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Texas Court of Criminal Appeals, Place 9

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    W.C. "Bud" Kirkendall (R) District Judge

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    David Newell (R) criminal appellate attorney

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Biographical Information

Length of residency in Texas:

Occupation/main source of income:

Education (include all degrees):

Highlights of current civic involvement/accomplishment:

Highlights of past civic involvement/accomplishment:

Previous public offices sought or held:

How much funding have you raised for your campaign?

Who are your top three contributors?

Have you ever been arrested or involved in any criminal proceedings? If so, please explain:

Have you ever been involved in any civil lawsuits or declared personal or professional bankruptcy? If so, please explain:

What is an example of how you led a team or group toward achieving an important goal?

What judge or attorney do you most admire and why?

Why are you running for this office?

Why should voters choose you over your opponent?

As a judge (if applicable), have any complaints been filed against you to with the State Commission on Judicial Conduct? If so, please explain the disposition of those complaints.

As an attorney, have you had any grievances filed against you with the State Bar of Texas? If so, what was the disposition (unfounded, private reprimand, public reprimand, suspension, disbarment)?

What do the many DNA-proven exonerations say about weaknesses in the Texas justice system and how should the court address that?

What changes, if any, would you like to see made to the administration of the death penalty in Texas?

This court has a reputation for being tough on crime, sometimes unreasonably so. Is this reputation deserved?

Describe what you see as the proper temperament for a judge.

For appellate court incumbents (if applicable), what's the average time it takes from the time a case is filed to when it is disposed of in your court?

If you have been a judge in a county or appellate jurisdiction, what was your reversal rate?

Is there a problem with the availability or quality of legal services provided indigent defendants in this state? If so, how would you seek to address it?

Because Texas selects its judges and justices through partisan elections, you chose to run as a Republican, Democrat or member of another political party. What philosophies of that party led you to choose it for this race?

Do you support our system of electing judges in partisan contests? Or would you favor moving to a different system, such as one where judges are appointed and then run later in non-partisan retention elections?

The Supreme Court oath that all lawyers take requires them to say that “we will avoid the appearance of impropriety.” In light of that, how can judges justify accepting campaign contributions from lawyers who have appeared or may appear before them in court?

City/Town Seguin TX 78155
Age 64
Campaign Phone Number (830) 379-8408
Email Address wckirkendall@yahoo.com
41 years
District judge
B.A., Iowa State University J.D., University of Texas School of Law
Member and Sunday School teacher, First United Methodist Church Board member, Seguin Public Library
Founder and officer, Guadalupe County Children's Advocacy Center; founding board member, Guadalupe County Pregnancy Center; founder and board member, Seguin Youth Basketball Association; board member, Guadalupe County MHMR; board member, United Fund; former president and board member, American Heart Association, Guadalupe County chapter; long-time Little League coach; former Kiwanis Club member.
District Attorney, 25th Judicial District 1984-2004 District Judge, 2nd 25th Judicial District 2005-present
Less than $20,000
My brother-in-law, Dr. Robert Frets--$1000 My son-in-law, Graeme Rein--$1000 A high school classmate, Bruce Rollins--$1000
No
I have never declared bankruptcy. I have been sued, as most judges, by frivolous suits by prisoners or disaffected litigants. All have been resolved in my favor.
We started the Guadalupe County Children's Advocacy Center from scratch. I was the point person to assemble a board, raise local funding, secure a grant from the state CAC agency, hire a staff, and secure approval and cooperation of numerous local governments and police agencies. A lot of work and late nights were required but the need was great, and we have a strong local CAC to show for it.
I admire many. I regard Cathy Cochran, for whose seat I am running, as an excellent example of an outstanding judge who writes clearly to explain her decisions to the bench, bar and public. I also admire Justice Clarence Thomas for his strict construction of statutes and his refusal to allow his personal political opinions to affect his rulings.
The Court has three incumbents who are not running for reelection and a fourth who is running for another position. I cannot remember a time when the Court will change so much with one election. Leadership will be required for the court in the very near future. I believe I have demonstrated throughout my career leadership that will help this new court succeed. I have been a leader in my church, in my community and in my profession.
The issues are experience and qualifications. I have seen the criminal justice system from every angle a lawyer can. I am a district judge in a court handling felony criminal matters, I was an elected district attorney in a multi-county office for almost 21 years, I practiced criminal defense law in a general law practice for 10 years, and I was a briefing attorney for the Court of Criminal Appeals, writing draft opinions for my judge. No other candidate has this experience.

I have also been a leader while doing this. In addition to the above, I was selected as the Prosecutor of the Year by the State Bar of Texas, awarded the Jon Ben Shepperd Political Courage Award by the Public Leadership Forum at UT-PB, and was selected by my colleagues as president and chair of the board of the Texas District and County Attorneys Association. Recently the Texas Center for the Judiciary honored me as the Outstanding Judicial Educator. No other candidate has these recognitions.

I hope to take this experience, this work ethic, whatever wisdom I have, and, with prayerful consideration, improve the court and the criminal jurisprudence.
All judges, especially those trying criminal cases, have complaints filed by prisoners or other disaffected litigants. All filed against me have been resolved in my favor. I have never been disciplined by the State Bar or Commission on Judicial Conduct.
See above answer with the additional proviso that district attorneys are subject to the same type of complaints being filed by prisoners or criminal defendants. All have been resolved in my favor and I have never been disciplined by the State Bar.
No system devised by the mind of humans is perfect, and the criminal justice system is no exception. We need to be mindful of its imperfection, and provide opportunities for actual innocence to be addressed. Arguably valid claims should not be dismissed for procedural defaults.

The Court is also responsible for administering the funds used to educate prosecutors, defense lawyers and judges. We must insure that new technologies, actual innocence cases and procedures, and Brady issues are frequent topics so the people in the trenches can prevent wrongful convictions and deal with claims of actual innocence.
The court's role is to see that the procedures and law are followed. Most changes would be legislative which I cannot comment on. We simply need to insure that the existing procedures and law are fairly and transparently applied.
I am not qualified to make that subjective call. A judge's role is make decisions without concern about reputation. If each decision is justifiable under the law and the evidence in that case, no court should be concerned with reputation. Others may voice their opinions but such outside influences should not change a judge's behavior.
A judge should be open-minded and not prejudge cases. A judge should construe statutes strictly and not allow his or her political opinions to influence those interpretations. A judge should be courteous and respectful to colleagues, lawyers and litigants. A judge (or any officeholder) should always remember that their office belongs to the voters, and they are only a temporary steward of it.
Not applicable
I do not keep and don't know anyone who does keep reversal rates. The vast majority of decisions I make are not appealed. I have been reversed very seldom, and two were circumstances where I followed the existing law and the appellate court changed the law.
Many appointed lawyers are young and inexperienced, particularly in non-urban areas. The court needs to exercise its supervision of the training of prosecutors, defense lawyers and judges to insure adequate resources for those young defense lawyers to get the training they need.
I am a political conservative, and the philosophy of the Republican Party most nearly matches mine.
I support electing judges in partisan elections. This requires the parties, candidates and media to be energetic in educating voters and the voters to make efforts to learn about the candidates. No system is perfect but we have seen problems with appointing judges in other states, such as Tennessee or Missouri when a particular faction takes over the appointments process. I support requiring candidates to demonstrate broad support by securing petition signatures before filing in order to keep unsupported candidates off the ballot.
Without contributions from lawyers, there would be very little money available to run campaigns. Court of Criminal Appeals races are seriously underfunded anyway but interested lawyers help candidates get their message out. No judge should accept a contribution from anyone, lawyer or not, which is in an amount that would affect their judgement. Any candidate who accepts lawyer contributions should be able to demonstrate support from both the prosecution and defense bars.
Address P. O. Box 33
City/Town Richmond, Texas, 77406
Age 42
Campaign Phone Number (713) 204-7292
Fax Number (281)-261-7345
Email Address david@newellforjudge.com
Thirty-one continuous years, Thirty-four years total.
Criminal appellate attorney - Harris County District Attorney's Office
B.A. - English with concentration in creative writing, magna cum laude - University of Houston, 1993

J.D. - University of Texas School of Law, 1997

(High school diploma - William P. Clements High School, cum laude 1989)
I am a member of the Course Planning Committee for this year’s Advanced Criminal Law Course put on by the State Bar of Texas. I was received the 2013 C. Chris Marshall Award for Outstanding Contributions to the Education of Texas Prosecutors from the Texas District and County Attorney’s Association. At the 2013 State Bar of Texas Advanced Criminal Law Course, I presented the Court of Criminal Appeals Update highlighting the significant decisions from the most recent term of the Court of Criminal Appeals. I also presented the United States Supreme Court and Court of Criminal Appeals Update at the Texas District and County Attorney’s Association Annual Criminal and Civil Law Update. I served as a faculty advisor at the Matthew Paul Advanced Appellate Skills Course in Waco. I also served as Chair of the Editorial Board for The Texas Prosecutor, the bimonthly newsletter for the Texas District and County Attorney’s Association.

I am a Patron Associate of the Texas Federation of Republican Women as well as an associate member of both the Spirit of Freedom Republican Women and the Texas Tea Party Republican Women. I am also a member of the Downtown Houston Pachyderm Club and the Houston Bar Association. My family belongs to Southminster Presbyterian Church in Missouri City, where we support the East Fort Bend Human Needs Ministry. Additionally, my family and I are very active with the Literacy Council of Fort Bend County, and we support the Star of Hope Mission in Houston, Child Advocates of Fort Bend, Parks Youth Ranch, and Fort Bend Junior Service League.
I decided to become a prosecutor after volunteering at the Houston Area Women’s Center answering the Rape Crisis Hotline during college. Since that time, I have been very active in my community through my church and the Exchange Club of Sugar Land, where I served as a Board member. And, as the Child Abuse Awareness Committee Chair for the Exchange Club, I helped coordinate a Healing Field during Child Abuse Prevention Month in 2005. A field of 1,500 American flags were flown to represent the reported cases of child abuse in Fort Bend County. I also repeatedly coordinated the Annual Blue Ribbon School Competition where Fort Bend I.S.D. schools decorated their campuses with blue ribbons and artwork from students to convey messages of hope for an end to child abuse. My wife and I became trained as ChristCare small group leaders (part of the Stephen Ministry program) to help lead intentional small group worship at our church. Along with our two boys, we have also volunteered our time with the Houston Food Bank and Keep Sugar Land Beautiful. I have served as both an alternate at-large delegate and an at-large delegate for Senate District 17 at the Texas Republican Convention.
N/A
I have raised a total of $14,264 in cash and in-kind contributions.
My wife and I, my wife's parents, Dawn and Loyd Hurst, and my parents, Tom and Linda Newell.
Aside from minor traffic tickets, no.
No.
As discussed above, I have served on the board for the Sugar Land Exchange Club as well as worked as part of a committee to raise awareness of child abuse in Fort Bend. Additionally, I have twice served on the course committee for the State Bar’s Advanced Criminal Law Course; and I have repeatedly chaired the editorial board for The Texas Prosecutor for the Texas District and County Attorney’s Association. As far as individual leadership, I was a teaching assistant at the University of Texas where I helped teach legal research and writing to new law students. When I saw a need for additional training, I personally set up a lunch-time CLE program within the Fort Bend County District Attorney’s Office to help prevent errors during criminal pleas and trials. And, for several years, I taught cadets at the Gus George Law Enforcement Academy in Richmond to help new recruits obtain their police officer certification through TCLEOSE. Finally, I have twice coached my younger son at T-ball, but if you are at all familiar with the rules of this game, you realize that there is no achievable goal, only a journey.
As far as an attorney I most admire, the first one who comes to mind is Paul Clement. His oral argument in National Federation of Independent Business v. Sebelius was flawless. The legal issues in the case were complex and contained many nuances, but he managed to address them in simple, relatable terms with great poise. Having had the opportunity to brief an issue before the United States Supreme Court as well as to assist in the preparation for oral argument, I have seen first-hand just how much pressure is involved in a “typical” case before the high court. Mr. Clement’s case was arguably one of the most significant before the United States Supreme Court in history. As Justice Kennedy observed during the oral argument, the Patient Protection and Affordable Care Act carried with it the potential to change “the relationship of the Federal Government to the individual in a very fundamental way.” Yet Mr. Clement remained poised, knowledgeable, and articulate in the defining case of his career.

As far as a judge I most admire, I would say Oliver Wendell Holmes. While his ability to turn a phrase was certainly one of his most enduring qualities, I have always admired his approach to his cases rather than any particular ruling. One of his most famous quotes is, “The life of the law has not been logic, it has been experience.” This oft-repeated statement revealed a judicial skepticism born from his belief that all judicial decisions are to some degree result-oriented. But the great irony was that Holmes, the father of legal realism, often reached decisions out of fidelity to the law even when the law ran counter to his own deeply held beliefs. To me, that epitomizes what a judge should always strive to do: remain faithful to the law himself because of the great temptation to reach a particular result desired by the judge making the decision.
I am running for this office because there is a need for good, qualified judges on the Court. I have always tried to live my life in service to others through church, community, or professional organizations. This recent vacancy creates a need that I believe I am best-suited to fill. Appellate courts are unique in that judges not only have to make the right decision, but they must also be able to anticipate how those rulings will be interpreted in the future and to communicate their opinions clearly to avoid unintended consequences. My strong writing background on top of my experience in criminal appellate law has trained me to do just that. I believe my status as a highly sought after lecturer and writer not only on criminal law generally, but also on the Court of Criminal Appeals opinions specifically provides ample proof of this fact. Moreover, Judge Cathy Cochran has been a unique voice on the Court for many years. Her opinions are often regarded by judges and practitioners as the most practical and grounded. While I cannot replicate her intellect, I believe I have been gifted with similar abilities in legal insight and writing. I would use those skills to provide needed continuity for the Court as it transitions into its next iteration. Most importantly, I believe I best represent the future of the Court. Over the last sixteen years, I have seen the Court wrestle not only with the decisions of the previous members of the Court, but also the fallout from egregious errors in prosecution that came from overly permissive rulings. As a criminal appellate attorney, I find myself in the unique position of both defending the criminal justice system and correcting errors when it breaks down. My experience makes me the best person for the job.
While my opponent has a very good resume, I don’t believe he’s best suited for this position. My opponent not only lacks the level of experience in criminal appeals that I have, he lacks the interest in them. Over my sixteen-year career, I have written numerous appeals on death penalty cases and death penalty writs. I have appeared as both the petitioner and the respondent before the Court of Criminal Appeals on multiple occasions. As often as I have appeared before the Court of Criminal Appeals, I have appeared many more times before intermediate courts of appeal. I have briefed legal issues before the United States Supreme Court, which adopted my reasoning to uphold the decision of the Court of Criminal Appeals. I am Board Certified in both Criminal Law and Criminal Appellate Law. I have written numerous articles in The Texas Prosecutor on the significant decisions by the United States Supreme Court and the Court of Criminal Appeals. I have been presenting the Court of Criminal Appeals Update almost continuously for the State Bar of Texas at their Annual Advance Criminal Law Course since 2007. Consequently, I am very familiar not only with this Court’s precedent, but the emerging trends in their decisions. And I am well-respected by both sides of the criminal appellate bar. I am not running for the position, I’m running for the job, and I think my background and experience demonstrates that I am the best person to start doing that job on day one.
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I have had one grievance filed against me early in my career that was dismissed as unfounded. I have not had any since.
The numerous DNA-proven exonerations are certainly very serious and understandably shake confidence in the system as a whole. I have been fortunate enough to have met with and talked to Michael Morton about his experiences and the process of rebuilding his life after spending twenty-five years in prison for a crime he did not commit. He is a man of incalculable grace and kindness. I do not want any answer I might give from the luxury of my living room to suggest that I condone or would tolerate another Michael Morton, Anthony Graves, or Timothy Cole result. I have always approached every appeal as if the defendant is correct and he did not receive a fair trial. When my examination of the record and the law has indicated that a defendant deserved a new trial or an acquittal, I have said so to the court of appeals. Speaking with Michael Morton only further emphasized to me the importance of viewing each appeal from the perspective of a wrongfully convicted person and then reviewing the record on appeal to see if it reveals otherwise.

But I also believe that the many DNA-proven exonerations highlight the legal system’s ability to adapt in response to injustice. For example, the Texas Legislature has enacted Chapter 64 of the Code of Criminal Procedure to allow for DNA testing of evidence. In response to challenges to suggestive identification, the Legislature created the Texas Forensic Science Commission and subsequently enacted Article 38.20 of the Code of Criminal Procedure, which requires the adoption and implementation of a written policy regarding the administration of photograph and live lineup procedures that incorporate credible field, academic, or laboratory research on eyewitness memory. During the last legislative session, the Texas Legislature amended Article 38.43 of the Code of Criminal Procedure requiring DNA testing of all evidence prior to trial on a death penalty case. It also provided a post-conviction vehicle for review of convictions that were based upon scientific opinion testimony that became outdated after the trial. And most importantly, the passage of the Michael Morton Act recognizes a general right to discovery in Texas criminal cases, effectively creating a presumption of disclosure rather than confidentiality.

The proper avenue for correcting the law to address errors in the way the legal system operates is through the legislature. Nevertheless, the Court of Criminal Appeals has had to step in on occasion where the legislature provided no guidance. The Court has recognized that a due process claim of actual innocence can overcome statutory procedural default rules in post-conviction cases. Along those same lines, it has held that even the unknowing use of inaccurate testimony can provide grounds for post-conviction relief. It has reconsidered original post-conviction claims on its own initiative and granted relief even though such claims could have been procedurally barred. And cases like Tillman v. State, Winfrey v. State, and Leonard v. State have provided tools for the admission of credible scientific testimony while preventing reliance upon junk science or unreliable testimony.

If there is an area where the Court might be able and authorized to improve, it is through the Court’s unique role as fact-finder in post-conviction writs of habeas corpus. The Court has authored conflicting opinions regarding how much deference should be afforded to a trial court’s recommendations in a writ of habeas corpus. Clearing up that conflict in case law could go a long way to allowing the Court to act in a constitutionally permissible way to provide a further check upon wrongful convictions.
As discussed above, many significant changes to the administration of the death penalty have already been enacted by the Texas Legislature. Specifically, the requirement that all evidence possibly containing biological evidence be tested prior to trial on a death penalty case will likely reduce the number of death penalty trials in Texas. And a general right of discovery will cut down on instances and claims of prosecutorial misconduct with regard to evidence either being intentionally withheld or inadvertently remaining undiscovered. Allowing for reciprocal discovery would further the stated goals of ensuring that the innocent are not wrongfully convicted, but that would require legislative action rather than action on the part of the Court of Criminal Appeals.
Whether a reputation is deserved is generally in the eye of the beholder, but I can certainly see how decisions such as Ex parte Criner and the Michael Richard case would foster an “unreasonably pro-prosecution” reputation. As discussed above, I feel that many of the Court’s recent decisions protecting defendant’s rights have gone overlooked. Baldwin v. State and Crain v. State are two examples of cases where the Court found that police had erred by stopping defendants without legal justification. Ex parte Henderson and Ex parte Chabot are cases where the Court has considered new evidence that came to light showing that unknowingly false testimony allowed the jury to reach an inaccurate result. Ex parte Masonheimer and Pena v. State are two examples where the Court upheld claims of prosecutorial misconduct for failure to disclose Brady material even where the prosecutor trying the case appeared unaware that the exculpatory evidence existed. That said, once a person or group has been given a particular reputation, it takes even more effort to correct that impression. I believe my qualifications and background makes me the best candidate to give the Court that type of fresh start.
I believe a judge should be open-minded to different possible arguments in order to avoid the dangers of confirmation bias. Additionally, a judge should aspire to humility so that he never forgets others may have a better answer, and his own ego does not get in the way when he realizes he needs to change his mind. He should be modest enough that he never seeks power, and he should exercise it with great respect when called to do so. He should be determined enough that he can firmly stand by a position he knows to be true even in the face of overwhelming criticism. And he should be compassionate enough to remember that every case number represents people whose lives will be dramatically affected by whatever decision the judge makes.
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The availability or quality of legal services provided to indigent defendants in Texas has been a cause for great concern in the past. However, following the public outcry that resulted from Cockrell v. Burdine (the sleeping lawyer case), there has been a concerted effort to increase the availability and quality of legal services provided to indigent defendants. In Harris County, we have seen a marked increased in the effective representation of the indigent through its Public Defender's Office. For counties that can't afford such an office, devoting a portion of asset forfeiture funds to indigent defense could provide additional revenue. Moving to a voucher system where an indigent defendant can choose his or her own attorney rather than simply appointing an having an attorney appointed from a list might provide better representation by making lawyers compete. Additionally, private organizations such as Fort Bend Lawyers Care, which my wife and I have actively supported, can also provide assistance to the indigent.
My father, as a graduate of the United States Naval Academy and a veteran of the Vietnam war, instilled in me the importance of personal liberty and the need to protect it. I believe the Republican Party is the true party of individual liberty and personal responsibility. That is why I have volunteered for my local party in Fort Bend, voted in Republican primaries, campaigned for local Republican candidates and even traveled to the State Convention as an at-large delegate from Senate District 17. Republicans believe that the Constitution was drafted to enshrine the rights given to us by God, not to create new rights through judicial activism. I share that Republican philosophy and the belief that judges should not legislate from the bench. Instead, they should act as a necessary check upon potential legislative or executive overreach. That is why I am running as a Republican candidate for the Court of Criminal Appeals, Place 9.
I support electing judges in partisan contests. The goal of having judges remain truly independent of the electoral process is certainly laudable, but in practice this goal is impossible to achieve. My experience having to compare and synthesize holdings from the many fractured opinions in a particular case before the United States Supreme Court has emphasized to me that pure appointment of judges actually leads to more fractured and ideological opinions that are quickly undermined and overturned. Ultimately, these types of fractured opinions provide less guidance for parties, practitioners, and judges. Moreover, we essentially have a retention election in practice due to the nature of political appointments. Many qualified candidates choose to seek a judicial appointment rather than enter a political contest for an open seat with the knowledge that an incumbent has an advantage in any primary or general election. But partisan elections simply provide more transparency to the process and require at least some method by which voters can make a reasonable decision regarding a judge’s philosophy based upon party affiliation. It is not a perfect system, but is the best available option.
My experience writing, analyzing, and lecturing about the Court has taught me that adherence to the rule of law fosters and projects impartiality. Given that lawyers are generally the most knowledgeable about candidates for judicial races, it is unrealistic to think that lawyers will not participate in the electoral process through their donations or endorsements. But any lawyer who has supported me knows that I will make my decisions according to the law regardless of any donations I might or might not receive. While I have held two fundraisers involving friends, family, and community contacts, I have not actively sought financial contributions from prosecutors or defense attorneys across the state. In light of this, the number of donors that might later appear before me and the amounts given are so low that my recusal would not impact the Court in those exceptional circumstances where it might be necessary to avoid the appearance of impropriety.