Texas Independent Bar Association Austin, Texas John G. Jasuta Louis Lopez, Jr. Charles Mallin Gail Kikawa McConnell Angela J.

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2 Published By Texas Independent Bar Association Austin, Texas Web Page: Alan Curry Helena Faulkner Jeffrey S. Garon Lee Haidusek Copyright 2013 Texas Independent Bar Association and the following Commentators John G. Jasuta Louis Lopez, Jr. Charles Mallin Gail Kikawa McConnell Angela J. Moore Editor-in-Chief: John G. Jasuta Doug O Brien Greg Sherwood David A. Schulman Kevin P. Yeary Clicking a hyperlink (such as a judge s name) will load the linked opinion or document in your web browser. It is TIBA s policy that commentators do not summarize or comment on cases in which they were involved. Volume 21, Number 48 ~ Monday, December 2, 2013 (No. 989)

3 Featured Article Thanksgiving - A Truly American Holiday RETURN TO TABLE OF CONTENTS First, a note about this week s cover and the beautiful Norman Rockwell print to the left, which graced the cover the Saturday Evening Post on March 6, I had originally intended to use it for the cover shot representing last week s November Pot Pie article. Instead, I chose the photo of the Bullwinkle balloon in the Macy s Thanksgiving Day parade in The Saturday Evening Post cover represented Mr. Rockwell s vision of the United States 70 years ago. We have the imagery of the stereotypical American family two or three generations of family members around the holiday table; Grandma serving her slaved over turkey, with Grandpa standing by ready to carve it up. Ultimately, I decided that Rockwell s vision was different than what I perceive to be the reality of what life is, and even was at that time. On the other hand, a photo of the crowd at a holiday parade, only four days after we lost our President, is more indicative of the nature of the people who live in this country. In some ways (not all), we refuse to be beaten, and we refuse to dwell in our losses. Whether we are like that today isn t really clear, but we were certainly like that in David A. Schulman, one of the founders of TIBA, has been a co-author of this report for many years. He was a member of the Court of Criminal Appeals' staff in , and has been lead counsel in hundreds of direct appeals and habeas corpus proceedings. David reviews every published criminal case from the Court of Criminal Appeals and every Court of Appeals on a daily basis. He has been Board Certified in Criminal Law since 1991 and was one of the first attorneys to become Board Certified in both Criminal Law and Criminal Appellate law. See his website at TIBA s Texas Law Reporter - Vol. 21, No December 2, Page 1

4 History of the Feast If there is anyone in this country who hasn t learned of the Thankgiving feast shared by members of the Plymouth Colony with the Wampanoag tribe, they must have been home schooled by parents using quite nontraditional textbooks. The Pilgrims, as they have come to be known, probably did not use the term thanksgiving, and they most certainly did not have anything even remotely resembling pumpkin pie (by the end of the first year they had little or no sugar). That first Thankgiving meal did include turkey, but also venison provided by the Wampanoags. Additionally, given that the colonists lacked ovens, the meal was most likely prepared quite differently than it would be today. Governmental Fiat On October 3, 1789, President George Washington issued the first Thanksgiving proclamation. As requested by a joint committee of both House and Senate members, he called for a a day of public thanksgiving and prayer. President Washington recommended Thursday, the 26th day of November next... as the day. Exactly seventy-four years after Washington s proclamation, on October 3, 1863, President Abraham Lincoln issued the second Thanksgiving proclamation. In his proclamation, he invited all citizens to set apart and observe the last Thursday of November next, as a day of Thanksgiving.... According to the National Archives, between Washington and Lincoln, presidents issued Thanksgiving Proclamations, but the dates and even months of the TIBA s Texas Law Reporter - Vol. 21, No December 2, Page 2

5 celebrations varied. 1 There was no national consensus as to when to celebrate Thanksgiving until 1941, when Congress officially designated the last Thursday of November as a national holiday known as Thanksgiving Day. Thanksgiving - My Favorite Holiday Now let s get back to Norman Rockwell s vision. The title of the Saturday Evening Post cover is Freedom from Want, as is based on one of the four freedoms 2 President Franklin Roosevelt mentioned in his State of the Union address in I liked the photo when I first saw it. I liked it more when I learned the title. Although there are many many people in the United States who never really get to experience a dinner like that depicted by Mr. Rockwell, the great majority of us live our lives truly free from hunger. I certainly have, even in the leanest of times. My earliest recollections are Thanksgiving dinner at my great-grandmother s house in upstate New York. What I recall then was there was a lot of people at her house (my mother is the oldest of 14 children), and it was a great big house with a cook stove that had real fire inside (i.e., a very old wood burning cook stove). It wasn t anything like the scene in Mr. Rockwell s dining room, but then again, my family is nothing like most families. When I was a little older, Thanksgiving meant watching football on TV -- the Packers vs. the Lions. This was, of course, long before the Cowboys played every Thanksgiving Day and before the team existed. What I recall most vividly is that I liked Thanksgiving more than I liked any other holiday. I couldn t tell you why, but I later came to realize that it was because of all the family members that I generally only got to see on Thanksgiving. It s no different today. For the last dozen years, with the exception of two years when we happened to be in Cuba, my partner (Princess Madgie) and I have traveled to the Dallas area to be with her family 1 See 2 Freedom of speech, Freedom of worship, Freedom from want and Freedom from fear. TIBA s Texas Law Reporter - Vol. 21, No December 2, Page 3

6 -- drive up Thursday and drive back Friday. Consequently, we ve always had our Thanksgiving dinner on Saturday afternoon. Sometimes it would be just me and Madgie being joined by my daughter and granddaughter, sometimes it would a large group of family and friends. This year we didn t go to Dallas, and, instead, planned on spending the weekend here in Austin. Thanksgiving dinner, naturally, was still planned for Saturday. Thursday morning, my daughter, Katrina, worked as a volunteer putting meals together to be delivered to the less fortunate. I am proud to say that volunteerism is something I was able to instill in her. After her time in the kitchen, she joined Madgie and me for lunch, which was, as you might expect, a turkey sandwich. The last time Trina and I were together on Thanksgiving was when she traveled to Cuba with us in Friday, by brother arrived, as did one of his daughters and his grandson. Friday afternoon, Trina s mom (my first wife) arrived. The seven of us had dinner at Amaya s Taco Village, one of the better local Tex-Mex restaurants. The big feast was Saturday -- seven of us from the previous evening, plus three neighbors, my granddaughter, and a few assorted friends. Ironically, Saturday happened to be the occasion of my wedding anniversary with my first wife. We share a daughter and granddaughter, so, in some ways, although divorced many years, we re still family. Because of the family we share, I am thankful for her and the time we spent together. Which brings me back to the message of this piece, and why Thanksgiving remains my favorite holiday -- the many things for which I am thankful. Be thankful you have family and friends. Be thankful you work in an occupation which provides well for you. Be thankful you live in this country and, because of all of the above, that you are free from want. In short, do not lament those things you want but don t have, but be thankful for everything you have right now. It s just that simple. TIBA s Texas Law Reporter - Vol. 21, No December 2, Page 4