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DOCI(ETCALL
MARCH 1986
JUnGE CARROLL WEAVER
1927 - 1986
Robert Pelton
Candelario Elizondo
Jay Burnett Vi..Pm!.t
Mary Moore
S....tlff
James Dougherty r ....... ,
Randy McDonald C.Ii....
DOCKET CAll Is published monthly by the Harris County Crimi.
nal lawyers Association, P. O. Box 22773, Houston, Texas
77027. Advertising Rates: Full page $200.00; ! page -
$100.00; # page $50.00 per Issue.
All articles and other editorial contributions should be
mailed to HeCLA, P.O. Box 22773, Houston, Texas 77027.

Allen C. Isbell
Prdwti..
Donna K. Kleszcz
NEWSLETTER DEADLINE Material for publication
should be submitted by Friday, March 28 for the
April Docket Call.
PastPresidents 19711984
J. Anthony Friloux
Stuart Kinard
George Luquette
Marvin O. Teague
Dick DeGuerin
W. B. "Bennie" House. Jr.
David R. Bires
Woody Densen
Will Gray
Edward A. Mallen
Carolyn Garcia
Jack B. Zimmermann
Clyde Williams
Board of Directors:
Randy McDonald. Chairman
John Ackerman
Ray Bass
Walter Boyd
Catherine Greene Burnett
Felix Cantu
Jan Fox
Carolyn Garcia
Johnny Gill
Will Gray
Ruben Guerrero
Charlone Harris
Allen Isbell
David Mitcham
Frumencio Reyes
G. Mac Secrest
Clyde Williams
rrom the President's Desk ... Robert Pelton
Your organization is due for some changes in
the following months. The obvious change is
Docket Call. An organization with the best law-
yers in the United States needs to have the best
publication. The appearance and content of
Docket Call is a move in that direction.
Thanks to Allen Isbell, Editor of Docket Call,
the content of our publication is excellent.
Allen and I have decided to make several addi-
tions to the monthly magazine. Some of these
changes are as follows:
1. Letters - when you have something to say,
then send it in.
2. Advocates - column written by former
President Carolyn Garcia that will deal
with issues on capital murder cases.
3. Trial Tactics - written by Jim Skelton
(world famous lawyer and "Healer of
Broken Hearts").
4. Court Tales - a column each month will be
written by one of the District Court or
County Court judges in Harris County.
Judge Shelly Hancock has "volunteered" to
write the first column and to furnish
other volunteer judges or himself to keep
information flowing.
Harris County Criminal Lawyers Association
plans on providing plenty of seminars and tapes
so you can get mandatory Continuing Legal Educa-
tion hours here in Houston. We hope to get Con-
tinuing Legal Education approval for Jim Skelton's
Wednesday sessions and provide these free to
HCCLA members. As you know, some hours can be
self-study. so check with the HCCLA office regard-
ing viewing tapes that soon will be available.
Local judges and bondsmen continue to be
supportive of this organization as seen by the
advertisements in this issue. Thank you.
The attendance at HCCLA's luncheons is shame-
ful. Clyde Williams has provided excellent pro-
grams at these monthly luncheons and you are mis-
Sing interesting and informative speakers when
you do not come to the luncheons. Do you want to
keep having the luncheons? High Sheriff Johnny
Klevenhagen. T. R. Coney, Major Breckenridge and
staff are guests at the March luncheon. Come to
the luncheon and talk to these folks if you are
having problems at the jail.
Michael Essmyer (from the stables of "Race-
horse" Haynes) and Ben Durant have been appointed
to fill two vacant director's positions. Those
of you who are interested in running for officer
or director pOsitions need to apply soon. Call
the HCCLA office for details.
At the next board meeting (1) I am proposing
that a new membership classification be establish-
ed, that being a sustaining member. A sustaining
member will pay annual dues of $200.00 and that
status will be a requirement for all directors
and officers of HCCLA. It is my hope that this
requirement will be made retroactive to this
year's officers and directors. $2300.00 will be
added to the bank account if this is passed. This
additional money can be used to buy a word pro-
cessor/computer with the West Law capability that
will be made available to you, the members.
I have reviewed the financial affairs of this
organization for the past few years and it seems
to me that each month there is just barely enough
money to pay expenses. This needs to be changed.
My goal is to have at least $10,000.00 in the
bank at the end of my term in Yay. This money
needs to be spent on things that will help the
members such as (1) word processor/computer to
keep up with forms and information for members;
(2) library on criminal law that would be avail-
able for members; (3) educational tapes; (4) full
time staff members.
As far as I am concerned no money from HCCLA
should be spent on Christmas parties, or anything
else that does not directly help the members
learn to be better lawyers. The world is full of
insane, mentally crippled, depraved, misguided
and socially unacceptable people who will come to
you for help. If you hold yourself out to be a
lawyer, then you have an obligation to help these
people who did not get dealt a fair band in life.
To do this you must be prepared. Hopefully, the
members of this organization can work effectively
to help each other do the job we chose to do --
represent that person we call a client.
LETTERS
February 15, 1986
Robert O. Pelton, Esquire
President, Harris County
criminal Lawyers Association
1610 Richmond Avenue
Houston, Texas 77006
Dear Robert:
Enclosed with this letter is a copy of a car-
toon that appeared in the February 1986 issue
of Docket Call, the monthly publication of the
Harris County criminal Lawyers Association.
I'm amazed that this crude and heavy-handed
attempt at humor was published. Itis not
funny. On the contrary, it is both offensive
and tasteless, particularly in what appears to
have been its studied effort to portray all
three characters as black people. If we crimi-
nal defense attorneys are really prepared to
laugh at the idea of people being executed, or
of their own lawyers making a joke out of it,
we've obviously descended to a level of cynicism
and insensitivity unprecedented even for us.
There are, of course, numberless jokes and car-
toons (The Wizard of Id is an example) portraying
Judges as-venal ana-incompetent; jurors as stupid
and irresponsible, and defense lawyers as greedy,
shiftless and generally disreputable, ifnot
actually dishonest. These stereotypes -- if they
are stereotypes -- are no more deserving of per-
petuation, or of our express or implied approbation,
than the equally traditional racial or ethnic jokes.
They are not funny. They are not clever. Rather,
by our acceptance of them, they demean and degrade
us all.
I wonder ifmost of us would tolerate cartoon humor
attempting to depict the lighter side of the attempt
to exterminate the Jews during the Holocaust, or of
the lynching of black people in the South earlier
in this century, or of sexual abuse of children,
or of deliberate cruelty to animals, or of any
Cartoonist Terry Proctor's reply...
(1) I'm color-blindo It never occurred
to me that anyone would see a thumbprint
as ethnic. Perhaps Attorney Maness didn't
realize my cartoons are done from finger
prints.
(2) It is my bel ief that it is healthy to
poke fun at yourself once in a whi Ie. Doc-
ket Call isn't a public publication but a
house organ for attorneys. This same car-
toon ran in 1978 in the Texas Bar Journal
without any unfavorable response.
of a multitude of other subjects that for reasons
obvious to any reasonably intelligent person are
simply not appropriate subjects for levity. If
there really is something funny about capital
punishment, I haven't encountered itduring the
17 years I've been practicing law.
You may recall that prior to John Spinkellink's
electrocution by the State of Florida in 1979 his
guards were alleged to have taunted, humiliated
and ridiculed him. James David Autry's execution
in 1983 was preceded by the same sort of "fun"
among that crowd of really superlative human beings
gathered outside the Walls Unit at Huntsville. It
now seems as if we've been infected with their
peculiar sense of humor: there's nothing like a
good joke at the expense of a guy who's about to
be executed.
without intending to sound overly sententious, I
believe our business and profession is an excep-
tionally serious one. A person confronted with a
serious criminal accusation wants, and is entitled
to, an intelligent, competent, well-prepared lawyer,
not a stand-up comedian. We demean andtrivialize
the system, and our role in it, when we act as if
itwere otherwise.
Of course, I recognize the constitutional right of
you, and Allen Isbell, and Terry Proctor, to pub-
lish anything you damn well please. I just wanted
you all to know my view that this cartoon is despic-
able and shameful.
you s,


Michael A. Maness
MAM: wgl
Enc.
(3) Puns about serious matters do not
translate into a condonation or endorse-
ment of the action, particularly when not
directed to any specific person or inci-
dent.
(4) I agree wi th Attorney Maness that an
accused wants an intelligent, competent,
well-prepared attorney. I will put my
record up against anyone for time in trying
to improve the public image of attorneys
and our profession.
(5) I hope other members of the HeCLA wi 11
use this column to express themselves, good
or bad, about the many things that appear
:n this fine publ ication.
Uearsay... By Allen C. Isbell
Free pass to the following judges: Judge
Thomas Routt (208th), Judge Doug Shaver (262nd),
Judge Charles Hearn (263rdl, Judge Ted Poe
(228thl, Judge Sherman Ross (County Criminal Court
tlO), Judge Neel Richardson (County Criminal Court
ta), Judge Shelly Hancock (County Cr iminal Court
'7) and Judge Terracino (County Criminal Court
H2.
At the March luncheon Jay Burnett reported on
the work of the amicus committee and its brief in
Robinson v. State (regarding reset agreements in
Harris County and the STA) . Justice Ben Levy
(1st Court of Appeals), a judicial activist, spoke
to our luncheon on his proposed parent-child
privilege-, emphasizing the paramount right of
privacy and the need for preserving the integrity
and stability of the family. Parents sending
children to prison and children sending parents to
prison is a spectre of a totalitarian society, in
Levy's views Randy Schaffer, our
association's expert in the parent-child
privilege, was present.
Attending the luncheon were a number of the
judiciary besides speaker, Justice Ben Levy, Judge
Angel Fraga (County Cr iminal Court 114), Judge
Bonnie Fitch (County Criminal Court '13), Judge
Sam Alfano (Municipal Court), Judge Frances
Williams (County Court '4), and Chief Justice
Frank Evans (1st Court of Appeals). How did Judge
Pat Lykos spend her birthday? In part, by
attending the luncheon of the HCCLA
Clyde Williams has been getting some
excellent speakers for our noon luncheon. In
April, Senator Parker will speak on the Grand Jury
system (he has a unique perspective nowl. In May,
Judge Eric Andell will speak about practicing
juvenile law. In the near future, Dr. Ron Owens of
the Life Skill Resource Center will speak on
Treatment for Aggressive Behavior and its
Courtroom Application.
The big N.G." of the year goes to Dick
DeGeurin for the acquittal of school principal
Fontenot
. Audley Heath got an -N.G." from a
jury. The charge was prostitution; the defense was
entrap- ment. was recently certified as a
criminal law specialist . Frank Medina got an
"N.G." on an indecency with a child case out of
the l83rd. Jury out 5 minutesl Case arose out of a
custody battle in divorce court. Seems a lot of
cases starting in the Family Law Center are
drifting across the street to 301 San Jacinto
Sometimes defense lawyers like to lose - Desmond
Gay has lost 7S Ibs. Mark Mueller won an
wN.G.- out of the 263rd, on an aggravated sexual
assault case involving a woman defendant and a S
year old female child. The videotape of the child
was suppressed before the trial Clyde
Williams is on a roll with 2 victories involving
alleged public -touching- in Montrose bars
Mike Fosher has had 3 -N.G.'sw in a row, the
latest one being in County Criminal Court for .2
publ ic lewdness Kurt Wentz got a directed
verdict of N.G. in an arson case out of the
339th.
Our prez. Robert Pel ton has conducted two
board meetings without resorting to four-letter
adjectives, nouns, or verbsl How did a nice boy
from Abilene learn the salty language of the sea?
Seen at the Country Playhouse's production of
"The Great Sebastians were Judge Jon Lindsay and
wife Tony (she is research lawyer at the 1st Court
of Appeals) His executive assistant,
Krischke, was in the play and she and hubby
Herbert hosted an after-play party. Patricia Lepe,
assistant, attended the play and party. The
play is about wmind reading.
w
Judge Jon Lindsay
appeared to be trying to read the minds of the
audience whether they were thinking Lindsay or
Greenwood.
In the all of the luck
w
department: on the
second day of the bar exam in Houston, the answers
to the essay packet were distributed, along with
the questionl Mistake caught in time to avert
everyone receiving a perfect grade.
Lieutenant Jerry R. Jones has been promoted
to the rank of Captain at a ceremony held on
February 14. Lieutenant Jones is the first Black
in the history of the Houston Police Department to
attain the rank of Captain.
Richard Anderson replaces Walter Wiebush as
legal advisor to the County Criminal Judges.
Wiebush is retired to the valley. When Anderson
was an assistant District Attorney in the
appellate division, he and Calvin Hartmann replied
to a 48 page brief with a single one-liner brief:
"The Appellant has fired an impressive legal
salvo, assailing his conviction, but tis for
naught, for the battle was lost before it was
fought - THIS COURT HAS NO JURISDICTION." Sure
enough, the Court had no jurisdiction. Lesson:
before you write a 48 page brief, check
jurisdiction.
by the Texas Board of Legal Specialization.
H.C.C.L.A. express sympathy to the family of
Judge Carroll Weaver (184th District Court), who
passed away after a long illness. Judge Weaver was
an excellent trial lawyer before becoming a judge.
Many years ago, when I started to practice
criminal law, I surveyed the court reporters in
the misdeamenor courts to ask who, in their
opinions, was the best D.W.I. trial lawyer. The
almost unanimous opinion was that Carroll Weaver
was the very best. When he became judge, he
remembered what it was like in private practice.
His fairness to all will be remembered. His life
time friendship with Judge Bill Ragan is an
example to all of the meaning of friendship.
Terry Proctor, the aborted candidate for the
230th ruled ineligible due to faulty application
form. Rumor is that Walter Boyd furnished Terry
the form Hal Hudson is the published author
of an article in "Power Lifting U.S.A.", the
"Bible" for all those in that sort of thing. The
article is on lifting for competition after you've
passed 40, and gives Hal's schedule on the way to
winning the World Masters Championship for the
post-40 group. picture is featured lifting
about 1,000 Ibs - looks like a "wild-man"! Good
likeness, 1!ll.
Seen in the criminal courts building last
Friday, February 28, 1986, was Justice Murry Cohen
of the First Court of Appeals. When asked what he
was doing in the criminal courts building, he
replied that he had heard that reversible errors
were committed in that building and he was
checking it out! So far Justice Cohen has not
found reversible error in any case that I have
appealed Judge Bill Ragan (County Criminal
Court il) has been reversed only four timas in 20
years on the bench.
Candelar io El i zondo and Terry Lea El inzondo
has relocated there office to Two Houston Center,
Suite 1515, 909 Fannin, Houston, Texas 77010,
telephone number 655-8085 . Jim E. Lavine has
become a shareholder in the firm formerly known as
the Law Offices of Jack B. Zimmermann, P.C. and is
now Zimmermann Ii Lavine, P.C. Lavine has also
become Board Certified as a specialist in criminal
Law by the Texas Board of Legal Specialization.
H.C.C.L.A. express sympathy to the family of
Judge Carroll Weaver (184th District Court), who
passed away after a long illness. Judge Weaver was
an excellent trial lawyer before becoming a judge.
Many years ago, when I started to practice
criminal law, I surveyed the court reporters in
the misdeamenor courts to ask who, in their
opinions, was the best D.W.I. trial lawyer. The
almost unanimous opinion was that Carroll Weaver
was the very best. When he became judge, he
remembered what it was like in private practice.
His fairness to all will be remembered. His life
time friendship with Judge Bill Ragan is an
example to all of the meaning of friendship.
Let's nca, frail Yau
We want to hear from you! Please
send us your ideas or comments regard-
ing issues of interest to the criminal
defense practioner and please let us
know changes in address and telephone.
We welcome your participation.
ADVOCATE
by Carolyn Garcia
Abraham Lincoln, presumably before
he entered politics on a full time basis,
said that a lawyer's time is his stock in
trade.
This concept has been freely translated
by the Texas criminal defense bar in the
words of a famous Chinese proverb: "No
tickee, no washee."
This has carried over to cases where a
Texas trial judge has ordered that a per-
son be executed by lethal injection before
sunrise on a given date.
The growing realization that the State
and Federal Governments are dead
serious about expediting these pre-sunrise
dates with the needle, has converted the
members of the criminal defense bar.
with a few exceptions, into Chinese laun-
dry men. unwilling to assume the un-
popular, unrewarding and unpaying
burden of fighting the State and Federal
judiciary as the State and Federal Con-
situtions and the Writ of Habeas Corpus
are emasculated. step by step.
Several weeks ago, Kerry Fitzgerald
and Rusty Duncan asked me to con-
tribute a regular column to fhe Voice
dealing with capital cases. I agreed, on
the condition that I would be permitted
to encourage lawyers to assist in
representing condemned prisoners in post
conviction proceedings. The column will
be centered around death penalty cases,
but the legal issues are applicable to many
areas of the practice of criminal law.
"Advocate" is orginally derived from
the latin verb, adv()(1Ire. meaning to sum-
mon to one's assistance; the noun form.
advocalus, orginally signified an assistant
or helper of any kind. even an accomplice
in the commission of a crime. Its present
signification is a pleader of causes. In
Spanish and French. avocat means
lawyer. I like the word as a noun or verb,
hence the name of the column.
There are over 200 prisoners on death
row in the Texas Department of Correc-
tions. 1110se on dircx.1 appeal have retain-
ed or appointed counsel. Those for whom
direct appeal resulted in affirmance are
usually represented by volunteer counsel,
if they have a lawyer at all. Far too many
have no counsel.
We have more than 30 capital cases in
our office. about 15 percent of the total
number of inmates on death row. Like
us, any other lawyers throughout the
state handle these cases without support
from local, county. or state bar associa-
tions or from organizations dedicated to
civil liberties. Recently, three scheduled
executions would have taken place but
for the intervention of volunteer lawyers.
These condemned inmates went to every
state bar association and every group of
civil libertarians for assistance and found
none until a sole practitioner stepped in.
We are often criticized when we agree to
represent condemned prisoners with an
impending execution date. Many bar
association leaders and individual
lawyers advise that lawyers refuse to help
in these cases. They suggest that we stand
by and let the prisoner die without a
lawyer. The reasoning is that the finan-
cial burden on volunteer lawyers is too
great and that the system. if stressed
enough. will find a way to compensate
lawyers for this representation. Perhaps
some feedback from this column will
help lind a solution.
A reason often given for refusing to ac-
cept a p i t l ca..\e after affirmance by the
Court of Criminal Appeals. is lack of ex-
periem:e or knowledge about the process.
Hopefully. this column will serve to
remove those fears. provide some
guidance and encourage lawyers to ac-
cept this work or help find others who
will. I've volunteered my office panner.
Will Gray, as a regular contributor to the
column. I hope that others around the
state working in this area will share their
legal and prai.1ical problems.
Death penalty post conviction work is
not really such an obscure area of the law
for thme who regularly practice trial and
appellate criminal law. The post convic-
tion practice involves reviewing trial
records, interviewing witnesses, briefma.
conducting evidentiary hearings with the
same kind of witnesses you might fmd in
any criminal trial, and persuading, by
legal and equitable arguments, the trial of
fact, The only difference is that one is not
entitled to a jury.
In post conviction proceedings, one is
usually opposed by fonnidable legal
scholars on the prosecutorial side, and
some times on the bench.
They provide a challenge not generally
offered in the courtroom in a day to day
trial practice because of the issues involv-
ed. The trend, of course, is to deny the
writ; the challenge. to find some running
room.
The writ of Habeas Corpus is the ex-
clusive post-conviction remedy in a
felony case in Texas. For that reason, this
first column will provide introduction
information into the Great Writ. It is im-
portant to keep in mind that the Writ of
Habeas Corpus is not a remedy just for
the condemned. The Writ should be an
integral and important part of any law
practice.
The writ can be used to challenge ex-
cessive bail, to compel the production of
minor children in court on custody mat-
ters. to test the legality of confinement
for contempt. to challenge confinement
on a faulty indictment or information, to
demand an out of time direct appeal (not
a substitute for appeaJ) and to collaterally
attack a conviction and sentence, among
other things. The writ is a matter of right.
but does not issue as a matter or course.
The application for "writ of habeas
corpus" is the notice to the person
holding another in confinement to pro-
duce that person and show cause why the
confinement should continue. "Habeas
Corpus" means "You have the body."
The writ is the precept to the confiner to
produce the body.
Advocate
For criminal cases, the procedure is
outlined in Chapter 11 of the Code of
Criminal Procedure, and particularly Ar-
ticle 11.07. Article 11.01, Vernon's Ann.
Code of Criminal Procedure defines the
writ of habeas corpus as:
"the remedy to be used when any
person is restrained in his Uberty. It
is an order issued by a court or
judge of competent jurisdiction,
directed to anyone having a person
in his custody, or under his
restraint, commanding him to pro-
duce such person at a time and
place named in the writ, and show
why he is held in custody or under
restraint. "
In this first colwnn, we are providing a
form writ that can be used in state and
federal court in postconviction felony
cases. In this instance, the form is filled in
to illustrate how the issues are framed.
The writ is med with the District Clerk
of the county of conviction and is return-
able to the Court of Criminal Appeals at
Austin, Texas. The District Clerk assigns
a file number ancillary to that of the con-
viction being challenged, i.e. XXXX-A,
and transfers it to the trial court of the
original conviction. The clerk of that
court sends a certified copy to the state's
attorney in that court who has 15 days to
respond. If the state's attorney does not
respond, the allegations are still deemed
denied.
Within 20 days of the state's response
date, the trial court must determine
whether there are unresolved factual
issues which require an evidentiary hear-
ing and if so, must within that time, enter
an order designating the factual issues to
be resolved. If the trial court fails to act
within the 20 days, then that failure con-
stitues a finding that no factual issues
need be resolved.
Factual issues may be developed and
resolved through evidentiary hearings,
depositions, interrogatories, or af-
fidavits. The fact findings of the state
court are given deference in all subse-
quent proceedings. The Code sets no time
limit in which the trial court must act
after entering an order that unresolved
factual issues exists.
Whether or not an evidentiary hearing
is held, the record of the proceedings and
findings of the trial court, if any, are then
transmitted to the Court of Criminal Ap-
peals and the Court may grant or deny
relief upon the findings and conclusions
of the hearing judge or may make in-
dependent findings and conclusions. The
Court of Criminal Appeals need not
follow the findings and recommenda-
tions of the trial court. If a writ is referred
to the Court ofCriminal Appeals without
a hearing being conducted in the trial
court, the Court may return the case for
an evidentiary hearing if the Court deter-
mines that unresolved factual issues exist.
Exhaustion of state remedies is a
necessary prerequisite to seeking relief in
federal court. A postconviction writ of
habeas corpus will be dismissed in federal
court absent proof that the writ was
presented and denied by the state convict-
ing court unless the state waives exhaus-
tion of state remedies. The law is clear
that all legal issues that should and could
be presented in the original or first writ
filed must be presented on the first
postconviction go-round. If one cannot
show substantial cause why the issues
were not presented in the first applica-
tion, the writ will be dismissed for "abuse
of the writ", regardless of the merits of
the issues.
Over the next several months, we will
print other forms, and suggest practice
and procedures for effective presentation
of the writ. Hopefully, we can develop a
forwn for discussions of significant state
and federal statutory and case law
changes that will not only help in
evaluating constitutional issues for the
writ, but also for resolving how to deal
with the difficulties in finding representa-
tion for condemned prisoners after direct
appeal, and for issues germane to the
general practice of criminal law.
Readers can contact me directly in
Houston or through the Voice for par-
ticular areas of interest or question. I
would like to include a question and
answer section at the end of each colwnn.
Readers provide the questions and I'U try
to find the answer. Hopefully together,
we can advocate.
Those who choose to advocate, and
who commit themselves to the brutal task
of facing the State and Federal judiciary,
can save valuable time by adapting the re-
quired Federal habeas corpus form for
use in the State Application for Habeas
Corpus. This first session includes a stan-
dard writ form for filing in the convicting
State court. See Appendix "A".
Next time we meet, the adaptation of
this State Application to a Petition in the
United States District Court will be
demonstrated. Following that, the pro-
cedure in the United States Court of Ap-
peals for the Fifth Circuit will be detailed.
As the Chinese say, a journey of a
thousand miles begins with a single step.
much less the Supreme Court. We were taught on
TRIAL TACTICS By Jim Skelton
Some of you have lived the scene and some of
you are about to live it. The door has just
slammed on what is called the "plea bargaining"
process and you find yourself sandwiched between
some old worn out ex-prosecutor who thinks he is
a judge and a group of recently burglarized citi-
zens who think they can be jurors.
The DA has just finished his voir dire. This
is a speech that all prosecutors make before they
get down to the serious business of striking all
blacks, long hairs .. Unitarians and miscellaneous
minorities from the jury panel.
It is now your
turn. You must talk. Words
coherent words --
must come out of your mouth. You have got to say
something.
The night before you thought of every scam
known to man to get are-set. "Maybe I'll have a
car wreck" or "Perhaps my Mother may die, or even
if she doesn't die, how can I fake her funeral?"
You put in a desparate call to your client, "Have
you had your appendix removed?" No such luck,
that was done the fourth time he went to TDC.
Everything has failed, and it is too late to turn
back.
Every criminal lawyer has gone through such
an experience and it is high time that we did
something to make this "welcome to the wonderful
world of criminal law" less traumatic. It should
be one of the major aims of this organization
The Harris County Criminal Defense Lawyers -- to
offer support and guidance to the young inexperi-
enced practitioner. This is the sole reason for
this column, so we can have a forum where the
more experienced lawyer can share their mistakes
and knowledge.
Think back to law school. What did you learn
there that later helped you try your first case?
Who taught you the predicate for getting a tape
recording into evidence? What law professor told
you about the "have you heard" rule and the dif-
ferences between a character and reputation wit-
ness? Or, how to perfect error when making an ob-
jection? Most of us were told long and endless
stories about what Justice Black said to Justice
Douglas about Justice Frankfurter's opinion of
the exclusionary rule and how Black would say
snot things to Frankfurter back in the robing
room. Most of the time, these stories were relat-
ed by someone who had never been before a JP Court
and on about the exclusionary rule but were never
told who had the burden of proof in a suppression
hearing, or how a motion to suppress motion should
be written, or how a suppression hearing is star-
ted, or the pitfalls of curative admissions, or
that the defendant could be called for the limit-
ed purpose of the suppression hearing. We learn-
ed all these valuable lessons by sending people
to jails as we stood there with our thumbs stuck
in the lower part of our digestive tract.
None of this is taught in law school because
most of the people teaching there know the day to
day mechanics of trying cases. They have never
bothered their great legal brains with the mun-
dane task of trying to help some sullen kid who
was busted for test driving someones car for sev-
en months. I learned this when one of my profes-
sors tried to defend his girlfriend's son. This
was also a lesson in the dulling effect hormones
can produce in the brain. The DA was able to in-
troduce the offense report as a business record
and thus ended this multi-lettered prof's skirmish
with the real world. It also ended his client's
freedom as he got 10 big ones. And the girl-
friend was non to happy either, she moved up a
notch by taking up with a plumber.
Law school is mentioned for one reason. You
should not feel badly because you have an irra-
tional urge to vomit in the judge's commode when
the bailiff brings in a jury panel. The simple
fact is that you are ignorant. Law school has
made you that way. Law school made you a lawyer
without ever having to try a case. It has taken
your inate ignorance and Socratically brought out
the best of it. Law school will teach you such
stupid things as, "Your honor, may this exhibit
be published to the jury?" Try this little num-
ber with an East Texas jury and see how long it
takes them to ask "Is the death penalty possible
for DWI' s?" or "Can we kill the lawyer too?"
My first suggestion is to admit to yourself
and your brother lawyers that you are insecure
and that you do not know what the hell you are
doing. Then go get some help. Find some experi-
enced lawyer who has managed to overcome his leg-
al training and pick his brain. Most defense
lawyers will bend over backwards to help you --
if you will ask. Of course, there are a few who
are so wonderful that they will share their "sec-
rets" only with God or reporters with really
great knockers, but that's the exception.
I know that it is difficult to admit your ig-
norance when your office walls are heavy laden
with plaques, diplomas, certificates and awards
extolling your virtues. I remember one of these
plaques collectors quite well. Everytime he was
set for trial, he would panic, get diarrhea and
show up at my house. He would spend the night
sitting on the john, whimpering and flushing un-
til I agreed to keep him from losing face. I
helped him through several trials - I had to, the
water bill got out of control - and now he is
doing fine.
The next step is an unlearning process. You
must unlearn all that gibberish that you were
taught in law school. Knock off all that lawyer
like language and relearn to talk like a normal
human being. Think of working with a jury in the
same vein as courting your sweetheart. Think
about this for a moment. What do you suppose
would happen if you whispered softly in her ear,
"You are the sole judge of the credibility of my
advances and the weight to be given my advances".
How many years would you get? How many cold
showers would you have to take? If most of us
courted like we tried law suits, we would have
to embalm our hearts and bodies because we would
never need them.
Hand-in-hand with this leraning to talk again
process comes the retuning our feelings process.
Simply stated, you have to unstarch your under-
wear and rejoin the human race. The overall
theory of trying a case is quite simple. It is
one human being (the lawyer) talking to a group
of human beings (the jury) about giving a fair
break to another human being (the defendant). Un-
til you understand this, you will never be suc-.
cessful.
There will be numerous suggestions in future
columns about this unlearning process and help-
ing you deprogram your legal education. Until
then, I would like to leave you with one final
t o u ~ t about the value of the esoteric logic
that we are taught in law school. If a hen and
a half could lay an egg and half in a day and
half, how long would it take a monkey with a
wooden leg to kick all the seeds out of a dill
pickle?
ASKING FOR "GASKIN" MATERIAL
MAY BOLSTER THE STATE'S WITNESS
NEW MEMBERS WELCOME
By: Allen C. Isbell
When you request, receive, and read "Gaskin"
material before the jury, and then do not ask any
questions based on the previously written
statement or report by the witness, you leave the
impression that the witness' trial testimony is
the same as his
statement written shortly after
the event.
Unwittingly, you have bolstered his
testimony.
How do you avoid this, since the rules at
present do not allow a defense lawyer to have the
statements or reports prior to the witness'
testimony?
You may file a motion requesting that the
court excuse the jury so you may request, receive,
and read the reports before cross-examining the
witness. The expectation that this motion will be
granted in most cases is low.
To preserve the issue for appeal, state
clearly the ground for the request and the harm
the typical procedure causes. A possible statement
of that ground is: By forcing me to request,
receive, and read the "Gaskin" material in the
jury's presence, the Court is forcing me to
bolster the witness' testimony if I do not
cross-examine him.
At this point, a tactical decision must be
made. Either you accept the typical procedure
which require'requesting and reading the report or
statement in the presence of the jury; or, you
state for the record that you believe the harm is
so great, that you will not request the report or
statement since you cannot receive and read them
outside the jury's presence.
You may want to suggest various procedural
steps the Court could take which would permit you
to request, receive and read the reports with
minimal interference with the orderly progress of
the trial.
Sponsor
Terrance Windham Johnny Gill
William G. Rosch,III J.Burnett/F.Cantu
Jay S. Nedell Cathy Burnett
David A. Bishop Cathy Burnett
Paul J. Smith Cathy Burnett
George S. Hebert Cathy Burnett
Michael J. Brown Jim Dougherty
Mark S. Byrne Robert Scardino
Carol A. Neelley Randy McDonald
Ellen L. Swierczek Ron Hayes
Kevin Howard Robert Pelton
Raymond L. Fisher William J. Rice, Jr.
Margaret A. Poissant Mary K. Quinn
Eliecer Barreiro Candy Elizondo
Mikahela Speedon Candy Elizondo
Nickolas S. Barrera Candy Elizondo
Joseph A. Rumbaut Veryl E. Brown
Kathryn Geiger Johnny Gill
Angelica Landa Jose Cantu, Jr.
Miller Wallace Robert Pelton
Robert J. Sussman Robert Pelton
Esmeralda Pena Garcia Pel ton/Elizondo
Rogelio Garcia T.M. Reardon
Joel Peralez Robert Pelton
Willie J. Rhodes Robert Pelton
Casbeer Snell, Jr. Robert Pelton
Jose Cantu, Jr. Felix Cantu
Clarence Thompson Robert Pelton
William Pavlov Robert Pelton
Bob Burdette Cathy Burnett
Neil C. McCabe Jack Zimmermann
Kenneth R. Poland Robert Pelton
John Phillips Johnny Gill
Roy L. Abner Johnny Gill
Juanita Jeys Berta Mejia
Mary E. Conn Robert Pelton
Cha.rles Freeman Johnny Gill
Frank T. Coleman Williams/Guerrero
Rose Marie Kennedy Randy McDonald
T. M. Reardon Robert Pelton
Joe Hernandez Candy Elizondo
Katherine Scardino Johnny Gill
Robert J. Pandak Cathy Burnett
Lawrence T. Newman Clyde Williams
Meetings...
COMBINED BOARD MEETINGS - Juvenile, Family, Crimi-
nal, Civil, County Criminal Judges, 2nd TueSday,
noon, of each month, Administration Bldg. cafe-
teria, Judge Love Chairman, permiSSion.
CIVIL JUDGES BOARD MEETINGS - ~ t Tuesday, of each
each month, noon, Administration Bldg. cafeteria;
Judge Solito, Chairman.
CRIMINAL JUDGES BOARD MEETING - ~ t Wednesday of
each month, noon, Administration Bldg. cafeteria,
Judge Jon Hughes, Chairman.
MEMBERS ON THE CURRENT GRAND JURIES
by: Ronnie Harrison
Below is the Grand Jury List for the
February, March, and April Term:
208th (meets Monday and Thursday)
1. Ms. Ina K. Zellers (Asst. Foreman), 4914
Gammage, Houston, Texas 77021, Phone 747-56721
2. Mr. Harvey Petree, 1405 Atlanta,
Deer Park, Texas 77536, Phone 479-6223;
3. Mr. William Erwin, 5688 Green Tree,
Houston, Texas 77056;
4. Mr. E. B. Dick, 3014 Maple Grove,
Houston, Texas 77092, Phone 681-2954;
5. Ms. Lenora Sorola, P. O. Box 9093,
Houston, Texas 77261, Phone 923-6374;
6. Mr. Darryl Hurt (Foreman), 3444 Ash Lane,
Deer Park, Texas 77536, Phone 479-8116:
7. Ms. Jerry Ann Miller, 5135 Bayou Timber,
Houston, Texas 77056, Phone 961-0741;
8. Mr. Aquino Torres, Jr., 14907 Windfern
Forest, Houston, Texas 77040, Phone 896-7615;
9. Ms. Flora Clark, 5946 Southington,
Houston, Texas 77033, Phone 645-8504;
10. Liz Latham, 706 Rutgers, Deer Park, Texas
77536, Phone 476-4607;
11. Robert O. Blaicher, 5618 Wigton, Houston,
Texas 77096, Phone 723-6345;
12. L. Q. Black, 2705 Sweetgum, Pasadena,
Texas 77502, Phone 944-9132;
209th (meets Tuesday and Thursday)
1. Mrs. Ann Sweatt, 2806 Eagle, Houston,
Texas 77002, Phone 529-8694;
2. Harold L. Matthews, 3548 Ruth, Houston,
Texas 77002, Phone 528-5195;
3. Louis Brandt (Asst. Foreman), 302
Timberwilde, Houston, Texas 77024, Phone 461-4455;
4. Wayne Wickman (Foreman), 10100 Southwest
Freeway, Houston, Texas 77074;
5. Tom Reader, P. O. Drawer 90969, Houston,
Texas 77290-0969;
6. Bill Smith, 13626 Portshire, Houston,
Texas 77079, Phone 464-3362;
7. Claudette Keis, P. O. Box 20167, Houston,
Texas 77225
.." 8. Ada Kiatta, 803 W. Friar Finch, Houston,
Texas 77025 Phone 680-0179;
9. Mary Louise Dial, 1300 Woods Edge Lane,
Houston, Texas 77024, Phone 782-2240;
10. Robert Mooring, 1202 Dorsetshire Or.,
Pasadena, Texas 77504, Phone 487-3186;
1. Connie Cummins, 11406 Greenbay, Houston,
Texas 77024;
12. Mrs. Marie Bani, 10051 Cedarda1e Dr.,
Houston, Texas 77055J
228th (meets on Tuesday and Friday)
1. Mrs. A1vera Ernestine Taylor, 1404
Dwinnel1, Baytown, Texas 77520, Phone 427-2836J
2. Ms. Donna Broussard, 11711 Pecan Gap,
Phone 558-5545
3. Janelle DeCastro, 16819 Rockstone,
Houston, Texas 77084, Phone 550-0455:
4. Bryon Calfee (Foreman), 702 DeFee,
Humble, Texas 77338, Phone 446-2886;
5. O. B. Lee, 4818 Burning Tree, Baytown,
Texas 77521, Phone 424-8231;
6. John B. Niday, Jr., Box 262003, Houston,
Texas 77009, Phone 644-3831;
7. David Contreras, 3923 McLean Rd. ,
Baytown, Texas 77521, Phone 424-1686;
8. Robert A. Barnard (Foreman), 19911
Pinewind, Humble, Texas 77346, Phone 852-1935;
9. Ms. Bennie Kadjar, 3404 Creekbend Dr.,
Baytown, Texas 77521, Phone 422-6766;
10. Robert McFarlane, 734 International Blvd.
*64, Houston, Texas 77024, Phone 683-0890;
11. Isabel Vara, 904 Maltby, Houston, Texas
77011, Phone 926-2981;
12. Robert F. McWhirter, 7900 Bellaire '101,
Houston, Texas 770361
230th meets Monday and Wednesday
1. Frank Schulman, 8002 Skyline, Phone
782-8192;
2. W. Lane Rivers (Foreman), 13635 Pine
Rock, Houston, Texas 77079, Phone 468-5218;
3. David Galiado, 8503 Ferraro Lane,
Houston, Texas 77037, Phone 448-7677;
4. Ella Oliphant, 3915 Madden, Houston,
Texas 77047, Phone 738-6502;
5. J. Wayne Roberts, Phone 333-5814;
6. Jo Laydde Boies, 1702 Vassar, Houston,
Texas 77098, Phone 523-3339;
7. Inez Bonney, 1601 Gregg, Houston, Texas,
Phone 227-7374;
8. Victoria Richards (Asst. Foreman), 3729
Rio Vista, Phone 747-5994;
9. Lydia Velasquez Myers, 10715 Sage Berry,
Houston, Texas 77089;
10. Albert Charles Evers, 10402 Hinds,
Houston, Texas 77034, Phone 946-4212;
11. Yolanda Manrique, 3851 Teakwood, LaPorte,
Texas 77571;
12. George Binder, 3 Gessner, Houston, Texas
'77024, Phone 464-9215;
232nd meeta Wednesday and Priday
1. Mrs. Frank E. -Hellen- Nelson, 2701
Virginia, Baytown, Texas 77520, Phone 422-8039:
2. Abner Anderson, Jr. (Asst. Foreman), 5630
Benning Dr., Houston, Texas 77096, Phone 721-2380:
3. Landon V. Davis, Jr., 13328 Oak Leaf
Lane, Houston, Texas 77015, Phone 453-1081:
4. Claro Carreon, 4402 Lido Lane, Houston,
Texas 77092, Phone 686-8378:
5. Mrs. James L. -Myrtle- Walker, 11702
Wendover, Houston, Texas 77024, Phone 465-1126
6. Julias Wilburn, 3722 Ward, Houston, Texas
77021, Phone 747-4873:
7. Olga R. Gallegos, 8182 Juliabora,
Houston, Texas 7io17, Phone 644-8881:
8. Mario Quintero, 2 Mockingbird Circle,
Houston, Texas 77074, Phone 772-0940:
9. Mrs. Noble D. -Alline- Jones, Jr., 408
South Burnet Dr., Baytown, Texas 77520, Phone
424-5763:
10. Edna Ruth Pr ice, 2603 Noble Street,
'Houston, Texas 77026, Phone 228-2577:
11. Robbie Ray deVires, 802 Piney Pt.,
Houston, Texas 77024, Phone 467-1216:
12. Fred Van Osdell (Foreman), 3822 Drummond,
Houston, Texas 77025, Phone 665-2001:
RECEPTIONIST WANTED FOR SMALL
DOWNTOWN LAW FIRM IN THE TEXAS
COMMERCE TOWER. CALL KATHERINE
SCARDINO AT 229-9292.
Listed below you will find a list of the
Grand Jury Bailiffs' and District Attorneys's
names, phone numbers and address and District
Clerk' s off ice phone number for Grand Jury
questions.
1. Bailiffs: Henry Callahan, Johnny Scott,
Cindy Thorpe (Phone 22l-5880)
2. District Attorneys: Jim Mosely, Chief:
Eldred Hammond, Allen McAshan, Chuck Cottingham,
Cheryl Turner and Don McCormick (Phone 22l-6170)
3. Disrict Clerk's Office for Grand Jury
Questions (Phone 221-7857)
4. Grand Jury Address: 201 Fannin, 9th
Floor, Houston, Texas 77002
WANTED PUBLIC DEFENDERS -
EXCELLENT POTENTIAL FOR
MOTIVATED C ~ I M I N L DEFENSE
ADVOCATES. THREE POSITIONS
FOR LRIYERS, NEW GRADUATES
TO TI:O YEARS EXPER IENCE.
ONE POSITION FOR A LAWYER
WITH TWO PLUS YEARS EXPERIENCE.
SEND RESUMES TO CHARLOTTE
HARRIS, PUBLIC DEFENDER,
WITCHITA FALLS, TEXAS 76301.
rzl,urr,b
Jrjr
Gmrt{q/' fj,/,C{l/J>
101 N. Elm
Denton, Texas 76201 (817) 566-7010
Pd for by RustyO;;rcan Campa'gr, Alan levy. Treas 101 N Elm. Denton. TX 7620t
BLACKWOOD 2240305
73D15
74145
BAIL BORDS
LET US PLAB YOUR JAIL BREAK.
-
ABD,
BURlS &
-
Judge Musslewhite, looks like a courtroom should.
COURT TAL(S By Judge Shelly Hancock
I will miss the high ceiling, and the wooden pan-
Tbanks to the Harris County Criminal Lawyers
Association for providing this "Court Tales" col-
umn. If I am diligent meeting deadlines, the
county criminal and the criminal district judges
can use "Court Tales" to communicate to lawyers
such items as upcoming political events or changes
in courtroom procedures. For instance, an attor-
ney's presence is required at sentencing because
this is a critical stage of the trial. Most of
the county courts require a waiver for the law-
yer's presence on the judgment snd sentencing date.
There has been a shake-up of the location of
some of the county criminal courts. County crimi-
nal Court #4 (Judge Francis Williams) has moved
across the hall on the second floor of the crimi-
nal courts building. County Criminal Court #6
(Judge Bob Musslewhite) is now located on the 7th
floor where I used to be located. I have moved
my court (County Criminal Court #7) to the second
floor where Judge Williams held court.
This spring there will be another fruit-
basket-turn-over of some of the county criminal
courts when some construction in the old fire
station building is completed. Expect courts 13
and 14 to have their own courtrooms then. There
also may be movement this spring among courts 2,
11, 1..,and, maybe, court 10.
The county courtroom on the 7th floor of the
criminal courts building that has been occupied
by three judges: Judge Jimmy Duncan, me, and now,
WANTED BLACK PLEASE
CALL PAUL SMITH AT 271-2413.
eling. I made the move because the staff's of-
fices on the second floor is much roomier and
better arranged than those accomodations on the
7th floor. But, yes, all the courtroom on the
second floor have that certain plastiC look.
Oh well, that's progress.
The district courts have moved their court
manager and his staff to the first floor of the
criminal courts building. This space at dif-
ferent times has been the tax office, constable's
office and neighborhood justice center. Court
manager Jack Thompson invites all attorneys to
drop by and say hello. What does the district
court manager's staff do? They do a lot but
Jack makes it sound simple by answering, "assist-
ing the district courts". Drop by and let Jack
get more detailed.
The courthouse is mourning everyone's good
friend, the late Judge Carroll Weaver of the 184th
th District Court. Months ago, Judge Weaver cal-
led Judge Hearn from his hospital room. He asked
Judge Hearn to conduct the funeral service. Judge
Hearn did a wonderful but difficult job eulogizing
Judge Weaver. It was said at the funeral that
Carroll Weaver was sometimes blunt. But he al-
ways talked straight and directly from the heart.
.... so true. Good-bye Judge Weaver. You
left a mark on the many people you knew during
your 30 plus years of practicing law and being a
Judge.
TEXAS DRUNK DRIVING LAW
may be ordered directly from the
Dubl isher. Wri te Butterworths at
11004 Metric Blvd., Austin, Texas
78758 or call (512) 835-7921.
DETAI LS:
Volume 1 -- tabbed looseleaf
approx. 320 pages. Volume 2 --
tabbed looseleaf approx. 275
pages. Published January 1986.
$150.00 for 2-Volume set.

Bail Bond Service
1404 CONGRESS
HOUSTON, TEXAS 77002
(713) 227-1777
We would like to thank the HARRIS COUNTY CRIMINAL DEFENSE LAWYERS
for taking advantage of our fee program. We feel this program has afforded
additional CASH FLOW to you by paying less for bail bond fees.
LAWYERS BAIL BOND SERVICE would like to extend our low cost ree program
along with immediate jail release for your clients. We are confident as an
extension oC your office that we can represent your clients in a proCessional and
courteous manner of which you would be proud.
LAWYERS BAIL BOND SERVICE can handle your bail bond needs anywhere in
the United States. Through our Underwriting Department, we can help you take
advantage or out of town or state resources not only to pay our fees but to
collateralize or pay your rees as well.
Please call 227-1777 Cor our 24 hour immediate JAIL RELEASE SERVICE.
TER'VIS ARE AVAILABLE: BILLING TO ALL ATI'ORNEYS:
$800.00 BONDS = $13).00 + $20.00
$1,500.00 BONDS =$200.00 + $20.00
$2,000.00 AND ABOVE 1(1;16 ... $20.00
FEDERAL BONDS, MIDIlCIPAL BONDS, and JP BONDS are negotiable on a per
client basis.
HARRIS COUNTY CRIr1INAL LP.\NEPS ASSOCIATION
YOU ARE AGREAT ORGANIZATION!
THANK YOU FOR YOUR SUPPORT
JUDGE CHARLES J. HEARN
263RD JuDICIAL D I S T ~ I T COURT
W ~ ~ WASTE YOUR TIME SITTING IN COURT?
RE-ELECT JUDGE JIMMIE D U N C ~
COUNTY CRH1H1AL COURT AT LAvJ #3
"HE HAS SAVED YQUR PROFESSIOfJAL TH1E FOR 29 YEARS."
Paid for by Judge Jimmie Duncan Appreciation Committee, Gerald Payte, Treasurer,
12011 Prado Wood, Cypress, Tx. 77429
JUDGE BONNlb: FITCH
COUNTY CRIMINALCOURTAT LAw No. 13
1302PRESTON
HOUSTON. TEXAS 77002
713/221-7950
February 10, 1986
PRE S S R E LEA S E
Judge Bonnie Fitch has announced her candidacy for the
Democratic nomination to the County Criminal Court at Law
No. 13 bench.
Judge Fitch, incumbent, was appointed in August, 1985.
The Judge received her legal training at Texas Southern University
School of Law. She has been practicing May 1975 and has
experience in criminal law. She is married and has three
children.
Judge Fitch served as an Associate Municipal court Judge
for four and a half years prior to taking the County
Court bench. She has also served as a Master in the Family
District Court and as Master in Chancery in the County CiVll
Court.
Judge Fitch brings to the bench her experience as a
city Judge. She describes herself as a "people's person" and
enjoys being a part of the Judiciary. She spends her spare
time working in community service organizations. She is a
member of the American Bar Association# National Bar Association,
HOuston Bar Association, Houston Lawyers Association and
Black Women Lawyers Association. She is licensed to practice
in the State of Texas, the Southern of the United
States, the Fifth and Eleventh Districts of the United States
and the Supreme Court of the United States.
KEEP JUDGE ANGEL FRAGA
COUNTY COURT # 14
JUDGE FR,I\GA HAS BEEN I N THE GEilERAl PRACTI CE
OF lAW CIVIL &CRIMINAL FOR 24 YEARS
SERVED FeR (9) YEARS AS AN ASSOCIATE MUNICIPAL
COURT JUDGE (1974-1983)
APPOI1nED BY VOTE OF HARRIS COUNTY
COMMISSIONER'S COURT (5-0) ON JANUARY 1J 1986
TO THE COUNTY CRIMINAL COURT #14
THE FRAGA FAr'lIlY IS \1ELL KNOv!N AND RESPECTED
IN THE COW1UNITY
LET'S KEEP JUDGE FRAGA - HE IS DOING AGLJDD JOB!
fiRST COURT Of APPEALS
By Henry L. Burkholder, II I
Cases reported 1/29/85 thru 2/29/86
James McQueen v. state, 1/29/86, J. Duggan.
This case demonstrates the
PICK AND CHOSE RULE OF CONSTRUING THE EVIDENCE ON APPEAL TO
UPHOLD THE JURY'S VERDICT OF GUILT.
D was indicted for murder, but found guilty of aggravated
assault. (Never mind why, that's not important here). State's
eyeball witness saw D strike CW with a stick, lots of blood, and
the CW being assisted home by friends. Other W's said CW
complained of headaches and dizziness and that D slept all the
next day. Medical examiner testified that CW expired from club
wounds, but that the injury had to have been inflicted 8 to 24
hours before death. D argues that because of the ME's time frame,
the evidence was insufficient to find that it was his clubbing
that caused the death of the CWo The Court of Appeals held, that
the jury was free to accept the ME's cause of death, but reject
his estimation of when the cause incurred.
STATE MAY COMMENT DURING JURY ARGUMENT CONCERNING COUNSEL'S
FAILURE TO GO BACK MORE THAN TEN YEARS WITH D'S CRIMINAL RECORD.
ALSO, APPLICATION OF THE "IT'S NOT REVERSIBLE UNLESS IT HURTS"
RULE.
At trial D testified that he had not been convicted of a felony
or misd/mt in the last ten years. (Guess what happened to D 19
years ago!). S in argument to the jury trial hints that there was
a good reason why D's att did not go back past 10 years. Court of
Appeals held it was error for the state to argue to the jury that
the rules of evidence was hiding something from them. However,
the Court held the error HARMLESS, since "no new and harmful
facts were injected."
NOTE: A different result might have occurred had S told the jury
outright that D had a conviction more than 10 years old.
APPLICATION OF THE 'OBVIOUS AS ALL GET-OUT' EXCEPTION TO THE
CORRECT-GROUND CONTEMPORANOUS OBJECTION RULE.
Familiar rule that when an objection is made, the grounds for the
objection must be stated, sometime with unrealistic precision.
Here, D's counsel objected to S's jury argument concerning the
previously reviewed ground, but the only ground he could think of
quickly enough was that the argument was "horrible." CA noted
that objection was "vague and conclusory." "Nevertheless, the
[trial] court should have been made aware Qy any objection at all
that the State's argument" was improper. Error was not waived by
failure .to make a precise enough objection. NOTE: Att was excused
from having to tender a more precise ground, but was not excused
from making an objection. ---
Tony Ray Prejaean State, 1/16/86, J. Levy
HARRIS COUNTY AGREED RESET FORMS HELD WAIVERS, FOR STATUTORY
SPEEDY TRIAL PURPOSES.
Once again, the "Agreed Resee' form s tha t everyone must sign to
get out of felony court held to consti tute an excludable period
of time under the Speedy Trial Act. Opinion does not address how
an att can sign one of these forms without waiving the reset
period of time. One idea is to change the form from "Agreed
Reset
ll
to "Notice of ReseL" Also, one might write "0 demands a
speedy trial" on the form. Remember that the Act excludes periods
of delay resulting from a continuance granted at the request or
with the consent of D. Article 32A.02 section 4(3) C.C.P.
D'S DEFENSE THAT t:E HAD SPECIFIC INTENT TO COMMIT ONE CRIME DOES
NOT STOP JURY FROM FINDING THAT THROUGH THAT CRIME 0 ALSO
INTENDED TO COMMIT ANOTHER CRIME. THE DEFENSE THAT 0 COULD HAVE
ONLY ONE INTENT AT A TIME FAILS ON APPEAL.
o convicted by a jury of arson, a specific intent crime. 0
testified that he intended to start fire in building, but only as
a means of committing suicide. Viewing the evidence in the light
most favorable to the jury's verdict, the jury could have found
that 0 intended to destroy himself as well as the building.
Roy Lee Fontenot State, 1/16/86 J. Dunn.
STATE DOES NOT NEED A JUDGMENT TO PROVE UP ENHANCMENT PARAGRAPH.
D'S PRISON RECORD IS SUFFICIENT.
Record is sufficient to uphold an enhancment paragraph, where
state introduces a "pen packet" which is no more than D's prison
file. No judgment in file. However, notation in file shows ct and
cause number. CA held this was enough.
Ex parte Ernest Fivel, 1/16/86, J. Smith
FAILURE TO CONDUCT 24 HOUR HEARING DOES NOT ENTITLE 0 TO RELEASE.
o filed pretrial habeas corpus, demanding release because he was
not given a probable cause hearing within 24 hours. 0 is entitled
to PC hearing under Gerson Pugh, 420 U.S. 103 (1975). 0 is
entitled to this hearing within 24 hrs., under Sanders v. City of
Houston, 543 F. SUpPa 694 (S.D. Tex. 1982).0 IS NOT ENTITLED TO
RELEASE SIMPLY BECAUSE HE WAS NOT GIVEN A HEARING FAST ENOUGH. D
entitled to relief only if he alleges and proves no PC.
Bernard Stuart Coleman State, 1/23/86, J. Dunn
EVIDENCE INSUFFICIENT TO CONVICT D ON DWI, WHERE STATE COULD NOT
PUT D DRUNK BEHIND THE WHEEL. APPLICATION OF THE CORPUS DELICTI
RULE.
Officers arrive on scene of wreck. D, standing outside of one
wrecked car, informs officers that he was driving, and that he
ran into other vehicle. D was not alone in his vehicle. Officer
could tell D intoxed. EVI INSUFF TO CONVICT. D's statement could
put him behind the wheel, but the state could not show when D
became intoxed.
Furthermore, D's extrajudical confession alone is not enough to
convict. State must cor rob D's statement with other evidence
showing the truth of said statement. Here, no evi to corrob what
D said. Different result if (1) car was registered to D and D was
alone, or (2) eyewitnesses that D was driving alone.
COURT OF CRIMINAL APPEALS
By Cathy Burnett
David L. SCHUESSLER, No. 289-83 - Opinion on State's and Appel-
Ianfrg--Petition for Discretionary Review: Reversed/Judgment of
Acquitall Entered - Judge W. C. Davis [T. Davis, Teague and
Campbell concur in result; Onion, McCormick and White dissent] -
2/5/86
SUFFICIENCY OF EVIDENCE: WHAT IS THE PROPER STANDARD OF REVIEW
WHERE SUFFICIENCY OF EVIDENCE HAS BEEN CHALLENGED AND AN
AFFIRMATIVE DEFENSE IS PRESENTED? This was a murder prosecution
in which victim was D's 4 year old daughter; D raised insanity
defense . Cour t of Appeals reve rsed and remanded, concl ud ing that
D's affirmative defense of insanity had been adequately
established and thus, the jury finding on insanity was contrary
to the great weight and preponderance of the evidence. The same
issue was before TCA in Van Guilder (No. 899-84; delivered
11/6/85). The test, rejecting the CIA approach as creating
itself as a 13th juror with veto power over the verdict, is:
When the sufficiency of the evidence to support an
affirmative defense is at issue the appellate court must
review all the evidence presented which bears on the
affirmative defense in the light most favorable to the
implicit finding by the jury with respect to such
defense. Then, the appellate court must determine if
any rational trier of fact could have found that the
defendant failed to prove his defense by a preponderance
of the evidence.-
Here the TCA reviewed the evidence and found it legally
insufficient. Among the important factors were: State did not
produce any rebutting evidence, in fact its evidence tended to
confirm D's insanity in many respects; State's doctor declined to
express opinion on D's legal sanity and stated he believed in the
judgment of some of the defense doctors without question, he also
diagnosed D as suffering from acute paranoid psychosis; two
jailers who testified that they observed no bizarre behavior from
D saw him after he had been receiving treatment for 3 months;
evidence from the defense standpoint included recitation of
several instances of bizarre behavior from both strangers and
family members.
Cecil Lavelle ARCHER, No. 211-84 - Opinion on Appellant's
petitlon-roflDiscretionary Review: Affirmed - Judge W.C. Davis -
2/5/86
VIOLATION OF -THE RULE-: EXPANSION OF THE HARM ANALYSIS: Art.
36.03 C.C.P. is the provision concerning witnesses placed under
-the Rule-, TCA expands the harm analysis for appellate review;
the standard was previously found in Haas v. State, 498 S.W,2d
206 (1973) The former standard was:
(1) Did the witness actually hear the testimony of the
other witness, and
(2) Did the witness's testimony
testimony of the witness he actually he
contradict the
ard.
TCA
when
found first rule too narrow because it did
witnesses conferrred among themselves
not provide for
without court
permission. The second criteria was too restrictive because when
two State or defense witnesses confer outside the courtroom on a
matter pertinent to the case 'their testimony is likely to
COINCIDE, not conflict. Thus the Haas rule has been expanded as
follows:
(1) Did the witness actually hear the testimony of the
other witness, or did the witnesses confer among
themselves without court permission; and
(2) Did the witness's testimony contradict the
testimony of the witness he actually heard, or if two or
more state witnesses violate the rule by conferring on
an issue bearing on the guilt or innocence of the
accused about which they later testify, injury or
prejudice flows from testimony that either corroborates
another witness for the prosecution or contradicts
defensive testimony on that issue,
Under the instant facts the rule was technically violated by the
prosecutor's conference with 2 witnesses at the same time.
However there was no evidence to indicate that a discussion took
place between them during which an issue material to the case was
decided.
Martin Luther ADAMS, No. 364-84 - Opinion on Appellant's
petition-:tOr Discretionary Review: Affirmed - Judge Tom Davis
Concurring Opinion by Clinton; Dissenting Opinion by Teague] -
2/5/86
INDICTMENTS: NEW STANDARD FOR MOTIONS TO QUASH BASED ON NOTICE
DEFECTS: TCA overrules recent case of Jeffers V. State, 646
S.W.2d 185 (TCA 1981; Opinion on Rehearing) to the extenf-it bars
inquiry into the harm suffered by D as result of overruling his
motion to quash. TCA now adopts following two step test:
(1) Did the charging instrument fail to convey some
requisite item of -notice-
(2) If so, did this have an impact on D's ability to
prepare a defense, and how great an impact.
Case involved obscenity prosecution. Two films were seized at
same time. Information did not apprise D of which motion picture
State intended to prove was obscene. T/C should have granted
motion to quash. However, record does not show how D was
prejudiced by this defect in the charging instrument: Attorney
had viewed both films before trial, he knew that both depicted
similar behavior, he did not present a defense based on the
content of the material. [NOTE: The harm analysis used here is
similar to the Almanza stanaara in reviewing defects in court's
charge to jury. D will have to show how defect prejudiced his
substantial rights.]
Ex parte No. 68,970 - Opinion on 11.07 Writ: Relief
-eniea-=-judge Onion [Clinton dissents without opinion] - 2/5/86
COLLATERAL ATTACKS ON GUILTY PLEAS CANNOT BE BASED ON SUFFICIENCY
OF EVIDENCE CLAIM: Applicant attacked 5 aggravated robbery
convictions to which he pled guilty in 1978. Court reporter no
longer had transcript of plea hearings. Only evidence
introduced in support of pleas were written stipulations [the
stipulations established aggravated assault but did not contain
the -in the course of committing theft- language of aggravated
robbery].
HELD: Applicant may not collaterally attack sufficiency of
evidence- to support felony conviction based on plea of guilty
before the court. [Applies also to nolo contendere pleas.] TCA
reasons that because there is no federal constitutional
equirement that evidence of guilt mst be offered to corroborate
a guilty plea in state criminal prosecution, the test of
Jackson v. virgina, 443 U.S. 307 (1979) [whether any rational
trier ot.:cact couId have found proof of guilt beyond a reasonable
doubt] has no application. This opinion does NOT reach the
question of the impact of Jackson upon collateral attacks on
sufficiency where plea was -not guilty- and burden of proof is on
State beyond a reasonable doubt.
Here the Applicant did not claim his 5 pleas were
involuntary or unintelligent; did not assert innocence or that
he was misled by attorney or court. TCA seems to find
significant the facts that Applicant did not attempt to withdraw
his 5 pleas, seek new trial or appeal.
Raymond Carl FREDA, No. 119-83 - Opinion on Appellant's Petition
for DfScretlonary Review: Affirmed - Judge W.C. Davis [Clinton
dissents without opinion] - 2/12/86
ENHANCEMENTS: NO FATAL VARIANCE BETWEEN NAME OF PRIOR ALLEGED
[Bank Robbery] FOR ENHANCEMENT AND PROOF AT TRIAL [Conspiracy to
Commit Bank Robbery]: TCA announces here that it is following
the trend moving -toward a relaxation of the rigid technical
rules of the past-. The indictment alleged a prior conviction
for enhancement, naming that offense -felony of Bank Robbery.-
Proof at trial showed that D had been convicted of conspriacy to
commit bank robbery. Thus there was a variance between the name
of the prior alleged and proved. D did not show that this
varlance in any way surprised him to his preJudice. Therefore,
variance was not fatal. Aaron v. State, 546 S.W.2d 277 (TCA 76)
overruled to the extent of-conrTict.
Jacquelyn H. DREWETT, No. 292-85
- Opinion on Appellant's
Petitfon--ror Discretionary Review:
Reversed - Judge Tom Davis -
2/12/86
COURT'S CHARGE: STATEMENT NOT TO CONSIDER ABSENCE OF VIDEO IN
DWI PROSECUTION WAS REVERSIBLE ERROR: D arrested for DWI on
1/18/84 in Houston. DWI-video statute came into effect 1/1/84.
Houston [Harris County] covered by statute requiring county to
purchase and maintain electronic devices capable of visually
recording a person arrested for DWI. D was not Mvideoed
M
; she
was unable to supply a sUfficient air sample for intoxolizer
testing; D and husband [who was with her at time of arresst]
testified she was not intoxicated; officer testified to swerving,
near accident, failure to get past MS in alaphabet, strong odor
alcohol, etc ..
Over objection trial court charged jury:
You are instructed that under the laws of Texas, a
county with a population of 25,000 or more is required
to provide electronic devices capable of visually
recording a person immediately after his arrest for the
offense of DWI. Evidence has been introduced in this
case that such electronic device was not available in
Harris County on January 18, 1984, and that therefore
the officer failed to visually record the defendant in
this case. This is no evidence that the defendant was
intoxicated or was not intoxicated. In your
deliberations you shall not consider for any purpose,
allude to, comment on or discuss the unavailability of
the recording as evidence that the defendant was or was
not intoxicated. This evidence has been submitted for
the sole purpose of showing, if you so find, the
unavailability of a required visual recording at the
time of the arrest and the reason therefor.
M
TCA found that the tic instructions effectively denied D the
right to make any comment regarding the failure to make a
required visual recording during jury argument and prohibited
jury from considering the evidence reagrding the lack of the
recording. Under the statute [Sentate Bill 1, Chapter 303,
Section 24, 68th Legislature, which can be found as a note to
both Art. 67011-1, V.A.C.S. and Article 19.05 V.A.P.C.] the fact
that an arresting officer or person acting on his behalf failed
to visually record a person arrested for DWI is admissible at
trial. Therefore TCA could not conclude D was not harmed.
JAY W. BURNETT
CAMPAIGN
183rd Criminal District Court
THE FOLLOWING ATTORNEYS JOIN WITH AND ENDORSE JAY W. BURNETT IN HIS
CANDIDACY FOR JUDGE OF THE 183RD DISTRICT COURT.
Abel, Clifford Stewart
Abner, Roy
Ackerman, John
Acosta, Geraldo
Acosta, Jaime
Acosta, Rudy
Adamo, Sam
Akins, Wendi
Aldridge, Clement Jr.
Alvarez, Frank
Aninao, Tony
Asher, Paula
Ashley, Susan
Avila, Paul
Baird, Charles
Barker, John
Barrera, Ellis Jr.
Barrera, Nickolas S.
Barrow, Mike
Bass, Perry N.
Bates, W. Randolph Jr.
Beene, Roy
Behrens, Ralph
Benefield, Jim
Berg, David
Bergman, Peter A.
Bertrand, Ira
Bethea, william H.
Bires, David
Birnberg, Jerry
Bishop, David A.
Bolz, Farrell P.
Bond, George
Bosse, Fred
Bourque, Gerald
Boyd, Walter
Bradshaw, D. Channing
Bragg, Melanie
Bransford, Gladys T.
Brass, Rick
Brauer, Ken
Brelsford, H.P.
Brink, Charles "Chuck"
Bromley, William R.
Brooks, James
Brownshadel, Elton L.
Burgess, Ray
Burnett, Barbara
Burnett, Catherine
Campbell, Carson T. Jr .
Campbell, Darryl
Candelario, Elizondo
Cantrell, Don
Cantu, Felix
Capote, Rachel
Carnahan, Michael
Carpenter, Scott
Carr, Walter
Carroll, J. C.
Carter, Eric
Carter, Rayford L.
Cate, Charles C.
Chandler, George
Chavana, Hector A.
Chenkin, Ira
Clemmer, Don
Coe, John
Coleman, Frank T.
Coleman, Willie H. Jr.
Colins, Terry
Conn, Mary E.
Contreras, Juan
Cook, Bob
Cope, Rick
Cornelius, R.P."Skip"
Coyne, Bryan
Crow, John E.
Davila, Mario Jr.
Dellinger, E. M.
Detamore, Loren
Devlin, Glenn H.
Dewberry, Donald
Dickens, Ray
Dowell, Larry
Easterling, Danny
Elmore, John
Ervin, Don
Essmyer, Michael
Evans, Larry Q
Fagan, Kathryn
Fellows, Kerry
Fibich, Tommy
FitzGerald, Kerry
Flenniken, Terry
Ford, Barbara
Fosher, Mike
Fox, Jan
Frankoff, Richard
Freed, Floyd W. III
Freeman, Charles
Funchess, Jesse R.
Gailey, Patrick
Gaiser, Terrence
Garcia, Carolyn
Garcia, Esmeralda Pena
Garcia, Roger
Garza, Ed
Geiger, Kathryn
George, Mary Ann
Gerhardt, JoAnn
Gerson, Dan
Gifford, Bill
Gilbert, Larry
Gill, Johnny
Gladden, Greg
Glass, James Greg
Goberman, Michael
Goffney, Gladys R.
Goldsmith, Alan
Goldstein, Jeffrey S.
Goode, Kenneth E.
Goode, W. K.
Gordon, Lana
Gottlieb, Debora
Govella, M. Arnold
Gray, Will
Green, Bill
Greenlee, steven
Greer, DeEdward
Grends, Xavier
Griswold, Billy
Guerinot, Jerry
Habern, Bill
Hardeway, Grant
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Hartman, Robin
Hatley, Larry
Haynes, R. "Racehorse"
Hazard, George
Heath, Robert A. "Bob"
Hellums, John
Hennessey, Mary
Hess, James D.
Hickey, Francis "Frank"
Hirling, John
Hocker, Wesley
Holland, Robin "Robert"
Hooks, B. J.
Hopkins, Gerald
.... liliClI adve'thi", paid '0' by ,ay W. BurMII Campaisn Ion and (hut. Brink. T,UIU'.", 501 (a,oline, Hou"on. T.... 77002. 1701 ......
JAY W. BURNETT
CAMPAIGN
183rd Criminal District Court
THE FOLLOWING ATTORNEYS JOIN WITH AND ENDORSE JAY W. BURNETT IN HIS
CANDIDACY FOR JUDGE OF THE 183RD DISTRICT COURT.
House W.B. "Bennie"
Howard, Ramond
Howell, William
Hudson, Hal
Hughes, Frank
Hunt, Robert C. "Bob"
Humacher, Ralph
Inger, Robert
Isbell, Alan
Jackson, Thomas
James, Quincy
Jard, James
Johnson, Bill
Johnson, Charles D.
Johnson, Charles S.
Johnson, Morgan
Johnson, Travis
Jones, Barry L.
Jones, Gene
Jones, Joyce
Jones, Robert Alton
Karam, George
Kennedy, Yardley
Kuehm, Robert C.
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Lamson, Michael A.
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Lee, Peggy J.
Lee, Steve
Leeland, James H.
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Lewis, George L.
Licata, Joseph
Licata, Paul
Loftus, Harry Jr.
Lopez, Blanca E.
LOW, Albert
Lucido, Rita
Lupton, Bob
Lura, William
Maida, Sam A.
Malavis, Nicholas
Mallia, Mike
Maness, Michael
Manes, Mike
Mapes, Mike
Martin, Randy
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Mason, Hattie Sewell
McAnnelly, Robert V.
McCoy, Barney L.
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Montgomery, Robert
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Morrow, Robert A. III
Mueller, Mark
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Mulkey, Cynthia Gaskin
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Musel, Frank
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Nelson, Steven
Odom, Wendell
Oliver, Lloyd W.
Orsburn, Charles
Outlaw, will
Palmer, Mickey
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Parish, Jim
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peralez, Joel
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Poland, Kenneth
polland, Gary
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Quinn, Mary K.
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Rhodes, Willie
Rice, William C. Jr.
Ritchie, Herb
Robinson, J. W.
Rodriquez, Victor
Rosa, Victor
Rosch, William
Rose, Jim
Ross, Robert
Rothenberg, Lawrence
Rowland, Roy E.
Royce, Tommy .
Rush, Frank A.
Sanchez, Tom
Sandoval, M. T.
Sanford, Marion"Sandy"
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Saulsberry, Guy G.
Saranello, Joe
Satterwhite, Bill
Schaeffer, Bill
Schaffer, Kent
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Schilter, George R.
Schneider, Stanley
Schmidt, Chris
Schultz, Jeryl Lavay
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Shelsy, Marshall
Sheppard, Frank
Sherman, John
Shults, Robert A.
Sims, James
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Smith, J. Edwin
Smith, James Randall
Smith, Sandra
Sotolongo, Jose
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Stephenson, Michael C.
Palilicalad...llioln. paid fa. byJJyW. BumollCompollft C.ne)01,.,ond Chuck Brink,T, ...u...., 502 Co,aline, Haullafl, T....71002.(111) 2212941 .......
JAY W. BURNETT
CAMPAIGN
183rd Criminal District Court
THE FOLLOWING ATTORNEYS JOIN WITH AND ENDORSE JAY W. BURNETT IN HIS
CANDIDACY FOR JUDGE OF THE 183RD DISTRICT COURT.
Stover, Rick
Spradlin, Jim
Spurling, Dennis
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Turner, Robert
Williams, Connie
Wilner, Jeffrey
Wilson, Lee
Stafford, James
Stoval, Van
Suarez, Luis F.
T. Tyson, George Jr.
Uhran, Craig W.
Vela, Mark
Woody, Clyde W.
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Young, Charles "Rick"
Suhler, David Vercher, J. Ronald Young, Patsy
Sussman, Bob Vestal, Truett Danburg, Debra
Tarrant, Bob Villarreal, Gilbert A. Representative
Thayer, Marie
Thas, Albert
Wallace, Miller
Walsh, Gerry O'Malley
Greene, Gene
Senator
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Toombs, Helen L.
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Thompson, Senfronia
Representative
Trichter, Gary Williams, Clyde Washington,
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Craig
Whitmire, John
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Representat
GENE JONES, CHUCK BRINK, ROBERT PELTON, AND H.B. -BENNIE- HOUSE
CORDIALLY INVITE YOU
TO ATTEND
A RECBPTION
FOR
JAY W. BURNETT
CANDIDATE FOR JUDGE OF THE 18JRD DISTRICT COURT
ON THURSDAY, MARCH 13TH, 1986
AT THE INNS or COURT II
502 CAROLINE
HOUSTON, TEXAS
FROM 5130 to 'IOOP.N.
**. DONATIONS $100.00 PER PERSON **
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PlContact SANDRA WITHROW at 222-2943
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\VHAT DOES HCCl,A DO FOR THEDEFENSE BAR?
Referrals through our lawyer Referral Ser-
vice and through our membership dircc-
lOry.
HCClApublications including DOCKET
CAll.a monthly newsletter summarizing
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THANK YOU FOR YOUR SUPPORT
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Paid for by Judge Nee! Richardson campaign committee, Randall B. Strong, Treasurer.
THANK YOU FOR YOUR CONTINUED SUPPORT
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r----- Educational Programs Scheduled----....
A SEMINAR ON IMMIGRATION LAW FOR
DEFENSE LAWYERS
Addressing the new State require-
ments that criminal defendants be
admonished of the immigration con-
sequences of their plea.
Co-sponsored by Harris County
Criminal Lawyers Association,
March 13, 1986, 9:00am to ~ : 3 0 p m
South Texas College of Law, 1303
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further information contact (713)
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BOARD MEETING
Thursday, March 13, 1986 12:00
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Building cafeteria. Members are
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WHITE HOUSE SMALL BUSINESS CONFERENCE
SET FOR HOUSTON
Taxation, insurance and the need to
"balance the Federal Budget" were
common topics voiced by various state
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Contact Alex J. Cornett at (713) 660-
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Thursday, March 20, 1986, 12:00 noon,
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