Jt. - Voice for the Defense Online

JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

OFFlCERS President; Thomas Gilbert Shape, Jr. Btownsde President-Elect: Clifton L. Holmes Longview First Vice President: Louis Dugas, Jt. Orange Second Vice President: KnbxJones McAUen Semetaxy-Treasurer. CharlesD. Butts San Antonio Asst. Secre~ry-Treasurer: Edward A. Mdet t Houston

DIRECTORS

Richard Alan Anderson, Dallas Cecil W. Bain, San Antonio David R. Bires, Houston J.A. "Jim" Bobo, Odessa lohn C. Bosmn. Austin

G& W. cafd;& Tyier J.A. "Tony" Cades, Corpus Christi Allen Cazirr, San Antonio Joseph A. Connots In, McAUen Gene de Bullat, Jr., Fort Worth M.P. "Rtrsw" Duncan 111. Denton Bob ~ s t r a d i , Wichita Falls Tim E m , Fort Worth P.R. "3uck" Files, Jr., vier CaraLymClwx Garcia, Houston WehaelP. Cibson, Dallas Ger&H. Goldstein, SanAntonio Ronsld L. Goranson, Dalks GrantU, Hardemy, Sr., Houston Mercilee L. Hutnon, Wacs Richard E. Harrison. D d h Jan E. Hemphill, D& JamesH. Kreimeyer, Belton JackPaul Leon, San Antonio Arch C. McColl IIt,Dnllas John J.C. O'Shea, Lubbock C W . "Robin" Pearey, Ssn Marcw Jack J. RadtsFher, Houston Edumdo Roberto Rodriguez, B r o w d e Larry Sauer, Houston Gewge Sch-en, San Antonio David Spencer, Austin Richard Thornton, Galveston Fred L. Tinshy, Jr., Dallas Robert Gregory Turner, Houston

ASSOCIATE DIRECTORS Stan Brown, Abilene Buddy M. Dicken, Sherman Bill Habem, Riverside Jeremiah Handy, San Antonio Harry R. Heard, Longview Jeffrer Hinkley, Midland Prank Jackson, Dallas S y l h Ann Robertson, Houston Fred Roddguee, San Antonio Sheidon Weisfeld, Brownsville DainP. Whirnorth, Austin Bill Wischkaemper, Lnbbock

PAST PRESIDENTS

FmnkMaloney, AustiU 1971-1972

C. Anthony Friloux, Jr., Houston 1972-1973

Phil Burleson. Dallas 1973-1974

George E. Gilkerson, Lubbock 1974-1975

C. DavidEuans, San Antonio 1975-1976

Weldan Holcomb, Tyler 1976 1977

Emmett Colvin, Houston 1977-1978

George P. Luquetfe, Hoastrm 1978-1979

Vincent Waker P e r 4 Dallas 1979-1980

Robert D. Jones, Ausm 1980-1981

Charles M. McDonald. Waco 1981-1Y82

Clifford W. Brown, Lubbock 1983-1983

Editor: Stanley Weiubcrg

"Slgnifmnt Decis~ms Report" F&r' Kern P. FifzGernld

Dovid Botsford Gztherine C m ~ e B m e t Jutie Hedd Arch C McColl IU David W. Coodjr Jnmt Seymour Morrow

Membership Cowdinator Nance NeUe

Law Clerk Ron Conover

VOICE for the Defense OSSN 0364-2232) is published monthly by the Texas Criminal De- fense Lawyers Association, 314 West 11th Street, Suite 315, Austin, Texas 78701. Annual suhscnptmn rate for members of the association is $10, which is included in dues. Nonmember subscription-$20 per year. Secondclass postage naid at Austin. Texas. POSTMASTER: Send address changes to VOICE for the Defense, 314

,West 11th Street, Austhb Texas 78701.

All arttcles and other editorial contributions should be addressed to the editor, Stanlay Weinberg, 7509 InwoodRaad, Suite 300, Dallas, Texas 75209. Advertis& inquiries andcontrach send to Dick Dmmgaole, Artforms Agency, P.O. Box 4574, Austin, Texas 78765, (5121 451-3588,

0 1984 TEXAS LXIMINAL DEFENSE LAWYERS ASSOCIATION

APRIL 1984/VOLUME 13, NUMBER 10

REGULAR FEATURES Editor's Corner . . . . . . . . . . . . . . 3 President's Report . . . . . . . . . . . . 4 Significant Decisions Report . . . . . 9-28 Thoughts from Beh~nd the Walls . . . 34

VOICE Interview: Judge Sam Houston Clinton by Brian W e . . . . . . . . . . . . . 6

Voir Dire by Counsel in Federal Courts by John E. Ackeimm . . . . . . . . 3 1

Copper Mountain Spring Seminar . . 5 DWI Report-Blood Alcohol

Accuracy Questioned . . . . . . . . 30

STATE BOARD OF LEGAL SPECIALIZATION

Filing Period is Open

DEADLINE, MAY 14,1984 1

For applications contnct: John Roberts

P.O. Box 12487

8

VOICE, please send it also.

Editor's Corner

STANLEY WEliVBERG

There has been a lot of talk lately among lawyers, judges, legislators and liti- gants on better ways to seek justice in our legal system. One of the big problems being chewed over is the glut of cases on swollen rrourt dockets.

New ways to speed up justice are being tried. In Philadelphia, parties in the legal dispute can bypass the public court system and argue their claims hehimd closed doors in what is being touted as the country's first for-profit court. Organized last year, the for-profit court drawsupon ser-

'-, vices of retired judges from Philadelphia and surrounding areas. This legal venture is separate from the governmental court system and outside the public view.

The first case was heard by a former federal judge who awarded an undisclosed amount to a woman passenger injured in an auto accident. The retired judges wear black robes and are expected to base their decisions on both the law and findings of fact. Organizers now hope to have three refurbished courtrooms in a downtown office building ready soon to hear the sudden mounting caseload.

The system calls for binding, contrac- tual agreements as well as non-binding ones where both parties have the option of carrying the fight to court. Fees are based on three-hour sessions and are di- vided between the retired judges and the organization that developed the whole idea.

In California, parties to a civil dispute can use a retired "rent-a-judge" if they want to dispose of their problems quickly instead of waiting through the public courts.

Athome, the Texas legislature approved a bill to allow Harris County to become one of the first judicial areas to offer what is called a "multi-door" courthouse pro gram of experimental alternative ways to settle legal disputes.

That lawyers and judges talk a good game about seeking and speeding up justice was noted in the March, 1984, issue of TRDIL magazine, published by the American Tnal Lawyers Association, in a tongue-in-cheek proposal by Jeffrey L. Tolman of Poulsbo, Washington.

He noted that, in reality, however, our legal system is not justice-oriented. And, in his proposal, stated that ifjustice were really our goal, lawsuits would be handi- capped to equalize each side's resources. Our legal system must even up the sides, he argues, proceeding as if he were at home at the Mad Hatter's tea party in Throufh the Lookina Glass. - -

Lawyer Tolman suggests that cases must be handicappedto equalize resources on the civil side of the docket and give a judge the opportunity to decide eases as a judge should, based on who is the better lawyer!

His handicapping proposal covers such esoteric areas as firm size-down to the rule that when any firm opposes a "sole practitioner," the firm's janitor must give the oral argument with a mouth full of marbles from research done using only the 1977 and 1978 bar review books with assistance on trial tactics by the oldest living person listed on the firm's letterhead a$ being "of counsel." You begin to get the drift of this handicapper.

He covers rules for credibility, suggest- ing a formakzed sliding scale based on the distance of party's attorney's law office from the courthouse. Then, comes criminal law.

Criminal trials, he says, can be held quickly and smoothly for formalizing

what every defense attorney knows about criminal trials. Much l i e the game of poker, there is a definite heirarchy of proof. Some of the examples:

An mept prosecutor beats an average defendant and reasonable doubt.

A believable defendant, an average defense attorney, and reasonable doubt, beats an inept prosecutor.

A good prosecutor and a moderately believable police officer beat an average defendant, a good defense lawyer, and reasonable doubt.

A good defense lawyer, a believable defendant, reasonable doubt, and a corroborating witness, beat an average or believable police ofyier and a good prosecutor.

A believable police officer, a good prosecutor and either a corroborating witness or a believable victim beat a believable defendant, one corroborating witness, a good defense attorney, and reasonable doubt.

A good defense attorney, a believable defendant, one corroborating witness, one believable expert, and reasonable doubt, beat a good prosecutor, a believable police officer, and one corroborating witness.

Two believable police officers beat everything except a perfect defendant, 72 corroborating witnesses, and (-)-you fa in the attorney.

These simple rules will help justice pre- vail quickly and smoothIy, according to our modest proposer. The legal system will survive. Clients won't know the dif- ference. Judges would not be tainted by up-to-date research and well-thought-out arguments.

Ah, well, shut up and deal.

April 1984/VOICEfor fhe Defense 3

President's Report

Copper Mountain Spring Seminar

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

TCDLA went to the mountains of Expert Opinion Testimony: Unreliability Colorado for a 3-day seminar on February of Eyewitness Testimony; Judge Richard 12 through 16. The speakers and topics Mays, The Judge's View of TBC's and were: Eyewitness Testimony.

Ronald L. Goranson, Motions for Most of the group stayed a t Copper New Trial and Extraneous Offenses; Mountain and some even skiied on part of Thomas G. Sharpe, Jr., Hypnotically the run used for the National Champion-

': Enhanced Testimony: A Preview; Judge ships. The lectures were excellent and Chuck Miller, A View from the Top: One everybody returned with bodies intact Year Later; Bob Hinton, Trial Prepara- and ready to face the rest of the winter. , tion: Presentmg the Defense; Kate Kelly Other participants that attended were: Miller, Sufficiency of Evidence: The Ap- John P. and Carolyn Knouse, Claudia pellate Standard; Steve Sumner, Examin- Hinton, Sharon de Bullet, Steve and Penny ing the Medical Examiner; Dale Jones, Chapman, Renie McClellan, Sandra Bock- Eye WitnessMemory; Gene de Bullet, Voir elman, Tammy Brown, Nancy Sumner, Dire and Trial Preparation: The Eyewit- Jack and Patty Robbins, Randy and Regina ness Case; Stan Brown, Admissibility of Martin. and Lilla Jones.

"JUST YESTERDAY"

prepared by V E R W G. SOLOMON

a prauhmg csnnded crlminal lawyer

slnce 1975

4 yeam criminal dfsvlct annney Haviaon County

April 1984/VOICE for the Defense 5

VOICE INTERVIEW : JUDGE SAM HOUSTON CLINTON A candid conversation about Texas Monthly, fundamental error, and Jack Ruby, with the most complex personality on the Court o f Criminal Appeals.

Since his election to the Texas Court to Washington as an aid to Congressman reports: o f Criminal A ~ ~ e a l s in 1978. Judre Sam W.R. T o b " Poape. He thereafter took up . . , - Houston Clinton has emerged as an influ- ential member of the State's highest court for criminal matters. Clinton gave up a successful law practice in Austin to take on incumbent Jim Vollers, a long-time State Prosecuting Attorney, in the Denzo- cratic Primary. When the ballots had been tallied, Clinton had unseated Vollers, the first time an incumbenthad been defeated since Presiding Judge John Onion suc- ceeded W. T McDonald in 1966.

Criticized by some as having won the election largely on the strength of his name, Clinton quickly proved his judicial capabilities. A prolific scholar, Clinton has authored over 1,000 opinions during his first term including over 200 in 1983, more than any other judge wrote that year. Yet he still made time to serve on numerous programs for the continuing legal education of both lawyers and judges, as well as research and write several law re-

, view articles. Interrupting his undergraduate work at

Baylor University, Clinton worked as a fingerprint examiner for the Federal Bu- reau of Investigation before serving his country in World War 11 as a naval avia- tor. Returning to Baylor, Clinton finished law school, passed the bar and went back

- solo practice in Waco, his hometown, and later served as a field attorney for the National Labor Relations Board. Then after 13 years of private law practice in Austin, Clinton formed a partnership with a v i d R. Richards in 1969. During the succeeding years he served as General Counsel to both the Texas AFL-CIO and the Texas Civil Liberties Union.

Plainly a man of substance, Clinton is known neither for his wardrobe nor other matters of 'izppearance;" he was aptly de- scribed in an article otherwise critical of the Court published in 1982 by Texas Monthly, as "by far the most complex personality on the court-brilliant, e b quent, eccentric, possessed with an intense sense of justice. . . "

SMU law professor and author of the ubiquitous Texas Law of Evidence, Roy R. Ray, has recently opined that Clinton has "brought distinction and integrity to the Court. [His] opinions demonstrate a devotion to scholarly research and lucid expression which is unmatched by any other member o f the Court."

VOlCE for the Defense asked Brian Wice, a criminal defense attorney in Houston and contributor to the VOICE, to go to Austin to talk with Clinton, He

Judge Clinton 5 office says a lot about the man who wears the robe. Beh~nd his desk is a picture of the I920 Court of Mminal Appeals and, as I know, Clinton loves to talk about his predecessors, their personalities and predilections. Next to his word processor is an ancient manual typewriter which he still uses to crank out the first drafts o f his opin- i o n ~ Scattered around the office are awards and certificates which he has never managed to frame or hang. In fact, the only certificate he has framed and hung on his office wall is his judicial commission. On one side of his officeisapodium where Clinton stands to do some of his work, a move to relieve occasional symptoms of slight vertebral nerve impingement

As we sat down for this interview, I noticed Judge Clinton had shaved off his beard and trimmed his srdeburns, perhaps with an eye toward the upcoming primary and general elections. Clutchingun ever- present cigar, Clinton spoke easily about a number of topics, including the Texas Monthly article, which seemed a good place to start.

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

6 VOICE for the Defense/April 1984

VOICE: What was your own reaction to the Texas Monthly article in light of the way the Court was treated? CLINTON: My reaction to the article overall was that he picked and chose some opiruuns that do not necessar~ly reflect the viewpoint of the Court, and some of them, as 1 pointed out in response had already been modified before he wrote the article. VOICE: Why did you feel compelled to write a response in Trig1 Lawyers Forum, the only member of the Court that opted to do so? CLINTON: I was requested to do so by the editor of the Trial Lu~awyers F o m , that being the publication of the Texas Trial Lawyer's Association. And that editor was himselfincensed by the article and thought that some response should be made. He asked me if I would do it and I said I would. VOICE: Do you think that the Court would sit still for beine interviewed bv

him that I was familiar with the way those things go in both the examining trial and the trial. VOICE: Do you think that it should be a prerequlmte for an appellate judge to have some experience as a trial judge? Do you think not having been a trial judge affects your performance as an appellate judge? CLINTON: No. VOICE: Why is that? CLINTON: It's kind of a negative thing, the practitioner is more or less held r e sponsible for blowing the whistle on a tnal judge when he's made, or thought to have made, mistakes and also to object to things that prosecutors do when the defense attorney thinks they're his mistakes. In essence really, the defense attof- ney has got to know more about everybody else's business than just each of those players, than what their own particular roles are. Let me say, trial judges, both in the records I've seen, but more particu-

right word or use the magic phraseology in objecting? CLINTON: Burka himself alluded to that in one short paragraph, I think, of his article. I suppose the Court is following the trend that it may think some segments of the public expect. And that ismaking the defense counsel toe the line as well, and have him do his part in it with competence and ability. VOICE: While we're on the competence question, the Chief Justice of the Supreme Court of the United States is fond of saying that 50% or 60% or 75% of practicing trial lawyers in this country are in- competent. What are your feeIings on attorney competence based upon the records you see come before you? CLINTON: There's a coincidence, I happen to have the Chief Justice's speech right here before me, although I've not read it all that carefully. I don't think that anyone can make an educated estimate as to the level of comoetence of ~ractition-

Tews Monthly again in iight of how thei ers. There is a ge'at deal tha; younger happened to he treated? lawyers can improve upon-very often C ~ ~ N T O N : I think it depends on the re- they will lose their ground of error be- action of the individual judge. I would BY andlarge, Ithink oralargument cause they did not make proper record not object to being interviewed by Burka is helpful. I'm one of the judges in the Trialcourt. I wouldhope thatmany or anybody else at Texas Monthly or any that encourages o d argument of these continuing legal education pro- other publication $0 10% as they don't and also one of the judges that grams that one agency or another, the bar, get into areas that an individual judge k,,,yers know arks a good deal of the crimmal defense lawyer's project, the should not talk about. prosecutors, all the rest of them are hnld- VOICE: Do you still think that the pub- questions at oral argument. ing regularly, would provide not only the lic's perception of you, at least in terms materials at the seminars and institutions

1. . of what Burka has said. is Sam Houston to educate the practitioners but also pro- Clinton, the liberal, Sam Houston Clinton, the great dissenter. Do yon feel that perception is fair? Do you consider yourself a liberal? CLINTON: Not when it comes to fmdmg the law, and following it, no. And in fact, that, I believe, is what his reference is to tunnel vision. He says I was inflicted with an occasional tunnel vision, and I think what he has reference to is that I do try to find and follow the law although the result may not be what Burka thought it should be. VOICE: Burka also quotes you or some one as saying that you were admitted to looking at drug cases with a jaundiced eye, I quote, "I know the territory." Why don't you explain that. CLINTON: I don't know that I ever said I looked at it with jaundiced eyes but I did tell him that I knew the territory in a sense that I had for a good many years practiced criminal defense law and many of the cases, many of the clients that I represented were involved in controlled substances cases. And I tried to convey to

larly in dealing with them informally, are just super sensitive about an indication that they made a mistake. As a practitioner I didn't come to Court with that kind of defensive attitude. VOICE: Do you think this Court is some times too lenient on trial judges who com- mit error thinking that if the case is reversed they'll let this Court catch the heat? CLINTON: No, I do not t h i i t h e Court's too lenient. Ordinarily when the record clearly shows that a trial judge or the prosecutor has really made amistake and the defense counsel has properly objected to it, the Court is quick to fmd that that was errpr. Now the next step is whether it's reversible error, and that as far as I'm concerned doesn't really implicate the trial judge or the prosecutor at all, that implicates the whole case. VOICE: What of the flip side of the reversal technicality syndrome Burka spoke of; do you think this Court is sometimes too quick to affirm cases on technicalities because a defense attorney did not say the

vide them with-the sort of built-in aiann that when he's confronted with some of the situations that are heing talked about in seminars it'll ring a bell and he'll know that he's on uncertain ground and try to figure out how to correct his position. The young practitioners ought to go down there and watch the other lawyers, who know their business, try cases. VOICE: What about the quality of oral argument that you've seen in the time you've been on the bench? CLINTON: By andlarge, I think it's helpful. I'm one of the judges that encourages oral argument and also one of the judges that practitioners know asks a good deal of questions. VOICE: What about the quality of the arguments? CLINTON: I consider i t to be high. I put aside those who come here two or three years after their briefs have been fded. That's one of the most unfortunate situations we're all in, two or three years after the briefs have been filed and the law has either changed or developed to the point

April 1984lVOICE for the Defense 7

-- - -

where the merit to their claim n no longer vdlid VOICE: Do you think th'ls Court should go to a ey$tem employed by the Federal Appellate Courts where oral argument would not be had as a matter or right but only in those cases where it would be helpful? CLINTON: No. A lot of thia business of practicing criminal law is a matter of experience, and I wouldn't want to deprive practitioners who need it of coming here and havmg the experience to argue orally. VOICE: What was it l i e being a house- hold word in the National Enquirer a couule of vears ago when the Woodwd

in a sense of an intentional k~lling and volunta~y manslaughter where there's evidence of sudden passion arising from an adequate cause, VC1CE: What about fundamental error? CLINTON: Fundanlental error has been with us always, demonstrated m half-a- dozen opinions. It's always been a problem in this jurisprudence because the Court takes the position that the legislature, apparently not happy with it, enacts legislation and the Court has to respond ro that andit just goes in cycles. VOICE: You've seen a considerable

partisan election is going to remedy that at all because you still have to do all OF those things if you're going to try tu get votes in the non-partisan election. VOICE: How do you repond to people who hwe said that your electionin 1978 was primarily due to your name recognh tinn?

CLINTON: I hope that my tenure here has demonstrated the qualifications and the ability that could have been predicted by 25 years of experience of successful practice in law including crimmal law and doing a great deal of appellate work. To the firet part of it though, who knows about anyone's name, what part i t plays. VOICE: You've seen a number of incum- -

casecame iown? The isme which I believe har bents unseated. How do you respond to CLINT0N:It was the fitst time it ever the fact that you seem to have started i t happerred to me. The article made it creafed the most diffimz@ for the dl by challenging the incumbent back in appear as if the opinion that they criti- court Js fhe trial court's need to 1978 because prior to that only one in- cized was my own and only mine and not charge on lesser-idilderJ-offenses. cumbent had been unseated in the pre- the shared thinking of eight other mem- ~~~~h~ rough issue we>e b d to ceeding 25 years? bers of the Court. But beyond that, it in- & the interplw CLINTON: One reason for that is that spired a death threat from somebody c& the incumbent judge that 1 ran against ine himself a member of the death souad murder and manslaughter whenr had not been incumbent but a little over o k e United States and Canada andLwas here's evsence of sudden Uririv davs when he had to file to run; he quite specific about what might happen pusdon mSing from to me and MI. Woodward if we did not an adeqrrate cause, shape up our act. It was serious enough for me t o ask the FBI to oome over and take a look at it. VOICE: It is the perception of a lot of amount of turnover in the six years that criminal defense attorneys that this Court, you've been on the Court in terms of your

1, in cases of some magnitude, can't take brethren. Do you fed that there is abet- the heat. Does this Court have aproblem ter way to do things than to popularly with big cases where the facts themselves elect, on a partisan basis, trial and appeli- are not easy to work With? ate judges but patticularly appellate Court CLINTON: That's a hard question. The judges? Court is made up of nine individuals, I CLINTON: I'll be honest with you, I can't speak for any of the others. I like to have not seen any proposal that st&= think that I don't react to what you call me as a better way of doing it. the heat. I got more of it than anybody VOICE: What about the right of appoint- in that case. I've got a petition in my ment with the ability of the voters to re- file that's about an inch and a half thick call a sitting judge? that must contain no teIlmg how many CLINTON: You immediately start out thousands of signatures, along with indi- with a political operation when the ap- vidual lettats and jointly signed letters pointment is in the hands of the governor. and a great deal of heat. The governor is strictly a political animal VOICE: In the six years that you've been and I'm sure that politics would be one on the Court, what issue or issues do you consideration in making the appointment. fee1 has created the most difficulty for The main criticism of those who want the Court? +some other method and those that advo- CLINT0N:What immediately comes to cate a non-partisan election is that it's mind is the Trial Court's charge on lesser demeaning to a judge, or a candidate for included offenses. The Court has judges judioial office, to go wound campaigning. come and go and the Court as fat as I can It's embarrassing for him to ask other tell doe8 not have a tme majority view on people, mainly practitioners, for money; that but does oontinue to followRoyster. to have to be interviewed by editorial That's one of the toughest questions. boards or newspapers, to appear on radio There's another one that is a real problem and TV and have press conferences. But i, and that is the interplay betweenmurder for the He of me, don't see how a non.

hadjust been appointed as of January 1, 1978. His sphere of activity was limited to one side of the ddocet, so that his knowledge, his familiarity with people, including even practitioners at law, or for that matter other judges across this State, was very slender because of his Own limited field of experience and soope of en- deavor. I venture to say that if he rm aQjlin, he'd do greatly better since he's been, like I have, though not quite as long yet, out there on the hustings. VOICE: What is your most memorable decision since you've been on the Court? CLINTON: I guess that wouldbeKirowl@s v. ScofieM. T h y got in a hassle up in Denton County about where the Court- house ought to be. Whether the new building was at the seat of Denton County. And to resolve that problem, I did research like I've nevm done before and found it interesting because it was historical. As you know, I have a great interest in that and was able, through tracing the history of Denton County, and dl the t h i i that happened to it, the moving of the Court- house several times, the burning of the Courthouse, all of that, was able to come to the conclusion that the petitioner was not entitled to relief be~ause he had not &arly shown that the Courthouse was outside the county seat. VOICE: What do you think about fhe prospect of televised executions? Are you

(contiRud M pnge 291

SIGNIFICANT DECISIONS REPORT

EDITDR'S NCYI'E: Gerald Goldstein was recently (and successfully) involved i n a search question in U n i t e d States v. Gant, Cause No. H-83-151, wherein United States d i s t r i c t judge C a r l D. Bue found that there was not probable cause to justify the issuance of a search warrant for the defendant's h e : and further tha t the "good faith" exception should not be applicable. In U n i t e d States v. Williams, 622 F.2d 830 (5th C i r . 1980) the wurt stated the rule as: Evidence is not to be suppressed under the Exclusionary Rule where it is discwered by officers in the oourse of actions tha t are taken in good fa i th and in the reasonable tl-mugh mistaken belief that they are authorized. The court distinguished W i l l i a m s by aqhasizing that the Williams court enphasized tha t nothing said in Williams applied to factual situations where a warrant had been obtained. Then came United States v. Mahoney, 712 F.2d 956 (5th C i r . 1983), wherein the court held that the Exclusionary Rule was inapplicable pwrsuant to the "god fa i th exception" since the actions by the law e n f o r c m t agents were taken i n a reasonable and good f a i t h belief that they were legal. In Mahoney the ar res t warrant was found t o be invalid on the ground that it did not identify the defendant with sufficient particularity. HOW- eyer, in Mahoney, unlike in the Gant case, there was an unchallenged finding of probable cause. Like W i l l i a m s , the Mahoney court limited the use of the good fa i th exception, saying that "We leave for later the question of whether a good fa i th proviso to the Exclusionam Rule ouuht ever to tolerate an arres t o r seizure without probable cause ~ ~

2 2--- - ~

measured objectively." See also United States v. Parker, No. 533-4425: s l i p opinion a t 1550, 1554, Note 2 (5th C i r . 12/27/83).

The d i s t r i c t court in Gant was faced w i t h a search warrant lacking in probable cause and no widence to "me"it of its infirmity. The court then wrote:

"In the suppression hearing held i n t h i s case, there were no facts presented which could bolster o r cure the inadequate warrant and affidavit. The officers rnerely elaborated upon their 'good fa i th reliance' upon a warrant which they did not wen read. Such subjective goad f a i t h has been patently condenmed a s a rationale for applying the good f a i t h exception to the Exclusionary me. . . . Tkis court, obedient to the m d a t e s of the Fifth C i r c u i t and the Supreme Court, cannot now apply the good f a i t h exception to a situation in which there was no probable cause to search the residence of the defendant, where the precedent is w e l l set t led that a nexus mst exist between the evidence desired and the place t o be searched, where the Fourth Amendment on its face condms the search of a residence where no probable cause exists, and

April 1984/VOICEfor the Defense SD-9

where the officers' actions were taken w i t h only subjective god faith."

As the efforts of our membership result in significant legal holdings, 1 will be mre than happy to broadcast the results as I believe that they will be very beneficial to all of us.

STEPHEN DAVIS, No. 253-83, Opinion on State's PDR, 5th C/A Rev'd & Remanded, Judge %xu Davis, 4/4/84. Aggravated FQkkzy, 70 TDC.

m ' S TO REHW3ILImTICN, NOT CXlTIXITIOW--NOT ClXMENT ON D'S FAILLE3 10 TESTm: During the punishnent hearing the prosecutor argued:

"You know, youmy find it hard to believe that by 8:17 you can be as mean, as vicious, as self-centered and as totally devoid of feelings for other human beings lives as he is. You think he can be rehabilitated? Look at that witness stand. Was there one shred of evidence before you to tell you he's going to change, he can he changed, he wants to be changed, he will change?"

D's objection to the remrk as a m t on the D's failure to testify was sustained and the jury was instructed to disregard but the Wtion For Mistrial was denied. The C/A interpreted the prosecutor's argcrment as one calling for contrition on the D's part, reasoning that since only the D could offer evidence of contrition, the prosecutor's reference to the D's failure to put on such evidence was necessarily a m t on the D's failure to testify-relying u p ThaMs, 638 S.W.2d 481. I n Thams, the 0.3 defined contrition as:

"A state of mind-and a highly personal one at that. Indicia of contriteness is necessarily generated after an offense by the one who was sorrowful for what he has done. %at one is contrite h u t itmst be carmrolnicated in order for others to know."

The court in Thamas held that testimony of third persons that an accused has expressed contrition is not legally admissible evidence in mitigation when offered by an accused.

The court, hawever, in Davis held that the prosecutor spoke instead of rehabilitation rather than contrition. The desire, potential, and ability of a person to rehabilitate himself can be objectively assessed and testimony on this subject does not have to cane from the D alone. Iogan, 455 S.W.2d 267. Following this line of reasoning, the prosecutor in this casad have just as easily been discussing the failure of the accused to call any witnesses to testify regarding rehabilitation. A prosecutor may cament on the failure of an accused to present any witnesses in his behalf. McKenzie, 617 S.W.2d 211.

Judge Teague found the last sentence of the argument improper but "fortunately for the state, the improper one sentence does not stand alone. There is mre in this cause that justified the ar-t, in particular, what appellant's trial counsel had earlier argued to the jury". Judge mgue thus cautions prosecutors "to treat gingerly what this court has stated in this mjority opinion". Frankly, I am at a loss as to why Judge Teague bathered to write a concurring opinion.

Judge Clinton, joined by Judge Odm basically stated:

"The prosecutor did not couch her rhetorical questions in terms of a general failure of the defense ta bring forth testimony of appellant's potential for rehabilitation. Rather, the questions were couched solely in terms of his personal desire and

SD-I 0 VOICE for the Defense/April 1984

capacity to be rehabilitated. From the jury's standpoint, this was not a general remark as to absence of wid- but a pointed reference t o the accused's fa i lure to testify. Annis v. State, 578 S.W.2d 406 (Tex. App. 1979); B i r d v. State, 527 S.W.2d 891 (Tex. Cr. App. 1975). Such a camnent offends both the s ta te and federal constitutions. ~ i c k G V. State, 604 S.W.2d 101 (Tex. Cr. App. 1980); Pollard v. State, 552 S.W.2d 475 (Tex. Cr. App. 1977).

CHAF3ES STEVENS, No. 67,582, Burglary of Building, 20 TDC, Judge Onion, En Bane, 4/4/84.

S P M : ~ P L E A ~ B A R O F P I ~ D ~ I ~ B A S E D U P O N S I ~ I T E ' S F ~ ~ ~ L ~ ~ ~ BURGLARY CASES PROPERLY m: The D argued that he was convicted of a burglary

of a building case in a prior trial i n the same district court and that the instant case arose out of the same criminal episode a s the other offense, Eoth occurring i n the same county on o r akout the same date and tha t the cases were not consolidated for t r i a l . Since this burglary could have been alleged i n the sam indictment together with the previous burglary D was entitled to have his special plea in bar of prosecution sustained for fa i lure to consolidate for trial under A r t . 27.05 C.C.P. and Sec. 3.02 P.C. Cour t found no error.

Art. 27.05 C.C.P. provides that a defendant's only special plea is that he has already been prosecutor for the sane or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial and tha t was or should have been consolidated into one t r i a l and that the former prosecution resulted i n conviction. Sec. 3.02 provides that a defendant m y be prosecuted i n a single criminal action for all offenses arising out of the criminal episode. The o u r t found no error i n overruling D ' s special plea i n bar of prosecution.

A R T 42.08 C.C.P. PERMlTPING CTJMLLWION OF SENPENCES DOES NOT CONSTITUTE CRUEL AND UNUSU& PUNIS-: The 20 year sentence i n tkis case was cmdated with the sentence i n a prior burglary conviction and anether sentence f m another county. The D objected that the "stacking" was in violation of the Eighth Amndment t o the U.S. Const. and A r t . I, Sec. 13 of the Texas Const. (cruel and unusudl p u n i s h t ) . Fi rs t , the court found the objection t o be too general and, second, held that the m l a t i o n of sentences does not constitute cruel and unusual punishmmt and that the statute was notuncon- stitutional. Baird v. Stake, 455 S.W.2d 259; Boerngen v. United States, 326 F.2d 326 (5th C i r . 1964) .

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

I

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

Sec. Ila provides i n part tha t any p r s o n accused of a felony less than capital i n this state who has been theretofore twice convicted of a felony, af ter a hearing and upon evidence substantially showing the gui l t of the accused of the offense may be denied ba i l pending trial by a d i s t r i c t judge i f said order denying bail pending t r i a l is

April 1984/VOICE for the Defense SD-1 1

issued within seven calendar days subsequent to the time of incarceration of the accused.

In this case the state failed to prove the D had been charged w i t h burglary of a building i n this cause and just discord as alleged i n the mt ion and that it had k e n Seven days or less since his incarceration. Thus, the order denying bail was se t aside.

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

PROSEXSITOR'S ARGUMENT W oUTSIDE THE R F I C O R D - - ~ ~ ERROR: Evidence shcrwed D was anployed by the Dallas Housing Authority a t the t i m e of this burglary of a habitation. Circumstant ia l evidence and an eye witness slmwed that D and another were around the house that was burglarized and shortzly a f te r the burglary were apprehended w i t h stolen track tapes, watches, and other items. Defense evidence s h a d that on the D ' s days off he worked for kis father hauling bricks. On the date in question the evidence shows3 that D had a t 6 a.m. gone off to buy some cigarettes and three hours later was arrested in this case. The DA argued:

"This is what he does for a living, ladies and gentlemen. This is his job. H e ' s getting up and going t o mrk, alright, a f t e r you do."

The court held that the prosecutor was improperly calling upon the jury t o speculate as to other act iv i t ies of the accused, not shown by the evidence nor inferable from the evidence, and to cmnsider than i n reaching a decision. This i s impermissible. Jordan, 646 S.W.2d 946: Turrentine, 536 S.W.2d 219; Wiley, 531S.W.2d 628.

The CCA rejected the C/A reasoning tha t since "Appellant was with intent t o cclmnit theft. the umsecutor could reasonablv

indicted . . . infer a ~ r o f i t -

thus, supporting the stat&t '1: is his job"'.

MDE ORTEGA, No. 821-82, Opinion on D ' s Motion For Rehearing on PDR, C r e d i t Card Abuse, Rev'd/Acq~&ttal entered, Judge Campbell, Fn Banc, 3/14/84.

EVIDENCE INSUFFI- TO PRLXlE DEFENaANT INLDDED TO E ' R X J D ~ Y OEX'AIN PROPE?TY AND - SERVICES: The D presented a credit card t o a Sears clerk in exchange for selected i t e m s of clothing. The salesperson f i l l e d out the required credit forms, accept& the prof- fered card and u l t h t e l y extended him credit. The indictment alleged in part that the D:

"Intentionally and knowingly with intent to fraudulently obtain property - and services frcm X, did use and present a credi t card, a Sears Rc&mck & Cclmpany card, No. 57, etc. w i t h knowledge, etc. "

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

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

SD-12 VOICE for the DefenselApril 1984

under Sec. 31.01(7). Here, i f the D had purchased the clothing in question and had ordered tayloring alterations, with the resultant charges being made to the victim's account, the D wadd have obtained both property and services a s contemplated by the Penal Code Section. However, the court held that extension of credit i n and of i t se l f without further proof did not constitute a service under Sec. 31.01(7).

Further, it was proper for the state to charge the D by alleging conjunctively that he intended t o fraudulently obtain property and services, and proof of either would have been sufficient t o convict and it was proper for the court to charge the jury that a finding of either wuld be sufficient to convict. Because the court's instructions t o the jury were that it must find b t h property and services before returning a guilty verdict, it was necessary that there be sufficient proof of both means alleged. Because the evidence is insufficient to support a finding of intent to fraudulently obtain both property and services, the case is reversed and a judgment of acquittal is ordered. Burks v. United States, 437 U.S. 1, 57 L.Ed.2d 15, 98 S.Ct. 2151 (1979).

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

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

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

ERROR TO m S E I N m I O N ON MANSLAU-. State's witnesses tes t i f ied that i n the early mrning hours of the offense D shot and killed his wife of ten years during a violent argument a t their hone. The victim's teenage daughters stated tha t the couple had been out earlier i n the evening and had coins haw arguing; tha t D had t r ied t o choke the decedent acd that the decedent was throwing him out of the house. D began to pack his bags and while the decedent was still in the bedroam the g i r l s heard a noise l ike a gun being cocked and then D walked into the bedroom carrying the victim's rifle. The decedent grabbed the r i f l e , t r i ed to pull it frm D, and when begged by one of the g i r l s not to shoot their mther, D responded that she didn't love him a n p r e and that he was being run out of the house. When D ' s wife stopped pulling on the gun and released it, she was imediately shot i n the abfi~men. A s she f e l l to

April 1984/VOIC6j%r the Lbfense SD-13

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

The court held that the jury could have reasonably concluded, amng other things, that D ' s action in p in t ing a loaded r i f l e a t his wife in an attempt to persuade her to relinquish the keys to her car constituted a conscious disregasd of a substantial and unjustifiable r isk and thus the l a w of involuntary manslaughter should have been sub- m i t t e d to the jury.

The court stated the rule to be as enunciated i n Moore, - 574 S.W.2d 122:

"The credibility of evidence and whether it is controverted or conflicts w i t h &her evidence in the case m y not be considered in determining whether a defensive charge or an instruction on a lesser included offense should be given. When evidence frm any source raises a defensive issue or raises an issue that a lesser included offense may have been d t t d . . . the issue must be dmitted to the jury. It is then the jury's duty under the proper instructions to detenoine whether the evidence is credible and e r t s the defense on the lesser ineluded offense".

The court rejected the state's argument that a defendant's testiimny can "negate" the intent necessary to require a charge on the lesser included offense or that t k court

. w i l l consider only the testimony of a defendant in reaching the proper determination. '

The court emphasized that it wrruld continue to consider - al l the evidence presented a t trial i n order to determine whether an instruction on the lesser included offense should be given.

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

SlNKX JUSTEIED UNDER PJAIN VIEW DCllPRINE AND DCI:TRINE OF lNEVIE%%E DISCOVERY: Office on routine patrol in high crime rate area turned squad car into an alley and almost ran over the D who was emerging f r m the alley. The officer j m p d out a d asked i f the D was alright. A s the D stood, he appeared to be intoxicated and his speech was slurred, etc. When asked what he was doing in the alley, D answered he was keeping a low profile. The officer determined he was going to arrest D for public intoxication. After telling D of his impending arrest, the officer observed a bulge in D ' s l e f t shirt pocket which was big enough to be a small derringer. The officer shined his flashlight on the area and saw that D had a package of cigarettes in his pocket. Sticking up £ran the cigarette package was a little triangular shaped clear plastic baggie containing a white powdery substanck which the officer suspected was a narcotic. D was placed under arrest for p s e s s i o n of a controlled substance.

I SD-14 VOICE for the Defense/April1984

The court fourid that the officer possessed probable cause im believe that the plastic baggie in Appellant's pocket contained an illicit substance.

"af course, it muld have hen better if the prosecutor codd have impired ahout (the officer's) participation in previous narcotic arrests, his discussions with fellow officers &mt narcotics and how they are carried, or inquired more specifically about narcotic courses the officer m y have taken. But this lack of inquiry by itself 'considering the record before us, does not call for a different result. we &odd not take leave of cxmmn knowledge and ccnnmn sense.***

Having probable cause to believe the baggie in mlant's pocket by light of the officer's flashlight was illicit substance, the seizure here was authorized. Texas Y. Brown, - U.S. , 103 S.Ct. 1535, 75 L.Ed.2d 502 (4/19/83) ." ?I% court tmphasized that in view of Texas v. Ecown, it is not now required that it be imoediately apparent to the officer that the substance is contraband, but that the officer have probable cause for the seizure, that is probable cause to associate the property with criminal activity.

Finally, if the officer had not seen the baggie in the light of his flashlight, he a d have been entitled under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to pat down and frisk the D given the circumstances of this case. Camnwealth of Pennsylvania v. Mimns, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2.d 331 (1977). The baggie and the cigarette package would have been inevitably discdvered.

"Further, there being probable cause to arrest for public intoxication and the officer having determined to mke that arrest (though not verbalizing the same) m l d have had the right after arrest to search Appellant's person incident to that arrest, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (19731, and the cigarette package and baggie muld have been inevitably dimered if it had not been seen in plain view. While not dencaninating our rationale, the doctrine of inevitable discovery, Vanderbiltv. State, 629 S.W.2d 709,722,723 (Tex. Cr. App. 19811, we have used the same rationale in various context before. See Santiago v. State, 444 S.W.2d 758 (Tex. Cr. App. 1969); Johnson v. State, 496 S.W.2d 72 (Tex. Cr. App. 1973); Wyatt v. State, 566 S.W.2d 597, 601 (Tex. Cr. App. 1978): Mdkhon v. State, 582 ~ . ~ . 2 d m 789 (Tex. Cr. App. 1978) ." The dissenting opinion by Judge CLinton, joined by Teague and Miller takes issue with whether the state met its burden of eliciting facts to show the officer acted on probable cause and emphasized that the state merely show& the officer believe the substance was contrakatd but the officer did not articulate a basis of probable cause to believe it. While a dissent on this basis m y be well taken, how do the dissenting judges get around the doctrine of inevitable discovery other than by ignoring it?

TONY ROC)F, No. 497-83, Opinion on D's PDR, Conv. Aff'd, Judge Tom Davis, En Banc, 3/14/84. 4

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

April 1984lVOICE for the Defense SD.15

mmT m, m. 658-83, DVE, m ' d , 5udge Campbell, En m c , 3/14/84. 11 EVIDENCE FAVS M SHCW SUFFICTENT NOTICE WS GIVEN TO DEFENWWC AS m TERM OF PROBATION: D was placed on probation for mand was required to attend the Houston Reqional Council I On Alcoholism &&.l released by the court. &obation was later revoked for7his failure to a t W the council as required. The evidence &owed that D received a copy of the amsled terms of probation requirk kim to attend the Houston Regional Bmil On Alcciholisn and that he urderstocd he was to attend and that he failed to attend. The issue presented is whether the D was afforded due process as guaranteed by the 14th AnvWz. to the U.S. Const. Harris, 608 S.W.2d 229; Cotton, 472 S.W.2d 526; C a q k l 1 , 420 S.W.2d 715. The evidence in the probation revocation hearing w a s devoid of any notice as to when, i f ever, the D was to attend the council on alcoholiso. The D nwer atterded the council, not Iznawing when to go, where to go, or whom to see. !Cb make matters worse, it became clear during themtion to revoke hearing that the probation officer cared little about whether the D attended the council. The officer's only interest occurred when the D was arrested for another offense some six months later. The court then stated its general rules applicable to reviews of probation ~wocation orders:

"AppeLlate review of an order revoking probation is limited t o abuse of the trial court's discretion. Caddell v. State, 605 S.W.2d 275 (Tex. Cr. Pgp , 1980). In determjning questions regarding sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence. Anderson v. State, 621 S.W.2d 805 (Tex. Cr. App. 1981). When the state has failed to meet its burden of proof, the trial judge abuses his discretion i n issuing an order to revoke p r o b a a . Walkovak v. State, 576 S.W.2d 643 (Tex. Cr. App. 1979).

~~ EX)LTDWf, No. 67,979, Probation Rev~cation-3 TDC, Aff 'd No. 67,980, Agg. mhbery--20 !TIE, Rev'd

1. Judge McCormick, En Banc, 3/7/84.

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

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

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

SD-16 VOICE fox the DefenselApril 1984

probation was a part of the court records i n the case and thus the trial judge could take judicial notice of the instrument, regardless of whether the judge w a s a visi t ing judge or not.

"The theory of judicial &ice is that 'where a fact is ell known by a l l reasonably intelliqent people in the camunity o r its existence is so easilv determinable - - with cer&nty f r & ~ sources considered reliable, it would not be good sense to require fo& pr& ' " . Because the tern of probationary conditions viere easily verifiable, the court found that the visi t ing trial judge correctly took judicial notice of than.

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

EVIDEKCd INSUE'FICIESPII TO SHOW aONSI'RU(;TIVE ~~ OF HEROh7 W E R W . 4476-15, SEC. 1.02(8): The follcgrling evidence was presented at t r i a l and sumnarized by the C/A and appears t o be undisputed:

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

The record shows the Appellant having been acquainted w i t h Chisn a p p b t e l y tsm weeks, inquired what the pair wanted, and Chim sirrrply responded 'four'. The Appdlant thereupon absented herself, joined Come outside and engaged him i n brief conversation, w i t h i n s ight but outside hearing of Chisn. The Appellant re-entered the house and r e d her seat. Then, Chim noticed Cosme walk by the side of the house.

In short order Cosne entered the house, approached Chisn and asked either 'how m y do you want' o r 'what do you want. ' Chim repeated h i s request for 'four', and Cosne, having in h i s hand precisely four party bdlloons, t ied a t the apening, placed them in Chim's hand i n exchange for Chim's tender to him of $120. (These balloons given t o Qlim contained heroin). Chim and the informant then departed, rendmusing w i t h other law enforcement officers w b had been conducting surveillance of the residence. Qlim noted that he had, on prior occasions, seen the Appellant a t the residence. Officer Robinson, assigned by the Luhbxk Police De rmx~t to a YE2 Task Force, tes t i f ied that on the date i n question he was on surveillance of the residence from a vantage pint approximately tsm blocks distance. Robinson further stated that Come walked t o the p i n t where he had been standing to a park behind the house, approached the sofa, bent wer and did samething. Cosme then proceeded inside the r e s i d e e . "

The D was not charged with k i n g a party to the actual transfer of the heroin which took place when Come delivered it t o Chim. See Sec. 7.01 and 7.02 P.C. The indictment alleged that the D "constructively" transferred the narcotics t o Chisin. Tkis evidence f a i l s t o show the D had direct or indirect control of the contraband prior to its delivery and does not show the contraband was delivered by Cosme a t the instance or direction of the D. A t n v s t , the evidence shows the D merely relayed Chism's offer t o buy to her husband Cosne. Cosne neqotiated b t h the quantity and the price before

April 1984/VOICE for the Defense SD-17

mkiq the delivery. The D made no response when Chisn offered t o buy "four". The fact that the D might have understood what he meant by his cryptic offer is no proof that the contxaband was under her direct or indirect control prior to its delivery by Cosm to Chi=. Further, the D ' s act i n merely relaying an offer f r a buyer to seller is not sufficient to prove that the seller acted a t the instance o r direction of the D. There is no proof that the D had any control wer Cosne's actions.

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

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

CH)RICK PANNEGL, No. 61,527, Opinion on D' s m i o n For F%?hearing, a d y e MKormick, En Banc, 2/29/84.

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

I. Such ethical violations are to be dealt- by msans of the administrative mchanisns sp3ciaUy established for dealing w i t h such unethical conduct.

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

"The test for deciding the sufficiency of an indictment in the face of a mtion

I to quash for insufficient notice is to e d n e the indictment frcm the perspective of the accused. Dnman v. State, 560 S.W.2d 744 (Tex. Cr. Fgp. 1977) . . .

To require evidence reflected i n a statanent of facts to establish insufficient notice is to ignore the r e q u i r m t that notice must appear on the face of the indict-

I mnt. Mamination of the indictment, not the evidence, is the ultimate test."

UlIS GOODMAN, No. 68,804, and KATHRYN SPIEEL, No. 68,805, Promotion of Obscenity, Rev'd/Ac&ttal entered, Judge Clinton, En Banc, 2/29/84.

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

In Goodman's case she tes t i f ied she was a "manager" but her duties on the night i n question consisted solely of selling t ickets and concessions. Not k n d n g what a mnager's duties are, the court declined to leap t o the conclusion tha t she had anytkins to do w i t h the exkibition of the film and there is absolutely no evidence to this effect.

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

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

VY DEFECrm COUIIT'S CHARGE ON V m M A N m f E T E R : Indictment alleged rmrder under Sec. 19.02 (a) (2) ("intends to cause serious bodily injury and con'units an ac t clearly dangerous to hman l i f e that causes the death of an individual"). In this case the court autbr ized a conviction for voluntary manslaugW on the Wry charged

* in the indictment (i-e., 19.02(a) (2) ) but also authorized a convictim on a Wry not alleged i n the indictment (Sec. 19.02 (a) (1) ) (i.e., intentionally or knowingly causes the death of an individual) .

"If we look a t Paragraph 5 alone, applying the l aw to the facts, it is clear that such c h q e would authorize conviction on less than a l l the necessary elements of the offense (Sec. 19.04 coupled w i t h Sec. 19.02 (a) (2) ) . The fa i lure t o include an essential e l m t of the offense in the charge applying the l aw to the facts is fundamental error. Cconbie v. State, 578 S.W.2d 732; Rst, - 567 S.W.2d 515; Messenger, 638 S.W.2d 883."

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

April 19841VOICE for the Defense SD19

The Court: Denied."

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

The court held that the prosecutor's c m t was d f e s t l y improper, harmful, and prejudicial, thus constituting reversible error. Thcatrpson v. State, 480 S.W.2d 624 (Tex. Cr. App. 1972).

IX)NAU) EVEWES, No. 62,076, W ' d , Judge Tcm Davis, Panel opinion, 2/8/84.

PROSECUTOR'S SIDE BAR FEWUK PA5 REVERSIBLE D was convicted of operating a rotor vehicle belonging to X withcut her effective consent. The D contended that he was recruited by the police and one of their informants t o help make a case against one Y. According to the Dl the police gave him the car in question, which had been confiscated i n a drug raid, to use while he was making the case on Y. The D denied knowing the car was stolen. In contention $1, the D ccmplained of a comnent directed a t defense counsel by the prosecutor. D ' s attorney was cross examini~lg an investigator w i t h the Dallas Police Depar.tment who participarted i n the D ' s arrest when the following occurred:

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

A. I don't have any idea haw long he stayed there M o r e he was transferred to the county.

Q. Is it not a fact officer that the Dallas Police kept him up i n the j a i l for some 15 days?

A. I don't know.

Q. --Before they delivered him to the Dallas County Sheriff, w b then put him in Parkland Hosp i t a l for treatment to recover £ran the beatings that you gave him?

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

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

Defense counsel: Yaur Honor, a t this the we muld make a motion for mistrial based upon the cormnent of the prosecutor that I was in bad faith as usual, that is a derogatory cament and it is striking a t the deEendantover counsel's shoulder and We object to it and wuld ask for a mistrial.

CLINT HOWARD, No, 05-82-01219-CR ( D a l l a s ) , Aggravated Robbery Convict ion Affirmed, Judge Rowe, Pane l Opinion, 1/24/84

PLEA OF GUILTY BEFORE MAGISTRATE: Fac t s : D and S t a t e e n t e r p l e a ba rga in agreement, Mag i s t r a t e p re s ided ove r t h o s e proceedings involv ing waiver of ind ic tment , s t i p u l a t i o n of evidence, waiver of j u r y , admonishment as t o punishment, and accepatance of D ' s j u d i c i a l confess ion i n t o evidence. A t D ' s r e q u e s t , a l l f u r t h e r proceedings were p re s ided over p e r s o n a l l y by d i s t r i c t judge. During t h o s e proceedings D aga in acknowledged h i s g u i l t and confirmed t h e waiver of h i s l e g a l r i g h t s ; TC t h e n sentenced D . CA r e j e c t e d argument t h a t because p l e a agreement l e f t open t h e ques t ion of punishment a f u l l t r i a l on t h e merits was r equ i r ed and m a g i s t r a t e lacked a u t h o r i t y under A r t . 1918c B46 R .C .S . A . , ho ld ing t h a t because D ' s g u i l t was not i n d i s p u t e , t h e on ly i s sue r e q u i r i n g j u d i c i a l de te rmina t ion was t h e a p p r o p r i a t e sen tence .

GARVIN RICHARDSON, No. 6-83-019-CR (Texarkana) , Engaging i n Organized Criminal A c t i v i t y Convict ion Reversed, Judge Corne l iu s , 1 /24 /84

INCULPATORY STATEMENTS MADE DURING PLEA NEGOTIATIONS INADMISSIBLE AT LATER TRIAL: Fac ts : The abor ted p l e a ba rga in was nego t i a t ed i n D A ' s o f f i c e ; p r e s e n t w e r e D . A . , s p e c i a l p r o s e c u t o r , o t h e r law enforcement o f f i c e r s ; D and h i s a t t o r n e y . D w a s f u l l y warned of h i s r i g h t s . I n o r d e r t o induce D t o p lead g u i l t y and t e s t i f y t o t h e c r i m i n a l a c t i v i t y he was promised: 5 year recommended sen tence , t r u s t y s t a t u s immediately upon beginning imprisonment, s e l e c t i o n of p r i s o n u n i t of D ' s cho ice , and t h a t law enforcement o f f i c e r s would u s e t h e i r i n f l u e n c e t o g e t D pa ro l ed as soon a s p o s s i b l e . I n course of n e g o t i a t i o n s D made s e v e r a l s t a t emen t s damaging t o h i s defense which were in t roduced , over o b j e c t i o n , a t h i s subsequent t r i a l . Held: A r t . 26.13, C.C.P., p rov ides t h a t when a p l e a ba rga in is r e j e c t e d by TC, n e i t h e r p l e a nor any s ta tement made by D a t t h e h e a r i n g may be used aga ins t D i n subsequent proceeding. Logica l ex t ens ion o f t h i s r u l e b a r s i n t r o d u c t i o n o f i n c u l p a t o r y s t a t emen t s made d u r i n g p l e a ba rga in n e g o t i a t i o n s ,

STONEY WHITTINGTON, No. 12-81-0148-CR ( T y l e r ) , De l ive ry of Cont ro l led

t Substance Convict ion Affirmed, Judge Co l l ey , 1 /19 /84

TC's FAILURE TO GIVE TRIAL SETTING PREFERENCE TO "JAIL CASES" I S NOT REVERSIBLE ERROR: D r a i s e d speedy t r i a l i s s u e , a l l e g i n g t h a t because he was conf ined i n j a i l from August 13 , 1980, u n t i l December 1 2 , 1980 [ t r i a l was conducted August 13 , 19811, he should have been given p re fe rence f o r t r i a l s e t t i n g e a r l i e r t h a n o t h e r pending c a s e s under A r t . 32A.01 C.C.P. CA he ld p r o v i s i o n s of A r t , 328.01 are advisory and f a i l u r e of TC t o comply Q not r e v e r s i b l e e r r o r .

THOMAS PATES, No, 12-83-0132-CR ( T y l e r ) , Revocation of Appeal Bond Upheld, Judge Co l l ey , 1 /19/84

D SUBJECT TO SUBSEQUENT REVOCATION OF PROBATION PENDING APPEAL FROM PRIOR REVOCATION ORDER: F a c t s : D r ece ived proba t ion fo l lowing two

April 1984/VOICEfur the Defense So-21

g u i l t y p l e a s t o a t tempted c a p i t a l murder. Fol lowing r evoca t ion D gave n o t i c e of appea l and pos ted appeal bond, During pendency of appeal D was a r r e s t e d on s u s u i c i o n of DWI: D ' s m o b a t i o n w a s revoked a second t ime , TC revoked bbnd on appea l . from f i x s t r evoca t ion o r d e r s and denied D a bond on appeal from second r evoca t ion o r d e r s . - Held: When appeal is t aken from o r d e r revoking p roba t ion , p roba t iona ry pe r iod con t inues t o run unabated; pending de te rmina t ion o f appea l D is st i l l s u b j e c t t o cond i t i ons of p roba t ion , Neces sa r i l y , then, D is a l s o s u b j e c t t o subsequent p roba t ion revoca t ion pending appea l from p r i o r o r d e r of r evoca t ion .

SYLVESTER FIUGBES, No. 13-83-240-CR (Corpus C h r i s t i ) , Aggravated Robbery Convict ion Affirmed, Judge Nye, Pane l Opinion, 1 /26/84

OBJECTION D I D NOT PRESERVE ISSUE OF EXTRANEOUS OFFENSE I N PEN PACKET: A t punishment D o b j e c t e d t o pen packe t : "2 pages of t h e [packe t ] t h a t a r e e n t i t l e d Order Revoking P roba t ion and Sentence f o r t h e reason t h a t t h a t is not admiss ib le i n t h i s s t a g e o f t h e t r i a l under t h e l a w s of t h e S t a t e o f Texas and is not p r o p e r l y a p a r t o f t h i s [ e x h i b i t ] . " CA he ld o b j e c t i o n i n s u f f i c i e n t because f a i l e d t o s p e c i f i c a l l y po in t ou t p a r t i c u l a r p a r t o f e x h i b i t t h a t was inadmis s ib l e and packet w a s mostly admiss ib le .

THOMAS YATES, No, 12-82-006-CR (Waco) , Revocation of P roba t ion Affirmed, Judge Co l l ey , 1 /19 /84

NO RIGHT TO COUNSEL FOR PRE-INDICTMENT BREATHALYZER: Facts : 2 p roba t ion o f f i c e r s planned a home v i s i t w i t h D . Upon a r r i v i n g t h e y saw him d r i v i n g a pickup and fol lowed. When D stopped a t a store t h e p roba t ion o f f i c e r s approached and formed t h e op in ion he w a s i n t o x i c a t e d . DPS o f f i c e r w a s c a l l e d and took custody of D, t a k i n g him t o s h e r i f f ' s o f f i c e . When D was o f f e r e d b r e a t h test , he s t a t e d he wanted t o t a l k t o a t t o r n e y and was allowed t o make a phone c a l l . When a t t o r n e y had not a r r i v e d a f t e r 25 minutes , D was aga in o f f e r e d b r e a t h tes t . Testimony c o n f l i c t e d a s t o D ' s consen t , w i t h o f f i c e r s ay ing D consented a f t e r be ing t o l d he could r e f u s e and D s ay ing o f f i c e r t o l d him he would be charged w i t h DWI anyway and had no th ing t o l o s e . A s machine w a s p r i n t i n g r e s u l t s ( 0 , 1 4 % ) , a t t o r n e y a r r i v e d . m: No s ta te o r f e d e r a l c o n s t i t u t i o n a l r i g h t t o advice of counse l be fo re D could b e r e q u i r e d t o dec ide whether t o submit t o test because is i n v e s t i g a t o r y s t a g e of proceedings .

OSCAR LOPEZ, No. 13-83-287-CR (Corpus C h r i s t i ) , Aggravated Robbery Convict ion Affirmed, Judge Nye, Panel Opinion, 1 /19 /84

, ELICITING EXTRANEOUS OFFENSE CURED BY INSTRUCTION: DA asked i n v e s t i g a t i n g o f f i c e r , " . , . d i d you r ecove r any o t h e r evidence?" O f f i c e r r e p l i e d , "The o t h e r evidence t h a t I recovered was some a l l e g e d hero in ." CA he ld i n s t r u c t i o n t o d i s r e g a r d cured e r r o r i n e l i c i t i n g because no o t h e r evidence of s i m i l a r n a t u r e was admi t ted , no f u r t h e r mention was made of d i scovery of hero in a t t r i a l and ju ry was aware t h a t s e a r c h took p l a c e i n co-D's r e s i d e n c e .

SD-22 VOICE for the DefenselApril 1984

SAMMY TERRELL, No. 13-83-290-CR (Corpus C h r i s t i ) , Possess ion of Marijuana Convict ion Affirmed, Judge Nye, Pane l Opinion, 1/19784

NO ERROR I N COMMENT ON SILENCE DURING YOIR DIRE: CA found no r e v e r s i b l e e r r o r i n D A ' s v o i r d i r e : "We must prove our case beyond a reasonable doubt. The burden of proof never s h i f t s t o t h e Defendant, The Defendant does n o t have t o prove h i s innocence, and w e cannot, as reasonable , fair-minded j u r o r s , r e q u i r e a defendant t o prove h i s innocence. Many t imes a good defense counse l w i l l a s k a j u ry p a n e l , a f t e r you have heard t h e S t a t e ' s t es t imony and seen a l l t h e s e e x h i b i t s t h a t t h e y s a y t h e y are going t o b r i n g i n , wouldn ' t you want t h e D t o t e s t i f y ? W e l l , i n t h e back of o u r minds, y e s , w e probably would l i k e f o r t h e D t o t e s t i f y , bu t t h e Court t e l l s you you cannot hold t h e D ' s f a i l u r e t o t e s t i f y a g a i n s t him.. ." WALTER LYONS, No, 01-81-0578-CR (Hou. I s t ) , Aggravated Kidnapping

Convict i on Affirmed , Judge Cohen , Panel Opinion, 2 /2 /84

HEARSAY EVIDENCE INADMISSIBLE AS BOLSTERING: F a c t s : Complainant t e s t i f i e d she had never met D b e f o r e he a t t a c k e d h e r i n shopping c e n t e r park ing l o t and kidnapped h e r , t h r e a t e n i n g t o k i l l h e r i f she d i d not coopera te w i th h i s s exua l demands. D t e s t i f i e d he met complainant 6 weeks b e f o r e t h e a l l e g e d kidnapping i n c i d e n t and t h a t a l though they were both marr ied t h e y had s e v e r a l d a t e s . On B i l l o f Except ions ( t o S t a t e ' s Motion i n Limine) D ' s co-worker t e s t i f i e d t h a t du r ing t h e 6 weeks p r i o r t o t h e i n c i d e n t D t o l d him d a i l y about meet ing a woman w i t h t h e same f i r s t name a s Complainant and t h a t t h e y had gone t o each o t h e r ' s home and t o c l u b s t o g e t h e r , T h i s tes t imony matched D ' s account o f h i s r e l a t i o n s h i p w i t h Complainant p r i o r t o t h e i n c i d e n t . TC s u s t a i n e d S t a t e ' s o b j e c t i o n s of hearsay and b o l s t e r i n g and r e f u s e d t o admit tes t imony b e f o r e ju ry . On appea l D argued s t a t emen t s no t hearsay because o f f e r e d t o show d a t e s t a t emen t s made and not t o prove f a c t s s t a t e d t h e r e i n , Held: S ta tements p rope r ly excluded. D d i d not l i m i t o f f e r of co-worker's tes t imony; it was o f f e r e d f o r a l l purposes. Excluded tes t imony d i d not f i t any except ion t o g e n e r a l r u l e a g a i n s t b o l s t e r i n g .

FREDDIE RICHARDSON, No. 01-82-0500-CR (Hou. l s t ) , Aggravated Rape of Ch i ld Convict ion Affirmed, Judge Duggan, Pane l Opinion, 2 / 2 / 8 4

LOST STATEMENT OF FACTS FROM MISTRIAL WILL NOT AFFORD APPELLATE RELIEF: Fac t s : D ' s first t r i a l ended i n m i s t r i a l a f t e r 1 4 hours of ju ry d e l i b e r a t i o n over 3-day p e r i o d . At torney was pe rmi t t ed t o withdraw and new counsel w a s appointed. 2nd t r i a l took p l a c e 32 days a f t e r m i s t r i a l , w i t h ju ry r e t u r n i n g g u i l t y v e r d i c t i n 1 0 minutes , Between 1st and 2nd t r i a l , D ' s a t t o r n e y d i d no t r eques t cou r t r e p o r t e r t o p repa re s ta tement o f f a c t s of m i s t r i a l f o r u s e a t r e t r i a l . New a t t o r n e y appointed on appeal . Both D and S t a t e o b j e c t e d t o l a c k of s ta tement of facts from m i s t r i a l i n a p p e l l a t e r eco rd (D had des igna ted it f o r i n c l u s i o n ) . Hearing was he ld and it was e s t a b l i s h e d t h a t n e i t h e r cou r t

April 1984/VOICEfor the Defense SD-23

- repor te r could account f o r missing notes from 1ati;er par t of 1st t r i a l , D argued t h a t f a i l u r e t o provide indigent D with t r a n s c r i p t of m i s t r i a l made it impossible f o r him t o chal lenge suff ic iency of evidence at m i s t r i a l a s double jeopardy bar . m: Rule t h a t indigent D e n t i t l e d t o t r a n s c r i p t of m i s t r i a l f o r use a t subsequent t r i a l w i l l not be extended t o e n t i t l e D t o m i s t r i a l t r a n s c r i p t f o r use on appeal of conviction following r e t r i a l , Here D d id not request t r a n s c r i p t f o r use before r e t r i a l . CA a l so found D w a s not e n t i t l e d t o make double jeopardy challenge because mistrial was granted on D ' s motion, and t h a t t r i a l counsel 's f a i l u r e t o request t r a n s c r i p t from 1st t r i a l pending r e t r i a l was not b a s i s f o r holding h i s a ss i s t ance i ne f f ec t i ve ,

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

NO RELIEF G I V E N TO D WHO RELIES FOR TRIAL TACTICS ON STATUTE I N EFFECT AT TIME WHICH IS LATER SUBSTANTIALLY MODIFIED BY CASELAW: D ' s convict io was o r i g i n a l l y reversed f o r no outcry under A r t , 38.07 C.C.P., but was remanded ib. l i g h t of Hernandez, 651 S.W.2d 746 (TCA 83). Complainant was s o l e t r i a l witness. There was no dross-examination of complainant a t t r i a l , and D presented no evidence. D argued on appeal t h a t he was denied f a i r and impar t ia l t r i a l because i n planning h i s t r i a l t a c t i c s , he r e l i e d on A r t , 38.07 and e lec ted no t t o cross-examine complainant s o a s not t o permit even an opportunity f o r t h e r e t o be evidence of outcry o r corroborat ion -- bel ieving t h a t her uncorroborated testimony would be i n su f f i c i en t t o support convict ion, D argued t h a t a s consequence, he chose t o forego presentment of testimony t h a t might have l ed t o h i s a c q u i t t a l o r reduct ion of sentence i f convicted. s: Although D chose h i s t r i a l t a c t i c s r e ly ing on s t a t u t o r y law a t time, and could not have an t i c ipa ted t h a t TCA would f i n d an exception t o t h e s t a t u t e , nothing i n t r i a l caused D t o rece ive l e s s than f a i r and impar t i a l t r ia l ; D not precluded i n any way from c a l l i n g any witnesses he des i red and no evidence wa8 introduced which was p r e j u d i c i a l t o him, absent objec t ion , I

GAYLE COOPER, No. 2-83-048-CR (Fort Worth), Assault Conviction Affirmed, Judge Jordan, Panel Opinion, 2/8/84

SPEEDY TRIAL WAIVER UNDER ORIGINAL INFORMATION APPLIED WHEN SECOND INFORMATION FILED TO CHARGE SAME OFFENSE WITH GREATER SPECIFICITY.

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

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

SD-24 VOICE for fheDefense/April 1984

L

EX PARTE R . R . MARTINEZ-VELASCO, NO. 01-83-00608 EX PARTE HENRY MULDRAGON, No. 01-83-00611 (Hou. k t ) , P r e t r i a l bond

r educ t ions , Bonds reduced, P e r C u r i a m , 2 /9 /84

BONDS REDUCED ON DELIVERY OF COCAINE, BUT STILL HIGH BECAUSE OF NATURE OF OFFENSE: TC s e t bonds at $2 m i l l i o n on each D and reduced t o $750,000 and $500,000 fo l lowing h e a r i n g . On appeal CA f u r t h e r reduced t o $375,000 and $250,000 r e s p e c t i v e l y . C i t i n g evidence a t hear ings t h a t D s , r e s i d e n t s of U.S. b u t s t i l l c i t i z e n s of Columbia, had family and b u s i n e s s t i e s here, t h a t o f f e n s e s involved no v io l ence , weapons, t h r e a t s o r a t tempted escape , However, CA considered n a t u r e of o f f ense : d e l i v e r y of Pena l ty Group I c o n t r o l l e d sbbs t ance , punishable by l i f e ; amount involved w a s worth $2 t o $ 3 m i l l i o n ; t h a t " i l l e g a l manufacture, t r a n s p o r t a t i o n and s a l e of l a r g e q u a n t i t i e s of contraband drugs u s u a l l y r e q u i r e m u l t i p l e t r a n s a c t i o n s of a t r a n s i t o r y nature.. . p a r t i c i p a n t s must be h igh ly mobi le . . , l a r g e amounts of cash r e q u i r e d t o e f f e c t such t r a n s a c t i o n s u s u a l l y s u g g e s t s involvement of monied backers who may cons ide r t h e c o s t s of b a i l bonds merely as a normal b u s i n e s s expense. Therefore . . . a much h ighe r bond may b e r e q u i r e d t o a s s u r e t h e presence of t h e defendant at t r i a l . "

THOMAS LLOYD GREEN, No. B14-83-128-CR (Hou, 1 4 t h ) , Escape Convict ion Affirmed, Judge P r e s s l e r , Pane l Opinion, 2 /9 /84

WILL DEFENSE ATTORNEY BEING PUT TO TRIAL ON DAY OF APPOINTMENT CAUSE REVERSAL? Not n e c e s s a r i l y s o . -- F a c t s : Order appo in t ing X as counsel was da ted December 1 7 , 1982, t h e day of t r i a l . Docket shee t e n t r y f o r December 7 t h s t a t e s : " D ' s a t t o r n e y unable t o a t t e n d , re-set f o r Thursday Dec. 9, 1982." Docket e n t r y f o r December 9 t h r e f l e c t s : "D appeared i n custody -- w l counse l X . . ." CA he ld t h a t S t a t e had c l e a r l y s u s t a i n e d burden i n e s t a b l i s h i n g requi rements of A r t . 26.04(b) C.C.P.; D had counse l on 1217, X was des igna t ed by name a s counse l who appeared w i t h D on 1219; no r e c o r d of s u b s t i t u t i o n of counsel between December 7 t h and 9 t h .

FLOYD METERS, No. 13-83-292-CR (Corpus C h r i s t i ) , Possess ion of Methamphetamine Convict ion Reversed, Judge Gonzalez, Pane l Opinion, 1 /31 /84

INSUFFICIENT EVIDENCE TO SHOW POSSESSION AS PARTY OR ACTING ALONE; D LINKED TO APARTMENT ONLY: Fac t s : P o l i c e ob ta ined s e a r c h warrant f o r apartment where D was l i v i n g . During execut ion D and X were ordered ou t of bed and taken t o l i v i n g room where s e a r c h warrant and r i g h t s were r ead t o them, Contraband w a s found i n k i t c h e n on r e f r i g e r a t o r , on t a b l e , and on a i r c o n d i t i o n e r , Evidence unc l ea r whether i t was i n p l a i n w i e w , X t e s t i f i e d drugs were h e r s ; she pleaded g u i l t y t o o f f e n s e and r ece ived 5 y e a r s . S t a t e r e l i e d on theo ry of p a r t i e s , u rg ing t h a t because D provided X w i t h food, lodging , and a "base of opera t ion" t h a t he d i r e c t l y a ided and encouraged h e r possess ion of methamphetamine. CA r e j e c t e d p a r t i e s t heo ry . CA a l s o h e l d i n s u f f i c i e n t evidence t o show D ' s independent possess ion because S t a t e m l y l i n k e d D t o apartment and no t t o d rugs .

April 1984/VQICE for the &%ma SD-25

I

B B m TROHODSA, No, 04-81-00391-CR ( S m Antonio ) , Arson Convict ion Reversed, Judge Cantu, Panel Opinion, 2J15184

"INVESTIGATORY ARREST" IS STILL AN ARREST, AND MUST BE SUPPORTED I BY PROBAEtLE CAUSE. STATE ERRONBOOSLY ASSOYW NOT ARRESTED BECAUSE ~ ~

VOLUNTARILY ACCOMPANIED" OFFICERS. NO ATTENUATION OF TAINTED ARREST, SO CONFESSION INADMISSIBLE: CA noted record was s i l e n t a s t o procure- ment of a r r e s t warrant o r exis tence of probable cause t o a r r e s t D f o r arson. S t a t e d id not assert e i the r , t ak ing pos i t i on D vo lun ta r i ly accompanied po l ice and was not "arrested" u n t i l a f t e r he gave voluntary confession 1% hours l a t e r . CA s a i d testimony showed no more than "f lagrant arrest of suspect known t o frequent ba r s a t a p a r t i c u l a r i n t e r ~ e c t i o n . ~ ~ Whether accused under a r r e s t is t o be determined from suff ic iency of f a c t s t o c r ea t e reasonable impression i n D ' s mind he is under a r r e s t . Of f i ce r s r e s t r a ined D on corner , searchGd, put i n p a t r o l ca r and read Miranda Warnings, S t a t e d id not meet burden of showing consent t o accompany vo lun ta r i ly , Like Taylor v. Alabama, 102 S.Ct, 2664 (1982), t h e f a c t t h a t later confession s a t i s f i e d 5 th Amend- ment requirements d id not remove i l l e g a l i t y of i n i t i a l a r r e s t made without probable cause. Off icer s a i d D was not t o l d he was f r e e t o leavo, but was not handcuffed; s a i d D would probably have been res t ra ined i f had t r i e d t o leave. CA r e j e c t e d a s i n su f f i c i en t t h e S t a t e ' s argument D was not t o l d he w a s free t o leave , and was not t o l d was under arrest. On causat ion f ac to r , CA held t i m e f a c to r of 18 hours d idn ' t a t tenuate t a i n t . (Of f ice r s took D t o a burglary scene during t h i s t ime.) In ter rogat ion was continuous. Miranda warnings safeguard 5th Amendment r i g h t s but don' t t e l l D of h i s r i g h t t o be f r e e of i l l e g a l custody,

mNNETH LEE CHENNAmT, No. 05-82-00974-CR (Dal las) , S o l i c i t a t i o n of cwit a1 murder conviction affirmed , Judge shumpert , Panel opinion, 2/13/84

TAPE RECORDINGS OF SOLICITATION WERE EXBIBITS RATHER THAN TESTIMONY, SO AVAILABLE TO JURY DURING DELIBERATIONS: D on appeal claimed TC v io la ted A r t . 36.28, C.C.P., which provides t h a t only under c e r t a i n circumstances may jury have testimony provided during de l ibe ra t ioas . CA he ld t h a t t apes of D 1 s conversations w e r e exh ib i t s and ava i l ab le t o jury during de l ibe ra t ions merely upon t h e i r request . A r t . 36.25, C.C.P.

RENUNCIATION DEFENSE -- EVIDENCE MUST SHOW CHANGE OF HEART OR REPENTANCE BEFORE RENUNCIATION VOLUNTARY WITHIN TERMS OF STATUTE: Prosecutor argued only i f jury found D c a l l e d off h i t because of change of hear t and no longer wanted v ic t im dead could they acquit him under TC's renunciation charge. I f he c a l l e d it o f f f o r "any other reason under t he sun," then jury was t o f i nd D gu i l t y , he argued. D argued on appeal t h a t only t h e two ~ p e c i f i e d circumstances i n s t a t u t e would destroy renwzciation'defense, s o t h a t jury coqld not r e j e c t defense f o r "any reason under t h e sun" except change of hear t . CA disagreed: "Repentance or a change of hear t is required before a reununciation is voluntary . , , t he r e was no way f o r t h e l e g i s l a t u r e t o th ink of every poss ib le way f o r renunciat ion to be non-voluntary and.. . it was merely l i s t i n g some p o s s i b i l i t i e s " (e ,g , D c a l l i n g off crime because feared detec t ion o r wanted t o postpone).. So, prosecutor ' s

SD-26 VOICEfor the &fense/April1984

argument OK, and no t misstatement of l a w .

LUCILLE PETERS, No. 05-82-01188-CR ( D a l l a s ) , Murder Convict ion Affirmed, Judge S p a r l i n g , Pane l Opinion, 2/14/84

J U R Y CHARGE ON MURDER NOT REQUIRED TO NEGATE CULPABLE MENTAL STATES OF LESSER INCLUDED OFFENSES: CA h e l d p r i n c i p l e of Cobarrubio, No, 63,801 (TCA 1112183) (no t y e t r e p o r t e d ) ( r e h e a r i n g gran ted) not a p p l i c a b l e here . Charge i n Cobarrubio was d e f e c t i v e because i n a p p l i c a t i o n paragraph d i d noT p l a c e burden of d i sp rov ing "sudden pass ion" on S t a t e , s o j u r y might conv ic t D of murder wi thout f i n d i n g absence of sudden pas s ion , and would not proceed t o charge on lesser o f f e n s e of vo lun ta ry manslaughter . When r a i s e d , t h e absence o f sudden pass ion becomes an "implied element" of murder and must b e i n murder paragraph, D h e r e claimed same p r i n c i p l e a p p l i e d t o h e r lesser o f f e n s e s of i nvo lun ta ry manslaughter and c r i m i n a l l y neg l igen t homicide, so t h a t murder paragraph should have p l a c e d burden on S t a t e t o nega te r e c k l e s s n e s s and c r i m i n a l negl igence. CA he ld t h o s e mental s t a t e s a r e i n no way impl ied e lements of murder and no burden on S t a t e t o nega te e x i s t e n c e t o convic t f o r murder, s o no danger o f conv ic t ing D u n f a i r l y of h ighe r o f f e n s e a s i n Cobarrubio.

JEFFRY FOGLE, No. 05-82-01352-CR ( D a l l a s ) , MRP Reversed, Judge Stephens , Pane l Opinion, 2110184

TC IMPROPERLY DELEGATED TO PROBATION DEPARTMENT THE DUTY TO DECLARE SPECIFIC TYPE OF COMMUNITY SERVICE REQUIRED: A r t . 42.13, C.C.P., p l a c e s on TC t h e du ty t o d e c l a r e c o n d i t i o n s of p roba t ion , and h e r e TC improperly de lega ted t o p roba t ion department when, i n DWI convic- t i o n , he condi t ioned proba t ion on D ' s "working f a i t h f u l l y a t a community s e r v i c e t a s k f o r 90 hours a s d i r e c t e d by t h e Proba t ion Department." I n dictum, CA he ld TC does have s t a t u t o r y a u t h o r i t y t o r e q u i r e community s e r v i c e , n o t c o n t r o l l e d by A r t . 42.13, Sec. 3B, which says TC may r e q u i r e D who is g iven d e f e r r e d a d j u d i c a t i o n and has reques ted community s e r v i c e t o perform such s e r v i c e . I n s t e a d u s e s more gene ra l a u t h o r i t y of Sec t ion 3 and S e c t i o n 6 , which a l low imposi t ion of any c o n d i t i o n s t h a t "are reasonable and have a reasonable r e l a t i o n s h i p t o t h e t r ea tmen t of t h e accused and p r o t e c t i o n o f p u b l i c , " Also i n dictum CA agreed t h e above cond i t i on w a s so vague a s t o b e unreviewable under t h e reasonableness s t anda rd .

EX PARTE JESSIE MALDONADO, No. 07-83-0278-CR (Amaril lo) , Burglary Con- v i c t i o n Affirmed, Judge Count iss , Pane l Opinion, 2 /14/84

INABILITY TO PROVE BURGLABY TO REVOJCE PROBATION WAS NOT JEOPARDY BAR TO SUBSEQUENT PROSECUTION FOR BURGLARY: D moved t o d i smiss pending f e lony indic tment on jeopardy grounds because S t a t e w a s "unable t o prove" same bu rg l a ry i n proceeding t o revoke h i s p roba t ion . CA he ld MRP was not an "ad jud ica t ion of i s sues" i n c l a s s i c jeopardy sense , but was i n s t e a d an a d m i n i s t r a t i v e de te rmina t ion t h a t cou ld not have t h e p r e c l u s i v e e f f e c t accorded t o de te rmina t ions made at o t h e r t r ia ls , Same p r i n c i p l e a l lows S t a t e t o u s e one i n c i d e n t a s b a s i s f o r revoking proba t ion u n t i l it i s succes s fu l .

April 19841VOICE for the Defense SD27

, - ~ ~

WILLIAM GORDON, No. A14-82-672-CR (Hou, 1 4 t h ) , C i v i l R i g h t s V i o l a t i o n Convict ion Affirmed, Judge Brown, Pane l OpLnion, 3/1/84

LESSER INCLTJDED OFFENSE OF CIVIL RIGHTS VIOLATION -- APPARENTLY THERE ARE NONE. [See 39.021 PC] D argued e r r o r t o r e f u s e h i s r eques t f o r i n s t r u c t i o n on l e s s e r o f f e n s e of a s s a u l t . Though CA quoted r u l e t h a t

/ o f f e n s e is a l e s s e r one i f proved by same o r l e s s t han a l l f a c t s necesk s a r y t o prove charged o f f ense , and though f a c t s h e r e c l e a r l y f i t t h a t t e s t , CA he ld o f f e n s e of v i o l a t i o n of p r i s o n e r ' s c i v i l r i g h t s " s t ands alone", t h a t because very founda t ion o f o f f e n s e is r e l a t i o n s h i p of par- t ies t h e l e g i s l a t u r e in tended as a " s i n g u l a r crime", Other o f f e n s e s not precluded bu t cannot be l e s s e r o f f e n s e s of t h i s one. [Also cites " g u i l t y only" r u l e f o r r i g h t t o lesser inc luded o f f e n s e charge , as s t a t e d i n Royster 622 S .W.2d 442 (TCA 1981) but some q u e s t i o n e x i s t s a s t o whether t h a t r u l e surv ived r e c e n t op in ion i n &, (TCA No. 312-83, d e l i v e r e d 3 / 1 4 / 8 4 ) ] ,

VIRGIL PRESTON, No. 13-83-304-CR (Corpus C h r i s t i ) , Burglary Convict ion Affirmed, Judge B i s s e t t , Pane l Opinion, 2 /23/84

ATTACK ON PRIOR CONVICTION FAILS BECAUSE D DOESN'T PRODUCE INDICTMENT: D a t t a c k i n g p r i o r a l l e g e d f o r enhancement showed t h a t judgment r e c i t e d he w a s convic ted f o r " t h e f t of a truck'! Though no such o f f e n s e e x i s t s i n Code, t h e e r r o r was one s u b j e c t t o r e fo rma t ion ; i f D (who h a s burden of p roo f ) had produced t h e indic tment showing same charge;, he would have shown fundamental d e f e c t and void conv ic t ion . H e d i d not do s o and con- v i c t i o n on ly "voidable" , s o D f a i l e d i n burden.

FRANK HERNANDEZ, No. 07-84-0025-CR (Amar i l lo ) , Opinion on Motion f o r Extension en banc, Judge Pof f , 2/21/84

INDIGENT APPELLANT DOESN'T GET STATEMENT OF FACTS. CA HOLDS IT HAS NO AUTHORITY TO EXTEND TIME FOR FILING BECAUSE NO TIMELY DESIGNATION OF RECORD BY D , SO RIGHT WAS WAIVED: D gave o r a l n o t i c e of appeal on day of judgment, and counsel was not appointed u n t i l 4 months l a t e r . Counsel f i l e d motion t o extend t i m e f o r f i l i n g Statement of F a c t s , a t t ached r e p o r t e r ' s a f f i d a v i t and exp lana t ion t h a t he had on ly j u s t been appoin ted , w e l l a f t e r 20 days allowed by A r t . 40.09, Sec . 5 CCP t o des igna t e r eco rd had exp i r ed . CA concluded A r t . 40.09 gave it no a u t h o r i t y t o extend t h e t ime f o r SF t h a t had not been t ime ly des igna t ed f o r i nc lus ion . So, t hey h e l d , f a i l u r e (even of an ind igen t D unrepresen ted by counse l ) t o f i l e a des igna t ion i n 20 days is a waiver o f r i g h t t o SF on appea l . "Given t h e wavier , it fo l lows t h a t good cause does not exis t t o warrant an exten- s i o n ( t o f i l e SF)." Opinion imp l i e s some burden on D himself t o exer- c i s e d i l i gence , though no d i scuss ion whether l a t e appointment of counsel w a s due t o D t s i n a c t i o n , misunders tanding o r j u d i c i a l o r c l e r i c a l e r r o r .

,

SD-28 VOICE for the DefenseJApril 1984

- CLINTON from page 8 it just happened. But that left this Court Courtroom, except on c e r e m o d occa-

\ with something like 3,000 direct appeals stons. 1 assume on the notion that it is for or against it? that had to be disposed of and at the same distractive and may he an invitation to

I really haven't thought about time we had to be exercisinn our discre- the ~articioants. the advocates, to be it. I know the stories about the hangings at the Courthouse years ago, public hang- mgs andall like that. That all seemed kind of gimmicky. I don't think it's going to make any great change in people's minds. VOICE: Only a few weeks ago, Ronald C k k O'Bryan, who was assessed the death penalty by a jury in Harris County almost ten years ago, was again given an execu- tion date. How do you feel about the inordinate delay in capital cases? CLINTON: It's not limited to capital cases. There's an inordinate delay ina good many cases I don't think you need to compartmentalize capital cases; the whole system is inflicted with delay. There must be ways found to avoid that. There's no need to huny up in a capital case because the fellowes not going anywhere, he will be conflned on death row. So the delay just follows apparently from that realiia. tmn. VOICE: How can we solve it? CLINTON: We would be well advised to try to figure out a way that at least some grounds of error could be raised like they used to he through a Bii of Exception. It does not require a Court reporter to transcribe all the notes of all the trial. We wuld encourage participants in many case to have some sort of stipulation about the record, what the testimony was. VOICE: Do you think that the Federal Courts have too much or not enough input in post conviction habeas corpus ceses? CLINTON: I have no quarrel with the way it is now, 1 think particularly the Fifth Circuit Court does its dead level best to F id what the answer to whatever substantial federal question is presented and resolved. VOICE: Has the fact that the Courts of Appeals have acquired criminal jurisdio tion eased this Court's work load like it was anticipated? CLINTON: It sure has. VOICE: Are you happy with the way the system is working right now? CLINTON: Not yet, but as I look at it, in the future it may work out more ot less like it was intended. The problem of the work load of this Court was that it was created by the fact that there was a bad estimate of what the situation would be on September 1,1981, when a good number of cases were to be transferred to the Courts of A~ueals. I don't know where

- tlonary review jurisdiction. So for the last couple of years there has been a problem, we have had both our old backlog and then the new work load. But as of last October, I believe it was, every ordinary appellate case was out of the clerk's office and submitted to the Court and in the offices of the judges. We're becoming more selective in the cases that we decide to review. When you do that, your work load is naturally reduced. And one of these days we'il be able to devote more time and care to resolving the legalprob-

My most memorable decision was probably Knowles v. Scofield where they got info a hassle up in Denton County about where the courthouse ought to be. To resolve the problem, Idid research like I've never done before, but I fouad it interesting because it was all historjcal.

lems that we accept to resolve, and do it in the hope of a more judicious way so that maybe the first time the opinion goes down it will hold up on rehearing. VOICE: What are your feelings on cameras in the Courtroom, &st in the Trial Court context and, beyond that, in your own Court? CLINTON: We don't allow cameras in the

aware that' the camera's on them and therefore react in one way or another. VOICE: What about from aneducational standpoint? CLINTON: Years ago in each Travis Coun- ty Courtroom there was a faed camera at the very back of the courtroom that was a closed circuit TV to the law school. 1 think everybody toyed around with it for a while, played with it, and it was a nice little experiment. My recollection is, in a relatively short period of time the whole thing stopped and it didn't prove to be all that beneficial and educational. VOICE: What was your experience with the Jack Ruby case? How did you happen to find yourself involved? CLINTON: I got in completely post-trial. Jack Ruby had become disenchantedwith nearly all of his trial counsel, particularly Joe Tonahill from Jasper. The immediate objective was to get Tonahill out of the case. There was a lot of strategy developed toward that line. Suddenly the question cameup ahoutwhetherit was Jack Ruby's real desire. Somebody found an affidavit in the file, that his sister had sworn to earlier, questioning his competence. That immediately implicated whether hefredy, knowingly, and intelligently decided that he didn't want Joe Tonahill. An interesting thing happened in all of that; we, five or six lawyers, decided maybe we would fare better if the presidimg judge, Joe Brown, was no longer presiding. He started taking notes in anticipation of writing a book. So we moved to recuse him

BRIAN WILLIAM WICE is a cnminal defense attorney iu Houston who recemed his B A . from tke Wniversity of Houston with hlgh honors in 1976 and hrs J.D. from the Unzva srty OfHouston'sBates Colle@ofLowin 1979.

A former briepng attorney to Judge Sam Houston Clinton of the Toras Court of Crimi- nal Appeuls, Wice H articles kwe apmred in a number a f low jomols including the Texas &u Journal, Houston Law Review, SouthTa- as Law lourrwl, St. Mary's Law Jouma1,rmd the National Journal of Cdndnal Defense. His most recent article for the VOICE was on the use o f psyehiumc tesnmony in non-coprtal CRSeS.

Co-mthor a f a feature article on the Rob- ert Vernon Bruce murder case for theFebruary rsme of D Magazme, Wice isplanniing on wrir- ing a bookon hisexperiencesas 4 b~ef ingnt- tw'nw at the Texus Court of Crimmnl Appeals.

April 1984/POICB for the Defense ?"

because he had a conflict. VOIGE: It is true that he attempted to copyright the Court Reporter's note? CLINTON: I'm not sure. That's what everybody said, but I'm not sure. I seem to remember i t was in December or so when we went out to speak to Jack Ruby who was by then hospitalized. Before he died, we did get a reversal of the conviction. VOICE: Your office is decorated with pictures of judges from the 1920s. What about this preoccupation with these ancient judicial personalities, can you learn anything from them?

CLINTON: Back to Burka, he remarked on that. He said I was a student not only of the law but also the Court and that I spend a lot of time delving into the personalities of the judges and in the history of Court and he's exactly right. One reason that I do that is because I think it helps to understand what the judge 1s say- mg in his opinion better if you understand more about the judge. VOICE: What's the best part of yourjoh and the part of it you don't lib? CLINTON: The best part of my job is, except for heing in conference on Man- day morning at 9 o'clock and sitting in

my Courtroom on Wednesday morning at 9 o%lock, I set my own time. I don't have anymore deadlines like I uwdto. I haven't found what the worst part of the job is, at least not yet.

(Ed Note-Om eternal gratitude to contributor Brim Wice, not only for assemb- ling this piece for the VOICE, but for his contributions on concept, layout and photography, pianning for which began last year, well before the politfcal semen opened.)

DWI Report -

Blood Alcohol Accuracy Questioned

From The AlcoholRese~~~ch Center, University of Colomdo

1

Def&g a "drunken driver" by mea Tolerance for alcohol can he built up suring blood alcohol level gives little indi- both over the long term-through regular cation of how impaired the individual's drinking-and in each individual encounter judgment or physical responses actually with alcohol, according to research Erwin are, according to studies at the Alcohol has undertaken with colleagues Robert Research Center at the University of Plomin and Jim Wilson. Colorado, Boulder. In the laboratory, volunteers were given

Blood alcohol level, whether deter- alcohol mixed with water or a sugar-free mined by "Breathalyzer" measurements, mixer (to eliminate body changes pro- urine or blood samples, yields an objective- duced by sugar) until their blood alcohol sounding number. But that figure tells level was 0.10 percent. At that level, most little about one's ability to drive or func- people performed poorly in terms bfjudg tion while "legally" drunk. ment, balance, muscle control and other

"Individual differences in response and physical tests tolerance for alcohol vary so widely that When kept at the same level of drunk- one person may be incapacitated by a enness for three hours, however, some leskthan-the-legal-limit alcohol dose, while gradually improved their performances. others show almost no response to a fairly After building up their tolerance for alce high blood alcohol reading," accordmg to hol in the laboratory situation, roughly Gene Erwin, director of the Alcohol Re- analogous to social drinking, some people search Center and professor of pharma- were able to perform as well while legally colow. drunk as they had when sober.

6;th an aequued tolerance for alcohol Others were not able to match their a d individual gcneti~. differences account sober pcrformancelevel. These individuals, for the wide variations in resoonsc. he ex- the researchers believe, lack either the in- . "

plained. heriied or acquired ability to function

30 VOICE for the DefenselApril1984

with large alcohol doses. "In these tests, we're dealing with nor-

mal people, not alcoholics," Robert NO- min said. Much of the information on alcohol has involved alcoholics or individuals with what the scientists call "chronic acquired tolerance," not average folks. Generalizing from acutely tolerant people to the public at large does not allow for the wide variations of individual differences, they note.

"The old 'mdl over. buddv. and let's - . *. see you walk this straight line' approach to determining d ~ n k e ~ e s s is a much more accurate way to see how impafred an individual may be," Rohert Plomin said. The roadside drunk-or-sober tests of performance are gradually being aban- doned by law enforcement officers around the country, however, since the tests require subjective judgment-the officers' perceptions of the drivers' abilities.

Most state laws now defme drunken driving by blood alcohol level, a measure

(confinued on page 33).

Voir Dire bv Counsel in Federal Courts

by John E. Ackerman, Houston

(Former President of the National Asso- ciation of OiminalDefense Lawyers, John Ackerman, presented this statement in March, before a subcommittee of the Sen- ate Judiciary Committee on the question of attorney conducted voir dire in federal court, speaking on behalf of NACDL, and in support of Senate Bill 386. His com- ments should be of interest to all TCDLA members as well-Ed.)

INTRODUCTION

The National Association of Criminal Defense Lawyers, Inc. (NACDL) is a Dist- rict of Columbia non-profit corporation whose membership is comprised of more than 3,000 lawyers representing all 50 states. All members are primarily engaged in positions which bring them into daily contact with the criminal justice system as advocates, law professors, and otherwise.

Among the objectives stated in the charter of NACDL is t o promote the proper administration of criminal justice and thereby concern itself with the protection of individual rights and the improvement of the criminal law, its practices, and pro-

by the parties or their attorneys as it deems proper.] The court may impose such reasonable limitations as it deems proper with respect to the examination of prospective jurors by the defendant or his attorneys and the attorney for the Gov- ernment may eachrequest, and shall be granted not less than thirty minutes for such examination. In a case where there is more than one defendant, the court shaNallow the attorneys for such defendants an additional ten minutes for each additional party, except that the total minimum time allowed each side shall not exceed one hour.

DISCUSSION

Rule 24(a) currently provides that the trial judge "may" permit voir dire by the attorneys for the parties. However, in 1977, at least 75% of the Federal District Judges in America didnot permit voir dire by counsel in their court^.^ The trend seems to be toward the exclusive conduct of voir dire hv the Federal i u d ~ e s . ~ The . - purpose of this proposed legislation is t o

A keverse that trend a i d mandHte the parti- cedures. cipation by counsel in the voir dire pro-

NACDL supports the enactment of .,,, ~ ~ - - ~

S. 386.1 The iudicial svstem established in the

(a) Examination: The court [may] shall permit the defendant or hi attorney, and the attorney for the government to conduct the oral examination of prospective jurors, [or] and may, in addition to such examination, [itself] conduct its own [the] examination. [In the lat- ter event the court shall permit the defendant or his attorney and the attorney for the government t o sup- plement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions

THE PROPOSED LEGISLATION United 'states o i America has been an attempt to attain the fairest system pos-

S. 386 amend 24(a) sible for determining when, and under read:2 what circumstances, citizens should or

mav be deorived of their liberties. Our iudicial system is a showcase for the world and one in which we are most often justified in taking pride. It is an example t o the oppressed peoples of the world of "freedom" and a goal toward which they can strive.

Justice is also a goal toward which we must continue t o strive. We must continue, in our fme-tuning of this system, t o seek to provide accused persons with the fairest possible trials consistent with prac- ticality. The ideal system is one in which all truly guilty persons are convicted and all truly innocent persons are found not

guilty. Unfortunately, innocent persons are convicted and sentenced to prisons. This is a much more egregious breakdown in the system than when the occasional gullty party goes free.

As Chief Justice Burger has recently pointed out, "No right ranks higher than the right of the accused to a fair trial."5 One of the essential, and probably the most important ingredient of the right t o a fair trial, is the right to trial by jury; not just any jury, but an impartial jury.6

It is extremely important that the trial be "in fact" fair. It is equally important, however, that the trial be perceived as fair by the accused. One who is convicted in a proceeding which he or she perceives as fair will be less likely t o emerge from prison with a grudge against the system which must in some way be evened out. An accused is muchmore likely to perceive fair- ness in a system in which the accused and counsel can play a meaningful role in the selection of the jury.

The typical jury panel from which the venire is finally chosen begins the process biased in favor of the government. Ques- tions typically propounded by judges in judge-conducted voir dire are not struc- tured to uncover this pre-disposition or to eliminate it. In fact studies have shown that jurors will deliberately deceive the judge, many times cons~iously.~ The judge is the most powerful figure in the courtroom, robed and elevated above everyone else. It is a setting in which honesty on behalf of jurors who may have the courage to express their doubts about their ability to be fair is met with rejection by this authority figure. The judge frequently questions the jurors in a closed manner, re- quiring only "yes" or "no" answers to questions in which the accepted answer is obvious. For instance, it is not unusual to hear questions in federal court similar to the following:

Q. You wouldn't let something you may have read or heard about this case interfere with your ability t o be a fair and impartial juror,

April 1984lVOICE for the Defense ? 1

I Q. In spite of what you've just said, vou could set that aside and follow

F this court's instructions, couldn't you? Q. You wouldn't hold anything against this defendant simply because he has been indicted bv a grand jury and brought before iou for trial today, would you?

In many, if not most cases, these kinds of questions are not even asked individ- ually to each member of the panel, but to thevenire of 40 to 100 jurors en masse.

To the extent that judges get beyond these kinds of superficial questions, and into questions dealmg more specifically with the facts of the particular case on trial, the judge is poorly equipped to deal with responses received from members of the jury. Thls is particularly true in criminal cases where the judge likely has very l t t le knowledge of the issues and nuances of the case.

As the Fifth Circuit has recently pointed out:

inal records. and has even used informa- k i d of jobs they held. What a tragic way to make decisions that could affect the rest of a citizen's life! This articular

While Federal Rules of Criminal Procedure 24(a) gives wide discretion to the trial court, voir due may have little meaning if it is not conducted at least in part by counsel. The "federal" practice of almost exclusive voir dire examination by the court doesnot take into account

1. , the fact that it is the parties, rather than the court, whohavea full grasp of the nuances and the strength and weaknesses of the case. "Peremptory challenges are worthless if trial counsel isnot affordedan opportunity to gain the necessary information upon which to base such strikes." [citing numerous cases] Experience indicates that in the majority of situations questioning by counsel would be more Wsely to fulfd this need [information upon which to base peremptory challenges] than an exclusive examination in general terms by the trial court.g Making the Anal decisions regardii

challenges for cause and, more especially, peremptory challenges is a task, the eff- eiency of which is dependent on the nature and quality of information available to the defendant and his or her attorney. Wealthy or moderately wealthy defendants, and the government can retain ex- perts to gather information on the back- grounds of themembers of the jury panels. The government has access to their crim-

tion supplied by the Internal Revenue Sefice.70 Defendants rarely, if ever, have access to government-maintained information resources. Much can be learned, however, from using trained investigators. Such persons might talk with a potential juror's friends and neighbors, take photographs of their homes, look at bumper stickers on their automobiles or gather information about them from other available resources. Such information-gathering techniques, although frequently successful and helpful to the parties, involve in- vasions of a citizen's right of privacy. Such practices are encouraged by the limited nature of voir dire in most federal courts

Thus the defendant with sufficient funds and the government with its vast resources are not totally dependant on the extent of available voir due examination. The poor defendant, the indigent, however, must be totally dependent on voir dire to acquire information about the background of potential jurors.

One generally encounters two arguments in opposition to attorney-conducted voir due; (1) that it is time-consuming, and (2) the attorneys abuse the privilege by using it as an opportunity to argue their cases.

There is no auestion. but that it takes - more time to allow attorney-conducted voir dire. Voir dire should take more time. It is perhaps the most crucial part of the trial. If in haste we are choosing biased and prejudiced jurors, then what follows in the trial is justice only by accident, not by design. Consider the nature and extent of the background investigations which are conducted whensomeone isnominated for appointment to the federal bench We are concerned that those appointed to such positions have nothing in their back- grounds which may cause them to be prejudiced, biased or impartial. The FBI con- ducts a lengthy and s e a r c h i inquiry. And yet, when we choose the twelve persons who are actually making guilt/innocence determinations in serious criminal trials, it is frequently done in as little as 15 ,minutes with no searching inquiry whatever.

For part of my career as a triallawyer I practiced before a federa1 judge who prided himself on his ability to choose a jury in a criminal trial in less than 15 minutes. Exercising peremptory challenges in that court was a frustrating process. It had to be done almost exclusively on what the persans looked like, and the

Federal judge is not an anom&. Jury selections of this kind occur daily in the federal courts in this country.

An empirical study was done in the Los Angeles Superior Court system in 1971, to determine how much additional time lawyers use when conducting voir dire virtually unsupervised by the court as contrasted with court-conducted voir dire. The results are enlightening. Attor- neys, virtually unsupervised, took an average of 135 minutes. When attorneys and judges both asked voir dire questions the average was 111 minutes and when judges conducted the questioning alone, the average was 64 minutes." A Missouri study in 1970 found that attorney- conducted voir dire consumed only 9% of the total trial time.12

Should time be such an important factor in the conduct of trials that we should be unwiIling to spend 10% of the trial time in an attempt to get a fair and impartial jury? If time is such an important factor, why not require attorneys to submit opening statements to the judge, so that the judge can edit them and de- liver them? Why not prohibit the attorneys from conducting the examination of the witnesses, since such examinations frequently consume more time than the judge would have consumed had he or she been doing it? In short, why not do away with the adversary system of justice, since it consumes so much time?

The second reason most often heard in opposition to attorney-conducted voir dire is that the attorneys abuse the process by asking improper questions of the panel. Why is it that judges who do such a mar- velous job of controlling improper questions of witnesses, improper opening statements and improper argument, cannot control improper voir dire? The argument is specious.

Chief Judge Donald P. Lay, of the E i t h Circuit Court of Appeals has writ- ten on this subject. Judge Lay says that: "The judiciary is fooling itself when it thinks it can improve the administration of justice by conducting the voir dire examination of a jury."'3 Judge Lay points out that while he sat as a trial judge he conducted part of thevou dire,but always allowed lawyers to become involved. He says that: 'Whatever the reason, it has been my experience that jurors are more frank and candid in responding to the lawyer's questions than to the court'^."'^

32 VOIC'Efir the DefenseJApril1984

RECOMMENDATIONS

The National Association of Criminal Defense Lawyersstrongly urges enactment of S. 386 for the reasons stated above. We urge, however, that the lepslative history reveal clearly that the time factors set out in the bill are minimum times, to be en- larged depending upon the complexity of the issues in the case. The limitation to 30 minutes should be for the simplest of trials and should increase in accordance with the increasing complexity of the case.

Jury semvice is the one remaining opportunity for the ordinary citizen to play a direct role in the governing process. Serving on a jury is a lesson in citizenship. Citizens who have served on juries have an enhanced understanding and appreciation of our conatitutional form of government. They feel that they are a part of it. Their sense of alienation from their govemment is lessened.

The erosion of attorney-conducted voir dire is a step in the erosion of trial by jury. An argument against attomey- conducted voir &re is an argument which says jurors are unimportant to the process; their feelings and biases and prejudices are unimportant to the process. Two states now allow less than unanimous verdicts in felony criminal cases. There are propo- sals to eliminate trial by jury in complex cases.

When this govemment was established following the Declaration of Indepen- dence, it was established in response to governmental tyranny. Citizens were is* lated and alienatedfrom their government. They had no input into its functioning.

They were taxed and otherwise governed without a voice, without representation. The touuhstone of the revolution was "freedom." Trial by jury was an essential ingredient in the constitutional scheme which developed. The government could not deprive a citizen of his or her "freedom" except by the consent of their peers, other citizens. If we no longer have the time or the patience to allow citizens ac- 8. cused of crime to he represented by counsel who can meaningfully participate in the process of jury selection, then what other threads of the fabric of freedom must also fall to these expediencies?

FOOTNOTES

1. NACDL also supports S. 677, the compan- ion bill to S. 386 which wouldamend Rule 47 la) of the Fedetal Rules of CivilPraca- . . rluru, hut we arc 3i course primarily cun- urncd with 1hr 1;edernl Ruler of Criminal Procedure.

2. The bracketed material is ~emoved from and the underlined material is added to exlstbng Rule 24(a).

3. Bermant, Conduct of the VoirDire Exnm- ination Prartices nnd Opin~ons of Federal DistriCf Judges, Federal Jndlcial Center, 1977. 9.

4. See United Smes v. Bk, 630 F.2d 389 (5th CX. 1980). footnote 8. a t page 395. 10. See Unzted Stures v Costello, 255 F.2d

876 (2nd Cir. 1958). 5. See Press-Enterprise Co v. Superior Court

of CaL, 104 S. Ct 819,823 (1984). 11. Babcoclgsupra n o t e at 563.

'%e American Pubkc, the Medsa and the Judicial System," Research and Forecast, Inc. A poll conducted for the Hearst Cor- porat~on In this rtudy 59% of thosepolled bel~eved that it was incumbent upon a defendant m a cnmmal case to pxove his innocence. 32% of the college graduates did not know that the accused did not have to prove his innocence and 48% of the high school graduates d ~ d not knaw it.

See Babcoek, 'TOE Due: Preserving Its Wonderful Power," 27 StonL.Reu. 545 (1975). At page 547 the author discusses a study done inthe 4 te 1950's of23 consee utive jury tmlS in D Federal District Court In the M~dwest. T h s study is published m: Broeder, "V~i r Dire Examination% An Empirical Study," 38 S,Cnl,L.Rev. 503, 511 (1965) In one ease for example, in a panel which was questioned en mars regarding their knowledge of the parties or their lawyers, three persons wound up on the jury who had sunply failed to respond to the queshan. One knew the plaintiffs famfiy very well and was fami i r with intimate details of plaintiff's marriage. Two others had substanha1 personal and businass contacts with lawyers in the case. In another case, a recent acadent v d m failed to speak ant when a general ques- tlon was asked regardmg whether any member of the panel had been in a serious accident. She commented later to othez jurors that she probably should have said something, but was too nervous to do so.

Ueited Sates v, file, 630 F 2 d 389 (5th Cir. 1980).

6. Constitution of the United States, Article 12. Id. LU, Sectron 2, Amendment VI.

13. Lay, 'In a Fair Adversary System the Law- 7. Bennett and Fogelnest, '"ITIe Need f o r b - yet Should Conduct the Voir Dire Exam-

dividual, Seqneatered, Attorney Conduc- ination of the Jury: 13 The Judges lour- ted, Voir Dire," Philadelphia Bar Assoc~a- nal 63 (July, 1974). tion, Cnminal Justice Ssct~on Newsletter, Vol. 111, Issue 1, Febntaty, 1984. Citing 14. Bid.

DWI from page 30 actual abilities, should be as enforceable as the arbitrary 55 miles-per-hour speed

which does eliminate this subjectivity. limit, Plomin said. Dubbing such drunk driving laws The Alcohol Research Centet at the

"driving under the influence" or "driving University of Colorado in Boulder is one while ability impairec however, is a step of three centers nationwide funded by a in the wrong direction, Plomin cautioned. ,grant from the National Institute for Some people are dangerously impaired Alcohol Abuse and Alcoholism md dona- below the legal blood-alcohol limit, while tions from private orgainzations interested those with acute tolerance show almost in alcohol problems. The center is an inno change at higher-than-legdlevels. terdisciplina~y effort which includes indi-

Setting an arbitrary blood alcohollimit, viduals from the departments of phanna- without trying to define impairment, cology, psychiatry, anatomy, behavioral avoids a legal pitfall. Simply making it genetics, psychology and pharmacy. illegal to drive with a blood alcohol level The research in individual responses to above a certain point, regardless of one's alcohol, undertaken over the past six

years, incorporates fmdings from more than 100 individuals, including siblings and identical twins. One of thelong-term goals of the research is to learn more about the genetic basis of alcoholism and alcohol response.

(Ed Note- Olrr thanks to TCDLA stdwarts Lou Dugas, Orange, and "Rusty"Duncrm, Denton, for providing infomation fmm the Alcohol Research Center. Readers interested in delving deeper into the more technicaI aspects should contnct Lou who has copies of the actual studias on which rhis report was based.)

April 1984/VOICE for the Defense 33

houghts From Behind the Walls (

A substantial segment of correspondence received by the VOICE each month comes with a return address of one unit or another of the Texas Department of Correct~ons. In rhe past, most of this correspondence has appeared solely in the 'Letters to the Editor" columns of this journal. In the belief that the vorces from behind those walls should not fall on deaf ears, we have created this new department for widening the scope of what we hope will become a meaningful dialogue bemeen those engaged in the practxe of crimmal law and our "pnpaLE,"in their essays, articles and letters. E d .

Dear Editor.

After readmg several issues of VOICE for the Defense, paying particular atten- tion to the section devoted toletters you recewe from inmates of the Texas Depart- ment of Corrections, I felt i t was about time that I, too,voice an opinion about a very unclear matter of law, that as of this date, has not really been dealt with by the courts of this State, nor has there been a proper predicate laid by ttie judicial com- mittees governing the courts.

The matter of law I am referring to, -"What are the proper admonishments to be given a defendant when he or she is facing a plea t o an enhancement portion of an indictment?"

After lengthy study of this problem, as' I, too, am faced withthis in my individual case I am now fighting in the Courts, I have found that there are no uniform procedures to be followed by the courts, and what procedures that have been set up for such admonishments are rarely used by the mdividual district judges where a layman of thelaw, who is facing such matters before the trial court, would adequately

understand what he or she is about to do in pleading one way or another.

I t is most discouraging to note that an individual who is facing a substantial amount of prison tune may get even more time because the admonishments are not given, and out of fright, confusion, or just not being well versed in law, pleads "true" without first knowing what the consequences of such a plea might bring in the way of further sentencing vulnerability.

In Chapter 14 of the American Bar Association's Standards Relating to the Administration of Criminal Justice, dealing with Pleas of Guilty, specifically in Standard 141.4. (Defendant to be Ad- vised) (a) (iii), the following was set forth as proper predicate when accepting a plea of guilty to an enhancement charge of an indictment.

that, if the defendant has been pre- viously convicted of an offense and the offense to whch the defendant has offered topleadisone for which a different or additional punishment is authorized by reasons of the previous conviction or other factors, the fact of the prevlous convictions or other factors may be established after the plea, thereby suhjectmg the defendant to such different or additional punishment.

If a defendant to a criminal matter before the tribunal is asked by the trial court judge whether or not he (the defendant) is the same person that was charged in the enhancement paragraph of the indictment of the primary offense, without first properly advising the defendant that his plea will automatically constitute a substantial increase in punishment as an habitual status, this should be held a violation of the defendant's right to due process of the law.

In other words, the Court can not sit there and say that such a plea was made by the defendant intelligently when he (the defendant) was not aware of the

consequences of such a plea. In Boykin V. Alabama, 395 U.S 238 (1969), the Supreme Court held that a plea of guilt can not be accepted by the Court without frrst showing that a proper admonishment by the Court has been made and that the defendant under- stands completely what the consequences are of his plea. If the defendant is not aware that a substantial mcrease m punishment is to follow such a plea, that should clearly be held not to be an intelligent plea due to no admonishment by the trial court as to the auto- matic increase in punishment.

In my specific case, William E. Spauld- ing, IU v. The State of Texas, Cr. 13-81- 400, Thirteenth Supreme Court of Ap- peals, Corpus Chrlsti, Texas, affirmed June 9, 1983, the court addressed this ground of error as follows:

Appellant challenges the sufficiency of the evidence to support the sub- mission to the jury of the enhancement paragraph of the indictment in t h ~ s cause. Appellant pled "True" to the enhancement count at trial. He has waived the right to complain of the sufficiency of the evidence on the count. No error presented.

To take this step-by-step, we need to look at the totality surrounding this plea of "True" to the enhancement paragraph First of all, the enhancement paragraph alleged in the instant indrctment, was that of theft from the State of Louisiana, Par- ish of Baton Rouge, but there had never been an indrctment rendered, but rather the plea of guilty to the theft charge was made upon a Bill of Information with two other charges being pled to at the same t i e (fraud to acquire accommoda- tions-issuance of worthless checks). All three charges were presented on the same Bill of Information, and all three charges were pled guilty to upon this same Bill and not an Indictment as was alleged in the Texas indictment for enhancement purposes. Secondly, upon being asked by the trial court judge the following:

Court You have heard the readmg of the indictment by the District Attorney wherein it is alleged that you committed an offense, and you heard theDrstrict Attor- ney read that on the 17th day of March, 1977 in the Parish of East Baton Rouge, State of Louisiana. Did you hear that?

Def.: Yes, I did, sir. Court: Is that true or not true?

34 VOICE for the DefePlse/April1984

Def.: That is true. Court. Let the record show that your

plea of true to the allegation in the enhancement paragraph is re- ~eived by the Court and ordered filed as your plea to the enhancement portion of the indictment.

In attacking the sufficiency of the evidence to support the enhancement paragraph of the primary charge of the indictment, I submittedmyPro se Supplemental Appeal Btief, setting forth excerpts from the Statement of Facts, clearly depicting that at no time did the trial judge admonish me that upon the acceptance of a plea of "True" to thisenhancement paragraph, the punishment would automatically be raised from a m i n i m of (5) five years to a minimum of (15) fifteen years. The only finding this judge made, is that I was the same person alleged in the charging enhancement paragraph. There was no finding that this was a final conviction, that the conviction was a legal conviction, or that the convictionwas, in fact, afelony offense.

In being a layman of the law as I am, it was made known tome too late to further challenge on direct appeal, that the alleged enhancement conviction was in fact had upon a bill of information and not an indictment, as alleged in the Texas indictment, that the prior conviction alleged for enhancement was from apleaof guilty to the Bill of Information with no jury waiver being signedin Louisiana, or waiver of indictment, and that the trial judge did not properly admonish me to the maxi mum sentence allowed upon such a plea.

I do know that in not establishing the proper predicate of admonishment and not proving the elements of this prior, that I have been serving a sentence that could have long ago been turned about. Having all the documents necessary and knowing that there iserror, but not knowing how to go about attacking it, is most discouraging, to say the least.

I am hoping that this letter to you, may bring me some response from those who may be interested.

Any responses to this letter would be appreciated. I have for several years now been beating my head against a brick wall in the hopes of having this matter resolved by the Courts, but without the 'proper legal know-how, I am afraid that I am about at the end of hope for some thina to be done. Thank vou for aivina

Respectfully submitted, WILLIAM E. SPAULDING, 111 No. 297304 P.O. Box 32 Huntsville Unit, Huntsville, Texas 77348

(lkose who wish, please R.S. TP. direct to Mr. SpauldZng.-Ed.)

Dear Editor:

I am a prisoner presently confined at the Ramsey Unit I1 of the Texas Depart- ment of Corrections and serving a f i fy year sentence for the offense of rape out of Bexar County, Texas. I have been in TDC since October, 1973. During that time I have been studying all I can about the criminal law, and court proceedings here in Texas. I am finding i t difficult to understand the working of the criminal law since it is hard to find legal material and books within TDC to aid me in learn- ing all I can about the law and procedures thereof.

At the present time I have a writ of habeas corpus pending in federal court in Pan Antonio. The issues thereof are (1) Article 1.14 of the Texas Code of Crimi- nal Procedure, as in effect at the time of my trial, is unconstitutional; (2) The State should not have been allowed to waive the death penalty; (3) I was not afforded a sufficient number of peremptory challenges; (4) Photographs used in a lineup were suppressed by the prosecution; (5) The Texas statute proscniing rape vio- lates equal protection; and (6) Evidence was improperly admitted at trial.

I would l&e to obtain legal material on proof of corpus delicti, criminal law, constitutional law, and any material on the issues above. As stated before, I would like to learn all I can about criminal law, proceeding, etc. Any assistance in this matter will be greatly appreciated.

Very truly yours, GORDON 0. DeVONISH No. 235129 Ramsey Unit U Route 4, Box 1200

,Rosharon, Texas 77583

Dear Editor:

There are several inmates confmed here in Marion without adequate financial resources to hire a lawyer.

Is there anv reasonable "self help'"

I am not referring to a vindictive or nuisance case, but one that would make a little noise and establish precedent in Texas law relative to forged indictments and the vindictive habit of appointing ineffective counsel. I am in pro se prepar- ing for habeas corpus appeal to the federal court, Dallas division.

Everyone thinks their case is an exception, but this one supports my allegations. It is unbelievable in the annals of criminal law.

Sincerely, THEODORE R. CASTILLE No. 05003-035 Marion, Illinois 62959

(Interested parties please contact Mr. ChstiUe direct-Ed.)

Dear Editor:

I received several letters of appreciation from attorneys who are practicing criminal law and do appellate work concerning my article on bridging the gap in attorney-client relationshrps on appeal. I just want you to know how much all of us appreciate the availability of the col- umn: "Thoughts From Behindthe Walls." Thank you.

I recently was featured in THEHOUS- TON POST Editorial Opinton section with an article on capital punishment. I received a lot ofmail because of that article too. One letter came from the first assistant County Attorney of Harris County who thought it was quite enlightening.

In Service to Humanity, WILLIAM CRAZY-HORSE COPPOLA No. 283650 Ellis Unit Hunstville, Texas 77343

ASSISTANT FEDERAL PUBLlC DEFENDER for the Western Dis- trict of Texas, positions in San Antonio and El Paso. See 18 U.S.C. 53006A. Must be bilingual (in Span- ish), and be licensed for at least one year. Federal criminal trial experience preferred. Resume or Standard Form 171 to Lucien B. Campbell, Federal Public Defender, 727 E. Durango Blvd., B-138, San Antonio, - -... .

me the o~portuniw to &are thiileRai manual fhat coild be reasonably obtained, I leXaS 78206. I -. problem. especially relative to Texas courts? I I

April l984IVOICE for the Defense 35

Jt. - Voice for the Defense Online

Documents

Transcript of Jt. - Voice for the Defense Online