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Criminal Defense Lawyers Association I May 1989 CONTENTS V01

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Criminal Defense Lawyers Association I May 1989 CONTENTS V01 for ttw D€F€NS€ Official Journal of the Texas Criminal Defense Lawyers Association I May 1989 CONTENTS v01. 18,No. 9 FEATURE ARTICLES 6 Amicus Brief Concerning Art. 44.29 by David L. Botsford and Joseph A. Connors 10 A "Homeland" of Confusion: A "Heartland" of Opportunity by Marcia G. Shein, M.S., .ID.andKim Harris JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 14 DWI Litigation Part DI by J. Gary Trichter VOICE for the Defeme USSN 0364-2232) i published monthly by the Texas Crimina 18 The Application of Article 20.08 C.C.P. Defense Lawyers Assmiation, MK) W. 13th by Bill Rice Austin, Texas78701, (512) 478-2514. Annua 20 Summary of Significant Courts of Appeals Opinions (Criminal) P~ U subscription rate for members of the associa by Roy E. Greenwood tion is $103, which is included indues. Secom class postage paid at Austin, Texas. POST MASTER: Send addm changes to VOICEfo~ rheDefeme, 6W W. 13th. Austin, Texas 78701 COLUMNS All articles and other editorial contribution 3 President's Column 31 List of GrantedPetitions should be addressed to theeditor, Kerry P. Fitz by HwrdMalien for Discretionary Review Gerald, ReverchonPlaraat Turtle Creek, Suih 4 Editor's Column by John Jasuta 1350,3503 Maple Ave.. Dallas, Texas 75219 Advenisinginquiries and mnhacts sent to Allex by Kerv P. FitzGerald 33 Ethics Notes - Connally, Artforms, Inc., 6201 Guadalupe 26 A View from the Bench Attorney Advertising: Austin. Texas 78752 (512) 451-3588. by Judge Sam Houston Clinton Ethics Gone Awry EDITORS 28 A Federal Perspective -Right to by Keith E. Jagrnin Counsel Under the Sixth Amendment Editor, VOICE for the D&se 38 In and Around Texas Keny P. FilzGeraid by Judge WI~E Sanderson, Jr. by John Boston Dallas Business Editor P. R. "Buck" Files, Jr. Tyler 5 Index to Adveaisers 34 Lawyers' Assistance Editor, Significant Decisions Report 19 Friends of TCDLA Auction Committee Catherine Greene Burnett 31 CDLP/TCDLA Seminar 37 American Bankers Houston Schedule Association Seminar OFFICERS 32 Classified Ads President Edward A. Mallen Houston PAST PRESIDENTS President-Elect Charles D. Burs. San Antonio, (1987-88) George P. Luquette. Hourron (1918.79) J. A. "Jim" Boba boxJones, MeAUen (1986-87) Emmen Colvin, Dallas (1971.78) Odessa Louis Dugas, Jr.. Orange (1985-86) Weldon Holmmb, Tyler (1976-77) Clifton L. "Scrappy" Holmes. Longview (1984.81) C. David Evans, San Antonio (1975-76) First Vice-President Thomas G. Sharp. Jr.. Brownsville (1983-84) George E. Gilkerson. Lubbock (1974-75) Tim Evans Clifford W. Brown, Lubbock (1982-83) Phil Burleson. Dallas (1973-74) Fon worth Charlcr M. McDonald. Waco (1981-82) C. Anlhony Friloux, Jr.. Hourlon (1912.73) Bohen D. Jones. Austin (1980-81) Prank Maloney, Austin (1971.72) Second Vice-President Vimenl Waker Pcrini, Dallas (1979-80) Richard A. Anderson Dallas ASSOCIATE DrnORS DIRECTORS Secretary-Treasurer MerrileeL. Hmmn Harry R. Heard George Seharmen Don Adam Gerald H. Goldstein Wsm Langview Sm Antonio Irving San Antonio David L. Botrford Jeffrey Hinkley David A. Sheppard Mike Brown Auslin Midland Auslin Lubbek Assistant Secrelary-Treasurer William A. Bratlon m Pank JacLson Mark Stevens Wi!llam T. Hsbern David R. Bires Dallas Dallas San Antonio Sugar Land Houston Stan Brown Jeff Kearney Jack V. Strickland Bob Hinton Abilenc Fon wonh Port worth Dallas STAFF Charles L. Capenan John Linebarger I. Douglas Tinker Julie Howell DaUan Fort worth Corpus Christi Aurtin Executive Director Joseph A. Comors m Lynn Wade Malane slanley I. weinberg Chuck Lanchm John C. Boston McAUen Wac0 Dallas Lubbock Dick M. DeGucrin Edmr A. Maron Sheldon Weisfeld Margy Meyers Administrative Assistant Hwltan GI.. Brownsville Hourtqn Lillian Summarell Bob Estrada John H. Miller. Jr. William A. White David hlitcharn Wichila Palls Sinton Secretary Austin Hwston F. R. "Buck" Files. Ir E. G. ''Gerrv" Morris Dain P. Whitwonh Rod Ponton Shannon McIntosh Tyler Austin El Paso B~nWreeperlSecreta~ Camlyn Clause Garcia Bill Wirchliwrnper Dennis PwdI HWE~O~ Linda Shumate HWSIO" hbbek Orange Ronald Guycr Charles Rinenherry Roben J. ~ng~ine George Roland San Antonio Amadlo MeAllen McKinncv Mark C. Hall Kent Alan Schaffer Jack B. Zirnmermam Lubbock Houston Houston President's Column In my travels around our state and na- The parole law charge says the jury can tion this year, our system of criminal jus- consider the existence of good time and tice in Texas has captured attention and parole, but cannot apply the law to the mpect.I'vetoldmany groups whythebest facts. Is this law stupid? Well, it's defini- criminal lawyers wme fromTexas: We let tively vague. thejury decide punishment. I tell them that The only proponent of the bill was a Texas jury considers a wide range of Rusty Hardin, Chief Misdemeanor punishment, including probation. If a sen- Prosecutor and designated lobbyist for the tence of incarceration is imposed, a parole Hanis County District Attorney. Hearings board staffed by corrections experts stmed at 230 on a Monday afiemoon and decides when supervision outside prison Chairman Morales held us until around walls shall begin, based on the original 8 p.m., at the end of his program. Rusty offense, the defendant's conduct after sen- spoke only a minute and was lukewarm to tencing, victim impact statements, prior the bill, but the District and County prison terms and so on. Attorney's Association owned the Chair. Jury sentencingallowsTexaslawyersto The proponents of the bill needed five "shoot it out" in the courtroom, even when votes to get it out of committee, and Chair- punishInent is the only real issue. Since man Morales hadonly four. He had lost his Ed Mallett everyjury can, if it convicts,reconsider the quorum. Then, Morales called in Rep. I equities in the facts and theindividual char- Tony Polumbo, from an adjacent room. acteristics of each defendant, Texas Although Polumbo hadn't heard a thing on constitutional amendment in Novem- lawyers try more cases, pick more. juries, that we had to say, that "bad 01' bill" got ber, would cure only the "separation-of- present and examine more witnesses, give voted out anyway. powers" issue discussed in Rose, which more arguments, and raise more issues on The parole law charge con~prisesthe waS decided on narrow grounds. A host of appeal. Governor's traditional responsibility as state and federal challenges to the concept Trial by jury means a lot in Texas; it is chief executive for evaluating convicts for of having each jury consider the "exist- atradition that every Texan should defend. supervised release (the Attorney General ence" of the parole law, but prohibiting Which takes us to new legislation. of the United States does the same job). discussion of its relevance to a case, have Many proposals which would affect jury Evaluation for pamle has never been a jury never been examined by the Court. There bids are obviously based on unhappiness function. In practice, this charge consis- will be countless attorney-hours expended with the result in a particular case, are tently confuses and misleads, and does not challenging sentences based on the new designed to enhance thereputationof some assist juries called upon to assess punish- law, and determining what will be admis- "hang 'emhigh" politician,orreflect trade- ment. It does not inform juries about how sible because of it, even if it is upheld. offs for support on other, unrelated, bills. good time and parole will affect the case In short: Thelegislatureis keepingus in For example, it was both interesting and they are deciding. business. distressing to watch Rep. Dan Morales Two years ago, TCDLA speakers Inother areas. TCDLA efforts to protect work out as Chairman of the House predicted that 337.07 would be declared the right b, lrial hy jury hilvc largeiy hccn Crimnal Jurisprudence Committee. He illegal. The Rose decisiondid it, and, now, successful in thiss~xsion.I:~~rcxaniplc, we would smile and nod agreeably and say several hundred defendants, most of them beat back guideline sentencing and "Yes, yes," with hiseyes, buthisvotessaid confined, areawaiting reconsideration and stopped a bill which would have given "no-no." retrial. By its 1987 amendments to $37.07, prosecutors the exclusive right to elect In the legislature, as at the courthouse, thelegislature gave many of us a chance to whether judge or jury will assess punish- a deal is a deal. look good on appeal, by adding great un- ment, and we headed off countless efforts A case in point: The TCDLA put on an certainty to the law. by vigilante groups and local interests to impressive show at Morales's public hear- This is true irony: The prosecutors seek tinker with the law. ings on the "parole law instruction'' bill longer jury sentences through this legisla- I think we are sometimes too passive before the House Committee Juris- tion, but the same law, in its 1987 version, about our successes. We are constantly put pmdence Committee - Richard Ander- made hundreds of judgments of doubtful on the defensive by the emotional respon- son, Steve Mwin, John Boston and me. validity. The financial and social costs of ses which atise when police misconduct or This biil re-enacts the special jury charge this folly have been enormous. We told incompetence is at fault for a nolle, or a on good conduct time and parole found in themit was anunconstitutionalenactment, reversal. The defense lawyer shouldn't 1987 amendments to Code of Crinunal and they wouldn't listen. Procedure 937.07, which were held uncon- The new biil and its companion, a stitutional in Rose v. State. Senate Joint Resolution calling for a vote contimed oz page 30 May 1989 1 VOICE for the Defense 3 Editor's Column "If I had to identify a single director opinions of the Courts of Appeals as well who has given to the association of his as the Court of Criminal Appeals, Fifth time, his money, and his brilliance sig- Circuit, and Supreme Court and taking ac- nificantly above and beyond the call of tion whenever it is appropriate and/or duty, I would be honored to designate necessary.
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