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Blake v. Nickerson

December 7, 2007

JAMES RAY BLAKE, APPELLANT
v.
JESSE L. NICKERSON, III, APPELLEE



On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 76072.

The opinion of the court was delivered by: Chief Justice Morriss

Before Morriss, C.J., Carter and Moseley, JJ.

MEMORANDUM OPINION

Can an individual recover from his former criminal trial attorney for alleged legal malpractice occurring some sixteen years after the trial court had severed the attorney-client relationship and appointed a different attorney to assist in post-conviction matters? The trial court answered the question with a resounding "no" in granting the attorney a summary judgment. We agree.

James Ray Blake sued his former criminal defense counsel, Jesse L. Nickerson, for legal malpractice and sought $3,000,000.00 in damages (exclusive of costs). In the late 1970s, Nickerson was appointed Blake's trial counsel in State v. Blake, cause number 7816, in the Sixth Judicial District Court, in Lamar County, Texas, wherein Blake was found guilty of burglary of a habitation (with intent to rape) and sentenced to life imprisonment. See Blake v. State, 622 S.W.2d 135 (Tex. Crim. App. 1981) (summarily affirming Blake's conviction for burglary of habitation). The jury apparently returned the adverse verdict in early 1978. The record before us in this malpractice suit shows that, at about the same time, the trial court relieved Nickerson as Blake's attorney and appointed new counsel to represent Blake on appeal.

In September 2005, Blake filed an application for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01, et. seq. (Vernon 2006). That motion was denied by the trial court on the basis that all evidence related to Blake's conviction had been destroyed in 1994. We subsequently affirmed that denial. See Blake v. State, 208 S.W.3d 693 (Tex. App.--Texarkana 2006, no pet.).

Blake's current lawsuit, filed in March 2007, asserts Nickerson committed legal malpractice in 1994 by failing to inform Blake of the State's intent to destroy any potential DNA evidence related to Blake's underlying criminal conviction. Nickerson entered an appearance and filed a general denial to Blake's accusations. Thereafter, Nickerson moved for summary judgment on the basis that Nickerson's attorney-client relationship with Blake was severed by a specific trial court order in February 1978. Nickerson additionally alleged the statute of limitations had ...


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