APRIL 1984/VOLUME 13, NUMBER 10 JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION REGULAR FEATURES PAST PRESIDENTS OFFlCERS Editor's Corner ...... 3 President; Thomas Gilbert Shape, Jr. FmnkMaloney, AustiU President's Report . . . . . 4 Btownsde ...... President-Elect: Clifton L. Holmes 1971-1972 Significant Decisions Report . . . . . 9-28 C. Anthony Friloux, Jr., Houston Longview Thoughts from Beh~ndthe Walls . . . 34 First Vice President: Louis Dugas, Jt. 1972-1973 Phil Burleson. Orange Dallas Second Vice President: KnbxJones 1973-1974 George E. Gilkerson, Lubbock McAUen VOICE Interview: Semetaxy-Treasurer. CharlesD. Butts 1974-1975 C. DavidEuans, San Antonio Judge Sam Houston Clinton San Antonio by Brian We ...... 6 Asst. Secre~ry-Treasurer:Edward A. Mdett 1975-1976 . . Houston Weldan Holcomb, Tyler Voir Dire by Counsel in 1976 1977 Federal Courts Emmett Colvin, Houston DIRECTORS by 3 1 1977-1978 John E. Ackeimm ...... Richard Alan Anderson, Dallas George P. Luquetfe, Hoastrm Cecil W. Bain, San Antonio 1978-1979 David R. Bires, Houston Vincent Waker Per4Dallas Copper Mountain Spring Seminar . . 5 J.A. "Jim" Bobo, Odessa 1979-1980 lohn C. Bosmn. Austin Robert D. Jones, Ausm DWI Report-Blood Alcohol 1980-1981 Accuracy Questioned ...... 30 G& W. cafd;& Tyier Charles M. McDonald. Waco J.A. "Tony" Cades, Corpus Christi 1981-1Y82 Allen Cazirr, San Antonio Clifford W. Brown, Lubbock Joseph A. Connots In,McAUen 1983-1983 Gene de Bullat, Jr., Fort Worth M.P. "Rtrsw" Duncan 111. Denton Editor: Stanley Weiubcrg STATE BOARD OF Bob ~stradi,Wichita Falls LEGAL SPECIALIZATION Tim Em,Fort Worth "Slgnifmnt Decis~msReport" Filing Period is Open P.R. "3uck" Files, Jr., vier F&r' Kern P. FifzGernld CaraLymClwx Garcia, Houston WehaelP. Cibson, Dallas Dovid Botsford DEADLINE, MAY 14,1984 Ger&H. Goldstein, SanAntonio Gztherine Cm~eBmet 1 Ronsld L. Goranson, Dalks Jutie Hedd For applications contnct: GrantU, Hardemy, Sr., Houston Arch C McColl IU Mercilee L. Hutnon, Wacs David W. Coodjr John Roberts Richard E. Harrison. Ddh Jnmt Seymour Morrow P.O. Box 12487 Jan E. Hemphill, D& JamesH. Kreimeyer, Belton Membership Cowdinator JackPaul Leon, San Antonio Nance NeUe Arch C. McColl IIt,Dnllas John J.C. O'Shea, Lubbock Law Clerk CW. "Robin" Pearey, Ssn Marcw Ron Conover Jack J. RadtsFher, Houston Edumdo Roberto Rodriguez, Browde VOICE for the Defense OSSN 0364-2232) is Larry Sauer, Houston published monthly by the Texas Criminal De- Gewge Sch-en, San Antonio fense Lawyers Association, 314 West 11th David Spencer, Austin Street, Suite 315, Austin, Texas 78701. Annual Richard Thornton, Galveston suhscnptmn rate for members of the association Fred L. Tinshy, Jr., Dallas is $10, which is included in dues. Nonmember Robert Gregory Turner, Houston subscription-$20 per year. Secondclass postage naid at Austin. Texas. POSTMASTER: Send ASSOCIATE DIRECTORS address changes to VOICE for the Defense, 314 Stan Brown, Abilene ,West 11th Street, Austhb Texas 78701. Buddy M. Dicken, Sherman Bill Habem, Riverside All arttcles and other editorial contributions should addressed to the Stanlay Jeremiah Handy, San Antonio be editor, Harry R. Heard, Longview Weinberg, 7509 InwoodRaad, Suite 300, Dallas, Texas 75209. Advertis& andcontrach8 Jeffrer Hinkley, Midland inquiries Prank Jackson, Dallas send to Dick Dmmgaole, Artforms Agency, SylhAnn Robertson, Houston P.O. Box 4574, Austin, Texas 78765, (5121 Fred Roddguee, San Antonio 451-3588, Sheidon Weisfeld, Brownsville DainP. Whirnorth, Austin 0 1984 TEXAS LXIMINAL DEFENSE Bill Wischkaemper, Lnbbock LAWYERS ASSOCIATION VOICE, please send it also. Editor's Corner

Athome, the Texas legislature approved what every defense attorney knows about a bill to allow Harris County to become criminal trials. Much lie the game of STANLEY WEliVBERG one of the first judicial areas to offer what poker, there is a definite heirarchy of is called a "multi-door" courthouse pro proof. Some of the examples: gram of experimental alternative ways to An mept prosecutor beats an aver- settle legal disputes. age defendant and reasonable doubt. That lawyers and judges talk a good A believable defendant, an average There has been a lot of talk lately game about seeking and speeding up jus- defense attorney, and reasonable among lawyers, judges, legislators and liti- tice was noted in the March, 1984, issue doubt, beats an inept prosecutor. gants on better ways to seek justice in our of TRDIL magazine, published by the legal system. One of the big problems American Tnal Lawyers Association, in A good prosecutor and a moderately being chewed over is the glut of cases on a tongue-in-cheek proposal by Jeffrey L. believable police officer beat an swollen rrourt dockets. Tolman of Poulsbo, Washington. average defendant, a good defense New ways to speed up justice are being He noted that, in reality, however, our lawyer, and reasonable doubt. tried. In Philadelphia, parties in the legal legal system is not justice-oriented. And, A good defense lawyer, a believable dispute can bypass the public court sys- in his proposal, stated that ifjustice were defendant, reasonable doubt, and a tem and argue their claims hehimd closed really our goal, lawsuits would be handi- corroborating witness, beat an aver- doors in what is being touted as the coun- capped to equalize each side's resources. age or believable police ofyier and try's first for-profit court. Organized last Our legal system must even up the sides, a good prosecutor. year, the for-profit court drawsupon ser- he argues, proceeding as if he were at A believable police officer, a good '-, vices of retired judges from Philadelphia home at the Mad Hatter's tea party in prosecutor and either a corrobor- and surrounding areas. This legal venture Throufh- the Lookina- Glass. ating witness or a believable victim is separate from the governmental court Lawyer Tolman suggests that cases beat a believable defendant, one system and outside the public view. must be handicappedto equalize resources corroborating witness, a good de- The first case was heard by a former on the civil side of the docket and give a fense attorney, and reasonable federal judge who awarded an undisclosed judge the opportunity to decide eases as a doubt. amount to a woman passenger injured in judge should, based on who is the better an auto accident. The retired judges wear lawyer! A good defense attorney, a believ- black robes and are expected to base their His handicapping proposal covers such able defendant, one corroborating decisions on both the law and findings of esoteric areas as firm size-down to the witness, one believable expert, and fact. Organizers now hope to have three rule that when any firm opposes a "sole reasonable doubt, beat a good pro- refurbished courtrooms in a downtown secutor, a believable police officer, office building ready soon to hear the practitioner," the firm's janitor must give the oral argument with a mouth full of and one corroborating witness. sudden mounting caseload. Two believable police officers beat The system calls for binding, contrac- marbles from research done using only the 1977 and 1978 bar review books with everything except a perfect defen- tual agreements as well as non-binding dant, 72 corroborating witnesses, ones where both parties have the option assistance on trial tactics by the oldest liv- ing person listed on the firm's letterhead and (-)-you fa of carrying the fight to court. Fees are in the attorney. based on three-hour sessions and are di- a$ being "of counsel." You begin to get vided between the retired judges and the the drift of this handicapper. These simple rules will help justice pre- organization that developed the whole He covers rules for credibility, suggest- vail quickly and smoothIy, according to idea. ing a formakzed sliding scale based on the our modest proposer. The legal system In California, parties to a civil dispute distance of party's attorney's law office will survive. Clients won't know the dif- can use a retired "rent-a-judge" if they from the courthouse. Then, comes crimi- ference. Judges would not be tainted by want to dispose of their problems quickly nal law. up-to-date research and well-thought-out instead of waiting through the public Criminal trials, he says, can be held arguments. courts. quickly and smoothly for formalizing Ah, well, shut up and deal.

April 1984/VOICEforfhe Defense 3 President's Report Copper Mountain Spring Seminar

Pictwed nbove (clockwise from top left): Dcle Jones, Gene de BuNeq Kote Kelley Miller, Bol Hinton, Judge Chuck Miller, Judge Richard Mvs, Steve Sumnerond Ron Goranson.

TCDLA went to the mountains of Expert Opinion Testimony: Unreliability Colorado for a 3-day seminar on February of Eyewitness Testimony; Judge Richard 12 through 16. The speakers and topics Mays, The Judge's View of TBC's and were: Eyewitness Testimony. Ronald L. Goranson, Motions for Most of the group stayed at Copper New Trial and Extraneous Offenses; Mountain and some even skiied on part of Thomas G. Sharpe, Jr., Hypnotically the run used for the National Champion- ': Enhanced Testimony: A Preview; Judge ships. The lectures were excellent and Chuck Miller, A View from the Top: One everybody returned with bodies intact Year Later; Bob Hinton, Trial Prepara- and ready to face the rest of the winter. , tion: Presentmg the Defense; Kate Kelly Other participants that attended were: Miller, Sufficiency of Evidence: The Ap- John P. and Carolyn Knouse, Claudia pellate Standard; Steve Sumner, Examin- Hinton, Sharon de Bullet, Steve and Penny ing the Medical Examiner; Dale Jones, Chapman, Renie McClellan, Sandra Bock- Eye WitnessMemory; Gene de Bullet, Voir elman, Tammy Brown, Nancy Sumner, Dire and Trial Preparation: The Eyewit- Jack and Patty Robbins, Randy and Regina ness Case; Stan Brown, Admissibility of Martin. and Lilla Jones.

prepared by VERWG. SOLOMON a prauhmg csnnded crlminal lawyer slnce 1975 4 yeam criminal dfsvlct annney Haviaon County

"JUST YESTERDAY"

April 1984/VOICEfor the Defense 5 VOICE INTERVIEW : JUDGE SAM HOUSTON CLINTON A candid conversation about Texas Monthly, fundamental error, and Jack Ruby, with the most complex personality on the Court of Criminal Appeals.

Since his election to the Texas Court to Washington as an aid to Congressman reports: Judge Clinton 5 office says a lot of Criminal A~~eals. . in 1978. , Judre- Sam W.R. Tob" Poape.- He thereafter took up Houston Clinton has emerged as an influ- solo practice in Waco, his hometown, and about the man who wears the robe. ential member of the State's highest court later served as a field attorney for the Beh~ndhis desk is a picture of the for criminal matters. Clinton gave up a National Labor Relations Board. Then I920 Court of Mminal Appeals successful law practice in Austin to take after 13 years of private law practice in and, as I know, Clinton loves to talk on incumbent Jim Vollers, a long-time Austin, Clinton formed a partnership about his predecessors, their person- State Prosecuting Attorney, in the Denzo- with avid R. Richards in 1969. During alities and predilections. Next to his cratic Primary. When the ballots had been the succeeding years he served as General word processor is an ancient manual tallied, Clinton had unseated Vollers, the Counsel to both the Texas AFL-CIO and typewriter which he still uses to first time an incumbenthad been defeated the Texas Civil Liberties Union. crank out the first drafts of his opin- since Presiding Judge John Onion suc- Plainly a man of substance, Clinton is ion~Scattered around the office ceeded W. T McDonald in 1966. known neither for his wardrobe nor other are awards and certificates which Criticized by some as having won the matters of 'izppearance;" he was aptly de- he has never managed to frame or election largely on the strength of his scribed in an article otherwise critical of hang. In fact, the only certificate name, Clinton quickly proved his judicial the Court published in 1982 by Texas he has framed and hung on his of- capabilities. A prolific scholar, Clinton Monthly, as "by far the most complex fice wall is his judicial commission. has authored over 1,000 opinions during personality on the court-brilliant, eb On one side of his officeisapodium his first term including over 200 in 1983, quent, eccentric, possessed with an intense where Clinton stands to do some of more than any other judge wrote that year. sense of justice. . . " his work, a move to relieve occa- Yet he still made time to serve on num- SMU law professor and author of the sional symptoms of slight vertebral erous programs for the continuing legal ubiquitous Texas Law of Evidence, Roy nerve impingement education of both lawyers and judges, as R. Ray, has recently opined that Clinton As we sat down for this inter- well as research and write several law re- has "brought distinction and integrity to view, I noticed Judge Clinton had , view articles. the Court. [His] opinions demonstrate a shaved off his beard and trimmed Interrupting his undergraduate work at devotion to scholarly research and lucid his srdeburns, perhaps with an eye Baylor University, Clinton worked as a expression which is unmatched by any toward the upcoming primary and fingerprint examiner for the Federal Bu- other member of the Court." general elections. Clutchingun ever- reau of Investigation before serving his VOlCE for the Defense asked Brian present cigar, Clinton spoke easily country in World War 11 as a naval avia- Wice, a criminal defense attorney in about a number of topics, including tor. Returning to Baylor, Clinton finished Houston and contributor to the VOICE, the Texas Monthly article, which law school, passed the bar and went back to go to Austin to talk with Clinton, He seemed a good place to start.

The article in the Enquirer inspired a death They used to have a co~nerain the back of eoch The best part of my job is, except for being in threat from somebody calling himself a mem- courtroom here in Tmvis County for the benefit conference orz Monday morning and sitting in ber of the Death Squad of the United States of the UTLawSchooL Evmybody toyedaround the courtroom on Wednesday morning, I set and Canada. It wns quite specific about what with it andir wasaniceexperiment, butit didn't my own time. I don't have to deal with dead- might happen to me if I didn't shape up my act. prove to be all thnt beneficial and educational. lines onymore like I used to.

6 VOICEfor the Defense/April 1984 VOICE: What was your own reaction to him that I was familiar with the way those right word or use the magic phraseology the Texas Monthly article in light of the things go in both the examining trial and in objecting? way the Court was treated? the trial. CLINTON: Burka himself alluded to that CLINTON: My reaction to the article VOICE: Do you think that it should be a in one short paragraph, I think, of his ar- overall was that he picked and chose some prerequlmte for an appellate judge to have ticle. I suppose the Court is following the opiruuns that do not necessar~lyreflect some experience as a trial judge? Do you trend that it may think some segments of the viewpoint of the Court, and some of think not having been a trial judge affects the public expect. And that ismaking the them, as 1 pointed out in response had al- your performance as an appellate judge? defense counsel toe the line as well, and ready been modified before he wrote the CLINTON: No. have him do his part in it with competence article. VOICE: Why is that? and ability. VOICE: Why did you feel compelled to CLINTON: It's kind of a negative thing, VOICE: While we're on the competence write a response in Trig1 Lawyers Forum, the practitioner is more or less held re question, the Chief Justice of the Supreme the only member of the Court that opted sponsible for blowing the whistle on a Court of the United States is fond of say- to do so? tnal judge when he's made, or thought ing that 50% or 60% or 75% of prac- CLINTON: I was requested to do so by to have made, mistakes and also to object ticing trial lawyers in this country are in- the editor of the Trial Lu~awyersFom, to things that prosecutors do when the competent. What are your feeIings on at- that being the publication of the Texas defense attorney thinks they're his mis- torney competence based upon the rec- Trial Lawyer's Association. And that edi- takes. In essence really, the defense attof- ords you see come before you? tor was himselfincensed by the article and ney has got to know more about every- CLINTON: There's a coincidence, I hap- thought that some response should be body else's business than just each of those pen to have the Chief Justice's speech made. He asked me if I would do it and players, than what their own particular right here before me, although I've not I said I would. roles are. Let me say, trial judges, both in read it all that carefully. I don't think that VOICE: Do you think that the Court the records I've seen, but more particu- anyone can make an educated estimate as would sit still for beine interviewed bv to the level of comoetence of ~ractition- Tews Monthly again in iight of how thei ers. There is a ge'at deal tha; younger happened to he treated? lawyers can improve upon-very often C~~NTON:I think it depends on the re- they will lose their ground of error be- action of the individual judge. I would BY andlarge, Ithink oralargument cause they did not make proper record not object to being interviewed by Burka is helpful. I'm one of the judges in the Trialcourt. I wouldhope thatmany or anybody else at Texas Monthly or any that encourages odargument of these continuing legal education pro- other publication $0 10% as they don't and also one of the judges that grams that one agency or another, the bar, get into areas that an individual judge k,,,yers know arks a good deal of the crimmal defense lawyer's project, the should not talk about. prosecutors, all the rest of them are hnld- VOICE: Do you still think that the pub- questions at oral argument. ing regularly, would provide not only the lic's perception of you, at least in terms materials at the seminars and institutions 1. . of what Burka has said. is Sam Houston to educate the practitioners but also pro- Clinton, the liberal, Sam Houston Clinton, vide them with-the sort of built-in aiann the great dissenter. Do yon feel that per- larly in dealing with them informally, are that when he's confronted with some of ception is fair? Do you consider yourself just super sensitive about an indication the situations that are heing talked about a liberal? that they made a mistake. As a practi- in seminars it'll ring a bell and he'll know CLINTON: Not when it comes to fmdmg tioner I didn't come to Court with that that he's on uncertain ground and try to the law, and following it, no. And in fact, kind of defensive attitude. figure out how to correct his position. that, I believe, is what his reference is to VOICE: Do you think this Court is some The young practitioners ought to go tunnel vision. He says I was inflicted with times too lenient on trial judges who com- down there and watch the other lawyers, an occasional tunnel vision, and I think mit error thinking that if the case is re- who know their business, try cases. what he has reference to is that I do try versed they'll let this Court catch the heat? VOICE: What about the quality of oral to find and follow the law although the CLINTON: No, I do not thiithe Court's argument that you've seen in the time result may not be what Burka thought too lenient. Ordinarily when the record you've been on the bench? it should be. clearly shows that a trial judge or the pro- CLINTON: By andlarge, I think it's help- VOICE: Burka also quotes you or some secutor has really made amistake and the ful. I'm one of the judges that encourages one as saying that you were admitted to defense counsel has properly objected to oral argument and also one of the judges looking at drug cases with a jaundiced eye, it, the Court is quick to fmd that that was that practitioners know asks a good deal I quote, "I know the territory." Why errpr. Now the next step is whether it's of questions. don't you explain that. reversible error, and that as far as I'm VOICE: What about the quality of the CLINTON: I don't know that I ever said concerned doesn't really implicate the arguments? I looked at it with jaundiced eyes but I trial judge or the prosecutor at all, that CLINTON: I consider it to be high. I put did tell him that I knew the territory in a implicates the whole case. aside those who come here two or three sense that I had for a good many years VOICE: What of the flip side of the rever- years after their briefs have been fded. practiced criminal defense law and many sal technicality syndrome Burka spoke of; That's one of the most unfortunate situa- of the cases, many of the clients that I do you think this Court is sometimes too tions we're all in, two or three years after represented were involved in controlled quick to affirm cases on technicalities be- the briefs have been filed and the law has substances cases. And I tried to convey to cause a defense attorney did not say the either changed or developed to the point

April 1984lVOICE for the Defense 7 -- -- where the merit to their claim n no longer in a sense of an intentional k~llingand partisan election is going to remedy that vdlid volunta~ymanslaughter where there's evi- at all because you still have to do all OF VOICE: Do you think th'ls Court should dence of sudden passion arising from an those things if you're going to try tu get go to a ey$tem employed by the Federal adequate cause, votes in the non-partisan election. Appellate Courts where oral argument VC1CE: What about fundamental error? VOICE: How do you repond to people would not be had as a matter or right CLINTON: Fundanlental error has been who hwe said that your electionin 1978 but only in those cases where it would be with us always, demonstrated m half-a- was primarily due to your name recognh helpful? dozen opinions. It's always been a prob- tinn? CLINTON: No. A lot of thia business of lem in this jurisprudence because the CLINTON: I hope that my tenure here practicing criminal law is a matter of Court takes the position that the legisla- has demonstrated the qualifications and experience, and I wouldn't want to de- ture, apparently not happy with it, enacts the ability that could have been predicted prive practitioners who need it of coming legislation and the Court has to respond by 25 years of experience of successful here and havmg the experience to argue ro that andit just goes in cycles. practice in law including crimmal law and orally. VOICE: You've seen a considerable doing a great deal of appellate work. To VOICE: What was it lie being a house- the firet part of it though, who knows hold word in the National Enquirer a about anyone's name, what part it plays. couule of vears ago- when the Woodwd VOICE: You've seen a number of incum- casecame iown? bents unseated. How do you respond to CLINT0N:It was the fitst time it ever The isme which I believe har the fact that you seem to have started it happerred to me. The article made it creafed the most diffimz@for the dl by challenging the incumbent back in appear as if the opinion that they criti- court Js fhe trial court's need to 1978 because prior to that only one in- cized was my own and only mine and not charge on lesser-idilderJ-offenses. cumbent had been unseated in the pre- the shared thinking of eight other mem- ~~~~h~ rough issue we>e bdto ceeding 25 years? bers of the Court. But beyond that, it in- CLINTON: One reason for that is that spired a death threat from somebody c& & the interplw the incumbent judge that 1 ran against ine himself a member of the death souad murder and manslaughterwhenr had not been incumbent but a little over okeUnited States and Canada andLwas here's evsence of sudden Uririv davs when he had to file to run; he quite specific about what might happen pusdon mSing from hadjust been appointed as of January 1, to me and MI. Woodward if we did not an adeqrrate cause, 1978. His sphere of activity was limited shape up our act. It was serious enough to one side of the ddocet, so that his for me to ask the FBI to oome over and knowledge, his familiarity with people, take a look at it. including even practitioners at law, or for VOICE: It is the perception of a lot of amount of turnover in the six years that that matter other judges across this State, criminal defense attorneys that this Court, you've been on the Court in terms of your was very slender because of his Own lim- 1, in cases of some magnitude, can't take brethren. Do you fed that there is abet- ited field of experience and soope of en- the heat. Does this Court have aproblem ter way to do things than to popularly deavor. I venture to say that if he rm with big cases where the facts themselves elect, on a partisan basis, trial and appeli- aQjlin, he'd do greatly better since he's are not easy to work With? ate judges but patticularly appellate Court been, like I have, though not quite as CLINTON: That's a hard question. The judges? long yet, out there on the hustings. Court is made up of nine individuals, I CLINTON: I'll be honest with you, I VOICE: What is your most memorable can't speak for any of the others. I like to have not seen any proposal that st&= decision since you've been on the Court? think that I don't react to what you call me as a better way of doing it. CLINTON: I guess that wouldbeKirowl@s the heat. I got more of it than anybody VOICE: What about the right of appoint- v. ScofieM. Thy got in a hassle up in in that case. I've got a petition in my ment with the ability of the voters to re- Denton County about where the Court- file that's about an inch and a half thick call a sitting judge? house ought to be. Whether the new build- that must contain no teIlmg how many CLINTON: You immediately start out ing was at the seat of Denton County. thousands of signatures, along with indi- with a political operation when the ap- And to resolve that problem, I did research vidual lettats and jointly signed letters pointment is in the hands of the governor. like I've nevm done before and found it and a great deal of heat. The governor is strictly a political animal interesting because it was historical. As VOICE: In the six years that you've been and I'm sure that politics would be one you know, I have a great interest in that on the Court, what issue or issues do you consideration in making the appointment. and was able, through tracing the history fee1 has created the most difficulty for The main criticism of those who want of Denton County, and dl the thiithat the Court? +some other method and those that advo- happened to it, the moving of the Court- CLINT0N:What immediately comes to cate a non-partisan election is that it's house several times, the burning of the mind is the Trial Court's charge on lesser demeaning to a judge, or a candidate for Courthouse, all of that, was able to come included offenses. The Court has judges judioial office, to go wound campaigning. to the conclusion that the petitioner was come and go and the Court as fat as I can It's embarrassing for him to ask other not entitled to relief be~ausehe had not tell doe8 not have a tme majority view on people, mainly practitioners, for money; &arly shown that the Courthouse was that but does oontinue to followRoyster. to have to be interviewed by editorial outside the county seat. That's one of the toughest questions. boards or newspapers, to appear on radio VOICE: What do you think about fhe There's another one that is a real problem and TV and have press conferences. But i, prospect of televised executions? Are you and that is the interplay betweenmurder for the He of me, don't see how a non. (contiRud M pnge 291 SIGNIFICANT DECISIONS REPORT

EDITDR'S NCYI'E: Gerald Goldstein was recently (and successfully) involved in a search question in United States v. Gant, Cause No. H-83-151, wherein United States district judge Carl D. Bue found that there was not probable cause to justify the issuance of a search warrant for the defendant's he: and further that the "good faith" exception should not be applicable. In United States v. Williams, 622 F.2d 830 (5th Cir. 1980) the wurt stated the rule as: Evidence is not to be suppressed under the Exclusionary Rule where it is discwered by officers in the oourse of actions that are taken in good faith and in the reasonable tl-mugh mistaken belief that they are authorized. The court distinguished Williams by aqhasizing that the Williams court enphasized that nothing said in Williams applied to factual situations where a warrant had been obtained. Then came United States v. Mahoney, 712 F.2d 956 (5th Cir. 1983), wherein the court held that the Exclusionary Rule was inapplicable pwrsuant to the "god faith exception" since the actions by the law enforcmt agents were taken in a reasonable and good faith belief that they were legal. In Mahoney the arrest warrant was found to be invalid on the ground that it did not identify the defendant with sufficient particularity. HOW- eyer, in Mahoney, unlike in the Gant case, there was an unchallenged finding of probable cause. Like Williams, the Mahoney court limited the use of the good faith exception, saying that "We leave for later the question of whether a good faith proviso to the

Exclusionam~ ~ Rule ouuht ever to tolerate an arrest or seizure without probable cause 2 2--- - ~ measured objectively." See also United States v. Parker, No. 533-4425: slip opinion at 1550, 1554, Note 2 (5th Cir. 12/27/83).

The district court in Gant was faced with a search warrant lacking in probable cause and no widence to "me"it of its infirmity. The court then wrote:

"In the suppression hearing held in this case, there were no facts presented which could bolster or cure the inadequate warrant and affidavit. The officers rnerely elaborated upon their 'good faith reliance' upon a warrant which they did not wen read. Such subjective goad faith has been patently condenmed as a rationale for apply- ing the good faith exception to the Exclusionary me. . . . Tkis court, obedient to the mdates of the Fifth Circuit and the Supreme Court, cannot now apply the good faith exception to a situation in which there was no probable cause to search the residence of the defendant, where the precedent is well settled that a nexus mst exist between the evidence desired and the place to be searched, where the Fourth Amendment on its face condms the search of a residence where no probable cause exists, and

April 1984/VOICEforthe Defense SD-9 where the officers' actions were taken with only subjective god faith." As the efforts of our membership result in significant legal holdings, 1 will be mre than happy to broadcast the results as I believe that they will be very beneficial to all of us.

STEPHEN DAVIS, No. 253-83, Opinion on State's PDR, 5th C/A Rev'd & Remanded, Judge %xu Davis, 4/4/84. Aggravated FQkkzy, 70 TDC. m'S TO REHW3ILImTICN, NOT CXlTIXITIOW--NOT ClXMENT ON D'S FAILLE3 10 TESTm: During the punishnent hearing the prosecutor argued: "You know, youmy find it hard to believe that by 8:17 you can be as mean, as vicious, as self-centered and as totally devoid of feelings for other human beings lives as he is. You think he can be rehabilitated? Look at that witness stand. Was there one shred of evidence before you to tell you he's going to change, he can he changed, he wants to be changed, he will change?" D's objection to the remrk as a mton the D's failure to testify was sustained and the jury was instructed to disregard but the Wtion For Mistrial was denied. The C/A interpreted the prosecutor's argcrment as one calling for contrition on the D's part, reasoning that since only the D could offer evidence of contrition, the prosecutor's reference to the D's failure to put on such evidence was necessarily a mton the D's failure to testify-relying upThaMs, 638 S.W.2d 481. In Thams, the 0.3 defined contrition as: "A state of mind-and a highly personal one at that. Indicia of contriteness is necessarily generated after an offense by the one who was sorrowful for what he has done. %at one is contrite hut itmst be carmrolnicated in order for others to know." The court in Thamas held that testimony of third persons that an accused has expressed contrition is not legally admissible evidence in mitigation when offered by an accused. The court, hawever, in Davis held that the prosecutor spoke instead of rehabilitation rather than contrition. The desire, potential, and ability of a person to rehabilitate himself can be objectively assessed and testimony on this subject does not have to cane from the D alone. Iogan, 455 S.W.2d 267. Following this line of reasoning, the pro- secutor in this casad have just as easily been discussing the failure of the accused to call any witnesses to testify regarding rehabilitation. A prosecutor may cament on the failure of an accused to present any witnesses in his behalf. McKenzie, 617 S.W.2d 211. Judge Teague found the last sentence of the argument improper but "fortunately for the state, the improper one sentence does not stand alone. There is mre in this cause that justified the ar-t, in particular, what appellant's trial counsel had earlier argued to the jury". Judge mgue thus cautions prosecutors "to treat gingerly what this court has stated in this mjority opinion". Frankly, I am at a loss as to why Judge Teague bathered to write a concurring opinion.

Judge Clinton, joined by Judge Odm basically stated: "The prosecutor did not couch her rhetorical questions in terms of a general failure of the defense ta bring forth testimony of appellant's potential for rehabili- tation. Rather, the questions were couched solely in terms of his personal desire and

SD-I 0 VOICEfor the Defense/April 1984 capacity to be rehabilitated. From the jury's standpoint, this was not a general remark as to absence of wid- but a pointed reference to the accused's failure to testify. Annis v. State, 578 S.W.2d 406 (Tex. App. 1979); Bird v. State, 527 S.W.2d 891 (Tex. Cr. App. 1975). Such a camnent offends both the state and federal constitutions. ~ickGV. State, 604 S.W.2d 101 (Tex. Cr. App. 1980); Pollard v. State, 552 S.W.2d 475 (Tex. Cr. App. 1977).

CHAF3ES STEVENS, No. 67,582, Burglary of Building, 20 TDC, Judge Onion, En Bane, 4/4/84. SPM:~PLEA~BAROFPI~D~I~BASEDUPONSI~ITE'SF~~~L~~~ BURGLARY CASES PROPERLY m:The D argued that he was convicted of a burglary of a building case in a prior trial in the same district court and that the instant case arose out of the same criminal episode as the other offense, Eoth occurring in the same county on or akout the same date and that the cases were not consolidated for trial. Since this burglary could have been alleged in the sam indictment together with the previous burglary D was entitled to have his special plea in bar of prosecution sus- tained for failure to consolidate for trial under Art. 27.05 C.C.P. and Sec. 3.02 P.C. Court found no error.

Art. 27.05 C.C.P. provides that a defendant's only special plea is that he has already been prosecutor for the sane or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial and that was or should have been consolidated into one trial and that the former prosecution resulted in con- viction. Sec. 3.02 provides that a defendant my be prosecuted in a single criminal action for all offenses arising out of the criminal episode. The ourt found no error in overruling D's special plea in bar of prosecution.

ART 42.08 C.C.P. PERMlTPING CTJMLLWION OF SENPENCES DOES NOT CONSTITUTE CRUEL AND UNUSU& PUNIS-: The 20 year sentence in tkis case was cmdated with the sentence in a prior burglary conviction and anether sentence fmanother county. The D objected that the "stacking" was in violation of the Eighth Amndment to the U.S. Const. and Art. I, Sec. 13 of the Texas Const. (cruel and unusudl punisht). First, the court found the objection to be too general and, second, held that the mlation of sentences does not constitute cruel and unusual punishmmt and that the statute was notuncon- stitutional. Baird v. Stake, 455 S.W.2d 259; Boerngen v. United States, 326 F.2d 326 (5th Cir. 1964) .

LB3NRFD EUIDR, No. 69,259, Order denying bail set aside, Judge Onion, En Banc, 4/4/84.

I DISTRICT COUHP DENIED BAIL UNDER ART. I, SEC. lla OF TEXAS CONST.--N3 E!VIDENCE D WAS i "mSED" OF A FELONY IN THIS CAUSE: Police officer responded to burglary call and eventually saw D crawl out of a broken window and run and thereafter D was apprehended and drugs and cash were found on his person. T+m prior convictions were proved but for some reason the state, while $riming evidence that the D had cmunitted this burglary, did not prove that he was currently charged with the cdssion of a non-capital felony as alleged in the state's mtion to deny hail which invoked the jurisdiction of the district court under Art. I, Sec. lla Texas Const.

Sec. Ila provides in part that any prson accused of a felony less than capital in this state who has been theretofore twice convicted of a felony, after a hearing and upon evidence substantially showing the guilt of the accused of the offense may be denied bail pending trial by a district judge if said order denying bail pending trial is

April 1984/VOICEfor the Defense SD-1 1 issued within seven calendar days subsequent to the time of incarceration of the accused.

In this case the state failed to prove the D had been charged with burglary of a building in this cause and just discord as alleged in the mtion and that it had ken Seven days or less since his incarceration. Thus, the order denying bail was set aside.

Ilr, WUKER, No. 237-83, Opinion on D's PDR, Rev'd, Judge Miller, 2/22/84, En Eanc.

PROSEXSITOR'S ARGUMENT W oUTSIDE THE RFICORD--~~ERROR: Evidence shcrwed D was anployed by the Dallas Housing Authority at the time of this burglary of a habitation. Circumstantial evidence and an eye witness slmwed that D and another were around the house that was burglarized and shortzly after the burglary were apprehended with stolen track tapes, watches, and other items. Defense evidence shad that on the D's days off he worked for kis father hauling bricks. On the date in question the evidence shows3 that D had at 6 a.m. gone off to buy some cigarettes and three hours later was arrested in this case. The DA argued:

"This is what he does for a living, ladies and gentlemen. This is his job. He's getting up and going to mrk, alright, after you do."

The court held that the prosecutor was improperly calling upon the jury to speculate as to other activities of the accused, not shown by the evidence nor inferable from the evidence, and to cmnsider than in reaching a decision. This is impermissible. Jordan, 646 S.W.2d 946: Turrentine, 536 S.W.2d 219; Wiley, 531S.W.2d 628. The CCA rejected the C/A reasoning that since "Appellant was indicted . . . with intent to cclmnit theft. the umsecutor could reasonablv- infer a ~rofit thus, supporting the stat&t '1: is his job"'.

MDE ORTEGA, No. 821-82, Opinion on D's Motion For Rehearing on PDR, Credit Card Abuse, Rev'd/Acq~&ttal entered, Judge Campbell, Fn Banc, 3/14/84.

EVIDENCE INSUFFI- TO PRLXlE DEFENaANT INLDDED TO E'RXJD~YOEX'AIN PROPE?TY AND- SERVICES: The D presented a credit card to a Sears clerk in exchange for selected items of clothing. The salesperson filled out the required credit forms, accept& the prof- fered card and ulthtely extended him credit. The indictment alleged in part that the D: "Intentionally and knowingly with intent to fraudulently obtain property -and services frcm X, did use and present a credit card, a Sears Rc&mck & Cclmpany card, No. 57, etc. with knowledge, etc. "

The application portion of the charge instructed the jury that if the jury found from the evidence beyond a reasonable doubt that the D did "with intent to fraudulently obtain property and services, *** present a credit card that had not been issued to him, then the jury should find the D guilty as charged.

First, while the work done by the clerk in this case to extend credit was "labr" (Sec. 31.01 (7) (A) P .C. ) , the court did not believe the evidence was sufficient to show Such lahor or service was the intended object of the D's desire. The steps taken to extend the D credit were merely incidental to the entire transaction. The court did emphasize that this holding did not mean that all credit card transactions are excluded

SD-12 VOICE for the DefenselApril 1984 under Sec. 31.01(7). Here, if the D had purchased the clothing in question and had ordered tayloring alterations, with the resultant charges being made to the victim's account, the D wadd have obtained both property and services as contemplated by the Penal Code Section. However, the court held that extension of credit in and of itself without further proof did not constitute a service under Sec. 31.01(7).

Further, it was proper for the state to charge the D by alleging conjunctively that he intended to fraudulently obtain property and services, and proof of either would have been sufficient to convict and it was proper for the court to charge the jury that a finding of either wuld be sufficient to convict. Because the court's instructions to the jury were that it must find bth property and services before returning a guilty verdict, it was necessary that there be sufficient proof of both means alleged. Because the evidence is insufficient to support a finding of intent to fraudulently obtain both property and services, the case is reversed and a judgment of acquittal is ordered. Burks v. United States, 437 U.S. 1, 57 L.Ed.2d 15, 98 S.Ct. 2151 (1979).

JOHNNIE HEXG?D, No. 187-83, Opinion on State's PDR, Conviction Aff'd, Judge McCormick, En Banc, 3/14/84.

JURY IN~~IONSP~~~ING CONVICTION UPON FWING THAT D'S INTOXICATION w DUE m LIQUOR OR A CO&f!3INATIONOF LIWOR AND DRUGS NOT ERKXW3US: Apparently state's evidence proved normal DWI state of facts, which were alleged in infomtion. Defense testimony showed D was being treated by a physician and being given various medicines. Defense doctor testified that the taking of the medications with alcohol might cause an individual to lose mental alertness quicker than if person was drinking only alcohol. D testified she did not drink any intoxicating liquor on day of offense but did take all of her medications. Court's charge permitted conviction if jury found that conduct was ccolanitted while D was under the influence of intoxicating liquor, either alone or in ccmbination with drugs. D timely objected on the basis that the charge allowed the jury to convict on a failure which was not charged in the information: specifically, that the D was driving a motor vehicle, etc. while under the influence of intoxicating liquor in ccmbination with drugs. The court held that under present case law this ccmbination of liquor and drugs which muld make an individualmre susceptible to the influence of liquor is in effect equivalent to intoxication by liquor alone. Thus, the trial court's charge did not expand on the allegations of the infomtion but merely applied the facts of this particular case to the law. The judgment of the C/A reversing because of fundamental error and the jury charge is reversed and the judgment of the TC is aff'd.

LOULS LUGO, Opinion on D's PDR, Rev'd, Judge Miller, En Banc, 3/14/84.

ERROR TO mSEINmION ON MANSLAU-. State's witnesses testified that in the early mrning hours of the offense D shot and killed his wife of ten years during a violent argument at their hone. The victim's teenage daughters stated that the couple had been out earlier in the evening and had coins haw arguing; that D had tried to choke the decedent acd that the decedent was throwing him out of the house. D began to pack his bags and while the decedent was still in the bedroam the girls heard a noise like a gun being cocked and then D walked into the bedroom carrying the victim's rifle. The decedent grabbed the rifle, tried to pull it frm D, and when begged by one of the girls not to shoot their mther, D responded that she didn't love him anpre and that he was being run out of the house. When D's wife stopped pulling on the gun and released it, she was imediately shot in the abfi~men. As she fell to

April 1984/VOIC6j%r the Lbfense SD-13 the floor she droppea a set of keys she had keen holding. D testified as to going out with his wife,, having an argurrant, and eventually king ordered out of the house. D denied the choking incident. D admitted packing his clothes and then finding a rifle and deciding to give it to his wife in exchange for the keys to the car which she had taken with her. Wen D walked into the bedroan he told his wife he would give her the gun if she would give him the keys to the car. D's wife grabbed the rifle, jerked on it, then turned it loose, and the gun went off. D stated he did not intend to kill her, had neither cocked the gun nor loaded it and had believed the rifle was en@y because his wife always kept it unloaded. D stated he had been aware that the rifle if loaded was dangerous and could kill snneone and that he should have checked to make sure it was unloaded. The court instructed the jury on the law of mder, criminally negligent homici.de, and accident but not involuntary manslaughter.

The court held that the jury could have reasonably concluded, amng other things, that D's action in pinting a loaded rifle at his wife in an attempt to persuade her to relinquish the keys to her car constituted a conscious disregasd of a substantial and unjustifiable risk and thus the law of involuntary manslaughter should have been sub- mitted to the jury.

The court stated the rule to be as enunciated in Moore,- 574 S.W.2d 122: "The credibility of evidence and whether it is controverted or conflicts with &her evidence in the case my not be considered in determining whether a defensive charge or an instruction on a lesser included offense should be given. When evidence frm any source raises a defensive issue or raises an issue that a lesser included offense may have been dttd . . . the issue must be dmitted to the jury. It is then the jury's duty under the proper instructions to detenoine whether the evidence is credible and ertsthe defense on the lesser ineluded offense".

The court rejected the state's argument that a defendant's testiimny can "negate" the intent necessary to require a charge on the lesser included offense or that tk court will consider only the testimony of a defendant in reaching the proper determination. . ' The court emphasized that it wrruld continue to consider -all the evidence presented at trial in order to determine whether an instruction on the lesser included offense should be given.

KGER m,No. 347-83, Opinion on State's PDR, Poss. of Cocaine, Judyent of C/A Rev'd and case raMnded for consideration of other grounds, Judge Onion, En Banc, 3/14/84.

SlNKX JUSTEIED UNDER PJAIN VIEW DCllPRINE AND DCI:TRINE OF lNEVIE%%E DISCOVERY: Office on routine patrol in high crime rate area turned squad car into an alley and almost ran over the D who was emerging frm the alley. The officer jmpd out ad asked if the D was alright. As the D stood, he appeared to be intoxicated and his speech was slurred, etc. When asked what he was doing in the alley, D answered he was keeping a low profile. The officer determined he was going to arrest D for public intoxication. After telling D of his impending arrest, the officer observed a bulge in D's left shirt pocket which was big enough to be a small derringer. The officer shined his flashlight on the area and saw that D had a package of cigarettes in his pocket. Sticking up £ran the cigarette package was a little triangular shaped clear plastic baggie containing a white powdery substanck which the officer suspected was a narcotic. D was placed under arrest for psession of a controlled substance.

I SD-14 VOICE for the Defense/April1984 The court fourid that the officer possessed probable cause im believe that the plastic baggie in Appellant's pocket contained an illicit substance.

"af course, it muld have hen better if the prosecutor codd have impired ahout (the officer's) participation in previous narcotic arrests, his discussions with fellow officers &mt narcotics and how they are carried, or inquired more specifically about narcotic courses the officer my have taken. But this lack of inquiry by itself 'considering the record before us, does not call for a different result. we &odd not take leave of cxmmn knowledge and ccnnmn sense.*** Having probable cause to believe the baggie in mlant's pocket by light of the officer's flashlight was illicit substance, the seizure here was authorized. Texas Y. Brown, -U.S. , 103 S.Ct. 1535, 75 L.Ed.2d 502 (4/19/83) ." ?I%court tmphasized that in view of Texas v. Ecown, it is not now required that it be imoediately apparent to the officer that the substance is contraband, but that the officer have probable cause for the seizure, that is probable cause to associate the property with criminal activity. Finally, if the officer had not seen the baggie in the light of his flashlight, he ad have been entitled under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to pat down and frisk the D given the circumstances of this case. Camnwealth of Pennsylvania v. Mimns, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2.d 331 (1977). The baggie and the cigarette package would have been inevitably discdvered. "Further, there being probable cause to arrest for public intoxication and the officer having determined to mke that arrest (though not verbalizing the same) mld have had the right after arrest to search Appellant's person incident to that arrest, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (19731, and the cigarette package and baggie muld have been inevitably dimered if it had not been seen in plain view. While not dencaninating our rationale, the doctrine of inevitable discovery, Vanderbiltv. State, 629 S.W.2d 709,722,723 (Tex. Cr. App. 19811, we have used the same rationale in various context before. See Santiago v. State, 444 S.W.2d 758 (Tex. Cr. App. 1969); Johnson v. State, 496 S.W.2d 72 (Tex. Cr. App. 1973); Wyatt v. State, 566 S.W.2d 597, 601 (Tex. Cr. App. 1978): Mdkhon v. State, 582 ~.~.2dm 789 (Tex. Cr. App. 1978) ." The dissenting opinion by Judge CLinton, joined by Teague and Miller takes issue with whether the state met its burden of eliciting facts to show the officer acted on probable cause and emphasized that the state merely show& the officer believe the substance was contrakatd but the officer did not articulate a basis of probable cause to believe it. While a dissent on this basis my be well taken, how do the dissenting judges get around the doctrine of inevitable discovery other than by ignoring it?

TONY ROC)F, No. 497-83, Opinion on D's PDR, Conv. Aff'd, Judge Tom Davis, En Banc, 3/14/84.

4 INDECEFDY WITH A CHILD PROSECUTION--DIS THAT HIS VICTIM IS UNDER 17 YEX35 OF AGE IS NOT AN ELEH~TFOF SEC. 21.11(a) (2) P.C.: The court rejected D's contention that the state mst prove he knm the victim was a child under the age of 17. The statute expressly requires that the state prove that when the D exposed himself he did so know- ing the child is present. mver, lonowledge of the child's age is not an element of the offense and further the legislature rejected the potential defense of a reasonable mistake of fact concerning the victim's age.

April 1984lVOICE for the Defense SD.15 mmT m,m. 658-83, DVE, m'd, 5udge Campbell, En mc, 3/14/84. 11 EVIDENCE FAVS M SHCW SUFFICTENT NOTICE WS GIVEN TO DEFENWWC AS m TERM OF PROBATION: D was placed on probation for mand was required to attend the Houston Reqional Council I On Alcoholism &&.lreleased by the court. &obation was later revoked for7his failure to atWthe council as required. The evidence &owed that D received a copy of the amsled terms of probation requirk kim to attend the Houston Regional Bmil On Alcciholisn and that he urderstocd he was to attend and that he failed to attend. The issue presented is whether the D was afforded due process as guaranteed by the 14th AnvWz. to the U.S. Const. Harris, 608 S.W.2d 229; Cotton, 472 S.W.2d 526; Caqkl1, 420 S.W.2d 715. The evidence in the probation revocation hearing was devoid of any notice as to when, if ever, the D was to attend the council on alcoholiso. The D nwer atterded the council, not Iznawing when to go, where to go, or whom to see. !Cb make matters worse, it became clear during themtion to revoke hearing that the probation officer cared little about whether the D attended the council. The officer's only interest occurred when the D was arrested for another offense some six months later. The court then stated its general rules applicable to reviews of probation ~wocation orders:

"AppeLlate review of an order revoking probation is limited to abuse of the trial court's discretion. Caddell v. State, 605 S.W.2d 275 (Tex. Cr. Pgp, 1980). In determjning questions regarding sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence. Anderson v. State, 621 S.W.2d 805 (Tex. Cr. App. 1981). When the state has failed to meet its burden of proof, the trial judge abuses his discretion in issuing an order to revoke probaa. Walkovak v. State, 576 S.W.2d 643 (Tex. Cr. App. 1979).

~~ EX)LTDWf, No. 67,979, Probation Rev~cation-3 TDC, Aff 'd No. 67,980, Agg. mhbery--20 !TIE, Rev'd 1. Judge McCormick, En Banc, 3/7/84.

COURT EIUFONMXTSr;Y D'S CHXLBEE FOR CAUSE OF PROSPKfPIVE JtJRlXC After the court overruled D's challenge for cause, D used one of his peremptory challenges on prospective juror Harper and thereafter exhausted all of his peraptmy challenges. D's request for an additional peremptory challenge because he had heen forced to take an objectionable juror was denied.

During voir dire, prospective juror lIarper informed the court that her hcnne had recently been burglarized and she wanted the court to lolow she was not sure how this experience would affect her as a juror. Harper testified she did not know if she could give the accused the presunpltion of innocence and might even find him guilty because of -thing someone else has done to her and that she might require less of the state to prove the D guilty because of this experience. Unlike Peters v. State, 575 S.W.2d 560, an arson case, wherein the prospective jwor unequi~callyadvised the court that he could be a fair and impartial juror, IEarper never gave the c5urt in this case a clear answer but equiwated as to her mindset. When taken as a whole, the court found that she could not have been a fair and impartial juror and the T/C should have granted D's challenge for cause under Art. 35.16. Thus, the judgment was reversed.

JUDICIAL NOTICE PEOPERIX TAKES OF TEEW3 AND CONDITIONS OF AF'PEUAtW'S PROE&TION: D argued that because the terms and conditions of probation were not offered or admitted into evidence and because the judge who revoked D's probation was not the same judge who placed D on probation, judicial notice could not be taken of the terms of probation. The court disaqred, stating that the instrument containing the terms and conditions of

SD-16 VOICE fox the DefenselApril 1984 probation was a part of the court records in the case and thus the trial judge could take judicial notice of the instrument, regardless of whether the judge was a visiting judge or not.

"The theory of judicial &ice is that 'where a fact is ell known by all reasonably intelliqent -people - in the camunity or its existence is so easilv determinable with cer&nty fr&~sources considered reliable, it would not be good senseto require fo& pr& ' " .

Because the tern of probationary conditions viere easily verifiable, the court found that the visiting trial judge correctly took judicial notice of than.

GLORIADAVILA, No. 506-83, Opinion on State's PDR, Opinion of C/A Aff'd, Conv. Rev'd, Acquittal entered, Judge lbn Davis, En Banc, 2/29/84.

EVIDEKCd INSUE'FICIESPII TO SHOW aONSI'RU(;TIVE ~~ OF HEROh7 WER W.4476-15, SEC. 1.02(8): The follcgrling evidence was presented at trial and sumnarized by the C/A and appears to be undisputed:

"Agent Chim testified that at approximately 11 a.m. on August 27, 1980, in the connpany of an informant unidentified in the record, he arrived in his autabile at a residence at 605 Zenith Avenue in Lubbock, parking against the curb irrnnediately behind a pickup truck. In their approach to the front door of the residence, the pair passed directly by one Come Tijerina (Cbsw),who was standing on the lawn near the curb talking with a man seated behind the steering wheel of the pickup. Entry to the residence being granted, Chisin observed Appellant seated on the couch with Ascenta Tijerina in the living room, into which the front door opened.

The record shows the Appellant having been acquainted with Chisn appbtely tsm weeks, inquired what the pair wanted, and Chim sirrrply responded 'four'. The Appdlant thereupon absented herself, joined Come outside and engaged him in brief conversation, within sight but outside hearing of Chisn. The Appellant re-entered the house and redher seat. Then, Chim noticed Cosme walk by the side of the house.

In short order Cosne entered the house, approached Chisn and asked either 'how mydo you want' or 'what do you want. ' Chim repeated his request for 'four', and Cosne, having in his hand precisely four party bdlloons, tied at the apening, placed them in Chim's hand in exchange for Chim's tender to him of $120. (These balloons given to Qlim contained heroin). Chim and the informant then departed, rendmusing with other law enforcement officers wbhad been conducting surveillance of the resi- dence. Qlim noted that he had, on prior occasions, seen the Appellant at the residence. Officer Robinson, assigned by the Luhbxk Police Dermx~tto a YE2 Task Force, testified that on the date in question he was on surveillance of the residence from a vantage pint approximately tsm blocks distance. Robinson further stated that Come walked to the pint where he had been standing to a park behind the house, approached the sofa, bent wer and did samething. Cosme then proceeded inside the residee."

The D was not charged with king a party to the actual transfer of the heroin which took place when Come delivered it to Chim. See Sec. 7.01 and 7.02 P.C. The indict- ment alleged that the D "constructively" transferred the narcotics to Chisin. Tkis evidence fails to show the D had direct or indirect control of the contraband prior to its delivery and does not show the contraband was delivered by Cosme at the instance or direction of the D. Atnvst, the evidence shows the D merely relayed Chism's offer to buy to her husband Cosne. Cosne neqotiated bth the quantity and the price before

April 1984/VOICEfor the Defense SD-17 mkiq the delivery. The D made no response when Chisn offered to buy "four". The fact that the D might have understood what he meant by his cryptic offer is no proof that the contxaband was under her direct or indirect control prior to its delivery by Cosm to Chi=. Further, the D's act in merely relaying an offer frabuyer to seller is not sufficient to prove that the seller acted at the instance or direction of the D. There is no proof that the D had any control wer Cosne's actions.

Tn Ramssen, 608 S.W.2d 205 the court interpreted a constructive transfer:

"To be the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by sane other person or wanner at the insme or direction of the defendant."

CH)RICK PANNEGL, No. 61,527, Opinion on D' s mion For F%?hearing, adye MKormick, En Banc, 2/29/84.

WES A VIOI3LTIW OF A DISCIPLINARY RILE BY IY G3lSTITDIW A UIOLATION OF EWAlT LAWZ D. The D argued that hecause the L?A interviewed the D without attempting to obtain the consent of his court appointed attorneys the DA violated Disciplinary Rule 7-104 (A) (1) of the Code of Professional Responsibility, a provision of the laws of the state of Texas and that since a law of the state of Texas was violated the admission of the confession into evideme violated Art. 38.23 C.C.P. The court noted that the Coae of Professional Responsibility was prepared for an administrative agency, to wit, the State Bar of Texas. Thus the rules contained therein bere to be used and applied in an a&nidstrative capacity. Tkcourt held that the Disciplinary Rules of the Code of Professional Responsibility are not laws of the state of Texas as were contemplated by Art. 38.23 C.C.P. Thus, violation of one of these Disciplinary Mes in obtaining evidence for a criminal proceeding will not bar introduc+ion that evidence at trial. be the I. Such ethical violations are to dealt- by msans of administrative mchanisns sp3ciaUy established for dealing with such unethical conduct.

WHILE INDIClMEWT MAY BE DEEWTNE, THE HAW4 HAS ALRWDY BEEN CURED BY VERDICT: D complained apparently that his capital murder iridicimmt failed to name the vidim of the aggravating offense, citing Brasfield, 600 S.W.2d 288 and Evans, 601 S.W.2d 943. The coat found. that these cases could be distinguished frcm in tbat in Pannell the D was convicted of a lesser included offense of rraurder wkile Brasfield and Evans were actually convicted of capital murder. In this case the failure to properlypl-ead the victim of the aggravating el-t in no way harmed the D because the aggravating elementp1ayed no part in his conviction. Reversal would not cure the error because in affect it has already keen cured by the jury. The court specifically stated it was not departing frm Jeffers, 646 S.W.2d 185 (Tex. Cr. App. 1983) (opinion on rehearing) in which it stated:

"The test for deciding the sufficiency of an indictment in the face of a mtion to quash for insufficient notice is to ednethe indictment frcm the perspective of I the accused. Dnman v. State, 560 S.W.2d 744 (Tex. Cr. Fgp. 1977) . . . To require evidence reflected in a statanent of facts to establish insufficient notice is to ignore the requirmt that notice must appear on the face of the indict- I mnt. Mamination of the indictment, not the evidence, is the ultimate test." UlIS GOODMAN, No. 68,804, and KATHRYN SPIEEL, No. 68,805, Promotion of Obscenity, Rev'd/Ac&ttal entered, Judge Clinton, En Banc, 2/29/84.

EXDENCE INSWFICIENT TO PROVE PR2UCION OF OBSCENITY BY MOVIE FME?LDYEES: The Ds were charged with intentionally prmting obscene material by exhibiting a certain film &ile knowing its content and character. The state failed to prove that either D exhibited the film in question. In Spiegel's case, the state relied on her act of selLing tickets to the officers to prove she pmmted the film by exhibiting it. Em- ever, those who merely stand behind a counter and sell tickets are not exhibiting a film. Acevedo, 633 S.W.2d 856. Further, there was no showing Spiegal had anything to do with the operation of the mmie projector or the selection of or the showing of films at the theater. Skinner, 652 S.W.2d 773.

In Goodman's case she testified she was a "manager" but her duties on the night in question consisted solely of selling tickets and concessions. Not kndng what a mnager's duties are, the court declined to leap to the conclusion that she had anytkins to do with the exkibition of the film and there is absolutely no evidence to this effect.

Court concluded that no rational trier of fact could have fourmi the Ds guilty of the allegations of the informtion. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61L.Ed.Zd 560 (1979); Acevedo v. State, 633 S.W.2d 856 (Tex. Cr. App. 1982); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. ~asm 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

9LM SEIMAN, No. 161-82, Opinion on State's PDR, W'd, Judge Onion, En Banc, 2/8/84.

VYDEFECrm COUIIT'S CHARGE ON VmMANmfETER: Indictment alleged rmrder under Sec. 19.02 (a) (2) ("intends to cause serious bodily injury and con'units an act clearly dangerous to hman life that causes the death of an individual"). In this case the court autbrized a conviction for voluntary manslaugW on the Wry charged * in the indictment (i-e., 19.02(a) (2) ) but also authorized a convictim on a Wry not alleged in the indictment (Sec. 19.02 (a) (1)) (i.e., intentionally or knowingly causes the death of an individual) . "If we look at Paragraph 5 alone, applying the law to the facts, it is clear that such chqe would authorize conviction on less than all the necessary elements of the offense (Sec. 19.04 coupled with Sec. 19.02 (a) (2)) . The failure to include an essential elmt of the offense in the charge applying the law to the facts is fundamental error. Cconbie v. State, 578 S.W.2d 732; -Rst, 567 S.W.2d 515; Messenger, 638 S.W.2d 883."

CXlKC OF AETEAW MUST REVIEM SUFFIC- aF EVlDEEE: A challenge to the sufficiency of the evidence should he considered hefore disposing of a case wen aghreversal my be based on another ground. Hooker, 621 S.W.2d 597 (Tex. Cr. App. 1981) (opinion on rehearing). Thus, the case is remanded to such court for consideration of the su£ficiency of the evidence. ,

April 19841VOICE for the Defense SD19 IX)NAU) EVEWES, No. 62,076, W'd, Judge Tcm Davis, Panel opinion, 2/8/84.

PROSECUTOR'S SIDE BAR FEWUK PA5 REVERSIBLE D was convicted of operating a rotor vehicle belonging to X withcut her effective consent. The D contended that he was recruited by the police and one of their informants to help make a case against one Y. According to the Dl the police gave him the car in question, which had been confiscated in a drug raid, to use while he was making the case on Y. The D denied knowing the car was stolen. In contention $1, the D ccmplained of a comnent directed at defense counsel by the prosecutor. D's attorney was cross examini~lgan investigator with the Dallas Police Depar.tment who participarted in the D's arrest when the following occurred:

"How long did you keep him up in the Dallas City Jail?

A. I don't have any idea haw long he stayed there More he was transferred to the county.

Q. Is it not a fact officer that the Dallas Police kept him up in the jail for some 15 days?

A. I don't know.

Q. --Before they delivered him to the Dallas County Sheriff, wbthen put him in Parkland Hospital for treatment to recover £ran the beatings that you gave him?

(Prosecutor): Oh, Judge, we object to that. He is in bad faith like usual and we object to it. That is a fxlnch of garbage and he knows it.

The Court: I sustain it. Iadies and. gentlemen, you will not consider that for any purpose, the statement (the defense attorney) made, not for any purpose. Now, don't repeat that statement, Mr. (defense attorney).

Defense counsel: Yaur Honor, at this the we muld make a motion for mistrial based upon the cormnent of the prosecutor that I was in bad faith as usual, that is a derogatory cament and it is striking at the deEendantover counsel's shoulder and We object to it and wuld ask for a mistrial.

The Court: Denied."

The court held that the prosecutor's r-k was obviously improper. One of the D's con- tentions was that the police had beaten him in order to obtain a confession. At this pint in the trial during the state's case in chief, the D had not had an opportunty to offer any evidence on this question. Later he did offer such evidence. Tke D had a right to cross examine the officer on this issue.

The court held that the prosecutor's cmtwas dfestly improper, harmful, and prejudicial, thus constituting reversible error. Thcatrpson v. State, 480 S.W.2d 624 (Tex. Cr. App. 1972). CLINT HOWARD, No, 05-82-01219-CR (Dallas), Aggravated Robbery Convict ion Affirmed, Judge Rowe, Panel Opinion, 1/24/84

PLEA OF GUILTY BEFORE MAGISTRATE: Facts: D and State enter plea bargain agreement, Magistrate presided over those proceedings involving waiver of indictment, stipulation of evidence, waiver of jury, admonishment as to punishment, and accepatance of D's judicial confession into evidence. At D's request, all further proceedings were presided over personally by district judge. During those proceedings D again acknowledged his guilt and confirmed the waiver of his legal rights; TC then sentenced D. CA rejected argument that because plea agreement left open the question of punishment a full trial on the merits was required and magistrate lacked authority under Art. 1918c B46 R .C .S .A. , holding that because D's guilt was not in dispute, the only issue requiring judicial determination was the appropriate sentence.

GARVIN RICHARDSON, No. 6-83-019-CR (Texarkana), Engaging in Organized Criminal Activity Conviction Reversed, Judge Cornelius, 1/24/84

INCULPATORY STATEMENTS MADE DURING PLEA NEGOTIATIONS INADMISSIBLE AT LATER TRIAL: Facts: The aborted plea bargain was negotiated in DA's office; present were D.A., special prosecutor, other law enforcement officers; D and his attorney. D was fully warned of his rights. In order to induce D to plead guilty and testify to the criminal activity he was promised: 5 year recommended sentence, trusty status immediately upon beginning imprisonment, selection of prison unit of D's choice, and that law enforcement officers would use their influence to get D paroled as soon as possible. In course of negotiations D made several statements damaging to his defense which were introduced, over objection, at his subsequent trial. Held: Art. 26.13, C.C.P., provides that when a plea bargain is rejected by TC, neither plea nor any statement made by D at the hearing may be used against D in subsequent proceeding. Logical extension of this rule bars introduction of inculpatory statements made during plea bargain negotiations,

STONEY WHITTINGTON, No. 12-81-0148-CR (Tyler), Delivery of Controlled t Substance Conviction Affirmed, Judge Colley, 1/19/84 TC's FAILURE TO GIVE TRIAL SETTING PREFERENCE TO "JAIL CASES" IS NOT REVERSIBLE ERROR: D raised speedy trial issue, alleging that because he was confined in jail from August 13, 1980, until December 12, 1980 [trial was conducted August 13, 19811, he should have been given preference for trial setting earlier than other pending cases under Art. 32A.01 C.C.P. CA held provisions of Art, 328.01 are advisory and failure of TC to comply Q not reversible error.

THOMAS PATES, No, 12-83-0132-CR (Tyler), Revocation of Appeal Bond Upheld, Judge Colley, 1/19/84

D SUBJECT TO SUBSEQUENT REVOCATION OF PROBATION PENDING APPEAL FROM PRIOR REVOCATION ORDER: Facts: D received probation following two

April 1984/VOICEfurthe Defense So-21 guilty pleas to attempted capital murder. Following revocation D gave notice of appeal and posted appeal bond, During pendency of appeal D was arrested on susuicion of DWI: D's mobation was revoked a second time, TC revoked bbnd on appeal. from f ixst revocation orders and denied D a bond on appeal from second revocation orders. -Held: When appeal is taken from order revoking probation, probationary period continues to run unabated; pending determination of appeal D is still subject to conditions of probation, Necessarily, then, D is also subject to subsequent probation revocation pending appeal from prior order of revocation.

SYLVESTER FIUGBES, No. 13-83-240-CR (Corpus Christi), Aggravated Robbery Conviction Affirmed, Judge Nye, Panel Opinion, 1/26/84

OBJECTION DID NOT PRESERVE ISSUE OF EXTRANEOUS OFFENSE IN PEN PACKET: At punishment D objected to pen packet: "2 pages of the [packet] that are entitled Order Revoking Probation and Sentence for the reason that that is not admissible in this stage of the trial under the laws of the State of Texas and is not properly a part of this [exhibit]." CA held objection insufficient because failed to specifically point out particular part of exhibit that was inadmissible and packet was mostly admissible.

THOMAS YATES, No, 12-82-006-CR (Waco) , Revocation of Probation Affirmed, Judge Colley, 1/19/84

NO RIGHT TO COUNSEL FOR PRE-INDICTMENT BREATHALYZER: Facts: 2 probation officers planned a home visit with D. Upon arriving they saw him driving a pickup and followed. When D stopped at a store the probation officers approached and formed the opinion he was intoxicated. DPS officer was called and took custody of D, taking him to sheriff's office. When D was offered breath test, he stated he wanted to talk to attorney and was allowed to make a phone call. When attorney had not arrived after 25 minutes, D was again offered breath test. Testimony conflicted as to D's consent, with officer saying D consented after being told he could refuse and D saying officer told him he would be charged with DWI anyway and had nothing to lose. As machine was printing results (0,14%), attorney arrived. m: No state or federal constitutional right to advice of counsel before D could be required to decide whether to submit to test because is investigatory stage of proceedings.

OSCAR LOPEZ, No. 13-83-287-CR (Corpus Christi), Aggravated Robbery Conviction Affirmed, Judge Nye, Panel Opinion, 1/19/84 , ELICITING EXTRANEOUS OFFENSE CURED BY INSTRUCTION: DA asked investigating officer, ".,.did you recover any other evidence?" Officer replied, "The other evidence that I recovered was some alleged heroin." CA held instruction to disregard cured error in eliciting because no other evidence of similar nature was admitted, no further mention was made of discovery of heroin at trial and jury was aware that search took place in co-D's residence.

SD-22 VOICEfor the DefenselApril 1984 SAMMY TERRELL, No. 13-83-290-CR (Corpus Christi), Possession of Marijuana Conviction Affirmed, Judge Nye, Panel Opinion, 1/19784

NO ERROR IN COMMENT ON SILENCE DURING YOIR DIRE: CA found no reversible error in DA's voir dire: "We must prove our case beyond a reasonable doubt. The burden of proof never shifts to the Defendant, The Defendant does not have to prove his innocence, and we cannot, as reasonable, fair-minded jurors, require a defendant to prove his innocence. Many times a good defense counsel will ask a jury panel, after you have heard the State's testimony and seen all these exhibits that they say they are going to bring in, wouldn't you want the D to testify? Well, in the back of our minds, yes, we probably would like for the D to testify, but the Court tells you you cannot hold the D's failure to testify against him.. ."

WALTER LYONS, No, 01-81-0578-CR (Hou. Ist), Aggravated Kidnapping Convict ion Affirmed , Judge Cohen , Panel Opinion, 2 /2 /84 HEARSAY EVIDENCE INADMISSIBLE AS BOLSTERING: Facts: Complainant testified she had never met D before he attacked her in shopping center parking lot and kidnapped her, threatening to kill her if she did not cooperate with his sexual demands. D testified he met complainant 6 weeks before the alleged kidnapping incident and that although they were both married they had several dates. On Bill of Exceptions (to State's Motion in Limine) D's co-worker testified that during the 6 weeks prior to the incident D told him daily about meeting a woman with the same first name as Complainant and that they had gone to each other's home and to clubs together, This testimony matched D's account of his relationship with Complainant prior to the incident. TC sustained State's objections of hearsay and bolstering and refused to admit testimony before jury. On appeal D argued statements not hearsay because offered to show date statements made and not to prove facts stated therein, Held: Statements properly excluded. D did not limit offer of co-worker's testimony; it was offered for all purposes. Excluded testimony did not fit any exception to general rule against bolstering.

FREDDIE RICHARDSON, No. 01-82-0500-CR (Hou. lst), Aggravated Rape of Child Convict ion Affirmed, Judge Duggan, Panel Opinion, 2/2/84

LOST STATEMENT OF FACTS FROM MISTRIAL WILL NOT AFFORD APPELLATE RELIEF: Facts: D's first trial ended in mistrial after 14 hours of jury deliberation over 3-day period. Attorney was permitted to withdraw and new counsel was appointed. 2nd trial took place 32 days after mistrial, with jury returning guilty verdict in 10 minutes, Between 1st and 2nd trial, D's attorney did not request court reporter to prepare statement of facts of mistrial for use at retrial. New attorney appointed on appeal. Both D and State objected to lack of statement of facts from mistrial in appellate record (D had designated it for inclusion). Hearing was held and it was established that neither court

April 1984/VOICEfor the Defense SD-23 - reporter could account for missing notes from 1ati;er part of 1st trial, D argued that failure to provide indigent D with transcript of mistrial made it impossible for him to challenge sufficiency of evidence at mistrial as double jeopardy bar. m: Rule that indigent D entitled to transcript of mistrial for use at subsequent trial will not be extended to entitle D to mistrial transcript for use on appeal of conviction following retrial, Here D did not request transcript for use before retrial. CA also found D was not entitled to make double jeopardy challenge because mistrial was granted on D's motion, and that trial counsel's failure to request transcript from 1st trial pending retrial was not basis for holding his assistance ineffective,

WNNIE WILSON, No, 2-82-133-CR (Fort Worth), Sexual Abuse of Child Conviction Affirmed, Judge Spurlock, Panel Opinion, 2/8/84

NO RELIEF GIVEN TO D WHO RELIES FOR TRIAL TACTICS ON STATUTE IN EFFECT AT TIME WHICH IS LATER SUBSTANTIALLY MODIFIED BY CASELAW: D's convictio was originally reversed for no outcry under Art, 38.07 C.C.P., but was remanded ib. light of Hernandez, 651 S.W.2d 746 (TCA 83). Complainant was sole trial witness. There was no dross-examination of complainant at trial, and D presented no evidence. D argued on appeal that he was denied fair and impartial trial because in planning his trial tactics, he relied on Art, 38.07 and elected not to cross-examine complainant so as not to permit even an opportunity for there to be evidence of outcry or corroboration -- believing that her uncorroborated testimony would be insufficient to support conviction, D argued that as consequence, he chose to forego presentment of testimony that might have led to his acquittal or reduction of sentence if convicted. s:Although D chose his trial tactics relying on statutory law at time, and could not have anticipated that TCA would find an exception to the statute, nothing in trial caused D to receive less than fair and impartial trial; D not precluded in any way from calling any witnesses he desired and no evidence wa8 introduced which was prejudicial to him, absent objection, I

GAYLE COOPER, No. 2-83-048-CR (Fort Worth), Assault Conviction Affirmed, Judge Jordan, Panel Opinion, 2/8/84 SPEEDY TRIAL WAIVER UNDER ORIGINAL INFORMATION APPLIED WHEN SECOND INFORMATION FILED TO CHARGE SAME OFFENSE WITH GREATER SPECIFICITY.

DAVID JONES, No. 05-83-00298-CR (Dallas), Probation Revocation Reversed, Judge Carver, Panel Opinion, 2114184

MAGISTRATE DOES NOT HAVE'AUTHORITY TO CONDUCT REARING ON MOTION TO REVOKE PROBATION, FOR PURPOSES OF ACT, AN URP PROCEEDING IS A "TRIAL ON THE MERITS".

LSD-24 VOICE for fheDefense/April 1984 EX PARTE R. R. MARTINEZ-VELASCO, NO. 01-83-00608 EX PARTE HENRY MULDRAGON, No. 01-83-00611 (Hou. kt), Pretrial bond reductions, Bonds reduced, Per Curiam, 2/9/84

BONDS REDUCED ON DELIVERY OF COCAINE, BUT STILL HIGH BECAUSE OF NATURE OF OFFENSE: TC set bonds at $2 million on each D and reduced to $750,000 and $500,000 following hearing. On appeal CA further reduced to $375,000 and $250,000 respectively . Citing evidence at hearings that Ds, residents of U.S. but still citizens of Columbia, had family and business ties here, that offenses involved no violence, weapons, threats or attempted escape, However, CA considered nature of offense: delivery of Penalty Group I controlled sbbstance, punishable by life; amount involved was worth $2 to $3 million; that "illegal manufacture, transport ation and sale of large quantities of contraband drugs usually require multiple transactions of a transitory nature.. . participants must be highly mobile.., large amounts of cash required to effect such transactions usually suggests involvement of monied backers who may consider the costs of bail bonds merely as a normal business expense. Therefore... a much higher bond may be required to assure the presence of the defendant at trial. "

THOMAS LLOYD GREEN, No. B14-83-128-CR (Hou, 14th), Escape Conviction Affirmed, Judge Pressler, Panel Opinion, 2/9/84

WILL DEFENSE ATTORNEY BEING PUT TO TRIAL ON DAY OF APPOINTMENT CAUSE REVERSAL? Not necessarily so. --Facts: Order appointing X as counsel was dated December 17, 1982, the day of trial. Docket sheet entry for December 7th states: "D's attorney unable to attend, re-set for Thursday Dec. 9, 1982." Docket entry for December 9th reflects: "D appeared in custody -- wl counsel X.. ." CA held that State had clearly sustained burden in establishing requirements of Art. 26.04(b) C.C.P.; D had counsel on 1217, X was designated by name as counsel who appeared with D on 1219; no record of substitution of counsel between December 7th and 9th.

FLOYD METERS, No. 13-83-292-CR (Corpus Christi), Possession of Methamphetamine Conviction Reversed, Judge Gonzalez, Panel Opinion, 1/31/84

INSUFFICIENT EVIDENCE TO SHOW POSSESSION AS PARTY OR ACTING ALONE; D LINKED TO APARTMENT ONLY: Facts: Police obtained search warrant for apartment where D was living. During execution D and X were ordered out of bed and taken to living room where search warrant and rights were read to them, Contraband was found in kitchen on refrigerator, on table, and on air conditioner, Evidence unclear whether it was in plain wiew, X testified drugs were hers; she pleaded guilty to offense and received 5 years. State relied on theory of parties, urging that because D provided X with food, lodging, and a "base of operation" that he directly aided and encouraged her possession of methamphetamine. CA rejected parties theory. CA also held insufficient evidence to show D's independent possession because State mly linked D to apartment and not to drugs.

April 1984/VQICEfor the &%ma SD-25 I BBm TROHODSA, No, 04-81-00391-CR (Sm Antonio ) , Arson Convict ion Reversed, Judge Cantu, Panel Opinion, 2J15184

"INVESTIGATORY ARREST" IS STILL AN ARREST, AND MUST BE SUPPORTED

I BY~ ~ PROBAEtLE CAUSE. STATE ERRONBOOSLY ASSOYW NOT ARRESTED BECAUSE VOLUNTARILY ACCOMPANIED" OFFICERS. NO ATTENUATION OF TAINTED ARREST, SO CONFESSION INADMISSIBLE: CA noted record was silent as to procure- ment of arrest warrant or existence of probable cause to arrest D for arson. State did not assert either, taking position D voluntarily accompanied police and was not "arrested" until after he gave voluntary confession 1% hours later. CA said testimony showed no more than "flagrant arrest of suspect known to frequent bars at a particular inter~ection.~~Whether accused under arrest is to be determined from sufficiency of facts to create reasonable impression in D's mind he is under arrest. Officers restrained D on corner, searchGd, put in patrol car and read Miranda Warnings, State did not meet burden of showing consent to accompany voluntarily, Like Taylor v. Alabama, 102 S.Ct, 2664 (1982), the fact that later confession satisfied 5th Amend- ment requirements did not remove illegality of initial arrest made without probable cause. Officer said D was not told he was free to leavo, but was not handcuffed; said D would probably have been restrained if had tried to leave. CA rejected as insufficient the State's argument D was not told he was free to leave, and was not told was under arrest. On causation factor, CA held time factor of 18 hours didn't attenuate taint. (Officers took D to a burglary scene during this time.) Interrogation was continuous. Miranda warnings safeguard 5th Amendment rights but don't tell D of his right to be free of illegal custody,

mNNETH LEE CHENNAmT, No. 05-82-00974-CR (Dallas), Solicitation of cwit a1 murder conviction affirmed , Judge shumpert, Panel opinion, 2/13/84 TAPE RECORDINGS OF SOLICITATION WERE EXBIBITS RATHER THAN TESTIMONY, SO AVAILABLE TO JURY DURING DELIBERATIONS: D on appeal claimed TC violated Art. 36.28, C.C.P., which provides that only under certain circumstances may jury have testimony provided during deliberatioas. CA held that tapes of D1s conversations were exhibits and available to jury during deliberations merely upon their request. Art. 36.25, C.C.P. RENUNCIATION DEFENSE -- EVIDENCE MUST SHOW CHANGE OF HEART OR REPENTANCE BEFORE RENUNCIATION VOLUNTARY WITHIN TERMS OF STATUTE: Prosecutor argued only if jury found D called off hit because of change of heart and no longer wanted victim dead could they acquit him under TC's renunciation charge. If he called it off for "any other reason under the sun," then jury was to find D guilty, he argued. D argued on appeal that only the two ~pecifiedcircumstances in statute would destroy renwzciation'defense, so that jury coqld not reject defense for "any reason under the sun" except change of heart. CA disagreed: "Repentance or a change of heart is required before a reununciation is voluntary.,, there was no way for the legislature to think of every possible way for renunciation to be non-voluntary and.. . it was merely listing some possibilities" (e,g, D calling off crime because feared detection or wanted to postpone).. So, prosecutor's

SD-26 VOICEfor the &fense/April1984 argument OK, and not misstatement of law.

LUCILLE PETERS, No. 05-82-01188-CR (Dallas), Murder Conviction Affirmed, Judge Sparling, Panel Opinion, 2/14/84

JURY CHARGE ON MURDER NOT REQUIRED TO NEGATE CULPABLE MENTAL STATES OF LESSER INCLUDED OFFENSES: CA held principle of Cobarrubio, No, 63,801 (TCA 1112183) (not yet reported) (rehearing granted) not applicable here. Charge in Cobarrubio was defective because in application paragraph did noT place burden of disproving "sudden passion" on State, so jury might convict D of murder without finding absence of sudden passion, and would not proceed to charge on lesser offense of voluntary manslaughter. When raised, the absence of sudden passion becomes an "implied element" of murder and must be in murder paragraph, D here claimed same principle applied to her lesser offenses of involuntary manslaughter and criminally negligent homicide, so that murder paragraph should have placed burden on State to negate recklessness and criminal negligence. CA held those mental states are in no way implied elements of murder and no burden on State to negate existence to convict for murder, so no danger of convicting D unfairly of higher offense as in Cobarrubio.

JEFFRY FOGLE, No. 05-82-01352-CR (Dallas), MRP Reversed, Judge Stephens, Panel Opinion, 2110184

TC IMPROPERLY DELEGATED TO PROBATION DEPARTMENT THE DUTY TO DECLARE SPECIFIC TYPE OF COMMUNITY SERVICE REQUIRED: Art. 42.13, C.C.P., places on TC the duty to declare conditions of probation, and here TC improperly delegated to probation department when, in DWI convic- tion, he conditioned probation on D's "working faithfully at a community service task for 90 hours as directed by the Probation Department." In dictum, CA held TC does have statutory authority to require community service, not controlled by Art. 42.13, Sec. 3B, which says TC may require D who is given deferred adjudication and has requested community service to perform such service. Instead uses more general authority of Section 3 and Section 6, which allow imposition of any conditions that "are reasonable and have a reasonable relationship to the treatment of the accused and protection of public," Also in dictum CA agreed the above condition was so vague as to be unreviewable under the reasonableness standard.

EX PARTE JESSIE MALDONADO, No. 07-83-0278-CR (Amarillo), Burglary Con- viction Affirmed, Judge Countiss, Panel Opinion, 2/14/84

INABILITY TO PROVE BURGLABY TO REVOJCE PROBATION WAS NOT JEOPARDY BAR TO SUBSEQUENT PROSECUTION FOR BURGLARY: D moved to dismiss pending felony indictment on jeopardy grounds because State was "unable to prove" same burglary in proceeding to revoke his probation. CA held MRP was not an "adjudication of issues" in classic jeopardy sense, but was instead an administrative determination that could not have the preclusive effect accorded to determinations made at other trials, Same principle allows State to use one incident as basis for revoking probation until it is successful.

April 19841VOICE for the Defense SD27 ,-~~

WILLIAM GORDON, No. A14-82-672-CR (Hou, 14th), Civil Rights Violation Conviction Affirmed, Judge Brown, Panel OpLnion, 3/1/84

LESSER INCLTJDED OFFENSE OF CIVIL RIGHTS VIOLATION -- APPARENTLY THERE ARE NONE. [See 39.021 PC] D argued error to refuse his request for instruction on lesser offense of assault. Though CA quoted rule that offense is a lesser one if proved by same or less than all facts necesk / sary to prove charged offense, and though facts here clearly fit that test, CA held offense of violation of prisoner's civil rights "stands alone", that because very foundation of offense is relationship of par- ties the legislature intended as a "singular crime", Other offenses not precluded but cannot be lesser offenses of this one. [Also cites "guilty only" rule for right to lesser included offense charge, as stated in Royster 622 S .W.2d 442 (TCA 1981) but some question exists as to whether that rule survived recent opinion in &, (TCA No. 312-83, delivered 3/14/84)],

VIRGIL PRESTON, No. 13-83-304-CR (Corpus Christi), Burglary Conviction Affirmed, Judge Bissett, Panel Opinion, 2/23/84

ATTACK ON PRIOR CONVICTION FAILS BECAUSE D DOESN'T PRODUCE INDICTMENT: D attacking prior alleged for enhancement showed that judgment recited he was convicted for "theft of a truck'! Though no such offense exists in Code, the error was one subject to reformation; if D (who has burden of proof) had produced the indictment showing same charge;, he would have shown fundamental defect and void conviction. He did not do so and con- viction only "voidable", so D failed in burden.

FRANK HERNANDEZ, No. 07-84-0025-CR (Amarillo), Opinion on Motion for Extension en banc, Judge Pof f , 2/21/84

INDIGENT APPELLANT DOESN'T GET STATEMENT OF FACTS. CA HOLDS IT HAS NO AUTHORITY TO EXTEND TIME FOR FILING BECAUSE NO TIMELY DESIGNATION OF RECORD BY D, SO RIGHT WAS WAIVED: D gave oral notice of appeal on day of judgment, and counsel was not appointed until 4 months later. Counsel filed motion to extend time for filing Statement of Facts, attached reporter's affidavit and explanation that he had only just been appointed, well after 20 days allowed by Art. 40.09, Sec. 5 CCP to designate record had expired. CA concluded Art. 40.09 gave it no authority to extend the time for SF that had not been timely designated for inclusion. So, they held, failure (even of an indigent D unrepresented by counsel) to file a designation in 20 days is a waiver of right to SF on appeal. "Given the wavier, it follows that good cause does not exist to warrant an exten- sion (to file SF)." Opinion implies some burden on D himself to exer- cise diligence, though no discussion whether late appointment of counsel was due to Dts inaction, misunderstanding or judicial or clerical error. ,

SD-28 VOICE for the DefenseJApril 1984 - CLINTON from page 8 it just happened. But that left this Court Courtroom, except on ceremod occa- \ with something like 3,000 direct appeals stons. 1 assume on the notion that it is for or against it? that had to be disposed of and at the same distractive and may he an invitation to I really haven't thought about time we had to be exercisinn- our discre- the ~articioants. the advocates, to be it. I know the stories about the hangings tlonary review jurisdiction. So for the last aware that' the camera's on them and at the Courthouse years ago, public hang- couple of years there has been a problem, therefore react in one way or another. mgs andall like that. That all seemed kind we have had both our old backlog and VOICE: What about from aneducational of gimmicky. I don't think it's going to then the new work load. But as of last standpoint? make any great change in people's minds. October, I believe it was, every ordinary CLINTON: Years ago in each Travis Coun- VOICE: Only a few weeks ago, Ronald appellate case was out of the clerk's of- ty Courtroom there was a faed camera Ckk O'Bryan, who was assessed the death fice and submitted to the Court and in at the very back of the courtroom that penalty by a jury in Harris County almost the offices of the judges. We're becoming was a closed circuit TV to the law school. ten years ago, was again given an execu- more selective in the cases that we decide 1 think everybody toyed around with it tion date. How do you feel about the in- to review. When you do that, your work for a while, played with it, and it was a ordinate delay in capital cases? load is naturally reduced. And one of nice little experiment. My recollection is, CLINTON: It's not limited to capital these days we'il be able to devote more in a relatively short period of time the cases. There's an inordinate delay ina good time and care to resolving the legalprob- whole thing stopped and it didn't prove many cases I don't think you need to to be all that beneficial and educational. compartmentalize capital cases; the whole system is inflicted with delay. There must VOICE: What was your experience with be ways found to avoid that. There's no My most memorable decision was the Jack Ruby case? How did you happen need to huny up in a capital case because probably Knowles v. Scofield to find yourself involved? the fellowes not going anywhere, he will where they got info a hassle up CLINTON: I got in completely post-trial. be conflned on death row. So the delay in Denton County about where the Jack Ruby had become disenchantedwith just follows apparently from that realiia. nearly all of his trial counsel, particularly courthouse ought to be. To resolve Joe Tonahill from Jasper. The immediate tmn. the problem, Idid research like VOICE: How can we solve it? objective was to get Tonahill out of the CLINTON: We would be well advised to I've never done before, but I fouad case. There was a lot of strategy developed try to figure out a way that at least some it interesting because it was all toward that line. Suddenly the question grounds of error could be raised like they historjcal. cameup ahoutwhetherit was Jack Ruby's used to he through a Bii of Exception. real desire. Somebody found an affidavit It does not require a Court reporter to in the file, that his sister had sworn to earlier, questioning his competence. That transcribe all the notes of all the trial. We wuld encourage participants in many lems that we accept to resolve, and do it immediately implicated whether hefredy, case to have some sort of stipulation about in the hope of a more judicious way so knowingly, and intelligently decided that the record, what the testimony was. that maybe the first time the opinion he didn't want Joe Tonahill. An interest- VOICE: Do you think that the Federal goes down it will hold up on rehearing. ing thing happened in all of that; we, five Courts have too much or not enough in- VOICE: What are your feelings on cam- or six lawyers, decided maybe we would put in post conviction habeas corpus ceses? eras in the Courtroom, &st in the Trial fare better if the presidimg judge, Joe CLINTON: I have no quarrel with the Court context and, beyond that, in your Brown, was no longer presiding. He way it is now, 1 think particularly the own Court? started taking notes in anticipation of Fifth Circuit Court does its dead level CLINTON: We don't allow cameras in the writing a book. So we moved to recuse him best to Fid what the answer to whatever substantial federal question is presented and resolved. WILLIAM VOICE: BRIAN WICE is a cnminal defense Has the fact that the Courts of attorney iu Houston who recemed his BA. Appeals have acquired criminal jurisdio from tke Wniversity of Houston with hlgh tion eased this Court's work load like it honors in 1976 and hrs J.D. from the Unzva was anticipated? srty OfHouston'sBates Colle@ofLowin 1979. CLINTON: It sure has. A former briepng attorney to Judge Sam Houston Clinton of the Toras Court of Crimi- VOICE: Are you happy with the way the nal Appeuls, Wice H articles kwe apmredin a system is working right now? number af low jomols including the Texas CLINTON: Not yet, but as I look at it, in &u Journal, Houston Law Review, SouthTa- the future it may work out more ot less as Law lourrwl, St. Mary's Law Jouma1,rmd the National Journal of Cdndnal Defense. His like it was intended. The problem of the most recent article for the VOICE was on the work load of this Court was that it was use of psyehiumc tesnmony in non-coprtal created by the fact that there was a bad CRSeS. estimate of what the situation would be Co-mthor afa feature article on the Rob- ert Vernon Bruce murder case for theFebruary on September 1,1981, when a good num- rsme of D Magazme, Wice isplanniing on wrir- ber of cases were to be transferred to the ing a bookon hisexperiencesas 4 b~efingnt- Courts of A~ueals.I don't know where tw'nw at the Texus Court of Crimmnl Appeals.

April 1984/POICBfor the Defense ?" because he had a conflict. CLINTON: Back to Burka, he remarked my Courtroom on Wednesday morning at VOIGE: It is true that he attempted to on that. He said I was a student not only 9 o%lock,I set my own time. I don't have copyright the Court Reporter's note? of the law but also the Court and that I anymore deadlines like I uwdto. I haven't CLINTON: I'm not sure. That's what spend a lot of time delving into the per- found what the worst part of the job is, everybody said, but I'm not sure. I seem sonalities of the judges and in the history at least not yet. to remember it was in December or so of Court and he's exactly right. One rea- when we went out to speak to Jack Ruby son that I do that is because I think it who was by then hospitalized. Before he helps to understand what the judge 1s say- died, we did get a reversal of the convic- mg in his opinion better if you understand (Ed Note-Om eternal gratitude to con- tion. more about the judge. tributor Brim Wice, not only for assemb- VOICE: Your office is decorated with VOICE: What's the best part of yourjoh ling this piece for the VOICE, but for his pictures of judges from the 1920s. What and the part of it you don't lib? contributions on concept, layout and about this preoccupation with these CLINTON: The best part of my job is, photography, pianning for which began ancient judicial personalities, can you learn except for heing in conference on Man- last year, well before the politfcal semen anything from them? day morning at 9 o'clock and sitting in opened.)

DWI Report -

Blood Alcohol Accuracy Questioned

From The AlcoholRese~~~chCenter, University of Colomdo 1 Def&g a "drunken driver" by mea Tolerance for alcohol can he built up with large alcohol doses. suring blood alcohol level gives little indi- both over the long term-through regular "In these tests, we're dealing with nor- cation of how impaired the individual's drinking-and in each individual encounter mal people, not alcoholics," Robert NO- judgment or physical responses actually with alcohol, according to research Erwin min said. Much of the information on are, according to studies at the Alcohol has undertaken with colleagues Robert alcohol has involved alcoholics or individ- Research Center at the University of Plomin and Jim Wilson. uals with what the scientists call "chronic Colorado, Boulder. In the laboratory, volunteers were given acquired tolerance," not average folks. Blood alcohol level, whether deter- alcohol mixed with water or a sugar-free Generalizing from acutely tolerant people mined by "Breathalyzer" measurements, mixer (to eliminate body changes pro- to the public at large does not allow for urine or blood samples, yields an objective- duced by sugar) until their blood alcohol the wide variations of individual differ- sounding number. But that figure tells level was 0.10 percent. At that level, most ences, they note. "The old 'mdl over. buddv. and let's little about one's ability to drive or func- people performed poorly in terms bfjudg -. *. tion while "legally" drunk. ment, balance, muscle control and other see you walk this straight line' approach "Individual differences in response and physical tests to determining d~nke~essis a much tolerance for alcohol vary so widely that When kept at the same level of drunk- more accurate way to see how impafred one person may be incapacitated by a enness for three hours, however, some an individual may be," Rohert Plomin leskthan-the-legal-limitalcohol dose, while gradually improved their performances. said. The roadside drunk-or-sobertests of others show almost no response to a fairly After building up their tolerance for alce performance are gradually being aban- high blood alcohol reading," accordmg to hol in the laboratory situation, roughly doned by law enforcement officers around Gene Erwin, director of the Alcohol Re- analogous to social drinking, some people the country, however, since the tests re- search Center and professor of pharma- were able to perform as well while legally quire subjective judgment-the officers' colow. drunk as they had when sober. perceptions of the drivers' abilities. 6;th an aequued tolerance for alcohol Others were not able to match their Most state laws now defme drunken adindividual gcneti~.differences account sober pcrformancelevel. These individuals, driving by blood alcohol level, a measure for the wide variations in resoonsc. he ex- the researchers believe, lack either the in- . " plained. heriied or acquired ability to function (confinued on page 33).

30 VOICE for the DefenselApril1984 Voir Dire bv Counsel in Federal Courts

by John E. Ackerman, Houston

(Former President of the National Asso- by the parties or their attorneys as guilty. Unfortunately, innocent persons ciation of OiminalDefense Lawyers, John it deems proper.] The court may are convicted and sentenced to prisons. Ackerman, presented this statement in impose such reasonable limitations This is a much more egregious breakdown March, before a subcommittee of the Sen- as it deems proper with respect to in the system than when the occasional ate Judiciary Committee on the question the examination of prospective jur- gullty party goes free. of attorney conducted voir dire in federal ors by the defendant or his attor- As Chief Justice Burger has recently court, speaking on behalf of NACDL, and neys and the attorney for the Gov- pointed out, "No right ranks higher than in support of Senate Bill 386. His com- ernment may eachrequest,and shall the right of the accused to a fair trial."5 ments should be of interest to all TCDLA be granted not less than thirty min- One of the essential, and probably the members as well-Ed.) utes for such examination. In a case most important ingredient of the right to where there is more than one defen- a fair trial, is the right to trial by jury; INTRODUCTION dant, the court shaNallow the attor- not just any jury, but an impartial jury.6 The National Association of Criminal neys for such defendants an addi- It is extremely important that the trial Defense Lawyers, Inc. (NACDL) is a Dist- tional ten minutes for each addition- be "in fact" fair. It is equally important, rict of Columbia non-profit corporation al party, except that the total min- however, that the trial be perceived as fair whose membership is comprised of more imum time allowed each side shall by the accused. One who is convicted in than 3,000 lawyers representing all 50 not exceed one hour. a proceeding which he or she perceives as states. All members are primarily engaged DISCUSSION fair will be less likely to emerge from pri- in positions which bring them into daily Rule 24(a) currently provides that the son with a grudge against the system which contact with the criminal justice system trial judge "may" permit voir dire by the must in some way be evened out. An ac- as advocates, law professors, and other- attorneys for the parties. However, in cused is muchmore likely to perceive fair- wise. 1977, at least 75% of the Federal District ness in a system in which the accused and Among the objectives stated in the Judges in America didnot permit voir dire counsel can play a meaningful role in the charter of NACDL is to promote the pro- by counsel in their court^.^ The trend selection of the jury. per administration of criminal justice and seems to be toward the exclusive conduct The typical jury panel from which the thereby concern itself with the protection of voir dire hv the Federal .iud~es.~ - The venire is finally chosen begins the process of individual rights and the improvement purpose of this proposed legislation is to biased in favor of the government. Ques- of the criminal law, its practices, and pro- tions typically propounded by judges in A keverse that trend aid mandHte the parti- cedures. cipation by counsel in the voir dire pro- judge-conducted voir dire are not struc- tured to uncover this pre-disposition or to NACDL supports the enactment of .,,,~~--~ S. 386.1 The iudicial svstem established in the eliminate it. In fact studies have shown that jurors will deliberately deceive the THE PROPOSED LEGISLATION United 'states oi America has been an attempt to attain the fairest system pos- judge, many times cons~iously.~The judge S. 386 amend 24(a) sible for determining when, and under is the most powerful figure in the court- read:2 what circumstances, citizens should or room, robed and elevated above everyone (a) Examination: The court [may] mav be deorived of their liberties. Our iu- else. It is a setting in which honesty on shall permit the defendant or hi dicial system is a showcase for the world behalf of jurors who may have the courage attorney, and the attorney for the and one in which we are most often just- to express their doubts about their ability government to conduct the oral ified in taking pride. It is an example to to be fair is met with rejection by this au- examination of prospective jurors, the oppressed peoples of the world of thority figure. The judge frequently ques- [or] and may, in addition to such "freedom" and a goal toward which they tions the jurors in a closed manner, re- examination, [itself] conduct its can strive. quiring only "yes" or "no" answers to own [the] examination. [In the lat- Justice is also a goal toward which we questions in which the accepted answer ter event the court shall permit the must continue to strive. We must contin- is obvious. For instance, it is not unusual defendant or his attorney and the ue, in our fme-tuning of this system, to to hear questions in federal court similar attorney for the government to sup- seek to provide accused persons with the to the following: plement the examination by such fairest possible trials consistent with prac- Q. You wouldn't let something further inquiry as it deems proper ticality. The ideal system is one in which you may have read or heard about or shall itself submit to the prospec- all truly guilty persons are convicted and this case interfere with your ability tive jurors such additional questions all truly innocent persons are found not to be a fair and impartial juror,

April 1984lVOICE for the Defense ? 1 inal records. and has even used informa- kid of jobs they held. What a tragic way I Q. In spite of what you've just said, tion supplied by the Internal Revenue to make decisions that could affect the vou could set that aside and follow Sefice.70 Defendants rarely, if ever, have rest of a citizen's life! This articular F this court's instructions, couldn't access to government-maintained infor- Federal judge is not an anom&. Jury you? mation resources. Much can be learned, selections of this kind occur daily in the Q. You wouldn't hold anything however, from using trained investigators. federal courts in this country. against this defendant simply be- Such persons might talk with a potential An empirical study was done in the cause he has been indicted bv a juror's friends and neighbors, take photo- Los Angeles Superior Court system in grand jury and brought before iou graphs of their homes, look at bumper 1971, to determine how much additional for trial today, would you? stickers on their automobiles or gather time lawyers use when conducting voir information about them from other avail- dire virtually unsupervised by the court In many, if not most cases, these kinds as contrasted with court-conducted voir of questions are not even asked individ- able resources. Such information-gathering techniques, although frequently success- dire. The results are enlightening. Attor- ually to each member of the panel, but neys, virtually unsupervised, took an aver- to thevenire of 40 to 100jurors en masse. ful and helpful to the parties, involve in- vasions of a citizen's right of privacy. age of 135 minutes. When attorneys and To the extent that judges get beyond judges both asked voir dire questions the these kinds of superficial questions, and Such practices are encouraged by the lim- ited nature of voir dire in most federal average was 111 minutes and when judges into questions dealmg more specifically conducted the questioning alone, the with the facts of the particular case on courts Thus the defendant with sufficient average was 64 minutes." A Missouri trial, the judge is poorly equipped to deal study in 1970 found that attorney- with responses received from members funds and the government with its vast re- sources are not totally dependant on the conducted voir dire consumed only 9% of the jury. Thls is particularly true in of the total trial time.12 criminal cases where the judge likely has extent of available voir due examination. The poor defendant, the indigent, how- Should time be such an important fac- very lttle knowledge of the issues and tor in the conduct of trials that we should nuances of the case. ever, must be totally dependent on voir dire to acquire information about the be unwiIling to spend 10% of the trial As the Fifth Circuit has recently point- time in an attempt to get a fair and im- ed out: background of potential jurors. One generally encounters two argu- partial jury? If time is such an important While Federal Rules of Criminal ments in opposition to attorney-conducted factor, why not require attorneys to Procedure 24(a) gives wide discre- voir due; (1) that it is time-consuming, submit opening statements to the judge, tion to the trial court, voir due may and (2) the attorneys abuse the privilege so that the judge can edit them and de- have little meaning if it is not con- by using it as an opportunity to argue liver them? Why not prohibit the attor- ducted at least in part by counsel. their cases. neys from conducting the examination of The "federal" practice of almost There- is no auestion. but that it takes the witnesses, since such examinations exclusive voir dire examination by more time to allow attorney-conducted frequently consume more time than the the court doesnot take into account judge would have consumed had he or 1. voir dire. Voir dire should take more time. , the fact that it is the parties, rather It is perhaps the most crucial part of the she been doing it? In short, why not do than the court, whohavea full grasp trial. If in haste we are choosing biased away with the adversary system of justice, of the nuances and the strength and and prejudiced jurors, then what follows since it consumes so much time? weaknesses of the case. "Peremptory in the trial is justice only by accident, not The second reason most often heard in challenges are worthless if trial by design. Consider the nature and extent opposition to attorney-conducted voir dire counsel isnot affordedan opportun- of the background investigations which is that the attorneys abuse the process ity to gain the necessary information are conducted whensomeone isnominated by asking improper questions of the panel. upon which to base such strikes." for appointment to the federal bench We Why is it that judges who do such a mar- [citing numerous cases] Experience are concerned that those appointed to velous job of controlling improper ques- indicates that in the majority of such positions have nothing in their back- tions of witnesses, improper opening situations questioning by counsel grounds which may cause them to be pre- statements and improper argument, can- would be more Wsely to fulfd this judiced, biased or impartial. The FBI con- not control improper voir dire? The argu- need [information upon which to ducts a lengthy and searchi inquiry. ment is specious. base peremptory challenges] than And yet, when we choose the twelve per- Chief Judge Donald P. Lay, of the an exclusive examination in general sons who are actually making guilt/inno- EithCircuit Court of Appeals has writ- terms by the trial court.g cence determinations in serious criminal ten on this subject. Judge Lay says that: Making the Anal decisions regardii trials, it is frequently done in as little as "The judiciary is fooling itself when it challenges for cause and, more especially, 15 ,minutes with no searching inquiry thinks it can improve the administration peremptory challenges is a task, the eff- whatever. of justice by conducting the voir dire ex- eiency of which is dependent on the na- For part of my career as a triallawyer amination of a jury."'3 Judge Lay points ture and quality of information available I practiced before a federa1 judge who out that while he sat as a trial judge he to the defendant and his or her attorney. prided himself on his ability to choose a conducted part of thevou dire,but always Wealthy or moderately wealthy defen- jury in a criminal trial in less than 15 min- allowed lawyers to become involved. He dants, and the government can retain ex- utes. Exercising peremptory challenges in says that: 'Whatever the reason, it has perts to gather information on the back- that court was a frustrating process. It been my experience that jurors are more grounds of themembers of the jury panels. had to be done almost exclusively on frank and candid in responding to the The government has access to their crim- what the persans looked like, and the lawyer's questions than to the court'^."'^

32 VOIC'Efir the DefenseJApril1984 RECOMMENDATIONS They were taxed and otherwise governed '%e American Pubkc, the Medsa and the without a voice, without representation. Judicial System," Research and Forecast, The National Association of Criminal Inc. A poll conducted for the Hearst Cor- Defense Lawyersstrongly urges enactment The touuhstone of the revolution was porat~onIn this rtudy 59% of thosepolled of S. 386 for the reasons stated above. We "freedom." Trial by jury was an essential bel~evedthat it was incumbent upon a de- urge, however, that the lepslative history ingredient in the constitutional scheme fendant m a cnmmal case to pxove his reveal clearly that the time factors set out which developed. The government could innocence. 32% of the college graduates not deprive a citizen of his or her "free- did not know that the accused did not in the bill are minimum times, to be en- have to prove his innocence and 48% of larged depending upon the complexity dom" except by the consent of their peers, the high school graduates d~dnot knaw it. of the issues in the case. The limitation to other citizens. If we no longer have the time or the patience to allow citizens ac- 8. See Babcoek, 'TOEDue: Preserving Its 30 minutes should be for the simplest of Wonderful Power," 27 StonL.Reu. 545 trials and should increase in accordance cused of crime to he represented by coun- sel who can meaningfully participate in (1975). At page 547 the author discusses a with the increasing complexity of the study done inthe 4te 1950's of23 consee case. the process of jury selection, then what utive jury tmlS in D Federal District Court other threads of the fabric of freedom In the M~dwest.Ths study is published m: must also fall to these expediencies? Broeder, "V~ir Dire Examination% An Empirical Study," 38 S,Cnl,L.Rev. 503, 511 (1965) In one ease for example, in a Jury semvice is the one remaining op- panel which was questioned en mars portunity for the ordinary citizen to play FOOTNOTES regarding their knowledge of the parties or their lawyers, three persons wound up on a direct role in the governing process. 1. NACDL also supports S. 677, the compan- the jury who had sunply failed to respond to Serving on a jury is a lesson in citizenship. ion bill to S. 386 which wouldamend Rule the queshan. One knew the plaintiffs Citizens who have served on juries have an 47 la). . of the Fedetal Rules of CivilPraca- famfiy very well and was famiir with enhanced understanding and appreciation rluru, hut we arc 3i course primarily cun- intimate details of plaintiff's marriage. of our conatitutional form of government. urncd with 1hr 1;edernl Ruler of Criminal Two others had substanha1 personal and Procedure. businass contacts with lawyers in the case. They feel that they are a part of it. Their In another case, a recent acadent vdm sense of alienation from their govemment 2. The bracketed material is ~emovedfrom failed to speak ant when a general ques- is lessened. and the underlined material is added to tlon was asked regardmg whether any The erosion of attorney-conducted exlstbng Rule 24(a). member of the panel had been in a serious voir dire is a step in the erosion of trial accident. She commented later to othez 3. Bermant, Conduct of the VoirDire Exnm- jurors that she probably should have said by jury. An argument against attomey- ination Prartices nnd Opin~onsof Federal something, but was too nervous to do so. conducted voir &re is an argument which DistriCf Judges, Federal Jndlcial Center, says jurors are unimportant to the process; 1977. 9. Ueited Sates v, file, 630 F2d 389 (5th their feelings and biases and prejudices Cir. 1980). 4. See United Smes v. Bk, 630 F.2d 389 are unimportant to the process. Two states (5th CX. 1980). footnote 8. at page 395. 10. See Unzted Stures v Costello, 255 F.2d now allow less than unanimous verdicts 876 (2nd Cir. 1958). in felony criminal cases. There are propo- 5. See Press-Enterprise Co v. Superior Court sals to eliminate trial by jury in complex of CaL, 104 S. Ct 819,823 (1984). 11. Babcoclgsupra noteat 563. cases. 6. Constitution of the United States, Article 12. Id. When this govemment was established LU, Sectron 2, Amendment VI. following the Declaration of Indepen- 13. Lay, 'In a Fair Adversary System the Law- dence, it was established in response to 7. Bennett and Fogelnest, '"ITIe Need forb- yet Should Conduct the Voir Dire Exam- governmental tyranny. Citizens were is* dividual, Seqneatered, Attorney Conduc- ination of the Jury: 13 The Judges lour- ted, Voir Dire," Philadelphia Bar Assoc~a- nal 63 (July, 1974). lated and alienatedfrom their government. tion, Cnminal Justice Ssct~onNewsletter, They had no input into its functioning. Vol. 111, Issue 1, Febntaty, 1984. Citing 14. Bid.

DWI from page 30 actual abilities, should be as enforceable years, incorporates fmdings from more as the arbitrary 55 miles-per-hour speed than 100 individuals, including siblings which does eliminate this subjectivity. limit, Plomin said. and identical twins. One of thelong-term Dubbing such drunk driving laws The Alcohol Research Centet at the goals of the research is to learn more "driving under the influence" or "driving University of Colorado in Boulder is one about the genetic basis of alcoholism and while ability impairec however, is a step of three centers nationwide funded by a alcohol response. in the wrong direction, Plomin cautioned. ,grant from the National Institute for Some people are dangerously impaired Alcohol Abuse and Alcoholism md dona- below the legal blood-alcohol limit, while tions from private orgainzations interested (Ed Note- Olrr thanks to TCDLA stdwarts those with acute tolerance show almost in alcohol problems. The center is an in- Lou Dugas, Orange, and "Rusty"Duncrm, no change at higher-than-legdlevels. terdisciplina~yeffort which includes indi- Denton, for providing infomation fmm Setting an arbitrary blood alcohollimit, viduals from the departments of phanna- the Alcohol Research Center. Readers in- without trying to define impairment, cology, psychiatry, anatomy, behavioral terested in delving deeper into the more avoids a legal pitfall. Simply making it genetics, psychology and pharmacy. technicaI aspects should contnct Lou who illegal to drive with a blood alcohol level The research in individual responses to has copies of the actual studias on which above a certain point, regardless of one's alcohol, undertaken over the past six rhis report was based.)

April 1984/VOICEfor the Defense 33 consequences of such a plea. In Boykin V. Alabama, 395 U.S 238 (1969), the Supreme Court held that a plea of guilt houghts From can not be accepted by the Court with- out frrst showing that a proper ad- monishment by the Court has been Behind the Walls ( made and that the defendant under- stands completely what the conse- quences are of his plea. If the defen- dant is not aware that a substantial mcrease m punishment is to follow such a plea, that should clearly be held not to be an intelligent plea due to no admonish- understand what he or she is about to do ment by the trial court as to the auto- in pleading one way or another. matic increase in punishment. In my specific case, William E. Spauld- A substantial segment of correspondence It is most discouraging to note that v. an individual who is facing a substantial ing, IU The State of Texas, Cr. 13-81- received by the VOICE each month comes 400, Thirteenth Supreme Court of Ap- with a return address of one unit or another amount of prison tune may get even more time because the admonishments are not peals, Corpus Chrlsti, Texas, affirmed of the Texas Department of Correct~ons. June 9, 1983, the court addressed this In rhe past, most of this correspondence given, and out of fright, confusion, or just ground of error as follows: has appeared solely in the 'Letters to the not being well versed in law, pleads "true" Editor" columns of this journal. In the without first knowing what the conse- Appellant challenges the sufficiency belief that the vorces from behind those quences of such a plea might bring in the of the evidence to support the sub- walls should not fall on deaf ears, we have way of further sentencing vulnerability. mission to the jury of the enhance- created this new department for widening In Chapter 14 of the American Bar ment paragraph of the indictment the scope of what we hope will become a Association's Standards Relating to the in th~scause. Appellant pled "True" meaningful dialogue bemeen those en- Administration of Criminal Justice, deal- to the enhancement count at trial. gaged in the practxe of crimmal law and ing with Pleas of Guilty, specifically in He has waived the right to complain our "pnpaLE,"in their essays, articles and Standard 141.4. (Defendant to be Ad- of the sufficiency of the evidence letters. Ed. vised) (a) (iii), the following was set forth on the count. No error presented. as proper predicate when accepting a plea To take this step-by-step, we need to of guilty to an enhancement charge of an look at the totality surrounding this plea indictment. of "True" to the enhancement paragraph that, if the defendant has been pre- First of all, the enhancement paragraph Dear Editor. viously convicted of an offense and alleged in the instant indrctment, was that the offense to whch the defendant of theft from the State of Louisiana, Par- After readmg several issues of VOICE has offered topleadisone for which ish of Baton Rouge, but there had never for the Defense, paying particular atten- a different or additional punishment been an indrctment rendered, but rather tion to the section devoted toletters you is authorized by reasons of the pre- the plea of guilty to the theft charge was recewe from inmates of the Texas Depart- vious conviction or other factors, made upon a Bill of Information with ment of Corrections, I felt it was about the fact of the prevlous convictions two other charges being pled to at the time that I, too,voice an opinion about a or other factors may be established same tie(fraud to acquire accommoda- very unclear matter of law, that as of this after the plea, thereby suhjectmg tions-issuance of worthless checks). All date, has not really been dealt with by the the defendant to such different or three charges were presented on the same courts of this State, nor has there been a additional punishment. Bill of Information, and all three charges proper predicate laid by ttie judicial com- were pled guilty to upon this same Bill mittees governing the courts. If a defendant to a criminal matter be- fore the tribunal is asked by the trial court and not an Indictment as was alleged in The matter of law I am referring to, the Texas indictment for enhancement -"What are the proper admonishments to judge whether or not he (the defendant) is the same person that was charged in the purposes. Secondly, upon being asked by be given a defendant when he or she is the trial court judge the following: facing a plea to an enhancement portion enhancement paragraph of the indictment of an indictment?" of the primary offense, without first Court You have heard the readmg of After lengthy study of this problem, as' properly advising the defendant that the indictment by the District I, too, am faced withthis in my individual his plea will automatically constitute a Attorney wherein it is alleged case I am now fighting in the Courts, I substantial increase in punishment as an that you committed an offense, have found that there are no uniform pro- habitual status, this should be held a and you heard theDrstrict Attor- cedures to be followed by the courts, and violation of the defendant's right to due ney read that on the 17th day of what procedures that have been set up for process of the law. March, 1977 in the Parish of such admonishments are rarely used by In other words, the Court can not sit East Baton Rouge, State of the mdividual district judges where a lay- there and say that such a plea was made Louisiana. Did you hear that? man of thelaw, who is facing such matters by the defendant intelligently when he Def.: Yes, I did, sir. before the trial court, would adequately (the defendant) was not aware of the Court: Is that true or not true?

34 VOICE for the DefePlse/April1984 Def.: That is true. Respectfully submitted, I am not referring to a vindictive or Court. Let the record show that your WILLIAM E. SPAULDING, 111 nuisance case, but one that would make a plea of true to the allegation in No. 297304 little noise and establish precedent in the enhancement paragraph is re- P.O. Box 32 Texas law relative to forged indictments ~eivedby the Court and ordered Huntsville Unit, and the vindictive habit of appointing filed as your plea to the enhance- Huntsville, Texas 77348 ineffective counsel. I am in pro se prepar- ment portion of the indictment. ing for habeas corpus appeal to the federal (lkose who wish, please R.S. TP. direct court, Dallas division. In attacking the sufficiency of the evi- to Mr. SpauldZng.-Ed.) Everyone thinks their case is an excep- dence to support the enhancement para- tion, but this one supports my allegations. graph of the primary charge of the indict- It is unbelievable in the annals of criminal ment, I submittedmyPro se Supplemental Dear Editor: law. Appeal Btief, setting forth excerpts from I am a prisoner presently confined at the Statement of Facts, clearly depicting the Ramsey Unit I1 of the Texas Depart- Sincerely, that at no time did the trial judge admon- ment of Corrections and serving a fify THEODORE R. CASTILLE ish me that upon the acceptance of a plea year sentence for the offense of rape out No. 05003-035 of "True" to thisenhancement paragraph, of Bexar County, Texas. I have been in Marion, Illinois 62959 the punishment would automatically be TDC since October, 1973. During that raised from a minim of (5) five years time I have been studying all I can about (Interested parties please contact Mr. to a minimum of (15) fifteen years. The the criminal law, and court proceedings ChstiUe direct-Ed.) only finding this judge made, is that I was here in Texas. I am finding it difficult to the same person alleged in the charging understand the working of the criminal enhancement paragraph. There was no law since it is hard to find legal material Dear Editor: finding that this was a final conviction, and books within TDC to aid me in learn- I received several letters of apprecia- that the conviction was a legal conviction, ing all I can about the law and procedures tion from attorneys who are practicing or that the convictionwas, in fact, afelony thereof. criminal law and do appellate work con- offense. At the present time I have a writ of cerning my article on bridging the gap in In being a layman of the law as I am, it habeas corpus pending in federal court in attorney-client relationshrps on appeal. I was made known tome too late to further Pan Antonio. The issues thereof are (1) just want you to know how much all of challenge on direct appeal, that the alleged Article 1.14 of the Texas Code of Crimi- us appreciate the availability of the col- enhancement conviction was in fact had nal Procedure, as in effect at the time of umn: "Thoughts From Behindthe Walls." upon a bill of information and not an in- my trial, is unconstitutional; (2) The State Thank you. dictment, as alleged in the Texas indict- should not have been allowed to waive I recently was featured in THEHOUS- ment, that the prior conviction alleged the death penalty; (3) I was not afforded TON POST Editorial Opinton section for enhancement was from apleaof guilty a sufficient number of peremptory chal- with an article on capital punishment. I to the Bill of Information with no jury lenges; (4) Photographs used in a lineup received a lot ofmail because of that arti- waiver being signedin Louisiana, or waiver were suppressed by the prosecution; (5) cle too. One letter came from the first of indictment, and that the trial judge did The Texas statute proscniing rape vio- assistant County Attorney of Harris not properly admonish me to the maxi lates equal protection; and (6) Evidence County who thought it was quite enlight- mum sentence allowed upon such a plea. was improperly admitted at trial. ening. I do know that in not establishing the I would l&e to obtain legal material proper predicate of admonishment and on proof of corpus delicti, criminal law, In Service to Humanity, not proving the elements of this prior, constitutional law, and any material on WILLIAM CRAZY-HORSE COPPOLA that I have been serving a sentence that the issues above. As stated before, I No. 283650 could have long ago been turned about. would like to learn all I can about crimi- Ellis Unit Having all the documents necessary and nal law, proceeding, etc. Any assistance Hunstville, Texas 77343 knowing that there iserror, but not know- in this matter will be greatly appreciated. ing how to go about attacking it, is most discouraging, to say the least. Very truly yours, I am hoping that this letter to you, GORDON 0. DeVONISH ASSISTANT FEDERAL PUBLlC may bring me some response from those No. 235129 Ramsey Unit U DEFENDER for the Western Dis- who may be interested. Route 4, Box 1200 trict of Texas, positions in San Any responses to this letter would be ,Rosharon, Texas 77583 Antonio and El Paso. See 18 U.S.C. appreciated. I have for several years now 53006A. Must be bilingual (in Span- been beating my head against a brick ish), and be licensed for at least one wall in the hopes of having this matter Dear Editor: year. Federal criminal trial exper- resolved by the Courts, but without the There are several inmates confmed ience preferred. Resume or Standard 'proper legal know-how, I am afraid that I here in Marion without adequate financial Form 171 to Lucien B. Campbell, am about at the end of hope for some resources to hire a lawyer. Federal Public Defender, 727 E. Durango Blvd., B-138, San Antonio, thina to be done. Thank vou for aivina Is there anv reasonable "self help'" - -.... me the o~portuniw-. to &are thiileRai manual fhat coild be reasonably obtained, I leXaS78206. I problem. especially relative to Texas courts? I I

April l984IVOICE for the Defense 35