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September 1986 DOCI(ET CALL A MONTHLY PUBLICATION Of HARRIS COUNTY CRIMINAL "VERITA5)) LAWYERS ASSOCIATION.

September

1986

DOCI(ET CALL

A MONTHLY

September 1986 DOCI(ET CALL A MONTHLY PUBLICATION Of HARRIS COUNTY CRIMINAL "VERITA5)) LAWYERS ASSOCIATION.

PUBLICATION

Of

HARRIS

COUNTY

CRIMINAL

"VERITA5))

LAWYERS

ASSOCIATION.

September 1986 DOCI(ET CALL A MONTHLY PUBLICATION Of HARRIS COUNTY CRIMINAL "VERITA5)) LAWYERS ASSOCIATION.
September 1986 DOCI(ET CALL A MONTHLY PUBLICATION Of HARRIS COUNTY CRIMINAL "VERITA5)) LAWYERS ASSOCIATION.
(ditor
(ditor

A~le71 C.

IsbeU

Production

DOCKET CALL Is published monthly by the Harris County Criminal Lawyers

Asso~tatlon, a non-profit

tax exempt professional

Asso~l.tlon of ~rlmlnal

defense lawyers. ADVERTISING RATES:

Full Page •••••••••. $200.

i Page

100.

t P.ge •••••••••••••

50.

DISTRIBUTION: 500 ~oples

per month.

All artJ~J.s

and other editorIal ~on­ trlbutlons should be sent to HCCLA, P.O. Box 22773. Houston 77027 or brought

to the Ass~Jatlon offl~e

lo~.ted at 705 Haln St •• Suite 400, Houston. Texes. TELEPHONE: (713)227-2404. DEADLINE FOR MATERIAL TO BE PUBLISHED IN OCTOBER IS SEPTEMBER 30, 1986.

Hoard of Directors

1986-87

Preli'e.t

candel.ario El.izondo

"'sid••t-[Im

AZZen C.

IsbeZZ

Vice·PHside.t

Fel.ix Cantu

Secreta"

G.

Mac Seerest

THIS.,er

Mary Moore

Claair.a.

Randy MeDonal.d

Roger Bridgwat4r

WaUer Boyd

Mary E.

Conn

Benjamin Durant

Miohae~ Essrnyel'

"an WoodJ.Ja;rd Fo:J:

Ruben Gue1'Z"i!l1'O

"im La!}ine

Harry Loftus, "1.'. Ga:r>1.and McInnis

Dal)id Mitcham

Will. Outl,Q1J

Robert Pel,ton

Richard Trevathan

Gary Trichter

Kristine C.

Wo'U1y

Septemher 1986

FROM THE PRESIDENT'S DESK

CONT£NTS

BY

LETTERS •

CANDELARIO ELIZONDO •

•••

•••

,

• , • , •• , , .••••. , •• ,

•••

•••

3-4

5

HEARSAY BY ALLEN C. ISBELL,

•••

,

6

ON GETTING CLIENTS

BY JIM

SKELTON

I

•••••••••••••••••••

BECOMING THE TRUSTED LAWYER

BY ELIZABETH B.

KNIGHT

•••••••••

7-8

9

SIGNIFICANT DECISIONS BY HENRY L. BURKHOLDER III & CATHERINE GREENE BURNETT •••••. SD 1-13 •••

SD14-16

MEMBERSHIP DIRECTORy .••

•••

INFORMATION ON GRAND JURIES BY RONN I E HARR I SON CRIME CONTROL BAIL AGENT/ JAIL REDUCTION PROGRAM

• ,

,

• , , • , • • ••

12

BY GERALD

MONKS,.". I , , ••••

,

••••

,

,

••

13

THE CHAIRMAN SPEAKS BY RANDY MC DONALD"

•••

,

"

I

••

16

UARRI8 COUNTY CRIMINAL LAWY£RS ASSOCIATION

Past Presidents 1971-1985

J.

Anthony Fz>i:Z.ou.:c

1972-1973

Stuart Kinard

1973-1974

George Luquette

1974-1975

Marvin O.

Teague

1975-1976

Diok DeGue1'in

1976-1977

W.B.

"Bennis" House~ Jr.

1977-1978

David Bires

1978-1979

Woody Densen

1979-1980

will Gray

1980-1981

EilMJard Mallett

1981-1982

Carolyn Ga1'aia

1982-1983

Jaak B.

Zimmermann

1983-1984

CZyde wil Harne

1984-1985

Robert PeZton

1985-1986

From the President's Desk

By candeZario EZizondo

Our new Administration officially began July II, 1986. The monthly Directors meeting was held and several issues were discu­ ssed. One of these issues was Impact Courts. Impact Court is another name for Annex Court. Our Board voted to study whether we could offer any input concerning Impact Courts. The Board of Directors voted unanimously to issue a statement that we are strongly against Impact Courts, as they existed in the past. Impact or Annex Courts have, in the past, tried the oldest jail cases on one particular Court's docket. The Judges hearing these lawsuits are retired Judges (any person who was a Judge four or more years) from any county in Texas. Complaints made against Annex Courts in the past, were that the Defendant was deprived of

due

the citizens of Harris County, Texas) were an extension of the

Prosecution. We were advised that Harris County will have Annex

the only issue is do we as an

organization want to condemn them (and hope Commissioner's Court will not fund them), or do we want to have some input on the guidelines creating Impact Courts, i.e. defendant being allowed

peremptory strikes on a Visiting Judge. It appears as if we will have at least one impact court that will cease to exist March 31,

1986. At that time Commissioners Court will study the proposal

and see if it in fact is making an "Impact" on the Harris County Jail.

Another issue discussed at the meeting was the Fee Schedule for Court Appointed Lawyers. As you know the Board of Judges

passed mandatory guidelines for fees to be paid Court Appointed Lawyers. There have been many complaints that the fees paid under the present schedule are too low, when, of course, the fees paid to Fulbright & Jaworski, etc. for doing toll road work are

process of law and that Judges (who are not accountable to

Courts one way or the other,

$150.00+

an hour. However, we are threatened with a Public

Defender System since fees paid to Court Appointed Lawyers in 1985 totalled nine million dollars (the D.A.'s annual budget is twelve million dollars). Some Judges say we can have a Public Defender System for less than nine million dollars. Saving Harris County money is the justification for the low trial and appellate fees paid to Court Appointed counsel. One must keep in mind other factors in evaluating mandatory fees - a Public Defen­ der System could not possibly handle all indigent cases. Co­ defendants and capital murder cases would require Court Appoin­ ted counsel. The same would apply in conflict of interest pro­ blems, such as Co-defendants. Also the cost of office space to house a Public Defender System must be evaluated and studied. Only after studying all the pros and cons of the present system of Appointing Lawyers compared with the feasibility of a Public Defender System can a true and correct evaluation be conducted.

Fee

Schedule. Please let me know how you feel about either of these

There

are

many

arguments

pro

and

con Annex

Court

and

the

two

(2)

proposals.

QUERY

Ostensibly

the

reasons

for

the mandatory

 

fee

schedule

is

to

save

money

for

the citizens

of

Harris

County

-

How much

will

an

Impact Court

System cost

the citizen

3

of

Harris

County?

committee chairperson to

the various standing committees of Harris County Criminal Lawyers

Association,

At the

last meeting

they are:

I

also assigned

A.

Audit

& Budget

G.

Luncheon

 

Chairperson

Chairperson

Mary Conn

Ben

Durant

H.

Membership

B.

CLE

Chairperson Mike Essmyer

Ken

Sparks,

Chairperson

Walter

Boyd

 

Mac

Secrest

Rick

Trevathan

I.

Public

Relations

& Speakers

Mike Charlton

C. Judicial Liason Rick Trevathan,

Chairperson

Garland McGinnis Harry Loftus

BQs~jQg~~ater, Chairperson

Dav id

Harry Loftus

Mitcham

J. public Responsibility -

Jim Lsvine,

Chairperson

Mac

Secrest

Amicus

D. Law Enforcement Liason Chairperson

Dav id

Mitcham

 

Kristine Woldy Harry Burkholder

Ben Durant

K.

Newsletter & Pub. Editor Allen Isbell, Editor

E. Lawyer

Referral

Robert

Pelton,

General Manager

Mike

Essmyer,

Chairperson

Garland McGinnis

Mary Conn Garland McGinnis

Gary Trichter

Harry Burkholder Cathy Burnett Gary Trichter

walter M.

Boyd

F. Legislative

Carolyn Garcia

Fox,

Chairperson

Will Outlaw

L. Br ief

Bank

 

Kristine Woldy

Mike Charlton

 

Chairperson

Jim Dougherty

 

Jan

Fox

If

any of

you

want

to

participate

in

any of

the

committees

please feel

free

to contact the chairperson,

I

am sure

that

he

or

she will

appreciate your

help.

 

I

would

also

like to

inform you

an excellent

DWI

Seminar in

July.

It was

a

record

that we had turnout,

over

150

Lawyers

attended.

It's good to know that our organization has that many

Lawyers who want to

better themselves.

150 Lawyers attended. It's good to know that our organization has that many Lawyers who want

4

Letters

Dear

Editor:

"Impact

Courts" would not be of any great benefit in reducing the overcrowded jail population in Harris County. In your editorial, you stated

that "if an Impact Court tr ies two cases a week, the jail population may be reduced by one hundred people over a year's time". That is simply not correct because the availability of a jury trial to litigants causes a substantial number of cases to plead-out or be dismissed.

a

Visiting State District Judge, I was assigned

to one of the Old annex courts for approx­ imately six months. I also had the opportunity to preside over most of the other cr iminal district courts in Harris County, and had the exper ience of dealing with each court's dockect. Because of the availability of the annex courts to hear jury trials, a large number of cases were disposed of by the regular

district courts because the annex courts were available for assignment of cases to trial. The same thing is true on the civil docket in Harris County. Most civil cases are not settled until they are set for trial. Because of the tremendous volume of cases each district court in Harris county must handle, district judges probably spend more time dealing with

their dockets and motion hearings than they do trying jury tr ials. In my opinion, when new

of

our

Harris

Administrative Judge, should create some trial

I

disagree

with

your

position

that

Dur ing

part

of

the

time

I

served

as

courts are created, the district

County,

under

the

judges

of

leadership

courts

that would be set-up solely

to hear

jury

trials.

Again,

its

the

availability

of

a

jury

trial setting that has the greatest "impact" on moving cases, rather than just looking at the

number

of

jury trials

that a court hears.

Van

Stovall

Dear

Editor:

Please note the Professional Bail Agents oppose the impact courts as we have opposed the public defender system and appointed magistrate courts. We oppose. all ineffective criminal

justice systems that are detrimental to the public interest. Enclosed is a copy of the jail reduction plan which we have proposed, which I believe should be endorsed enthusiastically by your association and taxpayers' organizations. Our .7% fugitive rate will make it work. It is an altruistic attempt on our part that offers

little chance of financial gain. This plan will

reduce the jail population by 500, with a savings of $6 million per year to the county. Empirical research shows only 1,843 people are

in jail who can be bonded out, not 2,900 as indicated by the county computer. 1,100 are on bonds from $2,000 to $29,000. These could be reduced and controlled properly by our people.

If the deferred payment of fine appearance

bond was used, attorneys could get their fees and the defendant could more easily pay the fine. Please recognize our plan is designed to guarantee no one is in jail over 24 hours on a fine only. The use of parole bonds and probation

bonds could further reduce jail population and cost to the taxpayer.

I have supported your organization as

evidenced by my two sons' membership, and one

just

to

join

shortly.

My

suppport

has

not

been

rhetoric.

P.

Gerald

Professional Bail Agents of

You

Monks

can depend

upon

me.

Houston

LBt'S HBar FromYou!

We want

to hear from you!

Please

send us

ing

defense practioner and please

know changes

We welcome

your

ideas or comments regard­

interest to the criminal

issues of

let

us

in

address and telephone. participationl

your

5

Uearsay

By Allen C.

Isbell

1986

Advanced Criminal Law Seminar included, Edward Hallet (Course Director), Catherine G. Burnett (Enhancements), Gary Trichter (D.W.I.), David Bires (Child Abuse), and Jack Zimmermann

(Juvenile Law). Jay Burnett was a worthy substitute for Jan Fox. Her paper is excellent; maybe next year, Jan's trial schedule will allow her to present the paper personally. Further evidence that HCCLA has the most outstanding and knowledgeable criminal defense lawyers in the entire state. Membership in HCCLA gives a lawyer the opportunity to know and learn from these people. A few (very few) of the local criminal judges were seen attending the Advanced Criminal Law Seminao contrast that with the Family Courts where almost every judge (if not everyone) attended the Advanced Family Law Seminar. With this issue, a new regular column will appear in Docket Call written by Randall A.

McDonald, Chairman of the Board of Directors. Randy and I were co-counsel for six weeks (you get to know another lawyer pretty well in that time) . It was a real pleasure, and I look forward to his monthly musings. His wife, Jill,

is doing a credible job refining his personality, but Prez Candy says she still has

her work cut out for her •••. Also, Mary Conn is starting a new feature for Docket Call. She will be spotlighting a lawyer whose result during the month is truly outstanding. Contact

HCCLA members featured

at

the

her with your nominations. State Representative and HCCLA member Debra Danburg does not keep her bi rthdays a

her annual birthday party/cam(?aign

fundraiser is September 25, 1986. For more information, call Barbara Parrott 528-6719. The

expected crowd can best be described as eclectic!

Bob Wicoff got a reversal out of the 1st of Appeals ••• Mike Charlton and Charles F.

Court

Baird got another one reversed out of the 14th Court of Appeals. Dayna did not even help Charles on this onel

secret

According to Houston Post, Randy McDonald has attained a high level of competence as a traffic ticket specialist. Congratulations. Big deal planned for Judge Bill Ragan at the Cattle Guard, (2800 Miliam) Saturday,

October 4th from 6:00 P.M. Music by Texas Throw Down Band. Everyone invited. Admission free

refused).

Walter Boyd has been qui te ill. Hearsay hopes he gets better soon, so it can report his feats and foibles. It is not right to poke fun at an ill person. Get well soon, Walter.

(but

donations

not

F~­ fErn
F~­
fErn

U IF YOUR CHECK IS IN THE MAIL~ PLEASE DISREGARD THIS NOTICE

II

6

ON 6ETTINC CLIENTS

By Jim Skelton

Years

was

ago

famous

there was

for

a

having

cowboy

a

movie

star

accent

Brooklyn

named

and

Lash

using

a

LaRue.

He

bullwhit

against

the

bad

guys.

When

people

began

to

develop

better

taste,

Lash LaRue went

by

the

wayside

or

at

least his movies

went by

the

wayside.

LaRue

also

developed

the

love

of

booze

and

to

support

his

habit he hit

the

road,

going

from

one

small

town

to

the

other

giving

demonstrations

 

with

his

trusty

bullwhip.

 

Lash

LaRue

 

came

to

this

small

town

in West Texas

to

do

his

show.

It was in an old movie theater.

LaRue

got

up

on

the

stage

with

the

help

of

a

fifth

and

put on his

show.

The

power

of

the

bottle,

however,

was

greater

than

his

aim

and

he

ended

up

tearing

a

big

slash

in

the

movie

screen.

The

enraged

manager

demanded

that LaRue pay for

the

damage

and

LaRue's

response

was

classic:

"I've got the gun and

live got

the

whip

and

I

aint

paying. 1I

Itls hard to beat that sort of

logic.

A

criminal

lawyer

can

be

just

that

independent

if

he

has

got

the clients

and

the

ability

to

try

cases.

In

reality,

having

the

legal

you

clients

is

the most

but you can't

injury

important

buy

law.

talent

practice

personal

part because you can

buy

clients,

The

PI

unless,

lawyers

of

have

course,

been

buying

clients

for

years

here

in Houston.

Their

system of

runners

is

so vast

that

their

runners,

a/k/a

investigators,

cause

traffic

 

jams

at

car wrecks.

But

that's

another

story.

This

story

is

a

continuation

of-

the

quest

for

clients.

A

search for

the

unholy

grail.

One

thing

that we shoUld all

remember.

People form imediate

and

quick

impressions

that

often

last a

lifetime.

It's

not

that

people

are

that

perceptive,

it's

just

that

their

attention

span

is

very

short

unless

it

involves

the

"s"

games

of

sex

and

sports.

People

also

have

images

and

preconcieved

notions

of

certain

things.

Think

of

a

California

girl

and

what

does

your

mind's

eye

see?

It

certainly

curlers

isnlt a fat overweight woman with her hair

aisle

pushing

a

shopping

cart

down

in

with a

up

portable

TV set

on,

watching

the

soaps.

No.

an It is usually of

a

beach with

 

a

healthy

blond

splashing

through

the

surf

showing

a

row of

perfect

teeth.

When

people

think

of

judges,

they

think of white hair

and

black

robes

and

have

visions

of

wise

old

men

taking

notes

and

listening very

carefully

to

every word

a

witness

has

to

say.

This

just

goes

to

show

you

these visual

Think of

criminal trial

how

dumb most

ideas

lawyers

people

of

for

the

are,

but

none-the-Iess,

are

or ought

better

yet,

see? What

they

to

be.

think

image

have

of

forms

way

minute.

things

a

and what

Or

dO you

lawyers

in

your mind?

Now

go

look

in

a

mirror

and

what

do

you

see?

Do

you

look

like

a

criminal

trial

lawyer?

Remember,

this

is

what

your

client

sees when he

 

first

meets

you.

If

you

don't

look and

dress

like

a

lawyer,

then

you're

simply making

life

7

much more difficult for yourself and your business will sUffer for it.

Let's

start with women.

I

agreed

to

teach

a

course

in

law

school

because

I

was

convinced

that

they

had

a

"butch"

course

for

female

law

students.

My

plan

was

to

find

the

instructor

and

knock

her

in

the

head.

I

figured

that

she

wouldn't

be

too

hard

to

find

either,

all

I

had

to

do

was

look

for

the

woman

with

the

latest

in

salvation

army

fashions,

no

makeup,

sawed-off

hair,

a

shape

resembling

a

wet

bean

bag,

clomping

around

in

boat-like

divises

on

her

feet

that

looked

be

to

like

poorly

designed

leather

tennis

shoes.

I

careful when

I

approached

her

because

I

knew

planned

she

was

probably

over

here

from West

Germany

on

a

track

scolarship

or

else

retired

from

HPD.

Such

a

dainty

thing

was

probably

capable

of woman-handling

a

crazed

gorilla

and

I

knew

that

I

would

be

no

match.

 
 

I

have

seen

a

lot

of

her

clones.

Most

I never found her but of them, thankfully,

work

for

the

State

and

very

few

of

them

have made it

in

private

practice.

The

reason

is

simple.

A

person who looks like

an

under

nourished

Walter

Boyd

in

drag

is not going to attrack and keep clients.

People

wont

rent

wrecked cars

and

they

wont

hire

wrecked

looking

lawyers.

People identify with their

lawyers,

they

notice

how

they

look, they

notice

how

other

lawyers

treat

them,

they notice

how they do at docket

call,

they

notice

all

of

these

things

and they feel

good

or

bad

about

you

in

the

way

you

come

across

to

them

and

others.

 

Dress

and

appearance

is

very

important

and

so

is

time.

Lawyers

sometimes

have

the

habit

of

being

in

the wrong time

zone.

to

They

are

people

NASA

on it is 0900 hours,

never

time.

To

many

to

people

judges,

it

the

is

big

9:00

hand

A.M.,

is

on

12

and

the

little

hand

is

on

9,

to

lawyers

it

is

Friday.

Don't

leave

clients

stranded

at

docket

call

not

knowing

where

you

are

or when you will

be

back.

Don't

have

clients

wandering

around

the

Court

House

lOOking

for

 

the memorial

notice

announcing

your

unexplained

disapperance.

more

than

one

court

to

attend,

or

another

place

If you have you have to

be,

tell

them

so

they

will

know what

to

expect.

 

Take

time

to

explain

the

Court

House

procedure

to

all

 

your

clients.

Give

them

a

little

run

down

 

on

how

the

system

works,

what

a

PIA hearing

means,

what

a

re-set

means,

what

docket

call

means.

A

small

five

minute

explanation

is

a

great

tool

for

making

and

keeping

a

satisfied

customer.

To

often

we

forget

that

this

is

our

strange

little

world,

to

our

clients

it

is

a

strange

and

foreign

land

and

we

 

should

help

them

feel

more

at

ease

by

telling

them

what

is

going

on

and

what

to

expect.

I

remember

once

that

Robert

Pelton

and

I

were

picking

a

jury

in

a

capital

case

in

Woody

Densen's

Court.

We

had

gone

through several

weeks

of

jury

selection

with

Sid

Crowley

working

for

the

State

and

we

all

got

to

talking

about

the

horrible

impression

that

we

were

leaving

with

 

the

prospective

jurors.

We'd

bring

these

 

stangers

one

by

one

into

a

small

room with

no

windows,

they

would

have

to

get

up

on

the

stand

a

face

a

row

of

lawyers

and

a

stack

of

legal

pads.

Judge

Densen

would

start

them

off

by

talking

about

the

death penalty

and

using

such

phrases

as

"pulling

the

plug

on

a

loving

husband

or

wife."

Sid

would

follow

up

by

examples

8

of horrible

people

committing

mass

murders,

kiLling

babies,

accidently

shooting

people

off

the

roofs

of

stores

during

robberies

to

see

if they could consider the

death

penalty.

Then

we

would

corne

along

and

throw

in

more

gore

about

candy-cane

killers

and

examples

of

robbers

who

made

their

victims

drink

liquid

drano

while

shoving

wooden

pencils

into

their

ears

to

see

if

this

particular

juror

could

kill

the

person

sitting

next

to

us.

I'm

sure

 

people

 

left

that

small

windowless

room

full

of

death

and

destruction

wondering

if

perhaps

evolution

might

have

gone

too

far.

To

us

this

was

everyday

stuff,

but

to

their

world

of

civic

clubs

and

car

pools

it

was

a

total

shock.

Very

often

I

think

that

we

may

corne

across

to

our

clients

in much the

same

manner.

They

are

paying

us

to

guide

them

through

our

strange

and

and be more sensitive, we could make this trip less tramatic

and

time

fasinating

is

so

doing

little world and if we would take

keep clients

who

will

call

again .

more

, FIRST COURT OF APP(ALS By Henry n. Bu~khotae~, III June 4, 1986 to August

,

FIRST COURT OF APP(ALS

By Henry n.

Bu~khotae~, III

June 4, 1986 to August 13, 1986.

Gelabert v. State, No. 01-84-617-Cr, Hoyt, J.

OPEN QUESTION ON WHETHER STANDBY COUNSEL MUST BE PROVIDED TO INDIGENT ON PRO SE APPEAL WHEN REQUESTED.

In Faretta v. California, 422 U.S. 806 (1975) the Supreme Court held that a trial court may appoint "standby" counsel to assist a pro se defendant at trial. Appellant in this case requested standby counsel for her pro se appeal. The Court of Appeals rejected the appellant I s request, but considered both the appellanat's pro se brief, and the brief by appointed counsel. The Court effectively granted the appellant's request, but expressly held that "such action by this Court should not be construed as to suggest that an appellant is constitutionally entitled to hybrid representation or standby counsel."

Johnson v. State, No. 01-85-655-Cr, Dunn, J.

DEADLY WEAPON WHEN JURY

DETERMINES

Fann

Answer: If jury did not make the finding,

WHO MAKES THE AFFIR~1ATIVE

GUILT,

AND

JUDGE

FINDING

OF

PUNISHMENT?

the

judge

may.

See

!.:

State,

702

S.W.2d

602

(Tex.

Crim.

App.

1985).

Latson v. State, No. 01-85-812-Cr, Duggan, J.

YOU MUST REQUEST A CHARGE ON IDEM SONENS IN ORDER TO PRESERVE THE VARIANCE ON APPEAL.

Defendant is charged with robbery. Indictment names complainant as Tai Thanh Nuynh. At trial, complainant testifies that his name is Tai Thanh Huynh. Basic law: (1) the State must prove that the person named in the indictment was the person robbed and (2) the variance between the person alleged and the victim proven at trial renders the evidence insufficient to support the conviction. However, because the English language is so imprecise as to the sound of names, the law of idem sonans provides that where the "attentive ear" cannot distinquish the name as alleged in the indictment with the name of the victim testifying at trial, then there is no variance.

Here, the Court of Appeals holds that where the name alleged in the indictment sounds very similar to the name of the complainant testifying a trial, a jury charge on the law of idem sonans must be requested at trial or the issue of variance will not be considered on appeal. See ~arin ~ State, 541 S.W.2d 605 (Tex. Crim. App. 1970).

September 19S6/Docket Call SDl

Topkins v. State, No. 01-85-634-Cr, Cohen, J.

CANNOT JOIN ROBBERY AND AGGRAVATED ROBBERY UNDER THE SAME CRIMINAL EPISODE JOINDER PROVISION.

TPC 3.01 provides that separate offenses may be joined in a single indictment, if the offenfses arise out of the repeat commission of anyone property offense listed in the penal code. I n this case,---"thecourt of Appeals found that robbery and aggravated robbery were two different property crimes. Therefore the joinder into a single indictment was improper.

In this case, the appellant was convicted for both robbery and aggravated robbery, each against a different victim. The trial

court entered two

paragraphs

separate

single

judgments,

one for each of the two

in

the

indictmtent.

Now

State,

686 S.W.2d 617 (Tex. Crim. App. 1985) to provide-the following

v.

for

the

relief:

935

The

(Tex.

Court

Crim.

of

App.

Appeals

1985)

construes

and

Ex

Drake

686

S.W.2d

parte

Sille~

remedies:

I f

the

two

mis joinded

offenses

arise

out

of

the

same

transaction,

then

the

misjoinder

may

be

objected

to

for

the

first

time

on

appeal,

or

post

conviction

writ.

If

the

two

misjoinded offenses occurred in separate transactions, then the

failure to object to the misjoinder at trial (by motion to quash,

or motion to elect error.

Here, appellant objects to the misjoinder on appeal. The Court finds misjoinder, since the offenses occurred during the same transaction. The relief granted was to reverse and dismiss the conviction on the second paragraph.

Casares

YOU

NOT

WOULD

the

at

anytime

before

jury

charge)

waives

v.

State,

IN

No.

THE

BEFORE

01-85-829-Cr,

APPELLATE

THE

JURY

Duggan,

WHAT

J.

THE

MUST

LET

PUT

YOU

RECORD

TRIAL

JUDGE

THE

GET

IN ORDER TO

PRESERVE

ERROR.

At

trial

defense

counsel

wanted

to

extensively

cross

examine

the

complainant

in

a

theft

case

on

how

the

complainant

arrive

at

the

astronomical

value

of

the

auto

stolen.

The

Court

of Appeals

held

that

the

trial

court

should

have

let

counsel

have

more

room

for

cross

examination.

 

Even though appellant's valuable Sixth Amendment right to cross examination was violated, no reversable error. The Court of Appeals found that appellant's counsel did not make a bill of exception showing what testimony he would have developed, nor did the record show that counsel was denied the opportunity to make one.

The lession to learn: When the trial court will not let you get evidence before the jury, you must somehow get it in the record for purposes of an appeal. You may do this through Q. and A. of the witness out of the hearing of the jury (A.K.A. bill of exception) or through a verbal offer of proof to the trial court, telling the court in your own words what your cross examination of the witness would reveal (A.K.A. license to stretch the truth), or make the record very clear that you were not given the opportunity to do either.

Kraft ~

State,

No.

01-85-685-Cr,

Dunn,

J.

REQUESTING INFORMATION ABOUT B~IL BONDSMAN HELD NOT INITIATION OF INTERROGATION UNDER Em'1ARDS.

HELD NOT INITIATION OF INTERROGATION UNDER Em'1ARDS. w rnings, r v. once a all interrogation initiates

w

rnings,

r

v.

OF INTERROGATION UNDER Em'1ARDS. w rnings, r v. once a all interrogation initiates Bra d s

once

a

all

interrogation

initiates Bra d s h1a w,

further

46 2

Miranda

and

resume

the

cons ide

U.S.

477

(1981)

the

Supreme

Court

requests

counsel

after

[-.1 iranda

must

cease

unless

and

un

e

communication

with

the

police.

In

1 0 3 9

by

( 1 98 3) holding

the

Sup rem e

that

the

ati

before

the

Co u r t

'defendant

Oro n

defendant

must

conversation

Here, the defendant had involked his right to counsel, but later inquired to the police officers as to whether a bondsman could get him out of jail. The Court of Appeals found that this question was not the sort of initiated communication sufficient to waive Miranda under Edwards and Bradshaw.

initiating

U•S •

refined

to

Edwards

intend

can be

initiating U•S • refined to Edwards intend can be FOURT((NT" COURT OF APP(ALS June 4, 1986

FOURT((NT" COURT OF APP(ALS

June

4,

1986

to August

13,

1986.

Jamial

v.

State,

No.

14-85-019-Cr,

Sears,

J.

This

case

was

taken

up

on appeal

by Gary

Trichter,

who

fresh

from

his

defeat

at

the

HCCLA

polls,

nevertheless

shows

us

the

right

stuff where

it

counts-in

the

appellate

that he has courts.

ONCE A DEFENDANT HAS BEEN GIVEN HIS ~1I RANDA WARNINGS I

HE

HAS

A

FIFTH AMENDMENT RIGHT

TO

COUNSEL

TO

DECIDE

WHETHER TO SUBMIT

TO

A

BLOOD OR CHEMICAL

BREATH

TEST

WHEN

ARRESTED

FOR

DWI.

In

the

famous

cases

of

Forte

 

707

S.W.2d

89

(Tex.

Crim.

App.

1986),

and

McCambridge

v.

a

e,

No.

1086-85

(Tex.

Crim.

App.

1986),

the

Court

of

Criminal

Appeals

held

that

there

was

no

Fifth

Amendment

(Miranda)

or

Sixth

Amendment

(the

kind

you

get

paid

for

under

CCP

26.05)

right

to

counsel

for

a

DWI

accused

to

decide

whether

to

submit

to

a

breath

or

chemical

test.

You

would

think

these

two

cases

would

be

the

end

of

the

issue.

Not

so

for

Trichterl

In this case, the Court of Appeals held that once Miranda warnings are given, a Fifth Amendment right attaches to the decision as to whether to take the test. The Court distinquishes Forte and McCambridge on the basis that in those cases the consent was-grven before the ~1iranda warnings.

NOTE:

There

is

a

BIG

difference

between

the

Fifth

and

Sixth

rights

to

counsel.

Under

the

Sixth

Amendment,

once

the

right

attaches

the

defendant

must

affirmatively

waive

the

right.

Under

the

Fifth

Amendment,

once

Hiranda

is

given,

the

defendant

must

assert

the

right

to

cou nselor

no

constitutional

violation

occurs.

September

1986/Docket

Call

SD3

In this case,

once

Miranda

warnings

were

given,

the

appellant

consistently requested counsel.

The

Court

of

Appeals

found that

the appellant's

eventual

consent

to

a

chemical

test

was

given

in

violation of Miranda,

of

Another intersting

THE COURT OF APPEALS HAS THE POWER TO DECIDE THE APPEAL ON GROUNDS NOT RAISED IN YOUR BRIEF.

The Court of Appeals ruling noted above was made as "unassigned error." Leaving aside appellate counsel's embarrassment on getting a reversal on an argument he never thought of, the Court's procedure is worth noting.

Under the original 1965 Code of Criminal Procedure, the Court of Criminal Appeals had express statutory authority to decide appeals on "unassigned error." The Court would occasionally reverse on jurisdictional matters (fundamentally defective charging instruments) or on law which developed since the briefs were submitted (oftens years earlier).

in

1981, the statutory provision for unassigned error mysteriously

of

When the Court of Appeals were given criminal

disappeared.

and

the

subsequent

this

case.

test

results

were

fruits

the

unlawful

interrogation.

point about

jurisdiction

the

Court

Many

appellate

persons

thought that

Appeals

did

not

have

this

authority.

 

In

Perry

v.

State,

703

S.W.2d

668

(Tex.

Crim.

App.

1986)

the

Court of CrIminal Appeals found that all

the

appellate

courts

did

have

PRACTICE NOTE: Don't count on it happening to you very often. ~

the

inherent

authority

to

reverse

on

unassigned

error.

September 19B5/Docket Call SD4

COURT OF CRIMINAL APP[ALS

By Catherine Greene Burnett

*

NOTE:

SUMMER

RECESS

BEGAN

JULY

9,

1986

*

*

*

Seyed

Ramezan

MOOSAVI,

No.

715-84

Opinion

on

Appellant's

PDR:

Court

o~ Appeals

Reversed;

Remand

~or Review

o~ Ground

Error

Judge

W.

C.

Davis

6/11/86

OFFER OF PROOF -- READING iNTO TRIAL RECORD ONLY THE EXPECTED

TESTIMONY

OF

WITNESS

EXCLUDED

BY

COURT

IS

OFFER

OF

PROOF

AND

PRESERVES

ERROR

FOR

APPEAL

WITHOUT

INCLUDING QUESTION SOUGHT

TO

During

BE

ASKED:

punishment

phase

trial De~endant

tried

to

el fcft

testimony o~ psychiatrfst

about

 

state

mfnd

at

tfme

 

~or mitfgatfon

punfshment.

the

bench,

outsIde Jury's presence,

believed

answer

would

be.

D's

attorney

stated on record what

he

This

was

enough

to

be o~~er o~ proo~

under

Art.

40.09,

Sec.

6(d)(1),

V.A.C.C.P.,

wfthout question

asked.

Nothing

in

statute

requires o~~er o~ proo~ to be

in

questfon

and

answer

Just

a

"concise

statement

what

the

evidence

would

show".

Here

it

fs

clear

~rom record

that the

trial

judge

knew

precfsely what

he

was

exlcudfng.

Where

the

subject matter

o~

the

questfon

was

evident,

requfring

have

an o~~er o~ proo~ to

been asked.

no

purpose

the

contain

would

questfons

be

served

that

by

would

Jerome_Edward

DEGRATE,

No.

989-85

Appellant's

PDR Re~used

-- Per Curfam Opfnion,

7/9/86

PETITIONS FOR DISCRETIONARY REVIEW

GUIDELINES

FOR

DRAFTING:

The

Court

Appellant's

 

PDR

because

he

"presented

no

reasons

as

to why this

Court

should

review

the

opinfon

of

the

court

appeals".