The Court of Criminal Appeals Turns 125
By Lindsay Stafford Mader

The Supreme Court Building, which is also home to the state’s other
high court, the Court of Criminal Appeals. Photograph by Lindsay
Stafford Mader.
On the northwestern side of the Capitol grounds, behind the Tyler
Rose Garden that is either in bloom or wilting depending on the season,
sits a modern building made from the same sunset red granite as the
nearby dome that towers above it. Though this structure is named the
Supreme Court Building, it is also home to Texas’s other high court: the
Court of Criminal Appeals, which celebrates its 125th anniversary this
year.
Some in the Lone Star State, though likely few in the legal community,
might be unaware1 that while the Supreme Court has final
civil jurisdiction, the Court of Criminal Appeals is the court of last
resort for criminal cases. In fact, Texas and Oklahoma are the only U.S.
states with such a dual high-court system.2 (Both Oklahoma
and England, when forming their own criminal appeals courts in the early
1900s, looked to Texas as an example.3) The CCA, which was
created in 1891, will commemorate its century-plus milestone when the
court is called to order at 11 a.m. September 22.
“We need reminders about the important public institutions of our
state,” said Ryan Kellus Turner, a member of the celebration’s steering
committee and a former CCA briefing attorney. “This is a good time to
appreciate the value and rich history of the Court of Criminal
Appeals.”
Despite being lesser-known among laypeople than its civil counterpart,
the Court of Criminal Appeals has issued some of the most well-known—and
oftentimes most controversial—decisions in recent memory, such as the
1966 unanimous reversal of Jack Ruby’s conviction for the murder of JFK
assassin Lee Harvey Oswald.
“One unique aspect of the big picture here at the Court of Criminal
Appeals is that we do many different kinds of work,” said Judge Kevin P.
Yeary, who was elected in 2014. “We preside over and review the criminal
law decisions of the 14 courts of appeals. In death penalty appeals,
however, we review the decisions of the trial courts. And then, in
exercising our post-conviction habeas jurisdiction, we take on the role
of fact-finders and act almost like trial judges—in that, while we
typically defer to fact determinations by trial judges, our habeas
authority gives us the power to decide for ourselves what facts we
believe to be true.”

Former CCA Clerk Glenn Haynes in 1973, standing with pending appeals
and post-conviction writs of habeas corpus. Photograph courtesy of the
State Bar of Texas Archives Department.
The Court of Criminal Appeals grew out of a similar body called the
Court of Appeals that was established after the Constitutional
Convention of 1875.4 It was a period in Texas history when
the U.S. Army was fighting the remaining Comanches and Kiowas and
forcing them onto reservations, when settlers were establishing bustling
cities between Fort Worth and San Antonio and frontiersmen were
shooting each other in saloons. The Texas Supreme Court—which had
convened for the first time just 35 years earlier—was dealing with an
increasingly heavy caseload. As James L. Haley explained in his book
The Texas Supreme Court: A Narrative History, “Over time the
Court had fallen some two years behind its docket, which was bad enough
for those awaiting an outcome in civil cases, but for those languishing
in prison while awaiting an appeal that might free them, it was a
travesty.”5
Debate at the convention led to a decision to have the three-justice
Supreme Court hear civil appeals from state district courts and a newly
created three-judge Court of Appeals hear all criminal cases as well as
some county court civil cases involving matters of less than
$1,000.6 The Supreme Court would never hear a criminal case
again. In 1888, when the newly constructed Capitol building was
dedicated, the two high courts had separate quarters on the third
floor.
Texas’s population, cattle industry, and businesses were booming so
fast in the late 1800s that both courts seemed to have a constant
backlog. So, in 1891, with the intent of more efficiently dealing with
the amount of litigation, voters ratified a constitutional amendment to
remove the Court of Appeals’ partial civil jurisdiction, to rename it
the Court of Criminal Appeals, and to create intermediate courts of
civil appeals. CCA judges were elected, and James Mann Hurt of Dallas
was chosen by the other two judges to serve as the first presiding
judge.
Throughout its history, the court’s docket has never been light. In
1925, the Legislature voted to create a Commission of Appeals with two
commissioners who would take on cases that the CCA didn’t have time for
(but whose decisions had to be approved by the CCA judges).7
Four decades later, in 1966, a constitutional amendment made the
commissioners full judges so that the CCA became a five-judge court. It
also increased the court’s session from nine months to a full year and
enabled Texans to choose who would be the presiding judge, the first of
whom was John F. Onion Jr., elected by voters in 1970.
In 1978, a constitutional amendment, approved the previous year,
increased the number of CCA judges to its current makeup of nine. A year
later, the CCA was still behind on its cases.8 In his 1979
State of the Judiciary speech, then-Supreme Court Chief Justice Joe R.
Greenhill told the Legislature that the courts were not fully achieving
justice without delay to free the innocent as well as deter crime,
partly because “the appeal in virtually all criminal convictions of
whatever nature must go to one court, the Court of Criminal
Appeals.”
Though Onion favored creating intermediate criminal appeals courts,
saying that the civil appeals courts already had heavy
workloads,9 Greenhill advocated that the existing appeals
courts also have criminal jurisdiction. Such an amendment was ratified
by the Texas electorate in 1980, though appeals on capital cases would
continue to go directly to the CCA. This marked the last monumental
change for the court. Though some have proposed restructuring the system
to have just one high court, the last major effort to do so, in 1975,
failed to receive voter support.10

The Court of Criminal Appeals. Bottom, back row from left:
Judge Kevin Yeary, Judge Elsa Alcala, Judge Bert Richardson, Judge David
Newell; front row from left:
Judge Michael Keasler, Judge Lawrence E. Meyers, Presiding Judge
Sharon Keller, Judge Cheryl Johnson, and Judge Barbara Hervey.
Photograph courtesy of Texas House of Representatives Photography.
In the years since, the court has remained busy. In fiscal year 2015,
the CCA received 4,520 criminal appeals, seven of which were for death
penalty cases, and 4,698 habeas corpus petitions, 50 of which were for
death penalty cases. According to the court’s website, “The Court of
Criminal Appeals typically disposes of more matters each year than any
other appellate court in the country.”
“It is nothing short of remarkable that this court has been able to
adapt to and keep up with its growing and evolving caseload,” Yeary
said. “I don’t think anyone who hasn’t worked here can even imagine what
it’s like to have to study up on and decide so many cases. We could not
do it without our top-notch staff. We also just work all the time.”
Most days at the Court of Criminal Appeals are demanding yet routine.
The judges begin their week by preparing for and attending conference,
which starts at 9 a.m. on Monday and can last from three hours to all
day. On the first and third Wednesdays of the month, the judges put on
their robes and sit on the bench to listen to oral arguments in
typically three to four cases. After lunch, the judges attend
conference, where they discuss the arguments and choose who will draft
the opinions that decide the cases’ outcomes. They spend their
remaining time reading briefs and trial records, researching the law,
discussing cases and potential resolutions with staff attorneys, and
writing opinions. “The best part of sitting on the Court of Criminal
Appeals bench and being a part of the Texas criminal justice system,”
said Judge Barbara Hervey, “has been the opportunity to work with so
many fine lawyers, clerks, legislators, and other stakeholders dedicated
to the process of justice.”
The judges of the Court of Criminal Appeals have always been elected
by the voters of Texas, and only a select few have served on both the
Supreme Court and the CCA. Notable members of the bench have included
judges like Morris Overstreet, who became the first black person elected
to statewide office when he was elected to the CCA in 1990, and current
Presiding Judge Sharon Keller, who was the first woman elected to the
court in 1994. In addition to the judges, the CCA staff consists of
court-wide lawyers as well as each judge’s non-lawyer assistant,
permanent staff attorney, and briefing attorney.
Looking forward as the court celebrates its long past, one of the most
influential changes for the future of criminal law is expected to be the
implementation of mandated e-filing for criminal cases, which begins
July 1, 2017, in counties of 500,000 or more.
“I think everyone expects it to be a challenge at first,” Yeary said.
“It is hard to learn new things. But we also acknowledge the world is
changing and courts everywhere are moving away from paper and toward a
digital existence. So we think people will get used to it,
eventually.”TBJ
The CCA invites members of the bar and the public to attend the 125th anniversary celebration, which will take place at 11 a.m. September 22 at its courtroom inside the Supreme Court Building, 201 W. 14th St., Austin 78701. The event will feature speeches from former Presiding Judges Onion and Michael McCormick as well as Presiding Judge Keller. A reception will follow.