automatic rule in Texas

2020The Court explained that “[a]lthough the lack of a record may in some cases deprive an appellate court of the ability to determine whether the absent portions are necessary to the appeal’s resolution, an automatic rule of reversal is not justified.” Id.

2014Gutierrez v. State Page 8 an appellate court of the ability to determine whether the absent portions are necessary to the appeal’s resolution, an automatic rule of reversal is not justified. 989 S.W.2d at 757 .

2007Cf. Bell v. Cone, 535 U.S. 685, 697-98 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002) (declining to presume prejudice in case where counsel was allegedly mentally ill because appellant had not brought forth uncontradicted proof of evidence regarding counsel’s mental health and where claimed professional errors were of same type Court has typically held subject to Strickland’s two-pronged approach); McFarland, 163 S.W.3d at 753-54 (under circumstances, no prejudice presumed).

2007Cf. Bell v. Cone, 535 U.S. 685, 697-98 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002) (declining to presume prejudice in case where counsel was allegedly mentally ill because appellant had not brought forth uncontradicted proof of evidence regarding counsel’s mental health and where claimed professional errors were of same type Court has typically held subject to Strickland’s two-pronged approach); McFarland, 163 S.W.3d at 753-54 (under circumstances, no prejudice presumed).

2007Cf. Bell v. Cone , 535 U.S. 685, 697-98 (2002) (declining to presume prejudice in case where counsel was allegedly mentally ill because appellant had not brought forth uncontradicted proof of evidence regarding counsel's mental health and where claimed professional errors were of same type Court has typically held subject to Strickland 's two-pronged approach); McFarland , 163 S.W.3d at 753-54 (under circumstances, no prejudice presumed).

2007Cf. Bell v. Cone, 535 U.S. 685, 697-98 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002) (declining to presume prejudice in case where counsel was allegedly mentally ill because appellant had not brought forth uncontradicted proof of evidence regarding counsel’s mental health and where claimed professional errors were of same type Court has typically held subject to Strickland’s two-pronged approach); McFarland, 163 S.W.3d at 753-54 (under circumstances, no prejudice presumed).

2001The appellant has the burden of demonstrating that the missing portion of the record is "necessary to the appeal's resolution." See id. ; Alvear v. State , 25 S.W.3d 241, 245 (Tex. App.-San Antonio 2001, no pet.).

2001The appellant has the burden of demonstrating that the missing portion of the record is "necessary to the appeal's resolution." See id. ; Alvear v. State , 25 S.W.3d 241, 245 (Tex. App.-San Antonio 2001, no pet.).

2001School Dist. , 821 S.W.2d 174, 176 (Tex. App.-Houston [14th Dist.] 1991, no writ)(if no response is filed, there is not an automatic waiver of appellate review).

2001School Dist., 821 S.W.2d 174, 176 (Tex.App. — Houston [14th Dist.] 1991, no writ)(if no response is filed, there is not an automatic waiver of appellate review).

1996The Clemons Court pointedly noted that failure to perform meaningful appellate review would result in an automatic rule of affirmance that would be invalid under Lockett, supra, and Eddings, supra, “for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating and aggravating circumstances.” Clemons, 494 U.S. at 752 , 110 S.Ct. at 1450 . 4 See also, Parker v. Dugger, 498 U.S. 308, 321-322 , 111 S.Ct. 731, 739-740 , 112 L.Ed.2d 812 (1991) (Appellate review of mitigating evidence by the Florida Supreme Court was so deficient as to

1996The Clemons Court pointedly noted that failure to perform meaningful appellate review would result in an automatic rule of affirmance that would be invalid under Lockett, supra, and Eddings, supra, “for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating and aggravating circumstances.” Clemons, 494 U.S. at 752 , 110 S.Ct. at 1450 . 4 See also, Parker v. Dugger, 498 U.S. 308, 321-322 , 111 S.Ct. 731, 739-740 , 112 L.Ed.2d 812 (1991) (Appellate review of mitigating evidence by the Florida Supreme Court was so deficient as to

2022See id. § 92.109(c), (d); see also Schneider v. Whatley, 535 S.W.3d 236, 241 (Tex. App.—El Paso 2017, no pet.).

2016In Dale v. Quarterman, the Fifth Circuit noted, "The Spriggs 'significantly less harsh’ standard applies here because Dale’s habeas petition alleges ineffective assistance of counsel during a state sentencing hearing, not a federal one.” Dale v. Quarterman, 553 F.3d 876, 880, n.2 (5th Cir. 2008) (per curiam) (citing United States v. Grammas, 376 F.3d 433 , 438 & n.4 (5th Cir. 2004) ("holding that Glover v. United States, 531 U.S. 198, 203 , 121 S.Ct. 696 , 148 L.Ed.2d 604 (2001), which cites Spriggs , abrogates the significantly less harsh test only in the federal sentencing context").

2016In Spriggs v. Collins, the United States Court of Appeals for the Fifth Circuit held, "In order to avoid turning Strickland into an automatic rule of reversal in the non-capital sentencing context, we believe that in deciding such an ineffectiveness claim, a court must determine whether there is a reasonable probability that but for trial counsel's errors, the defendant's non-capital sentence would have been significantly less harsh.” Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993) (per curiam), abrogated on other grounds by Dale v. Quarterman, 553 F.3d 876, 880, n.2 (5th Cir. 2008) (per c

2016In Dale v. Quarterman, the Fifth Circuit noted, "The Spriggs 'significantly less harsh’ standard applies here because Dale’s habeas petition alleges ineffective assistance of counsel during a state sentencing hearing, not a federal one.” Dale v. Quarterman, 553 F.3d 876, 880, n.2 (5th Cir. 2008) (per curiam) (citing United States v. Grammas, 376 F.3d 433 , 438 & n.4 (5th Cir. 2004) ("holding that Glover v. United States, 531 U.S. 198, 203 , 121 S.Ct. 696 , 148 L.Ed.2d 604 (2001), which cites Spriggs , abrogates the significantly less harsh test only in the federal sentencing context").

2016The Tenth Circuit has taken a similar position, holding that return-jurisdiction provisions are “not mandatory,” but rather “within the district court’s discretion.” See Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1182 (10th Cir.2009).

2016In Spriggs v. Collins, the United States Court of Appeals for the Fifth Circuit held, "In order to avoid turning Strickland into an automatic rule of reversal in the non-capital sentencing context, we believe that in deciding such an ineffectiveness claim, a court must determine whether there is a reasonable probability that but for trial counsel's errors, the defendant's non-capital sentence would have been significantly less harsh.” Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993) (per curiam), abrogated on other grounds by Dale v. Quarterman, 553 F.3d 876, 880, n.2 (5th Cir. 2008) (per c

2015Cash Am., 35 S.W.3d at 16 (“When the Legislature vests exclusive jurisdiction in an agency, exhaustion of remedies is required.”); City of Sherman, 643 S.W.2d at 683 ; Tex. Mut.

2014Relying on Kirtley v. State, appellant claims that the missing exhibits are “necessary to the appeal’s resolution” because it prevented him from making a claim of ineffective assistance of counsel.4 See 56 S.W.3d 48, 52 (Tex. Crim.

2010Prophet v. Myers, 645 F. Supp. 2d 614, 617 (S.D.

2008Id. at 1018 (Ginsburg, J., dissenting). 6 .

1994Wynne v. Fischer, 809 S.W.2d 264, 267 (Tex.App.—Dallas 1991, writ denied).

1994Wynne v. Fischer, 809 S.W.2d 264, 267 (Tex.App.—Dallas 1991, writ denied).