While this podcast focuses primarily on civil appeals, criminal appellate practice takes up a significant portion of appellate court dockets. In this episode, Todd Smith and Jody Sanders explore criminal appellate work with Naomi Howard, a Houston criminal defense attorney with Rusty Hardin & Associates. Passionate about criminal defense since her law school days, Naomi has handled defense and appellate work in Texas and federal courts, including the Texas Court of Criminal Appeals. Naomi discusses how to advocate for defendants in a system in which criminal reversals are rare and shows how creativity (and sometimes levity) can help improve advocacy and outcomes.
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Appellate Practice Perspectives: Criminal Defense | Naomi Howard
Our guest is Naomi Howard, who practices in Houston with Rusty Hardin & Associates. Naomi, welcome to the show.
Thank you for having me, Todd.
Tell us a little bit about your background, where you’re from and who you are. Let our guests get to know you a little bit.
I’m from Waco, Texas. Waco has quite the legal history. We have a lot of interesting cases coming out of Waco. I would like to say that influenced me since I’ve wanted to be a lawyer, probably since the age of eight. I don’t know if those big cases like the Henry Lee Lucas or even the biker case had any influence or not, but maybe being imbued in that environment had some influence. I went to the University of Texas at Austin and got my English degree. I wanted to travel the world. I went and taught English for three years in Japan. As you can imagine, that was a great experience. I loved every minute of it. Ironically enough, I came back to the United States and that’s when I started to become a sushi chef. You would think that would start in Japan. I ate a ton of sushi in Japan.
I mentioned to Naomi that I was going to ask her about her training as a sushi chef because that is an interesting fact. I assumed that you did that starting when you were in Japan, but you’re saying you didn’t.
I had a Japanese boyfriend at the time and he says that he’s never eaten so much sushi in his life. I was a big fan. I was lucky enough to live on the coastline, the western part of Japan, Kanazawa city. They had some amazing fish. I developed my palate because here in the United States, most people eat salmon, tuna, maybe some shrimp, but I was exposed to all sorts of high-quality fish there. When I came back to Texas, I wasn’t sure what I wanted to do.
I fell into the restaurant business and became a sushi chef. Houston has its own Uchi restaurant, but it started in Austin with Tyson Cole. I was there from the beginning with that. I started as the sushi girl that works in the sushi bar because I could speak Japanese. I took an interest in making sushi and worked my way up. All the way until I took a job in New York and did some sushi there as well, but then I came back to Texas. There’s this magnetism with Texas. You keep trying to get out and they pull you right back in.
That comes from being a native. Talk about a life experience beyond the law. After your time in the restaurant business, you went to law school at St. Mary’s?
Tell us about law school. I know from chatting with you that you were involved in one of the legal clinics that was significant.
The criminal law clinic was headed up by Stephanie Stevens who’s an amazing lawyer on her own, but she’s also a brilliant teacher. She got us exposed to all sorts of cases. It was through the Criminal Justice Clinic that I had my first appeal. That was instrumental in my start as an appellate attorney. The first case that I argued was the Fourth Court of Appeals, the San Antonio appeals court. If I’m remembering correctly, it was a drug case. Our client was convicted on video evidence that could not be authenticated by the confidential informant. The confidential informant had run off. They used the video anyway, and the judge let it in.
The funny thing about that is there were Brady violations on the part of the prosecutors, but the trial judge was able to remedy those Brady violations, fortunately or unfortunately, depending on how you look at it. The one thing that we disagreed with was the authentication of the CI’s video because the CI in the room who captured the video was no longer there to authenticate it. That’s what our main appeal was. The clinic prepared the appeal and then I was lucky enough because, as you know, appeals can be long. Another student worked on the brief and I was lucky enough to get to argue it in front of the Fourth Court of Appeals. I’ve got to say the San Antonio court is good about granting oral arguments to not only the clinic students but young advocates. They’re amazing. They want to give young advocates that opportunity.
That’s an amazing experience.
To be able to do that in law school is cool.
Absolutely. Professor Stevens was able to prep me and get me great moot experiences. The criminal law professors, John Schmolesky who since passed away and Gerald Reamey who’s still an expert that people come to speak to on criminal law. I knew if I could have a moot with them, I was going to be okay for the real thing because they had some tough questions.
Before you move on to the next element of that story, I want to backtrack. For those of us that don’t do any criminal law, tell us more about the Brady violation. I remember the concept, but I need a refresher.
Brady v. Maryland is a US Supreme Court case. In Texas, we have the Michael Morton Act, which is essentially the same thing. You’re requiring the prosecution and the State to hand over any evidence that might be exculpatory to your clients. That can be anything from a police officer having credibility issues. For example, in Michael Morton, not turning over the bloody handkerchief that had been found near the crime scene and had the real perpetrator’s DNA on it. The investigative team and the prosecutors are all held to the responsibility of being transparent on what evidence they’ve got that might help your clients. In a nutshell, that’s what Brady and the Michael Morton Act do.
There was another interesting development, though, besides arguing as a third-year law student and eventually winning the appeal.
I didn’t win. I lost.
Nevermind, what you did is not all that impressive.
I lost it at two levels, too. I lost it in the San Antonio appellate court and then we applied for a petition. I did write the petition for discretionary review. I did write that brief and they didn’t even grant it.
It’s my mistake.
I was trying to make your story even better.
It’s a W if you get the experience.
To be in law school and to be able to argue an appeal that is a W.
You had another personal win come out of this.
The day of the oral argument came, and Judge Bert Richardson who was the trial judge for that case randomly happened to be showing another St. Mary’s student around the courthouse introducing her to judges. He saw that the Fourth Court of Appeals was holding oral arguments. He thought, “This is great.” I’ll go in and show this young woman what oral argument is like and how the Fourth Court of Appeals works. They sat in the back and observed. You can imagine Judge Richardson’s surprise when his name came up in the oral argument.
I was up there arguing that he had abused his discretion by letting that video evidence come in. He got an earful of how he was dead wrong on that. He was impressed with the oral argument. Afterward, being a friend of Stephanie Stevens, he asked her, “Who’s that young attorney who argued with you today?” She said, “She’s not an attorney yet. She’s a third-year in my Criminal Justice Clinic.” He was so impressed that he offered me a job clerking with him should he win the election that November. That was a great win.
The way the story goes, you think it’s going to go completely sideways. Ultimately, it had a happy ending and you got to clerk with Judge Richardson up at the Court of Criminal Appeals, so that’s great. You graduated from law school and come on up to Austin to clerk with Judge Richardson of the Court of Criminal Appeals. Tell us about your judicial clerkship experience.
I haven’t come across anybody who said that the judicial clerkship was a bad time. In general, getting that clerkship is the best experience. It’s a wonderful way to transition from law school into the practice of law. It gives you the opportunity to see that judges are human, too, and that advocates can do a lot to educate the judges about their positions. It was an amazing opportunity to get that insight but then also to work with Bert Richardson. He’s been known to be fair-minded and willing to listen to both sides. Some judges tend to be known for being State-oriented is the euphemism. Judge Richardson has had a long reputation for listening to both the defense and the prosecution. In particular, it was great to work for him as his clerk and also to be his first clerk. Clerks come and go but I will always be the first.Judicial clerkship is a wonderful way to transition from law school to law practice. Click To Tweet
This was a no-interview job, too.
The interview was criticizing him in front of the Court of Appeals.
That says a lot for him. He and I do have different political positions on a lot of things but he let me in his chambers argue my thoughts on it. He’s not afraid of dissent. He likes that back and forth on the legal issues. In particular, he was great to work with.
That’s what you want in a High Court judge.
Where did you go from there?
I’ve been lucky in my legal career. From the Court of Criminal Appeals, I went directly from Judge Richardson’s chambers to Rusty Hardin & Associates. You don’t get luckier than that.
Did you know even before you argued that case in the Fourth Court as a third-year law student that you wanted to do criminal work?
Yes. I went to law school knowing that I wanted to do criminal defense work. I worked in a law firm in Waco before I went to law school. Waco has a high poverty level, something like 27%. It’s bad. With poverty, comes crime. Seeing defendants ground up in that system, if you don’t have the resources, whether that be financial, educational, or even family and friends, that network of support, it’s hard to navigate the criminal justice system and you’ve got lots stacked against you. The state has all the resources to do its job but defendants, depending on what they can afford, don’t have those resources.
What stuff do you do with Rusty Hardin? I know you do criminal work but what type of different things for those of us that don’t necessarily speak criminal law as much?
Working for Rusty Hardin is you never know what’s going to come up every day, so it’s always something new. A lot of people don’t know that Rusty’s practice is maybe 85% civil. We do a lot of civil litigation. We’ve got Lara Hollingsworth and Joe Roden here, both partners at the firm, and they are outstanding civil appellate attorneys. I do not get to do much civil appellate work because they have got it more than covered, but I do get to do a little bit of civil litigation at the trial level. Like many associates, that’s limited to discovery responses, legal research.
The majority of my time is spent on state criminal defense. Besides Rusty, I’m the only one who does the state criminal defense work, so that fills up most of my day. We’ve had a couple of big federal criminal cases. I’ve participated in those, but day-to-day, it’s mostly criminal trial work and occasionally, I’ll get the opportunity to work on a criminal appeal, which I love. That is my first love and so far, I’ve had success with that.
Can you educate us a little bit on the Court of Criminal Appeals? Todd and I know and we’re both familiar with the Texas Supreme Court, but the Court of Criminal Appeals is a little bit of a mystery to us other than generally knowing what it does.
I bet a lot of attorneys could name a couple of the Supreme Court justices on the Texas Supreme Court, maybe even all of them, but few are able to identify their Court of Criminal Appeals judges. It’s the highest criminal court. We’ve got a bifurcated system in Texas. Texas and Oklahoma are the only states that have that bifurcated system. The criminal cases from the trial court go to the intermediate courts as the civil appeals do and then if you want to appeal a criminal case, the next step is the Court of Criminal Appeals.
There are nine judges on the Court of Criminal Appeals. They’re not referred to as justices. They’re called Judge Richardson, Judge Yeary and Presiding Judge Keller. They are the highest court. People don’t realize that we have two separate courts. Juvenile, family and civil, all of that goes to the Texas Supreme Court. If it has anything to do with criminal law, it will go to the Court of Criminal Appeals. I did say that criminal cases go to the intermediate courts first, but in death penalty cases, that direct appeal is taken to the Court of Criminal Appeals. The intermediate courts do not take death penalty appeals. It heads straight for the Court of Criminal Appeals. Everything else will go to the intermediate appellate court.
Writs of habeas will go up to the Court of Criminal Appeals as well. There are some circumstances where a writ of habeas will go to the intermediate court. I have a pre-trial writ of habeas that is in the Ninth Court of Appeals. If they deny that, then I’ll appeal that up to the Texas Court of Criminal Appeals. The death penalty and writs of habeas usually go directly to the Court of Criminal Appeals. The only things that go to the intermediate courts are things like petitions for discretionary review, so that would be a direct appeal from your plain vanilla criminal cases.
Do I recall correctly that the Court of Criminal Appeals plays a fact-finding role in writ practice?
That is correct. At the trial level, you file your writ of habeas and the judge will do findings of fact and conclusions of law. If it’s not in your favor, it would be sent to the Court of Criminal Appeals for final review.
How does that work though? In civil cases, the courts don’t have any original fact-finding jurisdiction, neither the intermediate courts nor the Supreme Court. We would ordinarily think of fact-finder as hearing evidence, testimony, and then drawing a conclusion, weighing the credibility of witnesses, and so forth. How exactly does a Court of Criminal Appeals make a fact-finding? I’m assuming it’s not having open court hearings on these things.
No, it is not. However, if they find that the findings of fact made by the trial judge are incomplete, don’t answer the questions that they’ve got about the case, they can remand that writ back down to the trial court for further hearings, evidentiary reviews.
That seems maybe a little more in line with the civil side than what I was thinking. We got a lot of topics we want to cover with you because this is also interesting. We’ve been trying to bring more criminal practice elements into this show. Jody and I are civil appellate lawyers, but there’s this whole portion of appellate practice in our state that is underrepresented. We want to make sure and shine a light on the criminal. Not only the criminal defense bar generally but particularly, the appellate side of it. We’re glad to have you with us to talk about these issues. I’ll describe you as a younger lawyer. When you get to be my age, you’re flattered by that description but I’m also sensitive that some people don’t want to be described that way.
I’m happy, too. I’m not exactly younger because we went over in this show that I’ve had a career before I went to law school, so I’m not technically younger. As far as experience, I embrace the fact that I have less experience than some of the other criminal appellate attorneys that I may run into. That gives you a fresh approach. In one of the cases that I won at the Court of Criminal Appeals, maybe I was naive enough to think that I could convince a trial judge that the statute under which my client was prosecuted was unconstitutional. We filed a motion to dismiss. I was told that’s to educate the trial judge when the state rests and we ask for a directed verdict. That’s all this motion is going to be.
The trial judge had an evidentiary hearing and Rusty was able to put on a great string of experts and elected officials and create a brilliant record for me to work with. I don’t mind recognizing the fact that I have less experience because I like to think that it brings fresh eyes to the law. I don’t know if my memory is correct, but there have been some big US Supreme Court cases like Roe v. Wade or Crawford v. Washington. Those were both cases that were argued by less experienced lawyers. We’re not jaded or we’re not coming from a place of knowing. We’re coming from a place of curiosity.
Where I was going with this originally was thinking in terms of how one develops a criminal appellate practice because that does seem like that’s your interest. I’m sure you like to do all the other stuff, too. One of the challenges for civil appellate lawyers in training is how do you become one? Some years in practice helps a lot. Do you have a strategy for the long term of your practice? You’re wanting to develop a criminal appellate practice specifically and have that be the focus of what you do?
Todd, I’m on the fence about that. I do enjoy criminal appellate work, but I don’t know if I can make a living off that. You’re not entitled to counsel, especially on writs of habeas. Those are the most common. You can get appointed on death penalty cases and some direct appeals. How many of your clients who—if they’re on the appellate side, they’ve just been convicted and are going to jail. Where’s the money in it? There are some clients who can afford appellate attorneys, but they usually get their justice on the front end. They’re paying for a great trial attorney like Rusty Hardin.
I don’t have a strategy at this point, but I’m not sure that I want one because I find, and you may have found this as well, having that trial experience informs your appellate practice and having the appellate experience informs your trial practice. There’s a way to do both. By necessity on the criminal side of things, you might have to do it because there aren’t that many opportunities for paying criminal appellate work.
This is going to my inexperience. I found that there is an appointment list for criminal appeals. I’m going to try to get on that and hopefully get more appeals that way because I enjoy it a lot. I’m lucky to work for Rusty Hardin who can give me that opportunity to do the Criminal Appeals. They’re not making our firm much money, but they sure are interesting cases and great records to work with, especially if Rusty tried the case. I lucked into all this.
I was going to say it sounds like maybe a strategy is to try and talk bad about a trial judge in front of a court of appeals and make sure that they’re in the room. That will get you up the ladder.
That’s the trick, Jody.
It sounds like you’re certainly well-positioned, notwithstanding the economics. I know Rusty Hardin has a great trial record, but he can’t win every case. You go to trial and you’re going to roll the dice a little. Aside from that though, I would tend to think that being associated with him that other people are going to lose trials and be looking for someone else to handle their appeal possibly. I would suspect that Rusty’s firm might get that call.
I get what you’re saying about the economics because on the civil side, that is not the situation that we’re in. Nobody’s incarcerated. It’s a rare situation in which we have habeas where someone’s incarcerated for contempt of court. The money part of it is a huge thing. I do see that the criminal appellate bar is developing more. There’s been a board certification in criminal appellate law in the last several years. It does seem to be emerging at least as a valid specialty. It’s recognized now. You just got to find a way to be able to pay the bills doing that work it sounds like.Having trial experience informs your appellate practice and having appellate experience informs your trial practice. Click To Tweet
That’s the trick. I’ve had the privilege of watching some of these fantastic criminal appellate advocates at the Court of Criminal Appeals. I’m not sure if many people know this, but the clerks for the different judges perform the duties of a bailiff and timekeeper, so you get to sit in on all those arguments. Not too long ago, in the Court of Criminal Appeals, oral arguments were not available by video. That is a recent development. The legislature mandated that, and the Court of Criminal Appeals has been extremely reluctant to allow video into the courtroom. The Texas Supreme Court, and you guys might know this— I give a lot of credit to Blake Hawthorne, the clerk of the Supreme Court. He is technologically advanced and embraces those innovations. He has gotten the Texas Supreme Court wired and accessible to the general public, whereas the Court of Criminal Appeals has resisted that.
I got to toot the St. Mary’s horn one more time. This is ancient history now, but going back, the Texas Supreme Court video arguments came about because St. Mary’s organized and funded it. They got everything set up and started the broadcast. Since then, the court has taken it over and due to Blake’s leadership, it’s continued. It has been an amazing opportunity. We started taking Zoom arguments for granted but even before that, it was such a luxury to be able to tune in live to an argument on the Texas Supreme Court. Those of us that practice there have gotten spoiled to it as a matter of fact or being able to watch the arguments later posted on the Court’s website. It’s nice that the Court of Criminal Appeals is finally there. Unfortunately, it took an act of the legislature to make it happen.
I think of all the appellate advocates that less experienced appellate attorneys like myself have missed out on because we don’t have those video archives. Appearing for your first Court of Criminal Appeals argument can be scary enough. If you have a clear expectation of what’s going to be happening, it helps to alleviate some of the fear, but we didn’t have that until recently. The only way was to either drive into Austin and watch them in person or to be a clerk at the court. That’s where I’ve seen some of the best appellate advocacy. Cynthia Orr, Carmen Roe, Brian Wice, and Jani Maselli Wood are fantastic oral advocates.
Those names roll off your tongue. I’ve probably heard of all of those people at one point in time, but I loosely know 1 or 2 of them. Jody and I could sit here and we could rattle off a dozen excellent appellate advocates that appear in the Supreme Court all the time. The Court of Criminal Appeals has always been a little bit of an enigma to me. Of course, that’s one of the reasons why we wanted to have you on the show to talk about criminal defense work generally and appellate work specifically because we do want to help to peel back that curtain, so to speak. Let’s talk a little bit about some different kinds of their post-conviction appeals. Can you give us an overview of those and what those involve?
The first appeal you would have is a direct appeal. At the Court of Criminal Appeals, it’s called a petition for discretionary review, PDRs for short. That would work its way up as you would expect. You would appeal to the intermediate court in your region and then they would hand down a decision and then you would petition the Court of Appeals for review. PDRs are the main type of direct appeal. We spoke briefly about death penalty appeals. Those skip the intermediate court entirely and they go straight to the Court of Criminal Appeals.
Finally, you have writs. You’ll have writs of habeas corpus and writs of mandamus and those are post-conviction, last chance things. Writs are difficult for the majority of attorneys. The Court of Criminal Appeals gets something like 5,000 writs every year and they are mostly written by pro se litigants, the offenders themselves. There’s a statutory form that you use to apply for a writ. That was done to help these pro se litigants and get a little bit more of a systematic approach but also, it helps the judges in evaluating claims. If you’re a lawyer, you have to use that same form. Although if you’re a lawyer, you’ll usually write a brief in support of that application. The problem with writs for most attorneys and definitely for pro se litigants is what are cognizable claims? Has there been a change in the law? Has there been new evidence presented?
Even experienced attorneys, unless you practice criminal appellate work, you see them make mistakes and you have to dive in. I certainly do not count myself as a writ expert, although I enjoyed doing the writs when I was at the Court of Criminal Appeals, reviewing those and assisting Judge Richardson with those opinions. Those are the types of appeals you might get. Going back to the structure of the Court of Criminal Appeals, you have staff attorneys, so there’s central staffing and they are the first stop. Your pleadings are filed with the clerk and then they go straight up to the central staff attorneys.
Those are divided into three groups. There are staff attorneys who deal with death penalty appeals. There are staff attorneys who deal with the petitions for discretionary review. There are the writ staff attorneys. They don’t mix. They have their areas. I suppose you can say I’d like to transfer over to this division but it doesn’t happen that much. You start to get to know the law in those specialized fields, so it doesn’t make a lot of sense.
The staff attorneys, many of them have been there for a decade or more. They are knowledgeable. You talked about, “I’m rattling off experts.” Those guys are the experts. They write reviews of the cases that come in and those are what go to the judges’ chambers and the judges review all of those. They have a conference and they take a vote on what their gut feeling is on the issue and then they decide which judge is going to write the majority.
The takeaway for me so far in our conversation is not unlike civil practice, there are some landmines out there that you need to be wary of. It seems to be rather ill-advised for someone who has not, let’s say taken up a writ before to do that without the guidance of someone who has and someone who’s been there. One thing that you mentioned is an advanced-level concept that comes to mind, to illustrate this point is the idea of a motion for a new trial in a criminal case and there’s some presentment requirement?
It’s not enough to just file your motion for a new trial. You would think that’s all you have to do, but no. The motion for a new trial has to be presented to the judge and that is a trap for the unwary. You’ve got a certain amount of time to present the motion for a new trial and if you don’t know about that, it’s thrown out. I had the experience down in Jackson County where the judge would not give us a hearing so that we could present the motion for a new trial.
We went down there and waited for the docket to end in his court. We asked the coordinator over and over again, “Will the judge see us now? Can we appear?” The judge ignored us. Finally, we said in front of the gallery of people and other attorneys, “Judge, we have to be heard on this.” Reluctantly, he took the presented motion for a new trial. How are you supposed to know about that if you haven’t done this type of work?
I’m going to ask the logical extension of that question because we talked a little bit about the mandamus. Is the refusal to accept the presentment of a motion for a new trial mandamusable?
You’ve stumped the chump.
That’s one of my favorite things to do, by the way.
Talk about a trap for the unwary. You didn’t tell me we’re going to talk about that.
No, I didn’t expect you to know the answer. What that assumes is that mandamus in the criminal context is similar to that in the civil context. I do not know the answer to that question. Are we talking about in mandamus in a criminal court what we would see on the civil side, which is trial judge abuses his or her discretion and there needs to be some rectification on that? Is that accurate?
That’s an absolute yes. It operates the same way as it does in civil.
Let me make a suggestion. This probably has already been tried, but if you haven’t tried mandamusing your trial judge for not accepting the presentment, the civil lawyers say, “Go for it.”
Is it a ministerial duty to accept that presentment? I don’t know because I’ve only had that one case where he refused to do that. Eventually, by being pests, he had to take it. We technically fulfilled our duty. You should be able to.
Let me give all the disclaimers. Remember, everyone who reads this, “Nothing on this show is legal advice.”
I imagine that COVID throws a wrinkle in that because you can’t physically get in front of a judge if that situation came up again.
The pandemic has hurt the practice of criminal defense and the criminal justice system entirely. I’ve been focusing on the defense part, but I didn’t mention a single prosecutor who’s an appellate advocate and there are many. It’s stopped all of us in our tracks. There are some things that you can do via Zoom like some small hearings appearances to check in with the court. Everything has ground to a halt. The criminal judges should be applauded for trying to push cases through using NRG Stadium to have jury selection. They’re trying, but it’s ground to a halt. I worry when the courts open up fully because there’s going to be a glut of criminal cases. Unfortunately, that hurts you guys because we get precedence over your cases. Sorry in advance.
We’ve talked about the numbers on several different shows and there’s a huge backlog of both criminal and civil. Particularly on the criminal side, they don’t necessarily have the luxury of a Zoom proceeding that the civil lawyers do.
We don’t want it.
You’ll be busy, I imagine.
Sometimes, I feel bad for those prosecutors. Rusty, being a former prosecutor, has given me a lot of insight into a prosecutor’s work life and maybe more appreciation than I would have, having only been a defense attorney. When those courtrooms open up fully, they are going to be flooded. I have a little bit of sympathy for those guys but not much.
We talked about your path into criminal defense practice, but there’s a couple of others that probably are worth mentioning. It seems like a lot of criminal defense lawyers that I know or have come across are former prosecutors. Rusty being a former prosecutor, that seems like you have to switch your hat. You go from wearing either a white or black hat to whichever. It depends on your view of it. What I always heard though about experience in DA’s offices is you get immediate trial experience. It’s not necessarily geared toward the appellate side, although DA’s offices generally, a lot of times, will have an appellate division.
I encourage graduates from law school. If you asked me about how I got into criminal appellate work, and clearly the groundwork was laid in law school with my clerkship. If a law student knows they want to go into criminal defense, and they want to do a criminal appellate practice, I mean, you can’t get a better opportunity than going to a DA’s office and asking for appeals. The first thing you do is learn how to do a trial. It may be the misdemeanor level, and then you start asking for appeals and asking if you can write briefs. The DA’s offices have appellate divisions. Bill Delmore in Montgomery County has a fantastic appellate division in addition to being a great advocate himself.
That is a great way to get appeals because the state’s always trying to undo my good work, and you’re funded so you have all the time, money and resources to spend on those appeals. An interesting bit of trivia is that Rusty is responsible for the state’s right to appeal, which I’ll never forgive him for. He and Cathy Cochran who passed and was of counsel at our firm and also a Texas Court of Criminal Appeals judge for many years and wrote some really important opinions. The two of them, when they were at the Harris County DA’s office said, “The state should have the right to appeal.” They were responsible for lobbying the legislature and getting that put into statutes. All you prosecutors out there doing appellate work, you can thank Rusty for that.An oral argument is usually not going to win you a case but it can certainly lose you a case. Click To Tweet
We appreciate all the time that you’ve given us. Before we go, we know that you have a war story about your first Court of Criminal Appeals argument and we would love to hear you share that with everybody.
Being my first Court of Criminal Appeals argument, you can imagine, it made a deep impression. It’s part of my personal history now. I was scared to death, even though I had clerked on the Court of Criminal Appeals, I had lots of great preparation at my firm. I mentioned judge Cathy Cochran, she and I got the opportunity to work very closely on this case. As a little bit of background, this was an appeal of the criminal conspiracy statute of the open meetings act. Our client was accused of conspiring with other county commissioners of trying to subvert the open meetings act and having a closed meeting by talking to other commissioners. There’s a criminal conspiracy statute, and it was so bizarre because you only needed one person to commit the conspiracy. If you read the statute strictly, you could have a meeting without a quorum, and you can’t decide anything if you’re less than a quorum but that was a part of the conspiracy statute.
A lot of problems with that statute. We were fortunate enough to have a client who had the stomach to endure a long appeals process. You heard me mention earlier that, as a new attorney, I was naive enough to think that we could file a motion to dismiss and Rusty created a great record during the evidentiary hearing on that motion. This is that same case. We were able to convince the trial judge that this conspiracy statute violated the First Amendment, was overbroad, and vague. Talking about the State’s right to appeal, the State appealed to the Ninth Court of Appeals that ruling by the trial judge. We lost; or our client lost at the Ninth Court of Appeals. It started off as a writ by the way. That’s one of the writs that can go through the intermediate court. We took that writ up to the Court of Criminal Appeals. We were granted oral argument. They denied it at first but then they granted it. Todd and Jody, maybe you can tell me, but does the Texas Supreme Court travel to different areas of Texas and hold oral arguments?
The Court of Criminal Appeals also does that and so, that year that I argued, they happened to schedule their oral arguments to be in Houston for their one traveling show. We got the call like, “Would you do oral argument?” I thought, “I’m going to take it. You denied us the first time and apparently, we’re your second choice but we’ll take it.” That’s how we got granted oral argument. I had a few weeks to prepare for that. I was scared to death even though I knew all of these judges. It hadn’t been that long since I clerked on the bench. Oddly enough, when I was preparing the petition and Rusty and I were talking about, “Who do you think is going to rule in our favor? Who should we direct which arguments to?”
I knew Judge Richardson was going to rule against us. I thought he was a lost cause but Presiding Judge Keller takes an interest in First Amendment cases. That’s her particular area of interest. Even at the counsel’s table with Rusty right next to me, I was scared to death and I was walking up to that podium and I didn’t know if I was going to be able to do it. I managed to get out, may it please the court. I remembered my name, always important. I remembered my client’s name, also important. I was able to get a few sentences in. I don’t even think they let me talk for very long, which was a blessing because Judge Yeary fired off a question and I happened to have prepared for it, and then we were off to the races.
It was a very hot panel, but there are nine judges up there and they had a lot of questions. It was a discussion among legal nerds, so that was great. I actually split up my time between the main argument and the rebuttal. I spoke earlier about giving the opportunity to watch great oral advocates and Cynthia Orr made an impression on me because she divided up her time evenly into 10 minutes and 10 minutes. She knew that the main part of her argument was going to be rebutting the state’s arguments. I thought that was the same in our case. The briefs outlined our case for the unconstitutionality of this statute.
Other than answering a few questions, I thought it was going to be more responding to the state’s argument. I split up my argument the same way as Cynthia Orr did. Half and half. I had prepared up until the day before the argument because Judge Cochran, her advice to me was, “Do the moot courts. Reread all the cases and prepare hard, but the day before, go to a movie, do anything but think about that case, and go to bed early.” I don’t know if I followed that advice fully because I might’ve peaked at my notes for the oral argument. I did go to bed early thinking, “I’m going to be tossing and turning. Hopefully, I’ll get snatches of sleep in between.” I fell asleep for maybe an hour and then I pumped up in bed. I remember it so clearly. I thought, “I know the analogy that just encapsulates my argument.” I was excited. I thought, “This is great.” Judge Cochran is right. You need to let that brain relax and the ideas will come. I was excited about using that the next day, but still scared.
I should also mention that as part of my preparation, I knew these judges. There hadn’t been any turnover in the Court of Criminal Appeals yet. There has been after, but not at that time. I knew these judges, but I still did my research on each of them. I had been paying attention to Judge Elsa Alcala’s social media. I knew that she had taken one of her daughters to the Taylor Swift concerts. Taylor Swift is a source of inspiration for us all. I’m sure you would agree. Of course, having clerked at the Court of Criminal Appeals, I knew that Judge Yeary has 3 or 4 daughters.
He would also be familiar with Taylor Swift. There was one Taylor Swift lyric from the “Bad Blood” song. It said, “Band-Aids don’t fix bullet holes.” The State was saying we don’t need to strike the statute because the Attorney General’s office has defined and that’s what the criminal conspiracy statute means and my argument was, “That’s nice but they can’t just insert their language and we all live with it.” That’s the legislature’s job, to insert language. That’s not the AG’s job, not the judiciary’s job, that’s the legislature.
The AG’s office cannot fix this gaping hole in the statute with their opinion, so I got to use Band-Aids don’t fix bullet holes. There you have it, but Todd, that is not what I thought of the night before. By the way, I do not recommend this to any less-experienced advocates. It is very dangerous, as I’m sure Jody and Todd would say: humor can fall flat. Approach with caution. I was at least going to have two judges that knew who Taylor Swift was and might get a kick out of the reference. I was lucky that I got some laughter. I want to say, even Judge Keesler might’ve begrudgingly smiled. That went over well and I sat back down and Rusty was beaming. That affirmation from a great litigator like Rusty, made my day. That felt good.
You have to settle into listening to the opposing counsel’s arguments. Rusty and I were doing that and he’s passing me notes and we’re outlining what I’m going to say. I had another Taylor Swift quote in my back pocket that would go with this great analogy that I had thought about the night before, but going up there I was like, “I got away with one.” Know when to quit. Any good attorney has to know when to quit while you’re ahead, especially in an oral argument. You guys know very well, oral argument is usually not going to win you a case, but it can certainly lose you a case.
I should’ve stopped there and actually was going to stop there. Walking up there I was like, “No, I’m not going to do it.” I rebutted the State’s arguments and got lots of good questions. The State was arguing that, “This is a clear rule that elected officials have to follow because we need transparent open government.” What the defendant is arguing is to just get rid of the open meetings act. It’s a whole act. We weren’t trying to get rid of the whole act. We believe in an open and transparent government, but it was just this one criminal conspiracy statute.
By the way, there is a closed meeting statute, and there’s a criminal penalty for violating that. It was an unnecessary and unclear statute, but the State was arguing, “No, the rules are clear and elected officials should have no trouble abiding by it.” I said, “The State is telling you that there are rules. They’re clear and you just have to follow them. You can have a strict father and a strict father has rules. They’re clear, you know if you break a rule, you’re going to get punished, but this statute is like the rules of a crazy abusive boyfriend. He’s got rules too, but you never know when you’re going to be punished or what you’re going to be punished for. You, the judges, need to tell this statute that we are breaking up and we are never ever getting back together.” I know, I didn’t plan on going there, but it just lent itself to that Taylor Swift lyric. I got laughs again and apparently, it was so successful. I didn’t get to hear it directly because I was outside with my client, but the next case that was in front of the judges for oral argument, apparently the advocate there also used a Taylor Swift lyric.
You started a thing.
I did. I don’t know how familiar you guys are with Taylor Swift’s catalog, but I think she’s got a lyric for every situation in life.
This sounds like a CLE paper.
It does. Winning with Taylor on Appeal.
I’ve never heard of anyone using Taylor Swift references during oral argument, even once, much less twice. Congratulations on not only getting away with it but apparently having some success.
I do not recommend this, but like we were discussing before, young and new advocates are willing to take risks that any experienced appellate advocate would never do. They would tell you, “No, it’s too cute. Don’t do it.” I was too stupid to know better.
That’s quite a story, Naomi.
That’s a good story.
Thank you for sharing that with us and thanks for being with us.
This has been great.
Thank you both. It’s so easy to talk with you guys, so thank you.
- Rusty Hardin
- Stephanie Stevens – LinkedIn
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About Naomi Howard
Naomi Howard is a dedicated advocate who calmly navigates crises and fearlessly challenges injustice. For Naomi’s clients, these skills bring results that include pretrial dismissal of charges, deferred adjudication and appellate victories.
Naomi’s practice focuses on investigations and criminal defense matters in Texas and federal courts. She has represented elected officials, professional athletes, corporate officers and students, all of whom faced life-altering criminal charges or investigations.
Though Naomi’s public victories have drawn acclaim — such as when the Texas Court of Criminal Appeals declared a law facially unconstitutional based on her appellate work — Naomi is equally proud of the discreet ways she has helped innocent clients avoid charges or trial.
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