JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS

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					         JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION




VOLUME 10, NUMBER 2                                    AUGUSTISEPTEMBER 1980
 Practice Guide. ,;
  "The best resource tool for the Texas criminal
 defense lawyer" Mike Gibson
 "The definitive work o n Texas trialnractice" Phil
 "An excellent reference loo1in
 criminal law for the young lawye
 as well as the experienced
pracfilioner Will Gray
 "The best reference work for the
practicing criminal lawyer today"
 Tony Friloux
 ". . .one o f the basic reauirementsfor
 the criminal defense lawyer.. .easier
to use and more current than
similarpublicatrons."
 Ron Goranson
"Texas Criminal Practice



                         A
         is
Gu~de a valuable
contributran to Texas
lawyers and to the
adminrsfrationof
criminal iustice            IC 3  -


   Texas criminal oefense lawyers agree. Marvh .
0.Teaaue's TEXAS CRIMINAL PRACTICE
  GUIDE^ complete and well thought out-the
 perfect reference source.
     Organized to save you time ana trouble, each
                                                       OR SEND COUPON 10.
 chapter of the Guide i divided into four
                         s                             M i t h m l Shot, Mallhow B w d e r 6 Co.
 sections. You get a comprehensive, topic-by-          231Ess145lhSlm.t, N.V., N.V.lOOl7
 topic overview of procedural and substantive           I TEXAS CRIMINAL PRACTICE GUIDE i s a 6vol.ms sat, 3rol~rn.s
 law. Com~lete    wactice and arocedural               availabl. now. S60p.r r o l ~ o n @ .      (Spmlal pm.publlcatlon pdce      ...
                                                       S5O pa. vo1uma.          1
 information. he essential forms. And a helpful        I I P sass send me the book($) lo, a NOR.St( 30 DAY I I h a r e r ~ r h
                                                       EXAMINATION ~ t l t b e n d o f 3 0 d a ) aenen I'm                        n g f.rlnev
 research guide. Just about everythine vou need        ~a11611ed. *. I keepthe booksnndrend i n palman!,
                                                                      I                                                            nlornmal onon
 to handle a case smoothly and     confident^^.        or I        ls~vlnmslllto,ou w n n o ~ l l l ~ h e l ~ Q ~ I O O O T E X A S CR MINAI
                                                       on in" part o l any L no
                                                                                                                      b~
                                                                                                                                  PRACTICE CUIUE.
    And, with Texas Criminal Practice Guide, you       Mvordsr'ncludss bath Basic U > k e ~ p          Serslcc r r r n as packet s.mlcmenlS.
 have up-to-date coverage of practically every         rep1lc~menlpa)esd a r r s h r < \ o         h;e#lr. rscompl sJo<rpllf<ol.mes;and
                                                      Ada I,onal J p t ~ e p S e r ~ l c . ~ h d % n s n c o lvonror s o 0 flonalconwanion
                                                                                             se
contemporary problem area, includ~ng:     Arrest      0 r m l a l e d r o l ~ r n o sAtany lime. . w d b s l r e s f o r a n r e o.chanpemyorosr
                               .
and Search.. .Confessions.. Extradition.. .           10, u p k m n r e r r c e r
                                                      11. oo~o~wn!/)u.r,tiuoal                upkeep Sorllrc . J R I me n E u s P a t Plan.
Grand Jury Proceedings.. ,The Guilty Plea.. .         I I I L. SAVE 10% b, cnclorlng l v l l p3ftnenlfor m(a!Osl n o d           h.r
Post-Conviction Habeas Corpus.. .Juvenile                                               a e
                                                      ,pp,,ca,. e s l l e r la. 1 s m 30.oai . O W , " p<.~Il.8.ianl.l,
                                                                                                                                         $0-10
Proceedinas.. .and more,
                                                      vams
    In'five letailed volumes, Marvin 0. Teague
has given Texas criminal lawvers a headstart in       Firm
the difficult routine of          a case.             Address
    To turn the page without sending in the           Cw                            Slate                         ZIP
coupon would be absolutely criminal.
 In This Issuc
ARTICLES                                         REGULAR FEATURES                                      NEWS
    Report o n Prosecutorial Misconduct .7        Editor's Corner.      . . . . . . . . . . . . . .4    Defense Attorneys Band Together           . .4
    Pre-Trial Motions in Death Penalty            President's Report.       . . . . . . . . . . . .5    Introduction to N A C D L Ques-
    Cases                                         Letters to the Editor       . . . . . . . . . .20     tionnaire. . . . . . . . . . . . . . . . . . .6
        Gerald H. Goldstein,                      Significant Decisions Report           .. .21-44      Memo re Payment o f Membership
        San Antonio.    ............       .13    Dialogue.    . . . . . . . . . . . . . . . . .45      Dues b y V I S A or Master Charge.        . .l7
    Cross-Examining the Computer                  New Members.        . . . . . . . . . . . . . .46      Executive Committee Meeting,
                    .
       James M Shellow, Milwaukee,                Board of Directors Meeting                              8 16/80.. . . . . . . . . . . . . . . .18
                                                                                                           1
       Wisconsin.  ..............          .47               .
                                                     7/26/80. . . . . . . . . . . . . . . .54           Requests for Forensic Experts. ...I           9
    Practice Rules f o r the Fifth Circuit        Board of Directors Meeting                            Memoranda of L a w . . . . . . . . . ..50
                         ...........
    C o u r t o f Appeals.                 .51       4 12/80................ .57
                                                      1                                                 Forensic Dentistry Seminar. . . . . .53
    Computerized Information Systems                          . . . . . . . . . . . . . . .63
                                                  B u t Yeronerl                                        Contact Y o u r Amicus Committee.         .61
                                                                                                                                --
    Available t o Texas Prosecutors and
           -
    lnvestisators
        Matthew B. Jones     .........     .62
                                                               THE COVER: Newton County Courthouse in Newton, Texas.
                                                                Picture is courtesy of James A. Lancasrer, Big Spring, Texas.


OFFICERS                               Gerald Goldstein                   M.P.-"Rusty" Duncan                   Clifton Holmes
                                       San Antonio                        Oecatur                               Editor
Pddent                                 Ron Goransan                       Tim Evans                             Pamela S. Laneaster
Robsrt 0. Jones                        Dallas                             Fort Worth                            Managing Editor
Austin                                 Grant Herdeway                     Herman Gotcher                        Mervin 0. Teague
President-Elect                        Houston                            Austin                                Editor, "Significant D8cisions"
Charles McDonald                       Richard Harrison                   James Kreimeyer                       Judy Ward
Wac0                                   Dallas                             Beiton                                Exec. Assr. to the President
First Vice.Presidenr                                                      Dennis MoGill
Clifford Brown                         Oliver Heard, Jr.                  Lubbock
Lubbock                                San Antonio
                                                                          James Pons
Second Vice-President                  Clifton Holmes                     San Antonio                           POSTMASTER. Pleasesendaddress
T o m Sharpe                           Kilgore                                                                  changss to Texas Criminal Defense
                                                                          David Spencer
Brownsvilie                            Knox Jones                         Austin                                Lawyers Association.314 West 11th Street
Secrehrry-Treasurer                    McAllen                                                                  Suite211. Austin. Texar78701.
Jan Hemphill
                                                                          Bill Wood
                                       Edward Mallett                     Oenton                                Phone (512) 4782514.
Daliw                                  Houston                                                                  VOICE for the Defense is pub-
Asst. Secretary-Treasurer              Arch McColl                                                              lished monthly bytheTexas
Stephen H . Cspelle                    Dallas                                                                   Criminal Defense Lawyers Associa-
Austin                                                                    PAST PRESIDENTS                       tion. All articlesand othereditorial
                                       J.C. "Rusty" O%haa
                                       Lubbock                            Frank Maloney                         contributions should beaddressed
DIRECTORS                              C.W. "Robin" Pearcy                Austin, 1971-1972                     to the Editor, Ciif Holmes. Box
                                       Sen Marcos                         C. Anthony Friloux                    1073, Kilgore. Texas 75662. Busi-
William F. "Bill"A1suander             Pat Priest                         Houston. 1972-1973                    ness correspondence, adveitisiny
Dallas                                 San Antonio                        Phil Budeson                          inquiries and contmcts,send t o
Richard Anderson                       Charles RittenberrY                Dallas. 1973-1974                     Dick Drorngoole. ARTFORMS
Dallas                                 Amarillo                           George Gilkerson                      AGENCY. Box 4574. Austin.
Cecil W Bain
          .                             Eduardo R. Rodriguez              Lubbock. 1974-1975                    Texas 78765, (512) 451 3588.
San Antonio                            Brawnsville                        C. David Evans                        Annual subscription rate for
James Bobo                              Larry Sauer                       San Antonio, 1975-1976                members of the association is $6,
Ode=                                    Houston                           Weldon Holcomb                        which is included In dues. Non-
Russell Busby                           Marvin Tsague                     Tyler. 1976-1977                      member subscription-$10 Per Year.
Amarillo                                Houston                           Emmett Coivin                         singlecopy-$2.50. Second CIS
Raymond Caballera                       Mike Thomas                       Dallas. 1977-1978                     postage paid at Austin. Texas.
E l Paso.
       .-                               Fort Worth                                                              iSSN 0364-2232
                                                                                  F.
                                                                          GBOIS~ Luqustte
Antonio Cantu                           Stanley Topsk                     Houston. 1978-1979                      O 1976 TEXASCRIMINAL
San Antonio                             Houston                                      .
                                                                          Vincent W Psrini                       DEFEGE       LAWYERS
Allen Cariar                            Robert G. Turner                  Dallas. 1979-1980                      ASSOCIATION.
San Antonio                             Houston
Anthony Gonstant                        Stanley Weinberg
          s
C o r ~ u Christi                       Dallas
Donald Dailey                            Ronald Zipp
Corpus Chrisfi                          Edinburg
Eugene DeBullet
F o r t Worth                          ASSOCIATE DIRECTORS
Woody R. Denson                        Jack Beech
Houston                                Fort Worth
Louis Dugas                            David R. Birer
Orange                                 Houston
W.V. Dunnam                            Charles D. Carver
Waco                                   Beaumont
Michael Gibson                         Joseph A. Connors, Ill
Dalias                                 McAllen
                                                                                                                               Corner

                                                    ions he voiced, I know many people do,             image-and not cosmetically.
                                                    and they bear listing:                                 I discussed this conversation, later,
                                                          1. Criminal lawyers are lazy-they           with a well-known criminal defense law-
                                                    don't prepare, ''fly by the seat of their         yer. One who has been extremely active
                                                    pants,"and their clients suffer for it.            in this association. He agreed that the
                                                          2. Criminal lawyers are interested first     image portrayed in the lawyer's opinions
                                                    and foremost in "show," to the ultimate           was one generally held by the public.
                                                         -
                                                    neglect of their clients foinkev rinas.    -.     And suggested the only way for it to be
                                                    flashy cars, etc.).                               changed is by a concerted action of ail
                                                          3. Criminal lawyers tend to be less         criminal defense lawyers. And, in my
                                                    adept at trial work than civil lawyers            opinion, the only possible way to get
                                                    (because they don't prepare).                     such a concert of action is through this
                                                                            . .
                                                          4. Criminal lawvers. because of the         association. In my conversation with
         C L l F HOLMES                             nature of their practice become copout            the criminal defense lawyer, he expressed
                                                   artists, with their primary goal to avoid          an opinion which bears directly on t i .
                                                                                                                                             hs
                                                   trial.                                             He felt that the benefits t o be derived
                                                          While there were other allegations,         from TCDLA membership are available
      Perhaps this column should not be            these constitute the basic thrust of this          primarily to Board members. I disagree.
  used to undertake the task I've assigned         lawyer's attitude. In analyzing them I             Though with a small amendment, I could
  for i t this issue. If not, I'll apologize in    f e l t some twinge of guilt, wondering if         agree. Board members, primarily, take
  advance-though the apology, now or               maybe I hadn't become a little lazy and            advantage of the benefits derived from
  later, does not reflect a sense of remorse       negligent in my preparation, and didn't            TCDLA membership.
 for having said what I'm about t o say. . .       tend, now and then, to fake a plea offer               I have spent some considerable
  only a personal bent toward chivalry.            which wasn't in my client's very best              amount of time analyzing these problems.
      A recent conversation. over a few            interest. 1 wonder if some of you might            I've wheedled, begged, cajoled, entreated,
 beers, with a well-known lawyer friend of         not have some of the same "twinges."              and threatened our membership to get
 mine turned,as they often do, to criminal                I realize that all the same allegations    active. It's only through an active mem-
 law practitioners ("criminal lawyers").           made here about criminal defense lawyers           bership that we can affect anything. if
 This particular lawyer practices almost           could be made about civil trial lawyers-          you're not concerned about your pro-
 entirely in the civil courts, though he is a      it's the nature of the game. But, the fact        fessional status, your image, and the
 charter member of this association, and           is though they c o d d be, they're not. The       quality of your status, who the hell is
a damned good criminal trial lawyer. His           reason is evident. Every criminal action          going t o be?
opinions regarding the criminal defense           gets publicity, and in consent they get a               I don't believe any of you really want
bar were, a t first, startling, then disgust-      lot o f publicity. You don't read about the       the criminal defense bar to be imagined a s
 ing. I found myself on the defensive,            myriad o f bumper-thumpers, whiplashes,            a bunch of pinkey-ringcop out artists.
justifying actions and attitudes of the           mashed thumbs, and rear-enders which                    The dates and places of the Board
criminal bar which, on reflection, are            the civil trial lawyers "handle" daily.            meetings are printed in this issue. Note
without justification. But more revealing         They're not subject to the bright light of         them on your calendar, and make an
than his opinions was the fact that they          constant public exposure that most                 effort to come and give the Board your
reflect opinions generally held by many           criminal defense lawyers are. But, again,          thoughts.
folks-he was simply voicing what he had           a "you're one, tog" attitude solves                                                        Ed.
heard from several quarters. While I don't                        e
                                                  nothing. W ought to be a little more in-                 ..
                                                                                                          PS While you're there we can com-
believe he really hetd some of the opin-          trospective, and try t o improve our               pare rings1


Defense Attorneys                                  rights guaranteed criminal defendants in
                                                  the judicial process; the promotion and
                                                                                                     he said.
                                                                                                        By-laws were adopted a t the organiza-
       -
Band Together
  Reprint from rhe Abllene Reporter-News.
                                                  sponsorship of education and seminars a t
                                                  the local level; to enhance relationships
                                                                                                     tional meeting, Copeland said.
                                                                                                        Members will meet at noon on first
Abilene, Texas, May 30, 1980.                     among defense lawyers, the judiciary               Tuesdays of each month at a place
   About twenty local attorneys recently          and law enforcement officers; and t o pro-         selected at the previous manthly meeting,
met to form the Abilene Criminal De-              vide a source of advice on criminal mat-           he said.
fense Lawyers Association, said Tim               ters to local lawyers, said Copeland.                 "We hope to get a good working
Copeland, secretary-trearurer of the new              Other officers of the organization are         membership of between 40 and 45,"
organization.                                     Stan Brown, president; Billy John Ed-              said Copeland.
   Purposes of the new association in-            wards, vice president; and Bill Thomas,               The association is not affiliated with
clude protection of all the Constitutional        Sam Moore and Richard Price, directors,            any statewide organization, he said.


                                                                                   August-September 198OtVOICE for the Defense
President's Report

BOARD OF DIRECTORS MEETING                     that ha resigned, but he indicated that he
    There was a Boerd of Directors meet-       would continue to assist this organization
ing held at the Texas Law Center on July       in every manner possible.
26, 1980, at 9:20 a.m. I would like to
express my sincere thanks to Franklin          CRIMINAL DEFENSE LAWYERS
Jones, president of the State Bar of           PROJECT FUNDING
Texas, and to Tom Hanna for the ac-               As each lawyer knows, the Criminal
commodations and courtesies extended           Defense Lawyers Project is funded pri-
t o us in the use of our Bar building.         marily by LEAA funds, and there is a
    This meeting had been preceded by a        strong possibility that the funds will
membership drive in Austin, Texas, that        no longer be available after March 1981.
was ramrodded primarily by Charles             I took the bull by the horns and a p                   ROBERT D. JONES
Craig of Austin. It was a successful drive     pointed Clif Holmes chairman, Richard
after which a reception for local judges       Anderson, Knox Jones, Clifford Brown,
and members was held at my residence,          Oliver Heard, Pat Priest, Ed Mallett,      MEMBERSHIP DIRECTORY
givihg each member an opportunity to           Arch McColl, Jack Rawitscher, Eduardo           The Board of Directors approved the
share in the camaraderie and to visit          Rodriguez, David Sheppard, Stanley         concept that a membership directory
with our judges.                               Weinberg, as a committee t o study the     would not be published for 1980 but that
    The f i r s order of business of the       possibility of future funding for the proj-on December 31st the membership of
Board of Directors meeting was the ap-         ect. The Board of Directors approved the   the organization would be set and a mem-
pointment of the Executive Committee           appointments to the committee.             bership roster would be published during
which consisted of the following mem-                                                     January 1981. This would save the
                                               CRIMINAL LAW TRIAL MANUAL
bers: Robert D. Jones. Charles M.                                                         association approximately $2,800,
                                                  The Board of Directors discussed the
McDonald, Clifford Brown, Tom Sharpe,                                                          It i s my sincere hope that eaoh mem-
                                               proposal of Garland Wier o f San Antonio
Jan Hemphill. Steve Capelle, Jim b b o ,                                                  ber will recruit as many new memben
                                               concerning a criminal law trial manual.
Clif Holmes, and Gerald Goldstein. The                                                     s
                                                                                          a possible and make sure that their
                                               This matter was referred to the Executive
appointments to the Executive Com-                                                        names are properly forwarded €0 our
                                               Committee with authority to accept
mittee were approved by the Board of                                                      office in Austin. We would also like for
                                               Garland's propaml t o contfact the
Directors unanimously.                                                                    each member t o check our current mem-
                                               publication of the book t o be marketed
     I then appointed the following mem-                                                  bership roster and notify the home office
                                               at a cost of $40 per copy plus 5% sales
bers t o the committees indicated: Robert                                                 of any change in address or phone num-
                                               tax. The trial manual will be an excellent
Turner, Membership; Ed Mallett, Legisla-                                                  ber. The membership directory will be
                                               and necessary addition to the library of
tive; Pat Priest, Publications; Arch McColl,                                              published during January 1981.
                                               each and every criminal lawyer/prosecu-
Amicus Curiae; Ron Zipp, Qualification
                                               torltrial judge in thisstate.              FUTURE BOARD MEETINGS
 (By-Laws); Richard Anderson. Public
 Relations; Gerald Goldstein, Continuing       AMICUS CURIAE COMMITTEE                          The Board of Directors discussed
 Legal Education; Allen Cazier, Member-           Arch MoColl diacus$ed the Amicus           meetin9 for the current year for TCDLA
ship Services; Jan Hemphill, Finance.          Curiae Committee's work and the burden        The next Board of Directors meeting
These appointments were approved by            upon it. W wish to thank Arch McColl
                                                         e                                   will be in Houston, Texes, at the Hyatt
unanimous consent of the Board of              and his committee for the excellent work      Regency on October4, 1980. There will
Directors after a full discussion.             which has been done in connection with        be a membership drive and reception on
     Due to the election of Tom Sharpe         the Amicus Committee.                         Friday, October 3, 1980. Grant Harde-
as second vice president, it was necessary                                                   way and Robert Turner were appointed
t o appoint a member t o fill his unexpired    SIGNIFICANT DECISIONS COMMIT-                 cochairmen of the membership drive
term on the Board of Directors. I ap-          TEE                                           and will sponsor a cash bar reception
pointed Eduardo Rodriguez of Browns-              I appointed a committee of Emmett          which we sincerely hope each member
villa. This appointment was approved b y       Colvin (chairman), Weldon Holcomb,            will attend.
the Board of Directors.                        Clif Holmes, Tom Sharpe, Clifford
     Ithen appointed C.W. (Robin) Pearcy       Brown, Dain Whitworth, and Mike               CONTEMPT STRIKE FORCE
of San Marcos to fill the unexpired term       Matheny to discus$ the new editor of              1 appointed a Contempt Strike Force
of Rodger Zimmerman of Austin who              "Significant Decisions Report."They will      to represent and t o be available to repre-
resigned. To fill the Associate Board          report their findings on October 4,1990,      sent any lawyer who has problems with
position of Robin Pearcy I appointed           and a decision will be made concerning        either prosecutors or judges in their
David Bires of Houston. I rake this op-        the new edimrfeditors of the "Signficant      represantation of individuals in this state.
portunity to thank Rodger for his service      Decisions Report" at the October Board        This committee consisis of Emmett
as a member of the Board. We regretted         meeting.                                      Gotvin (chairman), Arch McColl, Louis


VOICE for the RefenselAugust-September 1980
PRESIDENT'S REPORT continued                   I strongly suggest that each member order     whom I fear most in connection with
Dusas. Frank Malonev, Knox Jones and          a copy of this manual.                         this challenge and he is George Luquette
Gerald Goldstein                                   A discussion was also had during          of Houston.
                                              the meeting to have a column in the                After a lengthy discussion the Execu-
SPRING TRIP                                    VOICE which would introduce our               tive Committee hired Dain Whitworth
   The annual spring trip and seminar is      directors to the membership. It is re-         of Austin, Texas, t o be the TCDLA
in planning stages. It will be during the     quested that each officer and director         liaison with the Legislature. I feel certain
spring of 1981 south of the border. I         submit a photograph and a short bio-           that Dain will do an excellent job. I wish
strongly suggest that each member make        graphical data sheet to Judy at the            to take this opportunity t o say thanks
plans to attend.                              earliest possible date.                        to Dave Spencer and Ed Mallett for the
                                                  The best news out of the Executive         work that they have done in the past in
EXECUTIVE COMMITTEE                           Committee meeting was that for all of          preparation for the upcoming session. In
    The Executive Committee met on            the industrious, zealous, hard.working         the event that any member has additional
August 16, 1980, at the home office           lawyers there is to be a prize. The prize      legislative proposals, please send them to
conference room, Clif Holmes, who was         will be a free trip to the spring meeting                            to
                                                                                             Judy tor fo~warding Dain.
involved in a capital murder trial, was       south of the border for the member who             The Executive Committee adjourned
the only member who was absent. The           has the highest number of new members          on time.
Executive Committee approved a con-           or renewals one week prior to the date             I would once again like t o thank the
tract with Garland Wier to publish the        of departure in March 1981.                    membership for their active support
trial manual. Said trial manual should be          I am issuing a challenge to all members   and especially like to thank Judy Ward
available to the membership at a $5           that I sincerely hope to win that trip for     for her prompting each of us in doing
discount within the next three weeks.         Bev and myself. There is only one person       our jobs.

                                              objective report illustrating the form and Years in practice
INTRODUCTION                                  extent of harrassment. The Committee Percentage of criminal practice
                                              will then study ways to combat the prob-
                                              lem, perhaps preparing a defense law- Examples of prosecutorial harrassment:
QUESTIONNAIRE                                 yer's handbook and advocating protec-
                                              tive legislation. Most importantly, when
                                                                                           1. Threatening defense attorneys false-
     At some point, probably every crimi-                                                                        s
                                                                                           ly with prosecution a an accessory,
                                              harrassment does occur, amicus briefs        misprision or obstruction of justice.
 nal defense lawyer has felt pressured and    and other assistance will be available to
 harrassed by prosecutors and govern-                                                      2. Petitioning the courts t o disqualify
                                              the lawyer under attack.                     the defense attorney on the basis of
 ment agencies in response to his or her          Please take the time to complete this
 representation of a particular client.                                                    suspected conflict of interest, i.e..
                                                                   s
                                              questionnaire. Be a detailed as possible.    supposed complicity.
 The harrassment may take many forms.         The final Committee report will be
 Perhaps the prosecutor threatens the at-                                                  3. Subpoenaing the attorney before
                                              ~ublished the VOICE for the Defense.
                                                          in                               the grand jury.
 torney with prosecution for obstruction
 of justice or petitions the court for his                                                 4. Threatening the attorney falsely
 or her disqualification. The attorney may                                                 with grievance procedures.
 be forced to testify before a grand jury                                                  5. Interviewing the client to obtain
 or be subjected to repeated or unjustified
                                              NACDL                                        (false) information to be used against
                                                                                           the attorney.
 tax audits. He or she may be threatened      QUESTIONNAIRE                                6. Subordination of perjured testi-
 falsely with grievance procedures. How-
 ever it is manifested, such pressure can     TO:       All Attorneys engaged in the       mony.
 only discourage the vigorous advocacy                  practice of Criminal Defense       7. Violation of Brady v. Maryland
 mandated by the US. Constitution and                   Law                                rule.
the Code of Professional Responsibility.      FROM: National Association of Criminal       8. lRS audits, etc.
    The National Association of Criminal                Defense Lawyers Committee Governmental agency complained of               -
 Defense Lawyers (NACDL) has a Com-                     Dealing with Governmental Har-
mittee Dealing with Government Harrass-                 rassment of Lawyers, Frank Individual(s1complained of
ment of Lawyers. In order to isolate                    Maloney, Chairman, 505 West
                                                                                         Address
instances of harrassment and determine                  12th Street, No. 101, Austin,
                                                                                         Complaint (in what way were you har-
the dimensions of the problem, the Com-                Texas 78701, (512) 476-8700
mittee has been gathering documented          SUBJECT: Prosecutorial and Govern- Date of event
evidence of possible harrassment from
                                                         mental Harrassment of De- ~~~t~ event-
                                                                                          of
defense lawyers around the country.
                                                         fense Attorneys Question- ~ . .      ~          ~        ~       ~                 d
    Texas has many criminal defense law-                 naire                         1. Supporting documentation,
yers. The input of Texas lawyers on this
topic will be invaluable to the national                                               2. Case and citation if of record,
                                              Name of practitioner                     3. Affidavits in support of com-
association's effectiveness. With informa-
                                              Address                                  plaint if available.
tion collected from the following ques-
tionnaire, the Committee will prepare an      Date              Telephone          Result



                                                                            August-September 1980lVOICE for the Defense
                     REPORT ON PROSECUTORIAL
                           MISCONDUCT
           National Association of Criminal Defense Lawyers
                       Prosecutorial Committee
                                             Adopted August 23,1980
 INTRODUCTION                                                              viewed as an indication of the range and mag-
     The effort of the Committee during the past year has                  nitude of instances of prosecutorial misconduct.
 been directed at gathering sufficient information from                B. Exhibits
 NACDL members to enable us to focus upon the most                         1. Exhibit #I represents the total number of com-
frequent and significant types of prosecutorial misconduct.                    plaints received in all forms. It shows the source
 Our goals were to receive some general indication of the fre-                 and the victim of the misconduct. Many of the
quency of misconduct on the part of state and federal pros-                    responses simply indicated the number of in-
ecutors and their respective agents, and t o categorize the                   stances of misconduct alleged. Others asserted
variety of abusive behavior into a few basic areas. We believe                that such instances were too numerous to
these goals have been met at least insofar as they enable us to                count. Because that type of response is highly
develop realistic plans for further identification of problem                 speculative, it was disregarded. The exhibit thus
areas, the promotion of public recognition of the legitimacy                  provides for only one allegation for each
of our concern, and the development o f remedial alternatives                 category per complainant.
o n both a national and individual level.                                     The general uniformity of the number of allega-
     This report will attempt to summarbze the information                    tions suggests two findings. First, the miscon-
gathered during the preceding year and the information                        duct is directed at all participants in the crimi-
gathered by the predecessor committee in 1978-1979.It                          nal justice process, and second, any single act of
includes a rough statistical breakdown of the individual com-                 misconduct has ramifications beyond its im-
plaints, an analysis of the types of misconduct with some dis-                mediate scope.
cussion of the applicable legal and ethical standards, and a                   Beyond these conclusions, exhibit #1 simply
summarization of documented instances, and recommenda-                        suggests that a number of defense attorneys do
tions for future NACDL efforts.                                                in fact feel that they have been the subject of
                                                                              prosecutorial misconduct.
   I. QUANTIFICATION                                                       2. Exhibit #2 represents all those complaints that
      A. Information Description                                              included at a minimum, a brief statement of
          Most of the data was gathered on standardized                       facts concerning the alleged misconduct. This,
          questionnaires provided through NACDL news-                         of course, includes those instances with docu-
          letter distribution and direct mailing. The ques-                   mentation. The breakdown of misconduct areas
          tionnaires asked for a brief statement of the facts                 is adapted from those previously used in the
         giving rise to the allegations of misconduct. Many                   original questionnaire dissemination. This break-
         of those responding chose not t o do this. The                       down focuses on the victim of the misconduct.
         majority of those that did provide further infor-                     It should perhaps be compared with the analy-
          mation simply outlined the types of misconduct                      sis presented in Part I I of this report a an s
         allegedly committed. Some responded with a                           alternative organizational structure. Many of
         statement of facts including citations, transcripts,                 the specific categories overlap, necessitatingthe
         or other documentation.                                              occasional inclusion of one instance i n more
          In addition to the questionnaire responses, several                 than one category.
         miscellaneous complaints were received containing                    The results of this exhibit led to the categoriza-
         allegations and documentation of a variety of in-                    tion used in Part II.
         stances of misconduct. With these included there                     The increased figure for documented com-
         was an approximate total o f 125 responses. Of this                  plaints results from the fact that a few of the
         total, approximately 35 can be considered docu-                      responses provided or showed apparent access
         mented, or apparently subject to documentation.                      to documentation of more than one instance of
         Further investigation could, of course, alter this                   misconduct.
         figure substantially. I t must therefore be em-          11. ANALYSIS OUTLINE
         phasized that the contents of this report include a          In order to provide a simple framework within which
         great deal o f unverified information, and that i t s        to study the problem of prosecutorial misconduct the
         uses are thereby correspondingly limited. With this          complaints needed to be categorized into areas easily
         caveat in mind, the information gathered in the              subject to legislative and judicial scrutiny. As might be
         course of the Committee's efforts should be                  expected, the majority o f the complaints fell roughly


VOICE for the DefenselAugusi-September 1980
PROSECUTORIAL MISCONDUCT continued                                       a. Threaten alibi witnesses with perjury,
     into two areas that have i n the past and are currently             b. Tell witnesses their life in danger.
     the object of substantial criticism.                                c. Investigation into witnesses' affairs. IRS
     The first, and most freqeuntly involved area is the                    audits,
    grand jury process. The second is the discovery process.             d. Call named witnesses before grand jury or
    Although both areas often give rise to inadvertent,                     get them into prosecutor's office,
    good faith acts which do work so as to,prejudice the                 e. Physical coercion,
    defense effort, we are concerned here only with                      f. Leaks to press,
    intentional, bad faith actions on the part of the pros-              g. Incarceration.
    ecution that clearly support charges of misconduct.               2. Noncompliancewith Brady:
    The third, "catch-all" area involves misconduct usually              a. Intentional destruction and hiding of excul-
    not within the context of any particular litigation, but                patory evidence,
    rather actions aimed generally at harrassment of                     b. Refusal t o acknowledge prosecution witness'
    targeted individuals. Although many of these actions                    status relative to conditions of testimony
    are politically motivated, for purposes of this study. we               (promises of leniency),
    are concerned primarily with harrassment of defense                  c. Subornation of perjury.
    attorneys and other individuals that because of their
   continuofis involvement in the criminal justice system,       C.   Agency Abuse (FBI, DEA, IRS, Police)
    have found themselves the subject of governmental                  1. Violation of basic constitutional rights (the
   hostility.                                                             cases are replete with these types of violations):
    Although these three areas are somewhat tentatively                   a. 6th Amendment,
   selected, they represent nearly all of the complaints                  b. 5th Amendment,
   received. The ommission of trial tactics and plea                      c. 4th Amendment,
   bargaining, stems partially from the relatively few                    d. 8th Amendment (claiming informer vul-
   complaints received in these areas, but also from the                     nerability t o increase bond).
   greater difficulty in defining misconduct in these                 2. Harrassment of Defense Witnesses:
   areas and possibly the greater tolerance for excess                    a. Physical,
   due t o the close nexus of these areas with the cen-                   b. False information to employers and com-
   tral tenets of the adversary process.                                     munity,
   A. Grand Jury Abuses                                                   c. Surveillance and investigation,
         1. Defense Attorney:                                             d. IRS audits.
             .
            a Compel testimony relative to current and                3. Manufacturing Evidence:
               past clients,                                              a. Creating distortion,
            b. Greatins conflict of interest to force with-               b. Coercion of witnesses to testify.
               drawal,                                                4. Nondisclosure of exculpatory evidence and
            c. Questioning designed to suggest improper                   destruction.
               conduct on part of client.
        2. Defense Witnesses:                                     D. Harrassment of Targeted Individuals
            a. Use of grand juty subpoena directing ap-              1. Defense Attorneys:
               pearance at prosecutor's office:                         a. Sending clients, witnesses, etc. to attorneys
                1) discovery                                               when wired for sound:
               2) intimidation.                                            1) obstruction.
            b. Subpoena by Grand Jury (especially alibi                    2) conspiracy,
               witness) :                                                  3) perjury.
               1) intimidate (perjury)                                  b. Illegal searches,
               2) neutralize                                            c. IRS audits.
               3) discovery, is., to see what they told                 d. Politically motivated prosecutions.
                   defense attorney.                                    e. lnvestigation and surveillance,
        3. Defendant:                                                   f. Spreading false rumors,
           a. Failure to produce exculpatory evidence,                  g. Leaks to press,
           b. Overbroad subpoenas duces tecum,                          h. Physical threats,
           c. Harrassment,                                              i. Bar grievance procedures,
           d. Creation of impression of guilt,                         j. Promising leniency to former clients in
           e. Leaks to press,                                              exchange for incriminating testimony,
           f. lmproper use of grand jury testimony in                  k. Fee investigation.
               collateral proceedings,                              2. Defendants:
           g. Ethical violations appearing as both witness             a. Excessive arrests and indictment,
               and attorney to obtain indictment.                      b. Surveillance and investigation,
  B. Discovery Abuses                                                  c. IRS audits,
        1. Improper use of defendant's compliance with                 d. Spreading false information,
           discovery of witnesses:                                     e. Press leaks.


                                                                August-September 1980NOICE for the Defense
/       Ill. DOCUMENTED INSTANCES                                               financial affairs. U.S. v. Parker, 586 F.2d 422
    I        As mentioned previously, approximately 35 responses                (1978).
I
             were received in which documentation was included              9. Subpoenas commanding witness' appearance
             (primarily transcripts and citations), or else from the            before federal grand jury where witness is
i            type and description of the complaint, it was ap-
             parent that documentation was available. In order to
                                                                                directed to come to US. Attorney's office
                                                                                rather than grand jury room.
             provide the clearest picture of the types of complaints       10. In state drug-related conspiracy case, defense
             received, many of the documented responses are sum-                attorney and his partner subpoenaed before

1            marized below:
             A. Grand Jury
                  1. A subpoena duces tecum in a federal investiga-
                                                                                grand jury.
                                                                           11. Intimidation of defense witnesses through
                                                                               grand jury subpoenas and threats of perjury
                     tion effectrve only if the defendant elects to            charges in federal and state courts.
                     testify before the grand jury.                        12. Threatening defense attorney with being sub-
                 2. After state grand jury returns no bill, prosecu-            poenaed by state grand jury 'relative to evi-
                     tor tells one juror he thinks the defendant lied          dence Included within the attorney-client
                     in his testimony and that they reached the                privilege.
                     wrong decision; the grand jury reconvenes and        13. When list of defense witnesses provided pur-
                     indicts. The indictment was dismissed because             suant to discovery rules, all witnesses im-
                     of this infringement on the "independence" of             mediately subpoenaed by state grand jury,
                     the grand jury.                                           questioned, and threatened with perjury
                 3. During state Medicaid fraud trial, when key                charges.
                     defense witness called to testify. prosecutor        14. In an excellent decision rendered in U.S. v.
                     informs court and witness that witness was                Gold, CR-177-1073 (N.D. 111 1979) extensive
                     under investigation by grand jury and that his            prosewtorial misconduct during a grand
                     testimony would thus be used by the grand jury            jury investigation is discussed at length in the
                     in its deliberations. The witness retained                context of existing ethical and legal standards.
                     counsel and chose not to testify, thus gutting            The decision held that dismissal of the indict-
                     the defense and causing conviction. The grand             ment was required and authorized by the
                     jury investigation of the witness was subse-              court's supervisory powers over grand jury pro-
                     quently dropped.                                          ceedings.
                 4. Subsequent to defendant's testimony before a          15. Defense witnesses subpoenaed before federal
                     federal grand jury where he was informed he               grand jury to elicit testimony forthcoming at a
                     was a target. but prior to indictment, a close            suppression hearing. Although this action was
                     adviser to defendant who had turned govern-              subsequently found to constitute abuse of the
                     ment's witness, was sent with a hidden record-            grand jury function, the indictment was not
                     ing device to a meeting between the defendant             dismissed.
                     and his attorney in order to obtain evidence         16. Defense attorney representing individuals sub-
                     relative to obstruction of justice, subornation           poenaed before federal grand jury is accused
                     of perjury, etc. against attorney, and discovery          of ethical violations relating to conflict of in-
                     of evidence to be used in indicting and pros-            terest, despite his repeated requests and govern-
                     ecuting defendant. Defendant was ultimately              ment's refusals to comply concerning which of
                     acquitted. CR-79-10-(N.D. Ga. 1979).                     the individuals, if any, was a target of the in-
                 5. Indicting the defense attorneys in the Mike               vestigation.
                     Thevis federal pornography prosecution with          17. When defense attorney attempts t o deliver evi-
                     obstruction of justice, bribery, and subornation         dence in compliance with federal subposna
                    of perjury; subsequent dismissal for no evi-              duces tecum, he i s sworn in and questioned
                     dence.                                                   about client's activities in a manner designed to
                 6. Sending state's witness to defense attorney and           improperly influence grand jury.
                    having her testify to grand jury that he at-          18. Overreaching on part of Justice Depertment's
                    tempted to coerce her into altering her testi-            Organized Crime Strike Force in obtaining in-
                     mony. When attorney related that he had taped            dictment when no evidence exists, and mis-
                    the conversation, the investigation wasdropped.           representation to the trial judge in order t o
                 7. During federal investigation of local Teamsters           facilitate prosecution.
                     Union, attorney subpoenaed before grand jury         19. Failure to produce exculpatory evidence.
                    and questioned about professional contacts          8. Discovery
                    concerning representation of certain defen-            1. US. Attorney suborning perjury through re-
                    dants. U.S. v Parker, 586 F.2tl422 (1978).
                                  .                                           fusal t o acknowledge promises of leniency given
                 8. Subpoenaing defense attorney before federal               in state prosecution in return for testimony in
                    grand jury when attorney properly resists in-             federal prosecution. U.S. v. Matassin;, CR-77-
                    formal efforts to have attorney produce client's          18 (M.D. Fla. 1977).
                    accountant's work papers concerning client's           2. Destruction and nondisclosure of exculpatory


        VOICE for the DefenselAugust-September 7980
PROSECUTORIAL MISCONDUCT continued                                            nia prosecutor detailing several methods of
                                                                              harrassing targeted individuals; includes bu-
           evidence in state prosecution held t o require                                                    s
                                                                              reaucratic harrassment such a multiple arrests
           granting of mistrial and supporting claim of                       through staggering of charges, refusal to return
           double jeopardy as bar to further prosecution.                     seized property, and forcing defendants to
       3. lnterference by state prosecutors with defense                      make unnecessary court appearances so as t o
           attorney's legitimate attempts to interview                        increase legal fees. Also includes means of
           state witnesses, including threats of obstruc-                    gaining access to an individual's financial rec-
           tion of justice charges and bar grievance proce-                  ords and how t o prevent civil suits for improper
           dures. State v Hammler, 312 So.2d 306 (1974).
                         .                                                   police conduct.
       4. Nondisclosure of exculpatory evidence by                      5.    Illegal surveillance, investigation and harrass-
           state proseuctor and police. After verdict of not                 ment of a "dissident" attorney by the FBI and
           guilty, successful civil suit based on wrongful                   NSA.
           imprisonment.                                                6.   Maryland Attorney General places "spy" in
       5. Failure to disclose promise of leniency made                       Public Defender's office to obtain information
          t o federal witness by DEA agent and misrep-                       relative to charges of misuse o f public records.
          resentation by DEA agent and witness to jury.                 7.   Continuous IRS audits of criminal defense
          Conviction reversed. U.S. v. Turner, CR-78-                        attorneys, defendants, etc.
          80240 (E.D. Mich.).                                           8.   Federal and state prosecutors sending defen-
       6. Eliciting and coercing repetition of false testi-                  dant to defense attorney's office with a record-
          mony from state witness in a capital murder                        ing device to obtain information relative to
          case, including both grand jury and trial testi-                   obstruction of justice and subornation o f
          mony, when prosecutor knew the testimony                           perjury.
          was false.
       7. Destruction of evidence in a multiple-murder         IV. APPLICABLE STANDARDS
          state prosecution combined with physical abuse            The range of prosewtorial misconduct described above
          of defense witnesses. Refusal of bar association          calls into play several constitutional, statutory, and
          to investigate grievance complaint.                      ethical standards that must be considered in defining
      8. Refusal to disclose contingent fee arrangement            what actions constitute misconduct. Although the
          between DEA agent and informant for infor-               following outline i s by no means exhaustive. it does
          mant's testimony in federal drug prosecution.            indicate the extent to which many o f the basic pre.
          U.S. v. Candelaria, CR-78-206 (Ariz.).                   cepts of criminal justice in a democratic society are
      9. Subornation of perjury by U.S. Attorney,                  threatened.
         indicting defense attorney for perjury and ob-            A. Constitutional
         struction of justice when defense attorney at-                  1. Illegal searches and seizures in violation of the
         tempts to demonstrate prosecutor's actions.                         4th amendment.
         Investigation by Department of Justice Public                   2. Compelled self-incrimination in violation of the
         Integrity Unit results in dismissal of indictment.                  5th amendment.
   C. Others
                                                                         3. Interference with the right to counsel, compul-
                                                                             sory process of witnesses, and the right of con-
      1. After a change of venue, and on the eve of trial,
                                                                             frontation in violation of the 6th amendment.
         state proseuctor in a capital murder case ap-
          proaches defense attorney with a plea bargain                  4. Efforts at setting excessive bail in violation of
         o f a life sentence; before any agreement is                        the 8th amendment.
          made, prosecutor leaks to press that defendant                 5. Extensive and varied due process deprivations
         had intitiated plea discussions and that ab-                        in violation of the 5th and 14th amendments.
         solutely no deal would be made. Trial judge               8. Rules of Procedure
         said he "ought" t o initiate grievance proce-                   1. F.R.Crim.P. @-Role of the grand jury.
         dures.                                                          2. F.R.Crim.P. 17-Proper use of subpoenas.
      2. Exercise of federal court's supervisory powers                  3. F.R.Crim.P. 16-Proper use of discovery.
         to suppress illegally seized evidence despite                  4. F.R.Crim.P. 1I-Plea bargaining.
         defendant's lack of standing to contest. Seizure,              5. F.R.Crim.P. 12.1-Notice of alibi defense.
         intentional bad faith acts on part of gouern-            C. Ethical
         ment agents. U.S. v: Baskes, CR-77-238 (N.D.                   Primarily Canon 7 of the Code of Professional
          111. 19791, however compare U.S. v. Payner,                   Conduct.
         27 Cr.L. 3220 (June 25,1980).                             D. Others
     3. State Attorney General's office misrepresents                   1. ABA Standards. The Prosecution Function
         to prison officials and federal court existence                    (19741.
         of files relating to state prisoner so as to keep              2. Supervisory power of court to insure judicial
         him in solitary confinement.                                                              .
                                                                            integrity; c.f, U.S. v Payner, 27 Cr.L 3220
     4. Transcript of a speech given to Oregon law                          (June 26, 1980).
         enforcement officers by a San Diego, Califor-                  3. Internal Guidelines of the Justice Department


                                                                 August-September         f98ONOICE for the Defense
                                         .
               and District Attorneys: cf,    U.S. v. Caceres,               several circuits spawned less than 10 responses t o our
               440 U.S. 741 (1979).                                          survey ips0 facto demands more extensive information
         E. Remedies                                                         gathering.
            1. Exclusion of evidence.                                       The prerequisites of an effective reform drive are a
            2. Dismissal of indictment.                                      centralized reporting system, a greater response on the
            3. Directedverdict of acquittal.                                part of NACDL members, and well-establishedstand-
            4. New trial.                                                   ards of documentation. Now that we have some idea
            5. Grievance procedures (local) and Public Integ-               of what to expect in the way of general allegations,
               rity Unit, Justice Department.                                it is time to develop a more rigorous approach. Nation-
            6. Contempt of court.                                            al's executive director should be responsible for alert-
            7. Injunctive relief.                                            ing all members to the purpose of the effort, of pro-
                                                                             moting a continuing awareness of potential misconduct
(    V. RECOMMENDATIONS                                                     coupled with immediate notification should miscon-
                                                                            duct be firmly established, and then processing these
          There are several possible routes available to NACDL
         which may potentially make inroads on the problem of               compiaints in a uniform manner. Once a complaint
          prosecutorial misconduct. The primary difficulty is               is deemed worthy of investigation, the central office
          in deciding which alternatives are realistic given limita-                                                           s
                                                                            should control the gathering of documentation a well
         tions on manpower and funding.                                       s
                                                                            a providing whatever assistance it can in the way of
         The most effective response is legislative' reform on              aiding the particular defense effort to remedy the mis-
         both a national and state level. This would involve                conduct. The executive director should be responsible
         gathering sufficient evidence of a highly credible nature          for compiling and updating the brief and memoranda
         to support rule changes and new or more effective                  files described previously. He should, in addition, be
         enforcement mechanisms.                                            responsible for prea releases prepared from sufficient-
         On an individual, case by case level, there are a couple           ly documented complaints.
         of possible approaches. The simplest alternative is t o            As a preorganization tool, a handbook might be
         compile an information bank with briefs, current legal             written which describes the kinds of misconduct t o
         memoranda. tactical handbooks, and other resources                 look for, a detailed examination crf applicable stand-
         that would be made available t o any inquiring NACDL               ards and remedies, and a description of what should
         members. Coordination with the Amicus. Publications                be done relative t o NACDL aims, i.e., where to send
         and Lawyer Assistance Committees will be necessary.                complaints, the expected response, and documenta-
         This information bank would focus on problem areas                 tion requirements. This handbook should be made
         most frequently encountered in both state and federal              available to all members. Cooperation and backing
         court, possibly along the lines suggested in Part iI of                                               s
                                                                            from other organizations (such a Public Defender and
         this report. Given sufficient funding, it might also be             Legal Aid National Organziation and ACLU) would be
         possible to provide manpower and funding for in-                   extremely beneficial.
         vestigation and documentation in particularly egre-                Without this kind of organizatton it is difficult, if not
         gious instances. In this area, it has been suggested that          impossible, to battle prosecutorial misconduct in any
        the NACDL support civil suits based on conduct viola                systematic arid efficient manner.
                                          s      s
         tive of constitutional rights, a well a physical, prop-
        erty, and privacy rights. However, prosecutorial im-               This report constitutes a beginning; much more needs
        munity may make this somewhat difficult.                       to be done.
         One of the simpler, cheaper, and more effective al-                                                      Frank Maloney
        ternatives that should be followed in combination                                                          Austin, Texas
        with any other action taken, is publicity. Media expo-                     Chairman, Prosecutorial Misconduct Committee
        sure of the kinds of misconduct described in this re-                                                       August 1980
        port is essential if we expect to generate any real
        concern among the public and congressional groups.
        The limited coverage already afforded the problem of
        prosecutorial misconduct, primarily in the Miami and
        Atlanta newspapers and various lawrelated publica-
        tions, suggests a fairly receptive attitude towards this
        type of story.
                          s
       The effort here, a with the other proposed alterna-
       tives, needs to be organized sufficiently to develop
       more than isolated coverage on a sporadic basis. To-
       wards this end, a is the case with the other sugges-
                         s
       tions, it would seem that organization and standardiza-
       tion should be the primary concerns. In order to facili-
       tate any response whatsoever, there must be a suffi-
       cient data base to support our charges and recommen-
       dations. This does not currently exist. The fact that                                             (See Exhibits, Page 12)


    VOICE for the DefenselAugust-September 1980                                                                                   11
PROSECUTORIAL MISCONDUCT continued                                                EXHIBIT #2
                     EXHIBIT #1                                      AREAS OF PROSECUTORIA

                                                           Defense Laywers
                                                           1. 1RSaudits.
                                                           2. Being called as a grand jury
                                                               witness
                                                           3. False claims of conflict of
                                                               interest.
                                                           4. Sending clients, witnesses, and
                                                               others to attorney with purpose
                                                               of gathering evidence to be used
                                                               either against attornev or in fur-
                                                               therance of prosecution.
                                                           5. Threateniny and/or charging
                                                               attorney with obstruction of
                                                              justice, conspiracy, subornating
                                                              perjury, grievance procedures.

                                                          Defense Witnesses
                                                          1. Grand jury subpoenas for pur-
                                                               poses including harrassment,
                                                               neutralization, discovery, and
                                                               intimidation through perjury
 At the July 26, 1980, Board of                               threats (includes those direct-
 Directors meeting, we voted to                               ing appearance at prosecutors'
 close our membership rolls, and                              offices).
 publish a membership directory.                          2. General harrassment. includina        -
                                                              spreading false rumors, media
Those members who have joined                                 leaks, unwarranted investiga-
the association on or before Decem-
                                                              tions, verbal and physical
 ber 31, 1080, will be included in
                                                              abuse, and incarceration.
this directory. The directory will
also have a county listing of all
members in each county. This                              Defendants
should help the membership and all                        1. Noncompliance with Brady (in-
other interested parties know who                             cluding subornation of perjury).
the TCDLA members in that specif-                         2. Bureaucratic harrassment.
ic county are.                                            3. Grand jury (undue influence,
                                                             overbroad subpoena duces
Remember, if you have had a re-




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your correct address and telephone
number are listed.                     PARKER-EOLDING
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                                                                 August-September19801VOICE for the Defense
    PRE-TRIAL MOTIONS IN DEATH PENALTY
                   CASES
                                                                                                       Gerald H. Goldstein
                                                                                                       San Antonio, Texas
       The very nature of the categories of           avoiding jurisdictional difficulties,      .
                                                                                                v Beavers (Mich. 1575) 227 N.W.2d
   offenses for which the death penalty may           it seems much the better policy to                               .
                                                                                                511 [rejecting US v White, 401 US 746
   be imposed' makes the outcome in most              permit the state court the freedom        (1971) interpretation of Federal fourth
   capital cases inevitable. For the most             to strike its own balance between         amendment protections regarding eaves-
   part, these cases involve heinous acts of          Individual rights and police prac-        droppingl; People v. Brisendine (Cal.
   rape murder, robbery murder, or the                tices, a t least where the state          1975) 528 P.2d 1099; State v Kalima.
   killing of a law officer, perpetrated by           court's ruling violates no [Federal]      (Haw. 1974) 520 P.2d 51 [rejecting
  an individual who is either poor or a               Conditutional prohibitions. It i s        Supreme Court's interpretation of right
   minority upon a respected member of                peculiarly within the competence          to search incident to an arrest in US v   .
  the community. The sensational nature               of the highest court of a state to        Robinson, 414 US 218 (1973) and
  of the act arouses and inflames public              determine that in its jur~sdiction        Gustafson v. Florida, 414 US 260
  opinion, a development which ordinar~ly             the police should be subject to           (1973)l.
  does not go unnoticed by the prosecu-               more stringent rules than are re-                        .
                                                                                                    In Texas v m i t e . 423 US 67 (19751,
  tion and the court. Tremendous pressure             quired as a Federal Constitutional       the U.S. Supreme Court reversed a Texas
  is thrust upon the entire criminal justice                                 .
                                                     minimum. Oregon v Haas, 420               Court of Criminal Appeals opinion deal-
  system.                                             US 714, 728 (1975) (Marshall.            ing with a warrantless stationhouse
       Accordingly, defense counsel in capital       J., dissenting).                          search of a vehicle [White v. State (Tex.
  felony eases should not overlook a single           In light of today's erosion of           Cr.App. 1975) 521 SW2d 2551 remand-
  motion nor ignore any opportunity to               Miranda standards a a matter of
                                                                            s                  ing the cause t o that court with the ad-
  make any objection, The court of crimi-             Federal Const~tuionallaw, it is ap-      monishment of Justices Marshall and
  nal appeals has often remarked that                propriate to observe that no state        Brennan (dissenting1that:
  o t h e ~ i s e"harmless error" would war-         is precluded from adhering to                  [ilt should be clear to the court
  rant reversal in a death penalty case "in          higher standards under state law.             below that nothing this court
  view of the penalty inflicted." Stanchel v .       Each state has power to impose                does today precludes it from reach.
 State (Tex.Cr.App. 1921) 231 S 120, W               higher standards governing police             ing the result it did under applica-
 at p. 122.                                          practices under the state /aw than                                   .
                                                                                                   ble state law. State v White, supra,
       [wle cannot hold the [error] to               is required b y the Federal Constitu-         at p. 72.
      be harmless, in view of the penalty                              .
                                                     tion. Michigan v Mosely, 423 US                However, on remand?, the Court of
      infl~cted.                                     996, 120 (1975) (Brennan. J,       .      Criminal Appeals refused to reach the
      In fact, with the Burger Court's re-           dissenting).                              state law question because trial counsel
 treat on many of the Constitutional
                                                      Accordinulv. manv state courts have     had failed to raise the state constitutional
 fronts launched during the "Warren
                                                  recently seen f ~to interpret even iden-
                                                                      t
                                                                                              grounds a t the trial level.
  Era." many issues may be better put to
 the state's highest court than to the US.        tically worded state constitutional pro-         Despite the Supreme Court's bind-
 Supreme Court.                                   visions more broadly than recent US.             ing decision in this case it has been
                                                  Supreme Court pronouncements regard-             suggested that this court may still
      While the U.S. Supreme Court is the
                                                  ing their Federal Constitutional counter-        hold the search invalid under ap-
final arbiter of the Federal Constitution.
 most states have analogous state consti-         parts: eg State v Santiago (Haw. 1971)
                                                          ,.        ,                              plicable Texas law. . . . W do not
                                                                                                                               e
tutional guarantees protecting the rights                                           .
                                                 492 P.2d 657 [rejecting Harris v New              reach this question. The appellant's
                                                  York, 401 US 222 (1971)l; Stare v      .         sole reliance in the trial court was
of citizens within those respective states.
The Supreme Court has on more than one           Johnson (N.J. 1975) 346 A.2d 66 [re-              on cases construing the fourth
occasion reminded state courts that it           jecting waiver of Constitutional right            amendment t o the United States
 is peculiarly within their province to                                      .
                                                 approach of Schneckloth v Bustamonte,             Constitution. . . . At no time dur-
esrablish the parameters of protection                                           .
                                                 412 US 218 (197511; People v Ramsey               ing the trial of this case did the
provided by state laws so long as those           (Cal Sup. Ct. 19761 545 P.2d 1333;                                           ,
                                                                                                   appellant urge that Art. I Sec. 9,
                                                 Commonwealth v Forde (Mass. Sup. Ct.
                                                                   .                               of the Texas Constitution sup-
laws provide protection equal t o or
greater than similar Federal Constitu-            1975) 329 N.E.2d 717 [rejecting US v   .         ported his Motion t o Suppress.
                                                 Watson, 423 US 41 1 (1976)l; Blue v     .                K State (Tex.Cr.App. 1976)
                                  .
tional guarantees. See: Lego v Twomey,
404 US 777 (1972); Commonwealth v           .    State (Alaska Sup. Ct. 1977) 558 P.2d             543 SW2d 366,369.
Ware, 406 US910 (1972).                                                 .
                                                 636 [rejecting Kirby v Illinois, 406 US           This is not to criticize counsel in
                                                 562 (1974) interpretation of right to        White v. Texas, supra, for we need only
   In addition to the importance of              counsel at preindictment lineups1 ;People    look at our own motions, trial transcripts,


VOICE for the DefenselAugust-September 1980
 PRE-TRIAL MOTIONS continued                   12.8ail              Eighth Art. 1, 511               period of time [there ten years].
 and appellate records to realize that our                         Amend- Art. 1, 513               Castaneda v. Partida, 430 US 482, at
 objections are too often couched solely                            ment     [Arts.l7.01            P. 495 (1970) [prima facia discrimina-
 in terms of Federal Constitutional guaran-                            -17.38 T.C.Cr.P.1            tion found in county wherein 79.1%
 tees. Lawyers have for some time now           13.Cruel and        Eighth Art. 1, 513              of i t s population was Mexican Ameri-
 been programmed in many areas such a     s        Unusual         Amend-                           can, while the average percentage of
search and seizure to think only in                Punishment       ment                            that group summoned for grand jury
terms of Federal Constitutional rights.        14.Excluding        Federal Art. 38.23,              duty over the preceding eleven years
The time has come for defense counsel              Evidence       Exclusion- T.C.Cr.P.              was 39% and comprised 50% of the
to make use of the analogous provisions           Obtained in     ary Rule                          grand jury that indicted defendant].
in state constitutions.                           Violation of                                      Texas uses a "key man" system for
    What follows is a brief outline of the        Constitutional                                selecting grand juries. A state district
parallel Federal and state Constitu-               Rights                                       judge. appoints jury commissioners who
tional provisions which I hope will            MOTION FOR PRETRIAL HEARING                      select prospective jurors from different
serve as a starting point in preparing            Pursuant to Art. 28.01(2) T.C.Cr.P.,          portions of the county, after which the
motions, making objections, and develop.       defendant must file pretrial motions,            district judge tests the jurors' qualifica-
ing appellate grounds of error which in-       pleadings and exceptions within five days       tions. While the facial constitutionality
clude applicable state constitutional pro-     after receiving either written or open          of the Texas "key man" system has been
visions.                                       court notice scheduling a pretrial hearing.     accepted, it is a procedure "susceptible of
                     Federal         Texas                                                     abuse," which "supports the presumption
Right                Consti-       Consti-      MOTION TO QUASH GRAND AND                      of discrimination raised by [a] statistical
Protected            tution         tution      PETIT JURIES                                   showing," thereby shifting the burden of
                                                    A selection method resultino in the
                                                                                  "
                                                                                               rebuttal to the state.
 1. Search and     Fourth    Art. 1. 59         systematic exclusion of an identifiable             Once the defendant has shown
    Seizure       Amend- rArts.14.01            group constitutes denial of one's fifth             substantial underrepresentation of
                    ment         -14.06,        amendment right to due process and                  his group, he has made out a prima
                          15.01-15.27,          equal protection and one's sixth amend-             facia case of discriminatory pur-
                          16.01-16.21.          ment right to a jury compr~sed a rep.
                                                                                  of                pose, and the burden then shifts
                          18.01-18.19.          resentative cross-section of the com-               to the state to rebut that case.
                             T.C.Cr.P.1        munity. Coleman v. Alabama, 389 US                   Castaneda v. Partida, 430 US 482,
 2. Self-          Fifth   Art. 1, 510         22 (1967). Jones v. Georgia, 389 US 24               at p. 495 (1977)
    lncrimina     Amend- LArts.38.21            (1967) [burden upon state to explain               Argument from the grand jury com-
    tion           ment           38.22,       disparity] , Sims v. Georgia, 389 US 404       missioners that racial bias played no part
                            T.C.Cr.P.1         (1967) [selection method], Castaneda v.        in their selection is insufficient to meet
 3. Grand          Fifth   Art. 1, 510        Partida,430 US482 (1977).                       the state's burden. Castaneda v. Partida,
    Jury         Amend-                            The method for proving discrimination      430 US 482, at p. 498, n. 19, Alexander
    Indictment     ment                        in jury selection is called the "rule of       v. Louisiana, 405 US 632, Hernandez v.
4. Double          Fifth   Art. 1, §15        exclusion." The idea behind this rule is         Texas, 347 US475 (1945).
    Jeopardy     Amend-                       tied to the degree of underrepresentation.           Systematic exclusion or exemption of
                   ment                       The larger the disparity, the more likely       females from petit jury service violates a
5. Due Process     Fifth   Art. 1, 519        i t is due to race or other class-related       defendant's fifth amendment right to
                 Amend-                       factors than to chance or accident, absent      "due process" and his sixth amendment
                   ment                       any controverting evidence. In order to         right to a jury whose members represent
6. Speedy Trial    Sixth  Art. 1, 510         establish that an "equal protection viola-      a cross-section of his community. Taylor
                 Amend-                       tion" has occurred in the context of            v. Louisiana, 419 US 522 (19751 [Louisi-
                   ment                       grand jury selection, the defendant must        ana statute exempted woman unless
7. Jury            Sixth  Art. 1, 510         show that the procedure employed re-            they volunteered]. See contra: Johnson
                 Amend- Art. 1, 515           sulted in substantial underrepresentation       v. State (Tex.Cr.App. 1977) 548 SW2d
                   ment    [Art. 36.29        of a particular race or identifiable group.     700 [upholding Texas scheme exempting
                            T.C.Cr.P.1        This method of proof consists of two            women with children under ten years of
8. Informed of    Sixth   Art. 1, 510         steps:                                          age. Art. 2135, VACSI; Duren v. Missouri,
   Nature of     Amend-                            (1) The defendant must establish that      argued before US. Supreme Court
   Accusation     ment                            such group is a recognizable, distinct      November 1, 1978, 24 Cr.L. 4079 [chal-
9. Confrontation  Sixth   Art. 1, 510             class, sinqled out for different treat-
                                                            .                                lenging Missouri's female privilege permit-
   and Cross-    &mend-                           ment under the laws, as written or a   s   ting women to "opt out" of jury service
   Examination    ment                            applied.                                   by notifying trial court prior to being
                   S O
~ ~ . C O ~ ~ U ~ Sixth N Art. 1, 510             (2) The degree of underrepresentation      sworn].
   Process       Amend-                           must be proved by comparing the pro-            A defendant need not be a member of
                  ment                            portion of the group in the total popu-    the class to complain of systematic
11.Effective      Sixth   Art. 1, 510             lation to the proportion called to serve   exclusion. Peters v. Kiff, 407 US 493
   Counsel       Amend.                           as grand jurors, over a significant        (1972) [white anglo has standing t o com-



                                                                            August-September 1980lVOICE for the Defense
   plain of systematic exclusion of blacks1,          sources of obtaining such vital informa.        all in violation of the Defendant's con-
            .
   Taylor v Louisiana, 419 US 522 (1975)              tion regarding prospective jurors.              stitutionally protected rights to due
    [male has standing to complain of sys-                               Argument                     process and "fundamental fairness."
   tematic exclusion of women from petit                  The nonreciprocal nature of the                 Accordingly, this Honorable Court
  jury]. cf: Castaneda v Partida, 430 US
                           .                         State's vast and wide-reaching resources         should compel the State of Texas to dis-
  482, at p. 494 (1977) [language to the             in compiling data on prospective jurors          close such information regarding pro-
   effect that "in order to show that an             violates the mandate of the equal pro-           spective jurors to the defense.
  equal protection violation has occurred            tection clause that a state not permit an
   in the context of grand jury selection, the       indigent Defendant to be deprived of              CHALLENGING THE OATH RE-
  defendant must show that the procedure             ". . . the basic tools of an adequate             QUIRED BY §12.31(b)
  employed resulted in substantial under-            defense" by reason of his poverty. Britt v.          The necessity of challenging the oath
  representation of his race or of the identi-       North Carolina (1971) 404 US 226, at              required by §12.31(b). T.P.C., has been
  fiable group to which he belongs1   .              p. 227.                                           obviated by the U.S. Supreme Court
       An evidentiary hearing must be pro-               This practice creates an unfair im-                             .
                                                                                                       holding in Adams v Texas.
  vided to any defendant who claims a                balance of advantage favoring the prose-             On June 25, 1980, the US. Supreme
  due process or equal protection viola-             cution and the due process clause of the          Court held unconstitutional a provision
  tion in the context of jury selection.             fifth amendment made applicable to the            of the Texas Penal Code [912.31(b)l
  Coleman v. Alabama, 377 US 129 (1964)              States by the fourteenth amendment               that required the disqualification of any
  MOTION TO "RESHUFFLE" JURORS                       ". . . does speak to the balance of forces        prospective juror who would not state
      Art. 35.11 of the T.C.Cr.P. provides           between the accused and his accuser.''           under oath that the mandatory penalty
 that "upon demand of the defendant or              Wardius v. Oregon (June 11. 1973) 412             of death or imprisonment for hfe would
  his attorney, or of the state's counsel"          US470.41 L.W. 4804. at p. 4806.                   not affeet his or her deliberations on any
 the trial judge "shall cause the names of                                 s
                                                         Practices such a the gathering of in-        fact issue. Adams v Texas. No. 79-5175.
                                                                                                                         .
 all the members of the general panel               formation regarding prospective jurors                The Court compared the statute's
                          s
 drawn or assigned a jurors in such                 through means available only to the State         effect on jury selection with the proposi-
 cases to be placed in a receptacle and             provides "nonreciprocal benefits to the           tion established in Witherspoon that a
 wellshaken, and the clerk shall draw               State" with regard to the investigation           juror's views about capital punishment
 therefrom the names of a sufficient num-           and preparation of i t s case and as the          may not be a basis for challenge for
 ber of jurors from which a jury may be             Supreme Court recently noted in Wardius           cause unlcss thosn views would prevent
 selected t o try such a case."                     v. Oregon, ". . . when the lack of reci-          or substantially impair the performance
      Upon request t o shuffle the jury, even       procity interferes with the Defendant's           of his duties as a juror. Witherspoon v.
 as "the jury panel was being seated"              ability to secure a fair trial" such con-         Illinois, 391 US 510 (1968). The imper-
 and after "the jury list had been pre-            stitutes a violation of the Defendant's            missible effect of the Texas statute was
 pared," the trial court must redraw the           constitutionally protected right to "due          to exclude jurors who acknowledged
 jufy panel from a receptacle in accor-            process." Wardius v. Oregon, supra, 41            honestly that they might be affected and
 dance with Art. 35.1 1, and no harm need           L.W. 4804, at p. 4806, n. 6.                     would be especially serious about their
 be shown. Alexander v State [Tex.Cr.
                             .                           [tl he State's inherent information         responsibilities in light of the possible
 App. 1975) 523 SW2d 720, a t p. 721,                   gathering advantages suggest that if         penalty.
 Woerner v State (Tek.Cr.App. 1975)
              .                                         there is t o be imbalance in dis-                Although the Texas statute may be
 523 SW2d 717.                                          covery rights, it should work in             used to exclude jurors whose view8 will
                No. 74-CR-2140-A                        the defendant's favor. Wardius               prevent the performance of their duties,
 State of Texas X               In The District         Oregon, supra, a t 41 L.W.. at               the Court said it may not permit ex-
vs                    X           Court 175th           p.4806, n. 9.                                clusion of jurors on broader grounds
 Fred T.             X         Judicial District                      Conclusion                     based on their opinion about the death
 Durrough             X Bexar County, Texas             A criminal trial".   . . is not a sporting   penalty. Since these jurors are not ir-
                                                                                                     revocably opposed t o capital punishment
      Memorandum of Law in Support of                                  .
                                                   event," Giles v Matyfand (1967) 386
       Motion to Compel Disclosure of              US 66 [Fortis. J. concurring]. and where          so as to frustrate the state's efforts to
   District Attorney's Jury Selection Data         the vast and far-reaching investigative           administer its death penalty scheme,
               Statement of Facts                  and information gathering resources of            the Court said the state may not execute
     The State of Texas through its vast           the State in compiling data on prospec-           a death sentence imposed by a jury from
and wide reaching investigative and infor-         tive jurors far outstrip those of a meager        which such jurors have been excluded.
mation gathering resources compiles data           indigent defendant thereby depriving said
and information on prospective jurors              indigent of equal access to information            CHANGE OF VENUE
regarding verdicts actually returned dur-          regarding prospective jurors, then such               Art. 31.03, T.C.Cr.P.. provides that a
ing prior jury service in criminal cases           practice violates the indigent defendant's         Motion for Change of Venue must be in
           s
as well a any arrests and/or convictions           right to "equal protection" of the laws           writing and supported by the defendant's
appearing on their "rap sheets" which              by reason of his poverty. and provides            affidavit "and the affidavit of at least
are retrieved through the computers                "nonreciprocal benefits to the State"             two credible persons, residents of the
and other sources available to the State.          which interfere with the defendant's              county where the prosecution is in-
This indigent Defendant, FRED T. DUR-              ability to secure a fair trial a t this vital     stituted" upon either of two grounds:
ROUGH, has no means or other re-                   and critical stage of the criminal process,           1. That there exists in the county


VOICE for the DefenselAugust-September 1980
 PRE-TRIAL MOTIONS continued             618. Police blotters, showup sheets, and            Blake V. State (Tex.Crim.App. 1983)
   where the prosecution   iscommenced arrest sheets are public records under                365 SW2d 795, it is not admissible
   so great a prejudice against that Texas Open Records Act [Art. 6252-17,
                                him                                                          against a testify~ngdefendant unless it
   he cannot obtain a fair impartial
                            and          V.A.C.S.1. Houston Chronicle Publishing             complies with above Article 38.29,
   trial, and                                        .
                                         Company v City o f Houston (Tex.Cr.                 T.C.Cr.P.
   2. That there is a dangerous combina- A ~ P 1975) 531 SW2d 177.
                                               .                                                 [tl he admissibility of charges pend-
    tion against him instigated by influen-                                                     ing against prosecutionwitnesses to
    tial persons. by reason of which he          PRODUCTION OF GASKIN MATERIAL                  show bias or interest . . . have
    cannot expect a fair trial.                     Upon request by the defendant and           nothing to do with a defendant
          31.04, T,c.c~.P,,            that     after the witness has testified on d~rect,      who is testifying. Art. 38.29
  the state may join issue   by filing contra.
                                       a        the state must provide any written state-       controls in such situations and
  verting "affidavit of a credible person"              Or rep0rts:                             explicitly prohibits .evidence of
  and requesting a hearing before the               (1) made or adopted by a witness;           pending indictments t o be used for
  court on the "issue thus formed." Once            (2) used to refresh his memory;
                                                    (3) used before the jury.
                                                                                                impeachment purposes. .
                                                                                                Fentis v. State (Tex.Cr.App. 1975)
                                                                                                                                   ..
                                                                                                                                    r,


  the defendant" timely files his motion
  tracking the statute and accompanied          landers v. State (Tex.Cr.App. 1972)             528 SW2d 590, at p. 593, Ridler v   .
  by the requisite affidavits then the          480 SW2d 708, Gaskin V. State (Tex.Cr.          State (Tex.Cr.App. 1964) 375
  state must join issue by filing a "contro-    APP. 1962) 353 SW2d 467.                        SW2d 447.
  verting affidavit." Otherwise, the +fen.         However, it is often helpful to remind
  dant is entitled to a changeof venue as a     the trial court that such procedure will DISCOVERY OF BRADY MATERIAL
                                                significantly interrrupt and delay the trial [FIFTH AMENDMENT "DUE PROCESS":
  matter of law,
  motion
                        ~       to
                                ~ grant the
                                         i
             when the state does not filea
                                                l  ~       ~        ~
                                                                                                     '*
                                                by requiring that defense counsel be given ART. 519. TEXAS CONSTITUTlONl
  controverting affidavit is                error, sufficient time to read each instrument          Arrest and                   rep0rts On
  Durrough v. State (Tex.Cr.App. 1978) and investigate contents       the           thereof in State's witnesses constitute "impeach-
  562 sw2d 448, ~l~~~~ .      v state( T ~ ~ . c ~
                              .                    order to effectively utilize same for cross- ment evidence under 'Iady            v. Mary-
  bp,      1973) 493 SW2d 785, Wall v,             examination purposes [sixth amendment, land, 373 US 83 (7963). US v- Agurs,
  state(-rex.cr,~,,~, 1967) 417 s ~ 59.~ U.S. Constitution and Art. 1, 510. Texas 427 US 97 (1976)*
                                                     d
      H         ~ if the ~
                         defendant fails to ob. ~
                                ~          ~       Constitution] and impeachment. Accord- (5fh Cir. 1968) 400 F.2d 797 [requiring
                                                           ~        ,
 ject and instead voluntarily presents ingly,                                                                                  .
                                                           ordering their production priordisclosure of all evidence ". . favorable
 testimonv on his motion as if the iscur? to trial will obviate any such
                                              .
                                             . .                                                 . the
                                                                                                to ... accused either direct or impeach-
 had bee" joined, he waives         such error. and disruptive inconvenience t o the '"g'.'.
                                           1974) court and jury. See Hill v. State (Tex.Cr.         However. since such evidence serves
 McBrayer v. State
                                                                504 SW2d 484.                   only to impeach, a ''specific" request
 504 SW2d 445. Lewis v. State (Tex.Cr. APp.                                                     must be made in order t o invoke Brady.
  APp. 1974) 505 SW2d 603.
                                                   MOTION IN LlMlNE (REFERENCE US v. Agurs, 427 u s 9 7 (1976). Garrison
 DISCOVERY                                                                                       .
                                                   T o EXTRANEOUS CRIMES OR MIS- v Maggio (5th Cir. 1976) 540 F.2d 1271.
     Art. 39.14, T.C.Cr.P. provides that CONDUCT BY DEFENDANT OR WIT-                    ...
 upon motion the trial court may order NESSES)                                                   [SIXTH AMENDMENT "CONFRONTATION
 the state t o produce and oermit the                 Article 38.29, T.C.Cr.P. providesthat: AN0 C R O ~ ~ - E X A M I N A T ~ O W : I
 inspection, copying or photographing of              The fact that a defendant in a crim-          Refusal t o provide such information
 any:                                                 inal case or a witness in a criminal      relating to pending charges, probation,
     (a) documeot;                                    case, is or has been, charged by in-      known possible charges and offenses
     (b) papers;                                      dictment, information, or com-            constitutes a denial of the defendant's
     (c) written statements of defendant              plaint, with the commission of an         sixth amendment right to confront and
     (except written statements of wit-               offense against the criminal laws         cross-examine the witnesses against him,
     nesses and except the work product               of this State, or the United States.      and t o demonstrate to the jury the wit-
     Of counsel . . . their investigators             or any other Stare, shall not be                                            .
                                                                                                ness's bias or motive. Davis v Alaska,
     and their notes or reports);                     admissible in evidence on the trial                                  ,
                                                                                                415 US 308 (1974), US v Cronchier 5th
     (dl books;                                       of any criminal case for the purpose      Cir. (1973) 483 F.2d 327, Blake v State.
     (el accounts;                                    of impeaching any person a a     s        (Tex.Cr.App. 1963) 365 SW2d 795,
     (f) letters;                                    witness unless . . . a final convic-       Burkhalter v. State (Tex.Cr.App. 1973)
     (g) photographs;                                tion has resulted. or a suspended          493 SW2d 214, Evans v. State (Tex.Cr.
     (h) objects or tangible things . . .            sentence has been given and has not        App. 1975) 519 SW2d 868.
    which constitute evidence material to            been set aside, or such person has
                          .
    any matter involved . . which are in             been placed on probation and the           DISCLOSURE OF CONCESSION TO
    the custody or control of the state or           period of probation has not expired.       PROSECUTION WITNESS
    any of its agencies.                             While evidence of a pending indict-           Withholding from the defense informa-
    This statute is mandatory; the court ment may be admissible to show bias, tion about any promise of leniency to a
cannot refuse to allow an independent prejudice, or motive of prosecution wit- prosecution witness constitutes a denial
analysis of tangible evidence made the nesses, Davis v Alaska, 415 US 308 of "due process." In Giglio v US, 405 US
                                                                    .                                                         .
subject matter of the prosecution. Ferrell (1974); Luna v. Beto (5th Cir. 1968) 150, at pp. 154-5 (1972). the Court said
v. Sate (Tex.Cr.App. 1975) 521 SW2d 395 F.2d 35, cerr. den. 394 US 966; that:


                                                                               August-September 198OIVOICE for the Defense
    [el vidence of any understanding      the erroneous impression of an                  2 ~ u d g e Robert's opinion i s interesting
                                          impending trial and the ab-                     in another respect, holding the "State
                     s
   or agreement a to a future                                                             of Texas violated the provisions of its
   prosecution (of a witness) would                           s
                                          sence of lenience a an induce-                  own constitution i n pursuing the appeal"
   be relevant to his credibility         ment to testify. This Court has                 t o the US. Supreme Court, citing Art.
   and the jury was entitled to           recently made clear that we will                5, Sec. 26 o f the Texar Constitution
   know of it.                            not tolerate prosecutorial parti-               which provides that the "State shall
                                                                                          h a w no right t o appeal i n criminal
   DeMarco v. US, 415 US 449              cipation in technically correct,
                                                                                          cares." Perhaps in Texas the Supreme
   (1974) [hearing required], Napue       yet seriously misleading, testi-                Court is not the final arbiter o f Federal
   v. lllinois, 368 US 264 (1959),        mony which serves to conceal                    Constitutional claims, at least where
   Burkhalter v State (Tex.Cr.App.
                .                         the existence of the deal with                  the defendant is successful before the
   1973) 493 SWZd, at p. 218              material witnesses. . . . In light              Court of Criminal Appeals. White V.
                                                                                          State, supra. 543 SW2d at pp. 367-369.
    [attempt by state to "cleverly        of the highly misleading effect                      [ w l e hold that the state may n o t
   circumvent" due process require-       of the testimony in the instant                      i n any manner appeal a criminal
   ments of Giglio by making their        case that [the witnessesl were                       Case from this court t o the
   deal with the witness's lawyer         still "under indictment," we find                    Supreme Court o f the United
                                                                                               States. White v. State, supra,
   and then instructing him not to        that the prosecutor's failure to
                                                                                               at p. 369.
   communicate any offer to his           disclose any deal i t had with
   client, thereby depriving the de-      the witnesses falls within the
   fendant of the opportunity to          rules of Giglio.
   adequately test the witness's          See Smith v. State (Tex.Cr.App.
   credibility in the presence of the     1976) 541 SW2d 831, at pp.
   jury1 .                                837-8 [no reversible error where
                                           defense counsel knew of the plea                                   MEMO
   We fully appreciate the state's        agreement with the witness and                  TO:        Officers and Directors
   position that there was no false       "no motion for new trial on this                FROM: Judy Ward, Exec. Asst. to Pres.
   evidence here since [the wit-          ground was made"].                              RE:        Acceptance of Mastercharge or
   ness] did not know that he                                                                        Visa for payment of membership
   would not be prosecuted. Even                                                                     dues
   if we assume this ignorance,           FOOTNOTES                                           As of this date we now are able to
   arguendo, we find that the
   prosecutor's silence to the plan
                                          '   § 12.31. Capital Felony
                                               (a) An individual adjudged guilty
                                                                                          accept payment of membership dues on
                                                                                          individual Mastercharge or Visa accounts.
   not to prosecute conveyed an                of a capital felony shall be punished      On the new member membership form,
                                               b y confinement i n the Texas Depart-      all that i s needed is the name the account
   impression to the jury which
                                               ment o f Corrections f o r life or b y
   the state knew to be false and              death.
                                                                                          is carried in, the account number and the
    one which should have been                 519.03 Capital Murder                      expiration date; along with a signature.
    corrected. . . . Appellant was not         (a) A person commits an offense i f         For renewal dues, the above information
    accorded due process of law                h e commits murder as defined              can be given on any form of correspon-
    when he was denied the oppor-              under Section 19.02Ial(ll of this          dence letterhead; anything that can be
                                               code and:
    tunity to refute the inevitable                 Ill the person murders a peace        placed in our files, it does not have to be
    impression that such testimony                  officer or fireman who is acting      presented to the bank in any form.
    had on the jurors; that is that                 i n the lawful discharge of an of-         From this information, this office will
     [the witness] would obtain no                  ficial duty and who the person        fill out the necessary forms for the bank,
                                                    knows is a peace officer or
    reward for testifying."                                                               which will be processed through our
                                                    fireman;
    Blankenship v. Estelle (5th Cir.                (21 the person intentionally com-     Austin National checking account.
    1977) 545 F.2d 510, at pp.                      mits the murder i n the course o f        Should you have further questions,
    513-4 [where prosecutor elicited                committing or attempting t o com-      please advise; we will address this subject
    testimony that witnesses were                   m i t kidnapping.burglaw,robbery,      again a t the December 1, 1980, Board of
                                                    aggravated rape, or arson;
    under felony indictments, when                  I31 the person commits the mur-        Directors meeting in Dallas.
    in fact they had been promised                  der for remuneration or the
    dismissall .                                    promise of remuneration or em-
                                                    ploys another t o commit the mur-
                                                    der for remuneration or the pro-
                                                    mire o f remuneration;                   FINGERPRINTS, COURT TESTI-
   At Blankenship's trial the pros-
                                                    (4) the person commits the mur-          MONY. Fingerprint examiner with
   ecutor asked both [witnesses]
                                                    der while escaping o r attempting        28 years experience in large police
   if they were under indictment                    t o escape from a penal institu-         department. Have testified in many
   for the felony offense of rob-                   tion; or
                                                                                             State and Federal courts. Can
   bery by firearms and each re-                     15) the person, while incarcerated
                                                                                             answer any questions you have
   plied "yes, sir. 1 am" . . . al-                  in a penal institution, murders
                                                    another rvho ir employed in the          regarding fingerprints. Carl Day.
   though in the instant case the                   operation o f the penal institu-         3722 Shady Hollow Lane. Dallas
   testimony that [the witnesses]                   tion.                                    75233,2141337-2919.
   were "under indictment" may                 I b ) An offense under this section is
   have been technically true, i t left        a capital felony.



VOICE for the DefenselAugust-September 1980
                                  EXECUTIVE COMMITTEE MEETING
                               TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION
                                                         August 16,1980


    The meeting was called to order by          TCDLA pay all the printing costs, and sketch describing their position in local
 President Robert D. Jones at 9:20 a.m.         that the profit remaining after expenses communities, their work, and a little per-
 It was established that a quorum was           be divided 50% to TCDLA and 50% to sonal information.
 present.                                       Garland Wier. The selling price of the
                                               Criminal Trial Manual was set at $40 MEMBERSHIP CAMPAIGN PRIZE
MEMBERS PRESENT-Robert D. Jones,               plus 5% sales tax of $2 on the recom-         President Bob Jones asked the Execu-
Charles M. McDonald. Clifford Brown,           mendation of Bob Jones, with a $5 tive Committee for authority to give a            s
Tom Sharpe, Jan Hemphill, Steve Capelle,       discount to all TCDLA members. The a prize to the person bringing in the most
Jim Bobo. Gerald Goldstein; and also in-       $5 discount to members will be judged a s new members or recently dropped de-
vited Associate Director and past TCDLA        TCDLA cost in regard to the profit split, linquent members, through the date of
Legislative Representative David Spencer.      and is approved of by the author. It was March, 1981 Spring Trip Seminar, a
                                               suggested that TCDLAdirectors purchase package trip for two, as incentive for
MEMBERS ABSENT-Clif Holmes who                 this book for possible presentation to     bringing in membership. A motion to
was involved in a capital murder trial.        local district judges.                     that effect was made by Clifford Brown,
Ed Mallett, chairman of the Legislative            As stated by Tom Sharpe, this manual being duly seconded by Charles M.
Committee, was also invited to the meet-       was part of Mr. Wier's continuing legal McDonald. The count for new members
ing but was unable to attend.                  education work for his state bar criminal will begin on the date of June 12, 1980,
                                               law certification, and had been reviewed when Bob Jones took office a president.
                                                                                                                         s
  GARLAND WIER BOOK PROPOSAL                   at that time and approved. The main Bob Jones will announce this contest
     Upon consideration of the proposed        sales approach for advertising this book in the VOICE for the Defense.
 bids for printing the Garland Wier book,      will be the Criminal Law Seminars,
 by Artforms Agency, using quotes from         the VOICE for the Defense, and by HIRING OF LEGISLATIVE REPRE-
 Morgan Printing Company and Capital           "word of mouth" from the Board of SENTATIVE
 Printing Company, both of Austin, a           Directors. Bob Jones suggested that 1,000     David Spencer gave the Committee a
 general discussion was held regarding all     copies be printed. I f additional manuals review of the duties, responsibilities, and
 aspects concerning prices, sales presenta-                                                                       s
                                               are required, the main costs of photo. experiences he had a the legislative
 tion, format, and make-up of the book.        copying the manual and typesetting the representative for TCDLA last year.
 President Bob Jones regarded the book         cover will have already been paid.        Steve Capelle stated that TCDLA direc-
 to be much like the McClung books;                Jim Bobo made a motion to print tors and members should start a list of
 being very organized and was impressed        1,000 of the Garland Wier Trial Manual persons who have made personal cam-
 with the outline of it. The Garland Wier     a described above, at a price of $6.34 paign contributions to various legislators
                                                 s
 Texas Criminal Trial Manual will bear         each a stated in the original bid. This in their areas. Those specific contributors
                                                        s
 the TCDLA name and prominent logo,            motion was duly seconded by Clifford should assist in making calls or appeals
 along with the author's name on the           Brown. After a voice vote of all members regarding legislative issues when bills
 cover, and will consist of 519 pages.        present the motion carried. The Execu- come up for a vote that affect our pack-
 These will be photographed and repro-        tive Committee authorized the president age or other criminal jurisprudence bills.
duced on Springhill 60# offset paper.         to enter into a contract with Garland          As soon as the Criminal Justice Com-
The binding of the manual will be a           Wier to the point that TCDLA will agree mittees of both the House and Senate
 plastic spiral, and the pages three.hole     to print 1,000 at $6.34, take out the are formed and appointed, that specific
 punched for later inclusion into the         expenses, and split the profits 50% to information is to be given to the TCDLA
 members' own binders when it is later        Garland Wier and 50% to TCDLA; the membership, so that the home town
updated in about two years. A blue cover      $5 discount to any member of the members of the persons who sit on these
 of Kroydon Pyroxylin, which is leather       Assoc~ation be counted a acost item. legislative committees can contact them
                                                            will            s
grained, will be used to enhance the ap-           Endorsements and recommendations regarding the TCDLA legislative package
pearance and durability of the manual.        for the book were asked for by Bob Jones and other pertinent legislation.
Artforms Agency will charge approxi-          from the following persons: Phil Burleson,     David Spencer related that the TCDLA
mately $75.00 for time and typeset            Tom Sharpe, Frank Maloney, Travis office during the last legislative session
charges and for the general overseeing of     Shelton, Marvin Teague, Weldon Hol- provided him with a monthly salary of
the book's printing. The delivery time is     comb, Charles M. McDonald.                 $1,000, an office, part-time secretarial
three weeks from the date of order.                                                      help from existing TCDLA employees,
    The price to print 1,000 manuals is       MEET YOUR DIRECTORS COLUMNS all office supplies needed, and business
$6.34 each as described above, along          IN VOICE                                   calling cards. The office also provided at
with the additional charge for three-hole          I t was decided that we would once $100 per month the services of the Texas
punching the manual. Garland Wier,            again print, a space becomes available Legislative Service, which provides copies
                                                                s
author of the Criminal Trial Manual,          in the VOICE, Z"x3" pictures of each of daily leg~slative     business and upcoming
proposed to President Bob Jones that          director, along with a biographical bills. The TCDLA staff also produced


                                                                           August-September 7980NOICE for the Defense
         and mailed bulletins to the members         Association. He is currently in private         sider per the request of President Jones
         when "time was of the essence," and the     practice doing criminal defense work.           whether funds could be made available
    /     VOICE for the Defense could not be used
         t o timely notify the members. TCDLA
                                                     He stated to Bob Jones that to monitor
                                                    the bills and do the type of job necessary,
                                                                                                     within the budget. The amounts dis-
                                                                                                     cussed were for out-of-pocket expenses
         office staff took phone messages for       he would require $1,500 per month.               and the amounts requested for considera-
         David and mailed requested copies of        He is currently associated with Herman          tion were $50, $75, and $100 per case.
         bills and correspondence. Any necessary    Gotcher, and is a member of TCDLA.                It was the concensus of the Executive
         books were purchased along with regular        It was decided that a decision should        Committee that this would set a bad
         TCDLA supplies. David also had the use     be reached so that both parties could            precedent, that many persons within
         of the TCDLA Southwestern Bell tele-       make plans for the session. The contract         the Association had done a great deal of
         phone credit card.                         for the payment of salary to the legisla-        work not only on the Amicus Curiae
             Bob Jones asked David Spencer what     tive representative would run from               Committee, but on all of the standing
         salary he would require if he was hired    January 1981 through May 1981. Jim               committees and also in a l l other functions
         as TCDLA Legislative Representative.       Bobo moved that Dain Whitworth of                and aspects of the Association and its
         David worked approximately twenty to                          s
                                                    Austin be hired a legislative representa-        goals. It was stated that it was an honor
        thirty hours per week for five months       tive for the specified period at $1,500          to work on such committees, to earn a
        during the last legislative session. He     per month. The motion was seconded by            role within the Association, and to
         stressed that he would do everything he    Charles M. McDonald, and by a voice vote         further the profession this Association
         could to aid and support the legislative   of all members presentthe motion carried.        represents; and that payment of money
        effort whether selected for the position                                                     was not required or expected, a smalls
                                                     PLAQUES OF RECOGNITION
I       or not. "With the amount of organization                                                       s
                                                                                                     a the token payment would be. Recog-
        we are already doing beforehand now, I           Marvin Teague, who is shortly to be-        nition for such duties performed should
        would say that I would be comfortable in    come a judge on the Court of Criminal
                                                                                                     be made in the VOICE for the Defense.
        stating that I could accept the position     Appeals has requested that some type of         There are awards committees formed at
        for $1,500 per month."                      recognition be given to the two secre-
                                                                                                     the end of the year to select and honor
             Steve Capelle was asked whether he     taries in his office who have assisted him       those who have earned recognition.
        would consider the position, but due         in the preparation of the "Significant              Charles M. McDonald moved that Bob
        t o the amount of time expended in-          Decisions Reports." They have given             Jones write to Arch McColl, chairman
        volved. felt he had to decline.              of themselves greatly, love TCDLA.              of the Amicus Curiae Committee. re-
             Bob Jones stated that only David       and worked hard in typing, proafing, and         garding the position of the Executive
        Spencer and Dain Whitworth had ex-          editing the S.D.R. It was determined
                                                                                                     Committee. This was seconded by Clif-
        pressed any interest in the position, and   that two plaques of appreciation are to          ford Brown. It was further moved by a
        were the only two persons about whom        be presented in Houston on October 4,
                                                                                                     voice vote of all members present that it
        he would feel confident.                     1980, at the Board of Directors meeting         is an honor to serve this Association, and
             At this point, Bob Jones asked that    a t the Hyatt Regency Hotel. The language
                                                                                                     if monies are needed for items such a      s
        David Spencer excuse himself from the       on the plaques will be given to the
                                                                                                     filing fees, then it should be requested
        room so that the Committee could go         TCDLA staff by Marvin Teague for their
                                                                                                      s
                                                                                                     a a specific item.
        back into executive session.                oreoaration. Gerald Goldstein so moved
             Dain Whitworth has been the repre-     h;
                                                    ; a the plaques be ordered and presented
                                                                                                          was then announced that the next
        sentative for the District Attorney's       as stated. Judy Ward was instructed to
                                                                                                     meeting of the Board of Directors would
        office and had done a very effective job.   check into available prices and advise
                                                                                                     be held on October 4, 1980, in Houston
        His uncle is Harry Whitworth, who Bob       the president.
                                                                                                     at the Hyatt Regency Hotel. beginning
        has high regard for as a professional       AMICUS CURIAE BRIEF WRITERS                      at 9:00 a.m.
        lobbyist. Dain worked in past sessions           Jan Hemphill discussed the request             There being no further business pend-
        with his uncle, while Dain was an under-    from Arch McColl for token Payments              ing before this Committee, the meeting
        graduate student. At one time he was a      to be made to the writers of the Amicus          was adjourned at 11:00 a.m.
        county court at law prosecutor, and for     Curiae Committee briefs, as discussed                             Respectfully submitted,
        nine years was the executive director of    at the July 26th Board of Directors                                             Judy Ward
        the Texas County and District Attorneys     meeting held in Austin. She was to con-                        Exec. Asst. to the President
                                                    R E Q U E S T S FOR
                                                         FORENSIC EXPERTS

                                                        The TCDLA office has been beseiged
                                                    recently with requests for names of
                                                    forensic experts. Our l i s t is very limited.
                                                     If you've had success with a particular
                                                    forensic expert, please share his or her
                                                    name, address, and telephone number
                                                    with us. W will compile a l i s t of such
                                                               e
                                                    experts and then be able to answer
                                                    future requests.


        VOICE for the DefenselAugust-September 1980
                                                 you're lucky if you get out there for an        homework, collect irrefutable evidence
Letters to the Editor                            hour and a half one day a week. So              and present it?
                                                 naturally, you know, what else can I                There is some suspicion that people.
                              July 29,1980
                                                 say?                                            while demanding the ultimate of law
Mr. Charles W. Tessmer
Penthouse, Main Tower                               Ed's note . . . and, Mr. Tessmer,            enforcement officers, once they have
                                                 the unit room curators seem oblivious           done their work, aren't too interested
1200 Main St.
Dallas, TX 75202                                 to your notoriety. Perhaps you should           in the evidence.
                                                 have your publishers circularize the in-            Some people say Wilbarger County
Dear Charles:                                    mate population1                                juries have a long-term reputation for
   Enclosed please find part of a tran-                                                          being soft. Naturally, that's the sort of
script that I am reading (court-appointed                                     July 25, 1980
                                                                                                 presumption that could provoke argu-
appeal). I thought you would enjoy the           Dear Clif,
                                                                                                 ments-and anger.
"highlighted" portion. Apparently your               I am enclosing a clipping of a column           One local official, who for obvious
book is a classic. He never got a copy           written by the editor of our local paper,
                                                                                                 reasons will remain anonymous, says,
and received a life sentence.                    The Vernon Daily Record, of Tuesday,
                                                                                                 ''We have had no luck in getting con-
                                 Sincerely,      July 22, 1980, entitled "Local Juries
                                                                                                 victions a t all."
                       Ronald L. Goranson        'Soft'?" which I submit as Exhibit A of
                                                                                                     He cited five recent cases, in which
                                                 a classic example of (1) raw redneckism,        he feels the evidence was in hand for
Dear Mr. Holmes:                                 (2) abysmal ignorance of our criminal           convictions. but juries failed to return
   I am pleased to note that I am now            justice system, and (3) a newspaper
                                                                                                 verdicts of guilty.
considered an author of some repute in           allowing itself to be used-wittingly or
                                                                                                     Of course, this is all a matter of per-
our local "stout house."                         unwittingly-as a propaganda tool for the
                                                                                                 sonal opinion, and there would be room
                       Charles W. Tessmer        local prosecutor.
                                                                                                                    s
                                                                                                 for argument a t o whether there was
                                                    We have been fortunate enough to
                                                                                                 basis for conviction. Naturally, this
    The Court: Well, would you indicate          win most of our recent criminal cases,
                                                                                                 column is not going to identify any
to me that you would not be voluntarily          and, apparently, through desperation, the
                                                                                                 specific cese.
and knowingly giving up your right to            local prosecutor is attempting to prej-
                                                                                                     A jury acquittal, from a legal stand-
an attorney? Is that what you're telling         udice future jury panels to serve his own
                                                                                                 point, means there was not enough
me, that you feel that you are being             purposes.
                                                                                                 evidence for conviction. And people in
forced to give up your right?                        I don't feel this disservice to our
                                                                                                 this country are presumed innocent until
    Mr. Curtis: That is correct. In light of     criminal justice system ought to go un-
                                                                                                 proved guilty.
the fact that the Court has denied not           answered. At the same time, for me to
                                                                                                     If they are not proved guilty, they
only the Motion for Substitution of              answer it personally would, I'm sure,
                                                                                                 cannot be presumed guilty.
Counsel but if I stand corrected, but                                       s
                                                 appear to the public a simply a self-               But this particular official would like
also denied a proper Motion for Dis-             serving statement in view of the fact
                                                                                                to see citizens looking harder at the evi-
missal and Reappointment of the Counsel.         that my partner and I have a good por-
                                                                                                 dence.
    The Court: How old are you?                  tion of the local criminal defense work.
                                                                                                     He asks a simple question: "If the
    Mr. Curtis: According to the court               If you have any suggestions, or pos-
                                                                                                jurors . . . the citizens are going to turn
records, I believe I'd be twenty-nine            sibly feel some sort of reply from the
                                                                                                them loose, how are we ever going to
years old.                                       Criminal Defense Lawyers Association
                                                                                                 control crime?"
    The Court: You have no legal ex-             would be in order I would appreciate
                                                                                                     Past cases are history. Every person
perience, is that correct?                       hearing from you.                              who was acquitted must be presumed
    Mr. Curtis: No, sir.                             Best personal regards.
                                                                                                 "not guilty ."
    The Court: Other than the time that                                         Yours truly,
                                                                                                     But maybe everybody called to jury
you've been before the Court a a de. s                                              Bill Neal
                                                                                                duty in the future should think about the
fendant; is that correct?                                                     Vernon, Texas
                                                                                                situation.
    Mr. Curtis: Yes, sir, that's correct.        Reprinted from the Vernon Daily Record, July        "I think our local people are hurting,"
    The Court: Have you ever had a jury          22, 1980.                                      the official says.
trial?                                                        Local juries 'soft?'                   "They pat them on the back and turn
    Mr. Curtis: I was in a misdemeanor               LAW ENFORCEMENT officers always            them loose. That isn't much incentive
jury trial, yes, sir, not a felony jury trial.   come in for criticism from the public.         to arrest these people."
    The Court: You're telling me that you            It is the nature of their work that             Some of the frustration is exemplified
do not have any personal knowledge of            everybody will second-guess them. It           by a recent case in Wichita Falls in which
the legal Rules of Evidence and trial            goes with the territory.                       a number of witnesses saw a murder.
procedures; is that correct?                         If they weren't at the right place              But police could obtain nobody from
    Mr. Curtis: None whatsoever. I've            at the right time, they should have been.      among those witnesses who would
been trying to get a book up here called         If a case defies solution, anybody else,       testify or offer evidence.
Criminal Trials Strategy by Charles              of course, could have solved it. If the               e
                                                                                                     W have not followed the case, but if
Tessmer to do some studying on, but a       s    evidence isn't there, surely somebody          the situation has changed in the weeks
of this time I haven't been able to get          could have found it, and built a better        since the crime, we've missed news
that. And the law library situation              case.
                                                    But what happens officers do their          reports on the matter.                   45,
here in the jail is of such a nature that


                                                                                August-September 198ONOICE for the Defense
                                                                 -ULY, 1980
                                                                 V L M V I , NO. 8
                                                                  OU E

                                               OPINIONS F R W E O JULY 2, 1980
                                                         O   EK F

JULY 2 , 1980, I N MY HDIGLE OPINION, FOR MANY REASONS, W S A S D DAY I N TEXAS JURISPRUDENCE
                                                                                    A        A
A THE STATE OF TEXAS I S NOW GIVEN THE RIGHT T AF'PEAL A DECISION O THE: C U T O CRIMINAL
 S                                                                         O                             F         OR          F
                O H                      OR         F H
APPEALS T T E SUPREME C U T O T E UNITED STATES BY T E DECISION O FAULDER Y. HILL,H                      F
                 . .                                                    -                     -
#60.554., 7/2/80.~ J., Odom. En Banc. w i t h J . Douglas c o n c u r r i n g w i t h o p i n i o n , and w i t h J .
D a l l y a l s o c o n c u r r i n g w i t h o p i n i o n , and w i t h J. Roberts c o n c u r r i n g and d i s s e n t i n g w i t h
o p i n i o n , and w i t h P . J . Onion, joined by J. Roberts i n p a r t , d i s s e n t i n g w i t h o p i n i o n , and
w i t h J. C l i n t o n , j o i n e d by Judges Roberts and P h i l l i p s , d i s s e n t i n g w i t h opinion.

       COI-DENT:        T h i s a c t i o n a r o s e a s a r e s u l t of t h e d e c i s i o n of Faulder v . S t a t e , s e e
                        February, S.D.R., Page 8                                     , where t h e CCA's m a j o r i t y r e v e r s e d
                        a d e a t h p e n a l t y c o n v i c t i o n . The a c t i o n h e r e had t o do w i t h a motion by t h e
                        S t a t e t o s t a y t h e mandate of r e v e r s a l i n o r d e r t h a t t h e p r o s e c u t i o n could
                        s e e k c e r t i o r a r i from t h e Supreme Court of t h e United S t a t e s .

                        Of c o u r s e , by t h e m a j o r i t y ' s d e c i s i o n g r a n t i n g t h e motion t o s t a y t h e
                        mandate, t h i s e f f e c t i v e l y o v e r r u l e d t h a t p a r t of White v . S t a t e , 543 S.W.
                        2d 366, where a m a j o r i t y of t h e then CCA r u l e d t h a t t h e S t a t e was pro-
                        h i b i t e d by t h e Texas C o n s t i t u t i o n from a p p e a l i n g t o t h e Supreme Court.

       HOWEVER, HERE, IT W S HELD:
                          A                           I
                                                     !.   ..      we h o l d A r t . 5 , Sec. 26 of t h e Texas C o n s t i t u t i o n
                                                     does n o t p r o h i b i t respondent from s e e k i n g review of our
                                                     d e c i s i o n i n t h i s c a s e by a p p l i c a t i o n f o r w r i t of c e r t i -
                                                     o r a r i i n t h e Supreme Court of t h e United S t a t e s . "

       NOTE :           The d i s s e n t e r s went down b u t n o t w i t h o u t a hard fought s t r u g g l e .

                        J. R o b e r t s , i n p a r t , s a i d :  "The Court has e f f e c t i v e l y r e w r i t t e n o u r
                        c o n s t i t u t i o n , without t h e a p p r o v a l of t h e v o t e r s , by accumulating two
                        inadequate r e a s o n s and one misunderstanding of c o n s t i t u t i o n a l law."
                        "This i s n o t a b r i g h t day i n t h e h i s t o r y of t h i s Court."

                        P . J . Onion, i n p a r t , a l s o s a i d : "If t h e m a j o r i t y today e s t a b l i s h e s
                        t h e r i g h t of t h e S t a t e t o appeal c r i m i n a l c a s e s t o t h e U.S. Supreme C o u r t ,


  VOICE for the DefenselAugust-September1980
                  then i t w i l l have opened Pandora's box."       "Every s t a t e t r i a l court order
                  granting a motion t o suppress evidence w i l l r a i s e t h e p o s s i b i l i t y of an
                   'appeal' d i r e c t t o t h e U.S. Supreme Court f o r 28 U.S.C. Sec. 1257(c),
                  authorizes review of f i n a l judgments o r decrees rendered by the highest
                  court of a s t a t e i n which a decision could be had."          "While p r o h i b i t i o n
                  against appealing would s t i l l apply within the s t a t e j u d i c i a l system,
                  t h e wraps would be off a s f a r a s applying t o the U.S. Supreme Court
                  from such orders a s the orders would be rendered by t h e highest court
                  of t h e s t a t e i n which a decision could be had."      "Speedy t r i a l s w i l l n o t
                  be speedy and the f i n a l i t y of judgment i n a criminal case w i l l again be
                  lengthened. "

                  J. Clinton would have gone f a r t h e r . "[The Texas c o n s i i t u t i o n ' s J ] purport
                  is t o deny t h e r i g h t of appeal t o every a p p e l l a t e forum, anywhere, any
                  place, any time."        "The prohibition i s a self-imposed d e n i a l , succinct
                  and d i r e c t , without qualification--it admits not exception o r exemption."
                  "In another vernacular, t h e S t a t e of Texas commands i t s e l f : 'Thou
                  s h a l t not appeal'      ."
       COMMENT:   Sad a s i t may sound, f o r Constitutional r i g h t s , we can no longer look t o
                  t h e Supreme Court of t h e United S t a t e s f o r guidance. If you do not be-
                  l i e v e me, read t h e l a t e s t cases handed down by t h e Supreme Court during
                  t h e present term of court. Thus, i n representing t h e accused, i t is
                  extremely important t h a t i n reference t o motions and b r i e f s t h a t r e l i a n c e
                  be placed upon t h e provisions of t h e Texas Constitution with reference,
                  where absolutely necessary, by footnotes t o t h e U.S. Constitution. See
                  a l s o t h e a r t i c l e i n Search and Seizure Law Report, Vo. 3, No. 10, October,
                  1976, e n t i t l e d "State Court Expansion of Fourth Amendment Rights," by
                  Professor Samuel M. Davis of t h e U. of Georgia Law School. Always r e -
                  member t h a t "the decisions of the Supreme Court d e l i n e a t i n g the r i g h t s
                  of an accused person, while t o be respected and given g r e a t considera-
                  t i o n , merely e s t a b l i s h minimum standards t o be observed i n the criminal
                  process; S t a t e s a r e f r e e t o expand these standards beyond the scope of
                  f e d e r a l protections."

                  Sorry about t h e lengthiness of the above b u t , i n m humble opinion, t h i s y
                  has got t o be t h e most e a r t h shaking decision ever handed down by t h e
                  Court of Criminal Appeals i n t h e h i s t o r y of t h e Court. It is almost a s
                  f a n t a s t i c a s when a g r e a t a p p e l l a t e and c o n s t i t u t i o n a l lawyer, O r v i l l e
                  Harlan, now deceased, once f i l e d a lawsuit t o have t h e Court of Criminal
                  Appeals declared i l l e g a l , n u l l and void f o r various and sundry reasons.




I N FERGUSON, #58,518, 7/2/80, J. Clinton, Panel #2, 4th Quarter 1980, ANOTHER D GETS A W-
   ESL O                F
V R A F R FAILURE O STATE TO A L G I N A DELIVERY O HEROIN C S WHAT KIND O DELIVERY,
                                    LE E                      F           AE            F
                                                    A
I . E . , ACTUAL, CONSTRUCTIVE OR OFFER TO SELL, WS GOING TO BE ESTABLISHED BY THE PROOF.
(Reversed).      (Harris County). See a l s o Garza v. S t a t e , No. 58,517, 1130180.




                                                                    August-September 1980NOICE for the Defense
          NT :
           OE             The indictment merely a l l e g e d t h a t t h e D "unlawfully, i n t e n t i o n a l l y and
                          knowingly d e l i v e r e d t o J e r r y Powell, a c o n t r o l l e d s u b s t a n c e , namely
                          Heroin."  A Motion t o Quash was f i l e d .

          HELD :          "Delivery of a c o n t r o l l e d s u b s t a n c e may b e accomplished i n a t least three
                          q u i t e d i f f e r e n t s i t u a t i o n s : a c t u a l t r a n s f e r , c o n s t r u c t i v e t r a n s f e r and
                          t h e e n t i r e l y d i s t i n c t o f f e r t o sell." "Thus, t h e i n f o r m a t i o n D sought
                          t o have t h e S t a t e p r o v i d e was t h e l e g a l t h e o r y of j u s t which k i n d of de-
                          l i v e r y was going t o b e e s t a b l i s h e d by t h e proof."

          NOTE:           By way of d i c t a , i t was a l s o pointed o u t t h a t : "One accused of w e l f a r e
                          f r a u d i s e n t i t l e d t o n o t i c e of t h e c o n t e n t of t h e p a r t i c u l a r w i l f u l l y
                          f a l s e s t a t e m e n t t h e S t a t e i n t e n d s t o prove."   "Charged w i t h t h e o f f e n s e
                          of robbery by c a u s i n g b o d i l y i n j u r y an accused must b e informed of t h e
                          p r e c i s e conduct which t h e S t a t e c l a i m s caused t h e b o d i l y i n j u r y . "

HOWEVER, I N CROWL, 864,101, 7/2/80, J . C l i n t o n , P a n e l 63, 2nd Q u a r t e r 1980, AN INDICTMENT
WHICH MERELY ALLEGED T A THE D "DID THEN AND THERE UNLAWFULLY, K O I G Y AND INTENTIONALLY
                       HT                                                      N WN L
POSSESS A CONTROLLED SUBSTANCE, NAMELY, COCAINE," W S HELD FUNDAMENTALLY DEFECTIVE BECAUSE
                                                              A
"AT THE TIME OF THE COMMISSION OF THE OFFENSE ALLEGED AGAINST APPELLANT, YOCAINE"                      WAS NOT
SPECIFICALLY N M D I N A PENALTY GROW" A IT H S B E SINCE THE 1979 A E D E T
               A E                        S           A     EN                           MN MN.       INSTEAD,
"COCAINE" W S CONTAINED I N THE PENALTY GROW BY VIRTUE O ITS FALLING WITHIN S M "OTHER
            A                                                        F                           O E
DESCRIPTION" AMONG WHICH ARE THE FOLLOWING: "ANY SALT, COMPOUND, DERIVATIVE, OR PREPARA-
TION OF COCA LEAVES" OR *'ANY SALT, COMPOUND, DERIVATIVE. OR PREPARATION THEREOF WHICH IS
                                                                                   S
CHEMICALLY EQUIVALENT O IDENTICAL WITH ANY OF THESE SUBSTANCES. A SUCH. THE INDICTMENT
                        R
I N THIS CAUSE "DOES N T ALLEGE WHY ICOCAINEl, A SUBSTANCE NOT LISTED BY NAME I N A PENALTY
                      O
GROUP, I S A CONTROLLED SUBSTANCE. THEREFORE, T E INDICTMENT PAILS TO ALLEGE AN ESSENTIAL
                                                        H
ELEMENT OF THE OFFENSE AND I S FUNDAMENTALLY DEFECTIVE."               (Reversed).       (Dallas County).

BUT, SEE A S McFARLAND, #64,551, 7/2/80, J. T. Davis, P a n e l #3, 2nd Q u a r t e r 1980,
          LO                                                                                                                          a
                                                  HN      O US
&INDICTMENT I S FUNDAMENTALLY DEFECTIVE, T E NO MOTION T Q A H I S NECESSARY T G T      O E
A REVERSAL.  (Reversed)           .
                         ( H a r r i s Goun t y )               .
          O MN:
          CM ET          Here, t h e Indictment f o r f o r g e r y by p o s s e s s i o n a l l e g e d t h a t t h e D "unlaw-
                         f u l l y w i t h o u t a u t h o r i t y and w i t h i n t e n t t o defraud and harm, f o r g e d t h e
                         w r i t i n g d u p l i c a t e d below by p o s s e s s i n g i t w i t h i n t e n t t o u t t e r i t w h i l e
                         knowing i t was forged."

          HELD :         "An i n d i c t m e n t f o r f o r g e r y by p o s s e s s i o n w i t h i n t e n t t o u t t e r under Sec.
                         32.21(a)[l)(C) must a l l e g e t h a t t h e w r i t i n g p u r p o r t e d t o b e t h e a c t of
                         a n o t h e r who d i d not a u t h o r i z e t h e a c t . "      (My Emphasis).

  X
E PARTE RODRIGUEZ, #64,507,7/2/80, J. P h i l l i p s , En Banc, Unanimous, GETS A LITTLE RELIEF
W E C A RULES THAT HIS M R E WITH MALICE CONVICTION W S VOID D E T CARVING AND DOUBLE
   HN C                                  UDR                           A          U O
               U E                     UT
JEOPARDY B T H STILL M S SERVE HIS ROBBERY B FIREARMS CONYICTION.
                                                             Y                                [ W r i t Granted).
 (Aransas County). The o p i n i o n d i d n o t s t a t e whether t h e r e was a d i f f e r e n c e r e g a r d i n g t h e
l e n g t h of t h e r e s p e c t i v e s e n t e n c e s .

J. ODOM, I N GARCIA, #59,205, 7/2/80, P a n e l $3, 2nd Q u a r t e r 1980, RULES THAT T T ERRED B
                                                                                        G           Y

          .
FAILING T G A T D'S REQUESTED C A G ON THE DEFENSE O ACCIDENT.
County)
         O RN                    HRE                        F                 (Reversed).  ( E l Paso


         HELD :          "It i s c l e a r .     ..
                                              t h a t a homicide may s t i l l be a c c i d e n t a l under o u t New
                         P e n a l Code." "The testimony h e r e was s u f f i c i e n t t o r a i s e a n i s s u e




  VOICE for the DefenselAugust-September 1980
                                             of f a c t as t o t h e voluntariness of D ' s conduct."

                    The f a c t s showed t h a t when D told the deceased he was going t o throw
                    a gun i n t o a canal, the deceased suddenly grabbed D ' s r i g h t elbow with
                    one hand and the gun with h i s other hand i n an attempt t o take t h e gun
                    away from D, but t h e gun went o f f , k i l l i n g t h e deceased.

J. CLINTON, I N TURNER, 859.055, 7/2/80, Panel # 3 , 2nd Quarter 1980, DISCUSSES A C S O
                                                                                    AE F
                                                                 AE H T              E ES R
FIRST IMPRESSION AND RULES THAT I N AN INDECENCY WITH A CHILD C S T A I T IS NOT N C S A Y
F R THE D T DO SOMf2THING I N THE N T R O ATTENTION-GETTING I N O D R TO ATTRACT A C/W TO
 O         O                       AU E F                           RE
O S R E HIM "DOING H I S THING."
 BE V                            (Affirmed)            .
                                              (Lubbock County).

       CM ET
       O MN:        The decision a l s o rejected t h e D ' s claim t h a t e r r o r occurred when the
                    prosecutor attempted t o b o l s t e r t h e testimony of a S t a t e ' s witness i n
                    v i o l a t i o n of a previously granted Motion i n limine, b u t , t h e r u l e t h a t
                    I,
                        n
                       A unanswered question i n these circumstances does not r e f l e c t r e v e r s i b l ~
                    e r r o r unless the question was s o calculated t o inflame t h e minds of
                    t h e j u r o r s a s t o suggest t h e improbability of withdrawing t h e impression
                    produced on t h e i r minds," g e t s t h e D and h e r e i n s t r u c t i o n by TCt cured
                    whatever harm may have e x i s t e d .

                    D ' s claim, regarding i n court i d e n t i f i c a t i o n by C/W, a l s o r e j e c t e d .

                    Probably t h e most i n t e r e s t i n g r u l i n g had t o do with excluding t h e t e s t i -
                    mony of D ' s s i s t e r t h a t she saw other males i n t h e v i c i n i t y of t h e
                    crime scene who physically resembled D and who drove a s i m i l a r Chevette.

                    Held:     "The proffered evidence was most speculative."

                                         OPINIQNS F R WEEK O JULY 9, 1980
                                                   O        F

J. W. C. DAVIS I N OLGUIN, #57,962, 7/9/80, Panel 8 3 , 2nd Quarter 1980, O D R CONVICPION
                                                                           RES
 O               F                            S          A
F R POSSESSION O HARIJUANA REVERSED A EVIDENCE WS INSUFFICIENT TO SUSTAIN CONVICTION.
(Reversed and A c q u i t t a l Ordered Entered). (Dallas County).

       O MN:
       CM ET        D, while driving an auto, was stopped f o r t r a f f i c v i o l a t i o n s . When
                    o f f i c e r approached t h e v e h i c l e , he smelled a strong odor of burnt mari-
                    juana. A baggie was found under t h e passenger's s e a t . B inference,y
                    more than 2 persons were i n t h e car.

       HELD :       Because t h e D was "clean," regarding any incriminating f a c t s i n reference
                    t o t h e marijuana, t h e evidence w a s held t o be i n s u f f i c i e n t t o show j o i n t
                    possession.

C A F R , 858,952, 7/9/80, J. P h i l l i p s , panel #2, 2nd Quarter 1980, with J. W. C. Davis
 R WO D
concurring i n t h e r e s u l t , and with J. Douglas d i s s e n t i n g without opinion, GETS REYERSAL
BECAUSE OF PROSECUTOR~SWRONGFUL QUESTIONING OF WIT REGARDING A CONVERSATION WIT HAD WITH
     AHR HT
HIS F T E T A THE D, WIDOW AND MOTHER O WIT, HAD A T M T D TO POISON D C A E ON A
                                                 F                   TE PE                 EE SD
PRIOR OCCASION. (Reversed). (Harrison County).

       COMMENT:     The prosecutor asked t h e w i t t h e "Q:  Did you and your f a t h e r ever have an
                    occasion t o discuss an attempt on your mother's p a r t t o poison him" with
                    t h e witness answering : "Yes, sir           ."
                                                               However, objection was sustained and




                                                                  August-September 1980NOICE for the Defense
                    i n s t r u c t i o n given t o t h i s . But, prosecutor couldn't l e t well enough
                    alone and i n another question r e f e r r e d back t o the above question.

        HELD :      The witness "had no f i r s t h a n d knowledge of such an attempt and h i s tesi t i -
                    mony concerning t h e matter was inadmissible hearsay." Because of t h e
                    weakness of t h e S t a t e ' s case, t h e continued action of t h e prosecutor made
                    the e r r o r r e v e r s i b l e r a t h e r than harmless.

                  TAG
J. ODOM WRITES A S R N E OPINION I N GRAYBILL, #59,519, 7/9/80, Panel # 3 , 2nd Q u a r t e r 1980,
AND MAY HAVE P T A DENT INTO T@ C O E JUXTAPOSITION RULE O EVIDENCE BY HOLDING IT WS
              U                    L S                      F                                 A
REVERSIBLE ERROR NOT TO CHAKGE ON CIRCUMSTANTIAL EVIDENCE.    (Reversed).   CHarrxs ~ 0 u n t y ) .

       COMMENT :    See Riggins, 468 (2) 841, where i t was ruled t h a t i f t h e f a c t s proved
                    were i n such c l o s e juxtaposition, o r i n c l o s e r e l a t i o n a s t o be equiva-
                    l e n t t o d i r e c t evidence a charge on circumstantial evidence is not re-
                    quired.

                    However, here, the D was charged with possession of a s h o r t - b a r r e l firearm.
                    A maid went t o a motel room t o clean same but when she knocked on the door
                    and asked i f anyone was present, she was greeted with s h o t s being f i r e d
                    a t her through t h e door. The police came but, by t h e time they a r r i v e d ,
                    t h e room was abandoned of persons but not goods. A subsequent i n v e s t i -
                    gation revealed one of t h e occupants t o t h e "shooting" room had gone i n t o
                    another room a t the motel, where police o f f i c e r s went and asked i f they
                    could come i n s i d e , and were t o l d "Yes," o r "Sure, come on in." The D
                    was seen lying on a bed, moving towards t h e end of t h e bed with one hand
                    out of s i g h t from Officer Martin. Another o f f i c e r then looked under t h e
                    bed and found a loaded, sawed-off shotgun. The D t e s t i f i e d he d i d n ' t
                    know nothing from nothing except he was t h e r e a s a guest of another and
                    had merely gone there t o "shoot up," which he did, and knew nothing about
                    a shotgun o r i t s presence.

       HL :
        ED          "In t h i s case appellant was l y i n g on t h e bed under which the shotgun was
                    found, and appeared t o be reaching toward where i t was located. However,
                    he was not seen i n physical possession of the weapon, was not alone i n
                    t h e room, and i t was not shown whether he was r e g i s t e r e d i n t h e room.
                    None of t h e motel employees who t e s t i f i e d and were asked were a b l e t o
                    i d e n t i f y appellant a s having been seen around t h e motel e a r l i e r i n the
                    day. Although t h e employees had seen s e v e r a l people connected w i t h t h e
                    shooting i n c i d e n t , the testimony was t h a t appellant was not any of those
                    people.

                    Since t h i s i s a possessory offense, w a r e unable t o draw a p a r a l l e l
                                                                e
                    between t h e circumstances r e l i e d upon t o prove possession here and i n
                    Belmarez, Crawford and Selman, on t h e one hand, and t h e strong circum-
                    stances held t o be t h e equivalent of d i r e c t testimony t h a t t h e defendant
                    was t h e a c t o r i n non-possessory offenses i n the cases of Ales v. S t a t e ,
                    587 S.W.2d 686, and Adams v. S t a t e , 588 S.W.2d 597, on t h e other hand.

                    When we compare the f a c t s of t h i s case with those of t h e t h r e e cases
                    quoted above,      c
                    s t a n t i a l evidence. It was r e v e r s i b l e e r r o r t o overrule h i s o b j e c t i o n and
                    deny t h e requested charge."




   VOICE for the DefenselAugust-September 1980
WRIT G A T D I N EX PARTE JIMMY D L CHANCE, #64,306, 7/9/80, J. P h i l l i p s , En Banc, with J.
      R NE                             AE
                                                  EA S H                 LE E
Douglas c a s t i n g a lone dissenting opinion, B C U E T E INDICTMENT A L G D AN IMPOSSIBLE
DATE.  [ W r i t Granted). ( B e l l County).

      COMMENT:   The Indictment was f i l e d on June 20, 1979, a l l e g i n g t h e d a t e of t h e of-
                 fense t o b e December 25, 1979.

      HL :
       ED        "The alleged d a t e of the c o m i s s i o n of t h e offense is a matter of sub-
                 stance, and cannot be amended," which t h e S t a t e attempted t o do i n t h i s
                 cause. This was fundamental e r r o r so no objections necessary.




EX PARTE JOE R. ALVAREZ, #64,821, 7/9/80, En Banc, Unanimous, J. Douglas, R T R S TO CCA,
                                                                                      EUN
SEE 566 (2) 612, where h i s conviction was reversed because the evidence was r u l e d i n s u f f i -
                                                                               RT          EA S
c i e n t t o show t h a t a linoleum k n i f e was a deadly weapon, AND GETS W I GRANTED B C U E O F
B R S AND GREENE.
 UK                        C W r i t Granted). CBexar County).

     COMMENT:    It appears t h a t a f t e r t h e r e v e r s a l t h e prosecutor and t h e D then worked
                 a deal whereby the D P f o r 8 years from t h e previous 18 ears' sentence
                                              G
                 he received, Cf. Harris, 860,321, 5/14/80, and he t h e r e a f t e r brought t h i s
                 writ.

E PARTE JERRY STEPHEN H L R O , 864,980, 7/9/80, En Banc, Unanimous, J . Dally, A S GETS
 X                      OBO K                                                        LO
HIS W I G A T D ON HIS CONVICTION F R A G A A E ROBBERY A INDICTMENT FAILED TO A L G
      RT R N E                      O   G R V TD                S                     LE E
THAT THE D HAD THE "INTENT TO OBTAIN AND MAINTAIN CONTROL OF THE PROPERTY," A NECESSARY
E E E T O THE OFFENSE O AGGRAVATED ROBBERY.
 LMN     F              F                       ( W r i t Granted). (Potter County).

EX PARTE ROBERT SNELSON, 864,980, 7/9/80, En Banc, Unanimous, J. Dally, ALSO GETS HIS WRIT
                           O                          S                   LE E
GRANTED ON HIS CONVICTION F R AGGRAVATED ROBBERY A INDICTMENT FAILED TO A L G THAT THE D
     H                                             F                 E ES R   LMN     F
HAD T E "INTENT TO OBTAIN AND MAINTAIN CONTROL O THE PROPERTY," A N C S A Y E E E T O THE
OFFENSE O AGGRAVATED ROBBERY.
         F                      [ W r i t Granted)     .
                                                     (Potter County)          .
 O EE,                         AS N
H W V R EX PARTE RONALD LEE W T O , #64,615, 7/9/80, En Banc, Unanimous, J. P h i l l i p s ,
DOESN'T GET ANY RELIEF I N HIS CLAIM THE C S WS FILED I N THE WRONG COURT.
                                          AE A                              ( W r i t Denied).
(Callahan County).

     HL :
      ED         "It i s apparent t h a t , s t r i c t l y a s a matter of j u r i s d i c t i o n ,
                 a d i s t r i c t court may t r y any case i n which t h e offense takes place within
                 t h e State. O course, i n a given case venue may not be proper under t h e
                                         f
                 provisions of Chapt. 1 3 of the Code of Criminal Procedure. The f a i l u r e
                 t o comply with those provisions, however, does not deprive t h e d i s t r i c t
                 court of j u r i s d i c t i o n . Ultimately, whether t h e provisions of Chapter 13
                 a r e enforced depends on whether t h e defendant a s s e r t s h i s r i g h t s under
                                                 e
                 those provisions. W conclude t h a t t h e t r i a l court i n t h i s case had
                 j u r i s d i c t i o n of the cause even i f venue were improper."

     O MN:
     CM ET       Here, t h e D claimed the place of t h e offense was Taylor County but t h a t he
                 was indicted and t r i e d i n Callahan County. It i s not shown how t h i s oc-
                 curred other than i t occurred.



                                                              August-September 1980NOICE for the Defense
                         I n t e r e s t i n g l y , A r t i c l e Y I , of t h e U.S. C o n s t i t u t i o n , provides, i n p a r t :
                         ''In a l l c r i m i n a l p r o s e c u t i o n s , t h e accused s h a l l enjoy t h e r i g h t t o a
                         speedy and p u b l i c t r i a l , by a n i m p a r t i a l j u r y of t h e S t a t e and d i s t r i c t
                         wherein t h e crime s h a l l have been committed, which d i s t r i c t s h a l l have
                         been p r e v i o u s l y a s c e r t a i n e d by law.  ..     I,




                         However, t h e r e does n o t seem t o be a c o r r o l l a r y amendment i n t h e Texas
                         C o n s t i t u t i o n . Thus, i t seems, f o r example, i f no o b j e c t i o n s were r a i s e d ,
                         a D who i s accused of committing a crime i n Cameron County could be
                         i n d i c t e d and t r i e d i n P o t t e r County. Although i t would probably be a
                         s h o r t l i v e d v i c t o r y , I ' l l b e t i t would, n e v e r t h e l e s s , s c a r e h e l l o u t of
                         some D i f a p r o s e c u t o r had t h e D i n d i c t e d i n somg f a r o f f county.

                                                  EK F
                                OPINIONS FOR THE W E O JULY 1 6 , 1980

COLLINS' REYERSAL, SEE NOV., 1979, S.D.R., P. 9 , STANDS ON SMRH, #58,247, 7/16/80, J.
C l i n t o n , En Banc, w i t h J . R o b e r t s , j o i n e d by Judges D a l l y and P h i l l i p s , c o n c u r r i n g w i t h
                       A                     U
o p i n i o n , WHICH W S OVERRULED, B T OPINION I S ORDERED WITHDRAWN.                        (SMRH Overruled).                (Bowie
County).

         COPIMENT:       O r i g i n a l l y , a p a n e l of t h e CCA, p e r J. T. Davis, r e v e r s e d f o r f a i l u r e of
                         t h e S t a t e t o prove p e n e t r a t i o n i n t h i s r a p e of a c h i l d c o n v i c t i o n .

        HELD :           Here, however, t h e CCA r u l e d t h a t " t h e testimony of Lula Mae Williams and
                         Carol Nowlin r e l a t i n g s t a t e m e n t s made by t h e minor complainant w e l l a f t e r
                         t h e event i s hearsay t h a t was n o t a d m i s s i b l e a s r e s gestae."           "Clearly
                         t h e h e a r s a y i s damaging and t h e two e r r o r s i n a d m i t t i n g i t a r e r e v e r s i b l e . "
                         See Oldam v . S t a t e , 322 (2) 616. F u r t h e r , t h i s was n o t harmless e r r o r
                         as: "There i s a r e a s o n a b l e p o s s i b i l i t y t h a t t h e hearsay testimony con-
                         t r i b u t e d t o t h e c o n v i c t i o n of D."

        NT :
         OE             J . R o b e r t s , i n w r i t i n g f o r t h e c o n c u r r e r s , d i s c u s s e d t r i a l e r r o r v s . in-
                        s u f f i c i e n c y of t h e evidence. He was a l s o concerned about some of t h e
                        language i n t h e M a j o r i t y ' s opinion.              I n l i g h t of Burks and, -G                       he
                        s a i d : "The g e n e r a l p r i n c i p l e mandated by our double jeopardy p r o v i s i o n s
                        i s t h a t t h e S t a t e a c t s a t i t s p e r i l i f i t f a i l s t o p u t on s u f f i c i e n t proof."
                        "We should n o t b e understood t o say t h a t t h e S t a t e can u n j u s t i f i a b l y r e l y
                        on improper proof w h i l e holding back i t s a v a i l a b l e proper proof f o r t h e
                        r e t r i a l which w i l l f o l l o w a p p e l l a t e r e v e r s a l . "     "Today's opinion should
                        n o t be r e a d t o a u t h o r i z e a n o t h e r t r i a l when t h e r e has been a n u n j u s t i f i e d
                        f a i l u r e by t h e S t a t e t o 'muster, assemble, and l a y b e f o r e t h e j u r y a l l
                        evidence known and a v a i l a b l e . "

PUT E K A I N YOUR D.W.I.
         CMN                             N T BOOK, #58,794, 7/16/80, J. Odom, En Banc, w i t h J. W. C. Davis
                                           OE
d i s s e n t i n g without o p i n i o n , AS H GETS A REVERSAL ON HIS MRH, (Case was o r i g i n a l l y affirmed
                                                E
o n 4/30/80, by P.C.), BY SUBMITTING A REQUESTED CHARGED, I N THIS D . W . I .               CASE, REGARDING SEC.
2.05, P.C., R PRESUMPTION, AND IT W S DENIED.
                      E                            A           (Reversed).  ( H a r r i s County).

        COMblENT:       The t r i a l c o u r t i n s t r u c t e d t h e j u r y by t h e u s u a l "presumption i n a D.W.I.
                        case" charge a t t h e t r i a l , b u t f a i l e d t o embellish on t h i s , though re-
                        quested t o do s o , by a l s o charging t h e j u r y on Sec. 2.05, P.C.

        HELD :          " e hold t h e d e n i a l of D ' s r e q u e s t e d charge v i o l a t e d t h e mandate of Sec.
                         W
                        2.05 and c o n s t i t u t e d r e v e r s i b l e e r r o r . "      "We a l s o observe t h a t t h e charge
                        a c t u a l l y g i v e n i n s t r u c t e d t h e j u r y t h a t t h e presumption 'may be overcome



 VOICE for the DefenselAugust-September 1980
                     by e v i d e n c e , ' w h i l e i t n e g l e c t e d t o inform t h e j u r y , a s r e q u i r e d by Sec.
                     2.05, t h a t if i t had ' a r e a s o n a b l e doubt a s t o t h e e x i s t e n c e of a f a c t
                     o r f a c t s g i v i n g rise t o t h e presumption, t h e presumption f a i l s and t h e
                     j u r y s h a l l n o t c o n s i d e r t h e presumption f o r any purpose."               "In t h i s r e s p e c t
                     t h e charge was a t b e s t confusing, and could have s h i f t e d t h e burden of
                     proof i n t h e minds of t h e j u r o r s . "

EVANS,        863,859, 7/16/80, a d e a t h p e n a l t y c o n v i c t i o n , GETS REVERSAL, En Banc, J. P h i l l i p s ,
w i t h J. Douglas d i s s e n t i n z w i t h s h o r t o ~ i n i o n .and w i t h P. J. Onion.z i o i n e d hv,T - Odom.
                                                                                                              - ..    -
c o n c u r r i n g w i t h o p i n i o n , FOR FAILURE OF'TCI TO C A G T E JURY, A THE PUNISHMENT
                                                                         HRE H               T
                                                                                                  d   -
                                                                                                                              STAG^
OF THE TRIAL, ON TIiE THIRD QUESTION U D R ART. 37.071, C.C.P., R "IF RAISED BY THE EVI-
                                                        NE                                  E
DENCE, W E H R THE CONDUCT OF T E D I N KILLING T E DECEASED W S UNREASONABLE I N RESPONSE
                 HT E                             H                      H                A
T T E PROVOCATION. I F ANY. BY THE DECEASED."
 O H                                                                    (Reversed).      (Harris County).

       O MN:
       CM ET         This c a s e almost proves a p o i n t and t h a t is have you e v e r n o t i c e d t h a t some
                     t r i a l judges, i n d e a t h p e n a l t y c a s e s , who a l l o w d e f e n s e c o u n s e l a f r e e
                     r e i n during t h e trial a s w e l l a s g i v i n g him o r h e r almost e v e r y t h i n g b u t
                     t h e k i t c h e n s i n k i n t h e charge r a r e l y g e t r e v e r s e d b u t t h o s e who p l a y i t
                     c l o s e t o t h e v e s t are t h e ones most a p t t o g e t r e v e r s e d i n t h i s t y p e c a s e ?

                     Here, by t h e D ' s c o n f e s s i o n , p a r t of which was i n t r o d u c e d by t h e S t a t e
                     and p a r t by t h e Defense, i t showed, i n p a r t : "When I g o t up t o t h e c o u n t e r
                     I came up w i t h t h e p i s t o l , and jumped over it." "The o l d man t o o k a s t e p
                     back and then h e came up w i t h a p i s t o l , I don't know where i t came from."
                     "He had i t pointed a t m e and he shot." "I s t a r t e d s h o o t i n g and he s h o t
                     some more."
                     I,
      HELD :          The t h i r d punishment i s s u e r e q u i r e s more t h a n a r e a f f i r m a t i o n of t h e
                    g u i l t y verdict."       "Thus, an imperfect s e l f - d e f e n s e i s s u e , even i f s o im-
                    p e r f e c t t h a t i t would n o t j u s t i f y r e d u c t i o n t o manslaughter, s h o u l d be
                    considered s u f f i c i e n t t o r a i s e t h e i s s u e and r e q u i r e t h e provocation ques-
                    t i o n t o b e submitted."
                    It
                      When we a p p l y o u r c o n s t r u c t i o n of t h e t h i r d punishment i s s u e t o t h e f a c t s
                    i n t h e p r e s e n t c a s e , i t i s c l e a r beyond doubt t h a t D was e n t i t l e d t o have
                    t h i s i s s u e submitted t o t h e jury."           "The t r i a l c o u r t e r r e d i n o v e r r u l i n g
                    D ' s r e q u e s t t o have t h e t h i r d punishment i s s u e submitted t o t h e jury."

      NOTE :        The M a j o r i t y a l s o h e l d t h a t t h e D ' s o r a l o b j e c t i o n t o t h e charge, which
                    was i n t h e form of a r e q u e s t , w a s s u f f i c i e n t t o p r e s e r v e e r r o r .

                    R e v e r s i b l e e r r o r a l s o occurred i n t h i s cause because t h e t r i a l c o u r t e r r e d
                    i n o v e r r u l i n g t h e D ' s motion t o quash t h e indictment because i t f a i l e d t o
                    s t a t e t h e name of t h e a l l e g e d robbery victum.

                    J. Douglas s a i d e v e r y t h i n g was muy bueno i n t h i s c a s e and P. J. Onion,
                    j o i n e d by J. Odom, s a i d t h e C A should n o t g o beyond r e v e r s i n g t h e c a s e
                                                             C
                    because of t h e f a u l t y indictment.

J. CLINTON, I N CLEMONS, 858,993, 7/16/80, P a n e l 1/3, 2nd Q u a r t e r 1980, RULES THAT REVERSIBLE
        O                                HN H C                    O RN
ERROR, N T HARMLESS ERROR. OCCURRED W E T E T X FAILED T G A T D'S HOTION T SUPPRESS     O
CERTAIN EVIDENCE OBTAINED AS A RESULT OF AN ILLEGAL SEARCH AND SEIZURE. (Reversed).               CTravis
County). Note: D on t r i a l f o r aggravated h i j a c k i n g .




                                                                            August-September 1980lVOICE for the Defense
       COMNENT:     A f t e r h i j a c k i n g and wounding t h e C/W i n Austin, t h e D, w i t h h e r c o m p a t r i o t s ,
                    took off and she ended up i n a Kansas C i t y , M i s s o u r i motel room w i t h h e r
                    husband, a Co-D.                 A s a r e s u l t of a c a l l complaining of a i I i 3 t l k a n c e by
                    t h e occupants of t h e motel room, a s w e l l a s an anonymous phone c a l l ad-
                    visi~g        one of t h e a r r e s t i n g o f f i c e r s t h a t t h e occupants of t h e motel room
                    were armed w i t h shotguns and had a l l e g e d l y committed s e v e r a l r o b b e r i e s ,
                    p o l i c e went t o t h e m o t e l room, knocked on t h e door and were g r e e t e d by
                    t h e D ' s husband who was informed why t h e p o l i c e were t h e r e , r e t h e d i s t u r -
                    bance c a l l , and were i n v i t e d i n t o t h e m o t e l room.              I n s i d e t h e motel room,
                    one of t h e o f f i c e r s advised t h e D ' s husband about t h e i n f o r m a t i o n he had
                    r e c e i v e d r e g a r d i n g a sawed o f f shotgun, w i t h t h e D ' S husband denying any
                    knowledge of t h i s . The D, being i n a r e l a t i v e modest s t a t e of u n d r e s s ,
                    commenced backing toward a s u i t c a s e t o p u t a blouse on. She was t o l d t o
                    h a l t , and, upon i n v e s t i g a t i o n of an open s u i t c a s e nearby, t h e o f f i c e r found
                    a loaded r e v o l v e r . An N . C . I . C .        check r e v e a l e d t h a t D ' s husband was wanted
                    o u t s i d e of t h e Kansas C i t y a r e a . While u s h e r i n g t h e D s o u t of t h e m o t e l
                    room, t h e o f f i c e r saw a sawed-off shotgun under a nearby bedspread.

                    A f t e r t h i s , a g e n e r a l w a r r a n t l e s s s e a r c h of t h e motel room occurred w i t h
                    t h e o f f i c e r s f i n d i n g a d d i t i o n a l weapons a s w e l l a s n a r c o t i c s p a r a p h e r n a l i a
                    and what appeared t o be h e r o i n was admitted i n t o evidence a t t h e t r i a l of
                    t h e D.

       HELD :       J. C l i n t o n f i r s t r u l e d t h a t t h e e n t r y i n t o t h e motel room was g r a n t e d by
                    n o t h i n g more than acquiesence t o a c l a i m of lawful a u t h o r i t y . Thus,
                    f i n d i n g no l a w f u l consent t o t h e e n t r y by t h e p o l i c e and then due t o
                    a l a c k of a warrant t o s e a r c h t h e room, a l l of t h e evidence s e i z e d became
                    inadmissible        .
       NOTE :       It j u s t seems t o me t h a t something is o u t of k i l t e r and it may be t h a t
                    t h e p r o s e c u t o r f e l t s o c o n f i d e n t about h i s c a s e t h a t h e d i d n o t d e v o t e
                    s u f f i c i e n t time i n h i s p r e p a r a t i o n t o g e t around some of t h o s e "techni-
                    c a l i t i e s " we a l l h e a r about from time t o time. Perhaps h i s t h o u g h t s were
                    on a young maiden o r some o t h e r engagement h e had planned f o r t h e evening
                    i n t h e way of a v i c t o r y c e l e b r a t i o n a f t e r t h e t r i a l ended.

J. CLINTON, I N ALEXANDER, #59,164, 7\16/80, P a n e l #3, 2nd Quarter 1980, FINDS JURY MIS-
CONDUCT AND ORDERS CONVICTION REVERSED.                        (Reversed).           (Erath County).

       O MN:
       CM ET        It appears by t h e opinion t h a t , f o r whatever reason, t h e v o i r d i r e examina-
                    t i o n of t h e j u r y p a n e l by d e f e n s e c o u n s e l would n o t be s u f f i c i e n t t o g e t
                    a very h i g h grade a s , b u t f o r one p r o s p e c t i v e j u r o r , i t seems t h a t t h e D
                    had a s t a c k e d deck a g a i n s t him.

                    What caused t h e r e v e r s a l i s t h a t one of t h e j u r o r s was s o b i a s e d t h a t he
                    s a i d t o t h e o t h e r s : "If I had been c a l l e d a s a c h a r a c t e r w i t n e s s , I
                    would have s a i d h i s c h a r a c t e r was bad."

      NT :
       OE           J. Sam a l s o pointed o u t , by d i c t a , t h a t t h e S t a t e might have l o s t t h e c a s e
                    on a q u e s t i o n a b l e s e a r c h w a r r a n t o r what was s e i z e d a s a r e s u l t of t h e
                    e x e c u t i o n o f t h e s e a r c h warrant as i t went beyond t h e terms of t h e w a r r a n t .

I                                              m                                                                     N
ALSO REVERSED NONTEZ, #59,179, 7/16/80, w i t h J. T. Davis d i s s e n t i n g w i t h o u t o p i n i o n , P a n e l
83, 2nd Q u a r t e r 1980. (Reversed)           .
                                       (Dallas County).



  VOICE for the DefenselAugust-September 1980
COMMENT:   The f a c t s showed t h a t a Dallas police o f f i c e r , based on information from
           an informant, went and got a search warrant t o search D ' s residence and
           a r r e s t the D. However, enroute t o the residence, t h e informant t o l d t h e
           o f f i c e r t h a t the D was a t another location dividing up a quantity of
           marijuana i n excess of 100 pounds. Officer then deviated and went t o
           t h a t location. After finding t h e D, t h e o f f i c e r asked f o r and received
           t h e keys t o an automobile's trunk where a search revealed a quantity of
           marijuana. After taking c a r e of t h i s problem t h e o f f i c e r then went t o
           t h e residence of t h e D, executed t h e search warrant r e s u l t i n g i n t h e
           s e i z u r e of 200 pounds of marijuana.

HELD:      Drawing a d i s t i n c t i o n between mobility and non-mobility of an automobile,
           J. Sam ruled t h a t "The automobile t h a t Koop I t h e o f f i c e r ] was determined
           t 4 search was then and t h e r e n e i t h e r moving nor moveable."       "The s t r i c t e r
           t h e confinement, the higher is t h e protection against a warrantless seizurl
           and search of h i s motor vehicle."           W
                                                        " e must conclude t h a t the S t a t e did
           not discharge i t s burden of proving t h a t the automobile exception f i t s
           t h i s case."




HELD :     "The punishment f o r felony t h e f t of property having a value of l e s s than
           $200, 631.03Ca) (4) (C), may be enhanced under 612.42Ca) or (d) only if
           t h e p r i o r felony convictions used f o r t h a t purpose a r e f o r an offense
           other than t h e f t . Stated i n t h e converse, p r i o r felony t h e f t convictions
           may not be used t o enhance, pursuant t o 612.42Ca) o r Cd), the punishment
           f o r felony t h e f t of property having a value of l e s s than $200.00.
           Accordingly, t h e judgment i n t h i s case must be reversed.
           ,I
             A defendant's p r i o r t h e f t convictions, regardless of t h e i r number o r de-
           gree, cannot serve t o enhance t h e punishment f o r a subsequent t h e f t of
           Less than $200 beyond t h a t of a third-degree felony. Thus, t h e punishment
           f o r a subsequent t h e f t of l e s s than $200 under §31.03Cd)(4)(C) may n o t
           be enhanced pursuant t o §12.42(a) o r (d) by proof of one o r more additional
           p r i o r felony t h e f t convictions. To t h i s e x t e n t , 631. O3(d) (4) (C) con-
           s t i t u t e s a s p e c i a l enhancement s t a t u t e which controls over t h e provisions
           of 612.42. "

COMMENT:   Here, t h e D was charged by Indictment with t h e f t of l e s s than $200.00.
            w
           T o (2) p r i o r felony convictions, one f o r murder and one f o r t h e f t , were
           alleged f o r enhancement of punishment. The murder a l l e g a t i o n was sub-
           sequently abandoned by t h e S t a t e .

            Here,under Sec. 31.03(d)(4)(c), P.C., i f a D i s accused of s t e a l i n g pro-
           perty bhich has a value of l e s s than $200.00, i f the D has been previously
           convicted two o r more times of any grade of t h e f t , then i t i s a t h i r d
           degree felony. Thus, a s t h e S t a t e had only one (1) p r i o r t h e f t conviction,
           the S t a t e could not make i t i n t o a t h i r d degree felony under t h a t s t a t u t e .

           However, i t was held t h e S t a t e could have brought t h e a c t i o n under Sec.12.4
           P.C., i f it had not abandoned the murder conviction. How? This doesn't
           appear t o be correct. See Sec. 12.43(a), and 31.03(d) C3), P.C.


                                                     August-September 196'OIVOICE for the Defense
    I   HOIJEYER, SEE FOSTER, 863,415, 7/16/80, J. Roberts, P a n e l $3, 3 r d Quarter 1980, W E E T E
                                                                                               HR H
            A           S                                                                    VR
        D W S CHARGED A A HABITUAL CRIMINAL WITH THE PRIMARY ALLEGATION BEING THEFT O E $20 B T       U
         NE           U
        U D R $200, B T WITH TWO PRIOR FELONY THE= CONYICTIONS AND O E PRIOR MISDEMEANOR THEFT
                                                                          N
        CONVICTION ALLEGED T M K I T A THIRD DEGREE FELONY A D STATE ALSO ALLEGED T O PRIOR CONVICTIONS
                             O AE                              N                          W
    I
        FOR BURGLARY AND FELONY POSSESSION OF HEROIN TO MAKE THE ACCUSATION A HABITUAL UNDER
        SEC. 12.42.   (Affirmed).  ( H a r r i s County).
I
I
              HL :
               ED        "Where a f e l o n y o f f e n s e i s p r o p e r l y charged s u b j e c t t o t h e p r o v i s i o n s of
                         Sec. 31.03(d) (4) (C) , P. C., enhancement c o u n t s may be a l l e g e d a c c o r d i n g
                         t o Sec. 12.42@), P.C., based upon p r i o r c o n v i c t i o n s f o r non-theft f e l o n y
                         offenses."
                         I,
              HELD :       H.is s t i p u l a t i o n of evidence, a s t o t h e one (1) f e l o n y t h e f t c o n v i c t i o n a l -
                         leged t o enhance i t t o a t h i r d degree f e l o n y rendered t h e e v i d e n c e suf-
                         f i c i e n t and t h e misdemeanor t h e f t c o n v i c t i o n rendered t h e evidence s u f f i c i e n t
                         t o make t h e t h i r d degree f e l o n y a c c u s a t i o n and h i s p l e a of t r u e t o t h e o t h e r
                         enhancement a l l e g a t i o n s was s u f f i c i e n t t o s u p p o r t t h e l i f e s e n t e n c e a f t e r h e
                         was found g u i l t y . "

1             HELD:      Although t h e t r i a l c o u r t charged on t h e law o f c i r c u m s t a n t i a l evidence,
                         a s D d i d n o t o b j e c t , h e cannot now complain t o t h e TCt s o charging.

              HELD:      Though no i n v e n t o r y of t h e s t o l e n missing tires had been conducted p r i o r t o
                         t h e i n c i d e n t , n e v e r t h e l e s s , based on t h e evidence, which was c i r c u m s t a n t i a l ,
                         i t was s u f f i c i e n t t o s u s t a i n t h e v e r d i c t of t h e j u r y .

        J. DALLY, I N DAVIDSON, #59,377, 7/16/80, P a n e l #1, 2nd Q u a r t e r 1980, RULES THAT EVIDENCE
        WAS INSUFFICIENT T ESTABLISH T A THE KNIFE THE D EXHIBITED T THE C/W W S A DEADLY W A O
                           O                  HT                                O           A             EPN
        AND ORDERS CONVICTION FOR A G A A E ROBBERY REVERSED B T STATE MAY T Y T E D FOR ORDINARY
                                       G R V TD                     U                   R   H
        ROBBERY.   (Reversed).  ( T r a v i s County).

              O MN:
              CM ET      D was charged by Indictment w i t h "using and e x h i b i t i n g a d e a d l y weapon,
                         to-wit:  a k n i f e , [and he] i n t e n t i o n a l l y and knowingly t h r e a t e n e d and
                         placed John Coleman i n f e a r of imminent b o d i l y i n j u r y and death.                           . ."
                         I,
              HELD :       I n t h e p r e s e n t c a s e Coleman s u f f e r e d no wounds. H e t e s t i f i e d t h e b l a d e
                         of t h e k n i f e was from 2 112 t o 3 i n c h e s long, and t h e o t h e r w i t n e s s e s
                         d e f e r r e d t o h i s judgment. Coleman was 5 o r 6 f e e t away when a p p e l l a n t
                         g e s t u r e d a t him w i t h t h e k n i f e , and h e d i d n o t come c l o s e r . H e t e s t i f i e d
                         t h a t h e w a s i n f e a r of s e r i o u s b o d i l y i n j u r y o r d e a t h , b u t e x p l a i n e d t h i s
                         was because a f r i e n d o f h i s had p r e v i o u s l y been h u r t i n an encounter i n a
                         parking l o t by a n a s s a i l a n t wielding a screwdriver. The k n i f e w a s n o t
                         introduced i n t o evidence, n o r d i d t h e S t a t e e s t a b l i s h its p o s s i b l e poten-
                         t i a l f o r harm through h y p o t h e t i c a l q u e s t i a n s t o a n e x p e r t on weapons.

                         Even though t h e r e was proof of t h e k n i f e ' s s i z e , we f i n d as i n Alvarez,566(2)612
                         t h a t t h e evidence i n t h e p r e s e n t c a s e is i n s u f f i c i e n t t o show t h a t t h e
                         defendant used o r i n t e n d e d t o u s e t h e k n i f e s o as t o i n f l i c t s e r i o u s
                         b o d i l y harm o r death. See H a r r i s v. S t a t e , 562 S.W.2d 463, and c a s e s
                         t h e r e discussed. Cf. Dominique v. S t a t e , #58,973 (5/7/80).                            The evidence
                         is t h e r e f o r e i n s u f f i c i e n t t o show t h a t t h e a p p e l l a n t used o r e x h i b i t e d a
                         "deadly weapon," t h e r e b y committing aggravated robbery a s a l l e g e d i n t h e
                         indictment. "

        J. PHILLIPS, I N INZER, #59,424, 7/16/80, P a n e l #2, 2nd Q u a r t e r 1980, RULES THAT TCT RE-
        VERSIBLY ERRED BY TAILING T GIVE C A G T ACQUIT T E D I F THE JURY F U D T A HE W S
                                    O       HRE O                H                       ON    HT      A
        CARRYING A MACHETE DIRECTLY H M AFTER LENDING IT T A THIRD PERSON, HIS FATHER.
                                      OE                        O                                    (Reversed).
        ( H a r r i s o n County).


           VOICE for the DefenselAugust-September 1980
      O MN:
      CM ET       J. P h i l l i p s , i n h i s o p i n i o n , d i s c u s s e d both s t a t u t o r y law a s w e l l a s c a s e
                  law d e f e n s e s t o t h e o f f e n s e of unlawfully c a r r y i n g a weapon--here, t h e D
                  was charged w i t h unlawfully c a r r y i n g a k n i f e .

      9:          A s Sec. 46.01, P.C., d e f i n e s a n " i l l e g a l k n i f e " t o be one of s e v e r a l
                  t h i n g s ( 6 ) , i f t h e S t a t e merely a l l e g e s a n " i l l e g a l k n i f e , " would a mo-
                  t i o n t o quash f o r f a i l u r e t o be more s p e c i f i c i n t h e a l l e g a t i o n s n o t be
                  good?

J . CLINTON, I N THORNTON, 1/60,310 & 218, 7/16/80, En Blanc, w i t h J. D a l l y , j o i n e d by Judges
Onion, Douglas and T. Davis, d i s s e n t i n g w i t h o p i n i o n , RULES T A W E A JUDGMENT I S RE-
                                                                                H T HN
                                                                         ,
VERSED FOR-FAILURE T COMPLY W I T H ART.-1. 1 5 , C c .?. .RETRIAL O THE D W U D PLACE HIM
                        O                                 :                      F      OL
                              A E
TWICE I N JEOPARDY FOR THE S M OFFENSE, VIOLATING HIS RIGHTS A C R E BY T E 5TH A E D E T
                                                                                 CODD      H        MN MN
 O                       F H                                                              MH
T THE CONSTITUTION O T E UNITED STARES~. (SMRH denied i n one c a s e and D R g r a n t e d i n
o t h e r case). a all as County).
      O MN
     C M E T:     O r i g i n a l l y , i n one cause, See Dec., 1979, S.D.R., p. 9, t h e D ' s o r d e r of
                  r e v o c a t i o n was set a s i d e a s it was p r e d i c a t e d upon no evidence t o s u p p o r t
                  a p l e a of g u i l t y conviction.          It appears t h a t a f t e r t h e S t a t e f i l e d i t s
                  motion t o revoke and a h e a r i n g was h e l d t h a t a n o t h e r motion t o revoke
                  was f i l e d and a n o t h e r h e a r i n g was h e l d , and t h a t o r d e r of r e v o c a t i o n was
                  appealed but c o n t r a r y t o t h e o t h e r o r d e r of r e v o c a t i o n t h a t c a u s e was
                  a f f i r m e d i n a P.C. opinion.

     9:           Do            and Greene a p p l y t o p l e a        of g u i l t y c o n v i c t i o n s ?

     A:           Yes.

     HELD :       "Therefore, based on deeply f e l t and s t o u t l y maintained c o n s i d e r a t i o n s of
                  p u b l i c p o l i c y t h a t produced, i n t e r a l i a , A r t . I, $10 & 15, of t h e Consti-
                  t u t i o n of Texas and A r t . 1.15 of i t s code of c r i m i n a l procedure, and bor-
                  rowing t h e Burks-Greene r a t i o n a l e , we h o l d t h a t t h e jeopardy p r o s c r i p t i o n s
                  of A r t . I, $15 of t h e C o n s t i t u t i o n of Texas and i t s implementing s t a t u t o r y
                  p r o v i s i o n s a r e f u l l y a p p l i c a b l e t o a t r i a l of g u i l t y p l e a where t h e evi-
                  dence introduced by t h e S t a t e t o show t h e g u i l t of a n accused and a c c e p t e d
                  by t h e t r i a l c o u r t f a i l a s a m a t t e r of l a w t o c o n s t i t u t e s u f f i c i e n t evi-
                  dence t o support t h e judgment of c o n v i c t i o n . "

     NOTE :       The d i s s e n t e r s would have r u l e d t h a t t h i s was t r i a l e r r o r , n o t s u f f i c i e n c y
                  of t h e evidence e r r o r . "It [ t h e c o n v i c t i o n ] is being r e v e r s e d because
                  t h e t r i a l c o u r t i n c o r r e c t l y a c c e p t e d , i n a t t e m p t i n g t o comply w i t h A r t .
                  1.15, a s t i p u l a t i o n of evidence t h a t was n o t s u f f i c i e n t t o s u p p o r t t h e
                  p l e a . " T h e i r f e a r , of course, i s t h a t : "If t h e m a j o r i t y i n t e k p r e t s Burks
                  and Greene, a s they do h e r e , t h e y w i l l ,           ...             , n e e d l e s s l y and w i t h o u t
                  l a w f u l reason r e q u i r e t h e a c q u i t t a l of many c r i m i n a l s who have e n t e r e d p l e a s
                  of g u i l t y . "

     C M E T:
      O MN        I d o n ' t t h i n k s o b u t I do t h i n k t h a t what t h i s d e c i s i o n does i s t o send
                  o u t t h e word t o p r o s e c u t o r s and t r i a l judges t h a t t h e y had b e t t e r , i n
                  p l e a of g u i l t y s i t u a t i o n s , watch t h e i r i ' s and t ' s and make s u r e t h e y a r e
                  d o t t e d and crossed; o t h e r w i s e , they may be causing t h e a c q u i t t a l of many
                  c r i m i n a l s ; n o t t h e CCA.




                                                                      August-September 1980IVOICE for the Defense
    1   COUNSEL'S E R N O S ADVICE TO D BURNS, 164,115, 7/16/80, J. T. Davis, En Banc, Unanimous,
                    ROEU
        RESULTS I N D GETTING WRIT GUNTED.  (Writ Granted). (Dallas County).

             COMMENT:    Here, D was charged with a s s a u l t with i n t e n t t o murder a p o l i c e o f f i c e r
                         and murder with malice. About s i x (6) months after Furman and Branch
                         were handed down, on advice of counsel t h a t t h e D had b e t t e r plead g u i l t y
                         and receive l i f e r a t h e r than r i s k t h e death penalty (a l e g a l impossibility
                         due t o Furman and Branch), t h e D entered pleas of g u i l t y and got 2 l i f e
                         sentences.

             HELD:        "A p l e a of g u i l t y is not knowingly and v o l u n t a r i l y entered i f i t i s made

i                         a s a r e s u l t of i n e f f e c t i v e a s s i s t a n c e of counsel."

        J. DALLY, I N ORDERING A POST-CONVICTION WRIT GRANTED, WRITES ON AN INTERESTING QUESTION I N
        E PARTE GUTIERREZ, #64,190, 7/16/80, En Banc, Unanimous. (Writ Granted). (Val Verde
         X
        County).
         '               Here, D w a s charged by indictment with t h e felony offense of aggravated
             COMMENT:
                         kidnapping, but was found g u i l t y of f a l s e imprisonment. He argued i n h i s
                         w r i t t h a t he was only convicted of misdemeanor, not felony, f a l s e im-
                         prisonment.

             HL :
              ED         "During t h e guilt-innocence phase of t h e t r i a l t h e jury was simply not
                         charged on t h e felony offense of f a l s e imprisonment." "When t h e jury
                         found t h e D g u i l t y of t h e misdemeanor offense of f a l s e imprisonment t h e
                         D was acquitted of a l l higher offenses."         "Re is e n t i t l e d t o be released
                         from confinement a s he has been incarcerated f o r longer than 180 days i n
                         j a i l , t h e maximum f o r t h i s offense.''

        E PARTE MITCHELL, WHO I S A C S D O CAPITAL MURDER, #64,522, 7/16/80, J. Roberts, Panel
         X                         C UE    F
        81, 2nd Quarter 1980, GETS ORDER SETTING ASIDE TCT'S ORDER DENYING BAIL AND ALSO SETTING
        BAIL ON AN UNRELATED CASE. (Writ Granted). (Smith County).

             COMMENT:    The S t a t e simply did not put on any evidence, outside of an accomplice,
                         t o support detaining t h e D without b a i l on h i s c a p i t a l murder accusation.

                         Also, without any l e g a l b a s i s shown, t h e TCt, on an unrelated case, when
                         he denied b a i l i n t h e c a p i t a l murder case, a l s o s e t b a i l on t h e case which
                         was a c t u a l l y pending i n a J.P. court. Held, t h i s a c t i o n i s n u l l and void.




             COMMENT:    Where defense counsel is seeking e i t h e r a reduction of b a i l o r t o have
                         b a i l s e t i f none s e t , t o eliminate a possible remand, i f successful on
                         appeal, put i n t o evidence t h e amount of b a i l t h a t might otherwise be f i x e d
                         o r what might be considered reasonable b a i l i f b a i l is set on t h e c a s e by
                         t h e CCA.

        SEE A S EX PARTE C A L S P U JACKSON, R65,243, 7/16/80, J. Clinton, En Banc, Unanimous,
             LO             H RE AL
        WHERE CCA ORDERED TCT TO HOLD HEARING ON D'S WRIT F R BAIL WHERE HE HAD RECEIVED 15 Y A S
                                                           O                                 ER
        CONFINEMENT I N T E T.D.C.
                         H         (Writ Granted). (Burnet County).

             COMMENT:    Although t h e CCA has, i n t h e past, discussed and resolved t h e i s s u e con-

        VOICE for the DefensHAugust-September 1980                                                               SD-13
                   cerning t h e s t a t u t e s and b a i l pending appeal, nevertheless, many t r i a l
                   court judges have considered t h e s t a t u t e s a s though they a r e i n c o n f l i c t
                   r e more than 10 years and 15 years o r l e s s and b a i l .

                  The following is t h e r u l e a s succinctly s t a t e d by J. Clinton:
                        II   In view of t h e circumstances we confront here and, indeed, with es-
                       c a l a t i n g recurrence--i.e.,        i n which an appealing convict i s confined
                       i n t h e S t a t e penitentiary on a sentence of more than 10 years, by
                       order of t h e t r i a l court pursuant t o A r t . 42.09, S4, C.C.P., but who,
                       on t h e a u t h o r i t y of A r t . 44.04(c3, C.C.P., is e n t i t l e d t o reasonable
                       b a i l (absent a finding of good cause t o deny such b a i l ) by v i r t u e of
                       h i s sentence being not g r e a t e r than 15 years, without t h e e f f e c t u a t i o n
                       of h i s due process r i g h t t o a hearing on h i s motion f o r appeal bond--
                       t h i s Court has c o n s t i t u t i o n a l a u t h o r i t y t o i s s u e t h e w r i t of habeas
                       corpus pursuant t o our o r i g i n a l j u r i s d i c t i o n . "

     M R L:
      OA          Merely because t h e D received 15 years does not warrant a TJ, sua sponte,
                  denying him o r her b a i l and shipping t h e person off t o T.D.C.        In fact,
                  D may be e n t i t l e d t o b a i l , pending sentencing, i f D got more than 15 years.




(Johnson County).

RICE'S REVERSAL, #58,428, 7/16/80, 3. Douglas, with Judges Roberts, P h i l l i p s and Clinton
                                              TN
d i s s e n t i n g without opinion, DOESN'T S A D ON S R AND C S IS AFFIRMED. (Affirmed).
                                                            MH       AE
(Dallas County). See a l s o Feb., S.D.R., p. 16, where a panel, per J. P h i l l i p s , with J.
Dally d i s s e n t i n g with opinion, ruled t h a t t h e testimony of an accomplice witness, concern-
ing t h e commission of an extraneous offense, must be corroborated by independent evidence.

     HELD :       11The removal of t h e mortgagee's name and f a i l u r e t o s a t i s f y h i s claim,
                  coupled with t h e r e t e n t i o n by D of cash coincident i n time and amount
                  t o t h e payoff t e s t i f i e d t o by Marshall, is s u f f i c i e n t t o give r i s e t o
                  t h e inference t h a t Marshall's testimony was 'more l i k e l y than n o t , '
                  s a t i s f y i n g t h e t e s t of James v. S t a t e , 538 (2) 414, and Bentley v. S t a t e ,
                  520 (2) 390."

                           W
                  Also, " e hold t h a t Marshall's testimony about t h e conspiracy t o defraud
                  t h e insurance c a r r i e r by burning Wamble's was s u f f i c i e n t l y corroborated."

                                   O AE
J. DALLY, I N WRITING THE OPINION F R P N L #I, 2ND QUARTER 1980, I N DEBOLT, 1/58,962, 7/16/80
REJECTS A L O THE D ' S CONTENTIONS. (Affirmed). (Nueces County).
         L F

     COMMENT:     The contentions r e j e c t e d were:
                       I,
                         The t r i a l court erred i n not appointing a p s y c h i a t r i s t of ap-
                       p e l l a n t ' s choosing; t h e t r i a l court erred i n i n s t r u c t i n g t h e
                       prosecutor concerning t h e predicate necessary before admitting
                       a report; an autopsy report, a confession, and a k n i f e w e r e im-
                       properly admitted i n evidence; t h e t r i a l court erred i n r e f u s i n g
                       t o give t h e jury i n s t r u c t i o n s requested by t h e appellant; and
                       t h e prosecutor made improper jury argument during both t h e g u i l t -
                       innocence s t a g e and t h e punishment s t a g e of t h e t r i a l . "

                                                                    August-September IQBOIVOICE for the Defense
     COMMENT:     Remember, i f you a r e objecting t o an e x h i b i t f o r reasons other than t h e
                                                                                                                         -
                  e x h i b i t i t s e l f , here, objection was t h a t t h e e x h i b i t , a k n i f e , "stunk"
                  but t h e defense attorney did not say t h e magic words: "Let t h e record
                  show.   . ."         N e r r o r is shown f o r f a i l u r e t o p e r f e c t record.
                                          o

                  There i s much discussion regarding t h e appointment by t h e T r i a l Court
                  of a p s y c h i a t r i s t , but t h e CCA is apparently committed t o t h e r u l e t h a t :
                  "This appointed expert is not appointed t o a i d one s i d e o r t h e other
                  during t h e prosecution of a case." It would appear t h a t i f you have t h i s
                  i s s u e and can show that i n your p a r t i c u l a r county only 1 person i s always
                  appointed by t h e t r i a l court and t h a t he is never hired independently by
                  defense o r other attorneys and t h a t h i s reputation a s a p s y c h i a t r i s t is
                  bad among lawyers, t h a t t h i s should d i s p e l t h e above r u l e . The i d e a l
                  would be, concerning court appointed p s y c h i a t r i s t s , t o have a volunteer
                  list of p s y c h i a t r i s t s i n t h e county o r general area, and f o r them t o be
                  appointed on a r o t a t i o n type b a s i s r a t h e r than, a s many of us know t o be
                  true, t o have t h e same ones do a l l of t h e court appointed work and t h e i r
                  r e p o r t s , with t h e exception of t h e name of t h e D, a l l look a l i k e .

D PORTER'S CONTENTIONS, 1159,095, 7/16/80, J. Douglas, Panel 82, 2nd Quarter 1980,
 LO L
A S A L REJECTED AND CONVICTION AFFIRMED. (Affirmed).     (Dallas County)

     CM ET
     O MN:       A l o t of t h e opinion r e l a t e s t o t h e f a c t t h a t defense counsel wanted t o
                 get before t h e jury t h a t the D was going t o plead g u i l t y a f t e r t h e S t a t e
                 presented i t s case, which he did. Counsel's arguments were made during
                 jury argument and, because he did, t h e prosecutor r e t a l i a t e d i n h i s argu-
                 ment.

     HELD:        W
                 " e hold t h a t , by presenting t o t h e jury t h e admission by Porter t h a t he
                 had committed t h e l e s s e r included offense of robbery, which had not been
                 received a s evidence, counsel f o r the D i n v i t e d the remark by t h e prose-
                 cutor which formed t h e basis of h i s objection t o the testimonial argument."

                                                W
                 It was a l s o held t h a t : " e decline D ' s i n v i t a t i o n t o require, where no
                 weapon has been recovered, expert corroboration t h a t which a complainant
                 described a s a p i s t o l i s i n f a c t a p i s t o l . "

     NOTE :      It appears t h a t some prosecutors have been working on t h e i r j u r y arguments
                 i n t h e a r e a of "pleas f o r law enforcement" and, although t h e statement
                 here t h a t "People can be k i l l e d i n armed robberies, [where a D is shown
                 t o have a p i s t o l ] " should be considered harmless, defense counsel should
                 be on t h e a l e r t i n t h i s area a s some prosecutors a r e t r y i n g t o f i n d t h e
                 l i n e a s t o how f a r they can go, i . e . , i n a misdemeanor c a r r y i n g a p i s t o l
                 case, i s i t permissible f o r the prosecutor t o argue along these l i n e s ?
                 "There is no question h e had t h a t p i s t o l on h i s person."                 e
                                                                                             "And w a l l know
                 what p i s t o l s a r e good for."    "The cemeteries a r e f u l l of persons who have
                 been k i l l e d , robbed, raped, butglarieed, e t c . , by j u s t t h i s kind of p i s t o l . ' '

CHAMBERS' CONTENTIONS, 859,140, 7/16/80, J. Dally, Panel #l, 2nd Quarter 1980, T A HIS
                                                                                HT
PUNISHMENT O LIFE F R U L W U L OBTAINING F O A REGISTERED PHARMACIST A C N R L E
             F        O   NA F LY             RM                            O TOLD
SUBSTANCE, TO-WIT:                    A RE         N S A,                F     XR NO S
                      PHENMETRAZINE, WS C U L AND U U U L THAT EVIDENCE O AN E T A E U
          A R O E UL
OFFENSE W S E R N O S Y ADMITTED, EVIDENCE O AN IN-COURT IDENTIFICATION WS E R N O S Y
                                             F                            A R O E UL
                                   A                         H             EE L
ADMITTED, AND THAT THE EVIDENCE W S INSUFFICIENT TO SUPPORT T E VERDICT, W R A L REJECTED.
(Aff inned).   (Dallas County).

     CM ET
     O MN:       B t h e f a c t s , t h i s D was r e a l l y snake-bit on t h i s case.
                  y                                                                              O 3/11/76, a t
                                                                                                  n

VOICE for the Defenseldugust-September 1980                                                                      SD-15
               9:00 O'Clock A.M., he went t o one drug s t o r e with a forged p r e s c r i p t i o n
               and a f t e r t h e p r e s c r i p t i o n was f i l l e d found he did not have enough money
               f o r a l l t h e p i l l s , s o he obtained an amount f o r which he had s u f f i c i e n t
               c a p i t a l . However, a t 6:45 O'Clock P.M. D returned t o get t h e balance,
               which he did with an a l t e r e d $20 b i l l . This, unquestionably, caused an
               i n v e s t i g a t i o n t o commence. A t 8:00 OtClock P.M., he went on down t h e
               road t o another pharmacy with another forged p r e s c r i p t i o n f o r a high
               powered drug and a f t e r t h e pharmacist t o l d him t o t a k e some and come back
               t h e next day f o r t h e balance, another i n v e s t i g a t i o n commenced. The two
               i n v e s t i g a t i o n s apparently coincided t h e next day when t h e D returned t o
               g e t t h e balance and he was a r r e s t e d . Held, The second offense was ad-
               missible e i t h e r t o rebut a l i b i or t o show g u i l t y knowledge, i n t e n t and
               design.

                                                                      LH U H      H
D WHITE, #59,378, 7/16/80, P. J. Onion, Panel #I, 2nd Quarter 1980, A T O G ON T E NIGHT
I N QUESTION P O A L ENJOYED LEADING SEVEUL C R U POLICE OFFICERS ON A C A E WHILE DRIVINI
              R B BY                            OPS                        HS
H I S M T R Y L , NEVERTHELESS, WILL GET TO DO 30 D Y AND P Y A $150 FINE F R RESISTING
       OOC CE                                      AS      A               O
ARREST. (Affirmed). (Nueces County).

     O MN:
     CM ET     Other contentions r e j e c t e d were no a r r e s t ever occurred; fundamental e r r o r
               was committed by T C t i n s t a t i n g t o defense counsel, "He [Dl is charged,
               S i r , with an a t t a c k on Officer Hermandez," and, l a s t l y , t h a t Sec. 38.03,
               P .C., was unconstitutional.

               I did       t h i n k h i s one ground of e r r o r , a s s t a t e d , was cute: "The convic-
               of M r . Brandon White was void because t h e evidence was conclusive t h a t
               Mr. White was a b j e c t l y subdued and psychologically dominated by t h e
               Herculean presence of Officer Keene with drawn p i s t o l an interminable time
               (under t h e circumstances of t h i s incident) before any movement o r sound
               emanated from M r . White."

                                                                                   LO
D MUNGUIAtS CONVICTION, #59,452, 7/16/80, J. Douglas, Panel #2, 2nd Quarter 1980, A S
AFFIRMEDEVEN THOUGH PANEL HELD !'THAT THE LINEUP WAS UNNECESSARILY SUGGESTIVE IS BEYOND
                  H UD
PERADVENTURE AND S O L NOT BE CONDONED."   (Affirmed). (Terry County).

    O MN:
    CM ET      Among t h e contentions rejected were: 1 ) The t r i a l court erred i n admit-
               t i n g t h e i d e n t i f i c a t i o n testimony from an eyewitness and t h e C/W because
               of a suggestive i d e n t i f i c a t i o n procedure; 2) t h e t r i a l of t h i s cause
               v i o l a t e d D ' s r i g h t s under t h e double jeopardy clause of t h e 5th Amendment
               t o t h e U.S. Constitution and A r t . 1, Sec. 14, of Texas Const; and 3) a l -
               lowing county attorney t o a s s i s t i n prosecution where he had formerly
               represented t h e D.

    NOTE :     A s t o t h e I.D.   issue, i t was f u r t h e r s a i d :

                  "That t h e lineup was unnecessarily suggestive is beyond peradventure
                  and should not be condoned. Nevertheless, both women had an opportun-
                  i t y t o view Munguia f o r a t o t a l of 30 t o 40 minutes on t h e night of t h e
                  crime. Both gave a description of Munguia t h a t provided a reasonable
                  f a c s i m i l e of t h e appellant i n a composite drawing. Both i d e n t i f i e d
                  Munguia from mug s h o t s a f t e r viewing t h r e e s e p a r a t e s e t s of photos.
                  That h i s mug shot was somewhat l a r g e r i s not persuasive. Both women
                  were c e r t a i n i n t h e i r i d e n t i f i c a t i o n . There was no e r r o r . See a l s o
                  Guzman v. S t a t e , 567 S.W.2d 188. Appellant's contention i s overruled."



                                                              August-September 198OIVOICE for the Defense
FOR A STRANGE SOUNDING OPINION, R A TODD, #59,630 & 631, 7/16/80, J. P h i l l i p s , P a n e l # 3 ,
                                     ED
1st Q u a r t e r 1980. (Affirmed). (Dallas County).

       CM ET
       O MN:           D on t r i a l f o r f e l o n y t h e f t and motion t o revoke p r o b a t i o n , from which h e
                       a p p e a l s h i s c o n v i c t i o n and t h e o r d e r of r e v o c a t i o n of p r o b a t i o n .

                       F a c t s showed t h a t c/W saw a pick-up t r u c k p u l l i n g what appeared t o be t h e
                       c/W1s Lincoln      a r c welder. Subsequent check revealed i t t o have been s t o l e n .

                       However, P o l i c e o f f i c e r t h e r e a f t e r stopped D and a n o t h e r f o r t r a f f i c v i o -
                       l a t i o n , c a l l e d i n b u t g o t n o t h i n g on t h e welder b u t d i d l e a r n t h e r e was an
                       o u t s t a n d i n g a r r e s t warrant on passenger. Passenger t a k e n t o p o l i c e s t a t i o n .
                       D allowed t o leave. When D went t o s t a t i o n t o g e t passenger o u t of j a i l h e
                       was a r r e s t e d . When confronted about t h e welder, D s a i d i t belonged t o a
                       welding shop, whereupon everybody went t h e r e and found a welder l i k e t h e
                       one D d e s c r i b e d .

                       Another i s s u e i n t h e c a s e had t o do w i t h t h e p a s s e n g e r ' s testimony. He
                       r e f u s e d t o t e s t i f y f o r t h e D a t t h e t r i a l a s he was on p r o b a t i o n a t t h a t
                       time and was a l s o i n d i c t e d a s a co-defendant w i t h t h e D. L a t e r , v i a a
                       MNT, h e t e s t i f i e d f a v o r a b l y f o r t h e D b u t t h i s was a f t e r charges a g a i n s t
                       him were dismissed.

       HELD :          A s t o t h e l a t t e r , Whitmore, 570 (2) 889, d i s t i n g u i s h e d a s " L i t t l e was n o t
                       a c q u i t t e d of t h e t h e f t charges; t h o s e charges were simply dismissed                  .   ..
                       and he w a s s t i l l s u b j e c t t o being prosecuted, i f t h e S t a t e chose t o re-
                       indict. "

                       A s t o t h e former, t h e panel p u t t h e presumption of p o s s e s s i o n of r e c e n t l y
                       s t o l e n p r o p e r t y t o t h e D a s w e l l a s t h e f a c t t h a t t h e p a n e l concluded t h a t
                       t h e s t a t e m e n t he made was a f a l s e one a s h e s a i d t h e welder was n o t t h e
                       c/W's. However, i f he were n o t towing t h e welder h e s a i d he was towing,
                       why d i d n ' t e i t h e r he o r t h e S t a t e b r i n g someone t o c o u r t t o t e s t i f y t o
                       t h a t f a c t ? However, read t h e o p i n i o n and s e e i f you a g r e e o r d i s a g r e e
                       something a p p e a r s t o be o u t of k i l t e r .

                                                            MH
PEMBERTON'S REVERSAL DOESN'T STAND ON S R AND CASE AFFIRMED. #61,861, 7/16/80, P. J.
Onion, En Banc, w i t h J. Odom concurring i n t h e r e s u l t , b u t w i t h J. C l i n t o n , j o i n e d by
                                                           -
Judges R o b e r t s , P h i l l i p s , and W. C. Davis, d i s s e n t i n g w i t h opinion. See Oct., 1979,
S.D.R., where a p a n e l of t h e CCA, p e r J. C l i n t o n , r e v e r s e d t h e c o n v i c t i o n because t h e t r i a l
c o u r t allowed t h e p r o s e c u t o r t o a s k an improper "have you heard" q u e s t i o n on c r o s s examina-
t i o n o f one of t h e D ' s r e p u t a t i o n w i t n e s s e s a t t h e punishment s t a g e of t h e proceedings.
(SMRH Affirmed).          (Denton County).

       COMNENT:       I am n o t s u r e j u s t what sank t h e D ' s s h i p h e r e a s t h e o p i n i o n i s n o t one
                      of Judge Onion's b e t t e r ones. However, t h e r e i s no q u e s t i o n t h a t what
                      J. C l i n t o n s a y s i s t r u e :  "To t h e dangerous d o c t r i n e a b o u t t o be espoused
                      t o t h e bench and t h e b a r , i n t h e minds of many of whom t h e 'have you
                      heard' q u e s t i o n i s a l r e a d y a n a r c h a i c abomination, I must p r o t e s t . "

                      To a p p r e c i a t e t h e r e s p e c t i v e views, an understanding of t h e f a c t s might
                      be i n o r d e r . The S t a t e p u t on a w i t n e s s who, on c r o s s examination,
                      t e s t i f i e d t h a t t h e D ' s r e p u t a t i o n f o r being a p e a c e f u l and law-abiding
                      c i t i z e n was good. However, on r e - d i r e c t , he was asked a "Have you heard"
                      q u e s t i o n , concerning t h e D being A.W.O.L. w h i l e i n t h e s e r v i c e , t o which


VOICE for the DefenselAugust-September 1980
                an objection was leveled but was overruled, t o which question t h e witness
                r e p l i + "No." Then, during t h e D'S case, a witness t e s t i f i e d a l s o t o
                t h e D ' s reputation f o r being a peaceful and law-abiding c i t i z e n and he
                t e s t i f i e d it was good. O cross-examination, he was asked and he t e s t i -
                                                n
                f i e d he had heard of t h e A.W.O.L. a s t h e prosecutor had t o l d him of t h i s
                t h e day before. However, the prosecutor then asked t h e witness: "If it
                were shown t o you t h a t i n f a c t he was A.W.O.L., would t h a t cause you t o
                change your opinion about him?" and he r e p l i e d , "None whatsoever, sir," t o
                which question objection was leveled but was overruled.

                The l m g and s h o r t of t h e majority's opinion, i n m opinion, i s they f e l t
                                                                                    y
                t h a t t h e D simply boo-booed i n making h i s objections, although i t i s d i f -
                f i c u l t , a s J. Sam pointed out, t o d i s t i n g u i s h between a "Did you know
                . . ."       type question and "If it were shown t o you t h a t        ...   I,
                                                                                                 type question.

                Also r e j e c t e d was a claim t h a t t h e prosecutor argued erroneously when he
                argued t h a t "Danny Cobb would know from h i s dealings with our o f f i c e t h a t
                we would not recommend probation," i n response t o t h e D ' s claim t h e o f f i -
                c e r had recommended probation but t h e o f f i c e r denied making such a recom-
                mendation. E i t h e r i n v i t e d argument (?) o r i n s t r u c t i o n r u l e cures a l l
                e r r o r r u l e got t h e D.

 E E BR
R M M E . I F THE EVIDENCE RAISES THE ISSUE, A HEARING, PRIOR TO A MOTION TO REVOKE PRO-
BATION HEARING, ON THE D'S COMPETENCY, IS MANDATED. SEE GARCIA, /!61,902, 7/16/80, J.
Dally, Panel U2, 3rd Quarter 1980, where appeal was abated f o r such a hearing, a hearing
was held but then t h e case was affirmed. (Affirmed). (Victoria County)




     COMMENT:   The D was attempting t o void a D.W.L.S. conviction he received a s a r e s u l t
                of t h e D.P.S. suspending h i s d r i v e r ' s l i c e n s e a s a r e s u l t of t h e felony
                D.W.I.      probation he e a r l i e r received. It thus appears t h a t m law asso-y
                c i a t e , Honorable W i l l Gray, got off on t h e wrong f l o o r a t t h e courthouse
                and f i l e d h i s w r i t i n the county court when t h e w r i t should have, by t h e
                opinion, been f i l e d i n d i s t r i c t court.




    COMMENT:    More s e r i o u s l y , t h e claim had t o do with t h e omission i n t h e Indictment
                of t h e words "of any person'' regarding "with i n t e n t t o arouse o r g r a t i f y
                t h e sexual desire."

    HELD :      "The 'sexual d e s i r e ' alluded t o i n t h e indictment means 'of a person.'"




                                                            August-September ISBOIVOICE for the Defense
                    X               AO                                 NWR O E
J . T. DAVIS, I N E PARTE BRENDA C R L SCARBROUGH, 1163,309, 7/16/80, A S E S S M INTEREST-
I N G QUESTIONS I N THIS EXTRADITION CASE. (Affirmed).  (Hunt County).

       O MN:
       CM ET          A l l I have g o t t o s a y , a f t e r reading t h e o p i n i o n , is t h a t t h e D ' s a t t o r n e y
                      must have r u n t h e D.A. ragged on t h i s one u n t i l i t g o t t o Austin. Among
                      t h e c o n t e n t i o n s r e j e c t e d were: 1 ) F a i l u r e t o a l l o w D t o subpoena Governor
                      Clements t o prove t h a t t h e s i g n a t u r e on t h e overn nor's papers were n o t h i s
                      was r e j e c t e d a s it was h e l d t h a t t h i s would n o t a f f e c t t h e v a l i d i t y t h e r e o f
                      and f u r t h e r t h a t D f a i l e d t o demonstrate t h a t t h e Governor was a m a t e r i a l
                      w i t n e s s ; and 2) Statement i n W r i t A p p l i c a t i o n t h a t it showed s h e was n o t
                      t h e same person named i n t h e Governor's Warrant a l s o r e j e c t e d a s n o t s u f f i -
                      c i e n t t o raise t h e i s s u e of i d e n t i t y . " F a i l u r e t o r a i s e ' i d e n t i t y ' i n t h e
                      TCt p r e c l u d e s review on appeal."

J . W. C. DAVIS, I N T I N , 1164,369, 7/16/80, w i t h J. P h i l l i p s d i s s e n t i n g without o p i n i o n ,
                                                   HT         TNAD                NE
P a n e l #2, 2nd Quarter 1980, RULES T A "THE S A D R ENUNCIATED U D R SEC. 8.01, P.C.,
( I n s a n i t y a s a d e f e n s e t o a crime), I S W E H R THE D HAD THE CAPACITY T C N O M HIS CON-
                                                         HT E                               O OFR
DUCT, N T W E H R H HAD THE SUBSTANTIAL CAPACITY T DO SO." HELD, NO ERROR I N FINDING D
             O      HT E E                                          O
           T                                   H               EE               F
SANE A THE TIME HE COMMITTED T E ACTS WHICH W R THE SUBJECT O THE MOTION T REVOKE PRO-             O
BATION. (Affirmed).                  (Orange County).

ATTEMPTED A G A A E RAPE INDICTMENT UPHELD I N E PARTE THORNTON RAY PROPHET, 1164,386,
           G R V TD                             X
7/16/80, P. J. Onion, En Banc, Unanimous. (Writ Denied).  ( H a r r i s County).

      HELD:           T E ALLEGATIONS I N T E INDICTMENT T A THE "D
                       H                   H                 HT             WITH T E INTENT T
                                                                                  H          ...
                                                                                             O
                      C M I RAPE," SUFFICED T ALLEGE A CULPABLE M N A STATE. "ALTHOUGH IT
                       O MT                    O                        ETL
                       OL    E                   O                        ETL         F
                      W U D B BETTER PRACTICE T ALLEGE THE CULPABLE M N A STATE O THE AT-
                                                 O                                   F H
                      TEMPTED OFFENSE, FAILURE T ALLEGE THE CONSTITUENT ELEMENTS O T E OF-
                                                               DEFECT."
                      FENSE ATTEMPTED IS NOT A F ~ A M E N T A L

TAYLOR,                                                                                E
             #63,975, 7/16/80, J. T. Davis, P a n e l 113, 2nd Quarter 1980, LOSES ON H R FRANKS
V . D L W R CLAIM REGARDING AFFIDAVIT FOR SEARCH W R A T
     EA AE                                                   AR N. (Affirmed). (Taylor County).
Note: T h i s was a motion t o revoke p r o b a t i o n appeal.

      HELD :          "Even i f t h e t r i a l c o u r t had concluded from t h e evidence t h a t t h e informa-
                      t i o n contained i n t h e t i p was f a l s e , t h e r e was no evidence t h a t t h e a f f i -
                      a n t (Off. Cleveland) knowingly, i n t e n t i o n a l l y o r w i t h r e c k l e s s d i s r e g a r d
                      placed f a l s e a s s e r t i o n s i n t h e a f f i d a v i t . "

      ALSO HELD: The t r i a l c o u r t d i d n o t abuse its d i s c r e t i o n i n f a i l i n g and r e f u s i n g t o
                 r e q u i r e t h e S t a t e t o d i s c l o s e t h e i d e n t i t y of t h e c o n f i d e n t i a l informer.

      ALSO HELD: Evid. s u f f . by a preponderance of t h e evidence t o l i n k D t o marijuana
                 found i n h e r r e s i d e n c e .

      NOTE :          Remember:        You must win on all of t h e a l l e g a t i o n s of t h e motion t o revoke,
                                       b u t t h e S t a t e needs t o win on only one of t h e a l l e g a t i o n s made
                                       t o s u s t a i n t h e conviction.       I f they make i t on one a l l e g a t i o n ,
                                       any o t h e r c o n t e n t i o n s go by t h e wayside even i f evid. is i n s u f f .
                                       on t h o s e .

INDICTMENT FOR HINDERING SECURED CREDITORS RULED N T FUNDAMENTALLY DEFECTIVE I N LANTX,
                                                       O
#64,510, 7/16/80, J. Roberts, P a n e l 111, 2nd Quarter 1980, A INDICTMENT TRACKED THE STATUTE.
                                                                S
FURTHER, SEC. 32.33, P.c., IS CONSTITUTIONAL EVEN THOUGH THE TERM 1            1 AGREEMENT" IS
                                                                                        ~      ~

                                                                              ETL
NOT DEFINED I N THE STATUTE. ALSO, SEC. 32.33, P.C., REQUIRES A CULPABLE M N A STATE AND
ALLEGATION "WITH INTENT TO HINDER ENFORCEMENT OF AN INTEREST OR LIEN" IS SUFFICIENT TO
STATE THIS ALLEGATION. (Affirmed).        (Bailey County).

VOICE for the DefenselAugust-September 1980
FAILURE TO TRACK THE EXTRADITION STATUTES CAUSES DISMISSAL IN EX PARTE JOHN LEWIS CHAPMAN'S
                                                        1,
EXTRADITION CASE. 1164,672, 7/16/80, J. Clinton, Panel 1 1 3rd Quarter 1980, (Writ Dismiss€
(Cass County).

      COMMENT:   Without going into all that occurred, suffice it to say, what happened
                 is that the D failed to follow the three (3) step procedure set out in
                 Ex parte Hagler, 278 ( ) 143.
                                       2
                  1,
      HELD :      The Petitioner here, unlike his counterpart in Hagler, has clearly waived
                       -                                                        ,
                                                                                .
                 his riaht to proceed to the third steu alluded to above. the rieht to
                 appeal, by failing to avail himself of the second step 'opportunity.'"

ANU ANOTHER "SHOCK PROBATIONER" MUST RETURN TO T.D.C. SEE HURY V. MORGAN, DISTRICT JUDGE,
                                                                               f.
1/64,020, 7/16/80, J. Clinton, En Banc, Unanimous. (Writ of Mandamus to Issue i )
(Galveston County).

      HELD :     "WE CONCLUDE THAT ACCORDING TO THE CLEAR AND UNAMBIGUOUS LANGUAGE OB THE
                 STATUTE, THE RESPONDENT IS WITHOUT AUTHORITY TO GRANT 'SHOCK PROBATION'
                                               Ea, TO D SCURRY, CONVICTED AS HE WAS OF
                 PURSUANT TO ART. 42.14, SEC. 3()
                 CRIMINAL HOMICIDE (VOLUNTARY MANSLAUGHTER)."  "ACCORDINGLY, THE TCT'S
                 ORDER IS VOID."
INDICTMENT FOR SALE OF UNREGISTERED SECURITIES UPHELD IN KOAH, #57,019, 7/16/80, J. W. C.
Davis, Panel #3, 1st Quarter 1980. (Affirmed).   (El Paso County).

      HELD :     "This indictment, which alleges the highest culpable mental state,
                 (intentionally), is sufficient to charge a culpable mental state."
      HELD :     In answer to D's complaint that it was wrong for the State to allege
                 three offenses i one indictment, it was held: "The State may allege,
                                 n
                 in a single indictment, two or more offenses in separate counts, if
                 the offenses arise out of the same incident, act, or transaction."

      HELD:      As to forcing the State to elect as to two of the offenses alleged,
                 State subsequently dismissed one, it was held: "The trial court in-
                 stead of compelling an election, may submit each of the counts to
                 the,jury with the instruction that a conviction could be had on only
                 one of them."

      HELD:      "Art. 581-5(I), V.T.C.A., is not vague and indefinite because it fails
                 to define the term 'public solicitation'."
                 I,
      HELD :      The State is not required to negate any exemptions from restrictions
                 on sale of securities as one of its elements of proof."

      HELD :     Failure of TCt to define "public solicitation," "public," "Solicitation,"
                 and "Advertisement" versus instruction given, not error.
      HELD :     Letter sent by D to Commissioner admissible.


                                                   August-September 198ONOICE for the Defense
     HELD :      No denial of speedy trial because of undue delay. Note: This did not
                 involve the Speedy Trial Act.
     HELD :      Evid. suff, and State has no burden to prove an exception; the D has
                 that burden.


ASSESSED DEATH BY ANSWERING THE QUESTIONS IN THE AFFIRMATIVE AFTER FINDING THE D GUILTY OF
CAPITAL MURDER. #57,602, 7/16/80, J. Douglas, En Banc, with J. Clinton not participating,
and with J. Roberts, joined by J. Phillips, dissenting with opinion, and J. Phillips, joined
by J. Roberts, dissenting with opinion. (Affirmed). (Potter County).
     COMMENT:    Probably what ruined many of the D's contentions was the fact he plead
                 guilty to the alleged offense. Primarily, most of his claims on appeal
                 centered around the use by the prosecutor of a co-defendant's statements;
                 both oral and written.

                                                                                  23()
                 The split occurred over excusing of a venire person and Section 1 . 1 b ,
                 and the co-defendant's confessions.

                 Among the other contentions rejected were: 1 Reference was made to an
                                                              )
                                                      )
                 oral statement of the co-defendant; 2 The trial court erred in permitting
                 the D.A. to read sections of the co-defendant's inadmissible initial con-
                 fession while cross-examining the D; 3 Prosecutor was erroneously permit-
                                                       )
                                                         )
                 ted to inject false evidence at trial; 4 The TCt erroneously allowed into
                                                                      )
                 evidence extraneous offenses of burglary and arson; 5 The prosecution
                 erred in failing to provide the defense with a copy of an exculpatory
                                                )
                 police report prior to trial; 6 The prosecution failed to disclose nega-
                                                                           )
                 tive fingerprint test results prior to the day of trial; 7 Refusal of
                 TCt to grant mistrial after the prosecutor introduced before the jury evi-
                 dence of an oral statement of D in which he denied committing the charged
                           )
                 offense; 8 The prosecutor erred in refusing to furnish D a copy of the
                 State's witnesses' statements until after such witnesses had testified;
                  )
                 9 The TCt erroneously admitted D's written confession into evidence on
                 the grounds that it was induced by police officers' promises that the
                 death penalty would not be sought; 10) The evidence is insufficient re
                 the probability case.

    NOTE:        J. Roberts was perturbed at the Majority's treatment of the recent case
                 of Adams v. Texas and its holding of pouring the D out because of the no
                 objection rule. "The Court can impose this waiver doctrine only by talk-
                 ing out of both sides of its constitutional mouth." "It is tantamount to
                 saying that our opinions on constitutional law are so notoriously untrust-
                 worthy that attorneys are not justified in following them."




VOICE for the DefenselAugust-September1980
                      U                                         Y E
                     A F WIEDER SEHEN OR REMINISCING AULD LANG S N

           I thought, a s t h i s w i l l be m l a s t S.D.R.,
                                                     y                  I would put down i n
p r i n t a f a r e w e l l of s o r t s t o t h e members and r e a d e r s o f The Voice, shal:
some thoughts w i t h you.

             I n t h e summer o f 1971, a t t h e S t a t e B a r Convention h e l d i n D a l l a s ,
a s m a l l group of d e f e n s e o r i e n t e d lawyers, who w e r e i n t e r e s t e d i n improvin:
o u r c r i m i n a l j u s t i c e system, g a t h e r e d t o g e t h e r over refreshments and formec
The Texas Criminal Defense Lawyers A s s o c i a t i o n , w i t h Honorable Frank
Maloney e l e c t e d a s t h e f i r s t p r e s i d e n t .    I n looking back, I doubt s e r i o u s l q
i f anyone o r any groGp of persons could have envisioned what would become
of t h i s s m a l l group of persons o r t h e i r newly formed o r g a n i z a t i o n .            I
s u s p e c t , t o some, it resembled a "conspiracy" of s o r t s and, I guess one
could t r u t h f u l l y s a y , it was indeed a "conspiracy" a s t h o s e p e r s o n s
p r e s e n t e n t e r e d i n t o an o r a l agreement, l a t e r reduced t o w r i t i n g , pledging
and agreeing t o work f o r a b e t t e r system of c r i m i n a l j u s t i c e i n Texas f o r
a l l p e r s o n s who have anything t o d o w i t h t h e system. From t h a t i n i t i a l
" c o n s p i r a t o r i a l " agreement, p a s t and p r e s e n t members of t h e A s s o c i a t i o n
have many t i m e s and i n many p l a c e s c a s t o u t i n t o t h e world many, many
o v e r t a c t s t o t r y t o make our system a b e t t e r one.               I joined t h e "conspir-
acy" on September 21, 1972, when t h e Honorable C . Anthony F r i l o u x was
president.

             I p e r s o n a l l y f e e l t h a t both t h e l e g a l p r o f e s s i o n and t h e g e n e r a l
p u b l i c have b e n e f i t e d immensely from t h a t beginning s o s h o r t and y e t s o
 l o n g ago. A s t o t h e former, n o t a month goes by when t h e r e i s n o t a
c r i m i n a l law i n s t i t u t e held somewhere i n t h e S t a t e .               Some of u s can
remember, however, when t h e r e was only one such i n s t i t u t e and t h a t was
t h e San Antonio Criminal Law I n s t i t u t e , f a t h e r e d by Honorable A.A. Sea-
mann, now deceased, which was h e l d on a y e a r l y b a s i s .                          W e of t h e c r i m i n a l
b a r today owe much t o t h o s e many p i o n e e r s of t h e p a s t whose i d e a s and
i n n o v a t i v e s u g g e s t i o n s have c a r r i e d f o r t h t o t h e p r e s e n t day. A s it would
be wrong t o mention some of t h o s e persons and n o t mention o t h e r s who
played a p a r t i n t h e "Criminal Law Revolution" of t h e 1 9 6 0 1 s , perhaps, some
day, our a s s o c i a t i o n w i l l p r e p a r e a plaque l i s t i n g t h e names of t h o s e
persons who have c o n t r i b u t e d s o much t o t h e c r i m i n a l defense b a r of Texas.
However, t h o s e of u s who have t o i l e d f o r s e v e r a l y e a r s i n t h e c r i m i n a l l a w
f i e l d know who t h o s e persons were and I can a s s u r e them and t h e i r f a m i l i e s
t h e y w i l l never be f o r g o t t e n a s b u t f o r them I a a f r a i d w e would s t i l l
                                                                               m
be babes i n t h e woods. To l i s t a l l of t h e accomplishments of t h e Associa-
t i o n would be a paper i n i t s e l f b u t I t h i n k w e can sum up t h o s e accom-
plishments by s a y i n g t h a t a person who p r a c t i c e s c r i m i n a l law today i s
n o longer looked upon a s t h e o u t s i d e r o r t h e b a s t a r d of t h e l e g a l p r o f -
e s s i o n , a s we once w e r e thought t o be, a s today w e have gained r e s p e c t ,
b o t h from w i t h i n and without t h e p r o f e s s i o n .

                                                                     e
            W e have made many s t r i d e s . But d o n ' t g e t m wrong a s o u r p r o f e s s i o n
w i t h i n a p r o f e s s i o n h a s a long way t o go. The f u t u r e looks dim, due i n par
t o o u r c o u n t r y ' s domestic and f o r e i g n problems, and t h e c r i m i n a l j u s t i c e
system w i l l c o n t i n u e t o be a "whipping dog" f o r some p o l i t i c i a n s .




                                                                August-September 198ONOICE for the Defense
               I t w i l l be necessary i n t h e f u t u r e f o r our o r g a n i z a t i o n t o be
  t h e c r u s a d e r s and l e a d e r s a g a i n s t t h o s e p r o t a g o n i s t s who want t o d e s t r o y
  o u r freedoms and our B i l l s o f R i g h t s . And, b e l i e v e me, t h e r e a r e many
  such persons o u t t h e r e . The p u b l i c must be made t o understand t h a t t h e
  c r i m i n a l j u s t i c e system i s nothing more o r less t h a n what t h e p u b l i c
  wants; it is, i n a s e n s e , t h e m i r r o r of t h e g e n e r a l p u b l i c ' s d e s i r e s .
  And, t h e g e n e r a l p u b l i c must be made t o understand t h a t we have an
  expensive system t h a t i s going t o become more expensive i n t h e f u t u r e
  However, i f w e a r e going t o have an e f f e c t i v e c r i m i n a l j u s t i c e system
  w e a r e going t o have t o s e l l t h e p u b l i c on t h e fact t h a t you g e t what you
  pay f o r . I f we want good judges, p r o s e c u t o r s , defense lawyers, and
  c o u r t s t a f f personnel, it i s going t o c o s t money. I t h i n k i n t h e days
  ahead, i f t h e g e n e r a l p u b l i c can be made t o understand t h e importance of
  t h i s c o s t and why w e need Lo e v a l u a t e t h e need f o r bigger and b e t t e r
  p e n i t e n t i a r i e s , why we need t o r e a l i z e t h a t it i s i m p a s s i b l e t o make
  e v e r y moral wrong a c r i m i n a l o f f e n s e , why w e need t o r e a l i z e t h a t w e must
  f i n d a l t e r n a t i v e methods o f punishment, why w e need t o r e a l i z e t h a t w e
  must f i n d s o l u t i o n s t o t h e d i s p o s i t i o n of c r i m i n a l c a s e s from s t a r t t o
  f i n i s h , why we need t o d e c i d e p r i o r i t i e s i n t h e f i e l d o f c r i m i n a l law,
  and t h e l i k e , t h e n I t h i n k w e w i l l o b t a i n a b e t t e r c r i m i n a l j u s t i c e system
  for t h e general public.

               However, though w e always need t o stress improving our c r i m i n a l
  j u s t i c e system, a l l o f u s must never f o r g e t t o p r o t e c t and stand-up f o r
  t h e r i g h t s and l i b e r t i e s our f o r e f a t h e r s p u t i n w r i t i n g many, many y e a r s
  ago. The members of t h i s A s s o c i a t i o n must be w i l l i n g t o expend t i m e ,
  money, and t h e i r v o i c e s must be heard, when t h o s e d e s p o t s o f o u r c i t i -
  zenry come f o r t h advocating d e s t r u c t i o n of our r i g h t s and l i b e r t i e s i n
  an endeavor t o p r e s e r v e and p e r p e t u a t e t h e i r s m a l l views and warped
  o p i n i o n s of what i s r i g h t and wrong.               I f e e l a p o s s i b l e g r e a t book has
  y e t t o be w r i t t e n , excluding, of c o u r s e , Spencer T r a c y ' s g r e a t movie,
  and t h a t is:            "What happened t o t h e j u d i c i a r y and t h e l e g a l p r o f e s s i o n
  of Germany a f t e r Adolph K i t l e r came t o Power?" W know today t h e Weimar  e
  Republic had one of t h e g r e a t e s t w r i t t e n c o n s t i t u t i o n s e v e r drawn by man.
  But, w e a l s o know i t ' s c o n s t i t u t i o n ceased t o have meaning when Germany's
  l e g a l p r o f e s s i o n and i t s j u d i c i a r y a b d i c a t e d t h e i r r e s p o n s i b i l i t i e s and
  surrendered without a fight: t o t h e h i e r a c h y of t h e Nazi P a r t y . A l l of u s
  must he e v e r watchful n o t t o e v e r l e t something l i k e t h a t happen i n t h e
  S t a t e of Texas o r of t h e s e United S t a t e s o r we, t o o , may w i t n e s s a Holocaust.
             A s one who t r u l y b e l i e v e s t h a t e a c h member of t h e l e g a l p r o f e s s i o n
 should always t r y t o do something i n t h e form of g i v i n g t o our p r o f e s s i o n
 and t h e community i n which w e l i v e , r a t h e r t h a n t o merely enjoy t h e b e n e f i t s
 we r e c e i v e , both f i n a n c i a l and otherwise, on a h o t summer day i n 1974, I s a t
                y                           y
 down a t m desk and, u s i n g m t r u s t y 1958 Royal Standard t y p e w r i t e r ,
 commenced t y p i n g t h e f i r s t S.D.R.         Although Honorable George Gilkerson, t h e
 t h e n P r e s i d e n t , has never t o l d m e t h e reason, n e v e r t h e l e s s , Vol. I, No. I
 was p u t i n t o p r i n t on September 2 0 , 1974, and t h e S.D.R. has continued u n t i l
 t h e p r e s e n t time. To m knowledge, i t has never been c i t e d i n any c o u r t
                                    y




VOICE for the DefenselAugust-September 1980
d e c i s i o n i n t h e s e United S t a t e s b u t I have been t o l d it h a s been d i s c u s s e d
many times by many persons. A s t o t h e former, t h i s i s understandable, a s
                                      y
when I p u t down i n p r i n t m i n t e r p r e t a t i o n of a holding o r r u l i n g of t h e
Court, I f e l t i f I made it "down t o e a r t h , " and n o t academic, with a l i t t l e
humor thrown i n , t h a t anyone could understand what t h e g r e a t minds w e r e
t r y i n g t o say t o t h e Bench and Bar. I n t h i s , I hope I have succeeded.

         To m s u c c e s s o r , I w i l l adrnonish t h a t person o r p e r s o n s t h a t t h e pay
               y
i s nothing, t h e hours sometimes a r e long, M r s . Droomgoole w i l l c a l l you i f
you d o n ' t m e e t your d e a d l i n e , b u t i f you have h a l f a s much fun a s I have ha
you, t o o , w i l l s a y , ' ? should be paying t h o s e people f o r l e t t i n g m e do m y
thing. "
            Although I have always assumed f u l l r e s p o n s i b i l i t y f o r what comes
o u t i n p r i n t , t h e r e i s n o t any way I could have g o t t e n t h e S.D.R. o u t withc
t h e h e l p and a s s i s t a n c e of two (2) p e r s o n s , M r s . Linda P a t i n o and M s . J o
Ann Palmer, each who worked f o r m e d u r i n g t h e p a s t s i x (6) y e a r s .
            A s none of us know w h a t t h e f u t u r e h o l d s o r what we w i l l become i n
t h e f u t u r e , n e v e r t h e l e s s , on occasion, we should look t o t h e p a s t t o see
from whence we came. And, i n doing s o , I can t r u t h f u l l y s a y t o each of
you, from an o l d Country boy who s t a r t e d l i f e n e a r t h e banks of t h e Yegua
Creek i n Burleson County, t h a t I could n o t have come s o f a r i n such a s h o r t
p e r i o d of t i m e without t h e good f o r t u n e t o have had wonderful p a r e n t s and
family, g r e a t t e a c h e r s , understanding g i r l f r i e n d s and f i n e s e c r e t a r i e s , an
t o have been a s s o c i a t e d w i t h persons such a s y o u r s e l v e s who h e l p t o make
our profession the g r e a t e s t profession i n existence.
             I n c l o s i n g , I t r u l y and deeply thank t h e p a s t and p r e s e n t o f f i c e r s ,
d i r e c t o r s and members of T.C.D.L.A.           f o r l e t t i n g m e be a p a r t of t h i s
A s s o c i a t i o n and t o have l e t m e make what I hope h a s been a s m a l l c o n t r i b u -
t i o n t o our c r i m i n a l j u s t i c e system.




                                                            Augusf-September 198ONOlCE for the Defense
LETTERS TO THE EDITOR f              r     u   which eventually found its way into          vice runs deeper in this instance, however.
                                               VOICE. Little did I know that my             when a public servant and officer of a
    Whether there is basis for agreement,
                                               subtle accolade would be misunder-           court makes use of his high office t o
o r not, virtually everybody admits that
                                               stood.                                       brand a defense lawyer a criminal, under
law enforcement officers can't control
                                                  Thank you again for the interest you      a protective immunity cloak. The fact
crime alone. They must have community
                                               have taken in the solution of court prob-    that it is immature, irresponsible, and
cooperation-cooperation from witnesses
                                               lems to the benefit of practicing criminal   cowardly loses significance in the shadow
who will come forward and offer evi-
                                               defense lawyers, and please accept my        of the threat to the wholesome principle
dence, and a willingness of jurors to look
                                               apology for the fuss I have unwittingly      of effective right of counsel under the
at the evidence, rather than what a con-
                                               caused.                                      sixth amendment to the Constitution
viction might do to the individual in-
                                                                     Yours respectfully,    of the United States.
volved, regardless of the evidence.
                                                                       Vincent W. Perini         Assuming there is truth i n the factual
    Ed.% note: Obviously, the Daily                                                         allegations as to jury contact, that would
 Record editor has not spent a l o t of time                             August 14,1980     appear to be a matter of appropriate
studying the basic philosophies under-         Re: TCDLA Contempt Strike Force              inquiry, but the face of the pleading re-
iying our system o f criminal justice. M .r    Dear Bob:                                                              s
                                                                                            flects no factual basis a t o criminal activ-
Neal's appraisal of the motivation behind          Three days after your creation of the     ity (except possibly within the tunnel
the editorial may be harsh, but is close       TCDLA Contempt Strike Force, the             vision of the prosecutor).
t o the bullseye. 1 wonder what 'W-            Strike Force struck hard against a pros-          It would appear the protection of the
dence" the editor has that sufficient          ecutor on behalf of a Texas lawyer            Court against such irresponsible attacks
evidence was presented in those cases          trying a case in federal court in Florida.                            s
                                                                                             is needed, not only a to Mr. Goldstein,
about which he complains. And, God              Enclosed is Emmett Colvin's letter to the   but for the benefit of the lawyers yet to
save us if in the Iuture juries follow         judge authored by Emmett and the Com-        come before your Court and the citizens
his advhe to consider the community            mittee's letter drafted by yours truly       they represent.
needs for conviction rather than follow        for Emmett's signature on TCDLA                   If the writer be correct in the prem-
ing their legal duty to appraise the facts     letterhead.                                   ises, it would appear appropriate that, at
o f each case, individuaily, and apply             To let our members know that this im.     least, said paragraphs three and four be
the law thereto. Thanks for the letter,        portant service is available to them, I       ordered stricken from the subject Motion
Bill.                                          respectfully suggest we publish both          to stand as a clear judicial pronounce-

Dialogue..                . July 8.1980
                                                                        s
                                                items with this letter a an explanatory
                                               preamble in the next issue of VOICE.
                                               The Strike Force's members you ap-
                                                                                             ment against such irresponsible and ma-
                                                                                             licious attacks on those who appear to
                                                                                            defend citizens i n your Court.
The Honorable Tom Thorpe                                                          s
                                               pointed (for their information a well             As a distinguished member of the
203rd Criminal District Court                  as others) are Emmett Colvin, chairman;      Texas Bar, Mr. Goldstein needs no de-
Dallas County Government Center                 Gerry Goldstein; Frank Maloney; Knox        fense to a charge of burglary but he and
500 Commerce St.                               Jones; Louis Dugas; and Arch McColl.         all others of like dedication need the
Dallas, T X 75201                                                              Sincerely,    protection of the jud~ciaryagainst such
                                                                      Arch C. McColl, Ill    attacks.
Dear Judge Thorpe:                                                                                                    Respectfully yours.
    I am embarrassed and disheartened to                                   July 29, 1980                                  Emmett Colvin
discover that some lawyers think I was         Honorable Lynn Higby                          cc: Mr. Michael T. Simpson
being critical of you when I wrote the         United States District Judge                        Asst. United States Attorney
piece published in the MarchiApril issue       210 Hollis Avenue                                   Northern District of Florida
o f VOICE for the Defense entitled "An         Panama City, Florida 32401                          P.O. Box 1308
Open Letter t o Tom Thorpe: Joanne's           Re: U.S.A. vs. William Harrison King,               Tallahassee, Florida 32302
Case." The truth is just the opposite, and           No. MCR80-00207
I would change the title to "An Open           Dear Judge:                                                                July 30.1980
Letter t o Dallas Judges" if I had the             I have been requested by the Texas       The Honorable Lynn Higby, Judge
chance t o do it over again.                   Criminal Defense Lawyers Association to      United States District Court
    I directed the article to your attention                         s
                                               express our concern a t o paragraphs three   Northern District o f Florida
because you had demonstrated that you          and four of the Government's Motion for      P.O. Box 10408
were sensitive to the needs of lawyers in      Restraining Order and for Order to Show      Tallahassee, Florida 32301
any fair system for providing defense          Cause in the above designated case.          Re: Contempt proceedings against at-
services for indigent defendants. A few           As is often the case, when an advocate         torney Gerald Goldstein in United
months earlier you had generously in-          is urging a factually unsupportable                                      s
                                                                                                 States o f Amerka v . King, et a    ,!
cluded me in a group of lawyers whom           ground, he reverts to the logician argu-          No. 80-00207
you consulted about such problems.             ment of prestige by the use of such          To the Honorable Judge Higby:
Since I keep meticutous time records,          words as "It is clear," "obviously," and         Having had the opportunity t o confer
and since Joanne's case was a real-life        like mental tools. Usage has become so       with the members of the Contempt
example of trial docket problems, I            common that such words as "clear"            Strike Force Committee of the Texas
thought you would be interested in my          have become indicators of weakness in        Criminal Defense Lawyers Association, a
analysis and I dictated the letter to you      the eyes of the experienced reader. The      committee which I chair, designed to


VOICE for the DefenselAugust-Sepfc
  DIALOGUE..      . continued                       ABA Standards Relating to the Prosecu-            has one important element in common
   defend and protect lawyers threatened            tion Function 3.l(a) "Affirmative Re-             with the facts that gave rise to that
   with contempt of court, I would respect-         sponsibility to Investigate," p. 77.              opinion: There is absolutely no evidence
   fully submit this letter on behalf of the            The prosecutor, in the Committee's            nor legal inference to connect Mr. Gold-
   committee to the Court for i t s serious         view, then compounds that error in judg.                                           s
                                                                                                      stein with the burglaries. Just a Garrison
   consideration in the above referenced            ment, through what arguably may be ac-            "offered no evidence t o show any basis
   matter as a supplement to my letter of                                                             or cause for his office's interrogation o f
                                                   curately described as a serious omission
  July 29.                                          in the fulfillment of his professional             [Shawl, 467 F.2d at 117, similarly,
      With regard to the criminal charge of                                                           prosecutor Simpson's motion for con-
                                                   obligation as a prosecutor and officer of
   burglary against Mr. Goldstein by the                                                              tempt, which at an absolute minimum has
                                                   this Court, by alleging a case of criminal
   prosecutor Mr. Simpson, our committee                                                             a tendency t o mar Mr. Goldstein's reputa-
                                                   conduct by a lawyer on the single fact
   is strongly affronted by the idea and           that the homes of so-called "key"Govern-          tion as an attorney at law, is arguably
   precedent that such notion may set,                                                               so ill-considered, that it may be properly
                                                   ment witnesses were burglarized. On
  that a prosecutor can level an accusation         page four of the Government's Motion,            denominated as having been brought
  of criminal conduct against a member of                                                            either in bad faith or with an unprofes-
                                                   the Government suggests that if their
  the Bar and thereby create the inevitable                                                          sional and reckless disregard for the truth.
                                                   witnesses' homes are burglarized, it
                                                                                                         In conclusion, we urge this Court to
  chilling effect upon the vigorous ad-            follows that it ". . . is clear that a person
  vocacy which the sixth amendment of                                                                seriously consider the precedential value
                                                   or persons acting on one or more of the
  the United States Constitution and the                                                             of what has been done by the United
                                                   Defendant's behalf" must have per-
  Code o f Professional Responsibility insist      petrated same, and, that a vigorous,              States Government through i t s prosecu-
  upon when a lawyer represents a citizen                                                            tor here and the chilling impact that such
                                                   well-financed defense, "suggests" the
 accused o f crime.                               burglaries were accomplished at the                careless motions, accusing other attorneys
      What is particularly disturbing and         direction o f defense counsel.                     of criminal conduct, must inevitably
 offensive to us is that the prosecutor has            . . . the apparent source of finances         have on the effective assistance of counsel
 accused a member of the Bar of criminal               behind defense effort, suggests that          for a citizen who is accused of crime.
 conduct without adequately investigating             this is Mr. Goldstein and/or persons               BEWARE THE LAWYER WHO
 the matter; indeed, the prosecutor may               acting at his direction.                           VIGOROUSLY DEFENDS CITI-
 well be in violation of the professional             This committee is given to understand              ZENS ACCUSED OF CRIME IN
 code of conduct for his relying exclusive-       that two of these three so-called "key"                THIS COUNTRY LEST HE HIM-
 l y o n unsubstantiated speculation instead      witnesses did not testify against Mr.                  SELF BE ACCUSED OF THE
 of exercising "not only the right but the        Goldstein's client.                                    CRIME OF AIDING AND ABET-
 duty of the prosecutor in such [criminal]            The prosecutor's motion for contempt               TING: NAY, NOT GUILT BY
 cases to himself take the initiative [for        here, while not nearly as egregious as the             ASSOCIATION BUT GUILT BY
 investigation] ." State ex re1 McKittrick        prosecution which the Court found t o be               REPRESENTATION.
 v. Graves, 346 Mo. 990, 144 S.W.2d 91,                                                                           .,.
                                                                                                 r3.."..--*L.,,.. ,.:
                                                  in bad faith in Shaw v. Garrison. 457          "c,1JE'.L'U"y    3 U U I I I I Lted, Emmett Colvin,
 98 (1940). cited with approval in the            F.2d 113 (5th Cir. 19721. nevertheless Chairman.TCDLACo ntempt Strike Force

                                                          NEW M E M B E R S          ~   -

 MEMBER                             ENDORSER       MEMBER                           ENDORSER        MEMBER                           ENDORSER
George E. Shaffer                                  William Mark Turner . . . . .Jan Hemphill        J.B. Brookshire. . . . . . .Robert D. Jones
Wac0                                               Garland                                          Georgetown
Carol Chapman-Kondos                               Patrice McDonald . . . .Vincent W. Perini        LaDonna K. Ockinga . . . Susan Gorham-
Dallas                                             Dallas                                           Dallas                             Dickinson
John V. Gordon                                     Henry C. Paine, Jr.                              Robert Lewis Hurd . . . . . . . .Robert M.
Houston                                            College Station                                  Houston                             Clark, Jr.
Madeline D. Sitzes                                James A. DeLee . . . . . . .Robert Walden        Gus Trujillo
Houston                                            Port Arthur                                     Amarillo
Bernardo S. Gonzalez. . . . Javier Alvarez        William H. Jouette II . . . .George Roland
                                                  -                                                James Charles Fogo . . .Vincent W. Perini
Lubbock                                            McKinney                                        Pasadena
Charles Warren McDonald. . . .Charles M.           Larry P. King . . . . . . . . . James Pickett    Les Procter. . . . . . . . . .Robert D. Jones
Wac0                                  McDonald    Quitman                                          Austin
Oscar M. Laurel, Jr.                              Frank Robin, Jr. . . . . . . Douglas Tinker      Lang Smith . . . . . . . . .Robert D. Jones
Laredo                                            Woodlands                                        Austin
Vic Sasso . . . . . . . . . . . . .Jan Hemphill   William R. McGarvey                              John Andrew King. . . . . .David Spencer
Dallas                                            Dallas                                           Austin
Buddy Stevens . . . . . . . .Marvin Teague        Jose Luis Ramos . . . . . . .Nag0 L. Alaniz      Thomas A. Autry . . . . . . . . . J i m Bobo
Angleton                                          Hebbronville                                     Austin
Hames P. Sieloff . . . . . . . .Charles Butts     Tommy Sheffield                                  John A. Yeager. . . . . . . . . . .Tim Evans
San Antonio                                       Houston                                          Austin
Steven Lance Clack . . . . . . .Glenn Pipes       Jim D. Rudd. . . . . . . . William A. Dyess      Jerry Buckner. . . . . . . . . .Phil Burleson
Odessa                                            Brownfield                                       Weatherford


                                                                                   August-September 198OIVOICE for the Defense
            CROSSmEXAMINING THE COMPUTER
                        An Application of the Sixth Amendment
                                                                                                           James M. Shellow
                                                                                                       Milwaukee, Wisconsin
     At a conference some years ago, I                 All of these applications may inter-         cluding printers, and other peripheral
 discussed the defense of criminal cases           face with the defense of criminal cases.         unlts. Computer software is the collec-
 with a distinguished member of the New            In this article, however, I intend to sug-       tion of instructions which determine the
 York Bar. He confided that he only de-            gest two particular kinds o f prosecutions       computer's operation. The series of
 fended persons who were charged with              in which the government cannot meet              logical instructions which define a com-
 crimes "committed with a pen." The                its burden of proof unless it relies upon        plete procedure, a step in the process,
 whltecollar crimes which were corn-               computer-generated data. Such circum-            is called a computer program. Some pro-
 mitted with a pen twenty years ago today          stances may arise in fraud prosecutions.         grams govern or supervise the entire
are committed with computers. As the               and interestingly enough, in prosecutions        operation of the computer hardware and
 business community becomes more in-               concerning controlled substances.                are known as system software; while
volved with complex, high-speed data                                                                other programs are loaded into the com-
 processing devices, those who defend              COMPUTER-GENERATED EVIDENCE                      puter to give instructions on processing
criminal cases must familiarize themselves            The application of electronic data            specifically the facts and figures at hand
with the legal issues raised by reliance on        processing i s increasingly technical and in-                     s
                                                                                                    and are known a application programs.
such equipment.                                   creasingly pervasive in dayto day ex-                 What functions the computer is
     An understanding of computers is             perience. Though the overall concept ap-          capable of performing depend wholly
 necessary to a number of emerging sub-            pears complex. the underlying principles         upon the design and manufacture of the
discipl~nes within the practice of law.           and the application of these are not dif-         machine, and upon what it has been pro-
The patent and copyright lawyer regular-          ficult to understand. Data processing is          grammed to do. How well it will per-
 l y litigates whether particular computer         merely the "collecting, processing. and          form the function it was designed for,
programs can be protected from plagiar-           distribution of facts and figures to              if designed properly, will depend on the
                 .
ism. Parker v Fiook, 437 U.S. 584                  achieve a desired result." M. Bohl, Infor-       accuracy of the programs and upon the
 (1978); Dann v Johnston, 425 US. 219
                   .                              mation Processing 3 n.5 (1971). This                                   s
                                                                                                    data which is used a input. This concept
                       ,
 (1976); Gottschalk v Benson, 408 U.S.            processing operation can be performed by          is reflected in the cybernetics maxim,
6 3 (19721. Massive civil litigation i s rarely   any one of various means, including paper         "garbage in, garbage out."
undertaken these days without utiliz-             and pencil, a hand-held calculator, or a             All computer-generated evidence i s
ing automated data processing equip-              computer. When a computer is utilized,           created by this interplay of input data,
rnent. See, e.g., Note, Pricefixing and the       the operation is called electronic data          hardware, software, human programmers,
Problems of Proof, The Computer Lends             processing. But it IS important to keep in       human operators, output format, and
a Hand, 43 Mo. L. Rev. 686 (1978);                mind that no matter which of the means           even the human interpreters of the out-
            .
Siedge v J.P. Stevens, 585 F.2d 625               is utilized, it only "'works" by virtue of       put. When the reliability of the informa-
(4th Cir. 19781; Donaidson v. Pillsbury           the human factor. This factor decides            tion created by this process 1s at issue,
Co., 554 F.2d 825 (8th Cir. 1976) (use            what facts and figures will be collected,        it becomes necessary t o demonstrate
o f computer-generated statistics in em-          processed and distributed; what processes        the reliability of the process which has
ployment discriminationsuits). Litigation         will be applied; and in what meaningful          created the evidence. See Singer, Pro-
specialists use computers to organize                                      l
                                                  form the output w ~ lhe presented.               posed Changes to the Federa/ Rules o f
exhibits, depositions, and in general for             The computer is simply an electronic         Evidence as Applied to Computer-
document access, identification, and re-          calculating device, capable of perform-          Generated Evidence. 7 Rutgers J. Com-
trieval. Fetterly, Use ofa Computerasan           ing the task of manipulating and storing         puters, Tech. and L. 157 (1979). When
Evidence Management Tool in Products              vast amounts o f data in a relatively small      this evidence is introduced on behalf of
Liabilify Litigation, 29 Fed. Ins. Coun.          space, and of performing intricate calcula-      the state in a criminal prosecution it
Q. 231 (1979). Similarly, the United              tions at a faster, more precise rate than a      becomes incumbent on defense counsel
States Department of Justice utilizes             human counterpart.                               to challenge the foundation for such
extensive data banks for storage of in-               The computer, or electronic data             evidence, and to cross-examine the data
telligence on persons under investigation         processing system, is a combination of           on its reliability and thereby its cred-
and those who may be subject to such              computer "hardware" and the computer             ibility.
inquiry. Computers organize data cot-             "software." Computer hardware is the                 There are five reliability factors in
lected from electronic interceptions and          physical equipment, consisting of me-            evaluating computer-generated evidence:
provide a basis for government responses          chanical, magnetic, and electronic de-           (1) the equipment, (2) the programs,
to inquiries concerning such surveillance         v~ces-includmg input units, storage units        (31 the data entry process, (4) the pres-
and requests under the Freedom of                 in the form of tape and disk drives. a           ence or absence of application controls
Information Act.                                  central processing unit, output units in-        in the system and (5) the presence or


VOICE for the DefenselAugust-September 1980
                CROSS-EXAMINING COMPUTER                          USE OF THE COMPUTER IN CON-                   for analysis. Gas chromatographmass
                continued                                        TROLLED SUBSTANCE IDENTIFICA-                  spectrometer combinations are complete-
                absence of system security. Singer, supra        TlON                                           ly automated through the use of com-
                at 163.
                    ~~~                                              In a criminal trial involving a con-       puters (microprocessors). Shapiro, Chem-
                                                                 trolled substance, one element of the of-      ical Defenses in Drug Cases, 2 Nat'l J.
                   Computer hardware has a high degree
                                                                 fense is that the substance allegedly sold.    Crim. Def. 131 (1976).
               of reliability. By the time such equip-
                                                                 possessed, or manufactured is the sub-             The mass spectrometer normally has a  s
               ment is marketed, it has been thoroughly
                                                                stance charged. See Lunde v. State,             its output galvanometers that record
               tested. I t will rarely malfunction to alter
                                                                 85 Wis.2d 80, 86, 270 N.W.2d 180,              simultaneously on photographic paper or
               data without informing the machine
                                                                 183 (1978); State v Christel, 61 Wis.2d
                                                                                     .                          photographic-typescreens. This output is
               operator of such malfunction and the
                                                                 143, 159, 211 N.W.2d 801, 809 (1973).          difficult to read as i t is cluttered with
               need for curative action. Therefore,
                                                                The proseuction must prove every ele-           numerous "noises" which may be as-
               computergenerated output can be pre-
                                                                ment of the offense, including identifica-      sociated with either impurities in the sub-
               sumed to be free of error due to malfunc-
                                                                tion of the controlled substance, beyond        stance tested, imprecise machine design,
               tion of the hardware, unless facts are
                                                                a reasonable doubt. In re Winship 397           or improper machine utilization. It is i n
               introduced regarding the specific equip-
                                                                US. 358.36164 (1970).                           order to improve the readability of this
               ment, which would show otherwise.
                                                                    In order to meet this burden of proof,      output that the mass spectrometer may
               United States v. Russo, 480 F.2d 1228,
                                                                the prosecution often will rely upon the        be attached to a computer. This device
               1240 (6th Cir. 1973).
                                                               expert opinion testimony of an employee         accumulates the scan data and separates
                     This reputation for accuracy, which        of a county, state, or federal crime lab-      out the "noises." Accordingly, it may
    . .
                            are justlfkbly deserves, cannot    oratory. The expert will be asked to state      enharp, the reliability of the output.
I   ':                      %FtheSW;~@em. The com-             whether, in his opinion, the substance          ~ikewlse,it may make any output mean-
                                        h % 5 9m ,
                              are, i.e. t e & q . s    have    tested is the substance charged. Reports        ingless in terms of a true identification.
I                little to support such a presumEtion of
I                                                              and files prepared by the crime labora-         Access to the software, or programs,
                 accuracy. The programs are written by         tory will be provided upon request for          of this computer is necessary in order
                                               to
                 humans who frequently~fail "program"          discovery to counsel for the defendant.         for defense c o u n ~ lto determine the
                 for all possible contingenciw.The more        Fed.R.Crim.P.. Rule 16(a)(l)(D). The            effect of the computer on the reliability
                 complex the machine and the+bperation         expert witness f o r the prosecution will       of the spectra.
                to be performed, the more complex c            rely on these reports in giving his opin-
          "      must be the logic to accomplish the task,     ion on the identity of the substance. He   USE OF THE COMPUTER IN FRAUD
                and the more complex must be the tests        will base his opinion on the assumption     CASES
                of the programs. This leaves much room        that the results which were obtained           Computer-generated reports have been
                for human error. Most complex programs        utlizing certain instrumental tests were    used in numerous fraud prosecutions,
                are placed in operation (production)          unique, i.e. specific, for that particular  based upon fraud involving private
                before all errors (bugs) are discovered       substance. One of the most specific tests   parties, fraudulent transfers in bank-
                and corrected; experience shows that          upon which the expert can rely is the       ruptcy proceedings, and fraud prosecu-
                these errors may be discovered months.        mass spectrometer. The results he obtains  tions by the IRS. For example in United
                or even years, later. Therefore, not only     from this test will be essential to the    States v. Dioguardi, 428 F.2d 1033 (2d
                the programs, but the thoroughness of         formation of his opinion on the identity    Cir.), cert. denied, 400 U.S. 825 (1970).
               the testing procedures are elements which      of the substance.                          the defendants were charged with fraudu-
               determine the reliability of the computer-                                                lently transferring property of a bankrupt
               generated data.                                 THE MASS SPECTROMETER
                                                                  One of the most reliable methods of    and concealing it from the trustee in
                     Data entry, application controls, and                                               bankruptcy. The prosecution introduced
                                                               organic substance identification is mass
               system security are other points in an                                                    a computer report of inventory, daily
                                                               spectrometry. The principle behind mass
               electronic data processing system where                                                   sales, and inventory increases to prove
                                                               spectrometry is that high energy i s used
               human error can impair output reliability.                                                when the inventory should have been
                                                               to excite the organic molecules and in-
               These are aspects about which, depending
                                                               duce fracture of some of the molecules; depleted. Though the court upheld the
               upon the application involved, the de-
                                                               some of the molecules will stay intact. use of the computer-generated evidence,
              fense attorney may also seek discovery
                                                               The mass spectrometer has the ability it stated that in the future all materials
               information to facilitate cross-examina-
                                                               to measure the masses of all the frag- including computer programs should be
              tion.
                                                               ments, including the intact molecules. made available to the defense a reason-
                  Most cases to date, in which the pros-      The result is a spectrum of the masses. able time before trial, to facilitate an
              ecution has sought to rely upon com-            A typical mass spectrometer output effective cross-examination of the wit-
              puter-generated evidence to prove its                                                      ness.
                                                               (spectrum) may contain up to one
              case, have been fraud cases. Interesting-       hundred peaks and provide what is
              ly, as drug analysis instrumentation be-        likened to a "fingerprint" of the mol- COMPUTER-GENERATED                   OUTPUT
              comes increasingly complex, the prosecu-        ecule.                                     AND THE RULES OF EVIDENCE
              tion is relying upon computer analysis              The mass spectrometer may be com- Admissibility-Foundation
              of the output of the tests. This cornputer-     bined with a gas chromatograph. The           The rules of evidence require authen-
              generated identification will then be           effluent from the gas chromatograph tication or identification of evidence as
              used against the defendant a t trial.           flows directly into the mass spectrometer a condition precedent to i t s admissibility


                                                                                            August-September 198OIVOICE for the Defense
sufficient to support a finding that the     that the proper foundation be laid, and       evidence, hearsay by nature, is admissible
matter in question is what the proponent     that the proper indicia of trustworthiness      s
                                                                                           a an exception and whether a proper
claims. The proponent should be re           be presented.                                 foundation has been laid. Criminal de-
quired t o lay a foundation sufficient           The issue was considered in United        fendants have a Constitutional right of
to show that the process used to arrive      States v Dioguardi, 428 F.2d 1033 (2d
                                                       .                                   confrontation, This includes the right
at the data has lead to an accurate result.  Cir.), cert denied, 400 U.S. 825 (1970),      t o challenge the credibility and reliability
 Fed.R.Evid., Rule 901(b)(9).                in which the Second Circuit stated,           of the witnesses for the prosecution.
    The computer-generated output may              e
                                                 W fully agree that the defendants         Sie Douglas v. Alabama, 380 U.S. 415,
                              s
be cansidered alternatively a a statement        were entitled t o know what opera-        418 (1964); Painrer v Texas, 380 US.
                                                                                                                    .
by a witnes$ (18 U.S.C. 53500). a scien.         tions the computer had been in-           400, 404 (1964). In United States v         .
tific test performed on physical evidence        structed to perform and to have           Lieberf, 519 F.2d 542 (3d Cir.), cerf.
 (Fed.R.Crim.P., Rule 161, or the basis          the precise instruction that had          denied, 423 U.S. 985 (1975). the Third
or underlying facts and data of opinion          been given. It is quite incompre-         Circuit, in considering a discovery request
testimony by an expert witness (Fed.R.           hensible that the prosecution             under Fed.R.Crim.P., Rule 16(bl, stated,
 Evid., Rules 703 and 705). In criminal          should tender a witness to state the          The introduction of a mmputer
cases courts have recognized that the            results of a computer's operations            printout is admissible in a criminal
foregoing statutory authority implements,        without having the program avail-             trial provided that the party offer-
in part, a defendant's right of confronta-       able for defense scrutiny and use on          ing the computer information lays a
tion guaranteed by the sixth and four-           cross.examination i f desired. We             foundation sufficient to warrant
teenth amendments to the United States           place the Government on the clear-            a finding that such information i s
Constitution. Therefore, the prosecution         est possible notice of its obliga-            trustworthy and the oppojng p+  a
                                                                                                                               ~
                                                                                                                              a;
should be required to furnish not only           ton to do this and also of the great          is given the mme opportunif-;
an adequate foundation or authentication         desirability of making the program            inquire into the accuracy:otihe
but also all data in support of the assump-      and other materials needed for                computer and its input procedures
tion of reliability upqn which the expert        cross-examinationof computer wit-              s
                                                                                               a he has t o inquire into the ac-
will rely so that the defense counsel            nesses, such as flow-charts used in           curacy of written business records.
can adequately prepare t o cross-examine         the preparation of programs, avail-           (citatiohs omitted).
the expert and thereby exercise the de-          able to the defense a reasonable             A party seeking to impeach the
fendant's Constitutional right of con-           time before trial. Id. a t 1038.             reliability of computer evidence
frontation.                                                           .
                                                  In United States v Rum, 480 F.2d            should have sufficient opportunity
                                              1228 (6th Cir. 1973). cert, denied, 414         to ascertain by pretrial discovery
Admissibility-Trustworthiness
                                              U.S.1157 (1974). the Sixth Circuit con          whether both the machine and
    Since computer-generated output i s an
                                             sidered whether a proper foundation had          those who supply it with data input
out-of-court "statement" used to prove
                                              been laid for admission of computer-            and information have performed
the truth of the matter asserted, the hear-
                                              generated statistical reports.                  their tasks accurately. (citations
say rule would bar its admission a         s
                                                  [TI he trustworthiness of the par-          omitted). Id. at 547.
evidence, except under an appropriate            ticular records should be ascer-
exception. See Tapper, Evidence From                                                          There is an additional basis upon
                                                 tained before they are admitted           which to distinguish computer output in
Computers, 4 Rutgen J. of Computers
                                                 and . . . the burden of presenting        organic substance analysis from that
and the L. 324 (1974); Note,Appropriate
                                                 an adequate foundation for receiv-        normally classified under the business
Foundation Requirements far Admitting
                                                 ing the evidence should be on the         records exception. This computer applica-
Computer Printouts into Evidence, 77
                                                 parties seeking to introduce it. . . .    tion is not merely the input, storage,
Wash. U. L. Q. 59,63-73 91977).
                                                 Id. a t 1241.                             manipulation, and printout of statistical
    Two principles form the basis for the        The court adopted language from the
exceptions to the hearsay rule; (1) neceS-                                                 data (business records). It is the pur-
                                              Federal Judicial Center. Manual for Com-     ported identification of an illegal sub-
sity, and (2) circumstantial indicia of
                                              plex and Multidistrict Litigation, 02.717    stance through t h e use of electronic in-
 reliability or trustworthiness. Computer
                                              (19731, which deals at length with the       strumentation and is alleged t o be a more
printouts have consistently been found
                                              use of computer evidence.                    accurate identification as a result of t h e
admissible under the business records
                                                  It is essential that the underlying      use of computer software. This type of
exception. Fed.R.Evid., Rule 803(6);
                                                 data used in the analyses, programs       computer application can be likened to
 Fed. Business Records - Act, 28 U.S.C.
                                                 and programming method and all            the simulation model used in Perma
 51732. See United States v. Scholle,
                                                 relevant computer inputs and out-         Research and Development v. Singer C .    o,
553 F.2d 1109 (8th Cir.), cen. denied,
                                                 puts be made available to the op-         542 F.2d 111 (2d Cir.), cert denied,
434 U.S. 940 (1877); United States v.
                                                 posing party far in advance of            429 US. 987 (19761. in that it is speoif-
 Rumo, 480 F.2d 1228 (6th Cir. 1973).
cert denied. 414 U.S. 1157 (1974);
                                                       ..
                                                 trial. . (p. 88). Id.                     ically designed for use in litigation.
 United States v DeGeorgia 420 F.2d
                   .                                                                          Where, however, a computer is pro-
 889 (9th Cir. 1969) (all treating com- DEFENDANTS RIGHT OF CON-                              grammed to produce information
 puter printouts as business records under FRONTATION-ADEQUATE                    CROSS-       specifically for purposes of litiga-
 28 U.S.C. 51732, and admissible a a EXAMINATION
                                         s                                                     tion, an entirely different picture
 hearsay exception). Once found to flt            In a criminal trial, however, the con-       is presented. I t s product, which i s
 within the exception, it i s still necssary cern must be more than whether the                hearsay and conclusory, is not ad-


VOICE for the DefenselAugust-September1980
 CROSS-EXAMININGCOMPUTER                        CONCLUSION                                    of whether the computer programs
 continued                                           A computer-generated report can be       are held to be within the provision of
     missible under 28 U.S.C. §1732(a)          highly persuasive evidence. Likewise, the      Fed.R.Crim.P., Rule 16 (see, e,g., United
     or similar state statutes. (citations     statements by a prosecution expert                      .
                                                                                              States v Diofluardi, supra or within
    omitted). Under such circumstances,         witness which assert that use of a highly     the provisions of Fed.R.Evid., Rule
    a court should not permit a witness         technical machine has enabled him to                                       .
                                                                                              705 (see United States v Robinson,
    t o state the results of a computer's       ~dentify substance as a controlled sub-
                                                          a                                    No. 78-CR-106 1E.D. Wis. 19791) it is
    operations without having the pro-         stance, can be highly persuasive evidence.     clear that, unless the defendant requests
    gram available for the scrutiny of          Both the judge and the jury may feel          and is provided with proper discovery.
    opposing counsel and his use on             111-equipped to assess the credibility of     he will be deprived of a meaningful cross-
    cross-examination, (citations omit-        such a statement, will most assuredly be       examination of the state's expert, and
    ted). Moreover, such availability           ill-equipped to assess the accuracy of the    derivatively of a fair trial, due process
    should be made known sufficiently          computer, and therefore may give def-          of law and effective representation.
    in advance of trial so that the            erence to the opinion without adequately           Further, unless defense counsel i s
    adverse party w ~ l lhave an oppor-        assuring its reliability.                      adequately informed and knowledgeable
    tunity to examine and test the in-              The foregoing discussion cites author-    of the computer process, h e will be un-
    puts, program and outputs prior to         ities which support the defendant's right      able to conduct the meaningful cross-
    trial. Id. atlZz5.                         to examine and analyze the computer            examination and secure for the defendant
 But see United States v. Scholle, 553         programs which direct the operation of

                                                                                                        .....
                                                                                              his sixth amendment right of confron-
 F.2d 1109 (8th Cir.), cert. denied. 434       the computer upon which the state's            tation.
 US. 940 (1977).                               expert will base his opinion. Regardless

 MEMORANDA OF                                    of sentencing be entered as the date of
                                                 conviction for enhancement purposes?
                                                                                                   9.a. State's burden to prove exact
                                                                                               amount of felony damage alleged in an
 LAW                                                7. Enhancement of Class C assault to       indictment.
                                                Class 8 assault, when committed by an              9.b. Allegation of specific amount
              Prepared by                       employee of a nursing home upon a              between $200 and $10,000. limits the
         Matthew B, Jones                       patient. Does 522.01 (b) and (c), V.T.C.       state to prosecution for a third degree
       TCDLA Briefing Clerk                     A.P.C. violate the equal protection
                                                ciame?
                                                                                               felony.
                                                                                                   10. Improper enhancement allegation
     The following memos are on file in             10. Improper enhancement allegation        of both a prior Art. 6701 L-2 misdemean-
  the TCDLA office. Requests for memos           of both a prior Art. 6701 L-2 misdemean-      or conviction and a prior Art. 6701 L-2
  should be addressed to Matthew 8. Jones or conviction and a prior Art. 6701 L-2              felony conviction in the same indictment.
 at We Association office. There will be felony conviction in the same indictment.            PROBATION
 a charge for copies and postage                 EXCLUSION OF EVIDENCE                            3. The "continuing legal process"
  CIVIL COMMITMENT                                  6.b. Does a delay by the D.P.S. in the    ,sure a probation orderpis it a con.
                                                                                                       of
     18. Procedure for securing the com- testing of a blood sample render that                          final
                                                                                              viction, or otherwise?
 mitment of a convicted felon to a state blood sample inadmissible?                               4. Expunction of record under Article
 mental health care facility.                       8. Dade County. Florida case where        55-1s a misdemeanor probationer (un-
 CIVIL LAW PROJECT                              the radar speed gun was proven defective.     supewised) eligible upon completion     of
     I l a . A corporation's eligibility to re- EXPUNCTION                                    the probationary period?
 cover both actual and exemplary damages           4. Expunction of record under Article          16. Failure to formally pronounce
 from a tortfeasor.                             55-is a misdemeanor probationer (un-          sentence, or terms of probation, upon a
     I1b. General plea of privilege explana- supervised) eligible upon completion of          defendant and the effects on a subse-
 tion-what happens when one of multiple the probationary period?                              quent motion t o revoke probation.
 defendants succe$sfully asserts a plea of          5. Expunction of record under Arti-       SEARCH AND SEIZURE
 privilege?                                     cle 55-general explanation of who is              1. Proper defense against a fatally
 CORROBORATING ACCOMPLICE                       eligible.                                     defective indictment, in which there was
 TESTIMONY                                      GUILTY PLEA                                   a one year delay betwen receipt of the
     14. Sufficiency of evidence necessary         3. The ''continuing legal process"         informant's tip, and issuance of the
to corroborate the testimony of an ac- nature of a probation order-is it a con-               search warrant.
complice witness to a homicide.                 viction, final or otherwise?                      12. Legality of search of defendant,
 ELEMENTS OF PROOF                              INDICTMENTS                                   not named in the search warrant, who
    2. Evidentiary burden on the state,             1. Proper defense against a fatally      entered the premises named in the war-
the elements of proof in the offense of defective indictment, in which there was              rant during the search.
 forgery by passing.                            a one year delay between the informant's     SPEEDY TRIAL
    15. Classification of nun-chaku (in tip, and the issuance of the search war-                  17.a. The right of an incarcerated per-
Texas pronounced "nun-chucks") sticks rant.                                                  son to a speedy trial for subsequent of-
as a dangerous weapon.                             6.a. In an indictment, can the date of    fense (in this case, committed in prison).
ENHANCEMENT                                     sentencing be entered as the date of con-        17.b. Can this defendant claim a right
    6.a. In an indictment, can the date viction for enhancement purposes?                    to an appeal bond?


                                                                            August-September IQBONOICEfor the Defense
PRACTICE RULES FOR THE                                                    may, before or after the time has expired, and with or
                                                                          without motion and notice, extend the time of filing the
FIFTH CIRCUIT COURT OF                                                    notice of appeal for a period not to extend thirty (30)
                                                                          days from the expiration of the time otherwise prescribed
APPEALS                                                                   by Rule 4(b) F.R.A.P.
     The Fifth Circuit: Texas, Louis~ana.      Georgia, Mississippi,   4. Counsel should file a written notice of appeal which in-
Alabama, Florida, Canal Zone. (25 judges sit in three judge               cludes:
panels.)                                                                  a. The party or parties taking the appeal;
     Headquarters and address: United States Court of Appeals,            b. A designation of the judgment, order or part thereof
 Fifth Circuit, 600 Camp Street, New Orleans, Louisiana 70130.                appealed from;
     Admission to practice: All attorneys desiring to practice            c. The name of the court to which the appeal is taken.
must be admitted in the manner required by the Court.                  5. Advise defendant of right of appeal (particularly if court
 F.R.A.P. 46(A), LOCAL RULE5.                                             appointed).
     Necessary source materials: Local Rules, Internal Operating
Procedures Manual.                                                     MOTION FOR LEAVE TO PROCEED ON APPEAL I N
POST CONVICTION MOTIONS                                                FORMA PAUPERIS
 1. Motion for Judgment of Acquittal (Rule 29c).                       1. Counsel should file an affidavit reflecting the defendant's
    a. The motion must be filed within seven (7) days after               financial status. Form affidavits are available in the district
         the verdict.                                                     court.
    b. While the appellate, or post-conviction motion for              2. Counsel must also file a statement of the issues which he
         judgment of acquittal is important, the identical mo-            intends t o present on appeal.
         tion made during the course o f the trial is invaluable.      3. Caution: in the event that the district court enters an order
         The trial motion must be made after the government               finding the appeal to be frivolous, counsel can appeal on
          rests its case in chief, and again after both the govern-       an appropriate record.
         ment and the defendant close the evidence, in order           4. Defense counsel may not receive payment from or on
        t o challenge the sufficiency of the evidence on appeal.          behalf of defendant without prior authorization of United
          If the motion is not made twice during trial at the             States Circuit Judge.
         times indicated, the defendant may not challenge the
         sufficiency of the evidence on appeal unless it can be        FILING FEES
         demonstrated that there has been a manifest miscar-           1. When the notice of appeal is filed, counsel must Pay to
         riage o f justice.                                               the district court clerk, the Court of Appeals docketing fee
2. Motion in Arrest of Judgment (Rule 34).                                of $65.00 required by 28 U.S.C..Section 1913. See
    a. This motion must he made within seven (7) days after               F.R.A.P. 3(e).
        the verdict.
    b. Indictment or information doesn't charge an offense             THE APPELLATE RECORD
        or court was without jurisdiction.                             1. The appellant must order, from the reporter, within ten (10)
3. Motion for New Trial (Rule 33).                                        days after filing notice of appeal, a transcript of such parts
    a. This motion must be made within seven (7) days                     of the proceedings, not already on file, as he deems neces-
        after the verdict. unless it pertains to newly discovered         sary for inclusion in the record.
        evidence, in which case it may be filed up to within           2. This order for the transcript must be in writing and ade-
        two (2) years after the final judgment.                           quate financial arrangements with the reporter must be
    b. Counsel should use the motion to include matters not               made.
        otherwise shown in the record.                                 3. The distriet court will furnish a purchase order form as
    c. Counsel should use the motion to summarize conten-                 required by the Fifth Circuit. Once the purchase order has
        tions on appeal.                                                  been completed and folwarded to the reporter, with ade-
   d. No provision for hearing-request one.                               quate financial arrangements made, counsel's responsibili-
4. Mot~ono Correct or Reduce the Sentence.
             t                                                            ties under the recent amendments to F.R.A.P. 10 and 11
   a. This motion may be made within 120 days after the                   will have been fulfilled.
        sentence has been imposed and again within 120 days            4. Appellant is no longer required to seek extensions of time
        after the receipt of the mandate from the Court of                for filing of the transcript if the reporter cannot prepare it
        Appeals.                                                          within thirty (30) days from receipt of the appellant's
                                                                          purchase order. The matter of filing the transcript will
   b. Certainly, counsel should take advantage of an oppor-
        tunity t o file a motion to reduce the sentence imposed           be between the reporter and the clerk's office of the Fifth
        by the court.                                                     Circuit. Counsel will be kept informed when extensions of
                                                                          time are allowed on request made by the court reporter.
NOTICE OF APPEAL
1. Notice of appeal must be made within ten (10) days after            TELEPHONE INQUIRIES TO THE CLERK OF THE FIFTH
   the judgment or the order appealed from.                            CIRCUIT
2. If the notice of appeal is prematurely filed, it will be            1. The clerk's office welcomes telephone inquiries from
   considered as timely filed. unlike the state practice.                 counsel concerning any rules and procedures. I assure you
3. Upon a showing of excusable neglect, the district court                                                          s
                                                                          that the clerk's office is knowledgeable a to all the rules


VOICE for the DefenselAugust-September 1980
 PRACTICE RULES FOR FIFTH CIRCUIT COURT OF                                     short statement of the reasons why oral argument
 APPEALS continued                                                             would be helpful. Appellee's Brief shall likewise in-
    and procedures and will be very helpful when called upon.                 clude a statement of the reasons why oral argument
 2. Inquiries to the office should be made t o Mr. George G.                  should or should not be ordered. The court will accord
    Bauer, Jr., who is the expediter of the criminal appeals                  these statements due weight, although not controlling,
    unit. His telephone number is (504) 589-6456.                              in determining whether oral argument will be heard in
 3. In emergency situations arising after normal office hours,                the case.
    or on weekends, the name of the deputy clerk who has the              c. Summary of argument: Local Rule 13.6.2 requires
    emergency duty can be obtained by dialing (5041589-6514.                  that in addition to the requirement of F.R.A.P. 28, the
    However, if the deputy with the emergency duty cannot be                  opening briefs of the party shall contain the summary
    reached, a backup name is available on the recording, or                  of argument, suitably paragraphed, which should be
    any one of the following individuals may be contacted at                  a succinct, but accurate and clear, condensation of
    home and they will be able to advise the procedure for                    the argument actually made in the body of the brief.
    handling the problem. Richard E. Windhorst, Jr. 737-5315                   It should not be a mere repetition of the headings
    (October, February, June); George G. Bauer, Jr. 277-6186                  under which the argument is arranged. It should
    (November, March, July); Barry W. Stiebing 737-7692                       seldom exceed two pages and never five.
    (December. April, August); Rosalie C Varino 486-1382
                                           .                              d. The points of error:
    (January, May, September).                                                1) Select all meritorious points;
                                                                              2) Identify the complaint clearly-location in the
DOCKETING AN APPEAL                                                                 record; "directly from the record";
1. Appeals are immediately docketed upon receipt of the                       3) All relevant facts pertinent to the point;
   notice of appeal provided the docket fee has been paid to                  4) The applicable law;
   the district wurt, or, the district court of this Court has                5) Harmful vs, harmless error;
   granted an appeal in forma pauperis.                                       6) Breif, succinct, to the point;
2. A general docket number is assigned and all counsel andpro                 7) Research: Xerox important cases for the file.
   se parties are so advised.                                          3. Length: Local Rule 13.3 limits all opening briefs to 50
                                                                          pages regardless of the form of printing or reproduction
BRIEFING NOTICE                                                           used. Briefs in excess of 50 pages may be submitted only
1. As soon as the record has been recieved and processed, a               upon previous motion granted by the Fifth Circuit.
   notice to all counsel as to the time for filing is issued by        4. Form:
   the clerk's office.                                                    a. Seven copies of briefs shall be filed in all eases (Local
2. The notice sets forth the rules and procedures governing                   Rule 13.5).
   the form of briefs.                                                    b. Cover: Briefs must have cover of durable quality on
                                                                              both front and back sides and should be properly
 BRIEFS                                                                       secured by at least three heavy duty staples on the left-
                                                                                              o s
                                                                              hand margin s a to insure that the bound copy will
 1. Time Limits.
    a. The Appellant's Brief is due forty (40) days after the                 not loosen or fall apart from constant shipping and use.
          filing of the record (date of mailing controls).                    The cover must clearly indicate that name of the
                                                                              party on whose behalf the brief is being filed. (Local
    b. Appellee's Brief is due thirty (30) days aRer service of
                                                                              Rule 13.4).
          Appellant's Brief (appellee has thirty (30) days from
          the date of the certificate of service to place the brief       c. Color of covers of briefs:
          in the mail).                                                       1) Appellant's Brief: blue;
    c. Reply Brief i s due fourteen (14) days after service of                2) Appellee's Brief: red;
                                                                              3) Reply Brief: gray;
       . Appellee's Brief.
                                                                          d. Form of printing:
    d. Failure to process appeals timely will cause such
          cases to be promptly dismissed for want of prosecu-                 1) Counselor should personally check each copy of
                                                                                   the brief for legibility, completeness, and proper
          tion, without further notice, under the provisions of
          Local Rule 9(b).                                                         binding.
    e . If additional time is necessary to file the Appellant's               2) Briefs produced by any duplicating process in
          Brief, promptly call the clerk's office and confirm any                  8% X 11 inch size shall only use one side of each
         extension given by letter.                                                sheet.
2. The Contents of Briefs. Local Rule 13.7, Rule 28 F.R.A.P.
   a. Certificate of interested persons: except for parties to         RECORD EXCERPTS
         criminal cases, etc., the court requires all parties filing   1. Local Rule 13 provides that appeals from the district court
         briefs to certify a complete list of all persons, associa-       shall be on the original record without the requirement of
         tions of persons, firms, partnerships, or corporations           the appendix prescribed by F.R.A.P. 30.
         which have an interest in the outcome of a particular         2. At the time of filing Appellant's Brief, appellant must
         case. (Not necessary in criminal cases.)                         file four copies of the following portions of the district
   b. Request for oral argument: Local Rule 13.6.4 pro-                   court record, to be bound together, but not in the brief:
         vides that if counsel for appellant desires oral argu-           a. The docket sheet;
         ment, counsel shall include in the Appellant's Brief a           b. Any pretrial order;


                                                                             August-September 1980lVOICEfor the Defense
   c.  The judgment or interlocutory order;                                courts will not be considered good cause except in extra-
   d.  Any other order or orders sought to be reviewed;                    ordinary and unusual circumstances.
   e.  Any supporting opinion, findings of fact or conclusions         5. Submission without oral argument: When a case is placed
       of law filed or delivered orally by the district court.             on the oral argument calendar, a judge of the court has
3. Such copies shall be reproduced on white paper by any                   determined that oral argument would be helpful in that
   duplicating or copying process capable of producing a clear             particular case. Waiving oral argument is not looked upon
   black image, with a cover sheet bearing the oase number                 with favor and counsel may be excused only by the court
   and style and captioned "Record Excerpts."                              for good cause shown. Attorneys appointed by the court
                                                                           under the criminal justice act must appear for oral argu-
ORAL ARGUMENT                                                              ment unless excused b y the court for good cause shown.
1. The goal for advance notice to counsel of assignment of             6. Time for oral argument: Most cases are allowed twenty
   cases for oral argument is 45 days and the minimum is                  minutes to decide.
   thirty (30) days.                                                   7. Presenting argument: Counsel should prepare their oral
2. Identity of panel: The clerk's office may not disclose the             arguments with the knowledge that judges have already
   names of the panel members for a particular session until              studied the briefs. Reading from decisions or the record
   one week in advance of thesession.                                     is not permitted except in unusual circumstances, Counsel
3. Checking in with clerk's office: On day of hearing counsel             should be prepared t o answer questions by the court.
   should first check i n with the clerk's office thirty (30)          8. Lighting signal procedure: The courtroom deputy will
   minutes in advance of the convening of court to advise the             keep track of the time with the use of lighting signals. The
   courtroom deputy of the name of the attorney(s) who will               procedure used is available at the clerk's office.
   present argument for the party and how the argument time            9. Recording of oral arguments: Oral argument in ail cases is
   will be divided between the opening and rebuttal. At that              tape recorded for the exoiusive use of the court. Local Rule
   time, the names of the judges who will hear the case will              15.6 forbids making the tapes or transcripts thereof avail-
   also be made known.                                                    able to counsel or the parties. However, counsel may ar-
4. Continuance of oral argument: only by order of the court               range at his own expense for an official court reporter to
   on good cause shown. Engagement of counsel in other                                                ..
                                                                          be oresent. uoon advance aooroval of the court.



TOPICS:      Dental Identification
             Bite Mark Evidence
                                               FORENSIC DENTISTRY SEMINAR
                                                      October 31,1980
                                               This seminar is sponsored by the Univer-
                                               sity of Texas Health Science Center at
                                                                                                  Ms. JoAnn Hayashi
                                                                                                  Dental Coordinator
                                                                                                                                    I
             Child Abuse                       San Antonio. Tuition is $95. A detailed            Office of Continuing Education
             Mass Disaster                     brochure about the seminar will be sent            (512) 691-7291
                                               to all TCDLA members. I f you do not re-
                                               ceive a brochure or want more informa-
                                               tion, contact:



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VOICE for the DefenselAugust-September1980
                                       BOARD OF DIRECTORS MEETING
                                 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION
                                                  July 26, 1980
                                            Texas Law Center - Austin
    The meeting was called to order at           ings. Their reasons for absences were        tinuing Legal Education Committee;
 9:20 a.m. by President Robert D. Jones.         noted at their requests.                     Allen Cazier, Member Services Commit-
 The roll was called, and i t was established                                                 tee; Jan Hemphill, Finance Committee.
 that a quorum was present.                      RECEPTION                                       The appointments listed above were
                                                     Bob Jones expressed his appreciation     moved that they be adopted by Clifford
 MEMBERS PRESENT-Robert D. Jones,                to all of the Board members and their        Brown, and duly seconded by Rusty
 Giarles M. McDonald, Clifford Brown.            wives who were able to attend the cock-      D'Shea. A vote was taken by all members
 Bill Alexander. Cecil W Bain, Jim Bobo,
                        .                        tail reception which was held last night     present and the motion carried.
 Allen Cazier. Anthony Constant, Louis           at his home. He regretted that more mem-
 Dugas, Gerala Goldstein, Grant Harde            bers of the Court of Criminal Appeals        BOARD APPOINTMENTS
 way, Richard Harrison, Oliver Heard.            were not present, but that they are              Since there is a vacancy on the Board
 Clif Holmes. Arch McColl, Ed Mallett.          basically on vacation. He also Invited        because of the election of Tom Sharpe
 J.C. "Rusty" O'Shea, C.W. "Robin"              some of the other Travis County criminal                         s
                                                                                              to the position a second vice president,
 Pearcy, Charles Rittenberry. Larry Sauer,      judges to attend, because of the neces-       Bob Jones has appointed Eduardo Rod-
 Marvin 0. Teague, Stanley Topek, Robert        sity to cultivate such camaraderie.           riguez of Brownsville to fill the unex-
 Turner, Stanley Weinberg, M.P. "Rusty"                                                       pired term of office. This appointment
 Duncan, David Spencer, Bill Wood,              MINUTES                                      was so moved by Clifford Brown, after
 Jack Beech. Tim Evans, Joseph Connors,            The minutes of the April 12, 1980,         having been duly seconded, it was ap-
 Charles Carver, Emmett Colvin.                 El Paso Board of Directors meeting pre-      proved by a vote of all members present.
                                                                     .
                                                pared by Vincent W Perini were ap-            Robert Jones then notified the Board
 MEMBERS ABSENT-Thomas Sharpe,                  proved without reading on a motion by        that a letter of resignation from Rodger
 Jan Hemphill, Stephen Capelle, Richard         Rusty O'Shea, seconded by Clifford           Zimmerman of Austin, had been re-
 Anderson, Russell Busby, Raymond Ca-           Brown.                                       ceived by the Board. He then asked
 ballero, Antonio Cantu, Don Dailey, Jr.,                                                    that C.W. "Robin" Pearcy move from the
 Eugene deBullet, Woody Denson, W.V.            EXECUTIVE COMMITTEE APPOINT-                 Associate Directors to the full Board to
 Dunnam, Mike Gibson, Ron Goranson,             MENT                                         replace the unexpired term of office of
 Knox Jones, Pat Priest, Mike Thomas,              President Robert D. Jones appointed       Rodger Zimmerman. This appointment
 Ron Zipp, Rodger Zimmerman, Eduardo            the following members of the Board as        was so moved by Rusty O'Shea, and
 Rodriguez, Jim Kreimeyer, Jim Pons,            acting members of the Executive Com-         being duly seconded there was a vote of
 Dennis McGill, Herman Gotcher.                 mittee in accordance with Article 6.. Sec.   all members present, and the motion
                                                10, of the By-Laws; Jim Bobo of Odessa,      carried. In connection with the replace-
 REASONS FOR ABSENCES-                          Clif Holmes of Kilgore, and Gerald           ment on the Associate Board of Robin
 Thomas Sharpe-capital murder trial.            Goldstein of San Antonio. The other          Pearcy, Bob Jones asked that David
 Jan Hemphill-on vacation in Hawaii.            members of the Executive Committee           Bires of Houston fill the unexpired term
 Stephen Capelle-on vacation in New             will be the duly elected officers of the     on the Arwciate Board. A motion was
    Mexico.                                     Association. A motion to this effect was     made by Stanley Weinberg, with a second
 Richard Anderson-sick child.                   made by Clifford Brown, and with a           by Allen Cazier. After a vote of all mem-
 Russell Busby-in trial.                        uote of all members present, the motlon      bers present, the motion carried.
 Don Dailey-Army Reserves duty.                 carried.
 Eugene deBullet-death in family.                                                             CRIMINAL ~ E F E N S E   LAWYERS
 W.V. Dunnam-mother suffered a stroke.          APPOINTMENT OF CHAIRMEN OF                    PROJECT
 Mike Gibsonnecessary family matters.           STANDING COMMITTEES                              The C.D.L.P. has been approved for
 Knox Jones-on vacation in Mexico.                  Pres~dent Robert D. Jones a t this        funding, hut a t this time w do not know
                                                                                                                          e
 Rodger Zimmerman-resigned posit~on   on        time named his selections for the chair-     whether we will be cut off from funds on
    Board.                                      manship of each of the TCDLA standing        either September 30, 1980, or May 30,
 Ron Zipp-in trial Masrey vs. Parbmw.           committees. They are as follows: Robert       1981. President Jones has appointed a
 Eduardo Rodriguez-taking depositions in        Turner. Membership Committee; Ed              committee to look Into the funding of
   Arkansas, Cruz vs. Reeves,                   Mallett, Legislative Committee. During       the Criminal Defense Lawyers Project,
 Frank Maloney requests h~sabsence be           the legislative session, Ed will appoint a   and the task assigned to this committee
   noted in that hewasmarriedyesterday.         cochairman, from Austin, who will help       is to research the possibilities of whether
Weldon Holcomb states that he was ab-           coordinate the committee's work. Pat         the TCDLA could take the project over
   sent because he was on vacation in           Priest, Publications Comm~ttee; Arch         in full and put it on a money making
   Canada.                                      McColl. Amicus Curiae Committee; Ron         proposition. They are to negotiate with
 Note: Frank Maloney and Weldon Hol-            Zipp, Qualifications Committee (By-          the State Bar a to taking over all avail-
                                                                                                              s
comb are past presidents and their at-           Laws); R~chardAnderson, Public Rela-        able materials and books published by
tendance is not mandatory at board meet-        tions Committee; Gerald Goldstein, Con-      the C.D.L.P. The proposition is t o find


                                                                             August-September 1980/VOICE for the Defense
out whether or not we can take it over in      Board that we close our membership          CONVENTION PLANNING COMMIT-
toto, and put it on a money making             rolls as of December 31, 1980, and pre-     TEE
proposition as prior to the time we ob-        pare the new directory from that list of       At the time of the Board meeting
tained L.E.A.A. funding. This committee        names. Clifford Brown discussed that        there were no final figures to relate to
will be composed of the following per-         it was a very good and prudent idea.        the Board regarding the profits of the
sons: Glif Holmes (Chairman), Richard          At this time Clif Holmes moved that we      Criminal Law lnstltute held in Dallas.
Anderson, Knox Jones, Clifford Brown,          wait until December 31, 1980. to close      As soon as these become available. they
Oliver Heard, Pat Priest, Ed Mallett.          the membership rolls and publish a new      will be forwarded t o the Baord. A 1981
Arch McCoil, Jack Rawitscher. Eduardo          membership directory in January, 1981.      convention planning committee chairman
 Rodriguez. David Sheppard, Stanley            After being duly seconded, a vote of all    will be named at the next meeting. The
Weinberg.                                      present was taken, and the motion           state bar convention for 1981 will be in
    Clif Holmes stated that we must have       carried.                                    Houston, Texas.
some kind of upfront funding, that the
C.D.L.P. has not been a self-sustaining                                                       BOARD MEETING CALENDAR
program on the level it has been operated.                                                       The next date for the Board of Direc-
We will need to locate private funding.          LEGISLATIVE COMMITTEE REPORT                tors meetings has been set on October
He also stated that there will be approxi.          Ed Mallett expressed his appreciation 18. 1980. Grant Hardeway an8 Robert
mately 1.000 to 1,400 lawyers who will          for all the hard work and accomplish- Turner were appointed cochairmen for
attend these types of seminars in the           ments that have already occurred this the membership drive, reception and
state. Bob Jones asked Clif Homes to            past year regarding the TCDLA legislative selection for the meeting hotel. It was
have some type of report on the status          package. He asked that all Board mem- discussed that at the October meeting in
o f this committee's work by the next                                                        Houston a site for the January 1981,
                                                bers consider themselves members of
Board meeting on October 18th. in               the Legislative Committee; and urged         meeting and date would be made. Oliver
Houston.                                        that all members become familiar with Heard and Cecil Bain were appointed
                                                our specific package and to forward any cochairmen for the April Board of Direc-
BUDGET PROPOSAL FOR 1980-1981                   additional ideas to him. He proposed tors meeting to be held in San Antonio.
    Prior t o the Board meeting, there          that our program be adminsitered es- Tentative scheduling is for April 25,1981.
was a budget meeting held in Austin             sentially by a steering committee, with The actual date and selection of hotel
between Secretary-Treasurer Jan Hemp-           individuals concentrating on the House should be ptanned before the next
hill, Assistant Secretary-Treasurer Steve       and Senate bills separately. If any Board Board meeting on October 18, 1980.
Capelle, Judy Ward and C.M. Arnold,             member plans to be in Austin, during Clif Holmes stated that prior to each
TCDLA's C.P.A. After a commitment               the legislative session, please contact Board meeting a mailing should be sent
t o the general income and expense items        Ed Mallett to see if any specific bills to all the local members in that city
as being realistic and in tune with the         are being considered at that time, or if that the Board is meeting there and that
aims of Bob Jones' administration aims,         that member could help in our legisla- they are invited to attend.
the proposed budget was presented to            tive package work during his or her
the Board of Directors for discussion and       stay in Austin. A general discussion took MODEL RULES COMMITTEE REPORT
ratification. Judy Ward had in the Board's      place regarding the Attorney General's           David Spencer reported on the final
 passout material the actual proposal           proposed paraphernalia statute. Bob          meeting of the Model Rules Committee,
and description of all the income and           Jones asked that Ed Mallett be able to which was heavily loaded with paace
expense items, as pertaining to the actual      discuss t h i s in full giving the specifics officers. There will be a bill presented
financial position of the Association and       of it so that the Board can take a vote to the legislature for all agencies to adopt
the anticipated amounts thereof. After a        on TCDLA's position at the next Board a set of rules for peace officers to per-
general discussion, Jim Bobo made a             meeting. W will then notify the At- form by a set down by this committee.
                                                               e                                        s
motion that the proposed budget be ac-          torney General of our findings on this.      The model rules will be printed in an up-
cepted a presented, with a second by
           s                                                                                 coming issue of the VOICE for the
                                                At this time President Bob Jones asked
Clifford Brown.
                                                for the permission of the Board t o
                                                                                             Defense.
    Ciif Holmes will chair the VOICE Ad-        grant the president, along with the
vertising Committee to find more pro-           Executive Committee, t o hire a legislative GARLAND WlER TRIAL MANUAL
spective advertisers for the VOICE; all         representative, and set the salary range. PROPOSAL
 Board members are going to be sent                                                              A criminal trial manual written by
                                                Ed Mallett so moved with the amendment
rate cards for advertising and are asked
                                               to the motion that himself and David Garland Wier has been presented to Bob
t o solicit advertisers with firms that they
                                               Spencer of Austin be allowed to join in Jones to present to the Board a proposal
regularly do business.
                                               the discussions. After beina dulv sec- that TCDLA print this manual consisting
                                               onded by Rusty O'Shea, it- w3s -noted of 526 pages; which is similar to the
MEMBERSHIP DIRECTORY                           that the person hired must monitor all McClung books with cases cited in the
   President Bob Jones stated that we are      bills affecting narcotics, wiretap, oral back of the manual and dated. It w x
now in the eighth month of the current         confessions, DWI and all other bills decided t o try to print as is a a trial s
year; and his proposal is that we wait         affecting criminal justice in Texx. There notebook in looseleaf form. Clif Holmes
until January 1981 t o print a new mem-        was a vote taken on the above, and the made a motion to give the president the
bership directory. He proposed to the          motion passed.                                authority to appoint a committee or to


VOICE for the Defenseldugust-September 1980
 JULY BOARD MEETING continued                   of $50.00.   $75.00, and $100.00 was         SIGNIFICANT DECISIONS COMMIT-
 go through the E~~~~~~~~
                        Committee to            given. Also he would like consideration of   TEE
  get a bid on the costs and make a decision   the National Criminal Defense Lawyers             President Bob Jones has appointed
  regarding the printing and decide upon        Association practice of presenting to the    the following committee to study and
  the sales potential. It was decided that     writer of the brief a certificate of merit    decide what alternatives we have to the
  TCDLA wants t o have the main sales          for work done "over and above the call        writing of the Significant Decisions
  rights to the manual: and that it carry      of duty." Bob Jones referred the ques-         Report of the VOICE, when we lose
  our distinctive logo. It was discussed       tion of payment for out of pocket ex-         our long-standing author, judge-to be
  that it could sell for about $35.00 per      penses for persons doing amicus curiae        Marvin Teague. The committee will be
  book, and that TCDLA members get a           briefs to Secretary-Treasurer Jan Hemp-       chaired by Emmett Colvin along with the
  $5.00 discount. We would print the book      hill, who is to locate the money to de-       following committee members: Weldon
  and split the profits with Garland Wier,     fray these costs and report back to the       Holcomb, Clif Holmes. Tom Sharpe,
 with TCDLA paying for the printing.           Board at the October 18th meeting.            Clifford Brown, Dane Whitworth, Mike
  It was discussed that we join the CLE                                                      Matheny. They ale to report to the
 section of the State Bar to assist with                                                     Board their findinas at the October
 the printing costs. The motion was                                                          18, 1980, meeting inkouston.
                                                COMMITTEE FORMED TO WORK
 amended to read that the Executive             WITH THE STATE BAR
 Committee have the full power to print             Emmett Colvin has corresponded with LEGAL AID AND CRIMINAL DE-
 this manual with the support and in con-        Franklin Jones in connection with the FENDANTS
 junction with the State Bar. With a sec-       Constitutional amendment regardmg the         In prior times Legal Aid was pro-
 ond by Charles Rittenberry there was a         appeal procedure. A great deal of en- hibited from working with indigent
 vote of all members present. and the           abling legislation needs to be prepared. criminal defendants. There is a movement
 motion carried. This manual should sell         It was his understanding that a $50,000 for Legal Aid t o form a group that would
 advertising to offset the printing costs.      grant had been given t o the State Bar, cater to representing indigent criminal
 Garland Weir will update this manual.          with Judge Greenhill being in charge of defendants on the national level. Bob
                                                the project. What Frank Maloney, along Jones would like to have some expres-
  AMICUS CURIAE COMMITTEE
                                                with Emmett Colvin. feels is that we sion from this Board whether or not we
     Arch McColl discussed the recent           must appoint a committee to coordinate are for or opposed to Legal Aid, or what-
 work of the committee, where a report          and work with the State Bar on this ever entity it is, getting into the criminal
  of their work was given at the April 12,      vital project. Bob Jones appointed Frank business. The local legal aid office in
  1980, Board meeting. He related to the        Maloney chairman of that committee,        Lubbock is now using United Fund
  Board the success of the California At-      and, along with all the other past presi-  monies. They are not helping the true
 toneys for Criminal Justice Amicus
                                               dents of this Association, to be TCDLA's indigents. The local commissioners'courts
 Committee, where the Supreme Court of
                                               voice and to see that our pomt of view i s are using the Legal Aid facilities and try-
 California requests briefs from them.
                                               expanded and brought forward in that ing to get out of paying the local lawyers
 Arch McColl is proposing that when an
                                               enabling legislation. He then asked the indigent appointees fees. After general
 attorney receives a white card regarding
                                                Board to ratify the appointment. Clifford discussion it was a concensus of this
 an appeal that if the case has specific
                                                Brown so moved that the above appoint- Board to oppose Legal Aid getting into
 significance or an unusual impact on
                                               ments be approved, seconded by Rusty the criminal busmess. A motion to that
 criminal law if they would send a copy of
                                               O'Shea. A question was called and after effect was made by Clifford Brown,
 the brief and an explanation of the case                                                 seconded by Rusty O'Shea. A voice
                                               a voice vote the motion carried.
 to a member of the Amicus Curiae                                                         vote was taken and the motion carried.
 Committee. At this time he circulated a                                                  Arch McColl asked that a notice be
 list to the members of the Board, to                                                     given to this effect in the VOICE, and
 designate whether they would like to be        QUESTIONNAIRE TO BE PRINTED I N that local members collect data, in the
 members of this committee. Arch McColi         VOICE                                     various areas of the state. President Jones
 handed t o the members of the Board a                                s
                                                    Emmett Colvin a chairman of the asked that Arch McColl prepare a ques-
 proposed ad concerning the Amicus              National Criminal Defense Lawyers Asso tionnaire or a missile to the membership
 Curiae Committee and its work, which he       ciation prosecutorial misconduct commit- regarding this, and that this be forwarded
would like t o see as close to the inside      tee, through the committee, had sent out to Clif Holmes for presentation in the
         s
cover a possible of the next magazine.         a questionnaire throughout the United VOICE.
 Clif Holmes moved that Arch McColl            States. They received some very good
finalize the ad he wants in the VOICE,         input from many states except from SPRING TRIP
submitted to Judy Ward at the head-            Texas. He would like to see the ques-         The annual spring trip and seminar
quarterr office: and that it be printed in     tionnaire printed in the VOICE for the is now in the planning stages, preferably
the next issue of the VOICE. A question        Defense. After discussion with Clif scheduled for March, 1981. Cancun.
was called and the motion carried. Arch        Holmes and the possibilities of this being Mexico is where the Board went before,
McColl asked the Board t o consider some       run in the magazine, a motion to that but other sites are being discussed.
token payment to the person who actu-          effect was made by Stanley Weinberg, Richard Anderson, our chairman, is
ally prepares the briefs for the Amicus        being seconded by Clifford Brown. A instructed to plan a seminar, not in Can-
Committee. A mention of a token amount         vote was taken and the motion carried. eun, for the spring term. Clif Holmes


                                                                            August-September 19BONOICE for the Defense
was instructed to advertise the upcoming o f the state will work t o collect members strike force. It was discussed by Gerry
trip a soon as information becomes through the chairmen and committee Goldstein that it now must be a crime
       s
available.                                 members. At the next Board meeting t o vigorously defend your clients. Em-
                                           Robert Turner will report to the Board mett Colvin was named chairman of
MEMBERSHIP                                 regarding the chairmen selected, and the this committee, with the members named
    Robert Turner has been appointed number of new membem that each com- as follows: Arch McColl. LOU Dugas,
t o be chairman of the Membership Com- mittee has obtained.                          Frank Maloney, Knox Jones, Gerald
mittee. President Bob Jones has asked                                                Goldstein, and Ray Caballero.
the Board t o individually gather ten (10)
new members each during this administra- CONTEMPTSTRIKE FORCE                           The meeting was adjourned at 11:40
tion. Bob Jones has asked that Robert         President Bob Jones appointed a corn a.m.
Turner appoint regional committee per- mittee which was brought to his atten-                          Respectfully submitted,
sons to work with him to coordinate tion by Arch McColl: Gerald Goldstein                                           Judy Ward
the work of each committee. Each region volunteered to be the first client of the                      Exec. Asst. to the Pres.
                                                          . . I . .



                                    BOARD OF DIRECTORS MEETING
                               TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION
                                               Aaril 12. 1980

   The meeting was called to order at         Robert Salinas-resigned Board, became funding if the L.E.A.A. funding is dis-
1 : 5 a.m. by President Vincent W.
 00                                             criminal DA, Hidalgo County.           continued. Bill Habern also discussed the
Perini. The roll was called, and it was      Stanley Topek-in trial, Wiggins v. State. funding crisis.
established that a quorum was present.        Ron Zipp-absence due to eye problem.         There was a long discussion concern-
                                             Bill Wood-in trial,State v. Bowns.        in9 what steps might be taken to influ-
MEMBERS PRESENT-Vincent Perini,                 (The El Paso airport was closed on the ence Congress. It was moved by Mike
David Bires, Richard Anderson, Jack          mofning of Saturday, April 12, because Gibson, and seconded. that the presi-
Beech, Jim Bobo, Ray Caballero, Anth-        of an unseasonal norther which brought dent send a mailgram to i l l 1 of the Texas
ony Constant, Eugene de Bullet, Woody        fog, rain, ice and snow: gee attached delegation and that the TCDLA oSfice
Denson. Bill Dunnam, Mike Gibson,            newspaper clipping, made a part of these should send mailgrams to individual
Grant Hardeway, Oliver Heard, Jan            minutes for posterity.)                   persons in the delegation on behalf of
Hemphill, Clif Holmes, Charles Ritten-                                                 individual Board members who know
berry, Tom Sharpe, Robin Pearcy, Stan-       MINUTES                                   them. Other persons ought t o make
ley Weinberg, Don Carter, Jim Pons,             minutes of the january 26,      lgm,   telephone calls to selected persons among
David Spencer, Weldon Holcomb, and           Board of Directos meeting in Austin the delegation, which was offered as an
Arch McColl.                                 were approved without reading on a amendment by Oliver Heard. The motion
                                             motion by Oliver Heard, seconded by carried.
MEMBERS ABSENT-Bob Jones, Charles            Tom Sharpe.
McDonald, Clifford Brown, Doug Tinker,                                                 NOMlNATING COMMITTEE REPORT
Bill Alexander, Cecil Bain, Russell Busby,   BOARD APPOINTMENT                            Weldon Holcomb, chairman, presented
Charles Butts, Tony Cantu, Waggoner             ~h~ president announoed to the the report of the Nominating Committee.
Carr, Allen Cazier, Don Dailey, Louis        Board the                of ~     ~ Salines There followed a long discussion of web-
                                                                                      b    ~     ~     t
Dugas. Gerry Goldstein, Richard Har-         of &jinburg, who had been appointed lems in the nomination procedure, in-
rison, Ed Mallett, Pat Priest, Robert                 ~ i ~ t~~ i ~t t                   cluding ~ .
                                                                           for ~t i d ~~l ~ ~ the failure of our ~
                                                                                                         ~         record.keeping
Salinas, Larry Sauer, Stanley Topek,         County. The president announced the System to properly identify Board mem-
Marvin Teague, Robert Turner. Rodger                                         .
                                             appointment of Archibald C McColl, bers whose terms expire. To Correct con-
Zimmerman, Ron Zipp, Rusty Duncan,           111 of Dallas to fill salinafsplace on the fusion in the Nominating Committee's
Ron Goranson, Jim Kreimeyer, Robert          Board. The Board approved this appoint- rePo" as made, a motion was made and
Joseph, Rusty O'Shea, Michael Thomas,        ment unanimously.                           seconded that Stanley Topek's name be
George Thompson, Bill Wood.                                                              included among the Board members
                                             CRIMINAL DEFENSE LAWYERS                    nominated, that Jan Hemphill'$ name be
REASONS FOR ABSENSES-                        PROJECT                                                 s
                                                                                         eliminated a a Board nominee since she
Bob Jones-on reserve active duty,                Weldon Holcomb, Chairman ofthe Ex- had been nominated also for the position
    U.S.M.C.. Washington.                    ecutive Committee of the C.D.L.P., re. of secretaryltreasurer. Jack Beech'sname
Charles McDonald, Bill Alexander, Gerry      ported. The Executive Committee had was added t o the list of those nominated
   Goldstein-unable to leave D/FW air-       met immediately preoeding the TCDLA to be associate directors, in place of
   port because of weather conditions.       Board meeting. There is a funding crisis Richard Harrison, a member of the Board
Ciifford Brown, Rusty O'Shea-snowed in.      because L.E.A.A. funds are jeopardized whose name was erroneously placed
Russell Busby-son's birthday.                by federal budget cutting. It is possible among those nominated as associate
Ed Mallet-in capital murder trial.           that the State Bar of Texas would take up directors. The motion also stated that


VOICE for the DefenselAugust-September 1980
  APRIL BOARD MEETING continued                Tom Sharpe, Brownsville. 24. Rodger             mailed t o the membership not later than
  each director and associate director from    Zimmerman, Austin.                              40 days prior to the annual meeting.
  now on should fill a numbered "place"            1982: 25. Bill Alexander. Dallas.           Ballots must be returned to the associa-
  on the Board or the Associate Board to       26. Richard Anderson, Dallas. 27. Don           tion office by ten days before the annual
  end confusion concerning expiration of       Dailey, Corpus Christi. 28. Woody Den-          meeting. Elections shall be by a majority
  terms. The proposed list (which is at-       son, Houston. 29. Louis Dugas, Orange.          vote of the ballots received.
  tached a an exhibit) was distributed
            s                                  30. Bill Dunnam, Waco. 31. Gerry Gold-
  showing the persons on the Board for         stein, San Antonio. 32. Richard Harrison,       TDC VISITATION-Rummel, Special Re-
  1979 and 1980, those twelve whose            Dallas. 33. Edward Mallet, Houston.             port by Scott Atlas, Houston
  terms expired, and the 1980 nominees.        34. Robert Turner, Houston. 35. Larry               Scott Atlas of Houston, a member of
  The form also shows the term which will      Sauer, Houston. 36. Ron Zipp, New               the firm, Vinson and Elkins, made a spe-
  expire in 1981 and 1982 alongside the        Braunfels.                                      cial guest report to theBoardof Directors.
  names of the Board members occupy-                                                           He reported informally on his argument
  ing those positions. The form identifies      QUALIFICATIONS & BY-LAWS COM-                  and the decision in the case of Rummel v .
  each Board member's position by num-          MITTEE REPORT                                  Texas (concerning the constitutionality
  bers one through 36, which are to be the          Oliver Heard made the report of the        of our habitual criminal statute). and he
  Permanent numbers affixed t o those           Committee and moved the adoption of            offered comments concerning salutary
  positions from now on. Associate Board        proposed bylaw amendments for pre-             changes that might be made with respect
  Positions will also be numbered. The         sentation to the full membership at the         to the Texas habitual criminal statute.
 motion carried.                               annual meeting in June. The motion              He made a formal report t o the Board
                                               carried. The proposed amendments are a      s   and tendered a proposal which he had
     The 1980 nominees for officers,
                                               follows:                                        prepared concerning attorney visitation
 directors and associate directors are a   s
                                                    Article 8, Sec. 1. Eleotions. By mailed    rules for the Texils Department of Cor-
 follows:
                                                ballots before each annual meeting, the        rections. His proposal was the result of
     Officers: President, Bob Jones, Austin;
                                                association shall elect officers, associate    work he had done in litigation by court-
 President-elect. Charles McDonald. Waco;
                                                directors, and one-third of the board          appointment concerning such rules, and
 First Vice President, Clifford Brown,
                                                of directors to take office immediately        he asked for input from the TCDLA and
 Lubbock: Second Vice President, Tom
                                                after adjournment of the annual meet-          hoped to use the organization as a means
 Sharpe, Brownsville; SecretarylTreasurer.
                                                ing. The officers and assoicate directors      of disseminating his proposals. There was
 Jan Hemphill, Dallas; Assistant Secreatryl
                                                are to serve for one year or until their       extensive discussion. The proposed rules
 Treasurer, Stephen Capelle. Austin.
                                               successors take office. Directors are to        are to be published in VOICE for the
     Directors: 1. Cecil Bain, San Antonio.
                                               serve for three years or until their suc-       Defense.
 2. Ron Goranson, Dallas. 3. Knox Jones.
                                               cessors take office.
 McAllen. 4. Tony Cantu, San Antonio.
                                                   Article 8, Sec. 2. Nominating Com-           HEADQUARTERS RENTAL
 5. Mike Thomas, Fort Worth. 6. Eugene
                                               mittee. The president shall appoint a              Although both Judy Ward and Bob
 DeBullet, Fort Worth. 7. Mike Gibson.
                                               nominating committee with one member            Jones were absent from the meeting,
 Dallas. 8. Oliver Heard, Jr., San Antonio.
                                               from each of the association's member-          the president brought to the Board's
9. J.C. "Rusty"         O'Shea, Lubbock.
                                               ship areas. The chairman of the nominat-        attention the proposed Office Lease Con-
 10. Marvin Teague, Houston. 11. Stanley
                                               mg committee shall meet and report to           tract which had been negotiated between
Topek, Houston. 12. Stanley Weinberg,
                                               the president i t s nominations for officers,   the Stokes Building and Bob Jones. It
 Dallas.
                                               directors and associate directors by 130        provides for renting the current space
     Associate Directors: 1. M.P. "Rusty"
                                               days prior to the annual meeting of the         for a term of two years from July 1,
Duncan, Decatur. 2. James Kreimeyer,
                                               association. The president shall inform          1980, a t a base monthly rental rate of
Belton. 3. C.W. "Robin" Pearcy, San
                                               the association membership of the com-          $781.50. Clif Homes moved that the
Marcos. 4. James Pons, San Antonio.
                                               mittee's nom~nationsnot later than 90           association enter Into this renewal of our
5. David Spencer. Austin. 6. Bill Wood,
                                               days before the annual meeting.                 lease a t the Stokes Buildmg, the motion
Denton. 7. Jack Beech. Fort Worth.
                                                                                               was seconded by James Bobo, and the
8. Tim Evans, Fort Worth. 9. Joseph A.              Article 8, Sec. 3. Nominations. (b) The
                                                                                               motion carried.
Connors Ill, McAllen. 10. Dennis McGill,        nominating committee shall nominate
Lubbock. 11. Herman Gotcher, Austin.            two person for president-elect. (c) A
                                                                                             BREAK--Honorable Harry Lee Hudspeth.
12. Charles D. Carver, Beaumont.                member who desires t o seek election a     s
                                                                                             U.S. District Judge
    For the record, the other 24 directors      officer, director or associate director of
whose termswill expire in 1981 and 1982                                                         Ray Caballero of El Paso introduced
                                                the association may file a petition t o that
and their place numbers are as follows:                                                      Judge Harry Lee Hudspeth, formerly
                                                effect. Such petition shall set forth the
                                                                                             a member of the Board of TCDLA, who
    1981: 13. James Bobo, Odessa. 14.           office he seeks and shall contain the
                                                                                             briefly addressed the Board. There fol-
Ray Caballero, El Paso. 15. Russell             signatures of at least 50 members of the
                                                                                             lowed a break, during which Mexican
Busby, Amarillo. 16. Allen Cazier, San          association. The petition shall be filed
                                                                                             appetizers and beer were served.
Antonio. 17. Anthony Constant. Corpus           a t the office of the assocration not later
Christi. 18. Grant Hardeway, Houston.           than 70 days prior to the annual meet-
19. Clif Holmes. Kilgore. 20. Pat Priest,       Ing. The president, upon satisfaction that TDC STAFF COUNSEL CRISIS
San Antonio. 21. Charles Rittenberry,          the petitions are in order, shall cause          Bill Habern discussed the crisis in
Amarillo. 22. Arch McColl. Dallas. 23.         to be prepared ballots which shall be funding of the traditional Texas De-


                                                                              August-September lQ8OlVOlCE for the Defense
partment of Corrections staff counsel       be sworn to by persons with personal           (By this time the meeting room at
office, through which staff lawyers tend    knowledge whether or not the defendant.     the "Top 0' The Inn" had become
to the legal needs of Texas prisoners.      There followed a discussion of other        increasmgly uncomfortable due to the
T b C proposed to cut the budget, and       possible legislative ideas, including the   unseasonable cold and most members
various proposals were in the works with    proposition that any person accused of      were standing and stomping their feet.
respect to how the void was to be f~lled.   the crime of public intoxication be per-    Because of this. plus the poor attendance
                                            mitted, upon demand, to have a breatha-     due to the inclimate conditions, the
MEMBERSHIP APPLICATION                      lyzer test where it would have otherwise    Board determined to abandon the agenda.)
   The president called to the attention    been available for testing persons ac-
of the Board a small change in the mem-     cused of DWI; and that the legislative         President Perini briefly reported on
bership application form concerning the     committee explore the present rules with   several other items. A request had been
use of credit cards for payment of mem-     respect to a defendant's right to waive    made of the association to recommend
bership dues. The by-laws require that      a jury trial.                              someone t o do some work with the
the Board approve changes in the mem-                                                 Jail Standards Commission concerning
bership application form. Oliver Heard      PUBLICATIONS                               jail libraries. President Perini reported
moved approval of the change in the             The president reported that Pam that he would recruit Ted Redington of
form, the motion was seconded by James      Lancaster had been hired as a part-time Dallas. He also commented that law
Bobo, and the motion carried unani-         "managing editor" of VOICE to be paid school chapters of the association had
mously.                                     at the hourly rate of $7.50. Upon motion been formed in various places, and that
                                            b y Clif Holmes that her employment be the Baylor association was particularly
 DELINQUENT MEMBERS                         ratified on those terms. seconded by active and needed our support. He re-
     The Board discussed what to do about Stanley Weinberg, the Board voted ap- ported that it was his decision to appoint
 members who had not paid their 1980 proval                                            no awards committee this year.
 dues, a l i s t of which had been mailed                                                  The meeting was adjourned at 2:40
 out prior t o the meeting by Judy Ward AMICUS CURIAE COMMITTEE                        p.m.
 t o each Board member by city. The            Arch McColl of Dallas made his                             Respectfully submitted,
 Board discussed the by-laws provision presentation to the Board with respect                                              .
                                                                                                                 Vincent W Perini
that persons who have not paid their to a special report he and David Botsford                                  President 1979-80
dues are automatically dropped from of Dallas had prepared a t the special                              EXHIBIT
membership according to a timetable request of the association president con-
                                                                                           Surprise storm snaps EP power
from when the dues are due. Upon mo- cerning improvements in the amicus What happened t o April springtime,
tion by Anthony Constant, seconded curiae procedure. He presented a writ-                              sunshine?
b y Oliver Heard, the Board voted against ten report with copies for each Board
dropping delinquent members at least member.                                               Reprinted from The El Paso Times,
until after the annual meeting so that
                                                                                      m r i l 13, 7980.
the new Association Board might have PUBLIC RELATIONS COMMITTEE
                                               Richard Anderson, committee chair-          An icy spring storm knifed into the
an opportunity to come to grips w ~ t h
the problem. There was a further motion    man, reported on the Lake Tahoe trip. Southwest Friday night and Saturday
                                                                                      morning, cutting down power poles,
that Board members personally get the The president reported on the status of
                                                                                      toppling trees and leaving tens of thou-
delinquent members to pay their dues. the TCDLA logo, lapel pins, being pur-
                                                                                      sands of El Pasoans without electricity
The motion carried. Stanley Weinberg chased through the efforts of Mike Brown
went on record opposing the motion;        of Lubbock, and Richard Anderson for much of the day.
                                                                                           The cold front seemed to come from
he would suspend the delinquent mem- moved that lapel pins be given to each
                                                                                      nowhere late Friday night, following
bers until such time as they pa~d    their of the speakers a t the Lake Tahoe insti-
dues.                                      tute, which motion, seconded by Bill three days of bright sunshine and tem-
                                           Dunnam, was approved by the Board. peratures in the middle to upper 80s.
                                                                                           FI Paw r-....             Scott Cusac
                                                                                           -. . . - nnlicn o f f ~ c ~ r -
                                                                                                 .                    --
                                                                                                                       ~~




                                                                                      said he was directing traffic on Dyer
                                                                                      Street Fridav night and felt the cold
                                                                                      front hit with a rush of wind and a chill
 Ed Mallett, committee chairman. He VENTION                                           that went "'all the way through me."
reported on proposals which had been           Vincent Perini reported briefly on the      Standing in the middle of the road in
considered at the meeting of the           Status of plans but details were deferred a short-sleeve summer uniform. Cusac
tee the orevious dav. ~h~~ inctuded to a special committee meeting to follow felt the temperature drop almost 20
whether as a matter of policy we should the Board meeting.                            degrees in 15 minutes.
b e against capital punishment; service of                                                 By 7 a.m. Saturday, the temperature
subpoenas by any person over eighteen DEATHWATCH                                      dropped to a low of 31 degrees at the
Years of age; notice and hearing before        Richard Anderson reported the status airport.
defendant's bail can be changed; new of the Deathwatch Committee. He had                   At 10 p.m. Friday the temperature
rules about closing arguments; and elicited interest from members but was 72 degrees on the East Side. Fifteen
changes in the law with respect t o mo- reported that he had received no response minutes later, the Arctic cold front
tions for continuance allowing them to from his advertising in VOICE.                                       IContmuedon page 611



VOICE for the DefenselAugusf~September1980
COMPUTERIZED INFORMATION SYSTEMS AVAILABLE TO
TEXAS PROSECUTORS AND INVESTIGATORS
                                                                                                                Matthew 6. Jones
      Texas criminal investigators may gain               The TECS includes several subsystems.
  access to a variety of information systems       First, there is the CMlR This handy
  in their search of a suspect's background,      l i t t l e system keeps a record of all Persons       The source of information last dis-
  even if he or she is an unindicted cocon        who declare that they are carrying over            cussed by the author is, according to him,
  spirator or an ordinary civilian. In order      $5000 when they enter or leave the                 virtually omniscient in scope. The El
  for local criminal investigators to gain        country. Since many "organized crime               Paso Intelligence Center (EPIC) can gain
  access to federal law enforcement infor-        types" who carry large amounts of                  access to all the anticrime computers
  mation systems, they need to establish          money with them frequently make the                which Barnes mentioned, and a few more
  contacts with agents in Customs, the            proper declaration upon leaving or enter-          besides. EPIC ruthlessly gathers every
  DEA and the FBI. Regardless of how the          ing the US., investigators caneasily keep          bit of information on criminal activity
  prosecutors get the information, the            track of the comings and goings of these           that it can, and releases ituponcommand.
  criminal defense bar should be aware of         people.                                                The Privacy Act stands in the way of
  the systems which can be used in the                    Secondly, there i s the PAIRS, which       local investigators gaining total access
  prosecution of their clients. I n an article     lists all private aircraft entering the US.       to all available information in the federal
  in the May, 1980 issue of The Texas             The record includes the pilot's name,              network. The rule is that "an agency
  Prosecutor, Mr. William V. Barnes dis-          the aircraft's number. type, and color,            can only release information that orig-
  cussed the various federal and state            and the country where the trip began.              inates within that agency." This neces-
  computerized information systems avail-                 Third, TECS provides access to a sys-      sitates a lot of fancy footwork on the
  able t o prosecutorsand their investigators.    tem similar to the MVD in Texas. The               part of a local investigator. If the DEA
      On the state level, the author pointed      Feds call it INLETS. It includesthe Texas          develops information which is included
  to the Motor Vehicle Division computer,         MVD records. Through this subsystem,               in the TECS system, only an investi-
  which provides access to information             a Texas investigator can track an out-of-         gator's contact with DEA can gain access
  concerning the automob~les suspects.
                                    of            state license plate.                               to the information for him. Obviously,
 The MVD contains a record of lien hold-                  As an additional service, TECS can         a prosecutor's use of these systems
 ers, previous owners, and all license num-       brief an investigator on "unusual methods          necessitates that he or she develop a
 bers which have been assigned to the             or developing patterns of smuggling                close interagency relationship with the
 vehicle.                                         techniques." For instance, i f an investi-         different federal crime prevention units.
     Mr. Barnes began his discussion of the       gator needs to know about smuggling
federal computer systems by referring to          marijuana inside a spare tire, the TECS
the network of systems utilized by the            will pull from its memory all of the in-
 Customs Service. A large volume of in-           format~onwhich it contains about that
formation is available from these corn-           method of smuggling.
puters.                                                   According to Barnes, other federal
     Initially, there i s the Treasury Enforce-    computer systems independent of the
                                                                                                             PROFESSIONAL
ment Computer System (TECS), which                Customs Service can prov~de        information
contains information on a wide range of           about drug trafficking and general criml-                BONDSMEN OF TEXAS,
suspects. The information in this system          nal activity. For instance, the Drug En-                   A N ASSOCIATION
is not limited to violators of the customs        forcement Administration utilizes a sys-
laws; it includes information on people                               s
                                                  tem known a NADDIS (not even local                    (1) We advocate a paid-in-full
or agencies that handle illegal contraband.       prosecutors know what this stands for).               attorney of your choice i s
    The TECScarries the capacity to make          NADDIS holds information about inter-                 the defendant's best defense.
crossing checks. These checks permit of-          national drug trafficking, thereby filling
ficers to track how often a person or car         in the gaps in the TECS. However, it is               (2) We appreciate the local
has crossed the border in the last "X"            also helpful in digging out information               attorney's support and encour-
number of hours. Investigators using this         about domestic drug operations which                  agement.
system know how many tunes, and at                are not involved in international smug-
what times, the crossings were made.              gling.                                                For a name o f a member in
                                                                                                        your area, or t o report bail
    TECS permits Customs officers to                                                                    bond grievance, call
 enter a "look-out" on specific persons or
 autos, without the necessity of obtaining                                                                   GERALD P. MONKS,
 a search warrant. For example, the Cus-                                                                           President
toms officer merely must note that a
                                                                                                             4189 Bellaire, No. 203
certaln car or person i s believed to be
                                                                                                             Houston, Texas 77025
smuggling contraband. and ask to be in-
                                                                                                                7 131661-7400
formed if the person is located at any
port of entry in the United States.


                                                                                     August-September 19801VOICEfor the Defense
 CONTACT YOUR                                                 AUSTIN                             Stanley I.Weinberg, 810 Main St., Dallas
                                               (Responsible for communication with               75202                    2141747-1232
 AMICUS COMMITTEE                              Amicus members in the Eastern District)
    When you receive the white card from       David Chapman, 504 W. 8th St., Austin                            DENTON
 the Texas Court of Criminal Appeals           78701                   5121476.9215              Allan Lee Levy, 302 Texas Bldg., Denton
 docketing your appeal in a case which         ROY E. Greenwood. 822 W. 6th St..                 76201                    8171382.8622
 you believe has an issue of particular        AU& 78703               ~i121477-5971             George A. Preston, Jr., P.O. Box 428,
 merit either because (1) it is one of first   David H. Reynolds, 505 W. 12th St.,               Denton 76201             81713824622
 impression, (2) because of its significant    Austin 78717            512f47643700
 and widespread impact on the practice         John A. Yeager, 505 W. 12th St., Austin                       McKlNNEY
o f criminal law, or (3) because it pro-       78717                   5121476-8700              John O'Keefe Berry, P.O. Drawer B,
vides an opportunity for the Court t o                                                           McKinney 75069         21415420191
clarify conflicting opinions, please send a                     DALLAS
copy of your brief with t h e Court of         (Responsible for communication with                              HOUSTON
 Criminal Appeals' docket number to a          Amicus members in the Northern District)          (Responsible for communication with
member of the Amicus Committee listed          Richard Anderson. 3012 Fairmount St.,             Amicus members i n the Southern District)
below, indicating the ground of error you      Dallas 75201                2141747-2515          'David R. Bires, 210-AStratford, Houston
believe t o be worthy of a TCDLAamicus         David L. Botsford, 2812 Fairmount St.,            77006                     7 131529-8500
curiae brief and, beyond the legal argu-       Dallas 75201               2141748-7078           Murry B. Cohen, 2290 Two Shell Plaza,
ment i n the brief, why.                       William A. Bratton lll.2425 CedarSprings,         Houston 77002              7131222-1621
    Copies of your brief will be made and      Dallas 75201                2141651-9567          Will Gray, 914 Main St., Suite 1101,
sent to the Dallas, Houston, San Antonio       Elizabeth U. Carlyle, One Turtle Creek            Houston 77002              713f521-9142
and Austin chapters of the Committee           Village, Dallas 75219      2141521.0390           Donald Rogers, 705 Main St., Suite 609.
as well as other individual members of         Gay G. Cox. 1801 N. Lamar, Suite 101,             Houston 77002             713/236-1276
the Committee for circulation and re-          Dallas 75202               21417484383            Randy Shaeffer, 3401 Louisiana, No. 270,
view. The Committee intends to comply                                                            Houston 77002             7131529-7559
                                               Ronald Goranson, 555Griffin Square,No.
strictly with the above criteria to avoid      968, Dallas 75202          214/651-1121           Tom Sharpe, P.O. Box 4648, Brownsville
dilutng the impact of a TCDLA brief.           Arch C. McColl 111, 701 Kath Bldg..               78521                     51215463783
For your convenience a (incomplete)            Suite 302, Dallas 75202 2141744-5044                          SAN ANTONIO
list of Committee members is provided          Edgar A. Mason, 3131 Turtle Creek Blvd.,          (Responsible for communication with
below.                                         Dallas 75219               2141559-4180           Amicus members in the Western District)
    You will be contacted in writing ap-       Tom Mills, One Turtle Creek Village,              Gerald H. Goldstein, 2900 Tower Life
proximately six months after you send          Dallas 75219               2141521-0390           Bldg., San Antonio 78205 5121226-1463
your brief to the Committee with the           Lawrence B. Mitchell.3012 Fairmount St.,
Committee's decision.                          Dallas 75201               2141747-2515
                                                                                                 *Executive Committee Liaison


APRIL BOARD MEETING                               The storm was part of an Arctic cold           13       X    James Bobo
from pane 59                                   front forced into the Southwest by a high         14       X    Ray Caballero
                                               pressure area over Wyoming, Bradley               15       X    Russell Busby
 dropped thermometers to 52 degrees, a         said.                                             16            Allen Cazier
 National Weather Service spokesman said                          EXHIBIT                        17       X    Tony Constant
 Saturdav -
         ,                                             Elxslble                         Term     18       X    Grant Hardeway
    Then at about 1:30 am., snow began                   f&       Board of Directors   Expires   lg       X    Clif Holmes
                                               Place   Renom       as of April 1980    1980      20       X    Pat Priest
falling at El Paso International Airport.
     Unofficially, six inches of snow fell      1         X       Cecil Bain       Renom.        21            Charles Rittenberry
near the eastern slopes of the Franklin                           Jack Beech       R. Go-                 X    Robert Salinas
Mountains; the West Side was blanketed                                             ranson                      T y n Sharpe
b y seven inches and more in some spots.                          Charles Butts    Knox                        Rodger Zimmerman
     Knee-high, waist high and even higher                                         Jones                  X    Bill Alexander
drifts were reported i n the Coronado                             Tony Cantu       Renom.                 X    Richard Anderson
area.                                                             Waggoner Carr Mike                      X    Don Dailey
    The weather service recorded two                                               Thomas                 X    Woody Denson
inches of snow at the airport, a record                           Eugene DeBullet Renom.                       Louis Dugas
snowfall for April.                                               Mike Gibson      Renom.                      Bill Dunnam
    The storm seemed to catch everyone                            Oliver Heard     Renom.                 X    Gerry Goldstein
off guard, including the weather service.                         Jan Hemphill     R.                     X    Richard Harrison
    Bruce Bradley, a specialist at the air-                                        O'Shea                      Edward Mallett
port weather service station, said he                             Marvin Teague Renom.                    X    Bob Turner
knew about the storm but didn't think                             Stanley Topek    Renom.                 X    Larry Sauer
it would hit for another day.                                     Stanley Weinberg Renom.                      Ron Zipp


VOICE for the DefenselAugust-September 1980
                                                         A: Yes, sir.                                Q: Can you participate in an endeavor
I    But Yeroner!                                        ( : Did hedo that?
                                                          1                                                                          -
                                                                                                 in which the ultimate result miuht be
1            AND ON THE THIRD DAY.
                   HE ROSE AGAIN
                                                         A: Yes, sir.
                                                         Q: Are these cuts here?
                                                                                                 death by lethal injection?
                                                                                                     A: They do that up in Huntsville,
                                         .
                 submittedby Robert G Estrada            A: Yes, sir, small ones.                don't they? Yeah, I guess 1 could do it
                              Wichita Falls, Texas       Q: This one and this one?               if it was on a weekend.
          Q: All right. And you are involved I           A: Yes, sir.                                Q: And [next juror1 you, sir?
     take it in both aspects of pathology here           Q: Any up in here that he did?              A: Yes, I think it's too quick.
      in your practice?                                  A: Right here and here.                     Q: And you, sir?
          A: Yes. I am certified in both.                Q: Right over here and here?                A: It should be left up to the victims'
         Q: Directing your attention to the 6th          A: Yes, sir.                            families rather than the courts.
      of November, 1976, in the evening hours,           0: Any down around here that he did?        Q: You know that my client is charged
     do you recall being up a t Rose Chapel              A: No,sir, not in here.                 with robbing a Seven-Eleven, tying up
      in Paradise?                                       0: But that one right there?            two employees and shooting them both
         A: Yes.                                         A: Yes, sir.                                           s
                                                                                                 in the head a he fled. Now if the state
         Q: D~ you recall     examining   a              Q: Did you have your brace on when      offers you evidence t o prove these facts,
     by the name of Rodney Edgington at              this happened?                              would you-
     the funeral chapel?                                 A: No.                                      A: He's gone1
         A: Yes.                                         MR. McCOLLUM: Your Honor, could
         Q: I hand you at this time certified
                                       a             the witness step in the jury room and put         PEEPING TOM: UP CLOSE
     copy of-strike that. This is Plaintiffs'        his       back On andshirt?                            AND PERSONAL
     exhibit eight for identification inthis             THE COURT: Very well. be a t ease.                     reprinfed from the Forum
     proceeding. I would ask you to take a           Where is his brace?                            The facts giving rise to the burglary
     look a t it, please. Do you recognize the           MR. McCOLLUM: Right here.               conviction suggest that appellant was a
    person in Plaintiffs' Exhibit S?                     Q: Mr. Williams, is there any doubt     voyeur. Appellant had entered a motel
         A: Yes.                                     in your mind a to who it was that cut
                                                                       s                         room in the early morning hours, where
         Q: And who is that?                         you with the knife?                         he was discovered by a male and female
         A: It is Mr. Edgington.                         A: No, sir.                             occupant kneeling beside the bed with
         0:Do you recall approximately the                  It             right there?          his head under the covers. (People v
    time that you examined the body of Mr.               A: That's right.                        Breaux [I9801 101 CalApp 3d 468,
    Edgington at the Rose Chapel?                                                                470.1
         A: It was in the evening. The autopsy        ANOTHER OPEC VICTIM
    started a t about 8:30 p.m.                               reprinfedfrom the Forum                     HUNG UP
         ( : And Mr. Edgington was dead at
         1                                        THE DEFENDANT: Mr. A, my attor-                        reprinted from the Forum
    that time, is that correct.               ney, has been reluctant to spend the very       MS. F: Well, I'm not sure if this is
         A: No, you dumb ass hole. He was     large amount of time needed to amass considered a victim, butasouple weeks-
    sitting on the table wondering why I     and present relative information needed no, a couple of months ago Iwas mowing
    wasdoing an autopsy.                      in defense. I personally do not blame my lawn and there was a guy in my lawn
                                              him. He should not be forced to do more in the nude. That's about the only thing.
              FROM HERE TO THERE             work than what he is paid for. Mr. A            fXWNSEL: Did You report that to
           submittedby Sam Houston Clinton stated that he would not do research nor the police?
        ( :Where did he cut you?
        1                                    file certain papers I feel necessary for        MS. F: Yes.
        A: He cut me right across here, my defense because, "I am not getting                COUNSEL: Did they come on t o your
    right here, right up under here, over paid for it." He also stated that if he had place then?
     under here.                             more time for my case I would have a            MS. F: Yes. right away. It was three
        MR. McCOLLUM: May it pleasg the better chance. He said he was too busy officersthat came over.
    court, may we have permission t o have with othercaw.                                    COUNSEL: Did they catch the guy?
    him remove his shirt $0 we can show the      Mr. A said to me, "You want a Cadil-        MS. F: I don't know. I don't think
    jury that?                               lac lawyer and I'm sorry but I'm just a So-
       THE COURT: Yes, sir.                  Ford."                                          COUNSEL: Did you give them a de-
        MR. McCOLLUM: Corne over here,           MY reply to him was, "Mr. A, you are scription, et cetera, telling the officers
    Mr. Williams, take your coat off. step not a Ford, you are a Cadillac. The trou- what he was doing?
    right over here, Mr. Williams. I belleve ble is no one is willing to pay to fill your    MS. F: Well, I told them what I
    you said you got cut on the neck from tank with gasoline." There is a shortage had seen, but he was a real tall person,
    here, is that right, down like that?     here, and it seems as if we must now wait so Ijust saw from the waist down.
         A: Yes, sir.                        in the long line of justice for our rationed
                                             allocation.
         0: Where else did you get cut?                                                      BUT YERONERI depends on sub-
         A: Right there and there, there.                TEXAS VOlR DIRE                  missions from you. Thanks t o those who
         Q: Any other places?                                reprintedfrom the Forum sent transcripts this month. Keep 'em
         A: Here.                                The following are excerpts from a coming!
         0:Is this a cut here?               Texas murder trial voir dire:                                          -Managing E .
                                                                                                                               d


    VOICE for the DefenselAugust-September 7980
            TEXAS CRIMINAL DEFENSE 1                           ATION, Suite 211. 314 West 11th Street, Austin, Texas 78701
I



    Some of the best legal minds
    . . . in this state already belong to the Texas Criminal Defense Lawyers Association. We believe we have now
    the best Criminal Defense Bar in the United States. The way we maintain that level of excellence is contin-
    uously to seek out new minds, new energies. Therefore we want YOU. . . if your legal and personal philoso-
    phies are compatible with our purposes and object~ves:
    .To provide an appropriate state organization representing         .To improve the judicial system and to urge the selection
      those lawyers who are actively engaged in the defense of           and appointment to the bench of well-qualified and exper-
      criminal cases.                                                    ienced lawyers.
      To protect and insure by rule of law those individual rights       To improve the correctional system and to seek more ef-
      guaranteed by the Texas and Federal Constitutions h~ crinl-        fective rehabilitation opportunities for those convicted of
      inal cases.                                                        crimes.
      To resist proposed legislation or rules which would curtail        To promote constant improvement in the administration of
      such rights and to promote sound alternatives.                     criminal justice.
      To promote educational activities t o improve the skillsand
      knowledge of lawyers engaged in the defense of criminal                             ADVANTAGES FOR YOU
     .............................
      cases.
                                                                                .Referrals to and from recommended criminal
                                                                               "-* defense lawyers in over 100 Texas cities
                                                                               I through the TCDLA membership directory.
                          MEMBERSHIP APPLICATION                                 ,Summaries of latest Court of Criminal Appeals
                                                                                   cases through the Attorney General's Crime
     Application of:                                                              Prevention Newsletter. Available to private prac-
                                               (Name, please print or type)        tioners only through TCDLA'$ group subscrip.
     Please letter certificate:     as above                                       tion, included in dues.
                                                                                 )Access to many publications dealing with the
                                    other                                         practice of criminal law through TCDLA dis-
     Street or Box No.:                                                           counts & free offerings.
     City and Zip Code:                                                          ITCDLA's publications, including the monthly
     Firm Name:                                                                    VOICE for the Defense, with its "News &
     Business Telephone:                                                          Notes" on current activities, legislative
                                                                                  summaries and other legal news.
     Date Admitted to State Bar of Texas                                          A monthly SIGNIFICANT DECISIONS RE-
     Admitted to Practice in:                                                     PORT of important cases decided by the
     Law School (Name, degree, date)                                                                           .
                                                                                  Court of Criminal Appeals. .now included
                                                                                  as a pre-punched, centerfold snapout for
                                                                                  your library.
     College (Name, degree, date)                                                 Use of TCDLA Brief Bank service.
                                                                                  Outstanding educational programs featuring
     [If student, expected date of graduation)                                    recognized experts on practical aspects of de-
     Professional Organizations in which applicant is member in good standing:    fense cases. TCDLA and the State Bar annually
                                                                                  Dresent manv seminars and courses in all parts
                                                                                  of the state.
                                                                                  An oraanization through which criminal de-
                                                                                  fense lawyers can formulate and express their
                                                                                 position on legislation, court reform, important
     Have you ever been disbarred or disciplined by any bar association, or       cases affecting rights of defendants through
                                                                                  amicus curiae activity and other matters
     we you the subject of disciplinary action now pending
                                                                                 affecting the administration of criminal justice
                                                                                 in Texas.
                   (Date)                           (Sinature of Applicant)

                                ENDORSEMENT
        I, a member of TCDLA, believe this applicant to be a person of
        professional competency, integrity, and good moral character.                TEXAS
        The applicant is actively engaged in the defense of criminal cases.
                                                                                     CRIMINAL
     lail to:                                                                        IIETENSI<
                                                    (Signature of Member)
      TCDLA, Suite 211,314 West 11th Street,
      Austin, TX 78701
                                                                                     LAW Y 1 - 7 1 s
                                                                                     ASS()c;l~YI-K )X

				
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