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HCCLA OFFICERS 2001-2002 PRESIDENT Wayne Hill PRESIDENT ELECT W. Troy McKinney VICE PRESIDENT Cymhia Henley

HCCLA OFFICERS

2001-2002

PRESIDENT

Wayne Hill

PRESIDENT ELECT

W. Troy McKinney

VICE PRESIDENT

Cymhia Henley

SECRETARY

Paul SL John

TREASURER

Emily Munoz

PAST PRESIDENT

Richard Frallkoff

BOARD OF DIRECTORS

Mary Acosta WinslOn Cochran Rick DeTolO Rosa A. Eli.des Robe", Fie/cman Kevin Fine Tucker Graves Ron Hayes David Jones David Kiana Jim leimer Da.ina O ' Kane Kyle Sampson Gram Scheiner

Norm Sil\'~rman

Helen Simotas

PAST PRESIDENTS

1971-2000

C. Anthony Frilioux StUart Kinard George Luquette Marvin O.league Dick DeGuerill W.B. House, Jr. David R. Bires Woody Densen Will Gray Edward A. Mallett Carolyn Garcia Jack B. Zimm erman Clyde Williams Robert Pc/too Candelario Elizondo Allen C. Isbell David Mitcham Jim E. Lavine Riel< Bras.s Mary E. Conn Kent A. Schaffer Dan Cogdell Jim Skelton George J. Pamham Garland D. Mcinnis Robert A. Moen lloyd W. Oliver Danny Easterling

Contents From the President 2 Horizontal Gaze Nystagmis 3 Intoxication & Drugs ofAbuse Testing 5
Contents
From the President
2
Horizontal Gaze Nystagmis
3
Intoxication & Drugs ofAbuse Testing
5
Blood
9
Apprendi
11
Succeding in Probation
15
Banquet Photos
16
How to SealJuvenile Records
18
Winning ~rriors
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20
Let's Hear From You!
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Editorial Staff
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Distribution: 750 copies per issue. • For article and other editorial contribution,
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FROM THE PRESIDENT

Awards, rewards, and challenges

By WAYNE Hill

The purely fun part of serving as president ofHCClA ended as quickly as ir began on June 14, 2001, the evening of the annual banquet. On that evening, numerous awards were presented, recognizing the outstanding achievements of HCCLA members as well as others who have made significanr contribu tions to the crim inal justice sysrem. In addition to the fabulous menu, Tony's Ballroom was energized by the pulsating musical sounds provided by Rick "The Don" Detoto. David Mitcham, a past HCClA president, was presented wirh the Arrorney of the Year Award in recognition of the ourstanding results he has achieved for his clients, and as a tribure to a career marked by professionalism and commirment to excetlence in rhe practice of criminal law. Richard Frankoff, immediare pasr president, received recognition for his rireless work and devotion to service in furthering rhe goals of HCCLA. Troy McKinney presented him wirh a beauriful plaque, while Roberr Fickman presented a rather unorthodox gift. Richard presented president-elect Troy McKinney wirh rhe President's Award for Troy's leadership role in aurhoring and promoring rhe HCClA resolurion condemning certain bond revocarion pracrices in some Harris County courts. I had the honor of presenting Judge WiJliam M. "Wild BiJJ" Hatten wirh the Judicial Longevity Award in recognition of his decades of service to the judiciary and citizens of Harris County. On rhe lighter side, Judge Hatten graciously permirted (encouraged) me to share several humorous stories abour him wirh everyone in anendance. It was a real pleasure to have my long rime friend share in the evening's fesriviries. Vice President Cynthia Henley presented rhe Harris County Community Supervision and Corrections Department's assistant direcror, Mike Enax, with HCClA's Educarional Scholarship Award given annually to a deserving probationer. Our Key Nore Speaker, famed San Antonio criminal defense lawyer Gerald Goldsrein, enterrained rhe audience with his usual freneric and rheatrical approach to

speech making. Gerry delivered a rhoughr provoking evaluarion on how individual liberties are shrinking as a result of governmental encroachmenr on the

consritutional prorections once rhought to be guaranteed to everyone. Finally, the annual Torch of liberty Award was presented to Texas State Senator Rodney Ellis in appreciation of his continuing effort to make positive changes in the criminal

justice system . Senator

archirect of Senate Bill 7, "The Texas Fair Defense Act," provided rhe audience with his perspectives regarding the difficult path this bill took before being signed into law. He described several cases that epitomized the need for reform bur none was more compelling than the srory of Anthony Robinson, Senator Ellis' special guesr ar the banquet. Mr. Robinson served 10 years in prison for a crime he did nor commit and for which he was ultimately exonerared. Senator Ellis concluded his speech by issuing a challenge to the defense bar ro become acrively involved in the implementarion of rhe Fair Defense Act. luckily for me (and for HCCLA) pasr president Jack Zimmermann approached me ar the conclusion of rhe banquet and gave me some advice. He suggested rhar I call upon former presidents as a resource during my renure as president. Realizing thar our organization needed to take a leadership role and be proacrive in the implementation of the Fair Defense Act in Harris County, I announced rhe formation of the Fair Defense Acr - Senate Bill 7 Comminee consisring of Michael Charlton, David Jones, David Kiatta, Cynthia Henley, Jim leitner, Ron Hayes as rhe HBA Criminal law & Procedure secrion liaison, and me. I named Jack Zimmermann to chair rhis comminee. (Thanks for that advice Jack!) As wirh all his undertakings, Jack's service as chair of the Fair Defense Act Commirree has been exemplary. After numerous meerings and an exhausrive review ofTexas Fair Defense Act, the comminee produced the HCCLA Fair Defense Acr Plan. Jack and I met informally wirh a committee of districr court judges ro discuss our anticipated proposals. Thereafter, HCClA's officers and board of directors unanimously approved rhe plan. On August

Ellis, the principal

15'h, the wrinen plan was provided to both the County Criminal Courr at law and the District Court Judges. Jack and I presented the HCClA Plan at the Harris County Criminal Court at law Judges' meeting at

Del lago . We also provided our proposal

to

an assembly of district court judges. H CCLA presented a wrinen request to the Harris County Districr Court Judges asking for a vote on the HCClA Plan and for a public vore on any plan considered; unfortunately, our requesrs were declined and our Plan was not submirred for a vore by the district court judges and the plan ultimately adopted by the judges was adopred in a secret meering. The interim plan ultimarely approved by the district court judges adopted many of the principles contained in the HCCLA Plan, but retained all of rhe current merhods of

appointment, including: term assignments for up to a year (contracr sysrems), limired term assignments for a day or week (limired conrracrs), individual case assignments, and a combination merhod permirring rhe use of any of the rhree methods. An ongoing dialogue wirh rhe respective court groups has continued in an effort to ensure rhar rhe defense perspecrive is recognized and adopred in any plan finally implemented . In rhis regard, Jim leirner, David Kiana and I spent several hours wirh rhe Districr Court Fee Commirree discussing ways ro revamp rhe entire paymenr procedure. Addirional meerings wirh rhis commirree are anticipared. While rhe Harris County Courts ar law have not yer published a plan, I anticipare rhar ir will call for a modified wheel sysrem to provide for the random assignment of qualified lawyers. All members of rhe Fair Defense Act Commirree are to be commended for rheir hard work and dedicarion to rhis project. Wirhour their unselfish participation, rhe HCClA Plan would nor have been developed. Turning to orher marrers, I would like to see more members take advantage of rhe excellenr continuing legal educa,rion programming provided by HCClA. Cynthia Henley and Troy McKinney organized the "After Hours ClE Program" which takes place on rhe rhird Thursday of See President's Message on page 14

HORIZONTAL GAZE (CONTINUED)

continuedfrom page 3

at the same two-second rate. In this phase, each pass for each eye must take at least eight seconds and the four passes together

must

sti mulu s is at maximum deviation , the officer must observe "distinct" nystagmus in order to score a clue for tha t eye. It is

insufficient to simply observe nystagmus at maximum deviation since most people will

exhibit some visible nystagmus when the eye is h eld at maximum deviation . The nystagmus that must be observed in this phase must be di stinct : th at is, greater than the natural nystagmus that will occur from holding the eye at maximum deviation.

8. Passes - On se t Angle of Nystagmus.

take at leas t 32 seco nd s. When the

The fourth and final set of four passes is designed to determine whether th e onset of nystagmus occurs prior to the eye's movement to a 45-degree deviation . In this phase, the stimulus is moved very slowly- at a rate that would take four seconds to move the stimulus to the person's shoulder or at a rate of no more than 10 degrees per second. Once the officer thinks that he sees nystagmus he is required to stop moving the stimulus and hold it steady to confirm the presence of nystagmus. The stimulus must be held sufficiently long to confirm the onset of nystagmu s, sufficien rly long for the officer to ex a mine the a lignment betwee n the stimulus and the edge of the shoulder (approximately 45 degrees) so that he ca n estimate the angle of onset, and sufficiently long for the officer to confirm the presence of some white remaining in the corner of

the eye. A ss uming an onset angle of 30 degrees and the stimulus being held for two seconds to confirm the continuation of

nystagmus, each of the four passes in this phase must take at least eight seconds (three seconds out, two second hold, three seconds back) and the four passes together must take at least 32 seconds.

9. Vertical Nystagmus . Although there is

also a protocol for two passes for vertical nystagmus (VGN) upon completion of the HGN, VGN was not examined in th e NHTSA validation research of the SFSTs and it was not included in the SFST barrery during the original research. Importan tly, it is not part of the HGN test and it is not admissible under Emerson.

14 X 82 Litmus Test

When the four phases and 14 passes of the HGN are combined, administration of the HGN from the time the stimulus first begins moving must take NOT LESS THAN 82 seconds. Any HGN test that does

the HGN indicated "intoxication ." In reality, all that the prese nce of gaze nystagm u s indicates is the prese nce of a central nervous system (CNS) de pressan t in the person's system. While alcohol is a CNS dep ressa nt , the HGN is not specific for alcohol. Indeed,

not take contain at least 14 passes and take

alcohol

does not even cause nystagm us .

at least 82 seconds from the time the

Rather,

its pr ese nce in a person 's

system

stimulus first begins moving is not admissible because it has not complied with the third prong of Emerson: that is, the test was not administered in accordance with NHTSA protocol and requirements. As a practical marrer, most HGN administrations should take at least 90 seconds. Since very few people are 100 percent proficient all of the time, since some pauses during the administration are natural. and since some

simply exaggerates the presence of the nystagmus prese nt in all people . More detailed information about th e NHTSA requirements and protocol for the HGN as well as th e other SFSTs can and should be obtained from the NHTSA manuals and the studies that have been conducted regarding them. Every practitioner handling OWl cases should have and learn the material in those manuals.

passes, such as the onset passes may actually take longer than the theoretical minimum,

Manuals

 

when for instance, the onset is at 40 degrees instead of 30 degrees, any HGN that takes less than 90 seconds is suspect and should be more closely examined for compliance with each individual phase of the test.

There are 3 different types or classes of manuals: (1) Student Manuals for the Student Course; (2) Instructor Manuals for the Student Course; and (3) Instructor and Student Manuals for the Instructor Training

Other Common Mistakes

Other common mistakes in the administration of the HGN include moving the stimulus too quickly - or less commonly toO slowly - on individual passes, holding the stimulus closer than 12 inches or further away than 15 inches, not holding the stimulus for at least four seconds at maximum deviation, and curving the stimulus upward, downward, or around (also called looping) as it is being moved through the passes. Ifany of these mistakes are present in the administration of the HGN, the test and its results is not admissible because the officer did not comply with the third prong of Emerson: that is, the test was not administered in accordance with NHTSA protocol and requirements. According to the NHTSA material, the presence offour clues indicates a likely blood alcohol level of at least .10. In Texas, however, under Emerson, it is improper for any witness or officer to testify to any correlation or relationship between any number of clues and any quantifiable blood or breath alcohol level. Rather, under Emerson, all that is admissible from the presence of at least four clues is testimony that the administration of

Course . The links and NTIS Numbers for each follow. Everyone should have, at least, the 1995 and 2000 Student and Instructor Manuals for the basic SFST course. The

NHTSA

SFST manuals ca n

be obtained

from :

US Dept. of Commerce Technology Administration National Technical Information Service

Springfield, VA 22161 800-553-6847 for orders. 888-584-8332 customer service.

http://www.ntis.gov.

The current manuals can also be obtained from Texas A&M since it is the entity in Texas that provides Texas law enforcement officers with the material. The manuals are available from:

Texas A&M University Engineering Extension Service Law Enforcement Division 979-845-3211 (A&M main number). 979-458-6850 (Engineering Extension Service). 800-423-8433 (Law Enforcement Division).

INTOXICATION, DRUGS OF ABUSE TESTING, & FORENSIC APPLICATION

BY NACHMAN

BRAUTBAR, M.D.

of

prescription and illicit drugs has grown in the last 15 years, and become a point of concern to both forensic and non-forensic physicians. Various regulatory agencies, insurance companies, and idiocolegal processes, such as workers compensation and personal injury defense, have been utilizing the defense of intoxication (drugs of abuse and alcohol or a combination of either) in order to prove or disprove liability for injury. This paper attempts to address testing for these areas.

Recreational

use,

and

abuse ,

Biological samples for use in drug testing

Commonly, three types of biological samples have been utilized:

1. Blood.

Urine .

2.

3. Hair. In tests that are utilized to determine if a patient has "used" drugs (as opposed to an attempt to determine if the patient is "under the influence"), the following can be expected. Hair will retain the drugs for several months, most commonly three months after the use. Urine will retain drugs or their metabolites for anywhere from several hours to several days, or in some rare instances, weeks. Blood will retain the drugs or their metabolites for several hours and in some instances longer. To determine whether the person is impaired as a result of a drug abuse, blood is the most accurate biological tissue to be tested because the levels in (he blood or the presence of the drug in the bloodstream are very importanr objective determinanrs in the process of diagnosing or ruling out the "impairment or under the influence of drugs" or the " intoxication defense ."

Does positive blood testing, urine testing or hair testing indicate impairment?

Positive hair samples for drugs of abuse does not equate with impairment. A positive result on a hair test can only determine that

in the past a patient has used drugs with a

given limit. The presence of drugs of abuse

in the urine absolutely cannot be equated

with impairment, bur rather only with use

in the last day or several days, and in some

extreme cases the previous week. The presence of most drugs or their metabolites in the blood will not prove impairment because there is no scientific data to extrapolate the exact level of drugs in blood that will impair a specific user. That type of

extrapolation has been made only for alcohol, which has a legal definition in driving statutes, as well as medical forensic extrapolation formulas. Commonly a toxicologist and forensic physician will be asked to determine whether

urine testing positive for drugs indicates that

a person was "under the influence" or

"intoxicated" when an accident occurred on the job or when a car accident occurred on

the road. The presence of drugs of abuse, prescription medications, or their metabolites in the urine cannot be equated with impairment. Unless clinical data from the site of injury or prior to the injury can indicate that the patient was behaving as an impaired person, it will be very difficult to

es tablish impairmenr. The presence of drugs or their metabolites in the blood may suppOrt impairment based on the blood levels and the clinical behavior.

Drug recognition expert program

Due to the problem with identifying impaired workers and drivers in relation to drug/blood concentration, the Los Angeles Police Department has developed a program called the Drug Recognition Expert Program (ORE) . This program started initially with the training of officers to recogniz.e behavior and psychological symptoms associated with psychoactive drugs. Over time, the program has attracted the attention of other agencies. Based on the evaluation, a ORE forms an opinion as to: (I) whether the suspect is impaired; (2) if impaired, whether the impairment is related to drugs; and (3) if related to drugs, which drug category or combination of categories is causing the Impairment.

In a recent study (Governor's Office of Highway Safety), the police department and ORE program utilized data software developed by Southern California Research Tnstitute under National Institute on Drug Abuse funding to record and analyze data. A patient bank of 390 men and 108 women drivers was analyzed. The OREs correctly

identified at least one drug category in 91 %

of 415 specimens in which the laboratory

confirmed one or more drugs. No drugs were

found in specimens from 26 individuals whom the OREs judged not impaired by drugs. The ORE's decisions were supported for 83.5% of 484 specimens, and not supported for 16.5% specimens. Tn 14 cases, the ORE entirely missed the drugs found in urine and in 47 of the specimens for which th e laboratory confirmed multiple substances, the ORE's decisions were combinations of hits, false

positives, and

false negatives . The ORE

missed marijuana more often rhan other drug categories, but it cannot be determined whether the misses were ORE error or a consequence of the drug's time course. Since the drug 's principal metabolite can be detected in urine for days to weeks, a specimen may test positive even though it was obtained at a time when active marijuana was not ptesent and affecting the individual.

A positive result for marijuana in urine,

which is not supported with evidence of behavioral impairment, cannot and does not speak to the question of drug "intoxication. " This scientific fact is commonly forgotten

or is unknown to some forensic physicians

who have the professional and ethical responsibility to evaluate whether the patient

was under the influence of illicit drugs. For instance, r had a patient who was involved

in a truck collision while on the job, and his

urine test positive for marijuana. The forensic examiner opined that the patient was "under the influence," despite the fact

that the emergency room notes and the paramedic notes clearly stated the patient was "alert x 4" (times four). Tn the study of OREs quoted above, cocaine misses occurred with the second

continued on page

INTOXICATION (CONTINUED)

continuedfrom page 5

highesr frequency. Behavioral science shows rhar srimulanrs are ofren difficulr ro derecr, bur ir cannor be derermined wirh cerrainty wherher rhe misses are rrue errors. Since rhe half-life of cocaine is approximarely 90 minures and rhe merabolire (breakdown producrs of cocaine) benzoylecgonine (BE) is known to have no psychoacrive effecr and can usually be derecred for 24 or 48 hours,

urine posirive for BE does nor mean rhar rhe suspecr was "under rhe influence" during rhe evaluarion.

The dear message from these studies is

1. The presence of drugs of abuse in rhe urine cannor be used for rhe "inroxicarion defense." 2. The presence of drugs of abuse in rhe blood cannor auromarically be exrrapolared

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ro rhe "inroxicarion defense." Each case requires careful analysis of rhe medical records and rhe clinical reliabiliry of rhe blood levels. 3. The presence of drugs of abuse in hair has no meaning wharsoever and can nor supporr rhe "intoxicarion defense." The only exrrapolarion ro be made is (har drugs were used somerime in rhe pasr.

Medi«:ations And Substan«:es Causing False Positives

There are 161 prescriprion and over-rhe- counrer medicarions rhar have been srudied and resulred in 65 false posirive resulrs in rhe commonly adminisrered urine resr for drugs. According ro rhe Los Angeles Times reporr, Siegel, a psychopharmacologisr ar UCLA, said, ''The widespread resring and reliance of rell-rale rraces of drugs in rhe urine is simply a panic reacrion invoked because rhe normal rechniques for conrrolling drug use have nor worked very well. The nexr epidemic will be resring abuse." The mosr commonly used urine resring merhodology is AMIV Ir has been shown rhar over 250 over-rhe-counter medicarions

and prescriprion drugs can cause fal se posirive resr resulrs using rhis merhodology. The following Table I lisrs rhe drugs rhar have been reporred as causing false posi rive resrs.

Table 1

Marijuana Pain relievers such as Advil, Nuprin , and Morrin. Mensrrual cramp medicarions like Midol and Trendar. All drugs containing

Ibuprofen . Passive marijuana smoke. Passive marijuana inhalarion ar a rock concert can

re sulr in a posirive urine resr despire rhe facr

rhar rhe person has nor used marijuana . Amphetamines Drisran Nasal Spray, Neosynephren, Vicks Nasal Spray, Sudafed, and other

medicines conraining ephedrine or pnenypropanolamine. Opiates Vicks Formula 44M conraining Dexrromerhorphan. Primarene-M conraining perylamine. The pain reliever Demero] and prescriprion anti-depressanr Elavil. Quinine Warer

INTOXICATION (CONTINUED)

Methadone

NyQuil Nigh([ime Cold Medicine Cocaine

and

Amoxicillin. PCP Diazepam , as well as some ingredients in cough medicines. Dexuomethorphan.

Antibiotics

such

as

Ampicillin

Poppy seeds such as on a Burger King roll

or on a bagel roll (according to the Journal

of

1987). Quantities of poppy seeds ingested in thi s study, 25 and 40 gra ms, may be expec ted to be contained in one or tWO servings of poppy seed cake. Therefore, poppy seeds re prese nt a potentiall y se rious source of falsely positive resu lts in resting

opiate abuse. The paper in Clinical

Chemisuy also concludes: "Not only is it

difficult ro

abuse from codeine, bur dierary poppy seeds can give a strong positive re sults for urinary opiares for several days dur a rion thar is confirmed by GC/MS analysis."

The Iisr of age nts rh at can cause false posirive results in rhe urine has also been described for endogenous excretion of enzymes in rhe urine. For instance, a study from Emory University by Dr. James Woodford, has shown that a percentage of persons of African origin, Orientals, and

Pacific Isla nders may b e resti ng positi ve for

marijuana secondary to a mechanism rhat involv es the pigment melanin , which protects th e skin from sun; it approximates rhe molecular structure of the THC merabolite which causes laboratory cross reaction wirh marijuana. What this mean s is that if you have used any of these over-the-counter medications, you may be accused (arrested) based on a false posirive urine test. If your expert does

not pi ck this up you may be in serious, ir revers ible trouble .

Clinical Chemis try, Volume 33, No.6,

distingui sh heroin or morphin e

Methodology Of Drug Screening In Urine

method s to detect drugs

in th e urine. The most frequent ones are enzyme Immuno assay (EIA), radioimmunoassay (RIA), and florescence polarization immunoassay (FPJA). There are more sophisticated methodologies that are

There are several

performed on extracts of urine using thin layer chromarography (TLC), gas chromarography (GC), high perfo rmance liquid chromatography (HPLC), and gas chromatography/mass spectrometry (GS/ MS). The only accepted procedures based on the definition of the National Institute of Drug Abuse (NIDA) and the Department of Defen se (DOD) are immunoassays followed by gas chromatography/mass spectrometry confirmation. The confirmation utilizing gas chromatography/ mass spectromerry is required since the methodology of immunoassay can give false positive resu lts due to cross re ac tivity. This is due to the fact that this methodology cannot s pecifically id e ntify the drug, but rather the antibodies recognize substances that may have the same suucture chemically, immunologically, or e nzymologi ca ll y, other than the drug of interest. Immunoassays for amphetamines will show reactivity with drugs structurall y related to amphetamines, such as over- t he-co u n ter sym pa to med icoam ines, phenylpropanolamine and ephedrine, over- the-counter legal medications used for nasal congestion and cold a nd appetite suppressant. Confirmation therefore is a must utilizing gas chromatography/mass specrrometry. The use of gas chro ma tograp hy/ mass specrrometry provides an extre mely high index of reliability when properly performed and applied. Gas chromatography/mass spectromeuy is a superb methodology if done correctly. For instance, if the equipment has not been cleaned prop erly, the runs from the previo us testing will contaminate the sample, and give

erroneous, Th e refore,

methodology that w as used for specific res ults on gas chromatography/mass spectrometry ina given case. (On many occasions a deposition of the lab technician will reve al that the sam ple was conraminated.) Whar this means to you is that if your utine is tested utilizing rhe immunological method only, without confirmation with GS/MS, there is a high probability that the result ma y be a false positive a nd irrelevant to your SituatIon.

inaccurate, and incorrect results . ir is mandatory to look into the

Forensic Accuracy Of Gs/Ms

Gas chromatography/mass spectrometry

is exrremely and highly accurate if done

correctly. A laboratory that perform s the te st

must be NIDA certified or CAP (College of American Pathologists) certified. All of the labs rhat perform the gas chromatography/ ma ss specrromeuy on site can be NIDA certified. Labs that send samples to another laboratory for ga s chromatography/mass specrrometry confirmation are ineligible for NIDA certification . Therefore one must be very careful when looking at the test results to see whether the laboratory is NI DNCAP

continued on page 8

REASONABLE S6 DOUBT&

HCClA is now the proud co-sponsor of

REASONABLE

- DOUBT -

a local access channel show which airs live each Thursday night from 8:00 - 8:30 p.m.

The show is co-hosted with

Dan Gerson and Cynthia Henley,

HCClA's representative

and Vice President.

The show hosts a guest each week and topics related to the criminal justice system are discussed.

Tune into Channel 17

and call in with your comments at

713-807-1794

INTOXICATION (CONTINUED)

continuedfrom page 7

certified. Furthermore, some labs do nor properly and rhoroughly clean rhe GC/MS equipment. Some labs do nor even conducr

GC/MS conflrmarion; ins read rhey use cheap alrernarive merhods ro increase profirs and reduce expenses. Therefore you mu sr be in a posirion ro aggressively cross-examine

rhe laborarory direcror and

rechnician .

Drug Of Abuse And Hair Testing

Hair resring for drugs ofabuse has become exrremely popular among employers. There have been several scientific forensic doubrs raised abour rhe use of rhis merhodology for proof of abuse. For example, rhe Sociery of Forensic Toxicologisrs in 1990 srared: "The usc of hair analysis for employees in pre- emp loyment drug resring is premarure, and cannor be supporred by rhe currenr inform arion on hair analysis for drugs of abuse." A 1997 srudy by rhe Narional Insrirure of Drug Abuse concluded and

indica red

rhe resulr of resrs for cocaine. Analyrical Toxicology, in irs MarchiApril 1998 issue, indicared rhar removal of melanin from hair (a merhodology used ro remove rhe ethnic bias) "does nor eliminare rh e hair color bias when interprering cocaine concentrarions."

Co ngression al records from May 14, 1999, indicared rhar rhe Secrerary of rhe Department of rhe Army raised questions about the Army's use of hair resting in a specific case and members of Co ngress were expressing rheir discomfort wirh the

procedure's reliabi liry. Indeed, Representative Cynrhia McKinney, a Democrar from Georgia, advised Defense Secrerary William Cohen rhar she is exploring a possible

leg islarive remedy ro prohibir human

resring for drugs in the milirary, given thar hair resring has been proven by forensic roxicologisrs ro be racially biased . Indeed , rhe paper by Kinrz, er. al., published in rhe Journal of Forensic Scien riflc In rernarional , January 1997,

Volume 17, pages 84 ro 123 and

indicared rhar false posirives are found even

ar low concentrarions. Tissue hair analysis in good hands with good laboratory technology may give an idea about habitual use of some of rhe drugs; however, it is preferable rhar rhese should be combined

rhar significant erhnic bias may be

hair

151 ro 156 ,

wirh urinalysis urilizing eirher screening or berrer confirmarion merhodology.

Practical Application to a Case Analysis

A case scenario can help to make the

above data understandable.

A 32-year-old female parient was rhe

driver of a vehicle who was involved in a car collision and suffered inrernal bleeding (ruprured spleen) and a fracrure of a bone of rhe lower extremiry. She had requesred medical benefirs from her insurance carrier for medical expenses as well as rime lost from work and had filed a lawsuir since rhese were denied . The physician who examined the parient on behalf of rhe insurance carrier, and whose report was rhe basis for rhe denial, nored in his reports rhar upon admission ro the emergency room on the date of injury, a urine screening rest for toxicology was done, and was positive for amphetamines. The physician who examined the patient on behalf of the insurance carrier failed to note the time of the testing, the time the urine was obtained from the parient, and wherher the patient was taking any medications that contained ampheramines, such as ephedrins or pseudoephedrines. The medical records, however, contained notes from the house doctor who arrended the patient ar rhe time of her admission. The house doctor took a detailed hisrory, which clearly stated that the patient is an allergic individual and that she had for the previous two weeks been using compounds containing borh ephedrine and pseudoephedrine. The medical records further showed that all examining physicians clearly stated that rhe patient was alert x 4 on admission to the hospiral - despite her pain and despite medications received from the paramedics and emergency room physicians. There was no clinical evidence of impairment, rhere was no hisrory of drug abuse, and there was no evidence of drug impairment. The problem with rhis case is that rhe urine screening test was a false posirive because of rhe patient's use of over- rhe-counter ephedrine and pseudoephedrine containing medications to treat a cold and nasal congestion. Had a follow-up been done on that sample with gas chromatographyl mass specrrometry showing a specific rype of amphetamine, the story might have been

different if indeed rhe patient was a user

(w hich

This case further illusrrates: (I) rhe need for a very in-depth evaluation of rhe chart and notes , as far as ro the patient's mental capaciry before and afrer rhe collision ; (2) a derailed analysis of past and present prescription and over-the-counter medications; and (3) the need ro follow-up on urine screening rest if it is positive fot drugs of abuse in a case where such suspicion is indicared. Gas chromatography/mass specrrometry is rhe ultim a te tool to eventually follow-up on such a suspicion. In summaty, while drug abuse and intoxication is a problem , the diagnosis of "inroxicated" is a scientific one and can nor be based on "personal beliefs" or "feelings" of an examiner.

was not the case here) .

Dr. Brautbar is board-certified in internal medicine, forensic medicine, and nephrology, with a specialization in toxicology. Dr. Brautbar has provided expert medical opinion and scientific evidence in product liability, personal injury, medical & nursing home standards, and toxic tort cases throughout the United States. Dr. Brautbar is a Clinical Professor ofMedicine at USC School of Medicine, Department of Medicine, and is Vice-Chairman of the Department ofMedicine at the Queen ofAngels! Hollywood Presbyterian Medical Center. He has published over 230 journal manuscripts, abstracts, and book chapters in the fields of internal medicine, toxico logy, and nephrology. His resume includes past andpresent membership in 25 National and International Scientific Societies including the Collegium Ramazzini. Dr. Brautbar has been on the faculty of the National}udicial College, and lectured to Judges on the issue of Scientific Evidence, and was a peer reviewer for the Federal Judicial Center ( Reference Manual on Scientific Evidence, Second Edition, 2000). Dr. Brautbar has also been a peer-reviewer for the ATSDR. Dr. Nachman Brautbar can be reached at:

Nachman Braurbar, M.D. 6200 Wilshire Blvd, Suire 1000, Los Angeles, CA 90048 Telephone: (323) 634-6500 Facsimile: (323) 634-6501 E-Mail: brautbar@aol.com Websi re: www.environmentaldiseases.com

PERCEPTION AND MISCONCEPTION

All "blood" is not created equal

BY W. TROY MCKINNEY

While knowledge may be power and ignorance may be bliss, ignorance of available knowledge gives one's clients neither power nor bliss. In the context of criminal cases where blood analysis forms an integral part of the case, whether of the State's proof or as part of the defense, most defense arrorneys, judges, and prosecutors have large doses of ignorance and have seldom stopped by the trough of available knowledge . This article, the first in a series, will describe and debunk some of the mi sconceptions abou t the sanctity of blood test results. Simply, all blood, blood tem, and results are not created equ a l. Initially, one must know what substance was tested. The test could have been done on whole blood, serum, or plasma and depending on what was tested, the results could differ by as much as thirty percent. In simplest terms, whole blood is everything that is drawn from the person. Plasma is whole blood less the solids in the

whole blood

by centrifuging

sample. As the sample spins, the heavier solids in the blood go to the bottom of the test tube; the liquid remaining on top is plasma. Serum is plasma less the coloring agents. For purposes of this article and for purpo ses of comparison to whole blood,

(spinning) the whol e blood

blood . Plasma is separated from

there is little difference between plasma and serum.

is , however, a significant difference

Th ere

between plasma or serum and whole blood. Depending on the study and source, variations ranging from 9 percent to 30 percent have been found and documented:

that is, an analytical result on serum or plasma will overstate the true whole blood alcohol concentration by between 9 and 30 percent. While many "experrs" will indicate th at they feel comfortable with a more narrow range of potential variance, say 15 to 20 percent, it is simply not possible to know the precise relationship on any given person at any given time since it varies both between people and within the same person at different times. The important difference between whole blood, plasma, and serum, for purposes of this articl e, is the result of alcohol's affinity

for water. Not only is alcohol soluble in water, it has an affinity for water. That is, alcohol is attracted to and thus more likely to reside in water than in solids. It is for this reason that if one administered the exact same quantity of alcohol to a man and a woman of the same weight, the vast majority ofwomen would have a higher blood alcohol level since women have a lower percentage of body mass accounted for by water. In its simplest terms, since a woman has less liquid in her body in which to distribute a given quantity of alcohol, the relative concentration in the liquid that is present is going to be greater than in a man . Stated differently, 10 grams of alcohol in 100 liters of water, as in a man, is going to be less relatively concentrated (.10) than the same ten gra ms in 80 liters of water, as in a woman (.125) . When viewing alcohol's affinity for water in the context of a blood specimen, it is

useful to think of it in rel a tive term s. For example, assume that a person has .10 grams of alcohol in 100 ml of whole blood. If that whole blood is converted to plasma (the solids are removed), the remaining quantity of plasma may only be 60 ml. Because of alcohol's affinity for water, however, a greater portion of the .10 grams of alcohol will remain in the plasma. Thus a plasma result, on a weight to volume basis, may be .08 grams in the remaining 60 ml, or when converted to a 100 ml equivalent, would be .13 grams per 100 ml. Mathematically, if there are .08 grams in 60 ml, the equivalent quantity in 100 ml of plasma is .13 grams. Of course, this .13 result on plasma would be 30 percent higher than the known value of .10 grams in the whole blood specimen.

the quantity of whole blood

to plasma was decreased by 40 percent (from

100 ml to 60 ml), the quantity of alcohol

continued on page 10

Even though

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MISCONCEPTION (CONTINUED)

continuedfrom page 9

remaining in the plasma did not decrease by the same 40 percent. Rather, for purposes of this example, the weight of alcohol decrease from the whole blood to the plasma was only 20 percent (from .10 grams to .08 grams). While alcohol has an affinity for water, some of the alcohol that was in the original whole blood sample will remain in the solids that are removed when separating plasma from whole blood. If one were to measure the weight to volume ratio of the solids, based on the above example, one would get .02 grams of alcohol in 40 ml of sqlids, which when converted to a 100 ml eqllivalent would be .05 grams per 100 m!. The blood alcohol level in the solids would substantially understate the true blood alcoholleve!. Typically, medical facilities and other non- forensic facilities will conduct blood alcohol analysis on serum or plasma while forensic

facilities, such as police laboratories and medical examiners, will conduct blood alcohol analysis on whole blood. Some medical and non-forensic facilities will automatically convert a plasma or serum alcohol level and report it as a whole blood equivalent. In such circumstances, it is important to determine the factor used in such conversion as it may be higher or lower than reality or what is recognized as an acceptable relationship. Additionally, medical facilities will typically use tests, such as an enzymatic immunoassay (EIA), that have never been recognized as forensically acceptable by the scientific community for reliably quantifying specific blood alcohol levels. Rather, in the medical context, these tests ate typically intended as little more than rough screening tests. By comparison, most forensic facilities will typically use tests, such as GC-MS (gas chromatograph - mass spectroscopy), that

have much wider forensic acceptability as reliable methods for quantifying specific blood alcohol levels. Other things to look for, that should be considered, and that may affect the meaningfulness of an analytical result in each case include the person's hematocrit level and whether the person was given IV fluids (lactate ringers) prior to the taking of the sample. Hematocrit is one of the levels commonly measured as part of a "routine" CBC (complete blood count). It measures the quantity of solids in a person's blood. An elevated hematocrit level would indicate a greater than normal amount of solids, which when removed from the whole blood would reduce the remaining quantity of plasma, and will frequently result in a higher than normal overstatement of the blood alcohol level relative to the whole blood level. Importantly, a normal hematocrit level does not indicate that a plasma analytical result is equivalent to a whole blood result by the hematocrit relationship. Rather, an elevated hematocrit level indicates a greater than normal overstatement. A sample from a petson who has been given lactate ringers (an IV fluid containing sodium lactate) and whose blood is subsequently analyzed by an enzymatic immunoassay (ElA) (which is the kind of analysis commonly performed in hospitals) may, because of the presence of the lactate, result in an erroneously high blood alcohol result. This result occurs because as the enzyme lactate dehydrogenase converts the lactate to pyruvate, there is a secondary reaction where NAD (nicotinamide adenine dinucleotide) converts to NADH (the reduced form of NAD with the addition of high energy hydrogen, biologically known as Coenzyme 1). The rate of production of NADH from NAD, however, is also the process by which the quantity of alcohol is measured in an ElA analysis. Thus, the additional NADH that results from the lactate reaction is not the

result of the alcohol -

be reported as alcohol in the test result. Future articles on blood testing will concern gas chromatography, a more detailed examination ofElA testing, and other factors and considerations in blood sampling, testing, and analysis.

SCHNEIDER & McKINNEY, P.C.

STANLEY G. SCHNEIDER

W. TROY

McKINNEY

THOMAS D. MORAN

Are Pleased to Announce

KEVIN D. FINE

Has Joined the Firm as an Associate

Kevin Fine, born in Midland, Texas, March 15, 1967; admitted to bar 1994; also admitted to practice before the U.S. Court of Appeals, Fifth Circuit; U.S. District Courts for the Northern, Southern and Eastern Districts of Texas. Preparatory Eductaion, Southeastern Louisiana University (B.A. 1990); Legal Education, Texas Tech University School of Law O.s. 1994), American Jurisprudence Award. Member: National Association of Criminal Defense Lawyers; Texas Criminal Defense Lawyers Association (Death Penalty Committee); Harris County Criminal Lawyers Association (Board of Directors); State Bar of Texas (Criminal Law Section).

even though it will

(Board of Directors); State Bar of Texas (Criminal Law Section). even though it will 10 •

10 • THE DEFENDER

FalI 2001

APPRENDI IN TEXAS

Does it kill the Texas murder statutes?

BY WINSTON E. COCHRAN, JR.

In the last issue, Mark Bennett discussed

U.S.

the use of Apprendi v. New jersey , _

_ , 120 S.Ct. 2348, _ L.Ed.2d _ (2000),

in federal cases. While no Texas state a ppellate courts have yet applied Apprendi, the decision also could be of great use in Texas courts on at least three issues : (I) the mitigation issue in TEX. CODE CRIM . PROC. art. 37 .07 1(2)(e)(1); (2) the "sudden passion" issue in TEX. PENAl CODE § 19.02(d); and (3 ) the "safe release" issue in TEX . PENAl CODE §20.04. These are issues on which we all should be raising new challenges, based on Apprendi, at every opportuniry. More oars in the water definitely will help .

A. What the Supreme Court Did in Apprendi

In Apprendi, the Supreme Court reviewed a New Jersey state prosecution where a judge had increased the maximum punishment for possession of a firearm under a New Jersey statute which allowed an increased punishment if a defendant "acted with a

purpose ro intimidate an individual or group

" The Court

framed the question as follows: " Whether the Due Process Clause of the Fourteenth Amendment requires that a factual determina tion authorizing an inc rease in the maximum prison sentence for an offense from 10 ro 20 years be made by a jury on the basis of proof beyond a reasonable doubt. " 120 S.Ct. at 235 Apprendi drew upon an earlier decision in

jones v. United States, 526 U.S. 227, 119

S.Cr. 12 15 , 14 3 L.Ed.2d 311 (1999), although jones was an exercise in federal statutory interpretation. Due process became part of the backdrop for decision in jones because of a principle of statutory construction: Given competing staturory interpretations, courts should prefer the interpretation that avoids constitutional problems. Apprendi focused on a footnote in jones stating that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven

of individuals because of race

beyond a reasonable doubt. " Apprendi, 120 S.Cr. at 2355, citingjones, 526 U .S. at 243,

n. 6,119 S.Ct. at 1215, n . 6 . Whilejoneswas a federal prosecution, and therefore was concerned with Fifth Amendment due process, Apprendi tOok the next step of applying the rule from the jones footnote to Fourteenth Amendment due process, which applies in state prosecutions. Apprendi stressed th at it was dealing with "constitutional protections of surpassing importance." 120 S.Cr. at 2348. After a lengthy histOrical discussion , Apprendi stated:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception , we endorse the statement of the rule set forth in the concurring opinions in Uones]: "[Ilt is unconstitutional for a legislature to remove from the jury the assessment offacts that increase the prescribed range of penalties to which a criminal defendant is exposed ." It is equally clear that such facts must be established beyond a reasonable doubt. 526 U .S. at 252-253, 119 S.Cr. 1215 (opinion of Stevens, J .); see also id at 253, 119 S.Ct. 1215 (opinion of Scalia,

J.).

120 S.Cr. at 2363. Thus Apprendi created three requirements: inclusion in an

indictment of the punishment-enhancing factOr, submission of the factor to a jury, and the allocation of proof beyond a reasonable doubt to the prosecution . Arguably, the first requirement was not necessary to the decision in Apprendi, but it is in the text of the oplOlon. Four dissenters fretted that Apprendi was effectively overruling Walton v. Arizona, 497

U.S. 639 ,

(I990), concerning factors used to support the death penalty. See Apprendi, 120 S.Ct. at 2387-2388 (O'Connor, J., dissenting) . Justice Thomas' concurring opinion responded that the continuing viability of Walton " is a question for another day." Apprendi, 120 S.Ct at 2380 (Thomas, ]., concurring) .That "other day," when the thin ice supporting Walton finally melts away, may be a day on which the Texas capital murder statute is before the Court. The dissenters in Apprendi also noted the tension berween

110 S.Ct. 3047,111 L.Ed.2d 511

Apprendi and Patterson v. New York,

U.S. 197,97 S.Ct. 23 19 , 53 L.Ed.2d

(1977). The Apprendi majority really only returned to a common-sense reading of Mullaney v. Wilbur, 4 21 U .S. 684, 95 S .Ct. 1881, 44 L.Ed .2d 508 (1975), which Patterson had attempted to limit. In short, Walton and Patterson survive simply because

the facts of Apprendi did not require either of them to be overruled in Apprendi itself.

4 32

281

B. Application to the Texas Mitigation Issue

The first place where Apprendi should be applied in Texas law is TEX . CODE CRIM. PROC. art. 37.071 (2)(e)(I). Under that statute, a jury is asked to decide:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background , and the personal moral culpability of the defendant, there is a sufficient mitigating circum stance or circumstances to warrant that a sentence of life imprisonment rather than a death

sentence be imposed . If ten or more jurors answer in the affirmative , life imprisonment is imposed. TEX. CODE CRIM . PROC. art. 37 .071 (2)(f)(2). If the jurors stalemate and cannot agree , life imprisonment is imposed. TEX . CODE CRIM. PROC. art .

37.071 (2)(g). Only if all rwelve jurors answer

in the negative may the death penalty be imposed. Article 37 .071 (2)(0(2). Thus, subsection (2)(e)(I) plainly fits the mold of an issue on which a factual determination raises the maximum punishment that is available. The factual issue is a comparative one, but that does not alter its factual character.

The Court of Criminal Appeals has held that there is no burden of proof with respect to the mitigation issue, at least on the face of the statute. Lawton v. State , 913 S.W.2d 542, 557 (Tex. Crim. App. 1995). In Lawton the Court recognized that "the burden is implicitly placed upon appellant to produce and persuade the jury that circumstances exist that mitigate against the imposition of death

in his case ." Id. The

that it was "unaware of any constitutional

requirement that the burden of proof

Court went on to state

continued on page 12 .

APPRENDI (CONTINUED)

continuedfrom page 11

regarding mitigating evidence be placed on either party. and ro the extent that the burden is on appellant. w e note that it is not unconstitutional ro so place the burden." The authority cited for that conclusion was Walton

v. Arizona! If Apprendi trumps Walton . then

it follows that lAwton and its progeny should

fall as well. The Courr of Criminal Appeals has not yet addressed the effect of Apprendi on the mitigation issue. At least two Housron

lawyers are raising the issue on direct appeal

in capiral murder cases tried beforeApprendi

was decided. which is permissible with respect ro charge error even without a trial

objecrion.Almanza v. State. 686 S .W2d 15 7

(Tex. Crim. App. 1984). Other Housron anorneys raised Apprendi prior ro erial in a recent capital murder case. In the wake of Apprendi. counsel in a death-penalty case should not only be asking for a jury instruction based on Apprendi. but should also be asking ro question potenrial jurors on the marrer as well. Apprendi should be considered pan of the "law applicable ro the case upon which the defense is enrirled ro rely" under TEX. CODE CRIM. PROC. an.

35.16(e)(2). This is especially handy now that the Coun of Criminal Appeals has resrored

a meaningful harm review for the denial of

defens e challenges for cause . See Johnson v. State. 43 S.W 3d I . (Tex. Crim. App. 2001) . What about post-conviction writ applications in capital murder cases? Apprendi seems ro fit the "new rule" category under Teague v. lAne. 489 U.S. 288. 109 S.Cr. 1060. 103 L.Ed.2d 334 (1989). but it

is possible that it could fit within the Teague

exception for "bedrock procedural" principles. Teague. 489 U.S. at 311.109 S.Ct. at 1076. The limitation in 28 U.s.c. §2254 poses a similar problem. On the other hand. an issue which faces a "new rule" problem on the federal side is also the kind

of issue most likely ro be accepted in a second application ro the Courr of Criminal Appeals under TEX. CODE CRIM. PROC. an.

11.071.

C. The Sitting Duc:k Section 19.02(d)

Apprendi also alters the landscape for the defense of "plain vanilla" murder. After

Apprendi. a statute that explicirly imposes a burden of proof on the defense as ro a factual marrer that determines the maximum punishmenr available would have ro be unconstirutional. Texas has such a sutute in TEX. PENAL CODE §19.02(d):

"At the punishment stage of a trial. the defendanr may raise the issue as ro whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendanr proves the issue in the affirmative by a preponderance of the evidence. the offense is a felony of the second degree." The way Section 19.02(d) is worded. it appears ro refer ro a reduction of the maximum rather than an increase. but that semanric distinction will not save the starute. Whether the finding of some fact reduces

th e maximum punishment from life ro

twenty years. or whether the failure ro find that fact increases the maximum punishmenr from twenty years to life. the difference in terms of years is the same. Which maximum penalty applies ultimately depends on whether the answer is "yes" or "no" to a specific facrual question. Thus. secrion 19.02(d) is unconstitutional in light of Apprendi. for (WO reasons. First. Apprendi requires a jury finding with respect ro a fact that leads ro a higher maximum. Yet. in Texas. the sudden passion adequate cause factual issue probably will not be submirred ro the jury. and hence the jury will not consider it. unless a defendanr makes an effon ro raise the issue. Thi s violates the "jury trial" clause of the Sixth Amendmenr. applicable through the Fourteenth Amendmenr. Second. Apprendi requires that the prosecution carry the burden of proof beyond a reasonable doubr. This statute does

not permit a jury finding that will cap the maximum at twenty ye a rs unless "the defendanr proves the issue in the affirmative by a preponderance of the evidence. " The statu te's allocation of the burden of proof is

a due process violation. A possible third issue. as previously suggested. is the indictmenr itself. There is language in Apprendi. though not a holding. that might suppOrt an argumenr that a murder indictm ent now needs ro negate either sudden passion or adequate cause. or

both. Since an indictmenr is still valid for jurisdictional purposes even if it omits an element. the main function of a motion ro quash would be notice. In most murder cases. formal notice that the State will seek more than twenty years probably does not tell counsel anyrhing new. A pretrial motion should be filed. but it should arrack the statute under Apprendi rather than merely asking that the indictmenr include negation of sudden passion and adequate cause. Several assaults on Section 19.02(d). using Apprendi. have been made in Harris County courrs by various lawyers. and the starute has been arracked in a Galvesron County murder appeal, but no judge has yet relied on Apprendi and found Section 19 .02(d) uncon s titutional as wrirren. Nevenheless . every arrorney wi th a mu rder case should be filing an Apprendi motion. Sooner or later. someone will have the right set of facts ro make the rough decision palatable. and a rising tide could lift all the boats .

D. "Safe Release"

Secrion (d) of TEX. PENAL CODE 20.04. the aggravated kidnapping statute. provides:

"At the punishment stage of a trial. the defendanr may raise the issue as ro whether

he volunrarily released the victim in a safe place. If the defendanr proves the issue in the affirmative by a preponderance of rhe evid ence. the offense is a felony of the second degree. " This provision often is called the "safe

release " issue for short. as

State. 91 1 S.W.2d 1 1

in Buchanan v.

(Tex. Crim. App.

1995).

In Buchanan and in Williams v. State. 851

S.W.2d 282 (Tex . Crim. App. 1993). the Court of Criminal Appeals held that subsection (d) actually created a shifting burden. similar ro the situation with regard ro defenses:

the

accused has the threshold burden of production as to whether he voluntarily released the complainanr alive and in a safe

place. i.e . if evidence from any source does

raise

mer. Thereafter. the burden of persuasion shifts to the State. which must convince the

" In Williams

we held that

the issu e the burden of production is

continued on page 14

12 • THE DEFENDER

Fall 2001

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APPRENDI (CONTINUED)

continuedftom page 12

factfinder that the place where the accused left the complainant was not safe; and the factfinder must find the place unsafe to a level of confidence beyond a reaso nable doubt for the felony punishment level to be for a first degree felon y." Buchanan, supra at 13-14 . That's good, but not good enough after Apprendi. The State now has the burden of ptoofbeyond a

reasonable doubt on the "safe release" issue even if the defendant produces no evidence on the issue.

E. Other possibilities

There could be many additional uses of Apprendi in other contexts. One interesting que stio n is whether an increase in a minimum punishment, such as the "o pen container" enhancement for OWl. is

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Judicial Happenings
Judicial Happenings

Congratulations

To Judge Mark Atkinson, who has been elected Chair of the Judicial Section of the State Bar of Texas. Approximately 1,500 active and retired judges comprise the State Bar's Judicial Section. Atkinson was also elected to head the Texas Center for the Judiciary, the organization in charge of the state's judicial education. Judge Atkinson has served as the judge of Harris County Criminal Court at Law No. 13 since January 1, 1987. He graduated from South Texas College of Law and earned his undergraduate degree from the University ofTexas at Austin.

governed by Apprendi. Logically, it s hould be. The only thing Apprendi explicitly excluded from its rule was the fact of a prior conviction. Keep in mind that the Harris County "charge bank" and rhe various manuals on jury charges were developed before Apprendi. In all cases, counsel should keep an eye our for possible charge error in

lighr of Apprendi.

yo u will nore when you read

Apprendi thar Justice Scalia and Justice Thomas not only were part of the majority, but also wrote strong concurring opinions. It is a rare pleasure for defense counsel to be able to say that Justice Scalia and Justice Thomas both say rhe defense is right and the prosecu tor is wrong.

Finally,

Presidenes Message

continuedftom page 2

eac h month. Participants receiv e 1. 5 hours of free ClE credit. In addition, Troy, Cynthia, and T put together the Second Annu al Coping with the Pracrice of law Seminar, which is scheduled for November 16 01 , . This symposium began last year in

response to the tragic loss of our friend

colleague, Donald Davis. Once again, this program will be free and offers atre ndees 3.75

hours ofClE credit. Special rhanks to the officers and the board of directors for their suppOrt and the valuable contributions they make at board meN; ngs, Some deserving special recognition for their daily effom on behalf of HCClA include Emily Munoz, Paul Sf. John, Mark Benne[[, and Grant Scheiner. My hope is that the work burden of rhis organization, currently shouldered by a relatively small group of members, will be more evenly shared by other members coming forward and volunteering their time. This would greatly aid the association in its goal of increasing our presence and imp acr in the Harris Co unty C riminal Justice Sysrem . Co ntact any member to become more involved , HCClA should always strive to make a

po sitive

environment and in rhe community a t large,

and

difference in the co urthouse

I look forward to seei ng everyone at the

an nual holiday party in December. If you a ttended last year, yo u know rha( (his is a big event that you should not miss!

14· THE DEFENDER

Fall 2001

SUCCEEDING ON PROBATION

(And proving it!)

BY CYNTHIA HENLEY

How many times have your clients sworn to you rhar rhe probation departmenr's records are wrong - rhar they did not fail to appear for particular appoinrments? Have they provided copies of receiprs showing rhar rhey paid money on rhe day that they are alleged

to have failed to appear)

the client 's officer was out sick and rhe substitute meant to get the file Out later to note the appearance and insert the paperwork but it just never happened and the paperwork became lost.) Ever have a client tell you rhey had done more community service hours rhan had been credited? Did he bring his mom who drove him to the location and picked him up every time and did she tell show you where she had been docked pay from work for raking

off time to take J r. to do the community service one a month ? We know that many errors occur in record keeping. You can help your client avoid a revocarion or adjudication with a few tips on probation record keeping. I always advise clients who receive probation to immediarely obtain a spiral norebook, which is dedicated strictly to probarion maners , and rake rhe following sreps:

1. Write the name , address, and telephone number of your probation officer in the

norebook. If the officer changes, make a note of it.

2. Make a copy of all documents wh ich relate

to probation, including the sheets of rerms and conditions and any amendments; referral sheets to community service, rrearment, etc.; money orders given to the department for payments of fees and restitution; receiprs from the department for payments made; paycheck stubs (especially if paying high restitution amounts), erc. The originals should be stapled into the notebook on the date of receipt. The

copies should be kept in a separate file in rhe event the notebook is lost.

3. Every time you meer with anyone for any

reason related to your probarion, wrire down

who (name); what (probarion meeting,

communiry service work done; trearment

and time), where

(address), why (if there is no documentarion , wrire down who told you to be ar rhis place) , and how, if rhere is a witness such as a spouse or parent who went with you or provided

(Maybe it was a day

provider, etc. ), when (dare

rransportarion .

4. All the information thar is included in the notebook must be stapled or written in on the day that it occurs. The srapled items should not be removed and re-srapled . The notebook musr be a spiral , not a binder or folder, to enable you to demonstrate time sequence. You will nor be able to "add" information in the future. If you report to community service and wtite in detailed information on day one, rhen write relevant information about day two, and continue this practice, when an issue arises in month fifteen or year eighr about the community service that was not credited for day one, the notebook will serve as persuasive "evidence" substantiating your assertion that you participated in communit), service work that day. The notebook may also be admissible as a hearsay exception under Rule 803 (5), as a recorded recollection, or under Rule 803 (6), as a record of regularly conducted activity. Regardless of irs admissibility, it will certainly refresh a client's memory abou t exactly what s/he did. Unrelated to rhe notebook, I tell my clients that there is no "sick me" or sick child excuse. If the probationer is sick but not in the hospital, take a bag to barf in bur report as scheduled. If the probationer's child is sick and requires care, find someone ro watch the child but report as scheduled. Technically, the probation officers have no authority to permit re- scheduling and if they forget to record that they gave permission for re-scheduling and an issue arises in the future, which causes them to review the records, guess what gets reported to rhe court as a failure to appear. JUSt report :

and if they forget the barf bag, borrow the officer's trash can. Some clients tell me that probation officers tell them th at it is okay to drink a beer or two bur no gerring drunk or doing drugs . Wrong. It is not okay to drink on the majority, if not all, of the probations. Is a beer worth going to prison ? Finally, for some clients the financial inability to pay restirurion is an issue ftom rhe beginning of the probarion. Probationers who anticipate difficulty in paying their probation obligations should ke ep a monthly balance sheer recording income and expenditures. Expenses such as dry cleaning , smaller car maintenance or repairs, children's school lunches, clothing, etc., are often forgorren months in the furure, especially if they are paid

in cash. If the probationer is making less than full payments on restitution and/or fees, he may be required to explain why in the future . The bottom line is that probationers need to be aware of the need to keep independent records and not rely on the record keeping of the probation department. Further, most of the courts are at an all-time high for "no tolerance" of violations and the client needs ro decide from day one where his/her prioriries are. The key to success is to do what they are told, when they are told, how they are told , and to record thar th ey have done it. A probation officer can be a probationer's best friend or worst enemy. If a probationer makes the probation officer's job easy, the probation officer is likely to try and make life easy for the probationer. On the other hand , if a probationer makes a probation officer's job difficulr, the prob arion officer also has the ability to make th e probarioner's life hell. The choice of how a probationer is created by his probation officer is frequently made by rhe choices the probationer makes about how seriously he will rake his probation obi igations and commirments.

MARKYANIS

Former briefing attorney with the 14th Court of Appeals

Announces the opening of his law practice focusing on criminal appeals

1628 SuI Ross Houston, Texas 77006

ph: (713) 526-6282 fax: (281) 966-1626

e-mail: aturny@houston.rr.com

HCCLAANNUAL MEETING

P & JerI)' a tchen, f the year. aOl ·d Mitch AAttorney 0 v1 Da
P
& JerI)'
a
tchen, f the year.
aOl
·d Mitch
AAttorney 0
v1
Da
HCCl
Mit chaOl ,
·d
Da v1
Wayne Hill, HCClA President & Sen t
flf
'
Rod ney
IS, Sen. Ellis,
Torch of Liberty A a or
d
war.
.
Vice president & Mike fnax,
CynthIa Henley,
C
nty supervisor.
Harris County
.
$500 HCCLA scholarshIp.
ommu
Richard
& Troy MCKinney.
Thanks to Richard for 1999-2000 Presidency.

ANNUAL MEETING (CONTINUED)

. Gerry Goldstein, Randall Ka!,m en , er Goldstein, 2000 & Grant Schemer. G ry
.
Gerry Goldstein,
Randall Ka!,m en , er
Goldstein, 2000
& Grant Schemer. G
ry
k
Keynote Spea er.
.dent-Elect
M Kinney, pre sl
McKinney,
W. TroY
F~ankoff.W. ~royMember.

& Richard

0 outstandlrlg

1999-200

HOW TO SEAL JUVENILE RECORDS

BY EMILY MUNOl

Under certain circum~tances, a juvenile

respondent whose case has been disposed of

is eligible to have his files and records sealed

pursuant to Tex. Fam. Code, Section 58.003. The applicable statute reads in pertinent

order the sealing of records concerning a person adjudi c ated as having engaged in delinquent conduct that violated a penal law of the grade of felony only if:

(1) the person is 21 years of age or older;

(2) the person was not transferred by a

juvenile coun under Section 54.02 to a

2. Notice: Send out the file-stamped

copies of your application along with the order setting the hearing date to every agency you have listed on your application . These must be sent certified mail , return receipt requested, to permit you to prove service at the hearing.

part:

criminal court for prosecution;

3.

Proof of Service: Keep the returned

" (a) Except as

provided by Subsections (b)

(3)

the records have not been used as

and (c), on the application of a person who has been found to· have engaged in deJinquen t conduct or conduct indicating a need for supervision, or a person taken into

evidence in the punishment phase of a criminal proceeding under Section 3(a), Article 37.07, Code of Criminal Procedure;

and

"green cards" in a safe place in your file. These cards will be turned into the court on

the hearing date and become part of the court'S file. Make sure and keep a copy for your file. 4. At the hearing you must:

custody to determine whether the person engaged in delinquent conduct or conduct indicating a need for supervision, on the

(4) the person has not been convicted of a penal law of the grade of felony after becoming age 17.

Bring all the green cards and provide them as proof of service .

a.

juvenile court's own motion or on receipt of

a certification from the Department of

Public Safety of the State of Texas that the records of a person are eligible for sealing under this section , the court shall order the

sealing of the records in the case if the court finds that:

(1) two years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and

(2) since the time specified in Subdivision

(1), the person has not been convicted of a

felon y or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a

need for supervision and no proceeding is pending seeking conviction or adjudication.

(b) A COurt may not order the sealing of

the records of a person who has received a

determ inate sen tenc e for engagi ng in

delinquent conduct that violated a penal law listed in Section 53 .045 or engaging in habitual felony conduct as described by Section 51.131.

(c) Subject to Subsection (b), a court may

(d) The court may grant the

relief

authorized in Subsection (a) at any time after final discharge of the person or after the last official action in the case if there was no adjudication. If the child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing the child is found to be not guilty of each offense alleged, the court shall immediately order the sealing of alJ files and records relating to the

case."

Sealing the records

The following a re my suggestions of how to seal a juvenile's records. I have successfully used this procedure in the 313th and 314th Juvenile Courts:

application in

I . Filing: File your original

the courtroom with the court clerk. There is

no filing fee. Stamp as many copies as there

are parties

Obtain a hearing date from the court coordinator or the judge. The date must be sufficiently in the future to permit you to send out notice and obtain confirmation of the parties' receipt of the notice.

and a few extras "just in case. "

Forensic Science Associates

CriminaUCivil ConsultinG • Crime Scene Reconstruction

• Firearmsffool Mark Exams

Complete Laboratory Analysis • Lab Accreditation Consulting· Foren s ic Training Classe s

FSA-----

Edward E. Hueske

541 Halifax Lane Coppell, Texas 75019

Phone: (972) 304-8668 • Fax : (972) 393-3612

www.forensic-xprt.com

b. Bring a proposed order sealing records

so that the judge may sign it.

c. Have the judge sign the order. The " hearing" is very informal. It consists of conferring with the prosecutor to make sure they are in agreement. You and the prosecutor then approach the bench and inform the judge that all parries were notified. You then hand the judge your proposed order for signature.

d. Obtain enough certified copies of the

order to send one to each agency you made a party to the application. 5. After the hearing: Send a certified copy of the order to each agency. These must also be sent certified mail, return receipt requested. This order directs those agencies to send the juvenile's records directly to the

court.

6. In a couple of weeks: You should receive

letters from each involved agency indicating

their compliance with the Court's order. You should call the court to ensure that the agencies are complying. If n·ot, go down to court with the green cards to show that the non-complying agency re ceived notice and that they are failing to comply.

7. If you have any questions, please feel

free to call Emily Munoz at 713-227 -2244.

Good luck!!!

Below is a sample Application for Sealing Records. 1

I Special thanks to Wendell Odom and Molly Odom for providing me with a sample

Application for Sealing ofRecords. I use their

sample application as a template each time I attempt to seal a juvenile's files and records.

18· THE DEFENDER

Fall 2001

JUVENILE RECORDS (CONTINUED)

\uslln, T(:'I:\JS 787 72 Ci\lISr. J. Pur.;(IOMIIIO TO: li:lS FamjJ~ Code § 58 . 00J(J).
\uslln,
T(:'I:\JS 787 72
Ci\lISr.
J.
Pur.;(IOMIIIO TO: li:lS FamjJ~ Code § 58 . 00J(J). Pt:llla)~'r i s ~ rul,kxllu M\ <: al lljl~) anJ
IN THF. MAITER or
IN Tin: OI STRK T CO URT
record s [;onc c: rninB lhe I.::l~ .~aled hecause Since Aflril 5 . l OCli
P~·tilioncr h.l~ not;
Ca l
OttO c on\ ' lcled of a fel on), o r :t misdeme:mor In\'ol" ing room! lurp il ude ;
HARRIS COUNTY. TlXAS
(b)
B\'Cn found 10 havc cnlYtScd in delinquent COf'llJUCI orcooduclindic31MlQ ill MCd
fur s.upt"n;islon: or
J",,''E nrVF.N1I.£
JI4 1H J lIOiClAL OlSTRKT
(e)
(h.-conH:
Inc sub,(.~, of a
pendmg
proce.:.-ding
~"'t''''mg (,'lIwiction
or
adJudicalion.
A~~LlCATION rOR SlALIN li RECORDS
WHE REPOR E. Ptillion
::r
pra} s the coun gr.lnllhl ) a.pplio.::alloo and :
TO TI-tE I-IONORABI.E .JlIOCr. or SAIO COURT:
1.
Sellni s m~lIcr fOJ hO::8nnl!
2
JA~·t-:JI IVl:]IiI ILE.
l'l·Illil)~r. PUrsUJJ11 10 f l'XilS ~3nllly Code 9 58.UO.\ applie s for en o rdrr
Give rt!ilS(Inable nolice o f the hearin g 10 Petitioner <.m J 10 each a lJ~n<.'~ and (lrliciaJ
named In Pil.r.Ig,raph II Ofl hi s nppiLcalion pursunnllo T':-';:I!t Fam j1y C ock ~ .5 8.0CIJ.
:o<alin~ aJllik '. 41~J r~Lof"(h in th
-
:
~
:
d~'
:ribl.J
bdov, '
J .
Atkr the h~llrinb on thiS mailer . order ':ll h utTl~ial amI aSI,.'1'k:~ lna t PQ$"o("~ n.:,,:urd!-
01 files C4l:lCC'tnlng Inc case 10:
:
I .
Peillioner cllrrenl l ) re ~ idi"' ;iT 1000 Anys lre":I. HUll ~lon , In l-1i1rrl~ (ounl~. Tcxa
O n F e hru ary '- ::'0 :)0 :<;Ot
<\:<; [liken
inlO tu:-; ,od~ and charged wilh PO "'~"'S lon of marijllJntL
nn
(al
Smd 10 Ihis co urt 0.11 file s and ret"oro s in ttlt cas e:
Alln l 5, ~1l(J().lhli ("llUrl (lPP'0~l'd
,lfId siiln\!d:
(b)
Dd e le .111 index rt:fl'n.:nc c::; 10 Lhc ~:1lt
""
fi lC$ and Iccords: anJ
~1JCl', . ,~:;flllly n'm rklrtl l u l d"IT nl
'i I::
ch
l'Ondil;OIl o
O('fcrrt'd ~roscculion Ag.rcctne nl.
;J~It'~'~nl while u1llkr s UJX r.i
If~
P('lllioner
slo n of h er
(e)
Re p!) o n in4uITY I hm no ro.:cord e.'(i SlS
·lln
r es p.!'I.· llu r e lll lo nCI
propall{)n LourJIO ,lIor
rhl're ha.-.; he!!'n IlI.l adjl ldietlion hCOlfinf
On April 5. 20(J),lhi~
11onorable
4.
Dir~'cllhc clerk of thl' t oun 10 send a ecndicd copy of the: otca!lO\! Md( 1 Ip each
CO liri Hpprm cd th~ Non-Sut!
ai!o.:l1cy o( ntTleiul rn.IlT'II in Ihcouler . pursuanllo
,J
~cclion 58.00 .' 0 1 tho: l'amil~ [, ude.
P l'liljoa ~ r has rea.wn 10 tJclkw t hai The f o l klwing oflicillis a nd 3J, cnc i c',i hold Ii I e:"
:md rc,;,")rds R'l alin!: 10 lhc a bt}\c ·d.!ii,::ribotd illoJcnl'
~.
I .
1!;uTI:o.( ·ll
lJn t) D I~.trI':1 <\ lI mllq - )O fli":l:
Rcspo;:clfllllr ~u bmillcd.
SC HN EID ER & Md.:l\'N E'l. P C
JU\l'nllc DI\'I~"n
120) Fron~11n
Huuston. ) l'U, 77(}o2
rN
TIlE: MA TIER or
IN THE DISTRJ CT COURT
Harm ('c lIn l )
l)i
lml
cr"rl
11cll rr .lnliln
j-klu,slon. 1 ex-as 7700~
HARRJ!\ ( ·OllNT\'. TEX.AS
.I.
!;)fT~ ("o ullty ramll ) jtH'en iit' Oi s lri
(I~r~ lli lhe CU lln
r
:
1 ('o url
N l "). J I ")
.114TH Jl·mCI AL. DISTRICT
A,'FIJ)AVIT OF CHILO
Han i
r (J um ~ JU"<:lIIk P r"h,l lil'n [h:plIl mcnl
BEfOR.E ME . lhc- undersigneJ aUlhorl1 ~. o n Ih l~ J3~ p.:r~onall~
appeared
JANE
Uc(crrc.J Pro';Cculion Pru~'J'a)ll
JU VENILE, who afler Ixin~ duly .,.\.tto m slllIed:
35 40 \V e$! [)" lIa s
I
am rI le cbild ",no is
,he SUtlil'Cl of the' nbow -nLlm~red ca use. loo n.'
rl-ad lhe Appll~lllion
Hnus[(In.lcx /l.s
7701 9
for s.,·nl ing Rc
:ords
and $\>IcaT 1J\a' :\U alJegwions of faci contained !hertin a(~ Ink' Ill\d
:one!.:!.
lIouslon Po"~' JA:panm~'lli
l
~WT I
I~
I
.i
lllliJ 'lI\OIl. I X 77(10:!
Affiant
b.
l liUTis County SherHl s O llicl'
I "lUI Franklin
SU BSCRIBED /IoND SWORN TO B(;FO RE Yt E Olll nt _
d3 )
o t". 200 1
7.
lkp;lTllnl'n l (,I' Puhli(; Sokry
1 (:1(
'
P (J. 6 0:\ -I()~7
NO lal!' P ub h C'
S':lh;~ of To.:.-.;as
rA I ISF:NO, _
_
7.
Te"as Departrm;111 of Public S<lfe~'
P.O. Oox '087
IN TIlE \1A ITER or
IN THE DIHRICT COURT
Austin. T~Xil!i 78772
HARRJS CO, li'lTY. TEXAS
Signed Ihis ,h.;, _
da )" of
, 2001.
J AI\,£ .n.f\'ENll,.f
J14 TII JUDICIAL ()1STAI<T
ORDER SEALIN G FILES AND RECORDS
JUDGE PRE SI DI NG
On 11 m II'K: da y CI UTl e 10 Pc heard P Cl ilioT)Cro.s I\ppt ica lioll for Scollng Filc .~ and Records
It appears 10 lh
:
court lhal
Ih i :) a pf')j ca li ~")11 s h o uld be
gronl cd .
11
IS I"HE REFORE ORDERED ,hOI '
Th e flit':) il nd ft'(;urJ s In Ih l'
:asc::
of
JA NE JlJVEN ILE. l'llnC1:mint! (hI.' m Jl l a
fo r
\\h ith ~hC" \>ta5 r la ced [lllh\! l:>t:f
:rrcrl
PrO ~CUll(ln Prog,r<lln on Apn l ~. :!()Ou . and
hit-h
a.,. n(ln- SUi ll"(l o n April -'. "20(1 1. s ha ll be <;cakd
CAUSE
_
hll'h a ;;clI":~ o r ufli~ia l li"'I",J bd ow .-.; lIall :o.l· nJ It) I hi, nlur t ,I II lik:"i and r~'o,,;ord~
nr Jcrcd '>(':lk (l
IN THE M"TIEROr
IN THE DISTRICT COl'RT
E,a
:h
il!;.(; tK:)' or otTlcia l h Sh:d tll: lo
:,hil ll ddt'll: frolll ll" n
'O
")
m
a ll i ude)(
rcfclcnc~:o. 1(1
Ilk' file:. anJ recon:t!ii ordereJ
sea led
HARRIS COUNTY, TEXAS
4 .
L id , a~l'llc,' or Llnicialll~ld be l o
s hall l <ply upon i nquiry lhal 110 rc.:ord ~:xis lS
jlh rc s pl""'Ctl o Petiliorl i:·r.
JANEJ,tvENllE
s.
Tll 1: cle lk nfthc court Sh illl 'iicnd [l et:rtifi
cd
co r~ (If thi s order 10
lho: following:
I.
Harm Co unl y Oi s tri cl t\llorncy
os
O lli ce
ORDERSETfING H["RlNG DATE
JU\l'nik D,
ision
1"20) rrallkllfl
lJolI:<;lon. TC'(!I$; 770112
IT IS ORD EREU that the ht"urin @on the Appli(, Rlion fOI SC31in~ Record s is here-hy SoeT ror
_n. m !p .m, on til t' _
day of
_
_
. 200 1. in the courtroo m of lh c 31-1 110 DI :o.IO
:1
('our! .
2.
lI
a rri ~ Coun t y 0ls1ri('1
CierI-.
l:WI franldil1
Hou~lun. Tc,,-as 170m
Jud~e Pl\";Sidin(!,
Han is C(llinly Famil \' Juvenile
Cle rk (If rllc Court
DISlricl Court No. J I";
1115 C,\II~re~s
HouSlOn. fn: ls 77002
4.
Ila ni,; Cou nr y Juvenile Prooo!i
on Dl,p
H1menr
Ddi.'rred pT('l~c",:ulion Program
3540
\\ ' l' :. 1 (}J ll a~
HousrOll.
T
:~a
."i 770 1 Q
5.
HOll~lnn Po lice Dcparrmcnl
J'.:!OO lra v is
Houslon. TX 77002
6.
H ;trn~ Clll tnl )' Shc ril" f" - s OIl'll: !:
1)0 1 Franklin
Hous to n. Tex as 77002

WINNING WARRIORS

Tribute to the Warrior of the Quarter, Danny Easterling

BY CYNTHIA IkNUY

Danny served as rhe H~CLA President in 1999-2000 and worked diligently in matters regarding the courthouse. He has continued to serve rhe organization and rhe defense bar with his efforts on committees and projects sponsored by HCCLA. Danny has also continued his hard work in rhe courtroom. He succeeded in·a-bench trial in the 315'b by ·providing enough SODDI (some other dude done it) information rhat Judge Kent Ellis found Danny's client not guilry of assault (bottle rocket to the face of the complainant.) Danny tried a OWl (combination drugs and alcohol) and Carrying A Licensed Handgun While Intoxicated in CCCL # 9. Client's doctor said client had natural nystagmus so Danny had Officer e. D. Allen (a ORE) give him the HGN in court. Luckily, he agreed with the good doc's conclusion. The jury acquitted on borh cases and Judge Wilkerson allowed the client to leave rhe courthouse wirh his gun. Recently in project court, Danny defended a juvenile certified as an adult in a car jacking where his client was the drivet while the car's owner was raped in the back seat by the co- defendant. Danny got a not guilry on the aggravated sexual assault and 10 years probation on the aggravated robbery. In addition, Danny, with assistance from Casey Kiernan, represented a man charged wirh capital murder. The client and his cohort had intended to rob a drug dealer. However, they went to rhe wrong apartment and ended up killing an innocent person. Danny and Casey were able to garher heartbreaking evidence of rhe extreme physical and mental abuse their client had suffered at rhe hands of his parents. The jury rejected rhe State's cry for rhe dearh sentence and assessed a life sentence. Danny has also been successful in keeping felony cases from going forward . Client charged in the 262 Dd with possession of cocaine in rhe glove box of a car rhe client did nor own. In grand jury package, Danny provided an affidavit from the client and summary of rhe law on uaffirmative links." Result? No bill! And in rhe 313'" his client was charged with aggravated sexual assault of a child. After going through 3 ADAs,

Danny was finally able to convince rhe 4'h to dismiss by pointing out the many inconsistencies and lack of medical evidence.

former president,

Danny Easterling, and congratulates him on his recent successes.

HCCLA is proud of our

other warriors have also ac:hieved suc:c:ess on behaH of their dients

Following five not guilry jury verdicts in a row mentioned in a previous Dock~t Call, David Milcham has continued his success wirh five more! - OWl in CCCL # 9, assault in CCCL # 8, deadly conduct in CCCL # 15, and two co-defendants in burglary of a coin operated machine in CCCL # I. His successes and hard work on behalfofcit.izens accused prompted HCCLA to honor him as their Anorney of rhe Year. Congratulations David, and thank you for your hard work and dedication. David Cunningham won a motion to suppress evidence in the 174'h in front of Judge Jon Hughes in a drug case. David Kiana represented a man charged with assault on a public servant and arrempted sexual assault, same incident, where client attacked a jail guard at 61 Reisner after she got off work . Judge instructed on lesser Class A assault because guard was off work. Jury found guilry of assault but not guilry of anempted sexual assault. Randy McDonald and George Murphy prevailed in obtaining a life sentence where the State soughr dearh in the 337" District Coun. Michael Turner has been kicking butt in Chambers Counry. He got a 218 pound marijuana case dismissed based on a bad "traffic" stop, and in a second Chambers Counry case. an 18 pound marijuana charge was dismissed as rhe jury was being seated. (Cops held dient for 40 minutes at scene of rhe traffic stop waiting for a drug dog. The State had already learned that Mike knew what he was doing!) Daina O'Kane put our the fire on an arson

guilty" verdict.

Daina also had a c1iem charged with failure to comply wirh sex offender registration laws. Client was originally offered 25 years TOe. (He was 15 years into 35-year sentences on

case in the 262 nd with a "nor

2 agg. sex assaults on children; paroled in 1999). On 2 nd trial date, client accepted sweerheart deal- 6 monrhs state jail (where he had 9 monrhs credit.) Mark Bennen gets to boast of one of rhe few appellate wins occurring these days. He tried (and obviously lost) a discharge of a firearm wirhin ory limirs case. He appealed (pro bono!) and won. And this time rhe COA did not hide a defense win in an unpublished opinion - read it at Garza v. State. # 01-00- 922-CR. Congratulations! J.e. Castillo's client walked away wirh a not guilry verdict in a jury trial in CCCL # 14 where rhe cI ient was charged wirh evading detention. J.e. raised doubt in rhe jurors' minds about the reasonable suspicion of rhe officer to chase the client on foot. J.J. Paul rried a case ro Judge Janice Law in which the State had charged a combi nation OWLS and a MRP based on the DWLS. Issue was "mistake oflaw," because the term of rhe suspension had expired. Judge Law found the client NG (but revoked the probation based on technicals.) He also got a big uNG" in CCCL # 14 on a OWl .17! In a county court in Ft. Bend. Troy McKinney taught an officer the proper way to administer field sobriery tests - judge agreed the cop did not understand the "how to's" before that date and kept out the video and testimony regarding the tests. Troy convinced the jury that the prosecutor's evidence was definitel.y lacking and they returned a not-guilty verdict. (Boy, you should have seen rhe video!). Troy and Gary Trichter also got a OWl not guilry in Waller Counry on a case that Troy had previously convinced rhe judge to gram rhe motion for new rrial after a jury had convicted - with another lawyer trying,rhe case. Judge Ned Richardson had a reasonable doubt in ruJing on a domestic violence assault case Kent Schaffer and I tried. Norm Silverman returned to rhe 337" to try another large dope case. His client was arrested with 18.5 kilos and the State generously offered 45 years pre-trial, and life+ by the rime of trial. While the jury did not whoUy buy the duress defense Norm asserted because rhey convicted, rhey rhought enough of it to give rhe client only a 20-year sentence! Norm also had a murder case in rhe I 76'h in which his client declined a 30-year offer. Case

20 • THE DEFENDER

Fall 2001

WINNING WARRIORS (CONTINUED)

became a crim. neg. hom. after a motion ro quash was granted and lerter ro grand jury resulted in a no-bill. Punishment assessed at 20 months SJE Dennis Smith tried a sexual assault of a child case for three days before the jury hung! John Perry won a case in the Supreme

Cou rr:

Burton had been given a federal life

sentence following his conviction in a drug

conspiracy. The Supremes vacated the sentence and remanded because the judge

and not the jury had decided rhe quantity

Stanley Schneider demonstrated that we aren't losing 'em all on appeal. The court ruled that the admission of extraneous offenses after the State's failure to give notice, along with the admission of back door hearsay warranted reversal, albeit in an unpublished opinion. This case was special as Stanley was representing Brad Crow, son of the late John Crow, without compensation. Thanks for your dedication, Stan. Troy McIGnney has been kicking burr in Fr. Bend. After hearing 45 minutes of evidence, a jury rook 3.5 hours to flild his client not guilty of OWl - after they sent out a question ofwhether Troy had the video suppressed l Ft Bend got the message and dismissed another, easier defense case weeks later. Cynthia Cline used information she discovered in her investigation for a juvenile charged with sexual assault of a 5-year-old to convince the State ro back off their demand for determinative sentencing, and ro offer a reduction ro assault with one year of probation. Poppy Northcutt convinced Judge Kroeker to gtant a motion to suppress on a possession of 16 grams. This was after Poppy had convinced the prosecuror to dismiss the companion aggravated assault case when her thorough search of the medical records showed that the officer reported that his injury resulted in a substantially different manner than that charged! Ricardo Rodriguez kept another client off of death row. Against Ricardo's advice, client rejected offer of life semence in a drive-by gang shooting that left 2 dead and II

wounded . Although the juty rejected the not guilty plea, Ricardo convinced them that the c1iem should not be executed despite the State's demand otherwise. Great job! Abby Keenan and Norm Silverman gOt a "not guilty" on a multi-kilo cocaine case in Judge David Hittner's courr. Abby and Norm had to really work on this one to get "up-ro- speed " for their c1iem as they were hired only days before the trial began (and were denied

a request for continuance) and the trial began the same day as the WTC tragedy. Michael Gillman victoriously defended his c1iem against a charge of aggravated assault by shooting the complainant, an acquaintance, in the leg. Belinda Chagnard earned a not guilty verdict after 6 days of trial in the 185 'h on an aggravated sexual assault of a child case. Finally, Bo Hopmann got the big NG on

a DWl in which an officer "mistakenly" told the jury that he was HGN certified (Bo helped him remember that he was not), and they brought in "the crew" (you know - 3 officers ro try to stack up the opinions and make a little $ - arresting, intoxilizer, and video). The foreperson was a member of MADD, and after hearing what she did, she was a little mad! Congratulations ro all rhese Winning

Wauiors!

If you have information about your win or a fellow warrior 's win that you would Eke

included in rhe next edition of The Defender,

please e-mail

meatcynthiahenlq@yahoo. co m

or call me at 713-228-8500. If you wish ro

nominate someone for recognition in th e

Tribute To Th e Warrior Of The Quarter,

contact me with details.

United States v. Bobby Joe Burton,

Jr~ M r.

is s ue. (ala Apprendi v. New Jersey)

M r.

Burton was re-sentenced ro the staturory maximum of30 years. John has the case back on appeal for a determination of whether the quantity must be decided by a jury when the sentence does not exceed the starurory max. Keep us posted I Scott Shearer gOt a motion for new trial granted in the 263'd on the basis of an involuntary plea, overrurning a 30-year aggravated sentence. In addition, SCOtt and Bill Howell gor a motion ro suppress granted in a child pornog(3phy case in Madison County. Jim Sullivan was court-appointed on a PCS case, which was dismissed juSt before voir dire began in the 232nJ. He also had a robbery by threat case reduced ro a Class A theft For 4/2/$1000 where the complainant was an undercover narcotics officer. The offer was made JUSt as voir dire was about to starr in the 351". Nancy Botts won a suppression hearing on a "consent to search" case involving 6.5 Ibs of marijuana in the 248'h. Jerald Crow tried 3 separate aggravated 35sault indictments in one trial in Coldspring, ·/cxas. The numbers did not add up and the

jury acquirred on all charges. Brian Wlce and Ned Barnett succeeded in a motion for new trial in Galvesron County on the issue of ineffective assistance

as a first

offender, client is gerring a second chance. Brian also chalked up another win , this time in Btazoria county. C lient, charged with aggravated sexual assault and indecency, was convicted of indecency. Btian files and wins a morion for new rrial, and cli e nt is back ro start, but this time the odds are berrer because

is back ro start, but this time the odds are berrer because THE DEFENDER· 21 of

THE DEFENDER· 21

of counsel. Instead of doing 10 years

of the lesser charge!

Fall 2001

BURNS BAIL BO

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Shaun, Carol, Shannon, Shelby, and Chris 713·224·0305 609 Houston Avenue • RoustOD, Texas 7 l THE

609 Houston Avenue • RoustOD, Texas 7

l
l

THE DEFENDER

1610 Richmond Ave. Houston, Texas 77006

ABIGA[L L. KEENAN

801 CONGRESS, STE. 200

HOUSTON, TEXAS

77002