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MARCH/APRlL 1999 APublicationofHarris CountyCriminalLawyersAssociation

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See Reflections on page 18 for tributes
410ma1 n . down town h 0 uston .7 13 . 225. 6637
March/April 1999
DOCKETCALL March /April 1999
Lloyd W. Oliver
Danny Easrerl ing
Rosa A. Eliades
Loren A. Deramore
Roberr A. Moen
David Mircham
TerryW. Yares
Roberr PeltOn
ClydeWilli ams
Randy Marrin
Joe VaIeia
Ron Hayes
Garla nd McInnis
E. Ross Craft
Mark Bennerr
RichaId L. Moore
Richard Frankoff
Angela Cameron
Rick Soliz
Jack Carroll
Tyrone C. MoncrifTe
C. Anrhony Frilioux
Sruarr Kinard
George Louquene
Marvin O.Teague
Dick DeGuerin
W.B. House,Jr.
David R. Bires
Woody Sensen
Will Gray
Edward A. Maller
Carolyn Garcia
Jack B. Zimmerman
Candelari oElizondo
Allen C. Isbell
David Mircham
Jim E.Lavine
Rick Brass
Mary E.Conn
KenrA. Schaeffer
Dan Cogdell
George Parnham
Garl and D. McInnis
From thePresident .... . .4

. ..

. .

CommonSense Ethics ...
.. ......... .5
From thePresident Elect .
.. . .... .

. 6
ProposedConstitutionalRevisions .....7
InternetforAttorneys ...............8
Neuropsychology .........

MeettheJudges .................. 14
12Steps toCuringWritfear......... 16
Reflections ...................... 18
Hearsay ........................21
FedSquare ......................22
UpcomingClE ...................23
Let'sHearFrom You!
Publisher: HCCLA
EditorEmeritus: AllenIsbell
EditorialStaff: RosaEliades,JayKarahan,
PatrickMcCann, MelissaMartin
AdvertisingStaff: MartinMayne, Tom Radosevich
DesignandLayout: Jeffrey Tesch @ VyvidProductions(713)236-0770
Distribution: 1,000copiesperissue. Forarticleandothereditorialcontribution,
contactRosa Eliadesat(713) 222-0610orPatrickMcCannat(713) 223-3805
To placean ad, call MartinMayneat(713) 224-8400.
ADVERTISINGRATES: (Ratesaresubjecttochange)
Full Page: $300.00
112 Page: $150.00
114 Page: $75.00
Business CardSize: $37.50
March /April 1999 DOCKETCALL 3
From thePresident
Since you elected the present officers and
directors of the Harris County Criminal
Lawyer's Association, our membership roll
has doubled in size. Last month I reported
to you in Docket Call that we had 300
members in our organization. That was an
all time high, and quite an accomplishment
in itself.
Well, are you ready for this? As of the last
seminar, our membership now exceeds 400
criminal defense lawyers. How about that? I
am so proud ofour Board of Directors. They
have worked so hard, and get so very little
As I am sure you can tell by now, I just
love tootin' our own horn, but then again
we've done so much, just since our last
Remember, in our last publication of
Docket Call it was related how I had to front
postage money to HCCLA for a seminar
because we were so broke. Remember, I
informed you that because of our hard work
and persistence, we now had a surplus in the
HCCLA coffers. That was a first in the
history of this organization. Now it is even
better. You may want sit down for this one....
The HCCLA/Terry MacCarthy Cross-
Examination Seminar was the most
successful in the history of our organization.
Over 300 lawyers attended and we almost
filled the auditorium at South Texas College
of Law. Don't you know the Texas Criminal
Lawyers Association is GREEN with envy,
as well as HBA and the State Bar of Texas.
In addition, the Cross-Examination
Seminar will NET OVER $20,000 for
HCCLA. Yes, that 's right, this is not a
misprint. HCCLA is now FAT.
I am so proud of Mark and Jennifer
Bennett, the HCCLA Board of Directors
and all those who helped in making this
possible. They gave so much of their time
and worked so very hard.
On the first few pages ofDocket Call, you
wiJi find the names of the HCCLA Board
of Directors. The next time you see them in
the courthouse, stop and shake their hand.
They do so very much for all of us .
Next, I am sure you members are asking
yourselves: "What is the organization going
to do wirh all rhat money rhat we members
have entrusred them wirh?" Well , rhis I can
guarantee you, it will not be "doled" out to
some projecr rhat will not pay for itself.
Further, you may rest assured that your
money will not be squandered on some
pointless seminar, where the only real
purpose is to enhance someone's self esteem!
I am sure you will agree that this
organization has nothing tangible to show
for all the thousands of hard-earned dollars
generated by its membership in its 27-year
history. To remedy that, I propose a three-
year plan to set aside funds dedicated to the
purchase ofour own building. This will give
this organization credibility and an identity
it has never had before! To achieve this is
sim pie. We begin by pu rchasing some
property near the new Harris County
Criminal "Justice" Center and, when
additional funds permit, build our own
HCCLA Justice Center. We currently have
$10,000 in a separate interest-bearing
account . We could designate these funds,
along with the $20,000 from our seminar
for our building fund, and we are on our
Think about it ... our own building! It is
really not just a dream. We can make it
happen. At our next board meeting, I will
make this formal proposal. So wrire me or
telephone me, and let me know how you
feel about this HCCLA Justice Center, and
about spending your money.
Now, on another note, I must tell you
about the Terry MacCarthy Cross-
Examination Seminar.
Racehorse Haynes introduced MacCarthy
and described him as the Father of Cross-
Examination. Over 300 lawyers gave him a
Texas size welcome, and it got better from
MacCarthy began by telling us that he was
probably better known by Federal
prosecutors as the "Muther" of cross-
examination and had probably lost more
cases than he had won. Nonetheless, he
shared with us the many things he had
learned from losing, and it was most
He suggested that all good lawyers are
good storytellers, and we should converse
with the wi mess , communicate with the jury,
and not bore them like prosecutors. Cross-
examination of a witness, he related, is not
an art form but is a science, and, he began
to teach us his system. This system has several
basic rules. I especially remember the Rule
Number One, rhe one you should always
began your trial with, and I have included
some of the others for you:
Rule No.1 Stand up and try to think of
something nice to say to the judge.
Rule No.2 The podium is an impediment
to communication. Don't use it!
Rule No.3 When you begin cross-
examinarion of the state's witness, do not ask
his name.
We really don't care what it is, and we don't
want the jury to remember.
Rule No.4 Cross-examine a witness, not
with a challenge, but with words such as:
"Isn't it fair to say that. .. ", or "We can agree
that. .. " or, "Tell us your version of what
happened.. .. "
Rule No.5 Ask the witness questions that
will get a "yes" response. The more "yes"
answers, the better.
Rule No.6 Always Look Good. Do not
lose your credibility in front of the jury.
The more "yes" answers, the more
credibility, the more you look good.
Rule No.7 If you want a "yes" response,
nod your head yes before, during, and after
the question.
Works every time.
Rule No. 8 Your mother was the best
cross-examiner ever, and, women are better
cross-examiners than men ... unless you send
them to law school, and then they lose it.
Rule No.9 Write on the blackboard while
you communicate. Write labels for people
like "convicted felon," "armed robber," etc.
Rule No. 10 Short statements equal
control. The length of the question
determines the length of the response.
Eliminate prefixes and suffixes, like, "Isn't
it true that .. . . "
Speak like you are in a bar and tell the
jury a story.
Rule No. 11 If the witness does nor answer
correctly, repeat the question slowly.
Rule No. 12 "Asked and answered," is not
an objection. Look it up.
Rule No. 13 When the prosecutor
continues to object, let her turn the trial into
a game of Simon Says. She loses her
credibility and does not look good.
Rule No. 14 Smile. A smiling attorney is
more trustworthy, believable and looks good.
If you missed this seminar, we are already
planning the next one. I can't reveal rhe
speaker's identity, because it is not yet
confirmed, but it should be as big, or bigger,
than this one. You can srill depend on the
Harris County Criminal Lawyers
Association to provide the least expensive
and highest quality CLE in Texas.
4 DOCKET CALL March / April 1999
Common SenseEthics
Wake up in a really bad mood? Got a full
day and you're not prepared? You get to the
courthouse only to scream and growl at
Never fear. If your past has been
admirable, then you can survive with your
reputation intact. We all have our bad days
but they are only that, provided you have a
reputation for being honest and prepared.
Judges talk about attorneys and vice versa.
We know who can and can't be taken at their
word. Here are a few simple survival tips.
Never intentionally mislead or lie to the
court. No one client is worth your bar card.
Triumph on the law and the facts. Judges
have better memories than you think!
Remembering the trLlth is much easier than
a lie or "slight" fabrication.
Be on time and aware of court policies.
Notify the court if you will be late. You do
not want to arrive to see a jury panel seated
in rhe courtroom staring at that empty chair
by your client. Get to trial and motion
settings first and be aware of the court'S
policies. Don't ever ridicule a court's policy,
especial ly to the judge.
Be organized. Know where you can
dispense with business quickly. It can save
you a lot of time and perhaps money. Don't
leave clients sitting in the courtroom for
three or four hours wondering where you
are. A waiting client with money in his
pocket may hire someone else. Clients have
lives too and probably need to return to work
so they can pay your fee!
Be courteous to court staff. They can save
you or they can kill you on both good and
bad days. You get much more from being
polite and professional than from being
demanding and trying to "bulldoze" your
way around the courtroom.
Listen to what others have to say. You'd
be surprised what you can learn from
Act professionally. As attorneys, we need
to strive to improve our reputation rather
than confirm it. Sitting in the back of a
courtroom or in the hallway sometime as an
observer can be an eye-opening experience.
Jurors are people too. Be aware of their
time and patience. They are the ones making
the decision about your client. You also
never know when there is potential business
staring you in the face.
Explain settlements, plea bargains,
conditions of probation. Take the time to
discuss all the details with clients. Have Don't ever come to court with alcohol
meetings with clients in your office rather on your breath. No maner what the time
than just in the courthouse hallway. of day!
Be honest and direct with your clients. Never use profanity. Even in a feeble
Don't feed your client a line or foster false attempt to make a point or be funny.
expectations just to get business. It will come Never say, "Judge, you can't do that!" JUSt
back to haunt you. watch 'em!!!
Don't ignore the grievance committee. While these points may seem obvious, a
Respond even if it is a totally frivolous little reminder doesn't hurt. Put a little
complaint. humor in your life and take time to relax.
Don't hesitate to ask for assistance. If It's not worth a heart attack. Besides, if you're
overwhelmed, don't be embarrassed to ask suffering from all that stress, you can't enjoy
for help. The HBA Mentor program IS all the money you're making, can you?
designed for this purpose.
StateLicense# A 7738
-CriminalandCivil Investigations
Tel: 713.426.0022
pgr: 713.761.1132
March / April 1999 DOCKET CALL 5
From the PresidentElect
D.W.I. quotas,field sobrietygymnastics
$84,823.05 in 1996. $83,567.57 in 1995,
$79.096.45 in 1994 and $83,115.84 in
My recenr jury rri al, facing rwo HPD 1993. Howcan anyone think there is not
OWlTask Force veterans, was a lesson on an inherentbiasand motiveto file marginal
why not to be on Westheimer at around OWlcaseswhen this kindofmoneyisthere
midnight with alcohol on your breath. [Q beearned byan officeron thestreet.
Despite a few obstacles, such as "poor And now for the famous "clues" on the
performance" (ordid he "fail"?) onthefield field sobrietytests. Thewayprosecutorsand
sobriety tests. ditto for the video, a fact officers portray these tests-"simpl e,"
witness confronred with a OWlarrest that "anyonecando them" and "notdifflcult"-
resulted in an acquitta l in 1997 and the is absurd. Jurors usually see through this
exclusion ofanydemonstrationofthe field proverbi al blowingofsmoke, butthey have
sobriety tests in the courtroom by anyone, [Q becontinuouslyremindedthattheymight
thejuryreturned thesought-afterrwo-word verywell lookthesameonthevideo,whether
verdict. sober, inroxicated or, most importandy,
ThetrialwasthreedaysafterFox26News somewherein berween.
hadrunastoryaboutreporterRandyWallace Thedayafter the rrial, ajurorcaJled and
discoveringanHPDOWlTaskForcequota told me I was a "damn good lawyer." I
sheet. I have included itbelowforeveryone thanked him,and he shared hisjuryservice
to see and inrerpret for themselves. The experienceandopinionwithmeforthenext
officeradmitted that he hadseen thequota twenty minutes. These verdicts, sincere
sheet (on the news only, right) butquickly gratitude from clients and calls from jurors
deniedunderoaththattheyhad any"quota. " recharge meto face theCrownanotherday.
Ihavehadmanyotherjurytrialswiththese Ob,bytheway.thejurorthatcalled me; his
officers and know their history ofmaking son is an HPDofficer. Go figure.
substa ntial overt i me money for court Lastbutnotleast.onanothersubject, my
appearances on OWl cases and traffic sincere thanks to Rosa Eliades, Editor in
citations. Therefore, IsentanOpenRecords Chief,andtheeditorialstaff forall theirlong
Request to HPD, and my suspicions were hours in recreating this magazine. Rosa is
againconfirmed. TheprimaryHPDofficer alwaysseekingarticles, newcreativemotions
on this case made $44,449.48 in overtime oropinions to publish, so call her at (71 3)
in 1998andwitha base payof$39,405. 75, 222-0610with any input.
made a gross of$83,855.23 for 1998 (not Keep up the fight : everyone become a
bad, eh?) . He made $83.791. 63 in 1997, memberandeveryoneenlista member.
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Public Information Offi ce
RE:TexasGovernmenrCode, Chapter
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OfficerW. H. Lindsey#64944
Officer R. Rudy#48479
DearPolice Department:
Pursuant[Q theTexas OpenRecordsAct,
respectfull y request the payroll records
the previous five years (1993-1998) ,on the
following rwo Housron Police Officers. if
thereareanysuch records:
1. OfficerW H. Lindsey#64944
aresubjectto disclosure underChapter552
The Mandatory provisions ofthe Texas
disclose requested publicinformation.
Section 552.221 Application For Public
Information; Production of Public
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governmental bodyshall promptlyproduce
public information for inspection,
duplication, orboth,onapplication byany
person ro theofficer
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cannot produce public information for
inspectionorduplicationwithin 10calendar
days afterthedate information is requested
undersubsection (a) theofficershall certify
that fact in writing to therequestorand set
a date and hour within a reasonable time
when the information will be availabl e for
ten days. Ifthis information will not be
call or write me pursuant to the Texas
GovernmentCode. Iwill beglad to payfor
anycopies ifany charges are necessary.
Thank you for your anticipated
6DOCKETCALL March/April 1999

Thanks, butNoThanks
Muchtodislikein theproposed revIsion
oftheTexas Constitution
The proposed revision of the Texas
Constitution, introduced in the House and
Senate as HJR 1 and SJR 1, respectively,
contains several dangerous ideas, from a
defense lawyer's poin t of view. The proposal
has received remarkably little attention, and
some press reports indicate there is little
chance of passage in this session, but this is
no time to be complacent. Things can
change in a hurry in Austin. Defense lawyers
need to be aware of what is afoot and do
what they can to oppose some of the
particularly undesirable parts of the
proposed Constitution.
The most obvious change would be the
elimination of a separate Court of Criminal
Appeals by creation of a unitary Supreme
Court with a criminal division. Judges
would be appointed and stand in "retention"
elections. Proponents might claim that
someone like Steve Mansfield would not
have attained office under this type of
system, but that also would be true of such
people as Charlie Baird and Mortis
Overstreet, who were obscure until they got
out and campaigned. There also is a risk
that on a unitary court, as on Orwell's animal
farm, some animals would be more equal
than others, with the civil side enjoying the
The bill of rights still would constitute the
first article, but look at some of the things
included in the new proposal. The provision
for denial of bail would constitutionalize a
wide range ofjustifications, including denial
of bail to a parolee accused of aggravated
assault with a deadly weapon or indecency
with a child. Considering all of the types
ofdefendants who would be subject to denial
of bail, the general provision that "all 0
prisoners shall be bailable" becomes a Swiss
cheese, with more holes than cheese.
A provision for "Commitment of Persons
of Unsound Mind" would prohibit
commitment to a mental institution "except
on competent medical or psychiatric
testimony." What about psychologists?
What about personal acquaintances of the
defendant? This provision could have a
significant impact on competency hearings
and on the insanity defense.
It gets worse, though. A "crime victim" is
given an array of constitutional rights,
including "the right to be treated ... with
respect for the victim's dignity and privacy
throughout the criminal justice process."
This could seriously impede discovery. The
"rule," i.e., Rule 613, would be undermined
by a victim's "right to be present at all public
court proceedings related to the offense,
unless the victim is to testify and the court
determines that the victim's testimony
would be materially affected if the victim
hears other testimony at the trial" (emphasis
added). In other words, the mere fact that
the victim is a necessary witness would not
be not enough for exclusion from the
courtroom while other persons testify.
Couple this with an "abuse of discretion"
standard for review, i.e., anything goes, and
it will become common for victims to sit
through the whole trial.
Are your clients indigent? If so, tough
luck, because the new Constitution would
give crime victims "the right to restitution."
Don't tell the judge your client is unable to
pay, because the judge would have to respect
the victim's constitutional right regardless of
the defendant's wealth. By the way. just who
exactly is a "victim?" The proposed
Constitution would let the Legislature "enact
laws to define the term 'victim' and to enforce
these and other rights of crime victims." If
the Legislature decided to define an
insurance company as the "victim" in a
property crime case, the trial judge would
have no choice but to enforce the right of
that "victim" to restitution. For that matter,
the Legislature could make a defendant's own
auto insurer a statutory "victim" in traffic
cases involving accidents, so the defendant
would have to pay back his own insurer.
What about the family of a sexual assault
victim? Could the Legislature designare
them as "victims" with a constitutional right
to restitution?
In the present Texas Constitution. Article
II begins with the separation of powers
provISIon. In the new version, however, the
first thing is a misnamed section on
"Limitation of Powers." It states:
The enumeration in this constitution of
specified powers and functions does not limit
the power of the government of this state,
but the government of this state has all the
power not denied to this state by this
constitution or by the constitution of the
United States (emphasis added).
Until today you probably thought that,
at least in America, powers not granted to
government belonged to the people. Since
the Legislature's usual solution to problems
is to criminalize them (with one Dallas
representative even proposing to criminalize
the act of keeping a library book too long),
the brunt of this startling grant of power to
government will fall on the criminal justice
A number of changes strengthen the
power of the Governor. A line-item veto of
appropriations would be authorized. Funds
that benefit criminal defendants, such as
more money for Article 11.071 attorneys,
would be a likely target. The Governor also
would be given the power to circumvent the
Attorney General's authority and "intervene
in any legal action in which the state is a
party." The tobacco settlement case is what
people will talk about when this is discussed,
but this proposal would open the door to
the governor intervening in any criminal
case. You can bet that, when that happens,
it would not be in cases where a governor
was trying to help the defendant. Think of
the pressure such intervention could place
on a local judge who wanted ro move up in
Finally, why do we need a new Texas
Constitution anyway? The bad rap on the
present Constitution IS that it
"constitutionalizes" too much minutiae, but
the bail denial section and the victims' rights
section of the proposed Constitution do that
too. From a defense attorney's standpoint,
it looks like the cure is at least as bad as the
Write your representative!
March / April 1999 DOCKET CALL 7
The Best ISP
Lots of folks have asked me to recommend
an Internet service provider (ISP) . There are
hundreds of ISPs serving Houston. They
vary in price, from abou t $10 per month to
over $20 per month, and in customer service.
I've opted for a provider with almost no
customer service (to me) at no cost (to me).
A Internet neophyte would be well served
paying $20 a month for an ISP with excellent
customer service. Ask your colleagues what
service they use and whether they are happy.
Last issue in this space, I discussed the
basics of the Internet e-mail and the
worldwide web (WWW) and some of the
general legal resources available on the web.
This month, I want to talk about some
specific resources, to illustrate how a criminal
defense lawyer can use the Internet to prepare
for trial.
The Medical Expert
Even the best lawyers can be a little
intimidated by the medical doctor who takes
the stand to explain, in a gently authoritative
manner, that a heinous crime was committed
and your hero was the one who did it. After
all, doctors go to school for longer than we
do and make more money than we do, so
they must be smarter and know more, right?
Having admitted that the doctor knows
more medicine than we do, we can prepare
to convince the jury that the doctor's
testimony on direct was wrong.
We recognize the following three
First, the government's doctor is most
likely not the best doctor in town. How
often does the government spring for the
best? Typically, the government's experts are
the crack whores of the medical profession.
Second, she hasn't taken much time
preparing for this inconsequential (to her)
criminal case.
Third, the odds are minuscule that she has
read more than a few medical journals since
graduating from medical school.
Use these weaknesses to your advantage,
even if you can' t afford your own experr.
Anybody who survived law school can, with
some preparation, know more about the
specific area that the medical expert will talk
aboU[ than does the expert himself. The trick
is in defining the specific area narrowly
enough. For example, in a child
pornography case, you can probably never
know more pediatrics than the governmen t's
medical experr. You may never know more
about child development or pediatric
endocrinology than him. But with a few
evenings' study you can know more about
the Tanner stages of child development than
anyone but Dr. Tanner. You probably
wouldn't care to know more about pediatric
gynecology than the government's expert in
an aggravated sexual assaulr case. But, with
a few hours work, you can be the most
knowledgeable person in the courtroom
when the discussion turns to hymenal
notches as an indicator of sexual abuse.
The body of medical knowledge is
contained in textbooks and in journal
articles. The textbooks contain the lowest
common denominator of medical
knowledge; the articles contain the state of
the art. Unfortunately for doctors
(fortunately for patients) there is no medical
equivalent of the Court of Criminal Appeals
delivering, ex cathedra, the truth. There are
published opinions (journal articles) taking
both sides of most issues, nobody to say that
one is wrong. Articles say that 90% of people
in Tanner Stage IV are under 19 and other
articles say that it is 75%. Articles also say
that hymenal notching is an indicator of
sexual abuse, and others say it is normal.
We lay our trap for the M.D. by reviewing
the textbooks and journal articles. Anything
that agrees with what the doctor will say, we
pitch. Anything that contradicts the doctor,
we copy and highlight.
We start at :
This site allows us to search MEDLINE,
an index of nine million medical journal
articles. We search for a few keywords (for
example, child sexual abuse diagnosis or
pediatrics Tanner stages); the computer gives
us a list of journal articles and allows us to
view (for free, online) summaries of many
of the articles found. Ifwe had deep pockets,
we'd order the full text. Instead, we head
down to the Texas Medical Center Library
after work and start copying the sources that
look helpful. We copy the cover of each
journal as well the text of the article. While
we're dd,wn there, we get a few pages from
the relevant textbooks, which we have
located by searching: http://ils.library.fmc.edul
This site is the online catalog for the Texas
Medical Center library. Ifwe are lucky, there
will be a textbook dealing with the specific
area of medical knowledge (for example,
diagnosis of child sexual abuse or Tanner
stages) that we are trying to learn. If we are
March / April 1999
less lucky, we will get a general ideal of how
much has been written on a broader ropic
(for example, pediarrics or pediatric
endocrinology) that might include our
......................... _
specific topic, as well as a range of accession
numbers that will help us find other helpful
Docrors screw things up sometimes. The
Texas State Board of Medical Examiners
licenses docrors and disciplines them. We
go ro:
interon.htm, for instructions ro log on ro the
TSBME computer to verify that the
government's expert is actually a licensed
doctor. We follow that up with a visit ro:
http:/ which I discussed
in my last article. PublicData will give us
access ro the TSBME's database of physician
discipline. For a small fee, we can search for
the governmenr's expert by name and
determine whether he has been disciplined
by the TSBME.
On cross, the doctor admits that our
sources are reliable authorities on the subject
of medicine, and that he relies on these
authorities to keep his medical knowledge
up ro date. Then, under the authority of
Rule 803(18) of the Texas Rule of Evidence,
we have the docror read the highlighted
portions of our reliable authorities ro the
)u ry.
' 11--
I I ~
~ - - - - . - - . - .
Of necessity, I've omitted some of the
technical detail of the medical-expert cross.
I haven't perfected it, but I wouldn't want
the government to be able to hand its doctor
a copy of this article and say: "Here, this what
Bennett is going to try," If you'd like ro
discuss the mechanics of the cross, you can
email meat:
3700N. MainHouston,Texas77009
Tel: 713.802.0101 Fax: 713.236.8801
March / April 1999 DOCKET CALL 9
Neuropsychology,Brain IniuryandViolence
Q: "Now, you're not a medical doctor,
are you?"
A: "No, but I'm the kind of doctor that
medical doctors go to for help in answering
questions about brain function."
Neuropsychologists are increasingly being
asked by judges and attorneys to provide
expert consultation to the courtS in civil and
criminal cases. While I have not yet had the
nerve to give the above answer in coun, the
fantasy remains. This article will outline what
a neuropsychologist is and how one can assist
you in preparing a defense. In addition, I
will describe some relationships between
brain dysfunction and violent crime.
What is neuropsychology?
Neuropsychology is a specialty branch of
psychology devoted to the study of the
relationship between the brain and behavior.
The brain is the organ of behavior. Damage
to this organ by injury or disease can result
in cognitive, intellectual, behavioral and
emotional changes. Thus, clinical neuro-
psychology is an applied science concerned
with the behavioral expression of brain
When can a neuropsychologi st be
In criminal cases, neuropsychologists are
often asked to provide expert opinions
regarding competence to stand trial, criminal
responsibility, insanity and mitigating
factors. Most commonly, neuropsychologists
are asked to evaluate defen(;iams to determine
presence, location and severity of brain
damage, describe impaired functions and
short- and long-term practical consequences
and distinguish between psychiatric and
neuropsychological problems.
A competency evaluation determines the
defendant's view of his situation. Intellectual
deficiencies and capabilities, personality
factors and specific measures, such as the
Competency Screening Test, assist the
psychologist in forming opinions.
Criminal responsibility (mens rea) or the
determination of "moral blameworthiness"
involves the state of mind of the defendant,
including intent and malice, that is required
for conviction ofparticular criminal offenses.
If assessment reveals diminished awareness
or cognition that an act is illegal, forbidden
or subject to society's judgment or
punishment, then there may exist grounds
for a plea of not guilty by reason of insani ty.
Behavioral observations of others around the
time of the crime are most helpful in
retrospectively evaluating mental status.
Neuropsychologists are most likely to be
involved in criminal cases, in which brain
damage or limited intellectual functioning
is proposed to have affected control of
impulses, formation of intent, appreciation
of right from wrong and the consequences
of behavior and the ability to conform
conduct to the requirements oflaw. The use
of brain damage or psychological factors as
mitigating evidence is most likely in serious
crimes in which the defendant has confessed
or is strongly implicated (Faust, et al., 1991).
What types of cases are appropriate for
neuropsychology evaluation?
Neuropsychologists are helpful with many
neurological and psychiatric disorders and
syndromes, such as chronic pain,
posttraumatic stress disorder, dementias,
stroke, toxic exposure and seizure disorders.
The most commonly suspected neurological
disorder, however, is brain injury due to
trauma. Annually, 108,000 Texans sustain a
traumatic brain injury (TBl). Suspected
neuropsychological deficits are usually
detected in a client's history or behavior. In
interviewing clients or reviewing records, the
defense attorney should look for evidence
of any loss of consciousness or head trauma
from motor vehicle accidents, falls, fights,
work accidents, childhood abuse or sports-
related injuries. Ask clients, or th eir
significant others, about difficulties in
attention, concentration and memory, or
changes in personality or behavior, such as
increased irritability, anxiety or impulsivity.
Inquire about physical problems, such as
headache or motor and sensory difficulties.
Note slowness in answering or difficulty in
searching for words. Any of these may be
indicative of a traumatic brain injury.
Why use a neuropsychologist rather than
a neurologist?
Neurologists typically assess brain
Structure and physical complaints. Medical
doctors use the physical or neurological exam
and medical instruments (CT, MRI, etc.) to
detect brain damage and estimate the effects
or dysfunction. They are mostly concerned
with lower brain functions, such as reflexes,
sensations and balance, that are mediated by
the brain stem, midbrain and cranial nerves.
Medical tests are not good for determining
the consequences of brain damage and have
poor sensitivity and specificity for detecting
mild brain damage.
Neuropsychologists assess brain functions
and cognitive and behavioral changes. They
look at higher brain functions that are
mediated by the cerebral cortex.
Neuropsychologists examine dysfunction
directly through testing and then infer brain
damage. Neuropsychological tests have
better sensitivity and specificity for detecting
What can a neuropsychologist tell me?
The neuropsychological report formulates
a comprehensive history based on interview,
available records and corroborating sources
to provide an integrated picture ofcognitive,
emotional and behavioral problems. Direct
behavioral observations and mental status
exam results are described.
Tests are administered as a systematic
method for getting samples of behavior. Use
ofstandardized procedures reduces observer
bias and makes results objective and
reproducible. Individual results are then
compared with large normative samples and
with estimates of the client's premorbid
performance. A battery of tests is used to
assess various domains such as attention,
memory, intelligence, academic achieve-
ment , visuospatial skills, language, motor
abili ties, executive functioning, personali ty
and malingering. Juries find objective data
more acceptable than poorly supported
The neuropsychological report should be
balanced and avoid presenting a lopsided
argument or filtering out certain
information. Alternative hypotheses for test
results should be considered, and particular
10 DOCKET CALL March / April 1999
a((ention shou ld be paid ro the assessment
of malingering or purposeful faking or
exaggeration ofsymproms. Such "impression
management" may be a legitimate goal of a
client in order ro avoid the death penalty or
a lengthy prison term. The competent
neuropsychologist will use several rools and
techniques for detecting "fake bad" effortS,
such as carefully evaluating inconsistencies,
outrageous symptoms, common validity
indicarors and results of specialized testing
for malingering.
How does violence relate to brain injury?
Raine (1993) has provided a useful
summary of neuropsychological (and other)
theories of violence and crime. One link
between dysfunction in certain areas of the
brain and antisocial behavior comes from
studying normal individuals who have had
focal brain injuries.
The most famous case is that of Phineas
Gage, a dynamite worker in the mid-1800's
who survived an iron rod being blown
through his skull, entering at the lower cheek
and exiting through the upper forehead.
Previously described as a reliable and capable
foreman, he underwent dramatic personality
changes. He became impulsive, profane and
antisocial. Damage to specific areas of his
brain was responsible for the changes.
Disruption of these areas within the frontal
lobes, which have inhibirory control over the
expression oflower brain functions or animal
propensities, resulted in aggressive and
inappropriate behaviors.
Damage ro structures within the temporal
lobes may also be implicated in violent
behaviors. Charles Whitman, who killed
many people from his perch on the
University ofTexas rower, was found to have
a tumor deep within the temporal lobe.
Episodic dyscontrol may be linked to lesions
in these temporal structures.
Severing of pathways that are responsible
for inhibiting aggressive impulses may result
in behavioral expression of violence. The
areas most susceptible ro damage from any
closed head or diffuse brain injury are at the
base of the frontal lobes and lie on top of
the roughest portions of the inner skull.
Disturbance of these pathways can also lead
ro neurochemical imbalances. A review of
research on the neurochemistry of violence
(Raine, 1993, p. 101) noted, for example,
that the neurotransmitter serotonin is
reduced in antisocials, particularly those with
a history of alcohol abuse and violence.
Murderers have also been found to have
relatively less activation (lower glucose
uptake) in medial and lateral frontal cortex
and, thus, more disinhibition of aggressive
In an investigation by Lewis and coUeagues
in 1986 (Raine, 1993, p. 193), 15 of 15
death row inmates interviewed were found
to have a history of severe brain injury, with
an average of three injuries each. Their
neurological histories had been ignored and
none had a neuropsychological evaluation.
Two different studies found that 52% and
61 % of wife batterers had a history of brain
injury. In another study a prospective
evaluation of 32 juvenile offenders was
conducted, eight of whom were later
convicted of murder. Those who murdered
had a much higher incidence of neurological
impairment (6 of 8) and physical abuse (7
of 8) than the nonmurderers.
Brain injuries cause deficits in cognition,
social skills, self-esteem, problem solving,
R H Y M E S & WI L L I A M S, L. L. P.
Practicing in these areas:
Business and consumer litigation
Employer-employee relations
Forming and maintaining business entities
Consumer bankruptcy
As a former criminal courts reporter for The Houston Post,
Mr. Williams understands your practice is complex and specialized.
Consider him for clients whose problems lie outside your expertise.
Referral fees available
(713) 840-7321 Fax (713) 840-0552 e-mail:
March / April 1999
academic achievement and occupational
potential which predispose individuals to
crime and violence. Brain injuries also cause
increased sensitivity to the effects ofalcohol,
which leads to more irresponsible behavior
and is closely linked to crime. Even a mild
head injury, often called post-concussion
syndrome, commonly causes headache,
irritability and decreased concentration,
which may predispose individuals to lose
their tempers. In addition to trauma to the
adult, consider the cumulative effects of
childhood abuse. In infants 95% of serious
brain injuries are due to physical abuse, often
termed the "shaken baby syndtome."
Violence, therefore, is highly related to
traumatic brain injuty. Obviously, there are
a number of other pathways. Social
problems, personality factors and
psychological disorders can result in criminal
and violent behavior. Also, brain injuty does
not result in violence or crime in all cases.
Because such inj ury diminishes coping skills,
self-restraint and social comprehension and
judgment, it may predispose to violence
those who already have other risk factors.
Two brief articles in the Houston Chronicle
on February 20, 1999, illustrate this. An
inmate in Ohio was executed at his own
request despite a history of suicide attempts
since age nine and a brain injury suffered in
a prison riot. A man in Florida was sentenced
to life in prison for a murder committed at
age 16 though his lawyer argued he had brain
damage from a premature birth and a near-
drowning as a toddler. A few years ago, a
retarded, brain-damaged man was executed
in Arkansas after consuming his requested
last meal. He had reportedly saved his pecan
pie so that he could eat it later. Should such
a deficit in cognition have affected his
Are you telling us that you, who are not
a medical doctor, can diagnose brain
The neuropsychologist wiJi need to be
qualified by the court as an expert based on
knowledge, skill, experience, training or
education. In all appellate cases, that resulted
in rulings on admissibility (11 states),
neuropsychologists were found qualified to
testifY as to the presence and cause of brain
dysfunction and future problems.
A survey of neuropsychologists (Adams &
Rankin, 1996, p. 455) found that 22% of
those in private practice received civil case
referrals but only 3.5% received referrals
involving criminal cases. Most neuro-
psychologists choose not to participate in the
adversarial process. Those that make the best
witnesses are clear as to their role as educator,
not advocate. The testifYing expert also will
interpret "reasonable degree of certainty"
with a far higher standard of confidence than
the 51 % that the law allows.
What about testifying as to future
dangerousness in death penalty cases?
Despite psychological and psychiatric
associations repeatedly advising the courts
that no professionals have demonstrated an
ability to predict future violence or
dangerousness, the death sentence continues
to be imposed by unanimous juries. That is,
juries often conclude that "there is a
probability that the defendant would
commit criminal acts ofviolence that would
constitute a continuing threat to society."
Experts can always be found to support a
position. One psychiatrist in Texas testified
so often that defendants would continue to
pose a danger to society unless executed that
he became known as "Dr. Death." In at least
one case, this expert witness was absolutely
certain as to future dangerousness although
he had never examined the defendant. Jurors
faced with the difficult moral task ofdeciding
whether the defendant should be executed
may be eager to displace some of that burden.
Providing them with an expert's opinion may
ease this process.
The general public tends to link mental
disturbance to violence and dangerousness.
However, psychological disorders and brain
dysfunction do not necessarily result in
violent acts. While mental health
professionals have poor reliability in making
long-term predictions, they can often
provide information to aid the assessment
of short-term dangerousness. They can
identifY for the court violence-related factors
that influence behavior, such as age, sex, use
of intoxicating substances, family and social
backgrounds, availability of weapons,
presence of mental illness or brain
dysfunction and personal coping resources.
What research is available suggests that
false-positive errors (calling someone
dangerous who does not subsequently
engage in violent acts) are more likely in
predicting violence among poor minority
defendants. To quote one inmate's view of
this, "If you don't have capital, you're sure
gonna get some punishment."
Except in rare cases, persons are not
constantly or reliably dangerous. Unlike
personality traits or intelligence, violent
behavior is not just a function of the
individual but of the interaction of the
individual with a changing environment. In
many cases medication appropriate to a
mental disorder, restrictions from
intoxicating substances or a highly structured
social environment may aid the person in
controlling disturbing or aggressive be-
Recent work by Quinsey and colleagues
(1998) holds some promise in using actuarial
methods for predicting violent recidivism of
both mentally disordered offenders and
criminal inmates. Such empirical research
will eventually replace our intuitive
approaches to assessing and managing the
risk ofviolence. Rational risk assessment will
some day help society make policies, laws
and dispositional decisions that are driven
less by ideology and more by a scientifically
informed and effective approach.
How do I evaluate the neuropsychologist?
A good neuropsychologist should ask you
to describe the facts and your formulation
of the case, ask for discovery deadlines,
review the time and fees involved and ask
what records and corroborating sources can
be provided. He or she should be willing to
consult, educate and testifY. Experience and
expertise in treating or following cases with
neuropsychological dysfunction is preferred.
Following review of the records or an
examination of the client, the neuro-
psychologist should give feedback as to
findings, offer to write a report and provide
consultation prior to trial.
It is easier for the attorney to judge
credentials than reports, and lack of
credentials is one of the main reasons for
impeachment of the expert. (The others are
the amount of time spent with the client,
the validity of the diagnosis and issues related
to the Diagnostic and Statistical Manual of
Mental Disorders.)
The competent neuropsychologist has
successfully completed systematic didactic
and experimental training in neuro-
psychology and neuroscience. There is no
specific prohibition against those without
12 DOCKET CALL March / April 1999
appropriate training from marketing
themselvesas neuropsychologists,otherthan
the ethical code that proscribes practicing
beyondone'sboundariesof competence.An
internshiprotation, professionalexperience
orcontinuingeducationworkshopsare not
acceptable methods for acquiring core
knowledge or skills to practice clinical
neuropsychologyor to identifyoneselfas a
clinical neuropsychologist,accordingtoour
professional organizations. While there are
not board certified, arrainment of the
AmericanBoardof Professional Psychology's
DiplomainClinicalNeuro-psychologyis the
Neuropsychological evaluations are in-
creasinglyimportantin forensiccaseswhere
suspected brain dysfunction is an issue. If
evaluations are conducted in a fair and
information to reach conclusions, then the
legal system will increasingly respect our
value in thecourtroom.
Adams, R. L. and Rankin, E.]. (1996).
"A Practical Guide to Forensic Neuro-
R. L.Adams,O.A.Parsons,].L.Culberrson,
& S.]. Nixon (Eds.), Neuropsychologyfor
TonyaL. Sampson
Attorneyand Mediator
ClearYourDocket! Mediate!
Family, PersonalInjury, CivilLitigation
SpanishLanguage, Small& LargeDisputes
Litigation, ReducedFeeand Spanish
Clinical Practice. Washington, D.C.:
American Psychological Association.
Faust, D., Ziskin, j.,and Hiers,]. B., Jr.
(1991). Brain Damage Claims: Coping
withNeuropsychological Evidence.Volume
1. LosAngeles: Law andPsychologyPress.
Quinsey,V. L., Harris, G.T., Rice,M.E.,
and Cormier, C. A. (1998). Violent
Offenders: Appraising and Managing risk.
Washington, D.C. :AmericanPsychological
Raine, A. (1993). The Psychopathology
ofCrime: Criminal Behavior as a Clinical
Disorder. San Diego: AcademicPress.
Dr. Yohman is in independent practice in
Houston. He completed doctoral training in
both clinical psychology and neuro-psychology
and is a Diplomate In Clinical
Neuropsychology. He previously presented on
this topic to the Harris County Capitallvfurder
Certification Seminar.
j. Robert Yohman, Ph.D., ABPP, 11914
Astoria Blvd. , Suite 490, Houston, Texas
77089-6049 2811484-9973
P.O. BOX 64120
-Eighteenyearsas I.R.S. RevenueOfficer(CollectionOfficer)
-Twoyearsas I.R.S. RevenueOfficer/SettlementOfficer
-FiveyearsasI.R.S.DistrictCounsel Attorney
-Trustfund recovery penaltyassessments (100%penalties)
-I.R.S. collectionprocedures
ExpertwitnessonI.R.S. collectionmatters
March/April 1999 DOCKETCALL 13
As promised, Docket Call continues its
quest this month to educate practitioners on
the various backgrounds, practices and pet
peeves ofour newest Harris County criminal
judges. This issue profiles Hon . Mike
Anderson of the 262nd District Court and
Hon. Pam Derbyshire of County Criminal
Court at Law No.7.
A former career prosecutor, Hon. Mike
Anderson is now Judge of the 262nd District
Court. He succeeds Judge Doug Shaver.
Judge Anderson was raised on the city's
southeast side and attended Pearland High
School. In 1978, he graduated from Texas
Lutheran College with a bachelor's degree
in Communications. Judge Anderson
earned his law degree from South Texas
College of Law 1982. The Harris County
District Attorney's Office hired Anderson as
a "pre-commit" intern and he worked there
until his recent election to the bench.
Judge Anderson's prosecutor resume reads
like a "who's who" for high profile cases.
Throughout various District Anorney
assignments, which included stints in the
Special Crimes/Major Offenders Division
and the Special Crimes/Organized Crime
Division, Judge Anderson successfully
handled cases involving the notorious
"Meyerland Kick-Burglars, " the "Montrose
Vampires," the "Galleria and Memorial Park
Rapists," the "Cheerleader Mom" and
accused Asian gang leader, "Tony Playboy."
Judge Anderson also played a significant role
in developing the District Attorney's Gang
Prosecution Unit, and he assisted in the
development of a juvenile offender database,
which has since become known as the
"GRITS" system.
As Judge of the 262nd District Court,
Judge Anderson has tinkered little with the
efficient system of his predecessor. The
Court still has the same standard discovery
order with only a few, minor modifications.
To trigger the Judge's signing of the motion,
defense attorneys should first file their own
discovery motion and if a requested item is
not covered by the standard order, the Court
will conduct a brief hearing on that issue if
necessary. Most other motions will be carried
with trial unless dispositive.
For pleas, Judge Anderson seems
particularly willing to consider deferred
adjudication for first-time offenders. The rwo
reasons he cites for this are that an accused
must enter into a "contract" when agreeing
to a pl ea, and the accused has a "chance to
succeed and not have a felony conviction on
their record." "Contract," of course, refers
not only to the accused's obligations under
community supervision, but the Court'S
access to (and perhaps a willingness to assess?)
the full range of punishment if the contract
is not adhered to.
''I'm a strong believer in boot camp," says
Judge Anderson, when asked about his views
on punishment other than penitentiary time.
"Right now, it seems to be working better
than anything else. " He adds, "While some
people are just bad people, a lot of others
have placed themselves in difficult
circumstances through bad decisions. When
it comes to probation, I believe a person
should come out of it better than how they've
gone in."
In an effort to reward probationers who
do succeed, Judge Anderson and his Court
Liason Officer, James Rich, are working on
a "letter of recognition" for probationers who
complete their obligations. Judge Anderson
believes that people should be rewarded for
"keeping their word" with the Court.
For cases that make it to trial , practitioners
can expect roughly thirty minutes per side
for voir dire. This is just a ballpark estimate,
according to Judge Anderson, since many
felony cases present complicated issues. "No
rule should cause a damn fool result," says
Anderson. He can remember many of his
own trial cases, in which a limited voir dire
proved wholly inadequate for either side.
As for court appointments, the 262nd
District Court is not a "closed shop." Judge
Anderson appoints attorneys on an ad hoc
basis. While a handful of defense attOrneys
seem to be regulars , Anderson suggests that
interested attorneys contact Coordinator
Chuck Spinks if they would like more
information. Many will recognize Chuck
(and his sense of humor) from his previous
assignment in the 248th District Court.
When asked of his pet peeves, Judge
Anderson speaks oflawyers who come in late
or unprepared. As a courtesy, he asks that
you caU the Court if you're running late, have
a conflict or otherwise cannot attend at or
near the 9:00 a.m. docket.
Finally, Judge Anderson stresses the
importance of proper decorum and warns
that people shouldn't eat, drink or read a
newspaper in his courtroom. In another
folksy offering that has become his trademark
over the years, he adds, "if people see jugglers
and clowns in the courtroom, they're
naturally going to conclude it's a circus."
Hon. Pam Derbyshire (pronounced Dar-
bah-shire) is Judge of Harris County
Criminal Court at Law No.7. She succeeds
Judge Shelly Hancock.
Born in Detroit and raised in Miami,
Judge Derbyshire graduated from the
University of South Florida in 1979. She
earned her law degree from South Texas
College of Law in 1982.
Judge Derbyshire began her legal career
with the Harris County District Attorney's
Office in 1983. Appropriately enough, her
first trial-court assignment was as a
prosecutor in County Criminal Court at Law
No. 7. During her seven- yes, there's that
number again-year stint with the DA's
Office, Judge Derbyshire circulated through
the misdemeanor and felony courtS, serving
most notably as chiefof the 180th and 178th
District Courts.
In 1990, Judge Derbyshire joined the
United States Attorney's office as a federal
prosecutor, but she eventually left and hung
out her own shingle. She practiced as a solo
defense attorney until being elected to the
bench in 1998.
As Judge of Court No. 7, Derbyshire
stresses courtesy and professionalism in
conducting courtroom business.
Practitioners will seldom (if ever) find
themselves on the receiving end of an icy
stare or a harsh exchange from either the
bench or the courtroom staff.
Speaking ofstaff, none is more courteous
and approachable than Judge Derbyshire's
14 DOCKET CALL March / April 1999
new coordinaror, Mario Salazar, Jr. Salazar
succeeds Judge Hancock' s longtime
coordinator Barbara Nedd, who recently
opted for retirement. Salazar, too, is a
longtime Harris County employee, having
served fifteen years with the Department of
Community Supervision and Corrections.
For those interested In court
appointments, the best place to start is by
contacting Coordinator Salazar. Judge
Derbyshire presently selects two atrorneys of
the week one English-speaking and one
Spanish-speaking- for three weeks out of
every month. During the remaining week
the Court appoints different atrorneys each
day. Additionally, the Court wiJl appoint
extra attorneys on crowded docket days (e.g.,
Mondays) on an as needed basis.
Practitioners who file pretrial motions
should know that Court No.7 does not have
a standard discovery order, and the Court
expects opposing counsel to agree on as
much as possible before approaching the
bench. Unless dispositive, most motions will
be carried with trial.
For trial cases, practitioners can usually
expect thirty minutes per side for voir dire,
but Judge Derbyshire says she will often
entertain a request for additional time if
supported by "good reason. " If a defendant
has elected punishment before the Court, a
defense attorney might do well ro illustrate
his or her client's ties to the community,
employment hisrory and other personal
information. Judge Derbyshire suggests that
letters and/or testimony from employers and
other character witnesses might be helpful.
When asked about her pet peeves, Judge
Derbyshire presses her hands ro the sides of
her temples and exclaims, "no ringing cell
phones in rhe courtroom!" She notes that
an unfortunate defendant's cellular phone
rang during a recent trial, but she elected
not to confiscate the phone from the red-
faced lawyer or his client.
Judge Derbyshire is aware of the large
shoes she has ro fill in Court No. 7. "Judge
Hancock served on the bench for many years
and had a reputation for working well with
both sides of the bar," she emphasizes. "My
goal is to try ro do the same."
First, she has ro do something about those
annoying cell phones.
Robert E. Kahn. P.C.
Deportation Defense
4545Bissonnet, Suite270
March / April 1999 DOCKET CALL 15
A 12-StepProgramtoCureYou ofWritFear
The following is offered as a simple way
to organize your work when you are doing
an application for a habeas writ under Article
11.07 of the Texas Code of Criminal
Procedure. It is not intended as a legal
reference, nor as an instructional guide.
However, on the "Keep it simple, stupid"
theory, I believe that this could be a useful
system, particularly to those who do not
typically do habeas writs and who may be
asked to write one for a client. Good luck!
Step 1
Don't panic! The writ of habeas corpus is
essentially a way to anack the fundamental
fairness ofa person's conviction and restraint
ofliberty. It is an ancient remedy, and Article
11.07 (and 11.071) of the Texas Code of
Criminal Procedure tells you much that you
need to know about how to bring it inTexas
state court.
Step 2
Read the statute. I know this sounds silly,
. however, the statute contains a lot of useful
things that can help you organize your
thoughts and your legal research.
Step 3
Interview the client. This is not a standard
pretrial interview. You are not trying to
gauge a defense at this point. You are instead
trying to figure out which of the
constitutional grounds available [Q a habeas
petitioner you can use. The grounds you
will encounter most often are incompetence,
insanity, ineffective assistance of counsel, 5th
and 6th Amendment violations and
occasionally cruel and unusual punishment
under the 8th Amendment.
Your job in doing a habeas is to
reinvestigate the case and find out if there
were grounds under the U.S. or Texas
Constitution (and applicable statutes) that
would make your client's confinement illegal.
To that end, you have to go back and
investigate the client's medical history, service
records, school and disciplinary records, the
trial record and the at[Qrneys on appeal and
at trial. If the client has prior prison time,
talk with jailers, schoolteachers and family
members and possibly obtain the services of
a mental health professional and/or an
investigator. You are not looking to come
up with something to convince a jury.
Instead you are trying to convince the trial
court and the Court of Criminal Appeals that
your client was wrongly confined by telling
them something they did not know.
Step 4
Get the client to sign releases for his entire
life. This includes: releases and letters
indicating that the trial and appellate
anorneys have [Q cooperate with you and
turn over their files; releases for school
records, service records, prison disciplinary
and medical records, menta'! health records,
work records, etc. In a habeas, you must
develop facts that were not put in at trial.
Many times, the only way [Q establish these
facts is by gening releases from the client and
filing requests for information under either
the Open Records Act or the Freedom of
Information Act.
These records are crucial to developing
claims such as incompetence or insanity. In
one case I worked on, we were able [Q obtain
medical records from our client's time in the
Marines indicating he suffered a traumatic
brain injury during bayonet and punjee-stick
practice. This never would have come [Q
light without the releases and the records
Step 5
Obtain the record and read it. Everything
in the trial record, including pretrial senings,
docket sheets, post trial hearings and
motions and the appellate brief, is important.
You are going to have [Q look at new areas
and read berween the lines [Q figure out what
facts may not have been developed at the
trial that you can develop now.
You may need to talk with the jurors,
particularly if you are faced with a client who
was unusually unpopular or has a history of
illness. Jurors can also help you if there is
any indicarion, from juror notes, the polling
or any side bar that was recorded, that there
were some irregularities in the jury, in either
the jury selection or the jury deliberations.
If it is a recent case, you may need [Q file a
motion to unseal the jury information
Step 6
Establish a relationship with the trial
anorney and the appellate anorney. You do
not always have a claim of ineffective
assistance of counsel. Approaching the trial
attorney and the appellate attorney in a frank
and courteous manner and asking their
opinions about the case can go a long way
[Qwards diffusing hostility.
Most defense anorneys have no desire [Q
injure their client or do anything other then
be helpful. They will want [Q help the
defendant, but not ifit means they are going
to be anacked without grounds or have their
professional repuation smeared. Their
cooperation and perceptions and access [Q
their files are critical to you being able [Q
create an effective application for habeas
relief. As Grandma says, "You get more Aies
with honey than you do with vinegar."
Step 7
Make an investigation plan. After reading
the record, talking with the client, getting
the releases and talking with the at[Qrneys,
you should have a picture of the whole case,
not just the trial.
You should now begin to ask yourself
questions, such as: "Was my client really in
his right mind before or during the trial?
Was there someone else involved in this case
who was never charged or never appeared?
Was there a witness whose testimony was
untruthful? Is there some indication that a
juror or jurors may have come to their
decision improperly? Is there some evidence
out there that would establish that my client
is actually innocent of the charge? Am I
sensing that there was some prosecutor
misconduct in this case?" Once these issues
start popping up in your mind, you need [Q
figure out how [Q prove them. This is the
fun part of habeas work. Habeas is a
combination of good detective work and
legal briefing skill.
You have [Q figure out how to go about
presenti ng evidence to the court in the form
of records, affidavits, sworn statements or
any other way you can to convince the court
that you are entitled [Q relief. As an example:
if you believe that there is a mental health
issue (a not infrequent occurrence with our
clients) that was not raised at trial, or not
developed sufficiently, then you should
consider additional releases and requests for
records in order [Q provide as much medical
documentation as possible. Then you should
get the assistance of a mental health expert
[Q evaluate your client and the records and
then reduce his conclusions and results of
his examinations, [Q an affidavit that can be
anached to your application for habeas relief.
If your application results in an evidentiary
hearing, then that mental health expert's
testimony and the ability to introduce
records in as evidence may be key.
16 DOCKET CALL March / April 1999
With a good investigation plan, all of this
goes much more smoothly and gives you an
outline to focus on.
Step 8
Put down on paper what grounds you are
claiming. This is a very effective way to test
yourself and see if you can actually prove
what you are claiming. Under each claim of
relief, outline what types of proof you have
to back it up. Remember the line from the
movie, "A Few Good Men": "It doesn't
matter what I believe-it matters what I can
prove. "
The burden is on you to establish that your
client's restraint of liberty is unfair and
unconstitutional. You have to show the
courts that he is incompetent, you can not
simply raise it as a potential defense. You have
the burden. If you are raising insanity, your
claim must rise to the level of insanity .... You
get the picture. This leads me to my next
Step 9
Get affidavits from the people involved
in this trial. This includes the trial attorneys
and the appellate attorneys. Lets be clear on
this- one of the principal reasons that
ineffective assistance claims fail is that the
moving party doesn't get any affidavit from
the person who was supposed to have been
ineffective or from a person who knew what
they did. As soon as a writ application raises
a claim of ineffectiveness that is unsupported
by the trial or appellate counsel's affidavits,
the District Attorney's office takes those
lawyers into its warm embrace and shows
them how to defeat the evil client and bad
writ attorney, who are attempting to
besmirch their professional reputations.
(Author's note: The other thing you have r-o
consider when raising a claim of
ineffectiveness is that there are some issues
that you are simply not going to be able to
present, except by saying that it was
ineffective for either the trial counsel or rhe
appellate counsel to fail to raise it. The point
is that you cannot look at ineffectiveness as
an attack on a lawyer, you have to look at it
as a check on a system where people are held
Let me suggest a different tack to take:
Why not try and get the prior attorneys
on your side and get their affidavits first?)
Step 10
Pay attention to the time lines of the Anti-
terrorism and Effective Death Penalty Act
of 1996. This is a federal act that limits
federal review of state and federal
convictions. After direct appeal, the general
consensus is that you have a one-year time
limit to bring a state habeas action in order
to toll the statutory limit. The time line is
generally considered to be either the time
that the Supreme Court of the United States
refuses a petition for writ of certiorari, or
the 90 days following the mandate of
affirmance from the Court of Criminal
Appeals during which you can bring a
petition for Writ of Certiorari . This time
line is a signifICant hurdle, and if your client
has any hope of preserving a claim for federal
review under 28 USC Section 2254, you
must bring that action within the one-year
time limit.
Step 11
File the Application. Make sure the
application [or petition] is verified. This
should be done by the client, but it can
occasionally be done by someone else,
provided he has personal knowledge. You
must get him or her to sign and swear that
all the allegations contained therein are true.
Failure to verify the application could result
in a dismissal of your claim. Also, make sure
that you attach copies of the judgment and
sentence, because under Article 11.07, there
must be some evidence of a restraint order
or an order of confinement that fulfills the
requirement of a legal restraint.
After filing the application in the trial
court in which the restraint took place, the
state will respond. Then, request either
discovery or an evidentiary hearing and
designate the fact issues that call for it,
though often the state will do this itself.
If a hearing or discovery is granted, you
must prepare and try to prove your case.
Think about this carefully and plan just as
carefully. You will not likely get a second
After the hearing, submit a proposed set
of findings of fact and conclusions of law to
the court, requesting that it make
independent findings and conclusions and
not simply adopt the state's version. Make
sure that the court reporter takes down
Step 12
Don't rhink your job is done yet. After
you get either a recommendation of relief or
denial, the final decision is still with the
Court of Criminal Appeals. Don't forget that
at this stage you still have options. You can
ask for oral argument, submit briefs to point
out why you believe the trial court is wrong
or request consideration and provide
alternatives, including your own proposed
findings of fact and conclusions oflaw. Make
sure you object to any proposed findings that
the court adopts if it goes against you.
Final thoughts
Don't forget to ask for help. Some of the
best habeas practitioners in the state are
located in and around Harris County, and
they have generally always been willing to
answer questions or help new people get into
this area or do a writ. If you cannot find
someone local who has done them and can
advise you then try and get hold of the
TCDLA or your local bar association for a
referral. Keep asking until you find a person
who can assist you. Two heads are always
better than one, and two sets of eyes never
hurt either.
Good luck! I hope you find this useful.
Postconvict ion habeas writs are challenging
and can be a lot of fun . You get to play
detective, appellate attorney and trial lawyer.
Combining these skills will give you a new
appreciation of how to avoid problems in
your own practice.
Patrick McCann can be reached at
(713) 223-38053700 N. Main, Houston,
Texas 77009.
c. R. Markham & Associates
PrlvllU Investigations
StllN u.:... C8111
1807 West 34th Strut, Suite C
HOIUtoIl, T... 7';018
J'liCe:(711) 88
I'tIX: (713)"NJJ-WlH
Court Cae.

CrIminal I ns

CIvI. Investl s

Accident Inv ons

MI sing

Auet Lo


Proce.. Service


Personal Protection


March / April 1999
WillGray- Thebrilliantenigma
This month we lost a brilliant legal mind
that reveled in bucking the establishment.
Whether it was a judge, lawyer, a law,
business owner or client, Will Gray did not
discriminate when he thought he was righr.
He let 'em have ir.
Will was my mentor and my friend. For
the bener part of 15 years, he influenced how
I looked at the law and those who enforced
ir. Few people knew Will as an insurance
adjuster. It was one of many jobs that drew
him to law school, at night, at South Texas
College ofLaw. He was a contemporary with
many of the lawyers who Struggled with day
jobs while chasing a law license.
The natural niche for Will would have
been in civil litigation. He'd setded many
sore back cases than most, but for him, that
practice was a no-brainer. Unfortunately for
the civil bar, the no-brainer aspect did litde
to make Will's juices flow. Will turned to
criminal law looking for the ultimate
challenge: defending the most hated of
Will became a criminal lawyer, and an
appellate lawyer, by choice. He sought a
practice that examined the basest of motives
for human behavior and tested those motives
against the legislative mandates that sought
to stop them. Punishment, deterrence and
retribution affected Will little. His goals
were to demand proof, strict adherence to
the rules and due process. Will never tried
to convince anyone that his clients were
righteous. More often than not, his
complaint was about the process and the
people enforcing the law-more often than
not, his defense was "to make them prove
Will was involved in some of the most
complex criminal trials and appellate cases,
among them, the trice-tried, arrempted
prison escape from Huntsville. By the time
of the third trial , his client was becoming
fluent in English and had become an
accomplished artist, with supplies that Will
provided. He was a different person from
the man involved in the escape some 15 years
earlier. Of course, there was no way to win
that case at trial--only on appeal. Each time,
Will managed to get the case returned to the
trial court and the ever-patient face of the
late Judge Miron Love.
In the mid-1970s, when the death penalry
was reinstated in the United States and the
then new penal code providing for capital
punishment was tested, Will Gray entered
that fray.
It was not so much that he opposed capital
punishmenr. It was not that he particularly
liked any of the clien ts. Wi th few exceptions,
most were incorrigible and a danger to
sociery if ever released from prison. It was
because no one wanted to handle thecases
that he stepped forward .
It was unthinkabl e to Will that Texas
would execute a person without a lawyer-
and death penalry lawyers didn't get paid.
For that reason alone, Will took on case after
case of the condemned and stood by them,
requiring the state to make its proof before
taking another life.
Even in the darkest hours, Will found the
strength to stand with those about to die.
The most hated man on death row, "The
Candy Man," had one witness ro his
execution-WiH Gray.
Will was an accomplished cook. He wore
custom-made suits, shirts, ties and expensive
shoes and drove a Mercedes Benz, even when
he couldn't afford ir. For a time, he worked
in a converted school house in Sealy, until it
was destroyed by a fire, and he shared offices
with more lawyers than anyone can
remember. He became a computer nerd
when personal computers first became
available. He bought the latest models,
constantly looking for a system or program
that worked as fast as he thoughr. He was a
gardener, a lover of classical music, a shopper
and a loyal friend.
Will died in pain and largely alone, except
for his sisters who lived next door to the
nursing home where he spent his last days.
He touched the lives of many lawyers. He
rarely refused a call to help on any case,
regardless of whether he was paid. His
contributions to the practice and the process
are legion. I was among those privileged to
work in his wake.
I met Will Gray in 1975 when I was
working for lawyer Jim Skelton. Jim and
Will were defending rwo young men who
were accused in a mass murder case. Jim's
client, David Owen Brooks, and Will's
client, Elmer Wayne Henley, were
defendants in one of the most notorious cases
of mass murder in the history of the United
States. They were accused of killing over
20 people.
At that time Will and Jim Skelton worked
on some other cases together and ftom time
to time would ask me to babysit a client.
Will Gray treated me as an equal even
though he was one of the top appellate
lawyers in the state and I was barely out of
law school.
Will represented a Mr. Cuevas, the Texas
inmate who anempted to break out of prison
and killed several people while doing so. Will
kept Cuevas alive many years and was able
to reverse the death pen aIry rwice before his
luck ran our.
Will Gray devoted his life to lost causes.
Numerous death row defendants were able
to stay alive a long time thanks to the efforts
of Mr. Gray. Fighting the system for years
made Will a bit cynical, but I guess with
good reason.
Will was a sick man in his later years. His
health had deteriorated and his last anempt
at practicing law was with me. It was a sad
time when he packed his law books and
moved to a retirement communiry.
From time to time Will and I would talk,
and he finally told me to come and get his
law books. He realized the end was near.
The law books are now in my office, so in a
way Will is still around.
Will Gray's impact as a lawyer was
significant. People who knew him will
forever benefit from their association with
The quietman-
Hon.JudgeMiron Love
On January I , 1993, I was sworn in as a
District Court Judge for the 263rd District
Court of Harris Counry by the Hon. Miron
Love. After completing the oath, I had the
rare privilege of swearing in a fellow jurist,
Judge Love himself, for his final term on the
bench. That was my first official act and I
will never forget it
Those of us who practiced before Judge
Love got a chance to see a very quiet, sensible,
fair jurist in action. He did not seek
headlines and he did not need public support
or polls to do his job. He JUSt did it, in the
most reasonable and dignified way possible.
His only advice to me that day in Jan uary
was this: "Ruben, you just do your job,
follow the law, listen to both sides, do what
you know is right and let the politics fall
where they may. " It was advice that served
me well on the bench, and it sums up the
real essence of being a judge.
Judge Love had a distinguished career and
he was respected by everyone who practiced
in front of him. When I learned of his illness,
I called him to offer my sympathy over the
phone. I told him that I would come by to
March / April 1999
see him. His response was rypical Judge
Love. He said "Well. you better hurry up.
The doctor only gave me a few months. and
I used rwo of 'em already." It was that kind
of gentle humor that made people respond
to him. It was that abiliry to take things in
stride that made him a good lawyer. a good
judge and a good friend.
I will miss Miron Love. my friend and
mentor. We are all a little poorer for his
Twenry-six years ago I began working in
the Harris Counry Criminal Justice System
as a Court Clerk trainee. I liked the idea that
my new job offered me steady employment
and a secure working place where things were
usually peaceful. I was also comforted by the
notion that things would remain pleasantly
the same until I could one day retire. One
of the first places I worked was the 1nth
District Court. Judge Miron Love presided
over this court and had been there for fifteen
years. Even though I worked in the Inth
only a few days. it was nice to see that there
were people who had been around a while.
who cared about what they were doing and
who would likely be doing the same things
for some time to come.
Eight years later I began working in the
177th as the court coordinator. Judge Love
was still the judge. Things were the same.
Judge Love was a little older and maybe a
little grayer. but he really had not changed.
He still cared. He never failed to give you
his best upon arriving or leaving. He arrived
on time and. as always. he was prepared to
work. He was seldom sick and never ill-
tempered. He treated his staff with courtesy
and concern. The criminal defendants before
him were given their day in court and shown
respect, even if they were treated severely
under the law. The Inth, as it had always
been. was a gentle and peaceful place to
After working together for fourteen years,
it was time for Judge Love and me to go our
separate ways. Judge Love retired from the
bench as the law required. I was fortunate
to find another excellent forum in which to
work. Things were still just about the same
as they had always been. I was sti.ll doing
what I had been doing for over rwenry years . .
Judge Love still came by now and again. He
was the same as ever. He was never toO busy
to stop and chat a few minutes and was
always genuinely glad to see you.
Last year. I began to seriously con template
my own retirement. I remarked to myself
how lucky I was to have worked rweney-six
years in a place where things stayed pretry
much as they had always been. Then. a few
days before this last new year. things did
change. We lost Miron Love. Our
communiry lost a concerned citizen and a
warm and gentle man. The justice system
here lost much more than a retired judge, it
lost an important part of its conscience. I
lost a good friend .
Change is inevitable. and we must make
the best of whatever it brings. A new
millennium awaits. There is a brand new
courthouse to open. It is important for those
who do go forward to remember and carry
with them the best from the past. To forget
what was the best of Miron Love is to forget
why we began working here in the first place.
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March /April 1999

Congratulationsto thefollowingattorneys Jerome Godinich got a hung jury on a outofthe 248th. Patrickwas able to save
for getting"not-guilty"verdicts: federal case where the CI identified a the defendant, who represented himselfat
JohnAckermann on a test case DWl in memberoftheaudienceas thedefendant. trial, from himself.
Danny Easterling on a no-test DWl in Congratulations to Mary Samaan and HCCLA congratulates Grant Scheiner
CountyCourtatLaw#6 JudyPrinceontheir"notguilty"verdicton andfellow HCCLAmemberWayneHeller
Casey Kiernan on a no-test DWI In a habitual charged with aggravated assaulr for recently passing the BoardCertification
CountyCourtatLaw#12. on a cop! The jury apparently didn't buy Exam in CriminalLaw.
Norman Silverman on a civil lawyer five cops' testimony that they were in
charged with PCS in the 339th District imminent fear ofbodily injury or death Finally, our condolences to friends and
Court. when defendant threatened them with a family ofWill Gray who passed away last
hammer. month at the age of78. Will was a true
WillieLostonwonanacquittalin federal championofliberty, particularlyin thearea
court for his client on a charge ofalien Patrick McCann got one ofthose rare ofdeath penalty work. HCCLA inducted
smuggling. Someonesawtwo menin black "reversedand rendered"from the14thCourt him into the Hall ofFame last summer at
talking to the jury beforehand, but that's ofAppealsonadefendantchargedwiththeft ourAnnualBanquet.
probablynot important.
Martin Maynegotadismissal in Federal
Court at the probable cause hearing (the
thatoccurred beforethelawwas enacted).
Welcometo MarioSalazar,thenewcourt
coordinatorin CountyCourtatLaw#7.
Is itreallytrue? Wordis thatJudgeJanice
Law,inCountyCourtatLaw#5,is ordering
ignition interlockdevices as acondition of
probation for all first timeD.W.I. cases.
Connie Williams recently wrestled a
three-year probation out ofa murder
conviction for his client.
GilbertVillarealsecured his clientafive-
year sentence on a home-invasion,
aggravated robberycase.
Congratulations to Kari Sckerl, in the
248thwhorecentlygotengagedto homicide
Goodluck to ADACraigDriskell, who
has receivedorderstodeployto Bosniawith
his National Guatdunit. Be safe!
March /April 1999
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Fed Square
Bail in FederalCourt
The Law
Thegeneral rule in Federal Counis that
ajudicialofficershall issueanorderreleasing
a defendant on bond pending trial. 18
U.s.c. 3142 (a). Anyconditions placed
onabondmustbe the"leastrestrictive...that
a [judge) determines will reasonably assure
theappearanceof thepersonas requiredand
the safety ofany other person and rhe
community... ." 18U.s.c. 3142(c) .
A defendant may be detained (held
without bond) if no combination of
appearance or the safety ofanother person
or ofthe community. 18 U.s.c. 3142
(f). There are six circumstances where
detentionis available. See, 18U.s.c.3142
(f)(l)(A-D)and 18U.s.c.3142(f)(2)(A-
The Bail Act creates rebuttable
presumptions favoring detention in certain
cases. The most commonl y encountered
situation occurs in drugcases. Ifthe court
finds probable cause that the defendant
committed (1) a drug-trafficking offense
withamaximumpenaltyof tenormoreyears
or(2)usedorcarriedafirearm inconnection
with a drug-trafficking crime or crime of
violence,then"irshall bepresumed that no
condirionorcombinationof conditionswill
reasonably ass ure the appearance ofthe
person.. .." 18 U.s.c. 3142(f).
When rhegovernmentmoves to derain a
personandahearingisheld, rhejudgemust
consider the following statutory factors to
determine whether the governmenr is
entitled to derention: (1) the narure ofthe
offense,(2) rhesrrengrhofthegovernment's
case, (3) rhe accused's "hi srory and
characterisrics" and (4) rhe danger thar
release ofrhe defendant mighr pose to the
community. 18 U.s.c. 3142(g)
The Practice
Typically, a defendant is arrested and
immediately brought before a magistrate
judge. Thejudge reads the defendant her
rights and inquires as to her ability to hire
counsel. Ifrhe defendant is indigent, the
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judgewill appoinreirherrhe Federal Public
Defender's Office or a privare anorney to
representher. Ar rhispoint,rhegovernment
usually announces irs inrention to seek
derention.Themagistrarejudgesers rhecase
Once the hearing dare has been set,
someonefrom PretrialServicesinterviewsthe
accused. This usually happens before the
defendant ever speaks with an attorney.
Pretrial Services is concerned onlywith the
defendant's risk offlight and danger to the
community. Theyask rhedefendantabout
his ties to the community and criminal
history but not about the offense. It is
imporrant that rhe client cooperate with
Pretri alServiceswhichpreparesareportthat
is disclosedonlytorhegovernment,thecoun
The lawyer's first appearance on the case
is usually at the detention hearing. The
lawyer may seek up to a five - day
continuance. Inmostcases,especiallyrhose
i n which the lawyer is appointed, it is
impossible to prepare adequately for the
hearing without a few days to meet with
familymembersand investigate theclient?s
personalhistory. Magi stratejudgesareopen
to continuancesand routinelygrantthem.
The most common question I receive
regardingdetentionhearingsis whetherone
should everwaive the hearing. Theanswer
is "almost never." Even in hopeless cases
(gun-wielding illegal immigrant charged
with delivering 10 tons ofcocaine), a
detention hearing allows the lawyer, in
essence, to take the deposition of the
government'scaseagent. Theway it works
is this : in most detention hearings, the
government will call rhe case agent to the
stand. Shewill restifyaboutthings thatthe
other agents and nonagents (e.g., snitches)
havetold herabouttheclient'sinvolvement
in t h ~ case. Then,thedefenselawyergetsto
cross-examinetheagent. Becauseoneofthe
sratutoryfactors thejudgemustconsider is
as the lawyerwishes.
Havingahearing,evenin impossiblecases,
also allows yournew client tosee you fight
for him.Theconfidence you build during
this earlystageofthecase may prove useful
March /April 1999
Whatis theHCCLA?
TheHCCLAisanonprofit, taxexempt,
professional association made up of
lawyers from Harris County,Texas, who
are working to promote excellence and
highidealsinthepracticeof criminallaw.
Any defense lawyer in good standing
with the State Bar ofTexas, who is
endorsed by a member ofHCClA is
eligible to join. The endorsement
recommends theapplicantas a person of
professional competency, integrity and
good moral character who is actively
engaged in thedefense of criminal cases.
and skills in ourClEprograms.
Conrributes[Q ourBriefBankService.
Performsagreed Pro BonoService.
Brings to the Association's attention
propergrievancesin thepracticewhich
merit responseand action.
Shares in our monthly luncheons and
annualsocial evenrs.
Takes calls onourReferral Service.
fax 713-921-2780
Whatdoes HCCLAdo
for thedefense bar?
Referrals through our lawyer Referral
Service and through our membership
HCCLA Publications including Docket
Call, a monthl y newsletter summarizing
significanr decisions ofthe Texas Court
ofCriminalAppeal sandTexas CourtS of
Appealsand topicsoflocal interestto the
criminal defense bar.
Provides a responsive local forum for
criminal law.
Opposeslegislationandlocal ruleswhich
Promotes a productiveexchange ofideas
and encourages better communication
withprosecutorsandthejudiciary .
Provides continuing legal education
programs for improving advocacy skills
and knowledge.
Promotes ajustapplication ofthecourt-
appoinred lawyer system for indigent
Files Amicus Curiae Briefs where
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March /April 1999 DOCKET CALL 23
Great Southwest Building
1314 Texas Suite 1100 Houston, Texas 77002
for Leasing Information
250 sq. ft. to multiple floors
rental rates
On site leasing and management
Building identity
New ownership
Near the courts, center
and new stadium
March / April 1999
929 Preston,Suite200
Houston,Texas77002 Norman Silverman
3223 Smith #325
Houston TX 770cy;.