FOR THE DEFENSE Ofl~c~alJournal of the Texas Criminal Defense Lawyers Assoclat~on - JUNE 1990 VOICE FOR THE DEFENSE

I SrnvE 1990 VOLUME 19, N0.9 FOR THE DEFENSE

JOURNAL OF THE TEXAS CRJBIINAI CONTENTS DEFENSE LAWYERS ASSOCIATION

VOICE/or !lie De/eme (ISSN 036%-2232)is puhlishcdhy theTexas CrinlinalDelenseLtwyers FEATURES Association, 6w \V 13th. Austin, Texas 78701, - (512) 478-2514. Annual subscription rare for 5 A Memorial toJoe B. Goodwin 8 Child Abuse members of the association is SlW, which is @)I w'eldoll ~Iolco1116 bj, Li~rrlrrI!. 1\'01fo11, AlD. includwl in dues. 6 A Salute to Rusty Duncan 16 The Trial of \Villiani E. Taylor All articles and orher contributions should bc @]I Bill Wfod bg addressed lo the editor, Krny I' FitrGenld, Artor- CIi:l,lrckLn~rel~n~l ney at law. 3500 Maple Ave., Suite 1350, Dallas, Texas 75219, (214) 528-6030. COI.1JMNS Advertising inquiries and contraas: Allen Can- nally, AAFI Pl~hlications,1015 S. hlays, Suite 201, 3 President's Column: 18 Federal Impact Decisions Round Rock, Texas 78664, (512) 214-1771. 1989-1990.~ ~ . . A \'em Good Year by Clmr?'esIjlh nirrlKeuir~CoNir, EDITORS 6y J.A. (/in11B&O' 19 Motion Practice: 4 Editor's Colum~~- Suppleo~entalMotion to Suppress Editor, VOICEfol- tlie IIge~m The Special Plea of Double Evidence: Roadblocks Kerry P. FitzGer.11d- Dallas Jeopardy in Hnl~isor~u. Stnte Brief in Suppoa of Motion Business Editor 01' Ker~yI? FitzGe~nlrl to Suppress: Roadblocks ER. "Buck" Files,Jr.-Tyler 7 View from the Bench Memorandum Opinion Associate Editor b~,Judge ZnITJ' Cis1 and Order: Roadblocks Jack V. Strickland - Fort Worth 14 In and Around'l'exas 31 Granted Petitions b,,Jolin Bosto)~ for Discretiona~yRe\k?w Editor, Signlflcant Decisions Report 32 Significant Decisions Report Catherine Greenr Burnett Houston 15 Letters 6,' Cnllimine G'ee11eBlrl'nell OFFICERS President NEWS J.A. 'Jm" Boho - Odessa -5 Lnvycrs Assistance Cotnmittee Memlxrs Presldent-Elect 13 MC1.E Accreditation Changes Tim Evans - Fort Wbrth 15 Assistant Federal Public Defender Position First Vice-President Available in San Antonio Richard Alan Andcrson- Dallas Second Vice-president CLE Gerald H. Goldstcin SanAntonio - Secretary/Treasurer 24 The IIonorable M.P. "Rusty" Duncan, Ill TCDLA Criminal Law Short Course David R. Bixs - Houston 28 The 1930 Advanced Criminal La\\,Coulsc Assistant Secretary/Treasurer DIRECTORS Ronald L. Goranson - Dallas STAFF Executive Director John C. Boston Administrative Assistant I.illian Sumrnarcll Secretary Shannon Mclntosh

@ 1990 TEXAS CRIMINAL DEFENSE I.A\YryERS ASSOCIATION

JUNE 1990 I VOICE FOR THE DEFENSE PRESIDENT'S COLUMN

PAST PEISIDENTS 1989-1990 .. .A very good year

byJA QimJ Bobo Mv, vear. as President of Texas Criutinal Defense Lawyers is rapidly coming to an end. I have enjoyed my year as president. It has been a great honor for a solo practitioner fma smaU town in West Texas to seme as president of this oigani.mtion. I stop Edward A. Mallett and think that many things that I Houston<1988-89) wanted to accomp1ish had been left Charles D. Butts undone. There are many things that I San Antonio (1987-88) wanted to accomplish that have come to fmitation. I am lookimg forward to Knox Jones Mdlen (1986-87) Tim Evans coming in as our new presi- dent and canying ow organization to a hubDugas Jr. bigger and better year than we have orange (1985-861 ever experienced. Cwon I. "Scrappy"Iiolmes 1989 was a very good year. It began most state criminal bars in this area. We Langview (1984-85) with a Presideht'sretreat in Sweetwatcr, can do so much more if we just will. Texas. In thaf meeting we formulated Thomas G. Sharpe,Jr. This year we began using name tags Brownsville (198383-%1 and excellent game plan to get TCDLA at all of our Functions. it has really on its feet financially, maintain ow helped the new and old board mem- Clifford W. Brown membership numbnand increase our Lubbock (1982-83) bers get acquainted with one anothet continuing legal education. Many kard much qufcker. It also helps members Charles M. McDonald working people made this year a suc- fmd out who their board members are Wac0 (1981-82) cess. Ourhome office staffofJohn Dos- and gives them a chance to remember ton, Lillian Summarell and Shannon Robert D. Jones their name. Friends ofTCDLA have also Austin (1980-81) McIntosh did all OF the things that I used name tags so that we know who requested of them and more. Each one the wives are now instead of having to Mncent'walker Pa of them walked the extra mile for me. ask someone "who is thaf lady?" I have Dallas Cl979-803 The hardand Executive Committee to admii that I may have stolen their George F. Luquette got a real "treat" coming to Odessa, idea to we name tags. I 'eally should Houston U97&79) Texas for the September Bnard Meet- say "Thanks, Rita" who is president of ing. Dos Amigos was one of the more Friendsof TCDLAforgivingmetheidea Emmett Colvin unusual evenings they will have for Dallas (1977-78) andach~altyoKieringthenametagsforme. quite some time. West Texas even Our eontinuing legal education was Weldon Holcomb provided rain and tornado warnings for exceltent this year. The State course Tyler (1976-77) pan of the evening and finished with a made more money that it ever has C. Davld Evans cool evening fordancing at Blue Jean's. before thanks to the office staffx the San Antonio (1975-76) Fmancially we are in better shape speakers paying their own way, and now that we have been inseveral years. Qur cutting back on hotel expenditures. George E. Gilkerson Lubbock (1974-75) Don'tplan to rest on your laurels If we Ron Corensonpnt together the Federal are to be an effective force in the legis- Seminar in Dallm and made it our big- PliU Burleeon latureand in the State ofTexas wemust gest money-making federal course to Dallas (1973-74) raise more money to lobby, pay off our date. Kent Shafer, chairman of the Con- C. Anthony Pdom, Jr. buildfng and change our imagewith the tinuing Legal Education Committee put Houston U972-73) public. If every member does his share the "whip cream and cherry" on the we can truly become a moving force in Continuing logal Education Sunday by PrankMaloney the legislature, the State Bar, and the pulling off a joint seminar with N@tion%l Austin (1971-72) State of Texas. We sale miles ahead of mnlfnuedorilmge47

JUNE 1990 VOICE FOR THE DEFENSE EDITOR'S COLUMN The Special Plea of Double Jeopardy in Harrison u. State

Several times in the past I have SPECLQL PZEA OFDOUBLE reprinted motions used in cases in this JEOPARDY column, as well as elsewhere in the TO THE HONORABLE: JUDGE OF magazine. SAID COURT: On April 18, 1990 the Court of Comes now, BOBBY HARRISON, Criminal Appeals reversed the judg- Defendant in the aboveentitled and ment and ordered the information al- numbered cause, and moves the court leging hindering apprehension to dismiss with prejudice this cause on dismissed. The Court held that tllele the basis that the Defendant has former- statutory and state and federal constitu- was no manifest necessity shown for ly been placed in jeopardy forthesame tional rights to be protected against the declaration of a mistrial. Harrison u. offense, and in support of such motion beiig put m jeopardy more than once shows: Stute, S.W.2d(No. 1048-89, for thesame offense. I. del. April 18, 1990). WHEREFOKE, the Defendant ptays OnJune 11,1984,the Defendant was that court grant this motionand dismiss On May 2,1990 the Court again ap- duly brought to trial in theCounty Court the above-entitled and numbered plied the double jeopardy clause in at Law No. I of Collin County, Texas, in cause with prejudice. favor of the defendant. Stephens u. Cause No. 1-1530-835, entitled State v. Respectfully submitted, State, -S.\V.2dd(No. 914-88, del. Bobby Harrison on an informarion RAYMOND G. WHELESS May 2, 1990). Stephens was initially charging Defendant with hindering ap- HARDIN, WHELESS, convicted by a ju~yof aggravated rape prehension. Defendant pled not guilty, WMKER & SLOAN and sentenced to twelve years. On ap- a jury was impaneled and sworn, and 1715 Avenue K peal the Dallas Court of Appeals found the not guilty plea was entered. Plano, TX 75074 the evidence insufficient and leversed 11. 214424-7594 and ordered a pdgment of acquittal. Without being requested by Defen- State Bar No. 21265200 Stephens u. State, 683 S.W.2d 23 dant, tlle jury was discharged and a AmORNEY FOR DEPENDANT n~istrialdeclared before a final verdict Pex.App.-Dallas 1984). The Court of VERIFICATION was rendered in Cause No. 1-1530-83.5. Criminal Appeals aErmed. Sfephm~su. BEFORE ME, the undersigned The mistrial was declared on the authority, on this day personally ap- State, 71 7s.1K2d338 CIm. Crit,z. A@. ground that the State announced to the 19862. peared RAYMOND G. WHELESS, who Court that it intended to call after being duly sworn stated; Becausethistnatterofdoublejeoprdy Defendant's attorney to the stand as a "I am the attorney for the Defendant seems to be of increasing interest and witness in the case. The State requested in the above-entitled and numbered inlportance to defense p~actitioners,we the Court to disqualify Defendant's at- cause. I have read the foregoing special contacted Raymond Wheless, the torney in the case since he would be plea of double jeopardy and swear that defense attorney for Mr. fiarrison called as a witness and cited as its all of the allegations of fact contained above, who obliged us by selling the authority Bat IVbeeler's, Inc. u. Rllf- therein are true and mnect." Special Plea of DonbleJeopardy that he Jho, 666 S.W.2d 510 (Tx. App. Dist., 1983). The Court mproperly granted Raymond 6. Wheless filed in that case, which ultin~atelyled ORDER to a dismissal of the charges. The the State's request since the testimony of Defendant's attorney would not have On this the day of opinions referred to are easily ob- been prejudicial to Defendant but 1984, came to be heard Defendant's tainable from the Opinion Service in rather, would have helped him in his special plea of double jeopardy and it Austin or in S.W.2d when published. defense by shedding suspicion on the appears to the court that this motion The motion is set forth below in full testimony of a material witness. should be (granted m. 3r denied.) NO. I-1530-83s The declaration of mistrial in Cause ITISTHEREFOREORDERED that the STAIL Ol'lXiAS I INTMF COUNW No. 1-1530-83.5 was not required by 1bove-entitled and niunbered cause be I COURTATIAW 3ismissed with predjudice. v 5 NO 1 manifest necessityand a letrial for the HOIIHY II~RISON I coulr\'coUi\n, TFXAV same offense violates Defendant's JUDGE PRESIDING 0

JUNE 1990 VOICE FOR THE DEFENSE A Memorial To Joe B. Goodwin

Thank you very much for the oppodimity m say a few female antique dealer and a snlall child. In the llelton trial words on behalf of our late and tamented friend and fellow through the abilities of "Holy Joe'' the client received a 5 year lawyer, Honorable Joe B. Goodwin. probated sentence. Naturally this upset the Pmsecufion and "Holy Joe", as many of us called him, was a lawyer of the they insisted on a second trial which was the trial in East old school, aworthy adversary in theCourtroom and a faithful Texas. The second trail resulted in a ten year probated sen- and reliable friend a[ all times, a real gentleman in the truest tence. Incidentally the other Defendant not represented by sense of the word. "HolyJoe" received a life sentence. Some of the youngex Counsel probably do not recall that One of the greatest assets, in my opinion of Joe, wm his Joe was a US Army Air Coip and flew like a number of the courtesy, kindness and tolerance to youngandinexpelienced Brethren during the 4ig~ar".Joe never did have a pioblem lawyers seeking his advice and help. He always had time to making a decision and when he did there was no turning listen to and talk with a young Counsel that was endeavoring back. to uphold the law. Joe had no patience with a lazy lawyer, be We had the opportunity, privilege and pleasure of being he defense or prosecution, that trfed to wing tbeir way associated with Joe in a number of Criminal cases. One particular case started out in the Beaumont area, was tried through a case. Finally Joe was a cred~tto the human race. once in Belton and then tried the tbird time in Tyler, Texas. The masswe figute of Joe strolling into the Courtroonl and The facts weie particularly heinous. The client was a young then nsing to the occasion of behalf of the causeaf justice will man by the name of Fred Foy Young. He was accused of be deeply missed on both sides of the table as well as the assistingand partkipatingin the heinousmurder ofanelderly Bench that listened when Joe spoke.U

Lawyers' Assistance Committee Members District 1 : Jack Strickland District 6: Charles Rittenberry 500 Main St., Ste. 201 Robert Yzaguirre 500 Fisk Builcling Fort Worth, Texas 76102 821 Nolana Amarillo, Texas 79101 (817) 338-1000 Mc Allen, Texas 78501 (806) 372-1217 (512) 682-4308 Mark Hall District 4: P.O. Box 2187 Fred R. "Buck"Files, Jr. Douglas Tinker Lubbock, Texas 79408 109 West Ferguson 622 S. Tancahua (806) 763-4617 Tyler, Texas 75702 Corpus Christi, Texas 78403 (512) 822-4378 District 2: (214) 595-3573 rim Bobo District 7: 409 North Test District 5: Gerald Goldstein Odessa, Texas 79761 Jack Zimmerman (915)332-0676 2900 Tower Life Bldg. and Jim Iavine San Antonio, Texas 78205 Rod Ponton Five Post Oak I'ark, Ste. 1130 (512) 266-1463 P.O. Box D Houston, Texas 77027 El I'aso, Texas 79951 (713) 552-0300 (915) 532-1601 District 8: LymMalone District 3: Kent Schaffer McDonald, Harmon, Ed Mason 3000 Texas Commerce Tower Malone and Canonico 12221 Merit Dr., Ste. 850 600 Travis St. P.O. Box 1672 Dallas, Texas 75251 Houston, Texas 77002 Waco, Texas 76109 :214> 991-0200 (713) 228,8500 (817 1754-7317

JUNE 1990 VOICE FOR THE DEFENSE

A Salute To Rusty Duncan 1945-1990 by Bill Wood

Maurice Palmer ~uncan-only his friends would His wonderful sense of whimsy; chance calling him that. Part of the measure of this man Fiercely and with a unique style of diplomacy ex- we loved vds in his nameRUSTY. pressing his views on tlie law as a member of the The name beckons mental pictures ofa young boy who State's highest criminal court. played hard, was tough, and became tempered like steel His gut level honesty; on the various kinds of competition life offered him. He clidn'talways weara robe. He drove a truck, worked Tossing his wallet to friends who mantecl ro borrow on a pipeline and hired out as a money and then actually forgetting about it. He didn't keeo score on bronc buster. favors orgooddeeds. He wasalways Rusty actually struggled tlirough willing to give what he had. He in- high school. Who would have spired loyalty and generosity in his thought that pure bandana head- friends because that is what lie gave bad, rollcd up 'T-shirt, feet-in-the- to them. sand desii-e would have delivered No case was ever too controversial RIIS!~to inarguable recognition as a for Rusty. No case ever demanded brilliant jurist. He was, you know. more courage than Rusty had togive. How does one (as he would say) He was a man's man, who fought excel in life. Rusty did it by wasting to win, chased wounded bears into little time wor~yingabout the things the woods, hugged his friends, and that trouble other people tlie most. was unafraid to show people that he Uy living life on one's toes rather cared. than one's heels. Skip was always more than a As Skip put it, Rusty compressed brother. He was Rusty's best friend. 80 years of living into tlie fortyfive There was notliine", thev didn't share. that we had the pleasure of his com- Rusty Duncan Rusty's devotion to Christi sur- pany. passed every othel- commitment in Practicinglife like the law, he had his life. No one, no thing, no per- a thirst for newways to dothings that sodideal or desire, ever shared the seemed unquenchable as he pressed himself into con stage with Cliristi. That never changed. And everyone stantly more challenging pursuits and experiences. His who knew Rusty knew that. unusual accomplisltnents helped create a pathway for Rusty Duncan lived life the way tliost people ~ould him. like to if they just had the newe. Rusty had a curiosity that was remarkable for its Most lanyers of thenlselves as attor. breadth and longevity. He loved learning. Rusty knew Rusty practicing the Illore about more things than a dozen of the rest of us put [he oflls aspire to. ,,,as a lanyer, a jurist, together. a teacher, a brothel; a father and a friend. \Ye all remember him in a variety of sparkling, sensi- He wouldn't want us to mourn his death. He would tive, and amusing ways: only gruclgingly allow us to celebrate his life. God help

Parking- his motorcycle behind the Texas Chili Parlor LIS~~~~ to love his~ memolv~ with the same unembarrassed because he questioned whether the State parking lot affection that lie held f&. was ready for it; Shooting ducks f1-on1the middle of Highway 380 TOO SHORT A TIME, wearing a suit and tie after a clay in trial; BUT HOW HE FILLED IT.

JUNE 1990 VOICE FOR THE DEFENSE VIEW FROM THE BENCH

Criminal Law in the Republic of Texas

wayback in 1836, our Texas shall be deemed guilty of burglary and the law goes on to provide that after forefathers drafted our original penal upon conviction shall suffer death. receiving 50 lashes, a person convicted code which contained not only crimes Evely person wlio shall be an acces- of false swearing would "thereafter be 1x11tlie procedures tobeused in enfosc- so~yafter the fact to murder, arson, incapable of giving testimony in any ing the criminal law. l'he entire act was mpe, robbery or burgla~yshall upon coult of the Kepublic." You bet!!! contained on8 letter size pages. By way conviction suffer death. Now let's look at the crime of incest. of comparison, tlie present day penal Every person who kills another in a Imagine for a moment someone look- cock and code of criminal procedure duel shall be deemed guilty of murder ing at tlie terms of the statute prior to are contained in 14 volumes of law and upon conviction shall suffer marriage, trying to figure out what's books. death." illegal. You try and follow the Things were just more simple then, So much for having to wony about PI-ovision-get ready, get set, go; "No I suppose. Altl~ouglimany of the punislunent. You can see why there man sliall marly his mother, liis father's pmvisions drafted in 1836 would be wasn't a serious prison overcrowding sistel-, his mother's sister, his daightel; unacceptable today, some I-eview of problem back then. the daughter of his brother orsistel; the those early statutes may well give us Lesser crimes, you will be intel-ested daughter of his son or daughter, his some inst~uctionon how our present to know, didn't carry an automatic father's wife, liis son's wife, his wife's law should be written. deatli penalty. But the punish~ncntwas daughte~;the daughter of his wife's son Look, for instance, at the suiiplenray still PI-etty serious. If you were con- or daughter. No woman shall marry her all of the follo\ving crimes were defined victed of theft, you were obligated to fat he^; her father's brother, her mother's and the uniformity of punishment; "receive 39 lashes on the bal-eback and brother, her brother, her son, the son of "Eve~yperson who shall willfully be branded with the letter 'T' on tlie her brother or sister, the son of her son and ~iialiciouslykill any person within right hand." or daughter, her mother's husband, her the Kepublic or aid, abet or instigate tlie It's also instructive that the theft daughter's husband, her husband's son, killing of any person, shall be deemed punishment required that the offender the son of her husband's son or guilty of nlurcler and upon conviction im~nediatelyrestore to the owner the daughter." Conviction carried a fine up sliall suffer death. propelty that was stolen, or if he could to $1000 and imprisomnent up to 2 Eve~yperson who shall \\dlfully and not, to pay fol- the value of the goods. years. Depending on the circunistan- maliciously bun1 any clwelling house, The lashes and branding were in addi- ces, it might benrorth the risk what with store, cotton gin shall be guilty of arson tion to a prison tern1 of up to 1 yean no death penalty, lashes or branding and upon conviction shall suffer death. 39 lashes were also prescribed for involved!!! Eve~ypel-son who shall steal or en- receiving stolen propelty and theft of a With so many crimes having vety tice away any slave out of or fl-om the horse, mare, gelding, foal, filly, ass or liniited punishments available, the possession of the owner of such slave mule. crime of libel stands as an unusual ex- shall be guilty of a felony and upon If a person stole "any neat cattle, or ception. For sonleone convicted of libel conviction shall suffer death. ;I hog, sheep or goat," tlie offendel-was could be "fined in such sun1 and im- Evety person who shall by force or required to restore the property and p~isonedfor such length of time as ad- violence have sexual connection with then came the 39 lashes on the bare judged by the Coun." anotliel; contnly to the will of such back. If a person aided someone convicted person, shall be deemed guilty of rape A wise historian I know said that a of a capital offense to escape, or falsely and upon co~ivictionshall suffer death. limit of 39 lashes was iniposed because testified in a case that resulted in a Evely person who by force and it was believed then that 40 or more penalty of death, their punishtilent violence takes from the person of lashes would cause death. If that is so, upon conviction as you might imagine another any goods, money or other al-- then what a devious plot was hatched was only death. And any jailor wlio ticle of salue shall be deemed guilty of in dealing with the crimes of false voluntarily permitted a defendant to es- robbe~yand upon conviction shall suf- swearing and tampering with govern- cape must upon conviction be sen- fer death. ment records. Pity the poor soul con- tenced to the same term that was Every person who shall break and victed of these offenses, because the originally imposed on the escapee. enter into any dwelling house or store law required the defendant to nxeive As in our present code, punishment by night am1 take therefrom any goods, 50 lashes. So if 40 lashes would kill, 50 could be enhanced for repeat of- chattels, money or other thing of value would ce~tainlydo anybody in. Then conmzrrerlo~fpnfie.30ge.30

JUNE 1990 VOICE FOR THE DEFENSE Child Abuse* Linda E. Norton, M.D., ForensZc Pathologist and Medicolegal Consultant, Dallas, Tmas

Thisarticle provides both physicians parent? Certainly, the easrer path is to entitled "The Roentgen Manifestat~ons and other persons dealing with the ignore the situation. The basicattitude of Unrecognized Skeletal Trauma in In- problem of child abuse a brief synopsis has not changed. However, the litera- fants," he emphasized that a history of of the knowledge that has heen accrued NrC to date, although slow to metamor- trauma could be obtained even when in this area over many years. Mole im- phosize, has served to make flagrant the initial history was negative, pafantly, it deals with aspects of this child abuse familiar, well-documented provided that the physic~anwas able to problem that appear to be unrecog- territory. Let us follow the metamor- recognize the traumatur nature of the nized or ignored in the literature. The phosis and see where it has held. x-ray findings and approached the forensic aspects of sexual abuse in Although literature on child abuse family "correctly."" By this he meant: d~ildhoodare not covered. appeared long before 1946, the alticle (1) do not inspire feelings of guilt in the Vivid and detailed accounts of the by Caffey entitled "Multiple Fractures in caretakers; (2) point out that a healing abuse, destiuction, and exploitation of the Long Bones of Infants Suffering fracture carries amuch better prognosis cldldren are abundantly chronicled in from Chronic SuMural Hematoma" is than other skeletal disease mimicking history. Thus, it might appear curious the most often cited beginnmgpoint on fracture, such as bone tumo~s;and (3) that physicians in theunited States and the subject.' Caffey describes in detail indicate that the danger from which the abroad were slow to recognize cases of the histories of 6 infants ranging in age child was saved by jerking a wrench- abuse that today should alert the most from 2weeksto 12 monthswithchronic ing him (if that is the history) would naive intern or resident. In defense of subdural hematoma and a total be- have been far more serious than the physicians in the past, one should note tween them of 23 fractures of long damage actually done. that when clinical diagnoses rested al- bones. Read now, all six cases repre- He claimed that "the relief of emo- most exclusively on history and physi- sent classic textbook examples of tional tension . . . (had) been gratifying cal findings, 80 per cent weight was repeated assaults on these inhnts. Caf- to see," and we can certainly under- given to the former and 20 per cent to fey, however, to whom classic textbook stand why. The thl~einfants that he the latter. Since the history traditionally descriprions were not available, failed cited ranged inage from 2 to 7 months. precedes the physical examination, it is to recognize the true nature of his ob- Some of the retrospective histories he not difficult to imagine a pattern servation and remained as puzzled at obtained are condensedas follows: (1) developingwhere the physician merely the end of the discussion as he was in the parent dropped the baby fromarms confirmed by physical examination a the introduction. While he very sys- to bed, (2) the parent gmbbed the baby diagnosis that had already been estab- tematically eliminated systemlc or lo- to save it from a collapsing bassinet, (3) lished. Thus, discrepancies between calized skeletal disease, sculvy, and the parent fell down stairs with the the two were handled by either ignor- convulsive seizures as underlying fac- baby, (4) the baby's arm and legs fre- ing inconsistencies-making square tors, he was stymied in his exploration quently became caught in crib slats, (5) pegs fit into round holes-r by prof- of a traumatic etiology because "history the parent force flexed the baby's legs fering an "isn't that curious" attitude and of injury to the long bones as well as to while changing a diaper, the parent burying the issue entirely. the head, was lacking in all cases." played with the baby by thmving it in Why then is the physician today so Pahaps the first real hypothesis, at the air and catching it, and (7) an older much better able to see the obvious? least to account for long bone injury, sibling accidentally pushed the baby Has the prodigious growth of diagnos- was proposed in 1953 by Astley.' Im- against a hot iron. Silverman noted that tic procedures and laboratory examina- pressed by the preponderance of after obtaining histories of this natu1.e tions been responsible for this new defects in the metaphyses as opposed he then studied other children exposed awareness? While it is certainly true to the shafts of long bones, he ex- to similar trauma and failed to findfrac- that bone scans, computed tomo- plained that the metaphyseal fragility of hires, concludihg that a possible in- graphic KT) scans, and coagulation bone rendered some infants more sus- dividual factor may predispose some studies have become routine in the ceptible to minortsauma in those areas. children more than others to disease of work-up of suspected chikl abuse, the The fact that many of these infants also this type. We, of course, now know diagnostic laboratory must take a back- exhibited bntises, retinal separation, now what those individual factors are. seat to literature. The human mind compressed vertebrae, and other types Wooley and Evans in 1955 appear to operates most comfortably ina familiar of fractures having nothing to do with have made the first major break- environment. Ideas or findings having metaphyseal fragility was noted, but through, noting that similar "environ- nosupport in the textbooks orliterah~re apparently had no impact on the mental" factors are common to infants toa often are dismissed as ungrounded. author. suffering from, as they call it, "osseous This is particularly true when the idea In that same year, the haumatic na- discontinuity."" In their study of 12 forces one into unpleasant emotional ture of the mysterious skeletal lesions infants ranging in age from 1 to 12 areas. How can a physician accuse an was expounded on at length by Silver- months, virtually all came from en- obviously grieving and concerned man, another radiologist. In his paper vironnients in which at least one adult

JUNE 1990 VOICE FOR THE DEFENSE

exhibited either neurotic or frankly Overt child abuse probably repre- cited as contributory. If the recent psychotic behavior. The notion that sents only the tip of the iceberg. Some movement to sharply curtail contracep- these children were being physically areas that lie beneath the waters will be tion and abortion is successf~~l,the assaulted by their caretakers, though discussed later. The reader should not resulting unwanted offspring may well not stated explicitly, was ce~tainlyinl- be surprised at the lack of supporting become the focus of parental rage and plicit throughout the a~ticle.Perhaps it literature in these areas. Recognition of frustration. was the lack of explicitness or an unfor- tlie abuse of c1iild1-en in this society, tunate choice of title for this presenta- although it has come a long way, EPIDEMIOLOGY OF CHILD tion that is responsible for the relative probably has a much longer way to go, ABUSE lack of interest generated in the medical making solution of the problem at this commi~nity. Thus, it was not until 7 tinie an insill-nlountabletask. Although no sex, age, or social group years later in 1962, with the publication is inimune to the phenomenon of child of an alticle by Kempe et al. entitled INCIDENCE OF CHILD ABUSE abuse, certain trends can be iden- "The Battered Child Syndrome," that tified." Early case repons tended to widespread recognition of and interest A fair statement concerning the in- point the finger at frankly psychotic, in this phenomenon devel~ped.'~The cidence of child abuse in the United violently deranged adults addicted to authors detail not only the etiology of States is that it is undetennined. Estini- alcohol and/or drugs. Many still the frachlres and other trauma seen in ates range widely froni 70,000 to believe or at least would like to believe these infants but, moreover, charge 5,000,000, with approximately 2000 that this is true, that abuse occurs physici?ns with a duty to see that no deaths per year.16 It is reported to in- among the dregs of society, in environ- repetition of such trauma is peniiitted volve 10 children per 1000 live births (1 ments totally dissimilar to their own. to occur. per cent). In the child less than one Unfortunately, this stereotype does not Since 1962 the literature on child year of age, it is cited as the second represent the majority. As we identify abuse has increased dramatically and leading cause of death behind the sud- features which characterize child comes fro111 virtually every subspecialty den infant death syndrome; in the older abusors and abusees, the most coin- of medicine plus evety agency having a child, it is second only to accidents. My nion denominator appears to be ex- role in the protection of children. Laws personal experience is in accord with cessive stress in the former and now exist in every state making it man- this. availability/utility as scapegoat in the datory to report cases of suspected Crosscultu~dcomparisons, if valid, latter. The often used comic routine of child abuse to a social service or law would tend to indicate that abuse is boss yelling at husband, husband slap- enfol-cementagency. At least one civil more prevalent in the UnitedStates than ping wife, wife spanking child, and suit against a physician for failure to in most other modern societies. Cor- child kicking dog depicts a pathetically comply has been successful. Lectures, poral punishment is not only condoned accurate pomayal of the human peck- seminars, work shops, and public but is generally encouraged as the ing order. education campaigns abound. proper way to rear a child ("spare the Thus, in 1983, oneniight assume that rod and spoil the child"). As of 1979,46 overt, obvious cases of abuse are being of the 51 states allowed physical Women are more often child abusol-s recognized and handled appropriately, punishment in the schools. than men because of a number of fac- at least by physicians. Unfo~tunately, Statistically, the incidences of abuse tors. Despite "women's liberation," tlie this is far from true. An unconlfortable in this country appear to be increasing. pri~narycaretaking of children still number of cases are still missed, only to This, in large part, is due to an increase belongs to women both in lawful mar- be discovered when the child is finally in reporting. For example, in Texas in riage and IIIOI-eemphatically in de- killed. The persistence of a coroner's 1973, I-eported cases numbered ap- sertion, separation, divorce, and system in many jurisdictions often proximately 4000, with 2500 con- illegitimacy. Of the 20 per cent of single results in the burial, without autopsy, of Firmed. In 1974 the reporting of parent households currently existing in infants dying Suddenly and unexpec- suspected abuse was made compul- the United States, 90 per cent are tedly. Perhaps even more distressing is 7017, and a massive public education headed by women. In these situations, the continued reluctance of physicians campaign was launched. Not unexpec- the role of poverty (to be discussed to involve themselves in the unpleasant :edly, in 1975, the ported number of later) is important since recent statistics tasks which must necessarily follow the Eases rose to approximately 34,000, indicated that 40 per cent of single recognition of assault on a child. They with almost 11,000confinlied. mothers receive no support from the may confide among themselves, to law Not all of the apparent increase in Fathers of the children and 80 per cent enforcement, social services, or even ncidence is due just to increased 3f women with court orders for child the district attorney that the child was -eporting. There has been a steadily suppo~tdo not receive as much as they obviously battered, only toreverse their :rowing trend away from the extended jhould. These situations bring in- stand in the courtroom, alleging that all Bniily concept to the unit or nuclear xeased stress, with the child often injuries could have resulted from a Bmily. This, plus increasing mobility, riewed as unwanted. variety of accidents. Some simply las served to isolate young parents Men are more inclined to batter when refuse to testifj.. Both actions, of >om faniily and community support :hey feel forced into a primary-care course, simply assure that the un- iystems which become extremely inl- ale, particularly if this is associated desirable faniily situation will be al- sortant during times of stress. The un- ,vith reduction in self-esteem, such as lowed to continue. ;table econonlic situation hasalso been oss of a job. They appear more apt to

JUNE 1990 I I VOICE FOR THE DEFENS

abuse a child who is not their own and Not only do we tend to stay in the More than one half of abused children whom they view as disliking or even socioecononnc group in which we are under the age of three years and at deliberately antagonizing them. When were reared, we also tend ta rear our least one fourth are under the age of men abuse, they are more apt to kill, children in the same way as m were one year. One rarely sees an abused probably because of their greater reared. The obese parent might tell the childolder than six years of age. Those strength compared with women. obstinate child to eat everything on his children who are killed are found atrhe Another factor may be the social stan- platewith thepun~shmentofno desse~t younger end of an already young dard of allowing, even condoning, if he does not. The parent who has spectrum. h number of factors are violent expressions of anger and ag- been abused in the past tells the "bad" prokbfy responsible. Fmt, it is not gression in males where this behav~or child to put his hands on the hot stove unconrmon to find that the object of is frowned upon and thus assumes with an extra severe burn and a good abuse or the victim of homicide was more suhcle, thoughnolessdestructive, thmshing aspunishment if he docs not. eitheran unwantedpregnancy from the expression in the female A large number of abusing parentswho beginning or because of other cir- The average age of abusors is rela- have seriously inju~eda child may deny cumstances became viewed as un- tively young, with man~festationsof the specific incident leading to the in- wanted. Second, a child, particularly both emotional and intellectual im- jury but freely admit to what we would an infant, is most vulnerable becauseof maturity. The parent may display consider cnrel punishn~entsthat they hissize lelative to the size of the parent. frankly childlike behavior and at *he believe to be just and appropriate. The As a child grows older not only is his same time expect or even inmgine that often-quoted mazim that we "do unto body able to withstand more punish- the child is capable offeats totally inap others as we have becn done" seems to ment without sustaining serious in]ul). propiate for his age (such as toilet operate far more often than the golden and/or death, but he also becomes training at 9 months). Low fn~st~atron rule. more adept at escaping the wrath of a tolerance, impatience, and lack of im- The loss of the "extended" fanlily and frustrated pairnt. Few would argue pulse control are characteristics of increasing mobility of the single family against the fact that child abuse con- youth which tend to mn~provewithtime. unit have been mentioned previousty tinues to occur aher age six. Manifesta- Minor sfiess to an older individual is as probable contributors to an actual tions of such abuse, however,appearto often perceived as intolerable to a increasein theincidenceofchildabuse. become less likely to be brought to the younger one. The uprooted family with no near rela- attention of the physician, social Poverty, as an underlying factor in tives or friends to turn to during stress- worker, law enfomment official, or child abuse, cannot be overem- ful periods may seek outlets in child other member of society. phasized. It may, in fact, have a far abuse that both stank and cmte feel- The sex of abusees as opposed to more serious effect on the ultimate ings of guilt in the abusors and the abusors tends toslightly favorthe male. psychosocial developn~entof a child abusees. The parents who feel that the 'l'hiis may well be due to the fact that than any othersingle factor. For every children are "d~ivingthem mzy" no male children are viewed as more ag- child who somehow rises above that longer have the option of droppifig gessive and therefore a greater threar beginning, there are probably them off with grandmother for the to parental authority than female liunclreds, if not thousands, who suc- weekend or to a neighbor's house for children. There is no doubt that males nunb in one way or another. It is not the day, and often do not haw the are trained to be more aggressive by surprising that abuse flourishes in this money for babysitting services. both the male and female parent from environment. The stress of wondering Drug abuse, alcoholism, and severe the monlent of birth. where the next meal iscoming from can psychiatric disturbances were men- When parents who have abused a dive the most docile person into fits of tioned earlierasprobably not at the root child express their feelings, it becomes rage. Those not handicapped with of most child abuse cases. AU three are apparent thatthe battetec displayed be- pavelty may express this with phrases more likely manifestations of a per- havior thatwas considered agpvating such as "I'll feel much better after I eat" vasive social disease which contains or antisocial by the caretaker. It is not or "Ik is a bear untilhe gets hisdinner." child abuse as a symptom. It is fair to surpridng that the behaviol ~hich We all have basic survival instidcts. If say, however, that when one discovers brings forth assault by parents is not these ale not being satisfied, there is child abuse in the context of one or unlike complaints we have all ex- little energy left for weaker, smaller more of the above, it isliely to be more perienced or heard from "nonabitsing" beings making deniands upon us, even serious and very resistant to alnlost any parents. Crying is cited as the primary if they are our own children. 'Ilose thempentic approach. The parents in reason for aggression toward the infant who have always dealt with poverty are this situation are, by their behavior, in- in most cases where any history can be also mole likely to express feelings of dicating that their inner stress has elicited. In the child older than two, frustration towards othe~s.'l'lmse who reached a point of no return. bed wetting or regression to pants soil- have not been so unfortunate early are ing is cited as the primary aggravating more likely to blame themselves for Abusees factor. losses and direct their frustration In- Robably the most Sriking charac- Dapite repeated banerings, it is not waldly. Thus, the phenomenon of as- teristic of those children who are at all unusual for the child toding tothe sault and homicide (including child abused is their relatively young age, batteting parent and, if verbal, to lie abuse) is a IONEXsocroecononlic dis- considering that legally childhood ex- about how various injuries to his own ease and suicide an upper socio- ists until age 18 and niost would con- body occurred. Although a certain economic one. sider it to exist until at least puberty. amount of fear niay be present, this

JUNE 1990 VOICE FOR THE DEFENSE

phenomenon probbly depicts the fact have little desire to ask permission for which they obviously lack the physical that negative bonding is ns strong, if not such of distraught parents who have strength to inflict. stronger, than positive bomling. suddenly lost a child. Nthongh the One very typical and patho- majority of such deaths do not repre- gnomonic featureof the clinical history sent abuse, an autopsy is ~nandatoryin is its tendency to change From one in- an)!unexpected sudden death. This terview to the next. It is not unusual to does not mean that the autopsy will hear elaborate stories of injury conl- always provide the answer. Failure on When a 50 year old jaundiced man pounding injury emerge as the guilty walks intoanenlergcncy room fot tleat- the part of the pathologist to find sig- patty acquires more informationabout ment of a dislocated shouldersustained nificant injury or to conectly tnterpret the natureof the trauma andgropesfor \\hen he fell off 111s fmnt porch, even injury is failly common. something that will satisfy the ques- tioners. Although it is unco~nmonfor the medical stndent chuckles to himself clinical signs as the gentleman sweats that he is a the guilty pa~tyto admit to inflicting a teetotaler or d~mksonly socially. After Although the physician may not be fatal injury, he or she will often confess all, we say, the man is an obvions al- aware of it du~inghis first contact with to responsibility for a minor trauma. It coholic and we know that alcoholics a repeatedly battered child, there is is irnpo~tantto remember that almost all fab~icationcontains some element of lie. Yet it IS the continued lehsal of the often a history of repeated visits to physician to disbelieve the clinical his- emergency rooms 01 clinics for treat- truth even though it may be quite small. tory given by carelakes that allows ment ofinjiuy. The child may well have The approximate tune that the injury child battering and even more subtle records at many diffaent hospitals. occurred and who had control over the forms of child ahuse and homicide to \%en it is appalrnt that there has been child at that time are elements that can go undetected. If the physician is to injury, one ofth~eeexplanations wvill be often be gleaned from an otherwise assume an active role in treating this offered: fictitious story. Other elements con- problem, he must first come to g~ips cerning the way in which the injury (1) the palent does not know how occumd can often be extrapolated to with the fact that parents who, for the injury occurred, whatever reason, mju~eor kill a child, resenlble the likely mechanism; "he fell will lie (2) the cluld mjured himself, or and hit the backof his head" may really The key question that the clinician or man "I slammed him down on the (3) the child was injured acciden- back of his head." patholog~stmust ask himself when tally. dealing withan injured or dead child is, External Physfcal Signs "Is the ~njurycnnsistent with what I arn Typical examples fof the child with finding on physical wo~k-upor what I severe head injury are When visible, bruises of diffe~ent am hding at the autopsy table?" If it 1s ages in an "assaultive" pattern are not, then 11c has a duty to ensure that (1) the child was just found un- p~thognomonicof child abuse. funher investigation and ren~edialac- rcspmwive, Despite efforts to "age"bruises th~ough tionistaken, upto and includingtestify- color changes and by histologic ing in court if that becomes necessary (2) tile child choked on food and became unresponsive, or methods, this aa still remains for the If the physician feels unsure about the most part quite subjectwe. The speed key question, then consultation with an (3) the child had become i~ritable with which a bdse develops and sub- expelt in the area of child abuse should during the past few days. seqnently disappears varies consider- be sought. ably from individual to individual, fmm The Infant who allegedly mju~ed one body part to another, and with the The Battered and/or Fatally himself invariably did soby banging his nature and intensrty of the fo~ceap Assaulted Child head on the floor, crib, or on crib toys. plied. Thus, it is wise to use the various For reasons cited above nndel rhos amdentally injured usually are charts available on the subject as very epidemiology, the repeatedly bftered alleged to have been dropped or fallen rough guidelines only, avoiding any child tends to be older and is more from innocuons heights such as beds, p~wiseopinion as to the age of an likely to he seen by the clinician. Fatal- couches, or dessing tables. The tod- injury. ly assaulted children tend to be dler, and sonletimes even the infant on The socalled "patterned bruise can younger, usnally less than one year of whom bruises arc appalent, will often be found in almost any variety of ac- age, and will often lack many of the be accused of being emn~elyclumsy, cidental or ho~nicidalinjiuy and refers classic rnju~ypatterns to be descr~bed Frequently walking into objects and/or to the implint left by an object that has below. It is for this reason that many Falling constantly while at play. Easy struck a part of the body. Patterned fatallyassaultedchild~enare neverseen bruiseabdity is often crted for these hising is impo~tantin child abuse in by the pathologist. There is a strong same children. Many battered chil&en that it ran give a clue as to what that tendency for the clinician or coroner to ue said to be insensitwe to pain. They object tnight be. Gripping ox pinching cla.%ify these deaths &XDSortoassign will sit in scalding water or hold onto a Fingers on cheeks or arms leave ci~culal anatu~alcauseandsendthe body to the it cigarette. Fractures of every naturc bnnses that are easily recognizable. funeral home without an autopsy. Un- ire said to have resulted from in- Belts, straps, or other switches often Eo~tunatcly,many enlightened persons ~ocuousfo~ces, such as legs caught in leave parallel bruises that approximate still halbor an emotional distaste forthe :rib slats. If older siblings are available he width of the striking object, par- autopsy, particularly on child~en,and hey ale often blamed even for injusks icularly on areas ofthebody with a fair

JUNE 1990 VOICE FOR THE DEFENS

amount of tissue between skin and the clinician cannot detect it. Thus, the and third degree burns with water at bone. In these instances, the compress- presence of an acute subdural temperatures found in most houses and ing object forces blood to its peri- hetnatoma or diffuse cerebral edema apartments (Table 1). Holding pa~tof pheries where the sudden tise in on CT scan nmst be correctly inter- a child's body in hot water is invariably capillary presstrre causes ~uptureof preted as due to trauma even in the an intentional punishment, often in- these small vessels and, thus, bruising. absence of a bluise on the scalp. It is flicted for pants soiling or crying. Al- Circular or linear patterned btuising on probably the thickness, density, and though often the buttocks and children is almostwithout exception an resistance to crush injury OF the epider- perineum are involved, any part of the indication of abuse. mis and dermis relative to subcu- hdycan be dipped. Unlike blunt force The "assaultive patternnof bruises or taneous tissues that is responsible for injury for which external signs tnay be other injury can be addressed with even this phenomenon. minuml or absent, burns, prohbly be- more authority Children at play and This phenomenon is also common cause they are obvious, rarely if ever particularly nonwalking mfants do not over the hack, buttocks, thighs, chest, bring forth a negative histo~yon the bruise the chest, back, buttocks, thighs, and upperanlls. The clinician obvious- part of the camaket. upperarms, orface. On the other hand, lycannotrncise these aieasros@archfor The burn pattern usually speaks for when a child is attacked, these are conl- occult signs of blunt trdunla. However, itself. The discrepancy between it and nlonareasforthe assailant toaimatand the pathologist can and should when- the historygwen is difficult to overlook. strike. There will, of conrse, be isolated ever there is any suspic~onthat blunt No one squats passively, hands over exceptions to this rule, and conimon trauma might be present. The ab- head, ina tub ofscaldingwatereven for sense must always be exercised. How- domen, probably because of its elas- rhe few seconds it takes to cause severe ever, one must always evaluate the pat- ticity relative to the vilnel&le organs burning. Yet parents who have held tern ofbruising as a whole and not lead beneath, rarely shows external children in scalding water will invariab- himself or allow another to lead him evidence of what is often massive inter- ly say that the child or a sibling was into evaluating each injury as if it were nal damage. The extra pigmentation of responsible for hlrning on only the hot an isolated entity. In a coua of law, darkskimed aces provides an added water tap, the child then sat and al- such entrapment can be avoided by camouflage and makes external detec- lowed the bums to occur and was sub- stating at the outset that interpretation tionofblunttrauma even moredifficult. sequently rescued by the palent who is based on the bruising pottern and The surface often belies what is imder- brings thechild to theemergency room. that any opinion regard'mg the caw- neath. The clinician must be aware of One child with a classic pattern of scald tion of one injury, ignoring aH others, this and avoid misinterplttation. The burns to the buttocks, perineum, and would be misleading to the court or pathologist should whenever possible lower legs was allegedly found uncon- jury. If one is dealing with a large num- avail himself of that unique oppomtnity scious in a tub of water she had drawn ber of bruises, this can also save consid- to look underneath. herself. Another with the same pattern erable time and energy. Scalding with hot tap water is the had allegedly turned on the showel ac- Laing and Buchan pointed out the most common type of bum found in cidentally, hen stood under the scald- extremely me occulrence of accidental abuse. Most nonphysicians and many ing water. symmetrical bilateral injury in physicians do not realize that it takes Cigarette burns are another conmion children." In their inspection of 481 only seconds to produce first, second, continued on jmge 42 children injured accidentally, they found no occurrence, for example, of bruisingof bothsides of the face orboth arms. I concur in never having seen Table 1. Mtfmtnz n~neReqtrired to Frodt~ceFht, Second, mid i71irdDt7:ree such injury except in child abuse. The Bfrrtzs at Various 1Y/ater Tempetnt~rres' presence of this sign should thus alert the physician to the possibilityaf abuse, even if the injuries are subtle. Blunt trauma to the body oftenleaves SEVERITY QF BURN novisrble or palpable external sign. Yet WATER ninny clini(.ians rrroncously con<:lu(ic, dcsnitc the wei~l~t" of 111cdic~I evidcnw. TEMPERATURE Fin1 Degree Second and Did Degree that a certain conditioncouldnot be the result of trauma because there is no 15V F Less than 1 sec 1to2sec bruising. Head trauma appears to be particularly apt to be overlooked be- 140' F 2 to 3 sec 5 sec cause of this. Although the face shows bruising fairly readily, the scalp does 130' F 15 sec 30 sec not. Subgaleal hemorrhage, sometimes massive, most often shows no visible 12V F 240 sec (4 min) GOO sec (10 min) external sign. The pathologist sees this when he reflects the scalp during 'Adapted from Moritz, A,, and Hemiques, E, Jr.: Studies of thermal miury. 11. autopsy, but unless the hemorrhage is Che relative importance of time and surface temperature in the cauudtion of thick and isolated (a knot on the head) mtaneous burns. Am. J. Pathol., 23695-720, 1947.

JUNE 1990 VOICE FOR THE DEFENSE MCLE Accreditation Changes

As a I-esultof recent action taken by similarly, there would be a 5 percent balance of the accreditation fee, if any, the Board of Directors of the State Bar penalty assessed on the total fee if not shall he paid by the sponsor within of Texas and the MCLE Con~mittee,the paid within 60 days from the conclud- thirty (30) days after conclusion of the following changes in the MCLE ac- ing date of the activity. The Board is corresponding CLE activity. creditation requirements for the State expected to add this provision to the (B) MCLE Attorney's Partieipa- Bar of Texas have been adopted. regulationat its next regularmeeting on tion Fee Please make note of these changes and April 21, 1990. (1) In addition to the accreditation the effective dates of their implementa- 2. The MCLE Committee at its regular fee specified in (A) above, there shall tion as you plan your upcoming CLE meeting held on February 17, 1990 be assessed an MCLE Attorney's Paf pr0g"llIs. adopted a new I-equirementfor the as- ticipation fee for each CLE activity that 1. At its recent meeting held on sessment of a late fee to be charged to is accredited through an application March 3, 1990, the Road of D~I-ectol-sof all sponsors who subnlit an application submitted by a sponsor unless ex- for accreditation on or after the date empted as set out in section (C) of this upon which the CLE activity is to be regulation. This fee shall be calculated tions. A copy of this revised section is held. The amount of this late fee shall at the rate of $1.50 per credit hour for printed on the reverse side of this be $50 and must be paid with any ap- which the activity is accl-edited per memo. The revised ~egulationadopts plication that is filed late regardless of Texas attendee licensed by the the following basic changes: whether anaccreditation feeis required Supreme Court of Texas (i.e.: No. of (a) The MCLE accreditation fee shall to be paid or not. This late fee shall borrn nccreditedx A'o. of rrre?~llmsat- remain the same as in the current become effective April 1, 1990, and tellding X $1.SO). regulation with the added requirement shall be required to be paid for all late (2) The MCLE Attorney's I'articipa- that there shall be a minimun~,non- applications subn~ittedon or after this tion fee may be borne by the sponsor refundable accreditation fee of $25.00 date. or charged by the sponsor to the atten- regardless of the method chosen to Please be advised that the MCLE dees at the sponsor's election. This fee determine the amount of the fee. Kegi~lationsrequirethat all applications shall be transmitted to the State Bar at (b) A new fee known as the MCLE for accreditation be submitted at least the time tl~att11eMCI.Eattendancecards Attorney's Participation Fee shall be re- 30 days in advance, and even though are submitted to the MCLE Depa~tment quired for all CLE activities that are ac- we can usually process applications in 01-within thirty (30) days after con- credited unless they are exempt less time that this, we strongly urge you clusion of the associated CLE activity, pursuant to Section 10.8CC) of the to plan your programs so that this ad- whichever occurs first. If the fee is not revised regulation. Each sponsor shall vance time requirement can be met. timely submitted in accordance with be responsible for determining the If you have any further questions these requirements, it shall be con- amount of this fee for each of its ac- about any of these matters, please call sidered delinquent. credited activities based on the formula our office at (512) 463-1382. (3) If a sponsor becomes delinquent rate of $1.50 per credit hour per Texas 10.8 Accreditation and MCLE in payment or t~ansmittalof the MCLE attorney in attendance. After the fee is Attorney's Participation Fees Attorney's Participation fee for any ac- calculated for a course, payment of the (A) Accreditation Fee Paid by Spon- credited CLE activity, then future ap- total fee must be transmitted to the sors of CLE Activities plications for accreditation submitted MCLE Department along with the atten- (1) An accreditation fee shall tx re- by such sponsor may be refused until dance cards. quired for each CLE activity for which a the delinquency is cured. The effective date for this new sponsor seeks MCLE accreditation for (C) Exemptions regulation will be June 11, 190. A11 such activity pursuant to these regula- (1) An exemption from payment of CLE activities that are to be held on or tions, unless exempted as set out in both the accreditation and MCLE after that date will be subject to the section (C) of this regulation. Attorney's Participation fees specified requirements of this revised regulation (2) The accreditation fee sliall be cal- in (A) and (B) above shall be allowed regardless of the date on which the culated at the rate of $10.00 per ap- for each accredited CLE activity that is application for accreditation is sub- proved credit hour or $5.00 per Texas solely sponsored by a local or district mitted to the MCLE Depa~tment. attendee, wvhichever is less, with a min- I~arassociation for which no separate Although not incorporated into this imum, non-refundable fee of $25.00 to attendance fee is charged. For pur- revision of the regulation, the Baal-d of he paid for each CLE activity. Payment poses of this subsection, "local or dis- Directors is expected to add another of this mininlum, non-refundable fee trict bar association" shall mean a bar provision to th,is regulation that would shall accompany each application for association contained within a par- create the allowance of a discount for accreditation submitted by a sponsor. ticulargeographical area of a city, coun- early payment of the Attorney's Par- Applications for accreditation sub- ty or state judicial district and that is ticipation fee for each CLE activity. It is mitted without payment of this mini- open for membership to the entire anticipated that a discount of 5 percent mum, non-refundable fee shall be general lawyer population within such on the total fee would be allowed for returned to the sponsor without being area. payment that is made within 15 days of processed for accreditation. If the CLE (2) The MCLE Attorney's Palticipa- the date that the activity concluded; activity is subsequently accredited, the concinsed on@e 15

JUNE 1990 VOICE FOR THE DEFENSE I IN AND AROUND TEXAS

by John Boston

Incase you have been on safari or in ttnuously astonished at the per- trial, earlier this year the State Bar Board severance w~thwhich crinlinal defense of Directors first approved an imposi- lawyers ply their trade. It is unfomtnate tion of a fee (read hidden dues in- that early in the evolution of legal crease) on CLI! p~ovidersof $1.50 per specialization that someone didn't hour per lawyer, then at the Board designate criminal defense lawyers as meeting of 20 April in Austm, wisely Co?rstitrilio1mal~2~uye,sbecause that is recinded the increase. AState Bar Board what criminal defense lawyers are Committee will recommend a Bar dues when they effectively represent the increase for fiscal 1991 with a referen- citizenaccused. By what ever name we dum being scheduled for the coming be called, here are just a few exanlples Fall. Currently, the State Bar dues ale of constitutional law lawyers ~isinato the fourth lowest of any state in the the level of excellence to.which we all nation and have not been laised since aspire: Already well-repolted, but wor- 1981. In light of the almost fme percent thy of another mention, is Randy per year inflation rate over the past ten Schaffer's efforts which resulted in free- years, a moderate increase couplecl ing Randall Dale Adams and the con- ~~t.~f.~t~t~lawyers are welcome as with a careful review of State Bar comitant embarrassment of the Dallas ..,,JI..LL.. spending seem to be in order. District Attorney's office. TheJoyce Ann For at least the last four years the On 28, 29 and 30 of this month Brown case, also repolted on CBS's National Association of Criminal TCDLA will sponsor its thud annual Slxly Mimta, was handled by Kerry Criminal Law Short Course dedicated to FitzGerald and Jack Strickland with Defense Lawyers has propounded a Judge M.P. "Rusty" Duncan. The course their usual hgh degree of profes- concept of "Strength in Numbers!' A was planned and arranged by Kent sionalisn?. In the Michael Dewayne concept in the theory of war known as Schaffer, the moderator will be Presi- Stearnes capital case, Carlton McLany "mass",i.e., putting the most resour- dent Tim Evans, and Bob Price will and Chuck lanehart managed an ac- ces where they will do the most good, make the opening and welconring ouittal even after the first ,iudae " on the with the idea of hanging-- together - so 1en1ark.s.The venue this yea1 is the Saint case tried to fire them for the out- that the rights of all citizens don't figura- Anthony Hotel in San Antonio. In case rageous conduct of interviewing a tively hang sepalately. Which, practi- you don't have a brochure, a notice material witness David Botsford wrote cally speaking for the state and local with hoteland course registrationfonns the amtcusbrief in the Court of Crminal NACDL Affiliates, means having a legis- is in this month's voice. The short Appeals in that case. Recently, Jack lative representative in Washington, course is a fifteemplus-hour advanced Zimmerman got a dismissal with being on NACDL's mailing list thus proglam (one hour of legal ethics m- prejudice for an Army Colonel Medal of recetving notices to attend NACDL cluded) with top Texas lawyers speak- Honor winner in a D\VI case in which ing on numerous state law topics. If you it was shown that the breath test was meetings and conferences, and do notpractice federalcriminallaw, this invalid, the sobrlety test was conducted generally a much larger group to fight course will keep you out of the office under improper conditions, and two of the constant erosion of constitutional only hvo and onehalf days, at most, the witness poke officers gave incon- rights. In summer af 1989 TCDLA be- instead of the full week required for a sistent testimony. To the prosecutor's came affiliated with NACDL for legisla- week-long advanced cou~se.TCDLA credit, he moved to dismiss. And over tive purposes. At the Febmary 1930 will sponsor a similar Federal Criminal the past years TCDLA, NACDL, and TCDLA Board of Directors meeting, in law Shon Course in September of this other local bar associations have response to a motion by Past-President year in Houston, The dates and hotel stepped in to aid lawyers threatened Edward Mallett, the Board voted to be- will be announced soon. Plan to attend with contempt, or who received grand come fully affiliated with NACDL. Th~s both TCDLA short courses; learn a lotta jury subpoenas for privileged informa- does not involve any additional obliga- law and support your Association. tion. The list could go on, and should, tron toTCDW oritsmembers; however, In these days of state and federal so if you, or a colleague you know, has it does bond us with our brother and forfeiture, seizure of lawyers fees, struck a blow for freedom and the con- sister defense lawyers nationwide: WOD ("War On Drugs" or should it be stitution in defending the citizen ac- "Warrantless and Other Disorders?) cused, pleasesend us a summay,so we 20,000 strong and growing. and the low public esteem in whlch can recognize, however bnefly, the true Every member get just one member lawyers ingeneral and criminal defense defenders of the constitutions of the and show up for the TCDLA Short lawyers in particular are held, I am con- United States and the State of Texas. Courses together. 0

JUNE I990 VOICE FOR THE DEFENSE LETTERS

seniinars sponsored by the State Bar son Patman Acts (and other statutes) and/or its various sections (a topic that that could result fl-on1the fee increases. Mr. John Boston was not addressed in the MCLEtnailout In the event that a subco~nmitteeis TCDLA attached to your memo), then the appointed to explore this topic, I would 600 West 13th Street added fees are clearly discriniinato~y be more than glad to selve upon it. Austin, Texas 78701 and potentially violate the Robinson Sincerely, l'atnian Act (15 U.S.C. Section 13 er David L. Botsford Re: Your memo of 3/14/9&MCLE sq3. Furthennore, while I do not pu-- fee increases po~tto know the intent of the MCLE cotnmittee that instigated this pricing cc: Mr. Jim Bobo, 409 North Texas, DearJohn: change, the added fees do not appear Odessa, Texas 79761 In am in receipt of your memo to have any rational connection to the Mr. Tin Evans, 115 \Vest 2nd Street, regarding MCLE fee increases for spon- costs of MCLE registration. I suggest Suite 202, Ft. \V?rth, Texas 76102 sors seekingaccl-edi~ationof courses. It that the TCDLA executive committee Mr. Richard Anderson, 2828 Ruth appears tonic that the State Bar may be appoint a subcommittee to take a good Street, Suite 850, Dallas, Texas 75201 engaging in a pricing structure which look at the potential antitnlst ramitim- Mr. Gerald Goldstein, 2900 Tower will restlain competition in the "semi- tions of the action. Othe~wise,these Life Bldg., San Antonio, Texas 78205 nar business." In other words, the additional MCLE fees may effectively Mr. David Bires, 3000 Commel-ce added costs will cut the profit potential put TCDLA and the Project (and/or Tower, 600 Travis Street, Houston, (and hence profit motive) to seminar other potential sponsors) out of the Texas 77002 sponsors, thus decreasing the like- "seminal- business." It is entirely con- MII Ronald Goranson, 714 Jackson, lil~oodof sponsors putting on seminars ceivable that there will be a restraint of Suite 900, Dallas, Texas 75202 0 (unless they can fully or pa~tiallypass trade (i.e., actual and/or attempted mo- the added fees on to seminar attendees nopolization of the seminar business in or fall \vithin the exemption of Section Texas) and this would undeniably af- Classified Ads 10.8(c) by eliminating fees to atten- fect interstate commerce. Accordingly, dees). If the added MCLE fees do not I personally believe that TDCLA should Classified Advertising MUST: have to be paid by the State Bar and/or explore the ramifications and potential Retyped its vwious sections in connection with violations of the Sherman and Robin- Be worded as it should appear. Include the number of consecuthic is- sues it is to appear. Be prepaid. (hlake check payable to MCLE AFI Il~hlications.) Re received by the 15th of the nlonth preceding date of publication tion fee shall not be assessed for the who attends the activity and who ClasslRed ads are $15.00 for the first 25 follo\\~ingtypes of CLE activities that are words and 50C for every word over 25. Ad- desires to receive MCLE credit for such vertishq copy should he suhn~ttedto AFI accredited pursuant to these Regula- activity. Publications, 1015 S. Mays, Suite 201, Round tions: (2) The amount of this accreditation Rock, Texas 78664. Td(51Z) 2441771. (a) self-study activities; fee shall lx $15.00 for each application Acceptance of classsed advertising for (b) ttcaching, lecturing and/or speak- publication in the VOICE for the Defense for accl-editation submitted regardless does not imply approval or endorsement of ing; of the number of credit hours allowed any product, service, or representation by (c) researched-based writing; and for the CLE activity. The fee is non- either the VOICE for the DEFENSE or the (d) law school curriculum. I-efundable even if the activity is not TCDLA. No refunds on cancelled ads. (D) Accreditation Fee Paid by subsequently accredited. Members for Out-of-State CLE Ac- (3) This fee shall be paid directly by tivities. ASSISTANT FEDERAL PUBLIC each individual member requesting ac- DEFENDER for the Western District of (1) An accreditation fee shall be I-e- creditation for the out-of-state activity. quired for any out-of-state CLE activity Texas, stationed in San Antonio. See Payment ofthe fee must accompany the (not previously accredited through an 188 U.S.C. 3006A. Bilingual in Spanish application for accl-editation which can application by the sponsor of the ac- and fedetxl criminal trial experience tivity) for which a tnetnber seeks ac- be submitted either before or after the p~eferred.Letter of interest, i-esumeand creditation on an individual basis activity is conducted. Individual ap- Standard Form 171 to Lucien B. pursuant to these regulations. A plications for accreditation submitted Campbell, Federal Public Defender, separate application and accreditation without proper payment shall be 727 E. Durango Blvd., B-207, San An- fee shall be required for each member returned. 0 tonio, Texas 78206.

JUNE 1990 VOICE FOR THE DEFENSE The Trial of William E. Taylor by Chuck Lanehart

Inthe early 1890's, there was no town I~ztnglyuninforming. The nevspaper Cause Numbers 249 and 250, for the marshal in the newly-cleated city of recounted only basic details: that feed respective murders of Collins and Lubbock Perhaps it was a good tli~ng. store operatorJJ. Reynolds and nilload Reynolds, and was able to obtain a trial Once, two cowboys got into a playful grading contractor Toni Collins had date within hvo months of the incident. gunfight at the first and only saloon in been shot dead by three pistol shots Vickers prepared his case as would a town (until the 1970's), nm by J.P. about 8:30 p m at the Blue F~ontRes- zealous modern-day prosecutor. Medi- Lewis. "Old Tang" Mamn, an early ob- tau~ant. Night watchman Taylor had cal testimony and a post-mottern were server of the history of Lubbock, noted been a~restedat the sceneand leleased prepared. A miniature, scale-model of at the time that the cowboys hurt no one on two one-thousand-dollar bonds the the Blue Front Restaurant -correct to by thei~actions, and "weren't mad at following morning. Then, the the location of stray bullet holes -was each othe~,only playing." It seems the newspaper retreated: "The Avalanche ordered to be built by architect Hen~y two had not seen each other in a year doesnotdeemitwise at th~stinietogive Mount. Statements wet-e I-ecluced to 01 so. Then, Martin uttered some the pa~ticularsof the sad affa~rasnotrial typewritten memos, witnesses welz propheticwords: "If this was a city with has been had to date and it would not subpoenaed from Paducah, Colorado a niarshal, someone m~ghthave got be best to give out the part~culannow City and Olton. At least twenty-five hurt." . . . The affair is greatly regl-etted by State's witnesses were prepared to tes- By 1912, Lubbock was a boom town. everyone, and very little is being said tify against William E. Taylol-. Land was sellmg fast. Cotton was be- about it one way or another." Although nothing in coun records coming king. The original courthouse J.E. V~ckersknew betten The young rrflects that Taylor was represented by withits distinctive tower had been con- U.T. law graduate am1 former college counsel, a cryptic note titled "Rledsoe" stmcted, roughly in the locarion the football star was District Attorney of the in the weathered court shuck indicates Lubbock County Courthouse now 72nd Judicial Dist~~ct,and eager to win that the man who brought Texas Tech- stands, for a cost of $12,000 in 1892 In the first nlurder case to be t~iedin Lib- nological College to Lubbock also April of 1895, the courthouse was bock County's new District Court He defended the first murder defendant to remodeled by Mother Natule. A ter- knew the voting public was watching be tried inthe 72nd District Court. WH. tible windsto~mhit the wood frame his actions very closely. Vickers saw Bledsoe had come to Lubbock in the structure so hard the tower was blown same year as hadvickers, 1908, and he off, and the buildingwasso twisted that that Taylor was quickly indicted in none of the doors or windows would operate. Repairs of the courthouse did not include a new tower By 1912, the 72nd District Court, covering ten coun- ties, had been cleated, and the Honorable W.R. Spencer was the Dis- trict Judge. And, Lubbock installed a City Marshal, F.E. \Vheelock. Trouble soon followed, as Old Tang Martin had predicted. Wheelock was considered a fonncl- ing father of Lubbock, and he took his stature seriously. He would put up w~th nothing shalt of strict law and order in his adopted community. In fact, he told one of his assistants, Bob Stoker, upon Stoker's appointment as "night watch" for the town, "to shoot the bellie off of the first nlan that bothers you." Another man under Wheelock's charge was one William E Taylor, chosen by fate to complete Old Tang Ma~tln'sprophesy. lurors and t&I omclak ofStnte us. 1'ijA,r, lhc nat murder Ida1 in Luhhwk's 7211dt>irlrict When the events of Saturday eve- [bun, purl: in Uccentb~+,1912, lo front of llte 1.uhllork fiwnty Jail. The only man ptwilive- ning, October 19th, 1912, hit the press ly tdeltlined in the phologr~phis SllurlffW.11. l:lynn, far rlghl. DirlriclJudge W.K. Spencer in the weekly Lzrbbock Aualuncl~eOc- is probably the older man on the back row, center. Court records name the jurors as S.P. Robbins, W.O. Tubb, A.E. Watson, J.kCannon, Edgar Abney, Wm. Collins, Ice Cowan, tober 24th, there was hardly a stir. W.M. George, H.W. Scoggins, C.D. Shaw, L.C. Denton, andforemanR.D. money. Pmseeutor Crime reporting in those days was I.E. Vickers, Defendant WiUhm Taylor and hls defense counsel, W.H. Bledsoe, may also be refreshingly restrained, but tanta- among those pichlred.

JUNE 1990

VOICE FOR THE DEFENSE I Federal Impact Decisions by Charles Blau and Kevin Collins

1. United States u. the court found out that since it is a to permit drug dealers to close their Valencia-Raldan,No. 88-5422 <9th separate enumerated provision, with eyes to the age of the minors wvho be- Cir.) 1/10/90. subheadings and separate paragraphs, come part of the operation. Therefore, it should be constrned as a wholly knowledge of a minor's age is not an ISSUE:ls 21 U.S.C. § 845(h)),prohihit- element of the offense charged. ing theemployment of a minor in a drug separate offense. Moreover, it does not ooei2tion. a sentence enhancer or a address the sale or distribution of drugs 2. Holland v. IUinois, No. separate dffense. solely, but rathertargetscmployment of 88-5050, 1/22/90,-US,, 1990. a minor in the drug operation. There- DISCUSSION The defendant was ISSUE Whether the prosecution's w- convicted of several charges including- fo~,itismeanttobe, andkaseparateaime. cially motivated use of peremptory using a nlinor to possess cocaine with The defendant then argued that he challenges to exclude persons from a the intent to distribute it. Defendant had no knowledge of the age of the petit jury violates defendant's sixth argued that no coua had yet addressed individual involved, and that amendment right to an impartial jury. the question as to whether a violation knowledge must be proved. The court DISCUSSION^ A five to four majority of 21 U.S.C. § 845Cb) is a separate of- rejectedthatcontention, relymg on U.3 of the United States Supreme Coult held fense or merely a sentence enhance- u. Cai-fet; 854 F.2d 1102 (8th Cir. 1988), that the sixth amendment does not ment statute, and argued that it should which held that itwould heillogicaland protect a defendant against the be interpreted as the latter. inconsistent wrth the statute's purpose Although legislative history of the statute provides no insight toits nature,

JUNE 1990 MOTION PRACTICE

Roadblocks: Supplemental Motion to Suppress Evidence Brief in Support of Motion to Suppress Memorandum Opinion and Order

SUPPLEMENTAL stead was a pretext I-oadblock set up to without valid consent, and for those MOTION TO SUPPRESS ensnare Defendants herein. Therefore, reasons must be suppressed. Defendant nloves to suppl-essevidence EVIDENCE seized from him on the basis that the set TO THE HONORABLE JUDGE OF up of this cad block was a pretext, and SAID COURT: the operation of this road block was COMES NOW, the Defendant, KEITH unconstitutional. ALFRED DUKE, by and through his The final reason sought to suppress counsel of record, Awe1 (Rod) Ponton evidence is that the evidence seized is 111, who hereby supplenlents his Mo- a fruit of the initial pretext stop of the tion to Suppress Evidence in this cause The Defendant next moves to sup- Defendant, and therefore must be sup- and would show the Court as follows: press the evidence seized from him on pressed. the basis that, even if the road Mock was a valid driver's license, vehicle registration, and proof of insurance WI. The Defendant has previously road block, that the Defendant had moved to supprcss evidence seized in satisfied all the purposes for which the this cause, including the marijuana and road block was set up. Therefore, the Any statements made by Defendant any statements given by the Defendant. continued detention of Defendant after were made while in custody, and prior giving proof of driver's license, etc. to to Defendant being given any Miranda the officers nmnning the road block, warnings, in violation of Defendant's was unreasonable undel- the Fourth sights under the Fifth Amendment to The Defendant asserts his standing to Amendment, and therefore, all the United States Constitution. move to suppress the evidence seized evidence seized thereunder must be WHEREFORE, ABOVE PREMISES hel-ein. The evidence seized herein suppressed. CONSIDERED, Defendant respecth~lly was a quantity of marijuana found in a prays this Court suppress the evidence travel trailer towed behind the vehicle seized. driven by Defendant PmRED\Y'AKD Respecth~llysubmitted, NORTHEND. The vehicle was stopped The Defendant next moves to sup- ARVEL (ROD) PONTON 111 at a temporary road block set up by the press evidence seized from 11im on the Attorney for Defendant Duke New Mexico State Police on Highway Ixsis that, if any consent was purpor- 1011 Nolih Mesa US. 62-180 near Hobbs, New Mexico. tedly obtained to permit a search of the El l'aso, Texas 79902 The Defendant moves to suppress the vehicle in which Defendant was div- 015) 544-5237 evidence in the case on the following ing, said consent was not valid consent, Texas Bar No. 16115170 specific grounds. as such was derived from an un- I-easonabledetention, and was given at a time after Defendant was not free to CERTIFICATE OF SERVICE leave, and therefore, under arrest. The road block set up by the New Mexico State Police on the date on VI. The undersigned attorney ceaifies which Ilefendant was arl-estedwas un- hat he has sewed a copy of the forego- constitutional. The Defendant alleges The ncxt ground upon which Defen- ng nlotion upon opposing counsel for that the mad block was not set up to dant moves to suppress evidence is that IU other palties in this cause of action check driver's licenses, vehicle registra- the evidence was seized without a war- hisJanuary 25, 1989. tions, and proof of insurance, but in- rant, without probable cause, and ARVEL (ROD) PONTON 111

JUNE 1990 ,- - -

VOICE FOR THE DEFENS

IN THE UNITED STATES DISTRICT pectation of privacy is not subject to cussedin CanzarauMutziciplCozrnof COURT arbttrary invas~onssolely at the unfet- the City and Comty of Suit Fruncisco, DISTRICT OF NEW MEXICO tered discretion of officers in the field. 387 U.S. 523 (1%7), were persuasive: LAS CRUCES DIVISICJN See harm>440 U.S. at 656; Uniteri (1) the reasonableness of the proce- UNITED STATES OF AMERICA StaRs u Brignoiti-Ponce, 422 US. 873, dures followed at the check points 882 (1975); Canzara uMunic@alCotot, made the intrusion minimal; (2) the 387 U.S. 523, 532 (1967). To this end, public interest at such checkpointswas the Fourth Amendment requires that a found to be great; and (3) the need for BRIEF IN SUPPORT OF seizure be based either on (1) specific the enforcement technique was MOTION TO SUPPRESS evidence of an existing violation; (2) a demonstrated by the record. Camam, showtng that reasonable legislative or 387 U.S. at 535-537. The crucial distinc- THE ROAD BLOCK WAS AN administrative standardsfor conducting tion between Martinez-Fuerte and IMPEBMISSIBLE an inspection are satisfied, or (3) a Bi.ignotii-Ponceis the lesser subjected MULTI-PURPOSE ROAD BLOCK showing that a search is carried out intrusion ("the generating of concern or pursuant to a plan containing specific even fright on the part of lawful neutral ciiteria. Marshal/ o Burlows, TO THE HONORABLE JUDGE OF travelers") caused by routine check SAID COURT: Inc., 436 US. 307, 320-323 (1978); See point stops rather than by roving Two Border Patrol officers asked a Martinez-Ffmrte,428 U.S. at 55&562. patrols. Muflinez-Fzcerte, 428 U.S. at New Mexico state police officer to meet Abrief TerryuOhao, 392 U.S. l(1968) 558. him at Highway U.S. 62-180 milepost 68 stop for investigation of suspected Three years later, in Prouse, 440 US. to set up a "drivers license, proof of uiminal activity may be appropriate at 648, the Couut, in dicta, extended the insurance, and registration" road bld. under circumstances given rise to a holding of Murtiiiez-Fdrerte to road 'fie road block was in operation for reasonable suspicion that criminal ac- block license checks in urban settings. approximately one hour and a half. tivity may be afoot. "And in justiFying In Prowe, the Court distinguished ran- About twenty vehicles were stopped, the particular intrusion, the police of- dom stops of motor vehicles from road three were given tickets for no i~i- ficer must be able to point to specific blocks where the matotist is much less surance, the persons who seemed to and articulable facts which, taken likely to be frightened or annoyed by have possible questions regarding their together with rational inferences from the intrusion because the motorist can immigrationwere asked regardmg their those facts, reasonably warrant the in- see visible signs of the officer's immigration, immigration documents trusion." State ox ref. Ekstrona ufiutice authority and can see that other were examined and checked, two Coror of the State oflrizot~a, 663 P.2d vehicles are being stopped. Prozwe, vehicles weie searched, and one search 992,994 (1983). 440 U.S. at 657; United Slates u Oniz, resulted in the seizure of 1383 pounds In Brignotlr-Po~rce,422 US. at 873, 422 U.S. 891 (1975). Profrseconcemed of marijuana. As soon as the marijuana the Supreme Court addressed the the random sropping of motor vehicles was found, the road block ms dii- legality of investigative stops of For the purpose of checking drivers banded. iutomobiles where the omcer making licenses and vehicle registrations. The Vehicle stops at fmed.points are con- he stop has neitherprobable cause nor Court determined that such stops were stitutional. Uizited States u Maftinez- reasonable suspicion to believe the car ~mpermissibleunless based on specific Ftce,te, 428 U.S. 543, 556-558 (1976). x its occupants were violating any ap- articulable facts. However, stopping an automobile and plicable laws. Brignoni-Ponce, in- The Court, in Prouse, rejected the detaining its occupants constitutes a ~olvedthe practice of using patrols to state's argument that the danger of seizure within the meaning of the ;top cars to search for illegal aliens. abuse of discretion by police officers Foulth and Fourteenth Amendments. rhe Court determined that even was diminished because the auto- Debware u Prome, 440 U.S. 648, 655 hrough the public interest in monitor- mobile is subject to considerable state (1979). The constitutionality of drivers ng the flm of illegal itnmig~antsinto regulation: he United States was substantial, the license road blocks is determined by Only last term we pointed out that "if balancing legitimate governmental in- Ise of roving patsolsviolated the Fourth the government intrudes ...the terests against the degree of intrusion hendment. B~.igizotti-Ponce,422 U.S. privacy interest sufFers whether the on the ind~vidual'sFonrth Amendment it 873. goverment's motivation is to inves- rights. Deluzuare u Prozase, 440 US. at In Marfinez-Fueite, 428 US. at 543, tgate violations of cnminal laws or 655; W,titedStates u ortiz, 422 U.S. 891, he Supreme Coint examined the con- breaches of other statutory or 895 (1975). This balancing test involves ,titutionalityof the seizure of vehicle at regulatorystandards"Ma~si~aIIuBar- three considerations: (1) the gravity of ?erniamntcheck point stops operated loun; Inc, 436 US 307 at 312-313 public concern served by the seizure, >yBorder Patml agents to monitor the (1378). There are certain relatively (2) the degree to which the seizure ad- ransport of illegal aliens. Martinez- unique urcumstances, id. at 313, in vances the public interest, and (3) &e WMe, 428 U.S. at 543. Balancing the which consent to regulaiory restric- severity of the interference with in- ;overnment's interest in the use of this tions is presumptively concurrent with participation in the regulated dividual liberty. Brorun u 7"@,443 xactice against the intrusion on Fourth enterprke Otherruke, ~z~latoryiiz- US. 47,49 (19791. hendment interest, the Court deter- speclioizs zmnccompa~ziedby anjr Essential concern in balancing these nined that vehicle stops at a fixed q~mnlrrmof inrllvd~udizerl,anicul- considerations has always been to as- heck point are constimtional. The able su@icion musf be rmdeitaket~ sure that an individnal's reasonable ex- :ourt found that the three factors dis- prr~srraatto preuiorcsly specified

JUNE 1990 VOICE FOR THE DEFENSE

N.E.2d 349 (1983); State u Smith, 674 cumstances which might bear upon P.2d 562 (Okla. Crim. App. 1984); Slate the test. Pmlrse, 440 U.S. at 662 (emphasis u Olgard, 248 N.W.2d 392 (S.D.1976). Deskins, 673 P.2d at 1184-1185, cited The court held the road block in the added). with approval in fiIcLa~rghlin, 471 McL~rrigl~linmse to be ~mnlawfulbe- Despite its apparent disapproval of N.E.2d at 1136; see also State u Hil- cause the State failed to produce the practice of seizing motorists in the leshiem, 291 N.\V.Zd 314 (Iowa 1980). evidence showing that neutral criteria absence of some level of individualized Similar standards are discussed in G~F had been employed in the estab- suspicion, the dicta expressed in Prome rett u Goodluin, 569 E Supp. 106 e.d. lishment of the road block and that the indicated that roadblocks, for the pur- Ark. 1982. Not all of the factors need to pose of checking drivers licenses, road block procedure advanced the be favorable to the state; though, all properly conducted, would not violate public interest to a greater degree than which al-e applicable to a given road an individual's Fourth Amendment would have been achieved by the tradi- block should be considered. Mc- rights: "This holding does not preclude tional methods of dlunk driving enfor- I~icnrgl~lin,471 N.E.2d at 1136; Deskins, the State of Delaware or other States cement. ~McLa~rgl~lin,471 N.E.2d at 673 P.2d at 1185. Some factors, how- from developing methods for spot 1125. ever, such as the unbridled discretion of checks thatinvolve lessintrusionorthat Nthough the depth of analysis and an officer in the field, would lun afoul do not involve the unconstrained exer- decisive factors in these cases have of P,~nseregardIessof other favorable cise of discretion. Questioning of all varied greatly, one should note that out factors. ~VlcLaiigl~lin,471 N.E.2d at oncoming traffic at road block type of the five cases upholding the con- 1136; Deskins, 673 P.2d at 1185. Using stops is one possible alternative." stitutionality ofD.\V.I. roadblocks, only the principles of these cases in the Prome, 440 US. at 663,99 S.Ct. at 1401. one relied solely on the dicta contained above factors as a guide, the first step in The Fourth Amendment, thus, requil-es in Prome. See Kinslo~u,660 S.\V.2d at detennining whether the operation of that a seizure be based on specific, ob 677. The other four cases based their the U.S. 62-180 road block in question jective facts indicating that society's decisions to uphold the road blocks as is constimtional in the present case in legitimate interests require the seizure constitutional on the basis that the light of the balancing test enunciated in of the particular individual, or that the police followed specific, defined stand- Brulmi, 443 U.S. at 47. The first step of seizure be carriedout pursuant toa plan ards in stopping motorists--their sys- the Brorun balancing test is to deter- embodying explicit, neutral limitations tem was con~pletelyobjective in its mine whether the public interest in a on the conduct of individual officers. operation and the criteria used was dual purpose drivers license and im- Brutun, 443 US. at 50-51, 99 S.Ct. at purely neutral so that no discretion was migration road block of the type estab- 2640; Prouse440 U.S. at 663, 33 S.Ct. at involved. Coccomo, 427 A.2d at 135; lished in this case outweighs the 1401; see hfa~liner-Frierte,428 US. at Deskins, 673 11.2d at 1184-1185; Scott, individual's right to be free from in- 558-562,96 S.Ct. 3083-3085. 471 N.Y.S.2dat 964; Peil, 47N.Y.S.Zdat trusion on his or her privacy. At the A survey of other state court cases, in 534. outset, the most basic constitutional which a Fourth Amendment challenge One of the most thorough analyses rule in this area is that "searches con- was nvade to the adn~issibilityof of this issue was made by the Supreme ducted outside the judicial process, evidence obtained at the police road Court of Kansas in State u Deskins, without prior approval by judge or block, established with the detection of where it was stated: magistrate, or per se unreasonable drivers under the influence of alcohol under the Fourth Amendment - subject at either the primary or secondary pur- Numerous conditions and factors only to a few specifically established must be considered in deterniining pose, was made by the cou~iin State u and well delineated exceptions. whether a D.U.I. road block meets McLarrghlin, 471 N.E.2d 1125, 1134 Coolidge IJ hklu Hanqsbire, 403 US. the balancing test in favor of the state. 443, 444 (1971) (quoted in Katz u (1nd.App.-1984). 1t.revealed a split in Among the factors which should be United States, 339 U.S. 347 (1967)). the decisions. Five decisions had considered are: (1) the degree of dis- upheld, as being non-violative of the cretion, ifany, left to theofficer in the Thus the burden is on the government Fourth Amendment, the conduct of the field; (2) the location designated for to show facts authorizing the warrant- D.W.1. road block in question. See the road block; (3) the time and dura- less seizure of the evidence which is State uDeskins, 234 Kan. 529, 673 P.2d tion of the road block; (4) standards challenged in the present case. 1174 (1983); Kinslou u Co~n~izon- set by superior officers; (5) advance Coolidge, 403 US. 445. Although the zuealtf~,660 S.w.2~1677 (Ky. Ct. App. notice to the public at large; (6) ad- state may have a strong interest in en- 1983); State u Cocconio, 177 NJSuper. vance warning to the individual ap- forcingits trafficlaws, andensuring that 575,427A.2d 131 (1980); People uScott, proaching motorist; (7) maintenance only licensed drivers drive its highways, 122 Misc.2d 731, 471 N.Y.S.2d 964 of safety conditions; (8) degree of the government failed to show facts fear or anxiety generated by the (1983); People Peil, 122 Misc.2d 617, authorizing the warrantless seizure u mode of operation; (9) average 471 N.Y.S.2d 532 (1984). Five other challenged in the present case. There length of time each motorist is was no record made by thegovernment decisions had found the conduct of the detained; (10) physical factors sur- concerning the extent of the problem road blqck in question violative of the rounding the location, type and Fourth Amendment. See State a re/. method of operation; (11) the' that unlicensed or unregistered drivers Ekstrom, 663 P.2d 992; People uBa~tley, availability of less intrusive metllods pose to the state of New Mexico. Fur- 125 III.Ap.3d 575, 80 1ll.Dec. 894, 466 for combating the problem; (12) the ther, an intermittent, occasional road N.E.2d 346 (19&1), Com~nontuealthu degree of effectiveness of the proce- block solely to look for illegal aliens is ~McGeogbegan,389 Mass. 137, 449 dure; and (13) any other relevant cir- definitely unreasonable under the

JUNE 1990 Fourth Amendment. See Brignoiti pose in Marliizez+fcertt: 428 US. at The Fourth Amendment requites an Porlcq 422 U.S. at 873. 543. actual showing that the pmper proce- When applying the second factor, the Second, the evidence in this case dures were followed at the time of the degree to which the seizure advances dearly shorn that the load block was inspection. United States v NHU Or- the public interest, the government dual purpose. Although the govern- IeumPublic Service, 723 F.2d 422,428 failed in its burden of establishing the ment asserts that it was merely a drivers (5th Cir. 1984). The government has superiority of this type of road block in license road block, it is clear that it was made no such showing. Morewer, the light of available less intrusive alterna- manned by nvo Bolder Patrol agents government failed toestablish the exist- tive means of deterrence. Nothing in and one State Trooper, and that dual ence of advance notice to the public at the record made by rhe government purposes were bang sewed--cfieck- large, advance warning to the in- indicates that theonlypractical oreffec- ing of drivers license, proof of in- dividual approaching motorists, maitt tive means of enfomng traffic laws in surance and registration on the one tenance of safetyconditions, the degree New Mexico is by albitrarily subjecting hand, and seeking out violations of im- of fear or anxiety genefated by the all citizens to police scrutiny withont nligration laws on the other. The mode of operation, the average length suspicion of wrong-doing s~tnplybe- pretext to look For drugs, of course, of time each motorist was detained, the cause they happen to be traveling on underlies or permeates the entire affair. physical factor surrounding the loca- Highway 62-180 at a time when Border Third, the Court must consider the tion, the type andmethod of operation, Patrol agent Kelly and New Mexico degree of intrusion that an individual or degree of effectiveness of the proce- state trooper Frisk decide to prk their would be subjected to when passing dure. cars, turn on their flashing lights, and through this road block. The Supreme The agents in this case did not act stop all vehicles. See Bartky, 4466 Court talked about the limited fiight with any restraint imposed upon them N.E.2d at 348. Further, thii mad block factor in Mnrfinez-Fuwte. In Martinez- by judicial officers. No warrant was on a road not coming from the bordel; Fmrte, the Court emphasized the issued. and which check point is not the func- necessity of the permanence of the If road blocks can be maintained to tional equivalent of the bolder, is check point, the lack of discretion left stop all persons, regardless of how in- definitely unreasonable under the to the officer in the field, and the ad- nocent theirconduct, for the purpose of Foulth Amendment. See U7ited States vance warning to the public as to the investigating for violation$ of immigra- uBrounring GJahoi?,F.2d(5th reason for the stop. Ma~tir~ez-Ffmm tion laws and violations of traffic laws, Cir. 1988). 428 US. at 543. then prehably similar stops of all The Court must bear in mind that in The Courts which have determined citizens could be undertaken for ques- that drivels license road blocks ate con- tioning in surveillance with regard to caaes where the United States Spreme stitntlonalhave based their opinions on other cdmes, suchasm~lrder,narcotics, Court has elther expressly or impliedly the finding that the road blocks were possession of stolen property, or a sanctioned check point or road block 'calried out pursuant to a planembody- myriad of any other typeof crime. State stops, the criminal activity targeted was Ing explicit, neutral limitations on the a re/. Ekstrorx, 663 P.2d at 997; CJ of such a nature that there was no other conduct of individual officels to ensure Meeks u State, 692 S.W.2d 504 less intrusive, but equally effective, hat the motorists were not subject to 1'I'ex.Crim.App. 19851 (load block means of detectmg the violators. he unbridled discretion of officers in manned by various federal, state and Bar&)$466 N.E.2d at 348. he field." Brounz, 443 U.S. at 51. local peace officers violated Fourth Turning to the thirdand final element The record in the instant case clearly Amendment; if a license check is not the of the Bratull test, the relevant question demonstrates that them was noexplicit, $olereason for detention that detention is whether the valid public interest leutral limitation on the conduct of the IS not authorized and cannot be sewed is sufficient to justify the par- ndividual officers. There was no dis- upheld); Patemi uState, 558 S.W.2d 463 ticular intrusion effected. See Protcse, xssion among the oficers as to the Tex.C~-im.App.1977) (road block not 440 U.S. at 648. In applying the guideiines under which the road block jet up solely for license check is uncon- decisions of the United States Supreme xould be carried out. There was no stitutional). These activities by law Court to the present case, thii Coun ipecific set of criteria set fotth by the snforcement authorities draw dan- mustquestion(l1 the type of road block ~fficer's superiors, to ensure that the %erouslyclose to what may be referred involved, (2) the purpose of the road ield officers did not exercise unbridled o as a "police state". Snzith, 674 P.2d at block, and (3) the degree of intmsion iiscretion. There was no input what- j64. Taking an "end justifies the imposed upon the individuals passing boever by the two Border Patrol agents' neans" approach would lose sight of a throngh the mad block. State u Smith, ~upe~io~s,and the state police officer's wsic tenet of American jurkprudence, 674 P.2d at 563. luperiors gave no guidance what- hat the government cannot assnme First, the road block used would be toever. The tecordcontains no specific :riminal conduct in effectuating a stop chwified as temporary. It was located ,fandards established by supaior of- iuch as the one in the instant case. at a fiwed location for a set period of icers for setting up the road block, or The very recent case of United States time and then moved. Additionally, the o set forth the procedure to be fol- Y McPaydef?, F.Zd_ (D.C. road block was not regularly estab- owed by the affcers present at the 3. January 24, 1989), that upheld a lished, eg., daily, weekly, or monthly. mne, or to ensure that it was a limited, Vashington D.C. traffic block, is not It was a "'one hour affair". This road mmwpurpose road Mock, lather than mly not dispositive of this issue but an block was not the type of permanent I bmad spectrum, dual purpose road ~nalysisof tlrat case shows that the fac- checkpoint approved fora linuted pur- )lock. ors that upheld the constitutionality of

JUNE 1990

VOICE FOR THE DEFENSE

THE HONORABLE M.P. "Rusty"DUNCAN, III TCDLA CRIMINAL LAW SHORT COURSE

ST. ANTHONY HOTEL + SAP7 ANTONIO, TEXAS

COURSE DIRECTORS: MCLE 15-50 hours

O~entAlan Schaffer, Houston +INCLUDES ONE HOUR OF ETHICS +Robert A. Price, IV, San Antonio +COURSE WILL SATISFY MCLE REQUIREMENT

Texas Criminal Defense lawyers Association

24 JUNE 1990 VOICE FOR THE DEFENSE THE HONORABLE M.P. u~~~ty97DUNCAN, m TCDLA STATE CRIMINAL LAW SHORT COURSE JUhT 28-30, 1990 ST. ANTHONY HOTEL TENTATIVE SCHEDULE Thursday - June 28,1990: DRUG COURIER PROFILE Rod Ponton, El Paso PRIVILEGES ITHICS AND ATTORNEY MISCONDUCT Jade Meeker, Austin Richard Alan Anderson, Dallas DWI APPEALS Stuart Kinard, Austin Stan Brown, Abilene SEARCH & SEIZURE PUNISHMENT HEARINGS E.G. "Ger~y"Morns, Austin J.A. 'yini" Bobo, Odessa PROSECUTORIAL MISCONDUCT HEARSAY Randy Schaffer, Houston Bert Isaacs, Houston FORFEITURE Robert G. Turner, Houston EXTRANEOUS OFFENSES RECENT DECISIONS Jack V. Strickland, Fort \Vorth Judge Chuck Miller, Austin GRAND JURY DEFENSES Michael I? I-leiskell,Fort Wo~th Keith E. Jagmin, Dallas INDICTMENTS EVIDENCE (Art. IV & VI) Robert C. Hinton, Dallas Judge Terrence McDonald, San Antonio OPENING AND CLOSING Edward A. Mallett, Houston Saturday - June 30,1990: PRETRIAL MOTIONS Friday - June 29,1990: Gerald H. Goldstein, San Antonio JURY SELECTION Rusty Hartin, Houston CONFESSIONS CROSS EXAMINATION Mary E. Conn, Houston ,.------.----..--.------.------1. Doualas Tinker, Corpus Christi COURSE PRE-REGISTRATION FORM HOTEL RESERVATION CARD THE HONORABLE M.P. "Rusty"DUNCAN, 111 : In order to secure your hotel reservation at reduced TCDIA CRIMINAL LAW SHORT COURSE j group rates, this card, letter, or call identifying you with June 2830,lW : the TEXAS CRIMINALDEPENSELASVYERS ASSOCIATION St. Anthony lintel - WO E. 'l'rliavis Street j must be received by the hotel on or before Monday, May San Antonio, Texas : PRE-UECISIRAl7ONBEA'RPIIS: Yourregistration must reach oucofficc by : 28,1990. : June 25111 in m&rto&wmnteerecei@ damnmterialsattk seminar : St. Anthony Hotel $74.001 +tax Be sure lo include your $225/$250 reglsfrationfee. : WOE. Travis St. Single or Double a San Antonio, Texas 78205 Name: i (512) 277-4392 j Address: : 1 will check inon 1 City/State/Zip: : Telephone No: ( ) j Name j county Bar Code No. : Current Occupation 1 Address : lam[ l fammrl lanr~rhadlIleTogsC~DefRcrk~y)mA&6on j City/State/Zip : RETURNTO: Texas Criminal Defense Iawyers Association : CreditardandnomkrforLA~AWALGUARA~E(ahcr6p.m.) 600 West 13111 Street Austin, Texas 78701 (512) 4782514 L.... L.... -.-.--....-...---.------.-----.----.------..---.

JUNE 1990 VOICE FOR THE DEFENSE

cally, he did not point out to the Border driver's license. Northend produced a IJatrolrnen that the authorized purpose valid driver's license from Australia, the of the rwadblock was limited to check- country of his residence, which Patrol- IN THE UNITED STATES DISTRICT ing for violations of New Mexico traffic man Kelly examined. Defendant COURT laws pertaining to driver's licenses, Northend also produced valid registra- FOR THE DISTRICT OF NEW MWCC vehicle registration, liability insurance, tion documentation for the vehicle. At ! and seat belts. Border Patrolmen Kelly this point, instead of inquiring about UNITED STATES OF AMERICA, and Rogers were left with the inlpres- liability insurance, Patrolman Kelly Plaintiff sion that the roadblock was established began asking questions relating to pos- vs. ClV No. 88-478 J for an additional purpose of routinely sible violations of immigration law, in- PETER EDWARD checking for violation of United States cluding whether defendant Northend NORTHEND immigration lams. In the absence of an had a passport. Patrolman Kelly and KEITH ALFRED DUKE, adequate explanation of the guidelines directed defendant Northend to drive Defendants. for the roadblock, Border I'atrolmen his vehicle to a point in the highway Keliy and Rogers believed their main median beside the traffic lanes so that MEMORANDUM purpose in being at the roadblock was Officer Kelly could make a thorough to check for violations of United States inspection of defendant Northend's OPINION immigration laws, and that theiralterna- passpolt. As defendant was driving the AND ORDER tive or secondary purpose was to assist vehicle to the median, as directed, Patrolman Kelly believed that he The subject of this memo ran dun^ New Mexico State Police Officer Frisk in checking for violations of New smelled an odor of nlarijuana emanat- Opinion and Order is Plaintiffs Motion ing from the trailer being towed by the to Reconsider my order granting ~Mexicotraffic laws relating to driver's licenses, vehicle registration, liability defendants' vehicle. After the vehicle defendants' motion to suppress stopped in the median, Officer Kelly evidence. The Motion to Reconsider insurance and seat belts. United States Border Patrolmen Kelly caref~~llyand thoroughly checked will be denied. The Motion to Recon- defendant Northend's passport and sider does not challenge the factual and Rogers testified that the United States Border Patrol had guidelines for found it to be in order. An ensuing findings 01- the legal points on which I search discloscd that the trailer con- based my ruling. Since my findings of the establishmentand operationoftenl- pprary checkpoints or roadblocks to tained a large quantity of marijuana. fact and conclusions were stated orally The only thing that lead Patrolman at the tinie I granted defendants' sup- check for violations of United States itntnigration laws. In order for them to Kelly to ask defendant Northend about presion motion, I will begin by sum- citizenship and itnnligration docu- marizing them. have established on October 16,1988 a roadblock for that purpose they would ments was Northend's valid driver's IXCIS: On October 16, 1988 New license from Australia. Mexico State Police Officer Frisk esrab have had to obtain pem~issionand lished a roadblock for the purpose of authorization from Borderl'atrolsuper- stopping and checking all eastbound visors. Neither Kelly nor Rogers had CONCLUSIONS OF LAW traffic at a point on US62/180 to deter- requested permission to set up a tenl- mine whether there were violations of pprary checkpoint or roadblock at the The roadblock set up on October 16, New Mexico traffic laws relating to tune andplace of the one established 1988 by New Mexico State Police Of- driver's licenses, vehicle registration, by New Mexico State Police Officer ficer Frisk was for the permissible and liability insurance, and seat belts. Of- Frisk on October 16, 1988. Although lawful purpose of checking for viola- ficer Frisk had properly obtained per- Border Patrohnen Kelly and Rogers tions of New Mexico state traffic laws mission of a supervisor, Lieutenant thought their main purpose for being at involving driver's licenses, vehicle Luna, to set up the roadblock on the Officer Frisk's roadblock was to check registration, liability insurance and seat condition that he obtain the assistance for violations of United States immigla- belts; the roadblock was duly of at least one additional law enforce- tion laws, they were not doing that in authorized by Officer Frisk's super- ment officer to help conduct the accordance with any guidelines of the visor; the roadblock as inlplemented roadblock. Police Officer Frisk's super- United States Border Patrol .or stopped evely eastbound vehicle and visor, Lieutenant Luna, authorized a guidelines set by Officer Frisk. did not involve random or selective roadblock only for the purpose of At the tinie defendants approached stops; the roadblock as established did clieckingviolations of New Mexico tlaf- the roadblock, Officer Frisk was busy not violate constitutional standards. fic laws; he did not authorize estab- writing a citation to a nlotorist for a United States u. Corral, 823 F.2d 1389 lish~entof the roadblock for the traffic law violation. Consequently, Of- (10th Cir. 1987) cert. denied, purpose of checking for violations of Ficer Frisk asked Border Patrolman -U.S., 108 S.Ct. 2820 (1988); United States Inln~igrationlaws. Kelly to check the operator of the United States u. Lopez, 777 E2d 543 New Mexico State Police Officer defendants'vehicle for a driver's license [loth Cir. 1985); United States u. Frisk enlisted the assistance of U.S. Rol-- md vehicle registration docun~ents. Pricl~nrrl,645E2d 854 (10th Cir.), cert. der Patrolmen Kelly and Rogers to help When the defendants' vehicle stopped, denied 454 U.S. 832, re1~'gdenied, 454 in operating the roadblock. However, Patrohnan Kelly tokl the driver, Nolth- U.S. 1069 (1981). Officer Frisk did not ~eviewwith Border md, that they were checking ciriver's A New Mexico Statute designates I'atl-olmen Kelly and Rogers guidelines icenses and vehicle registl-ations. Kelly United States Border Patrolmen as for operation of the roadblock. Specifi- ~skeddefendant Northend for his ?eace officers authorized to enforce

JUNE 1990 VOICE FOR THE DEFENSE.

state laws, includingNewblvIexico traffic At this point, without anything more tc PLAINTIFF'S ARGUMENTS la\vs. 5 29-1-11 NMSA 1978 (198 8 arouse suspicion of other criminal ac. UNDER ITS MOTION TO Supp.). New Mexico State Police 01 F- tivity, the defendants shoidd no longel RECONSIDER ficer Frisk acted properly in asking BOI have been detained and should have derPatrolnien Kelly and Rogers to assi: it been permitted to proceed through the him in operating the roadblock forth In its Motion to Reconsider, the plain- e roadblock. purpose of checking for traffic lax v tiff first argued that the roadblock met Law enforcement officers operating violations. constitutional requirements, citing Law enforcement officers may con a valid roadblock or checkpoint may United States u. Corrnh srrpra. I found stitutionally stop vehicles in certain cir also investigate possible criminal ac- and concluded that the roadblock had cumstances under which they do ncIt tivity outside the scope of the been established in a constitutional have unbridled or unconstrained dis roadblock provided the law enforce- manner and suffered no constitutional cretion. De1a~unr.eu. Prorrse, 440 U.S ment officers, while making inquiries defect so long as it was operated con- 648 (1979). Where field officers' discre within the scope of the purpose for sistent with its authorized purpose. PlaintifPs second argument is that "as- tion is properly circumscribed b! Y which the roadblock was established, requiring them to obtain prior auth develop an articulable and reasonable suming arguendo that the roadblock was set up for purposes of citizenship orization of supewisors and to follonJ suspicion that a crime of another nature inquiry" it was still constitutional be- legally approved guidelines, the of is being conmlitted. U~zifedStates u. ficers may establish and operate high cause all vehicles were stopped, law Lopez, 777 F.2d at 547. Under this prin- enforcenlent officers did not exercise way roadblocks that have legitimate ciple, Patrolman Kelly could have purposes. Under the testimony of Of discretion as to who would be stopped, asked defendants about possible viola- ficel- Frisk tile sole legitimate purposc and Border Patrolmen nmy lawfully tions of federal immigration laws if, of his I-oadblockwas to check for viola. conduct temporary checkpoints for while first questioning them about purposes of citizenship inquiry, citing tions of New Mexico traffic laws. Ac. Ulzited States u. Venegas-Sapierz, 762 coding to testimony of patrolmen Kell)r violations of New Mexico traffic laws, E2d 417 (10th Cin 1985). \what plaintiff and Rogers, their main purpose a1 t he developed an articulable and overlooks in this argument is that Frisk's I-oadblockwas to look for viola- reasonable suspicion that a violation of tions of federal immigration laws. The) federal immigration laws was occur- proper authorization had not been ob- had no authorization of their super- ring. In this case, while checking for tained to operate the roadblock for the purpose of investigating violations of visors to conduct a roadblock on Oc~. ,state trafficviolations, the only informa- immigration laws. United States u. tober 16, 1988 for that purpose! I tion Patrolman Kelly obtained that led Venegas-Sapfen, srifxcr, approved the although they might have obtained 1 him to question defendant Northend operation of tempomy checkpoints fol- proper authorization had they re-. . about possible violations of immigla- investigation of immigration law viola- quested authority under Border Patrol Ition laws was that defendant Northend tions when the checkpoints are proper- mlesand procedu~-es.'They made in- Iliad a valid driver's license from ly authorized, established and quiries at the roadblock about illunigra- 4ustralia. There was no testimony that sperated, but that was not the situation tion law violations, a matter outside the I:he defendants appeared to be nervous in this case under the testimony of Bor- scope of Frisrisk's roadblock, without fol- 1 der Patrolmen Kelly and Rogers. The lowing guidelines. Clearly, as to their x that their appearance or demeanor hintiff's last argument is that Bolder main purpose of asking about viola- ~vasin any manner unusual. Merely 1mowing that a driver had produced a Patrol agents haveauthorityto question tions of federal immigration laws, they diens about their right to remain in the 1did driver's license from a foreign wel-e acting with unbridled discretionat Jnited States, citing United States u <:ountry does not constitute a the roadblock on October 16,1988. It Bpinosa, 782 E2d 888 (10th Cir. 1986) IeasonaWe, a~ticulablesuspicion that was essentially the same as tliough the ~ndUi~itecl States u. McCormick, 468 Border Patrolmen had set up their own the driver is in the process of commit- ?2d 68 (10th Cil: 19721, cert. denied, roadblock to check for immigration law t ing a criminal violation of fedel-a1 ini- 110 US. 927 (1973). Those cases hold violations xvithout getting supe~visory Inigration laws. Cf. United States u. hat Border Patrol agents do have approval and without following Border 19rignorli-Ponce, 422 US. 873, 882 ~uthorityto inquire of aliens at border Patrol guidelines for the operation of (1975) (mere appearance of Mexican heckpoints or at checkpoints, per- lb roadblocks. the extent the Boder 3mcestry does not give reasonable nanent or temporaly, which are con- Patrolmen strayed outside of the scope Suspicion to stop to investigate in>- iderable distances from the border, of the purpose of checking for traffic 1' ~nigrationviolation). United States Bor- hat are properly established and law violations, they were functioning cler Patrolman Kelly exceeded the )perated under guidelines of the without a legal foundation. Jnited States Border Patrol. Again, the Constitutiotially permissible scope of Consistent with thepurposeofFrisk's hintiff missed the point that in this PJew Mexico State Police Officer Frisk's roadblock, I'atrolman Kelly did leg- .ase the roadblock liad not been rI oadblock in questioning defendant itilnatelp request the right to see defen- uthorized and established for the pill-- I' dant driver's license and io~thendabout ~ossiblefedeml ini- lose of checking immigration law evidence of I-egistration.After that was migration law violations without an ar- iolations. furnished to Patrolman Kelly he could ticulable, reasonable suspicion that a When Patrolman Kelly began asking have validly inquired about evidence of violation of immigration laws was oc- lefendant Northend about his passport liability insnrance, which he didnot do. tuning.' corrri,m?d on pge 47

JUNE 1990 VOICE FOR THE DEFENSE The 1990 Advanced Criminal Law Course Coutse Director:. rack Stricklalzd, Ft. Worth

In1975, the State Bar of Texas sponsored its first annual however, "workshop" alternatives are available. For the first "Crinlinal Law Refresher Course." Held in Dallas under the time the Advanced Crinlinal Law Course will offerworkshops directorship of Vincent Perini, the program was unique for which will concentrate on practical application of the law. several reasons. First, was the fact that the Course Director, Thsee-hour workshops will be offered in Jury Selection, Vincent Perini dressed as an Italian film director for the entire Capital Mu~rder,and Driving While Intoxicated. Each course. Secondly, and not nearly as dramatic, the course was workshop will feature an experienced defense lawyer, designed to offer the most comprehensive criminal law pro- prosecutor, and judge. Inaddition, avariety of expertswill be gram then available in Texas. And lastly, this fils1 effort coincided with the advent of anotheiBar program beginning available to thrill and delight the audiences. that year - Criminal Law ce~iificationby the Texas Board of Thursday will find us devoting two full hours to Texas Legal Specialization. appellate matters in the unlikely event you ever lose a case The course has been held each year since, alternating after attending all of these lectures. between Dallas, Houston, San Antonio, Austin and Fort Of course, these activities are nlerely fillers to pass the time worth. The attendance has steadily increased, from ap- between the t~ulysignificant events: the State Bar of Texas- proximately 100 in 1975 to a recordenrollment of 701 in 1987. sponsored social on Monday evening; the annual Judge The Course Director that year was Richard Anderson. As was Chuck Miller - Judge Ron Chapman - non,Judge Jack Strick- tlue the first year and each year thereafter, the course con- land Margarita Party on Tuesday evening; barbeque at tinues to fill a full 4-1/2 days and the course books have Angelo's; Mexican food at El Rancho Grande; steaks at expanded to three volumes. Cattlenlen's; Hunan-style chinese at Szechwan; drinks at This year's program will be held at the Warthington Hotel Rick's on the Bricks; and jazz at Caravan of Dreams; or read in downtown Fofl Worth from July 16-20. Many of the topics which have become staples over the years will be offered, the next day's materials if that is what you wish. including a full day of Federal law, a review of recent Court The line-up of lecturers at this year's program is exception- of Criminal Appeals decisions, ethics, search and seizure, and al. We have 38 defense attorneys, 11 judges, 11 prosecutors, guilty pleas. 3 court-supported lawyers, and numerous experts on the However, significant changes have been made this year in program. Past criticisms that the course is too defense- order to provide a wider variety of lectures. On Monday oriented have been addressed and it is loped that the course evening, a Legal Specialization Workshop is scheduled. That ill appeal to all but the most rabidly partisan of the criminal workshop will be chaired by Walter Prentice, who has had bar. As hasbeen true since 1975many of themost outstanding close association with the test in recent years, and is one of criminal practitioners in Texas donate ungodly amounts of the authors of the 1990 exam. time and effort in preparing their papers and lectures. It is due Tuesday morning will be devoted exclusively to a review to the efforts ofthese people that this Course is recognized of the Texas Rules of Criminal Evidence, followed later that as one of the finest in the country. day by Judge Chuck Miller of the Texas Court of Criminal Appeals. Persons who attend Judge Miller's lecture and give Hopefully,you will have an opportunity not only to attend him a high rating will be allowed to attend thehual but to encourage the judges and prosecutors from your area Margarita Party free of charge. to do likewise. It is also an excellent oppo~tunityfor those Wednesday has evolved to become "Federal day" or "Golf defense lawyers who are not members of TCDLA to come day". At any rate, attendance tends to sluink. This year, spend a week with us. We look forward to seeing you in July. Sixteenth Annual Advanced Criminal Law Course Monday-Friday, July 16-20, 1990 - Fort Worth

Sunday, Ju€y15: Honorable Joe Drago, 111, Keith E. Jagmin, Dallas, Attor- 3:OO-6:00 Early Registration Judge, Criminal District #4 ney at Law Pre-registrants may. . pick up 9:OO PRETRIAL MOTIONS 11:35 GUILTY PLEAS coursebook. Terrence W. McDonald, San Honorable Bob Jones, Austin, Moudny, July 16: Antonio, Attomey at Law Judge, 167th District Court 8:00 Registration 9:45 INDICTMENTS 1205-Lunch- 8:45Moderator: IackV. Strickland. Tr.. 1:35 CONFESSIONS Fort Worth, Course Director, At- Robert C. Hinton, Jr., Dallas, torney at Law Burleson, Pate &Gibson Roy Q. Minton; Austin; Minton, " I Burton, Foster & Collins Welcoming Remarks: 10:3&break- 10:50 DEFENSES

JUNE 1990 ICE FOR THE DEFENSE

250 ETHICS FOR THE CRIMINAL 220JURY CHARGES Ebursday, July 19: PRACl'I'nONER Ronald L. Goranson, Dallas; 9:OO JURY SELECTION Richard A Anderson, Dallas, Milner, Goranson, Sorrels, Alanlevy, Fort Worth, Assistant Attorney at Law Udashen &Parker District Attorney 3:2&break- 3:25 FORFEITURES 945THE PUNISHMENTHEARlNG 3:40 PROSECUTORIAL MISCON- Nec Brock Stevenson, Dallas, J.A. (Jim) Bobo, Odessa, Law DUCT Assistant District Auorney Offices of J.A. Uim) Bobo Catherine G. Bumett, Houston, 955 RECENT DECISIONS: COURT 10:15 -break- Professor of Law, South Texas OF CRIMINAL APPEALS 10:35 SENTENCING OPTIONS College of Law Honorable Chuck Miller, Auc Honorable Larry J. Gist, 4:25 HABEAS CORPUS/BAIL tin, Judge, Court of Criminal Ap- Beaumont, Judge, Criminal Brian W. Wice, Houston, Law peals District Coutf Off~cesof Brian W. Wice 455-Adjourn- 11:20 FINAL ARGUMENT 455 -Adjourn- Edward A. Mallett, Houston, At- 5:OO-6:oO SOCIAL Wednesday,Jdy 18: torney at Law 9:OO FEDERN. DRUG CASES 6:30-8:30 LEGAL SPECIALIZATION 12:05-lunch-- WORKSHOP J.A. "Tony" Canales, Corpus 155EWECINE BRIEF PREPARATION Moderators: Walter C. Prentice, Christi, Canales & Simonson Austin, Gray & Becker 9:30 FEDERAL BAIL I)avid I.. Ik,Lsford; Auslin; Alvis, (hrssow, von KntislcrR Gotchcr Kartie D. Key, Austin, Assistant Honorable Stephen H. CapeUe, District Attorney Austin, U.S. Magistrate 205 EFFECTIVE ORAL ARGUMENT Sylvia Mandel, Fort Worth, As- 10:OO -break- Honorable Lmda B. Thomas, Dallas, Justice, Fifth Court of sistant District Attorney 10:20 GRAND JURY Appeals Richard Roper, Fort Worth, As- Michael P. Heiskell; Fort Worth; 2:35-break- sistant U.S. Attorney Johnson, Vaughn & Heiskell Richard W. Wetzel, Austin, Ex- 10:50 FORFEITURE 2% APPEALS ecutive Administrator, court of Kerry P. FitzGerald, Dallas, Criminal Appeals William P. Nlison, Austin, M- limn & White Attorney at Law Fuesday, July 17: 11:35 RECENT DECISIONS - 355 TEXAS CONTROLLED SUB- 9:OO PXIVILEGES FIrnCIRCUIT STANCE ACT Jade M. Meeker, Austin, Senior F.R. "Buck Files, Jr., Tyler, George E. West II, Dallas, As- Staff Attorney, Court of Bain, FiIes, Allen, CaldweU and sitant District Attorney Criminal Appeals \Totthen 9:30 HEARSAY 12:05--Luh- Friday, July20: 1:35 SENTENCING GUIDELINES C. Chris Marshall, Fort Wmh, 900 DWI Assistant ,District Attorney, Marjorie A. Meyets, Houston, Stuart E. Kindad, Austin, Ack- Chief, Appellate Section Assistant Federal Public Defen- erman & Kmard 10.00 -break- der, Southern District of Texas 10:ZO EXTRANEOUS OFFENSES 2:35 LAWYER AS A TARGET 9:3O JUVENILE LAW Robert K. Gill, Fort Worth, As- Jack V. Strickland, Jr., Fort Tim Evans; Forth Worth; Evans, sitant District Attomey Worth, Attorney at Law Gandy, Daniel & Moore 10:oo -break- 10:50 IMPEACHMENT 3:OSbreak- John G. Jasuta, Austin, Staff At- 325 "RING AROUND THE COLLAR" 10:20 SEXCRIMES torney, Court of Criminal Ap- BANK FRAUD, ETC. F.G. "Gerry" Mmris, Austin, peals William A. White; Austin; White Smith & Morris 11:20 OPINIONS/EXPERT TES- &Allison 10:50 CAPITAL MURDER TIMONY 4:lO FEDERAL APPEALS Honorable Sam Houston Clin- Honorable Lee Gabriel, Den- Shirley Baccus-Lohel, Dallas, ton, Austin, Judge, Court of ton, Judge, 367th District Court Attomey at Law Criminal Appeals ll:50 -Lunch- 4:Mjourn- ll:20 RECENT DEVELOPMENTS 1:20 SEARCH AND SEIZURE Gerald H. Goldstein; San An- Jack J. Rawitscher, Houston, SEE ALTERNATIVE WORKSHOP tonio; Goldstein, Goldstein & Smith, Schulman, Rawitscher, OPPERINGS PAGE 30 Hilley Carnahan & Parks 12SAdjourn-

JUNE 1990 View ALZERNATIVE WEDNESDAY then provided that the lands, tene- contilmerl froslpe 7 WORKSHOPS: ments, goods and chattels of any per- 9:m D\vI son convicted of a crime were liable and subject to the discharge of all costs Defense: J. Gary Trichter, Houston (Mod- fenders, but only if the offense carried erator), Trichter & Hirschhorn a fine and imprisonment. The early law in the prosecution of the offender, and Prosecution: Kate Kelley-Miller, Austin, required that upon a second conviction "in the next place" to what restitution County-Attorney's Office in such offenses, the period of imprison- and reparation may he adjudged to the Judicial: Honorable Wilford Flowers, Aus- ment and the fine must he doubled. injured party. tin,Judge, County Court at Law No. 6 \Vhat about technical errors; \Veil, A person could be committed to Experts: Dr. Ken Smith, Houston, Executive the code provided that "no person ac- prison fornot paying afine or costs. But Dil-eclor, Rice Quantum Inslitule & cused of any criminal offense shall be ifa court found that the person"1iathno John Henry Hingson 111, Oregon City, set at liberty on account of any ir- estate or means to pay," the court must OregonJohn Henry Hingson 111, P.C. regularity or infolmality in the warrant order the offender released. 9:m CAPITAL MURDER nor on account of any error or imper- Bail was of course available by suf- Defense: Mark Stevens, San Antonio fection in the indictment or infom~ation." ficient security except in capital crimes (Moderator), Law Offices of Mark Defendants were legally provided "where the proof is evident or the Stevens with many of the rights afforded by presunlption strong." The code also Prosecution: Greg M. Pipes, Fort Worth, present day statutes. If you were provided that "the manner of inflicting Assisrant District Attorney charged with a capital crime, you were the punishment of death shall k by Judicial:Honorable Charles C. Cooke, given the right to have a copy of the hanging the person convicted by the Cleburne, Judge, 18th District Court indictment and a list of the trial jurors at neck until dead." Experus: \Vindel Dickerson, l'h.D., Bryan, least 2 days before the trial was to And just in case the drafters of the Practicing Psychologist 7 James P. begin. Every accused personwas given Grigson, M.D., Practicing Psychiatrist code left out something important, they the right to be represented by counsel. 10:00 -Break- concluded with the provision that "all The Coutt was also required to appoint offenses known to the common law of 10:15 DWl AND CAPITAL MUKDEK not more than 2 lawyers if the defen- England as now understood and prac- (Continued) dant requested connsel, and the ticed, whichare not provided in this act, 12:OO -Luncll- lawyers were given "free access to the shall be punished in the same manner 1:30 JUKY SELECTION accused at all seasonable hours." Final- as known to the said common law." So Defense: John E. Ackerman, llouston ly, defendants wet? given the right to those on the West Texas frontier were (Moderator), Attorney at Law :ompulso~yprocess to obtain the ap- still obligated on occasion to look to Prosecution: Alice A. Brown, Houston, As- pearance of witnesses on their behalf. motherEngland tomake sure that order sitant District Attorney, Organized The Stahlte of Liniitationsalso had its Crime Division and justice prevailed. xigination in the early criminal law. It Times have certainly changed. Per- Judicial: Honorable Louis E. Snlrns, Port provided that a person could not be haps it would be a wise endeavor for Worth, Judge, Coun of Criminal Ap- prosecuted for any offense, including peals our Legislatut-e to look back into early 2apital offenses, unless an indictment Texas history and see if perhaps our EXPERTS: Robert Hirschhorn, Houston, was presented within 1 year after the Trichter & llirschhorn current volumes of complex criminal 3ffense was committed. 3:00 -break- law and procedure could use some Our present day asset forfeiture sin~plification.After all, our first 3:15 JUKY SELECTION (Continued) xovisions also had their roots in the 4:30 -Adjourn- criminal code was signed on Dec. 21, aw of the Republic. The penal code 183Gjust before Christnmsby none other than Sam Houston. That alone iustities a second look. 0 About the Author Judge Larry Gist receiwd hism degreeporn the Uniuersity of Twas Law School in 1965. He was an ass~tantcri?nitmldistrictattormy in.le?nonCounty from 1965fo1974, whet5 he becameAssistant State'sAttornq forfhe Tems Couft of Critninal Appeals He bas been the Judge of the Crinrinul Diswict Court of Iefenon Cou%tysince1974. He ispast Chaitvnan of the crimitml lalo secttopi of the State Bar of Texm; a cou~sedirector of the Comparutiue Internatiotzal Criminal Law Cotrm. He has been Director and Presidact of theJeffenon County Young Inuyets Association and Director of the jefenon County Bar Association. He has made signiJcant contribirtrons to both the Texas Criminal Defense Lawyejs Association and the Texm District and Co~rwtyAttorney Association. Judge Gist bas spoken peqriently at State Bar of 7kassponsored seminuts, inchding theAduanmd CriminalLaw Course,He hasalso contrilnrted nzonerorrs altic1e.s in legalprrhlicatio~w;par.tici~Iarlythe Voicefor the Defense. He is a Board Certifid Specialist in Crimiml Law, Texas State Board of legal Specullizatio?~.

JUNE 1990 VOICE FOR THE DEFENSE GRANTED PETITIONS FOR DISCRETIONARY REVIEW

Sirrw JII!)~17, 195, the crdri~irristtutiue .:. .:. .:. .:. issue of "\villfulness" was properly ex- st@ ~fforrr~)~sof tl~e Corirt of Crirr~inal PDR 1508-89 flZ/ZS90, Galveslorr cluded! Appeals bnue cornpiled ill the rrorma/ Co., Arirfa Perez Oitiz, An. Mirrcler:. (1) couw of blcsilless, a list of casesa~dlegal\Vhether kt.44.29(b), V.A.C.C.P., is an issrres on rrniiich /he Corrrt I~nsgmrrted ex facto law wllen applied to trials PDR 1569-89 02/28/90, Rwis Co. petitiorrs for reuieru. Altl~orrgl~or-igirwlly o,llrring prior to its date. (A's PDR), Chester IBfuis Wilson, Dis- prepared for inter!rnl rise only, tl~eCorrrl P~R),(2) \vhether psyclliatric tes. rrrptiue Actiuify (1) \Vhether the COA bas arrtJ~orizedrelease of /lie list forprrb tilllony is at punishlllent erred in failingto considerwhether Scc. liccrtioir nrrcl for rise ly tl~ebeirch N~ICIDLir to rebut tile defendant,s clailll of 4.30 of the Texas Education Code is of Tews. nie issrres listed elre snnfriraries suitabilityfor probation, (S's PDR), unconstitutionally vague and over- as rrnorde~l6~1 tl~e stcia; nrrd do ?lo/rieces- broad? snri!]?reflect either /be reasorrirrg or /lie .:. .:. .:. .:. .:. phrc~seologyrised i)y theparties or by) the 4 *:. Cofrri. PDR 1559-89-1568-89 02/28/90, .:. .:. .:. 1Befollo1uii1gare/becasesnrrdiss1resor1Trauis Co. (A's I'DRs), Arrrolcl PDR 0032-90 02/28/90, Dc//lc~sCO. rinl~icl~tl~e Co~irt of Criririrral Appeals Szyrrrczcrk, Dlsr?ipliue ActiuiQc (1) (A's I'DR), Actiotz BailBorfds,BnilFor- grurrted reuiezu hrit lui~ichthe Corrlt hers Whether the COA er& in holding that fei1ro.e: (1) Is Art. 22.16(~)(2), trot jw crlelue~~cl61 rurittet~ opinior~: a county court-at-lawjudge has no duty V.A.C.C.P., a valid constitutional to refer a motion to recuse to the area statute? PDR 0601-89 02/21/90, Harris Co. presiding judge? (2) Whether the COA erred in failing to consider whether Sec. .:. .:. .:. .:. .:. (53 PLJR), R~rkrnirriSrrkclr170 Klirie, 4.30 of the 'kxas Education Code is A~iscrpplicatior~of I:idrrcinr], I'roper/ji. PDR 0095-90 02/28/70, ~Viorrt- unconstitutionally vague and over- gorrle~yCo. (A's I'DR), Pass. of Cl~ild (1) Whether the parole law charge was broad? (3) \%ether the COA erred in Porr~ogrnphj,:(1) Does Sec. 43.26(a) harmless beyond a reasonable doubt holding that defense evidence on the violate Stnrrlejr u. Gel., 394 U.S. 557? under 81(b)(2).

** .:. .:. .:. .* PDR 0832-89 02/2%/90, Dallas Co. (A's PDR), D~rrllasTrnqr Barge?; Mrr- de,:. (1) \Whether the parole law charge yes. You4 Ibrr(be. was harmless beyond a reasonable douP LICE doubt under 81(b)(2). L Gtk J~CFOF AP~E~L

PDR 0978-89 02/28/90, Liheltj~Co. (A's PDR), Jobrr Persl~irrgJohrfsorr, Deliuery of Cocairze: (1) \Vhether the parole law charge was harmless error beyond a reasonable doubt under 81(h)(2).

PDR 1468-89 02/2%/', IIarris Co. (A's PDR), Flo.),d Cririy, Pass. of Cocciirre: (1) For the exclusionary n~le exception of Alt. 38.23(b), V.A.C.C.I'., to operate, must the warrant have been based on probable cause?

JUNE 1990 VOICE FOR THE DEFENSE SIGNIFICANT DECISIONS

REPORT Editon Catherine Greene Burnett

George James SANTKOS, No. 923-88 - On D's PDR -Opinion byJudge Teague; Judge Duncan Concurs in Result; Judge White Not Participating; Concurring Opinion by Judge Berchelmann, Joined by Judges Mc- Cormick and Campbell; Dissenting OpinIon by Judge Clinton, Joined by Judge McCormick; December 20, 1989. C/AAffirmed at 754 S.\V.Zd 417. SEARCH AND SEIZURE - TEXAS ALCOHOLIC BEVERAGE CODE -ADMINISTRATIVE SEARCH FOUND REASONABLE: D was prosecuted for possession of cocaine. D was the owner andoperator of the Cowgirl Club, which had a mixed beverage permit from TABC The cocaine forming the basis of prosecution was found inside two locked file drawers located in D's puvate office - an area not open to the public. These locked file cabinets were open by D at request of ABC agent during a routine general inspection. D was told by the agents he could not refuse to consent to a search of the file cabinets. D attacked the constitutionalityof Section 101.04, Texas Alcoholic Beverage Code, claiming it less search of the area behind the bar and found cocaine in a was unconstitutional because facially too vague to beenforce matchbox in the handle of a trashcan located directly behind able under state or federal constitutions. the cash register. TCA upheld the search as lawful under TCAlejected this claim. Section 101.04 -without the need to address fact that con- fidential informant told police D was selling cocaine from HELD: An individual who obtains a liquor license or behind the bar of his club. liquor permit from ABC gives up the right to require TCA distinguished Crosb, 750 S.W.2d 768 CTCA 19871, on search warrant or probable cause to inspect the premises, two grounds: (1) the search conducted in Crosbyconcerned which includes even a locked filing cabinet. Section a third person -not the holder of the liquor license - and 101.04 is not facially unconstitutional because an inspec- (2) the search was not a Section 101.04 inspection of the tion might occur at "any time" without a search warrant premises. or probable cause to search, prov~dedtheinspection of the premises is related to the liquor license or liquor NO=: Plurality also found that Section 101 04, standing permit which has been issued to the holder. alone, does not reach any const~tutionallyprotected conduct, and thus is not overbroad for constitutional CAVnONARYNO7E. It is important to realize which purposes. issues were not before TCA in this case: (1) a situation involving an unreasonable inspection or (2) a pretextual CONCUIWG OPINION This three-judge concurrence search and seizure, as to time, place, or scope. agrees only with the result reached by the plurality opinion. It would focus on the third criteria of New York Itis possiblethat the holdinginthiscasemay herestricted u. Burger, 107 S.Ct. 2636 (1987) -finding that Section to its specific facts in future cases. Plurality opinion 101.04 provides an "adequate substitute for a warrant." emphasized, "We do not intend to leave the impression that either a liquor license holder or every nook and DISSENTfNG OPINION;. The two-judge dissent contends cranny of thepremiseswill atwaysbe fair gamefor agents the plurality does not, and indeed cannot, find that of the ABC or the police to inspect at will, or that such Section 101.04 constitutes a constitutionally adequate ~ndividualsare given the authority to make unreasonable substitute for a warrant, as required by S/Ct decisions. in~pections." Additionally, dissent claims that "holding" of the court Plurality relied on TCA's recent case in McDonald, - "goes so far beyond issues reasonably raised in this case S.W.2d -(No. 306-88; 10/12/83), which upheld search of a andamounts tosuchgratuitousdicta" that plurality could liquor-licensed premises challenged under the Fou~th not justify it with decisions from TCA or S/Ct. Amendment and Article 1, Section 9, of the Texas Constitu- ***** tion. In McDonald, the constitutionalityofSection 101.04was Jimmy MONTALVO, No. 1482-89 -Order Setting Bail not challenged. There police officers performed a warrant- -Per Curiam Opinion; December 20,1989.

JUNE 1990 VOICE FOR THE DEFENSE

APPEAL -BOND -FOLLOWING REVERSAL BY C/A: 1985); Scbrresslet; 719 S.W.2d 320 (TCA 1988); Anzold, D was convicted of murder; punishment was assessed at 40 719 S.W.2d 570 (TCA 1980; and footnote 1 in Combs, years confinement; ho\vever, C/A reversed conviction. State 643 S.\V.Zd 709 (TCA 1982). filed PDR. D applied to TCA (under Article 44.04(h), TCA was mistaken in Vau Guildwand Scbziesslerwhen it V.A.C.C.P.) to set reasonable bail pending final determination createda modifiedversion of the Jackson u. Wginia, 443 US. of the appeal. TCA set a bail amount. 307 (19791, standard and made it applicable to appellate review of proof of affim~ativedefenses. That test was wrong COMMENT Nthough not applicable in this case, Moil- for three reasons: (1) there is no corresponding statute stating taluo is significant because it is the first TCA opinion to that fact jurisdiction of C/A is not to be applied to criminal address the recent amendment to Texas Constitution cases; (2) although some form of appellate 'eview of the A~ticleI, Section 30 - which includes the right of the evidentiary sufficiency of affirmativedefenses is necessary, it victim to be reasonably protected from the accused. was not appropriate for TCA to create a standard of review Typically, the factors to be considered in bail criteria which conflicted with express language of Texas Constitt- include: (1) nature of offense; (2) ability to make bail; tion; and TCA had improperly concluded that a review of (3) prior criminal record; (41 confomiity with previous (3) suffic~encyof the evidence in classic term incorporated a bond conditions; (5) enlploytnent record; (6) ties to the review of D's claim tlrat D had proved his affnmative defense community; and (7) length of residence in the coni- munity. TCA recognizes that consideration of each of by a preponderance of the evidence. these iteoiizedfactors is not required-and the list is not LEGAL BACKGROUAD: Texas recognizes four affirm- necessarily exhaustive. Given the fact that TCA makes ative defenses: (1) defense to criminal responsibility of reference to A~ticleI, Section 30, of the Texas Constihl- corporation or association (Section 7.24, P.C.); (2) in- tion (the Victim's Bill of Rights"), it is I-easonableto sanity (Section 8.01, K.);(3) mistake of law (Section anticipate an additional criteria for setting the amount of 8.03, PC); and (4) duress (Section 8.05,1?C.). bail is going to be recognition of the victim's right to be C/A is constitutionally givenauthority to detennine if a jury reasonably protected from the accused. finding is against the great weight and preponderance of the ***** evidence. TCA retreats from its prior view that this standard Gerald Garcia MERAZ, Nos. 982-86 and 983-86 - On pernlits C/A to operateas a "thirteenthji1rorwit1~i.etopower." State's PDR -Opinion by Judge Duncan; Judges Davis, The double jeopardy clause does not prohibit a retrial Clinton, and White Concur in Result; January 17,1990. when conviction is reversed on the basis that the jury's claim C/A Reversed at 714 S.W.2d 108. of insanity or incompetency is against the great weight and APPEAL - STANDARD OF REVIEW -APFIRMATWE preponderance of the evidence. Such a reversal is based on DEFENSES - C/A MAY OVERTURN JURY FINDING the "weight of the evidence" and not on "insufficient BASED ON "GREAT WEIGHT OF EVIDENCE" TEST: This evidence." significant opinion addresses the conflict of C/Ns role in reviewing sufficiency of evidence relating to affirmative CALITIOiVAKY NOTE Majority noted, "We are not con- defense issues. It reconciles the approach taken by CIA in cerned with and express no opinion of the role of the civil appeals and overrides some recent priol- TCA decisions. Court of @peals in determining the sufficiency of the evidence relative to the proof of the elen~entsof the FACE D was convicted of aggravated sexual assault offense." Does this mean that the practical role of C/A and injury to a child. Before trial, he claimed he was would allow it to reverse a conviction when it reviews incompetent, and a jury was impaneled to resolve that the facts of the caseanddeterminesthe jury decisionwas issue. On appeal to C/A, D claimed that adverse resolu- "n~anifestlyunjust" even if there was evidence to suppo~t tion of his inconlpetency plea was against the great it? On the civil side, Texas S/Ct has consistently and weight of the preponderance of the evidence - so tlrat continually conceded it did not have jurisdiction tomake he should not have kentried on the principal offenses. a similar review of the evidence-will TCA move in that C/A agreed and reversed and ren~andedconviction. In direction as well? Although Memz can be read as a so doing, C/Afound it had both a constitutional right and cutting back by TCA of its powers of facti~alreview, it obligation to review the facts associated with the inconl- should be retuembered that an attack on the sufficiency petency plea and determine if the adverse ju~yfinding of the evidence (i.e., evidence to support the elements was "against the great weight and preponderance of the of the offense) involves due process implications. If evidence." these issues are characterized as "questions of law," HELD: Cornxt standard of review is whether, after con- review by TCA likely will remain unchanged. sidering all the evidence relevant to the issue, the judg- ***** nlent is so against the great weight and preponderance Larry Joe REZAC, No. 072-87 - On State's PDR - of the evidence so as to be manifestly unjust. Opinion by Judge Campbell; Judge Clinton Dissents; ludge Teague Not Participating; January 17, 1990. RAUO1\HLE: 1'CA joins Texas S/Ct and concludes that C/A Reversecl at 722 S.\V,2tl32. "factual conclusivily clause" found in Asticle V, Section 6, APPELLATE REVIEW SCOPE "UNASSIGNED of the Texas Constitution operates to limit jurisdiction of - - ERROR" IN C/A PROPER: C/A reversed D's D\Vl convic- TCA; that clause confers conclusive jurisdiction on C/A ion, holding that audio portion of video tape of D made at to resolve questions of weight and preponclel-anceof the police station should not have been played before the jury evidence adequate to prove a matter that D must prove. xcause it contained D's request for co~~nsel. State argued that C/A could not reverse D's conviction

JUNE 1990 VOICE FOR THE DEFENSE

based on unassigned error. TCA overruled that claim. State Evidence that D engaged in criminal misconduct some 12 failed to argue how C/A abused its disuetion and failed to cite hours afrer his escape was completed does not have any any restrictive statute prohjbiting such action. "Once an ap- tendency to make the fact that he departed from custody pellate court has jurisdiction wer a case, the limits of the without authority more probable than it would have been issues that the court may decide are set only by the court's without that evidence. The offense of escape began when D discretion and any valid restrictive statute." However, TCA "broke out" of the dormitory and was completed when he reversed the reversal of C/A because the issue was not went through- a hole cut in the fence boundary of the TDC prese~edon appeal -trial level objection (based on prob- unit. able cause attack) did not comport with the theory relied on i2) H@bt TCA fmds that flight is not an essential element C/A to reverse. of the offense of escape because that offense is completed as ***t* soon as an unauthorized departure From custody is made. -In Reginald Wayne McWILLIAMS, No. 129-87 - On D's the very natufe of such departures an escapee rarely lingers PDR - Ophion by Judge Teague; Judges McCormick, outside the place he has escaped." TCA rejects view that Davis, Clinton, White, Duncan, Berchelmann Concur in evidence of the extraneous offenses shows that they had a ResultjJanuary 17,1990. faciiitative purpose, C/A Affllmed at 719 S.W.2d 380. NOTE: Majority carefully distinguishes cases where PUNISHMENT - ENHANCEMENT - PUNISHMENT flight or escape e~therpreceded or followed an offense RANGE CANNOT BE ENHANCED WITH THE SAME other than escapeCe.g., escape after arrest and detention PRIOR CONVICTION USED AS AN ELEMENT OF TfIE for capital murder properly admitted in capital murder PRIMARY OFEENSE: D was convicted of escape; punish- trial). Flight after wmmissionof a crime canbe regarded ment was enhanced with one prior felony (burglary) convjc- as probative of "consciousness of guilt" (generally for tion. Under the pleadings alleged in thrs case, State was offenses for which accused has not yet been arrested or claiming D escaped when he was sewing a penitentiary tried). Here flight has no relationship to a completed sentence for the burglary. That same burglary was also al- escape fr(nn confinrrncnt in a pcnxl institulion afier 1) leged For enhancement of punishment. Such use is invalid. h:~sbccn wnvirted for :I crin~inaloffense. When a prior conviction is usedto prove anessential element Rebzrtfal of netessity &fmse: Here evidence going to of the offense, that use bars the additional use of the same (31 Under Section 9.22, P.C., prior conviction in the same indictment for enhancement "necessity" was undisputed. factfinder has to determine that D "reasonably believes" his purposes. unauthorized departure from custody is "immediately neces- N0711; That same result was reached in Fitzgerc?ld(No. sary to avoid immiient ham." D's belief that escape is 246-87), decided the same day. immediately necessary becomesfkcithe moment he acts on is*** ir. t':~ctfindc.r's cxntninatim can only focus on the gcnlvanc Donald Ray PITZGERALD, No. 246.87 - On State's EICLS;lnd circumst:mr(:s in existcnw :II that time 'I'lms. "ius- PDR- hion on by ~ud~eClinton; Concurring and Dis- tification through necessity" is a defensive theory thk is sen* OpinionbyJudgeTeague; JudgemteDissents., "incapable of being logically rebutted by proof of an ex- Jan- 17,1990. traneous offense." ' C/A Revemed at 722 S.W.2d 817. D's conscious objective and desire to depart from custody EXTRANEOUS OEEENSE - "RE.BUTIX" 'IISTIMONY without autho~itywas "not only self-evident" but undisputed ABOUT TWO -0US OEEENSES INADMISSIBLE under the fecord. Logically, the very nature of his defense IN ESCAPE PROSECUI10N: (necessity) concedes his act and the culpable mental state. Evidence of extmneous offenses conrn~itted12 hours later FACTS: D escapedfromTDC'sBeto 11 Unit with another was inadmissible on the issue of irttent to escape. Here juxy inmate. Twelve hours later D attempted to enter X's was instructed it could consider extraneous offenses only in house, stabbedxin a conh-ontation at the front door, and determining D's intent and "for no other purpose." fled when Xs son produced a shotgun. D's testimony raised the defense of necessityj t/c instructed jury on this NOlE: Section 38.01, P.C., defines the felony offense of issue. Over objection, State introduced evidence of ex- escape. That statute does not expressly proscribe a traneous offense on the theory it refuted D's claim of culpable mental state. However, in practice, the State necessity. T/c restricted juws considerarion of ex- usually alleges "intentionally and kdowingly." TCA as- traneous offense to "determining the intent of the defen- sumed, witbotrtdecMing, that a culpable mental state of dant, if any, in connection with the offense" and for no "intentionally" or "knowingly" was required under Sec- other purpose. tim 6.02, P.C. ***** On PDR, State advanced three theories for admitting the extraneous offense: 0) as part of '%anlecriminal episode"; Leonard MCKERSON, No. 681-87 - On D's PDR - (2)to show "flightY;C3) to rebut defensive theory of necessity. Dphion by Judge Miller: Judges Davis, White, and Ber- Seven-judge majority of TCA rejected each of those theories. chelmann Concur in Result; Judge McCormIck Dis- The 'pivotal inquiry" in admining extraneous offenses is (a) sents;Judge Teague Not Participating;Januaiy 17,1990 whether such evidence is relevant to a material issue in the SUFmCIENCY - EVIDENCE INSUPPICIENT TO SUP- case and (b) if so, whether its probative vahw oukwelghs its PORT GUILT UNDER THEORY SUBMITIED IN JURY idammatory aspects or potential. CHARGE: D was convicted of attempting to obtain drugs by (1) Same ctfnii~ralepkode:Extraneous offenseshere were Forge~y. TCA found the evidence insuf&ent to support not admissible to show "context" of the act of escape. conviction under theory of criminal responsibility in the

JUNE 1990 VOICE FOR THE DEFENSE

charge given. This is a classic case of the State's having tc deposit boxes, and cash drawers were located. Three prove more than it generally would need to because D.A. dic weeks before.commission of the offense, D was present not object to court's charge. in her apartment when her husband (X) said she had "cased out" the motel, that he needed money, and that he would kill any witnesses. . . .~---~--r tion and called the issuing docto; (2). At trial, Z testified D used her employee discount to arrange a three-day that Xhad once been his patient and that the prescription meeting of the "Moorish Feast Temple" at the motel. Men at issue had been altered from Dilantin to Preludin. Y garbed in turbans and robes identified themselves as testified that a man identifying himself as X telephoned "security" for the meeting and were seen wearing com- later that day to ask about the prescription's cost and municationl~eadsets;one ofthe men (Y)wasseenivitha gun. whether it was ready. Y told the caller the prescription At the conclusion of the meeting, D never returned to work was ready and then called the police. This scenario was at the motel. repeatedseveraldays latex-, That same day D walked into On the day of the offense, D arrived at 12:30 a.m. to collect the pharmacy with X and two women; all four people her last paycheck. The night auditor (CW) recognized her as went directly to the back of the pharmacy and stood an employee and led her to the front desk area, where he around in the back of the store area waiting 20 minutes retrieved her check from a safety deposit box. Sevexal hours for the prescription. At Y's request, the police were later, X and Y approached the front desk; Y was wearing a called. X followed the store manager when she left the headset like the oneearlierseenatt11eMoorishFeast meeting. store to phone the police. When Y noticed narcotics X wvas a~medwith a small submachine gun, and Y with a officer in the store, she announced that X's prescription pistol. C\V was told he wo11ld not be hurt if he cooperated was ready. D came foxward and handed Y a $100 biil; and handed over the contents of the cash drawer. Y brought he was arrested. X was apprehended outside the store \V (employee in training) out to the front desk area. Y then across the parking lot; he gave a confession, taking full opened the door and let D (who had apparently been waiting responsibility forthe offense and stating D knew nothing out of sigh0 into the front desk area. She was wearing no about the forgery. disguise and was recognized by C\V. T/c's charge to the juy had two separate application para- The two enlployees (C\V and \V) were forced into a closet, graphs. The first charged the jury to find D guilty if they found bound and gagged. X shot \V twice in the back, killing hini. him to be a primary actor. The second application "alterna- X then shot C\V, severing his spine and rendering him a tive" charged D as a prinmy actor and applied the law of paraplegic. parties to the offense. The State did not object to the charge. At the guilt stage, without objection, CW said he spent By failing to object to the charge, the State accepted the seven days in the hospital after the shooting and that he was greater burdenof proof placed on it under the charge. Here still undergoing treatment at the time of trial 10 months later. the State was burdened to prove both the aclual presentation At the punishment phase, D.A. offered testimony from the of the forged writing by D as well asDs participation in the surgeon who treated CW in the emergency room. D objected offense as a party. No evidence was adduced at trial to show that the testimony was not relevant to a material issue on D ever possessed or presented the forged writing. Thus the punishment and was aimed solely to prejudice the jury. In evidence was insufficient because no rational trier of fact response, the State argued the testimony would have been could conclude every element of the offense had been proved ldnlissible a1 the guilt phase, and was therefore admissible at by the State. 3unislment. \Vithout explaining why, t/c admitted the tes- imony. The surgeon chronicled the natul-e and extent of COi!4MEEI\IE Obviously, the evidence presented at trial XV's injuries: C\V would never regain bladder and bowel suggested alternativc theories of criminal culpability. :ontrol, he would never recover sexual and procreative func- However, TCA rejected them as a means of sustaining the ions, he would be required to maintain constant vigilance to conviction. The State's failure to object to the jury charge xevent infection and bed sores, and recurring spasticity or ask for a special charge meant that the jury instruction :auld ultinlately deprive him even of wheelchair use. "stands technically correct." ***** C/A reversed, finding the evidence was irrelevant to any ssue at punishnlent and was calculated to inflame the juxy. DorothyJeanMILLER-EL, No. 315-88 and316-88-On TCA disagreed. State's PDR - Opinion by Judge Clinton; Judge Mc- The of CW's paralysis wvas admissible at the guilt Connick Concurs in Result; Judge Duncan Dissents; barefkt itage as probative of X's intent to kill both C\V and \V. Judge Teague Not Participating; January 17,1990

JUNE 1990 VOICE FOR THE DEFENSE

RAi70NALE Apart from Alticle 37.07, Section 3(a3, render aid wlth proof of one final felony conviction. In V.A.C.C.P., the Legislature has never set a coherent policy Pluttq TCA panel invoked Section 12.410), P.C., to classify to guide courts in determining what evidence is ap- the primary prosecution for failure to stop and render aid as pmpriate to the punishment deliberation. TCA, in at- a third degree felony. tempting to fill this policy void, has concluded that Gutievez panel erred in holdmg that Section 12.41 only generally the circnnlstances of the offense itself and the operates to classify offenses used to enhance. This con- defendant himself will be admissible. "Circumstance of clusion was wrong for two reasons: (1) that consauction goes the offense"is the degree of injury-evenextendinginto against the plain language of the statute; and (2)that construc- the future - as long as the factfinder can rationally tion would render Subsection 1 of that provision "vi~tually attribute moral culpability to D for that injury. To find a meaningless" jury was not entitled to hear and consider the surgeon's HEID: Section 12.41 applies to determine classification testimony would necessitate a conclusion by TCA that tw retribution was not a permissible component of juty's of an offense to enhanced under Subchapter D of Chapter 12 of P.C., when that offense is defined oulsfre otherwise unfettered discretion to assess whatever punishment the jury decided fit the circumstances of the Penal Code and not classifted in accordance with its provisions. Here failure to stop and renderaid must be offender and the offense. considered a third degree felony under Section 12.41(1). NOTE: TCA gives passing nod to Booth u.Magtarzd, 482 Because the State alleged two prior felony convictions US. 496 (19871, which addressed the admissibility of for enhancement, punishment under Section 12.42(d) v~ctin~impact evidence at punishment phase of capital was proper. murder sentencing proceedings. Without deciding whether Booth applied in a non-capital context, majority ISSUE NOT ADDRESSED. Review was also granted on D's PDR, contending C/A erred in remanding only for observed that surgeon's testimony bore on D's moral new punishment hearing under Article 44.29(bI, blameworthiness. ***** V.A.C.C.P. D claimed this violated ex post facto provisions. Dispositionof State's PDR rende~edD's con- Joe David CHILDRESS, No. 690-88 -On State's and tention moot. TCA did not address it. D's PDRs - Opinion by Judge Clintoq Judge Teague **ill Dissents, January 17,1990 Patrick Joseph Lapasnick, No. 729-88 - On State's C/A Reversed at 756 S.W.2d 11. PDR -Opinion by Judge Campbell; Judge White Con- ENHANCEMENT - SECTION 12.42(d), P.C., CAN BE curs; Judges Teague and Bercbelmann Not Participat- USED TO ENHANCE OFFENSES OUTSIDE OF PENAL ing; ~anuiry17,1990 CODE: The issue is whether the offense of failure to stop and C/A Granted Relief at 751 S.JV.2d 880. render aid can be enhanced under the provisions of Section SPEEDY TRIAL - IS FURTHER PROSECUTION 12.42(d), PC. TCA concludes that it can. BARRED WHEN T/C DISMISSES CASE UNDER SPEEDY D was convicted of the felony offense of failure to stop and TRIAL ACT BEFORE TCA FOUND lW3 ACT UNCON- render aid. Article 6701(d), Sections 38 and 40, V.A.C.S. Jury STITUTIONAL? TCA says yes. found hvo enhancement paragraphs "true" and assessed punishment at 60 years. UAreversed, finding that theoffense PACB: D was charged with speeding and DWI. State of fa~lureto stop and render aid couldnot be enhanced under failed to try D for speeding charge within the the Section 12.42 because punishment for that offense is not specified in Article 32A.02, V.A.C.C.P. (Speedy Trial Act). classified in accordance with the Penal Code, as required by T/c dismissed cause with prejudice. D then moved to Section 1.03(b). have DWI prosecution dismissed; tkgrantedrequest. In ~ectioh1.03@), P.C., provides that February, 1987, State filed new information charging D with DWI, based on same incident forming basis of "the orovisions of Titles 1. 2 and 3 of this Code applv m charges dismissed under Speedy Tiial Act. In July, 1987, offen'ses defined by other la&, unless the statute definfng the TCA declared Speedy Trial Act unconstitutional in offenseomides otherwise: however. thepunishment affixed Meshell, 739 S.W.2d 246. D sought writ on grounds of to an offense defined outside this Code 'shall be applicable res judicata and collateral estoppel; t/c denied relief. D unless the punishment is classified in accordance with this Code." appealed and C/A "reversed tk. This case presents an issue of first impression - does Consistent with 1.03, failure to stop and render aid is an of- dismissal with prejudice of prosecution under former STA on fense subject to enhancement under Section 12.42 because D's motion serve as a bar to further prosecution for the same that section is found in Title 3 of the Penal Code, and the offense? TCA limited its consideration of the issue to equi- failure to stop and render aid statute does not "provide table rights vested in D at the time of dismissal of the com- otherwise." plaint and information. Prior panel decision of TCA was in emr- Guilemez, 628 Several prior TCA opinions addressed the effect of the S.W.2d 57 (TCA 1980) -when it held that the enhancement unconstitutionality of STAin a variety of procedural postures, provisions of 12.42 could not be used to enhance an offense denyingrelief in each of those cases. However, none of those not defined in the Penal Code and not punishable "in accord- rases involved D who had received fmal dismissal under the ance with Penal Code classifications. The proper approach ktand who then claimed a bar of former jeopardy when the was one taken by an earlier TCA panel in Platter, 600 S.W.2d state attempted to retry himunder a new charging instrument. 803

JUNE 1990 VOICE FOR THE DEFENSE

right or relief. However, an exception recognized in dictum error in a vacuum - thus it is necessary to compare or in Rose, 752 S.W.2d 529 (TCA 19871, occurs when (1) a contmt facts in eachcase. Here TCAcontrasted the factswith jndgment has been rendered under the unconstitntional Salterwhite. Assuming that anti-social conduct and senseless statute and (2) litigants have relied on the benefits of the acts could even be "gauged by degrees," seven-judge majority statute. TCA found the exception to apply here - (1) D's concluded the murder here was "even more atrocious." The initral motion for dismissal was granted and became final opinion focused on the mutilation of CW's body, including before TCA deckared STA unconsLitutional; and O the di- the fact that her vagina had been atout. missal, wiIh prejudice, createda substantial right for D. The In addition to the atrocious facts of the offense itself, the subsiantial right was D's interest in Fmality of the State's State presented a variety of witnesses to testify to D's bad prosecution - freedom from the expense of mmning a reputation - including law enforcement officers, other defense, the anxiety of standing accused by the State, etc. I).& Iocd wsidcnts, and I~iglischool administrators. Ad&- tionallv. I) h:id Ivxn i~reviouslvwnvictcd of a fchnv. (I low- HELD: Further prosecution of D for this offense is ,. , - prohibited, consistent with principles of equity and the ever, as the dissent points out, the prior offense was felony validity of STA at the time the original dismissal was car theft.) In addition to Dr. Grigson's testimony, the State entered. also called a clinical psychologist. The majority found his testimony - that there was no chance of rehabilitating D - CASES OVEKRULED. To the extent that lead opinions m quite significant. Thus, although some of the evfdence prior cases before TCA susest there is no exception to presented here was similar to Satfenuhite, majority concluded the ~ulethat an unconstitutional statute is incapable of the differences "are even more pronounced." Here Grigson's ewproviding the basis of a right, those cases are over- testimony was not as forceful or assertive as his testimony in ruled. S&?ue?~sorz, 751 S.W.2d 508 CTCA 1388); Jefletsorz, SatterwI~ite.Thus, it was not as critical to the punishment 751 S.W.2d 502 (TCA 1988). verdict. In contrast, the psychologist's testimony was much ***** more vehement; there was no question that that testimony Kerry Max COOK, No. 63,643-OnRemandfromS/Ct was admissible. Considering all these factors, TCA found - Opinion by Judge Duncan; Judge Teague Dissents beyond a reasonable doubt that improper admission of (Opinion to be Piled at Suture Date); Dissenting Grigson's testimony did not contribure to D's punishment. Opinion byJudge Clinton,January 17, 1990 Majority opined that in any .case where a claim of EsteIIe u. TCA Originally Affirmed Capital Murder Conviction at 741 Smith error is presented, it will be necessary to examine the S.W.2d 928. entire record in a 'heutral, impartial and even-handed man- PUNISHMENT EVIDENCE -CAPITAL MURDER -IM- ner" and then evaluate the probable impact of that evidence PROPER ADMISSION OF PSYCHIATRIC TESTLMONY on the juryand whether the evidence contributed to the jury's POUND HARMLESS: During the punishment phase of this verdict. TCA reasoned that not to do so wouldin effect create capital murder trial, t/j improperly admitted psyclriatric tee a ~uleof automatic reversal for any claim of BleIle v. Sniifh tiinony that violated D's right under Flfth and Sixth Amend- error. menrs. BteIIe u. Smith, 451 US. 454 C1981). However, in its original disposition, majority of TCA concluded that the enor DISSENTING OPINION Uudge Clinton): The dissent was harmless. U.S. S/Ct remanded for further consideration characterizes the opinion as "reminiscent of prior in light of Salteriuhife u. Texus, 108 S.Ct. 1792 (1988). rejected conclusions of this court" and labels it "little more than a capsuled restatement of pertinent parts of LEGALBACKGROm In Satteru/~ife,S/Ct agreed with the majority opinion on original submission." The dis- TCA that violation of Sixth Amendment right to counsel sent also focuses on the facts that: (1) there was no ~ecognizedin Estelle u. Smlfl, was not per se reversible evidence D had committed prior criminal acts of em. However, S/Ct rejected TCA's harmless error violence; (2) the psychologist who testified was not methodology. Instead, the proper inquiry is "whether "unknown to this Court," and on one occasion his tes- the State has p~ovedbeyond a reasonable doubt that the timony was tejected as "ludicrous" by TCA; and (3) the mror complained of did not contribute to the verdict role of psychiatric testimony and expert.. was repeatedly obtained." This is a Chapman u. Califomicr, 386 U.S. 18 stressed by the prosecutor dunng final arguments. (19671, harmless error analysis. ***** Since mid-sunnner,TCA has been wrestling with the evoiu- Ex parte Jesse Anthony LUNA, No. 70,825 - Writ tion of the harmless error doctrine. In Hawis, -S.W.2d - Kelief Denied on State's M/Rehearing - Opinion by (No. 69,366; 6/28/@), TCA expressly rejected a conclusion iudge Miller; Judge Clinton Concurs In Result; Judge of harmless elrol merely because there was "other over- Ceague Not Participating;January 17,1990 whelming evidence to support the jury's vedict." TCA recog- INDICTMENTS - THEIT - NO LONGER ANY PUN- nized the inherent difficulty in applying a hamdess error IAMENTiU DEFECT FOR FAILURE TO ALLEGE THEIT analysis because the rule is expressed in conclusory terms, JYAS "WITHOL!T OWNER'S EEEECITVE CONSENT': This and the analysis is basically "a natural reflection of an in- s a significant opinion that further undermines the area of herently subjective [mentall process." Thus, TCA found it undamentai defects in the State's charging instruments. "virtually in~possibleto make any empirical rules or guidelines." FACTS This was a post-conviction collateral attack. D Against the background of Sanenubite and Harris, seven- was convicted in a bench trial of two Felonyautomobile judge majority hereconcluded that admissionof Dr. Grigson's thefts; punishment was assessed at eight years confine- psychiatric testimony at punishment was har TCh ment. D did not take a direct appeal; his second applica- noted it was impossible to calculate the harn~fulnessof any tion for writ reliefwas granted inan unpublished opinion

JUNE 1990 VOICE FOR THE DEFENSE

in March, 1989. That,opinion granted relief on the TCA began its analysis of the factors by contrasting harm- grounds that the indictments in each case were fun- less ems at guilt-innocence with punishment elror. When a tli~menkdlydcl'ectivc bcca~isctl~y lackcd :illegdtions jury dctcrmines pl~nisluneotin 3 felony trial, thew is not :an tlinl the oro~x:rtvw:~staken witlinut tl~e(~wner's crffc:ctivc "i%suenf~rthc ,iuw , to dccide. lndetrl.'l'(:A rccomizes- tlvat the consent - an allegation required by TCA in Reynolds, impact of a Section 4 instrudion on the jury is virtually 547 S.W.2d 590 (TCA 1977). immune from traditional appellate review - there is rarely On rehea~ing,TCA agreed with State's contention that evidence in the record that jurors actually did consider parole Rey~ddJ'rationale has been completely undermined by sub- law and good conduct time in determining punishment. sequent decisions of TCA. McCtaitr, 687 S.W.Zd 350 (TCA However, experience demonstrates, as recognized in Rose, 1985); De~g,747 S.W.2d 800 (TCA 1988). The conflict in these that the "best likelihood" is that the jury wig consider the decisions stemsfrom confusing the elements constituting the existence of parole laws, thus assessing a term of years it offense of theft with evidentiary matters that constitute proof believes may insure that D serves more than the minimum of commission of the offense. term prescribed, regardless of what prison parole authorities In theft cases, State need only allege that the person (1) decide at a later time. For this reason, a ~eviewingcourt must unlawfully applopriated property and C2) with the intent to examine the record for indicia of factors "reasonable con- deprive the owner of the property. An indictment is not ducive" to affect the minds of average, rational jurors. fundamentally defective for failure to allege the propetty was Factor 1 - Vbir Dire Em~ni?zafio~z.TCA notes that in appmpriated without the owner's effective consent. trying to "qnali pmspective jurors on a Section 4 instruc- CASET OWRRULBD: Reynolds, 547 S.W.2d 590 tion, trial counsel introduces them to a constitutionallyforbid- ***.* den exercise of discretion, tends to lay the predicate for later Joel Gregory ARNOLD, No. 482-89 and 483-89 discussion of parole, and increases the risk of inducing jurors ANDERSON GAINES, No. 507-89; Edwin Francis to speculate about parole during deliberations on punish- HOOPER, No. 627-89; Gary Wayne PAYNE, No. 530.89; ment, The review of voir dire examination should not be so much a question of harm per se as it is one of the relevant and Peggy Marie TAYLOX, No. 373-89 - On PDR - Opinion by Judge Chton; Concurrfng Opinion by circumstances for determining the ultimate impact of the Judge Campbell; Concurring and Dissenting Opinion improper parole law instruction. by Judge McCormick; Dissenting Opinion by Judge Factor 2 - Objeclion to Charge: Trial counsel does not Teague; Judge WhiteNot Participating;Jammy24,lggO have to obect to the parole law charge in order to preserve STANDARD OF REVIEW - PAROLE LAW JURY IN- error. Rose However, the fact that such an instruction was STRUCTIONS -JUST WHAT LS HAXMLESS ERROR? Five given to the jury over objection dispels 'bny speculative I'DRs were consolidated to address fhe issue of application of notion that connsel might be seeking to gain some advantage the harmlesserror rule in T.R.AP. 81(bX2) to the question of from the instruction " Additionally, the very fact that an parole law jury charges authorized by Article 37.07(4), objection is overrnled "practically invites legitimate com- V.A C.C.P. Those instnrctions were held unconstitutional in ment" during jury argument. Rwe, 752 S.W.2d 529 (TCA 1987-1988). The majority opinion Factor3 -Arg&unmzt: In reviewing prior decisions, TCA is 62 pages long; the conuirrmg and dissenting opinlons somewhat briefer. TCA attempted to rectify disparate harm analyscs being Majority recognizes prosecution strategy of making the point used by coutts of appealsinappellate leview of Roseerror. It abut how parole law has worked in the oast for the very D iw~l:uc!dapprmin~atcly six f:~<:t~rsthat shonld In! consitiercd on trial -e.g., juro~shave already heard the parole instmc- whtw dcttmnininr il tile crroncous instruction conlril~utctlto tion, D.A. points out how D was ~etumedto the community the punishment bYeyond a reasonable doubt - the harmless 12 years after receiving a 25-year sentence. error standard of T.R.A.P. 81(b)(2). In formulating these fac- TCA agrees that is not errorfor either Smte or D to argue tors, TCA stressed that no "hnght line" rules could be ~nade law of parole to jury-so it is mconsequential which attorney for determining harmless error and warned that the impor- first "opens" the subject of parole; an "openel' does not tance to be given the various factors would vary qualitatively necessarily "invite" opposing counsel's response. The key is and quant~tativelyfrom case to case. that while an argument may not bepwse error; an argument that tends to induce consideration of the parole eligibility, G.4U77ON Be aware that not every kind nf enor is formula of the Section 4 instruction works to corizpozcrrdRose subject to a Rule 81!&)(2) analysis. Use of that nile elm. Thus, it can influence the jury in punishment delibela- presupposes that the error is in fact subject to harmless tions. Bottom Line: Lawyers who choose to address the e'or analysis not provided elsewhere - for example: provismns of Section 4 and its workings can create "implica- (1) in a statute especially providing a standard of review tions of hamf either by the iemarks standing alone or when for some errors or(2) when a mandatory statute has been coupled with other indicia in the recard. violated or there is an issue of automatically reversible constitntlonal error. Facfor4-JlrgrNofe: When a jury sends out a notemaking some sort of inquiry related to palole, it reveals the jurors are BURDEN OF PROOE Remember that undm T.R A.I? then and the~e"discussing" and c con side^^ the subject of 81(b)(2), the State is the beneficia~yof the ermr - thus parole. This inlportant factor in the ham analysis cannot be the State has the buden to show beyond a reasonable easily dismissed. The note indicates the jury has passed a doubt that the ermr did not contribute to the ve~dicton "point of no return" - at that stage, "reasons for finding no punishment Anappellate coua must be able to find an r~sk[that punishment was based on exttaneous considera- error harmless beyond a reasonable doubt. tiond and to justify the punishment must be more than a

JUNE 1990 subjective view of the facts of the offense and a PI-iorcriminal ment. For example, it is just as logical to think that because record." of the nature of the offense jurors were motivated to try to Factor 5- Years Assessed, This factor is not necessarily delay exercise of clemency powersby increasing punishment related to argument or the issue of jury notes. TCA rejects the in anticipation that parole would be granted. In the same view that just because the punishment actually assessed was vein, D's prior criminal record can just as well be thought to somewhere in the miti-~ange,the jury did not consider parole. contribute to motivatinga jury to assess an increased punish: Because of the current context of the Section4 instruction and mcnt. the sophistication of jurors, "any notion that a term of years Majority then discussed application of the various factors somewhat less than the maxitnum permitted amounts to a to each scenario presented in this quintet of cases. Final tally: 'break' for the defendant is passe." harmless error in three cases; harm found in two cases. Even without an explanation from trial counsel, jurors are CONCURRING OPIATOA' Uudge Campbell): Majority capable of making pal-olecalculations forthenlselvcs. For this opinion should not leave the impression that it has reason, a verdict on punishment standing alone is not a gauge provided a lailndly list of possible factors to be checked for harnl. Instead, it serves somewhat as a "barometric off each time an appellate court undertakes a Rule measure" of the other factors likcly to influence the jury's 81bX2) analysis. The concurrence suggests that this assessment of punishn~ent.TCA stresses there is no "bright harm analysis of Rosee~-rorsshould not be more difficult line" rule. than testing sufficiency of evidence in a circumstantial Factor 6- Miscell~i~eorrsCoriside,utior?s: This group in- case. cludes other consiclentions so rarely encountered that they do not deserve sepaixtc categorization, even though they DISS~~IVTIVGOPINION Uudge Teague): The dissent might be significant in a particular case. Onc example is the wants guidance to bench and bar through bright line ju~yfinding of a deadly weapon. TCA notes this may have n~les. It cxpresscs dismay that even after these con- some bearing on the jurors' deliberations in determining solidated opinions, each case dlrest on its own merits, punishment - but the bearing should be "reasonably rather and "the winner will be decided by the equivalent of a than erroneously" inferred. A second example occum when coin flip." Judge Teague concludes the only way to the jury rejects an application for probation that was properly conclusively resolve the issue of reversible Roseerror is proved up and submitted to it. Once again, the significance to have the jurors who have heard the case testify if the will valy from case to case; ho~\wer,TCA does recognize that parole law instruction made any contribution to their in a particular case a reviewing cou11 may find a correlation verdict on punishment. In the dissent's view, the con- between probation and a Section 4 instruction. The final trolling factol- now is the "luck of the draw" - which example given is the l~nusualsituation when D is convicted court of appeals hcars the case. Judge Teague also of two or more violent offenses involving ~nultiplevictims and points out that one factor omitted by the lead opinion is various punishments are assessed by the jury. In judgment of that theplaceof trial can be an influencingfactor on the TCA, based on review of various C/A opinions, jurors seem punishment actually asscssed, giving this example, to focus on the offense that carries the highest penalty, with "What may be denominated a 'misdemeanor' murder in the other offenses "more or less falling in line below it." Houston might be characterized as a 'felony' murder in Role of "Czrmliue Iizstrrrctioi~': TCA, in this opinion, is Montague County." The pl-oper remedy, argues the dis- tlying to do what it did not do in Rose on rehearing - to sent, is for TCA to "bite the bullet" and reverse all Rose charge cases. formulate guidelines for determining harm. One issue in- ***** volves the role of the "curative instruction" to Rose error. 'I:R.A.I? 81(b)(2) requires an appellate "presumption"of harm Calvin Lee JOHNSON, No. 1147-87 -On D's PDR - flowing from the fact that a Section 4 instruction was given. Oplnion by Judge Duncan; January 31,1990 This presumption contradicts the general appellate "rebut- C/A Affirmed at 737 S.W.2d 901. table presumption" that a jury followed the instructions given JOINDER AND SEVERANCE- WHEN TWO OPFENSES to it by t/c. Attempting to apply that "rebuttable presumption" ARISING FROM THE SAME TRANSACI'ION ARE AL- to Rose elrors presents "knotty problen~s."The effective use LEGED IN ONE INDICTMENT, ONLY ONE CONVICTION of thisrebuttable PI-esumptionisashifting toD to demonstrate CAN harm - contrary to 'S.R.A.1'. 81(b)(2). In judgment of TCA, RESULT: C/A opinion was delivered before TCA's decision the presumption of harm found in Rule 81 must prevail over in Fortrrrie, 745 S.W.2d 364 (TCA 19881, which adhered to the the standard appellate "rebuttable presumption" - in the basic "one offense per indictment" rule - regardless of context of parole law, that presumption is "nlore fiction than whether offenses arose out of the same or out of different fact." However, the fact that the curative instruction was given transactions. is a proper factor (among all the others) for reviewing court TCA reversed decision of C/A because that opinion relied to consider in making a harm analysis for Rose error. Once on cases overruled by i;o,frrize. The decision is significant, the record suggests that the jurors did indeed succun~bto the however, for its treatment of a unique argutnent by D.A. The temptation to discuss parole law, then the "ciuative instruc- State contended that because cases overn~ledby Fortune tion" loses its value as a probative factor. were valid authority in effect at the time of both the commis- Another problematic issue is the "l~einousness"of the of- sion of the offense and of C/A opinion, Fo?.tzrrie should not fense. TCA finds that a conclusion that the "facts are so control. Prosecutor relied on the amendatory act of Section aggravating that punishnlent is appropriate'' is not a satisfac- 3.01, Section 2, V.A.C.C.P: tory resolution of Rose harm - this is a slippery indicator for Yb) 'The joinder of prosecutions for offenses arising out of a gauging how a jury evaluatedD'sconduct in assessing punish- single criminal episode, if any of the offenses were conuuitted

JUNE 1990 VOICE FOR THE DEFENSE

before the effective date of the act, is covered by the law in [mechanism for including special instructions in court's effectbefore the changes by this act, and the former law is charge on timely request]. continued in effect for this purpose." There may be conflict between these two provisions. TCArejected this approach, finding that the amendatory act Texas Rules of Criminal Evidence provide a hierarchical was directed to statzrtoryprovisionsand not to caselaw inter- scheme for governance which places Code of Criminal Pro- I pretations. cedure provisions above provisions in the Evidence Code. Rule 101(c). That rule provides that, where possible, any PRESERVA77ON OFERROR: Remember, it is not neces- inconsistency is to be removed by reasonable construction. sary that D object to a misjoinder in order to preserve The careful practitioner should not rely on Rule 101exclusive- enor for appellate review. ly. The better practice will be both to object to the evidence ***** at the time it is adduced and to request a special instruction Charles Mitchell RICHARDSON, Nos. 693-88 and 694- at the time t/c's charge is submitted to the jury. '88-OnState's PDR-Opinion by Judge Berchelmann; PROCEDLR7AL NOIE: Under Rule 105(a), Tex. R. Crinl. Judges Clinton and Duncan Concur in Result; Judge Evid., failure to make a timely request forlimitinginstruc- Teague Not Participating; January 31,1990 tion means that the t/c3saction in admitting the evidence C/A Reversed at 751 S.\V.Zd 663. without linlitation cannot form the grounds for com- IMPEACHMENT -LIMITING INSTRUCTION --WHEN plaint on appeal. IMPEACHMENT EVIDENCE IS AISO ADMISSIBLE AS ***** DIRECT EVIDENCE, T/C IS NOT REQUIRED TO GIVE Alvin Wayne CRANE, No. 69,977 Capital Murder LlMlTlNG INSTRUCTION TOJURY: In a consolidated trial, - Conviction Affiied Opinion by Judge Campbell; D was tried for aggravated felony possession of marijuana and - Judge Clinton Dissents (With Explanatory Note); Judge possession of cocaine. C/A reversed, finding that t/c erred by Teague Not Participating; January 31,1990 failing to submit a requested limiting charge to the jiuy con- EVIDENCE HEARSAY NO BUSINESS RECORDS cerning itnpeachnlent evidence. TCA disagreed with this - - EXCEPTION FOR RECORDING OF D'S PHONE CALLS conclusion. MADE FROM JAIL: D complained dc inproperly excluded FACTS Local police were told by aninformer about drug a transcript of telephone conversations he had with his wife activity at D's home. Anned with search warrant, police while he was incarcerated in Oklahoma jail. D argued exhibit forced their way through barricaded back door of the should have been admitted as business record. TCA dis- house. When D and co-D tried to flee, they were caught. agreed. D's fnmed birth ce~tificatewas found in a bedroom in FACTS. At guilt-innocence, D attempted to introduce a which police recovered 186 grams of cocaine and 56 transcript of a series of phone calls between him and pounds of marijuana. Additionalcocaine and another 97 various family menhers and friends, including his wife. pounds of marijuana were found in other parts of the These phone calls were ride \vhile D was incarcerated residence. There was also cocaine found on appellant's in an Oklahoma jail. The tapes show D was aware he person. Co-D testified for D at trial, even though he had was being recorded. Although the exhibit was initially already pleaded guilty. He stated that following his admitted, it was later withdrawn after both sides had testimony in pre-trial hearing on D's case, co-D was closed evidence; at that time it had not been shown to arrested for pe jury. Despite this, he said he was willing the jury. T/j said he withdrew the exhibit because he had to once again testify in D's behalf. This he did, claiming erroneously admitted it as a business recol-d. that D did not possess any cocaine or marijuana. COII- Law enforcement ofkers testified that while D was in jail, tained in co-D's plea papers (introduced by Dl was a most of his phone calls were monitol-ed;they were automat- priorinconsistent statement that "1 connnitted theoffense ically taped by a recording device. The officer testified the along with X and D." calls were monitored "in the ordinary course of business." On cross-examination, D.A. tried to in~peachco-Dwith that State's original trial objection to admission of the transcript prior inconsistent statement. Co-D admitted that it was his was lack of a proper predicate. State later objected the prior statement that D did not commit the offense, when statements were self-serving. D argued on appeal that the contrasted with his plea papers, that caused his aggravated exhibit was relevant to two punishment issues - deliberate- peju~yindictn~ent. At the time of this cross-examination,D ness and future violent conduct. did not object to it or request that co-D's prior inconsistent statements be limited to impeachment purposes. HEU), Business record exception [Tex. K. Crim. Evid. 803(6)1 to heanay rule does not apply here. The purpose HELD: When D introduced co-D's plea papers without of the business records exception is to dispense with the limitation, the statement ',I committed the offense along need of proving each and evely book entry made by the with [Dl" became admissible evidence for all purposes. ... person actually making these entries. The underlying When evidence is adniissible both for impeachment pur- theoly is that there is a certain probability of t~ustwortl~i- posesand as direct evidence, no limitingchargeis neces- ness in the records which are I-egularly kept by an or- sary. ganization while it is engaged in its activities and upon ISSUIiiVOTADDUSSED: TCA did not reach the interplay which the organization ordinarily relies. TCA rejects D's between Kule 105(a), Tex. R. Crim. Evd. [when evidence claim that the transcript of his jail telephone calls was a is admissible for one pol-pose but not admissible for business record for three reasons: (1) the jail calls do not another, on request t/c shall instruct jury about proper appear to be a regularly conducted activity as con- scope of evidence1 and Article 36.14, V.A.C.C.P. templated by the rule. For example, one of the officers

JUNE 1990 VOICE FOR THE DEFENSE

testified that "most of the calls" were recorded; this im state. Its probative value is not substantially outweighed plies the existence ofa discretio~latypol~cyThat discre by any prejudicial effect. TCA notes that video record- tion would cast some doubt on the reliability of the ings in general may be "more helpful"' to a jury than stiU records. (2) The statements here were selfserving hear photographs because they allow a "more panoramic say. The information recorded by the jail calls was sup representation of the physical and forensic evidence." plied by D and various family members and friends. Thc However, TCA would not go so far to say that such tlansclipt was offered for proof of the matter asserted - that D suffered blackouts. This type of self-semiy hear videotapes areperse admissible As with still pictures, say statement does not possess the "fundamenta t/c must decide, after viewing tape, whether probative t~ustworthiness"contemplated by the business recorc value of the video is substantial or slight and, if slight, exception. TCA noted that wen had the tapes beer whether the offer of proof is made solely to unfairly adnrissible under hhcarsay exception, the contents of the prejudice or mislead jury. record are still subject to hearsay objections. (3) Therc *I*** was no merit to D's claim that the transcript was relevanl Den& JosephFLORIO, No. 1107-88-OnD'sPDR- to the issues of deliberateness and future dangerousness Opinion byJudge McCormtck;Judge White Concurs in Although t/c has discretion to admit or exclude evidence Result; February 7,1990 under A~ticle37.071Ca), V.A.C.C.P. [capital murde~ punishment], this discretion extends "only to the C/A Affirnled at 758 S.W.2d 351. relevance of the evidence and does not alter the Rules of Ih'JURY TO A CHILD BY OMISSION -NO CRIMINAL Evidence insofar as the manner of proof is concerned." LIABILlTY IN ABSENCE OF STATUTORY DmTO ACT: This is a reprise of recent TCA decision in Bilhzgslea, 780 LEGALBACKGROW: Even when evidence falls under some statutory exception to the hearsay rule, it must still S.\V.Zd 271 (1987), which involved a prosecution for D's acts have the "indua of leliability" required for admissibility of omission in caring for his elderly mother. In Billingslea, of evidence. McCrary, 604 S.W.2d 113 (TCA 1987). conviction was reversed because at the time of the offense, Heaisay within hearsay is inadmissible. TCA analogizes no statute provided either a.duty to act or that failure to act the tape and transcript here to police offense reports. constituted an offense. Although suchreportsmay meet the forn~alrequirements of the business record exception, they sllould not be FACTS: D was charged under Sectton 22.04, P.C., with automatically admitted. Once again, the fundamental injury to a child by omission. D was live-in boyfriend of tn~shvorthinessof the record must be evident. Moreover, CW's mother. if the police offense report is offered as original evidence UA tried to fashion a duty for D by describing him as fol. the truth of the matter asserted, then the offered babysitter, disciplinarian, and caretaker of CW. However, evidence becomes hearsay within hearsay. record did not establish a statutoryduty care to CW by D. The BACKCIOUIVD: On an ironical note, in this case TCA indictment under which D NLU charged failed to allege a held that business record exception to hearsay rule did parent-child relationship creating a statutory duty to act. apply to police dispatch tapes and transcription ofthox Since there was no evidence to establish such a parent-child tapes identifying the location to which law enforcement relationship, any conviction based on the indictnlent is void. officer responding to a report of family disturbance ms ****1 di~ected. Richard Dean PAUISEL, No. 97-89 -On D's PDR - *a*** Opinion byJudge McCormlck; February 7,1990 Jennifer FlorettaGORDON,No. 1044-87-0nD's PDR C/A Affirnred at 763 S.W.2d 465, - Opinion byJudge Davis; Judge Duncan Concurs in Result; Judge Teague Dissents with Note; February 7, SCOPE OF REVIEW -INEFFECTIVE ASSISTANCE - MERITS 1990 C/A CANNOT AVOID OF CLAIM MERELY BE- =USE A'ITORNEY SIGNING BRIEF WAS TRIAL-LEVEL C/A Affirmed at 735 S.W.2d 510. EVIDENCE-VIDEOTAPE OF CRIME SCENE AND VIC PARTICIPANT: At C/A level, D claimed he received ineffec- TIM ADMISSIBLE: The issue here is whether admissibility of ive assistance of counsel at trial. Although C/A pointed out a videotape that includes close-up footage of the victim hat D listed "some 20 instances" supporting his claim that should be governed by the "still photo"admissibility standard ead trial counsel was ineffective, C/A did not address the of Martfn, 475 S.\V.Zd 265. TCA concludes it should. nerits of that claitn. Instead, C/A bypassed an ineffectwe lssistauce of counsel analysis by stating: FACTS; In case in chief, D.A. offered silent video depict- ing murder scene - including location, nature and ex- "The weakness of this positionis that the attorney who signed tent of victim's wounds, location of blood in various appellant's bnefalsopartic~patedmthe trial andsat at the table monls, disarray of furniture, position of the body and with the attorney he now contends was ineffective. Wnle we general "atmosphere" surrounding the crime - and haw fololrnrd 170 natliolif~~maizi~zg this an aucyfto17 to the cbse-up footage of the body from various positions and gerre~alnrlesof~~~lcQfetivennesofcofmsel, we belleve it should angles, reflectingbums on CW'sface and bloody, gaping be. Fortheattorney making such cornplarnt could andshould knife wounds to neck and back. point out the proper condun to his co-counsel, and even the court for that matter " HfiLD: Videotape here is highly probative of the fact and manner of CW's death and of killer's culpable mental TCA remanded for St~fcklmrdanalysis.

JUNE 1990 VOICE FOR THE DEFENSE

Child Abuse cause of the ease with which an ex- injury, occur more frequently in conrinrredfiomlmge 12 tremity can be violently pulled and children than in adults, probably he- twisted. Spiral fractures are usually ap- cause a child's skull is less thick, and type of the~malinjury found in abuse. parent on x-ray film at the outset. How- thus cannot be used as an index of the If such aninjury isseen before it reaches ever, they can be subtle and, whenever force involved or the seriousness of the an advanced stage of healing, its cir- possible, x-ray studies should be underlying inju~y. Frachlres may be cular shape with a diameter ap- reviewed by a radiologist, preferably a completely innocuous. On the other proximating that of a cigarette is pediatric radiologist. hand, serious brain injury can occur in unmistakable. The histo~yof an acci- Rib fracturesare most common in the the absence of fracture. When evaluat- dent involving a lit cigarette can almost infant or small children whew they ing for a fracture, the physician must always be elicited. Nthough any part result from anteroposterior squeezing consider that force directed to a small of the body may be involved, the palms of the thorax and thus have a posterior area of the skull is more likely to and soles appear to be favorite areas predilection. Pounding of the thorax produce a fracture than is that same and ones where circular healing sores produces rib fractures in the olderchild. force applied to a larger area. Thus, a of other causes are rare. Acute or old fractures should present no fracture is more likely to result if a Other household implements used to problem to the pathologist, who has child's head is thrown against a corner inflict thermal injury are irons and ample opportunity for direct examina- of furniture than against the flat surface stoves. Hot irons leave a characteristic tion during autopsy. Even very recent of a wall, even though the effect on the pattern burn on the body pat touched. hairline, nondisplaced fractures will underlying brain might be equivalent. When the kitchenstove is used toinflict show hemorrhage around them. These The surface contacted must also be punishment, the hands and buttocks fractures can easily be missed on x-ray considered. A hard surfacx of contact are the conunon areas of involven~ent. film and a radiologist should again be results in hvice the number of skull Examination of the mouthshould not consulted. fractures even when other circumstan- be overlooked by either clinician or Transverse or oblique fractures of the ces and ultimate outcome for the pathologist. A torn frenulum seldom midshaft of long bones and damage to patient are conlparable. The area ofthe occurs in the absence of abuse. Frac- bones ofthe hands or feet are produced skull which appears to be most vul- tured or inappropriately missing deci- by direct blunt trauma to these areas. nerable to impact fracture is the apex duous teethshould both bealestingsigns. They are not common. When present and parietal region. A useful n~leis to as a result of abuse, they are seen in the regard a fracture, when present, as an Internal Physical Signs older child usually in conjunction with indicator of a site of impact on the head many other assaultive injuries. and to regard brain inju~yas an in- Skeletal injury in various stages of Injury to the brain accounts for most dicator of the force involved. healing is one of the classic features of of the morbidity and nlortality in child Subdural hematonla also occurs battered children. It is more often seen abuse. The skull and brain of a child more conunonly in children than in by the clinician than the pathologist. react differently to trauma than theskull adults. This is probably due to the The most common site for such injury and brain of an adult, and one must not softer consistency of the child's brain, is the epiphyseal-metapl~ysealjunction attempt to extrapolate from one age which makes the tearing of bridging of long bones where growth takes group to the other. The chikl's brain veins easier in the "moving headversus place. It is seen more oftenin the infant does not display any typical adult brain stationary object" that is necessaly for or young child whose limbs become reaction until at least age two. the production of subdural bleeding. easy handles for pulling, jerking, and Despite the accounts given by child While subdural bleeding may certainly shaking. When' this occurs, the abusers, falls from heights of three feet kill by itself if left untreated, it is not a epiphysis jiggles on the metaphysis or less are innocuous. One 1977 study good indicator of the seriousness of resulting in subperiosteal bleeding. of 246 such falls in children less than 5 underlying brain damage. It simply Rarely does an actual fracture orsepara- years of age revealed no occumence of tells us that the child's head was moving tion occur. Therefore, this injury is ini- serious injury even when the surface through space and llit an object, rather tially invisible on x-ray film and does impacted was a hard one, such as a than vice versa. Thus, subdural not become readily apparent until 8 to marble floor." Cununins and Potter henlatoma may be present without 10 days later. Thus, in cases of surveyed 43 cases of falls from heights serious cerebral damage, and the latter suspected abuse it is important to of greater than 10 feet, 18 of which is often seen without subdural repeat a "negative" long bone series involved children less than 5 years of hematoma. A good illustration of this after healing has had a chance to age.' None of the children sustained is the fairly recently publicized case of manifest itself roentgenologically. In a serious brain injury. It was believed Travis John, son of New I'ork Yankee case of fatal battering, the pathologist that the greater flexibility of the child's pitcher Tommy John, who fell from the should both x-ray the victim and avail skull plus the lesser momentum com- third floor ofhis family'svacation home himself of the unique opportunity to do bined to decrease the deceleration onto the hood of a car, then the con- direct visual examination of the growth force on impact. The nature of the sur- crete driveway. Although he under- plates. face impacted was also important, went 90 minutes of neurosurgery Spiral fractures result from extreme probably for the same reason; a softer primarily for control of subdural bleed- rotational or twisting motion applied to surface absorbs more force and thus ing and was semiconscious for three an extremity. These arealso more com- decreases deceleration force on impact. weeks, the boy has made a complete mon in the infant or younger child be- Skull fractures, unlike serious brain recovery and is neurologically normal.

JUNE 1990 VOICE FOR THE DEFENSE

This is not to say that skull fracture, much less frequently in children and The urge to throw or slamsomething as subduial i~eematonla,and serious un- rarely, if at all, in those less than t~oa response to rage is a common human derlying brain injury are not often seen years of age. Thus, death from head impulse which persists for many into together. The physician is simply injury almost inval'iably occurs without adulthood. If the individual eliciting I warned to remember that a suWural either. Even when brain swelling is such rage happens to be anotheradult, hematoma alone indicates only that the marked, the classicsecondaryrnidbrain the object thrown is likely to be some- I head nn moving. The pathologist and pontine hemorrhages donot occur thing mall, such as a dish or glass. The who finds a subdural henlatoma at in this age group. Therefore, it is ex- object slammed might be a door. If, on autopsy, espec~aflyif the bleeding is tremely common for morbid or fatal the other hand, rage becomes directed i limited, must not immediately conclude head injury tomanifest itself, both clini- toward an infant or child light enough that this is the sole cause of death. cally and pathologically, as diffuse to be readily picked up, the chill may A "new" theoryfor the production of cerebral edema or hyperemia alone. instead be thrown or slanmed. subdural hematoma and severe brain The CT scan has been one of the most The lighter the child and the stronger damage is violent shaking of a child. valuable tools todate for both identify- the adult, the greater is the amount of Although first proposed well over 10 mg these processes and demonst~ating possible force that can be generated. years ago, it is unfortunately gaining their frequent occurrence in the brains This nlay well be the p~imaryreason widespread ~ecognitionand accep- of traumatized children. It cetrainly ap- why death due to head trauma in child tance by physicians and attorneys alike, pears to be much more definitive than abuse occurs most commonly in those particularly criminal defense attolneys. any measurement of brain weight or less than one year of age and becomes It is becoming extremely common for gross and n~icroscopicexamination less common as the child grows older. some kind of shaking, usually for burp- performed at autopsy. Thus, it is im- Por example, if a ch~ldisg~asped by the ing or resuscitation, to enter in the story portant that the pathologist be aware of ankles, arched over the adult's head, given by caretakers of a morbidly in- the results of these examinationsifthey then either tluown or slammed onto a jured or dead child. If not offexed ini- are available. hard surface, it is easy to see how force tially, it will almost invariably appear at Tears of the corpus callosum and strong enough to produce serious brain the time of tnai. Although most other fiber tracts occur in severe head injury can and does occur. The chid's reported cases involve infants, children trauma in children just as they do in hcad becomes the end of a whip con- as oldas four years have allegedlybeen adults. Lindenberg and F~eytagalso sisting of his own body and the artns of shaken to death. What appears to be described "grossly visible tears in the the caretaker. When a reliable history one of the first articles on this subject, cerebral white matter and nlicrascopic is elicited for the production of severe and certainly the one most cited, de- teats in the outermost layer of the cor- head injury, it is invariably one of pick- serves a critical reading before this tex extending parallel to the surface of ing the chikl up and throwing or slain- theory is ac~epted.~ rhe brain*'in mumatized infants." Un- ming it during a parental fit of rage. When animals shake prey to death, fortunately, these are easy to miss and injury to the cervical spine is the lethal can be very difficult to differentiate factor. Obviously, no one has ever from artifacts, especially if the interval details due to abuse. The age group done a study in whith a series of infants between trauma and death is shoa. both receiving and succumbing to this have been violently shaken to see what The presence of preretinal or retinal kind of injury tends to be older. Thus, nught happen, and I am not aware of hemorrhages can be of great value to the clinician is more lkely to see the any such study in other primates. Thus, the clinician. They are believed to be child who seldom shows abdominal it is not surprising that the cause-effect caused by sudden, pronounced, retinal bruises but is suffering from a per- relationship has been based primarily venous hypertension secondary to a forated duodenum, stomach, or colon. on histories given by parents or sudden elevation of inttac~anialpres- The liver and pancreas are also com- caretakers who have k~lledor morbidly sure. They are said to affect 50 per cent monly injured organs which, because injured a child and, as we know, these of children suffering from subdural they are not filled with fluid or air, do people are unreliable historians. Al- hematoma and can occur even in the not rupture but rather are crushed The though shaking of an infant can cenain- absence of neurologic symptoms.1° lack of external evidence of injury does ly be easily accepted as one component When present, they should alert the not appear to pose nearly as much dif- of an assault, it is much more difficult to clinician to the probable presence of ficulty for correct interpretation as it believe that it is the sole component cerebra1trauma. To the pathologist, in- does for trauma to the central nervous when se~+ouscerebral injury results, traocnlar hemorrhages are probably of system. espe,cially when no cervical injury is academic interest only, given the status The sudden rapid "positivenegative" present. Since children have fallen of the victim, the pathologist's oppor- pressure gradient which results from prodigious distances without sustain- tunity for direct visualization of in- sharp blows or pounding of the chest ing serious brain injury, it is difficult to tracranial contents, and the technical or abdomen may also manifest itself by formulate a reasonable mechanism, dfficulties involved in posrmotrem ex- tealing of the mesenteric and hilar at- considering both neuroanatomy and amination of the orbit. tachments of the bowel and lungs, as the forces involved, for this to occur as Inlight of the foregoing discussion of these organs are-pushed (or pulled) the result of mne~elyshaking the child, central nwous system injury in child away from fixed structures. no matter how violently. abuse, how can an adult inflict greater The toddler appears to be particu- Unlike adults, mumaticintracerebral forces on a child's head than those larly apt to display perirenal or hematomas and contusions are seen generated by falls from great heights? pe~jadrenalhemorrhage, or frank rup-

JUNE 1990 VOICE FOR THE DEFENSE ture of a kidney. His small mze but ~fchild abuse. It encompasses not only jive test results are nomal. Thus, it is upright posture makes him an easy tar- 'ailure to provide the basic necessities unperative that any child who presents get for kicks to the back. ~flife, but also faiiure ?rotto vent one's with failure to thrivehe hospitali2cdfor When more than one serious or -rustrations on those who are smaller at least several days for a good nledical potentially fatal internal injury is ~ndweaker. There is a definite wok-up. present, the physician is often asked to ipectntm between deprivation and 11 is not surprising that physicians, give the sequence ofinjury. Seldom are hse, with many cases showing ele- given their reluctance to believe or be- injnries of this nature spacedfarenough ments of both. However, many if not come involved in cases of frank physi- to enable one to offer such an opinion he mawry of children who are physi- cal abuse, often underestimate the based on medical findings. It is fair, :ally, sometimes fatally assaulted, do significance of deprivation. Satisfied however, to use a common sense ap not show signs of deprivation. They tbt the chid is not suffering from any proach when applicable to reach a con- 3ften appear to be well-nou~ished, known medical condition, many reach clusion about probable sequence, well-developed, and, were it not for no conclusion at all or decide that the provided that this approach is under- inpries, well-cared for. Diaper rash, for deprivation is due to maternal ini- stood by all palties For example, when example, as common as it is in the maturity or "poor bonding" that will severe head traumaaccompaniesa lup- average baby, appears to be no more cure iaelf. This is panicularly true if the turedviscus orsddingburns, it is fairly Frequent in the physically abused in- child shorn no external evidence of safe to assume that the head tiauma Fant. injury. Unfortunately, even physicians occurred last. Once a child is rendered By the same token, children whoare who recognize and report battered semiconscious or unconscious, stops abused by severe deprivation often do children do not appear to feel the same moving, and stops crying, the assault not show evidence of battering. When need to do so for victims of neglect. usually ends. a cachetic, dehydrated child, especially However, this condition is no more likely Which injury actually caused death is one who is older thlin one year of age, than battering to undergo spontaneous also a frequent question in cases of presents either alive or dead with no cure. If the deprived child survives multiple trauma. While it is often pos- prior history of explanatary illness, few early childhood, he simply becomes sible to give an opinion based on physicians question the etiology of the more adept at fending foi himself. reasonable medical probability in this condition. One childmexamined was 2 instance, the physician should also be 1/2 years old at the time of death and Child Abuse and the Sudden sure to delineate all injuries which represents this extreme. For this child Infant Death Syndrome could have been, by themselves, poten- to have suwived for 2 1/2 years, de- tially fatal. privation must have been intermittent, Few would argue that the sudden Another question frequently asked as it is in most cases. There wasno sign death syndrome (SIDSI is a term used is, when did the injury occur? Ra1,ely of acute or remote trauma. However, to denote asphyxial deaths of nlultiple can the medical findings pinpoint this evidence of lmg-standing neglect In- different etiologies? '5. 18 The with the exactitude desired and ex- cluded extreme filth, crusting sebor- hypothesis was reached early that as- pected. As discussed earlier with rheic dermatitis, and body liee. The phyxia is the final pathway because of ~egardto the aging of bruises, the art of twinsister of this child was hospitalized the similarities at autopsy between aging mtetnal injuries, especially those in similar condition. The mother, who known asphyxia1 deaths and "crib that are relatively acute, is still largely weighedslightlyunder300 lb, hadbeen death.'* Petechial hemorrhages of the subjective. Usually the best that can be deserted by her husband shortly after pleurae, epica~dium,and thymus; offered is to indicate whether or not the the birth of the twins. Thus, it appears epidural hemorrhage in the spinal injury is consistent or inconsistent with that stress may alsounderlie this kind of canal; and pulmonary congestion and being infkted at a certain time. Since abuse. edema may or may not be found in this information is often quite critical to The clinician faces a majar problem various combinationswith death by as- an investigation, the physician may when he encounters the patient who phyxia or crib death. Nonetheless, well find himself being subtly pres- "fails to thrive." This patient is almost many manhours and doflars have been sured into a narrow time framework always an infant and presents as abnor- spent investigating more exotic which he can neither iust~fynor with mally underweight, sometimes with theo~iesfor SIDS, such as anaphylaxis which he is comfortable. This kind of other abnorn~allylow growth and to cow's mikorovenvhelmingvirernia. entrapment can andshould be avoided. developmental parameters. Many The results of these studies have been The same is trtie with regard to "time of medical conditions can present as disappointtng but valuable in leading death." The same philosophic ap- failure to thrive. Unfortunately, the us back to where we begin: the deaths proach can be used to handle both parents of that significant minority of are asphyxial, with the hypothesis of sihlations; if a reliable witness saw the mfants who are simply being starved sleep apnea the most commonly given victim alive at 8:00 A.M. and he was will not give any history suggesting this. explanation andfocus of research. found dead at 4:W P.M., then he dled They may, in fact, be the most dis- Child abuse in the form of homicidal sometimebetnreen8:QOA.M.and4:WP.M. traught, insisting that something is smothering certainly represents a sig- wrong with their baby and demandmg nificant minority of deaths by SIDS. The Neglected Child that doctors correct it. This may lead to There are some striking epiden~iologic hospitafization For a complete workup similaritfes between victims of SlDS \nether active or passive, neglect is where the child gains weight and and victims of fatal chid abuse. Mem an ever-present ekment in every case begins to develop normally and exten- bers of both groups are less than one JUNE 1990 VOICE FOR THE DEFENSE

year of age. The risk of SIDS is in- ter.9h.s.Woods was convicted of first- to l~avebeen most influential in prop- creased if tlte mother is less than 20 degree murder for the smothering agating the sleep apnea hypothesis and years old, unmarried, or both. The risk death of her 8 month old preadoptive the subsequent vigorous research and is also increased if the father is young. foster son, Paul. During the course of monitoring efforts is based on five in- Lowsocioeconoinicstatus is a great risk the trial she was linked to six other fants who all probably belong in the factor both by itself and because it cor- infant deaths, each of which was same category as the child described relates highly with other well-docu- preceded by multiple episodes of abo\c2' The kttwo subjects, in pal-- mented risk factors, such as failure of apnea and cyanosis. Three of these ticular, are noteworthy. Infant 1 was the mother to seek prenatal care, short were her natul-a1 children. In addition, admitted to the study becmse of recur- intervals between PI-egnancies,prema- two other children experienced multi- rent episodes of apnca and cyanosis. ture birth, low birth weight, and a ple episodes of apnea while in her care. Her numerous hospital admissions higher incidence among blacks. Male Neither of these chiklren experienced were fairly uneventful. Profound ap- childreoare atgreater risk thanfemales. any such difficulty when away fronl neic episodes, however, were frequent Given the fact that c~yingelicits the her. Mrs. Woods' notorious career at home after hospival discharges. She aggression in most infant homicides, it spanned over 20 years and may well died at lionte. Three siblings had suc- is easy to imagine a situation where the have continued indefinitely had she not cumbed at home following similar parent elects to eliminate this noxious brought another foster child into the episodes. stimulus by clamping a hand over the emergency room for repeated attacksof Infant 2 was born one year after the baby's nose and mouth 01-pressing a apnea and cyanosis while Paul lay death of his sibling, infant 1, and was pillow overits face ratliertlian throwing dying from complications of anoxic inimediately monitored in the hospital or slamming it. Unlike homicidally as- encephalopathy. The similarity be- for over one month. On the day follow- phyxiated adults wlto, unless debil- meen the two cases created enough ing discharge he experienced a severe itated, will invariably have some other suspicion to initiate an investigation. apneic episode resulting in another injury indicating a struggle, an infant The United States Court of Appeals Itospitalization of over another month. will not. His small size relative to the upheld her conviction. The morning afterthisdischarge hewas adult precludes any struggle which Although this case is probably tlte readmitted for alleged aspiration wonld produce visible injury. Furt1ie1-- most d~antaticknown to date, it is cer- during a feeding. This hospitalization more, it has been noted in studies on tainly not isolated. A recent article lasted six days. The morning after this both Iiuman and monkey infants that reports two instances in which infants final discharge he had another apneic blockage of the airway most often had been brought into the hospital episode and died. Thus, 78 days of this produces no active response in the repeatedly for atvacks of apnea and child's 81 days of life were spent in the awake state am1 that apnea produced cyanosis.J Parental rights were [el-- hospital and only three at home. The in this fashion will sometimes persist minated in the first case when fresh catastrophic events in the child's life all even after the occlusion is I-emoved, pinch marks were discovered on the occurred during those three days. necessitating active resuscitation to infant's nose after an apneic spell in the Sleep apnea is a well-recognized save life. Ailway occlusion in a sleep- hospital and in the second because a phenomenon in infants, more ing infant rarely even disturbs his rest. nurse walked into the infant's room and pronounced in some than in others. Another interesting observatio~lwith found the mnothe'r with her hand over Since victims of SIDS cannot be SlDS is that in large sh~diesthere is no the baby's nose and montli. Both monitored retrospectively and tlte cost evidence of genetic transmission. Yet children have remained completely :o monitor every infant horn is prohibi- there are numerous reports in the litera- asymptomatic in their foster homes. ive, a "high-risk groupmust bechosen ture of this phenomenon occurring up In a pending case involving a 15 For this monitoring. It is unfoltunate to five times in the same family. Simnul- montli old child, 8 apneic episodes* :hat this high-risk group most often taneous death in twins has even been preceded the child's death; at least one zonsists of children who are siblings of reported and attributed to SIDS. Al- well-1-espected pediatrician considers 3 child or children who have suc- though this is possible, it is much more this to lx ample proof that the child :unlbed to SIDS, despite the lack of likely that these cases are actually suffered from "near miss" SIDS, ul- zenetic transmission, or who are con- honlicidal sntotherirtgs. IJnlike infant timately culminating in SIDS. How- sidered "near miss" victims. For ob- battering where inconsistencies be- evel; the child was well past the age for ~iousreasons, this nionitoring is done tween inju~yand history are apparent, a SlDS death and all the "near misses" nainly at home. For pal-entswlto have or at least should be apparent, it is im- occurred when the mother was alone tad an infant die naturally from one of possible clinically to distinguish spon- withhini both in and out of the hospital. he many SIDS etiologies referenced, taneous apneic spells from those When interrogated, she admitted to his monitoring is costly, stressful, and clelil~ratclyinduced, and likewise im- "holding her hand over his nose and xobably unnecessary. For those possible for the pathologist to distin- mouth until he stopped breathing." ndividuals who are deliberately guish between the two at autopsy. Apparently more weight has been xoducing apneic spells in their infants, Thus, a case of infant smothering is given to the psychiatric evaluation his monitoring no doubt results in usually discovered either as a result of which concludetl that she was a "gentle niraculous resuscitations, publicity, a confession by tlte perpetrator or over-- and bonding person" and that the inter- tnd thus additional reinforcement for whelming circumstantial evidence. action between her and her son was urtlter use of these devices and further The "Woods" case is probably the veqr positive. csearcli. most well-known example of the lat- Ironically, the article which appears Spontaneous apnea is certainly

JUNE 1990 VOICE FOR THE DEFENSE

responsible for some deaths from SlDS vasive problem in this society, the incid- child syndronie. J.A.M.A., but probably not nearly the number we ence of which is grossly under- 181:105-112, 1962. would like to believe. For the clinician, estimated. It is a difficult emotional 13. Laing, S., and Buchan, A,: Bilateral a good rule of thumb is to view any task for physicians and others charged injuries in childhood: An alerting "near miss" SIDS with a healthy degree with handling these cases to become sign? Br. Med. J., 1976. of suspicion. The likelihood that the involved. It is not surprising that niore "near miss" is really child abuse is great- subtle forms of abuse are overlooked 14. Lindenberg, R., and Freytag, E.: ly increased if a sibling or siblings have almost entirely. The first step toward Morphology of brain lesions from experienced similar symptoms or have solving a problem is to recognize that it blunt traunia in early infancy. died suddenly and unexpectedly of al- exists. If this article increases that Arch. Pathol. 87:298-305, 1969. leged SIDS. Confirmation is provided recognition even slightly it has served 15. Lube, J., and Blackbourne, B.: when it becomes apparent that the its purpose. Bed-sharing deaths among victims severe apneic episodes occur ol~ly of sudden infant syndrome: A rid- when the infant is alone with one par- REFERENCES dle within a conund~utn.Forensic ticular person either at home or in the Sci. Gazette, 5:3-4, 1974. hospital. The medicalwork-up in these 1. Astley, R.: Multiple nietaphyseal 16. McNeese, M.,and Hebeler,].: The infants provides no explanation for the fractures in small children apneic spells. abused child. Ciba Clin. Symp., (nietaphyseal fragility of bone). 29:4, 1977. Thel-eis no way for the pathologist at Br. J. Radiol., 26577, 1953. autopsy to distinguish between 17. Moritz, A,, and Henriques, F., Jr.: homicidal smothering and SIDS. Ob 2. Beinfield, H.: Ways and means to Studies of thennal injury. 11. The reduce infant mortality due to suf- viously, if there are bmises, healing relative importance.of time and fractures, malnourishnient, or other focation; (importance of choanal surface temperature in the causa- atresia). J.A.M.A., 170:647650,1959. signs of abuse this should raise se~ious tion of cutaneous burns. Am. J. suspicion and lead to an investigation. 3. Bergel; D.: Child abusc'simu~atin~ Pathol., 23:695-720, 1947. "near miss" sudden infant death Far niore difficult, however, are those 18. Shannon, D., and Kelly, D.: SIDS synclronie. J. I'ediatr., 95~554.556, cases of smothering not showing other and near SIDS. N. Engl. J. Med., 1979. signs of abuse; unfortunately, they rep- 306959-365,1022-1028,1982. resent the majority. A recent case 4. Caffey, J.: Multiple fractu~-esin the involved a 2 1/2 month old well- long bones of infants suffering 19. Silverman, F.: The roentgen developed, well-nou~ished,apparently from chronic subdural hematoma. manifestations of unrecognized well-cared for white female who was Ani. J. Roentgenol. Rad. Ther., skeletal trauma in infants. Am. J. allegedly found dead one morning by 56163.173, 1946. Roentgenol. Kad. Ther., 69413- her unmarried mother. Gross examina- 426,1953. 5. Caffey, J.: On the theo~yand prac- tion showed only pleural and thymic tice of shaking infants. Am. J. Dis. 20. Simson, I,., Jr., and Urantley, R.: petechial hemorrhages. Microscopic Child., 124:161-169, 1972. Poshlral asphyxia as a cause of and toxicologic studies were negative. death in sudden infant death The case would have been disniissedas 6. CI-oss, K., and Lewis, S.: Upper syndrome. J. Forensic Sci., a typical SlDS had the mother not con- respiratory obstruction and cot 22:178-187, 1977. fessed to being awakened by the crying death. Arch. Dis. Child., 4'211- infant at 500 A.M. and placing herhand 213,1971. 21. Steinsclineider, A.: Prolonged apnea and the sudden infant death over the child's nose and mouth for 7. Cummins, B., and Potter, J.: Head syndronle: Clinical and laborato~y about five minutes. The mother's injuly due to falls from heights. observations. Pediatrics, 50.646- recent discharge fro111 a state mental Injury, 261-64, 1970. 654,1972. hospital prompted the interrogation 8. Di Maio, V., and Bernstein, J.: A which led to her confession. case of infanticide. J. Forensic Sci., 22. Taylol-, L., and Newberger, E.: Most cases of SIDS do not represent 19744-754, 1974. Child abuse in the international homicidal smothering, and the ques- year of the child. N. Engl. J. bled., tioning of parents nrho have just lost a 9. Francisco,].: Smothering in infan- 301:1205-1212, 1976. cy: Its relationship to the "crib child to SIDS may appear to be insensi- 23. \Voolley, P., Jr., and Evans, \V., Jr.: tive and unnecessary. Certainly such death syndrome." South. Med. J., 63:111@1114, 1970. Significance of skeletal lesions in interrogation should not be the nomi. incants resembling those of However, when there is a lljsto~yof 10. Harcourt B., and Hopkins, D.: Per- traumatic origin. J.A.M.A., other deaths from SIDS in the same manent chorio-retinal lesions in 158:539-543, 1955. 0 family, when other potential signs of childhood of suspected traumatic abuse are present, or when circumstan- origin. Trans. Ophthalmol. Soc. ces surrounding the death are suspi- UK, 93:199-205, 1973. *IIeprinled with per~nission 63, 1V.B. cio~~s,tlienfurtherinvesugationiswananted. Sm~idersConqmlzy, 7be Clotis Celrter; 111- 11. Helfer, R. E., Slovis,T. L., andBlack, depende~rceSqrmre West, Pl,ilndelp>ig, M.: Injuries resulting when small Pen~rsylrio~d

JUNE 1990 VOICE FOR THE DEFENSE

President's Column budget for the upcoming year. Please ingwith our new president and helping conti~~sed~on~/nge 3 answer your invitation to attend by 01.- make 1990-1991 a bigger and better dering tickets and making resewations year than we have ever had before. I Criminal Defense Lawyers that netted at the Lowes' Anatole. Come for the urge each member to do the same. us a tidy profit after splitting the dinner and enjoy the fellowship and proceeds with theNational Organization. stay the next day fol-our annual meeting. Our spring trip to Acapulco was a It is true what my mother told me all mP& roaring success. Many, many people my life that "How much you put into conlirniedfrompgel8 came along from all parts of the state to something is what you get out of it". prosecution's racially motivated eaee enjoy the Acapulco Princess. \Ve saw The hours and time I have spent as many people that we normally do not cise of peremptory jury challenges. In President of TCDLA have beenextrem- so holding, the court first noted that the see at our meetings who were fun to get ely rewarding. I look fo~wardto work- to know during that week. The Princess defendant, even though white, had the was a great hotel and had something for right to challenge the exclusion of everyone to do. People enjoyed every- blacks from his juv. Thus, although a thing from sunbathing, kite flying, jet- Memorandum defendant, in order to establish a prima skiing, para-sailing, deep sea fishing, conlim,ed fromplge 27 facie equal protection clause violation, must show that he is a member of a watching the cliff divers, shopping and and visa and directed him to remove his beer drinking. The fish caught on trehicle fromthe trafficlanes, Patrolman discrete racial group, according to the Court's opinion, the Court has never Scrappy Holmes' boat cost $65.00 a Kelly exceeded the permissible limits of piece and wouldn't feed the people on the constitutionally permitted deten- suggested that such a relationship is his boat. The boat that Bridgett Trichter tion. Evidence of criminal activity dis- necessary for sixth amendment stand- caught her nine-foot sailfish on also covered thereafter was obtained in ing. In fact, the sixth amendment ex- hooked dolphin and other fish and fed violation of [he Fourth Amendment pressly entitles every defendant to the multitude. I might add that the beer prohibition of unreasonable searches object to a venire that is not impartial. drinking award was yon hands-down and seizures. The contraband, dis- However, the Court then noted that by Beth Martin because she lost a com- covered during the continuing inves- petitioner's sixth amendment claims plete day and night and had to see the tigation and resulting search, must were without merit because the ex- doctor for bikini sunburn lines and therefore be excluded from evidence. clusion of cognizable groups through didn't know that she had worn the IT IS THEREFORE ORDERED that peremptory challenges is not bikini. There were no negative remarks plaintiffs Motion to Reconsider the prohibited in the sixth amendment's made about the trip. The staff at the Order entered January 30, 1989 grant- text or in the Cou~i'sdecisions. Furthel; hotel acted like they appreciated us, ing defendants' Motion to Suppress is the sixth amendment does not require gave us good service, and helped us in denied. the venire from which a jiuy is chosen every way they could. Buck Royal to represent a fair cross-section of the Travels, Inc. did an excellent job in Footnotes comnlunity, but rather that the jiuy putting the trip together. 1 1 did nm addrw the qucstion ot whether a must be impartial. single roadblock can lcgitin~atelybe estab- I will end my year as president at the lished for multiple law enforcement pur- Clearly, the Coiut has ruled that the Annual Meeting to be held in Dallas, poses. It would seem reasonable that, if sixth amendment does not restrict Texas on June 8, 1990. I want to per- separately and propedy authorized, bth peremptory challenges. Such challen- sonally invite you to attend the the NewMcxicoStste Paliceand the United States Border Patrol could legally operate ges have been considered a necessary President's Dinner to be held at the thesan~eroadblocksinmltaneo~~Iy,onefor part of trial by jury and effectuate the Veranda Club on Thursday, June 7, the purpme of checking for traffic law sixth amendment goal of impartiality 19%. Bob and Claudia Hinton have violations and the other for the purpose of investigating immigration law violations. by permitting both the defendant and planned a wonderful evening for us. I However, lhi. raises the question of how prosecution to eliminate prospective am assured that we will have good many diKerent agencies anreasonably jurors who they believe would unduly food, good wine, and an excellent participate in operating the same roadblock, each for its own separate pur- favor the other side. Thus, the constitu- band. It will give us an evening for the pose, At some level, there may be so many tional goal of an impartial ju~ywould gals to dress up and the guys can too different law enforcement agencies in- be crippled by a petitjuryfakcross-sec- (black tie is optional) and have a spe- volvedthat thcroadblockwould benothing more than a fishnet strung to ensnare tion requirement that would eliminate cial evening. Please come to the dinner. violators of a wide range of crimes. This the peremptory challenge device. You will have the oppo~iunityto honor might result in infringement of Fourtll lawyers who are entering the Texas Amendment rights. Cf. hh?k u. Stale of It is interesting to note that the 4 Criminal Defense Lawyers Hall of Terns, 692 S.\V.Zd 504 (Tcx. Crim. App. dissentingJustices plus concurringJus- 1985). tice Kennedy, would allow an Equal Fame, an Honorary Member will be 2 Interestingly, plaintiff never argued that Bor- inducted and Fellows of the Education der Patrolman Kelly had an articlllablc and Protection Clause challenge to the pro- Institute. It sounds like a long program reasonable suspicion that defendant Nonh- secution's use of its perenlptories, even end was violating United States immigra- though the defendant was white. Ac- butIassure youthatitwill beveryshort. tion laws when Patrolma? Kelly inquired An auction will follow the dinner for about immigration documents and in- cordingly, the appropriate constitu- Friends of TCDLA for their continuing structed Northcnd to drive onto thc high tional theory to utilize in this area is way median so that l'auoln>an KcUy could effort to help the association retire its spend time reviewing Northend's passport Equal Protection, and not sixth amend- debt on the building and meet their and visa. 0 ment analysis. I7

JUNE 1990 Someof the best legal minds ,! TEXAS CRIMINAL- DEFENSE LAWYERS I .in this state already belong to the Texas Criminal Defense Lawyers I ASSOCIATION .. I MEMBERSHIP APPLICATION Association. We believe we have now the best Criminal Defense Bar in (Please print or type) the United States. We maintain that level of excellence by continuously seek- I ing out new minds, new energies. Therefore we want YOU. . .if your legal I NEW MEMBER APPLICATION I and personal philosophies are compatible with ourpurposes and objectives: RENEWAL APPLICATION To provide an appropriatestate organization representing those lawyers who NAME are actively engaged in the defense of criminal cases. (To appear in Mcmbinhip Dire-2fovI To protect and insure by rule of law those individual rights guaranteed by MAlLlNO ADDRESS the Texas and Federal Constitutions in criminal cases. To resist proposed legislation or rules which would curtail such rights and CITYSTATE ZIP to promote sound alternatives. BUSINESS TELEPHONE (-)- To promote educational activities to improve the skills and knowledge of lawyers engaged in the defense of criminal cases. BAR CARD NUMBER To improve the judicial system and to urge the selection and appointment NAME to the bench of well-qualified and experienced lawyers. [As mom m Stnee Bar Cad) To improve the correctional system and to seek more effective rehabilitation TITLE FOR SALUTATION: opportunities for those convicted of crimes. r.(Mrs.) (MS.)- To promote constant improvement in the administration of crinlinal justice. SWUSE NAME: ADVANTAGES FOR TCDLA MEMBERS The monthly Voicefor rhe Defense magazine. BAR DATE: Monlb Year The'Sigficant Decisions Report" of important rases decided by the Texas Court of Criminal PROrrSSIONAL ORGANIZATIONS: (Cunent) Appeals and Federal Courts. TCDLA Membership Directory-referrals to and fmm Criminal Dcfcnse Lawyers in over 100 Texas cities. Outstanding educational programs-featuring recognized expens on praclical aspects of defense cases. TCDLA and lhe Slate Bar annually present many seminars and courses in all pans of the state. Availabiliry of Lawyers Assistance Commitlee, a ready source of information and assistance Naimd to members, and the Amicus Curiae Conunittffi. AREAS OF SPECIAL INIFREST IN CRIMINALLAW Organizational voice through which crinlinal defense lawyers can formulate and cxpress (Onitleation rm quid) theirwsitian oniceislation.- court reform, importanl defense cases through Amicus Curiae activity. Discounts and free offerings for publications of interest to criminal defense lawyers. CERTIFIED CRIMINAL SPECIALIST: YE.NO- Messenger service in the Capitol area. RESIDENCE TELEPHONE (-) Have you ever ken disbarred or diriplined by any bar arrwiation. ELIGIBUITY AND DUES or arc you tksubject of disciplinary action row pnding? Voluntary Sustaining...... $300.00 (All officers & directors must pay Voluntary Sustaining dues) Dare (Sig~Nreof Applimr) Suslaining ...... $200.00 (All assmiate directors must pay Sustaining dues) ENDORSEMENT i I. 3 itte#.k~nfTCDt.~\,bcli~rcll~ir~ppl~ranl loka prson nfpro Dues far mcmbers in the firm of a sustaining or kwmal r.nntpr.lcnc), inl:$rily. d gml m

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