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The Legality of the Prosecution's Theory in State V. Mattox

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19, 12, OCTOBER 1990 @ VOLUMF. NO. 1 FOR THE DEFENSE JOURVAL OF THETEXAS CRIMLNAL DEFENSE IAWYUI. ASSOMJATION CONTENTS is I@- Features in. - ip- 7 Mike DeGeutin: Outstanding Criminal Defense Lawye1 1989-90 30; by Tim Euam in- i? D.U.I.D. Defense Technics: D.U.I.D. Comes to Life in Texas (T Dy Koy 1: Rages, Jr. e., 9 The Legality of the Ptosecittion's Theory in State v. Mattox T' by \V. Robert Gmj~ 11 ObjectionePart 3 by Justice Wlz& i%ol?~llsa~td I'r0f&S0~M~7/i,12~/61 ~EJ~I?~o~%? 14 Search and Seizure-Part 3 by CCariifire Greene Blrr17elt 17 Bank Fraud-Part 3 b31James C. SIIbIIlos and R~rsseIIR. Olioer 3 P~esidenfsColumn 21 Federal Impact Decisions Ly TfmEuam by Charles BInu crnd Keuin CQ//~S 4 Editor's Column-The Marion 25 Granted Petitions for Bar~yVoir DilePart 2 Discretionary Review '6y Kerq P. PitzGer@Id 24 D\Vl P~acticeGems 5 In and Around Texas byJ. Gdiy Tricjler hy John Bostoir 27 Fotrnsic DNA P~ofiling by Jl~aitil.lmIiwz Gortrnks -News 39 Tentative CDLPf l'CDLA 27 Nominating Con~mitteeof the Seminar Schedule TCDLA 1991 Board of Directors Lawver's Assistance Committee Members District 1: Jack strickland District 6: Charles Rittenberrg 500 blain St, Ste 201 Robert Y'mguIme 5W Pisk Btnldmg ~ortWmh Texts 76102 821 Nolma Amanilo, Texas 79101 (8171338-1h bldlen, Texas 78501 (8961372-I217 District 4: (512M2 43m Wark Hall Elred R. "Buck" Flles, Jr. Douglas Tih P.0 Box 2187 109 Wen Perguson 622 8. Tancahua LL~bbxk.Texas 79408 Iriler. Tcxas 75702 Coqm Chnsti, Texas 78403 (512)822-4378 District 5: District 7: Jack Zimmemmm &Jim lavine Gerald H. Goldstein, Chairman Fwe Pas1 Oak ark, Ste 1130 29W Tower Life Bdding Hougton, Terns 77027 San Antonlo, Texas 38205 (713)552-0300 612)26G1463 Lxs&c% Kent Schaffer DEstrict 8: Ed Mason 3Wo Tcxas Colnnlerce Tower Bill White & Bill AUlson 12221 i\lerit Dr.. Stc. 850 6WTmvts Street 130(, Nueces B 1990 TEXAS CRIMINAL DEFENSI Dallas, Texas 75251 Houston, Texas 77WZ Amtin. Tms 78701 214)B1-0200 LAWYERS ASSOCIATION (7131228-85W (512)472-0144 - -- - - - VOlCE FOR THE DEFENSE PRESIDENT'S COLUMN I The Legislature's Coming! The Legislature's Coming! Like it or nut, the Texas Legislature meets every two years Cat least). Even though the 72ndSession does not begin until Janua~y,1991, pre-filing of bills may begin as mrly as November I, 1990. While we've been busy with our law practices various bureaucratic enti- ties have been working through the sumnler and fall "building the peifect beast" (apologies to Don Henley). I suppose undaunted by the fact that evexy legislatufe befo~ethem, at least since the 192l "Crime Eradication Aet," has tried, and failed to stamp out crime by the passage of laws. Iwrite to inform you of what's on the hmieon and to en- courage your assistanee in providing a them of the hazards of this dmconian measnre of reality to the political rheto system. We must tell them that the ric. federxl guidelineswe~erushedthrough Sentencing Congress wrthout study or considera- The Criminal Justice Policy Council tion and passed as a "ne~on crime" of the Governor's Office is workmng measure. They should know that even under a legislative mandate fmn The the fede~aljudges ale adamantly op- last session to develop and propose a posedto then1 7lley do notachiive the seentencingp~acticesstudy.This is to he stated result of uniformity of sentencing submirted to the legislature for ap- but rather result in gross disparity proval and funding. The staff of this brought on by the prosecutors' ma- project has been conducting a sluuey. nipulation of indictment counts. Our Originally only prosecutow, judges and state judges need to know that in prac- probation personnel were being polled tice they would be abandoning their but a fail minded person among the sentencing anthotity to pibation 0%- prosecutcuts suggested that they contact ce~sand plosecutors. The people need weldon- 3ur Executive Director, jolm Boston. toknow that their right to pa~ticipateas Tyler (1976.77) lohn has been successful in getting juries in sentencing wouki be abol- hem to call 'I'CDLA members for a ished. They also should know that the nore balanced survey. Theil question- spte~nwould be ext~wnelyexpensive iai~eis very lengthy and it \dl take 30 to implement. 0 45 minutes ta talk with them. Pmsecutorial Wish List qosveverit is time well spent and if you The prosecutors' legislative appetlte lave not retmned their call, please do temarns voracious. Unsatisfied by the ,O at once. feast they have been sewed, they siill From their questions, it appeals that demand dessert. On their agenda is, of here is serious considelation to imple- course, the continued quest for unlim- neating a guideline system of sentenc- ited om1 confe&ons. They refer to ng. As we have seen, those who take themas voluntary but weall know who he easy way aut simply copy someone gets to say whether or not they are 4se's work and you know that that ~luntary-the police. Also on the neans the fede~alsentencmg guide- wish list is: ines. It is therefore our duty to speak o every person we know and wain VOICE FOR THE DEFENSE 7 EDITOR'S COLUMN I The Marion Barry Voir Dire Part 2 UNITED STATES DISTRICT COURT FO . DISTRICT OF COLUMBIA : Crmlinal Case : No 90-om ilARlON S. BARRY, JR. : Cl'PJl rnstn~ctions You are now a prospective jumr in a riminal case known as United States u. d.lartom S. &1r3: Jr Trial is expected to begin immediately aher selection of a jury. The purpose of this questionnaire is to assist the Wit and attorneys to select a fgir You will be asked follow-up questions in and impartial jury to hear and decide this open court regarding your answers on th~s case. The defendant, Marion S. Barry, Jr., questio~aueat the time you are separately has been charged with violating certain examined outside of the presence of other federal laws relating to possession of a prospective jurors If there is any deeply controlled substance, cocame, and niaking personal or confidential information called false statements to the grand jury while for by these questions that you believe yon under oath Mr. Barry has denied the have a legitimate reason to keep out of the charges and eMencd a plea of not guilty. public hain, and you wish to discuss Please answer each question below as those matters primtely with the Coun and completely and accurately as you can counsel, you may be permitted todo so, bul Comdete candor is emected of vou. Truth- you must make a request for prn-acyknown lid atrd non-cvasivc :inswcrs ere rcccrs:rrj to the Court in you answer to Questlon No. to c~isurcllrdt lx~ti~ttr! -m~\~rrn~~icnt and tI1c 69 or at the time you are being questioned defense have a meaningful OppoNunity to individually. satisfy thenwelves that a fair and irnpdr~ial Eow that you are a prospective juror it is fury has been scated. Your answets sl~ould important that, except as part of these enable the Coua and the lavers to deter- psoceedqp, you are not exposed to any mine whether yon will be abk to act as an outside informatron about this case. For this obiiaive and nnbiased dec~sionmaker. BY reason, you are no1 to lead, watch m listen fully ;msw!ring ~;uhql~cstim you will slvc to press reports relating to this case or the aulrat deal oitin~cI:~t~nmfi,rth:Cuun ;ord trial. You are also instructed not to discuss the attorneyqas well as yourself and fellon, the case with anyone, induding another prospective iu~ors. juror, or to let anyone talk toyou about the You are reqwred w sign yaw question- case. mire, and your answers are considered to bestatements g~ventotheCo~i#underoath Thomas PenF~eltlJackson Ifthespace pro\~rdcdfor youis not sufficient US. District Judge for a full ansnrer to any question, you may shnply continue tlm answer on one of the blank pages at the end Be sure to write the question numbet next to the remainder of your answer to make clear wludl question vnnn *- continuiog to answer. Please wvnce Contimed OltPCIge34 OCTOBER 1990 YOlEE FQIZ THE DEFENSE IN AND AROUND TEXAS Ahneed Pzdeml Crhind law shgt.t sum If you attended, you am aware that, sWtanrivdy and aadern?cacalIy. the federal course in Houston was out- stan&ng. To ass& fedEd pm2ianes who did nat attend the muse4TCDU is cfffaring tk course book far deat $150.0o ta~includ~a plus shipw and handling. As TCoLA Pre&&nt Elect Rirhard kaclem need In his fetter to this wrk& regarding tlme CQU~boek and the Pedenl Shot%Ccupse, the-progmrn and boak were pmduced, "wvitb em- phasis on repr~~rbet Wte ad- far' defendant Cand to proVrde) the practftioner w& an outstandhg set c& Iran-Contra faelsuhitsan atrlcle on a~tbh&hat prwts an invduabke Bdnk Fmd pmvidirig mt only the remum for Gy individual who finds ctlpmmt&thel&w in that am,but hinwelf in a position afrepresentingrfie ahliming the prtpsenttioos that have white collar accuml in a fedezal imes- been brou&t by rhe &mkkDusl Task figation. WIhouf qwali&&on, I Jbmfa Tkms. The ieSults of thme ree~mmpfndthls mnual m mu and ihvestipati~nsare included, and the pmcritionef is 5Zrown the extent and oatly ad." types of prmcutims &at iw ured in A summary of Andqmn's comments &h a.Large amounts of @sern- follpw: meof the h&hliphw offhe rnent 1~9~urcesare currently beiw mama[ are Dan Wmnl!sPWmIP'c- paudinto speebllzed fnwgtg%tio~s.
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