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Richard Frankoff
Wayne Hill
Troy McKinney
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Emil yMunol
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Mary Acosra
Lon Brooks
Wi nsron Cochran
Rosa A.Eliades
Ron Hayes
Davi dJones
Jay Karahan
David Kiatta
David Mircham
TyroneC. Moncriffe
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PaulSr. Joh n
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ClydeWi ll iams
1971- 1998
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George J. Parnham
Garl and D.McInni s
Robe" A. Moen
Lloyd W.Oliver
From thePresident ........................2
ResolutionofHCCLA ......................4
ApprendiintheFifth Circuit .... ...7
BackFrom theDead....... . ... 10
TheArtof r .................. 12
Clientsandthe TexasParoleSystem ...... ..14
UpdateonJudicialCouncil ................18
Winning~ r r o r s .......................20
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Recently because of a not guilty my OW1
client received, I got welcome but unfounded
accolades. They were welcome because it had
been so long since I had heard the words
"not guilty" and my client's name in the same
verdict that I asked for the jury to be poled.
They were unfounded because the
performers of Cirque du Solei I could not
have done better on the Field Sobriety Tests
(FST) than my client. It was not my
competency that won the day, but the
prosecutor's unwillingness to recognize or
accept reality. A good attorney would have
gotten the case dismissed.
We are supposed to lose, aren't we? Most
of our clients have done bad things, are bad
people, or both. If our clients are going to
lose, we just want them to lose by fair and
just rul es. So, to all of us who stand next to
our clients as they get pounded and pounded
by the prosecutor, judge or jury, let us
remember we are to keep fighting regardless
weather or not we hear those inspirational
words, "not guilty." Our true victory is the
reward of knowing that each and every time
the government seeks to accuse and punish
rhose whose liberty has been entrusted to
our care, we have dedicated ourselves to their
well being, whatever fortune should bring.
Six months ago I took the reigns from
HCCLA from Danny Easterling and in six
months I plan to turn them over to Wayne
Hill. In that time, I have realized the
schizophrenic nature of this organization.
Webster defines schizophrenic as,
"contradictory or antagonistic qualities of
attitudes." Fortunately we don't hear voices.
Like any professional organization our
primary purpose is to service our
membership. But, because of the unique
nature of our practice, another equally
driving purpose we have is advocating for
justice. These dual purposes, at times, may
be conrradictory or antagonistic.
Unfortunately, we are an organization of
limited resources. We, therefore, must divide
our energy, time, and money between these
two goals: service and advocacy, We must
prioritize, pursuing those aims and objective
that we have set. Otherwise we seek much,
while accomplishing little. I hope my
administration has done this.
Emily Munoz, our treasurer, computerized
the books so that we now have an idea of
where we are getting our money from and
where it is going. President Elect Wayne Hill
with Kevin Fine are presently planning a
membership drive to bring up our numbers.
Long time board member David Mitchum
has offered to review past records to set up a
historical archive. And Rosa Eliades, The
Defendereditor, continues to push everyone,
myself included, to submit articles for the
next, and even better, edition. The executive
committee has prepared, subject to board
approval , a 2001 calendar what will Stretch
from this administration to the next. We
hope this will become a regular effort aiding
the continuity of administrations. Board
member David !Gatta is looking into group
medical insurance for the membership and
Vice President Troy Mc!Gnney had gotten
us approved to become members in a credit
Last year after the tragic passing of Donald
Davis, we had a seminar attended by over
seventy-five people of "Coping with the
Practice." It dealt with the stress of the
criminal law practice and how to deal with
it. More than likely, this seminar will be an
annual event. This year we are rejuvenating
the monthly after hour's seminar and social.
Also we are planning a major seminar in May
with the distinguished speaker Stephen Ceci.
Hopefully this will be as financially successful
as our Terry McCarthy seminar a couple of
years ago. In the fall we will have our
traditional CLE in Galveston.
And let us not forget our great Holiday
Parry at Spy last year and our Annual
Meeting and Banquet planned for June 15,
2001 at Tony's Ballroom again.
But, as I stated, service to our members is
only half of our purpose. Advocating for
justice is the other half. Vice President Troy
Mc!Gnney has been working on a policy
position paper with supporting evidence that
should challenge some of the system's
injustices. Member Neil Davis wrote the
HCCLA letter regarding the plaques in the
courthouse lobby relocation that is now the
attention of the county comm issioners. The
Flood brothers and new member Louis
Vallejo have challenged judges' appearance
of bias by their being on the CAC judicial
advisory committee. Whenever I have heard
a judge or prosecutor's comment that appears
unjust, unfair and unnecessary, I have rried
to quickly respond with HCCUs position
for a more balanced view.
But our work is just beginning.
Continuing to servicing our members and
advocating in the community is what
HCCLA is all about and does best. Let's keep
up the good work.
Spring 2001
A Personal Perspective
I have been a criminal defense attorney
for nearly four years . Before becoming a
criminal defense attorney, I was a prosecutor
with the Harris County District Attorney's
Office fo r over six years. Since I have worked
both sides of the docket , I can usually see
both sides to most positions in the
courthouse. However, there are still some
things that occur that just don't seem to make
sense. I'm sure some people may be upset by
these observations but they are only my
observations. So if one of the upsets you,
then just quit reading or do something about
1. If Texas law does not permit a person
to be held without bond on a mi sdemeanor
charge, then why does it still occur? I've heard
the argument that the person is only being
held until a magistrate can set a bond and it
sounds like a crock to me. It's not unusual
for a person to be in jail over 48 hours before
seeing a judge and then wait for the clerk to
get around to entering the bond. By then
the defendant is being pulled from his cell
to go to court and will have to wait some
more. I wish some of the judges would try
explaining this situation to a defendant's
famil y who is trying to POSt the bond that
has yet to be set.
2. If bonds are supposed to guarantee a
persons appearance in court why do some
judges find them insufficient and raise them
when the person is present in court for his
initial appearance?
3. Why do some courts have weekly urine
testing as a condition of a bond? Does urine
testing somehow relate to a person appearing
on a court date? Not to mention that weekly
testing is expensive and can interfere with
reporting to work.
4. Whydo some judges feel like the money
for court-appointed attorneys fees comes out
of their pocket. Is it a control thing? If the
judges don't have control over the D .A.'s
budget, then why do they have control over
how much the defense spends? Personall y,
I'd rather argue with Commissioner's Court
or Charles Bacarisse about how much my
voucher is ? Although afrer thi s article, I
probably won't have to worry about
submitting any vouchers.
5. What is it about out-of-court-hours for
appointed attorneys that get some judges in
a frazzle? As attorneys, are we supposed to
be Carnack rhe Great and predict how many
hours it will take us in advance to work on a
case? I've never been too great at predicting
the future . I've yet to see a judge ask a
prosecutor how many hours he or she
anticipates spending or has spent working
on the case ourside of the courtroom.
6. While I'm on the subject, why aren't
court-appointed attorneys supposed to be
paid for jail visits. I'm sorry, I mean "routine"
jail visits. What the heck is a "routine" jail
visit anyway? Is it when I go to the jail to
discuss the case with a client or when I go to
simply exchange warm fuzzies with the
person whose life you hold?
7. Why do some judges go so far out of
their way to assist ptosecutors? Now I admit
that I enjoyed this when I was a prosecutor
but aren't judges supposed to be neutral and
detached? Not long ago a heard a judge reject
a plea bargain because she was afraid that
the plea bargai n violated D.A.'s office policy
and she didn't want the prosecutor to get
fired . \'ifhat if the defendant fired the lawyer?
Would the judge then accept the plea out of
concern for rhe lawyer> Would she care about
the probable grievance or lawsuit to recoup
the fee paid to the lawyer? Just something I
think about ?
8. Why is it that some people just don't
get that the elevators don't work well and
many days it can take over 30 minutes to
from the metal detectors to the courtroom?
9. If Article 26.04 of the Texas Code of
Criminal Procedure says that judges may not
deny counsel solely because the defendant
has posted or is capable of posting bail, why
do most judges tell a defendant that since
he posted bond he can hire his own attorney?
10. Why can't the stairwells be opened on
floors eight through eleven? Are the security
needs for misdemeanor courts greater than
felony courts?
11. Why don't some courts care about a
lawyer having a life outside of the
courtroom? I've seen courts try to force one
prosecutor to go to trial on another
prosecutor's case. Often it doesn't seem to
matter to some rhar you have been in trial
the previous day or week. There is work that
can not be done in the courtroom. Besides
being trial lawyers, many of us are also
spouses, parents, civic volunteers, little league
coaches, etc.
This is definitely not an exclusive list of
things that upset me but hopefully it will
give you something to think about.
Now the good things about practicing
criminal law in Harris County definitely
outweigh the bad. Generally we are treated
with courtesy and professionalism or at least
Iwas until I wrote this article.
Annual Meeting
and Banquet
June 14th
HCClA Seminar
on the Reliability
of Children's
Testimony &
Defending aSexual
Assault Case
May 17-18
Spring 2001 THE DEFENDER 3
HCClAResoulution Regarding Revocation ofBonds
HCClA Resolution Regarding
The officers and direc[Ors ofthe Harris
County Criminal Lawyers Association
unanimously approved a resolution
condemning the longstanding practice in
HarrisCounryand throughouttheStateof
Texas ofrevoking the bail bonds ofpeople
who do not hire a lawyer. The resolution
follows thisshorrdiscussion.
Thepracticeofrevokinga person's bond
simply and solely because such person has
made bond and then failed, chosen, or
refused tohireanat[Orneyexpresslyviolates
theCodeof CriminalProcedure.TEX. CODE
CRIM. PROC.ANN. art. 26.04provides,"[tJhe
courtmaynotdenyappointedcounsel to a
defendantsolely because the defendant has
posted or is capable of posting bail."
Moreover, it has long been held by Texas
appellate courts that a trial judge may not
revoke a person's bail bond because the
personhasfailed tohireananorney. Meador
v. State, 780 S.w'2d 836 (Tex. App.-
Houston[14thDist.] 1989,pet. ref'd). Just
as importantly,atrialcounmaynotordera
person, as a condition ofbond, to hire
counsel. !d. 780S.W. 2dat837.
Although some judges may be ofthe
opinion rhat a person who can afford to
make bondshould be able toafford to hire
an anorney, a person may be too poor to
employ counsel and yet not be completely
destitute. An accused may have some
to make bond, but not enough available
funds, which can frequently amount to
thousands or tens ofthousands ofdollars,
to secure counsel in view ofthe nature of
the charge pending against him. Ex parte
MAILORDERTO 1610Richmond,Houston,Texas77006.
Bain, 568 S.w'2d 356 (Tex. Crim. App.
1978). Similarly, a person may have been
able to make bondonly becausea friend or
relative provided thefunds. Inanyevent, it
is equallywell established thattheabiliryto
secure a bond is not , standing alone,
sufficient to warrant a refusal to appoint
counsel. Harriel v. State, 572 S.W.2d 535
(Tex. Crim.App. 1978). CfEx parte King,
550 S.w'2d 691 (Tex. Crim. App. 1977);
Stearnes v. Clinton, 780 S.w'2d 216 (Tex.
Crim. App. 1989) (the power ofthe trial
atthecoun'sdiscretionarywhim); Buntion
v. Harmon, 827 S.w'2d 945 (Tex. Crim.
App. 1992)(oncecounsel is appointed, the
trial judge is obliged to respect the
anorney-clientrelationshipcreated through
Havingalawyeris arightprovidedby the
Texas andUnitedState's constitutions. Itis
not an obligation. While a represented
defendant may be easier for courts to deal
with, it is not, under any circumstance, a
justificationforajudgero placeaperson in
portions of the resolution that call for
grievances to be filed with the Judicial
Conduct Commission, as one potentially
appropriate response, the only goal ofthis
resolutionanditscall ro action is ro end the
practiceofpeoplebeingincarceratedfor not
havinganattorney. Ifthepracticeends,then
no grievance, mandamus, orhabeas corpus
will ever be filed. Ifthe practice does not
end, then all appropriate action must be
taken. TheOfficersandBoardofHCCLA
encourage its members as well as other
anorneys across the State ofTexas to do
everything reasonably possible to help end
thi s despicable, illegal, unconstitutional,
immoral, and unethical practice.
Whereas, it is the mission ofthe Harris
Counry Criminal Lawyers Association to
"Educate and Inform the General Public
Regarding the Administration ofCriminal
Justice" and it is among the goals ofthe
Association to "ensure...due process, and
justicefor personsaccusedof crimes"andto
"keep membersand the public informedof
Whereas, it has been and is the practice
andpolicyof manyjudgesin HarrisCounty,
Texasandelsewhere to revoke thebondof a
a time period prescribed bysuch judge;
Whereas, it has been and is the policyof
some judges in Harris County, Texas and
elsewhere to order accused citizens to hire
citizen fails orchooses not to doso, to hold
suchcitizen in contempt;
counselisarightafforded toacitizencharged
Constitutions and not a legal or
constitutionalobligationof such person
Whereas, the only legitimate purpose of
a bail bond is to ensure the presence ofthe
citizen accused in the court in which such
person is charged;
Whereas, bond and the revocation of
and elsewhere ofrevoking the bail bond of
any person because such person has failed
orchosen not to hirean attorney.
Be it Further Resolved by the Harris
CountyCriminal Lawyers Association that
reasonable, necessary, and appropriate
actions may include one or more ofthe
1. Immediately upon witnessing the
improper revocation ofa bail bond on the
basisandfor thereasonthatsuch personhas
failed or chosen not to hire an attorney,
advise the judge in the presence of the
ofa person on the basis and for the reason
thatsuch person has failed orchosen notto
hire an attorneyis unconstitutional, illegal,
and a violation ofthe Code ofJudicial
2. Collect relevant informationaboutthe
case, the citizen accused, and the
circumstancesand, as appropriate:
or a member ofthe Board ofDirectors of
the Harris County Criminal Lawyers
of mandamus to compel such judge to
withdrawthe illegal revocation ofbond;
judge's revocation of bond is
unconstitutional, illegal, and a violation of
theCodeof Judicial Conductand advising
to pursue certain remedies, including a
mandamusanda complaint to theJudicial
D. Advise the Harris County Board of
E. Advise thepress; and-or
F. ReferthemattertotheJudicialConduct
Unanimously Adopted, Approved, and
Sanctioned by the Officers and Board of
DirectOrs ofthe Harris County Criminal
bond may not be used as a tool of
theUnited States andTexas Constitutions,
to followthelawsenactedbytheLegislature,
and to abide by the Code ofJudicial
Whereas,judges have no inherent, legal,
constitutional, ethical or moral power or
has failed orchosen notto hireanattorney;
Whereas, a person who has failed or
chosen notto hirean attorneyshould have
his case treatedanddisposedofin thesame
manneras ifhe had retained an attorney;
Whereas,judges have no inherenr, legal,
constitutional, ethical or moral power or
authority to hold an accused citizen in
contemptforfailingorchoosingnotto hire
an attorney;
Be it Resolved by the Harris County
with its mission and goals, its members,
associates, and affdiates are encouraged,
requested, and implored to take all
reasonable and necessaryactions toend the
unconstitutional, illegal , and unethical
practice byjudges in Harris County,Texas
Children and
Family Services
Trillity FosterCare IleedsCOIllpctclltfo.\terparelltstosen'eas
members protectalldIlllrtlire
to laugh, play, dream, learn, andgrow.
Office(713) 957-8442 Fax (713) 688-5220
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Apprendi's Holding
Other than the fan of a prior conviction,
any fan that increases the penalty for a crime
beyond the prescribed statutory maximum
must be submirred ro a jury, and proved
beyond a reasonable doubr.
This is the Supreme Courr's ruling from
last J LIne in Apprendi v. New Jersey.I
The majority in Apprendi consisted of
Justices Stevens, Scalia, Souter, Thomas, and
Ginsburg. In concurrence, Justices Thomas
and Scalia noted that what needs ro be found
beyond a reasonable doubt depends on what
is an "element" of a crime. Every fact
necessary ro constitute the crime is an
elemenL They argued that a crime includes
every fact that is by law a basis for imposing
or increasing punishmenr.
continued, without Scalia, ro explicirly
criticize McMillan v. Pennsylvania
Almendarez- Torres v. United States
incorrecrly narrowing the definition of
"elemenrs." Thomas would require the fact
of a prior conviction, as well as a fan that
led ro a mandarory minimum senrence, ro
be pled and proven beyond a reasonable
The "other than the fact of a prior
conviction" language is dicta. Whether a
prior conviction needs ro be proven beyond
a reasonable doubt was not at issue in
Apprendi, and, given the alignment of the
justices in Apprendi and Almendarez- Torres,
is questionable. In Almendarez- Torres the
Court held, 5-4, that the fact that the
appellant had been convicted of an
aggravated felony before his deportation,
which fact increased his maximum sentence
from two years ro twenty, did not need ro
be pled or proven beyond a reasonable
doubLG The four dissenters in Almendarez-
Torres were Justices Stevens, Scalia, Souter,
and Ginsburg. This makes Justice Thomas,
who writes in Apprendi of"the error ro which
[he) succumbed" in Almendarez- Torres, the
swing vote on the issue. It is a fair bet that
the Court will overrule Almendarez- Torres in
the near future.
Which brings us around to the Fifth
Circuit, which does not see itself in the
business of predicting what the Supreme
Court will do if it revisits Almendarez- Torres
(or McMillan). The court has cited Apprendi
ten times since last June, and each time has
adhered ro the exact language of the opinion.
In u.s. v. Meshack,7 the court reviewed
the senrences of three defendants in a drug
case under 21 U.s.c. 841.8 The
government conceded that Apprendi (which
was a hate-crime case) applied ro federal drug
cases under section 841. Because the
defendants did not raise the Apprendi
objection below (that case had not been
decided when they were sentenced), the
court applied a "plain error" standard of
DefendantThomas received a 168-month
sentence, which the court found ro be proper
because it was less than the 20-year staturory
maximum for possession of crack cocaine
with intent ro distribute, with no amount
alleged. He argued that the amount of
cocaine, which resulted in a longer sentence
under the guidelines, should have been
proven ro the jury. The Fifth Circuit noted
that the issue was "not clearly resolve[d)" by
Apprendi, but disagreed with Thomas and
upheld his sentence because it was less than
the staturory maximum.
Defendant Hodges challenged his 10-year
marijuana sentence, 10 but did not challenge
his 324-month cocaine conspiracy sentence,
which was less than the 30-year staturory
maximum for possession of a minuscule
amounr of crack with intent to distribute
after being convicted of a felony drug
offense. I I Because the ten-year sentence was
less than the concurrent 324-month
sentence, the court found no plain error.
l l
Defendant Meshack challenged his two
concurrenr Iife sentences. The cou rt vacated
his sentence and remanded ro the district
court, stating in a footnote, "Upon remand,
the district court could allow retrial of this
count or it could resentence Meshack at the
lowest statutory drug amounr."13 This,
despite the facts: that Mr. Meshack had
already been tried for and convicted of a
lesser-included offense; that 18 U.s.c.
3742(f)(1) requires remand for resentencing
if the sentence was illegally imposed; and that
the Fifth Circuit had always remanded for
resentencing when it vacated a sentence.
The three defendants, as well as defendant
Parker, also challenged the terms of
supervised release they were given. I. The
court reduced the supervised release terms
to the statutory maximums for possession
of a small quantity of drugs with inrent ro
distribute. Curiously, though, for this
sentencing error it remanded only for
In United States v. Doggett,IG the court
addressed the sentences of two people fot
manufacture of methamphetamine, and
squarely held that Apprendi overruled its
jurisprudence treating drug quantity as a
sentencing facror rather than as an element
of the offense. In this case both defendants
had raised their constitutional objections at
sentencing, preserving the issue for de novo
review. Doggerr had received a 235 month
sentence, less than the 20-year maximum for
manufacture of an unspecified of
methamphetamine. The court upheld his
sentence and reduced his supervised release
term ro three years.
Mr. Beman received two concurrenr life
sentences, which were vacated by the court
because the maximum that should have
applied to him (after a felony drug
conviction) was 30 years. The court
remanded Mr. Beman's case for resentencing.
In United States v. Keith,1 9 the court
addressed the question of a mandarory
minimum senrence. Mr. Keith had received
a 20-year sentence based on the trial court's
finding that his offense involved more than
50 grams of cocaine base. Because of his
criminal record and the quantity of drugs,
Mr. Keith was subject ro a 20-year staturory
minimum. See 21 U.s.c. 841 (b)(l )(A) .
The court affirmed the sentence because it
was less than the 30-year maximum that
would apply, with Mr. Keith's criminal
hisrory, under 21 U.s.c. 841 (b)(l)(C).
Dabeit and Cuevas-Andrade
United States v. Dabeifo and United States
v. Cuevas-Andrcufe21were illegal reentry cases.
Mr. Dabeit and Mr. Cuevas-Andrade both
pled guilty to their indictments. Mr. Dabeit
received a sentence unspecified in the
cOlltinued Oil page 8 ...
Spring 2001 THE DEFENDER 7
... continuedfrom page 7
appellate opinion - between 37 and 46
months. Mr. Cuevas-Andrade received a 46-
month sentence. The statutory maximum for
basic illegal reentry is two years. If the
defendant was convicted of an aggravated
felony before being deported, the statutory
maximum increases to 20 yearsY
Mr. Dabeit complained that he was not
informed that the "aggravated felony"
provision of the law was an essential element
of the offense to which he pled guilty. In a
section entitled "Preserving an Issue for
Review" the court, following Almendarez-
Torres, held that i t was not an essential
Mr. Cuevas-Andrade argued that his prior
felony conviction should have been alleged
in the indictment. The court rejected it,
saying, "Cuevas-Andrade has raised the issue
here for the sole purpose of preserving the
question for further review by the Supreme
In re Tatum
was a motion filed by Mr.
Tatum requesting authorization to ftle a
successive motion to vacate, set aside, or
correct his sentence under 28 U.s.c.
In 1992 Mr. Tatum received a 193-
month sentence for possession of crack and
powder cocaine with intent to distribute, 27
and a consecutive 60-month sentence for
carrying a firearm during a drug trafficking
Before Apprendi was decided, Mr.
Tatum had already filed "a number" of
2255 motions, all of which were denied. In
the instant case, the court held that Mr.
Tatum could not show that the Supreme
Court made the Apprendi holding to apply
retroactively on collateral review, and so
denied the requested authorization.
In United States v. Slaughter, 30 the
indictment contained the quantity element
for each count. The jury was properly
charged on the drug conspiracy - that is, it
had to find that the conspitacy involved 50
grams or more of crack - but the quantity
element was omitted from the jury's charge
on the three substantive counts .
) Mr.
Slaughter complained about this on appeal.
The court found error bur, applying the test
set forth in Neder v. United States, 32 found
the error hatmless because "there was no
evidence that could rationally lead the jury
to a conclusion that the quantity of drugs
stated in the indictment was incorrect."33
In Slaughter the court also addressed the
constitutionality of the federal drug and
conspiracy statures in light ofApprendi. The
court found nothing in the Apprendi decision
that would permit it to find the federal drug
laws unconstitutional on their face.
Burton v. United States3
arose out of the
Southern District of Texas. Contrary to
ordinary practice in the district, the quantity
of cocaine base possessed by Mr. Burton was
not charged in the indictment. Neither was
it proven to the jury beyond a reasonable
Mr. Burton received a life sentence
- more than the maximum statutory penalty
absent a showing of drug quantity. The court
vacated his sentence and remanded for
resen tencing..18
McWaine v. United States3
was a cocaine
gun / money-laundering case. Mr.
McWaine received a life sentence for the
cocaine conspiracy, and lesser concurrent
sentences on the 11 other counts. He
argued that the life sentence was illegal under
Apprendi because his maximum sentence
should have been 20 years.
) The court
agreed, vacated the sentence, and remanded
to the district court. Again, the court stated
that the district court could retry Mr.
McWaine on this count or resentence him.42
Most recently, in United States v. Salazar-
the appellant had argued in the trial
court that the indictment should be
dismissed because the quantity of marijuana
was not alleged, and had then pled guilty to
the indictment. At the plea colloquy he had
stated that he had possessed approximately
195 pounds of marijuana. He received a 30-
month sentence;44 the statutory maximum
for possession of an unspecified quantity of
marijuana with intent to distribute is 5
years."5 On appeal he argued that his
conviction for possession of marijuana with
intent ro distribute should be vacated
because the indictment did not allege an
essential element. The court upheld his
conviction and his sentence, noting again
that Apprendi requires reversal only where a
sentence exceeds the statutory maximum."6
The fifth circuit's Apprendi caselaw can
generally be best described as
"unimaginative." The court has followed the
strict letter of the holding in Apprendi -
vacating sentences that are greater than the
statutory maximum because of factors other
than prior convictions - and passed on the
fringe issues - whether Almendarez- Torres
and McMillan remain good law in light of
At this point, in order to get relief from
the fifth circuit under Apprendi, an appellant
must, because ofsome factor other than prior
convictions, receive a sentence greater than
the statutory maximum that would apply if
that factor did not exist. If he was sentenced
before Apprendi, he must raise the issue on
direct appeal ."7 If the factor was alleged in
the indictment and he went to trial, the jury
must not have been given the factor as an
element of the offense, and there must have
been evidence at trial that could rationally
lead the jury to the conclusion that the factor
was incorrect.
Presumably, if a defendant
pled guilty to the indictment, the quantity
of drugs must not have been alleged in the
Now that drug quantity is an element of
the offense, it can be argued that a defendant
can no longer plead guilty to the indictment
and rely on the court to punish [he defendant
for a lesser quantity if the quantity of drugs
for which he is responsible is in fact less than
the quantity alleged.
The exception ro the court's conservative
bent in handling these cases is its innovative
remand of Mr. McWaine's and Mr.
Meshack's cases to the district court for new
1. Apprendi v. New jersey, 530 U.S. 466,
120 S.Ct. 2348, 2363 (2000)
2. Apprendi at 2367-2378 (Thomas, ].,
3. McMillan v. Pennsylvania, 477 U.S. 79,
106 S.Ct. 2411 (1986).
8 THE DEFENDER Spring 2001
4. United States v. Almendarez-Torres, 523
U.S. 224, 118 S.Ct. 1219 (1998) .
5. Apprendi at 2378-2380 (Thomas, J.,
6. Almendarez-Torres, 523 U.S. at 247.
7. Us. v. Meshack, 225 F.3d 556 (5th Cir.
(Tex.), Aug. 28, 2000).
8. Under section 841 , the maximum
penalty for possession of an unspecified
amount of crack cocaine is up to 20 years.
21 U.s.c. 841(b)(l)(C). For 5 grams or
more, the range is from fIve to 40 years. 21
U.s.c. 841 (b)(I )(B)(vii). For 50 grams or
more, the penalty range is from 10 years to
9. Meshack, 225 F.3d at 576.
10. The maximum penalty for possession
ofan unspecified amount of marijuana is five
years. 21 U.s.c. 841 (b)(I)(D).
11. See 21 U.s.c. 841 (b)(I)(C).
12. Meshack, 225 F.3d at 577-578.
13. Meshack, 225 F.3d at 578 n. 20.
14. Meshack, 225 F.3d at 578.
15. See!d.
16. Us. v. Doggett, 230 F.3d 160 (5th Cir.
(Tex.), Oct. 6, 2000).
17. Doggett, 230 F.3d at 165.
18. Id. at 166.
19. Us. v. Keith, 230 F.3d 784 (5th Cir.
(Tex.), Oct. 17,2000).
20. Us. v. Dabeit, 23 I F.3d 979 (5th Cir.
(Tex.), Oct. 30, 2000)
21. Us. v. Cuevas-Andrade, 232 F.3d 440
(5th Cir. (Tex.), Nov. 3, 2000).
22. 8 U.s.c. 1326.
23. Id. at 984.
24. Cuevas-Andrade, 232 F.3d at 443 n. 1.
25. In re Tatum, 233 F.3d 857 (5th Cir.
(La.) , Nov. 15,2000.
26. Before filing a successive 2255 motion
in district court, the movant must get
authorization from the court of appeals. 28
U.s.c. 2244(b)(3)(A), 2255.
27. 21 U.s.c. 841 (a)(I) and (2).
28. 18 U.s.c. 924(c) .
29. The court of appeals may authorize
the filing ofa successive 2255 motion only
if the movant makes a prima facie showing
that his claim relies on either newly
discovered evidence or a new rule of
constitutional law made retroactive by the
Supreme Court to cases on collateral review.
28 U.s.c. 2244(b)(3)(C) and 2255.
30 . Us. v. Slaughter, - F.3d -, 2000
Wi 1946670 (5th Cir. (Tex.), Dec. 8, 2000)
(No. 99-11142).
31. Slaughter, - F.3d at -, 2000 Wi
1946670 at *3.
32. Neder v. United States, 527 U.S. 1, 119
S.Ct. 1827, 1839 (I999) (holding that the
standard for measuring harmlessness ofa jury
instruction omitting an element of the
offense is "whether the record contains
evidence that could rationally lead to a
contrary finding with respect to the omitted
33. Slaughter, - F.3d at -, 2000 Wi
1946670 at *3.
34. Slaughter, - F.3d at -, 2000 Wi
1946670 at * I .
35. The New Jersey statute found
unconstitutional in Apprendi provided for
an "extended term" of imprisonment if the
trial judge found, by a preponderance of the
evidence, that "[r]he defendant in
committing the crime acted with a purpose
to intimidate an individual or group of
individuals because of race, color, gender,
handicap, religion, sexual orientation or
ethnicity." N.J. STAT. ANN. 2C:44-3(e) (West
Supp.2000). The federal drug statute, by
contrast, does not give the judge
responsibility for determining drug
quantities. See 21 U.s.c. 841.
36. Burton v. Us. , - F.3d -,2000 Wi
1873831 (5th Cir. (Tex.), Dec. 22, 2000)
(No. 98-20294).
37. Burton, - F.3d at -, 2000 WL
1873831 at*-.
38. Burton, - F.3d at -, 2000 WL
1873731 at *-.
39. McWaine v. Us., - F.3d -, 2001
Wi30615 (5th Cir. (Miss.), Jan. 12,2001)
(No. 99-60265).
40. McWaine, - F.3d -, 2001 WL
30615 at *1.
4 I. McWaine, - F.3d -, 2001 WL
30615 at *4.
42. McWaine, - F.3d -, 2001 WL
30615 at *4.
43. Us. v. Salazar-Flores, - F.3d -,
200 I Wi 25691 (5th Cir. (Tex.), Jan. 25.
200 I) (No. 99-50956).
44. Salazar-Flores, - F.3d at -, 2001 WL
2569 I at * 1.
45. 21 U.s.c. 841(b)(I)(D).
46. Salazar-Flores, - F.3d at -, 2001 WL
2569 I at * 1.
47. See In re Tatum, 233 F.3d 857,859.
48. Slaughter, - F.3d at - , 2000 WL
1946670 at *3.
David Bires &Kent Schaffer
Have alarge corner oUice with several windows available for rent
located downtown in the Chase Bank Building at 712 Main on the 31st Floor,
only blocks from the state and federal courthouses. Rent includesasecretary,
use of standard office equipment, law library, conference room, kitchenette,
and many other amenities.
For more information contact Biviana at 713-228-8500
Spring 2001 THE DEFENDER 9
Supliose you are representing twO separate
clients in two separate cases in federal coure.
Both are arrested as parr of undercover drug
operations. Both are caught in transactions
involving distribution of equal amounts of
marijuana - 50 kilograms. Both plead guilty.
Under the Sentencing Guidelines, both cases
fall within the 24-30 month range . Both
are sentenced to 30 months.
Client A goes to a minimum security
prison. He remains in prison for 24 months,
after which he is released to a Community
Corrections Center (CCC), or halfway
house, as it is more commonly known? He
spends six months in the halfway house.
Finally, he resumes his life as a productive
member of society.
Client B also goes to prison, but because
he is ineligible for placement in a minimum
security prison, he is sent to a higher level
security prison. He remains in prison for the
entire 30 months. He is not released to a
halfway house; nor is he placed on home
confinement. In addition, he is subject to
an addi tional period of deten tion after
completing his sentence. The obvious
question is what circumstance or occurrence
caused Client B [Q be subjected to harsher
conditions? The not-so-obvious answer is
that Client B is not a United States citizen,
but an alien convicted of a crime occurring
in this country.
Section 1227 of Title 8 of the United
States Code provides a "laundry list" of
conditions that make an alien subject to
deportation. This list includes a wide range
of criminal offenses, including almost any
drug offense.
Thus, to use our example,
Client B's drug offense makes him a
"deportable alien." Because of his deportable
alien status, the client is in a vastly different
position compared [Q an individual who is
not a deporrable alien. As a deportable alien,
the client is ineligible to serve in a minimum
security prison.
He is ineligible for
parricipation in the Release Preparation
Program, a program that allows an inmate
to partici pate in courses to prepare him for
re-entry into society.s He is ineligible for
placement in a halfway house, or CCc.
Furthermore, he is ineligible for home
confinement under 18 U.s.c. 3624 (c)
which provides:
that a prisoner serving a term of
imprisonment spends a reasonable part, not
to exceed six months, of the last 10 per
centum of the term co be served under
conditions that will afford the prisoner a
reasonable opportunity co adjust to and
prepare for the prisoner's re-entry into the
For no other reason than Client B's starus
as a deportable alien, he is ineligible for
numerous programs within the Bureau of
Prisons to assist him with his reentry into
society. Client B will never be eligible for a
six-month stay at a halfway house,S and will
serve his entire sentence in a designated level
security prison. Upon release from prison,
he is not released back into the community,
but must instead, pending deportation, be
released to the custody of the Attorney
Because of this "extra time" a deportable
alien must serve under stricter coriditions,
the appropriate remedy would be ro ask the
sentencing court co consider a downward
departure pursuant co Section 5K2.0 of the
Sentencing Guidelines. A two- level
reduction, if granted, would reduce Client
B's sentence from the 24 co 30 month range
to the 18 to 24 month range C a difference
of 6 months and equal to the time Client B
would be allowed to spend in a halfway
house were he not a deportable alien.
Some Courts of Appeals agree that a
downward deparrure may be appropriate
under these circumstances.
United States v.
Smith was one of the first cases to hold that
deportable alien stams is an appropriate basis
for downward departure. In that case, the
court reasoned that the imprisonment
conditions deportable aliens were subject to
were no different than the severity of a
defendant's term that would be "exacerbated
by his placement in solitary confinemene."lo
Subsequently, the court concluded that the
extended sentence of a deporrable alien
"could be 'offset' by a reduction in sentence"
as it was in the case of a defendant placed in
solitary confinemene.
The CourrofAppeals for the Fifth Circuit,
however, disagreed and " laid to rest" this
idea, holding that a defendant's status as a
deporrable alien is not a basis for a downward
deparrure in United States v. Nnanna.
courr stated, "Collateral consequences, such
as the likelihood of deportation or
ineligibility for more lenient conditions of
imprisonment, that an alien may incur
following a federal conviction are not a basis
for downward deparrure."13 The coun gave
little reasoning [Q supporr its holding. 14
Although we thought it was dead in the
Fifth Circuit, the idea of granting downward
deparrures based on deportable alien status
has recently begun [Q show signs of life. The
first sign of revival came when the Supreme
Courr issued its decision in Koon v. United
In Koon, the Supreme Courr held
that district courts have broad discretion [Q
deparr when a particular case is outside the
"hearcland" of Guideline cases.
thereafter, the Seventh Circuit, when faced
with the issue of downward deparrure based
on deporrable alien status, held that such
consideration would be appropriate, and
remanded a case [Q the district court so this
factor could be considered "in light of
This issue was recently raised before the
Fifth Circuit in United States v. Garay. IS In a
footnote, the court seemed [Q acknowledge
that Nnanna was no longer good law, stating,
"[t]o the extent that Nnanna categorically
proscribed alienage and its attendant
consequences as a basis for downward
deparrure, [the defendant's] assessment of its
limited precedential value in the wake of
Koon is correct." 19
In that case, Garay was convicted for being
an alien unlawfully found in the United
States following deportation.
requested on multiple occasions for the
district court [Q downward deparr because
"he is an alien and will be deported"; the
requests wete deniedY On appeal, Garay
argued solely "that his senrence shoul.d be
vacated and remanded for reconsideration
in light of Koon's directive than any factor
not mentioned in the Guidelines can serve
as a potential basis for departure."22 H e
further relied upon other circuits' holdings
that deportable alien status may be
considered .23 While the court conceded that
Nnanna was no longer good law in light of
Koon, the court distinguished Garay's case
from the cases which held that deportable
alien stams could be considered. The courr
10 THE DEFENDER Spring 2001
stated, "[TJ hese cases, which involved aliens
convicted of crimes other than immigration
offenses, are clearly distinguishable from the
instant case, in which Garay's status as a
deportable alien, as an inherent element of
his crime, has already been considered by
the Commission in formulating the
applicable guideline."24
According [0 the court, Nnanna "involved
an offense (bank fraud) in which the
defendant's Satus as a deportable alien was
irrelevanr, whereas Garay was convicted of
an immigration offense [being unlawfully
found in the United States following
deportation] in which his status as a
deportable aIien was part and parcel of his
crime."25 \'Vhile the court's holding makes it
clear that deportable alien StatuS cannot be
considered as grounds for downward
departures in cases involving immigration
offenses, the court'S reasoning indicates that
such status can be considered as grounds for
downward departure in non-immigration
offinses. The court'S footnote, therefore,
appears [0 "raise from the dead" the district
coum' ability to consider a defendant's
deportable alien status as a basis for
downward departure.
Our firm currently has two cases before
the Court of Appeals for the Fifth Circuit
involving this issue, one of which was otally
argued in February. Hopefully, the court will
revisit this issue and fully discuss Nnanna in
these cases. In the meantime, if you have a
client who is a deportable alien, be sure to
move for a downward departure based on
his deportable alien status. Should the
prosecutor argue that Nnanna precludes the
court from considering the motion, invite
the court'S anenrion [0 Garay.
18 U.s.c. 3624(b)(1).
3. See 8 U.s.c. 1227 (a)(2) (2000) .
4. See Federal Bureau of Prisons, Ptogram
Statement 5100.07, SECURlTY DESIGNATION
at 3 (Feb. 2, 2000) .
5. See Federal Bureau of Prisons, Program
Statement 5325 .05, RELEASE PREPARATION
PROGRAM, INSTITUTION, at 1 Ouly 22, 1996).
6. Id. Federal Bureau of Prisons, Program
Statement 7310.04, COMMUNITY
7. 18 U.S .c. 3624 (c) (2000). See
Federal Bureau of Prisons, Program
Statement 7320.01, HOME CONFINEMENT,
at 6 (Sept. 6, 1995) (stating that an inmate
must be eligible for placement in a CCC in
order to be considered for home
confinement) . According to the Bureau of
Prisons, 18 U.S.c. 3621(b) aJlows the
Bureau [0 consider a Community
Corrections Center as a "penal or
correctional facility." Federal Bureau of
Prisons, Program Statement 7 310. 04,
5. "Therefore, the Bureau is not restricted
by 3624(c) in designating a CCC for an
inmate and may place an inmate in a CCC
for more than the 'last ten per centum of the
term,' or more than six months, if
appropriate." Id.
8. An inmate may be referred to a CCC
for up to 180 days. See Federal Bureau of
Prisons, Program Statement 7310 . 04,
9. See United States v. Smith, 27 F.3d 649,
655 (D.C. Cir. 1994); United States ll.
Faroui!, 124 F.3d 838, 847 (7th Cir. 1997) .
10. Id. at 654 (quoting United States v.
Lara, 905 F.2d 599, 603 (2d Cir. 1990)) .
11. Id. at 655.
12. United States v. Nnanna, 7 F.3d 420,
422 (5th Cir. 1993).
13. !d.
14. The only support the court gave for
this argument was a cite to the following
cases: United States v. Restrepo, 999 F.2d 640,
644 (2nd Cir. 1993); United States v.
Alvarez-Cardenas, 902 F.2d 734, 737 (9th
Cir. 1990); United States v. Soto , 918 F.2d
882,884-85 (10th Cir. 1990).
15. Koon v. United States, 518 U.S. 81,
116 S. Cr. 2035, 135 L. Ed. 2d 392 (1996).
16. !d. at 96,116 S. Ct. at 2045.
17. United States v. Faroui/, 124 F.3d 838,
847 (7th Cir. 1997) . See also United States v.
Bakeas, 987 F. Supp. 44 (D. Mass. 1997)
(discussing the effect of Koon and how the
status of being an alien can affect the
conditions of confinement) .
18. United States v. Garay, 235 F.3d 230
(5th Cir. 2000).
19. Id. at 234 n.18.
20. Id. at 231.
21. Jd.
22. !d. at 233.
23. Id. at 233 n.13. The cases Garay relied
upon were: United States v. DeBeir, 186 F.3d
561,569 (4th Cir. 1999); United States v.
Faroui!, 124 F.3d 838, 847 (7th Cir. 1997);
United States v. Smith, 27 F.3d 649, 655
(D.C. Cir. 1994).
24. Id. at 233.
25 . Id. at 234 n.18.
I.This is assuming a base offense level of
20 for a drug offense involving at least 40
kilograms but less than 60 kilograms of
marijuana, see United States Sentencing
Commission, Guidelines Manual, 20l.1
(c)(10) (Nov. 2000), a criminal history
category 1, see USSG 4A1.1, and a three
point adjustment for acceptance of
responsibility, see USSG 3E1.l.
2. This hypothetical does not take into
consideration any credit toward service of
sentence for exemplary behavior pursuant to
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Spring 2001 THE DEFENDER 11
As Applied toaCriminalTrial
A few years ago I heard famed attorney
Tony Serra speak at a drug seminar. He is
the pony-tailed, 60's-cause lawyer whose case
inspired the movie True Believer. Tony was
an extraordinary speaker. I recall his voice
unexpectedly rising into a full scream and
just as suddenly dropping to a tiny whisper
as I hung on each word of advice. In one
moment, he spoke with pronounced
slowness, methodically enunciating each
word before suddenly erupting with in a wild
rush ofdisconnected thoughts that somehow
made perfect sense.
Tony said that as criminal defense
attorneys, we were a warrior class, comparing
criminal trials to wars. He suggested that we
study the ancient Chinese book of warfare,
The Art of War by Sun Tzu. After Tony's
speech, I immediately began my studies.
The book is a collection of commentaries
by ancient Chinese warriors and
philosophers regarding how to achieve
success in organized conflict. I have found
many of the commentaries applicable to
what we do as trial lawyers. I have also found
that we instinctively follow many of the
commentaries without even knowing it.
What follows is a brief summary of some
of the commentaries followed by my
interpretation on how the commentaries
apply co criminal trials. All of the
commentaries are taken from the Shambhala
Publications of The ArtofWar by Sun Tzu as
translated by Thomas Cleary.
I should note that while I believe much of
The Art ofWar is applicable to our work, I
do not encourage hostile relationships with
prosecutors. To the contrary, I don't believe
that you have (0 be a jerk to zealously
represent your client. My personal approach
with prosecutors has always been to be
friendly, honest and, as the book teaches,
"Leadership isamatterof
Good criminal defense lawyers must be
leaders in their cases and this requires all of
the above-characteristics. The best among us
are not only intelligent but also courageous.
Hemingway described courage as "grace
under pressure." Courage in the courtroom
means remaining calm and strong while
under fierce attack.
organization,:hain of
:ommand and logisti:s"
To win a trial you must prepare with
discipline. I use a witness preparation chart
to keep up with the status of the preparation
of each witness. I also make it clear to client
and witnesses that as far as chain of
command is concerned, I am the general. If
you've ever had a case with twenty-five
witnesses then you know the importance of
planning logistics before trial. You cannot
win unless you can get your witnesses,
(troops), to court.
:omparison,tofind out
Thatistosay,whi:h politi:al
Whi:h generalhasability?
and soldiersarebettertrained?
Thism is howyou:an know
This is one of my favorite commentaries.
We can analyze certain factors before a batrle
and we can make a pretty good estimate of
who is going to win. We all do this every
day at the courthouse. You probably already
ask yourself most of these questions when
analyzing your chances for victory:
(1). Which lawyer, (political leadership),
has the better theory; the theory that the jury
will believe and follow, (the Way)?
(2). Which lawyer, (general), is better?
Never underestimate the prosecutors because
they try more cases than we do. But don't
underestimate yourself. Hard work can make
up a lot of ground where experience is
(3). Who has the better press situation,
(climate), and who has the better
relationship with the court, (the terrain)?
Generally if there is any press on our cases,
it's not favorable to the defense. When was
the last time you read an article that was
favorable to the defense before trial?
However, there are issues that catch the
attention of the press that may favor us?
DNA acquittals have finally shown the
ultimate unreliability of eyewitness
identification. So while the press on your
individual case might not be good, the press
on your issues might be quite favorable.
(4). Which side is working harder in
preparing for trial? (discipline)
(5). Who has the witnesses (troops) with
the strongest testimony?
(6). Which side's witnesses are better
prepared for trial?
All of these factors should be considered
before trial in assessing our chance for victory
"Even thoughyou
I call this the "Columbo Routine". Do not
tell the prosecutor you are going to beat
them; it will only make them work harder.
Create the impression that you are not sure
what's going on, and the prosecutor,
particularly if he is arrogant, will take you
for granted as an easy adversary. Obviously
this does not work with prosecutors who
know you prepare for trial and you should
also be aware that a number of prosecutors
are known -to use the "Columbo Routine".
Jia Lin
"Fortheweakto:ontrol the
strongitis logi:ally ne:essaryto
When our client is first arrested, we are
typically at our weakest. We have nothing.
The prosecution has identified, located, and
interviewed witnesses and put together a
12 THE DEFENDER Spring 2001
prosecution report; theyarestrong.Ifweare
ro win, we must effectuate a change by
beginning our trial preparations
immediately. Preparation is the key to
controllingthe strongandthe ultimate key
ro victory!
them intodisarray:'
If weareknown for havingashorrfuse, a
smarr prosecutor will purposely do things
to upset us. While gerring angry may
motivate us at time, it mayalso cause us to
lose ourfocus .
"Ifyou usetheenemyto
defeattheenemy,you will
Do your best to know more about the
prosecution'scase than theydo.This means
investigation and interviewing their
witnesses. Use State witnesses ro impeach
each other. Just becausesomeone is labeled
a"State's"witness, does notmean thatall of
his informationsupportstheState.You may
find in interviewingasupposedStatewitness
that they have very little to say ro help the
State and a whole lot ro say that helps the
defense. IftheStatecallsthiswitnessro make
a few points, turn them around on cross ro
gut theState'scase.
TheState's case is most vulnerable when
you arecross-examining(attacking).If your
witnesses are honestand well-prepared, the
defense will be invincible.
Do not let the prosecution know what
your defensive theory is, unless required as
in an insanitycase.Theelementofsurprise
is vital ro an effective defense. Keep your
positionformless, so thattheStatedoes nor
knowwhatro prepare for.
At the Batrie of Gettysburg, Union
General John Bufford commanded the
Calvary. Buford arrived at the scene first,
surmised thattherewould bea majorbatrle,
His actions were parr ofthe key factors
behind theUnion's vicroryat Gettysburg.
Prior to trial, ascertain where the moral
highground is; take it from thestartofthe
caseandnever letgo. Maketheprosecution
fight uphill.
I highly recommend that you obtain a
copyofThe Art o/War and study it. It has
served mewell; perhapsitwillserveyouwell,
too. Good luck
THEDEFENDER 13 Spring2001
Prison and parole law never really came
up in law school. Heck, it wasn't even in the
bar exam study materials. But since joining
Bill Habern's firm about two years ago, it's
been a big part of what I do every day. I've
noticed that many criminal lawyers try to
avoid having to deal with this area of the law.
Some even try to pretend it doesn't exist. I
can't say I blame them; it once took me a
whole afternoon just to figure out an inmate's
time credit in order to calculate his parole
eligibility. Sometimes, though, a lawyer's lack
of knowledge in this area can be harmful to
the client (I've met a number of inmates who
pled guilty, in pan, on the advice of lawyers
who told them they could count on being
released from prison on their parole eligibility
date or their mandatory supervision
This article will share some of the current
trends and statistics in this area of law. I am
hopeful that this information will be helpful
to lawyers who aren't exposed to it everyday,
but who seek to honestly inform their clients
about what to expect from the Texas Parole
System. For the most part, this information
is not what clients want to hear.
The first thing clients need to understand
is that parole isn't all it's cracked up to be.
Some parolees wish they were back in prison
after being subjected to programs like Super
Intense Supervision (S.LS.P.), Sex Offender
Caseload and Sex Offender Registration (by
the way, the Parole Board can require a
parolee to register as a sex offender as a
condition of parole, even if the person hasn't
been convicted ofa sex offense under Chapter
62, C.CP.). We have had several parolees
contact our office and ask if we could get
them back into prison without a penalty, so
that they could be allowed to do their time
and discharge their cases without having to
be on parole. These people were
overwhelmed by the demands ofsupervision.
In their cases, these demands were beyond
what's reasonable to expect of anyone. One
recent client who was on S.I.S.P. (and subject
to an electronic monitor) was required to
abide by a daily schedule that left no time
for grocery shopping or going to do his
laundry. Having to go out and get a job, pay
rent, attend required counseling sessions, all
while flawlessly following the ten or twenty
other instructions of a parole officer, can be
Sometimes the stress comes from
ridiculous parole conditions and the
incompetence of employees of the Parole
Division (the Texas agency charged with
supervising parolees). I recently had a client
who had served a couple years on a 12-year
sentence for a 1980's convenience store
robbery in which he punched the clerk and
took $50 in cash and a six pack. Other than
the arm he used to punch the clerk, he was
unarmed. He had no priors. He paroled to
Austin in the early 1990's, and got a job with
a construction company. The Austin parole
office found him an apartment with another
parolee, where he was required to live. To
get to work and to the Austin parole office
to report every week, my client had to drive.
Strangely, the Austin parole office denied him
the ability to get a driver's license (this turned
out to be an illegal condition of parole, as it
was imposed by the Parole Division but not
the Parole Board). There was nothing in his
history to suggest that a driver's license would
threaten the public safety; he hadn't even used
a car to flee from the robbery he committed
back in the 80's. Over the next few months,
he received 4 or 5 tickets for driving without
a license. Knowing that this trend was
hazardous for his continued freedom, he
requested that his parole officer allow him
to get a driver's license, or in the alternative,
that he be allowed to transfer his parole
through the Interstate Compact to the State
of Arizona. He had friends and family in
Arizona, better opponunltles for
employment, and Arizona would allow him
to get a driver's license. His requests were
denied on the basis ofan Austin parole office
policy that has since been disavowed: "a
parolee must be supervised by the same parole
officer for a period of 90 days before any
changes can be made in his conditions" At
that time, the turnover was so high in the
Austin parole office that my client was getting
a new parole officer every thirty days or so,
which perpetually prevent ed a change in
conditions. With an eye toward self-
preservation, my client finally Red to Arizona,
where he began a hardworking, successful life
(with a driver's license) . When I gOt the case,
he had been picked up on a blue warrant - a
parole violator warrant - and was facing a
revocation hearing back in Texas . We were
able to help the hearing officer understand
the crazy conditions he was living under, and
his parole was not revoked. In my experience
with other parolees, the frustration he faced
in Texas is common.
Another problem is th at most parole
officers are overworked, and understandably
have little patience for minor screw-ups.
Others seem frustrated that their parolees
haven't been punished enough for the crime
they went to prison for. In a recent revocation
hearing, my client 's parole officer
recommended that he be revoked for his
technical violation; her only rationale was
that he was a danger to society, as evidenced
by his original offense. A few parole officers
are "wan nabe" law enforcement officers. I
encountered a parole officer in West Texas
last month who wore his State ofTexas Parole
Officer badge on his belt. This man had a
long and shady history. After leaving his job
as a used car salesman, he went to work as a
probation officer. The ptobation people ran
him off for one reason or another. Now a
parole officer, he hangs out at the local
sheriff's office on a regular basis, where he
has attempted to gain employment as a law
enforcement officer. Our experience with this
man was not a good one. In my opinion, he
should never have been put in a position of
power over others.
Our office recently uncovered some very
interesting recidivism statistics that could be
read to reflect many of the problems noted
above. These figures come straight from the
14 THE DEFENDER Spring 2001
Governor's office, and are the resulr of a 3-
year statistical study beginning in 1995.
overall three-year recidivism rate was 31
percent for parolees and 37 percent for those
released on mandatory supervision. Those
numbers are broken down further to reflect
recidivism based on new felony offenses.
Here's where it gets interesting:
Percentage of parolees who were revoked
for new felony offenses: 17. 2%
Percentage of offenders released on
mandatory supervision who were revoked
for new felony offenses: 18.4%
Percentage of offenders who "flat way"
discharged who were sent back to prison for
new felony offenses: 11.2%
Offenders who "flat-way" discharge are
ineligible for or denied parole and mandatory
supervision, and serve out their entire
sentences in prison. These offenders are never
subjected to parole-rype supervision.
numbers above seem to bring into question
the quality and success of parole-type
supervision in Texas. I'm sure the Governor's
office will find a way to re-crunch these
numbers to arrive at a different
interpretation, but for now they're interesting
to ponder.
Supervision inTexas
Despite the potential horrors of being on
parole-type supervision in this state, most
inmates would rather be out of prison than
in. As of August 1999, the running average
parole approval rate for the year 1999 was
around 22 percent , and the current
mandatory supervision approval rate was
around 52.46 percent. These numbers have
been on the rise since shortly before the
presidential elections, hitting close to 30
percent approval for parole and close to 60
percent approval for mandatory supervision.
This trend will probably continue as long as
the prisons are short on bed space.
The overall parole and mandatory
supervision approval rates are only useful in
that they provide a general idea of what the
Texas Parole System is doing. They aren't
good indicators of whether a particular
individual is likely to ger released, because
the approval numbers vary drastically by
category of offense. Here are some of the
notable examples that every lawyer should
be aware of (the following numbers are
running averages for the year 1999, as of
August 1999). For aggravated sex offenders,
the parole approval rate is .85 percent - less
than one percent.
These offenders are not
eligible for mandatory supervi sion. For non-
aggravated sex offenders, the parole approval
rate is 6.61 percenr.
These offenders aren't
eligible for mandatory supervision either. The
general rule here is that sex offenders should
count on doing every day of their sentence.
It has also been our experience lately that
felony D. WI. offenders and intoxication
mamlaughter offenders are being made to serve
their entire sentences in prison, particularly
when they receive sentences of five years or
under. We have also noticed that offenders
of any type with sentences under three years
run a good ri sk of serving their entire
sentences in prison. The highest approval rate
is for nonviolent offenders {no sex offeme}.
These offenders enjoy a 26.14 percentS parole
approval rate and a 55.16 percent
supervision approval rate.
One game that we criminal lawyers tend
to play is getting a charge reduced to make it
look less serious than it really is, in return
for a guilty plea. This can be beneficial to
the client, depending on the circumstances.
It is of no benefit, however, when the goal is
to fool the Parole Board. The Board has
become astute enough so that it looks past
the label of the offense, and focuses on the
offense conduct. For example, simply
pleading away a deadly weapon finding (or
any other aspect) to remove the conviction
from Article 42.12 Sec. 3(g) will not remove
it in the eyes of the Board. The Board will
view the case as a 3(g) and vote it in a way
that equalizes it with other cases that actually
are 3(g) convictions. Anything in the record,
including the indictment and the police
report, can tip off the Parole Board as to what
was really going on. One way to avoid this
could be to plead to a revised information
upon dismissal of the original indictment.
Another bargaining tool could be getting the
prosecutor to agree not to protest parole.
Parole-type supervision in Texas is certainly
no cakewalk. Even given the hardships, most
inmates would rather be out of prison than
in. Clients facing potential prison terms
should have the benefit of knowing what to
expect from the fUture if they are convicted,
or if they choose to plead guilty. This includes
knowing that being released on parole or
mandatory supervision is never a sure thing,
and for some offenders it's next to impossible.
1. Sean Buckley is a 1999 grad uate of the
University of Texas School of Law. He
currently operates the Houston office for the
firm of Habern, O'Neil & Buckley, which
specializes in state and federal prison, parole,
corrections, and sentencing matters.
2. Mandatory supervision was once
mandatory, as its name implies. Since 1996,
it has been discretionary with the Parole
Board. It's not even available anymore for
many offenses.
3. Governor's Criminal Justice Policy
Council. Statistical study applies to figures
for parole and mandatory supervision. "Flat-
way" discharge numbers were not parr of the
statistical study.
4. It's also interesting to note that offenders
who "flat-way discharge" tend to be the real
bad actors - either people who committed
heinous offenses or who have serious prison
disciplinary records. These are the people
who couldn't get parole or mandatory
5. Numbers for the month of August ,
6. 2,581 eligible inmates considered,
22 approved.
7. 2,831 eligible inmates considered,
187 approved.
8. 43,606 eligible inmates considered,
11,397 approved.
9. 10,663 eligible inmates considered,
5,882 approved.
Spring 2001 THE DEFENDER 15
In State v. Hardy, 963 S.W2d 516(Tex.
Crim. App. 1997), the Court of Criminal
Appeals held that there was no right of
privacy in one's medical records in Texas. On
December 28, 2000, President Clinton
signed federal regulations providing a federal
privacy right in medical records. The new
rules, which become effective February 26,
200 I , are the result of the 1996 Health
Insurance Portability and Accountability Act
(HIPAA), and are authorized and required
by 117l through 1179 of the Social
Security Act, 42 U.S.C 1320d-1329d-8, as
added by 262 of Pub. L. 104-191 , 110
Stat. 2021-2031 and 264 ofPub. L. 104-
191,42 U.s.C 1320d-2 (note) . The federal
regulations restore to Texans the privacy
rights expected by most Texans before the
decision in Hardy.
While the primary focus of HIPAA was
to ensure that workers would not lose their
insurance if they cha nged jobs, it also
required new privacy standards. According
to the Preamble of the regulations:
This final rule establishes, for the first
time, a set of basic national privacy standards
and fair information practices that provides
all Americans with a basic level of protection
and peace of mind that is essential to their
fuJi participation in their care.
The final rule can be found at http:// An index to the
regulations and links to various formats for
viewing and download ing the regulations
can be found at
final/index.htm. The text of the regulations
(other than the Preamble) can be found in
HTML format at
admnsimp/final/ Pvc TxtO 1. htm
The final rules were the result of proposals
made more than a year earlier. Over 66,000
statements from consumer and industry
groups were filed and considered before the
final rules were adopted. The regulations
provide broad privacy protections, covering
nor only electronic transactions as originally
proposed, but paper records and oral
communications as well. The new rules also
established criminal and civil penalties for
improper disclosures of personal medical
information. Intentional disclosure can result
in a $50,000 fine and a one-year prison
sentence, and penalties for selling medical
information are even higher.
These regulations effectively overrule the
Court of Criminal Appeals' decision in
Hardy because they expressly preempt
contrary or conflicting state laws - which
include state court decisions that have the
force of law. 45 CF.R 160.201 through
As it relates to obtaining blood test results
from a hospital by using a gtand jury
subpoena, 164.512 provides:
164.512 Uses and disclosures for which
consent, an authorization, or opportunity
to agree or object is not required. A covered
entity may use or disclose protected health
information without the written consent or
authorization of the individual as described
in 164.506 and 164.508, respectively, or
the opportunity for the individual to agree
or object as described in 164.510, in the
situations covered by this section, subject to
the applicable requirements of this section.
When the covered entity is required by this
section to inform the individual of, or when
the individual may agree to, a use or
disclosure permitted by this section, the
covered entity's information and the
individual's agreement may be given orally.
a.) to e.) [Omitted in this paperJ.
f.) Standard: disclosures for law
enforcement purposes. A covered entity
[basically a health care provider] may disclose
protected health information for a law
enforcement purpose to a law enforcement
official if the conditions in paragraphs (F)( I)
through (f)(6) of this section are met , as
(1.) Permitted disclosures: pursuant to
process and as otherwise required by law. A
covered entity may disclose protected heal th
(i.) As required by law including laws that
require the reporting of certain types of
wounds or other physical injuries, except for
laws subject to paragraph (b.)( 1.)(ii .) or
(c.)(1 .)(i.) of this section; or
(ii.) In compliance with and as limited by
the relevant requiremen ts of:
(A.) A court order or co urt-ordered
warrant, or a subpoena or summons issued
by a judicial officer;
(B.) A grand jury subpoena; or
(C) An administrative request, including
an administrative subpoena or summons, a
civil or an authorized investigative demand,
or similar process authorized under law,
provided that:
(1.) The information sought is relevant
and material to a legitimate law enforcement
(2.) The request is specific and limited in
scope to the extent reasonably practicable in
light of the purpose for which the
information is sought; and
(3.) De-identified information could not
reasonably be used.
Thus, a hospital "may disclose protected
health information ... [iJ n compliance with
and as limited by the relevant requirements
of ... [aJ grand jury subpoena." Importantly,
the disclosure must be (1.) "in compliance
with" and (2.) "as limited by the relevant
requirements of" a grand jury subpoena. A
disclosure that is not in compliance with a
grand jury subpoena or that is contrary to
the requirements of a grand jury subpoena
is not authorized by the regulations and
would be illegal.
For example, the disclosure of "all medical
records" in response to a grand jury subpoena
seeking "laboratory records of a blood
alcohol analysis" would not be in compliance
with the grand jury subpoena . Any
information contained in such records -
beyond those authorized by the grand jury
subpoena, i.e., the "laboratory records of a
blood alcohol analysis" - would be illegally
obtained and subject to exclusion under T EX.
CODE CRIM. PRO. ANN. art. 38.23.
Further, a disclosure of records to some
peace officer serving the grand jury
subpoena, rather than to the grand jury as
directed by the subpoena, would be contrary
to both the subpoena and the statutory
"requirements of" a grand jury subpoena.
While the federal privacy regulations
permit disclosures in response to grand juty
Spring 2001
subpoenas so long as the disclosure is
consistent with the subpoena and the
requirements ofthe laws regulating grand
jurysubpoenas,itis nolongercarteblanche
to disclose any medical records in any way
thatsome prosecutorwants.
There are a variety ofrequirements for
grand jury subpoenas in Texas that are
seldom observed or obeyed when the
prosecutOr issues agrandjurysubpoenafor
blood test results.
First, although a document maypurport
to be a grand jury subpoena, it may not
actually besuch: thelabel onthedocument
does not mean thatit is what the labelsays
it is. Forexample, I couldcall this article a
grand jury subpoena, but, even if I was a
prosecutor, the mere label would not make
it a grand jury subpoena. While the law
allows theattorneyrepresentingthestate to
issue a grand jury subpoena, TEX. CODE
CRlM. PROe. ANN. arts. 20.10,20.11,24.15
(Vernon 1977) ,itmaybedoneonlyforany
offense subject to indictment. TEX. CODE
CRfM. PRoe. ANN. arts. 20.03, 20.09
(Vernon 1977) ;TEX. CONST. art. Y, 17.
Moreover, in order for a document to
actuallybeagrandjurysubpoena, therehad
to have been, at the very least, an actual
investigation by a grand jury. If there was
nograndjuryinvestigationand the pieceof
thestatesolelyfor thepurposeofdiscovery,
a legitimateargumentcanbe madethat the
document is a sham and is not, in fact, a
were never intended to be used as a
prosecutorial fishing pole, wholly
independentof thegrandjuryprocess.Such
use subverts the independence ofa grand
In the case ofa grand jury subpoena
seeking the production ofrecords, rather
thanonlytheappearanceof awitness before
thegrandjury, theremustbeanapplication
madetothedistrictcourt.WhileTEX. CODE
CRlM. PROe. ANN. art. 20.10 provides for
subpoenaing a witness to a grand jury to
testify, it does not provide for a subpoena
deuces tecum; that is for the production of
records. Rather, in order to obtain a
subpoena duces tecum, the provisions of
TEX. CODE CRIM. PROe. ANN. art. 20.11
(Vernon 1977) must be followed. Section
one ofArticle 20.11 in pertinent part
the State may, uponwrittenapplication to
the district court stating the name and
residence of the witness and that his
testimonyis believed to be material,causea
subpoena oran attachment to be issued to
any county in the State for such witness,
returnableto thegrandjurytheninsess ion,
ortothenextgrandjuryfor thecountyfrom
whencethesameissued, as suchforemanor
attorney may desire. The subpoena may
require the witness to appear and produce
records and documents.
Frequently, the attorneyrepresenting the
Statewill,withoutfirs thavingmadewritten
jury subpoena ordering the custodian of
aperson's medical records. Suchasubpoena
is in violation ofTEX. CODE CRlM. PROe.
ANN. art. 20.11. Ifrecords are obtained in
this manner without complying with the
violationof theforegoingstatutesandshould
besuppressed pursuant toArticle38.23.
subpoena was not a sham and that it was
legall y issued, the records and the
information in them may be illegally
obtained by the attorney representing the
state by virtue ofthe manner in which the
grand jury subpoena is executed and
returned. Generally, agrand jurysubpoena
for medicalrecordsisexecutedbydelivering
it to thehospital'scustOdianofrecords,who
immediately produces the records to the
officer serving the subpoena. The officer
serving the subpoena then delivers the
recordsdirectlyto theattorneyforthestate.
Seldom,if ever, doessuchofficerdeliverthe
records to the District Clerk or to the
foremanof thegrandjuryas requiredbyTEX.
CODE CRlM. PROe.ANN. art.20.13(Vernon
1977) ,which provides:
The bailifforother officer who receives
processtobeservedfrom thegrandjuryshall
forthwith execute thesameand return it to
the foreman, ifthegrandjurybein session;
and ifthegrandjury be not in session, the
Frequently, the return ofthe documents
will be made only to the attorney
is notruegrandjuryinvestigation. Ineither
event, however, the knowledge of the
attorney representing the state about the
contents ofthe records will have been as a
directresultof theviolationofArticle20.13.
Unless disclosure ofthe medical records
is " [iJn compliance with and as limited by
the relevant requirements [aJ grand jury
subpoena,"itis prohibitedunderfederal law.
When the attorney representing the State,
orotherlawenforcementofficial, haslearned
about the contents ofthe medical records,
i.e.,specificbloodtestresults,asaresultof a
process inconsistent with the terms and
requirementsof agrandjurysubpoena,such
attorney will have gained such knowledge
in violation offederal law. Information
gained in violation of federal law is
inadmissable underArticle 38.23.
Even though many doubted the
correctness and intellectual honesty ofthe
decisioninHardy, thenewfederal regulations
have made such debate moot. Hardy is no
longer the law. Texans once again have a
privacy interest - this time a supreme,
- in theirmedical records.
Forensic Science Associates
Criminal/CivilConsultinG CrimeScene Reconstruction FirearmsffoolMarkExams
CompleteLaboratoryAnalysis LabAccreditationConsultingForensicTrainingClasses
Edward E. Hueske
541 HalifaxLaneCoppell,Texas75019
Phone: (972) 304-8668Fax:(972) 393-3612
Spring2001 THEDEFENDER 17
In Ocrober 2000, the Children's
Assessment Center senr a letter to every
Harris County judge; trial and appellate,
juvenile and adult, district and county, and
family. This letter announced the formation
of the Judicial Council of the Children's
Assessment Cenrer (CAC). After publication
of this lerrer on the HCCLA web site, two
motions to recuse that raised the issue have
been granted. The lerrer follows this article.
The stated goals of the CAC include,
among other things, providing experts to aid
prosecutors in the prosecution of sexual
abuse cases, to provide a videotaped forensic
interview of a child alleging sexual abuse, to
provide medical examinations to children
alleging sexual abuse and to thereafter testifY
to such medical findings, and to advocate
for the children throughout the prosecution
process. Twelve local judges agreed to be part
of the initial Judicial Council. The judges
are named in the lerrer. It was the goal of the
CAC to have every Harris County judge
eventually serve on the Judicial Council. The
stated purpose for the creation of the Judicial
Council was to "open the dialogue regarding
our mutual concerns about the sensitivity
ofchild sexual abuse cases." The first meeting
of the Judicial Council was in September,
2000 and concerned "medical subpoenas."
In the first case, Chris Flood moved to
recuse Judge Joan Huffman from a sexual
assault of a child case. On December 7,
2000, after a full evidentiary hearing, Judge
Suzanne Stovall, who is the elected judge of
the 221st District Court in Montgomery
County and who was appointed by Judge
Olen Underwood, Presiding Judge of the
Second Administrative Judicial Region, to
hear the motion, gran ted the motion to
recuse. Interestingly, Judge Stovall is also the
Chairperson of the Commirree on Judicial
Ethics of the Judicial Section of the State
Bar of Texas. This committee issues ethics
opinions relating to the Code of Judicial
In the second case, Luis Vallejo sought to
recuse Judge Ted Poe from hearing an
aggravated sexual assaulr of a child case based
on his membership on and leadership role
in the CAC Judicial Council. This time,
Judge Underwood did not appoinr another
judge to hear the motion to recuse - he
heard it himself. After a full evidentiary
hearing, the motion to recuse was granted.
Even though it was not a basis on which
recusal was sought, Judge Underwood
claimed to be granting the motion to recuse
only because Judge Poe appeared at the
hearing represented by John O'Quinn,
which injected Judge Poe as an advocate and
made him subject to recusal on that basis.
Judge Underwood claimed to deny the
motion as it concerned the CAC issue.
Interestingly, the following day the State
dismissed the charges when the case was
called for trial in the IBOth District Court.
Anyone who has a case in a court where
the judge is a member of the "Judicial
Council" should investigate the
appropriateness ofa motion to recuse in their
case. In Arnold v. State, B53 S.W2d 543 (Tex.
Crim. App. 1993), the Court of Criminal
Appeals held that TEX. R. Civ. P. IBa and
IBb apply to the recusal ofjudges in criminal
cases. Rule IBb(2) provides:
Pager: 713-878-0024
A judge shall recuse himself in any
proceeding in which:
(a.) his impartiality might reasonably be
(b.) he has a personal bias or prejudice
concerning the subject marrer or a party ....
The provisions of Rules IBa and IBb are
mandatory. Gonzales v. Gonzales, 659 S.W.2d
900 (Tex. App.-EI Paso 19B3, no writ).
At the very least, a colorable (if not very
persuasive) argument can be made that the
impartiality of a judge might reasonably be
questioned (even if such judge has no actual
bias or prejudice) when (1) such judge is a
member of the CAe's Judicial Council and
in such capacity aids the CAC in providing
berrer services related to the prosecu tion of
sexual abuse cases and (2) such judge presides
over a sexual abuse case and particularly a
case in which the CAC has had actual
involvement. For example and rhetorically,
one could reasonably question how objective
(i.e., how impartial) a judge would be in
response to a motion to exclude the
testimony ofwitness who is a CAC employee
when the judge is on a commirree of the
witness' employer and when such
commirree's purpose is to aid the CAC is
providing the kinds of services that the
witness is in court testifYing about; indeed,
when such witness is a service aided by the
committee's purpose.
Whether a lawyer should seek to recuse a
judge in any particular case will always
depend on the individual case and the
inrerests of the client in that case. However,
in order to adequately advise the client, the
lawyer should be familiar with the facts and
law relating to the issue so that an intelligenr
and informed decision can be made.
In early February, the Committee on
Judicial Ethics issued Ethics Opinion 270.
This opinion held that it violates the Judicial
Cannons of Ethics for a Judge to serve on
the Judicial Council of the Children's
Assessment Center. The index page for the
committee's ethics opinions may be found
at}udethicsl. The
web page conraining the opinion may be
fou nd at
Judethics/261-270.htm. The opinion is
reproduced with the CAC letter below it.
Spring 2001
Is it a violation of the Judicial Canons of Ethics for a judge to serve
on the judicial council of the Children's Assessment Center?
Question: Is itaviolation oftheJudicial
CanonsofEthicsforajudgetoserveon the
Center. The center is a public/private
partnershipwhose mission is "to provide a
children and their families and to serve as
an advocate for all children in our
community." The center provides various
servIces to such children such as: 1.
videotaping a forensic interview with the
childsexualabusevictim;2. provideasexual
assault examination; 3. provide expert
testimony in civil and criminal court; 4.
provideadvocacyfor childrenas theymake
their way through the justice system.The
purposeofthejudicialcounsel is to opena
dialogue regarding mutual concerns about
thesensitivityofchildsex abusecases.
Answer:Yes, itis aviolationof theJudicial
Canonsof Ethicsforajudgetoserveonsuch
a council. It is a judge's function to aCt
impartiallyandtobeseenas neutral .Canon
2provides,''A judge...shouldactatall times
in the integrity and impartiality of the
judiciary.Canon2Bprovides,''A judgeshall
not allow any relationship to influence
not lend the prestige ofjudicial office to
advancetheprivateinterestof...others; nor
shall a judge conveyor permit others to
convey the impression that they are in a
special position to influencethejudge." For
a judge to give advice to an organization
whose mission is to advocate for witnesses/
parties in law suits is a violation of this
Cannon 4 which requires a judge to
conductextrajudicial activities so as notto
interfere with judicial duties would be
requirefrequentrecusal incasesin whichthe
regarding similar organizations and has
consistently found membership in such
groups to bea violation ofthe Canons. See
Opinions66, 86, 133, 225 and 240.
TII C C Ii i I of r C II A .' .' C .' ! 111 .. II' l C JI , " r
OclolltrS. 2000
The (' enrt"r rrccnlly .,I JUIIICI;.1 II) help
U:i soxuilily ,hdllr," in Hwna Count)'. ThIS cLln,-iiSIS of
Judges repre5.enHni:Juvenilc:. f;Jlllily. appellate and crimlMI coun.s
I"ht purpOSe ofIhe Jodiclill council Ii (0 open Ihc dilloo.ue rcgardlnll l)Ui' n1Ulull
cOllcena; aboUI Ihc .'en5IIIVI["l, chilll c:u.cs.. 11 is our goal ILl h3... e all
in fUrn); Counry e"encually u:rve nn thili: jUdlCll1 cnunclI. Our fl)und;:lIl1m
Oll:lrd a); lwC'I\'r:. 10 lOt(ve on rhc= [In.lJudiCial ciluncil. These
Twelvejudllef. II) a Iwn'yeltlerm.
We art' lIT:l.l&!'(ul (nr Ih&!' enlhwtial;lIc U.I uur firsl Judl clIJl
council. The on \lur judiCial wunt:il 3r.,: hldgr Ted Poe
Chilli), Judse Eva lU VI.::e.(' hllu), Judgt rrtC Ar\MII .JudQt Mi):t
"ndenun. J\ldboC MOIrl.. Judge J\l Oln Ca."pbell , Judge Ken) Ellis, JUt.lgl
hill. Jud(:1." 11l3n lIuffmOln, J",dQe MII:had M,Spiidclcn. Judill.: 1.. lAd"
and Jud.>c Olm A"oI,". w," Ihe eOUTe Jullil.:l;ary fur thm
SuppOrt o(The Children ... ";; :>c:""menl olnd (11111 twelve Imllt,; ::, lur
!ll:fCCtn\! 10 ')C.rve lin nllr Juc1iclill l I'UO\:il. l'hc first meeune I..UOtJUl"lctl un
Scplclllber 14.2.000 and /lts,,:u:ision:l ....t.rt: helJ rtl:ardin,;: medicO'l ll' Uhrl(ICflilS
A.s you m"yLc uW;)rt HIC C'hl\LJrtn .\ ...... l.enlcf \,\,' ;u. 11)1)1 01:-
a j1uhhc/pn'lall; p.mncrshlp. Till' mll.j /cHI uf'/"lft' Chi(dTfn ...AiH'HlIIl'lII Ct'lIlo'r Ii10
tIPrQrt>.HlfJl/(ll. umlCoWlilllull!duppTlulclr '" fiu: ITcu(1m.'1If IlJ
If!J:!lully Uhll.lf.'U /:hilllrr:1I 1II1t} fill'if aft(1 to r(!MJ{' (U .aft advocQt ... for .all
chUdreft ift Ollr cOn/mUIll/y. To !'ullill ml .:'lolM, The Cenlt'r Ihe
followlnll t:hlldrc-n. 1)"vtdc:oupcd fore!'51>= ofachild'5
.!;fIUemt.n[ Ihllli reducI!"S Ihl; need fur multiple lnlervicWIO by lhe \larlou!O
IIIvol ... ed In il. o.:hilJ '"""LIlli C,I..": C: 2) ultuaJ lu.ult utJlil:JnS
vldeocolposcopy; J) OIIS[)IIIS he:tlthc: .. re .er,..u';ClI.. 4) thcUPCllllC serv)ccs 10
hc:lp c.hild 4t:xual Ibu!OC' heal: S) c:\pc:n U::.oiollmony tn 1.:11,111 .UlU cnmtnal coun
and 6) advocacy far chr14rcn IlS Ihey makethell Wily Ilvout;,h the
..\ ""f"/,I"" H,m.,I"" 1 "" '",,/1., "/'''''', 1, I,i/,/" ,,
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" I ll.m" ( \ ' ,lmllilu llwtrf ' ("lin hi Thr l!lIhJrrn \ I\lI wkr' I'II..!L/!I, Mrnltw( ( h,ltJU'1' Auu,," ._ "I
""""ny of children ilOd thDt In (he liuuily. ILI \tlllic. crunlll ..1;,uw
IIppd liJllt couns have received &I lkChildren:. I\:.x:o:.mrlll (I.: o\tr ThiS
IS.Iut' 10 eiftU!rcrllrunal DtmS lilo!:d AIIII"'I.I th.: 1I1Ir!8ctJ flc:rpL'lrJt Or . 'hc: l:h,IJ
orc.:h,\ctr!;n bcmR plBc.:d mllllcmplmuypratecllvccustody. orall adler mllller,
fhc);c iIIpcC;lilt'tcO arc: pr01mJrd 10 children ;) cullJbur:illll!l M
hnu.seual 'fhe "SlOCs..rnll.'nL
Thmughou\ Ihe yenr, WI:' wll1lw.:pyuu abrt':lfOl 1l.\O 10 QI\y Illfomlalion ourrOllnd:!flon
liOil,,1 ofOlftt rl)r!o and/or IIw Judicial CounCil wanl!:! 10 commlUlICBIC
di.. cUi"Olli p!ertlillnlng 10 it'xu:llly children in our Ctlmmunlf)'. Wr:. :ue
f(l tg... cIhe <It" ,heJudi'llry in County 10 ... blc tu fullill
I)ur In Ihe children We Serve.
[-:-1' \/L-- ! (t" /, :",'""j'
EII..:n T CoktnOj, LMSW
i::--.eculI"'" Director
' rllC' (';hildren' s
C<:lIter faund:lllon
cc: TheHOnorableEne Andell
Th(" Honorablt- Mih AI}dt:($01'I
The H{) nuril\'llt: Mark
Inc Hono)f;)ble: 1O):l n
TheH"M(uhl..: Keot flit::>
'I'hl:' HOllorallte: h'l LU2mOIl
Th..HLllll,)rlll:llc Belinda Iidl
' J he II0110I<ll:lk Jllan lluffm.Jn
HonQI';Jl:lle Linda MOIiIera)
The: HOllorlble Ted ["10(:
The l'Iollo(OI.hle PUI Shell!)n
The Hunornblc DOll
Povld flnyd, Jim Funlrno's OffIce
SlIlIy uhr. Th" 1-1unurlblcJudge 01Tlce
Selinda f'flce, Ii:&d:ick's Office
Connyc TlIOIMS. [.1 Fri1nw Lee's: Orficc
JOJllyt YOUIII>, Cllnlml';hlilner Jerry Onicc:
Spring2001 THEDEFENDER 19
Quarter: EmilyMunoz.
Emily's extreme efforts in representing her
clients have been richly rewarded in the short
time she has been on this side of the bar.
One client was charged with twO cases of
aggravated assault against police omcers and
possession with intent to deliver 4 to 200
grams of cocaine in the 17S'h. HPD
executing a questionable search warrant,
stormed into the ice house that Emily's client
managed. Client, a Spanish speaker, heard
what he though t were screams from the
patrons in the bar. In fear for his life, client
hid and fired a warning shot because he had
been shot in a storm-in tobbery at the ice
house a couple of years before. Client shot
several more shots into the air. The officers
responded with a barrage of gunfire. In fact
they shot apptoximately SO times. Finally,
after client repeatedly told the officers to
show them some i.d., and only after they
ptoduced some, client surrendered. After
spending almost a year in jail, client walked
away with three not guilty verdicts.
Not having done enough, Emily and
Stanley Schneider tried a non-death capital
in the 24S,h where they convinced the jury
what they always said - the evidence was far
too weak to convict; client was acquitted.
Finally, Emily and Stan paired up again
to represent a boxing coach charged with
sexually assaulting the three children of his
former live-in , and recently ousted,
girlfriend. The first jury hung S-4 for the
defense but the State would not be deterred,
and headed to trial again, this time going
forward on their "strongest" case whil e
attempting to prevent Emily and Stan from
introducing testimony about the accusations
made by the other two kids. (Can you
imagine?! The State argued the other
accusations were irrelevant). Emily delivered
a unique and creative closing argument
accusing the mother of manipulating the
jury, exploiting her own children and
abusing the criminal justice system. The jury
acquitted, and the State dismissed the other
two charges.
HCCLA is proud ofour current treasurer,
Emily Munoz, and congratulates her and her
clients on her recent successes.
Other warriors have also had
John Reed earned his client a dismissal
on an assault of an elderly person after jury
selection in the IS3,d.
Nancy Botts and John Sullivan claim
multiple victories in an assault case that
started as a third degree felony in the 176'h.
A week before trial, the case was dismissed
and re-filed as a misdemeanor in CCCL 5.
The jury disagreed with the Cl ass A charge
and slapped his wrist with a Class C. Not to
be stopped, John also won a contested
competency hearing in the 351 ".
Jonathon Gluckman has been kickjng his
heels around the courthouse. A juvenile
client was found "not guilty" of felony
criminal mischief in the 314,h while a
habitual felon charged with assaulting twO
officers while in booking (he was being
processed for a blue warrant), was found not
guilty in the IS2
Greg Cox got a not guilty on an assault
charge in CCCL #6, David Lyon won a
suppression hearing on a theft case in County
Court #3 in Ft. Be nd while Danny
Easterling received an instructed verdict
from Judge Jean Hughes in OWl
combination alcohol/pot OWL (Danny
advises that the ORE training manuals are
very useful for serving an officer his lunch.)
Michael Turner convinced a jury that "if
the keys aren't with his shit, you must
acquit." The issue was whether the client or
his daughter was driving. Michael argued
that the State had not brought the only
evidence that would have supported the cop's
testimony - the property slip on which the
keys should have been listed. He saved the
ammunition for argument rather than use
it in cross where it would alert the prosecutor,
and when the cop heard why the jury
acquitted, he thought of the fitting one-liner.
Jay Karahan had a court-appointed
murder case in which he asserted the insanity
defense. Jay prevailed despite evidence that
his client undertook efforts to cover his act
of shooting the complainant by retrieving
and hiding the spent hulls.
Norm Silverman notched one in his belt
with a not guilty on possession with intent
to deliver more than 4 but less than 200
grams of crack cocaine in the 337'h where
the crack was found in the glove box.
Kyle Sampson represented a sailor whose
prior conviccion for raping his step-daughter
had been overturned by the Navy-Marine
Corps Court of Criminal Appeals after he
served twO years. The jury deliberated less
than one hour on the re-trial before returning
a not guilty verdict.
Jack Zimmermann's client was charged
with conspiracy, bank fraud, money
laundering, and extortion in the Southern
District of Texas. Jack's efforts resulted in a
dismissal of all charges.
David Bires has been hot lately. He got a
federal judge (not in Houston) to grant a
motion to suppress on a III-kilo cocaine
on which the judge made findings that the
tramc stop was not made for the purposes
espoused by the cop. Judge Belinda Hill
granted a motion to suppress based on an
unlawful search of his client's person in a
child pornography case and Judge Ted Poe
granted a motion to suppress in a possession
with inten t to deliver, enhanced wi th a
weapon case.
Congrats to David Cunningham for two
NGs in a federal drug theft case. David got
"stuck" in trial when lead trial counsel
became ill, an unacceptable excuse for a
federal judge (even though David had only
recently been hired and was not "up to
speed" on the case.)
Rick Hurlburt drug in from Longview to
kick butt not once but twice on OWls in
Robb Fickman and Stanley Schneider gOt
a not guilty by reason of insanity in a federal
case in which the client threw a Molotov
cocktail at a church.
Steven Lieberman got a PCS case reversed
after a motion to suppress was denied and
client was sentenced to 20 years; the State
did not bothet with a PDR, requested a
mandate issue, and then dismissed the case.
Steven also won a possession of over 400
grams of Cathinone case (a weird plant with
a short-lived in toxicant rhar was gone by rhe
time the case got to trial 4 months after the
arrest). Obviously Steven made the right
decision when he tried it to Judge Doug
Jonathon J. Paull, III pu t together a great
packet including positive results on twO
polygraphs (private and police) then put his
50-year-old client before the grand jury
20 THE DEFENDER Spring 2001
where he admirred having sex with his 17-
year-old niece (not relat ed by blood).
Complainantallegedactsoccurred beforeshe
was 17; grand jury no-billed. JJ also gOt a
motion ro suppress granred in the 232
whe re the iss ue revolved a round the
definition ofconsent.
LeoraKahnandBelindaChagnardgOt a
notguilty on an aggravated assaultcase on
which Leora had been appoinred in the
a no-test OWlcase in CCCL# 6.
Rosa Eliades and Abbey Keenan's clienr
pled guilry ro sexual assaultand not guilry
to a kidnapping charge in the same trial in
the 262
. The jury found the clienr not
on thesexualassault.
In his first trial after crossing over to the
good side, RandyAyers got a not guilry in
the351"on adrugdeliverycase.
Finall y Ned Barnett had a good time in
CCCL #6. During the cross ofthe first
officer in his OWl jury trial, the DA said
"SropNed"Whyyouask? . . Becauseshehad
a Motion to Dismiss. Apparentl y Ned's
impeachmenr ofrhe officer with hi s prior
"restimony"from theALRhearingmaderhe
officerimplode. Ir's doubtfulthattheofficer
is being referred to the DA's office for a
perjury inves rigation ala Anna Nicole " I
don't understand rhat word" Smith. Great
Alice DeGregori Morales won a morion
ro suppress in a trace cocainecase based on
asearch warranr in the 179th.
hearingin the351steven thoughdefendanr
came backcompetenrfrom Vernon'saftera
60 dayStay.
JackCarroll tried a murder- inroxicated
manslaughter - aggravared assault - FSRA
with a sheriff's depury victim ro a jury in
the 182nd. T he jury deliver fo r 37 hou rs
when the D.A. offered the client 7 years
deferred on negligenr homicide and time
served on the FSRA.
Congratulations to all rhese Winning
Ifyou have informarion abour your winora
fell owwarrior'swin rharyou would likeincluded
in rhenexredirionofThe D efender, please e-mail
me ar cy or call me ar
7 13-228-8500. Ifyou wi sh to nominare some-
oneforrecogni rionin rhe Tribute To The warrior
O/ The Quarter, conracr mewirh derails.
Applicant:_ _ _ _ _ _ _ _ ___ _____MailingAddress:____ _ ____________ _ _ _
Telephone:_ _ _ _ _ __________ __FirmName:_________ _______________
DateadmittedtoBar:______ LawSchool:_ _ _ _____Date,DegreefromLawSchool:_____ _ _ _ _ _ _
ProfessionalOrganizationsin whichyouareamemberingoodstanding:___ _ _ ____ ______________
Haveyoueverbeendisbarredordisciplined byanybarassociationorareyouthesubjectof disciplinaryactionnowpending?_ _ _
Studenr($25.00Annual Fee)
(Expecred graduationdate_ _ _ )
Newl y Licensed (first year) Membership
Regular Membership ($125.00)
AffiliateMembership ($100.00)
SustainingMembership ($500.00)
I, a member in good standing ofHCCLA believe thi s
applicantro beapersonof professionalcompetency,inregriry
andgood moralcharacter.Theapplicantis activel yengaged
in the defense ofcriminal cases.
dare signatureofmember
P.O. BOX 2273 HOUSTON, TEXAS 77027
Spring 2001
We advocatethatapaid-In-fullallorneyisaclient'sbestdefense
Refer a DWI bond and receive a free DWI video We testify at bond reduction hearings
Open 24 Hours Prompt Courteous NotaryAvailable BilingualStaff
Credit CardsAccepted TermsAvailable Free Parking
john, Shaun, Carol, Shannon, Shelby, andChris
B09 Houslon Avenue Houslon, Texas77007
c = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = ~
THE DEFENDER Spring 2001
1610 Richmond Ave.
Houston, Texas 77006
PERMIT NO. 11500

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