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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Criminal Law
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Experience:  19+ Years of Legal Practice in Criminal Law.
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The insurance lawyer in my civil case told me that the photo

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The insurance lawyer in my civil case told me that the photo evidence wouldn’t matter, that the court would find my guilty simply because the woman died (whether it was my fault or not!)

So far, he’s been right. I also noticed the prosecutor went out of his way to keep the pictures from being considered. I’m beginning to think I should follow his strategy (but in reverse). The transecript contains references to the woman’s death, so I want to omit the transcript except the judge’s ruling comments.

This is consistent with advice given me by another expert. An acclaimed appellant attorney referenced by that expert recommends only putting the strongest argument into the appeal. Because putting weak arguments next to strong arguments dilutes the court’s focus. What I’ve decided to do is limit my appeal to my motion to dismiss & motion for summary judgment.

Since neither of these were discussed while the court reporter was recording, I think I should be able include only the judge’s ruling where he puts his foot in his mouth by saying: a motion to quash was not filed (when in fact) a motion to dismissed was filed.

The below paragraphs are the basic points I want to make in my appeal. If I can get by with only that part of the transcript that contains the judge’s error, I think its to my advantage. I’m going to re-word the SECOND ISSUE so it makes no reference to the trial court’s proceeding. Comments? Thoughts?


First Issue: The trial court trounced Defendant’s due process rights when it forgot and then omitted Defendant’s (motion to dismiss) from Defendant’s trial.

In its comments before ruling on January 10, 2013; the trial court indicated that a certain “Motion to Quash” probably would have been treated favorably by the trial court, but no such motion type was filed. However, online case history found at:
https://www.austintexas.gov/AmcPublicInquiry/query/psnquery.aspx?query=3&case=7735475
shows that on 6/22/2012, the trial court received Defendant’s motion to quash (aka: “Motion to Dismiss).” Said history shows on 6/28/2012, the trial court ordered a hearing in response to said motion. Said history further shows a hearing occurred on 7/19/2012. However, subsequent entries indicate said motion received no ruling. Given that the trial court apparently forgot that said motion was filed, and given that the trial court indicated said motion probably would have made a difference in its ruling - in the interest of justice – the Defendant should receive due process rights by being granted a new trial so the trial court can incorporate said motion into the Court’s decision. OR, per RULE 320; judgment should be set aside, and the Defendant be granted a new trial on matters in controversy.
[R](See print-out of online docket history, attached as Exhibit R.)
[F] (See transcript of oral explanation of judgment, attached as Exhibit F.)

“Exhibit F”
XXXXX Okay. Let me go ahead and
6 give a verdict in this particular case. It comes down
7 to a couple things. I guess the first thing is a
8 pretrial matter that was decided initially and that --
9 well, it wasn't raised. What could have been raised was
10 a motion to quash that the complaint was not specific
11 enough. I'm going to say that was waived because no
12 one -- you didn't bring it up. And that was -- it says
13 in the complaint that the defendant did operate a motor
14 vehicle on Jollyville Road and its intersection with
15 West Braker Lane, the intersection of two public streets
16 when a pedestrian -- a pedestrian control signal
17 indicating walk was the place for pedestrian traffic
18 crossing Jollyville Road, and did fail to yield the
19 right-of-way to a pedestrian crossing the roadway within
20 a crosswalk -- here's the kicker -- when said pedestrian
21 was proceeding across said roadway in the direction of
22 the pedestrian signal.
23 If you want to be specific, I think what
24 State could have -- should have pled was the pedestrian
25 is one-half -- is one -- on the half of the roadway in
4
1 which the vehicle is traveling or approaching so closely
2 from the opposite side -- opposite half of the roadway
3 as to be in danger. That could have been a motion to
4 quash. I would have granted that. And since the State
5 had to be more specific, that wasn't raised. So we go
6 forward. We go forward with the testimony that was --
7 I'm saying that should have been a motion to quash,
8 maybe I would have granted that, had that been objected
9 to. It was not. And I look in the file. I don't see
10 that.
11 But to the facts of the case from the
12 evidence that has been presented, I am going to find the
13 defendant guilty of the offense charged and impose a
14 fine of $300. Let me go ahead and write that judgment
15 up. And as soon as I do, you will have that -- a
Submitted: 1 year ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 1 year ago.
Hi again, with regard to your post:

The insurance lawyer in my civil case told me that the photo evidence wouldn’t matter, that the court would find my guilty simply because the woman died (whether it was my fault or not!) -- Civil is different than criminal with entirely different burdens of proof. If the statute underwhich you were charge indicated strict liability if there is a death, without proof of having done the act (but just being in the vicinity), I'd agree with the insurance lawyer. But a basis such as that, not backed up legally, would be overturned on appeal.

So far, he’s been right. Again, if the Judge said, I'm finding you guilty because a person died, therefore you must be guilty - I'd appeal that abuse.

I also noticed the prosecutor went out of his way to keep the pictures from being considered. If he objected to your presentation of same, and he won that objection, you can appeal that.

I’m beginning to think I should follow his strategy (but in reverse). The transecript contains references to the woman’s death, so I want to omit the transcript except the judge’s ruling comments.
On appeal? Either side can bring in anything that is in the record. Rather, if you objected to testimony, during the trial about the death, on the basis of, say, it being prejudicial (which is hard to argue if you forewent a jury trial in favor of a bench trial, since judges are usually considerd adept at not letting non-factors of guilt prejudice them) - and if the judge over-ruled you, then you can appeal it. But again, given that no jury heard it, an appellate court may find that even if it was error, it was "harmless error."

This is consistent with advice given me by another expert. An acclaimed appellant attorney referenced by that expert recommends only putting the strongest argument into the appeal. I would certainly not put in BS arguments - it does arguably damage your appeals credibility. But there are two trains of thought on appeal. Lead with your strong points but include all truly appealable issues (because what is not so strong to you may be quite strong from an objectively legal standpoint) - because if you don't, you lose them permanently.

Because putting weak arguments next to strong arguments dilutes the court’s focus. Yes, if you are not really experienced in how to include them without diluting, that is likely true.

What I’ve decided to do is limit my appeal to my motion to dismiss & motion for summary judgment. Sounds good. Not sure what other issues you were considering.

Since neither of these were discussed while the court reporter was recording, I think I should be able include only the judge’s ruling where he puts his foot in his mouth by saying: a motion to quash was not filed (when in fact) a motion to dismissed was filed. I don't see why not at this point. It seems to be "on the face" of the record, plain error.

The below paragraphs are the basic points I want to make in my appeal. If I can get by with only that part of the transcript that contains the judge’s error, I think its to my advantage. Well, you won't be including things that are not helpful, unless they defeat what you are arguing, in which case you likely want to so you can refute them, show why they are not defeating, and not appear to be trying to gloss it over the appellate court's head. That typically doesn't work - (they truly are experts). Remember, the State WILL bring them up if they can be argued to defeat your argument.

I’m going to re-word the SECOND ISSUE so it makes no reference to the trial court’s proceeding. Comments? Thoughts?


First Issue: The trial court trounced Defendant’s due process rights when it forgot and then omitted Defendant’s (motion to dismiss) from Defendant’s trial.
You may want to use less colorful language... or not. And do you mean, when it forgot to rule on the Defendant's motion to dismiss for XXX, filed XXX date, and then later, at trial, indicated it would have been granted had the motion been made.

Given that the trial court apparently forgot that said motion was filed, and given that the trial court indicated said motion probably (Didn't it actually say, "I would have granted it" or something more definitive than "probably") -- would have made a difference in its ruling - in the interest of justice – the Defendant should receive due process rights by being granted a new trial so the trial court can incorporate said motion into the Court’s decision. OR, per RULE 320; judgment should be set aside, and the Defendant be granted a new trial on matters in controversy. Sounds OK.

I'm unsure what Point 2 is.

Also, are you not appealing the fact that your photo evidence was denied as evidence?


I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



-------



I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



You can ask for me directly in the future by starting your post with "To Alexia Esq." Or bookmark this page, and go to: http://www.justanswer.com/law/expert-AlexiaEsq/



Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and presenting your issue to your lawyer if need be. I am an Attorney in the U.S. but I am not your attorney.

Customer: replied 1 year ago.

First Issue: The trial court trounced Defendant’s due process rights when it forgot and then omitted Defendant’s (motion to dismiss) from Defendant’s trial.


In its comments before ruling on January 10, 2013; the trial court indicated that a certain “Motion to Quash” probably would have been treated favorably by the trial court, but no such motion type was filed. However, online case history found at:


https://www.austintexas.gov/AmcPublicInquiry/query/psnquery.aspx?query=3&case=7735475


shows that on 6/22/2012, the trial court received Defendant’s motion to quash (aka: “Motion to Dismiss).” Said history shows on 6/28/2012, the trial court ordered a hearing in response to said motion. Said history further shows a hearing occurred on 7/19/2012. However, subsequent entries indicate said motion received no ruling. Given that the trial court apparently forgot that said motion was filed, and given that the trial court indicated said motion probably would have made a difference in its ruling - in the interest of justice – the Defendant should receive due process rights by being granted a new trial so the trial court can incorporate said motion into the Court’s decision. OR, per RULE 320; judgment should be set aside, and the Defendant be granted a new trial on matters in controversy.


[F] (See transcript of oral explanation of judgment, attached as Exhibit F.)


“Exhibit F”


THE COURT: Okay. Let me go ahead and
give a verdict in this particular case. It comes down to a couple things. I guess the first thing is a pretrial matter that was decided initially and that -- well, it wasn't raised. What could have been raised was a motion to quash that the complaint was not specific enough. I'm going to say that was waived because no one -- you didn't bring it up. And that was -- it says in the complaint that the defendant did operate a motor vehicle on Jollyville Road and its intersection with West Braker Lane, the intersection of two public streets when a pedestrian -- a pedestrian control signal indicating walk was the place for pedestrian traffic crossing Jollyville Road, and did fail to yield the right-of-way to a pedestrian crossing the roadway within a crosswalk -- here's the kicker -- when said pedestrian was proceeding across said roadway in the direction of the pedestrian signal. If you want to be specific, I think what State could have -- should have pled was the pedestrian is one-half -- is one -- on the half of the roadway in which the vehicle is traveling or approaching so closely from the opposite side -- opposite half of the roadway as to be in danger. That could have been a motion to quash. I would have granted that. And since the State had to be more specific, that wasn't raised. So we go forward. We go forward with the testimony that was -- I'm saying that should have been a motion to quash, maybe I would have granted that, had that been objected to. It was not. And I look in the file. I don't see that. But to the facts of the case from the evidence that has been presented, I am going to find the defendant guilty of the offense charged and impose a fine of $300. Let me go ahead and write that judgment up. And as soon as I do, you will have that -- a copy of that as well. Thank you.
MR. FLORES: Thank you, XXXXX XXXXX May the State be excused?
THE COURT: You may.
(End of proceedings)


 


Second Issue: The trial court abused its discretion when it dismissed assistance identification aids (meant to assist the trial court in locating relevant images within dark & rainy conditions) within picture evidence.


 


This issue presents for determination the question whether Defendant’s picture handling technique (meant to aid the Court in locating relevant images within dark & rainy conditions) constitute a corruption of said picture so that the evidentiary value of the whole picture presentation is rendered useless. In this case, the answer is “NO.” Defendant’s picture handling technique utilized two sets of pictures: one set contained marking designed to aid the reader in locating relevant images with said pictures; the second set was “raw” (no making). The trial court appeared to be offended by markings on the marked picture set, and thereby apparently dismissed the evidentiary value of the whole presentation (marked & raw). However, Defendant was justified in his picture handling technique because the pictures were taken by a windshield mounted camera in dark & rainy conditions. Moreover, if the trial court felt it would be compromised by viewing the marked picture set, nothing prevented the trial court from looking strictly at the unmarked set and posing questions about the location of relevant images. The trial transcript reveals that the trial court announced difficulty in indentifying relevant images within said pictures, but it did not invite the assistance of Defendant in identifying said images. Given the dark & rainy conditions in which said pictures were taken, the trial court should have “erred on the side of caution” and invited Defendant & the State to aid in the identification of pertinent images. At the end of said assistance, the trial court would still be free to agree or disagree with either or both contributors.

Expert:  AlexiaEsq. replied 1 year ago.
See here: " I would have granted that." Not just, "probably." He blatantly says he would have. So if you made that motion based on lack of specificity in the complaint, seems a good argument.

AND:

Second Issue: The trial court abused its discretion when it dismissed assistance identification aids (meant to assist the trial court in locating relevant images within dark & rainy conditions) within picture evidence.



This issue presents for determination the question whether Defendant’s picture handling technique (meant to aid the Court in locating relevant images within dark & rainy conditions) constitute a corruption of said picture so that the evidentiary value of the whole picture presentation is rendered useless. In this case, the answer is “NO.” And I think you could be right - get some case law if you can, on how marking up a photo does not necessarily defeat it. Particularly if it is not changing the picture. Moreover, couldn't you have just gone home to your computer and reprinted them without the mark ups, then demonstrated the same 'assistance' in court, with a pointer OR by comparing the marked and the unmarked.

 

Defendant’s picture handling technique utilized two sets of pictures: one set contained marking designed to aid the reader in locating relevant images with said pictures; the second set was “raw” (no making). OOPS you read my mind :)

 

The trial court appeared to be offended by markings on the marked picture set, and thereby apparently dismissed the evidentiary value of the whole presentation (marked & raw). If nothing else, he could have admitted the unmarked and not the marked.


However, Defendant was justified in his picture handling technique because the pictures were taken by a windshield mounted camera in dark & rainy conditions. At the time of the accident?

 

Moreover, if the trial court felt it would be compromised by viewing the marked picture set, nothing prevented the trial court from looking strictly at the unmarked set YES! Unless the judge thinks HE can be prejudiced, lol.

 

and posing questions about the location of relevant images. The trial transcript reveals that the trial court announced difficulty in indentifying relevant images within said pictures, but it did not invite the assistance of Defendant in identifying said images. But you HAD offered, right? And he shot you down.

 

Given the dark & rainy conditions in which said pictures were taken, the trial court should have “erred on the side of caution” and invited Defendant & the State to aid in the identification of pertinent images. At the end of said assistance, the trial court would still be free to agree or disagree with either or both contributors. I agree. Another way to say this may be "the markings or dark condition of the scene should not have prevented admission into evidence OR using in your direct or cross but, rather, should have gone to the weight of the evidence...." if that photo was authenticated, etc.

 

Good job.

 

I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



-------



I think this is what you wanted to know. If not, please let me know and we can interact further. Otherwise, I wish you the best and ask that you Rate me now. HINT: I aim to provide only EXCELLENT SERVICE and ask that you click a rating on the RIGHT side of the choices OR, follow up with me if you need more follow up or clarification. AND, WHEN YOU DO RATE ME POSITIVELY, PLEASE SEND ME A REPLY LETTING ME KNOW YOU ARE DOING SO, SO WE CAN ENSURE IT GETS RECORDED. THANKS!



You can ask for me directly in the future by starting your post with "To Alexia Esq." Or bookmark this page, and go to: http://www.justanswer.com/law/expert-AlexiaEsq/



Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and presenting your issue to your lawyer if need be. I am an Attorney in the U.S. but I am not your attorney.


AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 11713
Experience: 19+ Years of Legal Practice in Criminal Law.
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