5. (see G&S, Vol. 18, No. 31; 08/16/10) - Given to the Ninth Court of Appeals for its reallly bad opinion in Castilow v. State, S.W.3d (Tex. App. - Beaumont; Nos. 09-08-0559-CR, 09-08-0560-CR, and 09-08-0561-CR; August 4, 2010).

Despite the fact that the trial judge said he was rejecting the plea bargain agreement and certified that the case was not a plea bargain, the Court of Appeals held that, because the trial court assessed punishment as reflected in the plea agreement, Appellant has no right to appeal under Rule 25.2(a)(2), Tex.R.App.Pro.

(David A. Schulman) In my opinion, this is the dumbest, most illogical and worst opinion of the year. First, the "modified" plea bargain is something the Court of Appeals has created out of whole cloth -- it's based solely on the defense lawyer's request that the trial court postpone sentencing for 30 days. I've never heard that asking for a specific date for sentencing was considered part of the plea bargain -- nor is there anything in the opinion saying that sentencing that day was even considered in the plea bargain. Modified plea bargain -- BS. Second, the trial court said told Appellant that, that, if she broke the law, "I will reject the plea bargain, " meaning that he had not at that point "accepted" the plea bargain [see Perkins v. Third Court of Appeals, 738 S.W.2d 276 (Tex.Cr.App. 1987] When Appellant broke the law, the judge announced he was rejecting the plea bargain. After sentencing, the trial judge certified that "this is not a plea bargain case" and that Appellant had the right to appeal. Nevertheless, without ever telling us what was the agreed upon sentence or what sentence the trial court imposed, the Court of Appeals held that the " trial court assessed punishment as reflected in the modified plea agreement," and therefore Appellant has no right to appeal. That's a new one on me. In essence, this Court of Appeals is holding that, if a defendant agrees to a plea bargain which the judge never accepts and specifically announces that he will not follow, the defendant still may not appeal if the judge doesn't impose a sentence which exceeds the plea bargain that was never accepted. This is complete and utter nonsense. I sort of agree with Justice Gaultney. The Court of Criminal Appeals has held, in Murray v. State, 302 S.W.3d 874 (Tex.Cr.App. 2009)(see G&S, Vol. 17, No. 47; 11/30/09), that a defendant may withdraw his guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case has been taken under advisement. Since the learned trial judge had not entered judgment, there is a fact question as to whether he took this case under advisement. The bottom line is that there was no plea bargain, the trial court could not and did not follow the plea bargain, so the issue Appellant raised on appeal should be addressed on appeal. Dumb, dumb, dumb!

4. (see G&S, Vol. 16, No. 46; 11/24/08) - Given to the Third Court of Appeals for its horrendus opinion in Martinez v. State, 268 S.W.3d 777 (Tex. App. - Austin, November 14, 2008).

(David A. Schulman) This is a very poorly written opinion. Appellant raised two separate and distinct points of error, but, relying on the State's argument, the Court of Appeals addressed them as one. (Karyl Anderson Krug) Not only is this opinion unreadable, but it also commits the heresy of the god awful hybrid grammatical-legal analysis, which is almost always more confusing and/or superfluous than it is instructive. Amazingly, when the State confesses error, this court concludes "The State is correct . . . ." Even when the State is wrong it's right at this Court! The Third Court has become a court, at least as to criminal matters, that has thrown logic, consistency, making sense, and good legal writing, if not the law itself, right out the window, to its great discredit. The Angel Martinez opinion is fourteen pages long, and it is a confusing, turgid wreck of an opinion. What is it about criminal law that says to this Court: We don't have to make sense if we don't feel like it? Things are so bad at this Court that professional collegiality gave way to Dissentgate, in which recently deposed Chief Justice Ken Law censored fellow Justice Jan Patterson. Even previous runaway award winner the Waco Court of Appeals hadn't thought of that one. And the MarvinAward goes to . . .

3. (see G&S, Vol. 16, No. 8; 03/03/08) - Given to the Court of Criminal Appeals (Kudos!) for trying to chastising the Dallas (5th) Court of Appeals for its unpublished opinion in Taylor v. State, No. 05-06-01076-CR (Tex. App.-Dallas Sept. 18, 2007).

(David A. Schulman) This case merits our Marvin award, only the third. As you know, we award these rarely, with the first of our previous awards being given to the Waco Court of Appeals for it's bad acts, and second being awarded to the Ft. Worth Court for its good acts. We've noticed over the last four years how rarely the Dallas deigns to honor us with a published opinion (by our count only 63 published opinions in 2,296 cases in the last four years, and only 10 published opinions in the last two years), but, of late, we've heard rumors of new "super secret" procedures being implemented at the Dallas Court, causing lawyers much consternation - - and paperwork. Here's a perfect example. The State's request to abate and remand was not only perfect reasonable, it was perfectly logical. The Court, however, took it's own tack - and was soundly chastised by this opinion. Kudos to the CCA for straightening this out, while the Fifth Court gets sent to its room for a time out. Bad Court! No donuts!

2. (see G&S, Vol. 13, No. 44; 11/21/05) - Given to the Ft. Worth (2nd) Court of Appeals for its decision in Bray v. State 179 S.W.3d 725 (Tex.App. - Ft. Worth 2005).

Appellate counsel filed an Anders brief. The Court, however, recognized that the trial court, by including in the judgment a requirement that Appellant pay $1,150 for attorney's fees "as a term of parole," had included an illegal "condition of judgment." However, rather than remand the case to the trial court for appointment of a new attorney, who could then "raise the illegality of the condition . . .," the Court of Appeals decided to simply reform the judgment by striking the offense term.

(David A. Schulman)We salute the Second Court for its far sighted opinion, short-cutting the administrative process, avoiding "appellate orbit," and recognizing the importance of judicial economy. In about eight extra pages of print (a "normal" Anders opinion is two pages or less), this Court accomplished what would take other appellate courts literally years to do, and has avoided multiple processes and thousands of dollars in wasted judicial resources. Thus, we award our second Marvinaward winner to the Ft. Worth Court of Appeals for this decision. (Alan Curry) I wonder if the Court of Criminal Appeals is going to permit the Fort Worth court to do this in light of the just-released Bledsoe opinion (see above).

1. (see G&S, Vol. 13, No. 30; 08/08/05) - Given to the Waco (10th) Court of Appeals for the continual stream of groans and laughs they bring to the bench and bar.

(Karyl Anderson Krug)They did have the good judgment to cite at length the very excellent Waddell v. State, 918 S.W.2d 91 (Tex.App. - Austin 1996, no pet.)(see G&S, Vol. 4, No. 10; 03/24/96) in their Jones opinion (No. 10-04-0044-CR). However, looking at this week's output as a mini-snapshot of what this court is all about, they gave us one opinion where there was no evidence in the record to support the claims raised, two additional opinions in misdemeanor cases that no one is certain to agree with, and two dissents. Judge Gray's dissent in Steels (No. 10-04-0107-CR) rivals Judge White's famous dissent in Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996)(see G&S, Vol. 4, No. 3; 02/08/1996), as a pithy, yet somewhat entertaining, appraisal of his colleagues' handiwork. And who can forget what is still my favorite case of the past year, Watson v. State (No. 10-03-0216-CR), where two justices made it very clear that the only appropriate way for a woman to respond to an exposed and aroused stranger in her kitchen is to offer him doughnuts and a latte. I realize that I now read this court's opinions with great anticipation, wondering what amazing act of incomprehensible law-fu, or expression of undisguised contempt for same, will be coming out of that court this week. This is the judicial version of Sartre's "No Exit."