Monday, March 31, 2008

Guest Contributor

Since everybody seems to be having Guest Bloggers these days, I thought I would include the hard work of a reader who wishes to remain anonymous. He or she posted the following information:

You've been asking how many times Lykos was reversed. These are all the cases involving Lykos as a judge that come up in a search for "Lykos" in the Lexis "Texas State and Federal Cases" database. I didn't include cases where the appeal didn't involve a ruling that Lykos made or where the appellate court just said that a petitioner wasn't entitled to a writ of prohibition or mandamus. Neither did I include the three cases where Lykos was involved as appellate counsel (losing a request to prevent foster parents from adopting a girl, winning a discharge of her client from the hoosegow for not paying his child support, getting a property division and support order affirmed).

It's my opinion that most of the cases where she's affirmed are easy calls; the ones where she's reversed, she really gets it wrong.

Shelvin v. Lykos, 741 S.W.2d 178 (Tex. App.—Houston [1st Dist.] 1987) (orig. proceeding)
Lykos ordered that a prisoner suspected of sexual assault submit to having blood drawn for an HIV/STD test that the State claimed was needed to protect the victims, jailers, and other prisoners. Appellate court issued a writ of mandamus to nullify the order because Commissioner’s Court was the only body with the authority to order the test, not Lykos. Lykos, a district judge, didn’t have constitutional, statutory, or inherent power to order blood tests or disclose their results.

O’Connor v. Lykos, 960 S.W.2d 96 (Tex. App.—Houston [1st Dist.] 1997) (orig. proceeding)
Relator objected to Lykos’s sitting as a visiting family court judge. Appellate court vacated Lykos’s sanctions and temporary possession orders because (1) she was without power to issue other orders after she initially granted a new trial and (2) disqualification of an objected-to visiting judge is mandatory, so she didn’t have the power to overrule the relator's objection to her sitting as an assigned judge and proceed to trial.

Queen v. State, 842 S.W.2d 708 (Tex. App.—Houston [1st Dist.] 1992, no pet.)
Even though State agreed with defense counsel that defendant was entitled to bond, Lykos revoked defendant’s bond and denied a habeas corpus petition requesting that she reinstate it. Appellate court reversed and ordered Lykos to reinstate bond because defendant was constitutionally entitled to it. “The trial and appellate courts of Texas have no ‘inherent powers’ that permit them to ignore an express statutory or constitutional mandate. This fundamental tenet of our State’s jurisprudence does not evaporate when a particular judge of such a court has a concern that a particular individual, accused of a crime, represents a risk to the public safety.” Id. at 711.

Eldridge v. State, 713 S.W.2d 618 (Tex. App.—Houston [1st Dist.] 1987, no pet.)
Lykos violated defendant’s due process by proceeding to revocation hearing without defendant’s lawyer being present. (You know all about this one already.)

Wood v. State, 822 S.W.2d 213 (Tex. App.—Houston [1st Dist] 1991), vacated at 828 S.W.2d 13 (Tex. Crim. App. 1992), on remand at 833 S.W.2d 753 (Tex. App.—Houston [1st Dist.] 1992, no pet.)
Lykos properly ruled that defendant’s statement to police was admissible and submitted proper instructions to the jury because one offense was a lesser-included offense and jury was instructed that it could find defendant guilty of only one of the offenses. (Interestingly, Lykos probated her five-year, $5000-fine sentence against a defendant who was convicted of aggravated assault after hitting a woman in the neck with a gun and then shooting her in the knee from his porch as she was leaving his house following an argument over a dented car.)

Many thanks to our guest contributor!

No comments: