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JANUARYfFEBRUARY 1999 A Publication of Harris County Criminal Lawyers Association

Our Mission Is To Assist, Support, And Protect The Criminal Defense
Practitioner In The Zealous Defense Of Individuals And Their
Constitutional Rights. It Is Further Our Mission To Educate And
Inform The General Public Regarding The Administration Of
Criminal Justice And The Need For An Independent, Ethical, And
Professional Criminal Defense Bar.
Inpursuitofourmission, wehavesetoutto achievethefollowing goals:
1) To ensure zealous advocacy, due process, and justice for persons
accused of crimes,
2) To maintain a high standard of integrity, honor and ethics
in the practice of criminal law;
3) To maintain a close relationship with national, state and
local criminal justice organizations;
4) To provide for the professional advancement of the
individual members of the association;
5) To ('ncourage persons of integrity and ability to aspire
to the defense of the accused;
6) To cultivate a spirit of good fellowship among members;
7) To sponsor quality continuing legal education;
8) To keep members and the public informed of current
criminal justice issues;
9) and provide a referral service for accused citizens.
38 Process
Private Investigations
3700 N. Main. Houston, TX 77009
...... . Fax: 713-426-1040
DOCKETCALL January/February1999

From the President..................................................2
President Elect........................................................4
Meet the New Judges.............................................5
Internet for Attorneys.............................................7
PRESIDENT Post Verdict Testimony ofJurors............................9
Lloyd W. Oliver
Fed Square............................................................13
Danny Easterling
Looking Ahead.....................................................15
Jay Karahan
Bail on Appeal......................................................16
Rosa A. Eliades
SubmittingProbable Cause Issues to the Jury......17
Loren A. Detamore
Upcoming CLE...................................................6,18
Robert A. Moen
David Mitcham
Terry W. Yates
Robert Pelton
Randy Martin
loe YareIa
Ron Hayes
Callus withyoursuggestions
Ellis McCullough
Garland McInnis
E. Ross Craft
Mark Bennett
Richard L. Moore
Richard Frankoff
Angela Cameron
Rick Soliz Publisher: HCCLA
lay Carroll
Tyrone C. Moncriffe EditorEmeritus: Allen Isbell
PAST PRESIDENTS Editorial Staff: RosaEliades, Jay Karahan, Patrick
McCann, MelissaMartin C. Anthony Frilioux
Stuart Kinard
George Louquette
Advertising Staff: Martin Mayne,TomRadosevich
Marvin O. Teague
Dick DeGuerin
Distribution: 500 copies per issue. * For articles and other editorial contributions,
W.B. House, lr.
David R. Bires contactRosaEliades at(713) 222-0610orPatrickMcCann at(713)223-3805 * To
Woody Densen
placean ad, callTom Radosevich at (713) 802-1388.
Will Gray
Edward A. Mallet
Carolyn Garcia
lack B. Zimmerman
Clyde Williams
Robert Pelton
Candelario Elizondo Full Page: $300.00
Allen C. Isbell
David Mitcham
1/2 Page: $150.00
lim E. Lavine
1/4 Page: $75.00
Rick Brass
Mary E. Conn
Business Card Size: $37.50
Kent A. Schaeffer
Dan Cogdell
lim Skelton
.:. "Itisagood canvason which some strokesonlywantretouching."
George 1. Parnham
Garland D. McInnis Thoma:. Jefferson, July 31, 1788onthe Constitution.
Lloyd W. Oliver
he Harris County Criminal
Lawyers Association has been in
existence for almost 27 years.
During that period of time we
have had good times and bad times,
depending upon your perspective.
Founded in 1972 by Anthony
Frilioux, Stuart Kinard, George
Louquette and Marvin Teague, the
organization struggled simply to exist.
In J976, Dick DeGuerin was elected
president, and then the list of elected
presidents began to read like a "Who's
Who" of Texas lawyers.
Next elected were Bennie House,
David Bires and Judge Woody Densen.
The 80's brought Will Gray, Ed Mallett,
Carolyn Garcia, Jack Zimmerman,
Clyde Williams and Robert Pelton. We
then elected Candy Elizondo, Allen
Isbell, David Mitcham and Jim Lavine.
These legal icons served prior to my
active participation in HCCLA, but their
tremendous contribution to this
association is most evident.
Rick Brass, Mary Conn, Kent
Schaffer and Dan Cogdell helped us
though the lean times of the early 90's,
and Jim Skelton pulled us out of a
financial crisis during his tenure as
president in 1994.
In 1995, George Parnham was our
elected president, succeeded by Garland
McInnis and Robert Moen. Last year
when our membership elected me
president and bestowed upon me the
honor of this office, I was unaware of the
commitment necessary to make this
organization work.
Our membership had fallen to an all
time low and we were flat broke. We
could not pay the rent and did not even
have "seed money" to put together a
seminar. Jim Skelton came to our rescue
From this humble start,
our membership is now
at an all time high of
approximately 300
dues-paying criminal
defense lawyers.
and proposed several measures to reduce
our overhead. Jim put together a Search
and Seizure seminar and persuaded a
copy center to give us credit. I fronted
the postage money and we were on our
From this hum ble start, our
membership is now at an all time high of
approximately 300 dues-paying criminal
defense lawyers. Our HCCLA Formal
Banquet and Annual Galveston Seminar
was the most financially successful yet.
For this, the membership can thank the
officers and directors of th is
Our organization is now more
financially fit than it has ever been in its
27-year history. All of this required
many hours of hard work and again, the
membership can thank Jim Skelton and
the officers and directors of this
.. administration. This is quite an
accomplishment, and we still have time
to do more.
For over three years, HCCLA has
fought the County requirement that
lawyers pass through the courthouse
security system . Because of our
continued efforts, and with the help of
HBA, we can now apply for ID badges
that let us pass through this system. The
criminal defense bar can thank HCCLA,
its most recent officers and directors.
About three years ago we were
required to discontinue our publication
Docket Call because we could not pay
the printer. We are now solvent and are
going to continue publishing our
magazine if we can make it self-
sufficient. Again, thanks are due to the
present officers and directors of this
My tenure as President of HaITis
County Criminal Lawyers Association
will end sometime in June 1999. By
then, I hope to have put us on a course of
action that better addresses the needs of
the criminal defense bar in providing the
least expensive and highest quality CLE
programs in the State of Texas. If we can
improve the quality of representation for
the accused citizen, we all win. Yet this,
and all our lofty goals, can be realized
only with your participation.
In this issue you will find an
application for membership. Please,
complete it and mail it to my office. We
need attorneys with computer ski lis,
search and organizational skills, and
attorneys who can contribute articles of
interest to this publication publication.
In short, we need you and your many
diverse interest and talents.
The Harris County Criminal
Lawyers Association is YOUR criminal
defense bar association. It is only as
good, or as bad as we make it. Please
join us. We can and will make a
difference, with your participation.
This year, our membership Christmas party was held at the Jones Bar on December4,
1998. In aneffortto givebacktoourcommunity,HCCLAsponsoredGuadalupeHomes,ahome
for abused and neglected children. Each member was asked to bring a gift for a child as
admissionto the party. As you cansee,ourmemberscamethrough. We hadover175members
attend and kick offthe holiday season. Members, thank you for making our efforts a great
December 8, 1998
Harris County Criminal Lawyers Association
Lloyd Oliver, President
Danny Easterling, President Elect
Rosa Eliades, Secretary
Dear Rosa,
On behalf of all at Guadalupe Homes Clarewood, we would like to thank you for your
donation of $276, and numerous toys and gifts. The money will be used for the Christmas Party, and
the gifts will help give our children a merry Christmas. Your generosity was greatly appreciated.
Again, thank you for your support. I wish you the best for the up-coming Holidays.
Fr. John Theodore
Dir. of Development
Scenes from the HCCLA Christmas Party
Danny K. Easterling
s I read the resurrection of this
Docket Call Magazi ne and
particularly the Long-
Range Planning Committee Report from
Richard Frankoff, it makes me proud to
be a lawyer and not reluctant to use the
two adjectives in front of it, criminal
The apathy and misdirection this
organization has labored under of late
has got to stop, as there is clearly too
much at stake. Your own continuing
involvement and support are needed
now more than ever.
At a time when the fundamental rights
of citizens accused of crimes are being
severely curtailed by our courts,
legislature, and even Congress, we need
you and you need us. This magazine
should help to reestablish an identity and
presence tha tare essentia I to the
effectiveness of our organization.
During the Long-Range Planning
Meetings, I brought ten-year old Docket
Call magazines with me and it was
amazing to compare the then with the'
now. We need to recapture the prior
energy and this issue is a great start.
There are many good reasons to either
become or remain a member of Let me point these out to
you. Your membership entitles you to:
Docket Call. This magazine again
will become a useful resource for timely
information about what is happening at
the courthouse, case winning tips and
advice, significant case decisions and
legal articles.
The HCCLA Web Site. Check us out
at Mark and Jennifer
Bennett have done a great job of getting
this off the ground and getting our
organization on the Information
Superhighway. The site is presently in
the construction stage with future plans
for communication between
members, as well as access to our
membership roster by potential clients.
At a time when the
fundamental rights of
citizens accused of
crimes are being
severely curtailed by our
courts, legislature, and
even Congress, we need
you and you need us.
CLE Programs. We have an
energetic group planning our c.L.E.
programs for the future at a reasonable
cost and on very timely topics. Don't
miss the upcoming Cross-Examination
Seminar with Terry McCarthy on
February 27, 1999. Please look to
Docket Call and other notices sent to you
for more details.
The HCCLA Mentor Program. This
program teams a requesting attorney
with one of several experienced lawyers
who have been there in the trenches and
can provide invaluable assistance in
preparing for trial or actually sitting in
on a trial.
Conversely, we have had requests by
less experienced lawyers to sit second
chair and to experience a trial first hand
by assisting in voir dire and other tasks
throughout the trial. This program will
benefit both the mentor and the protege.
The HCCLA Referral Service. We
run an ad in the yellow pages and have
signs posted at the county jail. As a
member, you are placed on a week-long
rotation so that prospective clients may
call and retain you. This service will be
run in an equitable fashion.
This association has brought me
lifelong friends and contacts that never
would have been possible had I done
things on my own. HCCLA will often
be a lone voice for justice in unpopular
but just causes. As we go to the
courthouse and stand against the
almighty crown, you and your clients
need HCCLA in your corner. We can be
an effective organization. As we and the
Constitution are increasingly challenged
from all sides, we must stand together
and make a commitment to the time-
honored and true meaning of "justice for
ByGrantM. Scheiner
or those of you who embrace
change, brace yourselves.
1999 has brought us nine new,
criminal court judges. Most of the
new judges you will recognize as recent
ex-prosecutors. Coll ectively, the new
judges bring to the bench a wealth of
criminal law experience and enthusiasm.
Over the next several months, Docket
Call hopes to interview (in no particular
order, mind you) each new judge to find
out his or her background, as well as
what practitioners in the particular
courts might expect. In this issue we
begin with Hon. Mike Fields and Hon.
Lan-y Standley.
Hon. Mike Fields
Hon. Mike Fields is the Judge of
Hanis County Criminal Court at Law
No. 14. He replaces Judge Jim Barkley.
Judge Fields graduated from
Southwest Texas State University in
1987 with a bachelor ' s degree In
Criminal Justice. He received his law
degree from SI. Mary's University in
1991. His legal career began with the
Han-is County District Attorney's Office
in 1991. Judge Fields stayed three years
with the District Attorney's Office and
then he accepted a position as a Special
Prosecutor with the Attorney General ' s
According to Fields, his job as a
Special Prosecutor was particularly
challenging and rewarding. He left in
1995, however, because his heavy travel
schedule often left him "living out of a
Later in 1995, Judge Fields went into
private practice as a criminal defense
attorney. He also became active in a
variety of community organizations and
was eventually persuaded to seek his
present position on the bench.
Judge Fields has set an immediate
goal of clearing out some of the older
cases on his docket. At least in the
beginning, practitioners should expect a
relatively short period of time in whi ch
to dispose of a criminal matter.
Once an attorney appears on a case,
the Court will likely permit one reset for
" non-issue," followed by motions or
disposition. Practitioners should not
expect a separate setting for Judgment
and Sentence.
As Judge Fields specifically refers to
his motions settings as "28.01 settings,"
practitioners might be wise to re-read the
scheduling provisions of TEX. CODE
CRIM. PRO . 28.01. Many pre-trial
motions, however, will be can-ied with
trial whether or not they are dispositive.
Practitioners should expect a rapid-
fire pace during the first few months.
Docket call will commence at 8:30 a.m.,
and Judge Fields hopes to begin trials by
10:00 a.m. Because he intends to deliver
ani extensive voir dire of his own,-trial
attorneys shou Id seldom expect more
than 20-25 minutes per side for jury
For court appointments, the Court will
select two Attorneys of the Week. At
least one attorney will be bilingual; both
must be certified to handle misdemeanor
appointments in the Harris County
courts . Interested attorneys shou Id
contact Court Coordinator Ramon
When pressed about his "pet peeves,"
Judge Fields will tell you that he frowns
on lawyers who "don' t treat one another
with respect. " He adds, "Nothing
disappoints me more than lawyers who
treat each other with disdain, simply for
doing their j obs under the Canons of
Ethics and the Constitution. "
Hon. LarryW. Standley
Hon. Lan-y W. Standley is the Judge
of Harris County Criminal Court at
Law No. 6. He replaces Judge J.R.
Musslewhite. Judge Sta ndley
graduated from Sam Houston State
University in 1980 with a degree in
Law Enforcement and Police Science.
He received his law degree from
South Texas College of Law in 1984.
Judge Standley began his legal
career with the Harris County District
Attorney' s Office in 1984 and stayed
fourteen years until he assumed his
position on the bench. He has
prosecuted and tried numerous
misdemeanor, felony and juvenile
cases. His accomplishments include
many successful prosecutions In the
Major Offenders and Major Fraud
As with many new judges, Standley
is still developing his day-to-day
courtroom procedures, but
practitioners should not expect
anything out of the ordinary, at least in
the beginning. Pretrial motions, for
instance, will follow the familiar rule
of being carried with trial unless they
are dispositive.
Trial lawyers can expect roughly
thirty minutes per side for voir dire.
And thanks to one of Judge Standley's
first, official expenditures as a Judge,
defenders can now creati vely
demonstrate their clients' innocence
through the LIse of a handy, erasable
marker board.
The court appointment system will
be familiar as well. ' Judge Standley
plans to appoint one (1) experienced
"Attorney of the Week" and one (1)
assisting attorney each day. Interested
lawyers may wish to contact the
Judge's very friendly Court
Coordinator, Caprice Rubal. Many
will recognize Caprice from her
former assignment in Court 14.
Judge Standl ey stresses the
importance of "proper decorum" in his
courtroom, and says he wants to create
an atmosphere "such that when a first-
time offender experiences [County
Criminal Court at Law No.6, he or
she] will know it's serious ."
According to Judge Standley, a first-
time offender's initial contact with the
criminal court system is likely to
forever shape that person's opinion of
courts and judges, and Judge Standley
wants to leave a lasting impression.
He adds that Motions to Revoke
Probation will also be treated
In spite of (or perhaps because of?)
his years as a career prosecutor, Judge
Standley is looking forward to meeting
and getting to know the defense
attorneys who will practice in his
MeettheJudges Continued....
He promises, "defense attorneys consistency over the past fourteen an argument. Defense attorneys,
will not be second class citizens in my years, it is likely Judge Standley will therefore, should be prepared to
court. " emerge as a tough, no-nonsense judge accept nothing less.
Based on his experience and who is willing to listen to both sides of
02/09/99 Parole Review & Revocations
Mary Acosta to moderate
Danny Downs, fonner Parole Board member (confirmed)
03/09/99 Sexually Oriented Business / More Business for Attorneys
Anthony Osso, David Mitchum
04/13/99 Eyewitness Testimony Challenges
Psychologist Jerome Brown
Jay Karahan
05/11/99 Internet Research
06/18/99 Law Office Management
07/13/99 Preserving Error in Closing Argument
08110/99 Legislative Changes
09114/99 Preservation of Error in Voir Dire
Judy Prince
10/12/99 Punishment Options, Collateral Consequences & General Trends
Regarding Sexual Offenders
Catherine Green Burnett
1] 114/99 Inmates and their Families-Introduction to Prison
04/23/99 All About Sentencing-Moderated by David Mitchum
06/25/99 Expanding your Law Practice & Income
09/17/99 Representing Certain Client Groups
Internet for Attorneys
By MarkBennett
Email 101
An email accountprovides you with
an electronic mailbox thatyou cancheck
from your office, your home or
anywhere else you have a computerand
a telephone line. With an email account,
youcansenda messagetoanyoneelsein
the world who has an email accountand
have itdelivered withinseconds.
At least 25% of HCCLA's
membership communicates through
email. That sounds impressive, unless
you consider that, even in the last years
of the 20th century, almost 75% of
HCCLA's membership is withoutemail.
Email is available through any
internetservice provider("ISP")atacost
of less than $20 per month. It is also
available for free without an internet
account, from a company called If you do not have email,
send me an email atmarks@bennett and
bennett. com and I'll help you get setup.
(In all seriousness, if you need help
getting set up with email, fax me at
If you have email, you can receive
legal news regularly on your computer.
Twoservices providingsuch news are:
1) Cornell University's Legal
Information Institute (LII). LJl
provides the U.S. Supreme Court's
syllabi of its opinions within hours of
their release. To receive a copy of the
syllabi, send an email to: As the
text of the message, type subscribe
liibulletin jane doe (replacing jane doe
with your name) . Within a few minutes,
you should receive an email confirming
your subscription (save the message,
because it gives you directions for
cancelling your subscription ifyou ever
get tired ofthe service).
2) Willamette University provides
U.S. Supreme Court summaries,
including the holding and a brief
overview of the Court's reasoning. The
difference between LII's service and
Willamette' s is that LII sends out the
syllabi written by the Court'sstaff, while
Willamette writes its own summaries.
To receive the Willameue summaries,
send an email to As the text of
the message, type subscribe wlo-ussc
johndoe (again, replacingjohndoe with
your name). Again, you'll receive a
confirmation message within minutes.
The WorldWideWeb 101
Imagine a library containing a
billion pages of text and pictures. The
documents are written and randomly
distributed in filing cabinets by a
hundred million amateur librarians. The
librariansadd thousandsofdocumentsto
the library every day, and change tens of
Each document has an address, but
there is no card catalog. Instead, there
arerobots who wanderaroundthe library
reading documents. Each robot adds
each documentit reads to its own index.
The amateur librarians tell the robots
about some, but not all, of the
documents they add to the library. To
find a particular document, you have to
eitherknow its addressoraskarobotand
hope that it is contained in that robot's
index. Some documents are known by
all of the robots; some are known by
Most of the documents contain
references to other documents. For
example, a document about HCCLA
might contain a description of the
organization and a reference to a
membership list. Thereference tells you
where to find the membership Jist. In
the membership list, you might find a
reference to a document about a
particular member; in that document,
there might be a referenceto a document
about the Harris County Courts; in that
document, you might find a reference to
the rules ofthe County Criminal Courts;
and on and on.
Magically, ifyou are looking atone
document and touch a reference to
another document, the next document
magically replaces the first in your
hands. Many ofthe documents contain
nothing but references to other
Here is a metaphor (grossly
oversimplified)for theWorldWideWeb:
The library building is "cyberspace,"the
collection of computers at colleges,
comprisethe internet.
The documents are"web pages ,"
whichyou can view on yourcomputerif
you have an internet account and a
program called a web browser. The
librarians are the creators ofweb pages.
you find a particular topic. The
references to other documents are
"links." On your computer, you can
click on a link, and it will take you to
anotherweb page.
Followingare a few web pages that
are of use or interest to criminal
defenders. The italicized line is the
uniform resource locator CURL"), the
address in cyberspace of that particular
document. The references to other
documents are "links." On your
computer, you can click on a link, and it
will take you to anotherweb page.
InternetforAttorneys Continued....
Everything in the legal world, all in
one place
PublicData is a commercial site that
otTers instant searches of Texas public
records. Included are the following
statewide databases: Licensed Drivers:
Criminal Records (convictions and
felony deferreds); Registered Voters;
Registered Sex Offenders; Parolees;
and License Plates.I use PublicData to
tind people (through its drivers license,
license plate, and voter records) and to
dig up dirt on the State's witnesses. You
may use it to save your investigator
some time by doing preliminary
searches yourself. The cost for an
individual account is $25 for 250
searches over the course of a year.
Dave's Bar Association
Austin criminal defense lawyer David
Schulman maintains a list of pending
PDRs on hjs website.
John Macey
HCCLA member John Macey has
links to lawyer jokes and local courts,
among other things.
Magna Carta
TIle n ~ l i s h Bill of Rights of 1689
Precursor to our own bill of rights.
Criminal Justice Organizations
The website of the National
Association of Criminal Defense
Lawyers carries some
from The Champion
current articles
as well as a
The Texas Criminal Defense
Lawyers' Association website holds
information on that association,
including a schedule of upcoming
seminars. There is also a password-
protected section for members of
HCCLA's own website contains a list
of members, as well as links to those
members who have provided their email
or website addresses. Just click on a
member's name to send him or her
email (if your own email address or
website is not included, please email me
at marks@bennett and
In addition. in the future the HCCLA
website should contain the text of
Dockel Call. and a photographic
directory of members with their
telephone numbers, fax numbers, and
Texas Courts:
Texas Court of Criminal procedure
Texas Judicial Server
Links to courts all over Texas.
Texas Statutes:
Texas Penal Code
Texas Code of Criminal Procedure
Other Texas Statutes
hllp://www.capitol.stale. IX. us/slalu lesisllll
Texas Rules:
Texas Rules of Evidence
http://www.bellnella .. dbell/lell.
com/EvidenceJules. hl/111
Local rules of the Harris Count):: Criminal
Courts at Law
hllp://wWW. co. ha,.ris. Ix. IIs!celie ri millaller
Texas Rules of Appellate Procedure
h I I P : / / c () urI s I It ff . c om / c g i -
binlm_web.exe ?TRAP97.ask+F
A searchable version of the new
Federal Law:
United States Constitution
OIlSlitUlioll. overview. html
U.S. Code
lillp://www. law.
U.S. Sentencin& Guidelines Manual
Federal Rules of Evidence!.lfre/ove,.
Legal Information Institute
Lots of legal resources, all free from
If you have a suggestion, a question, or
a correction, email me at:
Lesswill beHeardunderthe Texas Rules ofEvidence
Before the promulgation of the
Texas Rules of Evidence, trial lawyers in
Houston who learned of jury misconduct
during deliberations faced, depending
upon the address of the courthouse,
varying degrees of difficulty in proving
that misconduct. For example, at the
Criminal Courthouse at 30 I San Jacinto,
the proffering attorney could call one
juror to testify about the improper
comment of another juror and its effect
upon deliberations under Texas Rule of
Criminal Evidence 606(b).[I] However,
at 301 Fannin, the Civil Courthouse, the
advocate would be unable, under Texas
Rule of Civil Evidence 606(b), to call a
juror to testify about any comments of
another juror, even if that juror
introduced extraneous matters into the
deliberations.[2] Finally, at the United
States Courthouse at 515 Rusk, counsel
could call a juror for the slightly less
limited reason of testifying as to whether
"any extraneous prejudicial information
was improperly brought to the jury's
attention" under Federal Rule of
Evidence 606(b)[3]
Effective March I , 1998, however,
this three-headed monster of post-trial
practice has apparently been carved
down to a two-headed one, as only Texas
Rule of Evidence 606(b) and Federal
Rule of Evidence 606(b) remain. The
reaction of the bench and bar to this
change has varied widely. One appellate
justice, comparing the old Criminal Rule
606(b) and the new Rule 606(b) opined,
"Rule 606(b) of the new Rules contains
no substantial changes."[4] Seemingly
underscoring this view, the Texas
Supreme Court and the Texas Court of
Criminal Appeals issued no Official
Comments to the new Rule 606(b).[5]
At the other extreme, one commentator
observed, "The Texas Rule completely
changed existing case law ... "[6] A trial
judge is reported to have commented
that Texas Rule of Evidence 606(b)
conflicts with Texas Rule of Appellate
Procedure 21.3, which makes jury
misconduct a ground for new trial.[7]
This article will examine the changes to
By David V. Wilson II
civil and criminal practice made by the
new rule in order to determine which, if
any, of these varying opinions is con'ecL
Federal Rule of Evidence 606(b)
provides that:
Upon an inquiry into the validity of
a verdict or indictment, a juror may not
testify as to any matter or statement
occurring during the course of the jury's
deliberations or to the effect of
anything upon that or any other juror's
mind or emotions as influencing the
juror to assent to or dissent from the
verdict or indictment or concerning the
juror's mental processes in con-
nection therewith, except that a juror
may testify on the question whether
extraneous prejudicial information was
improperly brought to the jury's
attention or whether any outside
influence was improperly brought to
bear upon any juror. Nor maya juror's
affidavit or evidence of any statement by
a juror concerning a matter about which
the juror would be precluded from
testifying be received for these purposes.
Texas Rule of Evidence 606(b)
provides that:
Upon an inquiry into the validity of
a verdict or indictment, a juror may not
testify as to any matter or
statement occurring during the jury's
deliberations, or to the effect of anything
on any juror's mind or emotions or
mental processes, as influencing any
juror' s assent to or dissent from the
verdict or indictment. Nor maya juror's
affidavit or any statement by a juror
concerning any matter about which the
juror would be precluded from testifying
be admitted into evidence for any of
these purposes. However, a juror may
testify (1) whether any outside influence
was improperly brought to bear upon
any juror; or (2) to rebut a claim that the
juror was not qualified to serve.
Texas Rule of Criminal Evidence
606(b) provided that:
Upon an inquiry into the validity of
a verdict or indictment, a juror may not
testify as to any matter or statement
occurring during the course of the jury's
deliberations or to the effect of anything
upon his or the other jurors mind or
emotions as influencing him to assent to
or dissent from the verdict or indictment
or concerning his mental processes in
connection therewith, except that a juror
may testify as to any matter relevant to
the validity of the verdict or indictment.
Nor may his affidavit or evidence of any
statement by him concerning a matter
about which he would be precluded from
testifying be received for these purposes.
Texas Rule of Civil Evidence 606(b)
was in most respects identical to the
Criminal Rule. However, the language,
"a juror may testify as to any matter
relevant to the validity of the verdict or
indictment" appeared as "a juror may
testify whether any outside influence
was improperly brought to bear upon
any juror." in the Civil Rule 606(b).
The rule limiting juror testimony
about deliberations is not a new one.
Lord Mansfield first articulated it in
1785[8]. At that time, he was faced with
a post-verdict claim by jurors that their
verdict was the result of chance. Lord
Mansfield said, "The Court cannot
receive such an affidavit from any of the
jurymen themselves, in all of whom such
conduct is a very high misdemeanor; but,
in every such case the Court must derive
their knowledge from some other source,
having seen the transaction through a
window or by some other means."[9]
The policy behind barring juror
impeachment of the verdict is to promote
the finality of verdicts, encourage frank
and free jury deliberations,and
discourage harassment of jurors by
losing parties.[IO] As the United States
Supreme Court put it, "There is little
doubt that post-verdict investigation into
juror misconduct would in some
instances lead to the invalidation of
verdicts reached after irresponsible or
improper jury behavior. It is not at all
Post VerdictTestimonyOfJurors Continued....
clear, however, that the jury system
could survive such efforts to perfect
The Advisory Committee to the
Federal Rules pointed out that federal
practice had long been to insulate the
manner in which the jury reached its
verdict but to allow testimony as to
prejudicial extraneous information
brought to bear on the deliberative
process and that the Federal Rules
continued that practice. [12] When the
Texas Supreme Court promulgated the
Rules of Civil Evidence, it chose to limit
juror testimony under its version of
606(b) to "outside influences". Rule
606(b) does not define "outside
influences", but the cases interpreting it
have defined the phrase somewhat
narrOWly. For example, the fact that
jurors had read a newspaper article about
the venue in the case being favorable to
the plaintiff has been held not to be an
outside influence.[13] However,
newspaper articles in the jury room are
specifically mentioned as "prejudicial
extraneous information" in the Advisory
Committee's Note to the Federal
Rules.[14] Thus, Texas civil practice in
this area is more restrictive of the
admissibility of juror testimony than
federal practice.
Texas civil cases have rejected any
claim that "outside influences" under
Civil Rule 606(b) can emanate from the
jurors themselves. For example, in
Durbin v. Dal-Briar Corp., the El Paso
Court of Appeals said, "Outside
influence, in the form of information
not in evidence, must come from a non-
juror. Information introduced into
deliberations by a member of the jury,
even if submitted with the intention of
influencing and prejudicing a verdict,
is not outside influence."[ 15]
Furthermore, in Perry v. Safeco., the
First Court of Appeals held that the
coercive influence of one juror upon the
rest of the jurors is not an "outside
influence. "[ 16]
This is contrary to Texas criminal
practice prior to March 1, 1998. Under
the now-repealed Rules of Criminal
Evidence, the proscription against juror
testimony contained the broad exception
that "any matter pertaining to the
validity of the verdict or indictment" was
a permissible area of juror
testimony.[17] The Court of Criminal
Appeals has interpreted the meaning of
this phrase in Criminal Rule 606(b) on
only one occasion. In Buentello v. State,
the defendant presented a motion for
new trial alleging jury misconduct to the
trial court.[ L8] At the hearing on his
motion, the defendant presented
testimony from jurors that they had
considered the effect of parole in
assessing the defendant's term of years
in their punishment verdict, against the
trial court' s instructions. At the court of
appeals, neither the State, the defendant ,
nor the appellate justices addressed the
issue of the admissibility of juror
testimony. However, after granting
discretionary review, a plurality of the
Court of Criminal Appeals stated that it
had to address the admissibility of the
jurors' testimony when addressing the
merits of the claim of jury
misconduct.[ 19] This drew heavy
criticism from the dissent, which argued
that there is no need to address
admissibility if no party had objected to
the offer and introduction of the
testimony. [20]
Nevertheless, the plurality opinIon
compared the history of Federal Rule
606(b) and Texas Rule 606(b) .
Emphasizing that a sub-committee of the
Senate-House Select Committee on the
Judiciary had inserted the "except"
phrase into the original version of
Criminal Rule 606(b) which had
modeled the federal rule, the plurality
stated, "[T]his Court decided not to
adopt the wording of the federal rule.
The drafters determined that the federal
rule and its interpretations were too
narrow, and decided to reword the rule to
allow for impeachment of the
verdict..."[21] The plurality then looked
to the text of Criminal Rule 606(b) to
determine if case law prior to the
Criminal Rules, which distinguished the
admissibility of "overt acts" of jury
misconduct versus "mental processes"
testimony, still applied and held that
606(b) eliminated that distinction.[22]
Thus, unlike Civil Rule 606(b) and
Federal Rule 606(b) , Criminal Rule
606(b) was interpreted as a broadening
of prior practice. The plurality went on
to hold that, based upon the plain
language of the "except" phrase, jurors
could testify as to any matter the trial
court feels is relevant to the validity of
the verdict.[23]
Since Buentello, the Court of
Criminal Appeals has not revisited
606(b) with the minor exception of
Garrett v. State[24] . There, the
petitioner sought discretionary review
from the decision of the Dallas Court of
Appeals to affirm the trial court's refusal
to hear his motion for new trial. Neither
the trial court nor the Dallas Court of
Appeals felt that the petitioner 's juror
affidavits attached to his motion stated
grounds of jury misconduct.[25] While
the State agreed, it also argued that the
affidavits were inadmissible under
Criminal Rule 606(b). The Court of
Criminal Appeals dismissed the petition
for review in Garrett as improvidently
granted and Judge Overstreet, joined by
Judge Baird, dissented from that
denial.[26] The dissenting opinion
discussed the State' s argument on
admissibility, which had been rejected
by the Dallas Court of Appeals.
Like the Buentello plurality, the
dissent in Garrett mixed its discussion of
the admissibility of testimony
impeaching the verdict and whether jury
misconduct has been shown.[27] The
dissent argued that the affidavits, each
asserting the verdict was based upon the
law of parties which was not authorized
by the jury charge, were admissible and
alleged sufficient jury misconduct to
warrant reli ef.[28] In arguing for the
admissibility of the affidavits, the dissent
reiterated the Buentello plurality's
invocation to the text of the "except"
phrase in 606(b).[29] Thus, in both
instances where the Court of Criminal of
Appeals has written on the admissibility
of juror testimony or affidavits
impeaching the verdict under Criminal
Rule 606(b), the members of the Court
who wrote on the issue have cited the
text of the "except" phrase. As discussed
above, the "except" phrase no longer
appears in 606(b) .
Effectin Civil Cases:
Texas Rule of Evidence 606(b) is
unlikely to change Texas civil practice
in the area ofprovingjury misconduct.
The Rule keeps the same "outside
influence"languageoftheold civilrule.
The only exception added to Rule
606(b) from the old civil rule is one
allowingfortestimonyofferedto rebuta
claim that a juror is not qualified to
serve. Thi s exception actually makes
post-verdict relief more difficult
because it is drafted in such a manner
that it helps defend challenges to a
verdict. Furthermore, irrespective of
the language ofTexas RuleofEvidence
606(b), Texas Rule of Civil Procedure
327still governs civil proceedings, and
itclosely tracks the language ofthe old
civil rule ofevidencein excludingjuror
testimony as to deliberations. Clearly,
then, any changes in this area will be
feltin criminalpractice.
Effectin CriminalCases:
At least one reported criminal case
has touched on Texas Rule ofEvidence
606(b). In Porter v. State, the Austin
Court of Appeals was faced with a
defendant appealing the denial of his
motion for new trial based upon jury
misconduct.[30] The defendant was
allowed atthe hearingon his motion for
new trial to offer juror testimony and
affidavits. Apparently, the State did not
contest their admissibility.
Nevertheless, like the plurality in
Buentello and thedissent in Garrett, the
Austin Court of Appeals went on to
address the admissibility of that
evidence,citingtheBuentello plurality's
interpretation of606(b) and the text of
606(b) for the proposition that jurors
can testify as to any matter relevant to
the verdict's validity.[31] Incredibly, in
a footnote, the opinion mentioned the
and states, "The Texas Rules of
Criminal Evidence and the Texas Rules
ofCivil Evidenceare now unified in the
Texas Rules ofEvidence. Rule 606(b)
ofthe new Rules contain no substantial
changes. "[32] The opinion and the
footnote failed to discuss the new
rule's complete abandonment of the
"except" phrase which was the
foundation for the holding of the
Buentello pluralityand for theargument
in the Garrell dissent.
The vi ew of the Austin Court of
Appeals is not shared by other
observers. One such commentator
stated, "Now the only inquiry that can
be made of a juror after verdict is
whether ' outsideinfluence'was brought
10 bear upon him. The old arguments
and testimony about improper remarks
made in the course ofdeliberations are
nowathingofthe past."[33] In ahighly
publicized Travis County case, five
jurors who convicted a defendant of
Aggravated Sexual Assault were called
as witnesses at his motion for new trial
hearing and testified that they
compromised the guilty verdict for a
probation verdict in the punishment
phase.[34] The trial judge allowed the
jurors to testify, but denied the motion,
stating publicly that Texas Rule of
Criminal Evidence 606(b) conflicted
with Rule 21.3 of the Texas Rules of
Appellate Procedure which makes jury
misconduct a ground for new trial.[35]
In doing so, the trial judge added
himself to the Buentello plurality,
Garrett dissent, and Porter court, as a
memberofthe judiciary who insi sts on
mixing a discussion ofgrounds ofjury
misconduct with the admissibility of
juror testimony. The foregoing jurists
have ignored the fact that the law has
separated the issue of what constitutes
jury misconduct from the issue of how
one introduces evidence of jury
misconduct since the days of Lord
juror ' sconduct butruled their affidavits
inadmissible. More specifically, Texas
Rule of Civil Procedure 324(b)(I) has
enumerated jury misconduct as a
ground for new trial in civil cases for
years, and no authority exists stating
that the limit of juror testimony to
"outsideinfluences" conflicts with Rule
Theabsenceofthe "except"phrase
from the new rule and the lack of a
different rule in criminal cases were
both intentional. Like the phrase itself
years earlier, the deletion ofthe phrase
originated in a subcommittee on
evidence of the Supreme Court
Advisory Committee, which concluded
that the "except" phraseconflicted with
the practice of every other state and
federal practice.[36] Further,justas an
earlier Court of Criminal Appeal s
deliberately chose to differentiate the
old criminal rule from the federal rule,
the current Court of Criminal Appeals
deliberately chose to promulgate a rule
more in line with civil practice,
according to Presiding Judge
McCormick.[37] In light ofthe heavy
reliance of the Buentello plurality's
opinion opening the floodgates to juror
testimony upon the history of the
"except" clauseand textofthe "except"
clause, it is likely that the Court of
Criminal Appeals in a future case will
look at the absence of the "except"
clause and the history of that absence
and close those floodgates. Future
motions for new trial hearings in
criminal cases will take place without
thetestimonyofjurorsas to anythingin
their deliberations but "outside
influences. "
In the aftermath of the
aforementioned Travis County case,
members of the criminal defense bar
publicly raised the issue of whether
having the same rule in criminal and
civil cases is constitutional.[38]
However, Federal Rule 606(b), which
restricts testimony from jurors about
their deliberations in both civil and
criminal cases, has already withstood a
constitutional challenge from a
convicted criminal defendant beforethe
United States Supreme Court.[39] It is
unlikely such a challenge to Texas Rule
606(b) from criminal defendants will
fare any betterbefore the same Courtof
Criminal Appeals that promulgated the
Trial lawyers in Texas no longer
have to contend with three widely
varying rules on the admissibility of
jurortestimony as to theirdeliberations.
There are now only two rules, state and
federal, with the federal rule being
slightly more broad than its Texas
counterpart. This will not bring any
substantial changes for civil
practitioners. However, criminal
Post VerdictContinued....
defense attorneys and prosecutors in
state court will find that the parameters
for litigating motions for new trial based
upon jury misconduct have changed

1997, no writ); see also Mercy [35] [d.
Hospital of Laredo v. Rim, 776 [36] /d.
[I] See Bllentello v. State, 826 S.W.2d
S.W.2d 626 (Tex. App. San [37] [d.
610 (Tex. Crim. App. 1992).
Antonio 1989, no writ). [38] Id.
[2] See Perry v. Safeco., 821 S.W.2d
[14] 14 Advisory committee's note, [39] Tanner, supra at note 11.
279 (Tex. App.-Houston[ I st Dist.]
supra at note 12.
1991, writ denied).
[15] 871 S.W.2d 263, 272 (Tex. App.-
[3] See United States v. Ortiz, 942 F.2d
EI Paso 1994, writ denied).
903 (5th Cir. 1991).
[16] 821 S.W.2d 279, 281 (Tex. App.-
[4] Porter v. State, 1998 Tex.App.Lexis
Houston[ 1st Dist.] 1991).
2100 (Tex. App.- Austin 1998).
[17] Buentello, supra at note I.
[5] Tex. R. Evid. 606(b).
[ 18J /d.
[61 Phillip Hardberger, Texas
[19] Id. at 613-614.
Courtroom Evidence 13-9.0 (1998).
[20] Id.
[7] Susan Borreson, Raw Deal Under a
[21 ] Id.
New Rule?, Texus Lawyer, June 22,
[22] /d.
1998 at 16.
[23] Id.
[8] Vaise v. Delaval, I T.R. 11,99 Eng.
[24] 946 S.w.2d 338 (Tex. Crim. App.
Rep. 944 (K.B. 1785).
1997) (Overstreet, 1., dissenting).
19J [d.
[25] Id.
1101 I McCormick on Evidence d 68
[26] [d.
(John Strong ed. 1992).
[27] [d.
[II] Tanner v. United States, 483 U.S.
[28] Id.
107,118 (1987).
[29] [d.
[12J Fed. R. Evid. 606 advisory
[30] Porter. supra at note 4.
committee's note.
[31 ] [d.
[13] Mitchell v. Southern Pacific
[32] [d.
Trallsp. Co., 955 S.W.2d 300 (Tex.
[33] Hardbergel; supra at note 6.
App.- San Antonio
[34] Borreson, supra ut note 7.
This column will be devoted to
practice in Federal Court. Thefirst one,
therefore, is about starting a practice in
Federal Court.
To practice in Federal Court, you will
have to fill out a one-page application,
pay a $50 fee and attend a one-day
workshop. You will need two current
resident as a member of the Southern
District of Texas as references if you
have not yet been admitted to any other
Federal District.
The Workshops occur four times a
year with the next ones on February 19,
May 14, August20and November 19 of
1999. Sharon Trigg with the Clerk's
office cautions that the classes fill up
quickly, and are generally full a month
in advance, so do not delay signing up.
Your membership must be renewed
every five years, and if your
membership is suspended orlapses,you
must retake the class.
While your application is pending,
you may practice in Federal Court by
filing a "Motion for Admission Pro Hac
Vice." Pre-printedforms areavailableat
Attorney Admissions on the 6th Floor.
Simply note at the bottom that your
application is pending.
Remember, Federal Courtis not State
Court. In a recent workshop, an
unfortunate lawyer did not turn off her
cellular phone. It rang during the
presentation, and she took the call.
When she was done, the Federal Judge
running the workshop asked for her
name and told her, in front of the
workshop, that she would not be
admitted to practice in Federal Court.
Shewas senthome.
The message is clear. Federal Judges
do not tolerate lack ofdecorum. Being
one minute late is not good enough.
Cellular phones and pagers must be off.
By MartinMayne
Even a pagervibrating across the topof
a table in the middle ofa proceeding is
not good.
Appointments in Federal Court are
through the CJA or "Criminal Justice
Act." Since there is a Federal Public
Defender in the Southern District, the
first appointment in any case goes there
unless the office has some sort of
conflict. If the Public Defender has a
conflict or there is more than one
indigent defendant, then lawyers are
appointed from theCJA"Panel."
To get on the "Panel," you must fill
outaConfidential Datasheet. Itasksfor
more information than the membership
application, including your Social
Security numberand numbers and types
oftrialsand appeals. Thisinformation is
used by the Courts and is not a public
Ms. Trigg noles that beginning
January I, 1999, every CJA attorney
must, because of the new tax code,
provide a personal Social SecurilY
number even if they have a firm Tax
ID#. Otherwise they will not be paid.
On a positive note, the forms requesting
payment, called a CJA 20, will be
changed so that the Social Security
number will not be required. Thatform
is a public record.
Appointments are made by the
M ~ r a t e Judges and their Case
Managers. Alist ofnames and numbers
follows this article. Each month, a
single magistrate will be responsible for
thecriminaldocket. There is generallya
10 a.m. and a 2 p.m. docket on
weekdays. Go to the case manager at
the beginning of the month and
introduce yourself. Give him or her a
card and explain whether you are
interested in appointments to trial or
appellate work. In general , attorneys
whofluently speakSpanish oranyother
languageare in high demand.
A new Mentors program has been
started in the Houston Division of the
Southern District. Interested attorneys
with little Federal experience can be
placed with more experienced attorneys
to learn the system. You are appointed
to the case and expected to fully
participate in the representation. You
will not, however, be paid. If you are
interested, simply write to Magistrate
Judge Maryrose Milloy, 515 Rusk, rm
7007, Houston, Texas 77208. You will
be sent a questionnaire which will help
the Judge to pairyou up.
You will want to sign up for PACER,
"Public Access to Court Electronic
Records." It costs nothing to sign up,
and you are only charged for usage at
$.60 per minute. You can download
docketsheets and follow the progressof
cases in most Federal Districts. You
have to sign up for each District
separately,andyou will bedroppedfrom
the list if you are inactive for too long
(90 days in some instances).
Another service to sign up for is "Fax
Orders and Judgments." You will still
receiveany Ordersand Judgments in the
mail later, buttheclerkwillfax acopy to
you as soon as it is scanned into the
system. Asimpleform is availableatthe
Clerk's office on the first floor of the
Federal Courthouse. It is afree service,
but you do need a dedicated fax line.
They say the system will not work if it
hears a voice.
Finally, in a blatant attempt to Slay at
least one step ahead of most of the
Harris County criminal defense bar, the
Federal Courts have a website at
MagistrateJudge CaseManager C.M.'sPhone Month
Frances Stacy BettieWhite 713 250-5565 May
MaryroseMilloy Paul Hogan 713 250-5158 March
Calvin Botley Paul Yebernetsky 713 250-5536 April
Marcia Crone Carol Dennie 713250-5566 February
NancyJohnson Linda Gonzales 713 250-5534 January
@] @]










FAX 713-224-8402

@] @]

Fax 713/523-3246
Direct 713/529-4898
Tonya L. Sampson
Attorney and Mediator
Dispute Resolution Consultants International
3703 Kirby Drive, Suite 210 Houston, Texas 77098
By Richard Frankoff
For me, probably like most of you,
long-range planning means having some
idea of where I am going to be eating
lunch while I ' am still drinking my
morning coffee. Yet somehow I found
myself volunteering to chair the HCCLA
Long-Range Planning Committee.
Even if my background and skills
are not suited for the position, my reason
was well founded. It is that we,
HCCLA, need it. We need to sit back,
decide what is important and plan for the
future. We have not done this for a while
and it shows. We have gone too long
without any direction, and without any
direction, you can only be lost. So I
I had a limited vision of where we,
as an organization, should go, and an
even more limited one of how we should
get there. But my idea was to first gather
a group of us, older (by this I mean more
experienced) and younger (less
experienced) members, and then guide a
discussion which would hopefully lead
to a clear vision and a path to take us
We did this, and I am proud to report
we were very successful. But before
continuing with that, I want to thank
those who attended and those who
contributed to the effort. Thank you.
We had three meetings, each two
and one half-hours long, every other
Wednesday night. We met at a hotel
conference room and conducted serious,
although often entertaining discussions.
Afterwards we would relax, drink and
talk some more. From these session, we
developed some ideas, set some goals
and made some plans. Please allow me
to summarize our conclusions. W e
focused on three general areas: (1)
establishment of an identity and
presence (2) develop ment of leadership
and confidence and (3) stabilization of
finances .
Identity & Presence
First, we need to think about who
we are. By this I mean we had to think
about our reason for being an
organization and we needed to articulate
that reason. So we wrote a mission
statement and made it the cover of our
first Docket Call edition. Please read
this statement. It states who we are and
why we exist. Next, we decided we
needed a way of communicating that
statement and all that flows from it to
ourselves and the community.
Therefore, we decided to again publish
Docket Call. It is important to us and the
court system because it tells us not only
what is going on and who is doing what,
but also what is important, what is
essential to us. We also saw value in a
quick and cheap means of
communicating among the membership.
Therefore, we resolved to get our
membership "on line. " Today there is no
better way than to have our membership
linked together by the Internet so that we
can quickly share information by email.
To accomplish this, we should recruit
selected members, who are computer
literate, to help those that are not. We
shouId contact an Internet service
provider for the cheapest rates .
We now have a web site, but we have
few members who are able to access it.
We plan to set up our web site to provide
our membership with "Significant Case
Decisions," an easy way for
us to review the recent court 's decisions .
Leadership & Confulence
The organization must develop
leadership in the courtroom and around
the courthouse. By this I mean not only
develop competent and effective defense
attorneys, but also identify and nurture
those of us who will be the next
generation of HCCLA leaders.
We discussed increasing the quality
and quantity of our CLE programs and
joining our efforts with other
organizations such as TCDLA or
NACDL. Committee members also
suggested creating a mentorship
program, teaming any requesting
attorney with one of greater experience.
A continuing trial clinic based upon the
programs started by Gerry Spence's Trial
College is another way we can promote
confidence and leadership. The program
would consist of a regularly scheduled
clinic where members can just show up
to discuss with each other their next trial
or hearing.
As a way to share our knowledge and
experience of what works and what does
not work, we decided our Annual
Meeting should be used to gather
members together to share stories,
exchange ideas and pass traditions.
Also, to strengthen our position in the
courthouse, we should increase our ties
with the local judiciary. To that end, we
hope to establish a BenchlDefense Bar
Conference on alternating years from the
HBA Bench/Bar Conference. Its
purpose would not be to pit judges
against attorneys, but rather to develop a
rapport between the two groups, to find
mutual areas of concern and to work
together to solve mutual problems.
Stabilization of Finances
Our fiscal year shou Id start at the
beginning of each new administration.
The President-Elect will submit a
proposed budget for membership review
at our Annual Meeting and for approval
at the first board meeting of his/her
This way, prior to taking office each
President-Elect will have to prepare and
present a budget outlining his/her plans
and priorities. We should create an
endowment and capital fund. We should
put aside a percentage of our gross
income for security and capital
investments, such as a building to house
our offices, a practice courtroom and
rental space for attorneys or attorney
support businesses.
All these are good ideas. But we need
more than just good ideas. We need the
commitment and conviction (pardon my
use of that word) to take these, and other
good ideas, and act upon them. We need
to do it now or we will continue to
wallow and waste away. We have one
thing going for us: us! Look, we are men
and women who made it through law
school, who go into the courtroom and,
often against all the odds, win. But
more, we are dreamers and doers. We
have dreamed, now is the time for us to
do. Please join us in getting HCCLA
By PatrickF. McCann
You just got the verdict back, and it
was not good. Your client was convicted
of a lesser-included offense, but it was
still a conviction. Your client has just
been taken away, and his family is
clustered around you, asking what their
options are. What can you tell them?
The first thing to tell them is that your
client may be eligible for a bond. Under
Article 44.04(a) of the Texas Code of
Criminal Procedure, pending the
detennination of any motion for new
trial or appeal of a misdemeanor, your
client is entitled to a reasonable bail. If
he was convicted of a felony and the
penalty was 15 years or less, then under
44.04(b), he is still eligible for a bond,
unless he was convicted of a narcotics
offense under Section 481.107 (b)
through (e) of the Health and Safety
Code. 15 years and a day, and your client
is ineligible.
Section (c) of Article 44.04 gives the
trial court discretion to award bail in a
felony if it meets the conditions laid out
under Section (b). The court can
continue the existing bond, deny bond,
set a new bond and impose reasonable
terms and conditions on the bond,
pending the conviction becoming final
(i.e., affirmed by the Court of Appeals).
See Putnam v. Stale, 582 S. W.2d 146
(Tex. Cr. App. 1979); also Ex Parte
Turner, 612 S.W.2d 611 (Tex. Cr. App.
1981); Valenciano v. State, 720 S.W.2d
523 (Tex. Cr. App. 1986).
]f the trial court determines that the
client violated the terms and conditions
of his bond or that he is likely to commit
another offense by a preponderance of
the evidence, it may revoke his bond.
See Oldham v. State, 743 S.W.2d 734
(Tex. App.- Ft. Worth 1987, pet. ref'd);
also Short v. State, 923 S. W.2d 168 (Tex.
App. - Ft. Worth 1996).
As a practice note, frequently, local
courts in Harris County will ask for a
new bond and double the trial bond.
Also, many local bondsmen require 15%
of the appeal bond if a new bond is set.
The logic of these procedures is that
since your client has been convicted he
or she is less likely to stick around. You
will have to fight these practices.
Also, be prepared for conditions to be
set that wi 1.1 include "no-contact"
provisions, drug testing, monitoring and,
for the folks representing sex offenders,
the courts' latest favorite thing is to have
them subjected to lie detector tests in
regards to no-contact orders.
Section (d) permits the court to raise
or lower the amount of the bond at its
discretion, either on its own motion or on
a motion by either party. Sections (e)
and (f) simply state that the sureties must
be approved and are not released from
the pledge if your client rethinks this
whole jail concept until he is firmly in
the grip of the sheriff.
Section (g) is important because it
explicitly makes the bond orders
appealable to the Court of Appeals and
makes them a priority. Such orders are
cognizable on writ of habeas corpus. See
Ex Parte Jackson, 602 S.W.2d 535 (Tex.
Cr. App 1980). The final section, (h),
makes it clear that if a reversal occurs,
your client is again entitled to a
reasonable bond.
For those representing indigent
defendants, there is sti 11 hope for release
on bond. Under Article 44.041, a person
who is indigent or cannot afford the bond
on appeal may still be released if the
court determines such release is
reasonable. According to Section (b) of
Article 44.041 , however, an indigent
appellant must participate in one of the
programs under Article 42.033, 034,
035, or 036, and participate in
community service, electronic
monitoring, work release, etc. Please
note, there is a clear conflict between the
final provision of 44.041(b) and portions
of Art. 42.033, 42.034, and 42.036(f),
since these statutes do award credit for
time and work served. This could be
subject to a writ or appeal.
Two common areas of contention in
appeal bonds are I) that the terms and
conditions are unreasonable and 2) that
the bond is too high. In the first instance,
remember that the terms and conditions
are supposed to be relevant to
guaranteeing your client's appearance in
court. Ex Parte Sotelo, 878 S. W.2d 179
(Tex. App. -Ft. Worth 1993 pet. ref'd). It
is your obligation to contest any
conditions your client believes are
unreasonable. It is your burden to prove
that they are not reasonable related to the
balancing of your client's interest in
remaining free on bail and society's
interest in making certain your client
appears and commits no other offenses
while on release. Valenciano v. State,
720 S.W.2d 523 (Tex. Cr. App. 1986).
Some conditions that have been
considered unreasonable in the past by
the appellate courts have included
restraints on how a person makes a
living, Speth v. State, 939 S.W.2d
769(Tex.App.-Houston [14th Dist.]
1997), and drug testing where there is no
indication of drug use or the underlying
offense is not drug related, Ex Parle
Sotelo , supra Trial courts are NOT
authorized to place conditions of bail on
a misdemeanor appeal. Dallas v. State,
945 S.W.2d 328 (Tex. App.-Houston
[1st Dist.] 1997).
If bail is set too high, then again it is
the burden of the complaining party to
object and prove that the amount set is
too burdensome or excessi ve by a
preponderance of the evidence. Mayo v.
State, 611 S.W.2d 442 (Tex. Cr. App.
1981). Denial of a requested hearing on
this issue constitutes an unreasonable
and arbitrary action. Ex Parte Williams,
630 S.W.2d 803 (Tex. App. -San Antonio
1982 pet. ref' d) .
Keep in mind that you are not
entitled to a bond on appeal, since under
the provisions of Article I, Section 11 of
the Texas Constitution, only pre-
conviction bond is protected. Your
rights here are statutory, but you can still
accomplish a lot for your client even
after a conviction under Texas law.
P.S [Author's Note: as of printing,
Dallas v Slate, 945 S.W.2d 325 (Tex.
App.-Houston [I st. DisL] 1997) had
been modified by the CCA. Final status
may depend on a motion for rehearing.]
ByJim Skelton
Article 38.23 V.A.C.C.P. states
evidence obtained in violation of state or
federal law may not be used at trial.
When there is a fact dispute as to
whether evidence was gained in
violation of 38.23, a jury is permitted to
resolve the question. If the jury believes
or has a reasonable doubt that evidence
was acquired in violation of 38.23, it is
instructed to disregard the tainted
Here is an example of how 38.23
works. A police officer testifies he saw a
car run a stop sign and that he saw a
marijuana cigarette in the ashtray as he
talked to the driver. The driver, on the
other hand, claims he did not run a stop
sign, but he does not deny having a joint
in plain view. There is a fact di spute as to
why the car was stopped. If the officer is
believed, the traffic stop is lawful and
the subsequent seizure of the marijuana
is admissible. If the driver is believed,
the stop is an unlawful seizure and the
confiscation of the cigarette is the fruit of
an unlawful seizure.
The only realistic chance of winning
this suppression issue is to submit it to
the jury under 38.23 because a pretrial
motion to suppress will most likely be
denied since very few Texas judges rule
against the pol ice. Presenting the 38.23
issue to a jury, up until a recent case, was
limited by the so called "DeGarmo
doctrine." DeGarmo v. State , 691
S.W.2d 657 (Tex. Cr. App.) held error
was waived if the accused admitted guilt
during the guiltlinnocence or
punishment phase of the trial. DeGarmo
was read to hold an admission of guilt at
trial waived the right to appellate review
of a suppression ruling.
Assuming the driver in the above
example was alone and is the only one
who could testify he did not run the stop
sign, he would have to testify before a
jury to raise a 38.23 issue. When he
testifies, he would have to admit guilt,
that he possessed marijuana, hence
waiving error under DeGarmo. This
created a dilemma for defense lawyers
because they ran the risk of waiving their
right to appellate review of suppression
issues by seeking a 38.23 jury
The recent case of Leday v. State,
_S.W.2d_ (Tex. Cr. App. NO. 1125-
97, delivered December 16, 1998)(not
yet reported) resolved this problem by
ruling DeGarmo cannot be invoked to
prevent appellate review of suppression
issues. Don Rogers, a Houston lawyer,
represented Leday on appeal. Leday was
a passenger in a car stopped for
speeding. The officer testified a drug dog
inside his patrol began barking. The
dri ver asked, so said the officer, if the
dog would bite someone who had
cocaine on their person. The officer said
no. According to the officer, the driver
asked him to take a bag from her coat
pocket in such a way that Leday could
see she was not giving it willfully. The
bag contained crack. The driver and
Leday were arrested and more crack was
found in Leday's shoes at the police
Leday's suppression motion was
denied. He raised a 38.23 issue at trial by
contradicting the officer's testimony
about the stop, search and arrest. Leday
admitted he had cocaine but denied
knowing the driver had contraband. The
jury was instructed under 38.23 to
disregard the evidence found in the
search of Leday if they had a reasonable
doubt that the vehicle was properly
stopped or that the officer had probable
cause to arrest Leday. Leday was
convicted . At punishment, Leday
admitted guilt again by testifying he
agreed to do the "drug run" to repay a
student loan.
On appeal, Leday argued it was
error to deny his pretrial suppression
motion and that it was error to admit the
cocaine at trial. The State argued the
DeGarmo, 691 S.W.2d 657
(Tex.Cr.App.), cert.denied, 474 U.S. 973
(1985) curati ve error doctrine; that
Leday waived error by admitting guilt at
both phases of the trial. Leday, in
response, argued his trial testimony was
impelled by the illegal action of the
State. The Court of Appeals agreed with
the State ruling " having admitted the
knowingly possession of the cocaine in
question during both portions of the trial,
any error that occurred during the gUilt/
innocence phase was waived."
The Court of Criminal Appeals
disapproved of using the terms "curative
admissibility" and " waiver" in cases in
which error in admitting evidence was
held to be harmless because similar
evidence was introduced without an
objection this will not result in reversal
when other such evidence was received
without objection either before or after
the complained-of ruling. The Court
pointed out there was an exception to
the this rule where the Defendant's
testimony is impelled by the state's
introducing evidence obtained in
violation of the law. The Court held this
exception extends to all evidence subject
to exclusion under Article 38.23
The State must now show that its
illegal action did not impel the
defendant's testimony to counter this
exception. The following factors were
relevant in the determination: (I)
evidence the Defendant would not be
called as a witness but for the court ' s
ruling admitting illegally obtained
evidence; (2) even if the Defendant is
called, evidence that he would have
testified in the same manner but for the
introduction of that evidence; (3)
whether the State introduced other
evidence of guilt, and the strength of that
evidence; and (4) whether there is other
evidence, aside from the evidence
objected to, that would have induced the
Defendant to testify in the same manner.
The Court of Criminal Appeals
ruled that hoJding Leday waived his
objection to the illegally seized evidence
contravenes this exception . The Court
reasoned that such a rule creates a cruel
"trilemma" of waiver, perjury, or loss of
rebuttal evidence and thus the Court of
Appeals erred in holding Leday 's
suppression issue was waived by his
testimony at guilt/innocence.
As to the admission at punishment,
the Court stated the DeGarmo doctrine
during punishment is conceptually
different because it comes after a guilt
finding and that testimony of guilt at
punishment cannot render harmless the
introduction of similar testimony at guilt.
The Court noted that any harmful effects
of inadmissible testimony were on the
jury's decision of guilt that cannot be
ameliorated by the Defendant's
testimony which follows that decision.
The Court said Leday sought appellate
review of the trial court's suppression
ruling and none of the reasons for the
DeGanno doctrine justify an appellate
court's estopping him or holding he
waived review or that such an en'or at the
guilt stage would always be harmless.
The Court went on to hold the DeGarmo
doctrine cannot be invoked to prevent
such appellate review.
This decision now permits a lawyer
to seek appellate review of suppression
issues without being estopped from
raising these issues because their clients
admit guilt when raising a 38.23 issue.
When faced with this problem, it is
important for a defense lawyer to
remember the Court's comments. about
the State's ability to show its illegal
action did not impel the defendant's
testimony. One of the listed factors was
"evidence the Defendant would not be
called as a witness but for the court's
ruling admitting illegally obtained
evidence." This means Defense counsel
would be well advised to state he is
calling the Accused to testify because:
(1) the trial judge denied his pretrial
motion the suppress, (2) that defense
counsel had not anticipated calling the
Defendant until the trial court's ruling on
the suppression motion and (3) there is
no other means to raise the 38.23 issue
except by calling the Accused as a
witness. This statement should be made
in the record, outside the jury's presence,
before the Accused testifies. If a lawyer
follows the requirements of Leday, the
old problem of waiving error by seeking
a 38.23 instruction will be solved, thanks
to Don Rogers and Leday v. State.
Saturday, February 27, 1998
South Texas College of Law
9:30 a.m. - 5:00 p.m.
Terry MacCarthy of Chicago will teach us his "Look Good Cross," otherwise known as the "One-Word Cross." If you
have never heard Terry speak, come and learn to cross-examine. If you have heard him before, come again.
Terry is one of the top CLE speakers in the country. He has taught his techniques at the Trial Lawyers' College, and at
programs in all 50 states. He has received more praise and honors for his teaching than we have room to print. OUf own
Richard "Racehorse" Hayncs writes:
It has been my honor and privilege to know Teny MacCarthy of Chicago for over 20 years. His picture
hllngs ill my office. He is one of my heroes. Ten)' MacCarthy of Chicago is a lawyel: Bright,
witty alld totally dedicated to the concept that 110 one shall be denied due process or the increasillgly elusive
"fair trial ".
Terl)' ranks with the best ever on the art crosse..\;alllillatiol1, lind has lIlways beell willillg to share
with those of us who toil ill the temples ofjustice. Don't lIliss him!
The 7.5 hour seminar is $75 for HCCLA members ($50 if you join HCCLA or renew your lapsed membership in January
or February): $150 for non-members; $75,000 for government employees. Space is limited, so call Mark Bennett at
713.224.1747 now to reserve a seat.
If you have an announcement
regarding a personal item such as a
birth, wedding, an award or recognition
or anything else that the folks at the
courthouse might wanl to know, please
call Danny Easterling (713) 228-4441
or Patrick F. McCann (713) 223-3805.
Many of us know the results of the
judicialelections, but we often overlook
the folks who help make the courts run.
Congratulations and welcome to the
new court coordinators who will be
working in the criminalcourts.
In County Criminal Court, Debra
Congratulations to newly nominated
JudgeElsaAcala,whohas taken overin
the 338th District Court when Judge
MaryBaconretired. Ourbestwishesto
JudgeBaconaftermany yearsofservice
to Harris County.
Our membershipowes a greatdeal of
thanks to Richard Trevathan and past
president Garland McInnis for their
efforts in inauguratingthe new Frequent
Courthouse Visitors Badge Program. It
enables attorneys and others to bypass
the magnetometer and/or the x-ray
verdict on a one kjlo possession with
intent to distributecase in federal court.
Finally, the beginning ofthe yearsaw
the passing of one of Harris County's
finestjudges,Miron Love. JudgeLove
created the position of Administrative
Judge and fostered its existence in
Harris County. The Administrative
Judge coordinates the entire criminal
judicial system. This office created by
Judge Love has served as the model for
many otherjurisdictions in the State of
Griffin will be the new coordinator in
Court #5. In Court #6, welcome to
Caprice Rubal. In County Court #14,
say hello to Ramon Hernandez.
Finally, Court #7 will be keeping
BarbaraNed as theircoordinator.
In felony court, Brenda Sims will
take over in the 183rd. Marian
Trammel will be takjng over in the
185th. Vicki Oliver will be in charge
over at the 248th and in the 262nd,
Chuck Spinks will be the new
coordinator. Good luckto everyoneI
Best wishes and congrats to Stacy
Delatorre (formerly Stacy Wadsworth)
from theDistrictAttorney'soffice. She
is workjng in Bosni a on a leave of
absencefrom theDA' sofficehelpingthe
Bosnian government establish a
Congratulations to Terri Z. Jacobs
who gave birth to a 7 pounds 8 ounces
baby girl on December11, 1998 named
Well done to GordonDees whogota
"Not Guilty" verdict in a non-death
capital murdercasein November.
machines used for security screening at
the courthouse. You can pick up an
application form in the court's
administration officeon the first floorat
301 SanJacinto. Read the fine printand
see that the $100 fee is a voluntary fee.
Applications are accepted at the
Building Superintendent 's office on
Wednesdays only from 1-4 p.m.
Our heartfelt sympathy and
condolences to Judge Belinda Hill in
the 230th District Court. She lost her
motherrecently afteran illness. All our
thoughts and prayers are with her and
Who pleads a client for a PSI
sentencing on an aggravated sexual
assault of a chiId case in now-retired-
Judge Mary Bacon's court? Jay
Karahan did, and after a five hour
hearing, Judge Bacon assessed only an
eight year prison sentence. After the
hearing, Jay asked the clerk to clarify if
it was 8or80
Congrats to Mark Bennett and Ken
McCoy! They started out the new year
on January 14, 1999with a"NotGuilty"
SINCE 1971
We advocate thata paid-in-fullattorneyisa client'sbestdefense
Refer a OWl bond and receive a free DWl video We testify at bond reduction hearings
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Any defense lawyer in good
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p.o. Box 22773
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1314TexasAvenue, Suite 1100 Houston, Texas 77002
For LeasingInformation
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