1986 Nov Dec Docket Call

8/11/2019 1986 Nov Dec Docket Call

1/70

ovl

Dec 1986

DOCI ET CALL


2/70

EDITOR

Isbel l

GENERAL MANAGER

Robert Pelton

PRO ucnON

Don

na K Kles zcz

DOCKET CALL i s published

monthly by the Harr i s County

Crimina l

Lawyers AssO Cia

t i o n ,

a

n o n -p ro f i t , tax exempt

p r o f e s s io n a l A s s o c i a t i o n o f

c r imina l de fense

lawyers.

ADVERTISING RATES;

fULL PAGE ............$200.00

1/2

Page ....... . .

. .

100.00

/4

Page. .

. ............ 50.00

DISTRIBUTION: 500 copies

monthly. Art ic les and other

edi t o r i a l cont r ibut io l ln

should

be

se nt

to

HCCLA

P.O. Box

22773, Hou s ton Texfls 77027 or

the Associ

a t ion of f i ce a t 70S

Ha i n

St .

1400,

Houston, 77002.

TELEPHONE:(7 3) 226-2404.

Board or Directors

1986-87

PrClicieat

Cande

lario Elizondo

Pnsicicat-[/cet

Allim C.

sbel l

Yice

-

Pnsiciell

t

Fe

l i x

Cantu

Eecrlfary

G. Mac Secrest

Tnuurcr

Ma:ry Moore

Chir.a.

Randy McDonald

Roger Bridgwater

Walter

Boyd

Mary

E

Conn

Benjamin

Durant

Michael

Essmyer

Jan

Woodward

Fox

Ruben

Guerrero

Jim

Lavine

Harry Loftus, Jr

Garland

MoInnis

DarJid

Mitcham

Wi n au

traz.J

Robert Pe Hon

Riohard Trevathan

Gary Triohter

Kristine C Woldy

Nov Dec 1986

CONTNTS

FROM THE

PRESIDENT'S

DESK ...

.

CANDELARIO ELIZONDO 2

DWI

AND THE LATE NIGHT TELEPHONE CALL ..... .

J .

GARY

TRICHTER

5

PROBABLE CAUSE HEARINGS ON WEEKENDS

. . . . . . .

.

RICHARD ANDERSON

19

SIGNIFICANT DECISIONS . . . . . . . . .

HENRY L. BURKHOL

CATHERINE

GREENE

DER I I I

BURNETT

SDl-28

HEARSAy

........

.

ALLEN C. ISBELL

23

COMMENTS

ON

THE RECENT ELECTION

....

ALLEN C. ISBELL

SOMETIMES THEY

DO

WEAR

THE WHITE

HAT

24

COURT TALES ....

JUDGE SHELLY HANCOCK

28

LETTERS

.

COLIN B. AMANN

32

THE CHAIRMAN SPEAKS ..

RANDY MC DONALD

33

ATTA GIRL/ATTA

BOY

...

MARY E.

CONN

33

EDUCATIONAL PROGRAMS ................................. .

38

U RRIS COUNTY CRIMIN L L WY[RS SS

OCI TION

Past

Presidents

197f -1985

J.

Anthony

Friloux

1972-1973

Stuart Kinard

1973-1974

Geor ge

Luquette

1974-1975

MaY Vin O.

Teague 1975-1976

Dick DeGuer in

1976-1977

W.B,

Bennie House, Jr .

1977-1978

David Bir es

1978-1979

Wo

ody Densen

1979-J980

Will

Gr>ay

1980-1981

Ech,)ar>d

Mallett

1981-1982

Carolyn Gar cia

1982-1983

Jack B.

Zimmer>mann

1983-1984

Clyde Williams

1984-1985

Rob er t Pelton

1985-1986


3/70

rrom

the

President s esk

y C a n d Z ~ i o Zizondo

Our organizat ion i s doing wel l .

We

a re ge t t ing the br i e f

bank

together .

I

encourage everyone

to

submit

his or her appel-

l a t e

br ie fs

so

tha t

a l l of our

members

can

bene f i t .

Thanks to

Allen

I s b e l l Edi to r

Robert

Pel ton

General

Mana-

ger and Donna Kleszcz , Adminis t ra t ive Ass is tan t in charge

of

production, Docket

Cal l

has

cont inued

to improve. I t i s now a

publ ica t ion

we

can

be

proud of .

We

have added

a new

column

in

Docket Cal l en t i t l ed The Chairman Speaks. This column wi l l be

edi ted

by Randy McDonald,

Chairman

of the

Board.

For years we

have ta lked about ge t t ing

a

computer/word

processor

for

our assoc ia t ion but economics would not al low

it

I 'm

proud to

say t ha t

HCCL has

now

purchased

a computer/word

processor .

I t

i s

hoped it

wil l

a l l e v i a t e

much of

the paperwork

t ha t needs

to

be performed. I am

surpr i sed t ha t

we were

able

to

funct ion

without

a

computer/word processor for so long. My next

goal

i s to

connect the

computer with

West

Law

so

t ha t it wi l l

benef i t a l l

the

members.

Our Board has met with

the

Officers and Directors

of

the

Black Women Lawyers

Associa t ion the

Houston Lawyers Associa-

t i on the Mexican American Bar

Associa t ion the

Houston Tria l

Lawyers Associat ion and

the

Criminal Law Sect ion of

the

Houston

Bar

Associa t ion .

We primari ly

discussed

t he

Harr is County Commi-

ss ioners Court

order ing

the Harr is

County Criminal

Dis t r i c t Jud-

ges

to not pay

cour t

appointed counsel above

a cer ta in

se t fee

schedule.


4/70

HCCLA

decided

tha t any

order created by

a

County

Commis-

sioners

Court

which

tends to vio la te

the terms

and

conditions

of

Article 26.05

of

the

Texas Code of Criminal Procedure should by

rescinded.

To tha t e f fec t

we

have enacted

the

following resolu-

RESOLUTION

BE IT

RESOLVED

That the

Harris County Criminal Lawyers Associat ion,

the

Black

Women

Lawyers

Associat ion, the

Houston Lawyers

Association,

the Mexican American Bar Associat ion,

the

Houston

r r ial

Lawyers Associat ion,

and

the Criminal

Law

Section of

the

Houston Bar Association do hereby

adhere

and subscribe to the

following

proposit ion:

e propose tha t

the Dist r ic t court Judges

of the State

Dist r ic t Courts t rying criminal cases

in

Harris County, Texas

follow the Law as se t

forth

in Article 26.05 of the Texas Code of

Criminal Procedure ent i t led Compensation

of Counsel

to Defend.

e propose

tha t the

fee

schedule

approved by the Board

of

Judges

and

adopted by order of

the

Harris County Commissioners'

Court

be

rescinded.

Said

fee

schedule

and

order

vio la tes

the

terms and condit ions

of

Article 26.05.

e

do

hereby encourage

each and every Dist r ic t

Court Judge

trying criminal

cases

to

fa i r ly

compensate

attorneys

on a case by

case evaluation

of

the

legal

services rendered

within

the

perimeter of Article 26.05.

e

do

hereby urge each of

the

Dist r ic t

Judges

t rying

criminal cases to follow

the

law,

evaluate

the specif ic

s i tua t ion

irlvolved in

respective ~ s e and compensate

counsel

accordingly.

P.S.

4


5/70

DWI

AND THE LATE NIGHT TELEPHONE CALL--PROTEGrING

THE

CLIENT

AND THE ATTORNEY-CLIENT PRIVILEGE

BY J

G RY TRICHTER

I I NTRODUCr ION.

I t is eleven o 'c lock p.m., the house l igh t s are a l l

of f ,

your young chi ldren are

al ready

as leep , and you

and

your spouse

have jus t crawled

under

your bed ' s covers , and, the telephone

r ings .

One

r ing , two

r ings ,

th ree

r ings , you

reach for

the

phone and

pick

i t

up.

As

you

hold

i t

to

your

ear , you

wonder

who

would

be

ca l l ing a t

such

a

l a te hour--you say hel lo .

Surpise! I t ' s your answering

se rv ice or i t ' s a

d i rec t

ca l l

from someone personal ly important

to you

who knows

your unl i s t ed

number.

Indeed, i t is your oldes t

son or

daughter ,

your brother

or your

s i s t e r ,

your law

par tner , or ,

i t ' s your most valued

c

l ie

n t c a I

l in

g for h i

ms e l f

0 r

for some

0 n e

per son

a I I c

los

e

to

him.

I rnne d i

a te

I

y, you

r

bra

i n

t ry

s

t

e

act

i

vat

e

i t s e l f from i t s

sleep mode and you as

k Wha t ' s wr

ong?"

The

answer,

says

the

ca l l e r

in

a

dis t ress voice, I 'm under

a r r e s t

for driv ing while

in toxica ted

or My chi ld

has been ar res ted

for

driv ing while

in toxica ted .

Then

asks the ca l l e r , "What do

I

do?" Your

sleepy brain

responds: "S t and t ha t ' s a good quest ion ,

what do

I

do?"

I f

you

cont inue reading th i s a r t i c l e ,

you

wil l

know

exact ly

wha t

to do.

However,

i f you

do not , and you do not

know

the

answer to your

ques t ion , then

i t is advised

you never

divulge to

your l a t e night ca l le r th i s a r t i c l e

was

in your hands and tha t

you fa i l ed

to

read i t as

they

wil l be

somewhat

upset

with

you.

5


6/70

I

I .

UNDERSTANDING THE PENALTIES

OF

THE

CRIMINAL OFFENSE OF

DRIVING WHILE

INTOXICATED.

Driving while in toxica ted OWl) is a ser ious crime in

Texas.

A

convict ion for

a pla in

manil la OWl ca r r i e s

with

i t ,

for

f i r s t - t ime offenders

unless

i t

is

probated, a minimum

of

three days in

j a i l

and a

$100

f ine . I t a lso

mandates

a

minimum

sus

pen s ion 0 f the 0 f

fen

d e r ' s d r i

ve

r 's 1 ice n s e for 90 day s

On

the

other

side

of

the

punishment coin,

the maximum

punishment

could be two years in j a i l , a $2,000

f ine ,

and, a one yea r ' s

dr ive r ' s

l i cense

suspension.

Pol i t i ca l

act ion groups

such

as "Mother 's Against Drunk

Drivers"

and

a

growing awareness

by our soc ie ty of the

problems

crea ted by OWl

offenders

have caused the OWl penal ty anty to

go

up.

Once found

gui l ty

of

a DWI, the convic t ion

always

remains

on the of fender ' s record.

No longer

can the

DWI offender be

placed

on

deferred

adjudica t ion

probat ion where the case

is

d is

m

iss

e d up

0

n

sue

c e s s f u 1 c

omp

1 e t

ion 0

f

his pro bat

ion a r y t e r

ms

and cond i t

ions.

In fac t ,

a l l OWl convic t ions , whether probated

or not ,

are

now f ina l convic t ions . And by the way, don' t forget

tha t

upon convic t ion,

the

DWI

offender is a lso required to pay

an automobile insurance surcharge.

I I I . WH T IS OWl?

The offense of

OWl

occurs where a person

dr ives

a motor

vehic le while

" intoxica ted"

in a publ ic place .

Sou n d s simp Ie ,

i t ' s

not! F ir s t 0 f a I I , you s h0 u I d not e t hat nome n ta l s ta t e ,

i . e . , in ten t iona l ly , knowingly, reckless ly or

negl igent ly ,

is

requi red

for

a

person

to

commit

a

OWl

offense .

6


7/70

General ly, the key

focal

point in a OWl

case

centers

upon

the

element in tox ica t ion .

I t is very important

to

understand

that in toxica t ion does not

equate

to drunk.

For

examp 1e,

one can be intoxicated but not

drunk.

Further , for one to be

drunk

he

has

to

be

in toxica ted.

Intoxicated has

been

s t a tu tor i ly define in two ways.

F i r s t ,

a

person can be

in toxicated

where

he

had los t the normal

use of his mental

and

physical

facu l t i es

while

he

was

driving.

Second, a

person

can be in toxicated where he had an alcohol

concentrat ion

of .10 or more in

his

blood, breath or urine

while

he

was

driving.

Note

a lso tha t

.10

a t

the

t ime

of

dr iving

i s conclusive of in toxica t ion

even i f

there was no impairment .

Here, too, i t is important

to

note tha t

a

person can be

in toxicated from

the

use of alcohol ,

drugs,

a cont ro l led

substance

or

any combination thereof .

IV

THE DILEMMA OF THE SUSPECT CALLER

Don't

feel

sorry for yoursel f

that

you

were

about to doze

off to dream heaven just pr ior to the telephone r inging.

Your

ca l l e r i s go i n g t h r ugh he 1

1

He

i

s a yma n, and, i f he i s the

suspect , is facing both e lec t ronic and human agents

of

the

prosecut ion. Indeed,

absent you, he is

faced

with a l l

the law

enforcement power

of our organized soc ie ty and is inmersed

in

the

in t r icac ies of substant ive

and procedural

s ta tu tory

and

cons t i tu t iona l law.

Absent you, he wi 11 be compelled to go i t

alone and

make

c r i t i c a l decis ions .

These

decis ions are ones

that by

thei r

very nature

af fec t

t r i a l

tac t ics and s t r a t eg ies -

once made, they are i r revers ib le .

Accordingly,

you

must

ac t as

your c a l l e r ' s guiding hand and

lead

him through th is

criminal

law mine f ie ld .

7


8/70

A.

The

Defendant

Cal le r :

Understanding

What Has

Already

Happened

to

Him.

I f you are t a lk ing d i r ec t ly to the

DWI

suspect , you can

res t

assured that

he i s a l ready

down a t the a r re s t i ng

o f f i c e r S

headquarters

and

his captors are

cont inu ing

in

the i r

at tempts

to

gat

her

inc

rim ina t in

g e v

ide

n c e

from

him. For your in format ion ,

he probably, upon being stopped while driv ing and t he rea f t e r

taken into custody,

has

al ready

made

an ora l admission (not

e lec t ron ic / aud io

recorded)

tha t he had been

dr inking

an

alcohol ic

beverage

e a r l i e r (usual ly two beers ) , and,

al ready

performed some motor sk i l l demonstrat ions (not e l e c t ron i c /v ide o

recorded) .

Further , he probably watched his vehic le get towed

away

by

a

wreCker,

and,

he

h ims

e l f had his hands handcuffed

behind

his

back and was

a l so

towed away by

his

a r r e s t ing

of f ice r .

Moreove

r ,

he

has

most l ike ly

been

to ld by

his a r r e s t ing

off i cer

tha t , upon his a r r i va l

at

the

s t a t i on house, he wi 11

again be requested to:

1)

make admisis ions

and perform

a motor

s k i l l s demonst ra t ion whi le being

audio/video

e lec t ron ica l ly

recorded, and, 2) submit to a chemical

t es t

to

determine

his

alcohol concentra t ion .

Las t ly , he wi

11

a l so probably be to ld

t ha t , s h0 u 1 d

r

e f

use

to s ubm

t t

0 chern i c a I t es t i n g i e .

breath or

blood, his d r iv e r s l i cense wi l l au tomat ica l ly

be

suspended for 90

days

and tha t his

refusal

wi 11 be used agains t

him

in

the subsequent

OWl

cr iminal prosecut ion .

Accordingly, now

you ( the

guiding

hand) ,

too , understand

some of

those

i r r eve r s i b l e dec i s ions . Should the ca l l e r

consent

to :

rna

kin

g a dm i ss ion s 0 d r i v i n g 0 r d r ink i n g ;

per

for m mo tor

ski l i s demo n s t ra t ion

S ;

0 r , s ubm t t 0 a chern i cal t

es t?

Wha

t s

. 1 0

?

A r g u

end 0

i

f

he

con

sen

t s t

0

chern i

cal

t

es t

i n g s h

0

u 1 d

he


9/70

pro v ide a b rea t

h,

b I 0 0 d 0 r

uri

n e s p e c i

me

n

?

On

the 0 the r

han

d ,

i f

he

does not , how should he refuse?

Should he provide the

Sta te with possibly incr iminat ing evidence?

ow

can

he

preserve

exculpatory

evidence?

ow can he get

out of

ja i

I

and avoid

a

convict ion

and

a

possib le

dr ive r ' s

l i cense

suspension?

Good

quest ions

I know Please read

on.

B.

The Defendant

Cal le r : What Is

Present ly

Happening to

Him?

1. Protec t ing the a t to rney /c l i en t pr iv i lege

Having the OWl suspect on

the phone,

you

can

both

avoid

the

f i r s t

t rap

se t

by

the

prosecut ion

and

the

malprac t ice

su i t

your

ca l l e r wil l subsequent ly f i l e agains t you

for

i nadver t en t ly

waiving his a t t o rney / c l i en t pr iv i lege by

simply

t e l l ing him to

stop

t a lk ing and l i s t en . "Crazy," you

th ink

"How

can

provide

the ca l le r advice i f I f i r s t don ' t

find

out the

background fact s?" Fur the r , you t h

ink

" c omno n sen set e l l s me

tha t

one

must

f i r s t hear

what

the

c l i en t

has

to

say

before

I

can

advise

him

what to

do,

otherwise

I

wil l comnit malprac t ice .

My

response

to these two thoughts

is

r ight and "wrong"

re spec t ive ly .

Note tha t you,

as

the rece iver

of

the ca l l ,

cannot see

i f

o f f i ce r s are

present

with the

ca l l e r . Note a l so ,

t

hat te l

e

ph

0 n e s for I sus p e c t sin mo s t s t a t

ion

h0

use

s h a v e

been purposely

placed inside

rooms where everything sa id

and

done

is audio/video

recorded. Therefore ,

in e i ther

a s i tua t ion

where of f i ce r s

are present with

the accused

or

his hal f of the

ca l l is being e l ec t ron i ca l l y

recorded,

or

both,

there is no

a t t o rney / c l i en t pr iv i lege .

This lack

of

privacy presents

a

cruel dilemna

for

the

novice a t torney.

Especia l ly so, since our Sta te

Bar

Ethica l

Considera t ions

4-1 and 4-4 requi re

tha t

we

vigorously protec t

9

I


10/70

the pr ivi lege. Of

course , now

the

"s top

t a lk ing and

l i s ten

ins t ruc t ion makes

more sense.

Accordingly, your

f i r s t two

quest ions to

your

ca l le r ought to be

"Are

off icers or

other

persons present

with

you?"

and

"Are you in v ideo room?"

Again,

i f

he

is

ca l l ing you

from

the

s ta t ion

house,

he

probably,

as he t a lks , is

confronted

with

both

pol ice off icers and an

e lec t ronic audio/video recorder .

2. The Isola ted Suspect

Should the ca l l e r

say

"no"

to

both your inqui r i es then

feel

free

to

have him speak to

you--unless , you

hear an e lec t ronic

beep every 30 seconds or

so,

which

of

course means, the ent i re

conversat ion, both his and

yours,

is being e lec t ron ica l ly

recorded.

Also, begin your ta lk

with

the ca l l e r by ins t ruc t ing

him

t

0

i mne d i

a te 1

y t e l

1 you

i

f n yoneel

s e s h

0

u

1den

t e r

his

room.

3. The I 've got Company" Suspect

S h0 u I d the ca l le r say " yes" toe the r i nqui r y , i mne d i a te 1y

advise him that anything he says

can be

used

agains t

him (you ' re

saved ) . Thereaf te r , the following

is

suggested:

A) Ha

vet

he sus p e c t say

tot he 0

f f ice r

"I am

i n v

0

kin g

my

r ight to have counsel present ;

B)

Havet he sus p e c t say tot he

0

f f ice r s "I am

request ing

privacy to speak to my

lawyer."

No t e , t ha t

the

ordinary

prac t i ce

of

the

pol ice

is to

re fuse such a

request ;

C)

Next,

have the suspect

say

"Wou d you please

turn

off

the au d i 0 / v ide 0 came r a

so can

t a lk mo rep

r i

vat

ely

with

my lawyer?" Note here, too, tha t off icers

general ly do not

honor such

reques ts .

Having

had your ca l l e r

make

these

s ta tements ,

on

audio/videotape, you

probably have protected your record for a

claim tha t

he

was

denied his

r ight

to counse l .

After a l l ,

the

10


11/70

of f i ce r s fa i lu re to afford

the

OWl

suspect

privacy equates to a

di rec t

in t rus ion

not only in to the

a t to rney /c l i en t

pr iv i l ege ,

but a l so ,

the

cons t i tu t iona l and s ta tu tory

rights

to ass i s t ance

of

counsel .

C I

ear

1 y ,

the

Frame

r s f u r

con

s

tit

ut i

n a I

and

s ta tu to r i ly

r igh ts to

counsel

invisioned

more than

jus t a warm

body wi

th

a bar

card

as

ass

i stance of

counsel .

Rather, the i r

guarantees

embodied

the

promise tha t counsel

would render

ef fec t ive

ass i s t ance ,

and,

tha t a s s i s tance would be premised

upon the free

flow of information between the a t torney and

the

c l

ient .

v YOUR D I

LFJ tlNA

At

the next stage of the proceeding

you, have some

very

di f f i cu l t

decisions to

make. However, to do so, the

good

lawyer

needs to know

the

following:

1) Your ca l l e r wil l most

l ike ly

be

requested

to submit

to

a

breath

t e s t .

The brea th t es t device

used in Texas

is ca l led the

In toxi lyzer . Note

that th i s machine:

a) Is

premised

upon the average person and,

i f

your ca l l e r is not exact ly

average

i t

could

unjus t ly convict

him;

b ) Do e s not pre s e r

v t

he b

rea

t h s amp 1 e t

hat

i t

t e s t s .

Hence, i f

i t

was wrong,

there

is no way

to prove i t s er ror .

Note also,

tha t th i s

device is

capable

of preserving

the exact

brea th specimen t e s ted (so

there

could

be

a

second

l abora tory

analys is )

but our

Texas law

does

not

requi re the prese rva t i on - - t h i s is

so

even

though i t

could

be

done

for

approximately

f i f t y cents .

c) Is supposedly

effec ted by radio frequency

in te r ference

(RFI)

or

as i t

is sometimes

c a I

led,

e I e c t r ma gnet

i

nerg y RF I can a Iso

cause

an

erroneously high breath t es t resu l t

which

could unjus t ly convict

your

ca l l e r . For

example, there

is some evidence tha t the

Intoxi lyzer

is

effec ted by RFI

in

much the

same

1 1


12/70

way

as t e l ev i s i on / rad i o reception

is

effec ted

when

e i ther

a

hair

dryer or vacuum cleaner is

t

urn

e

don For

you r i n

for

rna n , c

omp ute

r s ,

the i r t e rmina l s , photocopiers , pol ice

radar

do

p

pie

r

de vic

e s ,

and

pol

ice

r a d

i 0

s

em

i t

RF 1.

Note

a lso , tha t the newest model Intoxi lzyer

has

a RFI

detec tor .

However, our

Texas

models

do

not .

2.

A

Blood Test is

thought to

be the most

accura te

means

of determining

a

person s

degree

of in toxica t ion .

A

uri

net

es t

i s tho

ugh

t

to bet

he I e as t a c cur

a te me

a n s

Both means, however, would al low for subsequent re

analys is

by

both the

prosecution

and the defense

.

3

I 0

a p p

l i e s t the time 0

f

d r i v i

ng

.

A

10 ,

th i r ty minutes af te r

driv ing does

not

automatical ly

equate

with g u i l t - - b u t , i t could.

4 .

A p e

r

son

i

s o n

I y

de

erne d

to

h a v e

con sen ted toe the

r a

breath

or blood

t e s t

i f

he

has

driven

on

a publ ic

road

or

highway.

There is

no

deemed consent where

one

drives

elsewhere in a

publ ic place , e .g . ,

a

parking

lo t or

a

beach. Therefore,

i f the

person

was

not

arres ted for OWl

on a

publ ic road or highway

and he

refuses a l l

chemical

t es t ing , his d r iv e r s l i cense

wil l

not be

suspended.

5 .

e

erne d

con

sen

t is 0

n 1 y

val

i d i f

the 0

f f

ice

r r eque s

ted

the

chemical t e s t

according to the law.

The

of f i ce r

must

inform

the

suspect , both

ora l l y and in

wri t ing ,

be for

e

her

e que s t s

the sus

p e c t ' s s u

bm iss ion to t

h e

t e s t ,

tha t upon

re fusa l :

1) his d r iv e r s l i cense

wil l

be

automat ica l ly suspended, 2) tha t he has

a

r ight to a

hear ing on

the

suspension,

and, 3)

tha t his

refusa l can be used agains t him in any subsequent WI

prosecution. Hence, where

the

law

is

not

followed,

i t

may

be

tha t

the suspec t s l i cense wil l not be

suspended i f he

re fuses .

On

the

other hand, where

the

sus

p e c t s u

bm i t s

to chern i cal t

es t

i n g ,

but

the

0

f f

ice

r

has not followed the law,

the

t e s t

resul

ts

may

be

excluded from

evidence

(as per

Art . 38.23, Tex.Code

Crim.Pro . ) . 6.Every OWl suspect ,

who

submits to the

pro sec

ut i

0 n s chern i

cal

t es t ,

has

a s ta t u to r y

r ig

h t t 0

his

own

second

i

ndependen

t blood t

es t . However, the

second

t e s t

is

condit ioned

on

i t

being

performed

wit

h i n

two

h

0

u r s

0

f

his

a r

res

t .

Fur the r , the r igh t

i s

addi t iona l ly condit ioned upon the

suspec t s

a b i l i t y to

pay and arrange for the t e s t .

Moreover,

the s t a t u t o ry


13/70

r ight

can

be

del ibera te ly denied by

the

of f i ce r

without any rea l penal ty to the

prosecut ion .

Note

a lso,

tha t a suspect may

have

a

cons t i t u t i ona l and

s ta tu tory due

process

of

law r igh t

to

his

own t e s t

notwithstanding he

has refused

the

prosecut ion ' s t e s t .

7

An

I n t

0

xi I

z e r t

es t

wi

l n

0

t

rev

e a 1

the

pre

sen

ceo

f

drugs

or

a

cont ro l led

subs tance .

However,

a blood or

urine wil l do

so.

8. Opinions

by

the Texas Court of Criminal

Appeals

and

by

the

United Sta tes

Supreme

Court are

sugges t ive

tha t

a

DWI

suspect

a t th i s stage

of

the proceeding has no

r ight under

the---s-ixth amendement

of the Federal

Const i tu t ion to ass i s tance of counsel . However, our

high s ta te cr iminal

cour t

has

express ly

l e f t open

the

quest ions

as

to

whether

or not

the

r igh t

to

counsel ,

a t this s tage , exis t s under Art . I , SlO (Right to

Counsel) ,

and

Art .

I ,

519 (Due

Course

of

Law)

of

the

Texas Cons t i tu t ion , and under Art . 1.04 (Due Course

of

Law), Art .

1.05 (Right

to

Counse l ) , Art .

15.17 (Right

to

Have Counsel

Present

at

Any

Pol ice In terv iew), Art .

38.22 (Right to Have Counsel Present

a t

Any Pol ice

Quest ioning) of

the Texas

Code of Criminal

Procedure .

9. Ordinar i

ly , an

ar res ted

OWl

suspect wi

be held in

custody unless ba i l

is

made. For example,

in

Harr is

Co un t y , a W I sus p e c t wi l l r ema

i

n i n j a i I

un t i l

his

t r ia 1 un 1 e s s a b o ndin the amo u n t 0 f

$

8 0 0 i s a r

ran

g e d

with the

Sher i f f .

10.

That

you, s ince

you

had

the

oppor tuni ty to hear and

speak

to

the

accused,

i

e . ,

observe

his

mental

facu l t i es ,

might

be

a

witness in any

subsequent

cr iminal prosecut ion . Hopeful ly,

i t wi

11

be as

a

defense witness .

Okay, so

now you

know

almost as

much

as I know.

The

ques t ions then become "What

do

you do?" and

"What do

you t e l l

the ca l l e r?

My

answer

is that

I

don ' t

know

because

i t depends

upon

the

fac ts

of

each

case.

You might want to t ry to communicate

with

the ca l le r by having him

respond

to your quest ions wi th only

3


14/70

"yes"

or

"no"

answers.

For

example, you might count upwards

u n t i l the sus p e c t s a id yes" to t h n umb e r 0 f d r

ink

sh

consumed, or ,

you

might rec i t e the various types of alcohol

unt i l he

sa id

"yes" to the

one

he

consumed.

However,

I

do no

t

recommend th i s

approach

because

i t

forces you to

provide

advice

when

you have very

inadequate

information.

In

addi t ion , I can

promise you tha t

th is method

of a t to rney/c l ien t

communication

is

slow

and, because

i t i s , wil l

be

cut -of f

quickly

by

the of f ice r .

I f

your

ca l l e r

sounds grea t , then you might want

to

t e l l

him to both perform

a

motor

s k i l l s demonstrat ion before

the

v

ide 0 came

r a

and

s u

bm

t t 0

a n I n

to

x

i

I Y e r t

es t

However,

I

do

not recorrmend i t

unless

you

don t

mind saying !loops!"

VI.

MY

ADVICE.

Jus t 1 ike

you

r w s c h0 0 1 e v ide n c e pro f e s so r

sa

i d Do

nI t

ask

a

cross-examination quest ion unless you already

know

the

answer," your

advice

to the suspec t / ca l l e r ought to

follow

the

same ra t iona le .

Therefore,

I

recommend you t e l l

your ca l le r to

respond in the following fashion:

1) Tell the off icer he wi take

the

in toxi

lyzer

t es t i f

the

off i cer

wil l save the

breath

specimen t es t ed .

This the

off icer wil l not

do,

but , since the statement

appears on

videotape,

a subsequent fact

f inder wil l

determine the suspect

was nei ther unreasonable nor

had

a g u i I t Y

min

d ,

i

e , he tho

ugh

th

wa s n

n0 c e n t

otherwise he

would not have agreed to submit

to a

reasonable t e s t ;

14


15/70

2 Tel I the 0 f f ice r

h e w

i l l s ubm i t t 0 a b I 0 0 d t

es t

i f a

l i censed

phys ic ian

wil l perform the ex t rac t i on .

Note,

that ord i na r i l y the of f i ce r wil l

refuse

th i s over tu re .

This ac t ion , too , wi be preserved on audio/v ideotape

and

wil l

not

appear

unreasonable.

Nor

wil l

i t

show

the suspec t had a gu i l t y

mind.

However, should the

ca l l e r

ac tua l ly have

a sample about to be withdrawn,

then

i t

is my advice tha t he refuse unless h is own

personal

phys ic ian

ac tua l ly

draws the specimen;

3

Tel l the of f i ce r he is not refus ing e i ther the

spec i f ic

breath

or blood t es t the prosecut ion is

of fe r ing , ra ther , he is not dec iding unt i I he gets an

oppor tuni ty

to

discuss the fac ts of the case and

his

decis ion ,

in pr iva te , with

his lawyer. Again, as a

h i s t o r i ca l

mat te r ,

th is act ion wil l

cause

the

reques t ing

of f i ce r

to

s ta te

on tape

tha t he deems such

act

ion

a s

re

f usa 1 to s u

bm

i t t

0 chern

c a I t

es t

i n g

Note t ha t

i f th is

should

occur ,

then the

of f i ce r is

equa t inga r e que s t for co u n s e to

et

he s arne a s

h a v i n g a

t

g u i I t Y

min

d f 0 f imp0 r the rei s the fa c t

that such a conclusion is cons t i t u t iona l ly

impermissible .

In th i s regard, our new Chief

Jus t i ce

of the United

Sta tes

Supreme

Cour t ,

Mr. Reinquis t , has

said tha t

no

ra t iona le person could

equate

a

request

for a id of counsel

with

a

gui l ty mind;

4 Provide you with the ful l name and te lephone number

of

a f r i

end

0 r re i a t i ve who w i I I ass i s t in rna kin g bon d

for

his

re lease ;

and,

5 Tel l the of f i ce r he is t emporar i ly

t e rmina t ing

the

i n t e r

view

un

t i l you

a r r i ve

and

s pea k p r i vat ely wit h

him,

and t hat

a f t

e r s u c h con sui

t a t

ion, he rna y s ubm t

to a motor s k i l l s demonstrat ion

and

t he i r

chemical

t e s t .

Note:

I t

is

very

important

tha t

your c l i en t

unders tand he is to have no fur ther communication with

his a r re s t i ng o f f i ce r s

about

the fac ts

of

the case .

I t

is

also suggested that

you

speak

to

the a r re s t i ng

of f i ce r - - i f

he

wil l

t a l k t o you,

and he

probably

wil l

not - -and

t e l l

him

not to

fu r the r in terv iew

your

c l i en t

un t i l you

or

other

counsel you re ta in is

present .

As k the

0

f f

ice

r i f h e w i l l

te l

I

you

why he

a r res ted

the c a l l e r .

I f he

doe

s so, his s

t a t

erne

nt ,

15


16/70

pr ior to him being pol ished by a prosecutor , wil l

be

preserved

on the

audio/videotape.

Also inform the of f i ce r tha t your

c l i en t is

not

to

be

fur ther

quest ioned

or interviewed

by him or

other off icers .

Fur the

r ,

de t e rmin e

from the

f f ice r the e xact

locat ion

of

the

suspect

and

the spec i f i c

charges he intends

to

f i

Ie

agains t

him. This

informat

ion wi

as s i s t you in having

your c l ien t bonded out as soon as poss ib le .

I n add i t i n i f you are gut s y a g amb 1 e r , and

extremely

lucky

you

too

should ask the off icer for

a pr iva te

conversa t ion

with

the suspect .

He wil l re fuse . You

should also t e l l

the

of f i ce r that your

c l i en t

is not

refusing

to t es t ing , ra ther , the

problem is

that

you cannot

advise him what

to

do unt i l

you

can

pr iva te ly speak

to

him.

Again

i f

his tory

continues to

repeat

i t s e l f , he wil l refuse

you such

an

opportunity. Fina l ly ,

you

should ask the of f ice r , aga in

knowing

he is on audio/videotape

i f

the

suspec t s wai t ing for you

to

phys ic ia l ly come

to

his s ide

wil l

be

deemed a re fusa l . His tor ica l ly ,

th is

has a lso been

de

erne d by the 0 f f ice r to

be

ref usa I S h0 u 1 d

the pro

c e e din g

occur

then

you probably wil l make a wonderful witness for your

c l i en t .

16

........

..


17/70

VI

I

YOU VE GOO TO KNOW WHEN TO HOLD THEM AND KNOW WHEN TO

FOLD

THEM

1. On

the Cal le r /Suspec t

f you got

th i s far

and followed

my

advice , then

your

ca l l e r

ought to put you in his w i l l .

The

very next c a l l s

you

make

should

be a

bondsman

and a

phys ic ian .

Provide them

with

as

much background informat ion about your

ca l l e r / suspec t

as you

can. In

regard

to

the

bondsman

provide

him with the

c a l l e r s

locat ion and bonding informat ion. In regard to the phys ic ian ,

ask him

to

ca l l the s ta t ion and at tempt

to arrange

for a blood

t e s t . H ew

i I I

rn

k e a

val

u a b

l e w

i t n e s s

for the

De fen

dan

t w

hen

the

pol ice

refuse

him

access to your c l i en t .

Hopeful ly th i s

doctor wi l l be someone you have a l ready prearranged th i s ac t ion

with .

In add i t ion ,

have your

doc tor

at tempt

to

a c tua l ly get the

c l

ient

on

the

telephone by

ca l l

ing

the s t a t ion to determine i f

he s h u I d be

chern

i c a I I Y t est e d .

I f

he

is

success fu l , then he

could

be a valuable

and c r i t i c a l witness for the defendant

as

to

him not los i n g the norma

u

e f his me n t a I f a cui t i e s Note

however

tha t

the

phys ic ian should be

ca re fu l

to

not

make the

defendant

inadver ten t ly make admissions on

the

l a t t e r

end

of

the

ca l l .

Note

too tha t the phys ic ian ,

as

your agent , is

covered

by

the

a t t o rney-c l i en t

pr iv i lege .

In

regard to

you

as the a t torney , at tempt to arrange bond

for

you r c l ie n t . Fur the r , you s h0 u 1 d rn k e a

de

t e r

min

a t i 0 n i it

would

be

f ru i t fu l

for

you

to imnediately v i s i t your

c l i en t

or

17


18/70

attempt

to gather other

eXCUlpatory

evidence,

e .g . , witness

names and statements from persons that defendant was recent ly in

the i r

company.

Remember each case turns on i t s own

merits

here

and

th is is

one

decision I leave

to

your good

judgment.

2.

On

the

Suspect

Who

I s

Personally

Close to the

Cal ler

Just as noted above, get as much

information from the

cal ler about

the

arres tee as possible.

Determine,

if you can,

the

suspect 's location and a l l relevant bond information. Don't

forget

to get the ca l l e r s phone nwnber.

Armed with th is

information, again, you

should

cal l the s ta t ion

house

and

attempt to

speak

with

your

cl ient

as noted above.

Aga

in,

the

aforementioned advice is wholly applicable here

too!

VIII

OONCLUS ION.

DWI is not only a serious

criminal

offense, but also , i t is

a highly complicated one. Guil t and innocence

is .both

determined

on

the

basis

of

subjective

and

quas i -sc ient i f ic

evidence. I

t is

an

0

f

fen s e w

h

0 sed

e

fen

se a

11

s for i

rrrne

d i

ate

and knowledgeable act ion

by

learned

defense counsel.

Indeed, i t

is another example

of

the

type of

offense

that lends

i t s e l f to

the

layman and novice

lawyer

easi ly,

by the ir lack

of

knowledge

in convicting

a

person

who is not rea l ly guil ty .

Accordingly,

the lawyer

is cautioned to walk

slowly

through th is

criminal law

mine

f ield.

I n do i n g sot he I a

wy

e r doe s g rea t s e r vic e for

the

ca l le r /suspec t .

ABOUT

THE UTHOR

J . Gary Trichter is a partner in the law firm of Malle t t ,

Trichter

&

Brann in

Houston, Texas. He

is co-author

of the

text

ent i t led

TEXAS

DRUNK DRIVING LAW and also

writes

the monthly

colwnn ent i t led nDWI Practice Gems in the Voice for the

Defense. In addit ion, he was the topic speaker

for

DWI

for

the

1986 Advanced Criminal

Law

Course. Mr.

Trichter

has also

wri t ten many journal a r t i c le s

and

has taught as

an

adjunct

professor

of

law

a t

South

Texas

College

of

Law

and

a t

the

Universi ty

of Houston Law Center.

8

......


19/70

PROB BLE C USE HE RINGS

ON WEEKENDS FOR MISDEME NORS

y Richard ndBrson

On

15

November

1986 the Harr is County

Criminal

Court

a t aw

Judges

began weekend hear ings

for a l l

defendants de ta ined on

misdemeanor

charges in

the

Harr

i s

County J a i l . These hear ings

were

i n i t i a t e d

to comply with Gers te in v . Pugh, 420 U.S.

103

1975) and

Bernard

v .

Palo

Alto, 699 F.2d 1023

1993).

The

Judges

are cur ren t ly

de ndants in

a

fede ra l

c l a s s

ac t ion s u i t ,

pending

before

Judge

Bue,

wherein

the

p l a i n t i f f s

are

a l leg ing

t ha t the

fa i lu re to

provide

a

prompt determinat ion of

probable

cause ( in

misdemeanors)

for fu r the r

detent ion

i s

a

v io l a t i on of

due process. Therefore ,

these

hear ings have been i n i t i a t e d to

accomplish severa l narrow ob jec t ives :

1) Determine

Probable

Cause

de ten t ion :

for fur the r

2)

Give the

defendant his

s ta tu tory

warnings

pursuant to Ar t ic le

15.17

V.A.C.C.P. ;

3) Set ba i l

according to

the

adopted

by the

Judges;

schedule

4)

Review

e l i g i b i l i t y for and gran t

P re - t r i a l Release

Bonds

where appropria te .

The defendant

wil l not

be

appointed counsel

a t these

hear ings , nor

wil l

any

plea

be entered .

n

Ass i s t an t

d i s t r i c t

at torney

wi l l

be presen t to

of fe r a

fac tua l r ec i t a t i on of probable

cause

for fur the r de ten t ion .

Obviously,

defense counsel i s

welcome to

appear and be

heard

on

behalf of

a c l i en t .

9


20/70

Under the au thor i ty of Sec t ion 75.403 Government Code the

Judges have

appointed

Mr. Jim Garre t t as

a spec ia l judge to

con-

duct the

weekend hear ings .

Mr. Garre t t i s

a

former ass i s t an t

d i s t r i c t

a t to rney and

had a

genera l

prac t ice of

law

for over t en

years in Harr is

County.

The past year

Mr.

Garre t t worked for the

Harr is

County Commissioners

Court as t he

Criminal Jus t i ce

Coordinator . e i s appointed under the

same

s t a tu to ry a u thor i t y

used by the County

Criminal

Courts to

appoint

spec ia l

judges

i . e .

Candy

Elizondo

Rick Trevathan Ray Montgomery e tc . ) to c a l l

the

regular

docket

o f

a

Court when the

pres id ing

judge i s ill on

vaca t ion

o r

otherwise unable to pres ide . While Mr. Garre t t i s

empm. rered under

the

same

s ta tu te , he wi 11 not appoint counsel ,

t ake pleas , conduct t r i a l s , s ign ev iden t i a ry search warrants , or

issue

a r r e s t warrants .

Mr. Garre t t

wil l a lso

conduct

emergency mental

coromi

tment

hearings on beha l f

o f

the J us t i c e s of the Peace and the

Har r i s

County Probate

Judges.

The prohable cause

hear ings

are conducted in

a

newly con-

s t ruc ted hear ing room

in the

hasement of

the Harr is

County

Ja i l .

Only defendants who

have

been

booked

in to the

county j a i l

wi l l

appear

before Mr. Garre t t .

Defendants

ylho

have bonded out pr i o r

to booking

w i l l not be required to appear .

Curren t ly ,

Mr. Garre t t

conducts

the

hear ings

between 9:00 a.m.

and

3:00 p.m.

each

Saturday and

Sunday.

The t ime

of

the

hear ings

has not

been

permanently

arranged as

the

Judges

are a t tempt ing , in

coopera t ion

with the

She r i f f , to s t andard ize

the

t ime

cons i s ten t with

the f low

of pr isoners from the ou t ly ing

j a i l s . Addi t ional ly ,

hear ings

wi l l

20


21/70

CffJit;ni/ican O


22/70

offense

charged, and 3) not to t r y to apply 1) and 2) to

the accused

before them. CCP 37.07

sec t ion

4.

In

t-his case, t.he

of fense occur red be fo re t he e f f e c t i v e da t e

o f

t h i s l e g i s l a t i v e

change, but

the t r i a l occurred af terwards . Since Art ic le 37.07

sect ion 4 did not

change

the elements of the offense, or

increase

the

range

of

punishment,

the

app l i ca t ion of the

new procedura l

ru le was not

cons t i tu t iona l ly

prohib i ted as an ex post fac to

law.

MICHAEL

RAY DREW

V.

STATE No. 01-85-908-Cr, 10/16/86

J . Dunn

EXTRANEOUS UNADJUDICATED OFFENSES

NOT

ADMISSIBLE IN JURY

PUNISHMENT.

The general ru le i s t ha t unajudica ted extraneous offenses are not

admiss ib le a t

the punishment phase o f a

jury.

Ct

i s ca re fu l to

no te t h a t a m i l l i o n

except ions

e x i s t to

t h i s

ru l e such

as

to

rebut a

defensive

i s sue

or

a fa lse impress ion

of

being good.

fOURT NTU COURT

Of

APP ALS

Decisions

10/1/86 through 11/6/86

KEVIN GERFORD ANDERSON

V. STATE

No. 14-85-S76-Cr,

J . Robertson,

9/25/86

A

NEGOTIATED DEFERRED

ADJUDICATION PLEA DOES NOT BAR

THE LATER

APPEAL AFTER THE

GUILT

IS

ADJUDICATED.

Basic ru le i s

tha t

when a defendant pleads gu i l t y pursuant to an

agreed

rec,

and

the

t r i a l

cour t assesses

with in

the

rec,

no r i gh t

of

appeal except

for p re t r i a l matters ra i sed in w r i ting or with

the

t r i a l cour t s

permission.

Where

the

defendant

gets deferred

as his plea bargain, t he re

i s

no r i gh t to appeal then

and

there .

However, once

his

g u i l t i s adjudica ted ,

his

f i r s t

r igh t

o f appeal

at taches . An

agreed

plea barga in to be placed

on defe r red

does

not

bar the l a t e r appea l .

However, where the de fendant

e n t e r s

i n to

a second agreed

p l ea a t

t he

motion to

ad jud ica t e g u i l t

hear ing, he i s barred genera l ly from appeal ing, except

as noted

above.

UNDER THE NEW RULES OF APPELLATE PROCEDURE AN AGREED PLEA

DOES

NOT BAR AN

APPEAL

FRm1 THE GUILTY PLEA OR

MATTERS

OCCURRING

AFTER

THE

PLEA.

Now i s a good t ime to ment ion t h i s . Rule

40 b) Texas

Rules of

Appe l la te Procedure i s w r i t t e n d i f f e r e n t l y

from

t he

former

A r t i c l e 44.02 Texas

Code o f

C r i m i n a l

Procedure .

The new

ru l e

s ta tes :

Notice of appeal

sha l l be given in

wri t ing . Such not ice

s ha l l

be

s u f f i c i e n t

i it shows t he d e s i r e

o f

the

defendant_

to

appea l

but

i the judgment was

r e n d e r e d

upon

h i s p le a

o f

g u i l t y and

h i s

punishment

a s s e s s e d does no t execeed t he puni shment

recommended by t he

prosecu t o r

and agreed to by the

so

NOV/DEC

1986

2


23/70

defendan t

and

h i s

a t t o rney , i n orde r to pros e c u te

an

appea l

for a

non j u r i s d i c t i o n a l d e f e c t o r

r r ~ r

which

occurred

pr ior to the ent ry of plea

the

not lce s ha l l

s t a t e .

.

The l anguage sugges t s t h a t

j u r i s d i c t i o n a l e r ro r

may be r a i s e d

regardless

of t.he

plea , t .hat the

gu i l t y

plea

hear ing

i t s e l f

can

always be appealed, and matters

a f t e r the

plea

(such

as

a

motion

for

new

t r i a l ) can be

ra ised ,

a l l without permiss ion o f the t r i a l

court .

NOTE THAT RULE

40(B)

HAS

A SPECIAL PROVISION

FOR

HOW

THE

NOTICE

OF

APPEAL MUST BE DRAFTED READ IT REFORE YOU GIVE YOUR

NEXT APPEAL.

MISANALYZED COURTS OF

APPEALS DECISIONS

By

Henry L.

Burkholder I I I

RANDALL HAIGE JAMAIL V STATE No. 14-85-019-Cr, 7/10/86, opinion

by Sears , J .

(This

i s

my

second

at tempt

to

get t

r igh t ) .

REFUSAL TO CONSENT TO

CHEMICAL

TEST OF BLOOD OR RREATH

INADMISSIBLE, WHERE REFUSAL

WAS

MADE DURING PERSISTENT

INTERROGATION

OF

DEFENDANT IN VIOLATION

OF

EDWARDS

V.

ARIZONA.

In Edwards v.

Arizona, 451 U.S.

477 (1981)

t he Cour t he ld

t h a t

once

an accused invokes

h i s Miranda

r i g h t to counse l ,

a l l

i n t e r r o g a t i o n must

as a ge ne ra l

r u l e cease . In

McCambridge v.

State ,

No. 1086-85 (Tex. Crim. App.

5/14/86)

the

Court

held t.hat

the re

is no cons t i tu t iona l

r i gh t

to

counsel (under

the 5th

or

6th

Amendments) a t

the

t ime an accused charged

with

DWI must

decide

whether

to

submit

to

or

refuse

a

chemical

t e s t

of

his

blood

or

brea th . McCambridge l e f t

open

the door ever

so

s l igh t ly on the

issue of

counsel,

however, by holding:

n[WJe do not imply t h a t a rememdy w i l l never be

avai lab le to a suspect who i s

confused when faced with

Miranda

warnings and

a

breat.h

t e s t i ng

decis ion

without

the

benef i t of requested counsel.

In Jamai l

the

Court recognized

jus t

such a problem. The defendant

in

tha t

case

was given

Miranda warnings.

Apparent ly

the

defendant

was not t .otal ly wasted, and sensing t ha t th ings

were

not going

h i s way

through t .ac t and diplomacy, go t na s ty and demanded

counsel.

In terrogat ion

continued

unabated,

and

somewhere

in

t.he

waive a f t e r

waive

of Edward

violat . ions, t.he defendant.

was asked

to

submit to

a

chemical t e s t . Natura l ly , t.he defendant

refused.

J u s t i c e Sears

wro te :

Under t he

f a c t s

o f t h i s case ,

we

a re

unable to separa te the wrongful custodia l

in te r roga t ion

from the

consent

fo r

a b r e a t h

or blood

sample .

Both a re f r u i t s o f

the

poi sonous t ree . The defendan t i n J a m a i l was not.

n e c e s s a r i l y

confused

by

t he Mi r a nda warn ings . -However , when t he pol i ce

continued to ques t ion

in

vio la t ion of the defendant ' s r igh ts , the

Cour t found t h a t t he v io l a t i o n o f Miranda c a r r i e d over to the

defendan t ' s

dec i s i on

as

to

whether to consen t

o r

not to

t he

chemical

t e s t .

S

NOV DEC

1986

3


24/70

Last t ime

t h i s aut.hor

analyzed t h i s case , pra i ses were sung to

the poor

and wretched (but

not under paid

in

t h i s case)

defense

counsel , who

a f t e r

a record

book

shat . ter ing

defea t

a t the

HCCLA

e lec t ion

pol l s ,

never the less

managed to win t h i s

case on appeal .

However, even more

pra i ses should

be sung to the r ea l

man behind

the case -Jus t i ce

Ross A

Sears , who wrote the

majo r i ty

opinion in

Jamai l .

His

decis ion to reverse

a

convic t ion in

an

area o f law

where the a p p e l l a t e

c o u r t s

a r e s t r a i n i n g

to

f ind

more

ways

to

a f f i rm

convict ions i s

both r e f r esh ing and

courageous.

OURT OF

CRIMIN L

PP[ LS

y

Catherine reene

urnett

fx__

par:tl S t ~ p h ~ I L R l J : ? S f h h ' No.

6 9 .5 7 4

Writ

of

a b e a ~

Corpus .

Rei ie Granted - - Judge Onion;

Judge White concurs n r e s u l t

November

S ,

1986

FUNDAMENTALLY DEFECTIVE INDICTMENT

RENDERED

VOID A PRIOR ROBBERY

CASE

USED

AT

PENALTY STAGE. NOTWITHSTANDING

LACK OF

PROPER

OBJECTION

- - ERROR NOT

HARMLESS:

The

ru l e

seems

to be

t ha t

i f

thf '

pr i o r

conv i ct.

i

on was based

upon

a fundaments

1 I

y

d e f e c t

i

ve

indic tment .

which

in tu rn would mean

t h a t the

t r i a l cour t

a i d

not

have

j u r i s d i c t i on , t h e

Judgment

In sa id

pr i o r

conv ic t i on

and

for

enhancement is sub jec t to

a t t ack ,

even an 11 .07 a t t a c k .

Perhaps

a

d iFFeren t

s i t ua t I on ex i s t s I f t he

defendan t

a t t a c ks a

p r i o r

~ o n v l c t i o n

used

For

enhancement

on

t he

ground

t h a t

I t

is

void

because t he defendan t ws I nd I gent and wi

thout.

counse I Ex F ' ~ T t _ e

Wrlit.q,

659

S.W.2d 434 .

The

cour t next asses sed harm

and found

t h a t t h i s robbery

conv ic t ion was one o f Five pr i o r conv ic t i ons but t h a t the

o t h e r s

involved two for

posse ss ion

o f mar i juana , one

for

a t tempted

burglary

and one or

burglary ;

and

t ha t

dur inq

j u ry

arquments .

prominence was

gIven to

t h e pr i o r robbery

conv ic t i on

and

t he

prosecutor

urqed

t.he ascend ing

sc a l e

o f

vj()lence type arqument .

Trle

j u ry

s e t punishment

a t 5

TDC. TeA found

t ha t the re was

a

reasonable

p l n s i b i l l t y

t h a t t he ev idence complained of

con t r ibu t ed

to

t he punishment .

AS

TO ALLEGATION THAT PROSECUTOR SUPPRESSED MATERIAL EVIDENCE

DURING THE

AGGRAVATED

ROBBERY TRIAL: Where app]

i can t acu t a l l y

knew t he f a c t s which

were a l l e g e d l y

withhe ld . he cannot seek

re i j e f on t he bas i s

o

t he s t a t e ' s a l leqed fa l lu re to d i s c l os e

t hose same Fac t s . 1 _ ~ a n s _ ' { . ~ J ~ d ; : _ ~ . 429 S.W.2d 490 . Obviously ,

upon r e t r i a l .

t h i s

suppre ss ion

o f

evidence c la im wi I 1 presen t no

problem.

SO

NOV/DEC

1986

4


25/70

T h O f T ~ . ? ~ d - : - J J l

No. 69,463 Capi ta l

Murder [Death]

Reversed

Judqe

Teague; Concur r ing

in

r e s u l t :

Judges Onion ,

Davis .

Davis ,

Cl in ton , McCormick and Campbel l ; no t -pa r t i c i pa t i ng : Judqe White

November 5, 1986

DEFENDANT'S CONFESSION INVOLUNTARY AS A MATTER OF

LAW

BECAUSE OF

IMPROPER WARNING: I n v e s t i g a t i n g pol

i ce oFFicer rea l ized t h a t

he

needed

a conFession

From

D

t o

make t h e case . D's

co n fe s s io n

and

a

t ape

r eco rd in g o an In te rv iew with him were admi t ted

i n to

ev idence .

The

r eco rd

a p p a r e n t l y

i s r e p l e t e

wi th

reFerences

to

t he

f a c t t h a t iF D conFessed

h i s

chances

o f

no t

g e t t i n q

t he d ea th

pena l ty

i n c rea s ed .

e t c .

However, t he back-b reaker

i s

Found

in

t h e

warning

given by the

oFf ice r to

t he

defendan t t h a t h i s co n fe s s io n cou ld be used For

Hnd a g a i n s t

him .

To warn

an accused

t h a t

h i s

conFess ion might

he

used

for' hi r ho 1d s ou t an i nclucement For mak I ng

t he

c o n f E ~ s s i on

and r-fmders it i n ad m is s ib l e a s

a

m at te r o f law. ~ , 9 . n n _ y : . _ ~ t ~ t : ~ ,

4-j

S.W.2d 1035; . M c ~ ? i Q ~ ~ _ ~ t a t ~ 141S.W.2d 613;

l ~ . ? ~ L ' - : _

S r < ? ~ _ t : . . 187 S.W.2d 555. This one Fac t was no t c o n t r o v e r t e d in any

way in t he record . The Court conc luded t h a t t h e o F F i c e r ' s

~ ~ a t e m e n t

to t he

deFendant caused

t he

conFess ion to become

invo lun ta ry

and

t hus inadm iss ib le .

t : 1 j J : c t : l E ; J . J _ y : . ~ _ ~ t c . = t . e ,

458

S.W.2d

.

j n .

C a l v J r : L 8 _ ~ _ ~ . Q l d 1 D I N G . No. 1103-85

Sexual At)use o f

Chil( j

Convic t ion Remanded Per Curiam Opinion. Judges Onion

and

Teague

d i s s e n t i n g

November

12, 1986

NOTE:

CA d e c i s i o n r e v e r s i n g

conv ic t ion r epor t ed a t

696

S.W.Zd 457

TCA

REFUSES TO RECONSIDER ITS RULING THAT DEFENSE

OF

PROMISCUITY IS UNAVAILABLE TO SAME SEX DEFENDANT AND VICTIM:

CA

r,e

1 d that , D

was improper

I y den i

ed

t he

def 'ense of'

prom

i

sell i t y "

under

t he

now r ep ea l ed

V.T.C.A. ,

Penal

Code,

Sec t i o n 2 1 . IO(b ) .

That s t a t u t e s p i c l f ' i c a l l y l im i t ed

I t s

appl i c a t i o n

to ofFenses

where

t h e v ic t im was of'

t he

o p o s i t e

sex

f'rom

t he

acu5sed . CA

held t h a t such

I

imi t ing

prov i s ion was

an

u n c o n s t i t u t i o n a l

v i o l a t i o n

of'

t h e r i g h t t o equal p r o t e c t i o n . and

s t ruck the

I imi t ing p r o v i s i o n .

TCA had prev ious ly held t h a t Sec.

21.10(b) was

not a

v i o l a t i o n o

equal

p r o t e c t i o n in an

opfn ion

deliver 'ec1 In

Apri l 1985.

[ ~ g u _ t : ' : : { ~ U

v.

5 t a t e S.

W 2d (Tex.

Cr i m. App. No. 71 1-83.

de

1 I verecJ

Apri l 24, 1985. op in ion

on

r ehea r ing d e l i v e r e d on September 24.

19861

Boutwel l

d id not

ad d re s s

t he

c o n s t i t u t i o n a l

l t y of' t h e

s t a t u t e aga in . TCA d e c l i n e s to do

so

in t h i s

cas e and

remands

to

CA

fo r

f 'u r ther

cons ide ra t i on

in

l i gh t of Boutwel I .

SO

NOV/DEC

1986

5
http:///reader/full/141S.W.2dhttp:///reader/full/141S.W.2d


26/70

c ; i - ' ? r J - " - : . n o _ B . ~ f l Q . [ l A 1 1 ~ t . i ~ A , No.

1302 85

Opinion on

Appe I 1an t s

PDR:

aggravated

rape conv ic t ion aFFirmed

- - Judge

Tom Davis :

Judges Cl in ton .

Teague and

Campbell concur

November

12, 1986

NOTE: Th i

sis

t h e

o r i

g in a I

AJrr:v:?n?_


27/70

F

C T _ ~ : Jury conv

i

c t ed in

two

cases o f

h 1

nder

i

nq secured

cred i to r . In

exchange

for recommended sentence by s t a t e .

D

aqreed

to waive ju ry assessed punishment and r i gh t to appeal .

D

waived

r i gh t

to appeal

pr i o r t o assessment o f

punishment

and

then

o r a l l y a f t e r

probat ion was granted .

TIC fol lowed recommended

~ e n t e n c e However. D proceeded to

f i Ie

t ime ly

no t i ce

of appeal .

TIC d i rec ted d I s t r i c t c le rk to hold no t i ce o f appeal In abeyance .

TCA

agreed t ha t

t I c ' s a c t i o n

was improper . The p l a i n language of

Art i c l e

44.08 V.A.C.C.P. shows

t h a t ford ing a

no t i ce o f

appeal

is

a

procedura

I

mat ter

that .

sha

11

"be

done by

the

c le rk .

Therefore

nei ther

t c or

c l e rk

had

any d i s c r e t i on . Mandamus was proper

remedy

- -

D

had no o ther adequate remedy because

h is

a t tempt to

appeal had been blocked by t c and

habeas

corpus was not

ava i l ab l e

because D did

not have f ina l convic t ion l ~ e q u l r e d by

Art i c l e

11.07.

CONCURRING

OPINION

[ONION]:

I t is

beyond

d ispu te t h a t

TCA

has j u r i s d i c t i o n to i s sue

wri t o f

mandamus. However.

cause would be

bes t

l e f t

to

CI

to

whom

appeal was taken and

whose

j u r i d l c t i o n Is

involved.

CONCURRING

OPINION [MILLER1:

Is

concerned

t h a t

pa r t i e s

may not

rea l

ize ques t i on o f 0 '5

waiver o f r i gh t

to

appeal might be con tes t ed

in CA befo re it r ece ives

the

e n t i r e r eco rd .

Mil le r views

St a t e

as

ab le

to f i l e a motion

to d i sm iss in CA br inging

up

only t ha t

por t ion o f te s t imony and

s ta tement

o f f ac t s

germane to

ques l ton o f appeal waiver .

J i m : ~ . : t : Q _ y

R.

C A S ~ l A . S . No. 629-82 - - Posse ss ion o f

Cocainf:'

Convict ion Reversed: Opinion on Appel

l e n t ' s

PDR on Motion

fo r

Rehear ing

- -

Judge Cl in ton; Judges Onion

and

Tom

Davis

concur r ing

In r e su l t . Judges

W

C.

Davis

and Whfte d i s s e n t i ng November 19,

1986

NOTE:

TeA's

or ig ina l

op in ion

on

D'S PDR

af f i rmed conv ic t i on .

~ ; E A R C H WARRANT

AFFIDAVIT

- - ALTHOUGH REASONABLE

INFERENCES

CAN BE

DRAWN FROM

INFORMATION

CLEARLY

SET

OUT IN

AFFIDAVIT. REVIEWING

COURT

CAN

NOT READ

IN

MATERIAL

THAT

DOES

NOT

APPEAR

ON

ITS

FACE:

D

argued t h a t a f f i d a v i t

In

suppor t o f search warrant was

i n s u f f i c i en t under

s t a t e and

federa l cons t i t u t i ons .

Convic t ion

was af f i rmed b y

El Paso

CA in unpubl ished

opin ion

de l ive red

in

,June o f 1982. one year

before

dec f

s ion

in

.UJ.LnLQ.?_'I- _tl?_s, 462

U.S. 213 (1983) using two-prong t e s t o f ~ g u l - L a r _ ~ ~ . _ T e x ~ ? ,

378

U.S. 723

(1964)

The CA concluded t ha t cumula t ive import" o f a l

I

the

al l egat ions in the

a f f idav i t

was s u f f i c i e n t .

SO

NOV/DEC

1986

7


28/70

Relevant

p a r t s of the

a f f i d a v i t

a l leged

t ha t :

A

conf

I

den t

I a I

i nfor'mant. who

is

we I I

known

In

the

community. a

repu tab le

person and

who

is

galnfUllYf employed

and who a f f a i n t I ~ S i ( l ; ]

has

known o r many

years to

be re

lab

e

person. Affa in t

[ s i c ]

has checked cr ' iminal

h i s t o ry on people Involved and shows

ev idence t he two people

involved

show the

most

recent a r res t .

as

Dec.

1979, a r r e s t

made

fo r

a

dangerous drug

and possess ion o f s t o l en

prope r ty . Survei l lance has

been

s e t up

and

a c t i v i t y

i s

t ak ing place

in

the

garage a r ea .

where these people back t h e i r car a l l t he way

In to t he garage, where

a

s to rage is v i s i b l v

seen d i r e c t l y In

back

of the

garage area .

When Keith Henderson was observed by

Affa in t

[ s i c ] on

4-2-80

ca r ry ing

br ick type

packages

be l ieved

to be

mari juana.

A

p l a s t i c

tub wi th

p l a s t i c tube ing [ s i c ]

was a l s o obse rved being

c a r r i e d In to t he back yard by one Keith

Hendel-son.

I

nformant has

a I

so ,-evea

Ied

t h a t

Keith

Henderson

fr-equents

tr',e

piace

on

a

da I I y

tJases. Th f

5 I

nformat Ion has been

check

out by

Affa ln t [ s i c ]

and

su rve i l lance began

s ince

March 31,

1980. bv Affa in t f::: icl

/O f-

Main

poin t

o f con ten t ion dur ing

Jury argument

was

Iden t i f i ed by

Sta te as

a

c r e d i b i l i t y

o f

D's

c la im

he had been s tabbed.

To

suppor t o f t h i s

argument

S t a t e

s t r e s se d

no

kni fe was found. t ha t

a l l

the

blood found a t

t he scene

was

deceased ' s

r a re

blood

t ype .

t h a t deceased was so in tox ica ted [ .36%]

as

to have been

v i r t u a l l y

defense les s , and

t h a t

t he re was no evidence deceased was v io l e n t .

Circums tan t i a l ly S t a t e high l igh ted evidence Incons i s t en t with

D's

c la im

o f

ignorance

o f

amount

o f

blood

and

number

o f

wounds

i n f l i c t e d .

Defense

counsel

rebu t t ed

s t a t e ' s argument . Defense

agreed t ha t t h e paramount i ssue

fo r

Jury dete rmina t ion was

whether

D

had

t o ld

the t r u t h in c la iming

he

had been (or a t l e a s t

reasonab ly be l i eved he had been) s tabbed f i r s t .

A 1

though vo

I

untary

mans Iaugt l ter was not.

necessar

I 1y an

tlaft.er'

thought

as f t

was in : : ~ _ I r ~ . n ~ ~ _ . _ ? : t B ' t ; : _ ~ . 700 S.W.2d 208.

213 t he

i s sue o f

sudden pass ion

was in

t he TCA's

view q u i t e obvious ly

t he

l eas t o f

D's p r io r i t i e s ,

Judging

from

h is p resen ta t ion o f the

evidence and h is

argument . both

o f which

emphasize t he

J u s t i f i c a t i o n o f hi s

conduct

under t he law o f s e l f defense .

CONCURRING OPINION

[ONION]:

Does

not

be l ieve

i ssue o f

sudden pass ion was ra i sed .

DISSENTING

OPINION

[CLINTON]: Dissen t s

fo r

same reason

s t a t e d in Lawrence.

Also

t akes

issue

wi th conclus ion

o f

CA t h a t i ssue o f sudden pass ion was not ra i sed .

Good di scuss ion

o f evidence

fo r

what r a i s e s sudden

pass ion when

0

t e s t i f i e s he i s sca red .

SD

NOV/DEC

1986

8
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29/70

Opinion on

S t a t e ' s

PDR:

Competency

~ y d a ~ B ~ O L Q

No.

4 0 4 - 8 4 -

Hearing

Upheld

Judge W

C.

Davis; Judge

Teague

concurs in

by Judge

Onion

jo ined

by

Judge

r e su l t ,

Concurr ing Opinion

McCormick,

Dissen t ing Opinion

by

Judge

CI

in ton November 19, 1986

SUFFICIENCY OF EVIDENCE WHAT IS THE CORRECT STANDARU FOR

REVIEW OF JURY FINDING AT

D'S

COMPETENCY HEARING? TCA

says

t h a t

s tandard o f p roof in

competency

hear ing

i s

t h a t

Incompetency must

be

proved by proponderance o f evidence. Because s tandard Imposed

i den t i ca l

where

0

seeks

to

avo id c r imina l

conv ic t ion

by

a s s e r t i n g

af f i rmat ive defense o f

insan i ty [P.C. Sec .

8 .0 1 ( a ) ]

s t anda rd o f

review

es tabl

ished in

~ n Gui lder ,

No.

899-84, del ivered

November

6 . 1985 should be used.

When

appel l a t e

cour t

reviews s u f f i c i en cy

o f evidence in competency

hear ing ,

i t may

only

ask whether the

evidence presen ted was l eg a l l y

s u f f i c i e n t

to suppor t ju ry

r lnd ing .

CA must look a t

a l l

evidence

on

competency in

I

igh t most

favorab le

to

ju ry f ind ing .

then

determine

i f

any

r a t i o n a l

t r i e r

Gf f ac t could

have

found

t h a t 0 f a i l e d

to

prove hi s

defense by

f a i n t

[ s i c ] has

a l s o observed

severa l

narco t ic

users

in

and out

o f

724

Del Mar,

s t ay ing fo r

b r i e f

per iods

of t ime .

Also

con ta ined

in a f f i d a v i t was s ta tement t h a t D was seen unlaw

fu l l y

possess ing

mari juana

and

coca ine

by

the

Informant with in

pas t 24 hours ,

and

t h a t Affiant had good

reason to

be l i eve t h a t

drug was now concealed by 0 a t 724 Del Mar St r e e t .

TCA

recognized t h a t search warran t

a f f i dav i t

must be read in

common sense and r e a l i s t i c manner. and

t ha t

any reasonab le

Inferences

could be drawn from f a c t s

and

ci rcumstances

con ta ined

wi th in

I t s four

corne rs .

However, t h i s a f f i dav i t

was not

s u f f i c i e n t fo r t he fo l lowing

reasons:

1. The only

informat ion

provided by t he conf iden t ia l

Informant

in a f f i d a v i t is t h a t

sometime

wi thin 24 hours o f t he morninq o

4-4-80 rwhen a f f i d a v i t

was

sworn to )

he

had seen marIjuana and

coca ine "' PE, ,=_en .L2:': in DIs possess ion a t

an undisc losed

loca t ion .

tlad case been

dec

i ded under Aqu 1a r t t1ere

wou

1 d have been a

Pl'ob 1

em with

t he

verae

ty p r o ~

i t

was

not as s e r t ed

t ha t

informant lacked any cr imina l record o r shown he

had

given

informat ion

in the pas t

t ha t

had proved accura te . Even i f t o t a l

t rus twor th iness were assumed

on

Informant ls

p a r t ,

h is

in fo rmat ion

a lone f a i l s to show contraband could

be Found a t

724 Del

Mar

S t re e t

n e i th e r

0

nor drugs

were

In

any

way

connected

witt ,

t h a t address .

NOTE: Asser t on t h a t prem I ses a re in t he p o s s e ~ 5 Ion

and under t he con t ro l o f 0 Is

not

a t t r i b u t e d to

informant . I t

i s pure ly conc lusory '3 ta tement; a source

1s not

q iven

fo r i t .

SO NOV/DEC

1986

9
http:///reader/full/PE,!,=_en!.L2http:///reader/full/PE,!,=_en!.L2


30/70

2.

Affiant s t a t e d he

checked

cr iminal h i s t o ry on two

people

involved and found

the

most recent a r r e s t a s Dec.

1979 .

for

possess ion

o f dangerous

drugs and

s to len drugs .

The

i de n t i t y

o f

the 2

people

involved is not d isc losed nor is what they a re

81legedly involved

In.

Neutral

reader

is not t o ld by what means

c r i mina I h I s to ry o f these peop I e was checl


31/70

Jackie

GOFF, No. 656-83 - -

Murder

Convic t ion

A ~ ~ l r m e d : Opinion

or.

A ~ . p e - i i a ~ t ' 5 PDR

- Per Curiam, Concurr ing

Opinion by

Judge Onion,

Dissen t ing Opinions by

Judges

CI in ton and Teague

November

19.

986

NOTE:

CA's

opinion repor t ed a t 681 S.W.2d 619

JURY INSTRUCTION

VOLUNTARY MANSLAUGHTER - -

FAILURE

TO PLACE

BURDEN

ON STATE OF NEGATING

SUDDEN

PASSION IN THE APPLICATION

PARAGRAPH APPLYING

LAW

OF MURDER TO FACTS WAS NOT FUNDAMENTAL

ERROR REFLECTING "EGREGIOUS HARM": Jury

charge

here

s u ~ ~ e r e d

from

same I n ~ rm i ty

as

d e ~ e c t I

ve charge

n ~ 5 : : l 9 a ~ r u 9 J

0 675 S.

W

2d

749 i t ~ a l l e d to

place

on Sta te t he burden o ~ negat ing sudden

pass ion

when charge

applying law o ~

murder

to t he ~ a c t s As a

r e s u l t

t h e r e

e x i s t s a

decided

I

ikel

ihood

t h e

j u ry

may

have

dispossed o f D's case without ever having to

cons ider t h e

sudden

pass ion issue which, r a i sed by the evidence, must be

r e ~ u t e d

by Sta te

beyond

reasonab le

doubt .

TeA ~ o u n d t .hat any n ~ u n d a m e n t a 1 " e r ro r

i n c a s e

was harm l e s s

because evidence

~ a i

led

to

support

t h e

charge

given

on

volunta ry

manslaughter .

D

sought PDR on

t heory t ha t

when

TeA

has ~ o u n d

a

fundamental d e ~ e c t in charge, no

de te rmina t ion

o ~ harm need

be

made

as

a

prerequ

is t e to reve rsa I . Then a I

on9 comes

b 1 - ~ n : ; I } ? ( 3 '

686

S.W.2d 157 t .ELQ: because no object . ion

to

charge

was made a t

t r i a l .

f a i l u r e

to

give Jury i n s t ruc t ion au thor iz ing conv ic t ion

for' murder I n

accordance

with

~ 9 9 ~ I ' r u b .

must

c rea te egreg i ous

harm

b e ~ o r e reversa l warranted.

TeA

r e v i ~ w e d

record and concluded t ha t ,

even assuming

i ssue

o f

sudden pass ion a r r i s i n g ~ r o m an adequate

cause was

r a i s e d

bv

evidence , volun tary manslaughter was an i nc iden ta l

t heory o ~

defense ,

so t ha t

t h e s u b t l e d e l e t io n

o ~ t.he

S t a t e ' s

tJUf'den o ~

p r o o ~

on

the

absence

o ~

sudden

pass ion

could

not

rea l

I s t i caJ

Iy

be const rued to

Inure

to

D's

egregious

harm.

D e ~ e n s i v e evidence

here

consist .ed

en t i r e l y o ~ D'S t es t imony .

Facts

show t h a t

both D and

deceased

had been

dr inking

heavi Iv

a l l

day.

They

i n i t i a l l y

encountered each

o ther

a t a

pool hal

I .

where deceased

was

bel

I

ige ren t .

Later t ha t

evening 0 went

to

pick up

roommate 's g i r l ~ r i e n d a t bar

were

she danced. Deceased

was

t he re ,

making

a

pes t o ~ h i m s e l ~

Deceased

made

s ta tement

ind ica t ing

he in tended

to k i l l D and

jabbed

D in r i b s

with

unspec i ed blun t obJec t . Deceased then suggest .ed t.hey 0 0 out-

s ide and f i gh t . 0 s t a t e d he

in tended

to h i t deceased

with

door

as

they

went

through

i t ,

but

b e ~ o r e

he

could

do

so,

deceased

stabbed him In the leg.

Once

o u t s id e deceased ~ o u g h t with

D

companion

and D s tabbed

him.

Deceased then

took

o ~ f running .

D's

bro the r jo ined

him

a t

the door

and

the

two o f

them fo l lowed

the

deceased

and

D's ~ r i e n d

out i n to a

~ i e J d

They

found

t he

f r i end kicking deceased,

w

1986 Nov Dec Docket Call

Documents

Transcript of 1986 Nov Dec Docket Call