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July/August 1
Danny Easterling
1018 Preston, 6th floor
Houston 77002
- ~
DOC(ET CALL
Congratulations!
..J
Mark Goldberg, Denise Collins, Rick Brass, Jules L. Laird Jr.
Treasurer Vice-President President Secretary
EDITOR
C. I.belZ
ASSOCIATE
EDITOR
Robert p.Zton
PRODUCTION
Donna K. KZzcz
DOCKET CALL
DOClET CALL is published eyery
two months by the Harris County
Criminal Lawyers a
non-profit. tal-elempt profes-
sional Association of criminal
defense lawyers.
ADVERTISING RATES:
Full Page. $200.00
(15% discount on 3 or more
insertions- full page only)
1/2 Page....SlOO.OO
1/4 Page.. $ 50.00
Business card size.. $ 25.00
Distribution: 500 copies per
issue. Articles and other edi-
torial contributions should be
sent to the Editor. 202 TraYis.
Suite 208. Houston 77002 or the
Association office at 705 Hain
St. Suite 400A. Houston 77002.
TELEPHONE: (713) 227-2404.
President
Rick Brass
Vice-President
Denise Collins
Secretary
Jules L. Laird Jr.
Treasurer
Mark A. Goldberg
President-Elect
Mary E. Conn
BOARD OF DIRECTORS
Chairman
Allen C. Isbell
Kristine c. Woldy
Rosemary Garza
Ron Hayes
Angel Z. Fraga
Richard Frankoff
Douglas Durham
W. Randolph Bates, Jr.
Jack Millin
Rhyllis R. Frye
C. Logan Dietz
J. M. Mike Monks
Joe W. Varela
Loren A. Detamore
Willie J. Rhodes
Robert Fickman
Contents-
July/August 1990
President's Column........................ ..... Rick Brass 3
Opinions 1st Court of Appeals................... 4
Opinions 14th Court of Appeals.... Henry J. Burkholder III 5
Preserve Me Please!................ Allen C. Isbell 6
The Federal Roundup...Robert S. Bennett &Jules L. Laird 7
Hearsay................................... Allen C. Isbell 8
Paralegal Program............Gwen Teague 9
Spontaneous Exclamations!.............. Walter Boyd 10
Application for Certificate To Secure Attendance Of
Witness From Another State................... David Suhler 12
Certificate Requesting Attendance Of Witness In State Of
Texas.......................David Suhler 13
Application And Affidavit Of Defendant.. Joe W. Varela 13
Preserve Me Please!..............Allen C. Isbell 14
Request For Judicial Recommendation Against Deportation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .Richard Prinz 17
Atta Boy/Atta GirL.......................... Mary E. Conn 18
Plea Bargaining....................Will Outlaw 19
Educational Programs Scheduled
August 9. 1990 N &B of Criminal Practice Seminar
"Evidence &Experts". Carolyn Garcia
Civil Courthouse, 301 Fannin, Room 205
5 to 7 pm. 02.00 MCLE; $15.M; $25. NM.
September 13 N &B "Direct/Cross Examination"
Jan Woodward Fox, Rusty Hardin.
August 15-19 NACDL Annual Meeting Toronto, Canada
For information Call (202)872-8688.
August 16 LUNCHEON PROGRAM Inns of Court Club
707 Travis, 15th fl. Noon. 01.00 MCLE
WEDNESDAY APPELATE UPDATES noon weekly
301 San Jacinto, 177th Ct. 01.00 MCLE
Deadline for next issue:
September 7
Let's Hear From YOU!
HARRISCOUNTYCRIMINAL LAWYERS
ASSOCIATION
POI' PTOsidml5 197J.19U:
C. Anthony Frlloux (1972-73)
Stuart Kinard (1973-74)
Georqe Luquette (1974-75)
Marvin O. Teaque (1975-76)
Dick DeGuarin (1976-77)
W. B. "Bennie" House,Jr.(1977-78)
David R. Bires (1978-79)
Woody Densen (1979-80)
Will Gray (1980-81)
Edward A. Mallett (1981-82)
Carolyn Garcia (1982-83)
B. Z.mmermann (1983-84)
Clyde Williams (1984-85)
Robert pelton (1985-86)
Candealrio Elizondo (1986-87)
Allen C. Isbell (1987-88)
Oavid Mitcham (1988-89)
Jim E. Lavine (1989-90)
President's Column ...
by Rick Brass
This is one year that you won't be able to tell where one administration
stops and the next one starts. Jim Lavine and I have worked so closely and
so well this past year that we are not willing to break up the combination.
He and I will continue our plans and together with Mary Conn and Denise
Collins we will continue to function as a team. wi th the help of Jules
Laird, Mark Goldberg and our entire board we are looking at another year of
increased visibility and credibility. The Judges have recognized our
organization and so has our District Attorney. The appointment of Ron Woods
as U.S. Attorney will enable us to establish a liaison with that office. In
general, its onward and upward with bringing Pre-Trial Diversion not only to
the misdemeanor Courts but to the felony Courts as well. We will expand our
organization to include support personnel such as investigators, paralegals,
interpreters, jury analysts, and mental health professionals. We have just
experienced a growth year and expectant with that, we are starting off this
year with less money than we had a year ago. We will economize this year and
expand our membership and increase our financial security
We have started a tradition with a glorious Annual Banquet. My personal
thanks to those who worked so hard to plan it and to those 215 of you who
attended it. Next year's will be even bigger and better. I'll borrow a line
from my own swearing-in message to close this column. lilt is a privilege and
an honor to be the President of this organization, because of who its members
are, and because of who the judges are that we practice before." See you
next issue.
Rick
Opinions From The 1 st Court of Appeals
by Henr L. Burk.holder III
Brown State, NO. 01-88-1195-Cr 5/31/90 by O'Connor, J.
LAW OF CIRCUMSTANTIAL EVIDENCE IN BURGLARY CASES DISCUSSED INSIDE
OUT.
Defendant charged with burglary residence. Great defense at trial
was: Nobody saw me enter! On appeal, court applies the "Stretch
Test." Evidence is viewed in the light most favorable to the
evidence. Court then applies the "Come on" corollary: when
defendant is seen a short distance from the burglarized premises,
with property taken from the premises, the evidence is sufficient
for a rational trier of fact to have found the defendant had gone
inside the premises. Evidence held sufficient to support burglary
of a habitation.
STATE NOT REQUIRED TO READ OR PLEAD DEFENDANT'S MIND.
Defendant moves to quash burglary indictment on grounds that it
does not state what property he took. Court of Appeals rules that
where specific property is allegedly taken, the property must be
described in the indictment. HOWEVER, where intent to commit
theft is alleged (i.e., take property), the State is not required
to prove what property the defendant had the intent to take.
I showed this opinion to a burglar-client of mind, who agreed
whole heartily with the rational. As he pointed out to me, he
often has no idea what he is going to take on the way in.
Martinez State, 01-89-115-Cr, O'Connor, J., 5/31/90
EMERGENCY SEARCH DOCTRINE IS LIMITED IN NATURE.
Here officer rushes into building thinking there might be a fire.
(A man outside assures him its just barbecue!). Officer sees
defendant cutting up a car with torch. After looking inside dash
area of one car, noticing no VIN, officer calls in
reinforcements.
Court of Appeals holds that once officer determines that there is
no fire, he can look no farther. Probable cause developed after
his further investigation is tainted, and dope found as a result
of his search for stolen car parts was illegally seized.
CONSENT TAINTED BY ILLEGAL ARREST.
Court of Appeals recites factors for determining whether an
illegal arrest taints a consent to search. The factors: (1)
whether Miranda warnings are given (or defendant otherwise told
he could refuse to consent; (2) time frame; (3) presence of
intervening factors; and (4) purpose of conduct. These are the
same basic factors used to determine whether oral or written
statement is tainted.
4
Opinions From The 14 th Court of Appeals
by Henry L. l>urkholder III
Riascos state, 14-88-1060-Cr, Junell, J., 5/31/90
ATTORNEY AT TRIAL HELD INEFFECTIVE FOR FAILURE TO STOP STATE FROM
INTRODUCING EXTRANEOUS DRUG TRANSACTIONS, AND INFLAMING THE JURY
WITH TESTIMONY AND ARGUMENTS THAT THE DEFENDANT WAS A COLOMBIAN.
Defendant was convicted of murder and received life. The Court of
Appeals held the attorney ineffective for (1) not stopping the
state from introducing and then using in argument, extraneous
dope offenses; (2) suggesting to the jury that the killing was
dope related, when in fact there was no evidence of this; and (3)
stopping the State from inflaming the jury with the fact that the
defendant was a Colombian.
This reversal is notable since the opinion reflects there was
sufficient evidence to sustain a conviction for the murder as
alleged in the indictment. However, the Court of Appeals, after
finding counsel deficient, applied the "cannot say beyond a
reasonable doubt that the error did not contribute to the result"
test. Thus, the State can have sufficient evidence to convict,
and yet the case is reversed because either (a) the lawyer did
not know when to object or (b) the State mowed the defense lawyer
down with inadmissible evidence and improper arguments.
Burgess state, 14-89-490-Cr, Junell, J. 5/31/90
As the old country western song goes:
STAND BY YOUR MAN, (AND SIGN ALL THE FORMS YOU CAN.) DEFENDANT
DID HAVE COUNSEL WHEN HE WAIVED JURY.
Defendant ran through two court-appointed attorneys (and untold
pairs of socks and underwear) before going to trial pro se. Trial
court appointed "standby" counsel to assist defendant if he
needed. "Standby" counsel is an often approved method of insuring
that pro se defendants get the best of both worlds.
Defendant argues on appeal that his jury waiver on appeal is no
good, since under CCP 1.11 he must have counsel to waive the
right to jury in felony cases, NO EXCEPTIONS. (This is such a
neat argument, I wish I had thought of it). Indeed, the presence
of counsel at a felony jury waiver is one of the few state rights
that cannot be waived, and is fundamental error.
Alas, the last attorney stood by his man, and signed that waiver
before withdrawing. The Court of Appeals applied the "If he's
going out the door, he ain't out yet" doctrine, and held that
defendant had counsel at the time of the jury waiver.
NOTE: Exactly what standby counsel can and cannot do, and what
his duties and responsibilities are, is far from clear.
5
Preserve Me Please! by Allen C. hlbell
"IRRELEVANT" OBJECTION AND "IMPROPER USE OF CHARACTER EVIDENCE"
OBJECTION ARE NOT THE SAME-DON'T SAY ONE WHEN YOU MEAN THE OTHER.
We "long-in-the-tooth" lawyers find it difficult to object on the ground of
"irrelevant" because we cut our teeth on the long-held tenet that such
objection preserved nothing for Appellate review. The Texas Rules of
Criminal Evidence changed this notion. See Rule 402. Newer lawyers find it
easier to say, "objection, irrelevant."
In reading appellate records, I find lawyers substituting this universal rule
for a more specific objection, also found in the Texas Rules of Criminal
Evidence. That is, the rule against improper use of character evidence. See
Rule 404.
A typical example is a murder case in which a family member is describing the
deceased as peaceful, hard-working, married for twenty years, a good father
and loving husband, a person with many friends, and the father of five small
children.
The proper objection is that this is incompetent character
testimony in violation of Rule 404(a) (2).
Before the rule was codified, the Court of Criminal Appeals made clear that
it is never competent for the State to introduce evidence of the deceased's
character traits, unless his character has somehow been placed in issue by
the Defendant. The leading case is Armstrong v. State, 718 S.W.2d 686 (TCA
October 22, 1986 Rehearing Denied).
On appeal, the court is likely to consider the error not preserved by an
"irrelevant" objection because character evidence has a certain degree of
probative value. The, Courts have traditionally limited the use of character
evidence because it may be more persuasive to jurors than it should be. See
James v. State 772 S.W.2d 84 (T.C.A. Rehearing Denied June 7, 1989, Remanded
for further consideration in light of Penry v. Lynaugh, 109 S. ct. 2934
(1989) .
6
The Federal Roundup by Qobert S.Bennett (1$ Jules L. Laird
WHAT YOU NEED TO KNOW
ABOUT
THE S &L BUSINESS
Last year, the o u s ~ o n
United statesAttorney'sOffice
had eight fraud prosecutors and
a backlog of 200 cases. With
the clamor over the 5 & L
debacle, 15 new Assistant U.S.
Attorneys are being hired to
concentrate on the financial
aspects of criminal matters.
Houston Grand Juries are
returning more and more
indictments alleging financial
fraud.
THINK BIG
To understand the
magnitude of the situation, you
must think Rig. In May,
Treasury Secretary Nicholas F.
Brady testified that more than
1,000 S & L's, approximately
40% of the industry, may have
to be seized. The General
Accounting Office estimates
that the costs of the bailout
could be more than $500
billion.
The New York Times stated
the roots of the problem: "The
oil boom in Texas, the get-
rich-quick atmosphere on Wall
Street, the Reagan
Administration's philosophy of
keeping business free of
government intrusion and
lawmaker's need for money to
run their ever-more-expensive
campaigns laid the groundwork
for disaster.
OPPORTUNITY ABOUNDS
Some 5 & L's failed
because of bad business
decisions: bad real estate
investments and believing the
price of oil would always go
up. Others were plundered.
L. William Seidman, who is
responsible for the federal
government's clean-up of the S
& L'S, said that fraud is
involved with 60% of the
institutions that failed, and
in half of those, it was the
major factor. In Houston, J.R.
McConnell is remembered for
getting $162 Million in loans
from S & L's with some highly
questionable practices. These
transactions were very slick
and very complicated.
A common practice was for
an S &L (let's call this First
5 & L) to set up a joint
venture and take the position
as a limited partner with other
investors as joint partners.
First S & L would issue a
letter of credit to another
financial institutionon behalf
of the general partners in the
joint venture. First's letter
of creditwas backed by its own
mortgage backed securities.
The joint venture's general
partners would use First's
letter of credit as collateral
to enable another financial
institution to arrange a loan.
The general partners would take
the land proceeds and buy raw
land for residential
development with the joint
venture holding title to the
land.
Because the joint
venture's only asset was the
land for residential
development a new and much
larger loan to build houses on
the land could be arranged.
An analysis of this very
common "deal" shows that the
jointventure arranged by First
S & L has plenty takes a
portion of the profits without
having to make any loans. The
7
resul t of this "deal" is that
First S & L, by using a joint
venture and partnership
structure, maneuvers around the
federal regulations limiting
the percent of S & L assets
that can be invested in real
estate.
Often, the structural
gyrations used by the 5 & L
were not criminal, despite
violating the spirit of the
federal rules. In the above
example, however, the acts with
criminal consequences would be
inflated appraisal figures and
possible kickbacks to
individuals involved in the
financing. Also, First may
have committed criminal acts by
using circular transactions in
making or arranging loans with
the proceeds being directed
back to First S &L to give the
appearance that First S & L
looked wealthier than it was.
Other institutions falsified
entries in their books, made
insider deals with friends and
relatives, e.g. Charles H.
Keating, Jr., and gave and
received kickbacks. Once the
regulators started close
scrutiny of S & L books, they
found that documentation for
many deals was incomplete or
missing.
THE CALL TO ARMS
On June 22, 1990,
President Bush called a
conference of all the nation's
U.S. Attorneys to urge active
prosecution of 5 & L failures.
He announced a new Justice
Department strike force to
attack S & L fraud with
hundreds of additional F.B.I.
agents and federal prosecutors.
One hundred million dollars is
to be authorized for the new
strike force.
The Democratic Party has
asserted that the President has
not vigorously pursued S & L
crimes. Senator Charles
Schumer, D-N-Y, said, "There
are still 21,000 referrals (of
S & L cases) lying on someone's
desk and gathering dust because
there aren't enough people to
work on the cases."
The President, maybe with
his youngest son, Neil, in
mind, stated in his speech to
the federal prosecutors, "It
takes a discerning mind and a
determined spirit to
distinguish the incompetent
from the fraudulent and the
unlucky from the unlawful."
You may want to use that
in final argument at your next
S & L fraud case.
Hearsay...
by Allen C. IAbeli
~ Gringo Y..1,ili. I
love it when an "old guy" does
good. Nolan Ryan (43) pitches
his sixth no-hitter & extends
his all-time record. He is the
oldest man to throw a no-hitter
and is baseball's all-time
strike-out king ... And speaking
of "old guys" - Hal Hudson (53)
won his 6th National Masters
Powerlifting Championship in
San Bernardino California on
May 6th. Hudson's lifts were
567 Ibs. in the full squat, 347
1bs. in the bench press, and
611 pounds in the deadlift.
Subsequently, Hudson was
selected to represent the
United States at the World
Masters Powerlifting
Championships to be held in
Perth, Australia October 13-
14 .... "It's Bold to be Old" -
my new motto.
Gloria Briseno got a "Not
Guilty" on a resisting arrest
in C.C.#8 on 5/15/90 ... Enid
Williams got a "Not Guilty" in
the 262 ... Charlie Medlin and
Rick Reed got a "Not Guilty" on
a D.W.I ...
Judge Mary Bacon will run
under the Republican banner in
1992.
Leslie & Colin Amann are
expecting a baby.
congratulations to the
following who were elected by
the membership to office or to
the board to serve along with
our new president, Rick Brass.
Mary Conn (President-elect);
Denise Collins (Vice-
president): Board Members are
Allen C. Isbell, Kristine C.
~ Rosemary Garza, R2n
~ Angel Z. Fraga, Richard
Frankoff, Douglas M. Durham, ~
Randolph Bates. Jr., Jack
Millin, Phyllis R. Frye, ~
Logan Dietz, J.M. Mike Monks,
Joe W. Varela, Loren A.
Detamore, Willie J. Rhodes,
Robert Fickman, Jim E. Lavine.
John Ackerman and Barbara
Baruch have taken up a new
hobby - walking tours. They
belong to an international
walking club.
Overheard in the Hon.
Harrison Gregg. Jr. 's
courtroom. Attorney General
had brought in a burly
Respondent for back child
support. (Looked like a
former/present Hell's Angels.)
A four-year old boy who sat
with him was fussy. Respondent
told him to be quiet, that this
is a courtroom. Then, he added
his view of the legal system:
"A courtroom is where people
rip off other people." with
this, he glared at us who sat
across the rail.
8
Have You tried a case with a
prosecutor who lays his file on
the counsel table for the jury
to see: a file with words in
fluorescent lettering that a
legally blind person could
read, such as: "CAREER
CRIMINAL", "HABITUAL OFFENDER" ,
"HOT CHECK WRITER", "SPECIAL
CRIMES", "ORGANIZED CRIME",
"CONSUMER FRAUD" etcetera?
Perhaps we should adorn our
files with messages for the
jury to "inadvertently" read:
"FRAME UP", "INNOCENT CLIENT",
"CROSS-EXAM FOR STATE'S
PERJURED TESTIMONY", "POLITICAL
PROSECUTION", "ACCIDENT", or
"MISTAKEN IDENTITY".
Glad to see Brenda Palmer
back at work. Am 0 n 9 the
recently injured have been Gene
Gundersen (foot) and .fQ.Jmy
Northcutt (arm).
$50.00 for a six-pack!
That is what beer sells for in
Iceland. Also, the bars close
at 9:00 p.m. on Saturday night.
And, the natives are not
friendly. Before you take that
dream vacation to Iceland, talk
with John Egbert, AKA "Sleepy
John."
Belated congratulations to
~ & Connie Sims on the birth
of a son, James Jefferson Sims.
Named after Jefferson Davis.
~ & Connie won a big reversal
out of the 14th Court recently
on the airport search issue.
Glad to see several judges
telling the coordinators to
give H.C.C.L.A.'s referral
number to defendants who have
not retained a lawyer. Almost
all judges do this, but mostly
recently saw Judge Mark
Atkinson do it. Saw the cards
on Marv Coppa's desk (she is
Judge Thomas Routt's
coordinator) .
Madeline D. Sitzes saved a
woman's life on the 6th floor
of the Criminal Court House.
The woman collapsed with a
Paralegal Externship Program
stroke and stopped breathing.
Madeline used the training from
her pre-lawyer days when she
worked for Delta Airline. She
rescued several while in flight
during her airline career.
Did you know that Randy
M!;;QQnalg's real name is
BS,\OQol:g1l A. McQoQal.g.
ilydge Ihomas Routt
received the 1990 Amicus award
from M.A. B.A. at annual
reception honoring newly
licensed Hispanic lawyers.
iludge Felix SalSlozS,\r presented
the award; Judge CS,\rl Walker
accepted it for Judge Routt I
whose health prevented his
attendance.
Certified Paralegal
Seeks Position
CEDRIC EVANS
9845 Bamboo Road
Houston, Texas 77041
(713) 462-1960
Paralegal students at Texas
School of Business offer a free
to attorne ys while they
gain to the legal world.
The Paralegal Program,
initiated at the school in 1988,
includes an Externship Program as
the final phase of a student's
training. It was designed as
part of the Paralegal Program to
enable the students to broaden
their knowledge o f the responsi-
bilities of the legal profession.
The l60-hour externship begins
onl y after a student has satis-
factorily completed all required
class work.
Students receive no renumera-
tion although they earn valuable
experience.
Before a student can become
an extern, he / she must have
completed a comprehensive para-
legal program designed to blend
paralegal training with computer
and office skills. Students are
taught all phases of the law
criminal, family, civil litiga-
tion, real estate, personal
injury and estate planning.
There is an emphasis on writing
skills. The program also in-
cludes an introduction to compu-
ter assisted research. Students
have opportunities to apply these
skills throughout the classroom
program.
Work can be done at private
law firms, government agencies,
legal aid offices, insurance
companies or in other businesses
with a legal department.
Anthon y Wi 11 iams, Paralegal
Coordinator at the southwest
by Gwen Teague
campus, feels that the program
gives the students "exposure to
paralegalism".
Williams said that because
the program is so successful,
most firms that have had externs
request others. In fact, some
extern sites are continuing to
utilize new students every six
weeks. Graduates of the program
have been placed with government
agencies and some of Houston's
largest law firms.
Externs work the same hours
and are expected to maintain the
same level of professionalism as
the staff.
Externs are evaluated on
their research and writing skills
as well as their ability to
develop a rapport with their co-
workers. Their work record and
progress is monitored weekly by
the school.
Both campuses of Texas School
of Business place student
externs. Williams handles the
placement at the southwest
school, located at 10250
Bissonnet. Del'Ynda Wadsworth is
the Paralegal Coordinator at the
711 Airtex location in north
Houston.
Williams and Wadsworth work
with firms interested in using
the Extern Program. Interviews
can be arranged, if desired.
Agencies or firms interested
in participating in the Extern
Program may call Williams at 771-
1177 or Wadsworth at 376-2888.
Texas School of Business is
state certified and a member of
the Association of Independent
Colleges and Schools.
OWl 1990 VIDEO TAPES AVAILABLE 125.
PRINTED MATERIAL - BOO PAGES 50.
CALL HeCLA 227- 2404
9
Spontaneous Exclamations ...
WalLer Boyd
There is a rather
eccentric fellow roaming the
political streets inpursuitof
a judicial bench. His name,
Lee Burroughs. His format is
to stirup controversies as any
good Democrat is obliged to do.
He is engaging and interesting
to say the least and attracts
some attention by those funny
looking sparkling things
sticking out of his earlobes.
His opponent is the Hon.
Michael McSpadden, a non-
conformist Republican, who has
become pretty well known for
getting himself all worked up
emotionally over this or that
issue and writing vitriolic
letters to the newspaper.
Don Rogers makes a good
point: Let the Courts of
Appeals make the appellate
attorney appointments rather
than the trial courts. His
main reason is that the trial
courts have a built-in bias to
appoint those lawyers who will
be the least effective in
embarrassing the trial judges
by getting the convictions
reversed. Maybe, but it seems
to me that by and large the
trial judges simply appoint on
appeal whoever are their
financial and personal friends
just as they do at trial
without considering too much
one way or another the quality
of representation. Certainly
the appellate courts are in a
much better position to
determine which attorneys on
appeal are the more qualified
brief writers and make the
better arguments and are more
punctual in getting their
,
appellate work done. However,
it might take a wrecking ball
to dislodge the trial courts of
this power, which of course
translates into political
power. A related problem is
the number of ghost-written
briefs. This is not bad in
itself but what is bad is the
number of lawyers who get
appointed on appeal who do
nothing more than sign the
briefs submitted to them by the
ghost writers and then split
the fee with the authors.
Ray Hill challenged me on
my contention last issue that
he sometimes engages in
"leftist rhetoric." He
contends that he prides himself
on not being an ideologue. I
pointed out on his radio
program that the operative word
in my article was rhetoric not
ideology. There was some
discussion from Ray about
Marxism but I never said
anything about Marxism in my
article. Someone else from
another perspective questioned
my conclusion that Ray has done
more for the good of the system
than just about anyone I know.
That is simply my opinion and
it is still my opinion.
The following appeared in
"The Bondsmen's (sic)
Perspective", a publication of
the bonding industry of Harris
County: "Attorney Walter Boyd,
distinguishedwriterforHarris
County Criminal Lawyer's
Association Magazine recently
wrote he hated judges. He has
been a long time supporter of
the Pre-trial Release Agency.
I take the position I love all
10
judges and do not find Pre-
trial Release Agency to my
liking." The same newsletter
also proudly published an
article by former President of
HCCLA in opposition to the
Pre-trial Release Agency. May
I remind everyone who does not
recall, the hard and courageous
fight that Charles Orsborne and
Jim Greenwood and others waged
against the bond people to even
get pre-trial release
established. But what I really
appreciated about the remarks
in the bondsmen-women
newsletter is that itis giving
me an out tQ the awful
predicament I got myself into
with the judges. So from now
on I do not hate judges at all.
I HATE BONDSMEN. (You notice I
am purposefully not including
the women. You hear that,
Skelton?)

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p/J.223-8592 Cathy
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Experienced, Excellent References
Call JUDITH BLONDET (713)862-8034
Available Immediately
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-----------------------------------
---------------------------------
,.-exas Institute of Crimina( tawana Aavocac1f
Yresents
,.-fie 4tfi Annua( Crimina( tawSeminar
at 3foteCin(fruveston, exas
When: August 3-4, 1990
Friday - Noonto 5:00p.m.
Saturday - 9:00a.m. to 5:00 p.m.
Early Registration: $75.00
Registration at the Door: $90.00
Friday Night Party: at Allen Isbell's
Galveston Home
Discountavailable forCruise on Gambling Ship
Saturday NightCruise: 7:30 p.m. to2:00 a.m.
Special Discounton Rooms atthe Flagship
$60.00 per room ifreserved byJuly 27, 1990
Name:
Address:
Telephone: T.B.N. ______
Please reserve _ rooms for Aug. 3-4. ($30.00 deposit required)
My checkfor $ is enclosed.
Please return to: Texas Institute ofCriminal Law & Advocacy
c/oMarkGoldberg, 216 Stratford5, Houston,Texas 77072
Orforimmediateregistration,call713/224-6719
Editor's Note;
David Suhler has drafted a motion for an uncommon circumstance, but if you
have one similar, you can benefit from his work product. The statues
involved are Arts. 24.28 & 35.27 V.A.C.C.P.
APPLICATION FOR CERTIFICATE TO SECURE
ATTENDANCE OF WITNESS FROM ANOTHER STATE
TO THE HONORABLE JUDGE OF SAID COURT;
Comes now Defendant in the above entitled and numbered cause, and
makes application for a certificate to secure the attendance of
Identification and Jail Records CUstodian for the ____ Police Department, to
testify in the above-entitled and numbered cause, and in support of such
application shows;
I.
Said witness is presently located in the City of ____ State of
II.
This witness is a material and necessary witness in the prosecution that
is the subject of this cause in that the records requested by the Defendant
in his subpoena application filed on provide necessary and material
proof of Defendant's physical condition and description immediately prior to
his presence in this County at the time of the alleged offenses herein. The
presence of this witness is required for five (5) days, commencing on ___ at
the District Court in Houston, Harris County, Texas.
III.
It will not cause undue hardship to the witness to be compelled to
attend and testify in the prosecution that is the subject of this cause.
IV.
The laws of the State of Texas as well as the laws of the States of
give the witness protection from arrest and the service of criminal and civil
process in connection with matters arisingbefore the entrance of thewitness
into these states.
WHEREFORE, the defendant prays the court grant this application and
issue a certificate to secure the attendance of Identification and Jail
Records Custodian for the Police Department.
Respectfully submitted,
Attorney for Defendant
o R D E R
On this date the Court heard Defendant's Application For Certificate To
Secure Attendance Of Witness From Another State. After considering such
Application and argument of counsel, the Court finds that such Application
should be;
Denied
Granted. IT IS THEREFORE ORDERED that this Court's Certificate
Requesting Attendance Of Witness In state of Texas shall be issued by the
Clerk of the Court who will also issue a summons to appear to the
Identification and Jail Records Custodian for the ____ Police Department, _
_ st., ____ County, ____ . IT IS FURTHER ORDERED that the Clerk of the Court
shall present such certificate, summons and this order to Judge ___ or other
Judge of a court of record of County,
----,
District Court Building, _
St., ____.
SIGNED on
JUDGE PRESIDING
12
CERTIFICATE REQUESTING ATTENDANCE
OF WITNESS IN STATE OF TEXAS
This is to certify that:
I.
A prosecution iscurrently pending against the above-named defendant for
the crime of
II.
The Identification and Jail Records custodian for the Police
Department is currently residing or located in the city of ____ state of
_ The attendance of such person as a witness in the above-mentioned
prosecution is material and necessary in that the content of those records
provide material proof of the Defendant's case in the above entitled and
numbered causes.
III.
The presence of the records custodian and the records requested are
needed for five (5) days, commencing on in the Judicial District
Court in Houston, Harris County, Texas.
SIGNED on ________________________
JUDGE PRESIDING
Editor's Note: At the Nuts & Bolts seminar on pre-trial motions, Joe W.
Varela said that he subpoenas pen packets himself in advance of trial. I
asked him to share what he files to obtain these documents - Allen C. Isbell
APPLICATION AND AFFIDAVIT OF DEFENDANT
To the Clerk of ____ District Court of Harris County, Texas: Comes now the
Defendant and makes application for issuance of subpoena for the herein below
named person. IN THE CASE OF THE STATE OF TEXAS VB. . BART BLACKHART; No.
90-0000 charged with Murder, you will please issue this subpoena in
accordance with law, for the following named witness residing in the State of
Texas, as below set out:
S.O. woods, Jr.
Records Clerk, Texas Department of Corrections
P.O. Box 99, Huntsville, Walker Co., Texas 77342-0099
DUCES TECUM:
All penitentiary packets, fingerprints, photographs,
indictments, ordersgrantingor revoking probation, judgments,
sentences and commitments, in certified and exemplified form,
of the following inmates(s):
[Name, Date of Birth, TDC# (if known) of inmate)
Send to: Joe W. Varela, Suite 275, 5100
Westheimer, Houston, Texas 77056-5507
(713) 968-6549
The testimony of said witness is believed to be material to the defense on
the trial case.
Returnable on the 1st day of September, A.D., 1990, at 9 o'clock a.m.
Joe W. Varela Attorney for Defendant
Bar No. 20496400
5100 Westheimer, suite 275
Houston, Texas 77056-5507
(713) 968-6549
13
Preserve Me Please! by Allen C. ~ b e l l
"AN EXPERT AIN'T NO EXPERT ON WHETHER
A COMPLAINANT IS TELLING THE TRUTH"
Because the Rules of Evidence allow a more liberal use of "expert" testimony,
a trial lawyer may relax his guard when the state puts forward a "highly
credentialed expert" in child abuse or sexual assault cases and may allow
this expert to express an "opinion" that the complainant istellingthe truth
or to state that the witness believes the egregious event happened. Object!
These are proper grounds for objecting:
1. A witness, including an "expert", may not give an opinion concerning the
truth or falsity of another's witness's testimony;
2. Such testimony is impermissible bolstering.
See Kirkland v. State, 747 S.W.2d 833 (Tex.App. - Dallas 1987, P.D.R.R.);
Miller v. State, 757 S.W.2d 880 (Tex.App. - Dallas Rehearing Denied Oct. 12,
1988, P.D.R.R.); Ayala v. State, 352 S.W.2d 955 (Tex.Crim.App. 1962); Black
v. state, 634 S.W.2d 356 (Tex.App. - Dallas 1982, No Pet.); Farris v. state,
643 S.W.2d 694 (Tex.Crim.App. 1982).
BAIL BONDS
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ADDITIONAL COURT DIREr.TORIES ARE AVAILABLE.
14
,.
IsPre-trial ReleaseAgencythe.evilempireinthecriminaljusticesystem?
UNDERNOCIRCUMSTANCESshouldpre-trialreleasebea"owedtointerviewdefendantswitho"ttheirattorneypresent!
Spc:.ciaj p.;:rmiwl>u hJ article;; givclJ by
Obituaries, 2 m
New readers's digest, 4
C\assilied ads, 8
LOCALisTATE
ACLU protestsprocedureatLeonjail
Motionaimsatpre-trialrelease
By Melissa V. Leon

A Tallahassee lawyer filed a
f-'
rootion Thursday on behalf of the
lJ1
American Civil Uberties Union 10
t.ave Leon Cowlly's prelOaJ re-
lease progl"llm modJned 01" dlml.
Dated, sayiD g Itviolatestberlghts
or dereodants.
Sonia Crockea. presidenl of
the Tallahassee Chapler of the
AUUofRarida, said the county's
pre-trial release program, which is
intended 10 relieve jail crowding,
needs 10 be refined 10 ensun: that
defendanl's rights are nOi violated
Crockeasaid theAa..U agreed
10 challenge the program when a
complainl came in froma man who
wa.s urestcd in January andchazged
with poesession of less than 20
gnuns of marijuana and rolling
papcn.
Afterspending silt hoW'S in Ihe
Leon County Jail, Crockell said,
Thomas A. Scon, a prinl-shop
owner, wu given Jelease forms 10
sign if he wanted 10 go home.
Alihal poinl he was wiUing 10
a1mc.1 anything 10 gel 001 of jail,
and he signed Jeleasc paper> with-
00I reading them or agreeing 10any
ronditions, Crockea said. "Also,
he wu never told he had cl10ice
of paying a bondsman $100 10 gel
001 or waiting 10 see ajudge in the:
morning."
lau;r, Scouwuordc:n:d lO&ui>-
mil 10 urinalysis and made 10 pay
for the telLS, at a 00di1 of $46.
"The major problem with the
program is that il punishes those
am:stedbefore they have beencoo-
victcd ofany.mnc," Crockett laid
"Defendants Jelcued uoda the
program have losubmillo urina\y-
sis, counseling and eltlenDve &u-
pervision while awaiting trial -
roDditions often worse than those
imposed on convicted criminab
on probation."
According 10 Crockell and
Danni Vogl who is the anomey
handling theAa..U 's casc,forcing
adefendanllO pay any roSIll before
ronviclion vialale. provisions in-
dieated in the ROOda Constitution.
"The Rorida Constilution
Slates tha1no person clwged with
crime shall be compeUed \0 pay
rosll bef..., judgemenl of COII-
I'The major problem
with the program Ls
thaI It pun Lshes those
arrested berore they
bllve been cODvtctedof ,
IIDY crime.
-SonlaCrockett,ACLU
viclion become. final,"\q:1 said
"'The defendanl has nol been COlI
victcd in this case, and rc<juiring
him 10 pay thecosts ofhis urinaly-
sis under the pre-trial release pro-
gram isimproper."
Acconling 10 Crockea, defen-
danllllre nOI told tha1 they have a
choice of paying a money bond10
gel Oul of jail or tha1 they have a
righl \0ICC a judge wilhin 24 houn
of their am:sl
"They are told 10 rignthe pre-
tri.a.I Jelease papers iflhey wanl oul
of jail, and mOOI people sign them
becAwetheywanlouluquicklyu
possible," Crockea said
However, Jerry Hendry, dircc-
lOrof the LeonCounty Probation
Di ruion and manager of the pre-
trial release program, denied
Crockett'. clairna.
"I'm proud of the pugram."
Hendry said "It'.a good program
and I would like 10 lhink ihal the
rights of defendants aren 'I violated
because pre-trial relcaseisa vol un-
tary thing," Hendry said. "When a
person rc<juests 10 be released
through the program, the person is
saying thaI he accepts the rondi
lions ofthaI release, which in some
rc<juire random urinalysis
\Csting."
Hendry said that COOl upltid by
the defendant
Overall, Hendry said, the pro-
gram does what i I is designed 10 do
- allow some people who don'l
need 10 bekcptinjail until theirfirsl
appearance hearing dale 10 go
horne.
"WeprobablyinlerviewSOOIO
l,<XXl people a moo th," Hendry
Kid. "and approximate1 y one-Ihird
of them are rdeased on their own
lI:(;()jInizance with the undenlAnd-
ing IMI they musl comply with the
conditions of their Jelease."
TheAa..U motion was filed in
Leon County Court
A hearing on the mailer is
lCheduled for March 28 before
Leon Counly Judge Kathleen
Dekkn
1990, tk


'D.e. a<lu/4d tk

tU eiid
Mt tk fuNn


- 'Pre-6U4t


Z'atteu -

Sue - ArlUat
be uUbuJ

A pa i d announcement fromyourProfessionalBondsmenofHarrisCounty
__________________________________ __
WHATIS THEHARRISCOUNTY
CRIMINAL LAWYERS
ASSOCIATION?
The HCCLA is a non-
profit, tax exempt,
professional Association
made upoflawyers from
Harris County, Texas, who
are working to promote
excellence and high ideals in
the practice ofCriminal
Law.
Any lawyer in good
standing with the State Bar
ofTexas, who is endorsed
bya member of
HCCLA is eligible to join.
Theendorsement recom-
mends the applicant as a
person ofprofessional
competency, integrity and
good moral character who is
actively engaged in the
defense ofcriminal cases.

WHAT DOES HeCLA DO FOR
THE DEFENSE BAR?
Referrals Ihrough our Lawyer RefefTai Ser -
vice and Ihrough OUI membership dire<:-
wry .
HCCLA publicalions including DOCKET
CALL. a monlhly newsleuer summarizing
significanl decisions ofthe Texas Coun of
Criminal Appeals and Texas COWlS 0f Ap-
peals and lopies oflocal inleresl 10 Ihe
criminal defensc bar .
Regula! Momhly Luncheon general
membership meetings featuring slX3kers
on subjects oflopical imeresl.
Provides a responsive local forum for
lawyers actively engaged in Ihe practice
ofcriminal law.
Opposes legislalion and local rules whi ch
infringe on individual rights protected by
conslilutional guaranl=.
Promotes a productive exchange ofideas
and encourages beller communication
wilh prosecutors and Ihe judiciary,
Provides cominuing legal educalion pro-
grams for improving advocacy skiUs and
knowledge.
Promotes a jusl application of Ihe COWl
appointed lawyer system for indigent per-
SOns cha!ged with a criminal oHenS<',
Amicus Curiae Briefs where ap-
propriale,
WHAT DOES A MEMBER DO?
PaJ1icipaltand exchange infonn3110n and
skill in our e lEprograms.
Comribule 10 OUI Brief Bank Service.
Perform agreed Pro Bono services.
aring 10 Ihe Associalion' s alienIion prolX
r
grievan= in :he practice which meril
responS<' and action,
Sha!e in the co mma!aderie at our monthly
luncheons and annual social
Take call s on our RefefTal Service.
Justice
Duty
Freedom
FeUowship
-
66
Professional Organizations in which your are a member in good
______________________________________
Admess: ____________________________
Telephone:_______________________________________
Have you ever been disbarred ordisciplined byanybarassociation
orareyouthesubjectofdisciplinaryactionnowpendinlS-g_______
F' IJ1Tl Narne:
DateadmittedtoBar: ______LawSChool_____________
For Regular Membership enclose S100.00 annual fee,
Sustaini ng Membership $200.00
Date, Degree rromLawSchoolL______________
TYPE MEMBERSHIP __ Student
(Expected graduation clate____)
date signature ofapplicant
__ Advisory
__ Honorary Endorsementonreverse must besignedby HCCLAMEMBERIN
__ Regular GOOD STANDING
ENDORSEMENT
I, a member in good standing ofHCCLA believe this applicant 10 be a person ofprofessional compelency, integrilY and good
moral character. The applicant is actively engaged in the defense ofcriminal cases,
MAILTHIS APPLICATIONTO:
Harris CountyCriminal
Lawyers Association
signature ofmemlxr
P.O. Box '12773
Houston, Texas77007
7131227-2A04
Editor's Note: After Richard Prinz's speech at our noon luncheon, several
requested a form motion for a Judicial Recommendation Against Deportation.
He has provided one. - Allen C. Isbell
REQUEST FOR JUDICIAL RECOMMENDATION AGAINST DEPORTATION
Defendant requests this Court enter a judicial recommendation against
his deportation under 8 U. S. C. 1251 (b) at the time of his sentencing on
November 30, 1987.
Defendant has been found guilty of possession of stolen credit cards.
Defendant has been a lawful permanent resident of the United States
since 1981 and this is his first encounter with the law.
He is married to a U.S. citizen and the father of a ten year old boy and
a six year old boy who are U.S. citizens. The presentence investigation in
this case shows that the family is intact.
Defendant is currently pursuing a degree at Texas Southern University
and has continuously been employed in order to support his family. This
offense occurred in an attempt to gain money for his children.
He bought each of six credit cards involved here for $50.00 and used
only one to buy lunch.
No violence was involved in this offense and this Court has heard
testimony concerning the circumstance of Defendant's arrest. The fact that
he did not consent to be searched does not in any way imply that he resisted
arrest or in any other manner obstructed or injured the arresting officers.
It is true that Defendant lied to U.S. Postal inspectors upon his arrest
but he was unrepresented at the time and has never made a false statement to
this Court and has been forthright about his crime as well as providing
details as to how he obtained the stolen credit cards with the Probation
Office.
Proper
Attorney
service.
co
notice
ncerning
has
this
been
re
given
quest
to
as
the
is r
INS
efle
and
cted
the
in
Ass
the
istant
certif
Distr
icate
ict
of
Defendant requested this Court enter a recommendation against his
deportation at the time of his sentencing or any time thirty days thereafter.
Respectfully submitted,
RICHARD PRINZ
Admission ID No. 3255
333 Clay, suite 3030
Houston, Texas 77002
(713) 651-9111
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
Hand Delivered to Assistant District Attorney, Federal Building, 515 Rusk,
Houston, Texas 77002; and sent by Messenger to Mr. Gary Holdman, Chief Legal
Officer, U.S. Immigration Service, Office of the Trial Attorney, 4th floor,
509 North Belt, Houston, Texas 77060 this ____ day of November, 1987.
17
AttoGirl/AttoBoy by Mary E.Conn
ATIAGIRLGloria Briseno - who, having justentered the wonderful
world of criminal law, obtained a not guilty in cca on a resisting
arrestchargein herfirstcriminal jurytrial. Ms. Briseno also caused
astink sufficient in the county jail to getherclient some medical at
Methodist Hospital. Her client had been injured during arrest and
incarceratedfor overone year. She points outthatthe Fifth Circuit
distinguished between cruel and unusual Eighth Amendment rights
ofconvicted personsandthe durprocessprotection guaranteedto
pre-trialdetainees. CongratulationsGloria!
ATIABOY Danny Easterling - who recently spenttwo long weeks
C:l one !lour~ 2 1 1 for~ r b on aBMVin JudgeShipley's court, onlyto
have his client's case dismissed when finally called, due to
insufficiency of identification evidence Danny had been urging for
nine months. Talk aboutyour intestinalfortitude! Then, two weeks
later Danny got a one day trial! Not Guilty jury verdict on another
BMV. This time the copfound his client in the cartearing the radio
out of the dash. The wrench allegedly used to remove the radio
was nevertagged norfound in the C/W's vehicle. Danrysays it's
justice; seemsmorelikesheergutsandgoodwork011 hispart.
CARLOS T. CONDE
Spanish Judiciary Interpreter
Experiencedin:
CountyCriminalCourtsatLaw
CriminalDistrictCourtsatLaw
CivilDistrictCourtsatLaw
CivilDistrictCourts- Family
CivilDistrictCourts- Juvenile
MunicipalCourts
Depositions
3mKelleyDrive
Houston,Texas77009
(713) 864-9629
Beeper 765-5678
References
JEFFROSS
AttorneyatLaw
A Legal Practice Dedicated to
HOTCHECKDEFENSE
FormerHarrisCo.Asst. DistrictAttorney
FormerChief ProsecutorCheckFraudDivision
MemberHarris Co. Crim.LawyersAssn.
759-1055
.
.
1301 Lee/and, Suite 300 Houston, Tx. 77002
18
PLEA BARGAINING
by Will OIlLlIlW
1. The PrimaryConceptofPlea Bargain-
ing is to Obtain the Best Possible "Deal"
For Your Client.
Withoutplea bargaining, the Judi-
cial System would break down because
there are not enough prosecutors, judg-
es, bailiffs, court reporters or clerks to
afford every criminal defendant atrial.
The opportunity to negotiate his
case often works to the Defendant's
advantage. In exchange for waiving his
constitutional right to a trial, he may
obtain alightersentence. Thisdepends,
in part, onhowequipped hislawyeristo
negotiatethe case.
2. A Defense Lawyer Should Always
Negotiate From aPosition ofStrength.
Noprosecutorrespects adefense
lawyer who doesnotknowthe law, who
is unfamiliar with the facts of his case,
and who sheepishly begs for adeal. A
lawyer who is 100% prepared is 100%
more likely to persuade his opponent to
make his client the best offer or bottom
line deal.
How doyou bargain from aposi-
tion of strength when you're handling a
"dogcase"? The mostlay-down case for
the State, can have factors weighing in
yourclient's favor that you can use. For
example, ifthe State's witness lives out-
of-state, an overnight stay in Houston
maygreatlyinconvenienceordisruptthat
witness' life. Use that as a bargaining
Chip.
Do not overlook the possibility of
bluffing. Sometimes an experienced
prosecutorwill rethink his orherposition
whenadefenselawyersuggests, artfully,
that a strong case is less that perfect,
and the defense is ready for trial. Be-
ware! bluffing can backfire, and leave
your client in an even worse position.
Aside from your advocacy skill, a
numberoffactors may determinewheth-
er your client will receive a "sweetheart"
deal:
1. The strength orweakness
ofthe State's case.
2. Your potential legal defense.
3. The overall strength of your case.
4. The reluctance of witnesses to
testify.
5. Any sympathy factors or human
factors involving your client, e.g.
age, family tragedy.
6. Your relationship with the prose-
cutor.
7. The average punishment for the
offense.
8. Thecriminal history ofyourclient.
9. The attitude ofthe Judge.
10. The prosecutor's autonomy to
makeadecision.
11. Thecurrentpublicopinionregard-
ing the offense.
12. The media attention surrounding
the case.
13. The length ofapotential trial.
14. The Court's docket.
3. Bargaining For A Reduced Sentence
Or Dismissal Contract
Your client may have knowledge,
connections or skills which the State
wants, and for which the State may
agree toareduced sentenceordismiss-
al. Usually, drug cases reqUire that you
negotiate with a prosecutor from the
Special Crimes Division.
Itis ofparamountimportancethat
you negotiate for terms that your cl ient
19
can satisfy. Unrealistic terms, in light of
your client's knowledge or abilities, will
provide your client with few or no ben-
efits. You can notrely uponthe factthat
your client tried his best to meet the
terms, or that he substantially complied,
toenforcethe contractthatyounegotiat-
ed with the State.
A classic example of how "best
effort" will not confer upon the State a
duty to abide by acontract arose out of
HarrisCounty. In Swansonv. State, 692
S.W. 2d 548 (Tex.App.-Houston 14th
Dist. 1985nowrit), adefendantcontract-
ed with the District Attorney's Office to
provide information leading tothe arrest
and indictment of four separate people
engaged in four separate drug activities.
He was unable to comply with all the
speCifictermsoftheagreement. Afterhe
pled guilty to his pending case, he ap-
pealed, arguing that he substantially
complied with the terms and thatthe law
enforcement agency involved prevented
himfromfulfillingthecontract. Therefore,
he should have been allowed to enjoy
the fruits of his work (i .e. a dismissal).
The Courtheldthatthetermswereclear,
that he did not strictly comply with the
terms, and that there was no evidence
thathewaspreventedfromsatisfyingthe
contract. Therefore, he could not hold
the State to its promise to dismiss.lQ. at
550.
As a rule of thumb, negotiate for
several "partial performance" conditions
to minimize the chance that your client
will incur risks without receiving any
benefits.
4. Negotiating For Promises From The
State Absent AFormal Contract.
Negotiations that involve oral
promises or assurances from the State
must be unequivocally clear. In JOiner v.
~ 578 SW. 2d 739 (Tex.Cr.App.
1979), the defense and State entered into
a plea agreement whereby the State
would dismiss all pending cases against
the defendant, reduce his delivery case
to possession and offer him ten years
probation. After he accepted the offer
and pled guilty, the State filed two drug
cases against him which existed at the
time of the plea. The defendant was
then sentenced to 60 years. On appeal,
he complained that the State either knew
of the two unfilled cases, or should have
known, that filing the cases after his plea
breached their agreement. The State
responded that at the time of the agree-
ment they did not know about the two
unfiled cases. The Court articulated that
the State did not enter into an agreement
that would have given a carte blanche re-
lease from any and all other offenses
which he may have previously commit-
ted, but which were then unknown to the
prosecutor. To avoid the problems in
~ a lawyer might negotiate for a
promise that no more cases of the type
to which your client is pleading be filed.
5. The State's Obligation To Abide By Its
Plea Bargaining Agreements.
The leading case involving a
prosecutor's duty to abide by a plea
agreement is Santobello v. New York,
404 U.S. 257 (1971). In that case, the
defendant pled to a reduced gambling
offense, with the understanding that the
prosecutor would make no recommenda-
tion to the Court on the issue of punish-
ment. At sentenCing, a new prosecutor,
asked the Court to give the Defendant
the maximum. When the defense object-
ed, the Judge indicated that the State's
position would not influence him. The
defendant was sentenced to the maxi-
mum! The Supreme Court held that the
prosecutor breached the agreement and
remanded the case to the State Court to
decide whether specific performance or
a withdrawal of the plea would best rem-
edy the situation.
A defendant's plea lacks
voluntariness if the State breaches it plea
agreement. Ex Parte Rogers, 629 SW.
2d 741 (Tex.Cr.App 1982); Ex Parte
~ 682 SW. 2d 581 (Tex.Cr.App.
1985); Ex Parte Perkins, 706 SW. 2d
320 (Tex.Cr.App. 1986); Ex Parte Austin,
746 SW. 2d 226 (Tex.Cr.App. 1988)
In Ex Parte Austin, supra, the
defendant pled guilty to attempted mur-
der with an affirmative finding of a deadly
weapon. The State agreed to recom-
mend shock probation. Later, defendant
learned that shock probation was un-
available. The Court ruled that because
the State could not fulfill its agreement,
the defendant's plea was invalid.
Ex Parte Steohenson, 722 SW. 2d
426 (Tex.Cr.App. 1987), involves a
breach of a tacit agreement by the State.
In that case, the defendant was charged
with aggravated sexual assault. He pled
guilty and received 40 years. He was
concerned that he would have to serve
one-third flat calendar time; the State
agreed to waive the deadly weapon find-
ing. The defense lawyer mistakenly told
the defendant that he would not have to
serve the one-third flat time. The Court
held that the State was aware of the
defendant's concern, and when the State
waived the affirmative finding of a deadly
weapon, the State induced the defendant
to believe that he would not have to
serve the flat time. Therefore. through
the State's actions there was an indirect
promise made to the defendant. Be-
cause the promise could not be carried
out, the defendant's plea was invalid.
20
6. A Lawyer Must Protect Himself From
Accusations That He Failed To Commu-
nicate The Plea Offer,
Remember that you have an
lute duty to communicate each and every
offer from the State to your client, includ-
ing a ridiculous offer. A defense lawyer
must be mindful that the client makes the
ultimate decision to accept or reject a
plea bargain offer.
In Ex Parte Wilson, 724 SW. 2d
72 (Tex.Cr.App. 1987), the defendant's
counsel failed to communicate that the
State offered him 13 years on a plea.
The defendant proceeded to trial, and
received a life sentence. In a post-con-
viction writ, the defendant claimed that
had he known about the 13 year offer he
would have accepted it. The Court ruled
that the defendant's counsel was ineffec-
tive in failing to communicate the offer.
It is a good practice to have your
client reject on the record the State's last
offer before trial. If that approach makes
you feel uncomfortable, have your client
sign a written rejection statement prior to
trial and file that document with the
Court. Either approach will eliminate the
possibility that the client will prevail in a
claim against you alleging that you failed
to communicate the State's offer.
Announcement
JUDGE SYLVIA R. GARCIA IS NEW
PRESIDENT OF TEXAS MUNICIPAL
COURTS ASSOC.
Judge sylvia R. Garcia,
Presiding Judge of the City of
Houston Municipal Courts, has
been elected President and
Chair of the Board of Directors
of the Texas Municipal Courts
Association (TMCA) and will
serve in that capacity through
June 30, 1991.
TMCA is a statewide
organization with nearly 1,000
members composed of municipal
court judges, court clerks and
other court related personnel.
Its primary purpose is to
provide Municipal Courts in
Texas with a mechanism to
advance the judicial systems of
its municipalities in
accordance with state and
federal laws.
TMCA oversees the
operation of the Texas
Municipal Courts Training
Center with facHities and a
fulltime professional and
support staffin Austin, Texas.
The Training Center conducts
judicial education classes and
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the state and has an operating
budget of about one million
dollars a year.
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21
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THURSDAY, SEPTEMBER 27th
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I c nl NACOL" Ilcn
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Pleaserehun form10:
NACOL
1110 VerO'lonr Avenue, NW
Suite 1150
Washington, DC 20005
If paying by credit card, you may fax your form ro
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