CCA, given all the different types of proceedings that they have headed in their direction at any given time.

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Also, how many thousands of them are handwritten by inmates? Many of whom seem to have a pretty good handle on the law, but it’s a lot to slog through. They’ve got a giant staff helping them do it but you’re all over the place. If every opening brief was 15,000 words because it could be, then the response brief was 7,500, absence and extension on our side, you have to read 22,500 words just because the rules say it’s permissive. You wouldn’t do that and I have a hard time believing they actually get to the end of the briefs once they understand what you’re saying.

I’ve never understood and it’s about the US Supreme Court briefs too. I remember the first time I read one in law school. I thought I was reading the brief, but I was reading the summary, which was about eight pages. I said, “This is a pretty good brief. Why are you repeating all of it for an additional 40 or 60 pages?” I understood what you were saying. I can click on all those cases but what do I know? Nobody invites me to argue there either.

That’s an interesting question is, why not? The state surely is a party at the US Supreme Court from time to time. I know it’s rare, but if there is a criminal case at the US Supreme Court, I would assume that you all would have the opportunity to be involved.

No, we’re not statutorily authorized to represent the state there. You would have to set up an arrangement where you were being borrowed by the local office to do it. That’s if the Solicitor General doesn’t want to do it. That’s their gig. We don’t try to encroach upon what they’re doing and we try to keep doing what we’re doing. It might be interesting one day.

I don’t think of the SG’s office as being anything on the criminal side. Does that happen?

Yeah. I’m thinking about the last time there was a petition for writ of cert on a Texas criminal law matter, outside of the death penalty stuff, more and all that.

Lawrence and Garner are the last big ones and that’s been a long time.

Post Lawrence, Alan Curry when he was with the Harris County Office. I want to say it was Saldano. I may be confusing it though but it was a Fifth Amendment issue. The guy was asked a question about a shotgun. It was the admissibility for impeachment purposes of a statement that was unmirandized. Otherwise, inadmissible, but that was the gist of it. He may have been the last person to argue a regular criminal case in the Supreme Court.

That’s fascinating. These are things that civil appellate lawyers don’t think about. You’ve pointed out some pretty significant differences between your substantive practice, the court you’re practicing a lot, and what we do all the time. There are some things we can learn from a criminal lawyer.

I’m also salaried, so you may not want to copy everything.

One thread that I hear through this conversation is that the advocacy skills are largely the same. If you had to bone up on a certain area of the law, you could do it. You’ve got the writing skills, analytical skills and verbal presentation skills to be an effective advocate. Some of it is probably just a degree of comfort because I can’t imagine going into the CCA and arguing with someone’s freedom on the line. I can argue all day long if it’s just money.

Don’t tell your clients it’s just money.

It’s definitely more than just money to them. I’ll admit that but that is my true view.

Obviously, when someone’s life is on the line, but most people are not going to be criminals or the victims of crime, but lots of them are going to have a job or a car accident or a small business. It can be more dramatic, but on an everyday basis, what civil practitioners are doing for regular people, every bit is important as what we’re doing. I want people to have a sense that should something truly awful happen to you, that there’s a justice system that works reasonably well. More people are going to have need of a civil attorney, thankfully. I’m impressed. I’m not sure if I can move laterally to do it. If it’s even fair to call it a lateral move. I might take a shot one day, I don’t know. “Dog bites and tree branches,” as what my professor said. “Just hang out a shingle and you can always do those.”

I know how the Supreme Court has handled COVID and going virtual. Has the CCA gone virtual? Are you doing virtual oral arguments over there and that kind of stuff?

Yeah. I’ve done two. They’ve had maybe 4 or 5 virtual argument days since it all went down. I don’t know when Chief Justice Hecht’s order extends to. I think they kicked it back. They’ll have another argument in the court, but I’ve enjoyed it. Thankfully hadn’t had any technical difficulties but when you’re standing there in a real court, I like it. There’s nothing like standing at the podium but it’s also like sitting in the front row of a movie theater. It’s about 160 degrees to pan from left to right and watching The Brady Bunch formation where you can get everyone’s reaction immediately. There may be a slight delay on something, but unless you’re really speaking quickly, you can look at the smirks and the grimaces. I think that’s been helpful. I prefer being in person but I’ve not had a big problem with it so far.

John, you’ve been very gracious with your time. Thank you so much for being with us.

It’s been great. I’ve enjoyed the opportunity.

As I thought I would, I’ve learned a few things and hopefully, our civil appellate readers will do the same. We are wanting to have some more representation on the criminal bar. It is the Texas Appellate Law Podcast but we definitely have a civil slant to us. We would all benefit from hearing more about how it’s done on the criminal side, not only from the prosecution side but also from the defense side. We’re going to be on the lookout to put together some shows on that subject soon but one thing we like to do as we wrap up is we like to ask our guests if they have a tip or a war story to share with our readers. Do you have anything?

One of the stories I tell most often is from when I was back in Waco. It is the Darlene Gentry case. She shot her husband for no reason. We could not figure out a motive other than it seemed easier than divorce. It was awful but the linchpin to the evidence was, there’s a videotape of her hunting around a stock tank. It was a hot summer and she had dumped the gun in a lake. The rangers were involved. They had the owner of the tank, because she had been very sketchy about wanting to buy it for no reason, and all of a sudden, she’s like, “Can I buy that property with the pond?” They told her, “Sure, but we’re going to drain it.” That caused her to go out. She’s on video with blonde hair and everything, poking around with a stick in a foot of water to find a gun that we had already recovered.

Her argument on appeal was, “I had a lawyer and you didn’t tell me when you had your agent, the landowner call and tell me that you were going to drain it.” There’s a whole oral argument about that and that’s interesting. You can read the opinion if you want to but I tell the story because I think that’s the only case I’ve argued, and I’ve argued about 38 or 40 cases, where as far as I know, any victim’s family members show up. It’s normally an empty courtroom up there in the 10th Court and the victim’s father came up to me afterward. We were the last argument of the day and Chief Justice Gray said, “We’re now going to adjourn for consideration of this case.” It’s very pro forma announcement.

We walked out and God bless him, the victim’s father came up and said, “Do you think like maybe an hour?” It reminded me and thankfully we had a visiting justice and when that happens things move pretty quickly. I accurately as it turns out told him, “Maybe 2.5 to 3 months.” It always served as a reminder that you wait months to do the trial, and then the trial happens, and at least in Waco, you don’t have to wait long for a verdict on murder one way or the other. You wait months for the appeal and then you hope you’re going to finally get that closure but the appellate process is so deliberate and drawn out. It’s a funny story for practitioners and I’m pleased not at his expense but as a reminder of what the process is like. I’ll never forget that.

I can see why. That’s very interesting to hear and a little sad.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About John Messinger

John hails from New Jersey, where he attended the New Jersey Institute of Technology. After earning a B.S. in Business and an M.S. in Business with a marketing concentration, John came to Texas to attend Baylor Law. After graduation, he joined the McLennan County District Attorney’s office, where he handled all direct appeals as well as protective orders and other miscellaneous civil matters.

John has argued in front of the First, Sixth, and Tenth Courts of Appeals, as well as the Court of Criminal Appeals. He represented the State in a few notable cases, including Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) (holding that a defendant is not entitled to a hearing on his motion for new trial for ineffective assistance unless he alleges facts that show reasonable grounds to believe that he could prevail under both prongs under Strickland), and Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (overruling Clewis).

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