- ARTICLES Bugging Revisited: the Wiretap Decade Dialogue ...... 4 Criminal Defense LawyersProiect .7 Ethics of Representing Indigent Defendants Herman Sch wartz-reprint from The ..... Record Expunction Forms. .9 David Carlock, Dallas. .8 Nation ...... 47 ...... Texar Controlled Substances Act Electric Chair Charlie Schedules 14 Lawrence Wrigh t-reprint from The ...... REGULAR FEATURES Opinions-Attorney General...... 39 American Lawyer. 11 ...... Legislative Committee Report Brief Outline of Basic Client Interview Editds Corner ...... 3 Ed Mallett, Chairman...... 43 Ronald Zipp, Edinburg. 13 President's Report ...... 4 ...... Recent Statutory Changes in the Law of C. S. Farmer-the Man Who Could Reverse SignificantDecisions ...... 19-34 Criminal Defense ...... 44 Niagara Falls New Members...... 45 Qualifications and By-Laws Committee Charles W. Tessmer, Dallas. 16 ...... Repon Motions Checklist-Criminal Case Ronald D. Zipp, Chairman...... 50 Jan Hemphill, Dallas 40 NEWS ...... San Antonio-scene of recent membership Cross-Examination Techniques Pubiicationr Committee Report drive and board meeting ...... 51 Douglas Tinker, Corpus Christi ...... 42 Pat Priest, Chairman ...... 3

OFFICERS Woody R. Demon Ron Goranson Clifton Holmer Houston Dallas Managing Ediro, President Louis Dugar James H. Kreimeyer Vincent W. Perini Orange Belton Marvin 0. Teague Dallas W. V. Dunnam Robert Joseph Editor, "Significant Decirionr" President-Elect Wac0 Sin ton Robert D. Jones Michael Gibson J. C. "Rusty" D'Shea Austin Dallas Lubbock Judy Ward First Vice-President C.W. Robin Peany Gerald Goldstein Exec. Asst. to the Pres Charles McDonald San Antonio San Marcos Wac0 Grant Hardeway James F. Pons POSTMASTER: Please send address Second Vice-President Houston Sen Antonio changes to Texas Criminal Defense Clifford Brown Richard Harrison David Spencer Lawyers Association, 314 West 11th Street Lubbock Dallas Austin Suite 21 1. Austin, Texas 78701. Secretary-Treasurer Oliver Heard, Jr. Michael Thomar Phone (5121 478-2514. David Bire~ San Antonio Fort Worth VOICE for the Defense is pub- Houston Jan Hemphill George L. Thompson lished monthly by the Texas Ast. Secretary/Treasorer Dallas Lubbock Criminal Defense Lawyers Associa- Douglas Tinker Clifton Holmer tion. Ail articles and other editorial Cornus Christi Kilgore PAST PRESIDENTS contributions should be addrerred Edward Mallett to the Editor, Clif Holmer, Box Houston Frank Maloney 1073, Kilgore, Texar 75662. Busi- DIRECTORS Pat Priest Austin, 1971-1972 ness correspondence, advertising San Antonio C. Anthony Friloux inquiries and contracts, send to William F. "Bill" Alexander Charles Rittenberry Houston, 197272-1973 Dick Dromgoole. ARTFORMS Dallas AGENCY, Box 2242, Austin, Amarillo Phil Burleron Richard Anderson Texas 78768. (5121 451-3588. Robert Salinas Dallas, 1973-1974 Dallas Annual subscription rate for Mercedes George Gilkerson Cecil W. Bain members of the association is $5, Larry Sauer Lubbock. 1974-1975 San Antonio which is included in dues. Non- Houston C. David Evans Jack Beech member subscription-$10 per year; Thomas Sharpe San Antonio, 1975- 1976 Fort Worth single copy-$2.50. Second clarr Brownsville Weldon Holcomb James Boba portage paid at Austin. Texar. Marvin 0. Teague Tyler, 1976- 1977 Odessa ISSN 0364-2232 Houston Emmett Calvin Russell Busby Stanley Topek Dallas, 1977- 1978 el976 TEXAS CRIMINAL Amarillo Hoosron George F. Luquette DEFENSE LAWYERS Charles Bum Robert G. Turner Houston, 1978-1979 ASSOCIATION. San Antonio Houston Raymond Caballero Stanley Weinberg El Paso Dallas , Antonio Cantu Rodger Zimmerman San Antonio Austin TEXAS Wagganer Carr Ronald Zipp Austin Edinburg CRIMINAL Allen Cazier San Antonio DEFENSE ASSOCIATE DIRECl'ORS Anthony Constant Carpus Chnst! LAWYERS Donald Dahy Jimmy Don Caner Fort Worth ASSOCIATION M.P. "Rusty" Duncan NOVEMBER 1979 Decatur Corner

docket problems. And the criminal law- favoritism regarding settings, last minute yer is caught in the middle of the in- docket preparation, and rigidity of creasing court case load and the judges' judicial temperament must be addressed resistance to change. It is patently unfair, by the judiciary. Prosecutors, likewise. I believe, for a lawyer to be called to cannot expect orderly dockets when they court, time and time again, only to be wait until docket day to announce the rescheduled and told to come again. cases in which they are "really ready." There is no way a criminal lawyer can My suggestion is this: put the responsi- obtain a reasonable fee when the courts, bility for ordering of the docket on the because of sloppy docket management, prosecution; require the prosecutor to require his presence week after week, to notify defendant's counsel at a date suf- await a decision which should have been ficiently ahead of the setting to allow made before the docket date was set. any necessary motions to be filed and CLIF HOLMES The problem is aggravated, especially in heard; require plea negotiations to be Oftentimes I am tempted in this forum rural areas, when a lawyer has cases pend- completed prior to docket call; at docket to broach subjects which are really too ing in several courts, all of which handle call set the cases to be tried, in order of controversial for this column's purposes. (mishandle) their dockets in this manner. their setting, with "on call" alternates to This time I've succumbed to that tempta- And when you consider a large number of be ready on 24-hour notice. tion-and it didn't take the devil 40 days the typical criminal lawyer's cases are While this might sound militaristic to get me. I hope I step only on those appointed, the economic effect on the in approach, I can't help but believe it toes which are protruding. lawyer's practice is apparent. would increase judicial efficiency, and "Docket management" has become a I have given some thought to this improve the criminal lawyer's economic rather popular topic at judicial seminars problem (primarily because I've recently lot. Prosecutors may disclaim the respon- these last few years. Court administration been severely affected by such practices). sibility and judges decry the invasion of specialists remonstrate on the subject I've determined that much of the prob- their prerogatives. But, dammit, they miss regularly. I'm confident that erudite lem is the fault of the criminal lawyers the point. If our criminal justice system is systems have been developed and com- who suffer most from the situation. to survive, lawyers must be able to sup- puterized which guarantee an orderly Motions for continuance filed at the last port themselves while practicing in that process. But, I continually end up in situ- minute; docket conflicts reported at area of the law. It's not asking too much, ations where "docket management" is docket call; subpoenaing witnesses on the I think, to seek this cooperation from our synonymous with "judge's whim." The eve of trial; in short, procrastination. courts. (After all, weren't they once on Speedy Trial Act (along with increased These problems can be solved by the the receiving end of this lash?) crime rates) has aggravated criminal lawyer-and should be. But judicial Ed

PUBLICATIONS COMMITTEE

Pat Priest, Chairman changes were submitted to the Board of possibility of some new features, Members: Directors at its meeting on October 27, including a humor column. Stanley Weinberg, Dallas 1979 and by that body unanimously The committee and the Board of Raymond Caballero, El Paso approved. Directors believe that full use has not Clif Holmes, Kilgore, Ex Officio, The Board of Directors, pursuant to been made of the Letters to the Editor Editor of VOlCE a motion by the Publications Committee, column. This column presents an excel- Your Publications Committee has been also passed a resolution that it would be lent opportunity for the sharing of ex- very active in the last couple of months, expected of each member of the Board periences and points of view. Somewhere and a number of developments have of Directors that he or she would, during in the State of Texas, every working day, resulted from our activity. First, we have ,each year of his or her term of office, one of our members is having an experi- come up with a number of changes in and provide at least one article for publication ence, the sharing of which with other improvements to VOlCE for the Defense. in VOlCE for the Defense. members could be extremely valuable. Among these changes are a number de- We have been comparing our publica- Most of us are not motivated to write a signed to reduce the cost of the publica- tion with that of other associations complete article, but five minutes dictat- tion to the association, without affecting around the country, and find that it com- ing a letter to VOlCE could be of the quality. These primarily have to do pares very favorably. However, we intend immense value to the membership. If with the kind of paper, colors of ink, to attempt to provide not only more and we each share our ideas, the combination manner of stapling and the like. These better articles, but are working on the will be unbeatable. Let us hear from you.

VOICE for the DefensellVovernber 1979 3 Report

ROSS PEROT: MORE OF THE SAME

by the implication that my failure to do the-scenes approach will take the form of my job was to blame. Everybody close to a personal meeting between spokesmen the system knows that is not the truth. for TCDLA and Governor Clements, Mr. Perot may be a giant among business- followed by a similar meeting with Ross men, but he is a criminal justice amateur. Perot. We will attempt to convince them Aside from his ignorance of the sub- that they are wrong to start tinkering ject matter, what credentials does Mr. with the delecate machinery of the judi- Perot bring to the task? That Mr. Perot cial system. is best known for his recent sponsorship In the case of legislative battles such as of a prison break is ironical. Despite wiretap, the behind-the-scenes approach the fact that most Americans approved of has been the principal method the it, the genesis and execution of the Perot VINCENT PERINI criminal defense bar has used in the past. commando raid on an lranian prison were The presence of criminal defense lawyers Governor Clements has appointed inimical to due process of law. Ross Perot and their allies in positions of importance Ross Perot to chair a special committee does not feel obligated to abide by laws is the main reason we have been success- aimed at winning the war against drugs in which he does not respect. We can hardly ful in recent legislative history. Given a Texas. Mr. Perot has started by announc- blame him in a case of a corrupt and choice, this is the easiest and most effec- ing that his committee will summon pub- mercurial Iranian regime; but can Ross tive way to kill bad legislation. Un- lic opproprium against judges and prose- Perot blame the young Texans who feel fortunately, times are changing. Our cutors who are "soft" on drug offenders. the same disdain for the Controlled Sub- strength has eroded. On an issue like wire- At its October board meeting in stances Act which he now holds to his 27 tap, even our best friends have trouble San Antonio, the board of directors of breast? standing firm before the relentless pres- the TCDLA explored approaches for deal- So- how~ should the oraanized" criminal sure from the Governor's office. ing with this threat to Due Process. Be- defense bar respond to perennial prob- fore that we were concerned with how to lems like ~os; Perot? with wiretap? Firebrands in our association are deal with the Governor's proposed wire- There are two schools of thought, and frustrated by the behind-the~scenes ap- tap legislation. And before that, if you both were evident at the board meeting proach. They would prefer taking on the recall, we rallied money and man-hours in San Antonio. The cooler heads argued enemy in public, especially an enemy in the fight against Governor Briscoe's that we should pursue our goals behind- like Ross Perot whose exaggerated pro- heralded "Governor's Crime Package." the-scenes. There is a great deal to be said nouncements are vulnerable to rebuttal. Mr. Perot is just more of the same. for this. Since there is usually merit to This is especially appealing if you share He is a textbook example of what our our position against demagoguery on the belief that winning is not our only association exists to combat. His pro- criminal justice issues, most key people goal. I call this the "Davey Crockett" nouncements on crime appear reasonable will at least listen to reason, whether or approach. Fighting and dying for a losing to a gullible public. To newspapers they not they act on it. Besides, we are cause can be an end in itself. If we lack are worthy of publication because of severely handicapped in public debates the strength to prevent wiretap, and if we their simplicity. Yet they offer false because so few people comprehend how can never hope to win a popularity con- hope. we can be patriots and yet represent test between us and Ross Perot, perhaps If I were a prosecuting attorney, trial criminals. Worst of all, we lack the money at least we owe it to our consciences to judge, a judge of the Court of Criminal to effectively wage open warfare; guerilla put up a good fight even if we are fore- Appeals, or a member of the Board of tactics are about the best we can do. doomed. Who knows; in the long run we Pardons and Paroles-l would be insulted In the case of Ross Perot, this behind- may win. Remember the Alamo.

Curry said he is convinced that three ments and considered decisions when DIALOGUE judges-Truman Roberts, W.T. Phillips defense lawyers appealed convictions. (Reprinted from The Dallas Morning News, and Sam Houston Clinton-go out of Then voters approved a constitutional Tuesday, October 23. 1979) their way to find reasons for setting aside amendment that enlarged the court and convictions. authorized 3-judge panels to hear appeals. FORT WORTH DA ASSAILS , "Now that cases are assigned to Curry said the court set aside five STATE JUDGES FOR RULINGS 3-judge panels, so much depends on the Tarrant County convictions in Septem- By Carl Freund luck of the draw,"Curry said. "If you get ber. Fort Worth Bureau of the News Roberts, Phillips and Clinton on your "I doubt that we had that many panels, you can expect opinions which set during the previous five years," Curry District Attorney Tim Curry said aside convictions and grant new trials. It's said. "The court is definitely in an era in Monday that the Texas Court of Criminal a sad situation and it should be of deer, which it is setting aside more convic- Appeals "IS III tnp worsr snapu n 17 cotlcern to thc pcoplc of th~sstate " tions." years." Thc cllt r? co~6ttofmer y hcdrd arqL Curry suggested that Clinton's name

4 November 1979NOICE for the Defense helped him win a position on the court. other direction while a mobconsisting this is an era where more convictions The district attorney said he saw no of the majority of the citizens drags are being set aside is meaningless because quick solution to the problem. his lawful prisoner from his jail and this is a natural result of the court con- "It might help if voters give our courts onto the gallows. A further truth is sidering more and more cases on appeal of civil appeals jurisdiction to hear that when a case is reversed it is each term which results in an increase in appeals in criminal cases," he said. generally the result of the prosecutor affirmances as well as reversals. Texas voters will decide in 1980 on a being too lazy to read the law, too While the solution may not be quick, constitutional amendment that would ignorant to understand it, or simply there is a solution-prosecutors should be authorize the courts to hear appeals in having no conscientious respect for his trained to appreciate the law and not criminal cases. Then, if not satisfied with oath to uphold it. Every citizen of our overreach-it is in their power to cut the decisions, attorneys could ask the state should feel a deep personal insult down on the number of reversals by more court of criminal appeals to hear argu- when a prosecutor exhibits his belief proper, legal and fair prosecution. ments. in the utter gullibility of the public Professionally, it is always disappoint- Appeals from district court convic- by thinking he can cover up his own ing when a lawyer-politician under the tions now go directly to the court of costly and inexcusable errors by facade of advising the public, misleads it. criminal appeals. blaming conscientious Appellate It is saddening when a lawyer attacks the Judges who perform their constitu- integrity of any judge, when he well tional oath and preserve liberty for knows, if there is really judicial miscon- October 29, 1979 our children by a rigid opposition to duct, there are proper ethical and legal a violation of the legal rights of our avenues for correction. But of course, citizens by ambitious and overzealous he also knows that he would have to Mr. Vince Perini Dallas, Texas prosecutors. prove his allegations and the judge would Please let me have your views on this have a fair hearing. However, the lawyer Dear Vince: matter as quickly as you can possibly here cannot afford to take this avenue for Enclosed herewith is a copy of a he knows there are no such grounds. In Very truly yours. clipping published this past week in the all these attacks on court decisions, the W.V. Dunnam, Jr. Dallas Morning News. If this is permitted public and media should take particular to go unanswered by the TCDLA, then Waco, Texas notice that the reasons why convictions m.. were reversed are never mentioned. there is no true reason for the continued existence of the TCDLA. Some officer October 31, 1979 Why? That is the last thing the prosecutor authorized to speak for the TCDLA wants to publicize, for fear the public should contact Mr. Carl Freund, request Mr. Carl Freund will appreicate that it was the prose- an interview with him, and request that Dallas, Texas cutor's error that required the court to he publish the other side of the issue. If reverse the conviction and necessitate a lawyers who claim to be dedicated to our Dear Carl: retrial at great public expense. If the judicial system will state to the public The TEXAS CRIMINAL DEFENSE are analyzed publicly, we would the explicit truth in reply to the small- LAWYERS ASSOCIATION is deeply all see the judges met their minded politicians who seek to politically concerned about the remarks of Mr. under the law, the state and capitalize on the public abhorrence of Tim Curry that appearedin the Dallas federalconstitutions and the prosecutor crime by falsely attacking Appellate Morning News article of October 23, failed to perform his properly. Judges for performing their constitutional 1979, under your by-line. Mr. Vincent Cases are reversed two duty, such politicians will soon be fearful Perini, President, has asked me, as past reasons-prosecutoriaI Or trialjudge error. of opening their mouths on the subject. president, to respond for the TEXAS This does not necessarily reflectOn the The TCDLA statement should contain, CRIMINAL DEFENSE LAWYERS AS- Integrity of either errors are at the very least, the following state- SOCIATION. not intentionally committed, or, at least, ment: While we respect Mr. Curry, his it should be so presumed. But, neverthe- Since the State has no right of ap- remarks indicate the frustrations of a less,the are there and these errors peal, the one and only purpose for the dedicated person who loses. He has lost bear 'pan human beings, statistics. constitutional creation and existence sight of the fact that the cases he referred Judges are be faultedwhen they of the Court of Criminai Appeals is to should have been set aside, regardless their duty determine when these to see that every defendant is tried in of who was on an appeal panel. He has, occur. This is the sole reason accordance with the law of our land. unintentionally I am sure, misled the 'he existence of any appeals court. These The truth is that any Appellate Judge public to think that only three-judge judges would be the lasf to assert that who will permit a conviction to stand panels consider appeal cases. If either they are perfect for the law is not such when the defendant has been denied side is displeased with a result, counsel a precise instrument. Were a judge truly a right given by law, which denial was can file a motion for rehearing after weak and not filled with a sense of duty, calculated to adversely effect his posi- which all nine members of the Texas he would rarely reverse a conviction for it tion in the case, is identical in charac- Court of Criminal Appeals consider the is not a very popular thing to do. But of ter, honor, principles, and motives case. In numerous instances, the full a judge of under the law to the Sheriff of the Old West who court has disagreed with panel decisions is "Of in a popularih/ contest-a con- walks up the street looking in the and the result has been changed. To say /Continued on P. 6)

VOICE for the DefensolNovember 1979 5 DIALOGUE Colvin also said that when district achieving a proper solution to the drug from p. 5 attorneys criticize the court, they fail to problem. point out that legal errors by prosecutors Again, ten minutes during the week of test so familiar to the district attorney. force it to set aside convictions and order November 12-16 is all we request. Whether we stand behind conscientious new trials. Yours very truly, judges depends on whether or not we Colvin said he felt there was no way Waggoner Carr believes in law and order or whether we for Curry to prove that the three judges Austin, Texas are merely giving lip service to the prin- are prone to set aside convictions even ciple. though they should have been affirmed. ... In view of the extensive coverage of The statement noted that if a prosecutor November 1, 1979 the remarks of Mr. Curry, we ask that our is not satisfied with a decision by a 3- response also be publicized. judge panel of the court, he has the Mr. VincentW. Perini With kindest regards, I remain power to ask the full court to review it. ~~ll~~,T~~~~ Sincerely yours, Colvin said the court is hearing more Emmett Colvin cases as the state's population increases, D~~~V: Dallas, Texas and consequently there has been an I am enclosing a Xerox copy of the increase in the number of convictions set that appeared in the -ruesday, aside. But, he said, there has been an (Reprinted from The Dallas Morning News, October 30, 1979, Smr Telegram. I am Friday, November 2, 19791 increase also in the number of con- also sending a copy of same to Waggoner victions affirmed on grounds that de- carr, CURRY'S COURT CRITICISM fendants received fair trials. Perhaps, this is a good indication that DRAWS IRE . . the news media will be helpful at our Fort Worth Bureau of the News attempt to defeat this legislation. November 5, 1979 Yours very truly, The Texas Criminal Defense Lawyers Jack W. Beech Association accused District Attorney Governor Bill Clements Ft. Worth, Texas Tim Curry Thursday of "misleading the Austin, Texas m.. public" when he criticized three members of the Texas Court of Criminal Appeals. Dear Governor: (Reprinted from the Fort Worth StarTelegram, Curry said October 22 he was con- Travis Shelton, former President of the Tuesday evening, October 30, 19791 cerned about the increasing number of State Bar, inc cent Perini, President of the convictions set aside by the appeals Texas Criminal Defense Lawyers Associa- EDITORIAL-WIRETAPPING court. tion, and I respectfully request an ap- NOT AN ANSWER He said he believed three members of pointment with you during the week of the court-Truman Roberts, Sam November 12-16. Ten minutes should do Forgive us if we do not jump on the Houston Clinton and W.T. Phillips- it. Bill Clements-Ross Perot drug war band hunted for ways to justify granting new As to the matter we desire to discuss: wagon but we have some reservations. trials. Each of us is actively engaged in the prac- For starters, one of the main themes Emmett Colvin, a Dallas lawyer who is tice of law and are sensitive to any at- running through the whole discussion a former president of the association, tempt to influence particular juries or about Governor Clements' 14-member drafted a reply at the request of Vincent particular judges in favor of the position "War on Drugs" committee and the anti- Perini, its president. The statement says of any particular group. On the contrary, drug campaign is the call by Clements and Curry attacked the court through com- we feel any effort to influence public Perot for state legalized wiretapping. This ments to reporters because he knew this opinion on any public issue is proper. The is a dangerous proposal. The illegal drug procedure would not require him to line between these two approaches is a traffic in Texas is terrible. But what could prove his charges. delicate one, but the consequences of be worse is permitting telephone tapping. "While we respect Curry, his remarks crossing the line is serious, especially Sure, in the beginning it would be used indicate the frustrations of a dedicated when it comes from the office of our only to help catch those who deal in il- person who loses," the statement said. Executive Leader or those who speak for legal drugs. Then the abuses could begin. "He has lost sight of the fact that the him. The use of wiretaps would be broadened cases he referred to should have been set More specifically, we are concerned to include others. Its use could be abused. aside, regardless of who was on the ap- that the announced approach of your Individuals' freedoms-the right to pri- peals panel. . . . "Texans' War on Drugs" Committee, vacy-would be at stake. Don't believe "Professionally, it is always disap: even though well intentioned, is destined us? Consider the known abuses on the pointing when a lawyer-politician, under to influence particular judges and/or federal level. the facade of advising the public, misleads juries irrespective of actual guilt or inno- Next, we fear name calling. Already, it. It is saddening when a lawyer attacks cence of the accused, thus aborting an Perot has said he will name judges, prose- the integrity of any judge when he well essential safeguard of our judicial system. cutors and counties who are "soft" on Iknows that if there is really judicial It is our sincere desire to explain to drug dealers. Who will decide who is soft misconduct, there are proper ethical you in our conference what our concern and who is not? What will be the criteria? egal avenues for correction." is, so that we may work together in Such name calling might be the popular

November 1979AIOICE for the Defense thing to do. Indeed, the governor referred This orderly approach might not be CRIMINAL DEFENSE to it as "constituency pressure." Cer- very headline grabbing. But it might help tainly it could be considerable. We would get the job done. LAWYERS PROJECT wager the average Texan is fed up with ... The Criminal Defense Lawyers Project, the drug problem. But, although singling now in its seventh year of operation, has November I, 1979 out those who are "soft" on drugs might produced "nuts and bolts" criminal law be popular, would such designation be programs for over 6,000 Texas lawyers accurate? Who is to decide? How? Line One since its inception in 1973. The Project We do not doubt Perot's sincerity as Dallas Morning News has as its primary goal the training of law- Dallas, Texas he sets out to chair the governor's "War yers so that they may more effectively on Drugs" committee. Certainly Perot has represent indigent defendants in both proven his considerable abilities as Dear Sirs: state and federal prosecutions. Funded by a businessman and in other ways, such as Recently, a person inquired whether a federal grant from the Law Enforce- through his activities on behalf of prison- or not he could be stopped late at night ment Assistance Administration through ers of war in Southeast Asia. by the police as he found it offensive. the Governor's Criminal Justice Division, But wiretapping must remain out of Rather than inquiring with the appellate the Project produces approximately nine division of the Dallas District Attorney's the question in this war. And we must State Law Skills Courses and three or do more than announce we are going to Office or a criminal defense lawyer four Federal Criminal Law Courses an- get tough on drug dealers. There must be knowledgeable in the law, you consulted nually. In addition. since 1976 the the police department. It is, therefore, specifics in the plan of attack and these Project has produced the five-day Crim- not surprising that you received an el-- specifics must be innovative, for the inal Trial Advocacy Institute at Hunts- roneous answer which you then pub- methods used thus far have done little ville, Texas, on the campus of Sam lished. The police replied that they could to turn the tide. Indeed, Perot said him- Houston State University. This program stop anyone if there had been a crime self the illegal drug business dollar vol- involves intensive moot court style trial committed in the neighborhood and it ume rivals that of General Motors and exercises conducted by the participants. was being investigated. American Telephone & Telegraph. The Project, which is sponsored by the In fact, that is not the law, and the And there can be problems with spe- State Bar of Texas and the Texas Crim- person who was disconcerted by being cifics. For instance, suppose it is decided inal Defense Lawyers Association, and as stopped late at night by a policeman to sharply increase the number of per- such is the continuing legal education arm when the policeman had no factual sonnel who enforce drug laws. This would of TCDLA, obtains over 90% of its fac- basis for singling that person out, was cost a considerable amount of money, ulty from the directorate and general rightfully upset. Policemen may stop and this at a time when taxpayers are membership of TCDLA. The balance of everyone during a road block or similar organizing everywhere to cut taxes and the faculty is made up of trial court investigation; however, when they begin cut government spending at every level. judges and prosecutors from across the to be selective, they must have a factual We wish the committee well. We really state of Texas. Displaying what many basis tending to indicate that the person do. Goodness knows others have tried laymen would consider an uncharacter- was involved with criminal activity. and tried to wage this same war and have istic degree of altruism, the lecturers at been able to do little more than hold Otherwise, the stop by the policeman, CDLP programs receive no remuneration their ground at best. Even the General which is a "seizure" in law, is illegal and a for the preparation of their articles or for violation of the person's reasonable ex- Accounting Office has said the U.S. war the actual presentation itself. Travel pay against drugs has more or less run amuck, pectation to privacy under the Fourth is currently $30 per diem and 5.18 per Amendment of the United States Consti- despite billions having been spent on it, mile or coach class airfare. (A request is tution. one reason being lack of cooperation pending to increase these figures to the among federal agencies. It is not surprising that the police told State-allowed amounts of $40 per diem you they had permission to do what they But, for the good of all citizens, the and $.20 per mile). Editorial services are were doing. Did you really expect other- Texas effort must be done without name contracted for in order to publish the six wise? calling and eavesdropping. One would do Practice Manuals produced by the Pro- Sincerely, little more than upset those being singled ject. Production of the Criminal Defense Arch C. McColl I II out for criticism; the other runs the quite Practice Materials, Federal Criminal Prac- Dallas, Texas real risk of stripping away citizen free- tice Manual, the Juvenile Defense Manual, doms and rights. and other excellent trial practice manuals Maybe what would work best is for is done at the lowest possible cost so as to the committee to quietly and diligently make these volumes available to all law- set about its task, find out what is and is yers who need them. For example, con- not working in the fight against drugs, see sultants are paid the maximum allowed what drug laws perhaps should be under Law Enforcement Assistance changed, determine where the most Administration Guidelines of $16.88 per emphasis should be placed, find out what hour. This wll not cover many lawyers' steps might best let Texas handle its overhead. Still, the Project's manuals are drug problem and then assist in putting edited and printed and the courses pro- these steps into motion. (Continued on p. 571

VOICE for the DefenselNovember 1979 7 Ethics of Representing Indigent efendants David Carlock, Dallas

I. Texas Code of Professional 3. Partial payment of fee by in- illegal course of conduct. Responsibility digent client must be disclosed to court. G. DR 3-102 prohibits the sharing of A, ~d~~~~dby supreme court of E. Publicity and dealing with the a legal fee with a nonlawyer. Texas on December 20, 1971. press: H. DR 3-103 prohibits the forming B. Consists of three (3) separate 1. Examples of information that of a partnership with a nonlawyer. parts: cannot be disclosed: I. DR 4-101 prohibits the revealing 1. Canons: statements of axio- a. Character and prior crim- of client confidences except the inten- matic norms, which express the pro- inal record of accused; tion of the client to commit a crime. fessional standards expected of lawyers. b. Status of plea negotia- J. DR 5-102 prohibits counsel from 2. Ethical Considerations: aspir- tions; being a witness in his client's case. ational, representing of objectives toward c. The existence or con- K. DR 5-103 prohibits the acquiring which each member of the profession tents of any confession; of a proprietary interest in a cause of should strive. A lawyer cannot be dis- d. Test results; action. barred for violating an ethical considera- e. Identity and testimony L. DR 5-107 requires disclosure of tion, but they do provide interpretive with respect to Witnesses; the payment of a fee to the client by one guidance for the canons and disciplinary f. Opinions as to guilt or in- other than the client and prohibits regu- rules. nocence. lation of the attorney by the nonclient. 3. Disciplinary Rules: manda- 2. Information that can be dis- M. DR 6-101 prohibits an attorney tory and state the minimum level of con- closed: from handling a matter which he is not duct below which no lawyer can fall a. Information contained in competent to handle and prohibits the without being subject to disciplinary public records; willful or intentional neglect of a matter action. b. A brief description of the entrusted to the attorney. offense and the identity of the victim; N. DR 7-102 prohibits the use of 11. Representing the Indigent De- c. Request for assistance in perjured testimony or false evidence. fendant discovering facts; 0. DR 7-104 prohibits direct com- A. Interview in depth immediately d. Residence, etc. of the munication with a party represented by upon appointment. accused; counsel. 0. Visit in cell as often as possible. e. A description of any P. DR 7-105 prohibits the use of C. Communicate with constantly: physical evidence seized other than a con- threats of criminal charges in a civil 1. Acknowledge appointment to fession. matter. the court with carbon copy to client. 0. DR 7-107 trial publicity-read 2. Acknowledge appointment to Ill. Disciplinary Rules of a Par- for yourself. family and loved ones of client by letter ticular Interest Practitioner R. DR 7-108 prohibits communica- of introduction with carbon copy to A. DR 1-102 prohibits illegal con- tion with thejurors. client. duct involving moralturpitude and con. S. DR 7-1 10 prohibits certain dona- 3. Write witnesses immediately duct involving dishonesty, fraud, deceit tions to and communications with the asking for an appointment with carbon or misrepresentation: Prohibits conduct Presidingjudge. copy to client. that is prejudicial to the administration of T. DR 9-102 prohibits comingling of 4. Demand examining trial and justice and conduct that adversely reflects client's and attorney's funds. Requires so notify client. on an attorney's fitness to practice law. Use of a trust account. 5. Attempt to reduce bond with B. DR 2-101 prohibits self laudatory IV. Code of Professional Respon- carbon copy to client. public comments. sibility is found in Volume I, A 6. Write to client after every C. DR 2-103 prohibits solicitation of of the Texas Revised Civil Statutes setting indicating to him the recom- business and prohibits the assistance of and is found under state &ar ~~l~~, mendation of the District Attorney agd the unauthorized practice of law by a the date of the next setting. person or organization. SECRETARY'S ACTION D. Do not solicit client's business: D. Dr 2-106 prohibits the collection SHEET (CRIMINAL) 1. All right to quote fee to of an illegal or clearly excessive fee. client or family if same requested. E. DR 2-107 requires disclosure of -Acknowledgement of appoint- 2. Inform client or family they the payment of referral fees. ment are free to hire whomever they choose if F. DR 2-1 10 requires court approv- - Judge -Coordina- bond is made and indigency status de- al for a withdrawal and requires with- tor ~ - ~ drawal if the client seeks to pursue an (Continued on p. 501

VOICE for the DefenselNovernber 1979 Record Expunction Forms

records and files relating to the arrest United States Department of Jus- The following set of forms regarding expunged, under Article 55.01, TEX. tice record expunction was submitted by our CODE CRIM. PROC.. because the three Identification Division President, V. Perini, with this note: statutory conditions are satisfied, to-wit: J. Edaarv Hoover Buildina" Attached are three separate items J1 1. Neither an indict- 10th and Pennsylvania which may be useful for VOICE. ment nor an information charging peti- Washington. D.C. 20537 (1) A form for Petition for Expunc- tioner with commission of a felony has 6. Drug Enforcement Administration tion with letters in blank spaces: been presented against Petitioner for an United States Department of Jus- (2) An Order for Expunction with offense arising out of the transaction for letters in blank spaces;and tice which Petitioner was arrested; ldentification Division (3) A sheet with blank spaces show J2 A pleading charging 1405 "I" Street, N.W. ing variable codes and explaining them, Petitioner with commission of a felony Washington, D.C. 20537 the letters for which correspond to the was presented, to-wit: No. J(2)a ; WHEREFORE, Petitioner prays this blank spaces in the Petition and Order. but the court dismissed it because the This form has been adapted for the Court set this petition for a hearing after presentment was made as a result of mis- thirty (30) days of the petition's filing, amendments to the expunction statute take, false information, and other similar that reasonable notice be given by certi- made in the 1979 session of the Legis- reasons indicating absence of probable fied mail, return receipt requested, ac- lature just over. cause at the time of the dismissal to Although I have not had occasion to cording to statute, to each of the entities believe petitioner committed the offense listed in paragraph IV of the petition, and use these forms yet, and therefore I do and because it was void. that, upon hearing, the Court order ex- not know if I may run into a snag with 2. Petitioner has been released and the punction and direct any state agency that courts or prosecutors, I am sending them charge has not resulted in a final convic- sent information concerning the arrest to you anyway, in case you would like tion and is no longer pending, and there to a central federal depository to request to use them. was no court ordered supervision under such depository to return all records and Article 42.13, Code of Criminal Pro- files subject to the Order of Expunction. cedure, 1965, as amended, or a condi- NO. Petitioner prays also that the Court tional discharge under Section 4.12 of the direct the state agencies to return the EX PARTE 5 IN THE Texas Controlled Substances Act (Article 5 records ?nd files subject to expunction, 4476-15, Vernon's Texas Civil Statutes); 5 DISTRICT rather than obliterate them, and that and they be given to the Petitioner, pursuant COURT 3. Petitioner has not been convicted 5 to Article 55.02, 55(a), TEX. CODE of a felony in the five years preceding the 5 CRIM. PROC., or, in the alternative, date of the arrest. COUNTY. direct the agencies to obliterate them, IV. and for general relief. Petitioner TEXAS Petitioner has reason to believe that Respectfully submitted, the following entities have records or L PETITION FOR EXPUNCTION OF files subject to expunction. RECORDS I< ATTORNEY FOR PETITIONER NOW COMES B 1. The Dallas Police Department Petitioner, and moves this Court to order 2014 Main Street expunction of records arising from an ORDER SETTING HEARING DATE Dallas, Texas 75201 The hearing on this Petition for Ex- arrest, pursuant to CHAPTER 55, 2. Director, ldentification Bureau TEXAS CODE OF CRIMINAL PRO- punction of Records is hereby set for Dallas County Sheriff's Department 19 ,at CEDURE (1965). as amended, as follows: Dallas County Government Center o'clock -.M. I. 500 Commerce Street Petitioner is a C , whose Dallas, Texas 75201 JUDGE PRESIDING date of birth is D ,whose 3. Dallas County District Attorney's DATE: address at the time of arrest was Office F Records Division , Dallas County Government Center NO. II. 7th Floor, 500 Commerce Street EX PARTE 5 IN THE Petitioner was arrested in F Dallas, Texas 75201 "6 County on G by the - 4. The Texas Department of Public 5 DISTRICT H and taken tp the- Safety COURT 5805 N. Lamar Street 5 Austin, Texas 78751 A ,5 111. 5. The Federal Bureau of lnvesti- Petitioner COUNTY, TEXAS Petitioner is entitled to have all gation

November 1979flOlCE for the Defense RECORD EXPUNCTION whose address at the time of the arrest tory, including any information with FORMS was E ; respect to these expunction proceedings, from page 9 and the Court found that the arrest be returned to this court or destroved if subject to expunction was on G return is impracticable. in F County by the ORDER FOR EXPUNCTION - H and that following the JUDGE PRESIDING On the day of arrest Petitioner was taken to the - DATE: 19. 19. The Court heard the petition of I IT IS, THEREFORE, ORDERED that for expunction of records pursuant to the Petition is granted and the Court Chapter 55, TEXAS CODE OF CRIMI- hereby directs expunction of records and EXPUNCTION OF RECORDS NAL PROCEDURE, concerning peti- files concerning Petitioner's arrest on Chapter 55, Code of Criminal Procedure tioner's arrest on G by the (As amended 1979.66th Legislature) H by the H The Court found that it had jurisdic- and, further, the Court directs that the VARIABLE CODES FOR PETITION tion, that the time and notice require- state entities named in this order return AND ORDER ments of Article 55.02, TEXAS CODE all records and files subject to this order. A&B OF CRIMINAL PROCEDURE, have been or, if the state entity deems removal and (Petitioner's Full Name) satisfied, that each of the three condi- return of the records and files imprac- tions of Article 55.01, TEXAS CODE OF ticable, it should notify the Court of the (race & sex; not required. CRIMINAL PROCEDURE existed, and reasons therefor and, thereafter, if the but will help avoid confusion) that Petitioner is entitled to an order for Court does not order otherwise, all por- expunction. tions of such records and files that iden- (Petitioner's DOB; The Court further found that there is tify the Petitioner shall be obliterated and not required but helpful) reason to believe that the following enti- a report thereof made to this Court; and ties have records and files subject to this the Court directs the state entities to (Address at time of arrest; order. State aqencies,. to-wit: delete from their public records all index not required but helpful) -I< references to the records and files that are 1. The Texas Department of Public subject to this order. (County of Arrest) Safety IT IS, FURTHER, ORDERED that 5805 N. Lamar the state entities named in this Order, (Date of Arrest) Austin, Texas 78751 which sent information concerning the 2. Dallas County District Attorney's arrest in question to a central federal (Agency making arrest) Office depository, request such depository to Records Division return all records and files subject to this Jail or other (include as Dallas County Government Center order of expunction, which in turn shall much information as you 7th Floor, 500 Commerce Street be transmitted to this court by the state have to aid police find their Dallas, Texas 75201 entity or the entity shall report to this files, including arrest 3. Director, ldentification Bureau court the reason for its failure to do so. numbers, etc.) Dallas County Sheriff's Depart- IT IS, FURTHER, ORDERED that (1) ment upon the receipt of returned records and (where no prosecution follows Dallas County Government Center files subject to this order from state arrest and investigation, e.g. 500 Commerce Street entities and central federal depositories, felony no-bill; and in the case of Dallas, Texas 75201 that the Clerk offer to give the records misdemeanors, where a prosecu- Central federal depositories, to-wit: and files to the Petitioner, and, if the tion did commence and ended by 1. Federal Bureau of Investigation petitioner declines to accept such records dismissal for any reason or acquit- United States Department of Jus- and files, that the Clerk include such tal) tice records and files in the papers of this (21 ldentification Division expuncrion proceeding in the manner (felonies only; petitioner indicted J. Edgar Hoover Building described in §4(c) of Art. 55.02, TEX. but indictment dismissed because 10th &Pennsylvania CODE CRIM. PROC. it was void or for reasons indicat- Washington, D.C. 20537 IT IS. FURTHER, ORDERED that ing P's innocence) 2. Drug Enforcement Administration the clerk of the Court send a certified (8) United States Department of Jusi copy of this order by certified mail, (case number) tice return receipt requested, to all of the ldentification Division entities named in this Order; and the All police and governmental 1405 "I" Street, N.W. Court further orders that the Clerk agencies whichmay have files or Washington, D.C. 20537 include an explanation of the effect of records on the arrest The Court further found that the this Order for the central federal deposi- tories named herein and a request that (Name of Petitioner's Attorney) the records in possession of such deposi- . . .

November 1979NOICE for the Defense Electric Lawrence Wright

fact, a part he has played, since Alabama thus putting Stephens in the surprising Permission to reprint this article war given to is a pioneer in the use of televison in the position of working with Graddick to TCDLA by The American Lawyer. courtroom. In 1976, while still Mobile's ensure his client's electrocution. The district attorney, Graddick prosecuted district attorney and the defense attorney Alabama's new attorney general the first televised trial in the state, and he actually prepared a writ together under knows that voters love the death quickly learned about the gratifying Evans's direction. penalty. exposure that TV offers. From Graddick's point of view, Evans The highlight of Graddick's television was, if not the ideal, perhaps the "least career-and the case that gave him the objectionable" candidate to resume Lawrence Wright is the author of City Children, most political mileage-was his 1977 executions in Alabama, where no one has Country Summer, published in August by Scribner's. prosecution of John Evans and Wayne been put to death since 1965. "If John Ritter, a pair of ex-cons accused of Evans were black, people would be murdering the owner of a pawn shop in screaming that the statute is discrimina- The man they are calling "the next Mobile. Both men pleaded guilty, so their torily applied. But the only thing they George Wallace" in Alabama is not Fob convictions were assured. But Alabama can say is that it is wrong for the state James, the new governor, but Charles law requires a trial in all capital cases, and to take a life-and that old dog won't Graddick, the new attorney general. since this trial was to be televised, hunt." He rates the comparison with the classic Graddick decided to prosecute the case Graddick's enthusiasm for the death Alabama demagogue because of his personally. What made the case especially penalty is part of the hard-line image he association with perhaps the most potent appealing to him was the extraordinary cherishes. He says that the crime rate in political symbol since Wallace stood in behavior of the defendants, who exempli- Mobile County fell while he was district the schoolhouse door: the bright yellow fied Graddick's own view of criminals attorney (actually, it rose substantially); electric chair in Holman Prison. ("I have no intention whatsoever of he boasts that while district attorney he In last year's campaign for attorney ever reforming," Evans boasted to the refused to engage in plea bargaining in general, Graddick swamped a field of shocked jurors). The defendants de- cases involving homicide, robbery, nine candidates, most of whom strongly manded the death penalty, and they burglary, or sale of narcotics. In any case, favored the death penalty; but when the ventriloquated the prosecutor's philoso- the reality matters less than the appear- voters went to the polls, they elected phy on the subject in a manner that ance: to the public, Charlie Graddick the man who had pledged to "fry 'em till would have sounded hysterical or para- was one tough prosecutor. their eyes pop out, and blue and yellow noid in his own mouth. At one point, The image has served him well, smoke pours out their ears." Ritter warned the jurors that if he got although there have been drawbacks, such "When I got out of law school [at less than death, "I could get out in 10 as when the local chapter of the l

VOICE for the DefenselNovernber 1979 11 ELECTRIC CHAIR CHARLIE geous Graddick might have sounded on which he says he intends to reprosecute from paqe 11 the stump, he was outdone by John personally. "I'm gonna continue to try Evans, who was carrying on his own those cases," he says. "I enjoy prose- bizarre campaign from a cell on death cution." the sentence to life without parole in row. Evans told newsmen he was He also enjoys defense work, on occa- a separate hearing. Graddick counters the "ecstatic" about his approaching execu- sion. The occasion involved a Mobile implications of racism with the observa- tion, then scheduled to take place a policeman accused of shooting an tion that, of the nine capital murder month before the September 1978 pri- unarmed black man. Graddick had inves- convictions he obtained while district mary election. He and Graddick shared a tigated the case when he was district attorney in Mobile, seven involved white mutual need for public attention, and attorney and had decided not to prose- defendants. Only one of the sentences they depended on each other to get it- cute, even though the policeman had was mitigated, and that was the sentence Graddick, in order to get elected, and shot and killed another unarmed black of a black man. Evans, to enhance the spectacle of his man six vears earlier. After Graddick In March 1978. Graddick announced death. There was even a certain affection for attorney general. Throughout the between them. Graddick says he has a campaign he was characterized, as he drawerful of "Dear Charlie" letters from "The problem we wryly recalls, as "Electric Chair Charlie.'' Evans, whom he describes as "witty" have in this state," says He did not shrink from carrying his cam- and "amiable" but also "one of the Charlie Graddick, "is paign into the courtroom; in one case world's better con men." that we only have one that he prosecuted in Mobile, he re- The Evans affair had a demoralizing electric chair." portedly greeted the jury panel by effect on the opponents of capital punish- handing out his campaign brochures, ment, who in Alabama make their head- which just happened to have two photos quarters at the Southern Poverty Law was elected attorney general, federal of Reggie Stephens-the defense attorney Center in Montgomery. "This case fuels prosecutors charged the policeman with in the case about to be tried-sitting with the argument for the death penalty by violating the civil rights of the injured defendants that Graddick had convicted. saying that even the criminals want to man, who had been paralyzed from the The judge said the brochure was "ridicu- die," says John Carroll, legal director of waist down. The attorney general lous and revolting," but not prejudicial. the SPLC. Six hours before Evans's defended the policeman (it was the first Stephens, who is also a staunch advocate scheduled electrocution, Carroll engi- criminal defense of his career) and won of the death penalty, cited the incident neered a stay of execution on a motion an acquittal, but he outraged a number of in an appeal. brought by Evans's mother against her blacks in the state. "Where will he draw The irony in Graddick's election, as he son's expressed wish; since his stay, the line?" asked State Senator Michael recognizes, is that the attorney general however, Evans has had a change of heart Figures, the principal foe of the death has little to do with the death penalty in and has joined with Carroll to challenge penalty in the Alabama legislature. "Is Alabama; it is up to local district attor- the constitutionality of Alabama's he going to make a habit out of defending neys to decide what charges to bring. statute. public officials who are charged with a Graddick's campaign was a classic case of Among his friends, John Carroll bears crime? Charlie, and most folks who think a candidate's defining an office so that the woeful distinction of being the man like him, don't really understand that only he can qualify-although in this elec- who clinched Graddick's election by re- their behavior encourages disrespect for tion Graddick's opponents did the favor questing a change of venue in the 1977 law and order." for him, by concentrating their piety on case of Thomas Whisenhant, accused of Figures says Graddick "has a good deal his "irresponsible" stand in favor of the murdering three shop clerks in Mobile. of Klan support. If he does not seek the death penalty. It was in Tuscaloosa, in a Graddick followed the case to Birming- support consciously, he certainly repre- speech to the Jaycees, that he proposed ham, the largest city in the state, where sents the views that the Klan represents; to "fry 'em till their eyes pop out," and press coverage of the trial gave him wide they are philosophically and ideologically after that he really didn't have to say exposure all over north Alabama. The compatible, quite compatible. To the anything else. He claims he was only defense in the case was insanity, and point where Charlie could probably be paraphrasing Louis Nizer's account of an Graddick warned the jurors that if they honored as the honorary Imperial electrocution in his book The implosion found the defendant innocent he might Wizard." Conspiracy, but the press and the other soon be walking the streets. The convic- Graddick seems bewildered by the candidates made the quote stick. "My tion was later overturned because of charges of racism. "It's a shame that the Opponents were trying to picture me to Graddick's inflammatory remarks, but by black community oftentimes fears tough, the public as some bloodthirsty person," that time he was already elected. (Over hard, fair prosecution, because by and he says, but he did nothing to discoura& the years, Graddick has developed a repu- large most victims of criminal acts are that impression, knowing better than his tation for having a large number of his blacks. When I was in the D.A.'s office adversaries the intensity of popular cases reversed on appeal.) we prosecuted police officers in Mobile feeling on the subject of capital punish- As attorney general, Graddick has re- for crimes against blacks. (One of the ment. "They turned an issue for me that fused to turn over to his successor in the cases was a notorious incident in which I could never have done for myself," he Mobile D.A.'s office the files on his white policemen tossed a rope over a savs. favorite capital murder cases-especially tree limb and tied a noose around the the ones that have been overturned, (Continued on p. 511

November 1979NOICE for the Defense LINE 0 BASIC CLIENT INTERVIEW Ronald D. Zipp, Edinburg

I. Preliminary meeting interview as possible (go from broad areas community A. Relax Defendant and gain his to specific and lead Defendant to explain) B. Fee agreement in writing (letter confidence (empathy, confident (but D. Get documents from Defendant or contract) setting out exactly what will not brag), courtesy, interest, truthful, (indictment, jail slip, tickets, etc.) be done (e.g., no appeal, retrial, plea. promptness, efficiency, mutual evalua- E. May tape record interview (pro- investigator costs, case expense) tion) tects attorney) C. No guarantee other than attor- B. Explain attorney-client privilege F. Need basic information (name, ney do best he can (confidential between Defendant and at- date of birth, employment history, D. Suggest get fee in advance torney) Defendant must "level with you" criminal record, facts of case, tests on E. If first court appointed and later C. Advise Defendant not to sign Defendant, evidence recovered by police, retained by Defendant, make sure advise anything or make any statement or not lineups, confession, codefendant, post- court get into line-up or polygraph arrest details, etc.) F. Loyalty to Defendant only not D. Go over possible penalty G. Assess Defendant's physical and to person who may have contributed to E. Watch Defendant's letters from mental assets and liabilities and verbal fees jail (censored) and nonverbal actions while interviewing G. Have security for fee (note, F. Not promise Defendant anything for facts deed, etc.) but to do best H. Check into newspaper accounts H. Suggest power of attorney and G. Be careful in choice of words along with TV, radio, etc. and put with release of medical and mental records on type Defendant interview material signed by Defendant at time sign contract H. Explain processing of criminal I. Suggest have place on interview case (keep it simple and assume Defen- form for Defendant being an alien or VI. Miscellaneous dant knows nothing) speaking only Spanish (arrange for inter- A. Advise police and jail not to talk I. Find out if case discussed with preter and/or judicial recommendation to Defendant about case without attor- different attorney? against deportation) ney present, (personal and telephone J. Write memos in file of each calls) interview, telephone call and visit you or IV. Watch ethical problems B. Keep Defendant informed of investigator have with client (protects A. Attorney interest in case will status and settings (written and oral) attorney) cause unfairness to Defendant 1. Builds trust B. Attorney not competent in that 2. Protects attorney from prob- II. Find out facts in office, only area lems basics in jail C. Attorney or firm to be called as C. Surrender Defendants who have A. Jail walls may be bugged witness arrest warrants pending but try to have B. May file motion to interview D. Attorney representing another bond worked out Defendant in private codefendant (possible written waiver but D. Do not advise Defendant to C. Private, efficient, quiet office is check into carefully) destroy evidence best E. If more than one attorney E. Be careful of potential clients D. May use paralegal investigator handling defense, any defense strategy who can never be pleased and who go E. Get bond information, get De- disagreement submitted to Defendant for from one attorney to attorney criticizing fendant out and then get facts in office decision attorneys F. Get release from any counsel F. Make sure you cover your Ill. All facts needed (full dis- that Defendant may have previously actions closure-better find out now rather obtained or talked to (check out by G. Be careful of mentally deranged than in court as Defendant is pri- telephone too) defendants mary source of facts G. Correct Defendant's misstate- A. Use Defendant's own hand- ment, if know it was made by Defendant, VI I. Conclusion writing (own version of facts) Defendant do it or attorney go to court A. Get trust of Defendant by treat- 1. If Defendant changes story, fattorne~not party perjury) ing courteously but firmly Protects attorney H. Perform duties to Defendant in B. Get all facts from Defendant 2. Shows type Defendant (edu- professional manner (zealous protection C. Put facts to good use on Defen- cated, insanity problems or mental dis- of Defendant's rights) dant's case order) D. Remember, you are dealing with 6. Use fact sheet or checklist and V. Fee and other related docu- persons accused of crime, so be careful so take notes ments that anything you say or do can get you C. Try to get as many facts at first A. Fair and reasonable for charge in into trouble

VOICE for the DefenselNovember 1979 13 TEXAS CONTROLLED SUBSTANCES ACT SCHEDULES (Note: The following Texas Controlled (c) Any of the iollowing opium deri- 5-methoxy-3, 4-methylenedioxy Substances Act schedules are printed as a vatives, their salts, isomers, and salts of amphetamine; service to our members.) isomers, unless specifically excepted, 4-methyl-2.5-dimethoxyam- whenever the existence of these salts, phetamine (Some trade and PURSUANT TO SECTION 2.16 OF Isomers, and salts of isomers is possible other names: 4-methyl-2, 5- ARTICLE 4476.15,V.C.S. THE TEXAS within the specific chemical designation: dimethoxy-alpha-methylphe- CONTROLLED SUBSTANCES ACT (1) Acetorphine; nethylamine; "DOM"; and SCHEDULES ARE HEREBY (2) Acetyldihydrocodeine; "STP."); REPUBLISHED BY FILING WITH THE (3) Benzylmorphine; 3, 4-methylenedioxy ampheta- SECRETARY OF STATE (4) Codeine rnethylbromide; mine; AUGUST 31,1979 (5) Codeine-N-Oxide; 3, 4, 5-trimethoxy ampheta- (6) Cyprenorphine; mine; Sec. 2.03. SCHEDULE I. (a) Schedule (7) Desomorphine; Bufotenine (Some trade and I shall consist of the controlled sub- (8) Dihydromorphine; other names: 3-(beta-Dimethyla- stances listed in this section. (9) Drotebanol; minoethyl)-5-hydroxyindole; 3- (b) Any of the following opiates, (10) Etorphine (except hydrochloride (2-dimethylaminoethyl)-5-indo- including their isomers, esters, ethers, salt); lol; N, N-dimethylserotonin; 5- salts, and salts of isomers, esters, and (11) Heroin; hydroxy-N, N-dimethyltrypta- ethers, unless specifically excepted, (12) Hydromorphinol; mine; mappine.); whenever the existence of these isomers, (13) Methyldesorphine; Diethyltryptamine (Some trade esters, ethers and salts is possible within (14) Meihyldihydromorphine; and other names: N, N-Diethyl- the specific chemical designation: (15) Monoacetylmorphine; tryptamine, DET.); (1) Allylprodine; (16) Morphine rnethylbromide; Dimethyltryptamine (Sorne (2) Benzethidine; (17) Morphine methylsulfonate; trade and other names: DMT.); (3) Betaprodine; (18) Morphine-N-Oxide; Ibogaine (Some trade or other (4) Clonitazene; (19) Myrophine; names: 7-Ethyl-6, 6, beta, 7, 8, (5) Diampromide; (20) Nicocodeine; 9, 10, 12, 13-octahydro-2-me- (6) Diethylthiambutene; (21) Nicomorphine; thoxy-6, 9-methano-5H-pyrido (7) Difenoxin; (22) Normorphine; I,I, 2 azepino 15, 4-bl (8) Dimenoxadol; (23) Pholcodine; indole; tabernanthe iboua.1; (9) Dimethylthiambutene; (24) Thebacon. (12) Lysergic acid diethylamide; (10) Dioxaphetyl butvrate; (13) Marihuana; ~ ~ (dl Unless specifically excepted or (11) Dipipanone; unless listed in another schedule, any (14) Mescaline; (12) Ethylmethylthiambutene. material. com~ound.mixture. . or ore~ara-., (15) Peyote, unless unharvested and (13) Etonitazene; tion, which contains any quantity of the growing in its natural state. (14) Etoxeridine: following hallucinogenic substances, or meaning all parts of the plant i15j ~urethidinej which contains any of its salts, isomers, presently classified botanically (16) Hydroxypethidine; and salts of isomers whenever the as Lophophora, whether growing (17) Ketobemidone; existence of such salts, isomers, and salts or not; the seeds thereof; any (18) Levophenacylmorphan; of isomers is possible within the specific extract from any part of such (19) Meprodine; chemical designation (for purposes of this plant; and every compound, (20) Methadol; paragraph only, the term "isomer" in- manufacture, salt, derivative, (21) Moramide; cludes the optical, position and geometric mixture, or preparation of such (22) Morpheridine; isomers): plant, its seeds, or extracts; (23) Noracymethadol; (1) 4-bromo-2.5-dimethoxyam- (16) N-ethyl-3-piperidyl benzilate; (24) Norlevorphanol; phetamine (Sorne trade or other (17) N-methyl-3-piperidyI benzilate; (25) Normethadone; names: 4-bromo-2. 5-dimethoxy- (18) Psilocybin; (26) Norpipanone; alpha-methylphenethylamine; (19) Psilocin; (27) Phenadoxone; 4-bromo-2.5-DMA.); (20) Tetrahydrocannabinols. (28) Phenampromide; (2) 2, 5-dimethoxyamphetamine Synthetic equivalents of the sub- (29) Phenomorphan; (Some trade or other names: stances contained in the plant, (30) Phenoperidine; 2, 5-dimethoxy-alpha-methyl- or in the resinous extractives of (31) Piritramide; phenethylamine; 2, 5-DMA.); Cannabis, and/or synthetic sub- (32) Proheptazine; (3) 4-methoxyamphetamine (Some stances, derivatives, and their (33) Properidine; trade or other names: 4-meth- isomers with similar chemical (34) Propiram; oxy-alpha-methylphenethyla- structure and pharmacological (35) Trimeperidine; mine; paramethoxyampheta- activity such as the following: (36) Phencyclidine. mine; PMA.); delta-I cis or trans tetrahydro-

November 1979NOICE for the Defense cannabinol, and their optical (Q) l-Phenylcyclohexylamine; methyl-4-phenylpiperidine-4- isomers; (R) I-PiperidinocyclohexaneCar- carboxylic acid; delta-6 cis or trans tetrahydro- bonitrile; (18) Phenazocine; cannabinol, and their optical (S) Thebaine. (19) Piminodine; isomers; (2) Any salt, compound, isomer. (20) Racemethorphan; delta-3, 4 cis or trans tetra- derivative, or preparation thereof which is (21) Racemorphan hydrocannabinol, and its op- chemically equivalent or identical with (dl Phenylacetone and methylamine if tical isomers. any of the substances referred to in para- possessed together with intent to manu- (Since nomenclature of these graph (1) of this subsection, but not facture methamphetamine. substances is not internationally including the isoquinoline alkaloids of (e) Unless listed in another schedule, standardized, compounds of opium; any material, compound, mixture, or these structures, regardless of (3) Opium poppy and poppy straw; preparation which contains any quantity numerical designation of atomic (4) Cocaine, including its salts, of the following substances having a isomers(whether optical,position, or potential for abuse associated with a positions are covered.) ~ ~ (21) Thiophene Analog of Phency- geometric) and salts of such isomer; stimulant effect on the central nervous clidine (Some trade or other coca leaves, and any salt, compound, system: names: l-[l-(2-thienyl) cyclo- derivative, or preparation thereof which is (1) amphetamine, its salts, optical hexyll piperidine; 2-Thienyl chemically equivalent or identical with isomers, and salts of its optical Analog of Phencyclidine; any of these substances, but not including isomers; TPCP.). decocainized coca leaves or extractions (2) methamphetamine, including its (e) Unless specifically excepted or un- which do not contain cocaine or ecgo- salts, isomers, and salts of iso- less listed in another schedule, any mater- nine; mers; ial, compound, mixture, or preparation (5) Concentrate of poppy straw (the (3) Methylphenidate and its salts; which contains any quantity of the fol- crude extract of poppy straw in either and lowing substances having a depressant liquid, solid, or powder form which con- (4) phenmetrazine and its salts. or stimulant effect on the central nervous tains the phenanthrine alkaloids of the (f) Unless listed in another schedule, system, including its salts, isomers, and opium POPPY). any material, compound, mixture, or salts of isomers whenever the existence (6) l-phenylcyclohexylamine; and preparation which contains any quantity of such salts, isomers, and salts of isomers (7) I-Piperidinocyclohexane-Car- of the following substances having a is possible within the specific chemical bonitrile. depressant effect on the central nervous designation: (c) Any of the following opiates, system, including its salts, isomers, and (1) Fenethylline; including their isomers, esters, ethers, salts of isomers whenever the existence (2) Mecloqualone; and salts, and salts of isomers, whenever the of such salts, isomers, and salts of isomers (3) Nitrazepam existence of these isomers, esters, ethers, is possible within the specific chemical Sec. 2.04. SCHEDULE II. (a) Schedule and salts is possible within the specific designation: II shall consist of the controlled sub- chemical designation: (1) methaqualone; stances listed in this section. (1) Alphaprodine; (2) amobarbital; (b) Any of the following substances, (2) Anileridine; (3) secobarbital; except those narcotic drugs listed in other (3) Bezitramide; (4) pentobarbital. schedules, however produced: (4) Dihydrocodeine; Sec. 2.05. SCHEDULE Ill. (a) Sche- (1) Opium and opiate, and any salt, (5) Diphenoxylate; dule Ill shall consist of the controlled compound, derivative, or preparation of (6) Fentanyl; substances listed in this section. opium or opiate, excluding naloxone and (7) Isomethadone; (b) Unless listed in another schedule, its salts, and excluding naltrexone and its (8) Levomethorphan; any material, compound, mixture, or salts, but including the following: (9) Levorphanol; preparation which contains any quantity (A) Raw opium; (10) Metazocine; of the following substances having a (6) Opium extracts; (11) Methadone; potential for abuse associated with a (C) Opium fluid extracts; (12) Methadone-Intermediate,4- depressant effect on the central nervous (D) Powdered opium; cyano-2-dimethylamino-4,4. system: (E) Granulated opium; diphenyl butane; (1) Any compound, mixture, or pre- (F) Tincture of opium; (13) Moramide-Intermediate, 2- paration containing amobarbital, secobar- (G) Codeine; methyl-3-morpholino-I, I-di- bital, pentobarbital or any salt thereof (H) Ethylmorphine; , phenyl-propane-carboxylic acid; and one or more active medicinal ingre- (I) Etorphine hydrochloride; (14) Pethidine; dients which are not listed in any sche- (J) Hydrocodone; (15) Pethidine-Intermediate 4- dule; (K) Hydromorphone; cyano-l-methyl-4-phenylpiperi- (2) Any suppository dosage form (L) Metopon; dine; containing amobarbital, secobarbital, (M) Morphine; (16) Pethidine-1ntermediate-B. ethyl- pentobarbital, or any salt of any of these (N) Oxycodone; 4-phenylpiperidine-4-carboxy- drugs and approved by the Food and (0) Oxymorphone; late; (P) Phencyclidine; (17) Pethidine-lntermediate-C, 1- (Continued on P. 461

VOICE for the DefenselNovernber 1979 C.S. FARMER-THE MAN WHO COULD REVERSE NIAGARA FALLS Charles W. Tessmer, Dallas

Above left are Charles TessrnerandC. S. Farmer not appealed to Cesar, King Agrippa on Februarv 2, 1956. At rightare C.S. Farmer, lke Scarborough fdefendantl, B.M. Bates, Fred have freed him. PHONE, MITCHELL IS THERE. Bruner, and Charles Tessmer-taken at the time And when he had thus spoken, The great Appealer was not always a of the Scarborough thl. the king rose up, and the governor, defender. Farmer was the elected County and Bernice, and they that sat with Attorney of McLennan County when the

Charles Terrmer is a native of Ft.~~ Worth-~ and practicer law in Dailas. He is past president of them: last public hanging in Texas occurred on the Dallas County Criminal Bar Arrociation. And when they were gone in- July 30, 1923. The accused, Roy Mit- and the National Association Criminal Defense side. thev talked between them- chell, had been convicted of several Lawyers. He has beenadirector of TCDLA. Mr. selves,sayjng,~his man doeth noth. wanton lovers lane murders. Although Tessmer is the author of two books and many articles. all pertaining to criminal defense law. ing worthy of death or of bonds. rape was involved, he was not tried for He is also a renowned lecturer. Then said Agrippa unto Festus, that. The case against Mitchell was over- This man might have been set at whelming. PROLOGUE liberty, if he had not appealed to While Mitchell was waiting execution, Since the beginning, Appeal has been a Cesar. [Acts xxvil a local reacher took an interest in Mit- Part of the law. Socrates, found guilty of This is the story of a man who per- chell. After numerous visits, Mitchell the crime of corrupting the minds of fected the art of appeal. professed his Christian faith and said that Young men, was allowed to argue what he had been forgiven and was ready to punishment he should receive from the JIM, WOULD YOU KILL ME die. Athenian court. And similarly, St. Paul, FOR MONEY? After the execution, a lawyer friend who was a Roman citizen.. ao~ealed.. his Farmer and his client. Jim Thomas. an asked Farmer about Mitchell's conver- case. alleged hired killer, were driving from sion and his stated belief that he had been Then said Paul, I stand at Cesar's Nolan County in West Texas, to Farmer's forgiven. Farmer's reply was, ". . . [Ilf judgment seat, where I ought to be office in Waco, Texas. The conversation you can get hell on the phone, Mitchell judged: to the Jews have I done no turned to Farmer's two successful appeals is there." The case is reported at 252 wrong, as thou very well knowest. of Thomas' convictions for murder. The S.W. 11171, decided June 27,1923. For if I be an offender, or have first trial resulted in a death penalty. committed any thing worthy of The second trial was better, only a life FARMER LOOKED LIKE death, I refuse not to die; but if sentence was assessed. Thomas' case had A LAWYER. there be none of these things just been dismissed and he was a free man Mr. Farmer looked like a distinguished whereof these accuse me, no man for the first time in nearly four years. lawyer. He was tall and slender and when may deliver me unto them. I appeal ' Farmer asked Jim if he was satisfied he spoke, people listened. He was a unto Cesar. with the legal services. The answer was fountainhead of legal knowledge. As a Then Festus, when he had "yes"l Then Farmer asked, "Jim, would result of an accident in midlife, he lost conferred with the council, an- you kill me for money?" Thomas mused his left arm. His dress was conservative swered, Hast thou appealed unto the question for a time and replied, with a lawyer's bow tie. His briefcase was Cesar? unto Cesar shalt thou go. "Yes, but it would take a lot of money, a part of his person, as a purse is to a [Acts xxvl and I would give you a chance to outbid woman. The panel of "What's My Line" Paul's appeal was Premature. Had he em'." would have instantly recognized Mr.

November 1979AIOICE for the Defense Farmer's profession. the case and Judge James K. Allen was that he could not allow the case to At the time of his death, he had re- the Dallas County first assistant District become history in the Southwest versed more Texas cases than any living Attorney who prosecuted. They were so Reporter. His honor was a friend of both man. The actual count was forty-one. careful with the trial that the appeal lawyers who were equally at fault and for The Texas Court of Criminal Appeals failed. The case is reported at 344 S.W.2d that reason, he did not wish to hold them average of reversals to affirmances is one 886, decided February 22, 1961. in contempt. As the lawyers attending the out of ten. There were two lives saved trial anxiously awaited his decision, the from death in the electric chair, and over FARMER'S PARTNERS GRAB A judge mounted his bench and for the first 2,000 years as a result of the forty-one FEE AWAY FROM HIM. time in judicial history announced that victories. The writer had the pleasure of the court was hung. Result: there could knowing C.B. Farmer socially and profes- be no appeal and no case book record of FARMER ADMITTED TO THE sionally for fifteen years. Our first this Rabelaisian trial. BAR AT AGE OF NINETEEN. meeting occurred when I was preparing to It was at that moment that Farmer Charles Shuford Farmer was born on try the Raymond McGowan murder case. and his opponent, who had been a farm near Batesville, Mississippi, May The case was complicated and involved stretched out on the counsel table, ap- 19, 1893. He attended Draughan's Busi- my client who had shot and killed his proached the bench and advised his honor ness College in Fort Worth, Texas and estranged wife and her junior-in-years that he had been the victim of a practical moved to Waco in 191 1. He worked as a boyfriend in a Waco motel. The McGow- joke. The case was settled and the only stenographer for Amicable Life Insurance ans were rodeo people and his beautiful case of a hung judge was history. A good Company while "reading" law in the law young wife was a trick-rider who had laugh was had by all at the local tavern. office of "Daddy" Joe Taylor. He was appeared in national rodeos. Her para- admitted to the Bar in 1912 at the age of mour was a Dallas bookkeeper and part- FARMER WAS DISPLEASED nineteen, having had his age disability time bull rider. Feeling in Waco was run- WITH A NOT GUILTY VERDICT. removed so he could take the bar exam- ning high. I went to Farmer's office in Farmer preferred a guilty verdict and ination. He formed a law partnership with search of the man who had reversed one a successful appeal. Farmer said that his older brother, George Hunter Farmer. death penalty and a life sentence the trials and acquittals were just words that He served in the Judge Advocate General second time. See the Thomas murder for soon disappeared forever. He philoso- Department of the Army at Camp hire cases reported at 189 S.W.2d 621 phized: ". . . [El ven if the case is a major McArthur in Waco until the end of World and 203 S.W.2d 536. Mr. Farmer's as- one and gets much newspaper publicity, War I. He was defeated for office of Jus- sociate greeted me, and sensing the it is soon forgotten;" he continued, tice of the Peace in Waco, but was later nature of my visit advised that Mr. "an appellate victory has your name on [in 19221 elected County Attorney for Farmer had been out of pocket for six it and is there forever." He truly believed McLennan County. After leaving office weeks. He also advised that he would be that today's newspaper lights tomorrow's of County Attorney, he formed a law willing to act as local counsel. Mr. Farmer fire. His prediction seems to have come partnership with John 8. Atkinson and was not missing in action and was vexed true. I am able to remember only a Walton D. Taylor in Waco. After the when he learned he had missed a fee. This handful of his many not guilty verdicts. partnership was dissolved, he practiced was the beginning of a long and fruitful His appellate victories are in the books criminal law independently until 1967. association. forever. He suffered a stroke in 1968 and died Farmer participated in the Alaniz December 11, 1972 at age 79. He is THE HUNG COURT. murder for hire trial with Percy Foreman buried in Oakwood Cemetery in Waco. In those days, jokes which lawyers which was occasioned by the murder of Mr. Farmer lost his left arm in an auto- played on one another were the spice Jake Floyd's son by mistake. The case mobile accident when returning from of life. A civil trial was held in Waco was the climax of a Duvall County-type Austin where he had just argued a suc- before a new judge sitting without a jury. political controversy in Jim Wells County. cessful appeal. When he revived from the Since the dispute was not a signfiicant The case of the alleged coconspirator, anesthetic, he demanded to know where one and could be settled, Farmer and his Mario Sapet, was affirmed and is reported his severed arm was. The doctor asked opponent decided to play a joke on the at 266 S.W.2d 154. The verdict in the why he was so concerned. Farmer said judge. They appeared to be drinking and Saper case was 99 years. The Alaniz ". . . [I1 don't care about the arm, but as the trial progressed, so did their ap- case was a difficult one due to the politi- there was a diamond rins- on mv. fincler."- parent intoxication. They exchanged epi- cal climate. Saoet was even denied bail This was the basis for his nickname, taphs that were unprintable. before trial. See 253 S.W.2d 51. Alaniz the "one-armed bandit." This was ap- Many members of the McLennan obtained bail from the appellate court. propriate because he stole so many guilty .County Bar heard of the circus and raced See 253 S.W.2d 50. verdicts by his knowledge of the law on to the courthouse to see what the judge In the Alaniz case, Foreman almost appeal. His reputation was so well known would do. When the evidence was in had a heart attack when Farmer, during that prosecutors and judges made a great and the blasphemous argument was over, jury argument, mentioned that Alaniz effort to allow no error to creep into the the disturbed judge declared a recess and had not testified. Foreman suspected that trial. The Scarborough murder case is consulted his court reporter behind Farmer was trying to lure the District an example. The writer hired Mr. Farmer closed doors. As the reporter read baclc Attorney into a direct comment on the to keep the appellate record during the some of the gutter language exchanges failure of Alaniz to testify. This would trial. Judge Henry King of Dallas tried between the lawyers, the judge realized (Continued on p. 181

VOICE for the DefenselNovernber 1979 17 C. S. FARMER them. See Therrell 1, reported at 279 will not be available in the second trial from page 17 S.W.2d 879 below. and appeal. The presence of the accused at all In Therrell 1, 279 S.W.2d 879, decided stages of the proceedings is constitu- Aoril 20. 1955. the aooellant. . had tionally required. One may not fault Mr. received two yeais in jail for assaulting have been a violation of the old Art. 710, Farmer if he appeared at the motion for a judge. One of Farmer's bills of excep- Tex. Code Crim. Proc. (1925). and re- new trial hearing and his client was else- tion complained that the evidence was sulted in a reversal. Foreman chastised where. Of course, voluntary absence wholly insufficient. The special judge Farmer saying, ". . . [Wel don't need would allow the court to proceed. There who tried the case certified the bill of the error, we are going to get a verdict of was usually no record proof of notice of exception spoke the truth. Presiding not guilty." That was the verdict the jury the hearing to the defendant. Judge Morrison, in his opinion reversing returned. The parties could by law write up their the case, wrote: Farmer participated in the Norris own statement of the evidence. If they If the evidence was not suffi- robbery case tried in Fort Worth, Texas, could not agree, then the duty fell on the cient to warrant the conviction, the along with Byron Matthews, who is now a judge. This method was the sole way to trial judge should have set the con- Tarrant County Criminal District Judge. get a transcript in misdemeanor cases in viction aside. He should never have This was the Western Hills robbery of counties where a court reporter was not approved a bill of exception which Cuban rebels who were in the United furnished. certified that there was insufficient States to buy guns for Fidel Castro. A typical case would be one where the evidence to support the conviction. Norris was acquitted. accused was convicted of D.W.I. Mr. In the absence of a statement of It was Farmer's opinion that the judge Farmer would write up the narrative facts which we might consider and and prosecutor were presumed to know statement of the evidence from memory. from which we might learn the the law [a rebuttable presumption]. He was very generous with how drunk the contrary, we must necessarily He also did not consider it his duty to accused was when he fell out of his car. accept the court's certificate. educate them until their conviction had This caused the District Attorney to not It is hoped that such a de- been lost in the Court of Criminal notice that there was no statement of plorable situation will not be pre- Appeals. evidence that the defendant was driving. sented to this Court again soon. Result: insufficient evidence to convict. Appellant's motion for rehearing THE FARMER TECHNIQUE. This method was good for one reversal in is granted; the order of dismissal Mr. Farmer was usually hired after the every county. Lyons, 299 S.W.2d 948, is set aside; and the judgment is accused had been found guilty and sen- decided March 20, 1957, was reversed now reversed and remanded. tenced to jail. There were three methods for this reason. Therrell was tried again and received he used which resulted in many appellate Farmer always checked out the jury another maximum sentence. Presiding victories. Farmer would: (a) draw formal to see if there had been misconduct of Judge Morrison, in reversing the case for bills of exception; (b) forget to have the the jury. Many lawyers never plowed this the second time, Therrell I/, 289 S.W.2d defendant present when the court heard fertile field of possible error. If a defen- 578 decided April 18, 1956, wrote: the motion for new trial; and (c) write dant can prove (a) the jury received new The prior appeal is reported as his own statement of facts. evidence after they retired to deliberate; Therrell v. State, Tex. Cr. App., When a judge approves a formal bill (b) discussed the defendant's failure to 279 S.W.2d 879. of exception, he certifies that the matters testify; (c) arrived at a verdict by lot; or The court charging the prior of fact and conclusions stated therein are (d) discussed the pardon and parole law conviction was defective because it true and correct. The bills have a time erroneously, the trial judge ordinarily merely stated that the offense was limit and when the bill is filed, the judge must grant a new trial or the appellate one of like character as the primary has a very limited tlme to approve, disap- court will reverse. offense without stating the nature prove, or qualify the bill. Farmer would Farmer's cases covered forty-one of such offense. file nine or ten bills with no error stated years. Of course, there were others which Appellant objected to that por- therein. The last one contained the are not included in this article. tion of the court's charge in which revers~bleerrors. Some examples are: the prior offense was submitted (a) The evidence is insufficient. THE MONKEY LAWYER CASE. for their consideration. [This is error if the appellant does The two appeals of Allen D. Therrell The verdict specifically found not fde a statement of facts.] are evidence that where Farmer had two that the appellant had been con- (b) The district attorney com- reversible errors, he would save one for victed in the prior case. mented on the failure of the ac- , the next trial and appeal. Lawyers who The judgment is reversed and the cused to test~fy. now practice before the Court of Crimi- cause remanded. (c) The defendant was not pre- nal Appeals are not as nervey or confi- When the trial judge, Roy I. Biggs, sent during a part of the trial. dent as Mr. Farmer was. All possible received the opinion, he reputedly said, If the court does not disapprove or errors are generally presented in the brief. "Farmer's done it again." qualify the bill, the appellate court must This means that the trial judge and Dis- Farmer had been notified that the take the statements in the bill as true. trict Attorney will get an advisory opin- Reeves County attorney would try the Some of the judges were not very careful ion if the court finds more than one case for the third time. Therrell showed in reading the bills before approving error. The result is that the errors briefed (Continued on p. 351

November 1979flOICE for the Defense Marvin 0. Teague, Editor

OCTOBER, 1979

CASES FOR. THE WEEK OF OCTOBER 3, 1979.

CCA SPLITS IN PORIER, #56,446, 1033179, 3. Douglas, with J. Odom, joined by Judges Roberts, Phillips and Clinton, dissenting with opinion, OVER APPLICABILITY OF EURKS AND GREENE, DOUBLE JEOPARDY AND DUE COURSE OF LAW, WHEN CASE REVERSED BECAUSE THE NID. WAS INSUFFI- CIENT TO PROVE THE FACTS NECESSARY FOR ENHANCEMENT TO LIFE IMPRISONMENT UNDER SEC. 12.42, -P.C. (Reversed). (Bowie County). En Banc.

COMMENT : STATE BLEW THE REVERSAL HERE AS SHE FAILED TO PROVE THAT THE SECOND PRIOR. CONVICTION ALLEGED FOR ENHANCEMENT WAS FOR AN OFFENSE COMMITTED AFTER THE FIRST PRIOR CONVICTION WAS FINAL; I.E., DID NOT PROVE WHEN THE SECOND PRIOR CONVICTION OCCURRED.

AS TO RETRIAL, THE MAJORITY OF THE CCA RULED THAT A PRIOR CONVICTION USED MERELY TO ENHANCE A D'S PUNISHMENT IS NOT AN "OFFENSE" WITHIN THE MEANING OF THE DOUBLE JEOPARDY CLAUSE. "THE ERROR IERE IN THE IMPROPER PROOF WENT TO THE METHOD OF PROOF, NOT THE VALIDITY OF THE EVENT." THE DISSENTERS FZLT THAT "THE STATE IS NOT ENTITLED TO A SECO~ATTEMPT TO PROVE THE FACTS NECESSARY FOR ENIJANCMENT OF PUNISHi'ENT UNDER SEC. 12.42(d) AFTER HAVING HAD ONE FAIR OPPOPTUMITY TO DO SO AND HAVING FAILED. "

1964 RAPE CONVICTION HELD VOID DUE TO FAILURE OF TCT TO HOLD SEPARATE HEARING ON COMPETENCY ISSUE AND ALSO FOR USING M'NAGHTEN STANDARD TO DETERMINE BOTH "PRESENT INSANITY AND IN- SANITY AT THE TIME OF THE OFFENSE." (J%Jrit Granted). (Palo Pinto County). EX PARTE JOHNSTON, #56,906, 10/3/79, J. Roberts. En Banc. No Dissents.

HELD : "The testimony adduced at the main trial was sufficient to raise a bona fide doubt as to the competency of the D to stand trial, and that the denial of a separate hearing on competency to stand trial was a de- nial of due process of law." Also, "Only the MrMaughten standard was given to the jury to determine both "present insanity" and in- sanity at the time of the offense." "This was an improper standard for determination of present competency to stand trial."

NOTE : The D originally got death but this was comuted to life after the case was affirmed by the CCA. See 396 (2) 404. Another reason why the death penalty should be ruled unconstitutional?

NOTE: there,^ new about your "Significant Decisiqns Repon.'' It is still a unit in the center which you will want to remove and place in a loose leaf binder for ready reference, but it ir not three-hole punched. Just lift it out, ask your sexetary to punch and file it.

VOICE for the DefenselNovember 1979 IR~1 NOTE: All of the remaining cases were affirmed or relief denied.

CCA, PER J. ROBERTS, IN BLOTT, 1158,003-006, 10/3/79, En Banc, No Dissents, RULES THAT WHERE TCT TTMELY GRANTED D NEW TRIALS IN SOME OF HIS CONVICTIONS, THE CCA IS WITHOUT JURISDICTION TO CONSIDER THE APPEALS OF THOSE CASES. COMPARE, HOWEVER, McCLELLAND, 413 (2) 391, not cited in the opinion, and see Art. 40.09, Sec. 12, C.C.P.

COMMENT: As a result of a motor vehicle accident, the D was charged with 3 cases of injury to a child and 1 case of aggravated assault. New trials were granted because the charge to the jury enlarged upon the allega- tions of the indictment and authorized conviction upon proof different from and less than that required to prove the allegations in those in- dictments alleging injury to a child.

However, the fact that those 3 cases were erroneously tried, due to the jury charge given, did not render the aggravated assault conviction void. Evid. was ruled suff. regarding the aggravated assault convic- tion. (Kendall County).

PANEL OF CCA, PER J. ODOM, IN NASTU, 1158,059, 10/3/79, Panel 1,3, 2nd Quarter 1979, REJECTS D'S CONTENTIONS REGARDING WARRANTLESS SEARCHES OF TRUNK OF AUTOMOBILE, AN3 SEIZURES MADE INSIDE AN APARTMENT. AS TO THE FORMER, PANEL HELD, "WE WILL NOT APPLY CHADWICK AND SANDERS RETROACTIVELY TO THIS CASE." (Affirmed). (Harris Countyj.

CCA AGAIN, IN WILLIAMS V. PLACKE, 1161,629, 10/3/79, P.J. Onion, En Banc, No dissents, REAFFIRMS ORDUNEZ V. BEAN AND RULES THAT "SINCE AN APPEAL IS AVAILABLE TO D IN THE EVENT OF HIS CONVICTION TO TEST ANY POSSIBLE DENIAL TO HIS RIGHT TO A SPEEDY TRIAL, EITHER ON A STATUTORY OR CONSTITUTIONAL. BASIS, MANDAMUS IS NOT AVAILABLE TO D TO COMPEL THE DIS- CRETIONARY ACTION WHICH IS VESTED IN THE TRIAL COURT PURSUANT TO THE PROVISIONS OF THE SPEEDY TRIAL ACT." (Writ of Mandamus Denied). (Bastrop County).

CCA, PER J. DLLY, WITH J. ROBERTS NOT PARTICIPATING, AGAIN, IN GREEN, 1161,914, 10/3/79, REAFFIRMS RULE THAT IN DEATH PENAmY CASES, ALMOST EVERYTHING, INCLUDING THE SLOP JAR, IS ADMISSIBLE AT THE PUNISHMENT STAGE OF THE TRIAL PND TCT DID NOT ABUSE ITS DISCRETION BY ADMITTING EVIDENCE THAT D HAD COMMITTED A SIMILAR MURDER APPROXIMATELY ONE MONTH AFTER THE CHARGED OFFENSE. (Death Penalty Case Affirmed). (Harris County). En Xanc.

GARY LYLES APPEALS HIS BAIL BOND FORFEITURE. MUST NOW PAY AN ADDITIONAL $2,500.00. LYLES, #61,699, 10/3/79, Panel #I, 3rd Quarter 1979. HELD, AS NO AUTHORITY FOR A REMIT- TITURE APPEARED IN THIS CASE, TCT WAS WITHOUT AUTHORITY TO ORDER FORFEITURE REDUCED TO $5,000.00 FROM $7,500.00. (Affirmed). (Harris County). J. Odom.

CASES FOR THE WEEK OF OCTOBER 10,1979

FLOYD RAY WHITE, 1157,273, 10/10/79, J. Odom, En Banc, No Dissents, GAINS RELIEF IN XIS CASE WHEN CCA TAKES JUDICIAL KNOWLEDGE OF HIS WRIT CASE AND RULES THAT INDICTNENT, USED IN ENHANCEMENT CONVICTION, WAS VOID. (Reversed on DMRH). (Bexar County). , COMMENT: It appears that the D slipped one by the CCA on this one as he apparent ly had his direct appeal working at which time he filed his writ of habeas corpus and the writ got heard and decided before his direct appe did.

The opinion does not say what kind of Indictment or for what offense it was void and as the writ case was decided per curiam, I don't guess we will ever know. Floyd White, however, does know. J. CLINTON, IN NURPHY, 1157,681, 10/10/79, Panel Ill, 2nd Quarter 1979, AGAIN WORKS OUT ON THE LAW OF FXTRANEOUS OFFENSES AND RULES THKT THE ADMISSION OF EXTRANEOUS OFFENSE EVI- DENCE FOR THE PURPOSES OF GENERAZ, IMPEACHMENT IS UNJUSTIFIABLY PREJUDICIAL, AND HOLDS THAT THE ADMISSION OF SUCH EVIDENCE FOR THAT PURPOSE HERE CONSTITUTED ERROR. (Reversed). (Dallas County).

COMMENT : The D, on trial for aggravated robbery, testified and put on a defense of alibi. He corroborated this evidence with testimony from a cohabi- tant, but the TJ allowed the State to admit into evidence another robbery, which involved the D and his cohabitant.

HELD : ,IThe extraneous transaction was not shown to be relevant to the dis- puted issues raised by the alibi testimony and was therefore not ad- missible for the purpose of refuting it on on the issue of identity."

"An issue regarding the general credibility of a witness in a criminal trial is not a material issue in the sense that it will justify the admission of inherently prejudicial evidence of details of an extraneous offense comitted by the witness ."

"We agree with D that the effect of this evidence was to show the jury that the witnesses were "bad people," and the D was a "criminal general- ly," and therefore unworthy of belief ." (Reversed).

OLD P.C. OFFENSE OF ROBBERY BY FIREARMS AND NEW P.C. OFFENSE OF AGGRAVATED ROBBERY, TO- GETHER WITH D'S ELECTION TO BE PUNISHED UNDDER THE NEW P.C..SCREWS UP TJ IN HICKS, #57,917, 10/10/79, 3. Roberts, Panel #I, 2nd Quarter 1979, AND D GETS REVERSAL BECAUSE THE JURY CHARGE AUTHORIZED TIE JURY TO CONVICT ON THEORIES NOT ALLEGED IN THE INDICTMENT. (Re- versed). (Harris County).

COMMENT : Here, the D was indicted for robbery by firearms. However, the TJ charged the jury to convict D on any of the theories of aggravated robbery set out in Chpater 29 of the N.P.C. Held, Can't do.

J. ROBERTS ALSO WORKS OUT ON THE LAW OF REPUTATION WITNESSES AND RULES THAT STATE'S WITNESSES WERE NOT SHOWN TO BE QUALIFIED TO TESTIFY TO THE REPUTATION OF THE D. WATSON, 1158,062, 10/10/79, Panel ill, 2nd Quarter 1979. (Harris County). (Reversed).

COMMENT: , Here, the proper predicate was not laid; i.e., there was no evidence that the witness had discussed D's reputation with anyone who knew him or with any member of the community.

"In fact, she [the witness] denied talking to anyone who knew the D." "Talking to any police officers with respect to this D' does not convey that the offi- cers knew anything about the D." "Reading any documents with respect to this D" is in no way equivalent to discussing his reputation in his commdnity ."

Furthermore, as to another witness, he flunked the test because "bad reputation must not be based solely on a discussion of the alleged events for which the D is then being tried."

VOICE for the DefenselNovember 1979 IR-3 HELD: "It has been said that courts thatadhere to the cmon law rule, (that pennits proof of character by reputation, but not by the witnesses' opinion, has been criticized severely), as this court does, do so because reputation evidence is largely opinion evidence in disguise." "If this 6e true, the evidence must wear a better disguise than the ones produced in this case."

STATE'S FAILURE TO DOUBLE CHECK HER PLEADINGS IN SMALLWOOD, 11158,098, 10/10/79, J. Clinton Panel 1111, 2nd Quarter, RESULTS IN REVERSIBLE ERROR AS THE STATE FAILED TO PROVE POSSES- SION OF THE PROPERTY WAS IN ALBERT TUREGANO AS ALLEGED IN THE INDICTMENT. (Reversed). (Travis County).

COMMENT : Here, the D was on trial for robbery. The Indictment alleged that "while in the course of committing theft of three pairs of dress slacks from Dillard's Dept. Store, with intent to obtain and maintain control of the said three pairs of dress slacks, knowingly and inten- tionally cause bodily injury to Albert J. Turengano." Turegano was a dock worker at Dillard's who got into a struggle with the D when he and a security guard tried to retrieve the property.

HELD : "V.T. C.A., P.C., 5 1.07 (a) (24) & (28) provides three ways by which the State might have shown that Turegano was the owner of the property taken: that he had (1) title; (2) possession; or (3) a greater right to possession than appellant. Here the evidence clearly showed that Dillard's Department Store had "title" to the property, not Turegano. Similarly, the testimony showed that appellant, not Turegano, had possession of the three pairs of slacks. Consequently, the third and remaining manner in which it might have been shown that Turegano was the "owner" was that he somehow had a greater right to possession of the property than did appellant. This Court has held, however, that the "greater right to possession" concept of ownership applies only in those cases where both the "owner" and the "actor" have some sort of joint interest in the property, which is not the case herein. We are therefore of the opinion that the State did not prove that the slacks were stolen from Turegano, in any ownership capacity or status as al- leged in the indictment ."

NOTE: Compare McGee, 572 (2) 723, and Commons, No. 54,485, 5/17/78.

STATE'S FAILURE TO PROVE BOTH D'S INTENT TO PROMOTE OR ASSIST THE COMMISSION OF THE BURGLA AS WELL AS HIS SOLICITATION, ENCOURAGEMENT, DIRECTION, AID, OR ATTEMPTED AID OF GUTIERREZ IN THE COMMISSION OF THE BURGLARY RESULTS IN VALDEZ, 11158,241, 10/10/79, J. Clinton, Panel 111, 2nd Ouarter 1979, GETTING A REVERSAL. (Reversed) . (Bee County) .

COMMENTS: The facts showed that the D and Gutierrez went to a bowling alley and then left with the D leaving first. Needless to say, Gutierrez broke into an automobile and when the D looked back, "Lupe was coming to my car with the speaker box that the tapes were in." Gutierrez exonerated the D under the law of parties, as did D's confession, although the jury was charged on the law of parties.

As to recent possession, the "D's explanation of his possession of the recently stolen tapes was reasonable and uncontradicted; this, coupled with his action in returning the tapes in his possession to their right- ful owner render his recent possession of the tapes insufficient to rrant an inference of guilt."

November 1979AIOICE for the Defense -- ....~ ..

"The evidence could not reasonably be interpreted by the jury as show- ing participation in the event sufficient to render the D guilty as a party.'' Further, "A person's "accessory" conduct is no longer recognized under Texas law as conduct making him a party to the c.rime which the accused was here charged. " (Reversed) .

, 1/59 201 & 202 10/10/79 J. Roberts, Panel #3, 3rd Quarter 1979, GETS ONE OF . (Rev. & Aff'd.). (Harris County).

COMMENT: D received two (2) probations: 1 for forgery and 1 for unauthorized use of a motor vehicle. His probations were revoked for theft by check. The FORGERY conviction was voided as the Indictment was void as it failed to allege that the instrument in question purported to be the act of another who did not authorize the act. See MINIX,- 579 (2) 466. As to t\e theft by check allegation, regarding the other probation, it appears the only evidence, besides showing two (2) checks were deposited and cashed at a bank, was a handwriting expert. This was enough, by the preponderance of the evidence rule,to affirm.

See also MORREN, 1/61,649, 10/10/79, J. Clinton, Panel #2, 3rd Quarter 1979, where Indictment voided for failure to include the statutory phrase "who did not authorize that act" or to use words conveying the samemeaning of the sense of the statutory words. NOTE: This was another revocation of probation case whereby the original conviction was voided for being predicated upon a void indictment.

EX PARTE FRANK ROGER MILLARD, #61,495, 10/10/79, SMRH, J. Clinton, En Banc, Unanimous, See June , 1979 S.D.R., p. 3 , GAINS RELIEF BUT FOR ANOTHER REASON. "The Indictment is fatally defective for yet another reason." "That is, on its face it does not meet one of the essential requisites of an indictment prescribed by Art. 21.01, C.C.P., to wit: "7. The offense must be set forth in plain and intelligible words." "The indictment does not attribute. . . acts and conduct, or any others constituting an attempt, to peti- tioner, Frank Roger Millard. " (Writ Granted) . (Dallas County).

HAVING ALL THE EVIDENCE, INCLUDING THE TRANSCRIPTION OF THE COURT REPORTER'SNOTES OF THE GUILTY PLEA HEARmG, BEFOE CCRAPP, ENABLES D DINNERY, #61,650, 10/10/79, J. Clinton, with J. Douglas dissenting with opinion, Panel #2, 3rd Quarter 1979, TO OBTAIN REVERSAL OF HIS REVOCAT~~~OF PROBATION ORDER. (~eversed). (Dallas County).

COMMENT: This had to do with the original conviction for which the D got robation. The D was charged with Burglary by comitting theft. However, al! of the papers reflected only that the D, with intent to cmit theft, en- tered a habifation. It appears, also, that the admonishments, which got down to the nitty gritty, were made by his own attorney and not the court.

FOR AGGRAVATEDPROSTITUTION FAILED TO ALLEGE A c *12. (Reversed) . (Dallas County).

VOICE for the DefenselNovember 1979 IR-5 THEFT INDICTMENT, IN HARRIS, 1161,920, 10/10/79, J. Douglas, Panel 112, 3rd Quarter 1979, ALSO RULED FUNDAMENTALLY DEFECTIVE AS IT, HAYING ALLEGED MERELY "PROPERTY," IS INSUFFI- CIENT TO GIVE A PROPER PROPERTY JlESCRIPTION OF WHAT WAS STOLEN. (Reversed). (Harris County).

COMMENT : Indictment alleged merely that D did ". . . appropriate property, namely property, owned by RAY PRITCHARD. . .,?

DID SOME OKLAHOMA LA!JYER GOOF UP IN EX PARTE THOMAS ELLIS, 1161,413, 10/10/79, J. Douglas, Panel 112, 3rd Ouarter 19791 The D was convicted in 1970 in North Carolina for hijacking and, while serving that sentence, escaped, but was later apprehended and convicted for that escape offense with it to be served consecutively to the original conviction. The D later again escaped but was apprehended by Oklahoma authorities who, acting under -THE UNIFORM DISPOSITION OF CRIMINAL CASES UPON THEIR MERITS ACT, disposed of an Oklahoma charge together with the North Carolina convictions and charges except the one which was to be served consecutively. "No mention was made of the 1972 escape charge and conviction." (Affirmed). (Lubbock County).

COMNENT : Texas does not have the Uniform Disposition of Criminal Cases Upon Their Merits Act. See, however, Sec. 12.45, P.C.

IF TCT DECLINES, IF TRIAL IS TO COURT, FOR LEIATEVER REASON, GOOD, BAD OR INDIFFERENT, TO GRANT D MISDEMEANOR PROBATION, THIS DECISION IS NOT APPEALABLE TO CCRAPP. FOR THIS REA- SON, PARKS', 1161,505, 10/10/79, J. T. Davis, Panel 113, 3rd Quarter 1979, APPEAL IS DIS- MISSED. (Dismissed). (Dallas County).

NOTE : ART. 42.13, C.C.P., has been repealed effective August 27, 1979, so when you are dealing with a misdemeanor probation case, consult the new statute.

J. CLINTON RULES IN PROCHASKA, 1161,926 6 927, 10/10/79, Panel 112, 3rd Quarter 1979, -THAT IF THERE IS NO PLEA BARGAIN, "HAVING VOLUNTARILY AND UNDERSTANDABLY EWERED A PLEA OF GUILTY TO THE TWO INDICTMENTS CHARGING UIM WITH FELONY OFFENSES OF AUTO THEFT AND BURGLARY OF A HABITATION, RESPECTIVELY, D WAIVED HIS CLAIM OF DEPRIVATION OF CONST'L GUARANTEES AGAINST UNREASONABLE SEARCH AND SEIZURF AND AGAINST ADMISSION OF ASSERTED DEFECTIVE CON- FESSIONS." CF. ART. 44.02, C.C.P. (Affirmed). (Harris County).

See also Cleveland 1162,153, 10/31/79, P. 3. Onion, Panel #l,4th Quarter 1979, where that Panel ruled that such cases as Helms, 484 (2) 925, are still the law and have not been superseded Art. 44.02, C.C.P.

CASES FOR THE WEEK OF OCTOBER 17. 1979

OZUNA, 1155,448, 4/4/79, J. Roberts, SMRH DENIED 10/17/79, En Banc, with J. Douglas, join- ed by Judges Dally and W.C. Davis, dissenting with opinion, SEE April , 1979, S.D.R., p. 8 , AGAIN RFVERSED AS "EVEN IF WE COULD ATTRIBUTE THE RADIO MESSAGES TO D OR GARZA AS D'S ACCOMPLICE, WE DO NOT REGARD THESE UTTERANCES ("LOOK OUT, THERE IS SMOKE" AND "CUT OFF AT THE RED LIGHT"), STANDING ALONE, AS FACTS SUFFICIENT TO MAKE REASONABLE AN INVESTI- GATIVE STOP OF D." "THESE EVENTS ARE AS CONSISTENT WITH INNOCENT ACTIVITY AS WITH CRIMINAL ACTIVITY, AND THEREFORE WILL NOT JUSTIFY AN INVESTIGATIVE STOP." (SMRH Denied). (Atascosa County). ,

J. W.C. DAVIS, IN ADRIAN, //57,088, 10/17/79, Panel $1, 4th Quarter, RULES IN THIS ARSON CASE THAT "THE STATE HAS FAILED TO PROVE THE CORPUS DELICTI OF ARSON IN THAT THFRF: IS NO EVIDENCE TO CORROBORATE D'S CONFESSION ESTABLISHING THAT THE FIRE WAS CAUSED BY A CRIMINAL ACT." (Reversed). (Nueces County).

HELD, "IT IS WELL ESTABLISHED THAT THE EXTRAJUDICIAL CONFESSION ALONE IS INSUFFI- CLIQIT TO SUSTA'IN A CONVICTION." "THE CONFESSION MUST BE CORROBORATED BY EVIDENCE THAT A CRIME HAS BEEN COMMITTED, I.E., THE CORPUS DELECTI MlST BE PROVEN." "TO ESTABLISH THE CORPUS DELECTI OF ARSON, THE STATE MUST SHOW THAT THE HOUSE WAS DESIGNEDLY SET ON FIRE BY SOMEONE." (Reversed).

J. ODOM, IN MY WORDS, IN CUDE, 1158,126, 10/17/79, Panel #1, 3rd Quarter 1979, with J. Dally concurring in the result without opinion, TELLS TJS, WHERE COURT APPOINTED COUNSEL IS GETTING HIS LUNCH EATEN, SEE AND COMPARE RUTH, 522 (2) 517, THAT IF THEY JUST SIT THEW THE CONVICTION WILL BE REVERSED FOR INEFFECTIVE ASSISTANCE OF COUNSEL AS WAS THE CASE HERE. (Reversed). (Bexar County).

COMMENT: The D's mother was called to testify to D's alibi defense but when the State got through with her on cross-examination and on rebuttal, "there was evidence of many extraneous offenses by D, including possession of marijuana, possession of a sawed-off shotgun, theft of an automobile, and references to past robberies and arrests and to planned future robberies." D was on trial for aggravated robbery in this case.

HELD : "Even though the violation here was not so extreme as in -Ruth, supra, it nevertheless was sufficient to have denied D the fair trial and ef- fective assistance of counsel to which he was entitled." (Reversed).

LOCKHART, 1160, 216, See March, S.D.R., p. 7 , The "Booby case," SILL GETS HIS REVER- SAL BUT FOR A DIFFERENT REASON ON SMRH, 10/17/79, J. Phillips HELD, AS WDICTMENT AL- LEGED MERELY MURDER BY MALPRACTICE AND DID NOT ALLEGE IT WAS DOIE WITH MALICE AFORETHOUGHT, THE MAXIMUM POSSIBLE PUNISHMENT WAS FIVE (5) YEARS UNDER ART. 1200, O.P.C., AND "BECAUSE THE PUNISHMENT ASSESSED WAS NOT AUTHORIZED BY LAW," REVERSAL IS WARRANTED. (mH Denied). (Harris County).

NOTE: In a footnote, J. Phillips, in commenting on the Constitutionality of the statute and the sufficiency of the Indictment, by implication, & my words, when he said "There are serious questions concerning the constitutionality of the statute and the sufficiency of the indictment which need not be discussed in view of the disposition of the cause," may have told the State to take this "booby" case and nibble on it.

ONE OF OUR MEMBERS MAKES IT. EX PARTE LOUIS DUGAS, JR., GETS HIS WRIT GRANTED, 1162,345, 10/17/79, J. Odom, En Banc, Unanimous. (Writ Granted). (Orange County).

COMMENT: This case points out the importance that in contempt cases, it is ex- tremely important that all of the i's be dotted and all of the t's be crossed as here an Order, dated May 18, 1979, was issued by the TCtJ for Louis to appear in Court on May 21, 1979, and, because he didn't, he was arrested and released to reappear on 6/1/79 to show cause why he should not be held in contempt for failure to obey the 5/18/79 Order. He was thereafter held in contempt and, pursuant to Art. 1911a, Sec. 2(c), V.A.C.S., was again held in contempt from which this writ flowed.

HELD : "The show cause order, 5/21/79, however, did not allege any violation of an order issued on 5/21/79." ''The contempt order of 7/23/79, [the Art. 1911a hearing], does not recite a finding that D failed to appear in violation of the 5/18/79 order, as alleged in the show cause order." "Also, the acts alleged, compared to those found, are at variance." "The show cause order alleged a failure to appear while the contempt order found a failure and refusal to select a jury." (Writ Granted).

J. W.C. DAVIS, IN ALEXANDER, #55,916, 10/17/79, Panel #l, 3rd Quarter 1979, RULES THAT THE EVIDENCE IS INSUFFICIENT TO CORROBORATE THE TESTIMONY OF AN ACCOMPLICE WITNESS; THUS THE EVIDENCE IS INSUFFICIENT TO SHOW THAT THE D POSSESSED THE HEROIN. (~eversed). (Montgomery County).

VOICE for the DefenselNovember 1979 IR-7 CWT: Law enforcement agents, after surveillance of a residence, Copinion does not state whose ~esidence),entered same and arrested a bunch of people and found heroin on some of those persons. They copped out and said c en," the Appellant, and "Bobbie" were 6ringing more heroin. "Bob6 ie ," the driver, and "Ben, the Appellant, " a passenger, arrived shortly thereafter and were greeted by being arrested with one packet found in "Bobbie's bra and another packet found underneath her wig."

HELD : Strippina.. - the accomplice witness' testimony and the hearsav from the case, "there was no evidence adduced at trial to corroborate the testi- mony of the accomplice witness as required by Art. 38.14, C.C.P., and Art. 4476-15, Sec. 1.02(8), V.A.T.C.S." (Reversed).

CCA, IN STEWART, ON DMRH, 1157,270, 10/17/79, P.J. Onion, En Banc, Unanimous, AGAIN RULES THAT D NOT ENTITLED TO CALL WITS AT THE GUILT-INNOCENCE STAGE OF THE TRIAL TO TESTIFY AS TO D'S GENERAL REPUTATION FOR TRUTH AND VERACITY. CF. O'BRYAN, #59,731 , WHERE IT WAS RULED PERMISSIBLE FOR THE STATE TO PUT ON REPUTATION WITNESS TO ANOTHER STATE'S WITNESS' REPUTATION FOR TRUTH AND VERACITY WHERE THAT WIT WAS ImEACHED ON CROSS-EXAMINATION. (DMRH Overruled). (Midland County).

CADD' S REVERSAL, SEE March, 197 , S.D.R., p.17, DOESN'T STAND ON SMRH AND CASE AF- FIRMED. #55,259, 10/17/79, J. T. Davis, En Banc, Unanimous. (Midland County).

COMMENT: As in m, 569 (2) 901, the CCA upheld this prosecutor, on voir dire, telling the jury panel that if there is a finding of guilty, "There may also be evidence about a prior criminal record, assuming that it is an individual who has one."

NOTE: If you represent an indigent and want an expert to do something, it is imperative you set out in your motion, the who you want, why you want him or her, what you plan to accomplish, when you want it done, and where you want it done, etc., rules. See this case and Hawnett, 578 (2) 699.

To prove forgery by possession, the State here showed the D possessed the instrument and used handwriting witnesses to prove it was the D's handwriting. There was no need to charge on the law of circumstantial evidence as the only question was the D's intent.

CCA also ruled that case did not fall within Art. 38.27, C.C.P. as testimony of wits showed that D presented the check and this was suf- ficient to corroborate the testimony of the handwriting expert.

A panel originally ruled there was fundamental error in the court's charge to the jury, but, on rehearing, the charge given was one re- quested and submitted by the D. "An accused cannot invite error and then complain thereof." "If the D requests a charge and that charge is given just as requested, he is in no position to complain of any error therein. " (Af f inned).

November 1979NOICE for the Defense LEO BURBIN RICE' S RNERSAL DOESN1'T SWD AS IT IS AFFIRMED ON .MRH. SEE, March, 1979, S.D.R., p.10. 1156,698, 10/17/79, J. Douglas, En Banc, with J. Phillips dissenting for reasons stated in the original opinion. (Affirmed on SMRH). (Brazoria County).

HELD, "We hold that the presence of D with the accomplices before and after the robbery, coupled with the other cited circumstances, ID made a highly sus- picious telephone call shortly after arriving at the trailer camp after looking over the scene, he was observed installing radio equipment in a stolen van which was used in the robbery, he left the trailer with the rob- bers shortly before the robbery, four men participated in the robbery, he returned with them shortly after the robbery and was present when the fruits of the robberv were brought- from the vehicle into the house trailerl.- - is sufficient to corroborate the testimony of the accomplices." (Affirmed).

CABALLERO'SREVERSAL, SEE April, 1979, S.D.R., p.32, ALSODOESN'T STANDON SMRH, 1156,745, 10/17/79, AS CASE REMANDED TO TCT TO EMPANEL A JURY AND CONDUCT A COMPETENCY HEARING WITHIN 90 DAYS TO DETERMINE WHETHER D WAS COMPETENT TO STAND TRIAL AT THE TIME OF HIS TRIAL IN SEPTEMBER, 1976. (Abated and Remanded). (Bexar County) . SEE ALSO BRANDON, 1159,348, 4/25/79. "We conclude that a retrospective determination of D's competency to stand trial is feasible."

COMMENT: Although ruled error, the admission of a statement by the D to a Dr. Schroeder during a competency examina- tion was ruled harmless error due to D'S confession to the same facts as were testified to by Schroeder. See Art. 46.02(3)(g), C.C.P.

J. DOUGLAS, WRITING FOR A SIX (6) MAN MAJORITY IN GILLETT, 1157,303, 10/17/79, with J.Roberts dissenting joined by Judges Philli~sand Clinton Fn Ranc RULES THAT IN A STORE PUTS A SIGN ON A MIRROR IN A FITTING ROOM WHICH SAYS: "THREE GA&METSPER C-m - TING ROOM," AND "THESE FITTING ROOMS ARE UNDER SURVEILLANCE BY FEMALE SECURITY," AND "WE PROSECUTE SHOPLIFTING," EVEN THOUGH THE SIGN IS ONLY 6 x 12 INCHES, NOT PROMINENTLY DTS- EAYEDBUT IS APPWDE~ TO ANOTHER NOTICE, THERE IS NO RIGHT OF PRIVACY; THUS OBSERYA- TIONS MADE BY A SECURITY GUARD DO NOT CONSTITUTE A SEARCH. (Affirmed). (Harris County).

COMMENT: By so holding, the Majority avoided having to write on the applicability 01 Art, 38.23, C.C.P. to private searches. However, J. Roberts did write on this issue and his opinion is well worth reading if you have an arest, search and seizure by a private person. See also Vol. 5, No. 2 and Vol. 2, No. 4, Search and Seizure Law Report.

I THOUGHT THIS WAS CUTE. IN WHITTEN, 1160,989, 10/17/79, J. Dally, En Banc, on mH- Denied, See June , 1979, S.D.R., p. 12, 3. Dally said in part:

As to admonishments per Art. 26.13, C.C.P., "We refuse to create a presumption that defendants listen to, acknowledge, and understand what a prosecutor, or even the court, chooses to say to the jury Ion voir dire examination]." What about defense counsel? , CASES FOR THE WEEK OF OCTOBER 24, 1979

FRANKLIN, 1/57,348, 10/24/79, See June , 1979, S.D .R., p. 12, GETS REVERSAL ON REHEAR- ING, J. ODOM, BECAUSE THE TRIAL COURT ALLOWED THE STATE TO CROSS-EXAMINE D REGARDING HIS FAILURE TO TESTIFY AT PRE-TRIAL HEARINGS ABOUT THE EXCULPATORY MATTERS TO WHICH HE TESTI- FIED AT TRIAL. (Reversed on DMRH). (Nueces County).

VOICE for the DefenselNovember 1979 IR-9 HELD : "We hold the State's impeachment of D on the basis of his failure to testify to his exculpatory story at the pretrial hearings was improper for all of the reasons set out in Part I of the dissenting opinion on original submission." "Specifically, we hold that the impeachment was improper under state law because it was in violation of Art. 38.08, and also because it was not authorized by the rule allowing evidence of a witness' silence under circumstances in which he would be expected to speak out." "We also hold the State's use of that circumstance was an improper use of his pretrial silence and his exercise of his privilege against self-incrimination under the 5th and 14th Amendments to the U.S. Constitution, and under Art. 1, Sec. 10 of the Texas Constitution." (Reversed). J. Dally, joined by Judges Douglas and W. C. Davis, dis- sented with opinion.

SELLERS, 1357,498, 10/24/79, J. T. Davis, with 3. Douglas dissenting with opinion, -ALSO GETS REVERSAL WHEN IT WAS HELD THAT THE TCT COMMITTED REVERSIBLE, NOT HARMLESS ERROR, BY ADMITTING HEARSAY TESTIMONY OF A DEPUTY SHERIFF OF UTAH RELATIVE TO A STATEMENT HE HEARD ANOTHER PERSON MAKE. (Reversed). (Hunt County) .

COMMENT : This error really makes about as much legal sense as the error committed by the TJ in Franklin, supra. Here, Utah law officials went to the D's then residence in Utah to arrest him and to search the D's trailer house and to also take custody of the D's kids. The D was not home or present. When they went to a trailer house belonging to a Shirley Watson, who had the D's children, a hazzle of sorts took place and, after 30 minutes of discussion, Watson made mention about the law wanting the guns and stated: "The woman was not shot, she was suffocated." It was admitting this statement into evidence that, caused reversible error to occur.

HELD : This was not a spontaneous utterance or an admission against Watson's penal interest; thus, not an exception to the hearsay rule of evidence. "We find that because of the reasons set out above the statement does not qualify under the spontaneous utterance exception to the hearsay rule and further lacks the indicia of reliability necessary to sup- plant the absence of the historical criteria for the exception." As to the penal interest, "The statement does not on its face show to be against Watson's penal interest." "The statement is not an admission of guilt, nor does it sho-n Watson committed any crime."

DOCTRINE OF CURATIVE ADMISSIBILITY FAILS TO GET D PEMBERTON, #61,861, 10/24/79, J. Clinton, and 3. Douglas did not dissent, AND CASE REVERSED BECAUSE THE TRIAL COURT COMMITTED RE- VERSIBLE ERROR BY ALLOWING THE PROSECUTOR TO ASK AN IMPROPER "HAVE YOU HEARD" QUESTION ON CROSS EXAMINATION OF ONE OF D'S REPUTATION WITS AT THE PUNISHMENT STAGE OF THE PROCEEDINGS. (Reversed). (Denton County).

COMMENT: The questions asked the witnesses were as follows: , Have you heard that Donald Pemberton in fact is absent without leave from the Army?

If it were shown to you that in fact he was absent without leave from the Army, would that cause you to change your opinion about him?

November 1979AIOICE for the Defense HELD : "The State may not ask whether the witness had personal knowledge of the act, nor may the question be framed so as to imply that the act has actually been emitted." See Moffett, 555 (2) 437; and Sisson, 561 (2) 197. Further, the testimony was not tied directly or indirect- ly to the elements of the case, but was instead in the nature of reputa- tion or character evidence, a purely collateral matter.

DEAN BUCHANAN, 453 (2) 479, RETURNS TO CCRAPP, BUT FARES BETTER THIS TIME, 1162,653, 10/24/79, J. Clinton, En Banc, Unanimous, AS HIS CONVICTION IS RULED VOID BECAUSE HE WAS NOT PROVIDED AN EXAMINING TRIAL ,AS REQUIRED BY ART. 2338-1, SEC. 6 (j), V.A.T .S., BEFORE THE INDICTMENT WAS RETURNED BY THE GRAND JURY. (Writ Granted). (Tarrant County).

RmEMBER, IF YOU FILE A WRIT IN FEDERAL COURT AND THAT COURT HAS WTERTAINED AND RETAINED JURSIDICTION OF THE MATTER, EX PBTE McNEIL'S CASE, 1154,451, 10/24/79, J. Dally, En Banc, Unanimous, -IS ORDERED DIS- MISSED. (~ismissed). (Harris County).

NOTE: The opinion does not state why the D was hack in State court but it probably had to do with exhaustion of State remedies. When confronted with a motion to dismiss for failure to exhaust, read Ogle v. Estelle, 592 ~.2d.1264. as it is one of the better cases on this point.

MAJORITY OF CCRAPP, IN PHILLIPS, 1156,071, 10/24/79, 3. W.C. Davis, with J. Odom dissenting with Opinion, joined by Judges Roberts and Phillips, and with J. Clinton also dissenting with opinion, also joined by Judges Roberts and Phillips, SAYS THEY HAVE FIGURED IT OUT. 14 YEARS OR YOUNGER MEANS THE SAME THING AS THOSE WHO HAVE ATTAINED THEIR 15TH BIRTHDAY; THUS, ONE WHO IS 14 YEARS, 1 MONTH AND 5 MONTHS OLD IS 15 YEARS OR YOUNGER. (Affirmed). (Cor~ellCounty).

COMMENT: As best I can figure out, those kids who can get their parents to read this opinion should get two birthday parties in 1 year and a lot of football coaches should be able to use this opinion to argue why one of their athletes is not really above the age of 18 on September 1.

LUCK'S REVERSAL, SEE May, 1979, S.D.R., p. 17 DOESN'T MAKE IT PAST SMRH AND CASE AFFIRMED, #57,365, 10/24/79, J. T. Davis, En Banc, with Judge Phillips, joined by Judges Roberts and Clinton, dissenting with opinion, AND MAJORITY OF CCA HOLDS THAT "WE CAN FIND NO mIDENCE PRESENTED AT TRIAI WHICH WOULD RAISE THE ISSUE THAT AT TIME OF THE OFFENSE, D WAS ACTING UNDER THE IMMEDIATE INFLUENCE OF SUDDEN PASSION ARISING FROM AN ADE- QLMT CAUSE." THUS, NO ERROR IN NOT GIVING CHARGE ON VOLUITTARY MANSLAUGHTER. (Affirmed).

NOTE: In construing Mullaney v. Wilbur, Majority of CCA ruled that the charge, when viewed as a whole, placed the burden on the State to show beyond a reasonable doubt that D was not acting in self-defense.

Also, evidence conLerning dismemberment and disposal of deceased's body was properly admitted as res gestae of the murder.

IN WILLIAMS, 1158,270, 10/24/79, J. Clinton, Panel 112, 4th Quarter 1979, PANEL RULED THAT IN REFER~cETO THE OFFENSE OF AGGRAVATED ASSAULT ON A PEACE OFFICER, IF THE OFFICER IS DE FACT0 THOUGH NOT DE JURE THAT IS GOOD ENOUGH. SEC. 22.02 (a) (a), P.C., IS ALSO NOT VIOLATIVE OF EQUAL PROTECTION CLAUSES OR VIOLATIVE OF UNREASONABLE CLASSIFICATION. (Af- firmed. (Castro County).

VOICE for the DefenselNovember 1979 1~11 NO CHARGE ON CIRCUMSTANTIAL EVIDENCE NECESSARY WHERE FACTS, IN ADAMS, #58,371, 10/24/79, J. Odom, Panel #2, 4th Quarter 1979, SHOWED THAT WHEN OFFICERS ARRIVED AT THE STORE, THEY OBSERVED D WALKING AWAY FROM THE STORE AND AT A SHORT DISTANCE FROM A BROKEN WJ1TIlGT.I, TJHERE OTHER ITEMS ALSO FOUND, AND D WAS CARRYING A JAR OF PENNIES WHICH CAME FROM THE STORE. (Affirmed). (Harris County).

CCA SPLITS 6-3 IN EX PARTE SANDERS, #60,221, 10/24/79, J. T. Davis, with J. Clinton, joined by Judges Roberts and Phillips, dissenting with opinion, AND MAJORITY RULES THAT D'S FAIL- URE TO OBJECT WHEN THE COMPLAINED OF PRIOR CONVICTION WAS OFFERED INTO EVIDENCE CONSTITUTED A WAIVER OF THE CLAIMED RIGHT. (Writ Denied). (Tarrant County).

COMMENT: Originally, a panel granted relief, See March , 1979, S.D .R., p. 2 , as the issue of the denial of counsel at a probation revocation hearing had not yet been established as a defect of const'l magnitude; thus, his failure to object at that time to its introduction did not consti- tute waiver.

Here, a Majority ruled that Petitioner had the burden of proving why his failure to object to the use of the prior conviction did not con- stitute a waiver.

Me thinks, like J. Clinton, see his dissent, that the Majority is ask- ing of trial counsel, at that time, to be a little too knowledgeable of the law regarding Mempa v. Rhay and McConnell v. Rhay and how they would affect Texas law and procedure regarding revocation of probations.

CASES FOR THE WEEK OF OCTOBER 31, 1979

D MEDLOCK, #56,067 & 068, 10/31/79, J. W.C. Davis, Panel #3, 1st Quarter 1979, in this double killing case, GETS REVERSAL AS CCA'S PANEL FINDS THAT THE EVIDENCE WAS SUFFICIENT TO RAISE THE ISSUE OF VOLUNTARY MANSLAUGHTER; I.E., THAT D MAY HAVE ACTED UNDER THE IM- MEDIATE INFLUENCE OF SUDDEN PASSION. (Reversed). (Dallas County).

COMMESTT: It appears from the facts that the D and the deceased had a normal middle class American marriage in that it was volatile, the D had filed for divorce twice, with the deceased telling the D he was going to kill her if she saw an attorney again, and the D refused to let her doctor release any information on her as she feared the deceased would take out ap insurance policy on her. On the night in question, D went to Mr. B's, a private club, after choir practice at church, to meet her son and daughter-in-law. However, she was not to enjoy the pleasure of their company as the deceased stared at her, said bad words to her, grabbed her by the neck, whereupon the D like any good housewife, reached inside her purse and started shooting; killing the deceased and one waitress.

The D was put to trial for both killings.

November 1979AlOICE for the Defense NOTE: This appears to be a very good case, factually, where all of the action occurred before the shooting and the shooting was anti-climatic, to use to get a charge on voluntary manslaughter as the decision stressed the events leading up to the killing rather than the killing itself.

FREDDIE ROY THOMAS, #58,424, 10/31/79, J. Dally, Panel #3, 4th Quarter, GETS NEW TRIAL AS ONE OF HIS TWJ PRIOR CONVICTIONS IS VOID AS IT WAS PREDICATED UPON A FUNDAMENTALLY DEFEC- TIVE THEFT INDICTMENT FOR FAILURE TO ALLEGE "WITHOUT THE EFFECTIVE CONSENT OF THE OWNER." (Reversed). (Travis County).

COMMENT: The facts showed that the D removed a screen from the bedroom window of the Alfred home, walked to the front of the Pierce residence, put the Alfred screen down on the Pierce lawn, walked into the Pierce driveway and back to the front yard, talked to Mrs. Pierce, and walked away and was shortly thereafter apprehended by the police.

HELD : "We conclude that, although the circumstances show that D probably in- tended to enter the Alfred house with intent to commit theft, his be- havior after removal of the screen was sufficiently inexplicable that reasonable doubt remains as to what his specific criminal intentions actually were ."

AND, ANOTHER DEATH PENALTY CASE GOES DOWN THE TUBE, FOR FAILURE OF THE TJ TO CONDUCT AN EVIDENTIARY HEARING ON THE D'S MOTION FOR CHANGE OF VENUE IN O'BRIENT, #61,870, 10/31/79, J. Odom, En Banc, Unanimous. (Reversed). (McLennan County).

COMMENT : Here, the D presented his motion for change of venue before trial; a final ruling was postponed until after jury selection on the court's own direction, at which time the motion was denied.

HELD : "me facts ofathis case demonstrate the trial court's refusal to con- duct a hearing on the motion for a change of venue denied D his rights under the laws of this State and constituted a deprivation of due pro- cess. " ,(Reversed) .

VOICE for the DefenselNovember 1979 FAILURE OF FELONY INFORMATION, (D WAIVED INDICTMENT), TO INCLUDE THE MAGIC WORDS "IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS," RENDERS CONVICTION vom IN EX PARTE COOPER, 1162,645, 10/31/79, J. Dally, En Banc, IJnanimous.

COMMENT: It appears the D was in a footrace on this one as the D.A. was ap- parently going to use this conviction to enhance punishment in another case.

INDICTMENT FOR FAILURE TO STOP AND XENDER AID RENDERED VOID IN EX PARTE ROGERS, #62,774, 10131179, J. Roberts, En Banc, Unanimous, FOR FAILURE TO ALLEGE A CULPABLE MENTAL STATE. (Writ Granted). THUS, CONVICTION IS VOID. (Tarrant County).

INDICTMENT ALLEGED IN PERTINENT PART:

"on or about the 11th day of December 1977, was then and there the driver of, and person in control of, a motor vehicle in Tarrant County, Texas, and such motor vehicle, then and there being driven by and under the control of the said Jimmy Paul Rogers, did then and there strike and collide with another vehicle containing a person, to-wit: S-----M------, thereby causing injury to the said S-----M----- and he, the said Jhy Paul Rogers, did fail, neglect, and refuse to render to the said S------M------all necessary aid:. . . ,,

J. W.C. DAVIS, IN SIMPKINS, #55,787, 10131179, Panel #I, 4th Quarter 1979, DISCUSSES WHY D NOT ENTITLED TO CHARGES ON NEGLIGENT HOMICIDE, AGGXAVATED ASSAULT AND INYOLUNTARY MAN- SLAUGHTER. (Af f inned). (Tarrant County) .

FOR ANOTHER EXTRANEOUS OFFENSE CASE, FOR THE STATE THIS TIME, SEE BERRY, 1156,051, lO/3l/79, J. W. C. Davis, Panel #3, 1st Quarter 1979. ALSO, IF ETIDENCE IS ADMITTED FOR ONE PURPOSE ONLY BUT THE JURY CONSIDERS IT FOR ANOTHER PURPOSE, THIS IS NOT JURY MISCONDUCT AND AD CANNOT GET A NEW TRIAL AS IF THE JUROR SAYS HE DID WHAT HE IES NOT SUPPOSED TO, THIS CONSTITUTES AN ATTEMPT TO IMPEACH HIS VERDICT. "IT IS NOT PERMISSIBLE TO DPEACH THE VERDICT OF THE JURY BY THE TESTIMONY OF JURORS SHOWING WHAT USE WAS WEOF TESTIMONY LEGALLY BEFORE THEM." (Affirmed). (Dallas County).

REMOVING A SIX-PACK AND TWO PILL BOTTLES FROM AN AUTOMOBILE, EVEN WHEN IN A PLEASANT MOOD AND FOR CURIOSITY, WILL GET YOU CONVICTED OF BURGLARY OF AMOTOR VEHICLE. SIMMONS, 1157,675, 10131179, 3. W. C. Davis, Panel 1113, 1st Quarter 1979.

A CULPABLE METJTAL STATE IS NOT AN ESSENTIAL ELEMENT OF INVOLUNTARY MANSLAUGHTER. SEE HARDIE, 1159,337, 10131179, J. Phillips, Panel 112, 3rd Quarter 1979. THUS, STATE NEED NOT ALLEGE "KNOWINGLY AND INTENTIONALLY." 16 YEARS, WITH A PRIOR FELONY, IS ALSO NOT CRUEL AND UNUSUAL PUNISHMENT. (Affirmed). (Bexar County).

HANDLING OF REVOCATION OF PROBATION CASES CAUSES SPLIT AMONG CCA IN STANFIELD, /159,945, 10/31/79, J. Douglas,. En Banc, on SMRH, with P. J. Onion, joined 6y Judges Roberts, Phillips and Clinton, dissenting with opinion. See May, 1979, S.D.R., p. 27. (Affirmed). (Dallas County).

COMMENT : Here, the D had a motion to revoke for failure to report filed against him, a hearing was held, he pled true, and the court found he so vio- lated his probation, but then ordered: "This hearing is passed generally." Due to a subsequent arrest of the D, he was brought back into court and at that time the TJ consummated the earlier hearing and sentenced the D.

What shocked 3. Onion was the fact that "the guise of advisement may not be used to accomplish what the law forbids." However, it appears to have worked in this case. i

November 1979AfOICE for the Defense IN A RECEIVING A CREDIT CARD CASE, REMEMBER, THERE MUST BE AN ALLEGATION IN THE INDICTMENT OR INFO~TATION THAT THE D RECEIYED THE CREDIT CARD "WITH XNOWLEDGE THAT IT WAS STOLEN." EX PARTE CLARK, 1160,073, 10/31/79, J. Phillips, En Banc, Unanimous. (SM(H Overruled). (Dallas County)

PANEL 1t3, 1ST QUARTER 1979, ALL WORK OUT ON THE LAW OF PRFSUMPTIONS IN MADRID, #60,116, 10/31/79, J. W. C. Davis, with J. Dally concurring with opinion, and with J. Clinton dis- senting with opinion. (Affirmed). (El Paso County) .

COMMENT: The main contention on appeal had to do with the jury argument of the prosecutor in commenting on the "presumption of sanity" and the defense of insanity submitted by the defendant in the case.

The opinions are dedicated to a discussion of the law of presump- tions, true presumptions, rules of substantive law, and insanity as an affirmative defense.

3. CLINTON ASKS IN RINEHART, 1/56,069, 10/31/79, Panel 113, 1st Ouarter, THE 0: WHETHER ARSON IS A FIRST DEGREE FELONY WHEN DEATH IS SUFFERED BY THE PERSON NAMED IN THE INDICT- MENT BY REASON OF THE COMMISSION OF THE OFFENSE? AND ANSWRS SAME: ARSON IS A FEST DEGREE FELONY ONLY WHEN "BODILY INJURY LESS THAN DEATH" IS SUFFERED. (~eversed). (Dallas County).

COMMENT: Here, the D was indicted in that he was accused that he did "inten- tionally start a fire with the intent to damage and destroy a habita- tion, without the effective consent of . . . the owner of said habita- tion, and by reason of the commission of the aforesaid offense. . . bodily injury was suffered by Donna Ruth Brown.'' However, apparently, Donna Ruth Brown not only suffered bodily injury but also suffered death as a result of the fire.

HELD : Arson is:

First Degree Felony: When bodily injury less than death occurs

Second Degree Felony: When death occurs.

Murder: Causes the death.

Capital Murder: Intended to cause the death.

VOICE for the DefenselNovember 1979 AMERICAN PLANT FOOD COW. RETURNS TO CCA, #55,602, 9/26/79, J. Douglas, En Banc, with Judges Onion, Roberts, Phillips, and T. Davis dissenting without opinion, BUT DOESN'T FAFE ANY BETTER THIS TIME THAN LAST. SEE 508 (2) 598. (Affirmed). (Harris County).

J. DALLY RULES IN ESCOBAR, ET AL , #61,631, 9/26/79, Panel #l, 3rd Quarter 1979, -THAT EVERYTHING WAS MIiY BUENO IN THIS BOND FORFEITURE CASE. (Affirmed). (Bexar County).

CCA SUPRISES D'S ATTYS AND THEIR CLIENT IN O'BRYAN, #59,731, 9/26/79, J. W.C. Davis, with J. Clinton dissenting to ruling on 12th ground of error, AS CASE NOT DECIDED ON HALLOWEEN. (Death Penalty case Affirmed) . (Harris County).

COMMENT: This is the case the new media claims killed Halloween.

The majority believed that "A more calculated and cold-blooded crime than the one for which D was convicted can hardly be imagined."

I kidded Honorable Ell Gray, an office associate, by telling him the members of the CCA apparently had not had the opportunity to read his case of Chevallier, 404 (2) 36, when the last statements were made. C. S. FARMER which the State's case depends, no man shall be exacted or taken from page 18 and unless the foot-tracks were from him as a penalty for crime, made by the lbrandl tennis shoes up at Farmer's Waco office to discuss until his guilt has been first estab- the State's case fails for the want of arrangements for the third trial. Farmer's lished in accordance with law. Such identification of the appellant. grateful client had a monkey with him is the right guaranteed every citi- These tennis shoes were of no when he arrived. He advised Farmer that zen. It is the duty and respon- special type, character, or design. he had a new lawyer, the monkey. There- sibility of the courts to enforce and but were of a make generally sold, fore, he would not need Farmer's ser- preserve that right. It is in the used, and obtainable in playing performance of that duty and in vices. The state won the third trial: basketball. There is no testi- full consciousness of that respon- Therrell died before the trial could begin. . . . mony showing any special charac- sibility we reach the conclusions The error which caused the second teristic or peculiarity in both the herein expressed. reversal was in the complaint at the first tracks and the shoes, as would The evidence being insufficient trial. This error was saved and not raised authorize the conclusion that the in the first appeal. Had Farmer raised the to authorize the conviction, the tracks were made by only the judgment of the trial court re- error, the prosecutor would have cured is [brandl shoes and could not have versed and the cause remanded. the error before the second trial by filing been made by other tennis shoes. The state refused to dismiss the indict- a new complaint. Farmer's maxim was [TI he proof fails to measure up ment and held Thomas in jail claiming that if you have a loaded double barreled to the requirements of the law as they would find more evidence and try shotgun, fire the first barrel and save the would authorize the conclusion second. Thomas again. Mr. Farmer was a happy that the tracks were made by only man as he saved a man from death in MURDER FOR HIRE. the [brand] shoes. . . . [TI here the chair. Meanwhile, Thomas languished Jim Thomas was convicted of the yet remains to be established the in jail. murder of Dr. and Mrs. Hunt in Little- fact that appellant was the wearer Thomas was retried in Nolan County. field, Lamb County, Texas. The jury of those shoes when the tracks See Thomas 11, 203 S.W.2d 536, decided assessed Thomas penalty at death in the were made. Appellant did not own June 28, 1947. Thomas did better this electric chair. Thomas, 189 S.W.2d 621. the shoes. No one saw him wearing time, the jury gave him life. There was decided October 3, 1945. The killer those shoes. The State was under really no new evidence in this second parked in the alley behind the Hunt resi- the burden, then, of establishing, at trial. Commissioner Krueger pointed out dence. Dr. and Mrs. Hunt were asleep. least, that he could have worn that in a circumstantial case, the evidence Hunt was shot in the head and Mrs. Hunt them. must be wholly inconsistent with any was bludgeoned to death. The Hunts' We have searched this record other hypothesis than guilt. In reversing six-year-old daughter testified a man in vain for any testimony showing. the case, he said. met her in the house and put her in a or tending to show, the size of the ' The fact remains . . . that if the closet. She did not identify Thomas. shoe worn, or capable of being shoes were in that condition on The case had been transferred to Daw- worn, by the appellant. . . . Since the night in question, they could son County because of publicity. appellant was under arrest and in not have made the tracks found Thomas, at the time, was on parole to custody, the State appears to have at the Hunt home. . . . The State Galveston County. The case was circum- been in position to have obtained sought to discharge Litsl burden stantial. I paraphrase portions of Commis- a pair of appellant's shoes or to by providing that there was a buf- sioner Lloyd Davidson's opinion: know the size of shoe worn by him, fing machine and a wire brush in Appellant was in Littlefield the and thus to have supplied this the . . . garage to which appellant night of the murder . . . in [a1 important detail. The fact that the had access and therefore that position to have committed the State did not do so is a circum- appellant scratched or buffed the murder. Such fact, however, is stance against it. shoes after the commission of the equally true of all other inhabi- . . . By no hypothesis of reason- offense. To connect appellant with tants of Littlefield at that time. ing can it be said that the State has the commission of the offense by Proof, merely, that one has the shown that appellant was the means of the shoes, we will need to opportunity or is in position to wearer of the shoes which made the infer or presume that since he had commit a crime is not sufficient tracks. access to the shoes he used them to constitute proof of the commis- What has been said touching the and then upon that presumption, sion of the crime. similarity of the foot-prints to the we must base the further presump- [TI he state must place appellant , [brandl shoes as being general tion that he buffed the shoes after at the scene of the crime, to estab- rather than specific applies equally the offense was committed and lish which, reliance is had upon to the tire tracks. There is nothing returned them to the closet. It is the tracks-foot and automobile. to indicate that the tire track was a well recognized rule of evidence [The daughter1 made no effort made exclusively by a lbrandl that one presumption cannot be to identify appellant as the man tire on the.. . automobile. based upon another presumption. she saw in the Hunt home. There **I** In regard to the short piece of is no question, then, but that the . . . We only know that in this string found . . . in the . . . garage. tracks form the basis of, and upon land of ours the life and libertv of lContinued on p. 361

VOICE for the DefenselNovember 1979 C. S. FARMER TWO WIVES. in determining whether particular act from page 35 Busby, 230 S.W. 419, decided April relied upon by the state was committed. 27, 1921, by Judge Morrow, involved a charge of bigamy. The defense was THE CONFESSION THAT DID mistake of fact, i.e., Busby believed he NOT CONFESS. the expert witness testified re- was divorced from wife no. 1 when he Tom Mullins, 225 S.W. 164, decided peatedly mat he could not swear married wife no. 2. In this case, Judge November 10, 1920, had received 15 that it was a part of a similar string Morrow refused to allow Busby's sister years for rape after a jury trial. The case found on the Hunt bed. to testify that she told defendant Busby was reversed because the defendant's The damage to the . . . car is of that a lawyer had told her wife no. 1 was confession of the rape of a child was little value since [a witness] testi- divorced. This evidence, though hearsay exculpatory as to penetration of the fied that she ran or backed the car and normally inadmissible, was not female genital. This being a necessary into a curb . . . The fact that the hearsay as it was not offered for the element of rape required the court to . . . car had a [brand] tire on the truth. This proof would have shown tell the jury in its charge that the state right front wheel while the car that Busby's mistake of fact. must disprove that exculpatory portion. entered the alley in the rear of the as the state had used the confession as Hunt home had a [brand] tire on THOU SHALT NOT COMMIT evidence. The state in this appeal was the left front wheel does not ADULTERY: THE CASE OF THE represented by Col. Alvin M. Owsley. strengthen the fact that it was the SEVENTH COMMANDMENT. The appellate judge who wrote the opin- . . . automobile which had made the Bereal, 225 S.W. 552, decided ion was Presiding Judge William L. tracks in the alley on the night November 10, 1920. Judge Munroe Davidson. in question. was reversed because he would not allow Having reached the conclusion evidence that Bereal killed the deceased THE FOR OR AGAINST that the evidence is insufficient to when he met him for the first time after CONFESSION. sustain the conviction, the judg- Bereal had been told that the deceased Lewis White was convicted of the ment of the trial court is reversed had "plowed with his heffer." The lady murder of his wife in Travis County. and the cause remanded. was Bereal's wife. This evidence might 289 S.W.2d 279, decided April 18, 1956. Thomas walked out of the Nolan have caused the jury to convict of the The life sentence verdict was reversed County jail a free man. Thomas there- lesser crime of manslaughter. Farmer had because the trial judge failed to instruct after became a collector of debts. He had written the brief, but had agreed to not the jury that if White was told by the a brochure for sales purposes which con- have his name on a case that saved a police that the confession could be used sisted of newspaper stories about his man nine years. Mr. Farmer told the for or against him, the jury must disre- alleged acts of violence. The debtor was writer ". . . [I1 will never ghost another gard the confession as any evidence shown the brochure and a deadline would brief." in the case. The confession stated that be set by Thomas for payment of the White had choked his wife to death. bill. The debtor would usually pay and THE ELECTION CASE. Farmer argued on appeal that the statute, Thomas' cut was 50 percent. Thomas In Crosslin, 235 S.W. 905, decided art. 727, Tex. Code Crim. Proc. (1925) was eventually shot to death in Oklahoma December 21, 1921, Farmer ghosted stated that the accused must be warned trying to collect a debt. another brief, notwithstanding his stand that any statement the accused makes in the Bereal, supra, case. Crosslin was may be used against him. The statute THE DIVORCE CASE. convicted of statutory rape and sentenced does not state that the confession may Faubian, 203 S.W. 897. decided May to nine years. The error was refusing to be used for the accused. The Court of 25, 1918. In this case, the trial judge, compel the District Attorney to elect Criminal Appeals, in an opinion by Lloyd J.W. Taylor, allowed the District Attor- which of fifty acts of intercourse he Davidson, agreed with Farmer. The point ney to question the defendant as to would rely on for a conviction. of law was that the warning that the whether he had been named corespon- Similarly, in Bates, 305 S.W.2d 366, confession could be used for the accused dent in the complaining witness' divorce decided June 19, 1957, the defendant was an improper inducement. The state- case. This question was held to be im- was convicted of statutory rape of his ment could not in fact be used for the proper and prejudicial where the trial was stepdaughter and received life imprison- accused if the prosecutor objected. for attempted murder and the convic- ment. The complaining witness testified There being a conflict in the evidence tion by the jury was for aggravated as- to numerous acts of sexual intercourse as to the police warning, it was the trial sault with penalty of $400.00 fine. Mr. with defendant over a period of two judge's duty to submit the issue of fact Farmer argued on appeal that all Faubian years. Under the law, where more than to the jury. had done was fire off two shots to scare one act of intercourse is shown, Farmer the complainant. Therefore, the romantic was not only entitled to have the court TWEEDLE DEE TWEEDLE DUM. question about the complainant's wife compel the state to elect upon which Tweedle was convicted of cattle theft and Faubian was not relevant and pre- act it sought a conviction, but also an and was awarded two years in prison, judicial since Faubian answered "no" instruction from the court limiting the 218 S.W.2d 846, decided March 30, when the question was asked. Result: jury's consideration of the other acts of 1949. Commissioner Krueger reversed the

Farmer's first appellate victory at age" intercourse for the purpose for which conviction because the trial judge allowed twentyseven. they were admitted, namely, to aid them commendatory proof about the state's

November 1979AIOICE for the Defense prime witness, who had taken Tweedle's March 24, 1920, the conviction was for to allow the jury to consider the defense confession. The evidence about his over- burglary, the penalty allotted was two of possession of liquor for a medicinal seas service, honolable discharge, and no years. Cummings claimed he purchased purpose. criminal record bolstered the state's the property that was taken in the main witness by giving him a super burglary. This evidence necessitated an FARMER'S CONTEMPT OF credibility. instruction that if Cummings bought the COURT CASE. I remember this case when Jackson, property in good faith, he was not Pat Morris was an Anderson County 507 S.W.2d 231 was tried. I argued guilty of burglary. Judge Munroe refused bootlegger. Ex Parte Morris, 215 S.W. Tweedle dse tweedle dum in the Court to allow the jury to decide the issue. 2d 598, decided October 20, 1948, of Criminal Appeals and Jackson's con- Result: another reversal for Judge Mun- S.Ct. of Texas. It was claimed he had vio- viction and twenty-five year sentence for roe. lated an injunction not to possess liquor rape was reversed on March 27, 1974, for the purpose of sale. The evidence for bolstering a witness. THE XVlll AMENDMENT CASE. presented did not establish Morris pos- In discussing this Tweedle case, In Bedre, 301 S.W.2d 95, decided sessed two pints of whiskey found in an Farmer said he was changing his style. February 20. 1954, the prosecution failed old car in a garage where Morris was often "The second claim of error that I pre- to Prove the was dry. The seen. The order of $100.00 fine and three sent& was held also reversible. In the ruled that since the local option election days in jail was reversed. future, I am goingto save my second result had been declared by an election error if I believe it to be good for the Contest lawsuit and judgment of the A CASE OF IMPROPER NOTICE. next trial if there be one."This is exactly district court, no publication Of the The Court of Criminal Appeals said in what he did in Mr. Therrell's cases who election result was necessary. The case Garrett, 261 S.W.2d 574, decided we have met. was affirmed and Farmer had lost. but October 28, 1953, that Garrett was en- had he? Farmer fired his second barrel titled to know from the charge how he THE BOOZER, GUNTOTER, in the motion for rehearing. Judge K.K. was negligent in causing the death of a ROWER, FUSSER AND Woodley reversed the court's opinion and in an automobile accident. Mr. 'FIGHTER. wrote: Garrett never had to serve the ninety- Gandy, 129 S.W.2d 661, decided A reexamination of the agreed day jail sentence, as the case was dis- May 31, 1939. was Mr. Farmer's first statement of facts sustains appel- missed, venture out of his county McLennan. lant's contention that there is no The trial judge was L~xSmith of Lime- evidence to identify him as the A QUESTION OF DATES. stone County. Gandy had cut the victim same person who was the defen- Chadwick was convicted of pos- during a fight and said, "let the s.0.b. dant in the prior convictions plead sessionof liquor for sale, 252 s.w.2d die." Gandy claimed he acted in self- forenhancement. 165, decided October 29, 1952. The defense of himself and his brother. The The facts being insufficient to problem was that the information alleged Court of Criminal Appeals reversed the sustain the allegations of prior the date of the offense to be 3/7/19452, one year verdict because the District convictions used to enhance the Since the appealwas decidedon Attorney asked Gandy if his brother punishment requires a reversal 10/2~/5~,the date was who was not on trial, was a "boozer, of the conviction. Mr. Chadwick's sentence of six months guntoter, rower, fusser, and fighter." Appellant's motion for rehearing in jail and $500.00 finewas vacated. Although Judge Smith told the jury is granted, the order of affirmance 252 s,w,~~165,decided october the question was improper, the case was is set aside and the judgment is 29, 1952, was reversed for the same reversed. now reversed and the cause re- impossibledate of 19452. In commenting on this case, Mr. manded. Farmer said to the writer. "Charlev.. . the Farmer had done it again. He wrote A CASE OF CHARACTER. Court of Criminal Ameals. . is aware that his own statement of the evidence. Baker was convicted of rape and given once a jury has heard a bell or smelled five years in Wheeler County, 230 S.W.2d a skunk, it is difficult for them to forget THE DEFINITION CASE. 219, decided May 24, 1950. In support it." In Uptmore, 32 S.W.2d 474. decided of his request for a suspended sentence, November 5, 1930, the conviction was he called character witnesses. This case THE COMMUNITY PROPERTY for possession of liquor for the Purpose recoonized-- the orinciole that character CASE. of sale with a verdict of one Year in witnesses ,must not be asked if they know Turner, 163 S.W.2d 205, decided prison. Judge Munroe, who we have met certain specific acts of misconduct by June 17, 1942, was a burglar. The indict- before. failed to define prima facie. The asker had occurred. Judge Beauchamp ment charged Mrs. Victim was the owner. kw made possession of more than one pointed out that the District Attorney The evidence did not show it was her quart prima facie evidence of illegal could have asked the character witnesses separate property. The law required this possession. The result was the judge erred if they had heard. fact to be proved if Mrs. Victim lived and the bootlegger went free. So. if they know, it is inadmissible with her husband. The verdict of five evidence: but if they have heard, it is years was reversed. THE MEDICINE CASE. good evidence! Wharton, 248 S.W.2d There were numerous other reversals, 739, decided May 14, 1952, a conviction BONAFIDE PURCHASER. including Wood, 297 S.W.2d 190, decided In Cummings, 219 S.W. 1104, decided January 9, 1957, where the court refused (Continued on p. 381

VOICE for the DefenselNovember 1979 37 C. S. FARMER October 3, 1956, the court reversed the mobile explosion. Appellant ex- from page 37 conviction because the prosecutor called claimed, "'My God, that's the Andrew H. Nelson, an ex-convict/code- wrong one."' Nelson said to appel- fendant as a state witness, knowing he lant, "'Harry, is that your job?"' could claim the Fifth Amendment privi- Appellant replied, "'Yes."' To Nel- lege. The prosecutor asked numerous son's inquiry, "'How did you do for rape in Harris County with penalty of questions suggesting Nelson helped pur- it?"' appellant replied, "'I took a twenty years was reversed for the same chase the dynamite used to kill Wash- dozen sticks of that dynamite and reason as Bakerls case. burn's ex-mother-in-law. Other questions put in in a sack and put it on the suggested Nelson showed Washburn how back of the motor."' Nelson said, ANOTHER CHANCE. to hook up the dynamite to a car and "'Harry, that's murder, you better C.A. Tounahill, 334 S.W. 75, decided that Nelson and Washburn tested it. play it cool,"' to which appellant October 19, 1921, opinion by Judge Nelson refused to answer the questions. replied, "'I better get me a job Wright C. Morrow. Tounahill was a con- However, the jury heard them. The deci- digging ditches."' victed bootlegger and was eligible to have sion was that the questions were asked The jury assessed a term of 99 years. the jury decide whether to give him a in bad faith by the District Attorney. The state had asked for the death suspended sentence or send him to jail. The prosecutor had been advised that penalty. The appellate decision was split The trial judge refused to tell the jury Nelson would refuse to testify. Judge with Presiding Judge Morrison dissenting. about it. The case was reversed. Davidson held the District Attorney Judge Morrison would have reversed the was in bad faith and the questions were conviction because (a) gruesome photo- AN UNCERTAIN JUDGMENT. so prejudicial to Washburn that they graphs of the scene which showed blood; East, 225 S.W.2d 833. decided Janu- could have influenced the jury to convict (b) the state exhibited a fruit jar of ary 11, 1950, was in prison serving a and assess a life sentence. Mrs. Weaver's guts to the jury; (c) the life term for robbery. Mr. Farmer's appli- Washburn's case was transferred to trial court excluded Washburn's tires cation for habeas corpus filed in the Dallas for trial. Percy Foreman hired the from evidence; and (d) certain comments Court of Criminal Appeals was granted. writer and Robert Benavides, a Dallas of the District Attorney. The court ruled that the judgment lawyer to defend Washburn. The writer The gruesome pictures were preju- assessing punishment at not less than was under the impression that Nelson dicial as well as Mrs. Weaver's intestines. five years nor more than life was uncer- would again refuse to testify. The impres- The tires would have refuted that Wash- tain. The judgment should have been sion was wrong as Nelson was the state's burn could have been in San Angelo to for life. East was ordered released from star witness. Nelson vividly detailed Wash- hook up the bomb at a certain time and prison to again stand trial. burn's attempt to hire him to kill Mrs. made it back to Houston in the time in- Weaver's husband, Harry. Washburn was volved. Washburn's tires were threadbare. ONLY ONE IS PERFECT. Mrs. Weaver's ex-son-in-law. There were The writer thought it odd that the first Farmer's final appeal resulted in ill feelings because Mrs. Weaver stopped Washburn appeal had been decided by freedom for William Glenn. The case is making child support payments to Wash- two judges only. The third judge, K.K. reported at 327 S.W.2d 763, decided burn in behalf of her daughter. It was Woodley had not participated and he was October 7, 1959. Glenn had received a the state's theory that Washburn intended not absent or ill. A second motion for four-year probated sentence for theft. to kill Harry Weaver and not his wife. rehearing was filed pointing out that The District Attorney filed a motion to On the morning of her death, Mrs. Weaver Judge Woodley's wife was a first cousin revoke probation asking that Glenn be started her car and the dynamite went to the wife of a brother of the deceased. sent to prison for four years. off. t quote from P.J. Morrison, and David- The law requires conditions of proba- Nelson was in prison when the second son's opinion: [Washburn, 318 S.W.2d tion to be definite and not vague. The trial began. Some eight or nine life 627, December 17, 19581 condition in the court's order was that sentence paroles had been revoked for For grounds thereof, appellant any time Glenn's conduct was not such prior robbery convictions. A deal was says that Judge K.K. Woodley, a that he warranted confidence and esteem made by some law enfol-cement officer Judge of this Court who partici- of law abiding citizens of the state, that if Nelson testified, he would be pated in the decision affirming this defendant would forfeit his right to given immunity and his paroles rein- case, is related to the deceased in probation. stated. Nelson was given immunity for this case within the third degree by The court revoked the probation and Mrs. Weaver's murder and after Wash- affinity. ordered Glenn to serve four years. The burn's conviction occurred, he somehow If Judge Woodley was so related, evidence offered by the state only estab~ got his freedom. then he is and was disqualified from lished that he had been arrested and Nelson's evidence that he showed sitting as a Judge in this case, and charged with stealing tires. The condition Washburn how to hook up the dynamite inasmuch as his participation imposed was too vague and indefinite was damaging. Nelsor~ also claimed he therein was necessary to a disposi- to support the revocation for a violation had the following conversation with tion of the case, such would require of the condition. Washburn after the murder: that the judgment of affirmance Over a radio in the car there be set aside and the case be resub- THE FIFTH AMENDMENT CASE. was a news reoort that Mrs. Helen mitted before a court composed III Washhum, 299 S.W.2d 706, oec'dud Weavcr nad bwn klleu n an auto- of three qualified judges, for which

38 November 1979NOICE for the Defense relief the appellant so prays. constitutional judges. A majority of two Appeals were not ready for the Equal As it appears from the un- could decide the case. Rights Amendment. challenged and admittedly correct The case against Washburn was circum- affidavit attached to appellant's stantial. I have always had a reasonable CONCLUSION motion, Judge Woodley's wife is a doubt as to Washburn's guilt. The real This long and brilliant career ended first cousin to the wife of a brother killer could well have been Nelson or with success. There were many of Charles of the deceased in this case. someone who gained from Mrs. Weaver's Shuford Farmer's clients at his funeral. Does such fact show that Judge death. If Mr. Farmer had been on the Some of them would not have been there Woodley is related within the third appeal of this case, the result might have had it not been for his genius. degree, by affinity, to the de- been different. CHARLES W. TESSMER ceased? If so, then Judge Woodley Penthouse, Main Tower Bldg. is disqualified, by the Constitution WOMEN'S LIBERATION. 1200 Main St. . . . and by statute . . . from sitting Harper I, 234 S.W. 909. decided Dallas. Texas 75202 as a Judge in this case, and the ap- November 9. 1921. Harper was a con- pellant should be granted the relief victed burglar who was sentenced to two he seeks. years. Appellate Judge Frank Lee In Texas Employers' Ins. Ass'n Hawkins decided that even though V. McMullin, Tex. Civ. App., 279 women now had the suffrage, this did not S.W.2d 699, 702, we find Black's mean they could serve on the grand jury Law Dictionary quoted as follows: that indicted Harper. The law said twelve "Affinity is the tie which men, not persons. Judge Hawkins ruled exists between one of the the indictment was void and reversed and spouses with the kindred of dismissed the conviction. The trial judge the other: thus, the rela- of McLennan County, Richard I. Mun- tions of my wife, her broth- roe, had placed two women on the grand ers, her sisters, her uncles, jury. Judge Munroe was a chivalrist are allied to me by affinity, gentleman who was ahead of the times. and my brothers, sisters, etc., Harper I/, 234 S.W. 909, decided are allied in the same way to November 9. 1921. This was Harper, th~ my wife. But my brother and burglar, who was also convicted 01 the sister of my wife are not theft. The same legal error was in thir allied by the ties of affinity." case. * * * * * The following cases all had indict- OPINIONS-ATTORNEY In the Cortez case it was ments from the same ten men, two GENERAL said 1144 Tex. Cr. R. 116, women grand jury and were also reversed because of a void indictment: Storms, 161 S.W.2d 4971 : MW-75 Section (d) of article 18.19 234 S.W. 91 1, decided November 9. "The groom and bride each RQ-138 of the Code of Criminal 1921, who had received nine years for come within, Procedure applies to the forfeiture or theft; Carter, 234 S.W. 912, decided The circle of each other's kin, destruction of weapons belonging to a November 9, 1921, who also received But kin and kin are still no defendant convicted under Chapter 46 nine years for theft, and the same two more of the Penal Code. Section (e) applies to women on the grand jury voted the Related than they were be- the forfeiture or destruction of a weapon indictment. fore." belonging to someone convicted of an The same result for the same reason * * * * offense involving the use of a deadly * in Harper I, Harper 11, Storms, and Carter weapon. 10123179 It is apparent that under the occurred in Cassady, 234 S.W. 912, de- rules stated Judge Woodley could cided November 9, 1921, a burglary MW-77 Although experts who testify not be and was not related by case with a verdict and sentence of two RQ-162 at criminal trials may have affinity to those who are related years. Also in Cassady 11, 234 S.W. 912, 3 contract entitling them to receive other to his wife only by affinity-which decided November 9, 1921, where rums for their services as consultants, is the situation here presented. Cassady had stolen a car and received there is no authority to pay them, as The application for permission two years; Meyers, 234 S.W. 1118, witnesses, greater fees than those paid to file a second motion for rehear- decided November 16, 1921, a liquor other witnesses. 10/25/79 ing is denied. [ase where the penalty was three years. Judge Woodley took no part in The offense was statutory rape in Stroud, 235 S.W. 214, decided November MW-78 Under article 15.17, Code of the ~preparation ~ of this opinion. RQ-112 Criminal Procedure, the mag- Judge Woodley, who absented him- 23, 1921, with penalty of seven years. istrate may give warnings anywhere in the self from the first appeal, cast the decid- The same two women were on the grand county but he has no duty to travel to ing vote to send Washburn to prison in jury in this case. any certain place in order to give the the second appeal. The Court of Criminal It is apparent in the foregoing cases warnings. 10129179 Appeals at that time consisted of three that the Judges of the Court of Criminal . . .

VOICE for the DefenselNovember 1979 MOTIONS CHECKLIST-Criminal Case Jan Hemphill, Dallas

The following checklists and motion were * n. Statements by Defendant ACTION CHECKLIST- provided by TCDLA Director Jan Hemp- (and Codefendants) CRIMINAL CASE hill, Dallas. They belong in each criminal * o. Tangible items to connect De- lawyer's arsenal. fendant to the offense CLIENT: p. Other suspects' names OFFENSE: MOTIONS CHECKLIST * q. Line-up information CASE NO.: CRIMINAL CASE r. OTHER ITEMS SOUGHT TO COURT: CLIENT: BE DISCOVERED PENAL CODE SEC.: OFFENSE: GRADE: CASE NO.: CIRCLE ITEMSTO BE DONE; 11. Shuffle Jury Panel COURT: INDICATE ON LEFT INITIALSOF 12. Suppress Evidence obtained in PENAL CODE SEC.: PERSON RESPONSIBLE; Search GRADE: CHECK WHEN DONE 13. Suppress Extraneous Offenses CIRCLE MOTIONS NEEDED; 1. Prepare Information Slip 14. Request Hearing on & Suppres- - CHECKOFFWHENTYPED sion of Identification (Wade-Gil- - 2. Prepare Card +Items indicate a court form available bertStoval1 Motion) - 3. Prepare Contract of Employ- *Items indicate a standard form in form 15. Recuest Hearing on & Suppres- ment: Fee: $_, Payable file-some dictation may be required. . . sio" of Statements by Defendant $per- 1. Competency Hearing (Jackson v. Denno Motion) - 4. Prepare file folder 2. Prepare & Produce Grand Jury * 16. Request Hearing on admissibility Guaranty? BY - Transcript of prior convictions for impeach- 3. Speedy Trial Act-Set Aside * ment and/or punishment - 5. Get case number, court, and Indictment 17. Prevent Use of Void Prior Con- D.A. (if felony) 4. Speedy Trial Request victions - 6. Letter to court that we repre- 5. Severance 18. OTHER Motions in Limine re: sent + 6. Probation Application (and Per- - 7. Complete Client lnterview sonal Data Sheet, if Misde- Sheet-Criminal Case meanor) 19. ~i~it~~~~~-~~~~i~~ti~~ of - 8. Take statement from Client- * 7. Court Reporter to take Voir fendant See Client Interview Sheet Dire and Arguments to Jury 20. Double Jeopartv - 9. Take statements from- * 8. Quash Indictment/Complaint & Test ~ualificathnsof Character Information Witnesses P10. Prepare Property Release * 9. List Witnesses Restrict Argument -11. Prepare Medical/School/Em- 10. DISCOVERY: lnstructed Verdict after State's ployment Authorization for * a. Exculpatory Evidence (Brady Case in Chief client to sign Motion) Instructed Verdict after Close of -12. Check "Records" for other * b. Disclose Criminal Records of All Testimony pending cases Witness (andlor Codefen- Objections to Court's Charge -13. Check on prior convictions dants) Requested Charges and arrests: County: * c. Examine Fingerprints Election as to Punishment Year: * d. Disclose Promises to a Wit- Application for Deferred Adju- -14. Visitscene: ness ("Reveal the Deal") * dication e. Discovery of Tests Given De- Application for Probation & -15. Photo, diagram, map, drawing fendant (DWI, etc.) Conditional Discharge for first (circle) of * f. Discovery of Scientific Tests Controlled Substances Act vio- 16. Physical or documentary evi- g. Disclose Informant's Identity lation dence to be obtained:- * h. Witnesses' Statements and Motion for Punishment of third Reports 17. Witnesses to be interviewed, *. degree Felony as Class A Mis- - I. ltems Used to Refresh Mem; demeanor address & telephone (S= ow OTHER PUNISHMENT AL- State's witness; D-Defense j. ltems Taken from Defendant TERNATIVE MOTIONS:- witness; Ch=Character wit- k. Contraband Samples ness; CoD=accomplice or Co- I. Clothing and other items defendant): Taken 32. Speedy Hearing on Probation m. Inspect Samples-hair. blood. Revocation semen, perspiration, urine, 33. OTHER MOTIONS OR APPLI- -18. Check lndictment/Complaint CATIONS & Information; write court

November 1979flOICE for the Defense for copy? -40. Prepare Voir Dire Outline paragraphs of the Indictment on file -19. Check search warrant & affi- -41. Prepare Opening Statement herein and as grounds therefor would davit; Judge: Outline show: Issued: -42. Prepare Cross-Examination In the event that Defendant is con- Location: Outline victed of the offense alleged in the first In whose name: -43. Prepare Direct Examination paragraph of the indictment, the trier of -20. Verify employment of offi- Outline punishment, whether judge or jury, will cers: -44. OTHER: be called upon to determine whether the Agency: second and third paragraphs concerning -21. Go over Motions Checklist prior felony convictions are true. If such -22. Write for Medical/School/Em- NO. paragraphs are found true, Defendant will ployment Information THE STATE OF TEXAS receive a mandatory life sentence under -23. Get preliminary hearing in v. Texas Penal Code, Sec. 12.42(d). No Court & consideration is to be given to any miti- Court reporter IN THE gating circumstances nor to anything in Subpoena witnesses DISTRICT COURT Defendant's background, other than the Notify client of setting?- OF two prior felony convictions alleged, in -24. Check Grand July setting and AOUNTY.TEXAS arriving at such finding. get copy of complaints; SET Such mandatory sentence is violative MOTION TO QUASH OR SET of the Eighth and Fourteenth Amend- -25. Defendant or witnesses to ASIDE THE ENHANCEMENT ments to the U.S. Constitution, which testify to G.J.? PARAGRAPHS OF THE prohibit the infliction of cruel and -26. Letter to G.J.? INDICTMENT unusual punishment. Stating: TO THE HONORABLE JUDGE WHEREFORE, Defendant prays that 27. Letter or visit to: - OF SAID COURT: the Court quash or set aside the enhance- Complaining Witness:- Comes now ment allegations contained in the second Defendant in the above styled and num- anu th rll i)araqra$msof ihc no ctment. re Affidavit of Nonprosecu- bered cause, by and through his attorney RESPECTFJLLY SUBMITTED: tion of record, and files this his Motion to 28. Prepare Criminal Case Infor- - quash or set aside the enhancement Attorney for Defendant mation Sheet -29. Pre~areMotions-see Motions checklist -30. Subpoena and/or notify De- fendant's witnesses

-31. Expert witness needed for-

-32. Hire Investigator to -33. order Transcript of RESEARCH FOR AlTORNEYS ONLY

Date: From: Welcomes Criminal Briefs! Telephone No.: Estimate: -34. Get Polygraph Test of- Legal research directed by an experienced member of the

By: Bar. For a free estimate, call 5121474-1397 and discuss Date: your question with us. We think you will find the time you -35. Brief Questions of Law:- save makes our service the best solution to your research requirements. -36. Prepare summary of prosecu- tion case. R. Stephen McNally 712-A East 26th -37. Prepare summary of defense Austin, Texas 78705 case -38. Prepare Court's Charge Work- sheet -39. Prepare Jury Argument Out- line

VOICE for the DefenselNovember 1979 CROSS-EXAMINATION TECHNIQUES Douglas Tinker, Corpus Christ; I. SCOPE AND INTRODUCTION E. USE SWORN STATEMENTS. I. PROVE YOUR CASE WlTH THE In making its decision concerning the If you know a State's witness has STATE'S WITNESS. facts in a case, the jury must "consider changed his story from that previously J. DO NOT BEAR DOWN ONCE each witness's intelligence, motive and given, take a sworn statement from him YOU GETTHE ANSWER YOU WANT. state of mind, and demeanor and manner and give it to the District Attorney just Do not give him a chance to get off while on the stand; consider the witness's prior to that witness being called. This the hook. ability to observe the matters as to which will prevent the District Attorney from K. GET FAVORABLE TESTIMONY he has testified, and whether he impresses claiming surprise and impeaching his own FIRST. BEFORE YOU MAKE THE you as having an accurate recollection of witness. Wall v. State, 417 S.W.2d 59. WITNESS MAD. these matters; consider any relation each F. SUBPOENA RECORDS TO THE L. USE THE APPROACH OF AS[<- witness may have to either side of the PRELIMINARY HEARINGS. ING THE WITNESS, "YOU HAVE case, the manner in which each witness For example, medical records in as- GIVEN THE IMPRESSION THAT SUCH might be affected by the verdict; and sault or murder cases. The District Attor- AND SUCH IS TRUE"' AS THIS IS consider the extent to which, if at all, ney may agree to stipulate to the predi- MUCH HARDER FOR HIM TO GET each witness is either supported or con- cate and to the custodian of such records AROUND. tradicted by other evidence in the case." leaving. The records are then left with M. WRITE ON THE GOVERN- Federal Court Instruction to the Jury. you and you never introduce them but MENT'S EXHIBITS. Cross-examination is designed to assist take them with you. N. DO NOT LETTHE JURY KNOW the jury in arriving at the truth within the G. VISIT WlTH THE EXPERT WHEN YOU HAVE BEEN HURT. above general guidelines. What follows is WITNESS. designed to aid the cross-examiner in Go to the expert witness's office prior IV. IMPEACHMENT AND IM- meetina this task. to trial and talk with him. While there, PEACHING TOOLS. write down the names of the books on A. PRIOR ORAL OR WRITTEN II. PREPARATION OR FINDING his bookshelf dealing with the subject of STATEMENTS MAY BE USED. OUT WHAT THEY KNOW WITH- his testimonv. I n nri,r nra~F+l+nmant ma,r ,. , . ".,". ",". ".W.".,,",,. ...", OUT THEM KNOWING YOU H. IF YOU KNOW A WITNESS IS be proved by anyone who heard it, after KNOW. VULNERABLE. CAREFULLY PLAN the predicate is laid, by asking the witness A. TALK TO EVERY WITNESS YOUR CROSS-EXAMINATION. and his denial that he said it. PRIOR TO TRIAL OR GET THEM TO I. GET INSTRUCTION MANUALS 2. A prior written statement REFUSE TO TALK TO YOU. USED IN TRAINING POLICE OFFI- may be used after it has been properly 1. Record the witness's con- CERS ON CROSS-EXAMINATION. identified. Caveat: By motion in limine, versation if possible. request that the District Attorney not 2. If the witness refuses to talk Ill. GENERAL RULES OF make a big display of turning the prior to you, ask him why. CROSS-EXAMINATION. report over to you. a. Because the District At- Remember there are exceptions 3. Use prior statement only if torney told him not to? to every rule. there are major inconsistencies and not b. Because he has some- A. ALWAYS ASK LEADING QUES- minor ones. Caveat: If the witness has thing to hide? TIONS. been impeached, the District Attorney B. USE PRE-TRIAL DISCOVERY 1. Do not let him explain. may offer the entire statement. However, TO GAIN INFORMATION ABOUT THE 2. Bear down hard until you get the where there has been only vigorous CASE. answer you want. cross-examination, this usually does not Remember it is always better if they B. QUIT WHEN YOU ARE AHEAD open the door for the introduction of the don't know you know. OR SCORE THE POINT DESIRED. entire statement. Hulin v. State, 438 C. TAPE-RECORD PRELIMINARY C. DO NOT CROSS-EXAMINE THE S.W.2d 551. PROCEEDINGS. WITNESS WHO DID NOT HURT YOU. B. WHEN ATTEMPTING TO DIS- Tape-record such preliminary proceed- D. MAINTAIN YOUR THEORY OF CREDIT A WITNESS, YOUR SEARCH ings as examining trials, ticket hearings, DEFENSE THROUGHOUT THE SHOULD INCLUDE THE FOLLOWING and 1ine.u~proceedings. CROSS-EXAMINATION. AREAS: D. TRY TO END UP WITH Dl.& E. DO NOT RE-EMPHASIZE DAM- 1. Prior inconsistent statements. GRAMS AND EXHIBITS WITHOUT AGING TESTIMONY. 2. The witness's reputation for THE DISTRICT ATTORNEY HAVING F. WHEN IN DOUBT ABOUT A truth and veracity. A COPY. QUESTION, DO NOT ASK IT. 3. Whether the witness has been 1. Have the officers diagram G. GET THE WITNESS CLEARLY convicted of a crime. the scene and describe it, but do not COMMITTED TO TESTIMONY BE- 4. The mental or physical inca- introduce it. FORE DEMONSTRATING HIS ERROR. pacity of the witness. 2. Use tape recordings, particu- H. NEVER ASK AN ADVERSE 5. Proof of the witness's inter- larly if the trial is soon. WITNESSWHY. est, animus, bias or prejudice.

November 1979AIOICE for the Defense 6. The witness's human falli- 2. Have the witness go over the 2. Plan your cross-examination bility in perception and memory. first description he gave and to whom. in relation to other witnesses to be called. 7. The susceptibility of the Does the witness remember the first For example, you may want the F.B.I. human mind to subtle influences. officer at the scene? If he doesn't, point expert to fly back to Washington before C. PROOF OF A WITNESS'S IN- out that he saw that officer longer than you vigorously cross-examine other less VOLVEMENT IN A CRIME AS AN he did the robber. Do the same thing with competent witnesses on the same subject. IMPEACHING TOOL. each officer he talked to and make a 3. Do not get into the meat of Crimes permitted to be used for im- chart of the mistakes. your cross-examination just prior to the peachment are generally felonies and 3. Time the period the robber recess for the day. misdemeanors involving falsehood or was in the store as it will usually be sub- moral turpitude. stantially less than what has been testified VII. KNOW WHEN TO QUIT 1. Generally, juvenile convic- to. (as I am, as far as this paper is con- tions are not admissible for impeachment 4. Demonstrate the witness's cerned). purposes except where the crime and its perceptions were exaggerated at the time influence may demonstrate a bias in the of the robbery. For example, "The gun LEGISLATIVE COMMITTEE testimony. Davis v. Alaska, 415 US. 388, looked like a cannon," "It seemed like 316 (1974). forever," or "It seemed like the police Ed Mallett, Chairman 2. In most states, if the witness would never come." Members: Jack Beech, Waggoner Carr, has a conviction of a crime but it is on 5. Get the witness to admit that Anthony Constant, Woody Denson, appeal it cannot be used for impeach- George Gilkerson, Richard Harris, Weldon ment. Holcomb, Bob Jones, Robin Pearcy, 3. A witness must be convicted David Spencer he was so mad that all he could think your Leaislative Committee is now of the crime charged if the offense is to - be used for impeachment. Dukes v. State, about was catching the robber. The wit- solicitingpr~posals for improvements in 227 S.W.2d 710 (1955). ness still feels that way in Court. procedural and substantive Criminal Law. 4. An exception to the rule in 6. Try to demonstrate police The Committee will study members' Duke supra occurs when a witness makes conduct that may have influenced his ~uggestions,then draft bills and submit a blanket statement leaving the impres- identification, i.e., the police told him them for atthe TCDLA annual sion that he has no other charges. Ochoa they had the man prior to the line-up. meetingin june,1980, v. State, 481 S.W.2d 847. C. THE POLICEMAN. Afterwards, plans to push our "Legis- 5. Evidence of pending charges 1. Elicit testimony on how a lative Package" will be implemented. are admissible if they may demonstrate good investigator would have handled the including earlyfiling by agreeablespon- the witness's motive in testifying for the investigation then prove that was not sors, participationin H~~~~ and Senate State. Evans v. State, 519 S.W.2d 868. done in this case. Committee hearings and attendance at a. No fingerprints at- floordebates, V. CROSS-EXAMINATION IN tempted to be taken. The 1979-80 TCDLA Legislative SPECIFIC AREAS. b. If prints were taken, the Committee includes: Jack Beech (Ft. A. THE EXPERT. only prints compared were your client's. worth), waggoner carr (Austin), 1. Rarely object in the presence c. They investbat- Anthony Constant (Corpus Christi), of the jury to the qualifications of an ing when they arrested your man. Woody Denson (Houston), George Gilker- expert. The judge will hold him qualified d. They did investigate son (Lubbock), Richard Harrison (Dal- and emphasize this to the jury. It is my the alibi given by the defendant. las), Weldon Holcomb (Tyler), Bob Jones practice to not qualify my own expert e. They no statement (Austin), Ed Mallett (Houston), Robin and draw an objection. from the defendant as it did not help the pearcy (sari M~~~~~),and Spencer 2. As a general rule, do not case. (Austin). cross-examine unless it is essential to vic- f. The crime scene was Already submitted is Amending Art. tory in your case. secured. 42.12 C.C.P. to guarantee a right of ap- 3. Compare the qualifications of g. They have not checked peal following imposition of sentence the expert, i.e., the medical examiner as the criminal record of the complaining where adjudication has been deferred. compared to the fingerprint man whom witness. Additional amendments are scheduled for you must destroy. debate at each meeting of the Board of 4. What the witness is getting VI. TIMING. Directors. paid and how many times he has testified * A. KNOW WHEN TO GET Many TCDLA members serve the pub- for the State should be an area of inquiry. TOWARD THE MAJOR POINT YOU lic as state legislators and through the 5. Do not object to the identity ARE TRYING TO MAKE. legislative process the TCDLA works to of the deceased. The District Attorney 1. Maybe it is good or maybe it improve the quality of our laws. will just call a family member for a very is bad to make the point just prior to the Please send your suggestions to: Ed emotional identification. break. If you make it just prior to the Mallett, Chairman of TCDLA Legislative B. THE EYEWITNESS. break, the District Attorney may tell the Committee, Suite 300, 3303 Main St., 1. Get the witness to admit that witness how to clean it up during the Houston, Texas 77002. Telephone: (713) identifcation is just an opinion (a guess). recess. 526-1 778.

VOICE for the DefenselNovember 1979 43 RECENT STATUTORY CHANGES IN THE LAW OF CRIMINAL DEFENSE As usual, the Texas Legislature, in the fine or give bond. 3(a) of Article 42.13, effective September its 1979 session, made numerous changes Art. 28.01.52-This statute has been 1. Yet another Bill effective September 1, in the Code of Criminal Procedure and amended to provide that a Defendant added a Section 38. Finally, the entire the Penal Code. This outline will not be need not have his pretrial motions filed statute was repealed and rewritten effec- exhaustive of the amendments to those any earlier than seven (71 days prior to tive August 27,1979. As a result, the cur- twocodes,butmerelyi~~~~t~ati~e~fsome the pretrial hearing set b~ the court; rent state of certain sections of this of the more important changes which defendant also is entitled to a minimum statute is confusing at best. were made. Some of these are: of ten (10) days in which to file such Perhaps the most significant change to pretrial motions. CODE OF CRIMINAL this article was the amending of the Art. 31.03-The defendant's motion ,,,isdemeanor probation imposition so PROCEDURE for change of venue now includes, when- that it now is handled just like a felony Art. 13.22-Marijuana possessionor ever the district attorney will Consent, probation, that is, whereas the misde- delivery may be prosecuted inan adjacent changes of venue either for convenience meanor probation statute formerly pro- county within the same judicial district, of the parties and witnesses or for entry vided for suspension of the imposition of with defendant's consent. of a plea of guilty, without regard to the sentence, the new statute provides for the 1a.02-J,~ere evidencesvsearch convenience of parties and witnesses. imposition of sentence but suspension of warrants are to be issued only by judges Art. 32A.02.51-The Speedy Trial the execution thereof. This is the basis of county courts at law, district judges, Act has been amended so as to make upon which the Department of Public judges of the court of criminal appeals, sixty (60) days the magic number in Class Safety has been taking the position that or justices of the supreme court. C misdemeanor cases. as has been the case a probated conviction for D.W.I. is a final ~~t.~~.OI(~)-N~ ,,mere on Class B misdemeanors in the past. conviction, resulting in loss of driver's searches of newspaper, news magazine, Art. 36.15-Special requested charges license. As this is dictated, an attorney's television station, or radio station offices. can now be handled by means of dicta- general opinion on this subject is ex- Art. 19.Ol(bl-An alternative proce- tion to the Court reporter in the Presence pected shortly. dure for selecting grand jurors, using of and with the permission of the Court. Art. 44.13-This article requires a essentially the same method as isused for SO 10% as they are reduced to writing, justice of the peace or municipal judge to the summonsing of petjt jurors, rather signed by the judge and filed as Part of approve the bond forwarded to him by than using a grand jury commission, is the transcript. (This was effective May mail pursuant to Article 27.148. provided for. 17, 1979.) Art. 53.08-The district attorneys Art. 26.13(a)-This one is a little con- Art. 38.22, 53(al--This novel StatUte around the state are now formally in the fusing, because there were two separate provides for the tal~ingof the confession collection business; this article, a new amendments effective September 1, of a deaf Person in sign language. one, authorizes the collection of fees by 1979. HB 1566 provides that neither the Art. 38.30-Codifies the judicial hold- district attorneys for collecting on fact that a defendant has entered a plea ings to the effect that an interpreter must checks. of guilty or nor any be provided for a defendant or a witness statement during the course of such who does not understand and speak PENAL proceedings shall be admissible if the English. The Penal Code was amended in court rejects the plea bargain and the Art. 38.31-This provides that a several sections to accommodate a new defendant subsequently stands trial. person familiarwith sign language must class of victim denominated "participant SB 854 contains similar language with be as for a deaf in a court proceeding." This term is de- regard to any statement made by the witnessordefendant. fined as including judges, lawyers, grand defendant, but is silent as to whether the Art. 40.09, 57-A new procedure is jurors, petit jurors, parties, witnesses, fact that the plea was entered is admis- established whereby the trial court can and peace officers. In general, except for sible. This bill also embodies the provi- "cause the record to speak the truth" the capital murder statute (which was not sions of Article 44.02 within the ad- on appeal. amended), the amendments make it the monishments statute, by requiring that Art. 42.12, Wa)-The State's right same offense to assault, aggravatedly the court advise the defendant that if to amend a motion to revoke probation assault, or assault with a deadly weapon his plea bargain is accepted he will be expires, by provision of this statute, a participant in a court proceeding, as unable to appeal his conviction without seven (71 days before the hearing,except has been the law with regard to peace prior permission of the court, except as for good cause shown; in all events, the officers alone. Among the statutes in- to the matters contained in written pr* motion may not be amended after the cluding this new concept are Section trial motions. commencement of evidence at revocation 22.02(a)(3) and 22.03(a)(2). Art. 27.14tb)kThis relates to justice hearing. Another new concept in the Penal of the peace and municipal court matters, Art. 42.13-This one is a complete Code involves "electric generating and provides that a defendant may obtain mess. One Bill amended this Article, plants." It is a more serious offense to notice of the amount of an appeal bond Section 5(b) effective August 27, 1979. commit, e.g., criminal trespass on the by mail, and that he has thirty-one (31) Another enactment amended the same premises of an electric generating plant ays after receiving notice of the amount section (that is, 5(bI) effective September than on other property, other than a he fine or appeal bond to either pay 1. 1979. That Bill also amended Section habitation.

November 1979AfOICE for the Defense A legislative oversight has numbered a Class A misdemeanor offense of causing Sec. 42.13-This new provision makes the statute defining "electric generating bodily injury to a child. Heretofore, it a criminal offense to intentionally, plant" and the defining "participant in mere bodily injury to a child was prose- knowingly, recklessly, or with criminal court proceeding" both as 1.07(a)(37). cuted under the ordinary assault statute. negligence interrupt, disrupt, impede or Sec. 12.32-A ten thousand dollar Sec. 28.02-The arson statute has been otherwise interfere with a citizen's band ($10,000) fine has been added to the completely rewritten. Among other radio emergency communication. If seri- potential penalty for one convicted of a things, if your divorce client, angry with ous bodily injury or property loss results, first degree felony. (Interestingly, no such his wife, goes to his mother-in-law's home this is a felony offense; otherwise, it is a change was made in the control sub- (where his wife is) and burns up his own Class B misdemeanor. stances act, so that one convicted of automobile in his mother-in-law's drive- Sec. 43.21-The obscenity laws have aggravated robbery may be fined ten way, he has committed a second degree been completely rewritten. The way the thousand dollars ($10,000), while a per- felony. I suggest you read this one for statute is now written, if you own a copy son dealing heroin may not). yourself. of a movie which a jury of your peers Sec. 12.46-Has been added, providing Sec. 32.49-"A person commits an believes is obscene and you lend it to a that "the use of a conviction for enhance- offense if he issues a check or similar friend, you have committed a felony ment purposes shall not preclude the sight order for payment of money printed offense. I suggest you read these statutes subsequent use of such conviction for on dark red or other color paper that closely. Also, rewritten are the obscenity enhancement purposes." This statute was prevents reproduction of an image of the laws involving children; see in particular effective June 7. 1979, and at least in order by the microfilming or other Section 43.25. some respects makes some sense; under similar reproduction equipment, knowing As I said originally, this outline is not prior law, a three time felony offender that the color paper prevents reproduc- exhaustive of the changes to either the was an habitual criminal, while a fourth tion." A Class A misdemeanor. Code of Criminal Procedure or the Penal time offender was, at most, a repeat Sec. 39.021-Violations of the Civil Code. It is hoped, however, that this does offender. Rights of the prisoner-this statute highlight the major changes, and that it Sec. 22.01-This section has been makes it a third degree felony to unlaw- will be of some benefit to the member- amended to make an assault on a teacher fully subject a person in custody to ship of the association. a Class B offense, rather than a Class C. bodily injury, second degree felony if See. 22.04-The "injury to a child" serious bodily injury occurs, and a first statute has been amended to provide for degree felony if death occurs. NEW MEMBERS Fort Worth Don Carter Patrick Emmett Clarke...... Cecil Bain Member Endorser Jack Beech San Antonio George Shaw Pat Robards...... Robert D. Jones Gordon Thomas Gene P. Moore ...... Michael Thomas San Antonio Cannon Travis D. Shelton ...... Fort Worth V. Perini Charles Schmidt ...... Ron Zipp Lubbock Jack Beech San Antonio Alton R. Griffin ..... Travis D. Shelton Tony Cantu Ed Kidwell...... Stanley Weinberg Lubbock Layne H. Harwell ...... Don Carter San Antonio James R. Alexander. . Clifford W. Brown Fort Worth Jack Beech William H. Ferguson...... Cecil Bain Lubbock Mike Thomas, Tony Cantu San Antonio John R. Leigh...... Dick Harrison, George Shaw Dallas R.M. Janssen ...... Antonio Cantu George H. Nelson ... Clifford W. Brown J.R. Molina Michael Thomas San Antonio ~ubbock Fort Worth Tony Cantu Tom Edwards Hill ...... Gene DeBullet David Alan Hess .....George Gilkerson Dick Harrison Fort Worth Lubbock Jack Ray...... Vincent Perini Charles Baldwin ...... Gene DeBullet Fort Worth R.C. "Eric" Auqeson...... Jim Bobo Fort Worth Odessa Lee Ann Dauphinot...... Mike Thomas John Terence Garcia .... Frank Alvarez Jerry U. Pennington...... Lou Dugas Fort Worth Don Carter El Paso Orange Tony Cantu, Vincent W. Perini Robert Louis Rosen.Robert W. Lemmons Stella Hartman Saxon. . -. .. Lou Dugas Jack Beech Dallas Orange Arthur Neale Pons, Jr.. . .Jim Kreimeyer Chuck Lanehart ....Clifford W. Brown Grover C. Halliburton...... Lou Dugas Belton Lubbock Orange Dennis C. Holle...... Jim Kreimeyer Jim Aldridge...... Clifford W. Brown Donald €3. Kelley...... Lou Dugas Belton Lubbock Orange James A. Kosub ...... Cecil W. Bain Byron Chappell. .... Clifford W. Brown Michael W. Shuff...... Lou Dugas $an Antonio Lubbock Orange Michael W. White...... Cecil W. Bain Gerald 0. Buster...... Jim Kreimeyer Donald S. Gandy...... Michael Thomas San Antonio Temple C.W. "Robin" Pearcy Fort Worth Dick Harrison Richard E. Langlois ...... Robert C. Fisher ...... Jim Kreimeyer T~~~ cantu San Antonio Temple C.W. "Robin" Pearcy I Don Carter Carol Harris ...... Jan Hemphill Harold F. Harris ..C.W. "Robin" Pearcy William 0. Wuester ... .Michael Thomas San Antonio Temple

VOICE for the DefenselNovember 1979 45 TEXAS CONTROLLED (7) not more than 500 milligrams of (8) Ethchlorvynol; SUBSTANCES ACT SCHEDULES opium per 100 milliliters or per 100 (9) Ethinamate; grams, or not more than 25 milligrams from page 45 (10) Flurazepam; per dosage unit, with one or more active, (11) Lorazepam; Drug Administration for marketing only nonnarcotic ingredients in recognized (12) Mebutamate; as a suppository; therapeutic amounts; (13) Meprobamate; (3) Any substance which contains any (8) not more than 50 milligrams of (14) Methohexital; quantity of a derivative of barbituric morphine, or any of its salts, per 100 (15) Methylphenobarbital; acid, or any salt of a derivative of bar- milliliters or per 100 grams with one or (16) Oxazepam; bituric acid, except those substances more active nonnarcotic ingredients in (17) Paraldehyde; which are specifically listed in other recognized therapeutic amounts. (18) Pentazocine, its salts, derivatives, schedules; (e) Any compound, mixture, or or compounds or mixtures (4) Chlorhexadol; preparation containing any stimulant thereof; (5) Glutethimide; listed in Subsection (e) of Section 2.04 or (19) Petrichloral; (61 Lysergic Acid; depressant substance listed in Subsection (20) Phenobarbital; (7) Lysergic Acid Amide; (b) of this section is excepted from the (21) Prazepam. (8) Methyprylon; application of all or any part of this Act (c) Any compound, mixture, or pre- (9) Sulfondiethylmethane; if the compound, mixture, or preparation paration containing any depressant sub- (10) Sulfonethylmethane contains one or more active medicinal stance listed in Subsection (b) of this (1 1) Sulfonmethane. ingredients not having a stimulant or section is excepted from the application (c) Nalorphine. depressant effect on the central nervous of all or any part of this Act if the com- (dl Any material, compound, mixture, system, and if the admixtures are pound, mixture, or preparation contains or preparation containing limited quan- included therein in combinations, quan- one or more active medicinal ingredients tities of any of the following narcotic tity, proportion, or concentration that not having a depressant effect on the drugs, or any salts thereof: vitiate the potential for abuse of the central nervous system, and if the ad- (1) not more than 1.8 grams of substances which have a stimulant or mixtures are included therein in com- codeine, or any of its salts, per 100 milli- depressant effect on the central nervous binations, quantity, proportion, or con- liters or not more than 90 milligrams per system. centration that vitiate the potential for dosage unit, with an equal or greater (f) Unless listed in another schedule, abuse of the substances which have a quantity of an isoquinoline alkaloid of any material, compound, mixture, or depressant effect on the central nervous opium; preparation which contains any quantity system. (2) not more than 1.8 grams of of the following substances having a (d) Unless listed in another schedule, codeine, or any of its salts. per 100 milli- stimulant effect on the central nervous any material, compound, mixture, or liters or not more than 90 milligrams per system, including its salts, isomers preparation which contains any quantity dosage unit, with one 01- more active, (whether optical, position, or geometric), of the following substances having a nonnarcotic ingredients in recognized and salts of such isomers whenever the stimulant effect on the central nervous therapeutic amounts; existence of such salts, isomers and salts system, including its salts, isomers (3) not more than 300 milligrams of of isomers is possible, within the specific (whether optical, position, or geometric), dihydrocodeinone, or any of its salts, per chemical designation: and salts of such isomers whenever the 100 milliliters or not more than 15 milli- (1) Benzphetamine; existence of such salts, isomers and salts grams per dosage unit, with a fourfold or (2) Chlorphentermine; of isomers is possible within the specific greater quantity of an isoquinoline designation: alkaloid of opium; (3) Clortermine; (1) Diethylpropion; (4) not more than 300 milligrams of (4) Mazindol; (2) Phentermine; dihydrocodeinone, or any of its salts, per (5) Phendimetrazine. (3) Fenfluramine; 100 milliliters or not more than 15 milli- Sec. 2.06. SCHEDULE IV. (a) Sche- (4) Pemoline (including organo- grams per dosage unit, with one or more dule IV shall consist of the controlled metallic complexes and chelates active, nonnarcotic ingredients in recog- substances listed in this section. thereof). nized therapeutic amounts; (b) Any material, compound, mixture, (e) Other substances. Unless speci- (5) not more than 1.8 grams of di- or preparation which contains any quan- fically excepted or unless listed in hydrocodeine, or any of its salts, per 100 tity of the following substances having a another schedule, any material, com- milliliters or not more than 90 milli- potential for abuse associated with a pound, mixture or preparation which grams per dosage unit, with one or more' depressant effect on the central nervous contains any quantity of the following active, nonnarcotic ingredients in recog- system: substances, including its salts: nized therapeutic amounts; (1) Barbital; (1) Dextropropoxyphene (Alpha-(+)- (6) not more than 300 milligrams of (2) Chloral betaine; -4-dimethylamino-1, 2-diphenyl- ethylmorphine, or any of its salts, per (3) Chloral hydrate; 3-methyl-2-propionoxybutane); 100 milliliters or not more than 15 milli- (4) Chlordiazepoxide; (2) Pentazocine. grams per dosage unit, with one or more (5) Clonazepam; (f) Unless specifically excepted or un- ingredients in recognized therapeutic (6) Clorazepate; less listed in another schedule, any amounts; (7) Diazepam; (Continued on p. 511

November 1979NOICE for the Defense Bugging Revisited: the Wiretap Decade Herman Schwartz, The Nation that: the target of the surveillance is privileged communications between a Permission to reprint this article was given to probably involved in criminal activity; lawyer and client, a husband and wife, a TCDLA by The Nation Co, The author, Her man schwartz, is the author of ,,T~~~,the intrusion will be limited, and other doctor and patient. In a Federal drug case Bugs, and Fooling the People." (Field Foonda- investigative procedures are ineffective. in Washington, seventy-three calls tion, 1977) and Other Other than surveillance for national between a suspect's teen-age baby sitter security purposes or where one party and her friends were overhead. In twenty- to the conversation consents to being one investigations in 1970 for crimes In June 1968, a Congress stunned by overheard, almost all other wiretapping other than drugs or gambling, more Robert l

VOICE for the DefenselNovember 1979 47 BUGGING REVISITED: THE on gambling obviously hasn't shaken ships, gossip and life styles-so-called WIRETAP DECADE organized crime or even reduced illegal "strategic intelligence." It was promoted from page 47 gambling. And Federal prosecutors now as part of the "war" on organized crime acknowledge this by their practice: in proclaimed by Robert Kennedy in the $278,578, overheard 282 people during 1978, Federal gambling wiretaps fell to early 1960s. under the rationale that in a an eighty-day period in almost 3,000 six, from a high of 248 in 1971; Brooklyn war one tries to get every bit of "intelli- conversations, yet no arrest has so far District Attorney Eugene Gold installed gence" about the enemy. Thus, New been reported, let alone a conviction. fifty-two gambling taps in 1973 and York magazine writer Nicholas Pileggi Another tap in New York in May 1977 forty-seven in 1974, but only two in recently blamed the statutory controls on cost $156,704, monitored 3,000 people 1978. wiretapping for preventing police from in 9,883 conversations, of which only §In drug cases, the Wiretap Commis- learning such "invaluable raw data . . . thirty were considered incriminatory, and sion found that electronic surveillance [as] mob arguments, gossip, and the like produced no results. Maurice Nadjari, the uses up too much manpower and is no . . . if Fat Gigi was losing weight, if former New York State Special Prosecu- more effective than the conventional Johnny Lamps grew a mustache, if Big tor who had a penchant for lengthy nonelectronic methods, such as "buy and Head was driving Cheech's car, if Johnny wiretapping and bugging, spent more than bust" and "turning" witnesses. Even Hooks got a 'TV anchorman' haircut." If $1 million on this technique, with virtu- where electronic surveillance is used, it that's the kind of "invaluable raw data" ally no success. can't penetrate the higher levels of the the police seek from wiretapping, no Judicial oversight hasn't worked very drug trade. "In Chicago," reported the wonder that organized crime seems to well either, particularly on the state level, Wiretap Commission, "Federal authorities impregnable. which accounts for about 80 percent of have yet to identify a major violator or All of this was lknown both to those police wiretapping. From 1969 to 1978, uncover a significant 'stash."' who pushed wiretapping and those who only seventeen out of more than 6,700 §In all other offenses, electronic opposed it, for the wiretapping-bugging wiretap applications were denied. The eavesdropping produces almost nothing. record prior to 1968 was also very poor. requirement that other investigative Its most zealous supporters concede that In 1955, an experienced New York judge methods must be shown to be impractical it offers little toward solving already reported that his records "showed some by law-enforcement agencies before they completed "history" crimes like murder, arrests and fewer convictions and then are authorized to tap has proved inef- assault, arson or robbery, or even con- rarely if ever for a heinous offense." fectual. One local prosecutor told the tinuing offenses such as corruption, Many others agreed. It was also known Wiretap Commission, "I have not found loansharking and extortion. that the court-order system was ineffec- one judge who takes the time to read an §Even where wiretapping is used in an tive. Samuel Dash, later to become chief ex parte wiretap application." Prosecu- investigation that produces a conviction, counsel of the Senate Watergate Commit- tors from New Jersey and upstate New in many cases it turns out that the tap or tee, testified in 1961 that his study of York noted that where judges do bother bug was not necessary or even useful. New York City in the 1950s showed that to read the papers, "they will rely in Many successful prosecutors have experience with "judicial supervision has many instances on the identity of the found electronic surveillance to be worth- been very bad. Judges who are 'tough'are applicant or . . . of the investigator." less. One Federal Organized Crime STrike just bypassed." And if a judge gets sticky, the prosecutor Force attorney declared that wiretapping Finally, everyone seems to agree that will simply try to avoid him. "has not often been applicable. We have the statute has not noticeably reduced What has ail this authorized tapping been able to make a case without it and illegal private or police wiretapping. In and bugging accomplished in the fight we have had more indictments and Houston, the police were suspected of against crime? Not much. Neither convictions than any strike force in the illegal wiretapping by a new police chief, organized nor any other kind of crime has country." Another Federal investigator but the F.B.I. refused to look into the been seriously affected. Illegal gambling said, "All this bugging flap, and most of matter. According to the chief. "either continues at a torrid pace; drug traffic the time we get nothing." they were totally aware of what was and drug addiction have not been reduced Again, the actual practice of the last going on and approved of it, or they were in the slightest. And the police haven't two years makes the point most tellingly. totally incompetent." Illegal police wire- even tried to do much wiretapping to Those prosecutors who were initially tapping has also been discovered in New solve other kinds of crime, because they enthusiastic about wiretapping and used York, Pennsylvania, New Haven, Chicago know it won't work. it the most have turned away from it: and elsewhere. Nobody knows how much The statistics and studies show that: New York City taps fell from an average illegal private tapping goes on, but indica- § An overwhelmingly dispropor- of 145 during the first five years of the tions are that it was and remains very tionate number of convictions pur- ,statute to just twenty in 1978, while high, despite the statute. portedly linked to wiretapping-more Federal taps fell from a five-year average This is not to say that there are no than two-thirds-are of bookmakers, and of 165 to eighty-one in 1978. success stories. Obviously there are. Any small-timers at that, "Mom and Pop This lack of success is neither surpris- investigative tool, if used often enough, operations" in F.B.I. parlance, who rarely ing nor new. Wiretapping was never con- will produce something, if only through draw anything but small fines. For sidered a good crime detection technique serendipity. Public policy cannot be example, 85 percent of all the Federal but rather an intelligence-gathering based on occasional successes, however, convictions related to 1975 wiretaps were device, designed to obtain bits and pieces but only on an overall assessment of costs for ganibl'ng. Tns neauy concan~rarion of i~fur~~~a~iot~aood crimnals' fr~end- and benefits. By such a reckoning, wire-

48 November 1979AIOICE for the Defense tapping has failed. church. Senator Frank Church's Select power to tap for foreign intelligence But what of the use of wiretapping Committee on lntelligence conqluded in the United States outside the statute and bugging to gather national security that "there is no question that offlclals in (settling an old dispute), and no Ameri- intelligence? In this area the record of the the White House and Justice Department, cans may be eavesdropped upon unless last ten years has also been momentous. including President Johnson and Attor- their activities have some criminality ney General I

c,-",L,a.hoslth General Edward H. Levi told the Church continue. Yet the law will probably pre- This has not been just a Nixon phe- Committee on lntelligence that from vent some of the more egregious abuses 1940 to 1975, the F.B.I. alone had nomenon. Virtually every President since of the last sixty years, especially if installed some 10,000 taps and bugs. Congress takes its substantial oversight Franklin D. Roosevelt has approved, This is only a small portion of the surveil- obligation seriously. And many of the condoned and encouraged at least some lance that actually took place, since the specific definitions and provisions are a of these violations, though the Nixon C.I.A., the N.S.A., the I.R.S., the military good model for similar types of legisla- people did seem more enthusiastic and and some twenty other Federal agencies tion on F.B.I. charters and the like. All shameless about the matter. also tapped and bugged. The number of in all, the statute is a remarkable achieve- §In 1941, Attorney General Francis people and conversations overheard is ment at a time when much of Congress Biddle had the Los Angeles Chamber of incalculable, but it must be enormous. seems eager to forgive and forget the Commerce wiretapped as "persons And here again, the results have been intelligence agencies' abuses. suspected of subversive activities." meager. Talking to John Dean on Febru- In a rational world wiretapping and ary 28. 1973, Richard Nixon com- bugging would be banned, except in §In the early 1960s. Attorney General mented: "They [the taps1 never helped circumstances involving the most serious Robert [Kennedy authorized a "national us. Just gobs and gobs of material: threats to life or national security and security" investigation of the sugar lobby, gossip and bullshitting [unintelligible]. then only under the strictest judicial including taps on a law firm, executive . . . The tapping was a very unproductive controls. Obviously, that's not going to branch officials and a Congressional aide, thing. I've always known that. At least, happen. At the very least, though, we plus a microphone in the hotel room of it's never been useful in any operation should: the House Agriculture Committee chair- I've ever conducted." (1) Stop electronic surveillance in man. Disqust and anger at these gross viola- gambling and drug cases as useless and §In an effort to destroy Martin ~~th~~tions bf basic decency probuced the expensive. This alone would eliminate Foreign lntelligence Surveillance Act of ~i~~,J~,,J. €dgar H~~~~~ had the F,~,~, most of the taps and bugs. 1978. Originally proposed by Attorney End state and local wiretap author- install sixteen "national security" taps (2) General Levi after the Church Committee ity, which was included primarily for and eight room bugs in Dr. King's hotel revelations, the act creates a secret wire. New York City prosecutors; the 1977-78 rooms and offices from the fall of 1963 tap court to consider G~~~~~~~~~ appli. figures show their disenchantment. Never- until his assassination in 1968; New York cationsfor electronic surveillance of theless, state and local wiretapping still City and Miami police also bugged Dr. foreign powers or foreign agents. The accounts for 80 percent of the total, King at the F.8.l.'~ instigation, even in President is denied any inherent or other (Continued on p. 501

VOICE for the DefenselNovember 1979 QUALIFICATIONS AND BY-LAWS COMMITTEE Ronald D. Zipp, Chairman Members: Waggoner Carr, Oliver Heard, Jr., Louis Dugas On October 26, 1979, an informal present at a particular annual meeting, Dallas on November 30, 1979. At that discussion group was chaired by Mr. this may very well be a workable solution time, it will be necessary to have the By- V. Perini, concerning the TCDLA By- in which the By-Laws would need to be Laws changes in final form as well as Laws Committee. At that time, the fol- amended. properly present and defend your lowing was discussed: 6. Even though we are the TCDLA, thoughts and actions on that particular 1. There appears to be felt among the we should allow others to become By-Law change. members that we set out in the By-Laws members who are not "actively engaged" Of course, should there be any addi- precisely the fact that the directors are in the Criminal Law. This would allow for tional changes or thoughts that we need holding their positions in staggered terms various professors and interested bene- to discuss, please write them down and with the most that a director can hold factors who are interested in criminal law call them into my office. being a three-year term. Also, there was to participate and join our membership President V. Perini has also indicated some discussion concerning assigning each without having to be "actively engaged" that it might be well for us to use con- director a number so that when his term in Criminal Law. This change should be ference calls to handle as much of this is completed, we merely need to suggest fairly easy to achieve. information so that we will not have to that his number needs to be replaced, 7. There was also some discussion have many, many meetings. o similar to a place on a ballot. There was about possibly reducing the number of also some discussion concerning using the the Board of Directors at this time. This State Bar lists as to lawyer populations may need to be thought about before any ETHICS OF REPRESENTING and trying to have various representatives actual presentation or amendment of By- INDIGENT DEFENDANTS for the areas in Texas. Someone indicated Laws is attempted. that this may be answered or expounded 8. Further, on October 27, 1979, - cc: Client on in Article VI, Section I, of the By- David Spencer suggested that we raise the -Acknowledgment of referral to - Laws. dues for certain affiliate members, such as 2. It was next discussed that the law professors and other people who - cc: Client Nominating Committee Report needs to might be interested in joining our organi- -Notification of next of kin be completed at least 60 days before the zation but are not attorneys. This again, - cc: Client Annual Meeting. The thrust of everyone's is something that we as members of the -Notification of first setting feelings was that we need definite dates By-Laws and Qualifications Committee - with Client -Client which should be dated back from the can be looking into. This should be easy - without in jail date of the Annual Meeting. Assuming of to change. Client course, that we keep the Annual Meeting This report was given to the Board of -Notification of next setting at the State Bar Meeting, we will need to Directors on October 27, 1979, and - with ClientClient set the appropriate guidelines accordingly according to President V. Perini, he - without in jail and thus change the By-Laws if it is so would like to have some action on this Client deemed by this committee and the rest and tentative drafts of changes in the By- -Notification of plea of guilty of the organization. Laws to be prepared by November 30. - with ClientClient 3. There was also some discussion 1979, so that we may once again meet as in jail concerning the elimination of the need a committee in Dallas to discuss our -Notification of trial on merits for ten directors to sign a nomination for individual findings. - with Client -Client office of directorship. Some members President Perini also asked that we in jail felt that we ought to delete the word start preparing a report of the committee -Final letter to Client directors and put in its place members so and submit it to Mr. Clif Holmes for as to allow the members to have a voice publication in the VOICE. Therefore, it is in running this organization. imperative for each member of the By- 4. There was also some discussion in Laws and Qualifications Committee to BUGGING REVISITED: THE the nomination of two candidates for select three topics which he would like WIRETAP DECADE president and each position that we to pursue and prepare a draft of the By- from paqe 49 presently have in the TCDLA. The By- Laws so that they might be changed ac- Laws would need to be amended in this cordingly. After you have selected your even though the abuses are great and the fashion to properly reflect this. ,three topics, please call my office and results are meager. 5. To stimulate full scale participa- advise either myself or my secretary as to (3) Eliminate microphone surveillance of rooms or houses. Bugs are especially tion in the election, the thought has which topic you so desire, so that I may indiscriminate and uncontrollable and of arisen that we mail out our ballots for make the appropriate assignment based no special value. President, President-elect, and all other upon the wishes of all the members of New and more penetrating methods of officers and directors in a mail-out cam- the committee. As soon as I receive your surveillance are already here. If we don't paign rather than requiring everyone to desires, I will assign each member of the start doing a better job of protecting our be present at the annual meeting. Due to committee two topics to be prepared to shrinking enclaves of intimacy, we soon many conflicts that can arise to being present to our committee meeting in won't have very much left to protect. o

November 1979AIOICE for the Defense CRIMINAL DEFENSE LAWYERS dick's election. ("Apparently John is SAN ANTON IO-scene of recent PROJECT from paqe 7 becoming a little paranoid if he truly membership drive and board feels that way," says Graddick.) The duced on a regular basis. This year the meeting people who picture Graddick as the next Criminal Justice Division of the Office of George Wallace portray him as a man Pictures below and on the back cover are of the Governor has recommended the Pro- TCDLA officers and board members, andguests whose feelings about the death penalty ject for an outstanding grant award. As being told about the organization. Immediately are not nearly so strong in private as they below is Board Member Jan Hemnhill waiting a member of TCD LA your representatives are in public; he is only demagoguing, to make a call, and at the bottom is a scene on the governing body of the Project are from the reception. On the back cover are: (I) they say, to whip up the voters. Graddick President Vince Perini, Charles Butts, Bob Jones and Stanley Weinberg with San An- says it isn't so. "It's extremely easy, tonio members Sam Bayless and Cecil Bain; Weldon Holcomb, Chairman of the Exe- (21 Ron Zipp and others are standing on a extremely easy, and so comfortable to cutive Committee. State Bar representa- street in downtown San Antonio discussing say exactly what you feel, and that's where to go; (31. (41, (51 are scenes of com- tives are President Chrys Dougherty, what I do," he says. "I truly believe in mittee meeting; (61 and (71 were taken at the Robert Snell, and Robert Jones, Vice- reception. what I say. If that's being a demagogue, Chairman of the Committee. Ex-Officio then I guess I'm one." II members are Tom Hanna.. Executive Director of the State Bar, and Willis Whatley and Larry Craddock of the Criminal Justice Division. The staff con- TEXAS CONTROLLED sists of John Boston, Director, and Janet SUBSTANCES ACT SCHEDULES Davisson, Administrative Assistant; and from paqe 46 currently, Clif Holmes, Kerry FitzGerald, and Walter Steele are under consultant material, compound, mixture, or prepara- contracts for editing of one or more of tion containing limited quanitites of any the Project's publications. of the following narcotic drugs, or any If you would like to prepare an article salts thereof: and speak at one of the Project's various (1) Not more than 1 milligram of courses or institutes, contact John Boston difenoxin and not less than 25 micro- or Janet Davisson at (512) 475-5498 or grams of atropine sulfate per dosage Box 12487, Capitol Station, Austin unit. 78711. ~7 Sec. 2.07 SCHEDULE V. (a) Schedule V shall consist of the controlled sub- stances listed in this section. ELECTRIC CHAIR CHARLIE (b) Any compound, mixture, or pre- I'rom paqe 12 paration containing limited quantities of neck of a black suspect in an effort to any of the following narcotic drugs, terrify the man into giving information.) which also contains one or more nonnar- "Of course," Graddick says ruefully, cotic active medicinal ingredients in "Michael Figures would say I didn't try sufficient proportion to confer upon the hard enough to get convictions." The compound, mixture or preparation valu- reason he couldn't get convictions, he able medicinal qualities other than those says, is that the defense in both police possessed by the narcotic drug alone: cases struck all blacks from the jury (1) not more than 200 milligrams of panels. "The facts in both cases were very codeine, or any of its salts, per 100 milli- clear that they did what we said they did, liters or per 100 grams; but the juries found them not guilty," he (2) not more than 100 milligrams of says. 'We later found out that one dihydrocodeine, or any of its salts, per member of the jury was a charter member 100 milliliters or per 100 grams; of the White Citizens Council." (In (3) not more than 100 milligrams of Alabama, of course, the all-white jury is ethylmorphine, or any of its salts, per usually the bane of defense attorneys.) 100 milliliters or per 100 grams; Already people in the state are talking (4) not more than 2.5 milligrams of about Graddick as a future governor. diphenoxylate and not less than 25 "Graddick is a pretty powerful old micrograms of atropine sulfate per dosage sucker," says John Evans, whose admira- 'unit; tion for the attorney general has cooled (5) not more than 15 milligrams of since the stay was granted. "He's got a lot opium per 29.5729 milliliters or per of political ambition and he doesn't care 28.35 grams. how he makes his Brownie points."John (6) not more than 0.5 milligram of Carroll believes that the current governor, difenoxin and not less than 25 micro- Fob James, has hardened his stance in grams of atropine sulfate per dosage unit. favor of the death penalty since Grad- (c) Loperamide. o

VOICE for the DefenselNovember 1979 51