Ex Parte Allen Michael Lee v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00281-CR
EX PARTE ALLEN MICHAEL LEE
From the 85th District Court
Brazos County, Texas
Trial Court No. 22-001433-CV-85
OPINION
Allen Michael Lee is charged with one count of aggravated sexual assault of a child
and two counts of sexual assault of a child. Bail amounts were set at $400,000 in total for
the three charges. He has not been able to make bail. He filed a pre-trial application for
a writ of habeas corpus asking to either be released or have bail reduced to $15,000 total.
After a hearing, the trial court denied Lee’s application.
In one issue, Lee contends the trial court abused its discretion in denying Lee’s
request for a bail/bond reduction. Specifically, he contends the initial bail set was
excessively high and that the trial court abused its discretion by denying his application
without an explanation.
In presenting error to this Court, an appellant’s brief must contain a clear and
concise argument of the contentions made with appropriate citations to authorities and
to the record. See TEX. R. APP. P. 38.1(i); Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—
Waco 2020, no pet.). That has not occurred in this case. In the “Standard of Review” and
“Applicable Law” sections of his brief, Lee cites to the general, applicable case law and
statutes. However, in his “Argument” section, where appropriate citations must be
included, Lee cites to five cases to support the two sub-arguments to his issue. Only three
of those five cases are published. None of the three published cases cited actually exist
in the Southwest Reporter. Each citation provides the reader a jump-cite into the body of
a different case that has nothing to do with the propositions cited by Lee. Two of the
citations take the reader to cases from Missouri. As the State points out, even Texas cases
with the same names as those cited by Lee do not correspond with the propositions relied
upon. 1 Further, as again noted by the State, the brief is devoid of any citations to the
1
The text of the State’s footnote 8 which challenges the authority cited by Lee states:
Appellant only cites three published cases in support of his argument and represents to this Court
that they stand for the propositions that a trial court must provide an explanation for its decision
and it is an abuse of discretion when the trial court does not do so. (Appellant’s Brief at 9-12).
However, none of those cases exist:
1. Ex parte Vasquez, 248 S.W.3d 454 (Tex. Crim. App. 2008) cites to the tenth page
of In re Rodriguez, 248 S.W.3d 444 (Tex. App.—Dallas 2008, no pet.), a
mandamus case arising in the context of a divorce proceeding. (Appellant’s
Brief at 9). The Texas Court of Criminal Appeals has not published an opinion
with that caption since 1986, which was an application for writ of habeas
corpus alleging applicant’s sentences were illegally cumulated. See Ex parte
Vasquez, 712 S.W.2d 754 (Tex. Crim. App. 1986).
2. Ex parte Clayton, 592 S.W.2d 494 (Tex. Crim. App. 1979) cites to the seventh
page of M.H. Siegfried Real Estate, Inc. v. Renfrow, 592 S.W.2d 488 (Mo. App.
1979), an appeal from a Missouri trial court’s denial of an injunction and
damages related to a real property dispute. (Applicant’s Brief at 9). The Texas
Court of Criminal Appeals did not publish an opinion in 1979 captioned Ex
parte Clayton and has only published two cases with that caption. See Ex parte
Clayton, 350 S.W.2d 926 (Tex. Crim. App. 1961); Ex parte Clayton, 103 S.W. 630(Tex. Crim. App. 1907).
3. Ex parte Martinez, 340 S.W.3d 642 (Tex. Crim. App. 2011) cites to the fifth page
of Cochran v. Cochran, 340 S.W.3d 638 (Mo. App. 2011), an appeal from a
Missouri circuit court’s judgment dissolving a marriage. (Appellant’s Brief at
10, 11). Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) is the only
Ex parte Lee Page 2
record. These deficiencies, although brought to the Court’s and to Lee’s attention by the
State in its brief to this Court, were neither contested nor corrected by Lee in any kind of
reply, amended, or supplemental brief. 2 Thus, Lee inadequately briefs his sole issue on
appeal.
The failure to adequately brief an issue presents nothing for us to review, and we
published opinion from the Texas Court of Criminal Appeals in 2011 with that
caption and is an application for writ of habeas corpus claiming ineffective
assistance in applicant’s trial for capital murder.
In addition to Appellant’s inappropriate citations to authorities, his brief does not contain a
separate Statement of the Case; does not state concisely and without argument the facts pertinent
to the issue presented; does not contain a succinct, clear, and accurate statement of the arguments
made in the body of the brief; and is devoid of any citations to the record. See TEX. R. APP. P. 38.1(d),
(g), (h), (i); see also TEX. R. APP. P. 38.9(a) and (b); Letter from [the] Clerk of the Court, Tenth Court
of Appeals, to [District Attorney] and [appellate counsel] (Mar. 13, 2023) (“Briefs not in substantial
compliance with these rules will be stricken.”) (emphasis in original).
2
Based upon a recent Texas Bar CLE, “Have the Robot Lawyers Finally Arrived? Practical Concerns and Ethical
Dimension of ChatGPT,” presented by John G. Browning of Spencer Fane LLP, it appears that at least the
“Argument” portion of the brief may have been prepared by artificial intelligence (AI). To avoid this
problem, Federal District Court Judge, Brantley Starr, requires the following certification for pleadings filed
in cases pending in his court:
CERTIFICATE REGARDING JUDGE-SPECIFIC REQUIREMENTS
I, the undersigned attorney, hereby certify that I have read and will comply with
all judge-specific requirements for Judge Brantley Starr, United States District Judge for
the Northern District of Texas.
I further certify that no portion of any filing in this case will be drafted by
generative artificial intelligence or that any language drafted by generative artificial
intelligence—including quotations, citations, paraphrased assertions, and legal analysis—
will be checked for accuracy, using print reporters or traditional legal databases, by a
human being before it is submitted to the Court. I understand that any attorney who signs
any filing in this case will be held responsible for the contents thereof according to
applicable rules of attorney discipline, regardless of whether generative artificial
intelligence drafted any portion of that filing.
[ATTORNEY NAME(S)]
Because we have no information regarding why the briefing is illogical, and because we have addressed
the issue raised on appeal, we resist the temptation to issue a show cause order as a New York federal
district judge did in Mata v. Avianca, Inc., 2023 U.S. Dist. Lexis 94323 (S.D.N.Y., May 4, 2023, order), or report
the attorney to the State Bar of Texas for a potential investigation for a violation of the State Bar rules.
Ex parte Lee Page 3
are not required to make an appellant's arguments for him. See TEX. R. APP. P. 38.1(i);
Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (citing Busby v. State, 253 S.W.3d
661, 673 (Tex. Crim. App. 2008)); see also Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—
Waco 2020, no pet.). Accordingly, because Lee inadequately briefs his sole issue, it
presents nothing for our review and is overruled.
Having overruled Lee’s sole issue, the trial court’s Order Denying Application for
Writ of Habeas Corpus, signed on July 14, 2022, is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed July 19, 2023
Publish
[OT06]
Ex parte Lee Page 4