email: gsreports@texindbar.org Published By Texas Independent Bar Association Austin, Texas 78767 Web Page: www.texindbar.org Alan Curry Helena Faulkner Jeffrey S. Garon Lee Haidusek Copyright 2013 Texas Independent Bar Association and the following Commentators John G. Jasuta Charles Mallin Gail Kikawa McConnell Angela J. Moore Editor-in-Chief: John G. Jasuta Doug O Brien Greg Sherwood David A. Schulman Kevin P. Yeary Clicking a hyperlink (such as a judge s name) will load the linked opinion or document in your web browser. It is TIBA s policy that commentators do not summarize or comment on cases in which they were involved. Volume 21, Number 23 ~ Monday, June 10, 2013 (No. 964)
Featured Article June Pot Pie David Schulman RETURN TO TABLE OF CONTENTS A number of years ago, starting sometime in the late 1980s, the Lubbock County Bar Association had a yearly seminar with sections designed for just about anyone who practiced law in Lubbock County. They called it the Annual Potpourri Legal Seminar. At one of our monthly Bar Association meetings, the Hon. J.Q. Warnick, a former Lubbock County Court at Law Judge and then the Federal Magistrate Judge for the Lubbock Division of the Northern District of Texas, referred to it as the Pot Pie seminar. With both credit and apologies to Judge Warnick, I m borrowing his rebadging for this report, which addresses several subjects. David A. Schulman, one of the founders of TIBA, has been a co-author of this report for many years. He was a member of the Court of Criminal Appeals' staff in 1991-1993, and has been lead counsel in hundreds of direct appeals and habeas corpus proceedings. David reviews every published criminal case from the Court of Criminal Appeals and every Court of Appeals on a daily basis. He has been Board Certified in Criminal Law since 1991 and was the first lawyer to apply for certification in the Criminal Appellate specialization area. He was one of the first attorneys to become Board Certified in both Criminal Law and Criminal Appellate law. See his website at www.davidschulman.com. TIBA s Texas Law Reporter - Vol. 21, No. 23 - June 10, 2013 - Page 1
Report on Our Computer Crash It is probably necessary to explain the problems with TIBA s computer system, and why there were no reports for the last 11 days, so I will detail what happened. There is a two-part lesson here. First, off you think you have planned for all eventualities, you're wrong. Plan some more. Second, even if your back-up plan(s) are properly designed and you avoid any loss off data, you simply cannot avoid the "pain in the " factor. As you probably are aware, our weekly reports involve a large group of contributors. The daily reports, however, are something that John Jasuta and I put together. The writing is a joint effort. The compiling and coding the website and sending the report is something I do. Now for the problem. 30th. I left for the United Kingdom on the Prior to leaving I had our IT guru modify the TIBA laptop so I could upload all of the necessary files to our site. Additionally, we added a new mail client so that I could distribute the daily and weekly messages. These, I am afraid, must be assigned to the best laid plans of mice and men department. 1 Within hours of arrival at our first destination, disaster struck. The following is from a report by Alfred Holt to an 1877 meeting of the American Dialect Society: 2 It is found that anything that can go wrong at sea generally does go wrong sooner or later, so it is not to be wondered that owners prefer the safe to the scientific... Sufficient stress can hardly be laid on the advantages of simplicity. The human factor cannot be safely neglected in planning machinery. If attention is to be obtained, the engine must be such that the engineer will be disposed to attend to it. Translation: Anything that can go wrong, will go wrong (Murphy s Law). 1 The best laid schemes o' mice an' men gang aft a-gley. Robert Burns; To a Mouse. 2 Holt, Alfred. "Review of the Progress of Steam Shipping during the last Quarter of a Century," Minutes of Proceedings of the Institution of Civil Engineers, Vol. LI, Session 1877 1878; Part I, at 2, 8 (November 13, 1877 session, published 1878)". Listserv.linguistlist.org. 2007-10-10. Retrieved 2012-04-19. TIBA s Texas Law Reporter - Vol. 21, No. 23 - June 10, 2013 - Page 2
I had used my laptop on the plane to the UK, then on the train to Wales. Once we got to our B&B it was time to check email. So, I sat down in the most comfortable chair in our room and, as I shifted around to get something, the laptop slid off my lap and fell to the floor. I immediately attempted to access the computer -- with no luck. I tried several different work arounds, but soon realized that the TIBA computer was out of action until it was back in the States. With our computer out of commission, the daily and weekly reports were not a possibility. Hence the cryptic message you received on the 31st. In any event, the bottom line is that the major computer crash referred to in the email you received was caused by fundamental operator error. In my defense, I never claimed to be anything less than clumsy. Follow-Up on Computer Advice We have had two reports this year on the 21st Century law office and protecting your computer systems. As a follow-up to those reports, and so you ll know that, at TIBA, we practice what we preach, our data protection planned worked. The apparent loss of that hard drive was especially frustrating at that particular point in time, because, among other things, we had paid a lot of money for a drive which is supposed to be crash proof. As it turns out, that was a good investment. Although we thought the driver had cratered, we had no data loss whatsoever. Having planned certain activities on the computer (not the least of which would have been copying photographs from the digital camera), the lack of access to the laptop was a major pain. As we may have mentioned, however, a great data back up plan won t eliminate the pain that follows a computer crash, it can only prevent data loss. You still have to go through the pain. TIBA s Texas Law Reporter - Vol. 21, No. 23 - June 10, 2013 - Page 3
Follow-Up on Memorial Day Article I have received more than a few comments (all positive) regarding the Memorial Day article at the end of last month. The trip to the UK added to my experience. On May 31st, I was in Tenby (Wales) - a beautiful city. It s history dates to pre-norman times, with indications that the Romans had some activity there, as did the Vikings. On nearby Caldey Isand, there is a Norman built (and amazingly named) church (St. David s), which is the parish church for this small island, currently home to Cistercian monks. There is also another church from the same period (St. Illtyd's), which probably on the site of a Celtic church which houses the Caldey Stone, which dates from the 6th century. Tenby s first corporate charter was issued in the 12th century, and the original town is still surrounded by massive Norman built battlements. When walking along the city wall on our way back from dinner the first evening we passed a memorial to Tenby, Wales (UK) -- May 31, 2013 The Caldey Stone Tenby s citizens who lost their lives during the Second World War. I could not help but notice that the monument was strewn with decorations. My understanding is that they don t celebrate Memorial Day in the United Kingdom, by have Remembrance Day -- celebrated on November 11th each year. Nevertheless, here was this decorated memorial to citizens long gone, on the day about which I had made such noise. I was, to say the least, mightily moved. This wouldn t be the last time that happened. From Tenby, we traveled to York, another ancient and beautiful city. I ve been to York on previous occasions, but never tire of the history lessons provided by a Scottish friend who has lived in York for many years. I discover something new every trip. TIBA s Texas Law Reporter - Vol. 21, No. 23 - June 10, 2013 - Page 4
Clifford s Tower - originally York Castle Many of you probably know of the York Minster. I have been equally impressed with medieval churches still in use as parish churches today. York had 45 parish churches in 1300 -- 20 survive, in whole or in part. All Saints Church on North Street, for example, a short walk from the Minster, is still in use and has a plaque listing its rectors back to the year 1215. This year we visited the National Railway Museum. On our way to museum we stopped for a picnic lunch at a park which I believe is Wellington Row park. It s hard not to notice the large memorial in the center of the park, dedicated to dead of the two world wars. I noticed four smaller memorials, at four corners of the center walk. Only one of the five was decorated. We had lunch at the park on June 5th. The decorated memorial was marked Normandy 1944. A bright red wreath someone had laid had fallen off the base, so I took a second to return it. Before we left York the next morning for London, two different people reminded me that it was June 6th. The day before we left London for home, we spent some time in Hyde Park. Four of the war memorials there were decorated, all set their by New Zealanders. Many of my feelings about war memorials and the importance of honoring those who have died making it possible for me to live the way I do have their origin in visits to various locations in the UK and the Commonwealth of Nations (the British Commonwealth ). I was long ago struck by the (too many) memorials one sees dedicated to people who died during the First World War. I am speaking of small memorials. Plaques in churches and social clubs. At universities and in public gardens. I have seen them all over England and Scotland, and as far afield as the South Island of New Zealand. That I should see this memorials everywhere we went in the UK was no surprise. To find one in Tenby decorated on May 31st, however, certainly was. The others were not surprises, simply reminders. TIBA s Texas Law Reporter - Vol. 21, No. 23 - June 10, 2013 - Page 5