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Criminal Lawyers Association

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November/ December 1999
Richatd Frankoff
Mark Bennett
Rosa A. Eliades
Lloyd Oliver
Ma.ry Acosta
Lott Brooks
Winswn Cochran
E. Ross Craft
Ron Hayes
David Jones
Ellis McCollough
Garland Mcinnis
David Mitcham
TyroneC. Moncriffe
Richard L. Moore
Rick Soliz
1971 - 1997
C. Anthony Frilioux
Stuart Kinard
George Luquette
Marvin O.Teague
Dick DeGuerin
W.B. House,Jr.
David R.Bires
Woody Densen
Will Gray
Edward A.Mallett
Carolyn Garcia
Jack B.Zimmerman
Robert Pelton
Candel ario El izondo
Allen C. Isbell
David Mitcham
Jim E.Lavine
Rick Brass
Mary E.(:onn
Kent A.Schaffer
Dan Cogdell
Jim Skelwn
George J. Parnham
Garl and D. Mcinni s
November/ December 1999
DOCKET CALL November/December1999
From thePresident . . . . . . .. . .. . . . . . . . ..2
HCCLA 11thAnnualGalveston Seminar.
RepresentingIndigentClients WhoPostBail....6
FedSquare ..............................8
MeettheJudges.......... .. . . . . . . 10
TheInvestigator's Corner .....
Top Ten Thingsto Knowina CapitalCase
Hearsay............ . . . . . . .... . 15
UpcomingCLE......... . . .. .. .. . . . .. . 15
Sheep inWOlves'Clothing 16
PointandCounterpoint .... . . .. . . . 17
Let'sHearFrom You!
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- - - - . - , ~ - ~ - ~ : . ~
. . , ~ - ~
From the President
The President's Opinion
The times they
are a changing.
By the time you
read th is the
candidates for the
District AttOrney
of Harris County
will be lining up to
declare for the
March 2000
Primary. John B.
Holmes has annou nced h is retirement and
no matter who wins the 2000 election, the
DA's office in Harris County will never be
the same.
Holmes has been the District Attorney
during my ent ire legal career that began in
1980 so I have no one else to compare him
to, but it wi ll be interesting to see who his
successor will be. Whether you liked his
views or opinions a lot of times did not
matter, because wha t you gOt from John B.
Holmes was stra igh t and to the point. He,
of course, was an aggressive advocate for the
st:u<.: and in cerrain areas had some vet y strict
and impractical policies. H owever, Johnnie
would always te ll me and others that none
of his policies should eve r produce "a
damned fool result." You've gotta like that
in a man, and we are all going to miss his
The other major cha nge that is almost
upon us is the mass movement into the new
Harris County Crimina] Justice Center. The
District AttOrney's Office is schedu led to
make the move December 1999, and, after
all of the Holidays and the 2000 Millennium
blowout, we all will be moving our trade
into the new big one. The things I know
that none of us will m iss are as follows:
Running back and forth between tWO or
more court buildings; talking to a client
through a stin ky, crowded hold over cell ;
chained inma tes being sh umed through the
courthouse corridors in front of all the public
and potential jurors to see; inmates in jail
clothes chained to a chair or the jury box
wh ile you begin your voir dire; riding slow
and crappy elevators; picking a jury from a
panel of 55 in a courtroom the size of a
cracker box; having prosecutors sit so close
to the jurors during the trial that they are
breathed upon and last, but not lea st,
practicing in a dreary and depressing
environment that we outgrew years ago. The
one mistake in design on the new courthouse
is that there wi ll be no cafeteria, only a very
small vending machine room. The history
of the old basement cafeteria comprises many
B.S. sessions, plea bargains, triaJ preparation
and client consultatio ns. These types of
things will be different in the new building,
as each courrroom wi ll have an adjoi ning
conference room and a trial-ready room, and,
due to the efforts and funds of the Houston
Bar Associat ion-Criminal law &
Procedure Sect ion, there will be a 3,000
square-foot trial-ready room for the benefit
of defense attOrneys. T h is room will contain
private cubicles with telephones, a large
lounge/co nference room and a yet-to- be-
determined room that wi ll hopefully contain
a copier, fax machine, coffee POt, etc.
T he one hundred million dollar question
for us is: Will the fancy new building inst ill
and inspire an increased sense of fa irness on
the part of the state judiciary, as well as jurors
who sit and decide the fate of their fellow
human beings? I for one in this organization
cerrainly hope for such a change, even if it
may be subtle, as there is no way that it could
get a ny worse. T he new Millennium wil l
bring us that answer, and this association
should be in the forefront of cons ta ntl y
seeking ways to ensure th a t the citizen
accused teceives his fair shake when the
crown attempts to bring down the hammer.
If you've been on the fence abou t whether
to go online with the Internet let me give
you a no t her reason to do so as soo n as
possible. The HCCLA has starred an e-mail
program called H
Approximately 175 members out of our 400
members have e-mail addresses, and th is
program a ll ows our members to
commun icate ideas, victor ies, insights intO
cerrain habits and phi losophies of judges and
prosecutors and of cou rse messages about
any upcoming ClE programs o r other
HCClA events. If you care to send Ollt any
message to all of our members then send it
via the HCClA@li add ress,
C. R.Markham & Associates
Private Investigations
s.- UUKJe , CHIlI
1807 West 34th Street, Suite C
Houston, T ~ 7 7 1 8
Voice: (713) 613-0288
FIIX: (713) 683-1U9<1









Personal Protection


but if you wis h to respond to a specific
member then please only address it to that
specific member's e-mai l address so that it is
sent only to that person.
We have also contract ed with a new
website designer, as our website at is currentl y outdated, and
we hope to make major changes a nd update
the enti re website in the near future. I wi ll
keep you posted on tha t project.
I am pleased to report that HCClA has
hir ed Jay Skel t on to be our parrtime
adminisrrative assista nt. Ja y offi ces with his
brother, former HCClA President, Jim
SkeltOn, at J6 1 0 Richmond and answers the
HCCLA line at 7 13/227-2404 at anytime
during the day. Feel free to call Jay about
dues, ClE or a ny other administrative
questions you may have.
And las t but not least, the Officers and
Board of Directo rs of H CClA have
proposed a name change for thi s magazine.
We collectively feel that "Docket Ca ll " is an
outdated name and is not synonymous wit h
wha t we are really a ll about. We are
encouragi ng input from the members in
order to christen this magazine wi th a new
name, so please let us know of your ideas.
Keep the faith and don't ever give up.
November / December 1999
:HarrisCountyCrimina[ Lawyers
rruesCay, t])ecem6er 7, 1999
$2.0013ee" WineandWe[[1Jrin/(
Specia[questV.J. - ((rrFze 2WundMound
, ofSound"- JutfgerJJougShaver
. ~
Opento Membersandanyoneefse!!
~ $10.00!4dmissionwithadvancedtick?ts
1t andatthe door.
November I December 1999 DOCKET CALL 3
Whatis the HCCLA?
TheHCClAis a nonprofit, taxexempt,
professional association madeupoflawyers
from HarrisCounty,Texas,whoareworking
ro promoteexcellenceandhighideals in the
practiceofcriminal law.
theState BarofTexas, who is endorsed by a
memberofHCClAis eligible tojoin.The
endorsement recommends the applicant as
a person of professional competency,
integrity and good moral character who is
actively engaged in the defense ofcriminal
Whatdoes a memberdo?
Participates and exchanges information
and skills in ourClEprograms.
Applicant:_ _________________________________________
MailingAddress:________ _ _ _ _ _ _ _ __________ _
Telephone:_________ ______________________ _
FirmName:___ ___________________________
Performsagreed Pro BonoService.
Haveyoueverbeendisbarred ordisciplined byanybarassociationorareyou thesubject
Brings to the Association's atrention
proper grievances in the practice which
ofdisciplinaryaction nowpending?______
merit responseand action.
Takes calls on ourReferral Service.
Whatdoes HCCLA do
Student ($25.00Annual Fee)
for thedefense bar?
(Expected graduationdate______
Referrals through our lawyer Referral
Newly licensed(first year) Membership ($50)
Service and through our membership
directory. Regular Membership($125.00)
HCClA Publications including Docket
Call, a bimonthly newsletter addressing
topics oflocal interest to the criminal
defense bar.
Provides a responsive local forum for
date signatureofapplicant
lawyersactivelyengagedin thepracticeof
criminal law.
Opposeslegislationandlocal ruleswhich
infringeonindividual rightsprotectedby
I, amemberin goodstandingofHCCLAbelievethisapplicanttobeapersonof professional
constitutional guarantees.
competency, integrityand good moral character. Theapplicant is actively engaged in (he
Promotes a productiveexchangeofideas
and encourages better communication defenseofcriminal cases.
with prosecurors and thejudiciary.
Provides continuing legal education
programs for improving advocacy skills
and knowledge.
date signatureofmember
Promotes ajustapplication ofthe COUf(-
appointed lawyer system for indigent
persons charged with a criminal offense.
Files Amicus Curiae Briefs where
P.O. BOX 2273 HOUSTON, TEXAS 77027
4DOCKETCALL November/ December 1999
Highlights from the
HCCLA 11 th Annual
Galveston Seminar
Approximately seventy attendees enjoyed the
seminar at the Galveston Country Club and also
enjoyed after the seminar the President's Party at
Danny Easterling's beach house.
November / December 1999 DOCKET CALL 5
An "indigent" is a person who is not
fin:lncially able to employ counsel. l A judge
must appoint counsel to represent an
indigel\t person charged with an offense that
is punishable by confinement.
A COUrt-
appointed counsel who learns either that his
client was not an indigenr when counsel was
appointed, or that his clienr has become a
" non-indigent" during the course of
represenration, must inform the judge:; The
duties of the judge to appoint counsel and
of the co urt-appointed counsel to report
financial ability to employ counsel are clear.
You may also have a duty to assert your
indigent client 's valid claim to retain his
(()urt-<Ippoinred counsel after he has posted
I t is the "policy" ofseveral judges to require
any defendant who has been released, even
on a pretrial bond, to employ counsel. Some
judges will openly declare at docket caJi that
your client is no longer indigent, because he
posted bail. Other judges have the COurt
coord i n,ltor discreetly inform your client that
he will go back to jail if he does not employ
counsel by the next setting.
BEFORE you accept your first COurt
appoilltl11ent , you must decide whether you
I. accept the judge's oral order and cease
represent:1tion of your client without even
ascertaining whether he has a valid claim to
retain his court-appointed counsel ; OR
2. assess his ability to employ counsel and
assert any valid claim he may have to retain
court-appointed counsel, despite his release
on b3il.
If your client is not financially able to
employ counsel, he has a valid claim to
retl:ntion of his court-appointed counsel,
despite his ability to post bail.
If you fail to
assert your diem's valid claim to retain court-
appoilltcd counsel, you may find yourself
answering a complainr to the grievance
How will you defend yourself
before the gri evance committee) Will the
grievance committee ignore the clearly
esrablished bw and honor a judge's "policy"
:IS a IOGllrule) Wil 'll the grievance commirree
exonerate you for failing to assert your client's
valid claim, because to do so would mean
that you could no longer receive
appointments from some judges?
Whether you choose option I. or 2., you
will need a record of the judge's order
revoking your appointment. In Harris
County, your client's affidavit of indigency
and the judge's order appointing you to
represent him are generally reflected in the
court's file on the same form. If you choose
option I ., and fail to appear on the client 's
behalf after the judge orally revokes your
appointment, you will need a record with
which to defend yourself from a complaint
that you abandoned your client. If you
choose option 2., you may need a record to
file with your client's application for writ of
mandamus or writ of habeas corpus.
Ifyou choose option 2., both you and your
client must be prepared to assert his claim
effectively. At the first setting after your client
is released on a bail bond, you must be
prepared to obtain a record of any
reconsideration of your client's indigency.
You may want to have a court reporter
present at docket call to record everything
that is said after your client's name is called.
You may want to have one or more attorneys
present, prepared to make affidavits. Absent
some anion on your part, there will be no
record of the judge's "reconsideration" of
your client 's indigency at docket call .
Your indigent client should be prepared
to testify at the first docket call after he pOStS
bail regarding:
I. the source of the money for his bail
bond. If his family members and friends
pooled their money, have one of them
present at docket call , ptepared co testify.
2. his efforts to obtain employment, if he
is unemployed. He should keep a li st of the
businesses he contacts. This list should
incl ude the date, the name of any supervisor
he contacts, and whether the bus iness
accepted his application.
3. his expenses. He should list his monthly
expenses for rent, food, transportation, child
support, debts, etc. He should save all
receipts for these expenses.
4. his efforts to manage his finances
through Consumer Credit Counseling, if he
is employed. This organization will assist him
in preparation of a budget, and the service
is free.
5. his comacts with attorneys to obtain
an estimate of the fee he would be charged
for represemation. He should contact at least
ten attorneys. This list should include the
date and the fcc each attorney quotes.
After all your effort, some judges may still
revoke both the order appointing you and
your client's bond. A writ of mandamus is
the proper method for seeking legal relief if
the judge revokes your appointmem because
your indigent cliem posted bail.
A writ of
habeas corpus is the proper method for
seeking legal relief if the judge revokes your
indigent client's bond because he IS
financially unable to employ counseL"
1 Article 1.051 (b), Texas ode of
Crimi nal Procedure.
2 Article 1.051 (c), Texa Code of
Criminal Procedure.
3 A lawyer shall not as i t or Ollnsel
a client co engage in conduct [hat rhe
lawyer knows is criminal or fraudul ent.
Rule 1.02(c), Texas Rules ofProfcssional
4 .... The court may nor deny
appointed counsel to a defendant solely
because the ddendall( has posted or is
eap<lblt: of posting bail. Article 26.04.(b),
'Texas Code of Criminal Procedure.
5 El( Parte Bain, 568 S.W.2d 356
(Tex.Cr.App. I 978)(en bane); Harrje/z

State, 572 S.W.2d 5.35 (Tex.Cr.App.
6 In representing a diem, a lawyer
shall not:
(I) neglect a legal matter enrrus[ed to
the lawyer; or
(2) frequently fail to carry out
completely the obli gations that the
lawyer owes to a diem or clien ts. Rule
1.01 (b), Tex3s Rules of Profe ional
7 Stearne.l v. Clinton, 780 S. W.2d 216
(Tex.Cr.App. 1989)(en bane); BUI/tion
v. Hannon, 827 S.W.2d 945
(Tex.Cr.App. 1992)(cn banc) .
8 Ex Parte King, 550 S.W.2d 691
Clex. Cr.App. 1977).
6 DOCKET ( :ALL November / December 1999
RepresentingIndigentClients (continued)
Accused, perAnicles 1.051 and 26.04 oftheTexas CodeofCriminal Procedure, requests the opponunity(0 continued
indigencyon the record, through exhibits and testimony, at the next seningofthe instant cause, and that the couns orderappoInting
counsel not be revoked until such opponunityis granted, andwouldshow:
I. On ,Accused was determined to be indigent;
2. State has nOt shown thatAccused is no longer indigent;
3. Accused has notbeen afforded a nearingatwhicn (0 demonstratecontinued indigency; and
4. TheabilityofAccused orAccused's familyto makebail,standingalone, is notsufficienttodenyAccused coun-appointedcounsel.
WHEREFORE, PREMISES CONSIDERED,Accused respectfully requests the court to conduct a hearing, on the record, on the
question ofAccused'scontinued indigency, and to postpone revocation oftheorderappointingcounsel until such hearingis held anda
determination is madeon tne question ofAccused's continued indigency.
Acopyofthis motionwas served onState's anorneyon_ _ _______
Article 1.051.(b) . For the purposes ofthis anicle and Articles 26.04 and 26.05 ofthis code, "indigent" means a person wno is not
financially able (0 employcounsel.
Article 1.051.(c).An indigentdefendantis entitledto haveananorneyappointed to representhim in anyadversaryjudicialproceeding
rhar may resultin punishmentbyconflnemenr....
Article26.04.(b) .. ...Thecourtmaynotdenyappointedcounsel (0 adefendamsolelybecauserhedefendanthas postedor capableof
Ex Parte Bain, 568S.W2d 356 (Tex.Cr.App. 1978)(en banc). In making the determination ofindigency, the Statutorywordingof
Anicle26.04,supra,should beconsidered.Anaccused may be "toO poortoemploycounsel" to represem him andyet notbe completely
destitute.Anaccused mayhavesomeavailable funds, butnotenoughtosecurecounsel inviewofthenatureofthechargependingagainst
Harriel v. State, 572 S.W2d 535 (Tex.Cr.App. 1978). [HJe was able to obtain a $5,000 surety bond to secure his release from jail
pendingtrial.Theabilitytosecuresuchabondis not,standingalone,sufficienttowarrantarefusal toappointcounsel [citationomined],
butmay be considered by the trial court in determiningwhetheran accused is indigent.
Ex Parte King, 550S.W2d69l (Tex.Cr.App. 1977). [AJ determination [ofindigency] mustbe made pursuanttoArricle26.04,supra,
before the trial itselfeven though an accused is free on bail.
Stearnes v. Clinton, 780S.W.2d 216 (Tex.Cr.App. 1989)(en banc). Oncecounsel has been validly appointed to representan indigent
defendantand the parriesenterintoan attorney-cliem relationship it is no less inviolate than ifcounsel is retained.
[T]he power ofthe trial coun to appoim counsel to represent indigent defendants does not carry with it the concomitant power to
removecounsel athis discretionary whim.
Buntion v. Harmon, 827S.W.2d 945(Tex.Cr.App. 1992)(en banc).Althoughan indigemdefendantdoes nothavethe righttocounsel
ofhis own choosing, oncecounsel is appoimed, the trial judge is obliged to respect the attorney-client relationship created through the
appointment.Theanorney-client relationshipberweenappointedcounselandan indigentdefendantis no lessinviolatethan ifcounsel is
November/ December 1999 DOCKET CALL 7
A Defendant's Danger to the
Community:Nota BasistoDeny
Bond in ManyFederal Criminal
Imagine the following scenario. You are
called into magistrate court for a detention
hearing. The defendant is charged with
being a felon in possession of a firearm. He
has two prior felony convictions, one for
drug dealing and another for car theft. He
also has numerous prior unadjudica ted
;lfl'ests for assault and one dismi ssed murder
charge. There is al so evidence that the
defendant is a curren t gang member. The
defendant is a life-long resident of the local
community, and there is no evidence that
he is a risk of flight. The police found a gun
in his car during a routine traffic srop. When
the po,lice discovered that he was a felon, the
case was referred to the ATF for federal
What do yo u think the defendanr's
chances of a bond are? Based on most
attorneys' exper iences in federal court
throughout the various divisions of the
Suuthern District ofTexas, the answer would
appear to be slim-to-none. Many magistrate
judges and district judges have detained such
dl:fendants based solely on their "danger ro
the community," a purported basis for
detention in such cases under the bail statute,
18 U.s.c. 3142.
However, despite the widespread practice
of detaining any and all defendan ts where
there is strong evidence of their
dangerousness to the community, the Fifth
Circuit has held that bond is auromatic in
many CJses, norwithstanding a defendant's
obvious dangerousness. See United States v.
B.),rd, 969 F. 2d 106 (5th Ci r. 1992) . Fot
unknown reasons, Byrd is regularly
overlooked by practitioners and judges alike.
In Byrd, the district court det ained a
defendant with no prior Record, who was
charged with child pornography, based on
evidence of his danger ro the community.
The Fifth Circuit reversed the district court
on the ground that the detention statute, 18
U.s.c. 3 142, permits detention based on
a detendant's danger to the community in
cases involving: (I) a charge involving a
"crime of violence"; (2) a charge for which
the maximum punishment is a life sentence
or a death sentence; (3) a drug charge where
the maxi mum sentence is at least ten years;
or (4) any felony case where a defendant's
prio r record in c ludes two or more
co nvic tio ns (state or federal) for th e
foregoing types of offenses. Byrd, 969 F.2d
at 109-10.
A court may also properly consi der a
defendant's d a ngerous ness if the
Government presents convincing evidence
that the defendant is a ri sk of flight , will
obstruct just ice, or tamper with a witness or
juror if released on bond. Id.
The Fifth Circuit was clear that a
defendan t's dangerousness is relevan t to
detention only in these certain class es of
cases: "There can be no doubt that [18
U.s.c. 3142) clearly favors nondetention.
. . . [DJetention can be ordered only in
certain designated a nd limited
circumstances, irrespective of whether the
defendant's release may jeopardize public
safety." Byrd, 969 F.2d at 109-110.
Therefore, in federal criminal cases not
involving serious drug charges or crimes of
violence--e.g., most federal firearms charges,
alien smuggling cases, theft or fraud cases-
a defendant is auromatically entitled to bond
if he does not have at least two prior
convictions for serious drug or violent
(Postscript: For a good pri mer on federal
bail law, see Hon. Bruce D. Pringle, Bail and
Detention in Federal Criminal Cases, 22
Colorado Lawyer 913 (May 1993) (avai lable
An Important Reminder to
in-Possession Cases: Always
Rights HaveBeen Restored
During the last sixth months, the Houston
office of the Federal Publ ic Defender has had
rwo indi c tments charging violations of 18
U.s.c. 922(g)( 1) dismissed on the ground
that the rwo defendants' civil rights had been
restored in their respective states of
conviction (Ohio and Michigan) and, thus,
that the defendants were not "felons" under
federal law. The law is well-established that
a defendant is not a "felon" for purposes of
the federal firearms statutes if: (I) sometime
prior to hi s alleged Iy unlawful possession of
a firearm, he had "all or essentially all" of his
civil rights restored by the state ofconviction;
and (2) he was not prohibited under that
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FedSquare (continued)
state's laws from possessi ng firearms at the
timeoftheresrorat ion ofhiscivil ri ghts. See
United States v. Dupaquier, 74F.3d615,617-
19 (5th Cir. 1996) (interprering IS U.s.c.
921(a)(20)) ."Civil rights" generallyinclude
the righr to vore, the right ro sit on a jury,
and the right co hold public office.
Dupaquier, 74 F.3dat619.
Unfortunately for most defendants in
Texaschargedunder ISU.s.c.922(g)(1),
thei r prior felony conviction(s) occurred in
Texas, which rarely ifever restores a felon's
civil rights. However, in many ifnot most
other states (including Louisiana), state
statutes auromatically resrore felons' civil
rights after certain periods oftime have
passedsince thedefendantscomplered their
sentcnces (typically five years). Many such
states also do not limir ex-felons' rights ro
possess firearms. (A common exception in
manysrares thar resrore ex-felons' righrs ro
possess firearms are persons convicted of
violent or drug felonies, who have a more
difficulr time getting their rights ro possess
firearms resrored.) Notably, although rhere
is a trend in someofthesestatcs ro limitex-
felons' rights to possessatleastcertain types
offirearms (e.g.,handguns), thelawin effect
ar the time of rhe restoration of th e civil
rights is whar matters under IS U.s.c.
921(a)(20).See, e.g. , United States v. Coffins,
61 F.3d 1379, 13S2 (9th Cir. 1995).Thus,
ifar rhe time rhat a defendanr got his civil
righrs restored he could possess firearms
under state law, subsequent changes in his
stare- laweligibilityforfirearm possessionare
irrelevant underfederal law.
Ifyou have a felon-in-possession case,
pa rricularly one involving an out-of-state
priorfelony conviction, be sure to checkro
see ifyourclient's civil rights (includinghis
rightro possessfirearms) wererestored under
stat e law at some point prior to his alleged
unlawful possess ion of rhe firearm. Such
research mayrequireextensiveinquiriesinto
arcane state statutes, rules of court,
administrative regul ar ions, and caselaw
decided by srate appellate courts. A good
starting point is an unpublished trearise by
the Justice Department's Office ofPardon
Arwrncy enrirled Civil Disabilirie s of
Convicred Felons: A Srare-By-Srarc Survey.
Such research may also require relephone
calls ro rhesrare's boardofpardonsandparole
(or a similarly-named srare agency.) Ifyou
discover rhar your c1ienr was given a
certificateorofficial letter resror inghis civil
righrs when he was di scharged from his
sentence, such a documentwill suffice as a
matteroflaw, so longas itdid norexpressly
limir his righrs regarding firearms. See, e.g.,
United States v. Erwin, 902 F.2d 510, 512-
13 (7rh Cir. 1990).
Finally, if you have a "armed career
criminal " case carrying a minimum
mandacory fifteen-year senrence, see IS
U.s.c. 924(e), be sure ro check whether
your c1ienrs' civil rights were tescored
regarding anyofrhe three predicate felony
convictions. Ifyou can "bust" even one of
therhree predicatefelonies under IS U.s.c.
921(a)(20), the draconian senrence
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November/ December 1999 DOCKET CALL 9
Judge Peters to Retire (in 7 Years)
Naturally, the Judge's personal experiences
How many of us actually know what we' ll
be o i n g ~ n seven years?
Judge Michael Allen Peters is positive about
what he won't be doing. He won't be the
Judge of Harris County Criminal Court at
Law Number 2.
'Tve enjoyed these last nine years [on the
bench], says Judge Peters. "And if! am elected
for one more term, it will be my last term. "
When the day finally arrives for Judge
Peters to step down, it will be mark the end
of an era for those who practice in the
County's Criminal Courts. The outspoken,
sometimes maverick, Judge has ruled with an
"iron gavel" since 1991, when he became the
County's only Republican to un seat a
Democr:nic incumbent. Since that time,
Judge Peters has implemented a burgeoning
number of Court rules, best exemplified by
the signs that adorn the paneled walls of his
A recent visit to the County Criminal
Court at Law Number 2 revealed no fewer
than 22 signs, exclud ing the Judge's
nameplate and the lighted "Exi t" sign hanging
above the doorway. Some notables include,
"Be prepared to start a jury trial any hour of
the day, any day of the week, any week of the
year." (Question: what about 3:00 a.m.,
Saturday, New Years Eve?) Another standout:
"Any defendant who is requesting a
postponement to pay fine and/or court COStS
on the date of a plea, priot to plea, defendant
shall bring in proof that he/she has given
blood prior to date of plea and this Court
will grant your request. " The deep red sign
matches one of the walls in Judge Peters'
chambers. Visitors to the back room will also
noti ce a framed picture ofSylvester Stallone's
"Judge Dredd". ("A joke," smiles Peters.)
Regardless of whether Y2K spells the end
of us, the finality of this year will spell the
end of Peters' signs. The County is
prohibiting such signage in the new Criminal
Coum Building. Even Peters sees the wisdom
in cutting through the c1u tter, as he concedes
that some of the verbiage has "become a bit
of an eyesore."
Superseding the signage, Judge Peters has
issued a rwo- page set of court rules that will
go into effect on January 1, 2000. The rules
feature softer language and more flexibility
than the outdated signs. For example, a red
and white sign currently bellows, "No off-
hours on weekend [jail] service. No
exceptions." The written rule will soon
remind practitioners that , "Generall y, there
are no off-hours or weekend service of time
except for extraordinary circumstances."
[Emphasis added.] An orange and black sign
presently warns that, "In all cases involving
domesti c violence this co urt now requires the
attendance of the victim on plea date wherein
no divorce is pending and the defendant and
victim are living together." The new wrirten
rule says, " In a case involving domestic
violence wherein the parties are living
together trying to resolve the iss ue and
continue in the relationship, ifpossibLe, the
judge likes to have the victim in attendance
if it does not ca use a hardship ,
inconvenience. " [Emphasis added.]
"Realizing there are no hard and fast rules,
I try to be flexible, whenever possible," says
Judge Peters, who chuckles at the suggestion
of becoming a more "use friendly" jurist.
To prac tice in County Criminal Court at
Law Number 2, (while steering clear of
potential pitfalls) one should understand
Peters' background and how he beca me a
judge. Born in Dayton, Ohio, and la ter
graduating from St Francis DeSales High
School in Oklahoma City in 1963, Judge
Peters eventually earned a Bachelor of ArtS
degree in Philosophy and Theology from St.
Thomas University in Houston in 1967. He
later entered the seminary and nearly became
a prIest.
Judge Peters joined the United States Army
and served in Vietnam. He was honorably
discharged in 1971. Later, he graduated with
a degree from the University of Houston Law
Center in 1974. After seventeen years of
private practice in criminal, family and
personal injury law, Judge Peters ascended to
the bench in 1991. When asked why he
sought the bench, Peters will simply tell you,
"the challenge."
"I wanted to see if I could operate
effectively and efficiently as a Judge. 1 like
making a difference in a person's life;
parti cu larly, a young person on the threshold
of adulthood. I think the courthouse can be
as much a part of the healing process for
someone as a structured counseling
environment," he says.
also shape his approach to sentencing. "My
philosophy (on punishment) is tempered by
my years in candidacy for the priesthood, my
time in the Army, and etc." He seems to value
those who "take responsibility" whenever
possible. In a Motion to Revoke Probation,
for instance, in which the accused appears to
have a drug problem, defense counsel might
be served by suggesting the client seek
counseling even before the hearing. "That
would give me something to work with, "
Peters nods approvingly.
The Judge points out that he understands
the challenges of defending a citizen accused.
"While in private practice, I enjoyed the
camaraderie with my former classmates and
other lawyers. I also enjoyed the challenge of
representing people whether in trial, pre-trial,
or arguing before the Court of Appeals, Fifth
Circuit, or the Untied States Supreme Court.
That probably was the highlight of my career
as a defense lawyer, " he says. "There was that
sense of satisfaction that justice had been
done, if only for that one individual. " And
no, there's no "sign" for that.
For those interested in court appointments,
County Criminal Court at Law No.2
contracts these out on a weekly basis only.
Attorneys are not compensated for the
number of pleas in which they engage. "You
are not under the bullet to work every case
out," says Peters. "It doesn't matter how much
time you need to do the job properly."
To "do the job properly," Peters insists court
appointments should remain in the hands of
the local judges. "Just because you' re on the
list, doesn't mean you're a competent lawyer
who can try a case. I like to be able to select
the lawyers myself, " he says. For those of
you intetested in demonstr a ting your
competence and desire to do appointments,
the Judge suggests you "get away from your
practice and see what a trial looks like in my
court, how [ conduct voir dire, rule on
motions, etc,"
For cases not heading for trial , the Judge
recommends lawyers not "plea bargain in the
courtroom." He suggests, "Go to the D.A.'s
office ahead of time and try to work the case
or the issues out. "
With retirement a mere seven years away,
Judge Peters looks forward to spending more
time with his friends, shooting the breeze on
his familiar Harley. "I enjoy spending time
with similar minded people, " he says.
10 DOCKET CALL November / December 1999
[n a day and age where atrorneys and
private investigators are limited in scope and
oftentimes hindered in their efforts to
prepare an adequate defense for their clients,
it is important for you, the attorneys , who
are at the forefront of preparing the defense
to become aware that from the investigator's
perspective timing is everything.
A prime example is in the preservation of
items that might actuaJly help the defense
such as police dispatch tapes and MDT
prinrouts. There have been countless times
that I get appointed on a case several months
down the road from when the atrorney
actually acquired the it. To examine all
possible angles of the arrest and how the
police say the arrest occurred, [ would want
to have dispatch and MDT print outs.
Because HPD, for example, has a policy of
only keeping dispatch tapes for one month
before they reuse the tapes, this issue would
be moot because by the time [ get appointed
on the case more than a month has gone by.
The Harris County sheriff's department has
Deli Sandwiches
Soup & Chili
DailyUntil Closing
11:00A.M. - 2:00P.M.
November / December 1999
a similar policy for the preservation of their
dispatch tapes.
The same is true is for when 911 is called
by a complainant or a reportee in a case.
These 911 tapes, which of course are
recorded, are only kept for one month by
the city and county law enforcement ent.ities
so again, time is of the essence. There have
been times when 911 tapes have been
properly subpoenaed and thus preserved, but
a little known fact is that nOt only does the
police, fire or sheriff's department have a
copy of the 911 tape we're after, but the 911
emergency network located at 601 Sawyer
street, with whom the public first makes
contact with when calling 911, has a
recording of the initial contact that the
person makes with 911 before the 911
operator connects him/her with the
appropriate emergency agency. In my
opinion, it's imperative that that tape is also
requested and reviewed so that comparisons
can be made berween what was initially said
to the 911 operator and what was said to
the law enforcement agency or fire
As of this writing, subpoenas for dispatch
or 911 information should be made out to
the following persons:
Houston Police Department
Barbara Hardeman, Cusrodian of Records
1200 Travis St.
Houston, Texas 77002
Harris County Sheriff's Department
Tracy Mullins, Custodian of Records.
Communications Division
1301 Franklin
Houston, Texas 77002
(713) 755-7428
911 Emergency Network
Kathy Armstrong, Custodian of Records
601 Sawyer St., Suite 300
Houston, Texas 77008
(713) 407-2144
11 am -12pm. tues. -thurs.
11 am - 2am. fri.
Gpm - 2am. sat.
closed. sun. &mono
Top Ten Things You Should Know
In Your First Capital Case
I should stare this article by saying that it
is NOT intended co be a guide co preparing
for a capital trial, nor it is a review of case
law. It is not intended for the experienced
capital practitioner, since I do not consider
myself one. [There are people in Harris
Count)' who have more capital cases, at some
level , under their belt than the number of
years I have been alive.] Ie is instead intended
for the new death-penalty practitioner, at
whatever level they choose to enter this
difficult process, whether it is trial, appeal,
or postconvicrion. At some time or another,
I hJve m3de ewry mistake that I list here, so
if you like, think of it as a list of helpful hints
from one rookie co another. Here goes.
# 10. Accept the risk of death.
I never accept the inevitability of a death
sentience, bur if you cannot accept the very
real possibility that it could happen despite
your be,t efforts, then I would respectfully
suggest you should not do this work. That
is not a criticism: after all, how many people
actually want to do bomb dispos31?
SomeboJy has to do it, but not everybody
To help you, the new practitioner, accept
the re3liry of this possibility as a concept, let
me point om some E,cts. First, if you practice
in ' kxas, particularly ifyou practice in Harris
County, you are in the death penalty capital
Ipun intcnded] of the world. Harris County
is second only co t11e State of Texas in the
Ilumber of people it has sent to the
cxecutioncc's chamber. The atcorneys who
work for the State here are extremely skilled
at trial, p p e ~ and postconviction in gerring
the dL:ath penalty and in seeing it carried out.
Unless you ar xtremely fortunate, they will
have [hl' edge over you in experience, facts
and resources. Do not kid yourself; whatever
your own personal opinion of individual
prosecutors may be, as a group they are the
Illost competent state capitallitigacors in the
free world. Period.
Add to this some other simple concepts,
sucb as the bct rku any juror who has grown
up or lived a reasonable amount of time in
this area has read or heard about dozens of
Glpital cases and executions, and chat, in all
likelihood, the bcts in your case are horrible,
and your chances uf success become that
much slimmer. A desensitized jury is not
helpful, and in many cases your own client
will be your most difficult opponent in the
case. Your client may insist on testifying
despite his or her twenty felony convictions.
Your client may insist on making statements
to the press without your knowledge, or
make death threats co the judge or jury, or
try co put a Contract Out on witnesses during
trial, or publish a website with ierters from
his victims. All of these things happened in
recent Harris County cases, and if you think
these incidents did not help the defendant,
well, you would be right.
To quote Captain Gerald Coffee, USN
(Ret.), a Navy flier who spent a number of
years as a "guest" of the communists during
the Vietnam conflict, "The best you can do
is the best you can do." I f you have done
everything you ethically and truly thought
could be done, then you have co accepr that
you did your best for your client. That is all
you or anyone can ever do. If despite that,
you have the unpleasant task of hearing a
sentence of death pronounced at trial, or an
appeal or stay denied, you must be able to
go on, because rhere will be another client
comorrow, or next week.
# 9 . It's not about you
The stakes in this arena are different, and
your response must be as well. This is not
the time co let your confidence get your
client killed. Your client's life is lirerally in
your hands, and you necd to take every step
possible to save his life because you are not
the one who has to suffer the consequences
of your failure. If you are at trial and there is
any possibility that you can !Iegotiate a sentence
other than del1th, explore it, and do your
damnedest to convince the client to take it. I
do not usually try to "strong-arm" clients into
a plea unless I believe they are truly going CO
hurt themselves if they don't. In capital cases
that rule goes out the window because you
cannot afford co lose. Likewise, you cannot
afford co let anything get in the way of your
focus on your client's life. If you hate your
cocounsel, suck ir up. If you don't want to
talk to the prosecutOr because of an old
conflict, get Oll er it. If you dislike the judge,
drill with it. If your cocounsel is not pulling
her weigh t, tell her, fire her, or go around
her, but never, ever throw up your hands and
say "Oh well." Your problems are irrelevant,
because it ain't about you!
No matter at what stage you are, this rule
applies. lr doesn't matter if you don't want
co do something, and it doesn't marrer if you
think it will make people mad. If your client
needs i r you try and get it. Ifyou are at appeal
and there is any remedy ro seek, seek it. If
you are at postconviction and want any relief,
ask for it. If you are at the clemency stage,
make your best pitch, because you never
know when someone might actually listen.
A wise old lawyer who had handled a lot
of these cases in Texas and throughout the
South once said at a seminar, "You don't want
co be heading co the prison co see your client
at night." Night is when they kill your client,
whether at the Walls Unit in Huntsville, or
at Atmore in Alabama, or Dannemore in
New York. If you can avoid going co see your
client at night, do it.
# 8 This will be more work
than you ever thought possible.
This is no joke. If you are at trial, you will
spend months in preparation, meetings with
your cliem and his family [I say "his" because
the vast majority of capital clients are men,
but it all applies to women as well],
interviewing witnesses and viewing evidence.
You will talk with experts, meet with
investigators, and when jury selection finally
starts you will spend, in Texas, typically three
to five weeks picking a panel that can be
qualified co sit on a capital case. Then you
will spend a week in trial, and, if they convict,
another week in punishment. If you think
keeping a practice cogether is easy under
those conditions, think again. If you are
fortunate you will have a good cocounsel
who will share the burden equally. I f not,
then see Point # 9.
If you are doing a direct appeal, you will
at some point contemplate ritually
disemboweling yourself as you read, for the
fortieth time, a potential juror's response to
one of rhe lawyer's questions. [FYI, defense
atcorneys' questions are no more interesting
ro read than prosecutors' questions, the
author included.] You will be expected to be
able to argue a competent Motion for New
Trial even though you were appointed last
week and the deadline for filing the MNT
is next week [and rhe trial counsel are off on
a drinking binge due to their depression at
the result and can't help you prepare'] You
will be expected to know and reference a
staggering amount of Eighth Amendment
12 DOCKET CALL November / December 1999
Top Ten Things You ShouldKnow
In YourFirstCapitalCase (continued)
case law, as well as all those mher pesky
bits of law regarding evidence, misconducr,
incompetency of counsel, procedure, etc.
You will also have to deal with a client who
is stunned and a client's family who have lost
faith in lawyers because their son/brotherl
cousin/husband has actually been convicted
and sentenced. You will at some point, late
at night at the law library, rub your eyes and
realize you should have listened to your
mother and been a plumber. Welcome to
appellate law.
If you are on the habeas writ, you must
now assume that everything that happened
before you came on the case was wrong. The
police got the wrong guy, they tricked/beatl
drugged the confession from your poor
victim of society, the prosecutors hid
evidence of your man's sterling character, his
lawyers were asleep and using cocaine, the
jurors were drunk and threw dice to decide
the verdict, and then you have to prove it
to the same courts that convicted your client
and upheld his death sentence. You will have
ro do this, under the new statute, while the
direct appeal is being decided, and anything
you don't raise is waived forever in federal
court. No pressure.
# 7. You do not know as much
as you think you do.
Death penalty law is constantly changing,
and the body ofcase law that you must know
is vast. Regardless of what stage you are
working on, you must know Supreme Court
jurisprudence on the death penalty and
constitutional law, [including competency,
insanity, ineffective assistance of counsel,
confessions, search and seizure, and equal
protection] the Fifth Circuit's decisions, the
Court of Criminal Appeals decisions, and
you should probably know something about
the leading state cases nearby in Louisiana
and Oklahoma. This is a body of thousands
of cases, and you aren't done yet.
You must also know the Texas criminal
procedure, evidence and appellate codes and
rules. You must understand the time lines
for the habeas writ, the Motion for NewTrial
and how ro work together wi th the appellate
and postconviction counsel. This field is
constantly changing, and there are a number
of organizations and websites that you
should try and become familiar with,
including the ABA Death Penalty Projecr,
the federal defenders Habeas Trai n i ng
Project, and many others locally, such as the
Texas Defender Services here in Housron.
Also, try, which is a great
net site with databases and searchable briefs.
The point is, no one knows everything, and
if you do this work you have ro make a
commitment ro long-term learning.
#6. The people you live and
work with do not deserve your
You are not the only person with a life,
nor are you the only person with problems.
Think it is hard to deal with a family whose
members may lose their child or brother? Try
dealing, as the prosecutors do, with the
shattered families of those who have already
lost their father, or mother or sister. Think
you are the only one trying to maintain a
pracrice? Well, your cocounsel would be
surprised to hear this. In Harris County, the
division or court chief whom you are facing
is also juggling mul tiple cases, training junior
people, writing evaluations, and coping with
the administrative burden of state
bureaucracy. Rumor has it that many of them
acrually wouldn't mind having a life, too, JUSt
like you.
What about the bailiff, the court reporters,
clerks, and the judge? I am sure that
somewhere in Dante's vision of hell there is
a circle where one has ro listen ro lawyers
babble for all eternity. Imagine doing this
for a living?! Then imagine being responsible
for ensuring a fair trial for a man who could
lose his life. Or imagine being responsible
for the safety of your client and the people
near him, as the bailiff does. [Would you
want ro be the person who let a suicidal
prisoner injure himselP.] Or that you are
legally responsible for maintaining the only
record of these proceedings, the only
reviewable documents by which someone
might save your client's life?
Finally, think of your friends and family.
For whatever reason, they like you, they
actually like you. Why disturb that delicate
arrangement by acring as if you are the only
one haunted by a case, when they are
probably willing to help you out of your
misery by buying a round, having dinner,
or just listening ro you over coffee? Talk ro
them, draw strength from them, but for
God's sake don't treat them badly because
you are drowning in this case. They also have
mortgages, sick relatives, children, health and
financial pressures. Their lives matter, roo.
Everyone you live and work with deserves
your courtesy and respect every day,
especially the ones involved in these cases.
# 5 You are the only asset you
If you are a solo practitioner, your health,
physical and mental, are the only things you
cannot replace. You can buy a new laptop or
lease a new car. You cannot replace a
damaged heart or liver, at least not easily. If
you permit yourself ro become so physically
and mentally run down that you are laid up
in bed for weeks or are so "burnt out" that
you damage your clients' cases, then you have
not done anyone a service. Do not let your
body or your soul absorb all the load of guilt
and horror of these cases without providing
yourself an outlet. Go ro church [don't take
me with you as that will hurt your chances
of gerring inro heaven]. Take a walk in the
sun with a lover or a friend. Take your spouse
out to eat at your special place. Go for a long
run. Hit a heavy bag. Grab a drink with pals.
[Hey, booze works, at least in moderation.]
I have thrown myself inro cases to the
point that I have nothing left ro give in the
other areas of my life. That was a mistake,
and I am not kidding when I tell you that
type of mistake can ruin your practice and
your life. One bit of advice that helped me
came from an office mate of mine. He saw
me tearing myself up over a case where the
facts were so bad that I could not help my
client. He told me that I did not give that
guy his resume. The more I thought about
it, the more I realized that he was right. I
did not put him where he was. I was not
responsible for the situation, and that
thought acrually made me realize that
everybody in this process deserved a break
from me as well. The prosecurors did not
place your client in the situation, nor did
the bailiff or the police [unless you have one
of those relatively rare cases where you have
a genuine mistake by the DAs or the cops].
You drew the call, but you do not need ro
personally take the responsibility for
everything that happened.
# 4 Ask for help.
The flip side of my earlier comment
regarding the skill of the Harris County
prosecutors in capital cases is that there are
a huge number ofvery skillful capital defense
November I December 1999 DOCKET CALL 13
Top Ten Things You ShouldKnow
In Your FirstCapitalCase (continued)
attorneys here. You could not find such a
group anywhere else, and they are, by and
large, hugely willing ro help. If you are
outside Harris Coumy they acrually will
respond ro a phone call. Likewise, if you are
practicing far away from here, there are
dozens of skilled capital lawyers in Austin,
DaJhs, San Anronio, Fe. Wonh, EI Paso, etc.
This is not the time ro be shy, and if you
don't know anyone then call the HCCLA,
the HBA-Crim Law section, the TCDLA,
and every Lawyer you know.
# 3 Do notforgetto spend as
much time and effort on the
If there is an area where we could all do
herrer, it is in developing, preseming and
preserving a solid case for sparing our c1iems'
lives. Often, as second chair, this dury may
fall to you. Ie is absolurely vital that you
esrablish a good working relationship with
YOllr investigaror or mitigation specialist
early. You may well be responsible for
presenring this area ro the jury, so you must
have a good sense ofyour issues, the wirnesses
and how ro present them in the most
compelling fashion. A working knowledge
of memal health issues and how to question
experrs in this area is crucial.
These areas are just as critical on
postconviction and at appeal.
The way the sracute is worded in Texas
means that you are facing an uphill barrie.
Essemially your c1iem's fate will be, or was,
decided based upon cwo questions: 1) Is he
a future danger? [Duh! He was just convicted
of capital murder, so do you think you start
out behind on this question?] 2) Is there
enough mitigation ro justify giving him a
senrence of life imprisonmem? See, the
questions mandates that YOU give THEM
a reason ro spare your guy, either by proving
he is nor dangerous, or by offering up enough
reasons for mercy WITHOUT revealing
more potemial furure danger evidence for
them ro spare your fellow. So a case that does
not have a clear theory for sparing your
client's life is a case half-prepared. Why show
up if you only brought half your game?
# 2 Do not expect anyone to
If YOll wanred love and universal respect
for the job you do, you should have been a
You defend what society considers its
pariahs, the lowest of the low. Never mind
that phrase about how we treat the most
wretched among us is the erue measure of
our wonh as a society; ro most folks that is a
bunch of abstract crap. You will be
questioned and reviled by nearly everyone
who discovers that "YO ll are defending
THAT guy?". Never mind that pare of the
Constitution [a fine but underused
documemJ that says every person is enrirled
ro a fair erial; nobody really wams you ro
win in this arena. No marrer what effores
you put in , you are not likely ro get any
appreciation from your diem, your diem's
family [who will blame you for the fact that
their poor, innocenr son was caught on
videotape shooring the clerk after the derk
gave him all the money], cenainly not the
deceased's family, nor anyone else invol ved
in the case or the media. Ironically, the only
folks who may acrually notice the effore you
put in, and appreciate it on a professional
level , are the prosecutors and other coun
processionals who watched you throughout
the case, whether at erial, appeal or during
the habeas ponion. Expecting thanks from
other people in this line of work is like
expecting love at a whorehouse ; it
occasionally may happen, but you should not
expect it.
# 1 Never,ever,quit.
YOll have been given a task that people
such as Thurgood Marshall, Clarence
Darrow and Abraham Li ncoln have all faced;
defending a man's life before a hostile crowd.
You are in good company, and if there was
ever a person that needed you, it is the guy
sirring next ro you at the counsel table. If
there was ever a time that you needed to
summon every ounce of clever lawyering,
creativity, perseverance and courage YOll
have, it is when you are on these cases. There
is no more demanding thing that will ever
be asked of you as a lawyer, and, like most
truly challenging siruations, you will learn
some things about yourself that you perhaps
did not know and did not wam to know.
If you do not do every thing possible, if
you do not leave everything you have in that
courtroom, then you will have hard time
facing yourself in the mirror. You will never
ever know what may move one juror ro spare
your cliem's life, or what issue may gain him
relief from a reviewing coure. So you must
do everything you can, for your client, for
the coun, and ultimately, for yourself. In a
time when most people scoff at the word,
that is a path ro honor.
Good luck.
Post Oak Tower
5051 Westheimer, Suite 700
Houston, Texas 77056
OFF: (713) 627-3606
FAX: (713) 627-3644
24hr toll free pager (800) 817-6062
14 DOCKET CALL November / December 1999
Not Guilty Verdicts
Adam Moskowitz - Mi sd emea nor
Assault on a murder charge.
David Wyborny (We mi ssed these in
August) - Assault in CCCl#l , OWl (No
Test) in CCCL# 12, and Terrori sti c Threat
in CCCL#2
Jack Fuerst - Indecent Expos ure and
Trespass ing in CCCL#2
Dave Pendleton -
Distri ct Court
Felony DWI in the
Ri ck Castleberry - Assault in CCCL#8
Danny Easterling - DWl (No Test) in
Gilbert Villareal - Pros tituti o n In
Jim Lavine - Aggravated Assault in 262,,1
Distri ct Court
Phil Baker - Assault in the CCCL#2
Tyronne Moncriffe - Fel on in Possession
ofa Weapon and Possess ion of a Controlled
Substance in 232
Distri ct Court
Vi vian King and Robert A. Jones -
(Vivi an's first federal trial) Conspiracy to
Possess with Intent to Deli ver (5 kilos) ,
directed verdict of not guil ty
Mi c hael Maus - Fa ls e Repo rt In
CCCl#1 2
Richard Moore - Assault in CCCL#13
Mark Bennett - Directed verdi ct in
CCCL#9 (DWI) - H.P.D. Offi cer Lindsey's
weak traffi c stop.
John Armstrong - C lass A T heft In
Don Becker - Theft in CCCL# 15
Jack Carroll - Theft in CCCl#7 and
OWl in CCCL# 1 0
Don Becker - Theft in CCCL#5
Ri chard Moore and Bennie House -
Possession of Marijuana in 339th District
Marc Carter- the one acquittal, of a
Ukraini an sea man, in a drug-smuggling
co ns piracy in volving 4 tons of coca ine
aboard a Panamanian freighter.
Mike DeGeurin-Life sent e nce o n
Fel ony Murder where death penalty sought
in 183
Distri ct Court
Jerry Guerinot and Anthony Osso - Life
sentence on Capital Murder where death
penal ty sought in 208th District Court
Lawrence Newman - On appea l, got
Motion to Revoke Probation reversed and
re ndered in th e 14
Court of Appea ls.
(2 compani on cases out of the 33Th.)
James Sullivan - Moti on to Suppress
g ra nt ed in Possessi o n o f C ontroll ed
Substance case in the 3 15
Distri ct Court
Jonathan J. Paull- Moti on to Suppress
granted in Possess ion of Marijuana case in
the 174
Distri ct Court .
David Bires - Moti o n to Supp ress
grant ed o n Possessio n of a Co ntroll ed
Substance case in the 184
Di stri ct Court .
Randy Schaffer - Moti on to Suppress
gran ted in a Possess ion of a Controll ed
Substance case in the 208
Distri ct Court .
Cl yde Williams - Motion to Suppress
granted in a Possess ion of a Controll ed
Substance Case in the in the 3 15th juvenil e
Adam Moskowitz and Chris Downey -
hung jury in an aggravated Assault in the
Disclaimer Editor's Note
December 1999
The opinions expressed in Docket Call Docket Callnceds more input from you!
articles are those of the individual authors Without new ideas and energy from more:
and do nor necessarily represent the views people. it will get stale and hard to keep
of the HeCLA Board. CAVEAT: Please going. We need help with recruiti ng new
be reminded that the magazine comes inca advertisers. with articles andlor ideas for
existence through the work ofa completely
TheJanuary 14,
articles, and we need to know what YOli want
voluntccr staff. and we ar unable to heck from lIS. Write u . Call u . . lellus what YOll
the accuraL'}'ofciratiom ur legal pClsirions. think!
It is every lawyer's responsi bili ty ro heck
the accuracy of t he arguments and
cirations h e ~ h e makes ro the coun.
topic is tobe
November I December 1999 DOCKET CALL 15
This Month: Engaging In
Organized Criminal Activity
This month's sheep are "Engaging in
Otganized Criminal Activity" cases where
the obj ect of the combination is a single act.
T hese cases have for quite some time been
the darlings of that elite division of our
District Attorney's Office: [que music from
"Dragnet"] The Special Crimes Division.
It's interesting to note the manner in
which fine young lawyers rise through the
ranks of the DA's offi ce. They start out in
misdemeanor court doing their part to keep
our streets free of drunken drivers and
possessors of the devil's weed. Then, as their
skills increase, tney move up the ladder to
felony court where the cases are presumably
more complex and the allegarions more
serious. Fi nally, after having prosecuted
virtually all species of ctime men can
commit, they take that next step and enter
that hall owed ground on rhe ninth floor of
the DA's Office called "Special Crimes"
where their motu has to be, "We don't just
prosecute crime, we create it. "
Against that backdrop I give you this
month's "Sheep in Wolves' Clothes".
t. T'he Statutes and Relevant
Engaging in Organized Ctiminal Activity
really is against the law. TEX. PENAL CODE
ANN. 7 1.02 (Vernon 1997) condemns the
practice. It provides in pertinent part.
(a) A person commits an offense if, with
the iment to establish, maintain, or
participate in a combination or in the profits
of a combination or as a member of a
criminal streer gang, he commits or conspires
to commit one or more of the following:
(I) murder, capital. murder, aggravated
robbery, burglary th efr , aggravated
kidnapping, kidnapping, aggravated assaulr,
aggravated sexual assault, sexual assaulr,
forgery, deadly conduct, assault punishable
as a Class A misdemeanor, burglary of a
motor vehicl e, or unauthorized use of a
moror vehicle;
(2) any gambling offense punishable as a
class A misdemeanor;
(3) promotion of prostitution, aggravated
promotion of prostitution, or compelling
(4) unlawfuJ manufacture, transportation,
repair, or sale of firearms or prohibited
(5) unlawful manufacture, delivery,
dispensation, or distribution of a controlled
substance or dangerous drug, or unlawful
possession of a controlled substance or
dangerous drug through forgery, fraud,
mi srepresentation, or deception;
(6) any unlawful wholesale promotion or
possess ion of any obscene material or
obscene device with the intent to wholesale
promote the same;
(7) any unlawful employment, authorization,
or inducing of a child younger than 17 years
of age in an obscene sexual performance;
(8) any felony offense under Chapter 32,
Penal Code;
(9) any offense under Chapter 36, Penal
(10) any offense under Chapter 34, Penal
Code; or
(11) any offense under 37.11 (a), Penal Code.
The gravamen of the crime is the intent
to participate in a "combination". TEX. PENAL
CODE ANN 71.01 (a) defin es
"combination." It provides in pertinent pan :
(a) Combination means three or more
persons who collaborate in carrying on
criminal activities, although:
(1) participants may not know each others
(2) membership in the combination may
change from time to time; and
(3) participants may stand in a wholesalet-
retailer or other arms length relationship in
illicit distribution operations.
II. SuHiciency of the Indictment
To state an offense under TI'.x. PENAl.
COOl:: ANN. 7 1.02 the indictment must
charge the existence of a combination, set
our the membership of the combination,
charge the objects of the combination and
the overt act your client is alleged ro have
done in furtherance of the combinarion. The
indictment must charge the combination
with the commission of more than one
criminal activity, but not necessarily more
than one criminal offense or else it would
fail to state an offense under this section. In
Nguyen v. State, _ S.W.2d_ 1999 WL
734873 September 22, 1999, the En Banc
unanimous Crim. Apps held:
"[T]he phrase, "collaborate in carrying on
criminal activities cannot be understood to
include an agreement to jointly commit a
single crime; the state must prove more than
that the appellant committed or conspired
to commit one of the enumerated offenses
with two or more people.
"The Court of Appeals said that the
"something more" the state must prove is
"continuity," in other words that Appellant
and two or more people agreed to work
together in a continuing course of criminal
conduct. We agree. " /d. Some indictments
alleging only an agreement ro commit a
single crime will be subject ro a motion to
quash if, after omitting as surplusage all of
the engaging language, the indictment fa.ils
to state any offense. Other indictments will
still sufficiently state commission of the
object offense and will survive a motion to
quash so long as the object offense is itself a
felony. Otherwise the court would lack
original jurisdiction and the motion would
be good.
III. Possible Grounds for
Collateral AHack of Priors
The holding in Nguyen was no novel
interpretation oflaw. Rather, the Crim. Apps
merely read the plain meaning of the statute
and applied it accordingl y. This fact may
bode well for those accused persons who the
state seeks to enhance with a prior engaging
conviction when the prior indictment alleged
as the object of the combination only one
act. Collateral attack via an 11.07 writ
alleging involuntary plea and/or ineffective
assistance may prove to be an effective means
of eliminating the enhancemenr.
IV. No Parties Liability for Overt
Act Element
Also noteworthy in engaging cases is the
requirement that each alleged participant
16 DOCKET CALL November / December 1999
Sheep in
Wolves' Clothes
must himselfhave commined an oven act
in furtherance of tne combination. Ie is not
poss ible co be a pany co the oven act of
another member of the alleged combination.
Accord. McClaren v. State, 1999 WL 649242
(Tex. App.-EI Paso August 26, 1999) 2. The
Coun held ,
We cannot hold that any ovett act by any
member of the criminal combination is
attributable co all its members under the law
of parties. If this were so, it would effectively
eliminate the "overt act" element form the
offense, as any single act by any indi vidual
would suffi ce as the overt acts of all. This is
true in a conspiracy case, T EX. PENAL CODE
ANN. 15.02 (Vernon 1994), but not in an
organized criminal conspiracy prosecut ion.
As the Coun of Criminal Appeals has
A person may be guilty of criminal
conspiracy by doing nothing more than
agreeing co participate in the conspiracy, as
long as another conspiracor commits some
overt act in furth erance of the conspiracy.
But to commit the offense of engaging in
organized criminal acti vity, the actor must
not only agree to participate but must
himself perform some overt act in pursuance
of that agreement.
McClaren, citing Barber v. State, 764
S.W2d 232, 235 (Tex. Crim. App. 1988).
The punishmem for criminal conspiracy,
like the other inchoate offenses, is one degree
lower than the object offense alleged; TEX.
PENAL CODE ANN. 15 .0 2, while the.
punishment for engaging in organized
criminal activity is one degree higher. T EX.
PENAL ComeANN. 7 1.02. Therefore, it is
not surprising that given the choice the state
will pursue prosecution under the latter.
Fortunately, the courts have now given us
cwo new cools co shear this "Sheep in Wolves'
Clothes" ... may they serve you well.
I Author's Note: I'll let you know if it
works. I have several in the works.
2 Republic of Texas case wherein
McClaren was charged with engaging in
organized criminal acti vi ty, the object of
which was a kidnapping.
Next Month: The Phenagren Fizz
(Codeine in Soda Water) ... Felo ny or
Mi sdemeanor?
From th,' Editor:
Wht'n Director Jack Carroll read in the
HOIIJ'tOll Chronicle that Assistant DA
Dc\'on Anderson had won seventy jury
trials without a not guilty verdict, he sent
in a notice to the lasl issue of Docket Call
that he had a not guilry verdict in a trial
with Devon Anderson on a Burglary with
Intent to Commit Aggravated Assault case.
Devon Anderson read this entry and
submitted her "Point" that it was really a
conviction on a lesser included offense of
where the defendant was
sentenced to a year in the county jail and a
$4000 tine. Upon reading Ms. Anderson's
"Point" we now have the "Counterpoint"
from Jack Carroll. We encourage more
Point/Counterpoint issues and hope to
make it a regular feature of Docket Call.
Let us hear from you.
Dear Mr. Carroll,
I'm glad that you were my lawyer, but I
have a question for you: If I was found not
guilty in that case that you tried against
Dl!von Anderson, why did I serve a year in
the county and have to pay a $4000 tine?
Awaiting your reply,
Vincent Marbley
Submitted by D ellon Alldason who
wa11fedto set the ucord straight-- Ron Mock
is thtjint trial nttornry who beat her in felony
Dear Mr. Carroll,
I read the letter I never wrote and must
admit I'm confused. My tr ial wa close to
cwo years ago and my sentence for criminal
trespass has long since passed. I thought
the prosecutor's name was Devon Ward. I
never question your judgment and I thank
God everyday that my mother dlOse you
to be my benefactor and the champion of
my cause.
Ms. Ward's offer was forty for the
charge of burglary with intent to commit
aggravated assault. I had done pen time for
a prior burglary/aggravated assault. I wept
with joy when the jury found me nor guillY
of the burghuy/aggravated assault , bUI
guilty of the lesser offense, criminal
Following your FINE example, I roo
have become a studeIH of the law.
remember at the trial you gave me pearls
of wisdom that I took to heart. "If you
don't know the rules-CHEAT-READ
THE BOOK." I have read Ihe and
case law, (below are the results of my
research.) Everything I have read, excepl
the forged letter, tells me I was found nor
guilty of the higher offense. If I am wrong
please advise.
With great admiration, esteem and
gratitude, I await your reply, lawyer Carroll.
Vince Marbley
If a defendant, prosecuted for an ollcnse
which includes within it the I ser
be convicted of an ofJense lower than that
tor which he is indicted, and a new rrial he
granted him, or the judgement be arrested
for any cause other than the walll of
jurisdiction, the verdict upon the first trial
shall be considered an acquittal of the
higher offense; but he may, upon a second
trial , be wnvicted of the S,lme offense of
which he was before convicted, or any orher
inferior thereto.
State v. Rmrepo, 878 S.W.2d 327, 328
(Tex.App-Waco 1994, writ dism'd). "When
the jury is given the option of convicting
on either a greater or lesser includl!d
offense, a guilty verdict on the lesser
is an implied acquittal of the grearcr
offense. [Tlhe verdict can be treated as
though the jury had returned a wrdict
which expressly read: We find the
defendant not guilty of [the greatl'r ollenseJ
but guilty of[the lesser included offense] ."
Submitted by Jack Carroll ill '(,SpOIl .t to
Devon Anderson's submissioll.
November / December 1999
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