JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION
VOLUME 10, NUMBER 2 AUGUSTISEPTEMBER 1980
Practice Guide. ,;
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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
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
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
Second Vice-President Clifton Holmes San Antonio POSTMASTER. Pleasesendaddress
T o m Sharpe Kilgore changss to Texas Criminal Defense
Brownsvilie Knox Jones Austin Lawyers Association.314 West 11th Street
Secrehrry-Treasurer McAllen Suite211. Austin. Texar78701.
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
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
C o r ~ u Christi Dallas
Donald Dailey Ronald Zipp
Corpus Chrisfi Edinburg
F o r t Worth ASSOCIATE DIRECTORS
Woody R. Denson Jack Beech
Houston Fort Worth
Louis Dugas David R. Birer
W.V. Dunnam Charles D. Carver
Michael Gibson Joseph A. Connors, Ill
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 .
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
By-laws were adopted a t the organiza-
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
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..
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
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
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-
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
National Association of Criminal Defense Lawyers
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
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).
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-
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.
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.
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.
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.
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-
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
2. Being called as a grand jury
3. False claims of conflict of
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.
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-
cent change of address, please
notify the TCDLA office, so that
your correct address and telephone
number are listed. PARKER-EOLDING
&&qyd 1 AppRAlsAL OF
JEWELRY 1 92-0860
I Complete gem labora-
tory facilities for identi-
fication, evaluation and
appraisal of gem stones
Detailed technical de-
scriptions are provided.
149 Turtle Creek Village
Oak Lawn at Blackburn
By appointment only,
August-September19801VOICE for the Defense
PRE-TRIAL MOTIONS IN DEATH PENALTY
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-
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
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
~ ~ . 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
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
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)
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,
~ grant the
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)*
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
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
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
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
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
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.
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
Texas Criminal Trial Manual will bear each a stated in the original bid. This in their areas. Those specific contributors
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
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
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
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
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
experts and then be able to answer
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.
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,
"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.
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
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-
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-
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
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
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
V L M V I , NO. 8
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 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:
!. .. 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
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
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
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
"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
CHEMICALLY EQUIVALENT O IDENTICAL WITH ANY OF THESE SUBSTANCES. A SUCH. THE INDICTMENT
I N THIS CAUSE "DOES N T ALLEGE WHY ICOCAINEl, A SUBSTANCE NOT LISTED BY NAME I N A PENALTY
GROUP, I S A CONTROLLED SUBSTANCE. THEREFORE, T E INDICTMENT PAILS TO ALLEGE AN ESSENTIAL
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,
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 ) .
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).
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
FAILING T G A T D'S REQUESTED C A G ON THE DEFENSE O ACCIDENT.
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 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) .
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
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
J. W. C. DAVIS I N OLGUIN, #57,962, 7/9/80, Panel 8 3 , 2nd Quarter 1980, O D R CONVICPION
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).
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
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
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.
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-
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.
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
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
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.
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,
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
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
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).
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
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
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."
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.
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
o p i n i o n , WHICH W S OVERRULED, B T OPINION I S ORDERED WITHDRAWN. (SMRH Overruled). (Bowie
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."
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
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
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.
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
OF THE TRIAL, ON TIiE THIRD QUESTION U D R ART. 37.071, C.C.P., R "IF RAISED BY THE EVI-
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).
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
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."
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
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
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).
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."
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) .
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.
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.
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
A S VR
D W S CHARGED A A HABITUAL CRIMINAL WITH THE PRIMARY ALLEGATION BEING THEFT O E $20 B T U
U D R $200, B T WITH TWO PRIOR FELONY THE= CONYICTIONS AND O E PRIOR MISDEMEANOR THEFT
CONVICTION ALLEGED T M K I T A THIRD DEGREE FELONY A D STATE ALSO ALLEGED T O PRIOR CONVICTIONS
O AE N W
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).
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
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).
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. . ."
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
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
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
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
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).
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 ?
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,
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
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
' Here, D w a s charged by indictment with t h e felony offense of aggravated
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-
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
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.
RICE'S REVERSAL, #58,428, 7/16/80, 3. Douglas, with Judges Roberts, P h i l l i p s and Clinton
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).
(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."
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."
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).
COMMENT: The contentions r e j e c t e d were:
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.
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,
A S A L REJECTED AND CONVICTION AFFIRMED. (Affirmed). (Dallas County)
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-
" 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."
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
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).
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
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
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).
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."
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
PERADVENTURE AND S O L NOT BE CONDONED." (Affirmed). (Terry County).
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 ,
1st Q u a r t e r 1980. (Affirmed). (Dallas County).
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-
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 .
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 -
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
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,
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).
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
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-
FENSE ATTEMPTED IS NOT A F ~ A M E N T A L
#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,
#64,510, 7/16/80, J. Roberts, P a n e l 111, 2nd Quarter 1980, A INDICTMENT TRACKED THE STATUTE.
FURTHER, SEC. 32.33, P.c., IS CONSTITUTIONAL EVEN THOUGH THE TERM 1 1 AGREEMENT" IS
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
EXTRADITION CASE. 1164,672, 7/16/80, J. Clinton, Panel 1 1 3rd Quarter 1980, (Writ Dismiss€
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.
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,
1/64,020, 7/16/80, J. Clinton, En Banc, Unanimous. (Writ of Mandamus to Issue i )
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,
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'."
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
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.
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
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
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 .
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
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
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
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
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
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
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, .,.
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
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-
~~~ 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
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
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,
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
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
In United States v Rum, 480 F.2d should have sufficient opportunity
1228 (6th Cir. 1973). cert, denied, 414 to ascertain by pretrial discovery
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 $10,000. limits the
Matthew B, Jones patient. Does 522.01 (b) and (c), V.T.C. state to prosecution for a third degree
TCDLA Briefing Clerk A.P.C. violate the equal protection
10. Improper enhancement allegation
The following memos are on file in 10. Improper enhancement allegation of both a prior Art. 6701 L-2 misdemean-
the TCDLA office. Requests for memos of both a prior Art. 6701 L-2 misdemean- or conviction and a prior Art. 6701 L-2
should be addressed to Matthew 8. Jones or conviction and a prior Art. 6701 L-2 felony conviction in the same indictment.
at We Association office. There will be felony conviction in the same indictment. PROBATION
a charge for copies and postage EXCLUSION OF EVIDENCE 3. The "continuing legal process"
CIVIL COMMITMENT 6.b. Does a delay by the D.P.S. in the ,sure a probation orderpis it a con.
18. Procedure for securing the com- testing of a blood sample render that final
viction, or otherwise?
mitment of a convicted felon to a state blood sample inadmissible? 4. Expunction of record under Article
mental health care facility. 8. Dade County. Florida case where 55-1s a misdemeanor probationer (un-
CIVIL LAW PROJECT the radar speed gun was proven defective. supewised) eligible upon completion of
I l a . A corporation's eligibility to re- EXPUNCTION the probationary period?
cover both actual and exemplary damages 4. Expunction of record under Article 16. Failure to formally pronounce
from a tortfeasor. 55-is a misdemeanor probationer (un- sentence, or terms of probation, upon a
I1b. General plea of privilege explana- supervised) eligible upon completion of defendant and the effects on a subse-
tion-what happens when one of multiple the probationary period? quent motion t o revoke probation.
defendants succe$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).
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-
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
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
This seminar is sponsored by the Univer-
sity of Texas Health Science Center at
Ms. JoAnn Hayashi
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-
RESEARCH FOR ATTORNEYS ONLY
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Member: TEXAS ASSOCIATION
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
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-
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.
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
for the permission of the Board t o
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
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
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 ~
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-
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
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
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
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-
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
, 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?
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
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 .
VOICE for the DefenselAugust-September 7980
TEXAS CRIMINAL DEFENSE 1 ATION, Suite 211. 314 West 11th Street, Austin, Texas 78701
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
.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
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
(Date) (Sinature of Applicant)
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.
lail to: IIETENSI<
(Signature of Member)
TCDLA, Suite 211,314 West 11th Street,
Austin, TX 78701
LAW Y 1 - 7 1 s