Co-Directors, The Honorable M.P. "Rusty"Duncan, III 6th Annual TCDLA ADVANCED CRIMINAL LAW SHORT COURSE -- -FOR --. THE- --- O 1993 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

~o~UI~S6 Hats Off to the Rusty Duncan Co-Directors - Deborah A. Gottlieb and Robert A. Price IV

8 In And Around Texas The Legacy of the 73rd Legislature by John Boston 19 Granted Petitions for Discretionary Review 24 Signitlcant Recent Decisions by Cafheriae Greene Burnett

News 5 CLE Announcement -The Cayman Islands 10 The Honorable M.P. "Rusty" Duncan, III 6th Annual TCDLA Advanced Criminal Law Short Course

11 Anatomy of a DWI Trial: AView from the Defense by the Superstars 12 Advertisement - Professional Liability Insurance 39 Publications 13 Happy Holidays from Crime Stoppers by Mark G. Daniel

15 Introduction to the Parallel Civil and Criihinal Prosecution of Industrial Espionage - Part 3 by Michael P. Lynn 20 Summary of Significant Decisions of the Courts of Appeals by Roy E. Greenwood

22 How to Conduct a Meaningful & Effective Voir Dire in Criminal Cases -Part 4 by Cathy E. Bennett and Robe* B. Hirschhorn 29 Search and Seizure Under State and Federal Law -Part 10 by Jade Malye Meeker VOICE FOR THE DEFENSE

EDITORS DIRECTORS Editor, Voice for the DeJkse Cecil W Bain, San Antonio Chuck lanehart, Lubbock FitzGerald, Kerry P.-Dallas Nancy B. Barohn, San Antonio Jim E. lavine, Houston Editor, "Significant Roy R Barrera, Sr., San Antonio Randy T. Leavin, Austin Decisions Report" Tom Berg, Houston Peter A Lesser, Dallas Burnett, Catherine Green* Deborah Gottlieb, Houston BNC~A Martin, Wich~taFalls Jeff Blackburn, Amarillo Houston Carlton Mclarty, Lubbock Betty Blackwell, Austin John H. Miller, Jr., Sinton Stan Brown, Abllede Rod Ponton, El Paso Charles E. Chatman, Sherman Robert A. Price N, Sari Antomo EDITORIAL BOARD Maty E. Conn, Houston George Roland, McKinney David Cunningham, Houston James C Sabalos, Houston Chairman Mark G. Daniel, Ft. Worth Kent Alan Schaffer, Houston Files, F.R. "Buck, Jr.-Tyler F R "Buck" F~les,Tyler Jack V. Strickland, Port Worth Jan Woodward Fox, Houston Robert Gregory Turner, Houston Vice Chahmen Michael P Heiskell, Fort Worth Martin Undetwood, Comstock Jones, Knox Robert C. Hinton, Dallas Kyle Welch, McAllen Past President 1986 87-McAllen Robert B. Hlrschhorn, Galveston Royce B. West, Dallas Miller, Judge Chuck- Keith E. Jagmin, Dallas William A. White, Austin Cout of Criminal Appeals Gist, Judge Larry-Beaumont ASSOCIATE DIRECTORS Members Allison, William P.-Austin Scott M Anderson, Dallas Danlel (Dan) W. Hurley, Lubbock Baird, Judge Charles F "Charlie"- Galy J. Cohen, Austin J. Craig Jett, Dallas Court ofCriullnal Appeals James 0. Darnell, El Paso C J. Bagwell-McElroy, Amarillo Blackwell, Betty-Austin J- Pink Dickens, Plainview E. Dale Robertson, BrownsviIle Blau, Charles \V.-Dallas Jeff Haas, Tyler Barney W Sawyer, Paris Botsford, David L-Austin John Hrncir, San Antonio J. Gary Trichter, Houston Brown, Cliff-Lubbock Burnett, Judge Jay-Ilouston Butts, CharlesSan Antonio Clinton, Judge Sam Houston- PAST PRESIDENTS Court of Criminal Appeals Richard Alan Anderson Robert D. Jones Gandy, Judge Manhall-Dallas Dallas (1991-1992) Austin (1980-81) Hannah, John-Tyler Tim Evans Vincent Walker Perini Herskell, Mike-Fort Worth Fort Wort11 (19N 1991) Dallas (1979-80) Hirschhorn, Robert B.--Galve$ton Judge J.A. 'YJim" Bobo George F. Luquette* McDowell, Judge Pat-Dallas Odessa (1989.1990) Houston (1978.73) Moms, E. G. "Gerry3'-Aushn .Edward A. MaUett Emmett ColvIn Ponton, Rod-El Paso IIousron (1988.89) Dallas (1977-78) Rawitscher, Jack-Houston Charles D. Butts Weldon Holcomb Seymore, Professor Malinda- San Antonio (1987-88) Tyler (1976-77) Dallas/Fort Worth School of law Knox Jon? C. David Evans' Steele, Professor Walter- McAllen (1986-87) San Antonio (1975-76) SMU School of law Louis Dugas, Jr. George E. Gikerson Strickland,Jack V.-Fort Worth Orange (1985.86) Luhbock (1974-75) Sweeney, John-Port Worth Cl7fton L. "Scrappy" Holmes PhilBurleson Tl~omas,Judge Linda- Longview (1984-85) Dallas (1973.74) Court of Appeals, Dallas Thomas G. Sharpe,Jr. C. Anthony Friloux,Jr. Tomko, Edwin J.-Dallas Brownsville (1983-84) Houston (1972-73) Whlte, \Villiam A "Billn-Austin Clifford W. Brown Frank Maloney Lubbock (1 982-83) Austin (1971-72) Charles M. McDonald Wac0 (1981-82)

Executive Director 1992-93 OFFICERS John C. Boston Attorney/Editor President SecondVice-President Susan Goggan Gerald H. GoldsteinSan Antonio Bill Wischkaemper-Lubbock AdmMstrative Assistant President-EIeet SecretaqYTreasurer Lillian Summarell David R. Blres-Houston David I. Botsford-Austin Membership Secretary First Vice-President Assistant Secretary/Tieasurer Shannon M. Mclntosh Ronald L. Goranson -Dallas E.G. "Gerry" Morris VOICE FOR THE DEFENSE I CONTINUING LEGAL EDUCATION 1 Tentative Seminar Schedule 1993

June 17-19,1993 FRIENDS Board Meeting September 30-October1,1993 The Honorable M.P. "Rusty" TCDLEI Board Meeting TCDLA Advanced Federal Law Duncan, 111 The Plaza Short Course 6th Annual TCDLA ADVANCED New Orleans, LA CRIMINAL LAWSHORT COURSE July 15-16,1993 San Antonio CDLP Skills Course October 21-22 Denton CDLP Skills Course June 18,1993 So. Padre Island TCDLA President's Ball July 29-30 CDLP DWI Defense Seminar November 18-19 June 19,1993 Dallas CDLP Skills Course TCDLA Annual Meeting To be determined TCDWCDLP Executive August 19-20,1993 Committee Meetings CDLP Skills Course, Denton

Join us for the SECOND ANNUAL TEXAS ADVANCED CRIMINAL LAW SEMINAR GRAND CAYMAN ISLAND July 4-11, 1993

CLE APPROXIMATELY 10 HOURS

Travc$1 arr angernents through Buck Royal Travels, Inc., Austin, Texas. Cost of $669 per person based on double occupancy includes: Roundtrip charter air out of DFW, 7 nights standard room accommodations at the Ramada Treasure Island Hotel, hotel taxes, roundtrip airportlhotel transfers, and departure tax. Contact Sandra or Charlie at 5121346-1340 or 1-800-856-1340.

JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION VOICEfor N~eDefense(ISSN 0364-2232) is published regularly by the Texas Criminal Defense Lawyers Association, 600 W. 13th Austin, Texas 78701, (512) 478-2514, FAX No. (512) 469-9107. Annual subscription rate for members of the association is $100, which is included in dues. All articles, contributions and advertising inquiries should be addressed to the editor, Keny P. FitzGerald, Attorney at Law, Two Turtle Creek Village, Sdte 1700 Dallas, Texas 75219.4537, (214) 528-0044. 5 Once again, a high profile lineup has been recmited to put on the Honorable M.P. 'rRusty" Duncan 111 6th Annual TCDLA Advanced Criminal Law Shost Course which is beingheld in SanAntonio thismonth. The speakers were carefully chosen and their matalals should prove excellent. Behind the scenes this year were our undaunted, fearless leaders: Co- Directors Deborah A. Gottlieb and Robert A. Price IV,to whom all of us owe a huge vote of thanks for all of their work, I know that spearhead- ing this effort has consumed their time and energies, and will continue Hats Off to the to do so throughout the entire insti- tute. I would like to do more than just give passing reference, however, to Rusty Duncan our two co-directors. Each of them deserves more. So . . . here is a little Co-Directors information about each.

Deborah Gottlieb and Robert Price deserve kudos for a well-planned event.

DeborahA. Gottlieb has been a palmer in the Houston firm ofT11m and Gottlieb since 1979 and also selves as adjunct judge inthe County Criminal Court #9 of Harris County. Deborah is a 1972 graduate of Mills College in California and earned her masters in linguistics/rhetoric from the University of California in Ber- keley in 1974. In 1979 she received her law degree from South Texas - -

VOICE FOR THE DEFENSE

College of Law. Her professional activities include serving as treasurer of the Hallis County C~ninalLawyers Associa- tion, as an officer of the Texas Womans Legislative Watch, and as a member of the National Association of Criminal Defense Lawyers. She is also on the Board of Ditwtors of the Texas Criminal Defense Lawyers Association and is a frequent lec- turer on aiminal law issues. Famous cases she has defended include StateofTivs.Ro&nHaod (juvenilechargedwithover 15 counts of aggravated robbery resulting in probation); "The Mr. Jake Case," which involvedover 100,000pounds of ma~ijuana;and numerous murder cases involving "battered wi€e/fe- male syndrome" with defense re- sulting in either not guilty or proba- tion. She repons that she is currently getting hammered in federal court on drug cases on a regular basis.

also licensed in the United States District Court, Western District of Texas; United States Court of Ap- peals-5th Circuit; and the United been a criminal defense artorney in States Supreme Court. private practice. He has been Board Robert is the editor of the current Certified in Criminal Law since 1979 edition of the criminal law manual is and currently on the Texas Board used for the "Nuts and Bolts Practice of Legal Specialization CriminalLaw Skills Course" published by the State Advisory Committee. Bar of Texas. Robert is a past president of the He is also currently on the Board San Antonio Bar Association (1985- of Directors of the Blue Star Art 86) and was on the Board of Direc- Space, showing contempo~~rlryal- tors of the State Bar of Texas from temative art; the Board of Directors 1987 to 1990. He is cun'ently of of the Friends of the McNay Alt &MA.M#IVgraduatedfrom Chairman of the Board of the San Museum, and his last and greatest Thomas Jefferson High School in Antonio Bar Foundation, which on achievement is being crowned King San Antonioin 1965;graduatedfrom Law Day =cognized FBI Director Anchovy of Cornyation at the Fiesta- the University of Texas in Austin William Sessions. 1993 in San Antonio. with a bachelor am in 1968; and Most impo~rantly,he is on the received his J.D. degree from the Board of Directors of the Texas University of Texas School of Law in Ctiminal Defenz Lawyers Associa- 1971. tion and a member of the Texas Bar His first job .was with the Bexar Foundation, the San Antonio Bar County District Attorney's ofice Association and is licensed to prac- 1972-73. From that time, he has tice in Texas and Colorado. He is VOICE FOR THE DEFENSE

I IN AND AROUND TEXAS In this and future articles in this space, we will discuss the work of the 73rd Legislature and how new laws scheduled to go on the books between now and 1995 will affect the practice of criminal law in Texas. But before taking a look at that process, I want to share with you anon-going problem m Texascapitalcases that hasbeen brought to the public's attention by the Herrern case, his subsequent execution, and the recent thiityday stay of execution for death row innute Gary Graham. Al- though clemency is legally a separate issue from state babeas corpus pro- ceedings, the twoareinextricably linked. A brief background discussion is in- dicated. Attorney General Morales sup- ported a criminal justice package this The Legacy of the session which included a bill to reform (read "speed up") state habeas pro- ceedings in capital cases. About the only "reforms" to the proposal (House 73rd Legislature Bill 1562 by Gallego) were the provi- sions for state-wideselection of lawyers by the Court of Criminal Appeals and for paying lawyers in state habeas by John Boston proceedings; the catch was that there were no funds appropriated for this, and that was the primary reason this bill died, not to mention provisions for parallel direct appeal and state hahem proceedings and other deficiencies. At the same time, since there will be no state habeas reform for at least two years, the related issue of clemency cries out for attention inlight of Herrera U. c~l[tlZS, U.S. - (1993) NO. 91- Plus a look at the on-going 73281, which in essence says that the defendant's claim of factual innocence does not entitle him to federal habeas problem in Texas capital relief. In late May, I received a letter from cases. Board of Pardons and Paroles Chair- man, Jack Kyle, addressed to several others concerned with clemency in capitalcases Assoonas the Legislature's dust had settled, I responded. Chair- manKyle'sletterand mine are reprinted here in full. Yotir comments and/or questions are invited.

May 18,1993

Mr. John C. Boston Executive Director Texas Criminal Defense Lawyers Assn. 600 West 13th Street Austin, TX 78701 VOICE FOR THE DEFENSE

Mr. Ton1 Krampitz thoughts with you and make myself mproving the clemency procedure for Executive Director available for further and, hopefully, he Board in capital cases: After discov- Texas District and County Attorneys more infolined discussion at your con- xy of new evidence creating a "prob- Assn. venience. lbility" of fachd innocence and after 1210 Nueces, Ste. 200 At first blush, the mostserious area of Xhaustion of state and fedml remedies, Austin, TX 78701 concern is clemency in capital cases in hen the defendant could apply to the lightoftheimpact that Herma u. Collim 3oad for a hearing to show those Mr. Bill LaRowe has, and will have, in death penalty :lements by a preponderance of the Center for Correctional Services cases. :vidence. G'resumahly, the burden P. 0. Box 12487 In considering clemency petitions to vould be on the petitioner since he has Austin, TX 78711 theBoard, I understand your concern is >eenfound guilty by this point.) that the Board should not be expected IF a majority of the Board was per- Mr. Ray Speece to discharge judicial duties that are uaded by the defendant's evidence, Staff Counsel normallythe responsibility ofthe couxts. hen the Board would make a recom- Administrative Office of the District I understandtheconfusionwhich could nendation for some form of clemency. Cou1ts result from full-blown evidentiary hese details can he worked out in a 301 San Jacinto, Room 100 hearings being relitigated beFore the nanner consistent with fairness. Oh- Houston, TX 77002 riously, these ideas are embryonic and leed fleshing out, on the other hand Gentlemen: here may be a need to seek legislative x even constitutional changes in order We are in the process of considering 3 implement what Hert'eru requires. rules for the Board of Pardons and nocence incapital cases basedonnewly :onsidering the number of inmates on Paroles. All of you have been very discovered evidence in some manner leath row in Texas and in light of the helpful in the past, and I ask for your or other. assistance once again. In He~mra,Chief Justice Rehnquist, The attached copyrelatestoclemency, writing for the majority, conceded that pardon, reprieve, and commutation of "a truly persuasive demonstration of sentence. This area deserves close 'actualinnocence'made after trial would scrutiny, which is why I ask your as- render the execution of a defendant sistance. Feel free to discuss this with unconstitutional, and warrant federal anyone, and I would like to have your habeas relief iffberetuem no state au- comments and suggestioos back to me enireopen toprocesssuch uclnrta." (my by Friday, June 4. emphasis). Earlier in the opinion after If you have any questions, give me a a discussion of the limits on the granting call. I appreciate your help. of new trials and that Texas' relusal to consider Herrera's claim of newly dis- Sincerely yours, covered evidence did not violate fun- Jack D. Kyle, Chairman. damental fairness, Chief Justice Rehnquist states, ''This is not to say, however, that petitioner is left without a forum to mise his actual innocence 4 June 1993 claim. For under Texas law, petitioner may file a request for executive clem- Hon. Jack D. Kyle, Chairman ency. (citations to the Texas Constitw rohn Boston has been the Fxecuti Texas Board of Pardons and Paroles tion and Code of Criminal Pmedure.) no tor of the TCDLA since June 178 2503 Lake Road, Ste. 9 Clemency is . . . the historic remedy for Fmm February 1780 until coming Huntsville, Texas 77340 prwentingmiscarriagesofjustice where TCDLA he was ingeneral practice of la in Austin. Mr. Boston's main areas judicial process has been exhausted." practice were criminal defense, real e Re: Your letter of May 18 - clemency, And later: "Executive clemency has tateandfarnilvlaw. Also. for the Dastte pardon, etc. provided the 'fail safe' in our criminal ycars he has hecn an independent con- lustice system. . . . It is an unalterable tracror Dear Chairman Kyle: Fact that our juhcial system, like the agencies, themost human beings who administer it, is Board of Public Accountancy and th Thank you for your letter to which I ;allihle" (citations omitted). But history am just now responding due to the ts replete with examples of wrongfully Legislature's recent adjournment. :onvicted persons who have been I have nor had tlme to thoroughly pardoned in the wake of after-discou- from Southern Methodist 17711, and prior to that he was a pilot/$ consider the areas which you say, cor- ere$ evtdmce es~ubiishingtheir inno- Ilklit- en~ineer- forBraniff Ainvays, and a8 rectly in my view, deserve "close scru- cence." (my emphasis). Marine aviator. He retired &om the8 tiny." However, I will share a few I suggest an idea which could be a starting point for discussion aimed at VOICE FOR THE DEFENSE The Honorable M. P. "Rusty"Duncan Ill 6th Annual TCDLA ADVANCED CRIMINAL LAW SHORT COURSE

THE PLAZA HOTEL 555 S. Alamo Street Sun Antonio, Texas 2 10-229-1000

Course Directots: Debonah A. Gottlieb - Houston, R0Det.t A. Price N- Sun Antonio

MCLE 15.25 Hours Room Block Ends: May 26,1933 llllllBBlllllBlllllllllllllBllll~BlllBllBlllllllB~llllBlllllllBllB

I Thursdav. Tune 17,1993: I Fridav. Tune 18.1993: 8:OO-8:50 am Registration I 830-9:15 pm Legislative Update 8:50-9:00 am \Velcotne and Opening Remarks Betty Blackwell, Austin 9:OO-10:OO am Search & Seizure : 9:15-10:OO am Juvenile Law Justice of the Peace Jade Meeker : Professor Robert Dawson, Austin 10:OO-10:15 am Refreshment Break 10:OO-10:15 am Refreshment Break B 10:15-11:15 am Jury Charges 10:15-11:OO am Cross-Exam of Arresting Off~cer David L. Botsford, Austin I Mike DeGeurin, Houston 11:15-12:OO atn Drugs &Taxesfrom the I 11:OO-11:45 am Creative Drug Defenses Comptroller's OMce I Randy Schaffer, Houston Laura McIlroy, Austin 11:45-1230 pn? DNA I 12:OO-135 pm Lunch (on your own) I Professor Barly Scheck, New York 1:15-2:00 pn~Hi-Tech Demonstrative Evidence : 12:30-1:45 p~nLunch Con your own) E.X. Martin, 111, Dallas 1:45-230 pm Jury Argument - Opening and 200-2:45 pm Recent Decisions from the Court I Closing Statements of Criminal Appeals B Jack Strickland, Fort Worth Honorable Sam Houston Clinton I 230-515 pm Extraneous Offenses 245-3:00 pm Break B Edward A. Mallett, Houston 3:OO-3:45 pm Driving While Intoxicated 3:15-3:30 pm Refreshment Break I Stuaa Kinard, Austin B 3:30-435 pm Drug Profiles 3:45-4:30 pm SuWciency of Evidence Post-Geesa : J. Gary Trichter, Houston Robert G. Turner, Houston 4:15-5:00 pm Jury Selections & Batson I 430-5:30 pm Ethics &AttorneyMisconduct Tim Evans, Fort Wotth Richard A. Anderson, Dallas SaturdayJ I une 19.1993: 5:30 pm Adjourn B 8:45-9:15 am State Forfeiures I Jinl Lavine, Houston 9:15-1035 pm Pre-Trial Mofions I I Gerald M. Goldstein, San Antonio I 10:15-1050 am Refreshment Break 10:30 am TCDLA Board Meeting I VOICE FOR THE DEFENSE

Criminal Defense Lawyers Project Presents ANATOMY OF A DWI TRIAL: A View from the Defense by the Superstars July 29-30,1993 Southland Center Hotel 400 N. Olive Street Dallas, Texas

Course Director: J. Gary Trichter Assistant Course Directors: Mike McCollum and Troy McKitltrey

July 29 -Thursday July 30 - Friday 8:OO-8:45 a.m. -Course Registration 9:OO-10:OO a.m. A Real Scientist View of the Intoxilvzer 5000 8:45-7:00 a.m. -Opening Remarks Dr. Ken Smith-Houston, Texas 900-9:50 a.m. -An Ovewiew of D\Vl law 10:OO-10:50 a.m. - Opening Statement and Closing Argument Stanley Schneider-Houston, Texas Demonstrations 950-10:OO a.m. - Break Keith Jagniin and Vic Sasso-Dallas. Texas 10:00-10:50 a.m. - Voir Dire Demonstration 10:50-11:OO a.m. - Break David Burrows-Dallas, Texas 11:OO-12:15 0.m. - Pre~arinzWitnesses for Cross-Examination: 10:50-11:00 a.m. -Break Lecturesnd Dekonst&ion 11:OO-l1:50a.m. - Voir Dire Demonstration Kimberly De La Garza-llouston, Texas and Tom Pappas- J. Gary l'richter Dallas, Texas 11:50-12:15 p.m. - Panel Critiques 12:15-130 p.m. -Lunch on your own J. Gary Trichter, Troy AkKinney, Mike McCollun1-Dallas, 1:30-230 p.m. - Denionstration of Direct Exanunation of Defen- Brian \Vice-Houston sive Intoxilyzer Experts Dr. Ken Snuth of Houston, Texas 12:15-1:30 p.m. - I.unch on your own and John Castle of Dallas, Texas 1:30-2:30 p.m. - Cross-Examination Denionstration of the Kimberly De La Garza and Tom Pappas Arresting Officer 2:30-2:45 p.m. Break Randy Levitt-Austin, Texas 2:45-345 p.m. - Denionstration of Cross-Examination of the 2:30-3:30 p.m. - Cross-Examination Demonstration of the Intoxilyzer Operator and Technical Supervisor h~estingOfficer Mike McColluni-Dallas, Texas Randv. Tavlor-Dallas.. Texas 545-4:45 p.m. - Demonstration of Cross-Examination of the 3:30-3:45 p.m. - Panel critiques Intoxilyzer Operator and Technical Supervisor 3:45-4:00 p.m. -Break Warren Abranis-Dallas, Texas 4:00-4:50 p.m. - Demonstrative Evidence Demonstrations 4:45-5:30 p.m. - Panel Critiques and Question and Answer Trov McKinnev and Richard Frankoff-Houston. Texas Session 530 p.m. -Adjourn

------Hotel Reservation Card Course Pre-Registration Form In order to secure your hotel reservations at reduced group rates, this card, Anatomy of DWI Trial: a View from the iMease by the Superstan Ictter, or call identifying you with the Criminal Dcfcnse Lawyers musl be July 29-30, 1993, Southland Center Hotel, 4W N. Olive Street, Dallas, TX received by the hotel on or before July 20, 1993. PE-REGISTRATION BENEFITS: Your registration nmst reach our office Suuthland Center IIorcl by July 23rd, 1993 in order to guarantee receipt of course materials at the 400 N. Olive Street seminar. Dallas, Texas 75201 $69.00 + Tax Be sure to include your $200/$225 reglsfration fee. (214) 922-8000 single/double Participant agrees to represent indigent defendants iF appointed I will check in to do so. 0 and out on Name I am attending the CD1.P SKILLS COURSE which is being Address conducted by the CRIMINAL DEFEh5E LA\VYERS PROJECT. City/State/Zip Name Telephone ( Address County Bar Card No. City/State/Zip Current Occupation Credit Card and number for LATE ARRIVAL GUARANTEE (after 6 I am U I am not O a member of the TCDM. p.m.) RWURN TO: Criminal Defense Lawyers Project, 600 West 13th Card # Street, Austin, Texas 78701, (512) 478-7794 Expires AT LONG LAST ......

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by Mark G. Daniel

economy was devoted to legitimate of the trial courts and encounter crime Christmas purchases. I am even more stoppers infomtion maintained under comfarted to know that acceleratec this veil of secrecy have likely shared payments for crime stoppers program? many of the following concerns: "If you are short on cash for your such as that instituted in Parker CounQ holiday shopping, Parker County will certainly do nothing but foste~ 1. Who was tbe initial crime stoppers Crime Stoppers has a suggestion: Rat truthful informationfrom theirtomants informant?; on a crook. benefitting from the crime stoppers "Officials will speed up the pay- tips. 2. Are any of the Stare's witnesses a ment process between now and De- Crime stoppers programs through- crime stoppers informant?; cember 24 for people who offer out Texas have proven m be an effec- information that leads to the arrest of tive law enforcement tool. They have 3. What did the crime stoppers infor- anyone involved in criminal activity, resulted in thousands of arrests and the mant initially tell the law enforce- said Alan Beadel, spokesman for recovery of n~illionof dollars of stolen ment agent and does that differ from Parker County Crime Stoppers. property. However, lieany other well the trial testimony?; "In the past, wek paid up to intended endeavor, such programs are $1,000.00 for information leading to no Iess susceptible to theblindambition 4. How much money did the crime the arrest and indictment," Beadel and accompanying nlistakes so often stoppers informant receive for this said. "That sometimes takes months rssociated with our war on crime. information?; to get anindictment.So, until Christ- Since their inception, crime stoppers mas, we will pay the reward when programs have enjoyed a highly protec- 5. Did the crime stoppels informant the arrest is made and the case is ive cloakof secrecy. Government Code even exist?; and filed. section 414.007 provides that crime "Our intent is to get these people stoppers advisory council records re- 6. Whether the crime stoppers infor- who may be reluctant to go ahead ating to rcpom of criminal acts afe mant became a "confidential and and call us and to give people some :onfidential. Further, section 414.008(a) reliable informant" as stated in an Christnlas money." Parker County >fthe Government Code provides that arrest or search warrant. Crime Stoppers can be reached at vidence of a communication between (817)599-5555 or (800) 942-STOP." I person submittinga repoa ofa criminal Evidently, the Cow of Criminal Ap- ~ctto the statewide Crime Stoppers peals recognized some of these con- I was cemihly comforted by the idvisory Council or a local crime :ems and this past June provided a fact that many will have a joyous holi- toppers program and the person who window of opportunity in Thomas v. day season after having received their iccepted the report is not admtssible in Slate, 837 S.W.2d 106 (Tex. Crim. App, aimestoppersmoney on an accelerated i court or administrative proceeding. 1992). Tho~nusinvolved a factual cir- basis. It is also comforting to know that #till further, Government section xmstancewherethedefendant's cousin not a penny of these accelerated pay- 14.008(b) provides that all records of lad seen himin possessionof a number ments will bespent on drugs, alcoholor he council in local crime stoppers ~f items of the deceased's clothing and illicit activities. I am certain that crime rograms concerning reports of crimi- lad called the Dallas Crime stoppers stoppers programs in Parker County la1 activity may not be compelled to be mgram and talked with someone for and throughout the State ofTexas were ~oducedbefore a coua except on 10- 15 minutes. This conversation was careful to insure that each dollar which ~rderof the Supreme Court. ecorded. The informant also gave two they pumped into the holiday season Those of us who labor in the trenches )[her statements and ultimately testi- VOICE FOR THE DEFENSE

fied at trial. further mandated that the trial courts tion on confrontation and cross-exami- During cross-examination of the in- takesteps to insure that the information nation. The confrontation &use is ba- formant at trial, counsel for the defen- remains confdential and be sealed in sically a trial right and does not compel dant requested productionof the origi- order to be made part of the appellate pretrial discoveryaswasdone inRiEchie. nal crime stoppers tape recording. The record. Proper preservation of aror necessi- court denied this request citing the While Tboniasprovides the first op- tates the objection and complaint made governing StaNte prohibiting produc- portunity for a criminal defendant to at trial address how the denial of access tion in sections 414.007 and 414.008 pierce this veil of secrecy concerning to the information hindered effective Government Code. The defendant crime stoppers records, the most im- cross-examination, was convicted and sentenced to portant lesson learned from ~OIBU$is death at which time he appealed the method and manner of making a I hope that this article will help all of citing denial of the right to properrequest. In the 'Ibomasopinion, us to have a happier holiday season in 1993. W

'The Court of Criminal Appeals determined that the con.- dentiality of the crime stoppersstatute are oueweaching and operate to totally hara defendant access to information that my-be material, whether in possession of the state or any otherpmn."

effectively cross examine, violation of the Court of Criminal Appeals revisited due process because of the denial of DauIs v. Alasba, 415 US. 308, 94 S.Ct. information which might lead to un- 1105(1974) where the prosecution had specified exculpatory and impeachable movd for a protectbe order prior to material. Finally, the defendant com- trial to pmnt reference to a juvenile plained onappeal that refusal to release record of a crucial prosecution witness. the tape recording initiated his right to The United Statessupreme Courtfound meaningful review of the above claims that the state's interest to protect the because the recording was not avail- juvenile defender from suffering un- able for inclusion in the record. The necessarily for his youthful transgres Court of Criminal Appeals determined sionsmust give way before a defendant's that the confidentiality of the crime @t to confrontation and the Sixth stoppers statute are overreaching and Amendment The error in Daub u. opetatetototallybara defendant access to information that may be material, dant the right to cram-examine a wit- ness about facts concerning the wit- Mark G. Daniel is a solo plac- whether in possession of the state or titioner in the law office of Evans, any other person. The coun further ness' juvenile record from which the july Gandy, Daniel & Moore in Fort held thatdenial of access to infwmation could draw inferences of the wit- Worth, Texas. Mark is a former which would have a reasonable pmb- ness'reliabIlity.The Thot8mopinionabo distinguishes Pennsylvania v. RitchZe president of the Tarrant County ability of -affecting the outcome of a Criminal Defense Iawyers Asso- defendant's trial abridges his due pm- 489 U.S. 39,107 S.Ct. 389 0987). Ritchie involved a circumstance where the de- ciation, is Board Certified in cess right and undermines the court's Criminal Law by the Texas Board duties to vindicate Sixth Amendment fendant was charged with sexual abuse of his daughter. The defendant sought of Legal Specialization and the rights in seeking tobalance the State's National Board ofTrial Advocacy. rights to "fos~erthe detection of crime to discover records maintained by a child protective agency which the Mark is also a member of the and encourage a person to report infor- National Association of Criminal mation about criminal acts..." with the agency and the state refused to dis- close. The trial court relied on the Defense Lawyers and is on the defendant's rights to due process and Board of Directors of the Texas confrontation. The court decided that statutory authority which made the Criminal Defense Lawyers' Asso- both interests can be served by provid- reurrds d~dential.The United States ciation. He is a frequent author Supreme Court held that there was no ing that crime stoppers information and lecturer on criminal law top- should be inspecred by the trial court in confrontation clause violation because the defendant had adequate cross-ex- ics th~oughoutthe state. Mark camera. Further, the Court found that graduated from the University of neither the attorney for the state or the amination and the trial court placed no Texas at Austin in 1977and re- defendant should be present and that it limitation on defense counsel's cross- examination ceived his law degree from St. would be the responsibility of the court Mary's University in 1980. to determine if the produced informa- The overriding distinction drawn be- tioncontains Eradymaterial.The Court tween Dauls and Rltchie i$ the limita- VOICE FOR THE DEFENSE Introduction to the Parallel Civil and Criminal Prosecution of Industrial Espionage

by Michael P. Lynn

Part 3 Stntesu. Lench, 806 F.2d 1443,1446 (9th self-incrimination, shall furnish the re- Cir. 1986). quested infotmation. The Court rea- (1) What Is a Corporate Document? (2) Who Is to Produce the Document soned: The term "corporate document" has or Answer Discovery?: The corporation could not satisfy its been broadly construed. The Second (a) The Custodv Problein: obligation under Rule 33 simply by Circuit, in In Re GrandJzriy Subpoena Most attempts to restst production pointing to an agent aboutto invoke his Dtices Tecum Dated Apal 23, 1981, have centered on the theory that vol- constitutionalptivilege. Itwouldindeed Witnecs u. United Stales, 657 F.2d 5, 8 untaly production and authentication be incongruous to permit a corporation (2d Cir. 19811, offered what it ternled a of the docunlents as "corporate" would to select an individual to verify the "non-exhaustive list" of criteria relevant be testimonial and hence would trigger corporation's answers, who because he to the determination of whether docu- Fifth Amendment protection. United fears self-incriminationmay thus secure ments are personal or corporate: (1) States u. Doe, 465 US. 605, 104 S. Ct. for the corporation the benefits of a who prepared the document; (2) the 1237,79L. Ed. 2d 552 (1984): "[wlhere privilege it does not have. Such a result nature of its contents; (3) its purpose or the preparation of business records is would effect~velypermitthe corporation use; (4) who maintained possession voluntary, no con~pulsionis present to assert on its own behalf the personal and who had access to it; (5) whether [when they are producedl"; Fisher u. privdege of its individual agenis. the corporation required its prepara- United States, 425 US. 391, 96 S. Ct.. Id The danger to the attorney rep- tion; and (6) whether its existence was 1569,48 L Ed. 2d 39 (1976); hot.,48 resenting the target corporate defendant necessary to the conduct of the L Ed. 2d852<1977). But see, InReGrand lies in the cases cited by Kordet which corporation's business. JlrryEnpan~ledMarch8,1!283,722F.2d arguably requtre theattorney to respond The Ninth Circu~t,in United States u. 294,297 (6th Cir. l983), ce?~.dismissed, to the interrogatories and requests for MacKty, 647 F.2d 898, 899 C9th Cir. 465 U.S. 1085,104 S. Ct. 1458,79 L. Ed. production if no suitable agent can be 1981) rejected an attempt to character- 2d 774 (1984). The documents found. In UnttedStatesv. 42 Jam . .Bee ize the diaries, calendars, and appoint- themselves are, however, not protected Royale Capsules, 162 F. Supp. 944,946 ment books of the general manager of and are therefore subject to seizure, (D. N.J. 1958). afd, 264 F 2d 666 (3d a company under investigation For an- either through a writ of attachment or in Cir. 1959), cited by Kordelat n. 8, p. 7: titrust violations as personal and hence acriminalsearchandseizure. Andresen It will thus be the clear duty of the protectedby the Fifth Amendment, The u. Ma)yland, 427 US. 463, 473, 96 S. corporation to select an officer or agent court held that the general manager ct 2737, 49 L ~d.2d 627 (1976). for the above purpose, who will not used the diaries and calendar to record (b) The "Kordel" Problem: have personally participated in such a business meetings and transactions he Targets of criminal prosecution have questionable transaction, andwho thus conducted as an executive of the corpo- attempted to avoid answering discov- cannotbe incriminated by suchanswers. ration and hence held that they were ery sought of the corporation on the This the corporation can easily do un- corporate documents. See also, United grounds that answers to such discovery der its broad corporate powers, using may incriminate the corporate officer even its attorney, for instance, whose executing the interrogatories or re- duty it would then be to "furnish such I gratefully acknowledge the assis- sponding to a document request. In information as is available to the paw tance of Stmz H. Stodghill of Akin, United States u. Kordel, 397 US. 1, 8, - the sum total of the corporate Gtrnzp, Strazrss, Harrer G Feld, Dallas, 90 S. Ct. 763,25 L. Ed. 2d 1(1970), the information. forthetediotrsaizd tinzeconsunzingtask Supreme Court held that the corpora- The attorney representing the cor- of updating this a)licle andp,ouiding tion in such instances is required to porationmay be placedin the untenable helpful su@estions. appoint an agent who, without fear of situation of responding to document 15 VOICE FOR THE DEFENSE

requests and interrogatories with very and to answer discovery on counter- 1239, 1250 (S.D. N.Y.), appeal dis- little or no knowledge of the actual claims. nzissed, 485 F.2d 1290 (2d Cir. 1973). factsof the case. Insuchcircumstances, The strain on the corporate defense Corruotlv Advisino: "Cor- the corporation's attorney may be dis- attorney in transition is intense, and ruptly advising" a person, not your closing work product or, worse, often places counsel in the position of client, to invoke the Fifth Amendment swearing to factsaboutwhich he has no making management decisions on the also classifies as obstniction of justice. knowledge. prosecution of the lawsuit, thus calling United States u. CioB, 493 F.2d 1111, Kordel and its progeny indicate that for him to act, in effect, as both client 1119 (2d Cir.), cett. deniecl, 419 U.S. the attorney need not agree to his and attorney. For example, if after 917,95 S.Ct 195, 42 L. Ed. 2d 155 (1974); appointment as agent for the corpora- investigating the claims asse~ted by Cole v. UnitedStates, 329 F.2d 437 (9th tionand that theappropriate procedure one's opposition, the lawyer for the Cir. ) cefl. denied, 377 US 954, 84 S. to defeat such discovery is a motion for corporation decides the government's Ct. 1630, 12 L. Ed. 2d 497 (1964); protective order. See, Casson Cotz- claims may have merit, to whom does UnitedStatesu.Fuyer, 523 F.2d 661,663 st,r~tionCo, u. Annco Steel Co~p.,91 he address a settlement proposal? Who (2d. Cir. 1975); see also U~zitedStatesu. F.R.D. 376 (D. Kan. 1980). At least one should make the decision whether to McCotnb, 744 F.2d 555, 563 (7th Cir. agency of the federal government cross-claim against the individuals un- 1984); UnitedSlates u.A,rzold, 773 F.2d maintains that the attorney has no op- der investigation? The problem is more 823, 831 (7th Cir. 1985) ("Courts . . . tion but to become the corporate agent difficult if the corporation has passive have uniformly held that the statute andanswerdiscovery. See, mu.Katze, investors not involved in the dispute or made it a crime to corruptly influence a CA-84-5416 A\W (Px) (S.D. Cal.; L. A. if the corporation is in bankruptcy. witness to invoke his Fifth Amendment Division) (Motion to Conlpel and for Further compounding the difficulty for self-incrimination privilege before a Sanctions Lodged January 13, 1986) the corporation's lawyer is the possi- federal grand jury rather than testify."); (unpublished). bility that the insurance company pay- United States u. Bake,; 611 F.2d 964, 3) Who Guides the Litisation? ing for the defense of the corporation 967-69(4thCir. 1979). Butsee, iWn17a.7 The Kordelissue raises a fundamental may have an interest different than that u.Meyets,419 U.S. 445495 S. Ct. 584, 42 difficulty in the defense of a company of the trustee in bankruptcy or the I,. Ed. 2d 574 (1975) (attorney who "in accused of trade secret theft. Who management of the corporation. Most good faith" advises his client to assert guides the litigation if the attorney for insurance policies exclude any recov- his Fifth Amendment privilege does not the corporation is unable to talk to the ery on the policy for damages resulting violate 18 U.S.C. $1503). I have not principal officer under investigation? from criminal behavior. Thus, the in- located a clear definition of what Who decides when a counter claim surance conlpany's interest could be "corruptly advising'' means. See, should be asserted and who proposes sewed by evidence that the principals Meaning of Term "Cor~uptly"For Pur- or responds to motions for sumnlary and the corporation did commit the poses of 18 USCS $1503 Makin? It a judgment? The corporate attorney in a crime charged while the corporation is Federal Offense to Corru~tlyEndeavor parallel civil and criminal prosecution sewed only by a finding it did not to Influence. Intimidate. Inmede. or may be rendered blind and ignorant engage in the unlawful conduct. Iniure Witness. Turor. or Officer in and forced to rely on opposition tes- The principals of the coiporation Federal Court. or to Obstruct the Due timony to defeat summary judgments under investigation may have an inter- Administration of Tustice, 62A.L.R. Fed. est antagonistic to the corporation in 303 for cases interpreting "corruptly that the principals under investigation influencing." Defense counsel who may wish to defeat the criminal contacted indicted witness and his charges at any cost even if that means counsel and suggested that witness the corporation is more likely to lose might want to exercise Fifthhtnendment the civil case. privilege did not violate 18 U.S.C. 51503 Thus, representing a corporation since such conduct was "legitimate whose oEcen and directors are under action of defense counsel. . . contacting investigation is rife with potential con- an important witness. . and his counsel flicts of interest. to discuss matter of mutual importance (4) Potential Traps For The Unwarv: to them. McATeal u. Hollowe1l, 481 F.2d. (a) Obstruction of lustice: 1145, 1152 (5th Cir. t973, cert. denied, Through amendment and decisions, 415 US. 951,94 s. ct. 1476,39L.Ed. 2d the crime of obstructing justice has 567 (1974). gradually expanded. Agreement that one of the witnesses Destruction of Documents: The would be absent from the trial by ar- destruction of documents is clearly an ranging to undergo surgery is obstruc- obstruction of justice. See, 18 U.S.C. tion ofjustice. United Statesu. Minkofi Sec. 1503, 1505, and 1510 (obstn~ction 137 F.2d 402 (2d Cir 1943). of criminal investigation); obstruction Thus, the attorney representing the prin&ally engaged in litigation. Mf;, of justice applies prior to the initiation target defendant must be sensitive to Lynn has lectuled extensively on parallel of fo~malproceedings, United States u. the obscure line between vigorous ad-

civil and crin~inalprosecution. ~ ?~ Walasek, 527F.2d 676 (3d Cir. 1975); vocacy and "conuptly advising" a per- United States u. Mitchell, 372 F. Supp. son, not your client, to engage in con- VOICE FOR THE DEFENSE

duct which may "impede" a criminal City of Nau York, 717 F.2d 700 (2d Cir. 1087 (5th Cir. 1979). ("When. . . by the investigation. 1983). Courts have refused to allow a silence is constitutionally guaranteed, (b) contempt: party's invocation of the Fifth Amend- dismissal is appropriate only whe~e Courtsmay choose to hold theattorney ment to be thesole basis for determining other, Iessburdensome,remedieswould j and hisclientincontemptforobstructing a civil suit. Wehling u. Columbia be an ineffectivemeans of preventing justice or disobeying idiscovery order Bmadcasting Systm, 608 F.2d 1084 unfairness.. . SeeHeidt,TheConjurer's of the court. See 18 U.S.C. $401. Berkey (5th Cir. 1979); National Acceptance Circle-The Fifth Amendment Privileze Photo, Inc. u. Ewttnan Kodak Co, 603 Cmnpat~yof America u. BathaIra, 705 in Civil Cases, 91 Yale L.J. 1062, 1107 F.2d 263, 305-08 C2d Cir. 19791, cert. F.2d 924(7thC1r. 1983); Speoacku.Klh, (198282). denied, 444 U.S. 1093, 100 S. Ct 1061, 385 US. 511, 515 (1967). The failure to specifically admit or 62 L. Ed. 2d 783 (1'930); United Stutes Where a non-party invokes the Fifth deny assertions in a federal answer as u. Walasek, 527 F.2d 676, 680 (3d Cir. Amendment, no adverse inference may required by Rule 8 Fed. R. Civ. P. is not 1975). be drawn against e~therparty in most a legitimate reason to default a defen- c. The Reauired Documents Ex- cases. UnitedStates u. 12 Couttrrc, 495 dant asserting the Fifth Amendment in ceotion: F.2d 1237 (5th Cir.1, cert. denied, 419 answer to allegations in a federal If the Defendant is required to keep US. 1053, 1974); United States u. complaint. Natio?aalAcceptanceCo. u. documents by a comprehensive gov- Jobluon, 488 F.2d 1206 (1st Cir. 1973). Bathalteq 705 F.2d 924, 929 (7th Cir. ernment scheme of regulations, then Where the witness invoking the Fifth 1983). no privilege exists as to those documents. Amendment is closely connected with a Dismissal of claims asserted by a Thus, documents required in some party, the controlling witness may be pant invoking the Fifth Amendment government contracts are not covered treated in the same way as a party could be construed as an automatic by the Fifth Amendment privilege and, witness. Poplar Grow Planting and penalty for invoking the Fifth Amend- must be produced. See e.g., Shqim u. Refining Co. u. Bache Halsey Stwrt, ment and therefore may be prohibited Unitedstates, 335 US. 1,68S. Ct 1375, Inc., 465 FSupp. 585 (M.D. La. 1979). by the Constitution. See, BluckPanfher 92 L. Ed. 1787 (1948); United States u. Thus, the assertion of the Fifth Partyu. Smith, 661 F.2d 1243,1272 (D.C. Sdiuun, 274 US. 259, 47 S. Ct. 607, 71 Amendment by company employee or Cir. 19811, uncat#d sub non?.Moom U. L. Ed. 1037 (1927). former employee could hurt the com- ~1ackPatztherPaM458 US. 1118,102 4. WHAT ARE THE CNIL CONS& pany. Brink's Inc. u. City ofNau York, S. Ct. 3505, 73 L. Ed. 2d 1381 (1982). QUENCES 08 INVOKING THE FIFTH 539F.Supp. 1139,1142(S.D. N.Y. 19821, Courts have held that the continued AMENDMENT ? afd, 717 F.2d 700 (2d Cir. 1983). assertion of a counterclaim may waive a. Inference and Instruction in Civil If the target Defendant invokes the a litigant's right to invoke the Fifth Case: Fifth Amendment, the decision will of- Amendment. IndependentPtoductiom The trade secret defendanthas a right ten be in favor of the Plaintiff. The Cotp. u. Low'sI?rc.,22F.R.D. 266 (S.D. to invoke the Fifth Amendment. See, decision toinvoke theFifthAmendment, N.Y. 1958) vacated Moo= u. Black McIntyrek Mini Computer u. Creatiue while generally a reflexive action on Patzthec 458U.S. 1118,102 S. Ct. 3505, Syne~gyCorporation, 115 F.R.D. 528 the part of attorneys, should therefore 73 L. Ed. 2d 1381 (1982) (litigantwaives

opposing counsel will introduce the documents and evidence to prevent proceedings. If the criminal prosecu- card as a vely large exhibit at trial. disclosure of the documents and the tion takes place before the institution of (3) You should not state and you Fifth Amendment invocation to the the civil proceeding and the defendant should not have your witness state that world. Such an order may be helpful in is acquitted, the acquittal has no effect he or she is invoking the Fifth Amend- interferingwith the cooperationbetween on the subsequent civil proceeding, ment because their testimony "will," thegovernment and t11evictimcompany. and the government may proceed with "may," or "might" incriminate the wit- See, P. Donnici, The Privilege Against and prevail in the civil proceeding. See ness. After all, if the testimony is to Self-Incrimination in Civil Pre-Trial Helveriim u.MitcheN, 303 US. 391,397, come into evidence it is best that the Discovew: The Use of Protective 58 S. Ct. 630, 82 L. Ed. 917, 920-21 witness and his lanyer not express an Orders to Avoid Constitutional Issues, 3 (1938). The rationale for this rule was opinion on the incriminating nature of U.S.F.L. Rev. 12 (1968). A court may recently stated in the Supreme Court in the evidence. One acceptable method seal deposition testimony or enjoin the O~zeLotE~zzeraldCut Stoms G OizeRirzg of invoking the Fifth Amendment is to parties from disclosing information u. Unitedstates, 409 U.S. 232, 93 S. Ct. claimthe protection ofthe Constitution, obtained through discovery in any other 489, 34 L. Ed. 2d 438 (1972): "[Tlhe of the United States under the Fifth proceedings. See lValdhaiin7 u. difference in the burden of pmof in Amendment and the applicable provi- Worlduisio~~E~rte~prises, 84 F.R.D. 95 criminal and civil cases precludes ap- sions of the Texas Constitution without (S.D.N.Y. 1979); Secimrities and En- plication of the doctrine of collateral further comment. change Co~~rnlissio~~u. Gilberf, 79 F.R.D. estoppel. The acquittal of the criminal b. What to Exoect from Skilled 683 (S.D.N.Y. 1978); MarTindell v. charges may have only represented 'an Opoonenr: Intemutional Telephone and Telegraph adjudication that the proof was not (1) Detailed and Precise Ouestions Co~p.,et a/., 594 F.2d 291 (2d Cir. sufficient to overcome all reasonable Con~oellineFifthhnendmentResoonse. 1979); Paln~ieriu. State ofNau Yo&, 779 doubt of the guilt of the accusetl."' Id. at ~ecause-theskilled opponent is at- F.2d 861,863 (2d Cir. 1985) (protective 235, 93 S. Ct. at 492; see also U~zttecl tempting to create as many specific order granted pursuant to Rule 26(~) Statesu. O~~eAssorfmentof89I;irenrnx, inferences as possible concerning the expressly providing that all matters re- 465 U.S. 354,104s. Ct. 1099,1104-05,79 weakest portion of his case you will be lated to discove~ywould not be dis- L. Ed. 2d 361 (1984); 18 C. Wright, A. faced with a long tedious and emo- closed to any other person, including Miller & E. Cooper, Federal Practice tionally exhausting day, as specific any government agency or inst~umell- and Procedure, $4422, at 209 (1981). questions are addressed to which the tality); Annotation, Construction and Conversely, "because a defendant is witness invokes his Fifth Amendment Ao~licationof Provisions of Federal surrounded by greater safeguards in Privilege. Sinclriir u. Sauirrgs Loall Rule of Civil Procedure 26(c) Providing criminal than civil litigation, and the Co?~~r~~issio~?eroIas,696 S.W.2d 142 For the Filine of Secret or Confidential standard of proof to which the conl- (Tex. App. - Dallas 1985, writ rePd Docunlents or Infornlation Enclosed plainant is held is higher, a judgment of n.r.e.1, in SealedEnvelooes to be Ooened Only conviction is conclusive incivil litigation Your opponent will ask leading as Directed Bv the Court, 19 ALR Fed. between the same parties as to the questions such as: "You knew the 970 (1974). issues thatwere litigatedand adjudicated materials you were taking were confi- (3) The Victim Com~anv'sMotion to in the criminal prosecution." 1B J. dential, isn't that correct?"; You inten- Preclude: Moore, J. Lucas & T. Currier, Moore's tionally took confidential docun~ents The victim company will usually Federal Practice, ql 0.418 111, at 552-53 when you left the poor victim company, follow a deposition in &hid, the Fifth (2d Ed. 1984) (footnote omitted); see true?" "You knew that the big deep Amendment has been invoked with an also Allen u. McC~rrry,449 US. 90, 104, pocket bank was involved in an application to begiven reasonable notice 101 S. Ct. 411, 420, 66 L. Ed. 2d 308 agreement to injure poor victim com- prior to trial if the witness invoking the (1980) (state court conviction for con- pany, true?"; "You are a guilty son of a Fifth Amendment suddenly has a change spiracy in restraint of trade precludes gun who enjoys lollipops."; etc. For a of heart and wishes to testify. If no defendants' relitigation of conspiracy useful review of how to ask questions notice is given, then the witness is issue in government's subsequent suit when the defendant is invoking the precluded from testifying differently to enjoin conspiracy). Fifth Amendment, see, W. Raleigh, from his prior testimony that is, pre- If the civil action takes place before Confrontine the Fifth Amendment Privi- cluded from testifying. Dliffy u. Cur- the institution ofthe criminal action and lege in Depositions, Barrister, Summer &I; 291 F. Supp. 810, 815 (D. Minn. the defendant is held liable for civil of '85, pp. 42-45. 1968); Backosu. UnitedStates,82 F.R.D. damages, the judgment of civil liability Fifth Amendment may not be asserted 743,745 (E.D. ~Mich.1979; R. Heidt, & is not conclusive of any issue in the as a general objection. United States u. Coniurer's Circle - The Fifth Amend- subsequent criminal trial and admission Babb, 807 F.2d 272 (1st Cir. 1986) (in- ment Privilege in Civil Cases. 91 Yale of the judgment is prejudicial error. vokep~ivilegeon eachquestion); Uuited L.J. 1062, 1130 (1982). ~ee,U~iitedstates u. Rylande?; 714 F.2d States u. Sbiuets, 788 F.2d 1046, 1049 c. More Traps: Collateral Estoppel 996, 1002 (9th Cir. 19831, ce~t.denied, (5th Cir. 1986); HU~SOIITireMarf, Ilizc. (1) The Rule & Its Pem~utations: 467 U.S. 1209, 104 S. Ct. 2398,81 L. Ed. u. Ael~zaCasualfy aiid Surety Co., 518 The specificcollateral estoppel effect 2d 355 (1984); United States uu.Bee~y, F.2d 671, 674 (2d Cir. 1975). >f a prior criminal or civil proceeding 678 F.2d 856,868 n. 10 (10th Cir. 19821, (2) Use of the Protective Order: kpends upon the result in the prior cett deniecl, 471 US. 1066, 105 S. Ct. You should consider attempting to xoceeding and upon the burden of 2142, 85 L. Ed. 2d 499 (1985); see also, obtain a protective order sealing the xoof in the prior and subsequent Conti~rrredon page 28 VOICE FOR THE DEFENSE GRANTED PETITIONS FOR' DISCRETIONARY REVIEW

SinceJuly 17, 1B5, the adniinistm PDR 0719-92,0720-92 09/23/92, Bee failed to charge engaging in organized tivestnffattonzeysof the Court of Crirni- (A's PDR), Jinrnty MartDzezandRohert criminal activity. nal Appeals haw compiled, in the nor- E. IValk, Appealfionz a Pretrial Ordei: .>+**.:. mal came of his~ness,a list of caa 1. The Coult of Appeals erred in hold- PDR 0736-92 09/23/92> Brazos, (S's andlegal issues on which the Co~nha5 ing the exceptions set forth in Texas PDRI, Samtial King, Dm: Rehearing grantedpetitioasfor reuiew. Although Revised Civil Statute Annotated' Article granted following refusal for non- originaNypreparedfori~?terizaltrseoft&, 6252-17, the Texas Open Meetings Act compliance with Tex. R. App. R. the Cotirt has authorized release of tht are not exceptions to a criminal offense 202(D)(7). The trial court properly l&tforpz~hlication and for use by the as that term is defined in the Texas refused to shuffle the jury panel at bench and bur of Twcns. The issues Penal Code Section 2.02. 2. the Court appellant's request after the panel had listed are suinma~.iesas mrded by the of Appeals erred in holding the excep- already beenshuftled by the state. (See staQ: and do not necessarily reflect ei- tions set forth in Texas Revised Civil Jones, No. 349-91 delivered 6/24/92) ther the rernsoniig or the phraseology Statute Annotated Article 6252-17, need <..:.***:. used by theparties or by the Cotuf not be specifically set out in a charging PDR 0790-92 09/23/92, Bexar, (A's Thefollolui~rgare the cases and isms instrument. 3. The Court of Appeals PDR), Tho~nasFisher, Murder: I. on which tbeCotrrtof CriminalAppeals erred infindingthe charging instrument Whether the evidence was sufficient to granted review but which the Cotrrt has provides adequate notice to the appellee support a conviction for murder when not yet deliweled a written opinioi?; of the charges against him. the body of the deceased was never $*4*4 found? Is a body a necessarypart ofthe 4**90 PDR 0725-92, 0726-92 09/23/92, corpus deIicti? PDR 0583-92 09/16/92, Lubbock (A's Tarrant (S'sPDR), Tracy ChrisNieeDuke .:. 4 .:..:..:+ PDR), RayMorales, I1zjuryto a Child: 1. andJulieLym Hoistma% Appeakjom PDR 0819-92 09/23/92, Dallas, (9s Whether the t~ialcourt's application Pretrialorder. 1 A. Whetheranindict- PDR), Victor B. Moore, Aggrauated charge improperly charged the jury on ment for engaging in organized crimi- Robbery 1. Does state's waiver of the law and standard as regards conduct nal activity, pledunder the "did commit opening statement preclude defense as opposed to result oriented intent in the object offense" branch of Penal from making opening statement before an injury to a child case? Code $ 71.02(a), must allege as an presentation of state's case? See Art. .:..>+.$.> ssential element that the defendant 36.0l(b), V.A.C.C.P. PDR0606-92 09/23/92,Jef~~oit, (SPA), zomrnitted an overt act. B. If an alle- .a<*+.:.* Bitce Chrisfopher Chatman, Murder: :ation of an overt act is necessary, PDR 0918-92 09/23/92 Hatris, (A's Can the evidence be sufficient to sus- whether that requirement was satisfied PDR), BBiNIe Gean Spillel; Possession of tain a parties conviction when the in- ~y alleging that appellant committed Cocaine: 1. Whether failure to include structional section of the court's charge he object offense of aggravated pro- the qualifying language in notice of correctly instructs on the law of parties, notion of prostitution with the intent to appeal after a plea bargain is followed and the application paragraph pennits zstablish, maintain, or participate in a precludes review of merits of pretrial the jury to find appellant guilty, "either :ombination or its profits. 2. Whether motion when record shows everyone acting alone or as a party, as that term tnindictment for engaging inorganized intended to allow appeal of merits. See has been defined," but the jury is not :riminal activity must allege, as an es- Tex.R.App. Pro. 40(BX1). Should Jones, required to find any particular act or iential element, the names of the other 796//183, be reconsidered? acts which demonstrate liability as a llenlbers of the combination. 3. (762- .$.+*.:.** party. )2 only) Whether the offense of ag- PDR 0939-92 09/23/92, Bastrop, (AS 04444 gravated pronlotion of prostitution re- PDR), Bruin Allen Beley, Possession of PDRO688-92 09/23/92, Galveston, (S's juires that the prostitution enterprise 400 gmms or mane of inethamphet- PDR),Nathaniel Wilt5 Attempted Ag- Ie composed of at least two prostitutes ainine: Did the Court of Appeals err in grouaredSa~~alAssdlz~If..1. \mether a ?tl,mthan the defendant. 4. Whether reforming the judgement of conviction subsequent punishment of five years m indictment which alleges all the o reflect a lesser included offense in- confinement is greater than the previ- ,ssential elements of aggravated pro- stead of reversing and ordering an ac- ous punishment of 10 years probated? notion of prostitution fails to state that pittal where the evidence was held See khuga, 532//581? )fFensebecausethe indictment includes nsufficient? ***.:.*:. ldditional language which sought but +**+:. VOICE FOR THE DEFENSE Summary of Significant Decisions of the Courts of Appeals by Roy E. Greenzuood

Cause Name Court # Offense County Dispo- Opinion S Cause No. Name sition Page No.

LANGSTON, 14 Crini. Harris Reversed SUZANNE ET AL Houston Tresp. #14-90-00287-CR 1. SUFPICIENCY(7XFSPASS)- Where A, an abo~fionprotestor, was found otrtsideof a yellow "property line" drawn by the abortion clinic to show their private property, and inside a police barricade set up to keep back protesters, and information charged that A trespassed on the property "of the clinic,'' CA holds that the evidence shows that A was, in effect, on public property since A was found outside of the yellow line marking the property belonging to the clinic, thus evidence insufficient.

GRIFFIN, 1 Agg. Sexual Harris Reversed on GLENN Houston Assault Remand #I-86-00338-CR 1. COURT'SCHARGE(PAAR0EI.A WCIW1GE)-Where CCA remanded this case back to CA to determine harm, CA analyses the evidence, and finds that during the final argument, the prosecutor continuously argued parole law, over A's several objections, and that since the prosecutor's al-gunient told the jury that a life sentence could be paroled in less than 20 years with good time, where this was an aggravated offense, this argument was a misstatement of the law, and thus harmful and then in this case reversed and remanded.

CHACHERE, 1 Theft Harris Reversed KEVIN Houston #I-89-01053-CR 1. SUFFICIENCI'(INSURANCED~-Where A was indicted for stealing "cash money" in the form of an insurance company draft made in payment for some lost property, where state apparently proved that this insurance claim was fraudulent, CA finds that an insurance draft is unlike a bank check, and is not directly negotiable, and that since this draft had not been converted into cash or credit at the time of A's arrest, CA concludes that the theft of the insurance draft did not constitute "theft of cash money" and thus the evidence is fatal variance and reversal required.

RENFRO, 14 Indecn. Harris Rev. CHARLES Houston w/Child #14-90-00658-CR 1. IW7NESSB (EXCLUSION OFDEPENSE) -Where A was charged for exposing himself to children, and where victims were unsure and challenged as to theidentification, and A attempted to present evidence that he had been misidentified by two other women with regard to sexual assault cases of a similar nature, and trial court would not allow such evidenee, CA holds that under the Rules of Evidence the right to offer testimony of the witness on behalf of the accused to present a showing of %on- identity" should be allowed, just as the State may show extraneous offenses of identity, and thus in this case A was denied relevant material witnesses in his behalf and reversal required. COMMENT: Excellent opinion and great job by trial lawyer.

MOORE, 2 Assault Tarrant Rev. EDWARD Fort #2-90-058-CR Worth 1. INDIC7iMEEMS & INFOR~MAZTONS(ID~~~~SONANY~~~EIWMENTOFINFOR~~~~~~ON)-Where information charged A wit11 assaulting Richard "Hhock and State filed amendment asking that the information be changed to Richard "Manch and trial couT granted it, CA holds that the names are not idem sonans under any circumstances, and thus the amendment would have been a major change in the pleading, and was thus improper and should not have ken allowed and thus judgment reversed and infomiation ordered dismissed. VOICE FOR THE DEFENSE

McPHERSON, 7 State's Randall Rev. LARRY Amarillo Appeal #7-91-0151-CR NOTE: The Defendant was being tried for capital murder, and the car@rl trial judge submitted a fourth special issue to the jury at punishment under the decision in knry 0. Lynatcgb, 109 S.Ct. 2934; the jury, after answering the first three statufoy special issues in the afirmative, then answered the fourth special issue in the negative; the trial court originally sentenced A to death, but thereafter on MFPIS, the trial judge, based uporl the jury's negative answer to the fourth special issue, granted the motion and reformed the death sentence to life. The State appeals. 1. SEmNCES CDEATHPENAW VERDICTS) -Where the State contends that the assessment of the life sentence was improper, since the jury's answer to a fourth special issue was improper, as not being authorized under Texas law, CA notes that under Penry the instruction was proper, but that under Twcas lam such a special issue submission msimploper under Article 37.07, § Ka) and thus the submission of such a fourth special issue was improper and requires the case to be remanded. 2 SE~NCEAPPEASfDISPOSII1ON)- CA concludes that when the trial court did finally accept the verdict, that has now been determined to be illegal, that the only alternative the Court has is toremand the caefor a ?mutrial, since Article 44.29, V.A.C.C.P., did not apply to this case since it occurred prior to 9/1/91, thus CA cannot remand the case merely for a new punishment trial. COMMENT: As I understand this opinion, the trial court gave a due and proper fourth special issue to the the jury, which the Ch says cannot be done; even though CA finds that the requirements of Penry require that some "equivalent action be taken," apparently this CA believes that the submission of a fourth special issue is not an authorized option; thus, this writer must conclude that this CA has found that the only option left, assuming that a Penry issue is raised, would be to give the jurols aninstruction orderingthemto "violate theiroaths9'withregardto one ofthe threefirststahttoryspecialissues ratherthananswer separately a fou~thspecial issue. Obvious PDR here.

WEATHERFORD, 11 Theft Scuny Rev. JIM Eastland #ll-90-172-CR I. S~RCHGSEIZLIRE(AD~~n~SWCH1V~-Where A became a suspect in a situationinvolving the theft of oil f~ldproperty, and POs secured a search wanant of A's home and business under the provisions of Chapter 88 of the Natural Resources Code, which allows inspection of oil field property in the records of oil production facilities, CA holds that the purpose for obtaining this searchwamnt was outside of the authority under the administrative guidelines, and thus, under Crosby u. State, 750 S.W.2d 768, the searches of these t~opremises exceeded the authority of the administrative search guidelines, tl~usillegal search found and conviction reversed.

POWELL, 8 Murder Hrewster Kev. DAVID El Paso #8-90-00348CR 2. SUFPICIENCYQWRDER)-Where Awas charged with killing a child, by "striking the deceased on the head," and the State's evidenceshows, at worst, thatA intlicted non-fatal wounds to the boy's body, but there was no evidence to show that he struck the deceased in the head, and there was a substantial time franie in which other persons coutd have administered the fatal blow, thus the evidence is insufficient under Jackson u. State, 652 S.W.2d 415, requiring reversal. 2. COUMELCINEFEC17VEASSIsTANCECLuMj-Even though CA reverses and orders judgment of acquittal, nevertheless, CA notes in this case and A was represented by a law student, qualified under § 81.102 of the family law practitioner; CA finds that errom of omissionand commission were "so numerous" as ro "defy the conception of sound trial strategy" but under the circumstances, where acquittalis ordered, CA does not leviewineffective assistance of counsel claim and suggests to trial Courts that it would not be in the best interests of administtation of justice for a law student to be able to act under such serious trial circumstances. VOICE FOR THE DEFENSE How to Conduct a Meaningfid and Effective Voir Dire in Criminal Cases by Cathy E. Bennett and Robert B. Himchharn

Part 4 be a liberal profession, such as the arts and most others is that the majority of or thesocialsciences,one mightassume jurors will get a tatting of 4 for what we vm. MAKEUP OF THEJURY that he or she is more apt to be open- call the "grey" jurors. It is impossible to generalize about minded. The stereotype does not hold It is with this group that an experi- the type of people who you want in a anymore. Some of the most conserva- enced jury and trial consultant is worth typical criminal case. There are no tive, pro-prosecution jurors we have his or her weight in gold. These scales rules. However, we look for people seen are in the 'Qrtsyn or liberal profes- when done on each juror dlact as a who havetraveledorhavebeenexposed sions. Our society has become so point of comparison when making to the world and realtze that no one is mobile, we get information fmm so choices. This, combined with each perfect. But on the other hand, some of many different sources, and people are person's notes on the juror and a ver- the best jurors we have had are people impacted in very different ways from batim account of what the juror said who have never been out of their home how they formerly were. during uoir- give additional data on state and yet view the world with an In addition to individual jurors, the which to base your strikes. open-minded perspective because of defense team must examine closely the A very important dynamic when put- something in their background. The group dynamics. This means that the ting the group together is getting the only guidelines are to look for flexible, defense team must decide who will be defendant's perceptions of how each independent, sensitive and open- the most likely forepason, who will juror seemed to relate to him or her. minded people. follow this person, who will resist this Thisisextremelyvaluableinput, because What we have found in all the re- person. Also, a close look must be he or she often can perceive feelings search that has been done on juries is giventowhatsub-groupingwill emerge and reactions from jurors that other that, yes, demographics do have some- and how powerful these groups will be. people in the selection process miss. thing to do with how people communi- Somequestions to consider in thegroup Another thing that is added into the use cate, and likewise, what kind ofpublic- dynamics are: (1) How many strong of peremptory challenges is how jurors ity they have been exposed to has a lot people do you want on your jury? (2) related to one another during the selec- to do with how they view the case. How many weak people do you desire? tion process. If the selection was panel More importantly, however, is how a @) What percentage of your jurors are mir& who noddedat someone else's person's personal life experiences have strong prosecution types and what =ers or gave someone a scornful affected his or her view of the impo~ant percentage are defense jurors? These look when they were answering a case issues. That is why the old ste- are but a few questions that must be question? Who copied someone else's reotypes that many defense lawyers answered before exercising peremp- answers and seemed to value what they rely on are not reliable. As a result, tory strikes. Nl ofthis, of course, will be said? lawyers oftenstrike people who would figured in with whom the defense team When individual mir dire & being have been good jurors in their case. thinks the prosecutor will strike. conducted, the defense team should The old profile assumes that military In order that the defense counsel have notes on who chooses to sit next officers, bankers, accountants or con- might have as many observations as to whom andwho was talking to whom servatives are going to end up being possible, everyone at the defense table when the ju~ynras in the hallway or in pro-prosecution, everyonewhohas law should takenotes on each juror's verbal the bathrooms. Nso note people's enforcement background, or family and non-verbal responses. It can also neighborhoods, jobs, socio-economic members who are in law school, is be helpful to set up rating scales for cldss and hobbies to discover who will going to be pro-prosecution. We have each juror. This would be a 10-point have common interests on the jury and not found these to be necessarily true. scale with the number 1signifying pro- who will identify with each other. This There is a major antiquated blind faith prosecution, authoritarianandpunitive. will also indicate which people will that leads many layersm pigeonhole Number 10 on the scale should be the conflict with one another. jurors. They jump to conclusions about opposite from number 1 and would There are an infinite number of areas them without getting enough infoma- illustiate pro-defense, strong, flexible, to lookat while picking a july that will tion. non-punitive, intelligent and leader. feed into the decision-making process. If a person works in what appears to The inherent problem with this system The sign of a creative attorney during VOICE FOR THE DEFENSE

&!&&is &!&&is the one who changeshisw gotten to the core of who you are? and be contacted and retained well in ad- direprocess at the completion of each (6)\%at other questions should I have vance of the trial. Hiring a consultant trial. This person finds new content asked you? This atrorney also puts as on the eve of jury selection is the areas in which to ask questions, deletes much energy into the selection of a jury cquivalcnt to hiringan investigator OII questions that are confusing or detri- as he or she does in the presentation of thc I'riday bcforc tl~etrial. Wither thc mental and is always desiring to in]- the case, because he or she realizes that consultant nor the investigator can prove his or her verbal responses and he or she can put on the best play in the properly do the job without sumcient non-verbal gestures. This person also world, but without an audience which time or infomation. interviews jurors after trials to find out is receptive to the play, it will be mis- IF the funds are available, the trial not only information about how the understood and not comprehended. consultant should work with the attor- jury saw the case, but also to find out IX ROLE OF TRIAL CONSULTANT ney not only during jury selection and the jurors' perceptions of him or her, A trial team in a criminal case gener- the trial, but also on developing a trial the judge and the prosecutor during ally consists of the trial lawyer, the theme, assist with the trial preparation --uoir dire. He or she asks questions of investigator, the secretary and the and run one or moremock trials. If time the jurors such as (1) What questions I paralegal/legalassistant. Moreandmore or funds are limited, the consultant asked made you want to talk to me? (2) lawyers are adding anextra, and neces- should be retained to review case ma- What questions hindered ow relation- sary, member to the team! a jury and terials, prepare a jury questionnaire, ship? (3) What kinds of adjectives trial consultant. Many lawyers are now write ~r&equestions and assist with would you use to describemy behavior acknowledging the tremendous input jury selection. during jury selection? (4) How could I and assistance provided by competent Many lawyers call consultants and have explained jury selection ina more and experienced trialconsultants. Their say, "I dan't want all the bells and clear way that would have aided your role is to augment not replace the trial whistles, just give me a juror proflle - answering my questions more com- lawyer. They should be the thirteenth do I want men orwomen, young or old, pletely? (5) What question or questions juror, not the second chair lawyer. white collar or blue collar, high school could I have asked that would have A jury and trial consultant should be educated or college educated" The consultant can provideagenericproflle but in the absence of empirical data (survey, mock trials or focus groups) it is impossible for the consultant to accu- rately predict how certain demographic groups will read to a particular set of facts. The consultant that sayshe or she can give the lawyer a demographic based pmfde without empirical input is either fooling the attorney or is remark- ably lucky. Given the tools that are available, you should not leave jury selection to mere guesswork. Do not take a short cut. Jury selection is threequarters art and one quarter sci- ence. The courtroom is tbe canvas, the consultant has the colors but it is the trial lawyerwhomntrok thepaintbrush X. CONCLUSION Jury selection is the point that sets the tone for the rest of the trial. It can be a lury's most valuable educationalforum, if used to its limit, and requires sens- tivity and awareness on the attorney's part. Openness, flexibility and courage 3n the part of the attorneys are what make communication during w& accomplish its aims. The art of human relationships is a very demanding one. It is fdled with Raws and mistakes because under- rtanding someone and how he or she will behave is one of the most difficult and unpredictable tasks in the world. Most people never really knoweven the VOICE FOR THE DEFENSE 1 SIGNIFICANT RECENT DECISIONS I

Editor: Catherine Gwene Burnett

Part 5 dissents. Court of Criminal Appeals originally remanded at 790 S.W.2d 643. PROCEDURES D's case was remanded to the Court of Appeals to determine FOLLOWING whether an out-of-court statement by an accon~plicewas REMAND made in furtherance of an ongoing conspiracy. On remand REVERSAL the Cou~tof Appeals decided that the statements were not in fact made in fu~thelanceof the conspiracy. However, the REMAND: STATE'S intermediate coult went further and found that the statements OBJECTION TO AP- were admissible as an exception to the hearsay rule allowing POINTMENT OP admission of statements against interest. Thus, the Court of SPECIAL MASTER Appeals afirmed the conviction. WAIVED WHEN HELD: Reversed and remanded yet again. RATIONALE: The RAISED FOR FIRST Court of Appeals erred in not fully complying with the scope TIME ON MOTION of the remand order. The sole charge on remand was for the FOR REHEARING. lower appellate cou~tto consider again D's first point of error JANECKA, No. 68,881,Janzary 15, 1992; Opinion by Judge concerning admissibility of the accomplice's statement as an Omst,~e~Jzu~esMcCon~~~ck,White, Canp~l~ rn?dBenauides exceptionunder Texas Rule of Criminal Evidence 80l(e)(Z)(E). dissent Neither the State nor D had ever alleged during the course of Court of Criminal Appeals originally remanded at 737 this appeal that the statement at issue was (or was not) a S.W.2d 813. statement against interest. Thus, the CourtofAppeals stepped This is a capital murder appeal; the death penalty was outside its proper function in addressing that issue. assessed. Onginally the Court of Criminal Appeals remanded D's conviction to the trial courf for a hearing to allow D to RETRIAL: mIGENT ENTITLED TO TRANSCRIPT OF demonstrate harm as a result of the trial court's error in PREVIOUS TRIAL IN WHICH MISTRIAL DECLARED. overruling a motion to quash. the trial judge appointed a WHITE, No. 0063-91;Jaimary 8, 1992; Opinion by J~dge special master to preside over that hearing and to make Ca~npbelbJudge McCormick concras. fmdings of fact and conclusions of law Subsequently the trial Here D was tried for delivery of cocaine. During the fxst trial judge adopted the special master's findings and conclusions, the prosecution presented four witnesses, three of whom and the Court of Criminal Appeals reversed the capital murder were police officers involved in the arrest. The prosecutor's conviction based on D's demonstration of harm. entire case took approximately two hours to present. How- On rehealing, the State alleged for the first time that the trial ever, the jury "hung," and the judge declared a mistrial. judge lacked authority to appoint a specialmaster. The State's rhree days later, D requested a transcript of the testinlony of theory was that unlike post-conviction writ of habeas corpus the three officers from the fi~sttidal in order to pepare for proceedings, them is no stahlte giving authority to district ooss-examination in the upcomg retrial. Upon learning judges to appoint a special master to conduct a hearing in a that such a transcript would not be available by the time of case on direct appeal. Arguing that the entire proceedmg was retrial, D filed a motion for continuance. That motion was void from its inception, the State sought to overturn the werruled on three grounds: (I) because of the short duration reversal. 3f testimony at the first trial; (2) because the first trial had HELD: State's motion for rehearing denied. RATIONALE: xcurred only four days earlier; and (3) because all pelsons The prosecution elected to fully participate before the master nvolved in the first trial wele participating in the second trial, without raising its objection. Had it chosenn, the State could ncluding the court repolter. The trial judge did state he have objected to the appointment of the special master at the ~ouldallonr D to review with the court reporter any time it occuned. estimony from the first trial if a conflict with prior testimony COMMEhT In the state of Texas,pioce&mnal default rrrles uose dumg the retrial. D was convicted at the second trial. cut both ways. Wl~atapplies for tuaiuer by the defense IELD: Reversed. RATIONALE: Using a totality of the appean to apply with equalforce to ~ss~cesofwai~~bytbe :ircumstances test, the Court concluded it was necessary to State. xesume that by inhibiting D's ability to impeach witnesses hrough their specific prior testimony, D's defense was REMAND: COURT OF APPEALS IMPERMISSIBLY EX- ~nconstitutionallyunpaired. Significantly, under the facts, D CEEDS SCOPE OFREMAND ORDER: WILLIAMS, No. 1057- vas ar~estedpursuant to a sting operation; thus, the State's 91; April 15, 1992 Opinion by Judge mite: Judge Baird ~bilityto secure conviction rested almost entirely on the VOICE FOR THE DEFENSE

testimony of the three police officers. Here D was not given The critical concern must always be D's right to counsel - the assistance of the court reporter before the second trial. both at trial and on appeal. The Court of C~iminalAppeals Accordingly, D would have been forced to resort to stopping stmngly recognized that an indigent D does not have the right cross-examination and pausing while the murt reporter to counsel of his choice. However, once counsel has been found relevant notes from the first trial and read back the appointed, the trial judge must respect the atiorney-client inconsistent testimony to the second jury. A majority of the relationshipcreated asa result ofthar appointment. The Court Court concluded that under such a system, D would lose the found that there must be a principled reason apparent from full impact of impeachment, thus seriously undermining- an the face of the record in order to justify a trial judge's sua effective defense. sponte ~eplacementof appointed counsel. LEGAL. BACKGROUND: The critical fact here is the COMMENT! Tbis is a d~@crrl!decision on tna~qrfronts. availability ofa court reporterprior to thesecond ria. See

Britt u. North Carolina, 404 U.S. 226. < z. exercised. ~dditibnail~,thew are the artictrlate~GO);- PRE-TRIAJA WAIVER OF RIGHT TO TRIAL BY JURY AT cetrls by groups such as the American Bar Association m~srTWU. DOES NO\PRECLUDE JURY AT SECOND suggesting thm differat counsel IIE appointed on felotly TRIAL. SALDANA, No. 1234-90and 1235-9. April 1,1992; appeals to pmmote a critical reuiau of the trial process. Opinion by Judge Maloluy; Judges Miller and Betmuids Once justi~cattonfor srich a change of coernsel is that concur,Judge McCnrnzick dfssen s "new qes" may bring a new petspectiue. oalanced The issue in this case is whethert D . has the right to choose against those cuizcerns, howeve< is the factual hint in either jury or court-assessed punishment following a remand this case that the ~~eplacementmay haw been motloated - regadess of the choice made by D at the first trial. A by mofepmso~mlreasons. Additiomlly, as a matter of majority of the Courzconcludes thatD assucha right. Article policx there are strong a~gtrmentsto be made infavor of 44.29 (b) of the Texas Code of Crim~3a1 Procedure permits continuation of cotlnsel, such as mwrritzg a consistent retrial liedto assessn~entof Punishm'Bnt. D does not waive treatmentof ththeoryof thecase, deuelopntent on appeal his choice to have jury assessed &ishment following of isszmpmerued at trial, and an overall recognitionof reversal becauseof his original punishment selection D is not the t13al strategy. bound by his original jury waiver. II is easy to imagine this case behlg zised to eizsum continuation of trial co~n?selon appeal at euqlevel of RIGHT TO COUNSEL crirninal conuiciion, not merely capital murder caws. COUNSEL: CONTINUED REPRESENTATION ON APPEAL; One uifoHuflldteeJjfect nay be that meritorious claims MANDAMUS APPROPRIATE TO COMPEL. BUNTTON v. are ~zotraised on appeal by the same counsel thatfailed HARMON, No. 71,236 April 15, 1992 Opinion by Jzulge to perceive thei~iat ma/. Horueoer, the more like& sce- Canphell. nario 1s that a convicted criminalD may actual&desire This capital murder appeal has had a colorful history concern- new corozsel because the uerySnct of conviction has had ingrepresentationfor the indigent D. After D was indicted for a detrimmtal effect on the attorney-client ~xlattonshrp, capital murder, attorneys X and Y were appointed. Defense aorli,zg client confdence ~xgardlessof jusf~flcation.N counsel filed two motions to recuse the trial judge [ZI; these remains to be seen which of these scenarios will be motions were denied by other judges. Trial judge Z presided encotinte~~dmare frequently in the years to come. at trial, which was held in another county on change ofvenue. D was convicted, and the death penalty assessed SCOPE OF REVIEW At the time of sentencing, trial judge Z announced that Two sign~@antissues 7uew addressed under this topic in the attorney L wouldnow representD onappeal. This announce- mo~~rhsspa~~ningJanuary thmrrgh May of thisyear. Oneset ment was objected to by D and by lawyers X and Y. D then of these decisions concerns zuhat must be contained in a sought a writ of mandamus directing trial judge Z to vacate the record on appeal in olderfor thew to be a stifficiency of the order which replaced trial counsels X and Y. Trial judge Z em'dence determination. me Court of CI.i,ninal Appeals responded that he had no ministerial duty to grant a request molued that issue by holding thatwithoutafrrlland co~nplete by D, X and Y to continued representation by trial counsel. statement offacts, a sufJiciency challenge cannot bestbccess- In reaching this decision, trial judge Z reliedon Article 26.04 fully launched. Tbe other significant topic concerning the of the Texas Code of Criminal Procedure, giving trial courts scope of appellate rmew concefiw deferred &judrdication. discretion in the replacement of appointed counsel. Here the CouH detern~iiredthat an appeal fro)??deferred Trial judge Z argued that removing trial counsel from appel- adjudication is limited to the precise issues prouided by late representation is sound as a policy matter because D's statute. trial counsel would be less likely in general to raise issues of ineffective assistance of trial counsel on appeal. RECORD ON APPBAI; FOR REVIEW OF SUFFICIENCY HELD: D entitled to writ of mandamus. However, issuance CWM, D MUST PROVIDE ENlZRE RECORD OF TRIAL. of the writ was witvithheld to allow trial judge Z an opportunity GREENWOOD, No. 025-91;Ja~~ua~y 29, 1992; Opinion by to conformhis actlons to the opinion of the Court of Criminal Jullge Bmlauides; Judge Clinton and Miller wncul; Judge Appeals. RATIONALE: Although Article 26.04Ca) authorizes Baird concurs a& disrents inpart. a trial judge to rel~eveappointed counsel, the circumstances C/A affirmed conviction at 802 S.W.Zd 10. under which such replacement may take place are narrowly A limited appeal, in which D presents only a partial statement circumscribed. The parameters of that replacement are of facts, precludes consideratmn of a sufficiency of evidence dictated by state and federal constitutional considerations. attack. Although Rule 53(d) of the Texas Rules of Appellate VOICE FOR HE DEFENSE

Procedure allows D to bring a limited appeal in a criminal an appeal, and that a motion to suppress which challenged case, that rule will not support a presumption that evidence the legality of the arrest and subsequent search had been not included in the record was irrelevant to the case disposi- raised before rrial. tion. BottomLine: Presumptions of Rule 53 (dl do not apply HELD: Issue preserved for appeal. RATIONALE: Clearly the to sufficiencychallenges. Rather, D bears the burden toshow notice of appeal standing alone did not authorize the Court that a sufficient record is present to reveal error which of Appeals to determine it could address non-jurisdictional compels reversal under Rnle 50(d) of the Texas Rules of defects. However, when D's notice of appeal is combined Appellate Procedure. When a sufftciency claim has been with the trial judge's order, there is substantial compliance made, the reviewing court bears the responsibility of review- with Rule 40(b)(l). The substantial compliance permits ing the entire record in a light most favomhle to the ve~dict review of properly preserved non-jurisdictional issues. in order to determine if any rational trier of fact could have COMMENT It may not ham been easy to ptdict the found the essential elements of the crime beyond a reason- otrtconte of this case in light of theprior decision of the able doubt. This test is one of constitutional dimension. It is Court of Cri,ninn/AppealsinJones, 769S.KZd 183. In predicated onthe abilityof the 'eviewing court to consider all that decision, the Court conci~ldedthaf despife the fact relevant evidence in the case. This consideration is impos- that notice of appeniwd~src~cientto basejlrrisdiction in sible if D presents only a partial record. a cozot of appak, zirrriess the notice of appeal states thaf Accord, O'NEAL, No. 764-91; March 18,1992; Opinion by the trial cowl hadgtsntedpermission to ameai from n judge McCormick; Judges Clinton and Miller dissent; and plea it7 which a ptea bargain bad bemz honored, or SKINNER, No. 206-91; April 1, 1992; Opinion by Judge alternatioely, rtnlessthe noticestatesthatpre-trialnzotiofls Baird; Judge Benavides concurs; judge Clinton dissents. hove been ruled on prior to trial, then wuiew of tl~e I appeMafecoltrtsismtricted only to jzrrisdictonaldefects. I RECORD ONAPPEAL: INCOMPLETERECORDREQUlRES Alfbough this decision is something of a szrrprise, it REVERSAL \VHEBE D NOT AT FAULT. PEREZ, No. 67,171; evidences a willingness by a mnjoriity of the Cntrrt togiue Febtuaiy 4, 1792; Opmion by Judge White; Judge Clinton effcect to the inte it of the trial-leuelpartictpants ifthere is concurs. arij~thingin thbrecord to demonstrate that intent. It This capital murder conviction was reversed because portions elmatathes~~bstat~ceofsz~chatzi17tetztwrthenrechanical of the statement of facts were missing. The Court reprises form by which it is man$ated. earlier hearings incapital cases, rejecting the State's argument that a harmless error analysis should be apphed. A harmless CERTIORARI IN THE COURT OF CRIMINAL APPEALS: error analysis is inappropriate because the error in failing to WRIT WILLNOT BE USED TO SUBSTITUTE FOR APPEAL. provide a complete record on appeal does not affect the ExParte BRAND, Nos. 22.607-01 und22,607-0~January 22, internal integrity of the trial. Rather, such an error prevents 1792; Opinion by Judge Maloney; Judges Clinton and the appellate court from assessing the integrity of the ve~dict. Betzauides cotmcr. A critical component in each of these cases was that D has not At issuein this casewas the proper useof the Court of Criminal contributed to the missing statement of facts because of Appeals's powerto issue a writ of certiorari, In 1978 theTexas negligence, laches, or other fault by D or his counsel. constitution was amended to include such a power. How- Ever, generally, the writ of common law certiorari has been NOTICE OF APPEAL: GUILTY PLEA; TRIAL COURT OR- available only to cases in which there is no right to appeal. A DER COMPENSATES FOR DEFECTS IN WRllTEN NO- majority of the Cou~tfound that the writ of certiorari, like the TICE. RILEY, No. 0001-90 a17d 0002-90;Janraary 29, 1992; wit of habeas corpus, may not be used if there is anadequate Opinion byJudge Maloney;Jl~dgwCaopbell and Omsmet -emedy at law. concuc Judges McCor~nickam1 White dissent. Here D was convicted in municipal court of a fine only In this case the Court of Criminal Appeals looked not only to 3ffense. D had the right to appeal this conviction to a county written notice of appeal, by also to the trial judge's orderwhen :oua at law. He opted not to do so and thus could not determining if D could complain about denial of his sup- iubstitute a writ of certiorari for the appeal. pression motion after pleading guilty pursuant to a plea COMMEAT An open quation, le?for molrrtion on bargain. another day, is the type of caw owwhich the Corcrt of Following the denial of D's motion to suppress, she pled CriminaiAppeals will be zuilling to exetcise common law guilty to unlawful possession of cocaine and amphetamine cetlioran'. Pursuant to a plea bargain, punishment was assessed at ten years. D's mitten notice ofappeal stated only that she wanted DEFERRED ADJUDICATION: ISSUES FOR APPEAL LIM- to appeal, that she was indigent, and that she desired court- TED BY STATUTE. OLOWOSUKO, No. 074-91; March 11, appointed counsel. Absent from the written notice of appeal 1992; Opinion byJzlulge CIinton;JudgesBaird and Omstreet were the following important items: a statement that thb trial :oncur. court g~antedpermission to appeal or that the matters ap- lere once again the Court of Crlminal Appeals attempts to pealed were raised by written motion and ruled on before lelineate just what can be appealed from a deferred adjudi- trial. These items are required by Rule 40Cb)Cl) of the Texas .ation. What follows is a laundry list. APPEALABLE: Rules of Appellate Procedure. mmediate appeal on pietrial motions in compliance with However, also included in the record on appeal was an order Wide 44.02 of the Texas Code of Criminal Procedure. NOT signed by the trial judge styled "Order Limiting D's Appeal." rPPEALABLE: trial judge's deteimmation to proceed with an That order recited that D was assessed punishment in djudication of gurlt after having granted deferred adjudica- accordance with a plea bargain, that the trial judge allowed ion. 26 VOICE FOR iE DEFENSE

Acconl, PPflITYES, No. 1132-90; FEBRUARY 26, 1992; STATE'S RIGHT TO APPEAL Opinion by Judge Benavides;Judges Campbell, Maloney The Court of CrfnzinulAppeals handed dotuizjlut?decisions and Ove~streetconcur; Judge Baird dissents. D may not concer~aingthe Sate's right to appeal. In doingso, it adhered appeal a decision to revoke deferred adjudicat~onandthe st&tlytothe ti~nereq~~ire~nentsofthesfati~teatithorizi~~gsuch adjudication of guilt. an appeal [Suttonl as well as the requirements concerning COMMENT. Neitber the UniJed States nor the Tkws who may execute a nofice of ap?al [Bosemanl. Sintttlta- comtitutionprouidesa r@t fo appellate r&au of crimi- neon& the Cou~zw*r more generous in determining the nal conuictions. The "right to appeal" is onegouerned irsrres that zuere appealable and the State's right to a second by statute. I17 kaszinderA?ticle 42.12, Sec. 5@)of the appeal following ahatenrent. Texas Code of Criminal ~;ocedtirethere is no appeal available from the trial court's deterntirzntion to nap STATE'SAPPN TIMELINESS 0FNOTLCE;TIMEBEGINS dicate once ata acctised has been granted deferred adp TO RUN WHEN ORDER SIGNED. STATE Ex Rel SUPONV. dicationprobation. The Phynes Becision isnmihlesome BAGE, A@. 71,227; Januav 15 1992 Opinion ly Judge became the adjudication hearing was condncted tuben Campbe( Judge Whte Concti~s,Judges McCo,.mick arzd D's lawyerwas nofpresent. D had entewd aplea ofguliry Baird dment. to mMemeanor possessioia of marijuana and been The Court bas strictly const~uedthe provisions of Article placedoit defer~vdadfrulic~~tio~zprobationforsixmmtbs 41(b)(l) of the Texas Rules of Appellate Procedure. That rule Before the end of thatprobationaiy ter~n,the State mued state's that notice of appeal by the Statemust be given 15 days to a&udicate gziilf. Follo~uinga hearing on the State's after an appealable order "is signed by the trial judge." A motion, the trialjudgefondDui1 and imposed a s&- majority of the Court stands firmly behind its earlier decisions month jail tinre sentence. There is no dispute thatD had that the only logical interpretation to be given Rule 41 is that aseriozrscot~stittrtio~zal issue in his claim that his rightto the physical act of signing (or rendering) an order by the ti.ial counsel was violated. However, under this statute D is judge is the triggering mechanism. Appellate timetables forbidden front using direct appeal as the uehicle to begin from that date. This is true despite language in Rule cowecf any amin the denial of coz~nseJ. 44.0Kd) of the Texas Code of Criminal Procedure which Defe~reddjudimtioiz continues to be a land mine. provides that the State's appeal must befied no later than the Ev~eizceofabzcsi#practices in theadjtidicationproces, 15th day after the date on which the order, ruling, or sentence as well as the alrnost crrisbing lintitatio~non appeal, to be appealed "is entered by the court." suggeststhat defemdadjtldicatiozshoz~ldnot betheplea ofpreferencefor the deface bar. Its pzipo~tedbenefits STATE'S APPEAL: COMPELLING STATE TO ELECT appear illusory luhile its ~iskremain alnfost o~rwheInz- THEORY OF PROSECUTION IS APPEALABLE. GARRETT, ~ng. No. 1181-90;JanwryZ2,19B; Opinion byJtrdgeMcCortnic~ Iudge Clinton dissents. STANDARDS OF REVIEW C/A reversed trial court's ruling at 798 S.W.2d 311. DEPENSE: EVIDENCE MUST BE REVIEWED IN LIGHT The State appealed the trial judge's action requiring the MOST PAVORABLE TO VERDICT. ADELMAN, Ab. 747-87; prosecution to select its theory. D had been indicted for March 4,1992 Opinion ~Jlldge&IcComiwE;JudgeBenauih delivery of cocaine in a charging instnment alleging all three concrrm; Jtdge Clinton dissents. methods of delivery provided by statute - adual transfer, C/A reversed conviction on sufficiency grounds at 731 constructive transfer, and offer to sell. In pre-trial motion, D S.\V.2d 143. asked the trial couit to set aside the indictment on the ground The issue in this case 1s what evidence a reviewing court that it failed to give adequate notice about the type of delivery needs to consider in gauging the sufficiency of evidence the State would attempt to prove at tlial. The trial judge when a defense has been raised at trial. Here D was being granted D's motion on the constructive transferparagraph of tried for the false imprisonn~entof her adult, mentally ill son. the indictment, but denied the motion on the paragrqhs D presented a defense based on Section 9.63 of the Texas alleging actual transfer and offer to sell. The State appealed; Penal Code, claiming justification. The Court of Appeals D claimed in a cross-point of error that the ruling of the trial originally reversed D's conviction and entered a judgment of court was not appealable. acquittal based on its review of evidence whichsupportedD's Amajority of the Court of C~iminalAppeals concluded that the justification defense. The Court of Criminal Appeals rejected trial judge's action was effectively one which dismissed a that review, holding that the proper standard on appeai is to portion of the indictment. The act of setting aside the review evidence in the light most favorable to theverdict. The constructive transfer paragraph of the indictment effectively concern articulated by a majority of the Court was that the terminated the State's prosecution on that theory of delivery. intermediate appellate court substituted its opinion of the It allowed the prosecution to proceed only on theories of credibility of witnesses and the weight to be given their actual transfer and offer to sell. Effectively the ruling testimony for the opinion of the trier of fad. "dismissed a poxtion of the indictment." Thus, the State was permitted to appeal under Article 44.01 of the Texas Code of Criminal Procedure. COMMENT:. This decision is ~wniniscentof the standard of twiew in insanity defense cases which ricocheted STATE'S APPEAL: NOTICE OF APPEAL MUST BE SIGNED through the appellate courtsemal yeatsago. In light of BY ELECTED OFFICIAL, NOT ASSISTANT. %A% v. thathistory, thisdecision isone which nmynof zuith.sand MULLER, No. 160-91; Aprl 1, 1992 Ophion by Judge the test of time. Canphell;Judges Clinton and Miller concur. 27 i VOICE FOR THE DEFENSE I

The State's right to appeal is presented in Article 44.01 of the Texas Code gf Criminal Procedure. That statute defines the tern1 *prosecuting attorney" to mean the "county attorney, district attorney, or criminal district attorney who has the primary responsibility for prosecuting cases in the cow hearing the case and does not include any assistant prosecut- ing attorney."

The literal text of this statute requires that thenotice of appeal be personally authorized in some fashion by the prosecuting attorney. In other words, a general delegation of authority to an assistant to make notke of appeal does not comply with this statute. The Court does note, however, that the prosecut- ing attorney cod$ personally authorize and instruct a subor- dinate to sign a specij7c notice of appeal.

Acconl, BOSmNos, 504-91 and505-91; Aprils, 1992; Opinion by Judge Campbell; Judges Mc&imick,Clinton, Prosecution of Industrial Espionage Overstreet, and Benavides concur; Judge Miller not Contit?uedfrompage 18 participating. Restatement (Second) of Tudments, §28(4) (1982). STATJ?S APAPPE PETEION FOR DISCRETIONARY RE If, in the prior civil action, the court or jury determines that VIEWPOILOWINGABATEMENTFORFAILURBTOHOLD the defendant is NOT liable, the civil judgment should be HEARING ON D'S MOTION FOR NEW 'IlUAL, PRICE, No. "conclusive in his favor in a subsequent criminal prosecution 063-92;March 25, 1992; Opinion by Judge Whit% Judges as to the issues adjudicated in the civil suit." IB J. Moore, J. Ciintotz, Baird, aadEwoi& dissent. Lucas Pr T. Currier, srrpruar 552; See also Note, ResJldicata, 64 Ham. L. Rev. 1376, 1378 (1951). The issue here was whether the State could appeal a decisibn The scope of coflateral estoppel effect that a prior criminal whch had been abated to the h'ial court with ordem to conviction has on a subsequent civil action is determined by conduct a hearing on D's motion for new trial. Earlier, in whether "the issue for which estoppel is sought was 'distinctly WliNianls, 780 S.W.2d 802, and Measles, 661 S.W.2d 732, the put in issue and directly determined' in the criminal action." Court of Criminal Appeals held that it would not entertain the Wolfsz v. Baker, 623 F.2d 1074, 1078 C5th Cir. 1980), cert. State's petition for discretionary review fded after an order of denied, 450 U.S. 966,101 S. Ct. 1483,67L. Ed. 2d 615 (quoting Emich Motors Carp v. General hlotors &PI)., 340 U.S. 558, abatement by a kourt of appeals. The rationale in those two I.. decisions was that the decision of abatement by the Court of 569,71 S. Ct. 408,414,95 Ed. 534 (19511, ?-&g denied, 341 Appeals did not "decide" the case and thus did not beconre US. 906,71 S. Ct. 610,95 L. Ed. 2d 1345 (1951). Moreover, a final, appealable decision. "[wlhen the uiminal conviction was based on a jury verdict of guilty, issues which were essential to the verdict must be In contrast, here the decision of the Court of Appeals did regarded as having been determined by the judgment."' Id. dispose of the case. D had claimed that the trial court erred rhus, when multiple transactions constitute thebasis for both innot holdinga hearingonhismotion f~rnewtiiill.The Court the criminal and civil proceedings, a prior conviction that of Appeals upheld D's point and did not address State's mnvolves only some of the transactions p~cludesin the later argument that the n~otionhad not been presented in a timely civil proceeding only those claims of the defendant that are fashion in the trial court. 3ased upon the actual transactions involved in the criminal ~ction.See, e.g., Bmzm u. UniredStates, 524 F.2d 693,207 Ct. Under the abatement order in this case, decision of the Court 3. 763 (1975) (contractor convicted of bid iigging on gov- xnment contracts, in his later mit against government for of Appeals provided for either of t~oscenarios: (1) the trial court could either grant or denythe motion for new hid after >reach of contract, was estopped only from denying his iaudnlent activities as to those contracts forming the basis of a hearing, or (2) the trial court could refuse to hold a hearing. There was no reason under these facts to consider the lis con~iaion). decision an interlocutory one such as would be the case of an (2) Related Doctrines A plea of guilty is conclusive in a subsequent civil suit abatement for findings of fact and conclusions of law - a scenario under which both parties could have the right to letween the same parties of all issues that would have been appeal as though a motion for new trial had been granted or ietermined by a conviction. See, e.g., B)*dzzelEu.Adu~ns,493 i.2d 489,490 (5th Cir. 1974); Metmsv. UnitedShztes District denied immediately after conv~ction.Here if the trial court Cu. grants motion for new trial, the Court of Appeals would have 5'0'orcn; 441 E.2d 313, 316-17 (10th 1970). no jurisdictionover the case despite the abatement. Thus, the A plea of nolo contendere, however, is an admission only or the purpose of the suit in which it is made,anda conviction State could appeal anew under Article 44.01 of the Texas Code of Criminal Procedure. On the other hand, if the trial uased on such a plea does not have collate$ estoppel effect court were to deny the motion for new trial, then D could in a subsequent civil suit. See, e.g., Dohetiy u. Aniericutz begin the appellate process under Article 411b) of the Texas Motots Gorp.., 728 F.2d 334, 337 (6th Cir. 1984). 4 Rules of Appellate Procedure. TOis Urtkle wiil be coiir~tmedD1 the ~wtissue @Voice. VOICE FOR THE DEFENSE Search and Seizure Under State and Federal Law by Judge Jade Marie Meeker.

Part 10 This issue doesnot exist underTexas law pet. reed). So long as some law was broken, given the statutory exclusionary rule in Art. the evidence would not be admissible. W.EXCLUSIONARY RULES 38.23 (a),V.A.C.C.P. The Texas exclusionary rille is broader A. THE FEDERAL RULE In United Slates u. McCrog! 930 F.2d 63 than its federal counterpart since it requires The federal constitution prohibits unrea- (D.C. Cir. No. 89-3211, delivered April 12, exclusion of evidence obtained in violation sonable searches and seizures but lacks a 19911, 49 Cr.L. -1085, the Court held that of federal and State provisions. See Crm u. specific remedy should an unreasonable evidence seized in violation of the Fourth Stnte, 586 S.W.2d 861 (Tex.Cr.App. 1979) search or seizure take place. Aremedywas Amendment and therefore inadnlissible at (Evidence obtained in violation of the State fashioned by the Supreme Court in Weeksu. trial need not he excluded from consider- attorney-client privilege was inadmissible); UnifedSfnfes,232 U.S. 383, 34 S.Ct. 341, 58 ation at sentencing under the federal Sen- huin U. Stat4 563 S.\V.Zd 920 (Tex.Cr.App. L.Ed. 652 (19141, in which the Court held tencing Guidelines. The rulesgive the judge 1978) (Evidence obtained in violation of that evidence obtained in violation of the wide discretion to consider all relevant Chapter 14 of the Code of Criminal Proce- Founh Amendment was inadmissible. This evidence. The Cou~tsuggested that the dure wasinadnkible); andLeigbtonu.State, decision was extended tostate prosecutions result may be different if the defendant 544 S.W.2d 394 Cl'ex.Cr.App. 1976). inilkQpu. Ohio, 367U.S. 643.81 S.Ct. 1684, demonstrated that the Fourth Amendment In Stateu. Hobbs, -S.\V.Zd- Crex.App. 6 L.Ed.2d 1081 (1961). in nrluch the Coult was purposefully violated in order to obtain - San Antonio. No. 4-90-677CR, delivered held that evidence obrainedby searches and the evidence. February 5, 19921, the Court of Appeals seizures conducted inviolation ofthe Fourth B. THE TEXAS RULE. considered the admissibility of evidence kllendmentwasinadmissibleinstatecourts. 1. Generally. obtained when officers trespassed on the If, however, the Fourth Amendment lacks Under Art. 38.23, V.A.C.C.P., evidence defendant's land. Oficers received infor- a specific remedy for Fourth Amendment obtained in violation of any State or federal mation that the defendant was growing violations, under what authority may the constitutional provision or law cannot be marijuana on his ranch. They went to the Supreme Court fashion its own rimed; and admitted in evidence against the accused ranch and, after trespassing through afence, impose that remedy upon the states? Cer- during the trial of any criminal case. The found marijuana concealed so that it could tainly, the Supreme Court could exercise its terms of this statute are mandatory. not be seen from the adjacent properg- or supewisory power and require federal courts Herrznndez u. State, 600 S.U".Zd 793 from the air. As a result of their findings, toexcludeevidence fromfrials if the Fourth (Tex.Cr.App. 19801, at 799, citing Jordorl u. officers obtained a search warrant. The trial Amendment was violated. The Supreme State, 562 S.\V.Zd 472 (Tex.Cr.App. 1978) court suppressed the evidence under Art. Court does not, however, have the authority and Ex pnrte Sin~s, 565 S W.2d 45 38.23, V.A.C.C.P., and the Snte appealed. to legislate a particular remedy enforceable (Tex.Cr.App. 1977). Tl~eCourt of Appeals affirmed the sup- in state courts. Consider, for instance, the One is& to consider is whether causa- pression, holding that law enforcement of- effect of the Supreme Court stating that tion behveen the law violation and acqui- ficials were nor excused from application of officers must be imprisonedforviolations of sition of the evidence is required under Art. Art. 38.23; thus, since the evidence was the Fourth Amendment. This action would 38.23. 'fiestatuterefers toevidence obtained obtained from a violation of the law, it was not differ from the Court's rule that eiridence "in" violation of some law, as opposed to inadmissible. improperly obtainedmust be excludedlrom evidence obtained "by" somneviolation. Use The holding in Ilobbs that the officers trial. Separation of powers problems are ofthe term "in" implies that ifofficers obtain committed a trespass in violation of the law apparent. evidence but breaksome law, that evidence may not have been necessary. Generally, is inadnussible without regard to whether once a defendant establishes that a search the law violation led to the discovery or occurred, then the burden shifts to the State acquisition of the evidence. 'Rie terminol- to prove the existence of a warrant or ogy imposes almost a strict liability rule on applicability of an exception to the search use of evidence obtained in violation of a warrant requirement. See XIII., A. Motions lam. to Suppress, iilfn, and Rirssellu. Stute, 717 Causation is usuallv considered in at- S.W.2d 7 (Tex.Cr.App. 1986). See also tenuation of taint. If, however, causation is Viwros U. State, - S.\V.2d - Uex.Cr.App. not required under Art. 38.23. then exceo- No. 1238-90, delivered February 26, 192). :ions tithe exclusiona& rulefashioned Gy Necessary to this showing is proof that the the Su~remeCourt, such as inevitable dis- officers had a right to be where they were covery or independent source, would not when the evidence was obtained. In Hobbs, ~pplyto Texas. See generally Oliuero. State, the State could not establish that officers had 711 S.\V2d442Ckx.App. -FortWorth 1986, a right to be on the property when they

Judge Jade Marie Meeker scnws :IS the Judice of thc Pwce, Precinct 5 ill 7'r:lvis Calmly and is Iloard(hified in(:rimin:d law by tl~ul'exnsHoard ofl.eg:d Spccialimtion. I VOICE FOR THE DEFENSE

discovered the evidence. Thus, simply deterinining whether a confession obtained regarding anoral statement, and two written under traditional rules on burdens of proof as a result of an illegal arrest must also be statenients obtained after the illegal arrest. in search cases, an illegal search occurred excluded. The Court considered the fol- The court ruled that the written confessions

which rendered the evidence inadmissible. lowing factors: were admissible because a niaeistrateTHE in- The court did not need to further find the 1. The giving of ~llimr~rlnwarnings. fornied the defendant of the charges filed, evidence inadniissible because it was dis- 2. The temporal proximity of the arrest officers .,cave the defendant his Alira~zrln covered from a violation of the law, spe- and confession. warnings, and, otherthanalackofprobable cifically a trespass. 3. The presence of intervening circuni- cause. there mas no official misconduct. The federal exclusionary rule applies only stances. The jefendant waived objection to admis- to actions by government agents, United 4. The purpose and flagrancy of the sion of the ~hvsicalevidence when counsel States u Jmobso~r,466 US 109, 104 S.Ct. official misconduct. affimiativeiys~ated"Noobjectionnwhenthe 1652, 80 L.Ed.2d 85 (19841, but the Texas See also Ra~olit~gsu. Ke~lflickj~, 448 U.S. evidence was offered. Last, even though rule probably applies to searches by private 98,100 S.Ct. 2556,65 L.Ed.2d 633 (19801. If receipt of the testimony regarding an oral citizens as well. these factors weigh in favor ofthe defendant, statement was tainted by the illegal arrest. There is an argument to he made that the then the taint of the illegal seizure is not admission of the evidence was-harnile& Art. 38.23 (a) reference to "other person" attenuated and the evidence niust be ex- beyond a reasonable doubt. relates only to statutes which also refer to cluded. If, however, the factors weigh in A stricter rule applies if consent to search "other person," such as Art. 14.01 and 18.16, favor of the State, then evidence obtained follows an illegal arrest. In Brick u. State, V.A.C.C.P., so only evidence obtained in illegally may still be admissible. 738 S.\V.2d 676 (Tex.Cr.App. 19871, the violation of those statutes will be inadmis- 2. Texas law. Court held that before evidence derived sible. This argument would likely not be In Bell u. Slate, 724 S.\V.2d 780 from a warrantless but consensual search universally accepted. (Tex.Cr.Avv.. . 19861, the Court of Crinlinal following an illegal arrest is admissible, the In PrrmeN u. State, 666 S.W.2d 96 Appeals applied the Brorun analysis to court must find by clear and convincing (Tex.CrApp. 19841, the Court held that the determine whether an illegal arrest required evidence that the consent was voluntary disciplinary rules ofthe Code ofProfessional exclusion of two confessions obtained as a and that due consideration of the four Responsibility were not "laws" of the State result of the arrest. The Cowt apdied-. the B,nwn factors militates in favor of a finding of Texas. Thus, Art. 38.23, V.A.C.C.P., does preceding four part test and found rhat the of taint dissipation. The State bears the notrequiresuppressionofevidence acquired facts militated in favor of excluding- the first burden of proof. in violation of some disciplinary rule. See confession but admitting the second. See Attenuation of taint was also discussed in also Hellrict~ u. Slate, 694 S.W.2d 341 also Setfu. Stale, 709S.W.2d662 (Tex.Cr.App. Garzfl u.State,771 S.\V.2d549 (?'ex.Cr.App. (Tex.Cr.App. 19851, on reniand 697 S.W.2d 1986).. . 19891 (Footnote 1). 841, ce~t.&lied 107 S.Ct. 3183. Kecently, the Court had another occasion In Sosfi~no~ru. State, 816 S.W.2d 340 2. Invocation. to deterndnewhethera confession obtained (Tex.Cr.Am 191). the Court avvlied the Adefendant isnot required tospecifically after an illegal arrest was inadmissible. In invoke tlie Texas exclusionary rule and Mai.~m?ru. State, 753 S.W.2d 151 need only object to admission of evidence (Tex.Cr.App. 19881, the defendant was ar- never admitted 2 trial. in this case, the on tlie ground rhat it was obtained through rested without a warrant because officers defendant confessed to a crime in Liberty an illegalsearch orseizure. Polku.Stfite,738 believed that he would see a newscast Countyunder the impression that he would S.W.2d 274 (TexCrApp. 1987). Article concerning discovery of the victim's body not be prosecuted for the crime. Liberty 38.23, V.A.C.C.P., is a procedural result and attempt to flee. The arrest was not County officials didso, however, andat trial, mhicliappliesaCterevidence hasbeen found justified under the Art. 14.04, V.A.C.C.P., the defendant nioved to suppress the con- to be illegally obtained and does not con- escape exception beaduse the evidence did fession. The trial courtn~ledthe confession stitute an independent basis upon which to not show that escape was imminent and admissible, but tlie prosecutor did not in- object. there was not tinie to procure a warrant. tladuce the confession at trial; rather, tlie In Stateu. Hobbs, - S.\V.Zd-(Tex.App. The Court amlied the four-vart Bm1u7r defendant was convicted on the basis of - San Antonio, No. 4-90-677CR, delivered .est and found ktthe defendant was given eye-witness identification. February 5,19921, the appellate court noted his Mim~zclnmaminys - at least three times. The Court held that the defendant invol- that the Cou~tof Appeals' holding in Polk hat the confession was given two hours untarilv confessed because the nromise of was mandatory: once the court finds that ~fterthearrest, and that the officers' mistake immunity was such as was likely to make the evidence was olxained in violation of mas not flagrant or purposeful. Most im- thedefendantsneakunt~tlifullv.TheCourt the law under Art. 38.23, the judge has no loltant, however, was an intervening factor then noted thai before the defkndant con- discretion in exch~dinethe evidence. -the defendantwas released fro111 custody fessed, the Liberty County officials had no ~ndinfornied that he was free to leave suspects, no leads and no evidence con- ~eforehe gave the confession. Apparently, necting the defendant to the crime. But for 1. Federal lam. he assistant district attorney recommended theconfession, theyhadnothing toassociate If evidence obtained as a result of an hat the defendant be released after con- the defendant with the crime. Since the illegalscarchorseizt~releads tothediscovery ridering the facts surrounding the arrest. confession was involuntary, and since the or acquisition of additional evidence. then 3ven this intervening factor and the other victini \vouldnotliave beenin tlie coultroom the additional evidelice niust also be ex- :onsiderations, the taint of the illegal arrest to identify the defendant but for the con- cluded. 1Vo1rgSzr11u. UnitedStc~tes.371 U.S. sas sufficiently purged. fession, the invalid confession tainted the 471,83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Injorresu. Slnle,-S.W.2dd(Tex.Cr.App. ~ntireproceeding. Thus, even though the fruit of the illegal search is considered Vo. 71,005, delivered March 18, 1921, the itate never introduced the confession, the tainted by the initial illegality. :our1 of Criminal Appeals hekl that an proceedings were fruit of the invalid con- Not all evidence obtained from an illegal lffidavit used to support issuance of an 'ession and the case was reversed. search or seizure, however, niust be ex- lrrest warrant lacked probable cause and D. INEVITABLE DISCOVERY DOC- cluded. In Brow1 u.lllii~ois,422 US. 590,95 ~~vliedthe WOIIL?SI~IItaint analvsis to the m. S.Ct 2254,45L.Ed.2d416(1975), theSupreme If evidence is obtained after a defendant's Court set fortha four-part testto apply when -ights were violated hut the State can prove VOICE FOR THE DEFENSE

bva ore~onderanceof the evidence that the State, 716 S.W 2d 499 (Tex.Cr.App 1980; such evidenceshould not be excluded. See &iden& would have been discovered in- and Miller u. Sfme, 667 S.W.2d 773 Sllmrthorize Luniber Co, u. Uizzrerl Slates, evitablv. bv . lawful means. then the evidence (Tex.Cr.App. 1984), and cases cited therein 251 US. 385 (1920) and Arrxu. Williains, 467 need not be excludr:l. ,Vi.r u. WiNiniiis, 467 at777. See also Boyleu. Sfale, -S.W.Zd - US. 431 (1984). The iev~tablediscovery 1J.S ,131, lU4 S.Ct. 2501. HI I..IL1.2d 377 (Tex Cr.App 69,743, deliveredMay 15,191) doctrine is an extra~olationfrom the inde- (1984), United States U. Amfrade, 784 F.2d Copinion on State's motion for rehearingl pendent source dockne: given that tainted 1431 8th Cir. 1986). See also UrzttedSlales (ouinion on orieinal submission delivered evidence would be admissible if ~t were u. Mofrrniizg, 716 FSupp. 279 0V.D. Tex, actually discoveted throughanindependent 1989) (Inevitable discovery does not mean .. source, it should also be admissible if it that just because the police could have -Fort Wotth 1986; pet. rePd), on rehearing, would have inevitably been discovered obtained a warrant, the evidence isadmi* 716S.W.Zd742, theappellatecourtheld that tllrough an independent source. Thus, the s~blc.) the independent source and inevitable dis- fonner doctrine applies if the evidence is In llniledstntesu. A4a?icera-L01zdoiro,912 coverv doctrines were exceotions to the actually fonnd and the latter applies if the F 2d 373 (9th Clr. 1901, the court held that judl~articulatedexclusi~narymle, and evidencewould have ultimately been found. even though DEA aRents discovered druzs did not an~lvto the statutorv exclusion- In Murray, 108 S Ct 2529, the Court in a rented car pursuint to an illegal search, ary nlle ;&I Ark. 38.23, V A~.CP. Since considered wliether the search pursuant to the evidence would have been mevitably An. 38.23 contained no stated exceptions, the warrant was in fact a genuinely inde- discovered in a later inventory search con- the court was without authority to amend pendentsourceoftheinfor~nationobtained. ducted under DEA policy, which d~rected the StaNte or contravene its plain wordina.- If the agents' decisron to seek the watrant search of all rental cars before returning In Garcia u. State, -- S.W.2d - was ommoted. . bv what thev observed dur- them to the rental agency. (Tex.Cr.App. No. 945-90, delivered March in# the prior illc,g:,l crrtry, thvn the w:rrrant In UiziteclStares u. LspiiPCIOk~,- F.2d - 25. 1992),~a~l,lur~l;tyofth~~~~~~~t~fCriniin;d \wuld not lx: indet~cndrnluf thc entrv mrl (9th Crr. No. 89-30321, delivered March 14, Appcds held hat tu tht: cxtcnt that 'l'cx;~s admission of thee&lencelater found&ould 1991.48 Cr L. 1546)~the conrt annlied.. the law provides a basis independent of the be improper. If, however, the warrant inevitable discovery doctrine to ev~dence Fourth Amendment for ev~denceexclusion, would have been sought even without the obtained when oCIicers entered a residence the inevitable discovery exception doesnot entry, then the evidence was discovered and found cocaine in plain view but failed apply to&. 38 23, VA.C.C.P. The full court, through a sufficiently mdependent source to foliow the federal knock and announce so as to permit admiss~on. The Court rule. The court held that the doctrine remanded ihe case so the trial court could applied because an onnoinpc- - investipcation- -. determine whether the warrant-authorized audapplicationforawarrantwereinprogress (1988), the-supreme con* discussed the search of the warehouse was an indepen- before the cocaine was discovered, and the independent source doctrine. In that case, dent source of the challenrred evidence. cocaine would have been found indepen- law enforcement agents were watching the Independent source was discussed in dently by officersexecuting the warrant defendant based on informer inforn~at~on Odrza u. State, 771 S.\V.Zd 549 (Tex.Cr.App.. . In United States u. Lamas, 830 F.2d 1099 andsawhinidriveacamperintoawarehouse 1989) (Footnote 1). (5th Cir IBI), the FAh Circuit articulated a in South Boston and drive out 20 minutes P. GOOD FAlTH EXCEPPION TO THE two-ptrttestapplicabletodeterminewhether later. Twootherpersonsandatnctor-trailer EXCLUSIONARY RULE. inevitable discovery applies. The novern- rig bearinga long, darkcontainerwereseen 1. Federal law. rnentniust prove by a $eponderanc< of the in the warehouse The defendant turned In U,iiredStrrtesu.Leon.468 U.S 897,104 evidence that: over the truck to the others, who were S.Ct. 3405, 82 LEd.2d 677 (1984), and 1. Areasonable probability exists that the arrested shortly thereafter. Marijuana was Masachrdsetlsu.She~arrl,468U.S.981,104 evidence would have been discovered by then found. Several other agents forced S.Ct 3424,82L.Ed 2d 737(1984), thesupreme lawful means in the absence of oolici their way into the warelmuse and saw Court set forth an exceotion to the exclu- misconduct, and numerous burlap-wrap~edbales later fonnd sionary rule based on the good faith actions 2. The ..novernmentwasactivelv , .nursuine .. to contain marijuana-.' They left without of the officers. The Court noted that the il s.~lr.tnntial alternate linr.~~finvcstigation:I! disttubinn the contents and did not reenter exclusionary n~lewas a jud~ciallycreated till' limc r~fthr conslitutinnnl viol:ltinn. until later, after a warrant was olrtained In remedy designed to safeguard the Fourth In Lamaq police discovered drugs after a applying for the wamt, the agents did not Amendment generally through deterrence. person consented to the search. Probable inention the prior entry and did not rely on Whether exclusion is DroDer is a separate any observations made during that entry. question from whethe; th&Fourth ken& The warrant wasissued eight hours after the ment has been violated Resolution of the initial entry. Agents thereafter entered the former question requires a balancing be- warehouse andsemd 270 balesofmarijuana tween the costs and bendits of exclusion. held that the inevitable discovery doctrine and notebooks listing customers for whom rile exclusionary rule should be applied supported admission ol the evidence See the bales were destined onlvin those situations where the obiectives The Supreme Court noted that the ex- of {he are most efficacioudy s&ed. clusionarv rule orohibits introduction of If the exclusionarv rule is to adequately but had not yet achvely &gun seeking a %videnceobtainedduringanunlawfulsemh. deter iniproperpoli& mnducr, then mu& warrant Also excludedisanvevidencediscoveredor relate to police conduct. Su~prcssionis Inevitable discovery arguments were re- derived from the direct evidence np to the appropriaie where the o~cers.&erenegli- jected in Urz~tedStntasu.~rn~rez-Saidouai, point at which the taint of the unlawful gent or had knowledge of their improper 872 F 2d 1392 (9th Cir 19893, and Uiiited jearch is attenuated conduct No pnrpose is served inexcluding Stafs u. Cherry, 759 F.2d 11% (5th Cir. The 'Tndepndentsourcedoctrine,'whidi material obtained where the ofkicers act 19851, and Ur?itedSmtes~.Jenki,2s,883 F.2d applies to evidence acqurred from Fourth, with objective reasonability. The Court 1022 (2nd Cir. 1989). Ffth, and Sixth Amendment violations, noted four situations in which suppression Texascasesdlscussingine~~itablediscovery xovides that the exclusion of evidence would be nrooer: include e;aiza u. Slate, 771 S.W.2d 549 htained from an independent source will 1. The iagkteor judge was misled by (Tex.0.App 1989) (Fooootnote I), Dickey u. lot deter unlawful police conduct; thus, informatian the affiant knew was false or VOICE FOR THE DEFENSE

would have known was false except for acting in objective good faith reliance upon inadmissible The legislature created an reckless disregard of the truth. a warrant issued by a neuml magistrate exception to the statutory exclusionary rule 2. The niazistrate or iudze whoUv aban- based on probable cause." when it enacted the good faith exception in dons his or &I judiciai rze, and no rea- This exception applies to evidence ob- Art. 38 23 @>. A good argument could he sonable officerwould rely. upon. the finding- tained on or afrer September 1.1987. Gor- made that other exceptions to the exclu- of probable cause. clo,r u. Slate, 801 S.W.2d 899 (Tex.CrApp. sionary rule, such as independent source m 3 The affidavit 1s so lacking in indicia of 1990). inevitable discovem, do not apply since by reliability that a finding of'probable cause The language of the statute indicates that enacting one exception, the legislahue im- based thereon is unreasonable. the warrant must be based upon probable plicitly rejected otherexceptbns T~w,the 4. The wamt is facially invalid, such as cause See Crrny u. State, 808 S.W.2d 481 only recognizable exception to the Texas where the description of the items sought os (Tex.Cr.App. 1991). Seealso I.Yoresu. Stafe, exclusionary rule is the Texas good faith place tobesCarchedistotally lacking. Leon, -S.W.Zd-(Tex.App. - Corpus Cllristi, No. exception. 104 S.Ct. at 3421. 13-91-lI3ZCR, delivered February 20,1972). G. "HONEST METAKE" EXCEPTION Good-Faith reliance on a warrant was In Gordon,amajori~oftheCourtofCrinlinaI TO THE EXCLUSIONARY R- MARY- justified in UniledSmresu. Fmitaz 800 F.2d Appeals agreed that Art. 38.236) requtres a LAND V: GARRfSON, 107 S.CT. 1013 1451 (9th Cir. 1988). appeal after remand, finding of probable cause, which is not (1987). 856 F.Zd 1425. In this case, DEA agents required for the exceptlon to apply under I. The federal rule. reouesred a warrant to enter a residence leott. Thus, a good faith exception is In this case, the Supreme Court ruled that su~eptitiouslyat night to determine the permitted under state law only when the the validtty of a warrant must be judged in existence of seizable physical property, and wamnt containsa technical violation which beht of the information avadable to the to determine the status of a suspected does not preclude a finding of probable &ers at the time they obtained the war- laboratorv. Agents considered the warrant cause. SeeverygenerallyEscan1iIIau. State, rant. 'fie discovery of facts den~onstrating unusual,.and-brought its novelty to the 556 S.W.2d 796 (Tex.Cr.App. 1977) and that the valid warrant was unnecessarily attention of the prosecutor and magistrate, Poinde.rter v. State. 545 S.W.2d 798 hmad does not retroactively invelidote the who buth assured agents that the warrant +varrant. was valid. The court held that agents- acted Officers obtained a search warrant for a r~.~sunahlyin relying on the w~rr;ua,wiiirli person named McWebb and the premises was held invalid lx:m~arthcn~agistrate lud probable cause. known as "2036 Park Avenue third floor deleted language in the warrant requiring InDwiou. Sfare, 807 S.W 2d876 (Tex App. apartment." They believed that there was that the property be describedandcopiesot - Corpus Chiisti 1W1), the appellate court onlyoneaparunent onthisfloor, but, infact, the warrant and inventory be left at the applied the good faith exception. Warrants there were two. MeWebb resided on one residence. [Note that the F~fthCircuit good- u~reissudforthedefendant'sa~~ntbecause side and the defendant lived in the other. faith analysis applies in warrantless search he failed to pay fines. The jail records Before the officers hecame aware that thev cases. See U~lltaiStates u. Mourning, 716 reflected that the defendant had sewed the were in the defendant's apwtrncnl, th<:y F.Suoo... 279~. (W.D.Tex. 198911. tme for the warrant offenses, but the arrest fcn~ndillcg;d cln~gs.lheclcfcndmt appcdlcd An officer's actluns weie llcld valid undcr uarrantswereneverrecalled. Severalmonths his cunvi&~n arguing that tht: diccrs lrad tl~c..awnl faith doctrine in U~filerlSlc~tes~~.lle after the defendant sewed out the fines. no probable cause to search his apartment. l.)~~-Rey~la,Yj0 F.2d 396 (5th Cir. 1990) (en police arrested him. A pat-down search There was no claim that the warrant d~d ballc). 49 Crl.. 1129. In thlt nse, :I h~,rder revc.~lcdcocaine in the dcfendant's pocket. not contain an adequate description of the patroiagentstoppeda truck. Thedispatcher Ifc :ir~ucdthe cvidencc sla,uld h:wc lxm place sought to be searched. After the misunderstood the license number as given supps&ed because the warrants were not search was conducted, hawever, it was by the agent because the $gent fa~ledto use withdsawn. The Court of Appeals noted apparent that the destlrlpt~onin the warrant words rather than use letters when calling that the warrants were issued by a neutral was too broad. The Cwrt held that while the license plate number in. The en banc nlagisttate and were based on probable the purposes justifying a police search limit court noted that the ..mod faith doctrine cause so the good faith exceptlon applied. the permissible scope of the search, there ~pplicdtr1w:1rrantI~?r~i1m~.m1s.In l/~filrulSluk.s The court noted that the ofEcials' negligence wasaneed toaUowsomelatit~~deforlloneS v. Willidntc, 622 iQ~lX30i5dt Cir. 1980) (cn in failing to properly withdtaw the warrants mistakes made by offtners in the dangerous banc), the court held that the doctrine was irrelevant to whether the good faith and dillicult pro& of making arrests and should tx applied aka to investigative stops exception applied. No purpose would be executing search warrants. The validity of when the police rely on an objectively sewed by excluding evidence found after the search actually conducted depended reasonable belief that grounds exist for a officers arrested the defendant on faually upon whether the officers'faiIure to realize stop. Even though the ermneous infonna- valid warrants. die excessive scope of the warrant was tion received by the offler in this case The mod falth exception does not apply obiectively reasonable and understandable. stemmed fromthe officer's own neelieence. to mr&ntless search& or arrests since the Since the officers' actions were reasonable, language refers to warrants issued on the court did not err in admitting evidence aeainst the defendant discovered mmuant tgthat search. rehearin&, howevei; the Court stated Sintilarly, in Hill u. Ca/$ornia, 401 U.S. 154 (19783 Qlecklessness, not negligence, is "Furthermore, the inarticulate hunch, sus 797, 91 S.Ct. 1106, 28 L.Ed.2d 454 (19711, the standard.) picion, or go~dfaith of the arrestrng oRcer offfcers had probable cause m arrest a man 2. Texas law. was not sufficient to constitute probable named Hill and went to his apartment. In1787, the Texas Legislature enacted the cause . . . ." Id, at 1%. Whether this There, they found a man whodenied he wns good faith exception by amendmg Art. language indicates that good faith may be a Hill Init fit Hill's description The defendant 38.23, V.A,C.C.P, to include the following factor 10 consider regard~ngwarrantless was arrested and a search incident to the language in Subsection @Ib). arrests or seaches awaits further discussion arrest disclosed evidence of a robbery. The "It is an exceptlon to the provisions OF by the Court. Court held that whw the officers had Iast, Art. 38 23 (3,V.A.C.C.P., states that probable cause to believe the arrestee was evidence obtained in violation of the law is the person they sought and this belief was VOICE FOR THE DEFENSE

reasonable, evidence secured during the officers did not act unreasonably in search- illegal search in order to undermine the post-arrest search was admissible. ing the box found in the 6929 part of the credibility of the defendant's claim that he 2. The Texas mle. premises. had never possessed drugs. In UrfiledStates The affidavit and warrant in Gn~risorf Even though the search warrant in u. Hnuerrs, 446 U.S. 620 (19801, the Court authorized a search of the entire third floor Canrracly was not rendered overbroad by recognized exceptions to the exclusionary ofthe apartment building. The warrantwas subsequkt observations by the police, the rule when evidence was introduced to ini- issued on probable cause and the officers Court noted that admission of the evidence peach a defendant's answers to questions acted reasonably in obtaining idonnation will turn onwhetherpoliceactedreasonably posed during cross-examination. In Jnafes concerning the lay-out of the building. in seizing the property. u. Ilhois, I10 S.Ct. 648,652, the Court held: The question under Texas law is: If H. "SILVER PIATIER9' DOCTlUNE. "This Court insisted throughout this line officers have a valid warrant and during the In Lrfstigu. U~litedStates,338 U.S. 74, 69 of cases that 'evidence that has been illegally course of the execution of that warrant find S.Ct. 1372, 93 JL.Ed.2d 1819 (19491, the obtained . . . is inadmissible on the that thescope of the warrant is broaderthan Supreme Court held that evidence inde- government's direct case, or otherwise, as necessary, will the overbreadth render the pendently obtained by state officials in substantive evidence of guilt.' . . . However, warrant invalid and the evidence found compliance with state law, but in violation because the Court believed that permitting inadmissible? of federal law, could be handed over on a the use of such evidence to impeach de- Article 18.04 (21, V.A.C.C.I'., states that "silver platter" to federal agents for use in a fendants' testimony would further the goal the nrarrant must describe as near as may be federal criminal trial. The converse of this of truthseekine,- bv,. vreventinr - defendants the thing to be seized or the person, place, doctrine was recognized in Slnie (Wash- from perverting the exclusionary rule "Into orthing tobe searched. To besufficient, the ingtorl) u. Gwimer; Wash. Ct. App., 1st a license to use ~eriunrbv was of a defense,"' description must reasonably apprise the Diu., No. 22166-3-1, delivered September . . . and because tile kokfurther believed officers of where they are to conduct the 10, 1990,47Cr.l.. 1516,wherethe court held that ~erniittin~such use would create onlv search. ~Cfor&.sLI. Stat< 640 S.\V.2d 273 that if federal agents obtained evidence (Tex.Cr.App. 1982); Paln~eru. State, 614 legally under federal law, but not in coni- S.W.2d 831 (Tex.Cr.App. 1981); and Bridges pliance with state law, it could still be given :. . the Court concluded that t

A. STA'I1~'SAPI'I~AIS:SL'A'Il! IIELDTO the court of appeals for the first time if the S.W.2d 569. (Tex. . Cr. Ann..A 1986) SAME PKl~'I(HVAllONINILES. trial court overrides the motion to suppress 2.Errorifprosecutionevidenceisadmitted. Given the State's right to appeal certain and admits evidence. If a defendant alleges- on appeal.. that the issilesundcrArt.44.01, V.A.C.C.P., thestate 1nBq)~leu.Stale, -S.W.Zd-(Tex.Cr.App. trial court erred in admitting evidence pre- will likely be held to thesame niles as those No. 69,743,deliveredMay 15,1991) (opinion sented by the State, the defendant must applied to defendants regarding preserva- on State's motion for rehearind, the Court establish that tbe State violated sonre rule in tion of error. discovering, acquiring or admitting the Rule 52 of the Rules of Appellate Proce- evidence. See e.g. Betmelt u. Stnle, 742 dure speaks in terms of "parties." Thus, the ing, citing Wilson The Court did not, how- S.W.Zd 664 Cl'ex.Cr.App. 1987). mles regardingtimely andspeciflc objections ever, discuss the rule in detail. 3. Reversible error. and requests, court rulings on objections, In State u. Nolall. Hollri~rrl.Dfn~ca~r and Once error has been found regarding- the motions or requests, and bills of exceptions D~rn~r,808 S.W.2d 556 iTex.App. - Austin admission or exclusion of evidence, the apply to the State. 1991, no pet.), the Court of Appeals noted appellate court must apply Tex. Rule App. B. COURTS OF APPEALS NOT RE- that the State may raise standing for the first Pro. 81(b)(2) to deterniine whether revers- QUIRED TO DISPOSE OF W STATE IS- time on appeal. A different rationale, bow- ible error exists. See JoNes u. State, S.W.2d SUES RAISED ON APPEAL. ever, may apply if the Stateappeals anorder (Tex.Cr.App. No. 71,005, delivered March Rule 90 (a), T.R.A.P., provides that the granting a motion to suppress. In such a 13, 1992). A three step approach will apply, courts of appeals shall address every issue situation, the State bears the burden of as discussed in Afallo~~ru. State, 752 S.\V.Zd raised and necessary to final dispa.ition of demonstrating trial error and nust raise all 566 (Tex.Cr.App. 1988): the appeal. Price v. State, - S.W.2d - errors before the trial court in order to 1. If there was error, (Tex.Cr.App. No. 63-92, deliveredMarch 25, preserve error for appeal. In these State's 2. then the case must be reversed, 192). If the defendant's conviction is appeals, the State did not raise standing 3. unless the appellate court deternunes affinned, dispositionof State issues raised in before the trial court. Since these were not 'xyond a reasonable doubt that the error a cross-appeal is usually unnecessary. cases in which there was uncontradicted nade no contribution tothe conviction or to In llargrove v. State, 774 S.W.2d 771 aftinnative evidence establishing the defen- he punishment. Uex.App. -Corpus Christi 1989, pet. refd), dants' lack ofstanding as a matter of law, the Thus, the old n~lesregarding error in theCourtofAppeals refused to considerthe State had to preserve error and could not submission or exclusion of evidence apply VOICE FOR THE DEFENSE

but whether the ermr was revcs~blemust tion ofprobablecauseshouldbe givengreat Court of Appeals upon whkh discretionary be determined according to Rule 81 (bX2). deference by the reviewing court. The review could be based In.io?mu.Slafe,-S.W.Zd-(Tex.Cr.App. Court stared axat so long as the magistrate No. 71,005, delivered March 13, 1@2), the has a substantiai hisfor confluding that a Court noted that the question of reversible search would uncover evidence of wrong- error is not whether suffictent evidence to doixig, the Fourth Amendment requires no In and Arouad Texas convict exists without the improperly ad- more. Contintledfrom page 9 mitted evidence, but rather "was there a F. Pf(I0R APPEWATE COURT CON- reasonable possibility that the error, either SWERATION OF ISSUES EREORB SUB- Henwa's and Gary Graham's cases, alone or in context, moved the jury From a JRCr TO REVIEW BY PEITIlON IN THE wen the most ardent advocate of the state ofnonper~llit~i~toone ofpersuasion COURT OE CRIMINAL APPEALS. death penalty is forced to admit, Texas beyond a reasonable doubt as to the issue in Before a defendant may raise an Issue in needs to improve. question. 'Jones, - S.W.2d at - ,slip op. petitionfordisaetionaryreview, a heorsbe I uee you and your Board members at 13, quoting Cod u. Sfale, - S.W2d - must have presentedtheissuetotheappellate (Tex.Cr.App. No. 63,643, delivered Sep- court for consideration. See Tallant u. StUte, to keep open minds to the idea ofsome tember 18, 1991) (rehearing granted) 742 SW.2d 292 (Tex.Cr.App. 19871, and form of process that niggers action by (Campbell, j., comurrihg). Degmev. Stare, 712S.W.Zd755 (Tex.Cr.App. the Board in these typesof caesso that P&ors tocoxwider when assessing ham 1980. thoughtful consideration is given to under Rule 81 6x2) were discussed in The State may be held to this rule as well. deteimine whether a defendant's peti- Hmdsu. Sfate, 790 S.W.2di@(Tex.Cr.App. In Pielder u. Sfate, 756 S.W.2d 309, 331 tion to the Board warrants a recom- 1989). Wex.Cr.App. 19W, foolnote 16, the Coun mendation of clemency. 4. Standard of review (federallfor seizure noted that the Sate alleged in its brief, after I understand that the State Bar is deternanations. review was granted, that the defendant's looking at having a standing or special There is a conflict in tbe federal courts eantention on appeal differed from the committee of the Bar to consider the regatding what standard of r&ew applies objection raised at trial. The Coun held that issue of clemency in capital cases, and to Fourth Amendment seizure issues. Some since that issue was not raised befom the courts amlv a de novo standard of review: Court of Appeals, it would decline to con- this is good, but considering the Bar's side< it on petition for review. authority is primarily to propose rem- In Wilsola u Stare, 777 2.W.W 118, 120 edies in issues such as the., you should CrehCrApp. 1989, at footnote 3, the Caurt continue your own effort$ to give close 883 F 2d 801 (9th Cir 19m. Other courts of Criminal Appeals noted that the siate sdnyto this issue. use a "clearly erroneoue standard of re- arguedin its brief thatthe defendant waived In addition to thc addressees to whom view: Unrled Smees u. Rw, 889 P.2d 1490 oomplaint by plealing no10 miendere. your letter was addressed, I suggest (6th Cir. 199A Unitnlsfatpsu. Gray, 885F.2d The Court held that since the State did not consulting the following interested United Stalas u 320 C4th Cir. 1989, and raise thiiissue ondirect appeal, or urge it as persons, who are concerned and %1?1n, 869 P.2d 803 0th Cir. 1989). a basis for the Court ta refuse review in a 5. Standard ofreview Cfederal) for prob- "Reply to the Petition for Review," the error howledgeable regarding the clemency able cause determinations. was waived. Procedural defects which hr issue: In the FCth Circuit, great &&race is an appeal shoukl be raised in the Court of Gabridle K. McDanald, former fed- given to a magistrate's determination that Appealsandifrejected,shouldbepresented eral judge, ngw in Dalla3 pmbable cause was shown. UnitedSfarpsu. to the Coun of Crlminal Appeals in a era- Bill Whitehurst, former president, MaI*sny, 732F.W 393,3015th Crr. 1984). Also, petition. SBoT, Austin review of the warrant shwM be conducted G. CROSS PEllT%ONS. HarIeyClsrk, formerstatejudge,Austin in a common sense and realistic manner. In Keith u. Stat% 782 S.W.2d 861, 863 Steve Martin, mrreaiqns attorney, D~cberu. &teIIs, 666 F.2d 285 lsth Cir. (Tex Cr App. 19891, at foutnote 4, the Court Austin 19821. of Criminal Appeals held that if the State Bill Habern, corrections attorney, 6. Standard of review for probable cause tn seeks claim error in the Court of Appeak' Riverside; decemlnations under Texas law. rejection of an argument, that claim sbould In Eisenbarier u. Sfate 754 S.W.2d 159 he presented to the Court of Criminal Ap- There are obviously others, but these CTex.Cr.App. 19881, a plurality ofthe Coun peals in a petition or era-parition for indivicluals will add diversity and ex- of C~ninalAppealsagreed that thestandard review,citing WiL~otlu.Sfare,77ES.W.2dll8 pertise to the urgent cask of improving announced in IlIimLs u. Gates applied to (Tex.Cr.App. 1989) (Procednrsl defects Texas' clen~ency. proceedings. - in capital Texas probable cause detenmations. In which bar an appeal should be iaised in the cases. Gglcs, the Supreme Court noted that the Court of Appeals and if rejected, should be TCDLAand theundersignedareready reviewing eourt should sin~piyensure that presented to the Coua of Criminal Appeals and willing to assist in whatever man- the magstrate had a substanrial basis For ina cross-vetition.). See &oArz~elu. Slate. ner we can. condudingrhatprobitblecauseexists. Thus, 740 s.w.2; 727 (.kx.~r.~p~).16~7). Sincerely, reviewing courts in Texas should not un- It. MOTIONS FOR REHEARING. John Boston dertake a de novo review of probable cause In Roche& u. State, 791 S.W.2d 121 determinations, and &ould instead, rev& CIex.Cr.App. 1990>,the Court held that if a cc Tom Krampitz, Exe. Dir. - Texas the prohable cause ending under the sub- party mks a new isaue in a motion for District and County Attorney's Asso- stantial basis test. rehearing andthe Court ofAppeaisomlea ciation Ifi Jobnsou u. State, SO3 S.W.2d 272 the motion for rehearing without isauing a Bill LaRonre, Director - Texas Center Vex Cr.App lM),the Court of Criminal new opinion or addressing the issue, the for Correctional Services Appeals cited GatsAand speufically held overruling of the motion will not be can- Ray Speece, Staff Counsel - Adminis- that an appellate court should review the sidered a mlion the issue necessary to trattve Office of the IJiitrict Courts maglnrate%actions and not conduct a & Final disposition of the appeal. Thus, the llmreview. The magirnates detemina- issue will notbea partof thedecisionof the New Members

Carlos R. Garcia Bruce A. Mantyla Scott K. Stevens 1314 Texas Avenue, Ste. 610 133 N. Industrial Blvd ,9th Fl. P.O. Box 946 W~lliamR. Barr Houston, Texas 77002 Suite C-1, LBZ Belton, Texas 76513 133 N. Industrial Blvd. Telephone: (713) 223-5870 Dallas, Texas 75207 Telephone: (817) 939-7950 Dallas, Texas 75207 Fax: (713) 223-5870 Telephone: (214) 653-3550 Telephone: (214) 653-3550 Fax: (214) 653-3539 Norbert Walker Fax: (214) 653-3539 Jose Luis Garra 310 S. St. Maws, Ste. 2401 309 W. Main John L. "Lin" McCraw, 111 San Antonio, Texas 78205 Manuel J. Barraza Rio Grande City, Texas 78582 321 N. Central Expressway Telephone: (210) 227-4212 80% Alameda Telephone: (210) 487-0303 McKinnev. Texas 75070 El Paso, Texas 79918 Fax: (210) 487-1022 Telephone: (214) 542-6262 Telephone: (915) 858-1888 Fax: (214) 548-0454 Mar. 22 -April 30,1993 Fax (914) 858 6947 David Grassbangh Albert ~cevedo,Jr, 808 W. 11th Street A~=tm, Charles W. McDonald P.O. Box 47728 Cada A Blackwell Texas 78701 McDonald & Malone San Antonio, Texas 78265 HCR 68, Box 15AA Telephone: (512) 472-8724 3302 W. Waco Drive Telephone: (210) 227-8000 Hondo, Texas 78861 Waco, Texas 76710 Fax: (210) 227-5304 Cad Hays Telephone: (817) 754-7317 Ann Braneff 131 N. Industrial Blvd . LB2 Fax: (817) 754-1466 Charles F. Allan P.O. Box 4415 Dallas, Texas 75207-4313 3102 Maple Avenue, Ste. 400 Bryan. Texas 77805 Telephone: (214) 653-3550 Galy I.Medlin Dallas, Texas 75201 Fax: (214) 653-3539 1110 E. Weatherford St. Telephone: (214) 953-0852 Fon Worth, Texas 76102 Fax: (214) 969-0258 Thomas A. Carse David E. Houston Telephone: (817) 3363033 6402 Brentfield Drive P.O. Box 1027 Fax: (817) 336-1429 Iawrence A. Beaud~an~p Dallas, Texas 75248 Cleburne, Texas 76033-1027 1700 South W W. White Rd Telephone: (214) 380-8016 Telephone: (817) 5583056 Veronica Moncivais San Antonio, Texas 78220 Far: (214) 250.1421 Fax: (817) 558-3066 1019 W. Highway 83 Telephone (210) 337-3800 Alamo, Texas 78516 ax: (210) 337-1611 Mike Charlton Robert Alton Jones Telephone. (210) 783-5100 550 Westcott, Ste. 320 24 Greenwav Plaza. Ste. 1411 Fax: (210) 783-5177 Kevin D. Rehr Houston, Texas 77007 Houston, Tekas 77046 6815 Manhattan Blvd., Ste. Telephone: (713) 864-0660 Teleohone: 013) 439-0410 R Kent Phdlips 202 Fax: (713) 864-5161 515 N. Fredonia Fon Worth, Texas 76120 Longview, Texas 75601 Telephone: (817) 446-4604 Conrad Day lames M. Lassiter, 111 Telephone. 003) 758-4740 Fax: (8171 496-9200 18 West Main 1201 S. Shepherd, Ste. 210 Bellville, Texas 77418-1440 Houston, Texas 77019 John W. Robinson Michael \V. Berg Telephone: (409) 865-9103 Telephone: (713) 521-0104 Bailey, Galyen & Temple ZOO1 Beach, Ste. 812 Fax: (409) 865-9104 Fax: (713) 528-6156 1105 Bedford Road Fofl Worth, Texas 76103 Redford. Texas 76022 Telephone. (817) 535 5505 Lewis Dickson Lena Levario ~ele~hoke:(81n 285-1020 Fax: (817) 654-0711 DeGuerin & Dickson 133 N. Industrial Blvd. Fax: (817) 285-1008 1018 Preston, 7th Floor Dallas, Texas 75207 Jeffrey S. Bernstem Houston, Texas 77002 Telephone: (214) 653-3550 Melissa Roniine 6243 IH 10 West Telephone: (713) 223-5959 Fax: (214) 653-3559 235 Market San Antonio, Texas 78201 Paw: (713) 223-9231 Baird, Texas 79504 Telephone: (210) 737-3222 Sracie Lewis Telephone: (915) 854-1016 Rex Easley, Jr. 133 N. Industrial Blvd. Fax: (919 854-2423 R.W. Blakeman Cole. McManus. Cole & Easlev Dallas, Texas 75207 Rt 3, Box 139C ~.o..~rawersio Telephone: (214) 653-3550 Victor Manuel Valdes Santiago Caflhage, Texas 75633 Victoria, Texas 77302 Fax: (214) 653-3539 13855 Crested Rise Telephone: (903) 693-2401 Telephone: (512) 575-0551 San Antonio, Texas 78217 Fax: (512) 575-0986 Richard H. Magnis Telephone: (210) 229-%52 ludith C. Bridges I33 N. Industrial Blvd P. 0. Box 12104 Gany W. Entress suite GI, LB2 Michael D. Siemer Dallas, Texas 75225 Alvrs, Carssow, Cummins Dallas, Texas 75248 610 Brazos, 5th Floor Telephone: (214) 373-3061 Hoeffner & Botsford relephone: (214) 653-3550 Austin, Texas 78701 100 Congress, Ste. 1700 Telephone (512) 479-0749 Austin, Texas 78701 Telephone: (512) 476-9121 Fax (512) 476 8434 VOICE FOR THE DEFENSE

Sumn K. Bridges Carl Henry Judin, 111 Duane G. Stephens Truman P. Kirk 6942 FM 1960 East, +I19 8111 Preston, #500 3900 Southpark Drive P. 0. Box 707 Humble, Texas 77346 Dallas, Texas 75225 Tyler, Texas 75703 Wsco, Texas 76437 Telephone (713) 852.1176 Telephone. (214) 750-8555 Telephone: (903) 561-4301 Telephone: (817) 442-3182 Fax: (713) 852-6853 Fax (214) 750-8001 Fax: (903) 561-4590 Louis F. Linden Mark J. Calabria Robert Kersey Wendy Antoinette Thomas 405 Main, Ste. 500 Cahbria & Calabria 3333 Park %dge Blvd. 9894 Bissonnet, Ste. 255 Houston, Texas 77002 201 W. Mulberry Fort Worth, Texas 76109 Houston. Texas 77036 Telephone: (713) 225-0814 Kaufman, Texas 75142 Telephone: (817) 924-2010 Telephone. (713) 777-8444 Fax: (713) 222-0504 Telephone. (214) 9324144 Fax: (7131 777-5438 Fax: (214) 932-3733 Sam Houston Knutson Kelly McClendon 4045 O'Grady Elizabeth V~ckers 209 E. Mulberry, Ste. 200 Demll A Coleman Corpus Chriiti, Texas 78411 &?46 Pecanwood Angleton, Texas 77515 808 W. 11th Telephone: (512) 8540342 Houston, Texas 77024 Telephone: (409) 849-4387 Austin, Texas 78701 Telephone: (713) 342-1305 Fax: (409) 8849.3366 Teleuhone: (512) 477-2151 Michael M. Machado Fax: (713) 461-8308 Fax:' (512) 477-1901 200 Main Plaza, Ste. 200 William C. Melli San Antonio. Texas 78205 Timothy D. Walker 1825 Glenbrook Carolyn A. Denero Telephone: (210) 227-8111 731 N. Walnut, Ste. 101 Bedford, Texas 76021 7122 Woodhollow, a34 Fax: (210) 227-6913 New Braunfels, Texas 78130 Telephone: (214) 745-1551 Austin, Texas 78731 Telephone: (210) 620-1515 Telephone: (512) 472.1353 Phillip Scott McClure Fax: (210) 620-5320 Ellen B. Mitchell 202 West Beauregard 123 Canyon Creek Mary Jo Earle San Angelo, Texas 76903 J. Tim Whitten San Antonio, Texas 78232 4826 Greenville Avenue Telephone: (915) 658-6816 P.O. Box 997 Telephone: (210) 4966690 Dallas, Texas 75206 Fax: (915) 658-6114 Austin, Texas 78767 Telephone: (214) 369-1001 Telephone: (512) 478-1011 Sheryl O'Briant Fax: (214) 692-8973 Thomas D. Moran Fax (512) 3264503 10503 Gold Point Scbneider & McKinney Houston, Texas 77064 Victor Roberto Garcia 11 Greenway Plaza, +$I12 Marvin Williams, Jr. Telephone: (713) 861-9595 301 E. Greenwood Houston, Texas 77046 808 112 Main Del Rio, Texas 78840 Telephone: (713) 961-5901 Lubbock, Texas 79401 Jim Parker Telephone: (210) 775-7466 Fax: (713) 961-5954 Telephone: (806) 763-5284 104 N. Austin Fax: (210) 775-9473 Comanche, Texas 76442 Michael L. Morrow Telephone: (315) 356-5262 Roy Daniel P. Garrigan 5706 Del Drive May 1-June7,1993 Fax: (915) 356-5015 3524 Fairmount Dallas, Texas 75230 Dallas, Texas 75219 Telephone: (214) 653-3550 Ralph K.Burgess Richard J. Segura, Jr. Teleuhone. (214) 522-0632 Patton, Maltom, Roberts, 11506 North Oaks Drive W1l1 E. Phllhps McWilliams & Greer Austin, Texas 78753 251 0'Connor Ridge, #260 P. 0. Box 1928, Ste. 700 Telephone: (512) 4790149 Thomas Kevin Golden Iwing, Texas 75038 Texarkana National Bank 13 Circle Drive Telephone: (214) 258-6688 Bldg. Wilbur Suggs Sugar Land, Texas 77478 Texarkana, Texas 75504-1928 2616 S. Loop W., Ste. 500 Telephone: (713) 490.1146 Patricia A. Presley Telephone. (303) 794-3341 Houston, Texas 77054 Fax: (713) 490-1149 100 Congress Avenue, Ste. Fax: (93) 792-6542 Teleohone: (713) 665-1688 2000 Fax:' (713) 665-3616 William Goode Austin. Texas 78701 Dan Hook Goode & Goode Telephone: (512) 469-5535 Hook & Husen Michael J. Todd 6420 Richmond, Ste. 490 Fax: (512) 469-6306 P. 0. Box 1089 Robinson & West Houston, Texas 77057 Levelland, Texas 79336 400 S. Zang, Ste. 600 Telephone: (713) 2660335 J. Michael Sadler Telephone: (800 894-3128 Dallas. Texas 75208 Morrison & Sadler Fax: (800 894-7233 ~ele~hone:(214) 941-1881 H. Scott Haid 707 S Center Street Pax: (214) 341-1399 501 Elm Street, Ste. 400 Arlington, Texas 76010 Cheryl Mikes Jemme Dallas Texas 75202 Telephone: (817) 265-8608 Mankoff, HIII, Held & David P. Zavoda Telefione: (2141 820-9292 Fax. (817) 261-4166 Goldburg 201 E. 4th Street 1878 Oak Lawn, 4th Floor Monahans, Texas 79756 Richard T. Jones Bill Snow Dallas, Texas 75219 Telephone: (915) 943-6705 910 West Avenue 4616 Sabelle Lane relephone: (214) 523-3700 Fax: (915) 943-2521 Austin, Texas 78701 Fort Worth, Texas 76117 Fax: (214) 523-3838 Teleuhone: (512) 495-1813 Telephone (817) 838-3323 James B. Zimmermann imberly K. Kaufman 3ody & Veigel 110 E. Weatherford Street '. 0. Box 1179 ort Worth, Texas 76102 dcKinney, Texas 75069 klephone. (817) 336-0030 relephone: (214) 542-0191 :ax: (214) 5424532 - - -

VOICE FOR THE DEFENSE

Voir Dire of communicating, educating and per- Doyne Bailey - Director - Criminal Justice Division, Governor's Office Continuedfmmpage 23 suading others in voir dire and else- where is the touchstone of strong de- Vincent Walker Perini - Esq fense advocacy. w Karen Johnson -Executive Director - people with whom they are closest, State Bar of Texas such as their spouse, their family and Lonny D. Morrison - President-Elect - their friends. During voir diue. the. State Bar of Texas complications of human interactions In and Around Texas become compounded and require Continuedfmmpage 36 Returning to the Legislature briefly, highly developed skills in the art of the House filed 2,876 bills, the Senate listening, perceivingandintuiting. Time, filed 1.504, 634 of the House bills and effort and practice must go into using Mike Miller, General Counsel -Board 445 of the Senate bills passed to the these skills. A sense of balance in Wr of Pardons and Paroles Governor for signature or veto. Of 180 emerges after many clumsy mo- Gabrielle K. McDonald - Esq. joint resolutions (the means by which ments. The ultimate lesson is to William 0. Whitehurst, Jr. - Ew. the Texas Constitution is amended) analyze one's present mir & dis- Harley R. Clark, Jr. - Esq. seven House Resolutions passed and cover strengths and weaknesses in it, Steve Martin - Esq eleven Senate Resolutions made it to and encourage feedback from clients, Bill Habern - Esq. enrollment. otherauomeys,socialscientkts,seuetaries, Eden Harrington - Director - Texas The billof most importance tocriminal friends and spouses. Developing skills Resoulre Center practitioners, SB 1067by Whitmire, does not become effective, with certain ex- ceptions, until 1September 1994, so at th~~writingthere is ample time to digest Publications for Sale the signficant changes effected by this new law. The most profound change Check Desired will be the creation of state iail felonies Purchase Sales Price and the reduction of simple possession of some controlled substances (less than one gram) from a 2nd degree 0 TEXAS CONTROLLED SUBSTANCES TAX ACT $20.00 felony to a state jail felony, which is a (reproduced by TCDLA) new form of community supemision withsplitjailtimeavailableasa condition Ci TCDLAINACDL Trial of a Drug Case $125.00 of probation and as a sanction for Februarv I993 violations that do not involve more 0 "Rusty" Duncan Advanced Criminal Law Short $125.00 seriousfelonies. The planned impact of Course - San Antonio11993 state jail felonies is to relieve pressure on the Institutional Division to make Cl Capital Murder Manual by: KeithE. Jagmin $225.00 mom for violentand habitual offenders. Unfortunately, the addition of harsher 0 CDLP CROSS EXAMINATION SEMINAR COURSE BOOK $125.00 punishments for controlled substance Arlington - ApriV93 possession/sale within 1,000 feet of a 0 CDLP SCIENTIFIC EVIDENCE SEMINAR BOOK $75.00 school and the change of definition of July, 1992 -League Clty adulterants and dilutants may offset the relief in prison crowding envisioned by the more intelligent use of state jail Sales Tax is not included. (8%) felony punishment insimple possession Please check desired purchase(s) and send this order form to the cases. Criminal Dekense Lawyers Project, 600 West 13th Street, Austin, Texas 78701 After several sessions of trying to pass an administrative drivers license revo- cation bill, the Mothers Against Drunk Driving got their bill (SB 1by Zaffirini) passed, but it does not become effective NAME until September 1995, and with the help ADDRESS of Stu Kinard and others, we were able to get some amendments added. More CITYISTATUZIP PHONE NO. on this issue in the future. In the next two or three issues of the Voice, we will discuss further SB 1, SB 1067, and other legislation that passed O Cash Sale O Check Enclosed and that wdl impact the current penal code that remains in effect through 31 *AU books will be mailed bwk rate (allow 4 weeks delivery) unless otherwise specified. August 1994.1 ~1111-11111111-111 1 TEXAS CRIMINAL DEFENSE LAWYERS 1 Some of the best legal minds I ASSOCIATION I . . . in this state already belong to the Texas Criminal De- MEMBERSHIP APPLICATION fense Lawyers Association. We believe we have now the I ~Plonrepllrtt0, aoe) I I I best Criminal Defense Bar in the United States. We main- tain that level of excellence by mntinuausly seeking out I Cl NEW MEMBER APPLICATION 1 new minds, new energies. Therefore we want YOU if I El REhTWAI. APPLICATION* I . . . 1 Mr. 1 Mrs.- I your legal ancl personal philosophies are compatible with I Name our purposes and objectives: (10 m I I appear ~onbenhip~may) I To provide an appropriate state organimffon representing Law Fim1 I those lawyers who are actively engaged In the defense of I Mailing Address cnimind cases. City, State, Zip I I To protect and insure by rule of law those Individual rights Business Telephone ( 1 I guamnteed by the Texas and Fderal Constitutions fncriminal I ax NO. ( 1 I I County I cases. I Bar Card Number I To reslst proposed legislation or rules which would curtail I Bar Card Date: Month Year I such rights and to promote sound alternatives. I Date of Birth* I To promote educational activities to impmve the skias and ( Are you currently a member of NACDI.? U Yes O No I knowledge of lawyers engagedin the defense of ciMnal cases. 1 Please check correct category: 0 To improve the judldal system and to urgr: the selectionand P Voluntary Sustamng $3M) Amliate $50 I 0 Public Defender - $50 appofntment to the bench of wellqualified and experienced P sustainfng SZM) 1 ' P Student - SZO I lawyers. O Members in the firm of Regular meolber Toimprovethecorrectiondsystemandtoseekmoreeffective ltcensed to practice: a sustainmg or charter 1 member $50 0 2 years ar less, or - 1 rehab11Itaffon opportuniffesfor those convicted of crimes. new member of TCDJA - $75 I To promote constant improvement in the administrationof 1 O more than 2 years - $150 crimid justice. Certified Criminal Law Spedalim O Yes U No 1 ADVANTAGES EOR TCDLA MEMBERS -I I 0 The monthly Voicefor fhe Defarse magazine. IIave you ever kndisbarred or disc~plinedby any bar . association, or ate you the sub.ect of disciplinary action I a The "SignEcant Decisions Report" of hnpo~tantcases decided by the 1 now pending? Yes O No I Texas Goun of Criminal Appeals and Federal Courts. I I 0 TCDLA Membership Directory - referrals to and from Criminal Ih* Si~naNcuol Apphnt Defense Lawyers in over 100 Texas cities 'State a~hcthernew certificate is derlred. I 0 Outstanding educational programs - featuring recognized experts I ENDORSEMENT I on practical aspecrs of defense cases. TCDLA and the State Bar I I, a current member of TCDLA, believe this applicant to I annually present many seminars and courses in all pa~zsof the state. I be a person of professional competency, integrity, and 1 0 Availability of Lawyers Assistance Committee, a icady source of gmd moral character. The applicant is actively engaged information and assistance to members, and the Amicus Curhe in the defense of mn~malcases. 1 I I Committee. "'" S~gnamrcol~embct 0 Orsanizational voice through which climinal defense lawyers can I I fornlulate and express their position on legisIation, court reform, I ~nnla~>yr~cmws mnr I important defense cases through Amicus Curiae activity. 0 Discounts and free offerings for publications of interest to criminal defense lawyers. Attn hlcnlkrship Depanorent Limited messenger service in the Capitol area. 6W West 13th Street 1 Austin, Texas 78701 I (512) 4782514 I

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 600 West 13th Street BULK RATE Austln, TX 78701 U.S. POSTAGE PAID WELDON HOLCOMB 1 Permit No. 2454 1 11.1-8 M. Spring St. Dallas, Texas ------Tyler, Texas 75702-0000