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DOCKET CALL AUGUST / SEPTEMBER 1999 A Publication of Harris County Criminal Lawyers Association photo



A Publication of Harris County Criminal Lawyers Association

A Publication of Harris County Criminal Lawyers Association photo by Russell Webb .HCCLA Lawyers of the

photo by Russell Webb


Lawyers of the Year




I • • -

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August / September 1999





Danny Easrerling


Rich ard FrankoFF


Mark Bennerr


Rosa A. Eliad es


Angela Cameron


Lloyd Oliver


Mary Acosra

Lorr Brooks

John Ca rr oll

Winsron Cochran E. Ross Cran Ron Hayes Da vi d Jones Jay Karahan Ellis McCo llough Garland Mcinnis David Mircham

Tyrone C. MoncriFFe

Rich ard L. Moo re

Anthony Osso

Rick Soliz

Clyde Williams



C. Anthon y Frili oux

Stuarr Kinard George Luquene Marvin 0, Teague Dick DeGuerin WB, House, Jr. David R, Bires Woody Densen Will Gray Edward A. Mallert Carolyn Garcia Jac k B, Z immerman Clyde Williams

Robett Peiron Candelario Elizondo Allen C. Isbell

David Mi tc ham

Jim E, Lavine Rick Brass Mary E. Conn Kent A. SchaFFer Dan Cogdell Jim Skeiron George j . Parn ham

Garland D. Mcinnis Robert A, Moen

DOCKET CALL August / Septelnber 1999 Contents From the President From the President-Elect Fifty 'Ways
August / Septelnber 1999
From the President
From the President-Elect
Fifty 'Ways to Loose Your Lover or License
Cheating to Win (Houston Chronicle editorial)
Galveston Criminal Law Seminar
HCCLA Action Plan
Meet the Judges
Pros and Cons ofa Public Defender System
HCCLA Annual Membership Party
Sheep in Wolves' Clothing
Beating the Odds
Upcoming CLE .
. 2
Let's Hear From You!
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August I September 1999


From the President

The President's Opinion

Judicial Liaison Committee, which has been

sorely lacking for several years in our association. Our board has unanimously agreed that it is critical that the judiciary know that we sta nd together as a united criminal defense bar, but that we also have respect for their positions as long as they

resp ec t our

As I write this, the media-labeled "railcar serial killer," Mr. Resendiz, has surrendered and now faces prosecution primarily here in Harris County. The great debate about whether Mr. Resendiz will be treated humanely, because the state will undoubtedly seek the death penalty, could last for hours, if not days. What there should be no debate about is that this person, no matter how notorious his alleged crimes, should receive a fair trial from a fair and impartial jury with competent and effective counsel on his behalf. To this end, our association has volunteered a task force of attorneys to assist the lawyers for Mr. Resendiz in their mammoth task of defending, not only the West University capital murder, but the eight-plus other extraneous capital murders that will probably be introduced at the punishment ph ase of his trial. If you care to volunteer in this effort please contact me or Richard Frankoff. To coin a phrase, this is what we are all about. We must protect, understand and support each other, a crucial thing given the difficulty

of our calling. One of the most important functions of our association has always been to create

continuing legal education programs that inform, educate and recharge the batteries of our members. It is important to draw strength from your fellow HCCLA members in order to renew daily your commitment to representing that one human being at the very worst moment of his or her life. Please note the upcoming HCCLA After Hours CLE seminars that we hold each month and pl ease watch for the announcem ent of the Galveston seminar, which will occur on

October 2, 1999.

I also applaud the HCCLA Mentor

Program and ask that any member that feels th e need for help on any criminal case or topic please call me or the chair of that committee, Richard Frankoff, and we will

provide help where help is needed .

My involvement in HCCLA has always been enjoyable and uplifting even though it is hard work. I encourage everyone to strive to recruit and welcome new members into the HCCLA ranks. We need more members to continue our aggressive efforts to stand together to ensure that those rights that we all hold dear are not further eroded by an overzealous thirst for punishment by the government. The phrase, "Liberty and justice for all" has become mere words for so many in government, and these rights are tramped upon and abused daily. Here in this great state ofTexas there are no people that I would rather have at my side in furthering our

mission to ensure justice and due process

than the brothers

and sisters of HCCLA .

Don't ever give up and keep the faith .


ever give up and keep the faith . DANNY EASTE.RLlNG This is my first column as

This is my first column as President of this great association, and I am deeply honored by the faith and trust that the membership has placed in me by electing me into this office. I intend to work hard to follow our mission statement to assist, support and protect the criminal defense practitioner in the zealous defense

of individuals and their constitutional rights. The strength of our organization is the


HCCLA is the collective voice; we must be devoted to continuing to to develop ourselves as a major force in offsetting the erosion of defendants' rights and leveling the playing field in the courtrooms. A lot of people ask how justice can be achieved when the overwhelming weight of the entire State and the force of the government demands a conviction? Every day one of us stands up and announces that he or she represents the citizen accused and by doing so, we bravely stand between the almighty power of the crown and our client, to stand up, quite literally, for the Constitution and the Bill of Rights that we all should cherish. If Liberty and Freedom are to survive as we know them , we must continue to fight against the notion that the prosecution has some constitutional right to win each and every case, and that it is just a fluke or "bad jury" whenever we gain an acquittal because th ere was reasonable doubt. Each of our members has to be the eyes and ears of the community, as we are in the trenches every day seeing both justice and injustice. Please report your not-guilty verdicts to us so that we may publish them and give you the recognition you deserve. I also encourage you to report to any officers any unusual, unfair or improper act that the government or the judiciary performs in your presence so that we may address that issue through some forum. I have formed a

roles as we appear before them.

criminal defens e lawyer, you, and

A Note From The Editor

We are very excited that we have been able to publish Docket Call again. We have received some excellent feedback, but I would like to encourage all of you to contact me with ideas and suggestions, as well as any articles you would like to submit; we can always use more writers. Thank you all for your support.



August / September 1999

From the President-Elect

The President-Elect's Opinion


Thanks for the vote of confidence. I am extremely proud to have the support of my peers. To know that the men and women I have worked with over these last twenty years believe that I can represent them gives me a feeling of accomplishment and satisfaction seldom received in this profession. When I stood before many of you at the annual dinner and awards ceremony in June to introduce the "Attorneys of the Year," I meant what I said: my primary satisfaction from being a criminal defense attorney comes from the great men and women I have met and with whom I have shared this noble, although often frustrating, profession. You are a distinct, different and distinguished group. I have never met a group more hopeful, more giving, more dedicated. Any group that believes that because of their efforts they can convince twelve cynical Harris County citizens that six nuns, a minister and a rabbi are all wrong about what they saw, and that our three-time felon client

is right, has to be all of those. Especially given the fees that we collect. This last year has been a very successful one for HCCLA. Besides many other accomplishments, we have greatly increased our membership rolls. We have moved from

a barely existing organization to one that now

can boast over four hundred members. A lot of the credit for this should be given to Lloyd Oliver and Danny Easterling, for it was during their terms as president and

president-elect, respectively, that the membership rolls have grown .

I wan t ro contin ue this trend . The

president-elect is assigned the chairmanship of the membership committee and as president- elect I want [0 focus on this responsibility. Although I want to continue to reach out and get more members, I realize

we may have already signed up most of the criminal defense practitioners. I want to focus on signing up more attorneys but, in addition, I want to focus on providing ever bener services to our current members . I want HCCLA ro give back to the membership something of value for their money, participation and commitment.

I believe that as an organization, we can make our lives better, easier and more fulfilling. We, as a group, can achieve and provide things that individuals would find more difficult. Thi s is ironic because as criminal defense attorneys our greatest strength lies in our ability to work independently and without the support of

groups, organizations or institutions. This

is why I believe we need to focus in this

direction: providing support for those who have traditionally have not sought or have

avoided or ignored the support of others. A recent exampl e of what I mean is the HCCLA task force being put together to aid the defense of Resendiz. Although two fine attorneys have been assigned the overwhelming job of defending this person, we all know the job will require more time than any two attorneys could provide. Even

if they do it all themselves and do everything

correctly, their individual practices will suffer.

And we all know that they will not be

adequately compensated for their dedication.

In joining together and supporting them, we

can assure Resendiz gets the representation he needs and is guaranteed by law, but also our fellow criminal defense attorneys are nor

the object of the criminal justice system's abuse. We owe this to any person accused, to any person given the responsibility of representing a person accused, and [0 ourselves as U .S. citizens and as members of

a profession sworn to uphold this noble

belief. Another example happened to me just recently. I was asked by three less experienced

attorneys to assist them in their cases. They are less experienced, but by no means less qualified th an me. In the first case, two

attorneys asked Mark Bennett and me to help prepare their client to testify. Mark and

I spent a Saturday afternoon talking with

their client while they watched and evaluated his testimony. At the end of the session they

and the client were more prepared and confident in his testimon y. The next week he took the stand, he told his story to the jury and they believed him, as they should have. He was rightfully and justly acquitted. In the second case a ll I did was listen and make suggestions to an attorney abou t to try his first federal case. He was well prepared

and, at the trial, made an excellent

presentation. Although I was at the defense table for the trial, I did nothing except look

good . He did all the

By joining together and supporting each other, we gave strength to each other. We are stronger as a group than individually. We better represented our clients. This is one way to help us, our membership. And in the year to come I plan to seek other ways. I have several ideas I will be discussing and developing this next year,

but I am still looking for suggestions. Help me identify those issues that affect you. Stop me in the hallway at the courthouse, phone me at the office, send it by carrier pigeon if you must, but please let me hear from you. I need your suggestions on ways that we, as members ofHCCLA, can assist, support and help each other. I am looking forward to this coming year and even more so [0 the following one as your president. Thanks again for your vote of confidence. I will do all I can to live up to this sacred obligation.

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August / September 1999


There Must Be Fifty Ways to Leave

Your Lover (Or Lose Your License)


I was approached and asked to write a brief article on the topic of my choice by Ms. Angela Cameron, and after some thought I concluded that one of the most perplexing areas of law facing attorneys in the county courts is, "What do I tell my client about his driver's license?" The following commentary will cover many, if not most, of the situations that you may face in your practice. But first, before you offer me accolades for authorship, let me give credit where credit is due and that is to our staff attorney, Me. Marshall Shelsey. Marshall's diligence in legal research and ear for ethics has provided me with the information contained in this article and tremendous guidance in my career for over ten years. The first area to deal with is, what happens if your client pleads guilty to the offense of OWLS (driving while license suspended). Does this conviction au tomatically re­ suspend their license? ANSWER-YES/NO/ MAYBE SO-ALL THE ABOVE. Now, don't panic, look up some law. The new Transportation Code is a six volume set, and you can always stop by my office if you need some research assistance. The general rule of thumb is that a conviction for OWLS will cause a suspension for a "like" period of time. What does that mean? If your client had an "SR" suspension or was past the mandatory period of a suspension they may reapply for a new license despite the conviction with ptoof of liability insurance, an "SR" rider, and a reinstatement fee. In certain circumstances, such as a OWl suspension or drug conviction, they may be required to take an educational course as a prerequisite to getting a new license. If the arrest for a OWLS occurred during a mandatory period of suspension, the conviction will cause and additional suspension for a "like" or similar period of time. The best advice that you can give your client is that until they get a clearance letter from the DPS or a new driver's license is to park the car and be safe. Quoting Paul Simon,"Hop on the bus Gus." Next, your client approaches you with a ticket for failure to provide proof of financial responsibility (no insurance). What now? The Transportation Code (TC) Sec.60 1.231

provides that upon a second conviction the department shall suspend your license, and

you will be required to reapply for a new license and maintain proof of insurance for

a period of two years after the date of

conviction. (SR-22). You need to be aware that a second offense of failure to maintain proof offlnancial responsibility may be filed in the county criminal courts and the sentence range is a fine of not less than $350 and not more than $1,000 - no jail time is provided for in TC Sec.60 1.19l. Quoting Paul Simon again,"Make a new plan Stan." Now, to the less obvious ways to lose your driving privileges: "Skip our the back Jack." Transportation Code Sec 521.341 (2) a license is automatically suspended for a final conviction of Sec.38.04, Evading Arrest or Detention. This appears to apply to even a nonvehicular evading situation. Reading on through Sec. 52l.341:

Subsec 1- a conviction for Negligent Homicide where a vehicle is involved= suspension Subsec 3- a conviction for OWl, Sec 49.04

or 49 .98 = suspension (more to follow) Subsec 4- a conviction for Intoxication

Assault 49.07 =suspension Subsec 5- a conviction for an offense punishable as a felony under the motor vehicle laws of this state. Subsec 6- an offense underTC 550.021­ accident involving injury or death (FSRA) "Drop off the key Lee." If your young dient is convicted under PC Sec 28.08, criminal mischief (graffiti),

it is a mandatory one year TDL suspension .

Sec.521.314 TC. "Get on a plane Jane." There are a number of offenses all related to possession of false, fictitious, counterfeit or unlawful possession of driver's license, registration stickers, license plates, or insurance documents, as follows:

TC Sec 52l.451 displaying a false or fictitious driver's license, or cancelled license; 521.451 (2) Lending you r license to another; 52l.451 (5) Having more than one valid driver's license; 52l.451(6) Using false information to obtain a driver's license;

521.453(a) displaying a document that is deceptively similar to a driver's license unless

the document displays the statement,"NOT


Any of the above offenses will result in a suspension of not less than 90 days or more

than one year per TC Sec.52l.346. In similar vein, TC Sec. 521 .3465- there

is an automatic suspension of 180 days if:

license holder is convicted of TC 502.409(a)(4) - fictitious license plate on vehicle, or license holder is convicted ofTC 548.603(a)(l)- fictitious inspection sticker, insurance documents or similar documents

issued for another vehicle. Also, TC 521.3466 there is a potential two-year TOL suspension for possession of an altered government record, pursuant to PC Sec 37.10 if that record is a license plate, registration sticker or inspection certificate. The preceding topics were some of the more unknown ways to lose your driver's license. The more obvious reasons for a license suspension are as follows:

TC 521.372- A person's license is automatically suspended on a final conviction of:

1. An offense under the Controlled Substance Act

2. A drug offense

3. A felony under Chapter 481 Health and

Safety Code, that is not a drug offense. TC 521.341 &TC 521.343- Provide for suspension for convictions for OWl and susequent OWl offense. For a first offense the suspension must be at least 90 days and not more than one year. For the second offense the license will be suspended for not less than six months and not more than twO years, regardless of whether the Defendant receives probation or not. This pretty much concludes the numerous ways a person's license can be suspended. Oh, I forgot, there are about 20 more reasons that fI t special si tuations such as drivers of commercial vehicles, under 21 drivers, multiple moving violations, driving in violation of any license restrictions, minors

in possession of alcohol or tobacco products

and a few more that I just can't rhink of right

now. Take a few minures, do your research­ give your client the benefit of an informed attorney. So, when your client asks you about his/her license, start humming the song about "Fifty Ways to Lose Your License" but try not to launch into any Ally McBeal fantasies.

The Houston Chronicle Speaks Out Against Prosecutorial Misconduct

The following Houston Chronicle editorial was printed recently and deserves reading in case any of you missed it:

Cheating To Win

Prosecutors abusing public trust deserve harshest discipline

An anaJysis of mountains of court records, appellate rulings and attorney discipline records throughout the United States by the Chicago Tribune demonstrates that some prosecutors have stopped at nothing to win, trying suicides as murders, blaming blacks for the crimes of whites and hiding exonerating evidence. According to the Ttibune report, some 381 defendants have had their homicide convictions thrown out since 1963 (the year the U.S. Supreme Court ruled that prosecutors must disclose evidence favorable

to a defendant) after evidence surfaced that prosecutors conceaJed or falsified evidence. Although the Supreme Court said such actions are grounds for disbarment and criminaJ charges, not one of the offending prosecutors was convicted of a crime or kept from the practice of law. Few were impeded in their careers at all, despite the fact that 67 of the defendants in question had been sentenced to death, including RandaJl DaJe Adams ofTexas, whose wrongful conviction was exposed by the documentary film The Thin Blue Line. Because of wrongful convictions, many defendants spent years in jail before being freed. Their appeals were costly and time consuming. Taxpayers paid millions when defendants won new trials because prosecutors hid evidence. More important than the public resources these mishandled cases wasted, unpunished

prosecutoriaJ misconduct erodes the public's trust in the criminaJ justice system-especiaJ ly because it is impossible to know how often such abuses actually occur. Overzealous prosecutors heap injustices on the innocent and insult and threaten the foundation of the U.S. criminal justice system, which is built on the principle that all are innocent until proved guilty. Like police officers and others invested with the power to seize a person's liberty and imbued with a sacred public trust, prosecutors must be held to tight standards and punished when they abuse those standards. Even guilry defendants deserve a fair triaJ . Certainly the innocent do. Prosecutors so desperate for a guilry verdict they would ignore-even willfully suppress-vindicating evidence ought to be vigorously prosecuted themselves.

evidence ought to be vigorously prosecuted themselves. August / September 1999 DOWNTOWN / MARKET SQUARE 9ftft

August / September 1999






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August / September 1999

What is the HCCLA?

The HCCLA is a nonprofit, tax exempt,

professional association made up of lawyers from Harris Counry, Texas, who are working

to promote excellen ce and high ideals in the

practice of criminal law.

Any defense lawyer in good standing with

endorsed by a

member ofHCCLA is eligible to join. The endorsement recommends the applicant as

a person of professional competency,

the State Bar of Texas, who is

integriry and good moral character who is actively engaged in the defense of criminal


What does a

member do?

• Participates and exchanges information and skills in our CLE programs.

• Performs agreed Pro Bono Service.

• Brings to th e Association's attention

practice which

proper grievances in the

merit response and action.





Firm Name:

Date admitted to Bar:

Law School:

Date, Degree from Law School:

Professional Organizations in which you are a member in good standing:

Have you ever been disbarred or disciplined by any bar association or are you the subject

of disciplinary action now pending?

• Takes

cal ls on our Referral Serv ice .

What does HCCLA do for the defense bar?

• Referrals through our Lawyer Referra


Type of Membership:

Service and

through our membership


Student ($25.00 Annual Fee)

(Expected graduation date


Newly Licensed (first year) Membership ($50)

Regular Membership ($125.00)

• HCCLA Publicat ions including Docket Cal~ a bimonthly newsletter addressing topics of local interest to the criminal defense bar.

• Provides a responsive loca l forum for lawyers actively engaged in the practice of criminal law.

• Opposes legislation and local rules which Endorsement


signature of applicant

infringe on individual

constitutional guarantees.

rights protected by

• Promotes a productive exchange of ideas and encourages better comm unication with prosecutors and the judiciary.

• Provides continuing legal education programs for improving advocacy skills and knowledge.

• Promotes a just app lica tion of the court­ appointed lawye r system for indigent persons charged with a criminal offense.






I, a member in good standing ofHCCLA believe this applicant to be a person of professional

compe tency, integriry and good moral character. Th e applicant is actively engage d in the

defense of criminal cases.


signature of member







HCCLA Action Plan


The HCCLA ought to be trying several different things to improve its standing in the courthouse, with other lawyers and in the community. We all recognize that criminal lawyers for far too long have been losers on an unbalanced playing field in the justice system's battles over the last 15 years. Whether in fighting County Commissioners in the indigent fee squeeze or as advocates for simple fairness in the courts and in the legislature, Texas and Harris County's criminal defense bar have been losers or nonplayers. Many of our colleagues in the bar have noticed our losses; membership in HCCLA fell for a few years and certain of our more notorious brethren no longer participate in our affairs. Our membership is now at an all time high of near 400 members, but the community interests and organizations that value civil liberties and civil rights have been fighting their battles without us. We need to find ways ro improve our position across the board.

\,\'It> can raise the profile o/the association by taking the following actions:

1.) A cable T.Y. show with lawyers talking about the importance of our work, issues facing the justice system and how people can assess the performance of their institution would be valuable. Our president, Danny Easterling, is currently negotiating with Access Houston for such a show. 2.) A Speaker's Bureau should approach all available outlets for lunch or breakfast

presentations about the same subjects. (Rotary, lions and even Republican Women's Clubs should be approached). 3.) We need to have a lunch meeting with

a prominent speaker and sell tickets and promote it with the press. 4.) HCClA should join lawyers in certain cases where a prosecution appears prejudiced in some way, either against the

lawyer or the client, or where a grave injustice

is likely due to an unbalance of resources.

The volunteer task force we are forming to help the Angel Resendiz case is an excellent

example of this idea in action. lawyers should know that their colleagues will help when a manifestly unjust outcome is avoidable should the right help be provided. Even community groups or citizens should

be able to alert the defense bar and have their particular grievance screened for possible help to their cause. Obviously such review and endorsement by HCClA should be done sparingly, where success is likely, and a maximum exposure for the organization.

\,\'It> should help lawyers get business in the private market. The following should be considered:

1.) A letter to misdemeanor offenders promoting HCClA and its members and discouraging them from hiring offoflawyer letters unless they fully understand their choices. The referral service could reimburse for the costs. 2.) The bail schedule is too high and denies people the opportunity to hire their own lawyers. Concentrated efforts to bring bonds in line with the realities of family budgets should be studied and employed, including form writs given the incarcerated and researching the costs of incarceration due ro high bonds for first offenders. A systemic attack based on constitutional guarantees of reasonable bail, presumptively violated by a bail schedule ordered by the Board ofJudges without a record supporting their choices, or perhaps use a separation of powers argument against the practice of judges permitting the District Attorney to arbitrarily raise bail at filing. The bail bond indusuy should be consulted about joining this effort. 3 .) Lawyers for the day or week in County and District Court should be carefully watched and challenged if the case/lawyer ratio is too high and especially if these attorneys are representing people on bond whose indigency has not been reliably established. Rules of professional conduct and of the Judicial Conduct Commission should be consulted where appropriate.

We should become more politically active in

our county. The association can become players in future policy discussions of criminal justice ifit asserts its proper role as an institutional representative for the defense of the community. Several activities, some with overt political ramifications. should be implemented. All of these options recognize that a defense lawyer organization in the current political environment of Harris County cannot compete and have its views respected without being politically active.

I.) HCCLA should sponsor a PAC and atrempt to raise $100,000 to support a slate of judicial candidates, either in the Republican primary or as a Democratic opposition, against the worst of those judges who more closely resemble operatives of law enforcement in the courthouse rather that neutral magistrates. The conspiracy to punish at all costS while disregarding the rule of law is an all roo common feature of our jurisprudence. Running a slate of candidates committed ro ending the symbiotic alliance of prosecutors and judges whose punitive policies waste vast amounts of resources while undermining the adversary process they claim to represent should be our highest priority. 2.) lawyers and community representatives should be encouraged to use the Judicial Conduct Commission to investigate and punish the worst offenders in the judiciary who openly side with the prosecutors with their rulings and practices, refuse to control the abuses of their ClOs or who repeatedly inject their views on punishment in manner that demonstrably ignores impartiality and the full range of punishment. 3.) CLOs have far too much power and all toO frequently abuse it. They should be rotated often and the worst of their lot should be transferred or fired. Personal liability should be exploted for probation officials who know but choose to ignore the abuses of their employees. 4 .) Recently, in too many cases, I have noticed grand juries refusing to hear witnesses or review proffered evidence. Not only should they hear from HCCLA about what the lawyer's role is in the process, bur letters to each of them should update them on critical information about the performance of the criminal justice system including who gets prosecuted, for what, and at what taxpayer expense and social cost. 5.) We should join with others in the community and critique and condemn the Drug War as an example of a failed law enforcement/prosecutorial effort. We should identify and support legislative initiatives that give choices other than incarceration to judges. An overall comprehensive analysis of the COSt of the current prohibition effort, both to the taxpayer and the offender population, should be undertaken by HCCLA and shared with

Action Plan (cont


he community, media, politicians and opinion leaders. Given that lawyers are constantly portrayed as mere profit centers, his support for major change in the Drug \'Var's prosecution would be seen correctly as unselfish and positive for the community.

If any HCCLA members wish to join and offer time and effort in these efforts please contact me or any officers or directors.


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Potpourri •••

Official HCCLA 1999 Election Results

The new Officers and Directors elected at the June 28-29 1999 Election are as follows:

President - Danny Easterling President-Elect - Richard Frankoff Vice President - Mark Bennett Secretary - Rosa A. Eliades Treasurer - Angela Cameron

BOARD OF DIRECTORS Mary Acosta Lott Brooks Winston Cochran David Jones Jay Karahan David Mitcham Tyrone C. Moncriffe Anthony Osso Clyde Williams All of the Officers and Directors thank all of the candidates for their participation and many thanks to both Jay Skelton and ~ennifer Bennett for working the ballot box on both days.


The Harris County Criminal Lawye rs Association is forming a volunteer task force of criminal defense attorneys experienced in Capital Murder litigation who will volunteer their time to assist Allen Tanner and Rudy Duarte who are representing Angel Resendiz. These volunteers are needed due to the tremendous resources available to the governmenr and all of the numerous law enforcement agencies that are providing assistance in this Harris County prosecution.

this association is abo ut,

assisting cri minal defense lawyers in any type

of criminal case. no matter what type of crime is alleged. It is important th at no

matter how notorious the charges are against

Mr. Resen diz

defense and a fuir rrial just like any other citi zen accused in our crimin al jus rice system.

That is what

that he receive an effective

Danny Easrerling


Appointed Attorney

Recertification Announcement

If you missed the Augusc 27. Recertification program, it's not too late

to recertify. The program will be presented

September] 0, ] 999 at

] :00 p.m. in the Jury Assembly Room. Contact Debbie Lonon at the Administrative Office of the District

Courrs at 713/755-6576.

Remember: the old list of attorneys certified to take appointments will be purged- if you don't recertify, you cannot take appointments.

on video Friday,

Court Clothing

Joe Varela provided Docket Cal/with a letter he received from Captain K.M. Stelter, of the Harris County Sheriff's office, regarding new policies related to delivery of court clothing. The texr of the letter follows. I am in receipt of your lerrer dated February 26, 1999, and appn!ciate yo ur concerns. Whenever an issue is brought to our a((ention relating to one of our areas of service. we carefully re-evaluate our procedures in an effort to improve our services. After reading your le((er concerning the delivery of court dothing. I have exrensively reviewed our polil'Y' I found that over the past twelve months. in this particular are-a, we have revised our policy to:

1. extend our acceptance of clothing an additio nal 24 hours prior to the court appearance date, resulring in a 48 hour acceptance rime frame

(Saturday) to

ou r clothing acceptance schedule,

resulting in a Saturday through T hursday acceptance time frame

3. lastly, we have extended the time

frame for accepting coun clothing by two

ho urs, resul ting in a 10 delivery time.

extremely heavy workload

on Fridays, at th is dme, we are unable ro revise our procedures any further. IfI can be ofany further assistance, please contact

2. add an add itional day

a.m. to 8 p.m.

Due to ou r

me at 713/755 -8050 .

Meet the Judges


Docket Call shines its spotlight on two more judges this month. In this issue, we profile Hon. Joan Campbell of the 248th District Court and Hon. E. Janice Law of County Criminal Court at Law No.5.

Hon. E. Janice Law

Hon. E. Janice Law is Judge of Harris County Criminal Court at Law No. 5. She succeeds Judge Hannah Chow. Born and raised in Flint, Michigan Judge Law graduated from the University of Michigan at Ann Arbor, where she received

a Bachelor of Arts Degree in English . She

earned her law degree from Nova University in Fort Lauderdale, Florida in 1979. Judge Law (widely recognized for having the perfect name for a judge!) began her legal

career as an Assistant State Attorney in Polk County, Florida in 1980. She eventually moved on to become an Assistant State Attorney in Broward County (Fort Lauderdale), Florida, before moving to Texas in 1985. Her background includes stints as an attorney for Hyatt Legal Services in Pasadena, Texas, a Staff Attorney for the United States District Court for the Southern District ofTexas, an Assistant City Attorney for the City of Houston , an Assistant United States Attorney, and a solo practitioner handling criminal defense and miscellaneous civil matters. In 1994, Judge Law became an Associate Municipal Judge for the City of Houston, where her responsibilities included reviewing police search warrants and presiding over a spate of Class C misdemeanor pleas and trials. In 1999, she ascended to the bench in Harris County Criminal Court at Law Number 5. As Judge of Court No.5, Hon. E. Janice Law has proven unafraid to try new approaches. For instance, the Court holds pretrial conferences by telephone each Thursday before the following week's trials. "My court reporter [Eliza] Madrigal early in the week calls all counsel and asks them to be at their offices, if possible, or somewhere we can get hold of them on Thursday afternoon," says Judge Law. "Then the State comes in here [and] on the speaker phone we do a pretrial conference." As with most pretrial conferences, the Court is interested in the potential length of each trial, whether counsel are ready, and whether there will be any witness/scheduling

difficulties. Once the Court determines which cases will fit within the following week's schedule, the Court rank orders the cases from one through six. Attorneys who are uncomfortable with a telephone conference are welcome to show up in person, but the clients need not attend the pretrial conference. Although practitioners will notice a number of innovations in Court 5, the overall docket plan comes from County Criminal Number 11. For starters, Judge Law has adopted Judge Diane Bull's "two­ track" docketing system. After arraignment, if needed , an accused is given one setting to hire an attorney, a two-week "non-issue" setting, followed by two-week "disposition" setting. From there, anorneys are required to decide between a Motions setting, Trial (if no Motions), or a plea.The second "track" for scheduling cases has fewer settings (disposition, plea, then trial), but allows for more time between court dates. Judge Law has also adopted Judge Bull's standard discovery order, although defense attorneys are free to request additional items not contained in the standard order. Other Court specifics are contained in a four-page "Guidelines" memorandum available to practitioners upon request. The Guidelines are packaged with a "Standing Trial Management Order," which addresses everything from Motions for Continuance, to preparation of the Court's Charge, to proper courtroom behavior. Interestingly, motions are not automatically carried with trial. Motions are placed on a Friday docket and generally heard at least one (1) week before the scheduled trial. Motions to Revoke Probation and Motions to Adjudicate Guilt are also heard on the Friday Motions Docket. For those interested in court appointments, there is no specific, contract attorney handling the duties. The Court hires two attorneys of the week. One Spanish-speaking and one English-speaking. Interested attorneys should contact Coordinator Debra Griffin, described by her judge as a "wonderful, wonderful addition" with a "most beautiful smile." Ms. Griffin can be reached at 713/755-6196. Visitors to Court 5 may also notice colorful floral arrangements up at the bench. Some of the flowers are real, some are artificial, but the Judge changes them frequently to keep things "cheery" in the courtroom, she says. Judge Law also confides that some of the flowers come courtesy of

her husband, a tax attorney at Fulbright & Jaworski. Hon E. Janice Law surprised Docket CaJi

by telling her interviewer that she cou.ld "not think of any particular pet peeve, " as a member of the judiciary. She did, however, offer a complaint that gives new meaning to the phrase, "sitting judge."

really ruins your

back," she says. "It's really amazing when you sit for six or seven hours, it just kills your

back." Sacroiliac aside, Judge Law seems comfortable in her new seat on the bench.

"Constant sitting

Hon. Joan Campbell

The new face on the bench of the 248th District Court is Joan Campbell, but she is not new to the courthouse. Although only on the bench for a few months, Judge Campbell is unique in Harris County in that her legal experience ranges from misdemeanor to capital murder trials, working on both sides, prosecution and defense. Judge Campbell is a native Texan who grew up in Bellaire and attended Bellaire High School. She obtained her Bachelor of Science degree in Speech at the University of Texas in 1977. Judge Campbell first enrolled at Northwestern University, but shortly thereafter transferred to UT, admitting that it was "too cold in Chicago" to stay. Later, she attended the University of Houston Law School where she obtained her law degree in 1981. Judge Campbell embarked on her legal career as a civil lawyer with the firm of Crady and Peden, (now Crady, Jewett and McCoulley) and then switched to criminal law as an ADA in 1983, when she joined the Harris County DA's office. She advanced from misdemeanor court assignments to the 262nd and 208th as chief. While working in the DA's office, Judge Campbell met her husband, Steve Kimbrell. Judge Campbell laughed as she reminisced, "The night we met we danced to the music of Death by Injection." Eventually, her husband's career led to temporary assignment, in the People's Republic of China and in Malaysia. At that time, Judge Campbell took a leave of absence from the DA's office and relocated to the Far East with her husband. Following their last overseas assignment, Judge Campbell elected not to return to the structure of the DAs office. She decided, instead, to work for herself and in 1993 developed her practice in criminal defense until 1998 when she


August / September 1999

Meet the Judges (continued)

began to pursue her career on the bench. Judge Campbell commented that the greatest change she noticed in her transition from prosecution to defense was the flexibility of working for herself. When asked about her court-appointment process, Judge Campbell explained that Dick Wheelan is the contract defense attorney who handles most arraignments. As an experienced attorney and Spanish speaker, Mr. Wheelan has proven to be invaluable to the court. Nevertheless, other attorneys are appointed to cases consistent with the level of experience required. As a matter of course, Judge Campbell welcomes interested attorneys to submit their business cards to the court's coordinator, Vickie Oliver, for appointment consideration as well as to stop by the bench to meet the judge. Vickie Oliver was with the DA's office for about 12 years before working for Judge Campbell. As the former secretary to a division chief in the DA's office and as secretary to the 262nd District Court, Ms. Oliver interacted with prosecutors and defense attorneys as well. \'Vhen asked about the job, Ms. Oliver stated that prior to taking

her job as court coordinator she had not realized all that took place in the courtroom and how much responsibility came with the job. "The Judge is great to work for; she is fair to both sides and very approachable," Ms. Oliver stated, ''I've learned so much in the short time I've been here." Regarding pretrial motions, Judge Campbell uses a standard discovery order that closely tracks the language of the statute. However, additional requests are heard at the bench on the record. Of course, a pretrial motions setting is available, and motions can be carried with trial. The court is equally accommodating regarding hearings on motions to suppress. As for settings, the court utilizes the standard settings, arraignment, non-issue, disposition, (at which time the case should be set for plea or trial.) Trials in the 248th are on the fast track with trial settings of only about four weeks. Judge Campbell offers the following tips for trial. "If you're set for trial, then you're probably going that week. Where there is an unusual evidentiary question, submit case law in advance for review. Always have witnesses present and ready to testifY as trials

move quickly. Trials start at 9:30, break for pleas around 10:45 and resume shortly thereafter. The last witness for the day is heard by 5:00 P.M. when the jury is usually released." As for other miscellaneous tips on her court, Judge Campbell offered the following. Judge Campbell asks lawyers to call if they have a problem getting to the court on time. In addition, she warns, "I don't get involved in plea negotiations." Where an attorney is seeking alternative sentencing, Judge Campbell considers boot camp a "wonderful" alternative. The CLO, Nicki Hoenshel, is always happy to talk to an attotney even before an MRP is filed, such as when the probationer is charged with a misdemeanor. When asked why she sought the seat on the bench, Judge Campbell remarked, "I had experience in both prosecution and defense and was ready for a new challenge." Regarding her expectations of the job, Judge Campbell carefully thought and remarked, "I have found sentencing the most difficult aspect of the job. However, being a judge is a rewarding Job."

of the job. However, being a judge is a rewarding Job." 711 Prairie (Enter at backdoor

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Who's Afraid of the Big Bad Wolf?

The Pros and Cons of a Public Defender System


Recently everyone in our community had

a brief scare when State Senator Rodney

Ellis's bill regarding indigent defense got to

the Governor's desk. One could hear the sigh

of relief when it was vetoed. Yet, why should

any of us fear a public defender system? I for one admit that the timing of the bill was unfortunate; it might have been more sensible to try and build consensus before intr6ducing any sudden changes. However, now that the system we have all grown accustomed to will be around for a little longer, I would like to open up some healthy debate on the topic, and invite response via letter or article regarding establishing a public defender system in Texas, or at least in HaHis County.

I should probably start out with a disclaimer. I have never been an Assistant Public Defender in any state or federal system. I did grow up in a state with such a system, and through service in Uncle Sam's Canoe Club (otherwise known as the United States Navy) I spent a great deal of time in another Gulf Coast state with such a system. It was called Florida, and I believe it is just east of here, first stop after Alabama. My father was, and is, a criminal defense attorney in Massachusetts, my home state, and my mother was an Assistant District Attorney for Essex County (anyone here heard of the Salem witch trials?) in Massach usettS. My father had considerable experience setting up and dealing with a variety of county public defender systems, and it is through his eyes, my mother's often

skeptical comments on defenders and defense attorneys in general and my own observations of the Florida system, that I see Issues.

I will try not to make statistical comparisons, since there would be no basis for comparison between states as different as Florida, Massachusetts and Texas. However, some broad principles should be applicable to our situation in this county. Last, I do not believe that a Public Defender's office is the panacea some folks think it might be; public defenders have many limitations and unique problems that private attorneys do not face. That said, a fair discussion of the issues might help make up

some folks' minds about whether to try it at all. First, one might ask, why have a public defender system at all? Well, if one truly believes, as I do, and as I think most folks do, that everyone is entitled to a good defense, then it seems only fair to provide a poor person with as good a lawyer as can be found. This does not entitle anyone to Gerry Spence or Clarence Darrow, but every accused should ideally be entitled to an energetic, competent attorney who will fight for him . We in Harris County provide that attorney via judicial appointment from a list of approved and certified attorneys, and we pay them at a rate Set by county officials. Other states have found advantages to doing it a different way. Believing that the only fair way to defend people prosecuted by a state-run, state-paid professional group of experienced prosecutors was to provide a similar system of state-paid, state-trained, state-su pported defense attorneys, these states set up a variety of offices, and funded them in a variety of ways. These other states found that their systems produced experienced trial attorneys in a relatively short time, and they found that they could provide extensive defense- oriented training so that, in theory at least, a young public defender would know the work of criminal defense very well. How they did it is instructive for Harris County, and for Texas generally. Massachusetts, for example, uses a variety of organizations, including contracts with criminal defense organizations, non-profit corporations set up to defend indigent people, and state organizations dedicated to indigent defense but not funded by the county governments. Using Massachusetts as a model for Harris County might actually be best, both because there happens to be an active and capable criminal defense bar here, and because a variety of approaches generally tends to work best in solving any problem. To demonstrate how such an amalgam of approaches might work here, I will try to create a fictional "Harris County Defenders" group, and offer a few theories on how it could be put together. I will also point out why it would not provide aJi the answers for people who dislike the present system.

A major problem confronting those desiring to create a public defender office in

Texas is that pesky separation of powers problem raised by the Texas Constitution. Appointments are a judicial function, and I frankly do not see how or why judges should relinquish it without a fight. After all, judges certainly should have a say in what goes on in theit courtS; that is why they were elected. I am not sure that any county or state agency has the authority to create any defender agency without the approval of the criminal court judges. The Code of Criminal Procedure does permit some county commissioners in certain counties to set up and fund a public defender office, and they appoint the public defender. However, there is no way for any group of county commissioners to force a district judge to

lawyers in their

courL (If the judges agree to this arrangement, fine. Nothing says they have to do so.) Also, the county government does not, at least in my reading of the Texas Constitution, possess the authority, absent an amendment or judicial concurrence, to set up such an agency. There is one simple way to bypass these problems, namely, to encourage the creation of a non-profit corporation that could then contractwith the administrative judge of the Harris County criminal court system for appointments, much as private attorneys do now in individual courts. The contract would obviously be larger, would not or should not be limited to specific courts, and the rates would be approved by the county commissioners. Lest my fellow attorneys are starting to cringe here at the thought ofJost business, or taxpayer watchdog groups want to start screaming about expense, I would like to point out a few things. First, a public defender system will never eliminate court appointments. There will always be conflicts and multiple-defendant cases, and they will need appointed attorneys. (Look at the Federal system if you doubt me.) Unless the public defender's office can hire as many attorneys as the District Attorney's office, there will have to be an "overflow" or case-limit requirement such that, after the public defender's office has reached a certain caseload per capita, new cases go to a list of qualified attorneys for

accept or permit certai n

Who~ Afraid of the Sig Sad Wolf? (continued)

appointments. The Texas Disciplinary Rules require arrorneys co only carry the workload that they can handle so that their clients get their best efforts; a caseload limit would be required in order to meet that mandate. Further, unless a capital defense unit is also created, with capital- certijied personnel at a salary level equal co what a private arrorney could reason ab ly expect to make taking such cases, capital cases, particularly here in Harris County, would still need to be appointed. Likewise appeals would likely still need to be appointed. Finally, some of us forget that generally half the criminal cases in Harris County are handled by hired lawyers. So a public defender organization, se t up as a nonprofit corporation that contracts with Harris County to represent indigents, would not kill criminal defense business. Change it certainly, but not kill it. Now co the t axpaye rs in the reading audience, let me remind you that a public defender sys tem is inherently smaller than the District Attorney's office, precisely because of the reasons mentioned above. ConAicts, co-defendants, overflow, appeals, and capital cases would all reduce the need for personnel. Also, keep in mind that a nonprofit corporation that has a contract

with the county is not the same thing as a

county agency!The taxpayers would not be paying for infrastructure (buildings, equipment), benefits or any other such thing. They would pay in bulk ro one group of lawyers what they now pay individually ro a larger group of lawyers to handle the same cases. In addition, as a nonprofit corporation, this hypothetical "Harris County Defenders" group would be able to seek other sources of funding legally, including grants and private donations. New York's Legal Aid Society functions in much this way, as do many other such corporations in Massachusetts. (Before anyone says "New York City!!??" remember that not evety idea from there is bad.) Alright, I have laid out some ways that judges can keep control of their court system, that the taxpayers won't be broken by the creation ofa public defender agency and how such an agency would not kill off all business for appointed attorneys. You might be thinking by now that I am arguing for JUSt such a system . However, having grown up seeing such things at work, I also got a bird's­ eye view of some of the flaws. Let me mention a few.

To start with, let me point out that the presence of a public defender system no more guarantees a competent dedicated attorney than the presence of a hospital guarantees competent dedicated doctors. Lazy, ineffective lawyers exist everywhere, in evety part of our profession, on both sides of the

criminal bar. Changing a title from "appointed" co "public defender" does not change the lawyer. Second, the court appointment system can work far berrer for some defendants than a public defender system for reasons I call the "Iorrery effect," the "Robin Hood" plan and "good judge" syndrome. The "Iorrery effect" means pretty much what it says; sometimes, in the appointed system, the defendant simply wins the lottery. I will use an office mate as an example: (co protect the innocent [not him, just the innocent]) no names will be used. This person is a former prosecutor, with about a dozen years of experience in criminal

trials at the state and

capital certifIed and eligible for board certification in Texas. His practice does not

depend on appointments, but he still rakes

first degree felony appointments and serves as "attorney of the week" in the courts of judges whom he respects. Most folks who have tried cases with or against him would

describe his style as

In a public defender system, the people who are attracted ro this work are typically fresh idealists just out of school, or still­ young former prosecucors who want to learn how to defend a case on someone else's dime before going private. Now, if you were a young felon looking at a possible 15-co life sentence for delivery of a controlled substance or a first-time offender who is genuinely innocent and charged due to mistaken identity, who would you rather draw as your a rrorney? The experienced trial warrior I just desc rib ed above or the typical assisrant public defender? The "Robin Hood " plan is one with which many of us in private practice are familiar. Sometimes a defense atcorney comes across a case, either appointed or pro bono, where she passionately believes that this case needs to go the distance, whatever the cost. Whether it is the actual innocence of the accused, or the sympathetic nature of the case, sometimes we just fight harder for some clients. In private practice, where we can set our prices and take what cases we feel like, it

federal level. He is


is possi ble for us to subsidize the poor or appointed defendant who needs an expensive expert or investigation (after the judge has turned down your request) by budgeting the fees for hired cases so as to cover one's loss on the pro bono or appointed trial marrers. In a nonprofit or county agency, where the funds are limited, one must follow the "needs of the many" theory and budget accordingly. Private arrorneys who take appointed cases thus have a freedom and a resource that public defenders do not. Private arrorneys can also limit their caseloads to the degree that they can devote more time to the cases and fights they believe in. An assistant public defender working for a nonprofit agency with an enormous caseload, who must justify every expense ro his supervisor and auditor, simply cannot do rhat. Lastly, the "good judge" sy ndrome is something else most of us are probably familiar with, at least in passing. Some couns, via a thorough knowledge of the attorneys who work there and a conscientious attention ro det ail in the indigent cases before them, seem co do an extraordinary job of matching an attorney to a case. A difficult fraud case goes ro the dogged lawyer with a nose for detail; the accused with mental illness goes to that skilled attorney with infinite patience and the hopeless case goes ro the person who JUSt will not give in and fights ro the bitter end for their client. We all know these courtS, and we a.11 like ro practice in them. A contract or county agency does rob the trial judge of some ability ro pick the right atrorney for the case. There is no doubt about that ; it is simply a trade­ off of efficiency versus choice. One gives up some of one to get more of the other. However, having seen it work to a defendant 's advantage, I for one might not like ro see this particular perk of the judiciary go away. These last few situations may not be the majority of those faced by indigent criminal defendants, but they are certainly a sizable chunk of the caseload. There are those who would argue that a public defender agency helps lift up the general professionalism and competency of the criminal bar, and that it does far more for the accused than a system of appointments. I suppose they may think so, but I tend to believe that depends largely on the caliber of the people that one puts in such jobs. I have known a variety of people

Who~ Afraid of the Big Bad Wolf? (continued)

in a variety of such organizations, and for

the most part they are dedicated and

motivated. I have found an equal number

of dedicated and motivated people in my

local defense bar. Perhaps that is where this

essay should finish.

I believe that there might not be a clamor

for a public defender agency if there was not

a perception, however incorrect or

unjustified, that the current appointment system is not working. That perception, at least in (he eyes ofsome pol iticians, may need

to be changed. The best way for us to change it is to strive to improve in every way and to inform the public about those efforts. Harris County requires the people seeking appointments to be certified by taking a course and an exam . Many counties do not require any such thing. Harris County requires attorneys to recertify periodically to stay on that list, and it requires all capital appointments to be made to people who have been certified to handle capital cases. I wonder how many elected officials know this, or how many of them have attended

meetings of either the Harris County Criminal Lawyers Association or the Houston Bar Association's Criminal Law and Procedures Section? How many members of the public know that HBA offers frequent Continuing Legal Education credits on exclusively criminal law topics? Or that every Wednesday HCCLA members can get an appellate case update for two dollars a credit hour? Or that HCCLA and HBA offer periodic seminars and conferences to increase member skill and knowledge? Or that HCCLA offers a "Mentor" program to young lawyers trying their first major case? I believe that if we in the criminal defense bar make a concerted effort to increase our own standards of representation and professionalism, and make our elected officials and the public aware of our efforts, that we would then be the best argument against changing the system. After all, any system is only as good as the people in it. If we improve ourselves, why do we need to change anything else?


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August / September 1999

HCCLA Annual Membership Party

HCCLA Annual Membership Party photo by Sissi Easterling photo by Russell Webb On June 24, 1999;
HCCLA Annual Membership Party photo by Sissi Easterling photo by Russell Webb On June 24, 1999;

photo by Sissi Easterling

photo by Russell Webb

On June 24, 1999; 175 members, judges and friends attended the HCCLA Annual Membership Party at the Majestic Metro. A buffet of a11-you-can-eat barbecue was served by Mikeska's Barbecue. Danny Easterling was inducted as HCClA President, and we honored the following "Lawyers of the Year" for their work in the City Hall BriberyTrials:

Richard "Racehorse" Haynes, Dick DeGuerin , Mike DeGeurin, Mike Ramsey, Dan Cogdell, Bob Bennett, Robert Scardino and Paul Nugent (see cover photo of all honorees except for Mike Ramsey who was out of town and could not attend). After the awards ceremony, music was provided by the live band, the Elite Fluids. A good time was had by all.

Sheep in Wolves' Clothes

A monthly column dedicated to exposing commonly overcharged offenses


This month's sheep are tampering with government-record cases, where the record at issue is an inspection sticker. These cases are being filed with ever-increasing frequency

in felony courts , often as second



(c) An offe nse under this section is a felony

that is used or designated for use in making


the third degree if it is shown on the trial


counterfeit inspection certificate or


the offense that the governmental record

insurance document.

was a license, certificate, permit, seal, tirle,

or similar document issued by government,

by another State, or by the United States, unless the actors intent is to defraud or harm

another, in which event the offense is a felony

(c) The owner of a vehicle commits an

offense if the owner knowingly allows the vehicle to be registered or operated while the vehicle displays an inspection certificate in violation of Subsection (a).

felonies, despite the fact that the proper


the second degree.



An offense under Subsection (a) or (c)

offense level is a class "B" misdemeanor.



a Class B misdemeanor. An offense under

The following motion to quash should be filed when possession of a false inspection sticker is charged as a felony. Ie explains why

TEX PENAL CODE ANN. § 37.01 defines governmental record. It provides in pertinent part:

Subsection (b) is a third degree felony unless the person acts with intent to defraud or harm another person, in which event the

explains these charges are mere, "sheep in


(2) "Governmental record" means:

offense is a second degree felony.

wolves' clothes."


a license, certificate, seal , tirle, letter


In this section:

of patent, or similar document issued by



"Counterfeit" means an imitation of a




document that is printed, engraved, copied,


photographed, forged, or manufactured by


TEX. TRANS CODE ANN . § 548 .603


person not authorized to take that action


proscribes display of a fictitious or



Now comes Defendan t in the above-styled

21.01 , 21.02,21.03,21.04, and 21.11 of

counterfeit inspection certificate or insurance



this chapter, rules adopted under this

and numbered cause, by and through his

document. It provides in pertinent part,

chapter, or other law of this state; or

attorney of record, and, prior to announcing


(B) a law of another state, the United

ready, moves that the indictment filed in this case be set aside by virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I §§t 10 and 19 of the Texas Constitution, and Articles 1.05,

(a) A person commits an offense if the person:

(1) displays or causes or permits to be displayed an inspection certificate or insurance document knowing that the certificate or document is counterfeit, tampered with , altered, fictitious, issued for

States, the United Mexican States, a state of the United Mexican States, Canada, or a province of Canada; (2) "Inspection certificate" means a document that is printed, manufactured, or made, by the department or an aurhorized

the Texas Code of Criminal Procedure, and

another vehicle, issued for a vehicle failing

agent of the department for issuance after a

TEX. GOV 'T CODE ANN. § 311 er.


to meet all emissions inspection

vehicle passes an inspection performed under

for the following reasons:

requirements, or issued in violation of:

this chap ter.

I. The Indictment



this chapter, rules adopted under this

(3) (A) and (B) germane only to insurance

Omitting the caption and formal

chapter, or other law of this state; or


averments the indictment alleges that, in



a law of another state, the United

(4) "Person" includes an inspection station

Harris County, Texas, hereinafter styled the

States, the United Mexican States, a state of

or inspector.

Defendant, heretofore on or about, did then

the United Mexican States, Canada, or a



Notwithstanding Subsection (c), an

and there unlawfully, with the intent that it

province of Canada;

offense under Subsection (a) (1) that involves

be used unlawfully, POSSESS GOV­

(2) transfers an inspection certificate from


fictitious inspection certificate is a Class B



windshield or location to another

requirements and are not germane to the case



windshield or location; (3).(4),(5) (deal with emissions

III. No Felony Jurisdiction Because the conduct purportedly


II. The Relevant Statutes and Definitions



proscribed by this indictment (TEX.

Tex . Penal Code Ann. § 37.10 condemns


A person commits an offense if the

PENAL CODE ANN. § 37.10 (Vernon

tamp e ring with a governmental record . Ie


1973)) is the subject of a more specific,

provides in pertinent part:



makes or possesses with the intent to

recently enacted misdemeanor statute (Tex.

(a) A person commits an offense if he:

sell, circulate, or pass, a counterfeit


Trans. Code Ann . Section 548.603 (Vernon,

(4) possesses, seils, or offers to sell a governmental record or a blank

inspection certificate or insurance document;

1995)), this court lacks jurisdiction, and the indictment ought to be quashed. It is a well

governmental record form wirh intent that



possesses any part of a stamp, dye,

settled principal of code construction that

it be used unlawfully.

plate, negative, machine, or other device,

when a general and a specific statute conflict,


August / September 1999

Sheep in Wolves' Clothes (continued)

the special statute controls. See, e.g. State v. Eversole, 889 S.W2d 418, 425 (Tex. App.­ Houston [14th Disr.] 1994, per. ref'd); Ogilvie v. State, 711 S.W2d 365 (Tex . App .-Dallas 1986 , p er. ref'd). And when a general statute and a more specific statute both proscribe a defendant's conduct, he should be charged under the more specific statute. Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988). If there are irreconcilable conflicts between statutes as to elements of proof or penalties for the same conduct, then the more specific statute controls. Rodriguez v. State, 879 S.W.2d 283,285 (Tex. App.-Houston [14th Disr.] pet. ref'd). These principals of in pari materia are codified in the Government Code .

TEXGOV'TCODEANN. § 311 er. seq. provides in pertinent part,

(i) Special provisions prevail over general.

(a) If a general provision conflicts with a

special or local provision, the provisions shall be construed, if possible, so that effect is given to both . (b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision , unless the general provision is the later enactm ent, and the manifest intent is that the general provision prevail.

TEXGOV'TCODEANN. § 311 er. seq. \1C'"here the special statute is complete and

specific within itself, it controls even though


matter contain requirements not enumerated in th e special statute. Williams v. State, 641 S.W2d 236, 238 (Tex. Crim. App. 1982); Jones v. State, 552 S .W2d 836, 837 (Tex . Crim. App . 1977); Sarratt v. State , 543 S.W2d 391, 392 (Tex. Crim. App. 1976).

other statutes concerning th e same

TEX PENAL CODEANN. § 37.10 and Tex. Trans. Code Ann . section 548.603 both proscribe the same conduct. Although 37. 10 is broader, in the instant application , both statutes deal with the same general subject matter and the same persons or class of persons. In the context of this prosecution, they have the same purpose. Moreover, Tex. Trans. Code Ann . section 548 .603 is complete as well as specific. 548.603 levies out misdemeanor punishment when the offense is displaying a counterfeit sticker, but it also mandates harsher felony punishment

for possession with intent to sell, or for possession of the implements necessary to manufacture th e documents (See, subsections (a) and (b) respectively.) This makes sense. It is a complete scheme . Mere possessors or displayers of the fraudulent documents suffer misdemeanor penalties while those who produce them do so at the peril of a felony conviction. TEX PENAL CODE ANN. § 3 7. 10 lacks this distinction, is not complete, and therefore has been supplanted by Section 548 .603. Though not codified, the rule of lenity provides that when faced with two irreconcilable penal statutes, a court should interpret them so as to give the benefit of the doubt to the accused . See ego Moskal v. United States, 498 U.S . 103, III S.Ct. 461 ,

112 L.Ed .2d 449 (1990).

Defendant also contends that common

sense dictates that this offense could not rise

conduct condemned as

felonious when such crimes as: resisting arrest, TEX. PENAL CODE ANN § 38 .03 ; evading arrest, TEX. PENAL CODE ANN. § 38.04; hindering apprehension, TEX. PENAL CODE ANN. § 38.05; escape TEX. PENAL CODE ANN . § 38 .07; and bail jumping TEX. PENAL CODE ANN . § 38.11, are all misdemeanors in the absence of substantial aggravating circumstances.

to th e level of

TEX. PENAL CODE ANN . § 1.02 (3) provides in pertinent part:

The general purposes of this code are . (3) to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders. Among the other offenses categorized as felonies of the third degree ar e: (I) kidnapping, § 20.03; (2) sexual exploitation

by a mental health services provider, § 21.14 ; and injury to a child, elderly individual, or

invalid, § 22.04 . The

this assertion illustrates the improbability that the legislature actually intended to punish those who possess a fictitious

inspection sticker as third degree felons . WHEREFORE, PREMISES CON­ SIDERED, the defendant prays that the Court order the indictment in the above- numbered and entitled cause quashed and the case dismissed.

nonsensical nature of

On this the_day of_, 1999, came on to be considered Defendant's Motion to Quash the Indictment, and said Motion is hereby (GRANTED) (DENIED). SIGNED on the date set forth above. JUDGE PRESIDING



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August / September 1999



Beating the Odds

Reflections on trying and winning a homicide case involving the death of a child


In April of 1999, I tried my first homicide case before a jury in the 182nd District Court. The four-day trial resulted in an acquittal of all charges against my client by a jury that deliberated for 35 minutes. In my ten years of practicing law in Texas, I have tried just about every type of criminal case except for a homicide. Given the opportunity to be involved in this important case, I jumped at the chance. Eager to win the case, I quickly discovered that I was seriously outnumbered by State witnesses, including members of the police department, district attorney's office and the county medical examiners, who teamed up to create a tremendous number of accusations against my client. Although I have never published my feelings pertaining to any jury trial I participated in, I feel compelled to share my experiences during this trial, to show all

of us that the little man can win, against

tremendous odds and an emotionally charged set of alleged facts.



My client put his infant son to bed in his

room to sleep for the night and, for some unknown reason, the child died in his bed. My client discovered the lifeless little body the next morning. Finding him cold, my client moved the child towards the phone, called 911 and attempted CPR on the child.

A short time later, the paramedics arrived

and moved the child to a hospital, where he

was quickly pronounced deceased. The deceased child's family was struggling

to get by, merely earning enough to pay the

bills for a family of four, living in a crowded one-bedroom apartment. The child's room was a large walk-in closet, his bed and blanket was a large sleeping bag and the child was less than one year old. His young parents did the best they could and believed that allowing him to sleep in a sleeping bag was safe and affordable. They also thought that the large closet was big enough for him to sleep in and that closing the door to the closet when he first went to sleep would calm him and shut OUt the majority of noise and light.

Immediate Suspects &


Almost immediately, the police officer working the case treated this as a homicide, describing the circumstances of the death of the baby in the worst possible manner: as an infant, wrapped in a sleeping bag, placed in a closet with the door shut with the thermostat at 82 degrees and not being checked on for 12 hours. Feeding on this frenzy, all police officers assigned to this case seemed to follow that lead as they pounced on the grieving parents at the hospital, splitting them into separate rooms, guarded by officers , and interrogating them endlessly. The parents had discovered the child only a couple hours before meeting with the police at the hospital and coming to the realization they were targets in a murder case. An autopsy was performed the next day, and the results of the examination by the county medical examiner's office were reported some eight weeks later. The finding was "cause of death: asphyxia associated with lack of custodial care." My client was formally arrested shortly after the report from the M.E. was made public. His wife and he were interrogated a second time for hours on end, and he was finally arrested. My client made written statement as to the even ts of that night, in which he recalled "tucking" his child in the sleeping bag and putting him to bed. He cooperated completely with the homicide detective, yet he was still the center of the investigation. Because his wife was not home that night, she was not charged with a criminal act.



Formal Charges Filed

The prosecutors charged him with "injury to a child," going with intentionally and knowingly, or recklessly causing serious bodily injury to the child, by wrapping the child in a sleeping bag. My client quickly learned that the prosecutor's first offer was in the neighborhood of 40 years in the penitentiary, later lowered to the rejected offer of six years for reckless on the day the trial began. The prosecutor originally working the case told me that a jury would despise him, and that he had better take the deal.

The State felt confident that my client, who had been in trouble in the past with misdemeanor cases of carrying a weapon and assault, would certainly go down in flames for "killing his kid." The projected DNA evidence that the child was deep inside the bag and an extensive study performed by medical experts and at least a handful of police officers bolstered this confidence. "How in the world would you ever find a jury to listen to your idea that putting an infant in a sleeping bag in the closet was normal or reasonable?" I heard that statement so many times while I was attempting to convince the State to dismiss the case under a theory of accidental death; they seemed blind to the possibility of that contention, relying so heavily upon the autopsy report and the homicide detective's claim of a "wrapped" child.

IV. Establishing A Plausible


Every parent of a new born baby knows and fears the dangers of their infant dying in its sleep for some unknown reasons. These accidental deaths fall under a category termed Sudden Infant Death Syndtome (commonly called SIDS). It's also known as, "Crib Death." Being a diagnosis of last resort in unexplained deaths, SIDS is a catch­ all grouping, in which specific cause of death in children under the age of 12 months old cannot be positively identified. Parents routinely put their children to bed and discover shortly thereafter a dead child, who was not choked, beaten or tortured . It does not appear to be a heart attack situation, but rather some unexplained reason for the child not getting himself into a more effective breathing position. Victims of SIDS are usually males, no older that 10-12 months, found face down in some blanket or cloth material, rebreathing expelled air for a time long enough to cause some rype of cessation of the breathing process. Knowing that I could not afford to hire a medical doctor to explain this terrible disease or cause of death to the jury, I had to score on my cross-examination of the medical examiners and any other persons, as to their knowledge of SIDS in cases like this one.


August / September 1999

Seating the Odds (continued)

My client's entire defense rested upon my cross. If I was able to show some similarities to SIDS, I hoped to create some reasonable doubt on the homicide issue. I further developed the theory of an accidental death caused by SIDS by extensive

research at the

University of Texas M edical

School library, where I found many books and articles on the causes of SIDS and findings over the last fifty years . I implore

anyone looking into such a defense to do such research, which proved to be critical in challenging and ultimately destroying the medical examiner's findings in my case. I copied many articles and passages from weU­ known treatises on SIDS, and prepared to use them during the trial if necessary. Years of cross-examining insurance company doctors when I practiced {un}civil law, came in quite handy when I began compiling my strategy for my defense. Armed with my medical journals and articles, I felt confident I could demonstrate to the jury that my client lost his baby to SIDS.

V. Jury Selection

Those of you who try cases aU know th a t the right jury wins your case. The panel had to hear that a sleeping bag had been used for an infant's bed in the closet, which I knew would inflame the group. I patiently sat through the State's presentation, which involved constant references to the image of

someone intentionally injuring a child with a bat. We both felt the heat emanating from the panel, as they began to connect my client with that image. When the State suggested that probation for someone doing such an acr was unacceptable, the panel continued to look at us like we had committed mass murder. My approach to the panel was simple:

warm them up with some mild humor, explain th e importance of jury trial s, then move right to the heart of the matter. I told the panel rhat desrroying a child with a bar was an act that should be punished, but what

child suffers an accidental death . In a

matter of five minutes, I carefully tested th e waters about accidental deaths, being parents and the dreaded four-letter word "SIDS ." Much to my surprise, the panel began to look at my client not with hatred but with

compassion and sympathy. After one-third of the panel of 60 explained their personal

if a

experiences with losing a child to SIDS, I was able to shift visions of infant deaths away from violent causes to accidental ones. Having warmed them up to an accidental

death theory, and scoring tremendous

I needed to defuse the sleeping bag bomb.

First, I raised the idea of allowing a youngster

to use a sleeping bag, nothing murderous

about that, right? From the youngster, I

mo ved on to infants in slee ping bags.

Mi ss ion accomplished ; the panel had learned

exactly what my case and defen se we re and responded so positively that, as a group, it

concluded that the State was trying to create

a n intentional murder out of an unexplainable, accidental tragedy. After we selected ten men and two women , the jury was sworn to their oaths, took their seats and looked at my client and me with a compassion. I knew then and there that I won the most important part of the trial ; yet unknown to me, the best w as yet to come .

po ints,


The Truth Shall Set You Free

Smoke & Mirrors:

Ending my voir dire with the sleeping bag issue made the transition to my opening statement easy to grasp. I informed the jury that accidents happen every day. Sometimes people get hurt and die. Sometimes the victim of an accident is a child. I went on to explajn the facts from the defensive posture

I anticipated I could prove, all pointing to an accidental death. I did not mention SIDS , since I was not sure how my cross would come out.

The State, in its opening statement, was calm and almost cold, revealing a story that the homicide detective conjured up, of wrapping the infant too tightly into the

sl eeping bag, putting him in the closet and

not checking on him for a long time,

suggesting an intentional, knowing, or reckless act. As the drama unfolded, I was hit with a barrage of many witn esses, including the officers who interrogated my client and his wife, officers who took evidence at the apartment, family members and witnesses

to my client's parental skills. Attempts were

made to show extraneous acts of abuse by my client on the decedent, as well as his step­ daughter. And of course, the State had it's medical examiner and DNA "experts" tell the jury how they believed this to be a

homicide by neglect type of case . Three days of witnesses were called, crossed and recrossed. I learned, duting my cross of the State's witnesses that:

1. Defendant was the only person that

found the child, immediately called 911 and

was seen giving CPR to the child in th e right manner;

2. Defendant's apartment , although

sparsely furnished, was very clean , a nd not riddled with roaches, vermin and the like.

There was not much to eat in the refrigerator, despite the fact that the children were well nourished; 3. The police at the hospital were immediately ordered to separate the grieving parents, since they were both suspects, according to standard police procedure, which was not very sensitive to young parents who just discovered their dead infant hours before;

4. The police began interrogating my client

and his wife at the hospital while both were

in shock over rhe loss of their child;

5. The chief homicide detecti v e failed to

inspect the site of rhe child 's d eath , but merely relied upon other officers' rendition;

6. The same detective ordered or suggested to the medical examiner's to go into the autopsy to rule out SIDS;

7. That although Defendant cooperated

with the police, his wife did not, making up stories as to her whereabouts the night of the child's death, leading to her telling three

stories to the police, and gaining zero credibility (yet the State seemed to believe that the jury's hating her for lying automatically meant they would hate my client or disbelieve his statements to the police);

8. Officers investigating the scene made

tequests to the m edical examiners to make a finding against SIDS or to further examine

stains found on the carpet where the child was found {neither of which was ever done by anyone}; 9 .Thar the medical examiner relies heavily on the recomm e ndation s from the police in making their findings and does not even go to the scene of a "crime" to make personal observations in the course of preparing an autopsy; or, to look at it another way, the M.E. serves as a branch of the police department in working to prove a homicide instead of exercising independent judgment as to a basis for a cause of death;

Seating the Odds (continued)

10. A photograph of the thermostat in the

apartment showed that the device was, in the pic ture taken, set at 82 degrees, while

the top marking looked like the temperature was presently in the 70's (this disposed of the State's theor y that the hotter the temperature in the apartment the hotter closet temperature; yet the police could not tell the exact temperature during the night, did not submit Defendant's light bill, and could not get around our testimony of either the door being open while the first four

policemen investigated the site or that Defendant often turned off the thermostat when he left, or that the police may have turned the device up for their own purposes) ; 1l. That the child could have died 4-12 hours before getting £0 the hospital bu t that

a more definite time could have been

established by a simple potassium test that

was not done;

12. There was absolutely no proof of any

previous abuse £0 either of the Defendant's


13. That Defendant adored his baby son,

and wok as good of care for him that he thought was bes t, including a 20-minute

videotape showing the child 's first and only Christmas with his family;

14. That the chief homicide detective

knew what SIDS was, but insisted that the


.E. not make such a finding for the cause



15. That the medical exam iner has

testified for the State in some 70 cases involving murder and homicide, but never for an accused; that such medical examiner did not find any physical proof of abuse on the body; that no lab tests were completed

or pe rformed on the child 's clothing or involving the carpet stains because it "cannot

be done" (whi c h is not tru e-an y

can do the testing) ; and that in this case, there were more symp£Oms for SIDS than asphyxia; that SIDS is a real cause of death that snatches up young babies without explanation ; that many articles and presentations are done with SIDS in medical seminars; that she was well aware of SIDS; that asphyxia can be accidental; that she did not go to the apartment to see the site personally, even though she admitted to the fact that the e nvironment is an important


facror in a SIDS case; that the child probably died in a period of no more than 5 minutes;

16. That the medical examiner admitted

that a cause of death by SIDS would negate

a homicide case ; and that there were more symp£Oms of SIDS here than asphyxia ; 17. That a DNA "expert" from the county examiner's office tested the sleeping bag, outside on the corner (not finding any eviden ce or DNA to the child , as well as a large piece of th e inside tested, resulting in no presence of DNA from the child (which destroyed the State theory that the child was even wrapped in the sle eping bag, as first projected by the detective). At least four times, I approached witnesses

£0 demonstrate how the sleeping bag was us ed, found or tested. I sat on the floor of the cramped courtroom, allowing the Defendant or DNA witness to show me testing sites or the position of the baby. Each time a demonstration was performed, the

jury seemed to jump out lean in to our space, so I

attention. My summation was emotional and

of the box , and knew they paid

succinct. All the evidence pointed to an accidental death caused by SIDS. The jury deliberated for thirty-five minutes or so, came out and acquitted my client. Overall, they told me that my client did not act criminally, even though he had not used common sense in putting his child £0 bed for the night.



W e all have cases with difficult facts £0 explain. I always thought that a solid and open-minded jury would not have £0 like my client's parenting skills but would only have to be open £0 the idea that his acts did not rise to criminal liability. This case showed me that no matter how much the State has against us in personnel, research capabilities, wi messes, experts and the like, that good old-fashioned common sense, humanization of the accused, informative cross-examination and a simple defense theory will often bring you success.

and a simple defense theory will often bring you success. 11 am ­12 pm, tues. -thurs.

11 am ­12 pm, tues. -thurs. 11 am ­2 am, ~i. Gpm ­2am, sat. closed, sun. &mono


August / September 1999



(listed in

the order they were received by the edicor)

Rosa Eliades and Angela Cameron _ Burglary of a Habitation with Intent co Commit Sexual Assault in the 248th Districr Coun

Dave Pendleton - Robbery in the 174 th District Coun

Rick Casrleberry -


DWI , no

test, in

Brian Coyne and Dick Wheeler - Capital Murder, life sentence when Sta te sought death.

Jay Karahan -Aggravated Robbery in the 262nd Disrrict Court

Don Becker - Aggravated Robbery in the 351 st Districr Court

Jack Carroll -

Assault in CCCL#6 ­

Intoxication Manslaughter-Probation in 262nd District Court - Assault in CCCL#14 - Burglary with Intent to Commit Aggravated Assault (ADA Devon Anderson's only not guilry verdict in 70 jury trials!)

Trude Scott - District Court

Forgery in



Jon Munier -

Gambling in CCCL#5 _

Assault in CCCL #7

Danny Easterling -

CCCL #11.

D\'V'I , no test,


WOULD YOU BELIEVE? Jon Munier recently brought in a young man who

wanted co turn himselfin on a four-year old

murder arrest warrant in a neighboring county south of here ; the sheriff's department asked him ifhe could corne back after lunch

CONGRATULATIONS to Assistant District Atcorney Jeff Laird of the 209th District Court on his marriage to Sarah Barnes, a CP.A.

District Court on his marriage to Sarah Barnes, a CP.A. Upcoming CLE The After Hours eLE



The After Hours eLE

Social 5:30 p.m. - 6:00 p.m. CLE 6:00 p.m. - 7:00 p.m.

At the Solero Swank Lounge 910 Prairie (upstairs room) Houston, TX Refreshments - Cash Bar

0<)/ 14/l)()

rre~ervation of Error in Voir [)irc - Judy Princc

10/12/l)<) Punishmcllt ()priollS. (:oILllcral (:ollSeljuL'nlt, &


Scxual Ofil:lldm - CarilL'rilll' Crecn Burnett

CClleral Trcnd ,

II/Ol)/<)l} Inmatcs and Thcir bmilil's IlItroJul'lioll to Prisoll

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Children and
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Trinity Foster Care needs competentfoster parents to serve as members of a
professional team to protect and nurture children and strengthen families.
Because every child deserves a chance to laugh, play, dream, learn, and grow.
Trinity Foster Care
11500 Northwest Freeway
Suite 465
Houston, TX 77092
Office (713) 957-8442 Fax (713) 688-5220
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