FOR the DEFENSE Offic~Aljournal of the Texas Crimmal Defense Lawyers Assocrallon DECEMBER 1'990 DECEMBER 1990 - ....%NO
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t FOR THE DEFENSE Offic~alJournal of the Texas Crimmal Defense Lawyers Assocrallon DECEMBER 1'990 DECEMBER 1990 - ....%NO. 11 I Y@ICLE(FOR THE DEFENSE I VWCEfor tbe DBfww (ISSN 0364-2232) is publ~shedregularly by the Texas Cnminal De Features fensc Inuyets krsociatmn, 600 W. 13th. Awl", - 35.261by ITat 7 Batson v. Kentucky and Article George Tews 78701, (512M7&2514, I8AXNo.(512)%P 9 Wng Around the Collar - Bank Fraud, Etc. by WilMam A. Wbi4Amba 9107. Annual subscription rateror mmcmbers of Mckugbfin, Kdthryn Nefter the asociation Is $100, which is included m dues. 11 Perry Mason Had Paul Drake and You're Stuck with Deputy Dog All aaicles, comrlhutions and advertising in- by Douglasj. Schulfz quiricsshould be dressed to the editor, Kony 13 Bloodstain Pattern Interpretation by Sgf. Dzrsty Hesskew P F~tzCedd,Attomeyatlaw,TwolWIeCreek 15 Specially Requested Instructions Do Make B Dierence Vtllage, Suite 17W Dallas, Texas 752194537, by Judge Jack Hmpton, 283rd Dist. Ct. (214)52&W44 Columns -3 President's Column 24 Granted Petitions for by Tim Euflts Disuetionary Review 4 Editor's Colu-A Tribute 25 D.U.I.D. Defense Technics to Judge Woodrow Seals by Roy T. Roge,~,Jr. by myP. FitzGerflld 27 DWI Practice Gems 5 In and Around Texas by Bmce A. Martin byJohn Boston 31 Forensic DNA Profiling 16 Significant Decisions Report by Juan Mfl~YifrezG~nzafes by Catherl,Ie G,eone 32 Federal Sentencing Guideline Report by BBm Habema arrd Gary Cohen News -33 TCDTA Lake Tahoe Seminar 38 Upcoming CLE I1~ograms 37 The Tdof a Drug Case Seminar 39 Tentative CDLPPTCDLA 38 New and Renewal Members Seminar Schedule Lawyer's Assistance Cbmfnittee Members DlsVict 1: Jack Strickland -et 62 *Fnkrry 500 Main St, Ste 201 Robem Y7wdhe 500 Fisk WIild~ng Port Wonh, Texas 76102 821 Nolana Anwillo, Texas 79101 (817)33810W McNlen, Texas 78501 C8061372-1217 Dkaict 4: ark Hall red R. "BnckckBiles, Jr. Douglas(512)682-4308 TWer P.O. Box 2l87 lG9 West Fergusou 622 S. Tanahua Lubhk. Tyler, Texas 75702 Corpus Chnsti, Texas 78403 (8aO763-4617 (214)595-3573 (512)8224378 Dlstrict 2: Dls(ria 5: DhViCt 7; Jeff Hlnkky Jack Zlmtoermam &Jim Iavlne Gerald H. Goldsteh, Chairman w. wWalLSt., Ste lo2 Five Pmt Oak mrk, Ste 1130 23M) Towcr Me Bdding Midland, Texas 79702 Houston, Texas 77027 San Antonto, Texas 78205 <915%3+@83 6713)55?-0300 (5i~~~MFi463 DIsViCt 31 Kent ScMer Dlsulct 8: Ed Mason 30W Texas Commerce Tower Bill White BfJ1AUtron 12221 Ment Or, Ste 85P 6~ Travis Sfret 1306 Nueces 0 1990 TEXAS CRIMINAL DEFENSE Texas 75251 Houston, Texas 77002 Austin, Texas 78701 LAWYERS ASSOCIATlON (214)991-0200 (7L3)22&8500 (512)472-0144 VOICE FOR THE DEFENSE PRESIDENT'S COLUMN Time To Speak Out by Zm Evans From time to time we have all seen some exemplary conduct and some deplorable activities on the part of police officers who are sworn to up- hold our laws and constitution. "Sixty Minutesyrecently ran a story of several police officers gone astray, to say the least. Following the story, Tim Evans wrote 'SixtyMiutes"a few thoughtson behalf of our association. Gentlemen: Yourprogram exposing brutality and perjury in the Oakland Housing Au- thority Police Department is but one the local school, and express our own example of a disease that threatens beliefs concerning the criminal justice freedom amss this nation. In our system. unthinking frenzy to "get tough on It is important to tell the other side of crime" we are destroying the delicate the stay. We would be talking to balance between police protection and future jurors; and to young people who police oppression. need to know they do have rights as There are more gwd cops than bad well as obligations under law. and I'm sure the palice officers who got Tim volunteered to share a presenta- caught up in this frenzy fist believed tion particularly adapted to groups inter- that the ends would justify the means. ested in learning about the criminal This mentality, when combined with justice system, and it was printed in the opportunistic politicians who wrap June 1989 issue of the Voicd. I believe themselves in the banner of the war on it deserves a second look because its crime, threatens our fundamental safe- approach was both appealing and guards against the inevitable abuse of thought provoking. The article follows: governmental power. Our Bill of Rights protects the inno- The pendulum of justice has gathered cent, not the guilty. If the Bill of Rights such momentum fmitsfallthrough thearc becomes a casualty of the War on of tndiv~dualliberty that it now thfeatens to Dmgs more ham will come to our way sweep up the innocent in its NS~toward of life then could be caused by all the conviction. From our observation posts, we criminal defense lawyers see this danger cocaine in Colombia. sooner than those citizens who are turned the opposite direction-on the lookout for Sincerely, crime. We must get them to look over their Tim Evans shoulders and realize it is the gyroscope of checks and balances that rightsour ship of Letters like these are fine. Every pm- state and keeps us Free. ducer is interested in the public reac- We must get this message to tkpotential tion to such stories. And, of course, we jurors and voters in our communities if we need our side highlighted periodically. are to survive the frenzy of fanaticism Equally important, however, is the commitment of each of us to reach out into the commumty, particularly within DECEMBER 1990 VOICE FOR THE DEFENSE EDITOR'S COLUMN A Tribute to Judge Woodrow Seals Thls issue of the Voiceis dedicated to the late Judse Woodrow Seals, who gassed away earlier this year. 'Tudge Woodrow Seals was a good fine man and a compassionate judge. I have never known a person who tried to and did more good for people than Woodrow." fin.John K Singleton Senior Uaited States District Judge, Housfon a** Vhen Judge Woodrow Seals died, the Federal Judiciary not only lost a fine Judge but also a great humanitarian. He was not only concerned about racial To tell you the truth, I never had the prejudice, but also religious prejudice, pleasure of meeting this man. You will women's rights, and the right of chil- not read anything here based upon dren to receive a decent education." first-hand knowledge. Jacla J- Ratoitscher, Atromey at la'w, I learned of his death through the Houston news media. The same way many of *,I you did, particula~lyif you live in the "I do not have the ability to tell Houston area. anecdotes, which is a pity, because As a matter of fact, I read some things Woodrow Seals had a bmad and outra- about him that made me wish I hadhad geous sense of humor thathe deployed a chance to meet him personally. Here constantly. He was a man of common was another federal judge who day by sense, of empathy for all kindsof people day was a really neat guy. andofconstant cheerfulness that sprang, I happened to be in Judge Jerry I believe, from his deep faith in God. Buchmeyer's Court shortly aftex Judge We will miss him around the federal Seals' death, and at that time I asked courthouse." him about the judge. The first thing I Hon. Edith H. Jones, Cfzuit Judge, heard was what a fantastic sense of United States Court of Appeat., F@h humor Judge Seals had, how he could t7dmrft bring to life just about any event. I*, I have since learned Judge Seals was "Woodrow Seals embodied all of the born the day before Christmas. On the qualities that one could ask for. He was lighter side of things, I wonder how courageous, scholarly, compassionate many times his friends asked him md a true believer in the Constitution. whether he would mind if they com- Itis indeed rare thatall of these qualities bined his birthday and Christmas pres- c;in be found in one person in these ents. He strikes me as the kind of times." person who might say "Of course not"; Went A. &ha&; Atronzey at Law, and then he would flash a certain telling KO£lslO?i grinas if to say, "But of course, I mind, M* Continuad on page 6 DECEMBER 1990 14 VQlCE FQR THE DEFENSE 1 1 IN AND AROUNDTEXAS I BY Job Season's greetings to a1from the of- ficers, <lectors and staff of TCDLA. When 1991 begins, the 72nd Texas Legislature can't be far behind. So, as of 28 November representatives and senators had pdle more than 150 blllti and resolutions in the House and more than twenty in the Senate. Of those bills and resolutions approxi- mately 65 are on topics of interest to criminal practitionem Moreon specific hills later in this column and in future issues of the Voice. By the tfme yod read this the two State Bar referenda will have been decided up, clown, or no contest if less than 51 percent of th&lawyers bothered well and me to the committee roster. to vote. In any case the results will un- Thanks for a prompt and positive re- doubtedly affect the Legislature's re- sponse. view of the State Bar Act and the Sunset Legislative pmcess. Ill go out on a limb and say I During the time I have been involved think both the dues increase and the with TCDLA legislative dforts, and new grievance process will pass, but before,webavenatopposedtbemaki~ not by much. If I err, I will stand for of cettain acts unlawfulunless doing so nine lashes with a wet noodle.