Americans despised the idea that their country was involved in an armed conflict.......

"Ohio" - Neil Young Lyrics Analysis

kent state
"It's still hard to believe I had to write this song. It's ironic that I capitalized on the death of these American students. Probably the most important lesson ever learned at an American place of learning. David Crosby cried after this take."
from liner notes of the Decade album

photo by John Filo

Neil Young News

Play and listen to a MP3 sample clip of "Ohio" (studio version)
"Ohio" lyrics by Neil Young
Please comment in the guestbook
Analysis of the lyrics of Crosby, Stills, Nash, and Young song "Ohio"

[Note: This is one of a series of articles which provide an explanation of the meaning of Neil Young's song "Ohio". While the interpretation of lyrics presented here is composed of several viewpoints, there is little consensus on the exact meaning of Neil's songs. The themes and symbolism of Young's songwriting provide a rich tapestry on which to project various meanings and analysis. ]

Immediately after the Kent State shooting (sometimes referred to as the "Kent State Massacre") on May 4, 1970, Neil Young composed the song "Ohio" after looking at photos appearing in Life magazine and then taking a walk in the woods. Crosby, Stills, Nash, and Young went to the studio and recorded the song which was released to radio stations shortly after the killings. Soon, the lyrics "Four dead in Ohio" became an anthem to a generation. In some parts of the country, the song was banned from playlists because of it's "anti-war" and "anti-Nixon" sentiments.
The Four Dead in Ohio

Four Dead in Ohio - allison krause,william schroeder, jeffrey miller, sandra scheuer

"What if you knew her and found her dead on the ground?"

Excerpted from the article "An Analysis of Music and Lyrics in Relation to American Culture in the 1960s" on Epinions by Andrew Lasho. Lasho interprets the meaning of the lyrics to Neil Young's song "Ohio" and offers an analysis of the song's historical importance:

"When the United States began involvement in the conflict in Vietnam, the response was uproarious and rampant. Many young Americans despised the idea that their country was involved in an armed conflict that in no part was their own fault, and did not even directly effect them. They believed that the United States had no real business in Vietnam.

One of the most outspoken songwriters of this era and calling was Neil Young. Whether it was with Buffalo Springfield or with his other group, Crosby, Stills, Nash, and Young, Neil Young expressed his opinion at every opportunity that presented itself. In his song Ohio, he expresses both his opinions about the war, and about a specific event that took place on the campus of Kent State University in Ohio.

ohio-kent-rage-taunt.gif

"Tin soldiers and Nixon coming,
We're finally on our own.
This summer I hear the drumming
Four dead in Ohio."
("Ohio" lyrics by Neil Young)

On May 4, 1970, a student demonstration at Kent State, Ohio left four students dead, one paralyzed, and eight others wounded. This demonstration, meant to be one of many peaceful demonstrations against the war, was ended abruptly and violently when the National Guard fired into the crowd for 13 seconds. The brief shootings ended the lives of students Jeffrey Miller, Allison Krause, William Schroeder, and Sandra Scheuer. The distances ranged from 270 feet to 390 feet. Some of these students were not even directly involved. Justified or not by self-defense, the "massacre" sparked a nationwide student strike that closed many colleges and universities.

The line, "We're finally on our own" describes the feeling of freedom and independence in college, and the line "Four dead in Ohio" refers to the four slain students at Kent State. The "Tin soldiers" are the National Guard, and many people, including Young, felt that it was President Richard Nixon's fault.

ohio-kent-bayonets.gif

"Gotta get down to it
Soldiers are cutting us down
Should have been done long ago."

kent state

The "Tin Soldiers" in Ohio "Cutting them down" at Kent State University
The Day America Killed It's Children

Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

When asked about releasing the song "Ohio", Graham Nash responded:

"Four young men and women had their lives taken from them while lawfully protesting this outrageous government action. We are going back to keep awareness alive in the minds of all students, not only in America, but worldwide…to be vigilant and ready to stand and be counted… and to make sure that the powers of the politicians do not take precedent over the right of lawful protest."

governor-rhodes.jpg president-nixon.jpg
James Allen Rhodes - Governor of Ohio &
Richard Milhous Nixon - 37th President of the United States

Some believe that a conspiracy covering up the true motivations behind the shootings that involved James Allen Rhodes, Governor of Ohio and President Richard Nixon. (See the book Four Dead in Ohio: Was There a Conspiracy at Kent State by William A. Gordon for more details.)

In 13 Seconds: A Look Back at the Kent State Shootings by Philip Caputo, the author details Richard Nixon's decision to invade Cambodia, the militaristic missives of the ultra-leftist Weathermen, and statements such as high-profile California governor Ronald Reagan's declaration about student protests, given three weeks before the shootings ("If it takes a bloodbath, let's get it over with") as part of the events leading up to that fateful day.

Jimmy McDonough writes in the Neil Young Biography "Shakey" about the song "Ohio": "In ten lines, Young captured the fear, frustration and anger felt by the youth across the country and set it to a lumbering D-modal death march that hammered home the dread."

The events in Ohio seemed to mark the end of the Woodstock nation. From Song Facts:

"Crosby once said that Young calling Nixon's name out in the lyrics was 'the bravest thing I ever heard.' Crosby noted that at the time, it seemed like those who stood up to Nixon, like those at Kent State, were shot. Neil Young did not seemed scared at all."

kent state nyt
The front page of the New York Times newspaper (May 5, 1970) with the Pulitzer Award photographic image by John Filo that shocked America
In the Recording Studio for "Ohio"

ohio-single-bill-of-rights
"Ohio" single with the United States Bill of Rights
Highlights the right to peacefully assemble

From David Crosby's site, an interview with Bill Halverson, recording engineer for the song "Ohio". Halverson is interviewed by Tony Bittick on remembering the recording studio session:

"BH: Crosby, Stills, Nash, and Young probably got there 6:00, something like that, and we set up. Live vocal mics, they had a little drum booth and it wasn't live enough for the guys so we opened the doors to the drum booth so the drums were just sort of in an alcove. And set up their...pretty much their stage amps, and with vocal mics and they fiddled around for a while and I don't recall us doing more than two or three takes of it with live vocal and live harmonies and everybody chiming in. And I was used to recording them all in the room together. We'd done "Almost Cut My Hair that way... we'd done a number of songs...with everybody playing and singing together and they were used to me doing it and I was used to doing it that way.

The mood was just very intense. I mean when they come into a room... I've been around those personalities for a long time, and the four of them take over a room. They are four distinct personalities and any one of the four is quite overpowering and together they're just a joy to be with. It's just a hoot to see them interact. And they were bent on getting it right and were on a mission.

["Ohio" was recorded at The Record Plant] ... on an old Quad-Eight console, an eight-track console that was modified where you could probably do 16 at one time without using... with just direct patches. We had a rented 3M machine from Heiders, probably a 79, 24-track.

[Using some of Wally Heiders equipment] ... yeah just because I really liked his machines and rented them all the time to bring over there. And he had enough extras where he did have a good rental business. Amp mics...I've always used Shure 57s... it was back in the days when I still used SM-57s on the snare and on toms and on snare and on high hats. I had a couple of Noymans on the overheads... it was after I discovered the D12 for kicks so probably the D12 on kicks... and vocal mics... I probably had some Shures just because the amps were in the room and I needed more separation. So I probably wasn't using Neumans on the vocals just because it was loud and everybody was in the room together.

TB: And all four musicians stayed in the room and helped mix?

BH: Oh yeah we all got in there and pretty much just mixed it together. Everybody has their input and there's no referees and it's just... you get on with it.

TB: The story that David has written and that I've heard is that he saw the picture in Life magazine and pretty much gave it to Neil Young as something kind of a challenge or a spur to write something and he did. Is that the story that you're familiar with?

BH: I've heard that story and I've read that story and all I know is he came in with the song and they had rehearsed it. I love the way the B-side got to be. And the B-side is "Find the Cost of Freedom". While they were listening to the mix and finishing up the mix they said "we don't have a B-side, we need a B-side for this."

So they had been rehearsing also "Find the Cost of Freedom" because they did that at the close of the show. So I went out and set up four chairs so they'd be knee to knee sitting facing each other and set up four vocal mics and a guitar mic for Stephen because he was gonna play guitar. Once I was set up they went out there and sat knee to knee with the four vocal mics and Stephen started playing guitar and then they started singing and sang it through. And before they could come in I rewound the tape, put it on another five tracks, and rolled it again, and they heard the guitar so they knew what was going on and waited for the vocal to come in and Stephen played along with himself, a little on guitar, played the little fills and stuff...

In fifteen minutes we had "Find the Cost of Freedom".

We air freighted tapes to New York and I also know, well I don't know, as I recall we had some acetates cut in LA and Atlantic in LA got it on the radio there and as fast as they could they got it mastered and pressed in New York.

TB: Do you recall hearing it on the radio for the first time.

BH: No. I do recall that AM wouldn't play it and it was very controversial that AM wouldn't play it and FM, the underground, all the FM stations started playing it... and it got up in the 30s or so just with FM play and at that point FM was pretty underground and AM was the deal. But they tried to ban it."

Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

kent state life magazine cover
The Life Magazine (May 15, 1970) issue which inspired Neil Young to write the song "Ohio"
The Anniversaries of Kent State

CSN performed at Kent State University on May 4, 1997 during the 27th annual commemoration of the 1970 shootings. The group played at the end of the commemoration ceremony, held in honor of the 4 dead in Ohio and the 13 wounded:

"Crosby, Stills and Nash played an intricate role in the history of May 4," said Steve Skovensky, a senior family studies major and co-chair of the May 4 Task Force. "Their music is woven into the fabric of the people, the feelings and the pictures of May 4. This commemoration is important to them, and their being here will help serve the purpose of remembering and educating," said Michael Lee, professor of physics and May 4 Task Force adviser.

More recently, from NCTimes.net, former basketball star and broadcaster Bill Walton, who participated in antiwar demonstrations while an All-American at UCLA, believes the Kent State tragedy should stay fresh.

"'It definitely should not be forgotten,'' said Walton. 'This is one of the bleakest moments in our country's history. It was a terrible, terrible thing, and you need to keep that story alive so it never happens again. "

kent state banner

kent-state-four

peace-flag
Comment on "Ohio"

Care to comment and add your thoughts on the meaning and significance of "Ohio"?
Please comment in the guestbook.

More commentary on Kent State shootings

Excerpted from the article "An Analysis of Music and Lyrics in Relation to American Culture in the 1960s" on Epinions by Andrew Lasho. Lasho interprets the meaning of the lyrics to "For What It's Worth" by Stephen Stills of The Buffalo Springfield:

"Neil Young's other anti-war anthem came with his group Buffalo Springfield. 'For What It's Worth' co-written by Stephen Stills in 1966 has become one of the most acclaimed anti-war songs of the 1960s. The lines "Paranoia strikes deep / Into your life it will creep / It starts when you're always afraid / You step out of line, the man come and take you away" speak of the control that the government had over the people of the United States, and how those people were feeling at the time. The chorus, "I think it's time we stop, children, what's that sound / Everybody look what's going down" speaks to the listeners and tells them to evaluate the war effort in Vietnam, and how futile it is."
Links on Kent State Massacre

* Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

* Read reviews and excerpts from the book Four Dead in Ohio: Was There a Conspiracy at Kent State by William A. Gordon

* PATTI SMITH covers 'Ohio' on the 34th anniversary, May 4, 2004, during a performance at Brooklyn, New York's Warsaw Club.

* More on the song "Ohio" performed by David Crosby and Neil Young at a Benefit For the Arts Outreach at the Valley Music Festival in Santa Ynez, CA on September 28, 2003.

* Also see Tell Us The Truth Tour concert review of REM's Mike Mills, Steve Earle, Billy Bragg, and Tom Morella covering 'Ohio' on November 25, 2003. Listen to a sample clip of The Live Concert Recording of Billy Bragg performing "Ohio"

* More on Bob Dylan's song "Blowin In The Wind".

* See lyrics analysis of John Lennon's song "Imagine".

* Also, see Music and the 60's, Is Protest Music Dead?, Protest Songs and Protest Songs Listing.

* Also, see Isley Brothers cover "Ohio" on the Isleys’ 1971 Givin’ It Back, done as a nine-minute medley with Hendrix’s “Machine Gun.”

"At the time the Isleys were criticized for deviating from the original opening line, “Tin soldiers and Nixon’s coming,” instead singing “Tin soldiers with guns they’re coming.” It’s not clear why they changed it.

Perhaps they wanted to make the song more timeless? Even without the image of Dick Nixon, the Isley version of “Ohio” is a bone chiller. While Neil Young captured the rage and anger in the original, the Isleys captured the fear of watching a government violently turn against its own people."

* Rolling Stone's 500 Greatest Songs of All Times - Crosby, Stills, Nash & Young's "Ohio"

* VH-1's Student and Teacher Site

* VH-1's "25 Greatest Protest Songs Countdown" and Study Guide for Students.

* Anti-War Music

* Kent State Memories - Wounded Student Alan Canfora

* Kent State, May 4, 1970: America Kills Its Children

* Peace Music: Where Have All The Hippies Gone?

* Kent State University May 4 Special Collections & Archives Home Page

* Kent State: The day America murdered it's children

* This summer I hear the drumming, Four dead in Ohio

* May 4 Archive and Best Kent State 1970 LINKS.

* Vietnam War Internet Links - Wellesley College

* Using Folk and Protest Music to Understand American History, 1963-1973

* The State of Today's Protest Music or Why Neil Young Is Wrong by Stephan Smith-Said Songs of Protest - "Where Have All The Flowers Gone" by Kingston Trio, "I Ain't Marching Anymore" by Phil Ochs, more

Play and listen to a MP3 sample clip of "Ohio" (studio version) or live in concert. (note*)

"Ohio" lyrics by Neil Young

More commentary on Kent State shootings

Neil Young Lyrics Analysis

Thrasher's Wheat - A Neil Young Archives




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Confession of error ~ is a voluntary confession on behalf of the prosecution in a nutshell

Error coram nobis
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A writ of error coram nobis is a writ which is used to inform a court (usually an appeals court) of facts not on the record despite due diligence by the party filing the writ (the petitioner). It is usually considered extraordinary in nature. The state of Arkansas Supreme Court has explained how such a writ is allowed:

* A writ of error coram nobis is an extraordinarily rare remedy, known more for its denial than its approval.
* The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.
* The only reasons for issuing such a writ (in the case of Criminal Appeals) is "in one of four categories: (1) insanity at the time of trial; (2) a coerced guilty plea; (3) material evidence withheld by the prosecutor; or (4) a third-party confession to the crime that occurs during the time between conviction and appeal."
* Coram nobis proceedings are attended by a strong presumption that the original judgment was valid.
* Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief; in the absence of a valid excuse for delay, the petition will be denied.
* With regard to seeking a writ of error coram nobis, due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not, in the exercise of due diligence, have presented the fact at trial; or (3) upon discovering the fact, he did not delay bringing the petition.
* The supreme court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions; as a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result.
* A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis; the petitioner must show that a fundamental error occurred, such that the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury.
* It is the petitioner's burden to show that a writ of error coram nobis was warranted; the supreme court would not undertake to reinvest jurisdiction in the trial court just for the purpose of allowing petitioner to conduct a "fishing expedition."

Echols v. Arkansas, 125 S.W.3d 153

thanks rod........you are awesome

---

Drafting Motions for Novices & Laypersons

by

Rod Borlase, JD, MLS (RBC HomePage)

For permission to use.
Copyright 2000 Rod Borlase

---

Law students, neophyte lawyers, and lay-litigants sooner or later need to draft a pleading and, more often, motions to file with courts. It is often confusing to them and, unfortunately but understandably, there is less help available for them than one might expect. To be sure, there are "form books," but a slavish reliance on form books - what I prefer to call "sample books" - is a quick way to get one's case, and perhaps one's self, in trouble before the court. Every case differs, and those differences must be reflected in one's pleadings and motions, and no book of samples adequately reflects such diversity.

"Pleading & Motion Practice" is a sub-art and specialized craft of the lawyer's general art and craft. Many law firms hire persons just for this expertise. You can find a very interesting discussion of pleading practice in American Jurisprudence Trials: "Tactics and Strategy of Pleading" 3 Am. Jur. Trials 681.

Having now underscored pleading and motion practice's importance, I need to differentiate between what is really important and what is not: The Substance is important - Form is much less important! Most people I encounter have that turned around - They think they know what the pleading or motion must say, but have little idea what it should look like. Well, although form has its place, substance is the main thing.

What Is a Pleading, & What Is Its Purpose?

While the word pleading is often used to denote both pleadings and motions, they are different at a more fundamental level. Pleadings have to do with initiating or responding to a lawsuit as a whole, often called a "Complaint," "Claim" or "Petition," and requiring an "Answer" or "Response." The exact terminology is determined by the jurisdiction - e.g., Texas, Arizona, or federal versus state courts - or sometimes by the statute under which one's claim is brought. Pleadings are filed with the court and then officially "served" upon the "Defendant" or "Respondent," and he or she must "Answer" or
"Respond."

It is this formality of "service" that brings the parties together before the court and under its authority. After that, the formalities of service, for motions particularly, are much easier and less formal. Serving motions is generally as easy as filing the motion with the court, along with a "Certification of Service" tacked on to the end, promising that a true and complete copy was mailed to all other parties, and then doing so. With that, the burden of showing that the motion was not received shifts to the party claiming they did not get it.

There are other pleadings too, i.e., that impact the entire suit and the parties before the court, such as "Intervenors" - people who have some stake in your lawsuit - and "Third-Party Joinder" - someone that a current party believes has responsibility within your suit - and "Special Appearances" - where one of the parties served may believe they have nothing to do with your suit or that the court has noauthority to bring them into it.

The key thing about pleadings is that they affect the whole of the suit, serve notice upon all parties that they are involved in a lawsuit, and what that suit is about, and assemble all parties before the court at a certain time and make them all subject to that court's authority. Although there may be some motions during the pleading process, most motions arise after the suit is established and the active litigation process begins. Motions during the pleading process remain awkward and expensive "service" problems, akin to basic pleadings.

What Is a Motion, & What Is Its Purpose?

Motions occur mostly after the lawsuit is established, and concern the lawsuit's conduct. Motions can be about virtually anything that litigants are entitled to and may be brought by any party to the suit. For instance, if a criminal defendant believes some evidence was illegally secured by the police, he may file with the court a Motion to Suppress Evidence. Sometimes an opponent will refuse to disclose information that the law requires or to which you are entitled, and you must file with the court a Discovery Motion or Motion to Compel Discovery, accompanied perhaps with a Motion for Sanctions. If there is some question whether certain evidence will be material and relevant to the purpose for which it may be introduced, especially if the evidence is highly prejudicial, then the attorney may file with the court a Motion in Limine, seeking the court's protection from the opponent's exhibiting such evidence to the jury before the court has officially ruled on its admissibility.

The number of possible motions in a given case is almost infinite, but generally should be used sparingly. Like "objections," if used to excess, both judges and juries get irritated, and one may easily find oneself winning the battles, but losing the war. File motions that matter, i.e., that have some palpable prospect of affecting the trial's outcome, and avoid other motions. When confronted by vexatious opponents who file trivial motion after trivial motion, my approach was usually to raise only token resistance, pointing out to the court that this or that motion has only marginal bearing, if any, on the suit and simply imposes upon the court's good nature and the jury's time and convenience. There comes a point, however, where "rambo tactics" become truly obstructive and vexatious, and the court may sanction the party, his lawyer, or both, and a motion requesting that may be appropriate.

Motions are different.

For most of this essay, I will be discussing motions, less pleadings. Note that difference.

Layout or Format:

Too much fretting is put into layout - There's nothing holy about it. It is simply a functional style, just like you would use in a business letter, date at the top, followed by addressee, followed by subject matter line, followed by salutation, followed by the letter's substance or body, followed by closing and ending with a signature and return address, etc.

It's that simple except, with pleadings and motions, the functional style is modified slightly to supply information needed to keep all the correspondence in the proper file. For instance, you need first to provide the Cause Number (top, centered), followed by the Style - which is composed of the Parties (left of center) and the Jurisdictional Court (right of center) - followed by the motions general-purpose Caption (centered caps underlined), followed by the Court Salutation (caps left), followed by the Body - this part needs more elaboration (below) - followed by the Prayer, precisely listing what you're
asking the court to do or Order, followed by the closing, signature and address of Movant, followed by the Certification of Service.

That's the basic layout of a motion and, with some small modifications, the layout of a pleading too, an Original Petition or Original Answer, etc. There's nothing terribly holy about this stuff, except that you want all this information in the correct order and place so that the court and all the parties can readily find and identify the information they need when and as they need it.

One of the easiest ways to get the format is to steal it! Every pleading or motion starts with the Cause Number and Style - If you become involved in a lawsuit, papers will be served on you, and they will have the Cause Number and Style on them. Steal that information and get on to the important part! Don't make this harder than it is, and concentrate on getting the Body and Prayer right. That's the part that counts.

Body & Prayer:

Body - A motion's body begins after the Caption, centered, for instance:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

and the Salutation to the Court, set fully to the left:

TO THE HONORABLE JUDGE OF SAID COURT:

The Body's first element is the Opening Paragraph, an important, perhaps the most important paragraph in the motion's body. In this paragraph, the movant puts the "who, what, when, why, where, and how" of the entire motion in one clear, carefully drafted, clear, properly structured, clear, complete, clear, accurate, and clear sentence.

Although some contemporary draftspersons disagree, I believe this paragraph should follow custom, beginning with the customary COMES NOW..., followed by the movant's name (i.e., name of party filing the motion) and role in the proceedings, followed by legal counsel's name or, if unrepresented, "pro se," followed by the motion's legal authority, and then precisely/concisely what the motion is about, and then the "tender" of what will be shown at the hearing to support and justify the motion.

For example, here's a simple sample of an Opening Paragraph for a motion asking the court to order
the parties to non-binding mediation:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Jonathan C. Witherspoon, Plaintiff in the above-styled and numbered
Cause, and Movant herein, by his attorney Phillip N. Windflur, pursuant to Chapter 154 of the
Texas Civil Practice & Remedies Code and this Court's Local Rules, and respectfully moves
this Honorable Court to Order this Cause's Parties to non-binding Mediation within thirty (30)
calendar days from Hearing hereon, and for grounds therefor would respectfully show unto this

Honorable Court as follows:

[ After this, the Body contains necessary averments and showing
of required elements to support Movant's request, each in separate
paragraphs, each set off by Roman numerals, I, II, III, IV, V .... ]

There are some very good practitioners who strongly disagree with my style's formal tone and older, more traditional fashion. I disagree with them, but the reasons go well beyond this treatment. If you agree with them and not with me, you may omit the flourishes, the "Honorable Courts" and "respectfully," the "hereins" and "therefors," and amend the syntax accordingly. Remember: We're not tampering here with holy words!

Body continued - Your motion's elements or required "showings" -

Your motion must accomplish two things before the court will hear it, and you must aver them to the court in your motion: 1) That the law allows the court to grant you the requested relief and 2) generally what facts or circumstances about your case or situation justify the requested relief. You must list this in the body, each element in its own paragraph, each paragraph separated by Roman numerals.

Note, however, you are not putting complete arguments or any evidence in the motion - Save that for the Hearing before the court, when everyone is present to state their full point of view. In the motion, what you intend to show or prove should suffice.

Continuing with the Mediation Motion example:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002)
and, more specifically, provides for "Referral of Pending Disputes for Alternative Dispute
Resolution Procedures" at § 154.021; and further,

II.

Movant would show, the contested issues being partition of partnership assets and
liabilities, not liability for partnership dissolution, the Parties are best situated to accomplish fair
and equitable voluntary division under facilitated negotiation, namely Mediation; and further,

III.

Movant would show, the economies of the Justice System and of this Honorable Court,
and of the Parties' current and future respective costs and interests, indicate that the Texas
Legislature's stated policies and intents should be applied in this matter; wherefore, premises
considered, ...

[ This is the end of the motion's Body, which leads directly in the
Prayer that follows (below). ]

Prayer - Exactly, step-by-step, in sequence, what do you want the court to do? Exactly! Remember: The court is not permitted to grant any relief that was not requested in the motion. Themovant must request exactly what he or she wants. Toward the end of this segment, I will provide a "catch-all" provision that may help cure omissions and oversights, but the key is to do it right - Ask precisely for the exact relief you need!

Notice that the Prayer is a list of actions the movant is requesting that the court take, and every item begins (in the independent clause at least) with an action verb: Grant ... Set ... Order ... etc.

Continuing with our Mediation Motion example:

PRAYER

Movant hereby prays that this Honorable Court:

1) Grant Movant's instant Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to voluntary Mediation within thirty (30) calendar days of this
Honorable Court's Order to Mediation, or within such reasonable time thereafter as
may be practical and as the Parties may mutually agree and file with this Honorable
Court; or, alternatively,

3) Should Objection to movant's instant motion be timely filed, Set a time, date and
place for Hearing upon this motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law
or in equity.

Respectfully submitted,
etc.

Notice that last item in the Prayer, item number 4. That is the "catch-all" provision that may enable a court to grant relief that was not properly requested or adequately supported in the motion itself. One should simply never file a pleading or motion without this last element. If one doesn't need it, no harm has been done - But, if one does need it, there is no substitute for it. Without it, the court's hands are tied. It cannot offer relief that was not requested.

Certification of Service:

As noted earlier, pleadings that institute suit and bring parties under the court's jurisdiction and authority must ordinarily be served upon each party by an officer of the court, a constable, sheriff or some such. After the suit is established and the parties know they must comply with the court's rules and orders, the process of exchanging information generally becomes less complex and certainly less expensive.

Motions are generally served in the following fashion: At the end of the motion, a "Certification of Service" is appended, assuring the court that a "true and correct copy" of the motion was mailed, postage pre-paid, through the United States Postal Service to each party at its official addressestablished with the court during the pleading and answering process.

CERTIFICATION OF SERVICE

I, the undersigned movant in the above and foregoing Plaintiff's Motion for
Court-Ordered Mediation, hereby certify that a true and correct copy of said
Motion was this date deposited with the United States Postal Service, postage
pre-paid and properly addressed to each Party in the above-styled and
numbered Cause.

___________________________________________
Movant's Signature & Date of Mailing

In some instances, it may be convenient for one party to simply hand the motion to opposing parties or their counsel of record. If that's the case, be sure you tell the truth - It is after all your sworn word to the court, and the last thing you want is for the court to doubt your truthfulness:

CERTIFICATION OF SERVICE

I, ..., hereby certify that a true and correct copy of said Motion was this date
personally handed to each Party in the above-styled and numbered Cause.
____________________________________________
Movant's Signature & Date of Delivery

Put together, the motion looks something like this:

Cause Number 9-1234567

___________________________________________________________________

§
Jonathan C. Witherspoon, § IN THE CIVIL DISTRICT COURT,
Plaintiff §
§
§ OF HARRIS COUNTY, TEXAS
versus §
§ ______________________
§
Geofferey L. Witherspoon, § 209^TH JUDICIAL DISTRICT
Defendant §
___________________________________________________________________

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Jonathan C. Witherspoon, Plaintiff in the above-styled and numbered
Cause, and Movant herein, by his attorney Phillip N. Windflur, pursuant to Chapter 154 of
the Texas Civil Practice & Remedies Code and this Court's Local Rules, and respectfully
moves this Honorable Court to Order this Cause's Parties to non-binding Mediation within
thirty (30) calendar days from Hearing hereon, and for grounds therefor would respectfully
show unto this Honorable Court as follows:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002)
and, more specifically, provides for "Referral of Pending Disputes for Alternative
Dispute Resolution Procedures" at § 154.021; and further,

II.

Movant would show, the contested issues being partition of partnership assets and liabilities,
not liability for partnership dissolution, the Parties are best situated to accomplish fair and
equitable voluntary division under facilitated negotiation, namely Mediation; and further,

III.

Movant would show, the economies of the Justice System and of this Honorable Court, and
of the Parties' current and future respective costs and interests, indicate that the Texas
Legislature's stated policies and intents should be applied in this matter; wherefore,
premises considered,

PRAYER

Movant hereby prays that this Honorable Court:

1) Grant Movant's instant Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to voluntary Mediation within thirty (30) calendar days of this Honorable
Court's Order to Mediation, or within such reasonable time thereafter as may be practical
and as the Parties may mutually agree and file with this Honorable Court; or, alternatively,

3) Should Objection to movant's instant motion be timely filed, Set a time, date and place for
Hearing upon this motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law or in equity.

Respectfully submitted,

s/ . . .

Phillip N. Windflur, Esq.
( TBCN 1234567)
Attorney for Plaintiff
The Gables Suites, Suite 100
123 North Main Street
Houston, Texas 77002
(713) 123-4567
fax (713) 123-4568
beep (281) 234-5678
pnw@yahoo.com

CERTIFICATION OF SERVICE

I, the undersigned movant in the above and foregoing Plaintiff's Motion for Court-Ordered
Mediation, hereby certify that a true and correct copy of said Motion was this date deposited
with the United States Postal Service, postage pre-paid and properly addressed to each Party
in the above-styled and numbered Cause.

____________________________________________
Movant's Signature & Date of Mailing

The same motion less formally put:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

Jonathan C. Witherspoon, Plaintiff and Movant in this Cause, by his attorney
Phillip N. Windflur, pursuant to Chapter 154 of the Texas Civil Practice & Remedies Code
and this Court's Local Rules, moves the Court to Order the Parties to non-binding Mediation
within thirty (30) calendar days from Hearing hereon, and for grounds would show the Court
as follows:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002) and,
more specifically, provides for "Referral of Pending Disputes for Alternative Dispute Resolution
Procedures" at § 154.021; and further,

II.

The contested issues being partition of partnership assets and liabilities, not liability for
partnership dissolution, the Parties are best situated to accomplish fair and equitable voluntary
division under facilitated negotiation, namely Mediation; and further,

III.

The economies of the Justice System and of this Court, and of the Parties' current and future
respective costs and interests, indicate that the Texas Legislature's stated policies and intents should
be applied in this matter; accordingly,

PRAYER

Movant prays that this Court:

1) Grant Movant's Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to Mediation within thirty (30) calendar days of this Court's Order to Mediation,
or within such reasonable time as may be practical and as the Parties may mutually agree and file
with the Court; or, alternatively,

3) Should Objection to this motion be timely filed, Set a time, date and place for Hearing of this
motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law or in equity.

Respectfully submitted,

etc.

CERTIFICATION OF SERVICE

I, the undersigned movant in the foregoing Plaintiff's Motion for Court-Ordered Mediation,
certify that a true copy of this Motion was deposited this date with the United States Postal Service,
postage pre-paid and properly addressed to each Party in this Cause.

____________________________________________
Movant's Signature & Date of Mailing

my man is Superman

Young Mc Lyrics

Know How Lyrics

Verse 1
-------

Some of the busiest rhymes ever made by man
Are goin' into this mic, written by this hand
Are comin' out of this mouth, made by this tongue
I'll tell you now my name, my name is Young
But so you think that it's your destiny
To get the best of me, but I suggest to be
Quiet, bro', don't even try it from the east and west of me
Takin' it and never breakin' it or even shakin' it
Groovin' it and always movin' it, cuz I'm not fakin' it
Pullin' out rhymes like books off the shelf
Born in England, raised in Hollis, taught to go for myself
This is stone cold rhymin', no frills, no fluffs
And it's no accident that these rhymes sound tough
I'm goin' off, baby, there's no turnin' back
I'm on your TV, on your album, cassette and 8-track
And when the show is finally finished I'll be takin' my bow
My name is Young, and yo I got know-how, you know what I'm sayin'?

I got know-how
Party people, I got know...how
I kick it just like this...

Verse 2
-------

I got juice like the president, I'm makin' rappers hesitant
Invite me to your house and I'll be chillin' like a resident
Yes, cuz I'm that type of man
Cuz I make myself at home no matter where I am
I got it rollin' like thunder, makin' y'all wonder
Why I'm on top with all the other rappers under
I make no errors, mistakes or blunders
It's like a wedding, let no man put asunder
My name is Young MC, I like to rock mic well
Cuz when I get up on the mic I just release my spell
It's no hocus-pocus, I'll just get you into focus
And swarm all over you just like a horde of locusts
Smooth operator, female persuader
Spot a fly girl and in a week I'm gonna date her
I got the kind of style for the here and the now
And I can do it cuz I got know-how, you know what I'm sayin'?

I got know-how
Party people, I got know...how
Bust it!

Verse 3
-------

MC's I'll ruin, cuz I know what I'm doin'
I'll treat 'em like doublemint gum and start chewin'
I spit 'em out when the flavour's gone
And I repeat the chewin' practice 'til the break of dawn
Cuz I'm tough like a bone, sly like Stallone
Rockin' and clockin' on the microphone
Smooth like a mirror, in hearts I strike terror
Rhymes like runs and hits with no errors
Cold like a blizzard, on the mic I am the wizard
With the funky fresh rhymes comin' out of my gizzard
Never sneezin', never coughin', I rock the mic often
Hard as a rock and no sign I'll soften
Makin' sure I get respect, on my mind rhymes connect
I start to build like a builder from a architect
Movin' all around, above and under the ground
You see my face, and then you hear my sound
Comin' atcha with the mic in hand
I'm gonna take command just the way I planned
Cuz I'm a one-man band and you are my fan
Don't you understand? I'm like Superman
Yeah, the Man of Steel, don't you know the deal?
You better be for real, I got sex appeal
This is what I feel, and this here's my vow
And now you know the brother with know-how, you know what I'm sayin'?

I got know-how...and I'm chillin', never illin'
In my mouth I got two fillin's...whatever!
I'm on the mic, cold stone gettin' over
My name is Young MC, known as the fly casanova, kick it...

['Apache' until fade]

God~spends so much exclusive and private time together yet Some people might take a much broader........

Some people might take a much broader, theological, psychological or sociological approach to the problem of homosexual priests and bishops. I prefer to stay on the more specific but lethal problem in the indefensible practice of placing homosexual priests into living situations and associations with other men - thereby creating a double moral standard for heterosexual vs. homosexual priests.
The essay is a brief logical explanation of the inherent conundrum concerning that problem.

The Real Story about Celibacy
Rev. James R. Haley

Let me see if I have this completely “straight” from my Catholic moral training:

Mr. X, a heterosexual man, can only become a priest if he makes a vow of celibacy – if he vows to remain unmarried to a woman.

With his priestly vow of celibacy per se he does not, as is frequently believed and wrongly reported, make a vow to refrain from sex. But since he vows to remain unmarried, he is required by his Catholic faith to refrain from sex. He must remain chaste – he cannot have sex because, according to his Catholic faith, sex outside of marriage is morally wrong.

ü Since he cannot have sex, he is taught by his Catholic faith that he should be modest in his relations with women - he should observe conventional and prudent proprieties in his speech, behavior and dress around women.

ü Since he should be prudent in his associations with women, he is instructed by his Catholic faith that he should avoid the temptations inherent in certain situations, relationships and behaviors – he should avoid the near occasions of sin with women.

ü Since he should avoid the near occasions of sin, he is taught by his Catholic faith that it would be wrong for him, without a compelling reason, to live with women, or to associate exclusively with women in situations outside of his work or the necessities of his ministry, or to develop particularly close, or personal, or secret, or intimate relationships with women. And of course it would be wrong for him to access pornography as a substitute for the sex he cannot have.

If he were to engage in such imprudent living arrangements, associations and behaviors, and if these improper situations were not kept wickedly secret, they would rightly create a scandal for the faithful who would, quite correctly, believe that such imprudent living arrangements, associations and behaviors would naturally lead to serious sins with women in thoughts, words and deeds. And thus these situations would seem to violate the intent and the spirit of his priestly vow of celibacy - to remain unmarried - to remain personally, emotionally and intimately un-associated with a woman.

Such imprudent living arrangements, associations and behaviors could eventually lead to the direct violation of his priestly vow of celibacy by leading to a scandalous and sinful marriage between the priest and "that woman." According to the canon law of the Church, such a marriage would not be recognized as a valid marriage, and the consequence to the priest would be an immediate removal from ecclesiastical office by virtue of the law itself (Canon 194).

I know many heterosexual priests who have suffered such a fate.




--------------------------------------------------------------------------------

Mr. Y, a homosexual man, can only become a priest if he makes a vow of celibacy - if he vows to remain unmarried to a woman.

He does not vow to remain unmarried to a man because, according to his Catholic faith, he can never marry a man - he cannot vow to give up what he cannot have in the first place.

Therefore, Mr. Y's priestly vow of celibacy is an easy, ludicrous and utterly pointless promise for him to make since he does not want to be married to a woman. (It wasn't so easy, ludicrous or utterly pointless, however, for Mr. X.)

With his priestly vow of celibacy per se he does not, as is frequently believed and wrongly reported, make a vow to refrain from sex. He makes a vow to remain unmarried. But since he has vowed to remain unmarried to a woman, and since he cannot validly “marry” another man, he is required by his Catholic faith to remain perpetually chaste - he can never have sex.

ü Since he can never have sex, he is taught by his Catholic faith that he should be exceptionally modest - he should observe conventional and prudent proprieties in his speech, behavior and dress around other men.

ü Since he should be prudent in his associations with men, he is instructed by his Catholic faith that he should avoid the temptations inherent in certain situations, relationships and behaviors - he should avoid the near occasions of sin with men.

ü Since he should avoid the near occasions of sin, he is taught by his Catholic faith that it would be wrong for him, without a compelling reason, to live with other men, or to associate exclusively with men in situations outside of his work or the necessities of his ministry, or to develop particularly close, or personal, or secret, or intimate relationships with other men. And of course it would be wrong for him to access pornography as a substitute for the sex he can never have.

If he were to engage in such imprudent living arrangements, associations and behaviors, and if these improper situations were not kept wickedly secret, they would rightly create a scandal for the faithful who would, quite correctly, believe that such imprudent living arrangements, associations and behaviors would "naturally" lead to serious sins with other men in thoughts, words and deeds.

However, in Mr. Y's case, unlike Mr. X’s, such imprudent and immoral living arrangements, associations and behaviors could not be said to violate the spirit and intent of his utterly pointless and ludicrous priestly vow of celibacy - to remain unmarried to a woman - to remain personally, emotionally and intimately un-associated with a woman.

Such imprudent living arrangements, associations and behaviors could easily, however, lead to many personal, lifelong, secret, exclusive, intimate and emotionally fulfilling relationships with other men – even to many homosexual relationships in which there is no sexual contact and thus those relationships that could be considered “celibate” by using a much more confined and secular definition of that word – certainly not the fuller definition used in the priestly vow of celibacy to which Father X is held bound.

If Father Y attempts to “marry” his homosexual partner, the Church would certainly not recognize the “marriage.” In fact, the Church would not even recognize such a union as an attempt at “marriage.” And since such a union would not be considered a “marriage,” there would be no immediate removal from ecclesiastical office if such a union formed. (Unless, I suppose, the homosexual priest was foolish enough to attempt a “civil union” in the state of Massachusetts.)

Canon 1055, and its frequent application in marriage tribunals, exclusively defines marriage as a covenant between a man and a woman. The reality of a personal, committed, exclusive, intimate, emotionally fulfilling and even non-sexual relationship between a homosexual priest and another man would therefore present a very novel and problematic case, because canon law never mentions homosexual priests at all. Nor does it mention their potential for unions that for-all-intents-and-purposes could be considered quasi-marriages. It is as if neither homosexual priests nor their intense or intimate unions ever existed in reality.

What is the result of this morality in the real world of the Catholic rectory?

The outcome is that Fr Y, the homosexual priest, is potentially allowed to have, certainly not prevented from having, one might even say continually tempted to have, many personal, lifelong, secret, exclusive, intimate and emotionally fulfilling relationships with other men, whom he can even live with, and associate with almost constantly.

Fr. X, the heterosexual priest, on the other hand, is discouraged from having, forbidden to have, and actively prevented from having such personal, lifelong, secret, exclusive, intimate, and emotionally fulfilling relationships with women, whom he certainly cannot live with, nor with whom he can constantly associate.

Said simply: Fr. X, the heterosexual priest, cannot live his life with women. Fr. Y, the homosexual priest, is conveniently "forced" to live his life with other men.

So what is the compelling reason for such duplicitous moral standards? What is the compelling reason that Fr. Y is forced into such imprudent and foolish living arrangements for perhaps the entirety of his priestly life? Well, the direct reason is that he is forced to live in such imprudent arrangements by his shepherd and moral guide, the bishop who assigns him to his rectory, or by the abbot who directs his religious community. And in placing their priests in living situations together, the bishop or abbot is following the dictates and recommendations of ecclesiastical documents and of canon law, which encourage priests to live together, to support one another, and to closely associate with one another throughout their priestly lives.

By assigning religious men to live only with men, and religious women to live only with women, the bishop or abbot is apparently also following the tradition and moral prudence, or one can more properly say, the moral necessity, of keeping religious men and women separated from one another - a very prudent practice because, in the words of an honest speaker concerning human nature and Christian love: “There is nothing more naturally attractive for a Christian man in love with God, than a Christian woman in love with God.”

But that same-sex living assignment quickly and clearly runs seriously afoul when the sexual orientations and desires are reversed from their norm and, even more so, when those sexual orientations remain hidden from the outside world – that leads to the very improper, imprudent and secret situation that the Church was trying to prevent. In other words: There is nothing more “naturally” attractive for a homosexual man in love with God, than another homosexual man in love with God.

So ironically, tragically, inexplicably, it is the Church itself, the model and guide to moral life, that is encouraging, advocating and requiring the perpetual near occasion of sin for homosexual priests, and, in turn, creating an extremely uncomfortable situation for the heterosexual priests who are not interested in forming one of those personal, lifelong, secret, exclusive, intimate and emotionally fulfilling relationships with other men. And this non-interest from the heterosexual priest is a frequent cause of alienation, resentment and bitterness from the homosexual priests who would prefer to live with, and associate with, other homosexual priests, especially when so many other homosexual priests are afforded that “secret” privilege. In simple terms: the straight priest is neither wanted nor welcome among the homosexual priests.

Of course, all of this moral double-dealing leads to many situations of outright hypocrisy and utter dishonesty. For example, how can a homosexual priest who lives with another man, rightly tell the young “couple” in high school that it would be morally dangerous to spend so much exclusive and private time together, or tell the college kids that it would be improper for them to share intimate coed living arrangements, or to instruct the “couple in love” that they should not be living together? A priest should not only be the teacher of correct moral behavior, but should also be the model of that correct moral behavior. What is he supposed to say to these enquiring minds that search for the Catholic truth from their priests and bishops: “Just look at me and my life. It’s perfectly ok to do what you are doing, just as long as you remain celibate?” Or let me now carefully qualify that: “just as long as you have kept celibate for three years, and are willing to keep your sexual orientation and desires secret from others in your public life.”

What nonsense. What utter moral nonsense!

It seems to me that the double celibacy requirement has encouraged homosexual men in larger and larger percentages that, as you describe, are more than happy to "give up" traditional marriage for the priesthood. From what you have described, as power structures have evolved through the years in the Church, homosexual men have become favored. Their tendencies and nature were hidden from the public under the quiet cloak of "celibacy." As the pressure of greater numbers and power of homosexual men in the Church gains, the numbers of heterosexual men further decline.

Your document describes the dilemma and the extreme irony that the current situation is for many - a curtain or front behind which many homosexual priests can hide. Could it be entitled something like: Can a homosexual priest be celibate? [Anonymous]




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Waste money on loser lawyers Welder, Leshin & Mahaffey~ Colleen McHugh............

well robbing the hood is their specialty...so they ain't exactly yellow bellied 'bout them gambling with the finance of the "education code". Hail, them folks sold the People of Texas a Smelly bill of goods when they claimed that lottery was going to finance "education" for the schools.... the only thing i see is the corrupt TAKS INVENTORS.... who have seemed to LOVE to wish the children of the Public schools of the CCISD.... A Happy VERY Merry Un Birthday to you...to you ....to you.

Waste money on loser lawyers Welder, Leshin & Mahaffey~ Colleen McHugh... why would Governor rick perry's personal attorney freelance to screw the children of CCISD out of 45K?



FORTY FIVE THOUSAND DOLLARS!


I say we sue.....after all we paid for nothing!


CCISD Parents are pissed ...We are tire of OUR money being spent for nothing and your tricks are presented as for free.

Wake up~ you have slipped in to the Twilight Zone.

Brady v Maryland

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-1012-03

JACKIE RUSSELL KEETER, Appellant


v.


THE STATE OF TEXAS


ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

HAMILTON COUNTY

Holcomb, J., filed a dissenting opinion, in which Johnson, J., joined..

A jury found appellant guilty of indecency with a child, found the enhancement paragraphs true, and assessed punishment at imprisonment for life and a $10,000 fine. On direct appeal, appellant argued that the trial court erred in denying his motion for new trial because (a) the complaining witness recanted her testimony shortly after trial on the merits and (b) the State did not disclose exculpatory evidence relating to that recantation. The Tenth Court of Appeals reversed, holding that the trial court abused its discretion because the recantation was credible. A majority of this Court reversed the judgment of the court of appeals and remanded the case to that court for resolution of appellant's Brady claim. (1) I dissented to the reversal, because, in my opinion, the court of appeals correctly concluded that the trial court abused its discretion in not granting the motion for new trial due to the newly discovered, material recantation evidence. On remand, the Tenth Court of Appeals again reversed the judgment of the trial court, holding that the State withheld material impeachment evidence. Today, the majority again reverses the judgment of the court of appeals. Because the record evidence clearly supports the court of appeals' holding that the State withheld material evidence, I again dissent.

I strongly disagree that appellant did not preserve error of his Brady claim. Texas Rule of Appellate Procedure 21.1 provides that a motion for new trial is a prerequisite to presenting a point of error on appeal when necessary to adduce facts not in the record. At the hearing on the motion for new trial, appellant adduced facts that Brady evidence was conveyed to the State and that Brady material was never conveyed to the defense. See Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947) (op. on rehr'g) (appellant must provide reasonable notice to the trial judge and the State of errors that occurred or arose outside the trial proper). In appellant's first amended motion for new trial, he asserted that "Evidence establishing the defendant's innocence was withheld by a material prosecution witness." A first-year law student would recognize this to be a claim that Brady material was not turned over to the defense prior to trial. See id. (finding appellant did not preserve error of jury misconduct complaint because the motion for new trial contained no allegation that jury misconduct occurred); see also Tex. R. App. P. 21.3(e) (containing similar language). But more importantly, there is no doubt that the parties and the trial judge fully understood that a Brady claim was being litigated. (2) Indeed, the State even filed a letter in the appellate court in which specific references to Brady were made and arguing that the State is not required to turn over "evidence that is available equally to the defense and the prosecution" and "defendants must bear the responsibility for their failure to diligently seek its discovery." We have held that "No technical considerations or form of words" are required to preserve error for review. Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) (straightforward communication in plain English will suffice if it lets the trial judge know what the party wants and why he thinks himself entitled to it); see also Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) ("Identifying challenged evidence as hearsay should generally be regarded as sufficiently specific objection."). We have held also that the State may not complain on appeal about the adequacy of a motion for new trial unless it lodged a complaint in the trial court. State v. Gonzalez, 855 S.W.2d 692, 694-95 (Tex. Crim. App. 1993). The State did not complain orally or by written motion that appellant's Brady claim was inadequate. See id.

It is clear that appellant preserved error. Tex. R. App. P. 33.1(a)(1)(A) (to preserve error on appeal, party must object with sufficient specificity to make the trial court aware of the complaint). The fact that appellant did not cite to Brady in his written motion for new trial or say the words Brady v. Maryland at the hearing, should not override the fact that the specific grounds of his motion were apparent from the context and both parties vigorously litigated the Brady claim. See Gallups v. State, 151 S.W.3d 196, 198 n.1 (Tex. Crim. App. 2004) (holding that appellant preserved error of state law claim under Tex. Code Crim. Proc. Ann. art. 14.05(1), even though he did not mention art. 14.05 in his motion to suppress); Tex. R. App. P. 33.1 (a)(1)(A). The majority's holding that appellant did not preserve error of his Brady claim will effectively overrule a long line of cases from this Court and engraft a greater burden onto Tex. R. App. P. 33.1 (a)(1)(A). (3)

Because the majority holds that appellant did not preserve error, it does not examine whether Brady evidence was conveyed and withheld or whether the evidence was "material" for purposes of a Brady claim. I would hold that the court of appeals did not err in concluding that Brady evidence was conveyed and withheld and that the evidence was material. Keeter v. State, 105 S.W.3d 137, 146-47 (Tex. App.--Waco 2003).

As the majority opinion explains, the complaining witness' father and step-mother both testified at the hearing on motion for new trial that they told the State before trial that, for a variety of reasons, they did not believe the complainant's accusations. (4) The prosecutor to whom this Brady material was allegedly relayed was at the hearing on the motion for new trial, but he did not controvert the two witnesses' assertions. (5) Additionally, the prosecutor, through his cross-examination of the witnesses, did not challenge that the evidence was relayed to him before trial. Rather, the prosecutor cross-examined the witnesses about when the information was relayed (whether it was one month before trial, three months before trial, or "last year"), whether the father and step-mother's beliefs about appellant's innocence was consistent and continuous, and whether there were other opportunities before trial to reassert their beliefs to the State that the complainant was lying. (6) Thus, because the State did not challenge the allegations that Brady material was conveyed, I would hold that, even under a deferential review of the trial court's ruling, (7)

the trial court abused its discretion in denying appellant's motion for new trial. See Banks v. Dretke, 540 U.S. 668, 675-76 (2004) ("When police or prosecutors conceal significant exculpatory or impeaching material in the State's possession, it is ordinarily incumbent on the State to set the record straight."); see also Tex. Code Crim. Proc. Ann. art. 201 ("It shall be the primary duty of the of all prosecuting attorneys . . . not to convict, but to see that justice is done. They shall not suppress facts or secret witnesses capable of establishing the innocence of the accused.") (emphasis added). Evidence is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 434 (1995); United States v. Bagley, 473 U.S. 667, 676 (1986); Thompson v. State, 841 S.W.2d 399, 404 (1992). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682. Brady evidence includes impeachment evidence as well as exculpatory evidence. See id. at 676.

I agree with the court of appeals that the evidence in question was material impeachment evidence because "Travis's and Rhonda's testimony had, by far, the highest potential to discredit [complainant's allegations]." Keeter v. State, 105 S.W.3d at 146. Had appellant been apprised of the witness' beliefs, the result of the proceeding might well have been different. See Ex parte Richardson, 70 S.W.3d 865, 871 (Tex. Crim. App. 2002).

First , the father and the step-mother had no motive to testify against the complainant in a prosecution of a non-relative charged with molestation. Likewise, that a father would have testified in favor of a man accused of molesting his daughter would have been powerful evidence to the jury. And, evidence that a father, who had no ties to the defendant, would claim that the District Attorney had the wrong man is equally compelling evidence. Second, because the complainant had lived with the father and step-mother for almost a year prior to the trial, they had personal knowledge of the complainant's propensity to lie, which surely would have been admitted upon cross-examination. See Keeter, 105 S.W.3d at 147 (noting that the witness' testimony would be admissible under rules of evidence 608 and 613). In sum, a parent and step-parent would not testify favorably for an accused person charged with molesting their daughter, if those persons, with personal knowledge of the complainant's behavior, did not believe that the accused was innocent.

Thus, because in my view, the State withheld material impeachment and exculpatory evidence, I would hold that the jury's verdict is not worthy of confidence. See Kyles v. Whitley, 514 U.S. at 434; Bagley, 473 U.S. at 682; Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1997). Because the trial court had clear notice that a Brady claim was being litigated, and the record evidence clearly supports the court of appeals' conclusion that material Brady evidence was withheld, I dissent.

DELIVERED: April 6, 2005.

PUBLISH

1.
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").

2. In further support of its holding that appellant did not preserve for review his
Brady claim, the majority points to the trial court's order denying the motion for new trial. See ante, slip op. at 9 ("Also, the trial court's order denying the motion does not mention a Brady claim."). Our rules of appellate procedure, however, instruct that a trial court "must not summarize, discuss, or comment on evidence" in its ruling on a motion for new trial. Tex. R. App. P. 21.8 (b). It is rather disingenuous of the Court to look to the trial court's order, which improperly discusses and comments on the evidence, to support its conclusion that "appellant did not raise a separate claim related to Brady."

3. Because the record clearly reflects that appellant's
Brady claim was preserved for review, I express no opinion upon the court of appeals' reasoning that Brady claims are unwaivable rights under Marin. v. State. 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993) (recognizing three categories of rights--(1) absolute requirements and prohibitions (unwaivable rights), (2) rights which must be implemented unless expressly waived, and (3) rights which are implemented upon request).

4. The complainant's father testified he told the District Attorney at least four months before trial that he did not believe his daughter and that the District Attorney was "accusing the wrong man." The step-mother testified that she told an assistant district attorney that she did not believe her step-daughter quite a while before trial. Specifically, she testified that she conveyed to the State her beliefs that complainant was lying "the first time we were to come down here and talk about the trial that we met with him so he could talk to [complainant]. I don't remember when it was, last year."

5. If the prosecutor disputed the witnesses' assertions that
Brady information had been relayed, he should have asked to be sworn and then testified to the contrary, or otherwise disputed the witness' assertions in open court as an officer of the court, i.e.--that the Brady information had not been conveyed to him prior to trial. The prosecutor could have readily controverted the facts alleged by the father and the step-mother. Because he did not, I would hold that the court of appeals did not err in reversing the trial court's implicit finding that Brady information was withheld. See Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim. App. 2004) (citing to rule of civil procedure 166a (c) which provides that "summary judgment may be based on uncontroverted testimonial evidence of an interested witness . . .if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted); see also, Brady, 373 U.S. at 87 ("Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.").

6. Upon cross-examination of trial counsel, who had called herself as a witness to testify that the State never told her about the witness' doubts, the prosecutor asked, "If it didn't occur it wouldn't be disclosed; isn't that true?" This general question is not the equivalent of sworn testimony that the witnesses did not express their beliefs to the prosecutor before trial that the complainant was lying.
See Banks v. Dretke, 540 U.S. 668, 675 (2004) (finding significant to prosecutorial misconduct claim on habeas review that the prosecutor did not correct informant's untruthful testimony in open court when informant lied on the stand). The majority summarily concludes that the prosecutor did not know that appellant was making a Brady claim at the motion for new trial. See ante, slip op. at 9 ("Had the prosecutor been aware that the appellant was making a Brady claim, he could have testified to deny the allegation."). However, if the prosecutor did not know that a Brady claim was being made, there would be no reason for him to have asked defense counsel whether the Brady material had been conveyed at all.

7.
Charles v. State, 146 S.W.3d at 210.