You are on page 1of 24

, , ,

'NAUGHTY' LIST Burns & Associates
ShannonBurns BreePerrin
theCityofHOllston JailaudMllllicipfllCOllrthouse
Specializillgill Trtlffic TicketsamIClass CMi.wlemelI/lIJrs
Servillg1/11 MlluicipalallllJusticeoftflePeaceCOllrts iffHarrisCOllllty
6] I Houston Avenue Fax: 713.223.0131

Winning Worriors
Messoge From the President

Strotegy: Flying vs. Airmonship
tly Joseph iN Varelo

Holloween Fun
Teen Court
Horris County's Emerging Stor
by lOUI'o F I ~ n n STAR Ineern

Sonto Clous vs. The Stote oP Texos
hy Showno Reogir
Ads&Distri bution: Shawna L. Reagin &Christina Appelt
Desi gn &Layout: Limb Design
7026 Old Katy Road, Ste. 350
Publisher: HCCLA
Editorial Staff: ShawnaL. Reagin
Houston, Texas 77024
Distribution 55D copiesperissue.
Forarti cl esand othereditorial contributions,
contactShawnaL. Reaginat713-224-1641
To place an ad, call Shawn a L. Reagin at713-2241641
~ ~ @ I f ~ ~ EDITOR
Another year has passed, in what seems like just seconds, and we are now well into the first decade
of the 21 sr century. But in many ways, plus ca change, plw c' est la meme chose, at least around the
criminal courthouse.
Despite a "reminder" in the form of HCCLA's resolution concerning bond revocations recently
mailed to all felony and county criminal court at law judges, we continue to hear of defendants'
bonds being revoked for inability to hire retained counsel. Some judges persist in denying court-
appointed counsel to people who have made bond, without conducting indigency hearings to
determine whether or not the accused has the financial ability to pay a lawyer. What will it take to
make these judges follow the law>
We have also witnessed a disturbing trend that, while certainly not new, certainly appears to be on
the rise: Judges throwing temper tantrums when juries dare to acquit. Some prosecutors have
always done this and continue to do so, but one would hope that they could lay aside this behavior
when they don judicial robes. There are reports of other judges who, although they manage to
contain themselves when the "not guilty" verdict is returned in open court, refuse to speak to jurors
who have declined to convict. Should judges have such a stake in the outcome of a trial? Is it ethical
to convey to a jury that an acquittal is "wrong" and that only a conviction is satisfactory? The Harris
County ethos holding that all criminally accused persons are guilty and that trials are nothing more
than Potemkin villages must be challenged on a daily basis.
On the national front, our federal government is attempting to prohibit terrorism suspects held in
secret prisons from revealing to their lawyers, or anyone else, the types of torture inflicted to gain
"confessions" that are used to justify continued detention. As Northwestern University lnv professor
Joseph Margulies observed, "Kaika-esque doesn't do it justice. This is 'Alice in Wonderland.'"
Clearly, we constitutional lawyers have plenty to keep us busy, and as is evidenced by this issue's
Winning Warriors, we have a lot of heroes in the war on individual rights. Constant vigilance is
the key.
The Defender wishes all of you Happy Holidays and all the best for a fulfilling and prosperous
Shawna L. Reagin
* The Editor's opinion is purely personal, and in no way reflects the viewpoint or position of the
Harris County Criminal Lawyers' Association.
PauJ Looney and Clay Coru-ad won a Not Guilty in a very hard fought
case in the 184
District Court on an aggregate theft involving over 260
invoices , sales orders and other documents, despite thei r client's signed
"confession." This jury trial was preceded by a motion for leave to file
mandamus against the judge for refusing to compl)' with the severed
co-defendants' agreement on the order of trial , to which the prosecution
conceded after forcing the appeal. Since 1994, PauJ has tried 37 criminal
jury trials and has had only 1 guilty verdict.
Robb Fiekman and Stan Schneider garnered a no-bill from a Brazoria
County grand jury for a client charged with sexual assault, after putting
together a packet that included the complainant' S very revelling
MySpace commentary.
A CCCL #10 jury understood the fallibility of eyewitness testimony
when it handed Russell Webb a quick acquittal on a criminal mi schief
case, despite the fact that the witness claimed to be "100% sure" the
accused was guilty.
The ongoing saga of Tyler Flood's felony evading trial in the 248
District Court was finally resolved with a happy ending when the
State's third attempt resulted in a Not Guilty [the first jury panel was
busted, and then Tyler hung the jury]. The jury acquitted even after
the defense admitted their client evaded arrest, was a convicted felon on
federal probation and had POt in the car - the jury did not believe the
two HPD officers' testimony about probable cause for the stop. Sarah
Wood and Todd Dupont loaned their able assistance to Tyler's superb
In a "must read" published opinion, Troy McKinney reversed a DWl
conviction out of CCCL #1, due to the judge'S numerous improper
comments on the evidence that were reasonably calculated to benefit the
prosecution, in Simon v. Stmc, _ S.W3d _ 2006 WL 2771796 (Tex.
App. -- Houston [14th Dist.] 9/28/06). Error was valiantly prese rved
by Gat-y Trichter, who refi,lsed to bow down to the judge's repea ted
attempts to ride roughshod over the defense. Every lawyer heading into
batrle with a judge known to engage in this conduct needs to read SiN'/on
and be well -prepared to make a good record for appeal.
Troy McKinney and Robb Fickman then teamed up to uke a 17-
minut e Not Guilty on J no-test, no-accident DWl in CCCL #2 that
involved former task force officers R..c. Gonzales and J.P. Miller.
Paul St_ John scored a major win in the 232
District Court when 011
October 4, 2006, he won an acquittal for a habitual offender charged
with sexual s s ~ u l t of a child.
Vivian King hung the jury in a murder trial in early October.
Murder was also the subject when Eric Davis obtained a Not Guilty in
the 209,h District Court.
Despite wbat could have been a coup de grace delivered by the admission
of an extraneous 30-year-old prior sexLTal assault conviction over
strenuous objection, Peter Deuef, Rebecca Phillips and Charles
Thompson achieved victory in the 177
District Court when their
client was acq uitted of the aggravated sexual assau lt of a child. The jury
reportedl y was actually offended by the underhanded tactics employed
by the prosec ution in dredging up the old prior [which it was unable to
prove up as an enhancement paragraph] .
Sharon Levine won a Not Guilty on a sexual assault in the 185
Court; her client faced automatic life if convicted.
In a case with many twists, turns and subplots, Danny Easterling racked
up yet another Not Guilty on an aggravated sexual assault of a child in
thc 184
District Court, cvcn after thc judge permitted a "substitute"
outcry witncss and allowed the entire CAC videotaped imerview to be
admittcd into evidence.
Dick Wheelan won a Not Guilty in a non-death capital.
Chef extmordinaire and a darned good trial lawyer to boot, Todd
Dupont hung up a federal jury on the "fi rearm-in-furrhcrance" count in
a case he tried pro hac vice in the Northern District of Florida, saving his
client a substantial amount of prison time.
Norm Silverman continued his winning streak by obtaining an acquittal
in the 183
District Court for a habitual charged with possession with
intent to deliver 4-200 grams of cocaine.
Jed Silverman saved his client from a DWI conviction in CCCL #7,
despite a .10 blow and being unable to perform the one-leg-stand.
The pressme was on when J.C. Castillo's client rejected a Class C deal
on a felony assault of a public servant in Ft. Bend County, but he carried
the day with a Not Guilty verdicr.
Aftcr the D.A.'s office decided 3 years ago to make his client the
scapegoat for HISD's illegal drop-out reporting scam, Matt Hennessy's
own in-depth investigation fmally convinced the prosecution to dismiss
the charges on the day trial was to begin in State v. Ken Cuadra. John
Parras served as co-counsel.
Tom Radosevich won a Not Guilty on a home invasion robbery in the
337,11 against Precinct 4's finest , then wrangled a 2-year indecency plea
for a habitual client facing trial for aggravated sexual assault of a child in
the 183
District Court.
Good lawyers make good law: Thanks to Windi Akins and Winston
Cochran for persuading the Fourteenth Court of Appeals that a law
enforcement officer's observations of a DWl suspect, dictated on a video,
are inadmissible, in Fischer P. State, _ SW3d _, 2006 WL 3072047
(Tex.App. -- Houston [14
Disr. J October 31, 2006) (designated for
The 290
District Coun of Bexar Coumy has ordered Wi.agim relief for
Ricky Eugene Kerr, due to the efforts of Kathryn Kase, Jim Marcus and
Mia de Saint Victor.
Tucker Graves beat seemingly impossible odds when he engineered
an acquittal for his client charged with aggravated robbery in the 228
District Court, after first convincing the Court to permit the withdrawal
of an earlier guilty plea. [In retaliation, the prosecutor hastened to re-fde
a previously dismissed misdemeanor charge, proving, once again, that hell
hath no fury ... J. Todd Dupont assisted with voir dire.
Two days in a row, virtually on the eve of trial and with the jury in the
hallway in one instance, John Armstrong had a no test, no accident DvVI
dismissed in CCCL #2 and a test, no accident DWl dismi ssed in CCCL
#13 after he filed a motion to suppress .
by Robert Fickman, President
Harris County Criminal Lawyers' Association
$300 million is a lot of money. So maybe, just maybe, we ought to think
about this expenditure .
First of all, why do we need to lock up more people? Are we about to
have a sudden crime wave? No. Maybe this need for more jail space is
necessitated by the need to keep up the local trend of misusing the jail
space we already have. What do I mean by that?
There are two kinds of people in jail: Those that belong there and those
that don' t. I would argue that many of the 9,000 people currently in jail
do not need to be there. Restated, the taxpayers are paying to house a
lot of people the taxpayers should not be paying to house.
Who is in jail> People who are charged and not convicted and people
who have been convicted who are serving a sentence.
There are far too many people in jail who arc charged and not convicted.
There are far too many presumably innocent people in jail with cases
pending. If you really wa nt to free up some jail space give these people
bond . Bond is not supposed to be used as a form of punishment, but
it is. Far too often people arc stuck in jail because they simply cannot
afford bond. If you don't beli eve me, go to any of our fifteen counC)'
courts or our twenty-two district courts on a Monday morning and starr
counting heads of those who didn't make bond. Why are these people
still in jail on Monday, when anybody with any sense and money would
have bonded out? The answer is simple: They arc still in jail because they
are too poor to make bond.
If you cannot afford to make a $500 mi sdemeanor bond by definition
you are poor. So we keep presumabl y innoce nt people in jail in this
county because they arc poor. This is wrong. Supposedly we got rid of
debtors' prison a long time ago. Trudl is, we still have it.
Since poor folks ca nnot afford to make misdemeanor bonds or state jail
bonds, they arc cluttering up the jails. Why then aren't they getting PR
Bonds or Pre-trial Release Bonds > Can anybody answer that > I haven't
heard a good answer ye t, and they are not all homeless.
Let me suggest a two-parr answer: Fi[st, the judges, while well-
intentioned, are sti ll <:Jected by voters who don't know who they are. The
judges worry about the "nightmare case" where they give a guy a Pre-trial
Release Bond and he goes out and kills someone. So what do the judges
do? They do n't grant Pre-trial Release Bonds. It's safer for the judge to
leave the presumably innocent person in jail then to release him on Pre-
trial Release Bond. Whil e it may be politically safer for the judge, it is far
more dangerous to the fundamental tenets of our system for the judge to
keep the presumably innocent locked up for political reasons.
What is the second reason judges don't grant Pre-trial Release: Bonds?
Well , the Pre-tri al Rel ease folks are simply overworked. A long time ago
Pre-trial Release was created, at least in parr, to provide an avenue to allow
judges to release presumably innocent indigents on bond. I remember it
actually happening at the old courthouse. Now, though, the same Pre-
trial service people are bogged down with their new job: Supervi si ng
bond conditions for those people lucky enough to actually make bond.
If you don' t believe me, just go to the twelfth floor and watch .
As the years have worn on, the judges for a number of reasons have
added more and more conditions to even the most mundane bonds. It
has gotten to the point that bond conditions in some courts vi rtually
mirror conditions of probation. Walk into any court and li sten as bond
conditions are set and you will swear the person has just pled guilty and
is being sentenced. Nope
He is just getting bond conditions set. Once
those conditions are set someone has to supervise them. Guess who>
You got it , the good folks ill Pre-trial Services.
So why are our jai ls overcrowded with presumably innocent tolks)
Because, the courtS refuse to utilize Pre-trial Services for its proper
Mass pleas of gUilty.
Whatis the neteffect? Defendantswho are presumably innocentremain
in custody. vVhat happens to all these poor people who are den.ied Pre-
trial Release Bond? How is all this resolvcd for them? Thc answer is
simple and revolting to anysense ofjustice: Mass pleas ofguilty.
Everyone reading this knows what I am talking about. Every Monday
morning the lawyer for the day appears. Heis <lssigned to represent 6-8
people. Hegoes back,says "Hi"toall his spanking newclientsand then
the DistrictAttorney'sofficeextmdsoffers. If"Joe"pleadsguiltyhegets
thirtydays, orifhe wallts to go to trial we can tee it up in sixty to ninety
guilty and getting out in
and they till up our jails.
"joe" takes the thirty. The system is set up to keep poor people
in jail and toencourage pleasofguilty. Ifyou have a choice ofpleading
ten days or pleading not guilty and maybe
gettingoutin ninetydays which choice would YOll take?
Peoplewhoarc presumablyinnocentare keptin jail andtheyplead guilty
It's been our system far too long. A lor of
people will probably notlike my criticism ofthesystem. Undoubtedly,I
am paintingwith a broad stroke. But itis all true.
Let' s take a hard look at our system and institllte some long overdue
changes. Thesolutionsare as evidentas the problems. All we needis the
willingness to be honestwith ourselves and the desire todobetter.
WI;; don'tneed to spend$300 million to build morejails; we need to let
peopleoutonPre-trial Release Bondsandourjail problemwill besolved.
Whileweare atit,thecourtsneed tostopillegallyrevokingbonds. When
clients show up without an attorney that is no basis to revoke bond.
Havingan attorneyis a right, notan obligation ofbond.
In the meantimewe canuse that $300 million to supporteducation and
employmentopportunities in the inner city. We can use that money to
pay for drug rehabilitation and to support drug court. We have enough
people in jail inHarris County.
by Joseph W
The crash of Czar 52 was primarily the result of actions taken by asingularly outstanding nstick and rudder pilot,n
but one who, ironically, practiced incredibly poor airmanship.
Maj, Anthony I Kern, USAf
InJuneof1994aB-52bomberpiloted byLt. Col.Arthur"Bud"Holland
crashed at Fairchild Air Force Base in Washington, Col, HolJand and
threecrewmenwerepracticingmaneuversforan upcomingairshow. The
aircraft began atight turnat250feet ofaltitude,bankedperpendicularto
the ground, stalled and impacted, Although ejection was initiated, none
ofthe crew got out. Amateur video ofthe crash sequence was widely
broadcast on television,I
All lawyers who try cases regularly possess some skills, natural and
acquired, Some talented few do so to an extraordinary degree, But no
matter how skilled one may be at "flying" in the courtroom, judgment
mustbeexercised in theuse oftheseskills. Forexample,someonemay be
a formidable cross-examiner, able to intimidate witnesses into giving up
valuable answers. Armed with that skill, there is temptation to use it on
everywitness, Butthisapproach may backfireifthejurythinks thecross-
examiner is bullying the witness, or showing up a beginning
Militaryaviationaccidentsarenotinvestigated bytheNational prosecutor,orshowingoff smarts, It takesjudgmenttoknow
Transportation SafetyBoard and are not public record,What when and when not to usesuch atalent.
is known about the causes ofthe crash was published by an
Air Force bomber pilot, Maj ,AnthonyT Kern, whowrotea Again, those who have done successful written grand jury
case study ofthe accident
Most ofthis case study focuses presentations in state
court may be tempted to make such
on the multiple failures ofleadership that contributed to the presentations frequently. If it has worked a couple oftimes,
crash, But it develops one concept that is applicable to the whynotdoit every time) Forone thing,such a presentation
trial lawyer: Thedistinction between flying and airmanship, may result in a client being called to testify when it is not
advisable to testif),. Notall defendants are capable ofholding
Investigation ofthe crash showed that Col. Holland had a theirownin thegrandjuryroom,Judgmentmustbeexercised
reputation with his superiors as an outstanding bomber in decidingwhetheragivenclientcan and should testify, For
handler, perhaps the best in the entire B-52 fleet. He was another,itis easy to use up credibility, When the grand jury
thedesignated B-52 pilotat air shows and his responsibilities (and thegrandjuryprosecutor)see the advocate comingwith
included training and standards evaluation, But it was also his stack ofbooklets several times a month, they will ignore
revealed that he had a long history ofviolations of aircraft the one case in which he truly has a chance to influence the
design limits and flying regulations, both at demonstrations outcome.
andonmilitarymissions, Theseviolationsincludedextremely
steep bankand pitch angles ,flying within feet ofthe ground, Most training in the artoftri altactics concerns application of
and otherunauthorized maneuvers,3 skills in tryingacase, Skills mightbe taughtbutthejudgment
Among his peers, it was felt that adisaster was inevitable. Some bomber
crewmen refused to fly with him. There were demands from below that
he be grounded,
His own attitude was one ofsupreme confidence in his abilities . At a
planning meeting two days before the fatal practice, when confronted
abouta plan tofly excessively steep bank angles, his response was to brag
that"hecouldcrank it pretty tight."
Maj, Kern'sstudyrecognized adistinction betweenflying andairmanship,
Flying requires skill, while airmanship requires judgment. Holland may
have been an exceptionally skilled "stick and rudder pilot," perhaps the
best ,buthis poorairmanshipmanifesteditselfi noverconfidence,violations
ofregulations,disobedience oforders,and eventual loss ofthe aircraft.
of howandwhen touse theseskiUs is uptothestudent , Triallawyershave
tolearntopractice "airmanship" as well as "flying."
1 Thecurious can find theclip by doinga Googlevideo search of "B-52
2 "DarkerShades ofBlue: A Case Study ofFailed Leadership," (1995),
Available at http: //www.crm-devel,org/resources/ paper / darkblue/
3 The B-52 is a very large and heavy aircraft, with dimensions slightly
smaller than thoseofthe 747"JumboJet."
4Don'ttry this in Federalcourt. 18USc. 1504,

HCClA hosted its First Annual Halloween Costume Party and BBQ on
Saturday, October 28, at Cahill's on Durham, Todd Dupont and Tucker
Graves labored all day long to present our guests with amagnificent feast
of delicious brisket links, ribs, pork roast and chicken, along with all the
usual side dishes, The Czar dispensed prizes as he saw fit with Best
Costume [Female] going to Jesus Christ Best Costume [Male] to Texas
Death Row / Texas Criminal Justice System and Best Couple's Costume to
Austin Powers and Foxy Brown, who made their grand entrance roaring
up on amotorcycle, Honorable Mentions were awarded to Justice for
Sale [Cheap] and aHarris County Jail inmate who wandered into the
Those of you who missed this party missed a
great time, but we hope to see you next year,
when it will be even bigger and better!
HCClA's Speakers Bureau is aceive ehis year in Housean, especially wieh area eeen coure programs.
The Teen Coure program is avoluneary diversionary program. The youehPul oPPender chorgelj
wieh 0 Closs Cmisdemeanor muse plead guiley or no coneese eo poreicipoee. Ae ehe eeen coure
"eriol", ehe high school seudene aeeorneys (prosecueion &dePense) orgue ehe seneencing phose
aP ehe cose bePore 0 jury oP ehelr peers. The jury decides ehe seneence [usuolly consiseing oP
cornrnuniey service hours, eeen coure jury eerms, ond (iP deemed opproprioee) apology leeCers,
eopic essoys, counseling, ond/or /iPe-skilis closses]. Upon successPul compleeion oP ehe seneencing
eerms, ehe case is dismissed.
Judge Mike Parrott (JP court on Wallisville Road) is currently rebuilding a Teen Coun program.
HCCLA attorney volunteers (Brian Warren, Amber Cox Joachim of Houston Young Lawyers
Association's Teen Court committee, and Wendy M. Milkr) assisted the program in October
with both high school attorney trainings and the organization and performance of a "mock"
teen court trial for the court and current offenders. Teen volunteers from Memorial High
School participating in the mock trial were Catrina Nemeti, Jared Ewing, Ashley Sunderhaft,
Luis Reyna, Stephen Risky, Scott Hyde, Rachel Turner, and Layla Yarjani. The mock trial
performance was an encore for the group of teens. The teens (Jed by Wendy Miller and Amber
Cox Joachim) also performed a mock trial in August of 2006 in Dall as for law students from
across the nation at the Phi Alpha Delta Law Fraternity'S Public Service Center law-related
education workshop.
Thank you to all HCCLA attorney speakers for stepping up in the past few months' Your
volunteer efforcs are helping to increase public awareness ofHCCLA and are deeply appreciated.
Our volunteers answering the caU for local events in May-October of2006 include, in addition
to Brian and 'Wendy: Yolanda Coroy, Tom Berg, Andy Williams , Farrah Martinez, Chris
Samuelson, Steven H. Halpert, JoAnne Musick, Thomas A, Radosevich, Steve Shellist, Colin
B, Amann, Nicole DeBorde, Kelly Case, Arnold Cohn, Roland Moore III, Wayne T Hill , and
Judy Shields,
To volunteer as a speaker in the community or with a Teen Court program on behalfofHCCLA's
Speakers Bureau, please contact Wendy Miller at wmmiller@holl ston ,rr,com, Attorneys si tting
in as judges in teen courts and/or training the teen staff, may earn five hours of CLE self-study
credits, including one hour of ethics ,
-Wendy Miller
by Laura Flynn, STAR INTERN
was born three years ago when the
Success Through Addiction Recovery
drug court program was instituted
in Harris Counry. The goal of the
program is to help criminal defendants
become productive members of sociery
rather than allowing them to remain
incarcerated addicts. On deferred
adjudication, clients participate
in an intensive supervision program and
are provided with various resources,
support, and effective behavioral
tools to help them break the cycle of
addiction . is not a quick fix; for
a minimum of a year, all clients must
attend sessions with the program's local
treatment providers. vVhen appropriate,
clients may be refe rred to a variery
of recovery suppor t services including
transitional housing, GED programs,
job and life-ski lls programs, family
counseli ng, and other related options .
Initially, clients attend court weekJy and
submit to random drug tests. As clients
progress through the program, however,
their program responsibilities dimini sh
and they assume greater individual
responsibility and accountabiliry for
their daily lives. Organized in phases,
the program is structured so that cli ents
who reach graduation are ca pable of
surviving and thriving in the real world.
Graduation, however, is not the end
of a client's relationship with Harris
Counry's drug COurt program. Post-
"There are only two ways out of this program," the judge says.
"One is the way you will see today-completing the program
successfully. The other is through that door." He gestures to the
bailiff and the holdover cell. Standing in front of the imposing
bench in equally imposing black robe, Brock Thomas, Judge of
the 33Bth District court of Harris County, addresses acrowded
courtroom. His arms are crossed; his face and voice are somber.
Given his serious demeanor, it would be easy to miss that this
is a celebratory occaSion, but his audience understands his
admonition. Some individuals smile and nod in agreement; others
repeat the last few words of Thomas' familiar catch phrase.
Today is graduation day for the "clients" of Harris County's STAR
(Success Through Addiction Recovery) drug court program, and
joining these individuals in the audience are friends and family.
But, before the graduates hear all of the laudatory speeches
commending them for their sobriety, their personal growth,
and their transformation into responsible, productive members
of society, Judge Thomas reminds them that one wrong choice
made during aweak moment might unravel months of hard work
and dedication. For an addict, the journey for sobriety is not
easy, and not everyone admitted to STAR completes the program.
These graduates, however, know they have accomplished an
amazing feat and are on the path to reclaim their lives.

Eligibiliry criteri a severely limits the
types of offenders the program accepts,
but the number of individual s eli gible to
parti cipate in greatIy outnumbers
the program's available clien t slots - a
situation that demonstrates the desperate
need to address problems of abuse and
addiction. Potential clients must have
a current felony drug charge pending,
and ei ther a prior drug conviction or
two drug-related arrests. Additionally, a
prospective client may be on probation
or deferred adjudication for a felony
drug charge and be in jeopardy of
being revoked due to substance abuse
issues. Client must complete a pre-
plea orientation to determine readiness
for and commitmel1t to the program.
Cli ents ca nnot have a prior conviction,
deferred adjudication or pending
charge for a violen t crime, a burglary of
a habitation, any case where a firearm
is possessed, used or exhibited, or a
sex offense. Also, clients cannot have
a pending charge for manu fac ture or
del ivery of a cont rolled substance or
for possession of mari huana over five
Before every docket, tIl e )mR drug
court ream revi ews the clients' progress
in the program. The team includes
Harris County district judges, assistant
graduarion, a )mR client must complete 12 momhs of aftercare, after district attorneys, defense attorneys, probation officers, and the glue
which the drug court team will evaluate the cliem's suitability for early that bonds the team together - the drug court coordinator. Program
terminatio n of probation. Manager Mar y Covington is the cohesive clement rhat keeps )mR funded
and filJ1ctioning.
So far, thirry individuals have sLlccessfully completed every element of
the program, but it has been very difficult. Generall y, )mR cli ents abuse In addition to hearing their regular dockers, Harri s Counry District Judges
drugs, but they often have a wide variery of other problems, including Caprice Cosper, Michael Wilkinson, and Brock Thomas volunteer their
serious fami ly, trauma, financial, and legal issues. Altho ugh many clients time once a week to preside over the three drug court dockers. Adopting
are indigent, have littIe or no suppOrt, and have abused substances since the more user-friendly title of "case manager" when rhey joined the drug
their early teens, the program has been marked by consistent, continued court team, probation officers act as the link between drug court clients
success. and the program. Often treatment providers, counselors, and rreatment
assessment coordinators discuss a cli ent's success and options with the
drug court team as well. This group effort to create a unified drug court
that always focuses on client success is unique to a criminal courthouse
and provides the ')JnR clients with the structure and discipline of the drug
court model.
But the drug court team is not comprised of only those that meet at
staffing before each docket. Every criminal judge, district attorney, and
defense lawyer who refers defendants to the drug court is a part of the
process. Without our colleagues evaluating a client's eligibility for drug
court, we would never receive clients into our program. Case managers
screen potential clients on strict criteria to assess suitability for ')JnR, and
sometimes even eligible clients are not accepted. This is due to the limited
space that we have to offer clients in the ,)JnRprogram and the particular
client's willingness to regain a sober life. Our goal is to ensure the success
of the most suitable clients. Any success we have increases our chances to
expanding the program and including more clients on our dockets.
Mondays, Wednesdays, and Thursdays at 3 pm the '):n judges take
the bench of their respective docket and begin by addressing that day's
"problem children." Dming staffing before docket, the team discusses a
particular client' s problems and decides on the appropriate sanction. The
judge relays this decision to the client in open court , in front of every
other member of that docket. It is important that the other clients see
the consequences for poor choices and dishonest behavior. Sanctions also
increase drastically if a client repeats an offense. For example, if a client
misses a drug test for a second time, he / she must do a weekend in Harris
County Jail. If a client misses a group trea tment session several times in a
month, he/she may do more jail therapy, write an essay about timeliness,
attend a Time Management course developed by CSCD, or attend a
relapse prevention group to quash the relapse mode behavior. ')JnR also
offers positive reinforcement if a client does well, including public praise,
sobriety chips, and some times small economic incentives in the form of a
chance to win a donated gift card.
While the ,)JnR formula seems very straight forward, the reality is very
different, often confusing and sometimes zany. Inevitably, the Drug
Court team must allow cli ents to sink or swim at crucial junctions in
their recovery. Sometimes the client will make the wrong choice, but
more often the team hears clients who, when tempted by an "old friend,"
resisted the siren song of drugs and turned their back on adcliction.
While the focus of ,) lnR is recovery, perhaps the most rewarding aspect of
the program is witnessing the positive changes in clients' lives. Cli ents
learn new parenting ski Us, get responsi ble jobs, earn GEDs and reunite
with their families-these arc the real benefits of ,) JnR. The ) mR program
and its team members help make Houston a better, safer community by
providing former addicts with the treatment and tools to function in
home, the work place and society.
Judge Thomas joined the ,)lnR program during the summer of2005, almost
two years after the program began. Once he sat through Judge Cosper's
docket several times, he realized the potential of the drug court
model and embraced her enthusiasm for the program. The judge says he
was drawn to the program because "so much of what we do as judges is
to react to the situations brought before us. Thi s gives me a chance to be
more proactive in attempting to do something positive." With so many
smaller drug cases, it is clear that these clients were addicts, and ,)IlR is
the mOSt effective way to stop the recidivism of low-level drug offenders.
Although "It takes a tremendous amount of work on everybody'S part for
a client to be successful," )!nR's unique integrated effort is a great asset
when dealing with cri minal defendants with addiction problems. While
drug court is not suitable for every defendant, it is the best way for some
defendants to successfully reenter society.
While a common myth is that criminal defendants are in the drug court
program to avoid going to jail, most clients arc sincere in their desire to
escape the control of addiction. Judge Thomas constantly reminds clients
of the three fundamental rules of drug court: show up, be honest, and
tr y hard. If a client cannot follow these rules, "then they have no chance
of success in the program. All three are equally importa'nt and necessary.
I realiy think these rules apply to being successful at anything. In gettin'g
clients to do these things, we are trying to get them out of old habits
and lifestyles that caused them to come to us." If a client can follow
these mles, then he / she wiU achieve sobriety and regain many precious
aspects of a life lost because of drugs. Some clients have recovered their
children from Child Protective Services; they have received appropriate
medIcal care; reentered the work place; and won the respect of others.
"The program is about something bigger than completing a probation,"
smiles Judge Thomas. " It is really about enabling these defendants to
have their lives back and to enable them to be a productive member of
society so that they are not a burden on themselves, their families, and
society as a whole."
In Judge Thomas' words, "The bottom line is that Drug Court offers
a long-term solution instead of a shon-term solution for a long-term
problem." understands that the program is a work in progress. The
drug court team learns from successful and unsllccessful clients alike, and
even from denied referrals. The team constantly improves and refines
cl eme nts of the program to ensure the sllccess of more clients. The
more Sllccess, the more funding 'lJnR eventually receives, which helps
to expand the program to guarantee even more success. ,)TnR invites
everyone who wishes to learn more about the drug court process, making
appropriate referrals, and being a part of a positive force in the criminal
justice system to come to any drug court docket , Mondays , Wednesdays
and Thursdays at 3 pm. Please contact Program Manager Mary
for more information at 713-755-4610 or
UE DEFENDER -.::, 13
Is it Deep Throat? Tropic oP Cancer? Hustler?
The opinion )!Jas delivered per curiam.
Appellant was convicted of capital murder in the 666
District Court of Harris County and was sentenced to death. Appeal to this Court was
automatic. We shall afftrm.
Appellant raises 37 points of error, none of which were meritorious and aJl of which cause us to question the wisdom of mandating automatic
appeal in death penalty cases. However, until we can further manipulate the voxpopuliinto abolishing this mindless exercise [or until our own
lobbying of the legislature proves successful], we shall seize this opportunity to further curtail the rights of the criminally accused in Texas.
In his 12th point of error, Appellant challenges the legal sufficiency of the evidence, so a review of the facts in the light most favorable to the
State is necessary:
On December 25, 2002, complaining witness Grinch 1 was found dead on the floor of his humble mountain cabin overlooking the hamlet of
Whoville. Grinch was last seen in the village, participating in a holiday circle dance on Christmas Eve. State's witnesses testifled that Grinch
had recently experienced a spiritual epiphany that caused him to suddenly befriend the town's inhabitants, with whom he had previously had
somewhat acrimonious relations.
Assistant Medical Examiner Edward Ballsup originally declared death by natural causes, but after being told of suspicious circumstances,
determined the cause of death to be either massive trauma to the jugular vein or blunt trauma to the head. Dr. Ballsup could not rule out
death by poison, large caliber bullet or strangulation.
Whoville police chief Eyall Perjure initially identitied Grinch's roommate, Max, as his primary suspect in the case, implementing the time-
honored investigative maxim of cui bono, i.e., whoever is easiest.
Neighbors stated that the complainant was abusive in his dealings with the four-footed tenant, often whipping him, forcing him to sport
unwieldy reindeer regalia and making him haul cruelly heavy loads ofallegedly purloined merchandise . Further, the injuries to the complainant'S
throat could have been consistent with the roommate's teeth, in Chief Perjure's expert opinion.
Perjure and ten armed deputies visited Max at 2:00 one morning, dragged him from bed and asked him to voluntarily accompany them to the
station, whereupon they obtained a written statement entitled, "Voluntary Statement from a Canine [Not] in CustOdy. " 3 Max averred that he
had left the Whoville festivities in progress and returned to the mountain cabin without Grinch, who had expressed his intention of "getting
to know" Little Cindy Who. He was awakened later in the night by some noise in the main room of the cabin, but believing that Grinch had
"gotten lucky" with Little Cindy, he did not investigate. When Max got up Christmas morning, he found Grinch's body, became frightened
and ran away. According to Max, he worried that a youthful stint at obedience school would cause him to fall under suspicion.
A check of Max's priors revealed he had been adjudicated "vicious" on two previous occasions. Notwithstanding his voluntary, exculpatory
statement, Max was arrested and charged with Grinch's murder.
After a month in jail , Max contacted the District Attorney and advised that he wished to make another statement. With his own lawyer present,
Max provided the information that ultimately led to Appellant's arrest. This second statement claimed that Max did get up to investigate when
he heard the noise; that he saw Grinch and a large man in a red and white suit arguing over whether Grinch would receive gifts or switches;
that a physical struggle ensued, the large man hit Grinch with a cane and vanished up the chimney; and that Max checked Grinch, found him
to be breathing, went to bed to avoid being the target ofGrinch's anger when he awoke, and discovered the dead body the next morning.
Max identified the man in the red and white suit as Appellant, whom he knew from popular depictions, although he stated he had never
personally met him. Several witnesses verified that a person fitting Appe.llant's description was seen in the area on the night of December 24.
Scene photographs revealed the presence of sleigh tracks on the ground ncar the door of the complainant's cabin.
At trial, Max positively identified Appellant as the person he saw hit Grinch, even though he "had changed a lot" since the night of the
incident, and was" trying to confuse [him]" by wearing different clothes. Defense counsel attempted to have the witness review photospreads
containing various different "Santa's Helpers" costumed in red and white, but the State's objection that "he's just trying to mislead the jury"
was properly sustained.
The State also called one of Appellant'S former elves, Dudley Deceit, to testifY that Appellant had bragged to him about killing Grinch. On
cross-examinat.ion, Deceit could not recall exactly when, where or how the admission was made, but remained positive the event had occurred.
He deni ed that he harbored any ill will against Appellant for having fired him for drinking on the job.
Appellant whines in his sixteenth point of error that the trial court erred by refusing to permit defense witness George Bailey to testifY that
Dudley Deceit had previously admitted that he and Max killed Grinch in the course of a robbery. The defense bar continues to insist th:lt a
statement against penal interest, admissible pursuant to Tex.R.Crim.Evid. 803(24), is one that inculpates the declarant, not the defendant.
As we explained in Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999), a statement against interest is only sufficiently reliable ifit shifts
blame from the declarant to the accused; if the guilt of the declarant is inconsistent with that of the accused, the statement is ipso facto too
unreliable to be admissible. Point of error sixteen is overruled.
We find the evidence to overwhelmingly substantiate Appellant'S guilt. The indictment alleged that he committed Grinch's murder in a
manner and means unknown to the Grand Jury, in the course of committing or attempting to commit his kidnapping. Eyewitness testimony,
forensic evidence and Appellant'S own admission of proximity proved the allegations.4
Appellant'S first and second points of error attack the trial court's denial of challenge for cause of two venirepersons who stated they would
not consider any type of evidence to be mitigating, within the context ohhe second special issue. A juror's refusal to consider any or all such
evidence normally proffered as "mitigating" does not supporr a challenge for cause; all the juror must do is convey that s/he can vaguely
comprehend the definition of "mitigation" [although t.his is not strictly necessary] and agree that s/he will "consider the evidence" before
immediately dismissing it in favor of a death sentence. See Heiselbetz v. State, 906 S.W.2d 500 (Tex.Crim.App. 1995).
More importantly, however, this Court has recently decided that the accused has no right to question potential jurors about the actual legal
issues that will arise in the trial, lest he commit them to following the law in the case at bar. Standefer v. State, 59 S.W.3d 177 (Tex.Crim.
App.2001). It is much too confusing, and too prejudicial to the State, to require jurors to apply marginal legal principles like "presumption
of innocence" and "beyond a reasonable doubt" [a phrase we have deemed unworthy even of definition, to avoid having juries hold the State
to an unreasonable standard] to the heinous facts actually proved in a criminal trial S Therefore, Appellant should have been prevented from
even asking the venirepersons if they could consider the mitigation issue. Points of error numbers one and two are overruled.
Appellant complains in his tenth point of error that he was deprived of due process when the prosecutor withheld information that its own
expert concluded the sleigh tracks on the ground could not have been made by Appellant'S sleigh, and that they were instead caused by
the complainant's smaller, homemade sleigh. Appellant contends this was exculpatOry evidence to which he was entitled under Brady v.
Maryland, 373 U.S. 83 (1963).
In his eleventh point of error, Appellant asserts that in view of the withheld evidence, it was prosecutorial misconduct to elicit testimony from
Chief Perjure that, in his opinion, the sleigh tracks were made by Appellant'S sleigh. We will address these two points of error together.
We first question whether Brady was ever properly considered to apply to state court proceedings in Texas, or whether it was jurisprudentially
imposed upon our sovereign state a la Gideon v. Wainwright.
We find nothing in the Texas Constitution that requires the State to cripple
its own ability to prosecute criminals by contemporaneously aiding and abetting the defense. Due process must also guarantee the State a fair
trial,7 and while the U.S. Constitution establishes the minimum standards for fairness, the states are free to impose even higher requirements
pursuant to their own constitutions.
We therefore raise our threshold for due process to embrace the State equally with the accused, and hold that the State is not compelled
to furnish an accused with evidence that contradicts the State's own theory of prosecution, as a matter of constitutional right , and all cases
seeming to hold otherwise are hereby overruled.
Appellant's eleventh point of error is therefore also overruJed, since it is not prosecutOrial misconduct for the State to elect a strategy that best
ensures its success at trial, any more than we could require the accused to present evidence that negated a defense. Further, Appellant could
have found his own expert to testifY against Chief Perjure's conclusions
In his twenty-ninth point of error, Appellant moans that the trial court erred by instructing the jury on a theory of guilt not alleged in the
indictment, to wit: the charge advised the jury that it could convict Appellant of capital murder if it found he intentionally killed Grinch in
the course of committing or attempting to commit burglary of a habitation, yet the indictment alleged kidnapping as the aggravating element.
Sufficiency of the evidence is measured by comparing a hypothetically correct jury charge against the indictment, however necessary to prevent
inflicting an undue burden on the State or providing relief to a defendant. Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997).
Since the State aJleged murder in the course of kidnapping in the indictment, a hypothetically correct charge would have tracked those
allegations. We fail to see the error.
Moreover, the following exchange occurred at trial:
[Defense Counsel}: Your Honor, we object to the instruction on capital murder based on burglary . .. allowing the jury
to convict on a theory not supported by the indictment or the evidence.
[Prosecmor}: Judge, you know the evidence was weak on the kidnapping. We need to give tl1e jury something else to be
sure. Besides, burglary was a reasonable conclusion from the evidence .. went up the chimney and all.
[Court}: Well, you probably should have included burglary as an alternative pleading, but it's not fair to hold you to
that burden now. Defense should have raised a motion to quash if they were concerned about the indictment. Objection
We agree with the learned uial judge. If Appellant waives his right to request specific notice of the charges against him, we cannot penalize
the State for its lack of clairvoyance. An indictment is an instrument to guide the State, since an accused knows more than anyone at trial what
he did to deserve the charges against him. He therefore cannot claim he is harmed when a hypothetically correct charge is measured against a
hypothetically correct indictment, which can only be determined once evidence is heard.
This Court has established that the State is in no way responsible for its pleadings and is no longer jeopardy-bound to prove the case as charged
in the indictment. See Bailey v. State, 87 S.W.3d 122 (Tex.Crim.App. 2002). As long as the defendant is suggested to have probably done
something at some time, any variance between the charging instrument and actual proof is essentially immaterial.
The remaining points of error address the punishment phase of trial, and only one requires any recitation of facts before being overruled:
Appellant'S notion that the State failed to prove beyond a reasonable doubt that he would be a future danger to society.
It is well settled that the facts of the offense itself can support a finding offuture dangerousness. See, e.g. ) Burns v. State, 761 S.W.2d 353 (Tex.
Crim.App. 1988). In the instant case, Grinch was struck down in the prime of his life, victim of a senseless, irrational murder, at a time when
he himself had renounced any youthful rebelliousness and had established himself as a good neighbor and benefactor to the community.
The State's first punishment witness was Rudolph, the Red-Nosed Reindeer, who described a series of hate crimes inflicted upon him by all
the other reindeer, merely because he looked "different." Although Rudolph claimed no actual knowledge that this abuse was sponsored and
sanctioned by Appellant, he speculated that it had to be so, since Appellant was" the Man" and" pretty much ran the \-vhole show."
Rudolph was followed by the heart-rending testimony of the Pigott family, who told of another fateful Christmas Eve when their beloved
Grandma" got runned over by a reindeer." Appellant argues that this evidence was irrelevant, due to a lack of connection with him personally,
and that the prejudicial impact far outweighed any probative value. We disagree. The sleigh track evidence was virtually the same as in the
instant case; also, the Pigott family maintained that they are "convinced" that Appellant was responsible, and we must be guided by the victims'
Precious Polly Pure told about seeing Mommy kissing Appellant underneath the mistletoe, the effect of which was to force her into years
of psychotherapy. This sexual predator aspect of Appellant ' S nature was enhanced by the testimony of numerous young boys and girls who
claimed Appellant held them on his lap while promising to bring them toys, as long as they were" good. "
A parade of witnesses explained how they had been emotionally scarred by Appellant'S refusal to provide them with toys and gi fi:s , due to
alleged" bad" behavior, and his leaving instead switches or coal. These victims suffered lifetimes of low self-esteem that led them into various
criminal activities and dysfunctional relationships.
THE ~ ~ 18
The State's punishment evidence concluded with expert testimony from the Rev. Jerry FalweU, who provided the jury with proof that Appellant
was associated with pagan rituals closely linked to satanism. He further opined that AppeJiant has homosexual tendencies, as indicated by his
possession of several "Tinky-Winky" dolls. The [OHP degrace was Falwell's assertion that AppeUant was a suspected member of both the ACLU
and People for the American Way, had been seen reading the Quran and was, according to his studies, "a man of violence." It is well-settled
that evidence of gang membership and terroristic ties are relevant to a defendant's character and to punishment issues.
There was ample evidence to support the jury's answer to Special Issue Number One.
Appellant's conviction is affirmed.
Per CHriam.
DELIVERED: December 6,2006
Shawn a L. Reagin
1 The Court refuses to adopt one former judge'S anti-victim posturing of not naming the sanctified deceased in our opinion, in deference to
the wishes of Justice for AJ l.
2 Appellant contends in his 3
point of error that the trial court erred by not granting him a continuance when the State indicted his own
expert pathologist on the day testimony was to begin. A careful review of Appellant'S motion reveals that he failed to capitalize the "T" in
Texas, however, and therefore failed to preserve error. The fact that the State has not argued such in its reply brief does not bar this Court
from an efficient and JUSt disposition of the issue, and Appellant'S yd point of error is overruled.
3 In his 24th point of error, Appellant continues to nitpick and complains of the trial court's refusal to allow him to impeach Chi ef Perjure's
denial that Max was ever trul y a suspect by questioning him on the handwritten insertion of the word "Not" on the written statement, and by
further eliciting test imony about the number of times he and his officers have testified that they were out of the "Not in. Custody" forms at the
time a particular statement was taken. We find that whether or not Max was ever a suspect is completely irrelevant to Appellant'S guilt, so the
trial conrt did not err by refusing to permit Appellant to waste time on such a collateral issue; his 24th point of error is overruled.
We further hold , in a matter of first impression not raised by ei ther party, tha t the writing of the word "Voluntary" at the top of a written.
statement taken by any law enforcement officer will be dispositive on the issue of whether or not said statement was voluntarily obtained,
pursuant to Art. I , Sec. 10, of the Texas Constitution, and all holdings to the contrary are hereby expressly overruled.
4 Appellant contends the evidence was insufficient, indeed "non-existent," to prove t he kidnapping element. However, Grinch was last seen
in Whoville, dancing and wooing, and was found dead in his cabin. The jury could have reasonably concluded that Appellant abducted the
complainant and forced him to leave the parry.
5 For example, once the State has ascertained that a potential juror coul.d "consider" probation in the appropriate tear-jerking euthanasia case,
to permit the defense to unfaidy confront the juror with the unconscionabl e demand that s/he be able to "consider" probation for a bestial
baby-killer would completely warp the intentions of our Founding Fathers, who obviously designed the Constitution solely to benefit the
actually innocent.
6 Althoughwe believe the timeis ripe torevisit theconceptthatappointed counsel for theindigentis constitutionally required,we mustrefrain
from doingsoin theinstantcase,sinceAppellant'S tri alcounsel was retained. However,weinvite theState[0 raise theissue as soonas possible,
perhapsvia a Motion for Rehearingon aPDRdenied at least twO years ago.
7 Collier v. Poe, 732 S.W.2d 332 (Tex,Crim.App, 1987) is now expressly overruled, having been tacitly overruled on numerous recent
8 Although this Courtis cognizantofthewidely-reponed dismayevidenced by even the UnitedStatesSupremeCourt'sHon.AntoninScalia
during oral argument in Banks v. Dretke, 540 U,S, 668, 124 S.Ct, 1256, 157 L.Ed,2d 1166 (2004), concerning alleged blatant Brady
violations by ourown Great State, and the uni versa l opprobrium following said reportage, we stand by our holdings in that case and this
9 Appellant'S contention in pointoferrornumberfifteen that hewas harmed by theState'srefusal toallow his experttoinspect said evidence
is completel ywithoutmeritandis overruled.
An Alcohol Specific Ignition Interlock Provider
John Bums,President Laura O'Brien,PublicRelations
'* Mostaccurate and reliable ignition interlockavailable
*' Patented fuel cell eliminates false readings
'* Easy to read instructIOns
'* Convenientschedulingfor installation and recalibration
'* Locallyowned and operated
;:k Superiorqualityat a reasonable rate
RequestEZInterlockthrough CourtServices, CLOor Coordinator.
Freeinstallation with yourbusinesscard.
"Assl/ring l/ Designated Dril'er"
-+ Promotesaproductive exchange of ideasand encourages
bettercommunicationwith prosecutorsand thejudiciary.
-+ Provides continuing legal education programs for improving
advocacyskillsand knowledge.
-+ Promotesajustapplicationofthe court-appointed lawyer
system forindigentpersons chargedwith criminal offenses.
-+ Filesamicus curiae briefsinsupportoffreedom and
Firm Name:
Date admittedtobar:
Law school:
Professional organizationsin which you arc amemberin good standing:
o Student($25 annual tce)
Expected graduationdate: ____
o Newly licensed (firstyear) attorney ($75)
o Regularmembership ($150)
Si!planl[C ofapplicant;
I,amemberingoodstandingofHCCLA, believe thi sapplicant
to be a person ofprofessional competency, integrity and good
moralcharacter.Theapplicantisactively engaged in thedefense
ofcriminal cases.
Signature ofmember:
P.O.BOX22773,HOllston,Texas 77027
HCCLAis compilingadatabase
of experts'testimony, CVs
andtestimonyof other
CALLNICOLEAT 713-526-6300
PERMIT NO. 11500

You might also like