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. Although the committee has David Botsford." So spoke our pident, done a lot of goud work this past year, Ed Mallett. David believes that a lot more could have Quite frankly, all of us have to be im- been done. The problem, however, is that pressed with a person who so competently foronereasonoranother,fewmembersare chairs the TCDLA Amicus Committee. willing or able, due to time constraints, to Forthis reason,David Botsfordis specially get involved with the committee's work. recognized in this issue of the Voice. Davidhas indicated thathewill suggest David Botsford graduated from to Ed Mallett and Jim Bobo that serious Southern Methodist University School of consideration be given to having the for- Law in 197.7 (orderofthe Coif).He clerked mal appointment of an appropriatenumber for Judge Truman Roberts on the Texas of directors andlor associate directors to Court of Criminal Appeals from 1977 to the Amicus Curiae Committee. Since there 1978. He is Board Certified in Criminal are46 directors and associate directors, the Law (1983) and has been a member of the work load could then be spread without Kerry P. PitzGerald Criminal Law Examination Commission necessarily causing anyone a hardship. of theTexas Board ofLegal- S~ecialization* Then, out of the 46. there could be the since 1986. creationof subwmmitteestoeovereachof the ability ofthe jury to fully consider and David has been a member of the Board the geographical areas that relate to the give effect to the relevant mitigating of Diiectors of TCDLA since 1986 and is various Courts of Appeal, as well as the evidence of MI. Penry's mental impair- currently chairmanof theTCDLA Amicus subcommittee to cover the Court of ment and tmubled childhood, and did not Committee. If the truth be known, he has Criminal Appeals, Fifth Circuit, and address the issue of whether it is uncon- substantially contributed to this Commit- SupremeCoUa.David admitsthat this may stitutional to execute a mentally retarded tee since at least 1985. David is a graduate be too ambitious or unworkable but sW- individual. of the National Criminal Defense College ses that it wouldcertainly aUowTCDLAto October 6,1988: At the request of Mr. and is a member of NACDL. He has take a more active role in providing input Gilbert Hargrave, the TCDLA Amicus spkcn on frequcnt c~casionsat various to thc Courts, input which hc bclicvm is Lhriae Cornnlittec, acting by and through Bar 'I'CDLA and Statc lnstitutcs and has sorelv nccdcd. Ihvid Hotsford.-. filed its.- statement . in suwr published numerous articles in the Voice ~iefollowing is a summary of the port of appellant's motion for rehearing and various law reviews. He currently major efforts of the TCDLA Amicus with the Court of Criminal Appeals in practices in Austin with the law fum of Curiae Committee activities from June I, Beets v. State. This case involves the Alvis, Carssow, vonKreisler and Gotcher, 1988 to the present time (minor efforts proper interpretation of Section P.C. would include giving oral or wtitten 19.03(a)(3) of the Penal Code (murder for The Amicus Committee has never been opinions on issues of law, responding to renumeration). a "structured" committee with regular requests for information from TCDLA October 13, 1988: The TCDLA meetings. At least since 1979-1980 when members, and responding toinmate letters Amicus Curiae Committee, acting by and David first got involved at the request of to the committee; David Botsford has per- throughDavidBotsford,fileditsstatement V. Perini and in conjunction with Arch formed the vast majority of the minor ef- insupportofappellant's motionforrehear- McCall, the committee has acted only folts): ing with the Court of Criminal Appeals in when requested by counsel of record. That Forte v. State. This was done by the com- is still true, although this year the wmmit- September 9,1988: With the consent mittees~~sponte due to the importance of tee involved itself in Pen~yand Fort of Mr. Curtis Masun, tbcTCDLAAmicus theissnes involved. This case involves the without a request from defense counsel on Curiae Committee, acting by and through issues of whether the right to counsel either case. Mark Stevens, Carolyn Garcia and David provision of Article I, Section 10 of the David personally believes that there is Botsford, filed its amicus curiae brief in Texas Constitution is broader than the considerablv more work that the commit- support of petitioner with the Supreme Sixth Amendment's right to counsel, teecouldGdoin& but theworkload is too Cowl of theunited Statesin Johnny Penry whether it can be triggered without the great for the people who are willing to do v. James Lyrtaugh. The amicus brief ad- filing of formal charges, and whether a something. He believes that the Amicus dressed only the issue of whether the jury person is entitled to counsel when con- Committee should be reviewing the insmctionsgivenby the trial court limited fronted with a demand by a peace officer

4 VOlCEfor the Defense I May 1989 to take abreathalyzer (i.e., whether such a defendant received more punishment than Despite a motion for bond presented by demand is a critical stage triggering the the minimum for which he was eligible. EdgarMason totheDistrict Judge, no bond state constitutional right to counsel). February 2, 1989: At the request of was set. Again, an original writ was filed November 1988: The TCDLA Amicus Stan Brown, the TCDLA Amicus Curiae by the TCDLA amicus curiae and Lawyer Curiae Committee, acting by and through Committee, acting by and through David Assistance committees, acting by and David Botsford, submitted affirmative Botsford, fded its statement in support of through Mason and Botsford, with the legislationforsubmission to thelegislature appellant's petition for discretionary Court of Criminal Appeals. The Court of to the Legislative Committee of TCDLA. review with the Court of Criminal Appeals Criminal Appeals immediately entered an The proposed legislation would amend in Adkisson v. State. This case involves the order setting personal bond (as it did for section 2.01 ofthe Penal Code and Section issue of the appropriate standard to be ap- George Roland) and Haynes was released 38.03 of the Code of Criminal Procedure plied in determining whether "serious within two hours. Judge Roach was again to establish a definition of the term bodily injury," as defmed in Section 1.07 ordered to respond to the allegations of the "reasonable doubt" and would authorize of the Penal Code, has been proven by the writ within 30 days. the submission of that definition to juries State. March 14,1989:The TCDLA Amicus in criminal trials in Texas. This proposed February 9,1989: George Roland was Curiae Committee, acting by and through legislation was submitted due to the fact called to the witness stand by thestate in a Joe Connors and David Botsford (with that the Court of Criminal Appeals has hearing to supplement therecord on appeal input from Jack Zimmermann and Teny consistently held that the term should not in a capital case (State v. Robert Fxcell Kirk), filed its amicus curiae brief in sup- be defmed and that trial judges should not White). George Roland invoked the attor- port of the appellant with the Court of submit a definition of the term to juries. ney-client and work product doctrines as to Criminal Appeals in Grimes v. State. This The proposed defmition is substantially questions propounded to him by the State. case deals with the retroactive application identical to that used in federal district Judge Roach, 199th Judicial District, sum- of Article 44.29@), Vernon's Ann. C.C.P. courts throughout the geographic area marily overruled the assertions of the At therequest of TCDLA, Presiding Judge covered by the Fifth Circuit. It was also privileges, held Roland in contempt, and McCormick informed David Botsford that "run by" Mr. Carl Reynolds, General ordered him to jail without setting bond. the Court would consider the arguments Counsel for the Senate Criminal Justice David Haynes, co-counsel with George contained in Grimes in subsequent cases Committee, for comment. He felt the bill Roland, contacted David Botsford at ap- submitted to the Court involving the ap- made sense. It was submitted to John Bos- proximately 1:00 p.m., related the forego- plication of Article 44.29@). ton for appropriate action. ingtoBotsford,andinformedBotsford that March 20,1989: At the request of the November 3,1988: At the request of Roland was tocheckintothe Collin County defendant, Michael Steames, the TCDLA Harry Nass, the TCDLA Amicus Curiae Jail no later than 500 p.m. that afternoon. Amicus Curiae Committee, acting by and Committee, acting by and through David The TCDLA Amicus Curiae Committee, through David Botsford, and the Lubbock Botsford, fded a statement in support of acting by and through Botsford,along with Criminal Defense Lawyers, acting by and appellant's petition for discretionary the TCDLA Lawyer Assistance Commit- through Ralph Brock, filed an original ap- review with the Court of Crinlinal Appeals tee, acting by and through Edgar Mason, plication for writ of mandamus and in Gallegos v. State. This case involves the filed an original writ of habeas corpus, prohibition with the Court of Criminal Ap- attempted retroactive application of Ar- prohibition and mandamus with the Court peals in State v. Steanles. This case deals ticle 44.29@), Vernon's Ann. C.C.P. of Criminal Appeals (and with the Dallas with the disqualification of Chuck Laue- January 12, 1989: At the request of Court of Appeals) to obtain bond and to hart and Carlton McLarty, court-appointed Stan Brown, the TCDLA Amicus Curiae litigate the legality of the confimement of counsel for Michael Steames (accused of Committee, acting by and through David George Roland. At approximately capital murder in Lubbock). The alleged Botsford, filed its statement in support of 530 p.m., the Court of Criminal Appeals basis of the disqualification was the fact appellant's petition for discretionary granted bond (since the Dallas Court of that McLatty interviewed a witness with- review with the Court of Criminal Appeals Appeals had not yet ruled on the matter) out thepermissionof theDistrict Attorney, in Giinlore v. State. This case involves the and George Roland was released by and thereby became a potential witness at issue of whether Rose error can be deemed 6: 15 p.m. JudgeRoach was also ordered by the trial. McLarty, it should be noted, harmless error based solely on the lan- the Court of Criminal Appeals to respond should not properly be a witness, since guage of the unconstitutional parole in- to the allegations of the writ within thirty there were three other people present at the struction given to the jury (in this case). days. The Dallas Court of Appeals sub- interview and the interview was recorded The Amicus Curiae Committee, with the sequently denied any relief. (with the witness's permission) and Mc- express concurrence of TCDLA President February 10,1989: DavidHaynes, co- Edward Mallett, took the position that counsel to George Roland, was called to under Rule 81@)(2), a bright line test for the witness stand by the State inacoutinua- hann in such cases should be adopted by tion of the same hearing at which Roland the Court of Criminal Appeals. The bright was held in contempt. Haynes also asserted VOICE ADVERTISERS line test advocated by TCDLA is as fol- the attorney-client and work product Bailman Bond ...... 29 lows: hann under Rule 81@)(2) is estab- doctrines (under the direction of Edgar Forensic Consultations ...... 15 lished as a matter of law whenever the Mason), but also was held in contempt. Freelance Enterprises ...... 27

May 1989 1 VOICE for the Defense 5 Amicus Brief Concerning Art. 44.29 by David L. Botsfordand JasephA. Connors

No. 0769-88 C. Application of Article 44.29, new hid to the defendant on the TROY IZE GRIMES IN TIE COURT OF supra, as amended, to cases basis of an error in the guilt or in- VS. CRIMINAL APPEALS wherein an appeal was perfected nocence stage of the trial or on the THE STATE OF TEXAS OF TEXAS priortoAugust31,1987,willvio- basis of errors in both the guilt or MOIlON FOK 1.1.XVE To HLE late theduecourse of law anddue innocence stage of the trial and the AMICUS CURIAli'S SrAlTMeM' IN SUPPOW 01' APPELLANT'S I'OSITION process of law provisions of Ar- punishment stage of the trial, the ticle& Section 19of the Constitu- cause shall stand as it would have tion of the State of Texas and the stood in case the new trial had been IN SUPPORT OF APPELL4hTS POSInON Fourteenth Amendment to the granted by thecourt below. TO THE HONORABLE JUDGES Constitutionof the United States. OF SAID COURT: D. Application of Article 44.29, @) If the court of appeals or the Court of Criminal Appeals awards a COMES NOW Amicus Curiae, Texas supra, as amended, to cases wherein an appeal was perfected new trial to thedefendant only on the Criminal Defense Lawyers Association basis of an ermr orerrors madein the (bereinafter referred to as TCDLA), and priortoAugust31,1987, wiUvio- late the equal protection clauses punishment stage of the trial, the pursuant to Rule 20, Rules of AppeUate cause shall stand as it would have Procedure, presents this, its motion for ofArticle1, Section3oftheTexas Constitution and the Fourteenth stood in case the new trial had been leave to fde amicus curiae's statement in granted by the court below, except support of Appellant's position and as Amendment to the Constitution of the United States. that the court shall commcncc thc grounds therefore, would respectfully ncw trial as if a finding of guilt had show this Honorable Court the following: E. Application of Article 44.29, been returned and proceed to the supra, as amended, to cases punishment stage of the trial under wherein an appeal was perfected Subsection @), Section 2, Article priorto August 31,1987, willvio- 37.07, of this code. If the defendant This case [and numerous other cases late theex post facto provisions of elects the court shall empanel a jury currently pending before this Court] in- Article I, Section 16 of the Con- for the sentencingstageof the trial in volves theissueofthe properinterpretation stitution of the State of Texas and the same manner as a jnry is em- of Article 44.29@), Vernon's Ann. C.C.P. Article I, Section 10 of the Con- paneled by the court for other trials Amicus curiae believes that this is an im- stitution of the United States. beforethecoua. At thenew trial, the portant issue of law with statewide court shall allow both the state and ramifications and desires to provide this the defendant to introduce evidence Honorable Court with its input. to show the circumstances of the of- Prior to August 3 1,1987 [and after Sep- fense and other evidence as per- tember 1, 19811, Article 44.29, Vernon's mitted by Section 3 of Article 37.07 Ann. C.C.P. provided: of this code. Amicus curiae asserts that the Article 44.29, supra, as amended and as effective EFFECT OF REVERSAL: Where (c) This section does not apply to August 31,1987, should not apply to any the court of appeals or the Court of convictions under Section 19.03 of case wherein notice of appeal was per- Criminal Appeals awards a new trial the Penal Code. In such cases, the fected prim to August 31,1987. Insupport to the defendant, the cause shall cause shall stand as it would have of this position, amicus submitsthefollow- stand as it would have stood in case stood in case the new trial had been ing arguments. Amicus believes that the the new trial had been granted by the granted by the court below. last argument Q is the strongest and most court below. persuasive, although arguments (A) IV. through @) interact with (E). As of Aunust 31. 1987. Article 44.29. A. Article 44.29, supra, as amended, Vernon's A& c.c.P., was amended td A. Article 44.29, as a~nended,should should apply prospectively. state: app~yprospectively. The 1987 amendment to Article 44.29 B. Article 44.29, supra, as amended, EFFECT OF REVERSAL: (a) did not contain an express statement as to cannot be applied without the im- Where the court of appeals or the its applicability. Thelegislature, therefore, position of an illegal sentence. Court of Criminal Appeals awards a did not decide whether it was to be applied

6 VOlCEfor the Defense I May 1989 prospectively orretroactively generally, or the new trial had been granted by the court Inlight ofthe arguments and cases cited to any one or more specificclasses of cases below, except that the court shall com- insection N(A),supra, it should bereadi- (i.e., only to cases where an appeal had not mence the new trial as if a finding of guilt ly apparent that it simply is not fairto apply yet been perfected). Under Section had been returned, and proceed to the A~ticle44.29@) to cases wherein the con- 311.022 of the Govenunent Code, "[a] punishment stage of the hial . . ."pursuant viction and notice of appeal were entered statute is presumed to be prospective in its to Article 37.07, Section 2@). However, prior to August 31,1987. To do so would operationunless expressly maderetrospec- Rule 30, T.R.C.P. provides that a "new discriminate against defendants prosecut- tive." Accordingly, Article 44.29, as trial" is a". . .rehearing of a criminal action ing direct appeals, as opposed to peti- amended should be held to apply prospec- after a fmding or verdict of guilt has been tioners seeking out-of-time appeals. It tively. set aside. . ." would also involve an element of fun- Thequestionarises, however, as to what Thus, in every case where Article damental unfairness from the perspective prospectively means. Does 44.29 apply 44.29@), as amended, is followed, there is that points of error in briefs could have only to those cases where notice of appeal no finding of guilt. However, under Article been included and excluded based on the is filed after August 31, 1987 (a clear 37.07, SectionZ(c), punishmentis not pos- law at the time ofthe filing ofthe brief. For prospectiveapplication),or does it apply to sible without a"fmdingofgnilty."Further- example, if defense counsel perfected an any reversal whichis entered after August more, under exparte Laday, 594 S.W.2d appeal in 1985 and felt that error in the 31, 1987, regardless of when that appeal 102, 104 (Tex. Cr. App. 198O), ". . . a punishment stage was a "winner," he was perfected? conviction consists of a verdict of convic- might have decided not to include a point Historically, theappellateprocedures in tion and a judgment on the verdict." Ac- of error relating to the guilt4~ocence effect at the time a defendant is convicted cordingly, it appears impossible to have a stage of the trial. That decision by defense and files his notice of appeal govem that trial court enter a valid judgment under counsel would have been a strategic appeal. Stevenson v. State, 402 S.W.2d 175 Micle42.01 afterthe provisions ofArticle decision based on the law in effect at the (Tex. Cr. App. 1966). Similarly, in habeas 44.29@) have been followed. Indeed, the time he prepared the brief. Are defendants corpus cases dealing with out-of-time ap- original judgment would be set aside on going to be allowed to seek out-of-time peals, this Court has historically returned appeal, the jury verdict would therefore appeals based on ineffective assistance of the petitioner to the point in time where also be set aside as a necessary ramifica- counsel in such situations since they might notice of appeal should have been given or tion, and the trial court would be proceed- no longer obtain an entire new trial? In was given. Seeexpartelkvtks, 580 S.W.2d ing "as if' a finding of guilt had been addition, every trial attorney knows that 348 at 349 (Tex. Cr. App. 1979); exparte retnrned, but in truth and in fact, no finding one of the primary strategic decisions they Raley, 528 S.W.Zd257,259 (Tex. Cr. App. of guilt would legally exist. The logical faced prior to the enactment of Aaicle 1975); exparte Hill, 528 S.W.2d 259,261 conclusionis that anillegal sentence would 44.29@) was whether they should proceed (Tex. Cr. App. 1975). be imposed since punishment would be to the judge or the jury, recognizing that it These cases lend support to the proposi- assessed without a finding of guilt. Cj ex is difficult if not impossible to obtain re- tion that it is necessary and appropriate for parte Hernandez. 705 S.W.2d 700. 702 versible error at the punishment stage Article44.29 to apply only to reversals on (Tex. Cr. App. 1986). The illegal sentence when the judge was the trier of fact, and cases wherein the appeal was perfected would alsodeny defendants their statecon- knowing, even back prior to August 31, after August 31, 1987 [or at least only to stitutionand statutory rights to trial byjury 1987, that an error at pnnishment when the cases wherein the defendant was convicted [as well as the federal constihltional right Judge was assessing punishment meant a after August 31, 19871. Any other inter- to hial byjury]. new punishment hearing only. An inter- pretation and application of Article 44.29 pretation of Article 44.29@) rendering it will involve the constitutional violations C. Applicatiorl of Article 44.29, as applicable to appeals perfected prior to outlined below. Since Section 31 1.021 of amended, to cases nherein an appeal Mns August 31, 1987, will only serve to in- the Government Code presumes that a perfected prior to August 31, 1987, will crease thecaseloadofthis Court (via 11.07 statute was enacted in compliance with the violate the due course of law and due writs of habeas corpus). const~tutionsofthisStateandoftheUnited process of lawprovisions ofArticle 1, Sec- Furthermore, the fact that an appeal is States, this Court should interpret Aaicle tion I9 of the Constitution of the State of not required to be decided within any 44.29 toapply only to cases whereinnotice Texas and the Forrrteenth Ameudrnent to unifom~time frame from the date of sub- of appeal was filed [or the conviction ob- rhe Constitution of the United States. mission poses serious equal protection tained] after August 31, 1987. problenls. The following hypothetical is AND appropriate: On December 1, 1985, two B. Anicle 44.29, as mnendeed, cannot be co-defendants were convicted in a joint applied without the inposition ofan illegal D. Application of Arricle 44.29, as trial. A jury assessed punishment for both sentence. amended, to cases wherein mi appeal nus co-defendants. Both co-defendants per- Article44.29@);as amended, states that perfected prior to August 31, 1987, will fected appeals, filed briefs, and orally ar- if a court of appeals or fhis Court awards a violate the equal protection dames ofAr- gued their cases by January 1, 1986. Both "new trial" to the defendant due to an error tide I, Sectiou 3 of the Texas Constitution co-defendants advanced identicalpoints of at the punishment stage only, ". . . the case and the Forcrtee~zthAmend~te,lfto the Com error as to the punishment stage ofthe trial. shall stand as it would have stood in case stitlrrion of the United States. Defendant #1 was granted relief on his

May 1989 1 VOICE for the Defense 7 appeal on August 30, 1987. Thus, Defen- new trial and either the court of appeals or convict the offender. dant #1 is not subject to Article 44.29@) this Court grants relief onthesamepunish- and is entitled to a new trial on guilVm- ment issue contained in the motion for new Texas has adopted thatsamedefinition. nocence and punishment. Defendant #2, trial, the defendant is entitled to a new Hillv. State, 171S.W.2&880,883 (Tex.Cr. however, was not granted relief until Sep- punishment hearing only. This different App. 1943); Millican v. State, 167 S.W.2d tember 5,1987. Defendant #2, therefore, is treatment penalizes a defendant from 188, 190 (Tex. Cr. App. 1942); Holt v. not entitled to a new trial on guilth- having to perfect an appeal and certainly State, 2 Tex. 363,364 (Tex. 1847). nocence, jut punishment. penalizes a trial judge if he @ants the mo- Recently, this Courthas had occasion to Admittedly, the hypothetical is a little tion for new trial [i.e., penalizes the trial address ex post facto laws. In ex parte far-fetched. But the point is clear, and, in iud~eby forcing him to retry the case as to Rulled~e,741 S.W.Zd460 (Tex. Cr. App. fact, since there &no uniform time re. gui&kocence~.Amicus can perceive no 1987),the Court applied the t~o-~ron~ed quirements in which an opinion on an ap- compelling (nor logical) reason for thedif- test set forth in Weaver v. Graham, 450 peal mustbedeliveredby any of the courts ferential. US. 24, 101 S.Ct. 960, 67 L.Ed. 2d 17 of appeals and/or this Court, it may ac- (1981), to wit: 'it must be retrospective, curately reflect the actual experience. E. Application of Article 44.29, as and it must disadvantage the offender af- There can be no adequate justification for amended, to cmes wherein an appeal was fected by it!' Id. at 461. Application of discriminating for or against one in- pe@cted prior to August 31, 1987, will Waver to Rutledge resulted in a deter- dividual when other individuals similarly violate the expost facto provisions ofAr- mination by this Court that the amended situated are not treated the same. Cf:Hil- ticle I, Section 16 of the Constitution ofthe PrivonManagementAct wasretrospective. liard v. Board of Pardons & Paroles, 759 Stare of Texas andArticle I, Section I0 of This Court also found that the retrospective P.Zd.1190 (5th Cir. 1985). And regadless the Constitution offheUnited Sfates. application deprived Rutlcdge of eli- of the particular accuracy of the foregoing Amicus is dying uponthccx pst Fdcto gibility for the granting of good conduct hypothetical, the statistics certainly clauscsof Articlc I, Section 16of thc Con- time credit under the version of the Prison demonstrate (or will demonstrate) that stitution of the State of Texas and Article Management Act ineffect at the timeof the cases involving the type of error de- I, Section 10 of the Constitution of the commission of the offense, and that this nounced by Rose v. Slate, 752 S.W.2d 529 United States. Amicus is also relying upon deprivation constituted a substantial disad- (Tex. Cr. App. 1987) lingeredin the courts the retroactivelaw clauseof AxticieI, Sec- vantage to Rutledge. of appeals and inthis Court for a far longer tion 16 of the Constitution of the State of Rutledge is consistent with this Court's period of time than case which did not Texas. Furthermore, to the extent that this decision in exparte fir& 750 S.W.2d 217 cantain this type of error. Court interprets and applies Article 44.29 (Tex. Cr. App. 1988), where onceagainthe While the amendment to Article to defendants whose appeals were per- date of the commission of the offense was 44.29@) obvionsly involves cost savings fected prior to August 31, 1987, amicus the date that was held to determine, in to the taxpayer [since the issue of guilt/in- relies upon the due process of law and due essence, which version of the Prison nocence may not have to be relitigated, course of law provisions cited and dis- Management Act applied to Ruiz. thereby conserving governmental resour- cussed above in section IV(C). The date of the conviction and the per- cesl, such a nohlegoal is not sufficient to Aaicle I, Section 10 of the Constitution fection of the appeal, as noted above in deorivcdefcndants of riehls to which thcv of the United States prohibits a State's section IV(A),scrpra,is not distinguishable were entitled as of the d% of the filing if enactment of any ex post facto law. The from the date ofconviction, utilized by this the notice of appeal. Such a noble goal is classic definition of an ex post facto law Court in Rutledge and Ruiz See also also not sufficientto justify thecosts to the was set forth in Calder v. Bwll, 3 US. (3 Federal Underwriters exch. v. Lynch, 168 bench and to the bar fkom Article 11.07 S.W.2.d 653 (Tex. Comm'n App. 1943, writs alleging ineffective assistance of opinion adopted) [appeal considered in counsel [due to the legislative and, if AI- 1st. Every law that makes action light of law existing at time of trial despite ticle 44.29@) is applied to cases where done before the passing of the law subsequent changes to rules of civil proce- notice of appeal was perfected prior to and which was innocent when done, dure); Tramel v. State of Billings, 699 August 3 1,1987, judicial interference with criminal; and punishes such action. S.W.2d259CTex.App:SanAntonio- - 1985, defense counsel strategy]. 2d. Every law that aggravates a no WTit). Furthermore, a second equal protection crime,ormakes it greaterthanitwas, In Campbell v. State, 718 S.W.2d 712 problem is inherent in Article 4429(b). when committed. 3d. Every law that (Tex. Cr. App. 1987), this Court discussed Cwrently, if adefendant is convicted pya changes the punishment, and inflicts the an~lication.. of the then new rules of jury and the jury assesses punishment] and a greater punishment, than the law criminal evidence tocases then pending on files a motion for new trial with the hial annexed to the crime, when com- appeal. This Court stated: court nllcgingcrrorin thc punishnicnt stage mitted. 4th. Every law that alters the and that niotion isgranrd, the dcfcndnnr is legal rules of evidence, and receives These rules, although rules, are cntitld to a new trial on -uuilt/innoccnoc as less, or different, testimony, than the "laws" of this State. . .and cannot be well as punishment. However, if the trial law required at the time of the com- applied to any cases pending on ap- judge denies the defendant's motion for mission of the offense in order to peal because of the ex post facto

8 VOICE for the Defense I May 1989 clauses, either State or Federal. Id. at souri, 107 US. 221,2 S.Ct 443,44945, tivity principles. See llobberf v. Nori&, 717. 27 L.Ed. 506 (1883)], the Supfeme Court 432 I1.S. 2x2. 97 S.a. 2290. 53 L.Ed.W noted that aprocedural change that did not ! The Campbell Court went onto discuss injuriously affect a substantial right to 265 .pex.?-Cr. App. 1982). BLACK'S thedefinitionof expost facto notedabove. which the defendant was entitled as of the LAWDICI'IONARY. REVISED4thEDI- The Coun concluded: dateofhisoffensewas notunwnstilutional TION& page 1367 defines proeedurallaw ! as violafive of ex post facto, hut a pm- as follows: "[tlhat which prescribes Thus, any statutory or court made dudchange that did deprive thedefendant method of enforcing rights or obtaining ,alteration of an evidentiary rule of of a substantial right to which he was en- redress for their invasion . . .," whereas of "law favorable to the defendant, titled as of the date of his offense was subsrantive law is defined as "[tlhat part ,, as law which creates. defines. and re~ulates ."'enacted while a criminal case is unconstitutional violative of ex post ... ..J facto. As demonstrated above, Article rights . . ." ~d.at 1598. The&@ in Lsueis . ,,,,pending on appeal, which would 44.29@) alters substantial rights: the right the trier of fact at punishment (and, under materially impair the right of the to have a jury assess his punishment [and section IV(B), supra, who, if anyone, defendant to bave thequestionofhis his guilt, for that matter, inlight of section determines guilVinnocence). This right is guilt determined according to the N(B), supra]. not procedural, it is clearly substantive(al- law as it was when the offense was To expand on the foregoing, acomplete though contained in the appellate pw- committed, wouldbeanexpost facto abolition ofjury trial and ofjnry trial as to dure sections of the code of criminal law. In sum, alterations in the rules an assessment of punishment bave been pmcedure). of criminal evidence, if unfavorable held to be procedural changes affecting a to a defendant, may amount to an ex substantialright and henceunconstitution- post fact law. Id. at 718. al. See State ex rel. Sherburne v. Baker, 24 So. 240 (Ia.1898); Winston v. hte, 198 In light of all of the foregoing argu- The similarity between alteration of the S.E. 667,669 (Ga. 1938) flaw permitting ments, it is clear that Article 44.29@) is a law relating to the rules of evidence and onlyjudgesto set punishment expost facto thom in the side of the collas of this state alteration of the law relating to the effect as to defendant because it deprived him of and a dagger in the hearts of criminal of a reversal on appeal is compelling. If a the substantial preexisting right to have a defendants (and their attorneys) whose ap change in the law alters the effect of a jury assess punishment under the indeter- peals were perfected prior to August 31, reversal on applaud acts to thedetriment minate sentence law in effect at time of 1987.It willconiinne to bea thornuntil this of adefendant whose an~ealwas uerfected commission of offense]; Hurt v. State, 199 Court unequivocally addresses the issues prior to the effectivedke of the keration, S.E. 801 (1938) [sameas Winston]. involved. Amicus w~esthe Court to take the alteration cannot be applied without Inaddition, it is not sufficient to say that action which will re6ove thedagger from constitutional violation. the change enacted by Article 44.29@) the hmsofcriminal defendants land their In Texas, every citizen accused of a merely modifies bow guilt and punishment attorneys). crime is entitled to have a jury determine are determined after a reversal and are WHEREFORE, PREMISES CON- not just his guiltlinnocence, but also his hence permissible regulations of pme SlDERED,TCDLArespectfullyprays that punishment. See Articles 1.12,27.02 and dnral law. In Thompson v. Utah, 170 US. this Honorable Court intermet Article 37.07, Vernon's Ann. C.C.P.; Washingto~z 343, 18 S.Ct. 620, 623-624, 42 L.Fd. 44.29@) in a manner consist& with the v. State, 677 S.W.2d 524, 527 (Tex. Cr. 1061), thedefendant was initially hied and arguments set out above. App. 1984). Although there is no constitu- convicted by a twelve person jury, which tional right to have the jury determine twelve person jury was mandated by the Respectfully submitted, punishment (as opposed to guilt/in- law in effect as of the date of the commis- nocence), thestatutoryrightisnevertheless sion of the offense. After a successful ap TCDLA peal, the defendant was retried. In the a right. Article 44.29@) eliminates that By: DAVID L. BOTSFORD right since it changes themethod by which intervening time period, Utah had become punishment [and guilt, for that matter, in a state and enacted a constitution that re- light ofsection N(B),supra] isdetermined quiredonlyeightjumrs to serveonafelony after a reversal for an error in the punish- jury. The Supreme Court reversed ihe con- ment stageonly. Thechangeenvisionedhy viction because although the legislature Article 44.29@) therefore alters a de- can modify the procedures, a modification CERTIFICATE OFSERVICE fendant's posture after a reversal and it of the procedures that alter a substantial I hereby certify that a true and correct operates to his detriment since he is right afforded the accused as of the time of copy of the above has been mailed to: (1) deprived of a preexisting statutory right. the commission of the offense violates ex J. Pink Dickens, 801 Broadway, Plain- See Campbell v. State, supra at 718. post facto. view, Texas, 79072; (2) Harold Comer, At first blush, the changes enacted by Furthermore, amicus submits that the District Attorney, 31st Judicial District, Article 44.29@) may appear procedural, alterationenvisionedby Article44.29@) is Gyy County Courthouse, Pampa, Texas, not substantive. But such is not the deter- not merely procedural (ie., a procedural 79065; and a copy hand delivered to (3) mining factor. In Miller v. Florida, 482 change that affects substantial rights), but Mr. Robert Huttash, State Prasemting At- US. , 107 S. Ct. 2446, 2450-54, 96 a substantive law change absolutely tmney, on this the 14thday ofMarch 1989. L.Ed.2d 351 (1987) [see alsoKring v. Mis- prohibited by ex post facto and retroac- David i.Botsford . May 1989 1 VOlCE for the Defense 9 The Sentencing Commission's own theparticular offender. in US.v. Foss, 501 words, in its commentary concerning I F. 2d 522 (1st Cir. 1974), the court reem- departures from the new sentencing phasizedthat a duty to individualize a sen- guidelines, hold the promise of retaining tence simply means that whatever the the subiect of litieation for vem to come. I judge's thought as to thedeterrent value of ~tat;te18 UXC. 355jm) permits a a jail sentence, his every case should court to depart from a sentence specified reexamine and measure that view against by the Guidelines when it finds "an ag- therelevant facts and other important goals gravating or mitigation ci~~umstances.. . such as the offender's rehabilitation. that was not adequately taken into con- Having done all of this, it is the judge's siderationby the Commission. . ." Thus, in province to decide which factors will principal, the Commission, by specifying "'carry the day." that it has adequately considered a par- By contrast, formulationoftheSentenc- ticular factor, can prevent a court from ing Commission's Guidelines was based using it as a grounds for departure. In this on mechanistic evaluations and not per- initialset ofguidelines,however, the Com- sonal or individualized background mission doesnot so limit the court >power profiles. In fact, the Commission en- to depart. The Commission's own lan- visioned departure only when, as a guage promulgates that it intended each threshold matter, "the court reasonably Guideline to cane out a "Hezutland", that detenninedthatthe factorwasnotmeant set of typical cases whichembody thecon- be covered by the Commission's state- duct of each euideline desrribed, when Marcia G. Shein, MS., JD. ispresident ment. Any conttary view would be. fun- the coua finds itself faced with a case to ofNafionalLegalServices,Inc., asentenc- damentally at odds with the Sentencing which a ,,articular ~~id~li~~~~~~i~~i~~~~~ingandparoleco~tsultingfinnThe nafion- Reform Act of 1984 and its goal of ensur- applies, but where the actual c&duct sig. a1 headquarters are based in Atlanta. ing consistent sentencing decisions." The ,,ificantly differs from the ~typica~~the Gaorgia. Marcia is a member of the Na- Commission thought it clear that a factor court then has the option of tional Association of Criminal Defense can be found not to have been adequately whether deparhue is warranted. Lawyer's Sentencing Comniinee, and has considered either fust, because it is not testified before the Sentenciria Commis- reflected in theapplicable guidelines at all, I. The Confusion sioi She k the author of the-~enterlicing or second, becauseit is not reflected to the DefenseManualfor ClarkBoard~nan,Ltd., unusual extent it is present in a particular case. The Commission funher made clear Comn&iou did not inten2 ti limit the that the ultimate test of whether a factor kinds of factors that could constitute Kim Harris has her Masters Degree in was "adequately considered" rests on a grounds for departure in the "atypical" Business Administration and is a legal re- "fair" reading of what the guidelines, case whether such factors were mentioned search assistant for National Legal Ser- policy statements atofficial commentary anywhere else inthe Guidelines. In fact, to vices. Kimisalso agroduating lawstudent of theCommissionactually say. 133 Cong. do so would directly contravene the from Emory University in Atlanta, Geor- Rec. 8 166-44-48(daily ed. Nov. 20,1987) philosophy of another federal statute, 18 gia. (colloquy between Sens. Biden, Hatcher, U.S.C. 3661, which directs that a sentenc- Thurmond and Kennedy on sentencing ing judge may consider any relevant and amendments) Addendrmt. Though the helpful information when imposing a sen- U.S. v. Townsend, 478 E2d 1072 (3d. Cir. Commission recognized the provisions tence. 1973). In fact, courts have generally fol- were not exhaustive, the only mitigating A fixed view as to sentencing has al- lowed the prescription of Wlliams v. New factor that they were willing to recognize ways been inconsistent with the discretion York, 337U.S.241(1949) thatathepunish- as a true situation where depmeis war- vested in a trial judge. Such discretion has ment should fit theoffender, not merely the ranted is the instance where the defendant historically been a part of thejudge's man- crime." Such philosophy has emphasized pmvides substantial assistance to the date to tailor sentencing to the circumstan- that punishment should not be dispensed government in its investigation and ces somundingeachindividualdefendant. without regard to the past lifeand habits of prosecution activities. Yet, since the new

10 VOICE for the Defense 1 May 1989 guidelines have taken effect, decisions other words,I feel like the discretion aware. Therefore, plea bargains where the I such as U.S. v. Kerr, 686 F.Supp. 1174 now, under the federal sentencing defendant does not receive the benefit are 1 (W.D. Pa. 1988). are becoming more midelines. that discretion [once the no "bargain." and are subiect to being va- &emlent. In ~erithe court said&at no province ofjudges] wouldirobably cated. p&mise given & a pmmise-that litationshould beplaced upon the back- be exercised now by an assistant should be fulfilled. See Santobello v. New ground, the character or thekind of person United States Attorney out of law York, 404 US. 257 (1971). thedefendantis, whenthecourtis deciding school a year or two. Inlooking at thecoutractual basis ofthe on an appropriate sentence. With the con- plea bargain, several recent cases have flicts that are prevalent in the system, it is The other Judges agree that what had recognized that if the defendant is not becoming difficult to tell what thewles are been "adequately considered" were the given the Guidelines as represented by the and what the exceptions are. Thereare two human elements. Judge Richard C. Free- plea, it appears the defendant bas indeed areas of particular concern where con- man remarked: "It is so antiseptic, devoid momentum in this area. The court first fusion abounds. One is the acceptable of the human element I think it is essential noted severe problem with the plea bar- parameters of offender conduct which the in the sentencing process, that it leaves me gaining process under the new guidelines courts should or must 'accept as having cold." in US. v. Brodie, 43 CrL 2182 (1988) and already been "adequately considered" by On balance, most agreed with the prin- expounded on them in US. v. Bethancurt, the Guidelines. Theother is theconcept of ciple of thecurrent Guidelines, but didnot D.C. Crirn. Nos. 88-0188, 8/29/88. In the plea bargain and the change whiih the support the Guidelines themselves. Most Bethancun, the defendant was indicted on Guidelines have injected into that process. also agreed they could manipulate the a felony charge of forgery and sub- guidelines to take into account those sequently pled guilty to a superseding in- A. Adequate Consideration human elements they found important and dictment of one count of misdemeanor "Not adequately taken into considera- distinguishing to each individual case. forgery. There was nodoubt thatbothsides tion. . ." are golden wdsof opportunity described thesubsequent agreement as the for both thecourts and thecreativedefense 6. The "Bargainminthe Plea product of a pleabargain. After taking into attorney for the simple reason that the Another area of concern is establishing account allmitigatingand aggravatingfac- Commission has failed to define the term aplea bargain undersentencingreformand tors, the court amved at a sentence for the in language useful to the sentencing prac- getting the benefit of the bargain for the lesser pleaded to offense that imposed the titioner. So, by inference, the coults and client. When the "real offense" establishes shme amount of time the defendant would defense advocates must. Guideliinesgreaterthantheoffender'splea, have gotten for the greater offense. The In a recent interview in the Fulton a major conflict in the law arises. This Court pointed out that the obvious effect Counfy Daily Report, Vol. 99, No. 225, conflict holds potential for greater ham if was that the defendant would receive no 11/18/88, pp. 1, 10-14, five US. District more courts decide to follow the rationale sentencingbenefitfromhisplea. Thecourt Court Judges spokecandidly on their feel- of U.S. v. Silvermn, D.C. S. Ohio, No. was highly critical of situations where a ings about the SentencingReform Act, the CRZ-88-028, 8/23/88, that all unindicted bargain for a guilty.plea is made and the Guidelines and the positionit places them conduct is "relevant" to the determination defendant is, in effect, induced by the sys- in. Most focused theirconcemsonwhatthe of the offense level. tem to plead guilty to what he believes to new Guidelines failed to consider. Judge Does the defendant actually get the be a lesser offense in terms of the sentenc- RobertL. Vining, Jr. probably summarized benefit of the bargain if the court does not ing effect, when in fact the sentence will, it best: deviate from the real offense Guidelines in allprobability, henearly identical to that and the relevant conduct inquiry? In prac- which would have and could have been Anyone with any degree of ex- tical application, according to the emerg- imposed had he proceeded to trial onmore perienceinsentencing knowsthat all ingviews of the ProbationDepartment, the serious charges. The benefit of having of the factors that the sentencing actual Guidelines are those which encom- givenup his n'ght totrial becomes illusory. commission talk about have been pass the "real offense" behavior irrespec- The Betltancurf court concluded that in considered by judges all these ywrs. live of the plea bargain behavior. In other order to avoid misleading the defendant in You always took into consideration words, in pleading guilty to a particular this respect, the defendant should be ad- protectionof thepublic, thenatureof count of a multiple count indictment, cer- vised of all the sentencing possibilities at theoffense, thedefendant himself, or tain facts established in that count may the time of the taking of the plea or at any what his prior record was. You used actually project less severeGuidelinesthan time prior to theimpositionofthesentence, to could take into account family if the entire indictment or the total offense so as to permit himto withdraw his plea, or support. Was he drug dependent or description were evidenced in the Guide- reaffumafterbeingadvised of all available alcohol dependent? Was he young, line calculations. If the real offense options open to thecourt. old, or middle age? Ihave a hard time Guidelines are being used to establish the accepting criticism of the prior sen- actual sentence from a plea agreement, 11. The Opportunity tencing setup. I guess one reason is then there is no bargain to the defendant of that I have sentenced 20 years. I feel having foregone the opportunity for full Thesentencing Commission is acutely like I have 20 yeam of experience acquittal viaajurytrial. This conflict isone aware ofthe fact that the Guidelines arenot that's gone out the window . . . In of which the Commission is very much a "Homeland" for sentencing decisions.

May 1989 I VOICE for fhe Defense 11 -

While having set out "guidelines," the benefit of the plea bargain in the sented by the real offense be- Commission readily admits they am look- totality of the circumstances in havior in contrast to the plea bar- ing to thc courts toestablish trcnds of in- the case which gives rise to jus- gain agreement. It may also be dividuali7d considerations which diwct tifiable reasons to impose the possible to get the U.S. Attorney sentencing decisions to the bottom or agreed upon sentence which is to agree not to appeal a decision below a Guideline range. less than theactual representative below the plea bargaining of the offense description. guidelines, thus encouraging judges to individualize the sen- A. The Coutts ~ ~ It is important to recognize in this type tences and give the dcfcndant the Thecommentary of the Commissionon of case that the prosecutor's office is now deviations hmthe Guidelines should be benefit of the olea bareain. Most able to recommend departures from the used in directing the court's attention to judges do notwishto Gappealed, guidelines through the plea bargaining sentencing options outside the Guidelines. and if there is an agreement not to process, thus eliminating the plea bargain, ThsCommission is encouraging the wurts appeal in order to resolve the plea "benefit of thebargain" wntlict. In recom- to interpret the departure wGentary as a bargaining conflict with the sen- mending departures, assistant United "Heartland" to use in deviating from the tencing Guidelines, then all par- States attorneys are supporting the de- Guidelines where the case warrants such ties will benefitfromthebargain. velopment of guidelines for departure pur- departure. 3. Enwurage the judge to read the Deviations fromtheGuidelinesarewar- porn. language of the Commission's ranted based on maintaining a perspective 6. The Attorney commentary on deparhue. Make of individuality in the sentencing process Defense It is up to the creative defense attorney the case unusual in order to show as well as in assuring plea bargaining to develop this pattern and encourage the the court that departure is war- agreements are given their proper weight courts topursue creativejudicialdecisions, ranted. The unusual status of the in terms of the actual Guidelines of the and the advocacy must go further than conflict between the plea bargain entire "real offense behavior" versus the simply asserting tbese facts to the courts. and the real offensedescriptionis plea bargain and the counts pled to in the The defenseattorneymust, heno long may, sufficient to carry the burden plea bargaining process. use a defem presentence investigation when invoking the language of As soon as courts begin to take the mport (a defense "PSI," prepared internal- "not adequately considered" and initiativetodeviate from the Guidelineson ly or by experts) to establish a fair and "unusual" into the sentencing plea bargaining versus real offense issues, balanced sentencing decision. The Gov- process for departure purposes. a pattern will begin to emerge and the ernment'spresentenceinvestigation struc- Commission should incorporate that pat- 4. Give the judge a reason (the ture, under the new sentencing reform tern into the next revised edition of the defense presentence investiga- laws, is lacldngin the substancenecessary Guidelines. tion) to go to the bottom of the to alert the court to mitigating charac- In United Stares v. Ziade, et al. plea Guidelines or below the teristics and circumstances that were not (E.D.N.Y., January, 1989), the United stated Guidelmes for the real of- given adequate consideration by the Com- States Attorney's office prepared a plea fense description. The defense mission, therefore should be given such bargaining agreement that provided PSI can also be used to get the consideration by the court. Complacency reasoning to thecourt fortheir rewmmen- judge torecognizeuniqueandun- andacceppnceoftbeGovemment's report dation to depart from the stated guidelines. usual circumstances in an andrated sentencing Guidelinerangesmay The stated guidelines were one hundred individual's backgroundthat may cost the client months or years of unneces- warrant departure. and twenty-one (121) months to one sary incarceration. The creative defense hundred and fifty-one (151) months. The attorney will accentuatethe"atypical" case plea agreement provided the following fm and find a reason for departure hmthe Ill. Determining Depallure the court to consider as a recommendation Guidelines. Considerations under the plea agreement for departure In order to avoid some ofthese conflicts from those guidelines: and to begin developing a strategy for The Federal Sentencinrr Guidelines svs- 1. No narcotics ever existed, and preventing these problems, some of the tem is based very much-lib that of ihe none were ever exchanged following suggestions aremade: Florida State Sentencing System. In fact, when the Commission was designing the 2. The defendant, while more than 1. Negotiate the pleas so that the sentencingguidclines,they often looked to minimally involved, was not in prosecutor agrees to recommend the Florida System for guidance. The the higher echelon of criminal that the plea Guidelines are to be Federal Sentencing Guideline System, conspiracy applied to the appmpriate sen- however, is distinguished from theFlorida tencing decision of the court. 3. Agreement between the paaies System in that the Federal Guideline that ninety-six (96) to one 2. Askthe assistant US. Attorney to amendments will typically not be enacted hundredand twenty (120) months agree not to appeal a departure by legislation and the sentencing judges would more accurately reflect from the Guidelines as repre- theoretically will beable to impose senten-

12 VOICEfor the Defense I May 1989 ces outside the guidelines more readily Since the Federal System of Guidelines 6. Young children at home requiring than Florida judges. (Prosecutor's Hand- and departure considerations is so new, supervision. (Single parent farni- book on Sentencing Guidelines and Other there have been no guidelines set up for IY.) Provisions of the Sentencing Reform Act depamuepurposes. Therefore,wecanlook 7. Thedefendant's leadership role in of 1984, United States Department of Jus- to state law, where sentencing guideline the community, a deprived wm- tice, CriminalDivision,p.74.) Theissueof systems have been successfully imple- munity, where leaders are badly departure in the Federal Sentencing Sys- mented for guidance on departure ques- needed. tem is a critical one. The responsibility for tions. setting parameters for departure ftom the There are some recent developmentsfor 8. The defendant's business may guidelines falls on theFederal Courts. The depamreconsiderations incases that have provide a livelihood for others Court needs only to place in writing the been sentenced under the new sentence andmay be important to the wm- reasons for which the departure is war- reform guidelines. Thee are a number of munity and his presence may ranted and whether those reasons are ag- upward departure issues, but the most im- therefore be vital. are gravating or mitigating factors for a portant considerations, we believe, the 9. In a drug case, the low purity of decision above or below the guidelines. downward departure decisions the courts the narcotics found in the DeparturedecisionsIiom the guidelines have initiated. defendant'spossessionmay indi- are going to be a part of the judicial sen- In United States v. Ceraso; (S.D.N.Y. cate that he is so far removed tencing process. Developing what factors March 4, 1988 No.87Cr-1028), a ftom the high levels of the dis- should be given weight for departure downward departure disposition to proba- tribution heirarchy as to warrant should be based on clear and convincing tion was based on the defendant's first a downward dep- (emphasis evidence that acertain factor relating to an offense and the coua finding no purpose added). individual's background could not have would be served by imprisoning the of- been adequately considered by the Com- fender. In United States v. Gilani; @.D. 10. The immaturity of the defendant mission in formulating a general set of Pem. Jan., 1988), the guidelines with may make prison exceptionally guidelines to meet the general population cooperation were 97 to 121 months. The dangerous forhim orher (Youth). and not a specific individual. court determined cooperation exceeded the 11. There has been substantial post In Florida, discretion for deparhue was acceptance of responsibility issue in the crimerehabilitationwhich would given broadscope through Garcia v. State, defendant's case d departed from the be jeopardized by imprisonment. 454 So. 2d 714 ma. 1st. DCA 1984). In guidelines by imposing a sentence of 48 (Community service,drugand al- Garcia, the trial courtcontinuedtohavethe months. cohol rehabilitation.) same bmad sentencing discretion con- United Slates district court Judgc Jack ferred upon it under the general law. Its H. Weinstein in the Ebstcrn Dislrict of New Judge Weinsteingives us themosthope discretion was subject only to the limita- ~orkstatedthat in his study ontheFederal for downward deoarture -rmidelines. It is tions and restrictions of the guidelines guidelines, he has noted that there are easy to come up with aggravating con- which are to be "narrowly construed so as twenty (20) downward departure con- siderations,butwecannot affordtoneglect to encroach as little as possible on the siderations and two upward departurecon- the human element in the criminal justice sentencingjudge's discretion. ..? siderations out of thirty-two (32) guideline system when looking at mitigating factors InAddison v. Stale, 452 So. 2d 955 (Fla. cases studied in a three-month period. for more balanced sentencing decisions 2d DCA 1984), it was shown that the func- Judge Weinstein noted that the guidelines and sentencing alternatives.' specificallyhave notadequately taken into tion of the Appellate Court was not to Theindividualizationof the sentencing account so~neof the following issues: reevaluate the trial judge's discretion process should not be eliminated in order where the basis for departure was stated in 1. The good a defendant has done in to conform to rigid numerical values writing and the sentence imposed within his lifetime stamped on the foreheads of defendants who will be sentenced to a "reformed" statutory limits. The appellate Court found 2. The fact that adefendant's job will noabuseofdiscretionindepartingfromthe criminal justice system. Sight of the legal belost and heisunlikely toobtain conflicts represented by the sentencing guidelines. In Higgs v. State, 455 So. 2d another, making rehabilitation 451 (Fla. 5th DCA 1984), the Appellate Guidelines should not be lost. All legal after release exceptionally.dif- options must beexamined to eliminate dis- Court recognized that, "it should not ficult. reverseadepartureabsenceshowing abuse paritybutnot, in theprocessofeliminating of discretion. . ." 3. Extreme illness at home requiring disparity, take away balance and equitable Florida case law is cited due to the fact the presence of the defendant. decision-making that is tempered with huxhitarian wnsiderations. I that theFlorida Systemis verymuch inter- 4. Illness of the defendant. Increas- twined with the Federal System. The ingly defendant's health Federal Prosecutor's Manual on Sentenc- problem need to be considered. ing Reform Guidelines points to the 1.Federal SentencingReporter,Vol. I No. 2, July (AIDS, cancer) and Auwt 1988, p. 96, Alrernative Punishments Florida Guideline System as a method of Uzrdor the New Fedeml Sentencing Guidelines, Sym evaluating the future potential for depar- 5. The fact that defendant is elderly posirrmD~scwsionby Judge JackR Weinrteirr &st- ture considerations in the Federal System. and infmed em Disrriet of New Yark

May 1989 1 VOICE forthe Defense 13 DWI Litigation by J. Gary Trichfer

Table of Contents 1) Article 38.23, Tex.Code Crim.Pm. and Probable Cause XIV. Elements of Normal Mental and 2) Article 38.23 and Reasonable Physical Faculties and .10 Alcohol I Suspicion Concentration 3) Article 38.23 and Consent XV. Emit Test Admissibilitv" I 4) Compliance with DPS Regulations 1) Burden of Proof 5) Converse Charge Not Affirmative XVI. Enhancements Defense 1) Circumstantial Evidence Test to 6) Defendant's Theory of the Case Apply toDetennhe Sufficiency of En- 7) Diabetes hancement 8) Entrapment 2) Variance Between Enhancements Pled and Proved 3) Reading Enhancement to Jury in Felony at Guilt/Innocence XIV. Elements of Normal Mental and 4) Enhancement Under Art. 512.42 PhysicalFaculties and -10Alcohol Usihg Previous non-DWI Felonies Concentration 5) Proper Pleading Hewitt v. State, 734 S.W.2d 745 6) Degree of Enhancement vs. Increase mex.Aoo. -Fort Worth. 1987). in Penalty - -helil Information cjlar&e defendant 7) Attacking Validity of Enhancement with being intoxicated by ;10>nd loss of During MRP Proceeding ' GavTrichter is a Prtner the normal mental and physical faculties 8) Prior DWI Convictions Occurring firm Of Trich'er charged only one offense. Hirschhorn. He is co-author of the the Same Day Forte v, 707 S,W.2d 89 XW. Guilty Pleas textbook Texas Drunk Driving Law and (Tex,Cr,App, 1986), 1) Range of Punishment authors the monthly article, '"DWIPrac- -held: alcohol concentration is an XVIII. Horizontal Gaze Nystagmus Gems" for Texas Defense element of the offense of DWI. But see Test Lawyers Association's Voice for the McGinty v, 740 S.W,2d 475 XM. Field Sobriety Test and the Defense. GW' is Co-chairmm of the Na- vex.~pp.- H~~~~~~ [lst~ist.l 1987) (al. Privilege Against Compulsory tional Association of Criminal Defense ternate theories, i,e,, mental, and Self-~ncrimlnation Lawyers'DmkDriving Committee anda arenot elements but are only modes of 1) What's Testimonial in Nature member of the Harris County Crinrinal proof, 2~hCourtDemomtrationofDefendant LawyersAssociation'sBoardofDirectors. XV. at State's Request He is a nationally recognizedseminar Iec- Emit Test Admissibility turer andjournal author. He is especially XX. Impeachment of Testifying Burden of Proof Defendant noted for his defensive techniques indrug 1) No Bootstrapping into Impeachment courierprofile highway cases. Wilson v. Stare, 697 S.W.2d 83 2) Admitted Drinks vs. Effect of Vaty- (Tex.App. El Paso [8thDist.] 1985). ing Other Amounts -held: Error to admit EMIT urine test 3) Extraneous Offense 5) Roadblocks result for controlled substance where State 4) Offke against Officer failed to show scientific acceptance of 6) Odor of Alcohol and Searching for equipment andresults. XXI. Investigative Detentions and Opening Containers Probable Cause 7) Hot Pursuit Warrantless Arrest at XVI.Enhancements 1) Observation of Alcoholic Beverage Defendant's Home Container 8) Affidavit of Complaint I J Circumstantial Evidence Test.to Apply to Determine Suficiency of Enhan- 2) Weaving, Rapid Acceleration and XXII. Involuntary Manslaughter: Excessive Speed Applicability of .lo cement 3) Pretext XXIII. Jury Argument Human v. State, 749 S.W.2d 832 4) Shiftimg Burdens XXIV. Jury Charges and Instructions (Tex.Cr.App. 3/16/88) (on State's Motion

14 VOICEfor the Defense I May 1989 for Rehearing). 6)Degree of Enhancement vs. Increase (Tex.Cr.App. 1987). -held: The sufficieucvof evidence~mv- in Penalty -held.- InDWI- misdemeanor there is no ingcnhanccmcnt conviftions is to beietcr- due process requirement that trial court mined by application of the circunlstantial Ohio v. Allen, 506 N.E.2d 199 (Ohio personally inform the defendant of the 1987). evidence test. range of punishment so long as theaccused -held: A prior conviction is an essential Walters v. State, --- S.W.2d --- is in fact in€ormed.Accord,Drake v. Slate, element when used to raise the degree of S.W.2d - (Tex.App.- Texarkana, fTex.Ano. - Houston 114thDist.l7/21/88)L the offense (i.e., a felony from a mis- 7m8)(6-87-087-CR). h-88-3-279). demeanor), but not an element when used -held: Allegations forenhancementpur- merely to enhance the penalty. XVIII. Horizontal Gaze Nystagmus poses are treated asallegationsfor the suh- -held: It is emto inform the jury of Test stantive offense and circumstances prior convictions for purposes of enhanc- supporting these is a fact issue whichmust (a) Texas Cases be proved beyond a reasonable doubt. ing the penalty but not so for raising the dewof the offense. Howard v. State, 744 S.W.2d 640 However, circumstantial evidence, if per- suasive, is sufficient to make a reasonable 7)Attacking Validity of Enhancement (Tex.App. -Houston [14thDist.] 1987). conclusion. During MRP Proceeding -held: HGN evidence is admissible for qualitative rather than quantitative put- 2) Variance Between Enhancements Warren v. Sfate, 744 S.W.2d 614 poses. Pled and Proved (Tex.Cr.App. 1988). @) Otherlurisdictions Biederman v. State, 724 S.W.2d 436 8) Prior DWI Convictions Occurring (Tex.App, - Eastland, 1987). the Same Day People v. Vem, 145Ill.App.3d 996,496 -held: Where statute only required two N.E.2d 501 (1986). prior DWI final convictions for felony Guinn v. Stare, 696 S.W.2d 436 -held: Expert testimony is required for jurisdiction, it was not required that State (Tex.App. -Houston [l4th] 1985). the admission into evidence of HGN test prove each prior conviction beyond two -held: Two prior misdemeanor DWI results. where fivehadheen pledin theindictment. convictions, which occurred on the same People v. Loomis, 156 Cal.App.3d day, may be used as two enhancement con- Supp. 1,203 Cal.Rptt. 767 (1984). 3) Reading Enhancement to Jury in victions.Accord, Peckv. State,753S.W.2d -held: Technological evidence, such as Felony at Guilflnnocence 811 (Tex.App. -Austin 1988). the HGN test results, requires expert tes- Addington v. Sfate, 730 S.W.2d 788 XVII. Guilty Pleas timony in order to he admitted into (Tex.App. - Texarkana, 1987) evidence. Accord, Commonwealth v. -held: Smce prior convictions are part of 1)Range of Punishment Miller, 532 A 2d 1186 (Pa. 1987) (HGN State's burden of proof in felony DWI McMillan v. State, 727 S.W.2d 582 requires expert testimony). prosecutionandgiverisetofelony jurisdic- tion, it is not error to read the priors to the juryduringtheguil~ll~~0cenc~stageofthe trial. 4) Enhancement Under Art. 512.42 Using Previous non-DWI Felonies I Complete case investigation, analysis, and management I Seaton v. State, 718 S.W.2d 870 Qualified experts in all fields to include: (Tex.App. - Austin, 1986). I I -held: Under Art. $12.42, Tex. Penal Accident Analysis Toxicology Code, punishment for a felony DWI may Addictionology Firearms not he enhanced by proof of other felony Police Science Questioned Documents Drug Chemistry Psychiatry DWIs, but may by pmof of other felony Crime Scene Forensic Photography convictions. But see, Lawson v. State, 746 Fingerprint Science Emergency Medicine S.W.2d 544 (Ark. Sup.Ct. 1988) (no en- Forensic Pathology Biomedfcal Science hancement under State's general habitual offender statute). I Additional Expert Witness Services Available I 5)Pmper Pleading Allow us to review your case and provide the best forensic witnesses available. Freernan v. State, 733 S.W.2d 662 (Tex.App. -Dallas, 1987). I -held: Prior conviction enhancement FORENSIC CONSULTATIONS should include court in which conviction 6801 Lake Worth Road, Suite 214 accwed, time of conviction, and nature of Lake Worth, Florida 33467 offense. There is no need to allege second prior was committed within ten years of primary offense.

May 1989 1 VOICEfor the Defense 15 XM. Field Sobriety Test and the 41 OficerAaainst-- - Officer- Eason v. State. 743 S.W.2d 311 Prinilege Against Compulsory (Tei.~pp.-~oustoi [lst Dist.] 1987). Self-Incrimination Jackson v. State, --- S.W.2d --- -held:Inmotiontosuppressheadng,the (Tex.App. - San Antonio, 8/10/88). 1) What's Testimonial in Nature -held: Error for trial court to preclude burdehofpmof shifted to the Statetoshow defendant fiom testifyiig that other police the reasonableness of the defendant's Commonwealth v. Bruder, 528 A2d seizure where he introduced his motion, 1385 (Pa. Super. 1987). officer said he didn't lookintoxicated, see R. 612(a), Tex.R.Evid. with an attached affidavit hmhimclaim- -held: Physical field sobriety test need ing his arrest was warrantless. not be preceded by Miranda warnings as XXI. Iryestigative Detentions and 5)Roadblocks they are not testimonial in nature. How- Probable Cause ever, a request to recite the alphabet is Meeks v. State, 692 S.W.2d 504 testimonial in nature and does require I) Observation of Alcoholic Beverage Container (Tex.Cr.App., 1985). Miranda. Seealso, Commonwealthv.Peth. -held: Roadblocks to check for driver's 542 A.2d 1015 (Pa. Super. 1988). (a) New Law Change: driver cannot license and for other possible criminal 2) In Court Demonstration of Defen- possess open alcohol container under ar- violations is beyond the scope of Art. dant at State's Request ticle 6701d, sec. 107E (S.B. 521). 6087b, 813, and is therefore unconstihl- tional seinue. See also, Webbv. Stare, 739 @) Old Law Macim v. State, 515 So.2d 206 (Fla. S.W.2d 802 (Tex.Cr.App. 1987). 1987). Jackson v. State, 681 S.W.2d 910 Accord, Padgetf v. State, 723 S.W.2d -held: Privilege against self-incrimina- (Tex.App., -Fort Worth, 1984) me-open 780 (Tex.App. - Dallas, 1987); Higbie v. tion is not violated where prosecution re- container statute). State, 723 S.W.2d 802 (Tex.App. -Dallas, quests;and trialcourt orders, thedefendant -held: Police off~cerdid not have pmb- 1987); King v. State, 733 S.W.2d 704 to perform sobriety exercises and speak to able cause to stop defendant, absent ob- (Tex.App. -Dallas, 1987). allow the arresting officer to make com- serving a traffic violation, merely because 6) Odor of Alcohol and Searching for parisons hmtime of arrest and time of he saw him, the driver, holding a beer court. bottle. Note: this case would be applicable Open Containers XX. Impeachment of Evidence where a stop was made because a pas- South Dakota v. Peterson, 407 N.W.2d senger was observed with an alcohol con- 221 (S.D. 1987). I)No Bootstrapping into Impeachment tainer. -held: Alcohol odor from inside of car of Defendznt whosedriver was stopped for traffic viola- 2J Weaving Acceleration and Hammer v. Smte, 713 S.W.2d 102 kssiveSped tions gave rise to probable cause to search Q'ex.Cr.App. 1986). vehicle interior for omn alcoholic con- -held: Where on direct exam defendant Mijjleron v. State, 728 S. W.2d 880 tainers. falsely insinuates hehasnotbeen introuble (TexApp. -A~rstin,1987). -held: Police observations of 7) Hot Pursuit Warrantless Arrest at before, and he has, he may be impeached. Defendant's Home -held: State may not bootstrap into im- defendant's rauid acceleration. weaving peaching defendant on cross by asking if andexcessivespeed constitutedkonabc Welsh v. Wismnsin, 466 US. 740,106 defendant has been in trouble befm and suspicion that offensehad been committed S.Ct. 2091 (1984). thereafter contradict the answer given - to justify investigative detention. But see -held: Defendant's warrantless hot pur- even if false. Or. v. Vaughn, 448 S.W.2d915 (La.App. suit arrest for noncriminal DWI offense 1984) (weaving for short distance is not was illegal even where State argued ex- 2) Admitted Drinks vs. Effect of Varying probable cause) and State v. Caron, 534 igentcircwtances justified intrusion into Other Anwunts A.2d 978 (Me. 1987) (sixaddledcenter line his home to preserve evidence of his al- Westbrook v. State, 697 S.W.2d 791 for 25 to 50 yards is common occorence cohol concentration. Said inhusioninto the (Tex.App. -Dallas 1985). and does not justify stop in and of itself privacy of one's home for a minor offense -held: Where defendant testif~edhe had absent oncoming traffic or additional fac- could not be justified on grounds of two margaritas and two and one-half beers tors). preserving blood-alcohol evidence or for before driving, it was not emfor State to 3) Pretext public safety where defendant had already elicit his testio~onyas to how other certain abandoned his vehicle. (Note: this was a amounts of alcohol affected him. Black v. State, 739 S.W.2d 240 nonjailable offense.) See also, Lambert v. (Tex.Cr.App. 1987). State, 745 P.2d 1185 (0k.Cr. 1987). 3) Extraneous Offense -held: hestand detentionofdefendant -held: Warrantless entry into home, ab- McCall v. State, 750 S.W.2d 307 who had been observed committing traffic sent consent, and absent hot pursuit even Q'ex.App. -Beaumont 1988). violations by detectives who wanted to with exigent circumstances, was illegal as -held: Police officer's testimony as to question him about another unrelated of- officer did not have probable cause that why a traffic citation was not issued is fense was illegal. defendant was intoxicated until after he admissible evidence. 4) Shifting Burdens saw him in the home.

16 VOICE for the Defense I May 1989 But see, Ciry ofKtrksvi1le v. Guffey, 740 he was intoxicated at a level of .lo% or charged on intoxication where defendant S.W.2d 227 (Mo.App. 1987). higher [in a no breath test case], it [is] not merely denied being intoxicated as it was -held: Warrantless entry into hom~,ab- improper to simply argue that [the] defen- not affirmative action. sent consent, with exigent circumstances dant refused because he was intoxicated." 6)Defendant's %ory of the Case and the officers in hot pursuit, justified XXIV. Jury Charges and Instructions entry. State v. Drown, 532 A.2d 575 (Ver. 1)Article 38.23, Tex. GI& Crim Pro. 1987). 8)Afiaizvit of Complaint and Probable Cause -held: Defendant was entitled to have defensive theory on substantial issue, Pringle v. State, 732 S.W.2d 363 Stone v. State. 703 S.W.2d 652 ('l'ex.App. -Dallas, 1987). which was suppoaai by evidence, sub- in (Tex.Cr.App. 1986). mitted to the jury, i.e., defendant was in -held: Affidavit support of informa- -held: Failure to give a requested jury tion charging defendant with intoxication absorption stage at time of stop and there- instruction in DWI case on the legality of fore alcohol concentration was higher at does not have to be made by eyewitness thestop, if facts are raised by the evidence, complainant with firsthand knowledge; time of subsequent test. is error -even if the requested charge is Wood v. State, 754 S.W.2d763 police off~cerwho received the informa- flawed. Accord: Jacobs v. Srate, 734 tion is a sufficient complainant. (T.ex.App. -Houston [14th Djst.] 1988, S.W.2d 704 (Tex.App. -Dallas, 1987). on remand). XXII. Involuntary Manslaughter: 2) Article 38.23 and Reasonable -held: Defendant need not testifv to get Applicability of .10 Suspicion a defensive issue. if raised thmugh &o& (a) New Law witness, is., a police officer. Barraw v. State, 733 S.W.2d 379 Nugent v. State, 749 S.W.2d 595 Art. 19.05, Tex.P.C., is amended by (Tex.App. - Corpus, 1987). (Tex.App. -Carpus Christi, 1988). S.B. 120 so as to provide: -held: Instruction on reasonable -held: Anaccusedis entitled to acharge -change: "motor vehicle" also includes suspicion to make an investigative stop on every defensive issue raised by the "airplane, helicopter or boat." . should be given where issue arises before evidence including the law of wncunent -change: "intoxication" has same jury. causation as it applies to the facts of the definitions as the DWIstatute (loss of nor- Johnson v. State, 743 S.W.2d 307 case. mal mentallphysical and .lo). (Tex.App. - San Antonio, 1987). -held: Failure to fdea pretrial motion to 7)Diabetes @) Old Law suppress under article 38.23 does not Lojiin v. State, 366 S.W.2d 940 Lopez v. Srate, 731 S.W.2d 682 waive a complaint of improperly obtained (Tex.Cr.App. 1963). (Tex.App. -Houston [kt Dist.] 1987). evidence. -held: Defendant who testified he had -held: .10 "per se" DWI detinition of 3)Article 38.23 and Consent not consumedalcohol beforehis arrest and intoxication isinapplicabletoprose~utions thathisphysicd wnditionat the timeofhis for involuntary manslaughter. Turpin v. State, 606 S.W.2d 907 arrest stemmed fromhis diabetic condition fJex.Cr.App. 19W). Xxm. Jury Argument wasentitled to havejury instructiononthis -held: Where issue of consent to take affirmative defense. Gaddis v. State, 753 S.W.2d 396 chemical test is raised beforejurythe court (Tex.Crim.App. 1988). should charge jury and where the court 8)Entrapment -held: Prosecutor's argument that does there is no error. See also, Hall v. Evans v. State, 690 S.W.2d 112 defendant refused breath test because he State, 649 S.W.2d 627 (Tex.Cr.App. (Tex.App. -El Paso, 1985). thought himself legally drunk was a per- 1983). (Wherepolicethreatenedautomatic -held: Defendant who pleads guilty and missible inference from the evidence, once driver's license suspension to get appellant either does not testify or does not testify the refusal was in evidence. It is okay for to takebreath test it was error not to charge inconsistently with offense may still be prosecutor to argue defendant refused jury on consent.) entitled to offer entrapment defense. breath test becausehe was intoxicated, but 4) Compliance with DPSRegularions -held: There was no entrapment in it is error for prosecutor to argue that defendant's commission of DWI offense, refusalmeantdefendant was intoxicated at Moseley v. State, 696 S.W.2d 934 as offense was completed prior to any .I0 or higher. (Tx.App. -Dallas, 1985). police involvement and there was no in- -held: It was not error for prosecutor to -held: If fact question is mised by the ducement or origination of crime by law say in closing argument that reason defen- evidence, then a jury instruction on the enforcement personnel, even though dant refused breath test was "because if he validity of the breath test must be given. policeofficer, afterstoppingdefendlant,al- blows in the machine beknows] the game 5) Converse Charge Not Afirmafive lowed defendant to drive to police station is over." Accordingly, it is proper to argue Defense before stopping defendant again and plac- the jury may infer that a defendant refused inghimuuder arrest; offensewas complete because he thought himself legally drunk. Moore v. State, 736 S.W.2d 682 at time of initial stop. Note, however, "while it would be im- (Tex.Cr.App. 1987). proper to say a defendant refused because -held: No error to refuse requested

May 1989 1 VOICE for the Defense 17 The Application of Article 20.08 C.C.P. by Bill Rice

Once in a while a "blind hog" indeed the 12th District Court. Article 20.08 does find an "acorn." Having dedicated C.C.P. was the basis to quash. Two of the some twenty years of practice inHouston, cases were July 1988 Term indictments it was relatively easy to adjust to a small and five were July 1987Term indictments. town solo practice. Part of the change was Hearing before the Honorable William teceiving appointments to represent in- McAdams, the newly elected Judge of the digent defendants and inmates accused of 12th District was held. Two witnesses felony crimes while being incarcerated in were called. The newly elected District the Texas Department of Corrections. Attorney, David Barron, who was the As- Madison County has two District Courts, sistant District Attorney under Boone, and the 12th and 278th. Joyce Batson, the District Clerk. On December 8,1988, ahearing was set I had also included a ceaified copy of in the 278th District Court on a Motion the Order quashing the July 1988 Tern filed by a Houston attorney to quash the Grand Jury and would argue that the Order July 1988 Term Grand Jury, which was to of Judge Sandel of the278thD~strictCourt have heard testimony on the same day in- was binding on the 12th Dishict Court. volving one of our town's most prominent Testimony at my hearing was identical citizens. as was taken on the December 8, 1988, The hearing was short, only two wit- hearine. nesses were called, Latham Boone III, the In GdiAon. the Grand Jurv minutes District Attorney for the 12th District and William C. (Bill) Rice, Jr. is preseratly reflected five 'adjournments & the July Joyce Batson, the District Clerk for the engaged in the private practice of law in 1978 Term Grand Jury before the indict- 12th and 278th Districts. Article 20.08 Madisonville, Texas. He received a B. S. ments were returned. C.C.P. states in part: "but they shall not Degreefionz Florida Southern College in The District Attorney argued as fol- adjourn, at any one time, for more than 1960, and attended the University of Tems lows: three days, unless by consent of the court Law School from 1960 to 1962. He (1) That Article 20.08, even though it (i.e., the Grand Jury). received his JD. Degree fiom rlte Bates says "shall" is discretionary. The District Attorney testified that he College of Law Universiry of Houston in (2) That because all three counties had no knowledge of any written consent 1966, Hepracticed law in Houstonforover (Leon, Madison and Grimes) never sought or oral consent. The District Clerk twenty years before nwvitzg his ofice to out actual consent to adjourn, had never- pmduced the handwritten minutes of the Madisonville. He is licensed and has civil theless obtained constructive consent. July 1988 Tern Grand Jury, which noted triala~~dcriminaldefense experience inall (3) That Article 20.08 was vague and that the Grand Jury had been empaneled. four UnitedStatesDistrict Courtsof Texas, indefinite. then had "re-convened" several times for the UnitedStates Court ofAppeals 5th Dis- I contended that: more than tluee days. trict and the United States Tax Court of (1) Article 20.08 was mandatory and The State called no witnesses, even Washington, D.C. He is a me~nberof Delta not discretionary and argued that inMiller though District Judge Jeny Sandel was ZYreta Phi andhas been active in the Nonh v. State, supra, the Court of Criminal Ap- available (after all, he was the one on the Houston Bar Association from 1966 peals would have announced it as discre- bench). through 1986. He is a member of the tionary and would not have been bothered Thereupon, the cow pron~ptlyfound Walker County Bar Association mrd of the with considering the Judge's testimony that Article 20.08 C.C.P. had beenviolated Texas Criminal Defense Lawyers Associa- that he gave consent apoint, coupled with and quashed the July 1988 Term Grand tion. He has tried hundreds of crinunal the fact that theDecember 8,1988, hearing Jury. matters, from trafic matters to Federal couldonly hedeemed that Judge Sandel, if This is significant in hght of Miller v. RICO cases. he did testify, would have said he did not State, 537 S.W.2d 725. In Miller, the Dis- consent. His granting of the motion to trict Judge took the witness stand and gave Quash the Indictment is conclusive of this testimony that he gave consent for the fact. Grand Jury to adjourn for more than three theHonorableEnvin G. Emst (nowretired) (2) Miller does not indicate the court days. One must therefore assume that was not called, though available to testify. ever considered the constrnctive consent Judge Sandel did not consent, otherwise I had seven cases set for trial on January theory. To do so would effectively repeal the motion would not have been granted. 3,1989. Sevenmotions toquashtheindict- Article 20.08, a statute going back to The then Judgeof the 12th District Court, ments were promptly prepared and filed in Vernon's Ann. C.C.P.,Art. 380, O.C. 377.

18 VOICE for the Defense I May 1989 (3) Next, I argued that Article 20.08 is not vague, but is a rather simple direction kept in the law since 1925. The logical Second Annual Friends Auction reason is to keep reins on "tun-a-way" Grand Juries and most imprtantly to keep Benefiting the TCDLEI Building and the Grand Jury from being an extension of Honoring Buddy Dicken and the the Office of the District Attorney. (4) Lastly, I argued that the brder of Texas Criminal Defense Lawyers Hall of Fame December 8,1988, signed by Judge San- del, was binding upon the Court; after all, Judge Sandel had declared his Grand Jury at the Plaza Nacional to beinviolation ofArticle20.08, and both in courts being of concurrent jurisdiction La Villita OeLittle-Village-m-the-San-Antonio-River) should be consistent in their rulings. Featuring the "Lost Polka Band" Judge McAdams then entered his Or- ders quashing the two July 1988 Tern in- dictments. 7:30 p.m. to Midnight The court took under advisement the Thursday, June 29,1989 five motions to quash the July 1987 Term indictments, For futher informationabout the party, The District Attorney gave notice of and about Buddy Dicken and his service to appeal. These twa Dishkt Court dings are the criminal defense lawyers of Texas, very significant. call your local TCDLA Director or - The ethical considerations being a very real and potential malpractice action Theresa Mallett (713) 861-2363 against any attorney who does not file a RitaEvans (817) 924-9026 motion to quash anindictment under these circumstances, especially in the 12th and Please takearninute to compiete this form, or ask 278th District Courts. your secretary or "significant other" to help. A grievanceis ahapotential burden to Any conh.ibutionbecomes a TAX DEDUCTIBLE gift to risk. the Texas Criminal Defense Lawyers Educational Institute Under the facts and evidence, are all indictmentsreturned subject to review? What about post conviction procedure on those already convicted? Doe failure to raise the issue prior to aial constitute waiver? If a Grand Jury met initially and returned indictments and then adjourned for more than three days, are the new in- dictments subject to partial tainting, or does violation of Article 20.08 retroactive- ly taint the otherwise legal indictments? I would suggest that practitioners should check out their local procedures. Look at the minutes ofthe Grand Jwy and decideif aviolationofArticle20.08jumps Mail to: out at you. Of come, a candid interview Ms. LaquetaDomain with the District Judge or Judges might 11044 ResearchBlvd. keep you out of the Miller mlimg. Bldg. A., Ste. 100 hstly, if the Statute of Limitarions has Austin, Texas 78759 runand yougetaquashedindictmentunder (512) 343-0270 Article 20.08, you surely will have a grate- ful client.

May 1989 I VOlCEfor the Defense 19 Summary Of Significant Courts Of Appeals Opinions (Criminal) 1 O/l5/88 - 111 9/89

by Roy E. Greenwwd

Part II

INTRODUCTION used for this article in order to itrther facilitate the use of this article in the Since initiating the project of sum- lawyer's research, please feel free to write marizing the "most significant" of the meat 611 West 14th Street,Austin, Texas hundreds of criminal opinions handed 78701 or give me a phone call at (512) down by the 14 Texas Courts of Appeals 477-5971. Any suggestions for improving over thelast year, I have had to continually the usefulness of this regular significant "adjust"my standards forreview asto what opinion summary to the readers would be cases will be included within this sum- appreciated. mary. All Courts of Appeals opinions which are published, and which are SUFFICIENCY received during the individual reporting period will be analyzed, but per curiam CA #13 -Arson (Acconlp[iceWitness) opinions will not be considered. Of those - Where accomplice witness testified cases which must be determined as "most against A, CA finds that the evidence siznificant," I have arbitrarily included the shows the arson occurred at 9:30 p.m. and foilowing categories: (1) &nost all cases even though A had been with accomplice in which the convictions were reversed by one hour prior to that, and even though A the Court of AppeaIs, with a few excep- was seenafterthefact with theaccomplice, tions which would notaffect thesubstantial there is insufficient evidence to cor- jurisprudence of thestate; (2) cases which roborate the accomplice as to the actual deal with substantive questions as to the commission of the offense, thus reversal Constitutionality of a penal Code statute; Roy E. Greenwood graduatedfrom the required. Probable PDR here. [Ruben (3) cases which deal with a substantial Uniwrsity of Texas Lmv School in 1970, Sanchez, - S.W.2d , #13-87.152- interpretation of a new rule of evidence, and thereafter helped initiate the creation CR] rule of appellate procedure or statute; (4) ofthe ofice now known, as the Staff Coun- CA #5 - Aggravated Assault (Idem cases dealing with important questions of seI for hznmtes at the TmDepartment of Sonuas) - Where the indictment alleged law affecting the j~ispruden~eof the state Corrections. In November 1971, Mr. the CWs fust name as being "Richad" where a Petition for Discretionary Review Greenwood ~msappointed as Administra- and the evidence indicated the uue name will probably be filed and might be tive Assistant to the Texas Court of was "Richard," and counsel even got the grantcd; and (5) any opinion that, due to its Criminrrl Appeal,\, 11 newly-weirrcd pos~- C/W to ndmit that thc pronunciation was unusual fncl C~TCIIIILS~~~C~S,might provide riort, ~vhrrehe sened until 1978, ur whicl~ diifcrent: howevcr, CA holds thet there is interesting reading for the members of the time Ire entered private practice in Austin no evidence to show "the two names were Bench and the Bar. - specializing exclusively in criminal patently incapableof being pronounced the If a reader needs the full text of any of defense work same" and sinceA did notrequest acharge theseopinionsreproduced for assistance in Mr. Greenwood served on Governor to the jury on this issue, even though he trial or appellate brief preparation, the text Dolph Brisco's COMMISSION FOR raised it by Motion for Instructed Verdict, of the full opinions can be obtained either TEXAS CRIMINAL JUSTICE STAND- CA holds there is no showing the names from the Opinion Summary Service, P.O. ARDSAND GOALS, wsChairman of the cannot he pronounced the same, thus point Box 1262, Austin, Texas 78767, (512) TCDLA's Amicus Curiae Committee from overruled. [Spence Smith, - S.W.2d 346-1804, or from the clerk of the ap- I983 - 1985, has been afrequent Iecnlrer -, #S-87-00690-CR] propriate individual Court of Appeals. at criminal law seminars, and has written CA #I3 -Aggravated Perjury - If any reader has any suggestions or numerous articles on Texas criminal law Where A was being prosecuted for telling commentsas tomodificationsofthefoxmat for ~rariorcrpublicafio~rs. agandjury that, through him, other people

20 VOICEfor flie Defense / May 1989 made campaign contributions which he such evidence to support a charge under insufficient to support delivery charge spent on a politica1 campaign, and denied idem sonans, thus the error is not waived. under Reed v. State, 744 S.W.2d 112. that the contributions were out of his own [Ricky Blakenship, - S.W.2d -, #6- pleno Navejar, -S.W.2d- #13-87- / pocket, andstate put on a massive amount 88-023-CR] 217-CR] I of circumstantial evidence, CA finds that CA#4-burglory of Vehicle -Where CA #1 -Contributing to Delinquency State failed to prove that these contribu- CCA initially reversed and remanded for (Knowing & Intentional Conduct) - tions were actually paid out of A's pocket reconsideration of sufficiency point in Where A, as the owner of a strip joint I since. it could have been paid by other Markhant v. State, 751 S.W.2d 190, featuring topless dancers and "set-ups" for people, thus reversal required. pmilio majority of CA once again reviews the BYOB drinking, was charged with allow- Hernandez, -S.W.2d- #13-87-443- evidence and finds that the stolen property ing underage minors to come into the club I CR1 while being foundina car in which A was, anddrink, CA initially holds thatunder the CA#14-POCS(Acconp1ice Witness) was not shown to he exclusivesince there provisions of the information, whereby A -Where undercover narc dealt with third were other persons in the car, and CA was charged "knowingly and intentionally party, the seller, and the supplier, another further refuses to follow the "law of the and recklesslyallowingminortoremainon third party, testified as an accomplice at case" doctrine as to other co-defendants premises where intoxicating liquor was A's hid, and at the time of the delivery, A where evidence was found sufficient, and consumed," neither A nor any employee was arrested outside in thecar-A having majority once again reverses and orders asked for any identification; the minors no connection with undercover narc at all, judgment of acquittal, J. Butts dissenting. testified that they did not see Appellant, CA reviews the evidence and finds that the [Bobby Markham, -S.W. 2d -, #4- thus under the facts, there is insufficient accomplice witness testimony is insuffi- 85-00434-CR] evidence that A hadactual knowledge the cient to corroborate A's participation in CA #13 - Engaging in Organized customers were minors, thus the evidence this deal, thus majority reverses. [Julian Crinunal Activity - Even though CA is insullicicnt to provc theculpahlc n~cntal Moreno, -S.W.2d -, #14-87-00583- holds that evidence is sufficient to suppotT shtw of "knowinalv or intentionallv" con- a1 claim that A was involved as a party, CA tributing to the :&nauencv of ;child. CA #11- UCW (Knife) -Where A also notes that the indictment in this case was charged with carrying unlawful directly alleged that A transferred the weapon, i.e., a knife with a blade over marijuana, by delivery and distribution, CA #I -Contributing (Reckless Con- 5-m" and where the State's evidence when in mth and in fact she acted as a duct) - Even though CA holds that showed the blade of the knife extending party, with regard to an offer to sell, thus evidence did nOt show A "knowingly or through the handle to the tip of the blade there was no actual or constructive intentionally" contributed by allowing the was in excess of5-1/2," whereas the "shar- delivery of the contraband to anyone, thus minors to stay in the club, nevertheless, A pened point" of the blade was less than the evidence is insufficient to support this was also charged in the information with 5-l/Z", A argues on appeal that since the indictment for this reason, thus conviction "reckless" conduct, and under these facts, word "blade" is not defined in the Penal reversed. [Estela Richardson, -S.W.2d CA holds that since A saw the boys, and Code, thesharpened end only of the knife -, #13-86-560-CR] since they apparently appeared to be un- should he counted; however, CA disagrees CA #1 -Criminal Trespass -Where derage, and A did not use his managerial and would hold that the length of theknife A and another had a contested propeIty discretion in removing them or checking is counted as the sharpened end plus the dispute over the ownership of property ob- their IDS, his conduct was "reckless " - remaining part of the knife in the handle, tained through a probate matter as a result thus evidence sufficient under that cul- thus conviction affirmed. ponald Ranier, of the death of a third party, CA finds that pable mental state. [Barry Axelrod, - -S.W.Zd -, #I I-XX-l(U-CR] under snch circum$tances,whurc one hasa S.W.Zd, #1-87-00910-CR]

CA tt6 Amrurrrted"" Robbers2, f Idm colorable claim to an undivitld intcrcst in CA#6-Aggravated Robbery (Deadly Sonans) -Where A was charged with the property, Texas law does not allow a con- Weapon) - Where A contends that the robbery ofAr~mndoSan Roman, and Ar- victionofcriminaltrespassmerelybecausc pocket knife he used was not a deadly ~na~rdodid not testify, but rather, Rudolfo one has a"greaterright of possession'' than weapon, CA reviews all the various cases, San Roman testified and indicated that Ar- another, thus under Moore v. Sfate, 268 and holds that under the pparticular facts of mando was his hrothcr, and that it was S.W.2d 187, the provisions of thc Probate this case, the evidence was not shown to be Kudolfo. not Armando. who was robbed. Code do not ;~llowfor criminal actions to sufficient to equate the pocket knife with a CA holds that the evidence is insufficient be filed over such trespass on property deadly weapon, thus requiring the ag- to support the conviction that "Annando" cases, thus evidence insufficient. [Emma gra>,atedportionofthisconviction tobeset was the C/W in this case; while theDeputy Palmer, - S.W.2d ,#I-88-00249- aside. moman Birl, S.W.2d -, #6- Sheriff also testified that there had been CRI 87-053-CR] some indications that Rudolfo had CA #13 -POCS -Where evidence CA #I -Possession of Cocaine (Auto) answered to thename of Armando, Rudol- showed that A andanother, in hvo separate -Where A was stopped on a traffic viola- fo denied that, and indicatedthat it wasjust cars, entered a parking lot, and A's com- tion, and A was acting suspiciously, and a mere confusion on the part of the panion did dope deal with undercover PO looked into ashtray and found cocaine, Sheriffs Office, and since the names in narcs, and the only evidence indicated that hut evidence further shows that A was not question were not idem sonans, there is no A was "merely present," then evidence under the influence, did not have drugs on

May 1989 1 VOICEfor the Defense 21 his person, did not give any incriminating State contends that the trial court erred in declared and State took an appeal of this statements, did not attempt to flee, and the refusing to allow the filing of a Bill of ruling; CA notes that this eventual ruling vehicle way shown to bca rcntcd vehicle, Exception on the grounds that the hill was which the State attempts to appeal OG which wasrentcd insomeoneelse's nanlc. latc. CA holds that a Bill of I'.xcention is cmed mid-trial, not pretrial, thus there is the evidence is insufficient,to link^ to the tinkly if filed within 60 days, and'the bill no jurisdiction to hear an appeal of this cocaine. [Thomas Bladii, - S.W.2d filed herein was timely, thus trial court order. [Michael Watson, -S.W.Zd, #I-88-00198-CR] erred in not considering State's Bill of Ex- #2-88-124-CR] ception - even though opinion does not CAM -State'sApp@al -Where A is APPEALS show that what was contained in this bill pending trial in a capital murder case, and was relevant to this appeal. FamelaLopez A filodm~tionto~~ventcxuancousunnd- CA #13 -Article 44.02 -Where A and Ricky Smith, - S.W.2d -, #I- iudicatcd offcnses fronl beine admitted at enteredpleaofguilty, huthadprehialhear- 88-00464-CR] punishment phase of the t&&, and trial ing on admissibility of confession, and at- CA #13 -Emely Notice ofAppea1 - cmut granted A's motion to exclude'sueh tempts to appeal the pretrial ruling under Where A was convicted of Class "C" mis- batters; State took an appeal. CA holds 44.02, CA analyzes the CCA opinions of demeanor and received a $200.00 fine, thatthisruling hy thctrialcourtwa.mcrcly Ferguson v. State, 571 S.W.2d 908; Notice of Appeal was quired to be filed in tcrms rifa Motion in Liminc whichdocs Brewster v. State, 606 S.W.2d 325; within 90 days, hut notice was filed late, not absolutely exclude any evidence, thus Mooney v. State, 615 S.W.2d 777; and and A did not request that the Court con- CA holds thatsuch ruling is premature, and Johmo?~v. Stute, 722, S.W.2d 417, and sider an out-of-time appeal until aper the no appeal lies, thus appeal dismissed. finally concludes that even thoughA hada deadline of Rule 41@)(2), thus no timely [Catuthers Alexander, S.W. 2d -, right to raise the confession question on good cause is shown, thus majority holds #4-88-OW277-CR] appeal, such complaint was rendered that appeal is dismissed. [Arturo Gomez, "meaningless" since other evidence inde- -S.W.Zd, #13-88433-CR] JURIES pendently pmved up the conviction, thus CA #13 -No Statement of Fucts - CA neednot reach the issueconcerningthe Where A's counsel did not file a timely CA #13 - Batson Error - Where admissibility of the confession -but CA Motion for Extension to fde the Statement Stateswucksoleblackvenireman,and then notes that all of these conflicting opinions of Facts, and where he only stated therein during hearing admitted that race was a by the CCA seem to result in unfairness that he was "behindin his work," CA holds factor, only asked juror two questions, and andinthefailureoftheintentin Art. 44.02, that explanation is not a reasonable ex- she answered them appropriately for the thus even though CA affirm, following planation, and thus there is no good cause State, thus State's explanation that it was Johnson, CA invites the CCA to resolve togrant theMotionfor Extensionshown in not racially motivated is without merit and contlicts between Mooney and Johnson this record, thus the Statement of Facts is reversal required. [Roosevelt McKinney, [SeanMcKenna,-S.W.2d,#13-87- denied. [Alberto De La Gama] -S.W.2d -,#13-87-4171 399-CR] CA #I4 -MFNT (Newly Discovered CA #6 - Improper Separation/Art. CA #13 -Pretrial Double Jeopardy Evidence)-Where Aentered pleaofguil- 35.23 - Where jury was allowed to Cluims -Where A raised complaint con- ty to drug case, and eight months after separate once by consent, and then ceming double jeopardy, and ttial court sentencing A fded claim of newly dis- separated the following day due to the icy denied theMotiontoDismiss, inasituation covered evidence based upon Houston weather in the area, and neither A nor his in which A had pled in municipal court to PoliceDepartmentcomptionscandal, and attorney werepresent when that action was possession of drug paraphernalia, then had trial court granted MFNT, CA holds that taken and A filed Motion for Mistrial been indicted for possession of heroin the trial court lacked jurisdiction eight which was overmled, and State put on no based upon same transaction, CA notes months after sentence to grant an m, evidence to show that the jums were not that A is attempting to appeal a pretrial therefore, even though sympathizing with tainted, CA notes that this is a violation of order of dismissal, as A did not file a the Defendant, trial court lacked jwisdic- Article 35.23; further, under Harris v. pretrial Writ of Habeas Corpus, thus since tion to enter order, thus State's appeal State, 738 S.W.2d207,silence by a defen- Adid not file pretrial writ, heisnot entitled granted and order reversed. uhomas dant does not mean acquiesence and con- to review under Ex Parte Robinson, 641 M~PP,- S.W.2d .#14-88-00338- sent, thus State's failure to present S.W.2d 555, and attempted appeal is dis- CR1 evidence rebutting the presumption of missed. [Gary Keller, - S.W.2d -, ?A#Z -state's ~ppeals(pretrial Or- ham requires reversal; furthermore, af- #13-8&273-CR] ders?) - Where A was prosecuted for fidavits ofjurors filedby Stateinresponse CA #1 - State's Appeal - Where DWI, and dncingpretrial, trial courtdenied to A's MFWT, where there was no MFNT State did not serve Notice of Appeal upon A's pretrial Motion to Suppress the in- hearing, are not considered as evidence, A's counsel, CA holds they should have toxilyzer test, but later, during trial, it was thus cannot rebut presumption. mchael done so under the rule, but since A s got shown that the DPS officer apparently Adams, -S.W.2d -, #6-88-015-CR] notice of the appeal through the CA, no conimitted perjury in his pretrial tes- harm is shown. [Pamela Lopez and Ricky timony, the trial court then ordered that the SENTENCES smith, -s.w. 2d-,#1-88-00464-~~1 intoxilyzw be held inadmissible, but since CA #1 -Bill of Exception -Where it was already in evidence, a mistrial was

22 VOlCEfov the Defense I May 1989 I was sentenced to 10-years' confinement prior to trial, the DA wrote A's counsel a grantedand amendment was made, then A for robbery and stayed four months in the letter advising him that he was going to be requested 10 additional days to prepare for county jail, and faed Motion for Shock seeking the affumativefmdingof a deadly trial, CA disagrees with the Corpus Christi Probation which was granted, and A never weapon, therefore there was notice to the Court of Appeals' opinion in Beebe v. i reached the TDC, State appeals trial defensecounsel whichissufficient, thusno State, 756S.W.Zd759, whichholds that A court's order granting shook probation, but em. [Lisa Gnss, -S.W.2d -, #7-88- is entitled to additional time after amend- CAholds that whereAnevergot anoppor- 0026-CR] ment, on the basis that the alteration of tunity to he transferred to the TDC, ap these numbers came as no surprise, and patently because of overcrowding COUNSEL there was no harmful error, thus postpone- conditions, "shock probation'' would be ment overruled. [Knnlay Sodipo, - denied to defendants through no fault of CA #I - Ineffective Assistance of S.W.2d -,#11-88-140-CR] their own, and the statute does not now Coa~~sel/Pilnish~neritPhase - On MRH, CA #4 - Ineffective Assistance - specifically require custody in the TDC, CA once again finds that counsel's failure Where A's counsel defended both revoca- thus CA holds that service of sentence in to investigate validity of prior convictions, tion and trial for failure to stop and render countyjail is sufficient toqualify for shock failure to challenge properly prior convic- aid ongrounds that A was insane, claiming probation. [Jesse Smith, -S.W.2d- tions which were either void or not final, he suffered from mental illness called #I-8800572- CR] andcounscl's pultingA onthestand hcforc cocaine-induced delusional diswda, yet I CA#5-Cumulation Orders -Where thc jury in burglary case, allowing State to during trial Astipulated that A was volun- A was charged with two indictments under impeach him withnumerous prior convic- tarily intoxicated, and CA holds that this theTexas SecuritiesFraudAct, and hoof tions was clearly ineffective assistance of stipulqtion which destroyed the defense these cases were joined for trial before a counsel; however, the only ineffective as- rendered counsel ineffective, thus reverne8 single jury, and after the convictions, the sistance of counsel went to thepunishment conviction. pavidLong, -S.W.2d - trial court stacked the sentences, A con- phaseofthetria1,not to theguilt-innocence #4-88-00103-CR] tends that since both offenses arose out of phase, thus CA remands solely for a CA #4 - Ineffective tLssistauce - the same criminal episode, sentences rehearing on punishmentunder Art. 44.29, Where counsel on appeal challenged trial should run concurrently; however, CA finding this was not an application of the counsel's ineffectiveness, and CA initially holds that since these offenses occurred "ex post facto" law. [Aaron Cooper, remanded for hearing onissue, on remand, afrer the 1987 amendments to $3.01 of the S.W.2d -, #1-86-00032-CR] CA writes 23 pages concluding that Penal Code, defining criminal episode, an CA #1 - Ineffective Assistance of counsel's lack of knowledge and ex- indictment under the Securities Act does Counsel on Appeal -Where A was reprs perience in the law, and his lack of any not fall within Title 7 of the Penal Code, sented by trial counsel on appeal by ap- strategy in pleading A guilty to the maxi- nuder the old law, therefore, Penal Code pointment in aggravatedmbbery case, and mum sentence constituted ineffective as- requirements holding that the cases must counsel originally failed to file a brief in a sistance of counsel, with J. Chappa run concurrently is inapplicable, thus the timely manner, and was ordered to do so concurring and J. Butts dissenting. [James trial courtdid havejurisdictiontostackthe by CA, and brief was filed which was an Mitchell, -S.W.2d ,#4-85-00533- sentences. [Phillip Bridwell, - S.W.2d Alders brief contending that the brief was a1 , #5-87-00197-CR] "frivolous" and only raised one point con- CA #13 - Conditions of Parole - cerning sufficiency, CAnotes that an issue DOUBLE JEOPARDY Where trial court made finding as to the was raised in this appeal concerning the amount of restitution A owed in theft case constitutionality of the parole law charge, CA#9-Pretrial Writ-WhereAwas and ordered it be made a condition of and that noissueunderthe Rose theory had convicted of burglary with intent to com- parole, CA notes that under An. 42.18, been raised, CA further notes that this was mit sexual assault, then charged with ag- 58(g), V.A.C.C.P., a trial judge may make a lengthy and hotly contested trial with gravated sexual assault, and filed pretrial a finding, in aTDC sentence case, as to the numerous motions being filed in a lengthy writ, CA holds that no double jeopardy is amountofrestitutioninvolved, but only the record, thus CA believes that counsel's shownsincethe actual completed elements Parole Board can instruct a defendant to failure to raise theRose questionequates to of the offense of rape are not necessary to pay it as a condition of pamle, and since ineffective assistance of counsel, thus ap the bnrglaryprosecution, thus they are two trial court exceeded authority, this require- pealabated withsuggestionsthat trial wnrt separate offenses and may be charged and ment is stricken from the sentence. [Beth appoint new counsel. Fjic Randle, - prosecuted as such. [Francisco Garcia,- Smith, -S.W.2d -, #13-87-236-CR] S.W.2d -, #1-86-00396-CR] S.W.2d -, #9-88- 206-CR] CA #7 -Afirmative FindingDeadly CA #I1 - li'niely Appoirit~nent(Art. CA#11 -State'sAppeal (Dnig Offe?l- Weapon - Where A contends that the 26.04) -Where A was indicted in credit ses) - Where A was originally charged court's chargeto thejury ontheaffumative card ahusecase, and priorconvictionswere with delivery of dope and had been ac- finding of a deadly weapon was improper, alleged for enhancement, and shortly quitted in that case, then was reindicted for since the indictment diduot allege "deadly before trial, the State moved to amend the possession of the same dope and filed weapon" thus requiring thedeadly weapon indictment on the basis that one of the pretrial writ which is grantedby the Court, finding to be set aside under Ex Parte Pat- cause numbersof the prior convictions was then State appeals. CA on appeal rejects terson, 740 S.W.2d 766, CA notes that wrong, and State's Motion to Amend was A's arguments on the grounds that original

May 1989 1 VOICEfnrthe Defense 23 indictment for delivery alleged "actual answer, indicating that "A had never been were inadmissible, since at the time of A's transfer:'andsince actual transferrequires in trouble before," and A objected, and arrest, Colorado public defenders at- the immediate possession, this is an im- asked that answer be eventually stricken, tempted to gain access to him, but were pliedverdict ofnotguilty to any possession CA initially goes through a substantial denied such access by Texas officers, thus indictment, thus double jeopardy prevents amount of difficulty but fmds that the ob- under Dunn v. Sfate, 696 S.W.2d 561, A further prosecution. [Phillip Baker, - jections made by counsel were sufficient, was denied counsel during interrogation; S.W.2d-,#I 1-88-195-CR] therefore'holding it was improper for the and oral confessions are also inadmissible. CA #I4 -Pretrial Writ - Where A State to impeach the witness with "have pavid Roeder, -S.W.2d ,#1-87- was originally convicted of involuntary yon heard" question about A's back- 0081 I-CR] manslaughter, but on direct appeal, CA ground, and the error was hd,requir- reversed due to insufficient evidence and ing reversal. [Spence Smith, -S.W.2d CROSS-EXAMINATIONIIMPEACHMENT remanded case for determination of -, #5-87-00690-CR] whether or not lesser-included offense of CA #5 -Rule 405a -Where reputa- CA #7 -Exclusion of Video Tape - criminally negligent homicide could be tion witness testified that some of the in- In somewhat of a reversal of roles, where hied, and A filed pretrial writ, CA reviews formation she received about A cameafter State puts on infant witness to testify about evidence and finds that since prosecution the date of the offense, this was a violation A's assaulting her, and thenstate addition- for criminally negligent homicide is a res I of Rule 4058 regarding reputation ally offers gestae outcry statements in- lesser-included offense, requiring another evidence, thus trialcourterredinadmitting dicating that A was guilty, even though burden of proof, A could be Wied for such reputation witness's testimony; however, W did not testify, A asked to enter into crime on retrial. [Ex Parte Keith, - in view of other evidence presented, and evidencethevideo tapeinorderto impeach S.W.Zd, #14-8840624-CR] the fscts of the case, CA holds it harmless the Wandhis request was denied, as CA CA #I4 -Pretrial W~it(MFNTBuf- emr. [Jimmy Ross, -S.W.2d7, #5- holds that underRule 806, this was clearly jiciency ofEvidence)-WhereA was con2 87-01274-CR] impeaching evidence as to Ule statements victed of theft and habitual, and then filed entered as res gestae, thus requiringrever- MFNT in which he raised the questions of CONFESSIONS sal. [Vince Hall, -S.W.Zd, #7-88- insufficiency of evidence and newly dis- 053-CR] covered evidence, and trial court granted CA#8-OralStatement-Wheretrial CA #6 - Child Video Tape -Where MFNT without specifying the basis of the courtsuppressedoralstatementmade by A CCA remanded case for determination of decision, CA holds that trial court could onthegroundsit wasnotrecordedpursuant harmless error, in Lowrey v. State, 757 have denied A's petition based on newly- to the provisions of Art. 38.22(3a) and S.W.Zd358,majorily holds on remand that discovered evidence, not on sufficiency, State appealed, CA finds that even though the ermr was harmless; however, J. Bliel thus no double ieo~ardvshown here. such statement was not admissible under dissents, and points out that since the vic- [Glenn Lofton, &w.id,#14-88- 3a, it was admissible under 3c, where the tim in this case did not testify, except 00682-CN oral statement led to the "fruits of the through the video tape, therefore the error CA #14 - Possession & Delivery of crime" and thus the statement was admis- cannot be harmless, thuslookslikeanother Cocaine -Where A was convicted in a sible, thus trial court's order of suppression PDR here. Flitchell Lowrey, -S.W.2d joint lrial of both offensesat thesametime, reversed. polores Romero, - S.W.2d -, #6-85-088-CR] without any objection or request for special -, #8-88-00157-CR] jury instructions on the double jeopardy CA#l - Zllegal Arrest - Where A issne, CA initially holds that A has not shows that his arrest was illegal under the TRIAL COURT waived his double jeopardy complaint terms of the Uniform Criminal Extradition even though it was never raised at trial; Act, since no proper arrest warrant was CA #1 - Order of Trial -Where A however, inthis case, since Adid complete ever obtained, and since Colorado officers and two codefendants were indicted for a delivery of dope to an undercover agent, depended upon information gained from offense, and all three co-defendants were and then, prior to the mest being made, A Houston POs; nevertheless, there is no severed, and they agreed as to the order of fled the scene and "threw down" another showing that this "fellow officer probable trial, indicating A would be tried last, but quantity of cocaine, CA can see some cause rule" has any application to officers trial court overruled request and tried A legitimate reasons for dual prosecutions, of dlperent states, and since under Cw first, CA holds this was a violation of Art. thus the two separate quantities of cocaine lorado law, citizen informants such as co- 36.10,V.A.C.C.P.; however,CAnotes that do not indicate a meritorious double defendants arenot givenstatusof authority neither side properly briefed the issue and jeopardy complaint. [Elio Diaz, as reliable informants, CA holds A was CA further notes that one of A's co-defen- S.W.2d -, #14-87-021-CR] illegally mested, and that subsequent con- dants did testify inhis behalf without exer- fession was improperly taken underBrown cising Fifth Amendment privilege, and CHARACTER EVIDENCE v. Zllinois test. pavid Roeder, -S.W.2d there was no showing A attempted to ob- -, #1-87-00811-CRJ tain the testimony of the other co-defen- CA #5 -Have You Heard Questions CA #I- Oral Statements -Further- dant, and there is absolutely no showing of -Where defense witness in aggravated more, CA holds that additional oral state- hann, thus erroris harmless. PimRoberts, assault case gave totally unresponsive ments leading to the fruits of the crime -S.W.2d-, #1-88-00115-CR]

24 VOICEfor the Defense 1 May 1989

A View From The Bench By Judge Sam Houston Clinton

Purveyors of conventional wisdom . . . If you have no doubt of your provoke more musings on patterned Law premises or your power and want a Day speeehesinpraiseof TheRuleoflaw. certain result . . . , yon naturally Oliver Wendell Holmes believed that a express your wishes in law and bad man has as muchreason as a good one sweep away all opposition.. . . But "for wishing toavoid anencounter with the when men have realized that time public force;" while caring nothing for an has upset many fighting faiths, they ethical rule observed by his neighbo~s,the may come to believe evenmore than bad man is nevertheless likely "to care a they believe the very foundations of good deal to avoid being made to pay their own conduct that the ultimate money, and will want to keep out of jail if good desired is better reached he can." Holmes, The Path of the Lmu,10 through free trade in ideas4hat the HarvardLawReview457,458 (1987). Ac- best test of truth is the power of the cordingly, Holmes agreed with "our friend thought to get itself accepted in the the badman [who] does not care two straws competition of the market, and that for the axionls or deductions [underlying truth is the only ground upon which judicial decisions]," but is intimately con- their wishes safely can be carried cemed with"prophecies of what the courts out. That at any rate is the theory of willdoinfact."That is whatHolmes meant our Constitution. It is anexperinlent, by "the law." Id., at 460-461. as all life is an experiment. While Holmesian judicial philosophy has been roundly criticized hv learned Abrarns v. United States, 250 US.616, Sam Houston Clinton, Judge, Court of commentators, many practicing members 630 (1919). Criminal Appeals, selected by Criminal of the legal community still pragn~atically The ~ighteenthAmendment had just Law Section of the State Bar of Terns as hold that a common definition of the law is been ratified. During Prohibition, excesses the "Outstandinq Jurist" in 1986. Ad- less important than its character for in vigilantism produced our statutory ex- nritted to pmctice before the Supreme stability and predictability. Some trial clusionary rule. The Noble Experiment Court of Teaas, 1949; Admitted to Bar of judges demand that. lastedbut fourteen years. Theexclusionary United Slates Supre~neCourt, 1966. Fre- Modernscholars,however, tendto view rule remains. See Brown v. State, 657 quent lecturer tl~roughoutTexas at legal the law essentially as "one of many S.W.2d 797, at 802-805 (Tex.Cr.App. serniuars sponsored by the State Bar of methods of ordering and channeling the 1983). Texas and the Texas Crinri~zalDefense energies of society; its only measure is its Since this Court was initially created by LuyersAssociation. effect on society." Aldisert, 7'he Judicial theconstitutionof 1976, itfound,followed Process 3 (West Publishing Co. 1976). An -yes, madeand expounded thecriminal implication is that state appellate courts, as law of this State. Over the years as its well as legislative bodies, be sensitive to So often nowadays one revisionist movement is in direct competition with membership enlarged from three to five "energies of society." and finally to nine, some judges have been Law Day speakers-all of us-muus another group to achieve diametrical ends. recognize that ours is a combative society As competitorsvie for attention, theircam- publicly scathed; however, in recent and its energies are diversely directed. As paigns escalate beyond acceptable levels memory none has been formally rebuked epitomized in sociopolitical adversarial of reasonablepropriety. To gain adherents, for impropriety in office. The Court has litigation, some segments of society are strength and power, a conventional tech- been at once conceptual and doctrinaire unwilling to accept certain settled prin- nique is, in the vernacular, "judge bash- and functional, maintaining poise in rare ciples of governance. For themandin those ingn--e.g., "Impeach Earl Warren." harshly critical times, usually in silence, respects, the status quo lacks social utility; Finally believing it has prevailed over the above "the roar of the crowd." Like most yet, they charge, courts persist in following other in some particular, oneside promptly state appellate courts, this one is not and perpetuating precedents that do not proclaims victory. equipped readily to absorb conventional redress a given societal need (subjectively Recalling that Chief Justice Warren wisdom; it is geared tocommon law prin- perceived by them). Thus there are voci- retired in due course with his dignity and ciples and statutory rules that constitute ferous outcries for revising this or that integrity intact, one must wonder what any The Rule of Law. aspect of our constitutional system of jus- unilaterally proclaimed "victory" wins for Such is the stuff of which Law Day tice--criminal as well as civil-to the end society. speeches are made-at least as viewed that their own notions of "justice" are In a related context, Justice Holmes from here. grafted onto stock of The Rule of Law. reasoned:

26 VOICE for the Defense I May 1989 ANNOUNCING THE 1989 EDITIONS OF THE TEXAS HANDBOOK SERIES

INCLUDING THE NEW ADDITION TO THIS SERIES: THE TEXAS CRIMINAL EVIDENCE HANDBOOK

TEXAS PENAL CODE HANDBOOK:

About 400 pages of text and casenotes, including the full text of the 1974 Texas Penal Code and updated with annotations on Texas court decisions reported through 754 S.W.2d.

TEXAS DRUGS AND DWI HANDBOOK:

Over 130 pages of text and casenotes, including the text of the Controlled Substances Act, Dangerous Drugs Act, Volatile Chemicals, Simulated Controlled Substances, and DWI Statutes, and updated with annotations on Texas court decisions reported through 754 S.W.2d.

TEXAS CRIMINAL PROCEDURE HANDBOOK:

Over 700 pages of text and casenotes, including the text of the provisions of the Texas Code of Criminal Procedure relating to criminal procedure. (Does not include chapters relating to evidence, which are included in the Texas Criminal Evidence Handbook.) Also included are provisions of the Texas Rules of Appellate Procedure relating to criminal cases, and updated with annotations on Texas court decisions reported through 754 S.W.2d.

TEXAS CRIMINAL EVIDENCE HANDBOOK:

About 400 pages of text and casenotes, including the text of the provisions of the Texas Code of Criminal Procedure relating to evidence (Chapters 14, 15, 18, 24, 38 and 39), as well as the Texas Rules of Criminal Evidence. Also included are annotations on Texas court decisions reported through 754 S.W.2d.

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1989 Texas Penal Code Handbook 60.00

1989 Texas Drugs & DWI Handbook 30.00

1989 Texas Criminal Procedure Handbook 90.00

1989 Texas Criminal Evidence Handbook 60.00

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Mail completed form to: * Sales tax information: inside Austin MTA: 7314% Freelance Enterprises, InC. elsewhere in Texas: P/u P. 0. Box 15243 Austin, TX 78761-5243 A Federal Perspective Right to Counsel Under the Sixth Amendment

by Judge Wm. F. Sanderson, JL

The standards by which a criminal Barnes, 463 US. 745, 103 S.0. 3308 defendant's right to counsel under the (1983); by conferring with the defendant, Sixth Amendment are determined are yon may learn of possible points of em found in the Supreme Court's decisions in which wereoverlooked. Suchcommunica- Strickland v. Washi~~gto~~,466 US. 668, tion should also minimize the possibility 104 S.Ct. 2052 (1984), where a conviction that the client will attack your appellate is based upon a "not guilty plea" -and in representation in the future. Of course, HiNv. Lockhart, 474 US. 52,106 S.Ct 366 grounds of error on appeal must be based (1985)-where thesentenceis basedupon upon that which is contained in therecord, a "guilty plea." An accused's right to coun- a fact not generally appreciated bypro se sel may also he implicatedby a trial court's litigants seeking collateral review of con- ruling or its restrictions on a defendant's victions. If it appears that arecord couldbe presentation of.his case, but the focus of made to establish a ground of error on this article will be on the conduct of appeal, you may wish to consider filing a defense counsel. motion for new trial, provided that such is One goal of the conscientious prac- not procedurally barred. titioner,particularly one whospecializes in The majority of ineffective assistance criminal law. should be to avoid such l! claims involve alleged omissions or claims being iaised by former clients. My failures to act attributed to counsel. al- tenure as a United States Magistrate has though affirmative conduct of counsel is given me a panicular insight into this type occ

28 VOICE for the Defense I May 1989 in United States District Court. However, attorney to maintain a personal case file. the time he rests his case in chief or when a prudent lawyer should never rely on ap- Although anattomey's failure to inves- he enters a guilty plea, by obtaining his plicationoftheserulesto absolvehimfmm tigate the validity of prior convictions al- acknowledgement under oath that you attacks on his professional competency. leged in an indictment for enhancement of have performed all the acts requested by The wise practitioner should document punishment or presented for impeachment the defendant, that he agrees that no other and record his efforts in representing a or for the jury's consideration in the sen- witnesses shouldbe called, etc., or by ob- criminal defendant to provide a source of tencing phase of trial may not suffice to taining his affirmation to a guilty plea, reference if his efforts are later called into establish ineffective assistance of counsel, including all factors bearing upon his question. Your file should include any e.g., Marks v. Estelle, 691 F.2d 730 (5th decision to plead guilty, except for matters legal memoranda which you prepared, as Cir. 1982), cert. den. 462 US. 1121, 103 protected by attorney-client privilege. If well as notes to yourself which reflect why S.Ct. 3090 (1983),identifyingandexamin- differences are present, you will have an you decided not to request or object to ing the validity of underlying convictions oppmnity to explain them in the trial instructions or your reasons for tactical should always be undertaken by an attor- court rather than in a habeas proceeding decisions made, if the rationale is not ap- ney. Cook v. Lynaugh, 821 E2d 1072, at several years later. parent from the record. Not all avenues of 1077-79 (5th Cir. 1987) Thehurdenwhichadefendant must dis- investigation pursued will necessarily be Anothereffectivemethodforprotecting charge in the context of a guilty plea is within the personal knowledge of a defen- yourself fmm claims of ineffective assis- greater than that based upon a conviction dant, and this is all the more reason for an tance is to get the client "on the record" at imposed after a trial. As expiained by the

Editor's Column fort to dispeme with those comboration That particular brief is reprinted in this requirements not only in this case, but in issue because of its obvious importance. It conrinuedfro,r~~e5 essence in all oral confession cases. also clearly reflects the efforts of the at- Larty is not even the custodian of the tape. March 28,1989: The TCDLA Amicus torneys involved, particularly David The writ seeks the reinstatement of court- Curiae Committee, acting by and through Botsford. appointed counsel McLarty and Lanehart David Botsford, and the TCDLA Lawyer Mr. Botsford, TCDLA is quite (due to a denial of choice of counsel and Assistance Committee, acting by and privileged to have you as one of its mem- effective assistance of counsel by virtue of through Edgar Mason, filed extensive bers. the disqualificationby the trial judge) and responses with the Court of Criminal Ap a demand for a speedy trial (Stearnes has peals responding to JudgeRoach'srespon- been held without bond for 17 months ses to the wits in Roland and Haynes. pending a trial). The Court of Criminal On or about April 10,1989, at the re Appeals entered an order on March 28, quest of David Botsford, the TCDLA 1989, ordering Judge Clinton to respond Amicus Curiae Committee, acting by and TO YOUR RESCUE within 10days to theallegationsofthe\vrit. through Menilee Harmon and Lynn 24 HOURS. ANY JAIL. TERMS The National Association of Criminal Malone, will be filing its statement in sup- 1 Defense Lawyers subsequently filed a mo- port of appellant's petition for discretiou- tion to join as amicus curiae and to adopt ary review with the Court of Criminal the brief previously filed by TCDLA and Appeals inSwope v. State. This case invol- LCDLA. ves the issue of whether an indictment that March21,1989: The TCDLA Amicus allegesparty liability is subject to a motion Curiae Committee, acting by and through to quash due to the failure to allege the David Botsford, agreed to file an amicus manner and means of how the defendant brief in connection with a capital case allegedly aided, assisted, encouraged, handled by Mr. Reed Jackson. The case solicited or attempted to aid the primary involves the admissibility of DNA fmger- actor. printing. On April 11, 1989: The Court of March24,1989: At therequest of Jack Criminal Appeals summarily set aside the Zimmermam and President Edward Mal- thirteen contempt citations previously leu, the TCDLA Amicus Curiae Commit- entered against George Roland and David tee, acting by and through David Botsford Haynes. (with input from Walter Prentice) filed its amicus brief with the Coun of Criminal It is appropriate that wereceiveda copy Appeals in Port v. State. This case deals of the TOLA Amicus Brief ffled in the with thecorroborationrequiremeuts of the first ofthearticIe44.29@) cases, submitted oral confession statute and the State's ef- to the Texas Court of Criminal Appeals.

May 1989 1 VOICE for the Defense 29 Supreme Court in Hill v. Lockhart, supra: demanded a trial in the case at issue, even claims of failure to investigate law issues though the evidence of guiIt in that par- or facts or failures to call witnesses at trial. The defendant must show that there ticular case may not appear to have been Documentation of efforts can go a long is a reasonable probability that, but strong. way todispel such claims. Intbosecases in for counsel's em,he would not Under current Fifth Circuit law, an which I have conducted evidentiary hear- have pleaded guilty and would have evidentiary hearing is not required in ings, it has been my experience in all too insisted on going to trial (Id. at 370). federal court on a petition filed by a state many cases that the attorney has no recol- prisoner pursuant to 28 U.S.C. 52254 if a lection of his efforts. On the other hand, Although the burden is higher, a guilty "hearing" was held in the state court on one instance which comes to mind in- pleapresents circumstances where it is less sworn pleadings or affidavits where the volved a situation where the defendant- likely that an attorney has conducted the conflicting factual contentions are re- petitioner claimed that his attorney had same amount of investigation, patticidarly solved by the state court. Smith v. Estelle, failed to call a particular witness at.trial. where the decision to plead guilty is made 717F.2d 677 (SthCu. 1983), cert. den. 466 When the attorney testified at the eviden- early on in the attorney-client relationship, US. 906, 104 S.Ct. 1685 (1984). Under tiary hearing, he brought his file which andit is equally unlikely that theattorney's §2254(d), supra, the facts found by a state included the defendant's own handwriten unrehhed recollection will be as precise court are presumed to be correct. If an list of persons whom he believed had as in a case where thedefendant had a full attorney accused of ineffective assistance knowledge which would be beneficial to aid. Frequently a plea of guilty is entered of counsel wishes to avoid appearing as a his defense. The person whom the in one case as patt of an overall package of witness in a federal evidentiary hearing, a petitioner claimed should have been called negotiated pleas in whichanumber of sen- premium is put upon his ability to address, wasnot includedonhisownlist, which was tences are run concurrently. When an at- either in live testimony or by affidavit, all dispositive of the issue. tack is made on a guilty plea many years materialissues of factunderlying theclaim Althoughconstitutionaldeprivationsdo after the fact, the assembled recordmay be of ineffective assistance of counsel at the continue to occur, e.g., Lyons v. McCotfer, limitedto thesinglecaseinquestion,rather state court level. It is self evident why 770 F.2d 529 (5th Cir. 1985); Profltt v. than including the several other cases accurate and adequate documentation is McCotter, 831 F.2d 1245 (5th Cir. 1987), which precipitated the guilty plea. Due to required. It is important to note that once a attorneys should be ever vigilant to assure the passage of time, the only remaining criminal client attacks the assistance of his that their representationdoes not prejudice person with specific knowledgeofthe "big former counsel, the attorney-client the interests of their clients. Whenever picture" other than the complaining privilege which would otherwise apply is Sixth Amendment violations occur, not prisoner, may he his former attorney. waived. UnitedStatesv. Woodall, 438 F.2d only are the rights of defendants pre- Where multiple convictions are involved, 1317 (en banc) (5th Cu. 1970), cert. den. judiced, but the interests ofjustice are dii- this factor alone may be sufficient to 403 US. 933,91 S.Ct. 2262 (1971). served as well. demonstrate that the defendant would not Most commonly those claims which have rejected the entire plea package and cannot beresolvedkom therecordinvolve

President's Column too often more interested in publicly pos- much during my year of service. conri,~rrBdfrostplgp3 turing as crime fighters than with creating Thank you, TheresaMallett, for making and administering equitable rules. Trial the FWENDS of TCDLA a bright point of hesitate to raise his voice when the con- lawyers are specialists in the art of per- light in thejustice universe, and for putting stable blunders, and p~icularlynot when suasion. We touch the basic, human up with my absences and my absent- the constable breaks the law. When police responses of jurors, and make them want a mindedness much of the time. or judicial misconduct is the cause for an just result, so often in the courtroom. Per- Thanks to Connie Knox and everyone unsolvedcrime, defense lawyers shouldbe haps we can do more to reach the media in my offke for supporting all the nonbill- credited for enforcing the law and com- and vindicate our public responsibility. By able hours. And, thanks to our TCDLA manding obedience to its requirements. speaking out, we defend the rights of Officers, Directors, activists and staff for What defense lawyers must strive for, everyone. giving so much more than I ever realized and what this Association must strive for, With the 18th year of the Texas is required to support the activities and is positive recognition from the press - Criminal Defense Lawyers Association goals of this Association. the Fourth Branch of Government - drawing to a close, I leave office with You-all have done a great service to our which so intimidates elected officials. In gratitude to the entire membership and cause in Texas, and by your example, to these reactionary times, our politicians are especially to those who have meant so preserve justice in these United States. . 30 VOICE for the Defense 1 May 1989 List of Granted Petitions for Discretionary Review by John Jasuta

Issues Presented in Petitions for Discretionary Review Which Have Been Granted by the Texas Court of Criminal Appeals and Which Are Presently Pending Decision

Since July 17. 1985 the administrative PDRO943-88 04/05/89, Harris Co. (S's hmfrom a pamle law charge? staff attorneys of the Court of Crirnbtal PDR), Del. ofMarihuana(rev/pob), Jesus PDR 0196-89 04/05/89, Midland Co. Appeals have coinpiled. in the normal Maria Solis: (1)Was the Court ofAppeals (A's PDR), Murder, Dolores Roniero: (1) course ofbusiness, a list of cases and legal correct in reversing and remanding a The Court ofAppeals emdinreversing on issues on which the Court hasgrantedpeti- probation revocation where the evidence the ground that the statements were admis- tions for review. Although originally did not show the greater offense but did sible under Art. 38.22, Sec. 3(c), prepured for internal use only, the Court show alesserincluded offenseeventhough V.A.C.C.P. (2)TheConrt ofAppeals erred has authorized release of the listforpubli- the state did not raise alternative allega- in reversing because the statements were cation andfor use by the bench and bar of tions? admissibleunder Art. 38.22, Sec. 3(c),be- Texas. The issnes listed are sirn~mariesas PDR0071-8904/0/89, Harris Co. (A's cause that ground was never presented to worded by the st& and do not necessarily PDR), Agg. Robbery (hab.), Kenneth Bled- the hial court. reflect either the reasoning or the soet (1) Was the Court of Appeals correct PDR0945-8703/01/89, Dallas Co. (S's phraseology wed by the parties or by the in their harm analysis when analyzing the PDR), Forgery (ltnb.), Jesse Rochelle: (1) Court. The following are the cases and issues on which the Court of Criminal Appeals granred reviewbut which the Courthas not Tentative FY89 CDLPPCDLA Seminar Schedule yet delivereda written opinion: June 8-10 June 30 PDR 0865-88 04/05/89, Tarrant Co. TCDLA Criminal Law Short Course- TCDLEI Board Meeting-9:30- (S's PDR), Agg. Robbery, Johnny Otis San Antonio - Holiday Inn Riverwalk 10:30a.m.-Holiday Inn Riverwalk Yong: (1) Should the harmless ermr rule, 81@)(2)apply to mandatory statute, Art. June 28-July 1 Friends ofTCDLA Board Meeting - 26.04, regarding lodays preparation time? SBOT ConventionSan Antonio 10:30 a.m.-12:00 p.m. PDR0900-8804/05/89, Harris Co. (S's Ilre State Bar of Texas will be & A's PDRs), Murder, Michael Gene Headquarfered at the Marriott TCDLA Annual Meeting (Board Cravey: (1) Whether attempted murder al- Meeting)-10:30 a.m.-1:00 p.m. legation gives sufficient notice of deadly June 29 weapon issue. (2)Whether the standards of Criminal Law Institute review concerning failure to apply the law Sponsored by: Texas District and July 20-21 ofparties to the facts requires review ofthe County Attorneys Association, CDLP Skills CourseAbilene entire record or just the "evidence." Criminal Justice Section (Embassy Suites) PDR 0923-88 04/05/89. Victoria Co. (A's PDR), Poss. of Cocaine, George June 29 James Santikos: (1)The Court of Appeals CDLP Executive CommitteeMeeting August 10-11 400-5:00 p.m.-Holiday Inn Riverwalk CDLP Federal &State Appellate erred by holding Sec. 101.04 of the Practice-Ft. Worth (Worthington T.A.B.C. constitutional. TCDLAExecutive Committee Hotel-tentatively) PDR 0924-88 04/05/89, Nolan Co. (S's Meeting-500-630 p.m.-Holiday Inn PDR), Unlaw. Carrying Handgirn by Riverwalk Felon, Albert Wayne Ware: (1) The Court September 20-22 of Appeals used the wrong body oflaw to June 29 TCDLA Federal Short Course-Dallas determine that a variance existed between TCDLAAnnual Party with Auction & (Holiday Inn - Downtown Elm Street) the enhancement allegations and the proof. Hall ofFame Inductees 7:00p.m.- (2)The Court ofAppeals erred in failingto closing - (Plaza Nacional in LaVillita) reject surplusage.

May 1989 1 VOICE for the Defense 31 Was the Court of Appeals correct to PDR 0591-88 03/08/89, Dallas Co. Classified Ads reverse for failure to quash the indictment (A's PDR), Poss. of a Controlled S~rb- Classified Advertising MUSl? when the appellant failed to file a motion Be tvnerl. stance: Cocaine, Joseph Lamar McNaty: Be worded 8s it should appear. to quash prior to trial, thus implicatingArt. (1)Was there a valid inventory stop in this Include the number of mnseeutive issues 1.14@), C.C.P.? cause? a is to appear. PDR 0540-88 03/01/89, Dallas Co. PDR 0658-88 03/0&89, Snrith Co. (S's Be prepaid Wakecheeks payable toArt- forms, inc.) (A's PDR), Disrupting a Lawful Meeting PDR), Murder, Ricky Bernard Russeau: Be received by the 15th of the month (Sec. 42.05), Gardell Morehead: (1) In an (1) Whether the state had to disprove A's , preceding date of publication. attack upon the constitutionality of a oral statement under Palafox or Rule 607 cls~sifiedads are $15 00 for the fit25 words statute due to overbreadth. Was the Court of Rules of Evidence. What effect does and 5OC for every word over 25. Advertising of Appeals correct in reading the statute statement have on sufficiency? copy should be submitted to ARTPORMS, 6201 Guadalupe, Auslin, TX 78752. Tel. with a narrowing construction where the PDR 0736-88 03M9, Tarrant Co. (512) 451-3588. language is arguably plain and unam- (S's PDRJ, Agg. Robbery, Forest Leon Acceptance of classified advertising for biguous? (2)Is thestatute, asapplied, over- Ethingfon: (1) Whether the COA erred by puhlicatiomn the VOlCEforlheDefenre does broad in violation of the first and refusing to address the state's contention not imply approval or endorsement of any praduct, service, or representation by either fourteenth amendment and can the court of that any emwas cured or was harmless? the VOICEfor the Deftwe or the TCDLA. appeals use a narrowing inshuction? (Rule 90(a)). (2) Whether the COA erred No refunds on cancelled ads. PDR 0584-88 03/01/89. ROCMICo. by holding appellant preserved error by (A's PDRJ, Poss. of a Conrrolled Sub- failing to continuously object. FEDERAL PUBLIC DEFENDER, stance, Tornnrie Lee Hass: (1) Were the PDR0748-8803M9, Dallas Co. (S's Northern District of Texas. The United facts set out in the affidavit sufficient to States District Coua for the Northern Dis- PDR), Sexual Abuse of a Child, Billy trict ofTexasis now acceptingapplications show pmbable cause for the issuance of a Dwight Corley: (1)Indetermining whether for the position of Federal Public search warrant for a bldg. which was not appellant was entitled to a new trial under Defender. The Federal Public Defender mentioned in the affidavit? Rule50 (e) of the appellaterules, thecourt will heappointed by theF%h Circuit Court PDR 0604-88 03/01/89, Harris Co. ofAppeals erroneously held that thedesig- of Appeals. The term of appointment and (A's PDRJ, Agg. Sexual Assault, Eewr nation of the statement of facts was timely. reappointment is four years. The annual Eathon Haughton: (1) Whether state may PDR 0693-88 & 0694-88 OZ2/89, salary will be approximately $70,740. introduce pretrial video tape of child com- Harris Co. (S's PDRJ, Poss. of Cocaine, The Federal Public Defender will oro- plainant after D used some of statements Poss. of Marihuana, Charles Richardson: vide federal criminal defense services to on video tape to impeach child com- (1) Did the Court of Appeals em in finding individuals unable to afford counsel. The plainant. the need for a requested limiting instmc- current authorized staff includes the PDR 0648-88 03/01/89, Wchita Co. tion? (2) Did the state impeach the co-def? Federal Public Defender, sixlawyers, two (A's PDR), TIrefr over $20.W, Harry Ed- (3) Was theevidence of the witness's prior investigators, one paralegal and five ward Shahan: (1) Can the trial court statements admitted to impeach or as secretary/cleflcalpositions.Theoffice will proceed to adjudication after a grant of primary evidence to prove appellant's be headquartered in Dallas, Texas, and deferred adjudication where the capias is guilt? there will be a branch office in Fort Worth. issued prior to the end of the probationary PDR 0772-88 03/22'89, Lamar Co. An applicant must be a member in good term? See Garza, 725'256, and Coleman, (A's PDRJ,Poss. ofMarihuana, Doyle Wil- standing of the Texas State Bar or the bar 63W616. son Hall: (I) Was the search warrant issue of the state in which he or she is currently PDR0914-8803/01/9, Dallas Co. (S's in this case based upon a sufficient show- admitted to practice. Applicants should PDR), Pretrial Habeas (Rape), Haron ing ofprobahlecauseand therefore was the have a minimum of five years criminal Stephens: (1) Can D be retried for L.I.O. evidence obtained pursuant thereto admis- practice, preferably with significant federal criminal trial experience. after appellate court finds evidence insuff. sible? (In two grounds.) NeithertheFederal PuhlicDefendernor for greater offense? PDR 0813-88 03/2B9, Harris Co. any Assistant Federal Public Defender PDR 143288 03/01/89, Galveston Co. (A's PDR), Poss. of a Controlled Sub- may engage in the private practice of law. (S's PDRJ, Robbay, Jesse James Smith: starlce, Douglas Eugene Holladny: (1) APPLICATION FORMS MAY BE (1) Whether a trial court may grant shock Whether the COA departs from Daniels, OBTAINED FROM AND RETURNED probation when the defendant has served 71S/R(YL, concerning thelegality of a stop. TO: Nancy Doherty, Clerk; United States time only in county jail and not in TDC. PDR 1073-88, 1074-88, 1075-88, & District Court; 1 100 Commerce Street, PDR 018289 03/01/89, Harris Co. 1076-88 03/22/89 Dallas Co. (A's PDRF), Room 14,420; Dallas, Texas 75242. Com- (A's PDR), Pretrial Habeas (Theft), Glenn Agg. Robbery (4j, Christopher Payne: (1) pleted applications must be received no R Lofton: (I) Does a court of appeals need The Court of Appeals erred in finding that later than June 1, 1989. THEFTKH CIR- to review sufficiency of the evid. when D the trial court's refusal to allow appellant CUIT COURT OF APPEALS IS AN claims evid. was insuff. in prior trial. to withdraw his pleas of guilty was ham- EQUAL OPPORTUNITY EMPLOYER. (MNT granted for unspecified reason.) less error.

32 VOICE for the Defense I May 1989 Ethics Notes Attorney Advertising: Ethics Gone Awry

by KihE. Jagmin

Open your Yellow Pages to the "Attor- not susceptible to reasonable neys" section, and let your eyes feast onthe verification by the public; multitude of advertisements placed there (6) Contains other informationbased by our brethren. Look them over carefully. on past performance which is not Next, flip to this weeks's edition of theTV susceptible to reasonable verifica- booklet contained in your Sunday news- tion by the public; paper. More ads. Finally, keep your eyes (7) Contains a testimonial about or peeled, though you won't have to work at endorsement of a lawyer; it very hard, as you drivedown the freeway (8) Is intended or is likely to create of your choice. There, yon will find an unjustified expectation about billboard after billboard advertising the results the lawyer can achieve.' prowess of our brothers and sisters. Once upon a time, a long time ago, the fist Now, examine the ads in the Yellow attorney ads appeared in various publica- Pages inlight 0fthe"DR." Statementssuch tions. They were relatively bland, relative- as "we're the toughest lawyers in town" ly tasteful, and relatiwly straightforward. run clearly afoul of Section A, Subsections When you loose a wild animal, however, 2, 3, 7, and 8. Other statements regarding youcannot expect it toremainathome, and the credits or trial statistics of the attorney the ads are no longer very tasteful, bland, seem violative of Subsection 5. or straightforward. Do they violate the If the advertisement contains state- Code of Professional Responsibility? The ments regarding the area or areas of law in answer in regard to many of them is "yes." Keith E. Jagmin is a solepractitior~erin which the attorney practices, the ad must DR2-101 of the Texas Code of Profes Dallas, Texas. He is Board Certified in also state the name of the lawyer respon- sional Responsibility, "Publicity and Ad- CrrminalLaw by the TmsBoard ofLegal sible for the legal services to be provided vertising" provides: Specialimtion and isa member ofthe Sfate in that area? Therefore tradenames are im- Bnr of Texas, the Texas Criminal Defense plicitly andspecifically proscribed?More- (A) A lawyer shall not make, on be- Lawyers Association, a Director of the over, eachlawyer whose nameis published half of himself, his partner, as- Dallas County Criminal Bar Association, regarding a specific area of law must state sociate, or any other lawyer, any and the Secretary-Treasurer of the that he is board certified in that specific false or misleading communication Criminal Law Section of the Dallas Bar area or is not? The Rule is specific about about the lawyer or thelawyer's ser- Association. the language to be used. In the event the vices. A communication is false or Mr. Jagn~ir~isafieqlrentlectzire,.forthe attorney is board certified, he must state misleading if it: State Bar of Texas, TCDLA, the Criminal "Board Certified, (area of specialization) Defense Lawyers Project, and the Dallas -Texas Board of Legal Specialization.'" 1tnrAs.vnciatinn offthe srr1~ject.sof "ethics" If not certified, he must state'not certified crnd "~/cf~~~.~c.~."Hefi~rmerlv t~d~t ooliti- (1) Contains amaterial misrepresen- . < "A by" the Texas Board of Legal Specializa- tation of fact or law, or omits a fact calsciencearulpnralegalstz~diesat South- tion. And, if the area has not been desig- necessary to make thestatement con- west Texas State University. nated as a praclice in which specialization sidered as a whole not materially The subject $Ethics is too ofren owr- may be acquired, the attorney may state, in misleading; looked in the process of defending the ac- addition to theforegoing quoted statement, (2) Contains a statement of opinion cused, though it is a11 area ripe with issues "No designation has been made by the as to the quality of legal services; and pitfnlls for the practitioner. In this Texas Board of Legal Specialization for a (3) Contains a representation or im- regard, your questions, contributions, and Certificate of Special Competence in this plication regarding the quality of comn~entsare invited. area.'* Therefore, statements such as legal services which is not suscep- "Board Certified Trial Attorney" are clear- tible toreasonableverificationby the ly contrary to the Rule. What information public; success; is the public intended to glean from such a (4) Contains predictions of future (5) Contains statistical data which is representation? Theattorney may be board

May 1989 I VOICE for the Defense 33 dtedas a civil trial attorney, a criminal look to, apartnership, when no such entity public was talking about "killing the law specialist, or a multitude of other exists. In choosing the wording of a mere lawyers." Weneednot givethemmorefuel things. The point is, such an ad is mislead- association of attorneys, without there forthe fire. Advertising is here to stay, but ing which, in and of itself,violates Subsee- being the existence of a partnership, the it should and must be done in accordance tion 1 of Section A of the Rule. ' practitioner must be careful to avoid run- with the rules we have promulgated for our Finally, one of the more thomy areas ning afoul of DR6-102 which proscribes ownconduct. that is repeatedly rearing its head these any attempt by the lawyer to limit liability days is the issue of defacto pmnership. to the client?Hopefully, in coming issues, DR2-102(B) specifically provides. "[a] we will specifically define the manner in lawyer shallnot hold himself out as having which such associations may be adver- a partnership wIth one or more other tised. state BW Rules, Seciion 9 ~knoniyssi DB- .1nllAl- - >. ., . lawyers unless they are in fact pmners."s I do not think any of ourbrethren have Z.ld., DRZ-101 (B). Therefore, I may not advertise, "Jagmiil, intentionally gone about violating DR2- 3. See id., DB-lUZ(A). Damow and Foreman," unless I am actual- 101, DR2-102, or DR6-102. They simply 4,H.. DRZ-101Q. ly in partnership with Clarence and Percy. have not thought about them. But, do not 5. Id. To do so, without saying more, is mislead- forget where we stand on the public 6. Id. ing to the public, because the client may opinion ladder, i.e., slightly below pond well believe he is represented by, and may scum. AsfarbackasBUy Shakespeare, the

Lawyers' Assistance Committee Members

District 1: Jack Strickland District 6: Charles Rittenberry 500 Main St., Ste. 201 Robert Yzaguirre 500 Fisk Building Fort Worth, Texas 76102 821 Nolana Amarillo, Texas 79101 (817) 338-1000 McAllen, Texas 78501 (806) 372-1217 (512) 6824308

Mark Hall District 4: P.O. Box 2187 Fred R "Buck" Files, Jr. Douglas Tinker Lubbock, Texas 79408 109 West Fereuson 622 S. Tancahua (806) 763-4617 Tyler, Texas 7'5702 Corpus Christi, Texas 78403 (214) 595-3573 (512) 8824378 District 2: JimBobo 409 Notth Test District 7: Odessa, Texas 79761 District 5: Gerald Goldstein (915) 332-0676 Jack Zimmerman 2900 Tower Life Bldg. and Jim Lavhe San Antonio, Texas 78205 Rod Ponton FivePost OakPark, Ste. 1130 (512) 226-1463 P.O. Box D Houston, Texas 77027 El Paso, Texas 7995 1 (713) 552-0300 (915) 532-1601 District 8: Lynn Malune District 3: Kent Scbaffer McDonald, Harmon, Ed Mason 3MX) Texas Commerce Tower Malone and Canonico 12221 Merit Dr., Ste. 850 600 Travis St. P.O. Box 1672 Dallas, Texas 7525 1 Houston, Texas 77002 Waco, Texas 76109 (214) 991-0200 (713) 228-8500 (817) 754-7317

34 VOICEfor fhe Defense I May 1989 Proposed Texas Criminal Defense Lawyers Association Bylaws (April 1989)

I Article 1 -Name and Status teehlucal experts, law librarians, and out-of-state be an ex-afficio member of this committee. lhe lawyers Secretary-Tnasurer shall conduct the committee The name of this organization shall be theTexas Sec. 7.AppIiurtionforMe~nbership. (a) Applica- meetings as appmpiate and prepare a budget for fhe Oiminal Defeme Lawers hiation. It shall be a tmforregular,student, oraffiliatemembash~pshall upcoming fiscal year. The Board of Directors of the "on-pnfitmrporationo'ganiredunderthelawsafthe be made on a form orescribed bv the Board of Dire- Association shall appove a budget during the board Stateof Texas. meeting forthelast quaierofthe yearpreeedingthe budgcfary fiscal year. Article I1 - Purposes the president or executive dktm acting for the Article V-Meetings The purposes of the htation shall be: To Board ofDirectm. protect and mure by deof law those md~vldual (c) At thediscntion of the Board ofDirectars, an Sec. I. hulMembership Meeting. The annual ri&ts gumteed by theTexas and Federal Constitu- attornev who dmnot meet themuisiles of Arlicle membgshipmeetingof the Association shall beheld tions in crimnal cam; to mist the constant efforts at afrnleand place fued by the Board of Directors. which are being made to curtatl tllese rights, to en- Sec 2 Quoneriy Meemzgs. The Board of Dim courage moperationbetween lawyers engaged in the torsshall holdregularquanorlymeetings,atsuchtimc furtherance of these objectives through educattonal tothe general membership. and place as designated by the president with the programs and other assistance, and thmugh this Sec. 8. Votiug. All members except honormy, appoval of a majority of the cxecutivecomminee moperation, education, and assistance to pmmote affiliate, and student members are entitled to vote as Sec. 3. Special Bmrd Meeting. The Board nf justrce and the common gaod. provided in Arlicle V, Section 6. Ditorsshall hold such special meetings ss may be Sec. 9. Remmlion ofMe,~bershio.Membershin. -. called bv the restd dent or uran written request by at Article Ill -Membership whether regular, charter, sustai~ng,honorary, af- least eiht (8jmembersofthe Boardof~&tor~ filiak, or student, may be revokd for cause by vote Sec. 4. Spacial Merdzrship MeeDngs. Specral Sec. 1. Regular Mewbersl~ip.A member of the calling for such revacation by threequartets vote of metmgs of the nlanbcrs of the Association may bp. State Bar of Texas who is anively engaged in the the total members of the Board of Directors after held as the Board of Directors deem necessary. defense of criminal cases, other than a person who notice and hearing. Scc. 5. Notice ofMeetirrgs. (a) Wrinen Notice of holds an elected or fuU-timejudicial or pmsecutorial the annual rneetmg shall be given to eachmember at oftice, is eligible far membership in the Association. leasrseventy-fivc(7s)day~1nadvanceofthem Sec. 2. Clurrter Membership. The chancr men,- fb). , Wrilten notlee of eachaua~Ierfvand anv. see-. bers ofthe Asswiationshall consist ofmembers who, ~lal~~wting shall be given lo each nrmber at leal priorto December 31, 1971, signified their intention 8. Central Texas. ib.trtcen (14) J:tys in a

May 1989 1 VOlCEfor the Defense 35 president ofthe Associationisamemberofthe W standing. swing the mntent and publication of the VOlCEfor ofDirectors,p~ovidedsaidplstpresidenfisamember @) The Executive Direaor need not be an attor- the Defenre, iduding seeuringmatwialsforpublica- in goal standing. Ihe editors of the VOICEfur the tion and oerformine technical editine of wblished oey, but ifhe is a member ofthe State Barof Texas, - - A Defenre and signifimrd Decisions Reponshall serve hemaybedes~gnatedExecutiveDirecforandGenersl materials. as members of the Board of Dimton durine- their Cnunsel. @) The editor of Signifimnt Decisions Repons tenure as nl#tun..1)imtoa shall he electd fur tems (0) An offiw must have sewed at least one (1) shall be responsible for the timely preparation for oithree(3) years Aswi.ttodirertorrslmll heelocted full term as a director. plb)icationof summaries of Texas and Federal cases fortem ofone (I) year. Sec. 3. Assrurptim of O/Fc (a) TIe president- deemed to be significant to the practice of criminal @) Nodirectarmaybeelectedmserve morethan elm shall assume the affice of president upon the law in Texan. To this end, the editor may appoint, tW0~2)~lcomultveterms,nottoine1udeanyterm equation of the term of the preceding presidene. In subject to the appmval of the Board afDirectm, one orterms sewed as an associatedirector, proyided this (he event of thedeath of the mident. or his resiena-- (1) ormomassociate ednm ofSi@icaat Dscisionr reshicrion shall not prevent officers who aredimtors lion ur removal from oftiur, thc ~identzlcrtshall &pons, who shall assist in the performance of these by virtue of office fmm serving on the Board of acecod to die oifiw of pmidcnt, holding wid onim responsibilities. Directors. Any drrector who is ineligible to he fur the nmoinler of raid term, d for the full w- reelected totheBaard~salsoineligiblcforelectionas dingterm Article Vlll -Elections associate director. No associate duetor may he @) In the went of the desk migoation, or elected formore than two (2) mllsecutive tm. removal fmn~affice of the smary-freasurer, the (Alternative A) (c) Each membership area designated in Section assistant secretary-freasurershallaceeedtotheoffice Sec. 1. Eleclionr (a) At each annual meeting, the lOofArticle~shallherepresentedbyadiuectorfmn~ oflbesenetary-Masurermd holdsaidofiieeuntil the Association shall elect officers d at leastone-third that area. The nominations commitlm shall bwe next annual wingof the Association. of the Board of Diractors who shall take office upon responsibility for establishing mles for eleeltons See. 4. Dutm al7te Pmsidetrt The president is adjournment of the mud meeting. Officers shall Which will achieve this objective. the chief executive officer of the Association, and serve for one (1) year or until their successors take See. 2. Ereellhue Co,~unifIeeThe Executive shall supavise and mardinale the activities of the office.Diiorsshall serveforthree(3) yeanoruntd ComnrineeshallcunsistoftheofficersoftheAssoeia- Association andpresideat its wings Tllepresident theirsuccesm takeoff~ce,unless eppointedto cant- lion aml three members of the Board of Directors, shall appoint the memb of each cumminee and plete a term fa which anothes was elected. appointedbythepmidentandap~edhytheBoard desigoate the~spectiveehainthew. Appointment (b) If the number of d~renorsis new of Directors. The Executive Committee shall have and remrval ofthe Executrve Dlrenor and editors of pitions may be fdled immediately wth one third such powers and duties as are provided in these the VOICEfo)~titeDefense andSig~r@c~~~IDecisiomserving for one year, onathirdserving for two years, bylaws and as may be prescribed by the Board of ReporrshallhebyPres~dentsubjecttotI~eappvalof and one-thii serving for three yeas. The Nomina- Directors. IheBoardofDireCtms. tionsCommin~shallsetrulesforaeeomplishingthis Sec. 3 Orgonimtion The president of the As- See. 5. lhnies ofPresident-Elect The presideot- objective, consistent wnh the purposes of these smiationshallsaveaschairofmeetings~ftheBoard elect shall assist the president andperformsuch o~her Bylaws of Directors. In abence of the president, the pest- dutiesasmaybepesmbedbytheBoardofDirectom Sec. 2 Nodmtionr Com'IIee. Prior toJanuary dentelect, w in his absence, the tist vicqmsident, In case of the absence ofthe president, the pres 31s of each year, the president shall appoint a shall SeNe as cha~. elect shall act as fhief executive officer of the As- Nominations Committee wnsutmgafatleast onc(1) soastian wmberheadrof the Association's nlembenhlp Sec. 6. Duties of First Vice-President.The fmt areas. Thechair ofthe Nonumations Cammineeshall vice-president shall assist the pident mdshall also be designated by the president. The N~~tioIIs Association. perfmsuchMherdutiesas maybepresmbed by the Cammineeshallmaet, select its nomines) for these See 5. Varnncies. A vacancy wdngin the Boardofoirector~.~tbeabsenceofthepreridentand positrons 1" the Associatvm whichareopenforelec- Board of Dktors caused by the death, resignation, president-elect, the first vice-prcstdcnt shall act as tian or 1~eIection.The chair of the Nominations or removal ofthe nersan elected thereto mavbe filled the ,~~~ chief executive officer of Assaiation. Comnuneeshallreponinwritingonorbefore7Sdays by appointment of any cligiblcmemher hy the pre\i- k.7. Duties of Second Yice-Pwsidetzt. Tke prior to Ule wd malmeetmg all said nominee(s) dent, subjwt to a,d%na!iou hy the l(oard r,f Uiw- second vi~~presldemshall assist the president and far each such position to the president, the Board of turs. Confirmationshall be.wuralat thcoptionorthc tist vicPpresidentinthe pc-of theirduties Directors, theexecutivedirector,andtheeditwofthe presidenteitherbyamajorityvoteofaquonunofthe and perform such other dlrties as may he prescribed VOICEfir tie Dgfmsz magazine. Tlle president and dtrectors or by apoll of the directors by mul. In Ule by the Board of Directars. the edttor of the VOICEfor the Defense shall give later event, the failure of any direcfor to send inhis Sec. 8. Duties of SecremrpTrensurer. The notice in wriline- of the nomineefs). , for each such vMe Within fendays afterthedalethepoll is plafcdin SMetary-freasmoftheAsswietionshallattendand rlrrtivep~ition~morlrf~~re45dayspnorluthcnext the mail to himshall be munred as a vats for mnfiu- keepminutes of all meetings of the Association. The annual nwting. Suchnnnouneenx'nt sh4lalru;rd, is manon. secretary-treasurer shall collect all money due the the mmhrahip thd aay qualified metnber in gwd Sec. 6. Re,nowl. An elected affiep~or director Asmiationand pay all obligations ofthe Association standing may seek election for the position as an may be remavedfor cause by a vote calling fbr such fmm such funds in accordance with such regulations affieer,dlrecto~,orassociatedireelor ofthe Assoc~a- removal by three-quaners vote of the members of the and pocedures asmay bepmscribed by the Board of tion by following the requisites of Article Vm,Sec- BaardofDirectors, aAernoticeandhearing.Renmvd Dmclors The secretaty-masurer shall serve as char tion 3fb). . of the hvlaws. Anv contested election shall may result from failure to attend two mnsecutwe of the budeet- eonmunee. he rewlvcd by thue mrmhen ingdrlamlme, who meetings of the Board of Duectors without goal See. 9. Duties of Assisto~ttSecretatyTreosurer. arc psent anl voting ilt lhe annual nwcting. 'lhe cause The Bad, by majority vote, shall approve (a) The assistant secretary-treasurer shall mist the I'm.-idcnt shall vokonly inthc went "fa ti^.. applications for excused absem upon a written secretaryireasurer and shall also perform such other Sec. 3. Nommariors (a) A voting member may statement of goalcause dut&esasmaybepresmbedbytheBoardofDirectors. nominate a qualified member for an office or for Intheabsenceofthesecrefuy-treasurer,theassistau dkctororassociatedior fmmthc flooronly lfthe Article V11- Officers semiary-treasurer shall act as secretary-treasurer. Nominations Conmiltee nommee 1s deceased, Sac 1O.DutiesofEreartiw Dmctw. TheExecu- wthdmws, or is othenvlse disqualified. k.I. Ojicers. me officers of the Association (b) A quahfied member who desires election ss shall mistofa president, a president-elect, a first an officer, duector, or associate diitor of the As vice-president, a second vicppresident, a seceag- of the Anociation. TheExeculiveDirectorshall also soclation may fileapetition to that effect. Suchpeti- treasurer, an assstant secretary-freasurer, the ex-- perform all duties usually required of an Executive tion shall set forth the office sought and shall havc tivedmtor,theed~torofVOICEfi~theDeferand Duector and suchother dutm asn~aybeasslgned by attached to it the signed statements of twenty (a0) the editor of Sig,t@~~~ttDecisiomRepon. the president or the Board of Direaom. members who belicve the petitioner is qualified for Sec. 2. ~i@mtions(a) AU members of the See. I I.Dicliesofrhe Edifors. (a)Theedmrofthe suchofficeoidiiorslupand will perform theduties Board of Directors shall be vottng membersin goal VOICEfrthe Defense shall beresponsibleforwer- impmedby the office sought. Pelitions for president-

36 VOICEfor the Defense I May 1989 elect shall also contain the starements of at leaf ten @)Aqnalifi&member~des'me1ectionasm (10) officersandlor directors insupport thereof. Such officer, diitor, or associate director of the Assacia- petition shall nof be required of thane nominated by tion may file a petition to that effea. Such petition Article XI1 Amendment thecrmwiueeunderSwtion2ofthisarticle.Pelitions sh~setfofitheofficesoughtandshallhaveattached - for elenion to an office, dimtoship, or orwiate to it the signed statenents of twenty (20)members Ihw bylaws may be amended by majority vote directorshipm~tbedeliveredtotheExecutive~- who believe the petitioner is qualified for such office of the members pzsent and v&g at any annual or tor al the main office of the Texas Criminal Defew or diRawhip and will persDrm the duties imposed special meeting of the membership. Lawyers Association in Austin, Texas.20 days prim hytheonleesought.P&itionsf01presideNe1ectshalI to themual ming. alu,mntainthestatememsofatl~ttenIlO~officePS~-~~~~~~~ ~~ . . ArticleXlll - By-Laws Sec. 4. VotingPmcedure (a)ContestedElections a~xl/Ndirocto~insu~lhmf.Such~itionshall shall be seml ballot, caFt by a majority vote of the ndhe quidof Utare nominated by the conimittec UpnthedissolutionoftheAss~~iation,theBoanl members in god standing, present and wing at the under Section 2 ofthis article. Pclitiuas for clection ofDirsrors oftheTexas Criminal Defense Lawyer5 annual meeting, who vote in accardance with the to an office, direnorship, or associate directorship Amwintion shall, aRer making povisions for the bylaws. Saidvotesshallbetabnlatedby thepres nlnst be delivered to the Executive %tor at the payment of all liabiitiesofUle Assnciatioq dispase who shall vMe onlv in the event of a tie. The on- main office of the Texas Criminal DefenseLawyem if the assas of the Amxiation exclusively for the didatesnreivingthcbighe~tnumher~rfvates~hallbe Association in Austin, Texas, 30 days prior to the prpm of the Assocklion in such a manoer, or to eieeted until all available pilinns are filled. .~nnnnal metin~-~~~~- such organizallon or cfgani~ationsorganized and (b) Exqx whcn scpmtc rules arc xl by the .Set. 4. Vorinfi Procedcre. Wrisenhallotsshall be oprated exclusively for the charifable, education, Nominatims Commitla: to inwe mplianco with lnuiled to mmlm in gdstanding no later than 30 religious or scientific plrpases as shall at the time .%tion I(c) uf Article V1, he eluion of olfimn, days prior to theannual nrrling.Tobe valid, ballots qualify to exempt said organization or organivltions associate directors, and diiors shall he wducted mustbe~hunedbythememberandnreivedbythe under Section 501(c1(3) or 501(c)(6) of the Internal by each votingmemba voting on asingle ballot for Executive Diredm no later than 10 days before the Revenue Code of 1954, or the corresponding the same number of nominees as there are pitions annual meetimkhmemberin- -emdstandineshall - provisions of any fufure United States Internal tobe filled. he cntilled to OM: volo for whmntmted mce. 'lhe Rewnue Law, as the Board of Dirrctors shall deter- resul~softhe voting &hallhe announced at the annud mine. Anv such ass& not 6tl demed of shall be (Alternative B) meeting. dirpdutby;lC~unofpmperjurisJictionof l'ravis SBC. 1. Efeclims (a) Atcach annual meeting, the County, Texas, exclusive fur mch purlxscs ur such Associationshall elect officers and at least on-third Article IX- Poltcies of the Corpor- organization or ur~nimtionsas said Court shall of the Boardof Directom. whoshall lake officeumn determine, which are organized and opted ex- Rdjwrnurnl uf tho annual nuling. Oftima shall ation and Polling of the Membership clusively for such pwpse. serve for ono (I) year or until their sucmsoa lakc Sec. 1. Pronorrncen~eruorDecIarnlimof Policy. Adoped the dayof "nice. Uirwtm~hallrwefurtlmr.(3) ywnur~nlil No member of the Association shall off~ciallymake 19-. their sucaessors take office, unless appointed to eant any ponnuncemznt or declaration on a quesnon of pletea term for which anotherwas elected. palicy until it has beerauthorized by the Board of @) If the number of dvectors is increased, new Directors except a~ provided in %lion 2. positions may be fued irmnediately with onethird Sec. 2. Special Ctre~u~u/ances.As a maner of serving for one year, one-thud serving for two yeam, d~scretion,whenthepident determines itnocessary and one-third serving for three years. ?he Nomina- to make a wanauneement or declaratwn of mlicv.. .. tions Committee shall set rules foracmmplishinglhts and whcrerin.um~ranccsdonot ~.~~)orahlypmnit a ANNOUNCEMENT objective, mnsistent with the purposes of these uwting or poll nfrhe Hdof U~mturs,then) der Bylaws. "blaming thc mnrcnt "fa majonly of the Executive I Sec. 2. Nm&nutiom Comnittee. Rior toJanuary Commitlee by telephone or othenvise, he can then On May 31, 1989, the American 31s of each year, the president shall appoint a makesaid pmnouneement or declaratim. Banken Association is presenting a NominationsCoMnittcemnsistineofat least one(1) Sec. 3.6zatrgurat1011 ofPoll. IheBoardof Dir seminar on "Avoiding Banksecrecy nlember from each ofthe kwi&on's membersh'i tors mav on its own motion or umn rxesentnh%nlto areas. ThechairaftbeNominalionsCornmineeshall thc KO& of a titi inn signal b; at icaqt fifty (50) Act Violations and Penalties" at the he designated by the president. The Nominations nuingmmhcn~uwtingsuchacti~~n,pollthe~oe~~t-Hyan Regency DFW Hotel, West (bmmins shall meet, select its nominee(s) forthme Tower, International Parkway, DFW p!tions in theAss(~:iationwhichan open for elec- Airport, Texas [(214) 453-8400]. tion or reelection. ?he chair of the Nominations (bMnilteeshaltrepninwriting~nwhefore90dar) ~oquiriesnec&ary to obtain the infannationdesired Featured as principal speaker is prior to the next annual meeting all said nomince@) and bv canvassine the votes on the mll at least ten Charles W. Blau, partner in the law for each such position to the pident, the Board of (Iq. 6ut not moGthan fauneen (14j, days afler the firm of Davis, Meadows, Owens, Directors, theexecutwedi, and theedttor ofthe majlimgof the inquiries. VOICEfor the Defense magazine The president and Collier and Zacw of Dallas. Mr. Ihe editor of the VOICE for the Defeme shall give Article X- Committees Blau is nationally recognized as an notice in writmg of the nominee($ for each such authority on mattexs relating to the eleetivepasiliononorbefore75daySpriorf0them~t There shall be an Exwutive, Budget, Nomina- defense of financial institutions ao annual mecline.Suchannoun~~mntsh~llalsoadv~setiom, and such other spacial or study mmmiltces as thc mmhcrrhip that any quditial lnrmhcr in gad deemed necessary by the president or the Boanl of cused of violating government starding my rrek doetion for the paition :rr sn Ditors. regulations. Written materials will officer, directw, or associatedirectorof the Assma- be available. tion by following the requisites of Attide Vm, Sec- Article XI -Procedure for Voting tion 3(b) of tbe bylaws. Any contested election shall For further information, call beresotved by those menit& in gwd standing who All business Uarrractcd by the Executive Corn (305) 652-6951. are present andvoting at theannual meeting. mime, the Board of Directors, and mmmittees shall This same seminar will be con- Sec. 3. Nonritmlio,rs. [a) A vottng nlember may be hvmaiori~vo~oftheauorum~t.. - Aauorum ducted at other locations throughout nomnate a qualified member for an offtw or fw for ;he ~etianof b&iness if each resbtive d-tororassoc~atcdirectorhom the floor only ifthe camminee is a malarity of the members. A quonun May and June of 1989. Nominations Conmuttee nommee is deceased, for the hansaction of business of the Board of Di- wudmws, orisotberwisedisqualified. misten(l0)membersingwdstandhlgoftbeBoard

May 1989 1 VOlCEfor £heDefense 37 In and Around Texas by John Boston

Due to con@cts at the Legislatere, the In and Around Texas column will rwr be included this nwrvth, except for the following anaouncement: TCDLA Announces Federal Criminal Law Short Course I Dalh- September 20-22,1989 I A 2 1R day advanced course dealing exclusively with Federal criminal law. It is designed to provide an indepth review ofthe varioussegments of criminal law practice with attention on recent and exwted chanees.- The facultv will be com~osedof noted crinunaldefensclawprctitioners,andrcgishanls will rcceiveextensivecoursematcrials. MCLEcredit forthiscoursc will heapproxiniarely 17.25 hours whichcxcceds MC1.E annual requirements. The course has been approved by the Texas Board of Legal Specialization for certification and recertification in criminal law. Advancedregishation fees will be$225 forTCDLAmembers and$250for non-mem- bers. For further information, contact: Texas Criminal Defense Lawyers Association, 600 West 13th Sheet, Austin, Texas 78701, (512) 478-2514. John Boston

TCDLA Criminal Law Short Course San Antonio June &10,1989

Tentative Schedule

Thursday, June 8,1989: 2:15-300 p.m. POST JUDGMENT APPEALS 8:00-8:45 a.m. Registration Kerry P. FitzGerald 3:W-3:15 p.m. Refreshment ~reak 8:45-900a.m. Welcoming and Opening Remarks 9:00-11:30 a.m. TEXAS CRIMINALRULES 3: 15400p.m. RECENTDECISIONS OF EVIDENCE Honorable M.P. "Rusty" Duncan, Austin 400.430 p.m. DOUBLE JEOPARDY COLLATERAL 900-9:45 a.m. Arch C. McColl, ID, Dallas Clifton L. "Scrappy" Holrnes, Longview (pavm) 945-10:00 a.m. Refreshment Break 430-5:15 p.m. SEARCH&SEIZURP/ARREST Jack Rawitscher, Honston 10:00-10:45 a.m. Jeff Keamey, Fort Worth 5:15 p.m. ADJOURN (Art. vr, wl 10:45-ll:30a.m. BobHinton, Dallas IWday, June 9,1989: (h.IV, V) 8:30-9:30 a.m. JURY ARGUMENT 1l:30-1200 noon PLEA BARGAINS Jack Strickland, Fort Worth Michael Heiskell, Foa Worth 930-10:15 a.m. FORFElTURE 1200-1:30 p.m. LUNCH Bill White, Austin 1:30-2: 15 p.m. PRE-TRIALMOTIONS 10:30-11:30 a.m. INDICI'MENTWCOURT'SCHARGE Gerald H. Goldstein, San Antonio Ron Goranson, Dallas

38 VOICEjor the Defense I May 1989 Friday, June 9,1989 (conlinued): 4:30-5:00 p.m. LEGISLATIVEUPDATE John C. Boston, Austin ll:30-l:W p.m. LUNCH Saturday, June 10,1989: 1:00-1:45 p.m. CONFESSIONS AND ORAL ARGUMENTS 9:00-930 a.m. PUNISHMENT/SENTENCING Albert W. Dworkin, Houston J.A. "Jim" Bobo, Odessa 1:45-230p.m. JURYSELECTION 9:30-945 a.m. Refreshment Break Alan Levy, Fort Worth 9:45-10:30 a.m. DWI -J. Gary Trichter, Houston 230-245 p.m. Refreshment Break 10:30-l1:15 a.m. HABEAS CORPUS/BAIL Brian W. Wice, Houston 245-330 p.m. TDC: WHAT'S GOING ON IN PRISON 11: 15-1200 noon CROSS-EXAMINATION Bill Habern, Sugar Land Tim Evans, Fort Worth 3:30-430 p.m. ETHICS AND ATI'ORNEY 1200-1245 p.m. DEFENSES MISCONDUCT Keith E. Jagmin, Dallas Richard Alan Anderson, Dallas 12:45 p.m. ADJOURN

HOTEL RESERVATION CARD COURSE PRE-REGISTRATION FORM In order to secure your hotel reservations at reduced TCDLA CRIMINAL LAW SHORT COURSE group rates, this card, a letter, or a call identifying you with the TEXAS CRIMINAL DEFENSE LAWYERS June 8-10,1989 ASSOCIATION must be received by the hotel on or San Antonio, Texas before Monday, May 8,1989. Holiday Inn-Riverwalk

Holiday Inn-Riverwalk PRE-REGISTRATION BENEFITS: Your 217 North St. Mary's $78.W/Flat rate registration must reach our office by June 5th inorder to San Antonio, Texas 78205 +tax guarantee receipt of course materials at the seminar. (5 12) 2242500 Be sure to include your $2w$250 registration fee. I will check in on

and out on

I am attending the TCDLA CRIMINAL LAW SHORT COURSE which is being conducted by the TEXAS CRIMINAL DEFENSE LAWYERS AS- SOCIATION.

UrIStawzp I am- am not - a member of the Texas Criminal Credit card and number for LATE ARRIVAL Defenselawyers Association. GUARANTEE (after 6 p.m.) RETURN TO: TCDLA CARD # 600 West 13th Street Austin, Texas 78701 Expires: (512) 478-2514

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May 1989 1 VOICEfor the Deferzse 39 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 600 West 13th Street Austin, TX 78701 (RETURN POSTAGE GUARANTEED)

I Some of the best legal minds TEXAS CRIMINAL DEFENSE LAWYERS : ASSOCIATION I ...in this state already belong to the Texas Criminal Defense I MEMBERSHIP APPLICATION I Lawyers Association. We believe we have now the best Crim- @'lease print or typc) !I inal Defense Bar in the United States. We maintain that level of excellence by continuously seeking out new minds, new energies. Therefore we want YOU. . .if your legal and personal NEW MEhIBER APPLICATION philosophies are compatible with our pu,posesandobjectives: l3 RENEWAL APPLICATION 0 To provide an appropriate state organization representing those lawyers who are actively engaged in the defense of criminal cases. 0 To protect and insure by rule of law those individual rightsguaran- NAME (To appear in hiembership Directory) teed by the Texas and Federal Constitutions in criminal cases. To resist proposed legislation or rules which would curtail such rights MAILING ADDRESS and to promote sound alternatives. CITY STATEZIP To promote educational activities to improve the skills and know- ledge of lawyers engaged in the defense of criminal cases. BUSINESS TELEPHONE (-) To improve the judicial system and to urge the selectionand appoint- I ment to the bench of well-qualified and experienced lawyers. BAR CARD NUMBER I I To improve the correctional system and to seek more effective NAME I (As I rehabilitation opportunities for those convicted of crimes. recorded on State Bar Card) I I 0 To promote constant improvement in the administration of criminal I TITLE FOR SALUTATION: I justice. Olr.) (hlrs.)(hls.) I ADVANTAGES FOR TCDLA MEMBERS I I The monthly Voice for rlre Defense magazine. I BAR DATE: Month Year I The "Significant Decisions Repon" of imponant cases decided by the Texas Court of I Criminal Appeals and the Federal Courls. I PROFESSIONAL ORGANIZATIONS: (Current) I TCDLA Membership Directory-referrals to and from Criminal Defense Lawyers in I Iacal I over 100 Texas cities. I Outstanding educational programs-featuring recognized experts on practical aspects County I of defense cases. TCDLA and theState Bar annually present many seminars and courses I State I in all pans of the state. I . Availability of Lawyers Assistance Comminee, a ready source of infomation and as- National I I sistance to members, and the Amicus Curiae Committee. AREAS OF SPECIAL INTEREST IN CRIMINAL The Attorney General's Crime Prevention Newslener. Summaries of latest Texas Court LAW (Certilication not required) I of Criminal Appeals cases available to private practitioners only through TCDLA's I I group subscription, included in dues. I ex- I Organizational voice through which criminal defense lawyers can formulate and CERTIFIED CRIMINAL SPECIALIST: I press their position on legislation, murf reform, impomt defense cases thmugh Amicus YESNO- I Curiae activity. I Discounts and free offerinm far ~ublicatiansof interest to criminal defense lawyers. RESIDENCE TELEPHONE (-) I -. I . Messenger service in the Capitol area. Have you cvcr been disbarred or disciplined by any bar association, or are you the subject of disciplinary I: action now pending? I i ELIGIBILITY AND DUES I Date I Effeclive:April 19, 1986 (Signature of Applicant) I I Voluntary Sustaining Dues (VS)...... $3W.00 I Sustaining Dues (SUS] ...... 200.00 ENDORSEMENT I I Dues for members in Ule firm of I, a member of TCDLA, believe this applicant to be a I a sustaining member (SMF) ...... 50.00 penon of professional competency, integrity, and : Members admitted to practice: (MEM) good moral character. The applicant is actively en- I 2 years or less 50.00 I ...... gaged in tho defense of criniinal cases. 2-5 yeers ...... 100.00 ! 5 or more years...... 150.00 Date I Ani!f@le:Persons in careers which contribute to defense of (Signature of Member) I criminal cases. e.g., law professors, are eligible for afti- I I liate membership upon approval of the application and I receipt Of the annual dues. (Print or Type Member's Name) I I Affiliate Dues (AFF) ...... 50.00 ! Students: Those regularly enrolled in a law school ih Texas are eligible for student membership. Mail lo: Student Dues (SDM)...... 20.00 Texas Criminal Defense Lawyers Association : TEXAS 600 West 13th Street I CRIMINAL Austin, Texas 78701 I (51 2) 478-2514 ! LAWYERS ASSOCIArn