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Novl Dec 1986

DOCI(ET CALL
EDITOR
Isbel l
GENERAL MANAGER
Robert Pelton
PRODucnON
Donna K. Kles zcz
DOCKET CALL is published
monthly by the Harris County
Criminal Lawyers AssO Cia tion, a
non-profit, tax exempt
professional Association of
criminal defense lawyers.
ADVERTISING RATES;
fULL PAGE ............ $200.00
1/2 Page ....... . . . .. 100.00
!/4 Page.. . ............ 50.00
DISTRIBUTION: 500 copies
monthly. Articles and other
edit o ri a l contributiolln should
be se nt to HCCLA, P.O. Box
22773, Hou ston , Texfls 77027 or
the Associ a tion office at 70S
Ha i n St. 1400, Houston, 77002.
TELEPHONE:(7!3) 226-2404.
Board or Directors
1986-87
PrClicieat
Cande lario Elizondo
Pnsicicat-[/cet
Allim C. Isbell
Yice -Pnsiciell t
Fe lix Cantu
Eecrlfary
G. Mac Secrest
Tnuurcr
Ma:ry Moore
Chir.a.
Randy McDonald
Roger Bridgwater
Walter Boyd
Mary E. Conn
Benjamin Durant
Michael Essmyer
Jan Woodward Fox
Ruben Guerrero
Jim Lavine
Harry Loftus, Jr.
Garland MoInnis
DarJid Mitcham
Wi n autraz.J
Robert Pe Hon
Riohard Trevathan
Gary Triohter
Kristine C. Woldy
Nov/ Dec 1986
CONTNTS
FROM THE PRESIDENT'S DESK ... ,.
CANDELARIO ELIZONDO 2
DWI AND THE LATE NIGHT TELEPHONE CALL ..... .
J. GARY TRICHTER 5
PROBABLE CAUSE HEARINGS ON WEEKENDS ....... .
RICHARD ANDERSON 19
SIGNIFICANT DECISIONS ........ .
HENRY L. BURKHOL
CATHERINE GREENE
DER, III
BURNETT
SDl-28
HEARSAy ........ .
ALLEN C. ISBELL
23
COMMENTS ON THE RECENT ELECTION .... ALLEN C. ISBELL
SOMETIMES THEY DO WEAR THE WHITE HAT 24
COURT TALES ....
JUDGE SHELLY HANCOCK 28
LETTERS ............. .
COLIN B. AMANN 32
THE CHAIRMAN SPEAKS ..
RANDY MC DONALD 33
ATTA GIRL/ATTA BOY ...
MARY E. CONN 33
EDUCATIONAL PROGRAMS ................................. . . 38
UARRIS COUNTY CRIMINAL LAWY[RS ASS OCIATION
Past Presidents 197f -1985
J. Anthony Friloux 1972-1973
Stuart Kinard 1973-1974
Geor'ge Luquette 1974-1975
MaY'Vin O. Teague 1975-1976
Dick DeGuer'in 1976-1977
W.B, "Bennie" House, Jr'. 1977-1978
David Bir'es 1978-1979
Wo ody Densen 1979-J980
Will Gr>ay 1980-1981
Ech,)ar>d Mallett 1981-1982
Carolyn Gar'cia 1982-1983
Jack B. Zimmer>mann 1983-1984
Clyde Williams 1984-1985
Rober't Pelton 1985-1986
rrom the President's Desk ...
By EZizondo
Our organization is doing well. We are getting the brief
bank together. I encourage everyone to submit his or her appel-
late briefs so that all of our members can benefit.
Thanks to Allen Isbell, Editor, Robert Pelton, General Mana-
ger, and Donna Kleszcz, Administrative Assistant in charge of
production, Docket Call has continued to improve. It is now a
publication we can be proud of. We have added a new column in
Docket Call entitled "The Chairman Speaks." This column will be
edited by Randy McDonald, Chairman of the Board.
For years we have talked about getting a computer/word
processor for our association but economics would not allow it.
I'm proud to say that HCCLA has now purchased a computer/word
processor. It is hoped it will alleviate much of the paperwork
that needs to be performed. I am surprised that we were able to
function without a computer/word processor for so long. My next
goal is to connect the computer with West Law so that it will
benefit all the members.
Our Board has met with the Officers and Directors of the
Black Women Lawyers Association, the Houston Lawyers Associa-
tion, the Mexican American Bar Association, the Houston Trial
Lawyers Association and the Criminal Law Section of the Houston
Bar Association. We primarily discussed the Harris County Commi-
ssioners Court ordering the Harris County Criminal District Jud-
ges to not pay court appointed counsel above a certain set fee
schedule.
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HCCLA decided that any order created by a County Commis-
sioners Court which tends to violate the terms and conditions of
Article 26.05 of the Texas Code of Criminal Procedure should by
rescinded. To that effect we have enacted the following resolu-
RESOLUTION
BE IT RESOLVED:
That the Harris County Criminal Lawyers Association, the
Black Women Lawyers Association, the Houston Lawyers
Association, the Mexican American Bar Association, the Houston
'rrial Lawyers Association, and the Criminal Law Section of the
Houston Bar Association do hereby adhere and subscribe to the
following proposition:
We propose that the District court Judges of the State
District Courts trying criminal cases in Harris County, Texas
follow the Law as set forth in Article 26.05 of the Texas Code of
Criminal Procedure entitled "Compensation of Counsel to Defend."
We propose that the fee schedule approved by the Board of
Judges and adopted by order of the Harris County Commissioners'
Court be rescinded. Said fee schedule and order violates the
terms and conditions of Article 26.05.
We do hereby encourage each and every District Court Judge
trying criminal cases to fairly compensate attorneys on a case by
case evaluation of the legal services rendered within the
perimeter of Article 26.05.
We do hereby urge each of the District Judges trying
criminal cases to follow the law, evaluate the specific situation
irlvolved in respective ~ s e and compensate counsel accordingly.
P.S.
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DWI AND THE LATE NIGHT TELEPHONE CALL--PROTEGrING
THE CLIENT AND THE ATTORNEY-CLIENT PRIVILEGE
BY J. GARY TRICHTER
I INTRODUCrION.
It is eleven o'clock p.m., the house lights are all off,
your young children are already asleep, and you and your spouse
have just crawled under your bed's covers, and, the telephone
rings. One ring, two rings, three rings, you reach for the
phone and pick it up. As you hold it to your ear, you wonder
who would be calling at such a late hour--you say "hello."
Surpise! It's your answering service or it's a direct call
from someone personally important to you who knows your unlisted
number. Indeed, it is your oldest son or daughter, your brother
or your sister, your law partner, or, it's your most valued
clie nt caIling for himself 0 r for some0 ne personaIIY close to
him.
IrnnediateI y, your brain trys tore activate its elf from its
sleep mode and you ask "What 's wrong?" The answer, says the
caller in a distress voice, "I'm under arrest for driving while
intoxicated" or "My child has been arrested for driving while
intoxicated." Then asks the caller, "What do I do?" Your
sleepy brain responds: "S t" and "that's a good question,
what do I do?"
If you continue reading this article, you will know exactly
what to do. However, if you do not, and you do not know the
answer to your question, then it is advised you never divulge to
your late night caller this article was in your hands and that
you failed to read it as they will be somewhat upset with you.
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-----------------------.... .. ---
II. UNDERSTANDING THE PENALTIES OF THE CRIMINAL OFFENSE OF
DRIVING WHILE INTOXICATED.
Driving while intoxicated (OWl) is a serious crime in
Texas. A conviction for a plain manilla OWl carries with it,
for first-time offenders unless it is probated, a minimum of
three days in jail and a $100 fine. It also mandates a minimum
suspension 0 f the 0 ffen der 's driver 's 1 icense for 90 day s On
the other side of the punishment coin, the maximum punishment
could be two years in jail, a $2,000 fine, and, a one year's
driver's license suspension.
Political action groups such as "Mother's Against Drunk
Drivers" and a growing awareness by our society of the problems
created by OWl offenders have caused the OWl penalty anty to go
up. Once found guilty of a DWI, the conviction always remains
on the offender's record. No longer can the DWI offender be
placed on deferred adjudication probation where the case is
dismiss ed up0 n suecessfu1 c omp1et ion 0 f his probationary terms
and condi t ions. In fact, all OWl convictions, whether probated
or not, are now final convictions. And by the way, don't forget
that upon conviction, the DWI offender is also required to pay
an automobile insurance surcharge.
III. WHAT IS OWl?
The offense of OWl occurs where a person drives a motor
vehicle while "intoxicated" in a public place. Sou nds simpIe,
it's not! Fir st 0 f aII, you sh0 uId note that nomental stat e,
i.e., intentionally, knowingly, recklessly or negligently, is
required for a person to commit a OWl offense.
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-------------------------------_....
Generally, the key focal point in a OWl case centers upon
the element "intoxication." It is very important to understand
that "intoxication" does not equate to "drunk." For examp 1e,
one can be intoxicated but not drunk. Further, for one to be
drunk he has to be intoxicated.
"Intoxicated" has been statutorily define in two ways.
First, a person can be intoxicated where he had lost the "normal
use of his mental and physical faculties" while he was driving.
Second, a person can be intoxicated where he had an "alcohol
concentration of .10 or more" in his blood, breath or urine
while he was driving. Note also that .10 at the time of driving
is conclusive of intoxication even if there was no impairment.
Here, too, it is important to note that a person can be
intoxicated from the use of alcohol, drugs, a controlled
substance or any combination thereof.
IV. THE DILEMMA OF THE SUSPECT CALLER.
Don't feel sorry for yourself that you were about to doze
off to dream heaven just prior to the telephone ringing. Your
call e r i s go i n g t h r 0 ugh he 11. He i sala yma n, and, i f he i s the
suspect, is facing both electronic and human agents of the
prosecution. Indeed, absent you, he is faced with all the law
enforcement power of our organized society and is inmersed in
the intricacies of substantive and procedural statutory and
constitutional law. Absent you, he wi 11 be compelled to go it
alone and make critical decisions. These decisions are ones
that by their very nature affect trial tactics and strategies--
once made, they are irreversible. Accordingly, you must act as
your caller's guiding hand and lead him through this criminal
law mine field.
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A. The Defendant Caller: Understanding What Has Already
Happened to Him.
If you are talking directly to the DWI suspect, you can
rest assured that he is already down at the arresting officer'S
headquarters and his captors are continuing in their attempts to
gather incriminating evidence from him. For your information,
he probably, upon being stopped while driving and thereafter
taken into custody, has already made an oral admission (not
electronic/audio recorded) that he had been drinking an
alcoholic beverage earlier (usually two beers), and, already
performed some motor skill demonstrations (not electronic/video
recorded). Further, he probably watched his vehicle get towed
away by a wreCker, and, he himself had his hands handcuffed
behind his back and was also towed away by his arresting
officer.
Moreover, he has most likely been told by his arresting
officer that, upon his arrival at the station house, he wi11
again be requested to: 1) make admisisions and perform a motor
skills demonstration while being audio/video electronically
recorded, and, 2) submit to a chemical test to determine his
alcohol concentration. Lastly, he wi 11 also probably be told
that, sh0 u1d her efuse to submitt0 chernicaI testing, i e. ,
breath or blood, his driver's license will automatically be
suspended for 90 days and that his refusal wi11 be used against
him in the subsequent OWl criminal prosecution.
Accordingly, now you (the guiding hand), too, understand
some of those irreversible decisions. Should the caller consent
to: rnaking a dmission s 0 f dr iving 0 r dr inking; perfor m motor
skilis demonstrationS; 0 r, submitt0 a chernical test? Whatis
.10? Arguend0 , i f he consents t0 cherni cal testing, sh0 u1d he
prov ide a b rea t h, b I 00d 0 r uri n e s p e c i me n ? On the 0 the r hand ,
if he does not, how should he refuse? Should he provide the
State with possibly incriminating evidence? How can he preserve
exculpatory evidence? How can he get out of jai I and avoid a
conviction and a possible driver's license suspension? Good
questions! I know! Please read on.
B. The Defendant Caller: What Is Presently Happening to Him?
1. Protecting the attorney/client privilege
Having the OWl suspect on the phone, you can both avoid the
first trap set by the prosecution and the malpractice suit your
caller will subsequently file against you for inadvertently
waiving his attorney/client privilege by simply telling him to
stop talking and listen. "Crazy," you think! "How can
provide the caller advice if I first don't find out the
background fact s?" Fur the r, you t h ink " c omno n sen set ell s me
that one must first hear what the client has to say before I can
advise him what to do, otherwise I will comnit malpractice."
My response to these two thoughts is" right" and "wrong"
respectively. Note that you, as the receiver of the call,
cannot see if officers are present with the caller. Note also,
t hat tel e ph0 n e s for DWI sus p e c t sin mo s t s tat ion h0 use s h a v e
been purposely placed inside rooms where everything said and
done is audio/video recorded. Therefore, in either a situation
where officers are present with the accused or his half of the
call is being electronically recorded, or both, there is no
attorney/client privilege.
This lack of privacy presents a cruel dilemna for the
novice attorney. Especially so, since our State Bar Ethical
Considerations 4-1 and 4-4 require that we vigorously protect
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I
the privilege. Of course, now the "stop talking and listen"
instruction makes more sense. Accordingly, your first two
questions to your caller ought to be "Are officers or other
persons present with you?" and "Are you ina video room?"
Again, if he is calling you from the station house, he probably,
as he talks, is confronted with both police officers and an
electronic audio/video recorder.
2. The Isolated Suspect
Should the caller say "no" to both your inquiries then feel
free to have him speak to you--unless, you hear an electronic
beep every 30 seconds or so, which of course means, the entire
conversation, both his and yours, is being electronically
recorded. Also, begin your talk with the caller by instructing
him t0 imnediate 1y tel1 you ifanyoneel se sh0 u1denter his
room.
3. The "I've got Company" Suspect
Sh0 u Id the caller say " yes" toeithe r inquiry, imnediate 1y
advise him that anything he says can be used against him (you're
saved!). Thereafter, the following is suggested:
A) Ha vet he suspect say tot he 0 ffice r "I am inv0 king my
right to have counsel present;"
B) Havet he sus pect say tot he 0 fficers "I am requesting
privacy to speak to my lawyer." Note, that the
ordinary practice of the police is to refuse such a
request;
C) Next, have the suspect say "WouId you please turn off
the audi0 / vide0 camera so I can talk morepr ivately
with my lawyer?" Note here, too, that officers
generally do not honor such requests.
Having had your caller make these statements, on
audio/videotape, you probably have protected your record for a
claim that he was denied his right to counsel.
After all, the
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officer's failure to afford the OWl suspect privacy equates to a
direct intrusion not only into the attorney/client privilege,
but also, the constitutional and statutory rights to assistance
of counsel. CIear1y, the Framers 0 f 0 ur constit uti0 naI and
statutorily rights to counsel invisioned more than just a warm
body with a bar card as assistance of counsel. Rather, their
guarantees embodied the promise that counsel would render
effective assistance, and, that assistance would be premised
upon the free flow of information between the attorney and the
client.
v. YOUR DILFJ'tlNA
At the next stage of the proceeding you, have some very
difficult decisions to make. However, to do so, the good lawyer
needs to know the following:
1) Your caller will most likely be requested to submit to
a breath test. The breath test device used in Texas
is called the Intoxilyzer. Note that this machine:
a) Is premised upon the average person and, if
your caller is not exactly average it could
unjustly convict him;
b) Does not pre servet he breath samp1e that it
tests. Hence, if it was wrong, there is no way
to prove its error. Note also, that this
device is capable of preserving the exact
breath specimen tested (so there could be a
second laboratory analysis) but our Texas law
does not require the preservation--this is so
even though it could be done for approximately
fifty cents.
c) Is supposedly effected by radio frequency
interference (RFI) or as it is sometimes
caIled, eIectr0 magneticenergy RFI can aIso
cause an erroneously high breath test result
which could unjustly convict your caller. For
example, there is some evidence that the
Intoxilyzer is effected by RFI in much the same
11
way as television/radio reception is effected
when either a hair dryer or vacuum cleaner is
turne don. For your infor rnati 0 n, comp uters,
their terminals, photocopiers, police radar
doppie r devices , and police radi 0 s emit RF1.
Note also, that the newest model Intoxilzyer
has a RFI detector. However, our Texas models
do not.
2. A Blood Test is thought to be the most accurate means
of determining a person's degree of intoxication. A
urinet est is tho ught to bet he I e ast accur ate means
Both means, however, would allow for subsequent re-
analysis by both the prosecution and the defense.
3 I0 appliesat the time 0 f d r i vi ng. A.10,
thirty minutes after driving does not automatically
equate with guilt--but, it could.
4. Ape rson isonIy de erned to have con sented toeither a
breath or blood test if he has driven on a public road
or highway. There is no deemed consent where one
drives elsewhere in a public place, e.g., a parking
lot or a beach. Therefore, if the person was not
arrested for OWl on a public road or highway and he
refuses all chemical testing, his driver's license
will not be suspended.
5. De erned consentis 0 n1y valid if the 0 ff icer requested
the chemical test according to the law. The officer
must inform the suspect, both orally and in writing,
before her e que sts the suspect 's submission tot he
test, that upon refusal: 1) his driver's license
will be automatically suspended, 2) that he has a
right to a hearing on the suspension, and, 3) that his
refusal can be used against him in any subsequent DWI
prosecution. Hence, where the law is not followed, it
may be that the suspect's license will not be
suspended if he refuses. On the other hand, where the
suspect submits to chernical testing, but the 0 fficer
has not followed the law, the test results may be
excluded from evidence (as per Art. 38.23, Tex.Code
Crim.Pro.). 6.Every OWl suspect, who submits to the
prosecuti0 n's chern ical test, has a stat utor y right t0
his own second independent blood test. However, the
second test is conditioned on it being performed
within two h0 urs 0 f his arrest . Further, the right is
additionally conditioned upon the suspect's ability to
pay and arrange for the test. Moreover, the statutory
right can be deliberately denied by the officer
without any real penalty to the prosecution. Note
also, that a suspect may have a constitutional and
statutory due process of law right to his own test
notwithstanding he has refused the prosecution's test.
7 An Int0 xiIYzer test wilIn0 t revea1 the pre senceof
drugs or a controlled substance. However, a blood or
urine will do so.
8. Opinions by the Texas Court of Criminal Appeals and by
the United States Supreme Court are suggestive that a
DWI suspect at this stage of the proceeding has no
right under the---s-ixth amendement of the Federal
Constitution to assistance of counsel. However, our
high state criminal court has expressly left open the
questions as to whether or not the right to counsel,
at this stage, exists under Art. I, SlO (Right to
Counsel), and Art. I, 519 (Due Course of Law) of the
Texas Constitution, and under Art. 1.04 (Due Course of
Law), Art. 1.05 (Right to Counsel), Art. 15.17 (Right
to Have Counsel Present at Any Police Interview), Art.
38.22 (Right to Have Counsel Present at Any Police
Questioning) of the Texas Code of Criminal Procedure.
9. Ordinarily, an arrested OWl suspect wi11 be held in
custody unless bail is made. For example, in Harris
County, a DWI suspect will remai n i n j aiI until his
tria 1 un1ess abondin the amount 0 f $800 is arranged
with the Sheriff.
10. That you, since you had the opportunity to hear and
speak to the accused, i. e. , observe his mental
faculties, might be a witness in any subsequent
criminal prosecution. Hopefully, it wi11 be as a
defense witness.
Okay, so now you know almost as much as I know. The
questions then become "What do you do?" and "What do you tell
the caller?"
My answer is that I don't know because it depends upon the
facts of each case. You might want to try to communicate with
the caller by having him respond to your questions with only
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"yes" or "no" answers. For example, you might count upwards
until the suspect said "yes" tot henumber 0 f dr inkshe
consumed, or, you might recite the various types of alcohol
until he said "yes" to the one he consumed. However, I do not
recommend this approach because it forces you to provide advice
when you have very inadequate information. In addition, I can
promise you that this method of attorney/client communication is
slow and, because it is, will be cut-off quickly by the officer.
If your caller sounds great, then you might want to tell
him to both perform a motor skills demonstration before the
vide0 camera and submitt0 an Intoxi IY zer test However, I do
not recorrmend it unless you don't mind saying !loops!"
VI. MY ADVICE.
Just 1 ike youriaw sch001 evidence professor said "DonIt
ask a cross-examination question unless you already know the
answer," your advice to the suspect/caller ought to follow the
same rationale. Therefore, I recommend you tell your caller to
respond in the following fashion:
1) Tell the officer he wi11 take the intoxilyzer test if
the officer will save the breath specimen tested.
This the officer will not do, but, since the statement
appears on videotape, a subsequent fact finder will
determine the suspect was neither unreasonable nor had
a guiItY mind, i . e, he tho ughthe wasinn0 cent
otherwise he would not have agreed to submit to a
reasonable test;
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2 ) Tel I the 0 f f ice r hewill s u bmitt0 a b I 00d t est i f a
licensed physician will perform the extraction. Note,
that ordinarily the officer will refuse this overture.
This action, too, wi 11 be preserved on audio/videotape
and will not appear unreasonable. Nor will it show
the suspect had a guilty mind. However, should the
caller actually have a sample about to be withdrawn,
then it is my advice that he refuse unless his own
personal physician actually draws the specimen;
3) Tell the officer he is not refusing either the
specific breath or blood test the prosecution is
offering, rather, he is not deciding unt i I he gets an
opportunity to discuss the facts of the case and his
decision, in private, with his lawyer. Again, as a
historical matter, this action will cause the
requesting officer to state on tape that he deems such
act ion a s aref usa 1 to s u bmitt0 cherni c a I t est i n g
Note that if this should occur, then the officer is
e qua tingare que s t for cou n s e Ito bet he s arne a s
h a v i n g a !t g u i I t Y mind If 0 f imp0 r therei s the fa c t
that such a conclusion is constitutionally
impermissible. In this regard, our new Chief Justice
of the United States Supreme Court, Mr. Reinquist, has
said that no rationale person could equate a request
for aid of counsel with a guilty mind;
4) Provide you with the full name and telephone number of
a f r i end 0 r rei a t i ve who w i I I ass i s tin rna king bond
for his release; and,
5) Tell the officer he is temporarily terminating the
i n t e r view un til you a r r i ve and s peak p r i vat ely wit h
him, and t hat aft e r s u c h con sui tat ion, he rna y s u bmi t
to a motor skills demonstration and their chemical
test. Note: It is very important that your client
understand he is to have no further communication with
his arresting officers about the facts of the case.
It is also suggested that you speak to the arresting
officer--if he will talk'to you, and he probably will not--and
tell him not to further interview your client until you or other
counsel you retain is present. As k the 0 f f ice r i f hew ill tel I
you why he arrested the caller. I f he doe s so, his s tat erne nt,
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prior to him being polished by a prosecutor, will be preserved
on the audio/videotape. Also, inform the officer that your
client is not to be further questioned or interviewed by him or
other officers. Fur the r, de t e r mine from the 0 f f ice r the e x act
location of the suspect and the specific charges he intends to
fi Ie against him. This informat ion wi 11 assist you in having
your client bonded out as soon as possible.
I n add i ti 0 n , i f you are gut s y , a g amb 1 e r, and, extremely
lucky, you too should ask the officer for a private conversation
with the suspect. He will refuse. You should also tell the
officer that your client is not refusing to testing, rather, the
problem is that you cannot advise him what to do until you can
privately speak to him. Again, if history continues to repeat
itself, he will refuse you such an opportunity. Finally, you
should ask the officer, again, knowing he is on audio/videotape
if the suspect's waiting for you to physicially come to his side
will be deemed a refusal. Historically, this has also been
de erne d by the 0 f f ice r to be ref usa I S h 0 u 1 d the proc e e ding
occur, then you probably will make a wonderful witness for your
client.
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--........ ..
VI I. YOU'VE GOO' TO KNOW WHEN TO HOLD THEM AND KNOW WHEN TO FOLD
THEM.
1. On the Caller/Suspect
If you got this far and followed my advice, then your
caller ought to put you in his will. The very next calls you
make should be a bondsman and a physician. Provide them with as
much background information about your caller/suspect as you
can. In regard to the bondsman, provide him with the caller's
location and bonding information. In regard to the physician,
ask him to call the station and attempt to arrange for a blood
test. Hewi II rnake a valuablewitness for the Defendant when
the police refuse him access to your client. Hopefully, this
doctor will be someone you have already prearranged this action
with. In addition, have your doctor attempt to actually get the
client on the telephone by calling the station to determine if
he sh0 uId be chern i caIIY tested. If he is successful, then he
could be a valuable and critical witness for the defendant as to
him not losing the normaIuse 0 f his mentaI facuities Note,
however, that the physician should be careful to not make the
defendant inadvertently make admissions on the latter end of the
call. Note, too, that the physician, as your agent, is covered
by the attorney-client privilege.
In regard to you as the attorney, attempt to arrange bond
for your clien t. Further, you sh0 u1d rnake a determinati0 n ifit
would be fruitful for you to imnediately visit your client or
17
attempt to gather other eXCUlpatory evidence, e.g., witness
names and statements from persons that defendant was recently in
their company. Remember each case turns on its own merits here
and this is one decision I leave to your good judgment.
2. On the Suspect Who Is Personally Close to the
Caller
Just as noted above, get as much information from the
caller about the arrestee as possible. Determine, if you can,
the suspect's location and all relevant bond information. Don't
forget to get the caller's phone nwnber. Armed with this
information, again, you should call the station house and
attempt to speak with your client as noted above. Again, the
aforementioned advice is wholly applicable here too!
VIII. OONCLUSION.
DWI is not only a serious criminal offense, but also, it is
a highly complicated one. Guilt and innocence is .both
determined on the basis of subjective and quasi-scientific
evidence. Itis an 0 ffensewh0 sedefenseca11s for i rrrnediate
and knowledgeable action by learned defense counsel. Indeed, it
is another example of the type of offense that lends itself to
the layman and novice lawyer easily, by their lack of knowledge
in convicting a person who is not really guilty. Accordingly,
the lawyer is cautioned to walk slowly through this criminal law
mine field. In doing sot he Iawyer doe s g reat service for the
caller/suspect.
ABOUT THE AUTHOR
J. Gary Trichter is a partner in the law firm of Mallett,
Trichter & Brann in Houston, Texas. He is co-author of the text
entitled "TEXAS DRUNK DRIVING LAW" and also writes the monthly
colwnn entitled nDWI Practice Gems" in the Voice for the
Defense. In addition, he was the topic speaker for DWI for the
1986 Advanced Criminal Law Course. Mr. Trichter has also
written many journal articles and has taught as an adjunct
professor of law at South Texas College of Law and at the
University of Houston Law Center.
18
--...... -----------------
PROBABLE CAUSE HEARINGS
ON WEEKENDS FOR MISDEMEANORS
By Richard AndBrson
On 15 November 1986 the Harris County Criminal Court at Law
Judges began weekend hearings for all defendants detained on
misdemeanor charges in the Harr is County Jail. These hearings
were initiated to comply with Gerstein v. Pugh, 420 U.S. 103
(1975) and Bernard v. Palo Alto, 699 F.2d 1023 (1993). The
Judges are currently de ndants in a federal class action suit,
pending before Judge Bue, wherein the plaintiff's are alleging
that the failure to provide a prompt determination of probable
cause (in misdemeanors) for further detention is a violation of
due process. Therefore, these hearings have been initiated to
accomplish several narrow objectives:
1) Determine Probable Cause
detention:
for further
2) Give the defendant his statutory
warnings pursuant to Article
15.17 V.A.C.C.P.;
3) Set bail according to the
adopted by the Judges;
schedule
4) Review eligibility for and grant
Pre-trial Release Bonds where appropriate.
The defendant will not be appointed counsel at these hearings, nor
will any plea be entered.
An Assistant district attorney will be present to offer a
factual recitation of probable cause for further detention.
Obviously, defense counsel is welcome to appear and be heard on
behalf of a client.
19
Under the authority of Section 75.403, Government Code, the
Judges have appointed Mr. Jim Garrett as a special judge to con-
duct the weekend hearings. Mr. Garrett is a former assistant
district attorney and had a general practice of law for over ten
years in Harris County. The past year Mr. Garrett worked for the
Harris County Commissioners Court as the Criminal Justice
Coordinator. He is appointed under the same statutory authority
used by the County Criminal Courts to appoint special judges (i.e.
Candy Elizondo, Rick Trevathan, Ray Montgomery, etc.) to call the
regular docket of a Court when the presiding judge is ill, on
vacation or otherwise unable to preside. While Mr. Garrett is
empm.,rered under the same statute, he wi 11 not appoint counsel,
take pleas, conduct trials, sign evidentiary search warrants, or
issue arrest warrants.
Mr. Garrett will also conduct emergency mental coromi tment
hearings on behalf of the Justices of the Peace and the Harris
County Probate Judges.
The prohable cause hearings are conducted in a newly con-
structed hearing room in the hasement of the Harris County Jail.
Only defendants who have been booked into the county jail will
appear before Mr. Garrett. Defendants ylho have bonded out prior
to booking will not be required to appear. Currently, Mr. Garrett
conducts the hearings between 9:00 a.m. and 3:00 p.m. each
Saturday and Sunday. The time of the hearings has not been
permanently arranged as the Judges are attempting, in cooperation
with the Sheriff, to standardize the time consistent with the flow
of prisoners from the outlying jails. Additionally, hearings will
20
CffJit;ni/ican! O<J)ecisions
FIRST COURT OF APP(ALS
By L. III
Decisions 10/1/86 through 11/6/86
JAMES MONROW LUCAS V. STATE, No. 01-85-921-Cr, 11/6/86 J. Cohen
WHEN REPEAT PROPERTY OFFENSES ARE JOINED IN ONE INDICTMENT
PUR S U ]'I. N T TOON E C R I I N ALEPIS0 D F. , A. U THO R I Z I 1'1 G i'-1 U L TIP L E
CONVICTIONS, AND THE DEFENDANT fvl0VES TO SERVER, SEPARATE
JUDGMENTS MAY BE ENTERED ON EACH COUNT.
As a general rule, only one conviction per indictment. However,
repeated property offenses may be joined in one indictment or
information, and separate convictions obtained for each count.
TPC 3.01. Where the defendant moves to sever each count, does the
trial judge enter one judgment at the end of all t:he trials on
all the counts, or instead, enter a judgment on each count at the
end of each count. We are now told: a judgment on each count is
OK (and why would anybody think otherwise?)
This case is illustrative of the sort of low level harrassment
experienced by underpaid, overworked, but ot.herwised highly
motivated court appointed appellate counsel s. Dur ing oral
argument in the above noted case, the (unnamed but well thought.
of) counsel for appellant argued long and hard and with great
sinceri ty that the only just and right. rule would be one judgment.
only per indictment. Counsel was half way through his allotted
t.ime, synthesizing various cases and statutes, when Justice
Cohen inquired: "Now counsel, this isn't: one of the burning legal
issues of the day, now is it?" The observation was well t.aken,
but beside the point. This sort of stuff would be more palatable
if there wasn't a $1500 cap on court appointed appellate work.
WILLIAM R. PABST V. STATE, No. 01-85-437-Cr, 10/30/86 J. Dunn
GETTING IT IN THE DA'S OFFICE IS OK.
Defendant complained that he was denied discovery of truck loads
of records. The opinion points out that counsel and client were
able to see the documents in a conference room. The procedure
satisfied CCP 39.14.
MARY TOWNSEND MURPHY V. STATE, No. 01-85-912-Cr, 10/30/86. J.
Evans
APPLICATION OF NEW JURY INSTRUCTION ON PAROLE LAWS TO TRIAL
AFTER EFFECTIVE DATE OF NEW RULE, BUT TO OFFENSE OCCURRING PRIOR
,... TO EFFECTIVE DATE I HELD NOT TO BE EX POST FACTO.
I f you haven't heard by now, juries are being inst.ructed on (1)
how t.he parole laws work, (2) some adjustment in t.he particular
charge given to conform to how the parole laws work to the
so NOV/DEC 1986 1
offense charged, and (3) not to try to apply (1) and (2) to
the accused before them. CCP 37.07 section 4. In t-his case, t.he
offense occurred before the effective date ofthis legislative
change, but the trial occurred afterwards. Since Article 37.07
section 4 did not change the elements of the offense, or increase
the range of punishment, the application of the new procedural
rule was not constitutionally prohibited as an ex post facto law.
MICHAEL RAY DREW V. STATE, No. 01-85-908-Cr, 10/16/86 J. Dunn
EXTRANEOUS UNADJUDICATED OFFENSES NOT ADMISSIBLE IN JURY
PUNISHMENT.
The general rule is that unajudicated extraneous offenses are not
admissible at the punishment phase of a jury. Ct is careful to
note that a million exceptions exist to this rule, such as to
rebut a defensive issue or a false impression of being good.
fOURT((NTU COURT Of APP(ALS
Decisions 10/1/86 through 11/6/86
KEVIN GERFORD ANDERSON V. STATE, No. 14-85-S76-Cr, J. Robertson,
9/25/86
A NEGOTIATED DEFERRED ADJUDICATION PLEA DOES NOT BAR THE LATER
APPEAL AFTER THE GUILT IS ADJUDICATED.
Basic rule is that when a defendant pleads guilty pursuant to an
agreed rec, and the trial court assesses within the rec, no right
of appeal except for pretrial matters raised in writing, or with
the trial court I s permission. Where the defendant gets deferred
as his plea bargain, there is no right to appeal then and there.
However, once his guilt is adjudicated, his first right of appeal
attaches. An agreed plea bargain to be placed on deferred does
not bar the later appeal. However, where the defendant enters
into a second agreed plea, at the motion to adjudicate guilt
hearing, he is barred generally from appealing, except as noted
above.
UNDER THE NEW RULES OF APPELLATE PROCEDURE, AN AGREED PLEA DOES
NOT BAR AN APPEAL FRm1 THE GUILTY PLEA OR MATTERS OCCURRING AFTER
THE PLEA.
Now is a good time to mention this. Rule 40(b) Texas Rules of
Appellate Procedure is written differently from the former
Article 44.02 Texas Code of Criminal Procedure. The new rule
states:
Notice of appeal shall be given in writing. Such notice
shall be sufficient if it shows the desire of the
defendant_ to appeal but if the judgment was
rendered upon his plea of guilty and his
punishment assessed does not execeed the punishment
recommended by the prosecutor and agreed to by the
so NOV/DEC 1986 2
defendant and his attorney, in order to prosecute an
appeal for a non jurisdictional defect or r r ~ r which
occurred prior to the entry of ~ plea the notlce shall
state . ."
The language suggests that jurisdictional error may be raised
regardless of t.he plea, t.hat the guilty plea hearing itself can
always be appealed, and matters after the plea (such as a motion
for new trial) can be raised, all without permission of the trial
court. NOTE THAT RULE 40(B) HAS A SPECIAL PROVISION FOR HOW THE
NOTICE OF APPEAL MUST BE DRAFTED. READ IT REFORE YOU GIVE YOUR
NEXT APPEAL.
MISANALYZED COURTS OF APPEALS DECISIONS
By Henry L. Burkholder III
RANDALL HAIGE JAMAIL V. STATE, No. 14-85-019-Cr, 7/10/86, opinion
by Sears, J.
(This is my second attempt to get it right).
REFUSAL TO CONSENT TO CHEMICAL TEST OF BLOOD OR RREATH
INADMISSIBLE, WHERE REFUSAL WAS MADE DURING PERSISTENT
INTERROGATION OF DEFENDANT IN VIOLATION OF EDWARDS V. ARIZONA.
In Edwards v. Arizona, 451 U.S. 477 (1981) the Court held that
once an accused invokes his Miranda right to counsel, all
interrogation must as a general rule cease. In McCambridge v.
State, No., 1086-85 (Tex. Crim. App. 5/14/86) the Court held t.hat
there is no constitutional right to counsel (under the 5th or 6th
Amendments) at the time an accused charged with DWI must decide
whether to submit to or refuse a chemical test of his blood or
breath. McCambridge left open the door ever so slightly on the
issue of counsel, however, by holding:
n[WJe do not imply that a rememdy will never be
available to a suspect who is confused when faced with
Miranda warnings and a breat.h testing decision without
the benefit of requested counsel."
In Jamail the Court recognized just such a problem. The defendant
in that case was given Miranda warnings. Apparently the defendant
was not t.otally wasted, and sensing that things were not going
his way through t.act and diplomacy, got nasty and demanded
counsel. Interrogation continued unabated, and somewhere in t.he
waive after waive of Edward violat.ions, t.he defendant. was asked
to submit to a chemical test. Naturally, t.he defendant refused.
Justice Sears wrote: "Under the facts of this case, we are
unable to separate the wrongful custodial interrogation from the
consent for a breath or blood sample. Both are fruits of the
poisonous tree." The defendant in Jamail was not. necessarily
confused by the Miranda warnings .-However, when the pol ice
continued to question in violation of the defendant's rights, the
Court found that the violation of Miranda carried over to the
defendant's decision as to whether to consent or not to the
chemical test.
SD NOV/DEC 1986 3
Last time this aut.hor analyzed this case, praises were sung to
the poor and wretched (but not under paid in this case) defense
counsel, who after a record book shat.tering defeat at the HCCLA
election polls, nevertheless managed to win this case on appeal.
However, even more praises should be sung to the real man behind
the case-Justice Ross A. Sears, who wrote the majority opinion in
Jamail. His decision to reverse a conviction in an area of law
where the appellate courts are straining to find more ways to
affirm convictions is both refreshing and courageous.
COURT OF CRIMINAL APP[ALS By Catherine Greene Burnett
fx__par:tl No. 69.574 -- Writ of Corpus.
Rei ieF Granted --Judge Onion; Judge White concurs in result
November S, 1986
FUNDAMENTALLY DEFECTIVE INDICTMENT RENDERED VOID A PRIOR ROBBERY
CASE USED AT PENALTY STAGE. NOTWITHSTANDING LACK OF PROPER
OBJECTION -- ERROR NOT HARMLESS: The rule seems to be that if
thf' pr i or conv i ct. i on was based upon a fundaments 1 I y defect i ve
indictment. which in turn would mean that the trial court aid not
have jurisdiction, the Judgment In said prior conviction and for
enhancement is subject to attack, even an 11.07 attack. Perhaps
a diFFerent situatIon exists If the defendant attacks a prior
used For enhancement on the ground that It is void
because the defendant ws I nd I gent and wi thout. counse I. Ex
Wrlit.q, 659 S.W.2d 434.
The court next assessed harm and found that this robbery
conviction was one of Five prior convictions but that the others
involved - two for possession of marijuana, one for attempted
burglary and one For burglary; and that durinq jury arquments.
prominence was gIven to the prior robbery conviction and the
prosecutor urqed t.he "ascending scale of vj()lence" type arqument.
Trle jury set punishment at 50 TDC. TeA found that there was a
reasonable plnsibillty that the evidence complained of
contributed to the punishment.
AS TO ALLEGATION THAT PROSECUTOR SUPPRESSED MATERIAL EVIDENCE
DURING THE AGGRAVATED ROBBERY TRIAL: Where app] icant acutally
knew the facts which were allegedly withheld. he cannot seek
rei jef on the basis of the state's al leqed fal lure to disclose
those same Facts. 429 S.W.2d 490. Obviously,
upon retrial. this suppression of evidence claim wi I 1 present no
problem.
* * * * ..
SO NOV/DEC 1986 4
. No. 69,463 -- Capital Murder [Death] Reversed
Judqe Teague; Concurring in result: Judges Onion, Davis. Davis,
Cl inton, McCormick and Campbell; not-participating: Judqe White
November 5, 1986
DEFENDANT'S CONFESSION INVOLUNTARY AS A MATTER OF LAW BECAUSE OF
IMPROPER WARNING: Investigating pol ice oFFicer realized that he
needed a conFession From D to make the case. D's confession and
a tape recording of an Interview with him were admitted into
evidence. The record apparently is replete with reFerences to
the fact that iF D conFessed his chances of not gettinq the death
penalty increased. etc.
However, the back-breaker is Found in the warning given by the
oFficer to the defendant that his confession could be used "For
Hnd against him". To warn an accused that his conFession might
he used for' hirn ho1ds out an inclucement For makIng the ion
and r-fmders it inadmissible as a matter of law.
!4-j S.W.2d 1035; 141S.W.2d 613;
187 S.W.2d 555. This one Fact was not controverted in any
way in the record. The Court concluded that the oFFicer's
to the deFendant caused the conFession to become
involuntary and thus inadmissible. 458 S.W.2d
(. j n .
* * * * *
No. 1103-85 Sexual At)use of Chil(j
Conviction Remanded -- Per Curiam Opinion. Judges Onion and Teague
dissenting November 12, 1986
NOTE: CA decision reversing conviction reported at 696
S.W.Zd 457
TCA REFUSES TO RECONSIDER ITS RULING THAT DEFENSE OF
"PROMISCUITY" IS UNAVAILABLE TO SAME SEX DEFENDANT AND VICTIM:
CA r,e1d that, D was improperIy denied the def'ense of' "promi selli ty"
under the now repealed V.T.C.A., Penal Code, Section 21.IO(b).
That statute spiclf'ically limited Its appl ication to ofFenses
where the victim was of' the oposite sex f'rom the acu5sed. CA
held that such Iimiting provision was an unconstitutional
violation of' the right to equal protection. and struck the
I imiting provision.
TCA had previously held that Sec. 21.10(b) was not a violation of
equal protection in an opfnion deliver'ec1 In April 1985.
v. S.W. 2d (Tex.Crim.App. No. 71 1-83. de1IverecJ
April 24, 1985. opinion on rehearing delivered on September 24.
19861 Boutwell did not address the constitutionallty of' the
statute again. TCA declines to do so in this case and remands to
CA for f'urther consideration in light of Boutwel I.
* * * * *
SO NOV/DEC 1986 5
No. 1302-85 -- Opinion on
Appe I 1 ant I s
PDR: aggravated rape conviction aFFirmed -- Judge Tom Davis:
Judges Clinton. Teague and Campbell concur November 12, 1986
NOTE: Th i sis the or i gina I AJrr:v:?n?_<'1 Jury
charge case. PDR Fol lows the remand.
CA decision is Found at 696 S.W.2d 282
JURY CHARGE -- OBJECTION INSUFFICIANT TO PUT TIC ON NOTICE AS TO
ALLEGED DEFECT: On remand CA Found harm to D was "not eqreqiou-;;".
PDR was granted to determine whether the CA applied the proper
standard For harm and whether D had properly otljected at trial.
o was on trial on two counts of agqravated rape; the aggravatinq
element in each count was that submission was compel led by threat
of death to imminently infl icted. The first count alleged the
trlreat of death was direct.ed toward complainant; second count
alleged the threat had aimed at complainant's husband. T/C
submitted both to jury and D was convicted on second count.
Error in charge occured because the aggravating element in each
count was charged in the dis junci: i ve -- i. e., jury was instruct ed
to Find D guilty of aggravated rape iF they Found he compel led
submission by force [rape] iF they found he compel led
submission by threat of death [the aggravating elementl. Witt,
this charge D could have been convicted of aqgravated rape if the
Jury bel ieved he was guilty only of rape.
On remand D contended he made a timely and specific object.ic'n to
the er ror and that the "some harm" test shou I d be app I led rathel-
than "egregious harm". D's trial objection was "ioor'ce" sr)ould
not have been defined. TCA held that objection bore no
relationship to the objection which should have been made -- that
the charqe al lowed conviction for aggravated rape in
circumstances that showed only guilt for rape. In addition TeA
held that these trial objections based on the incorrect
premise that the word "force" did not appear in the Indictment,
which it did. D agrued to TCA that if tic had sustained his
incorrect objection, tic have also removed any reference to
the term Force in other parts of the jury Instruction. In
absence of a specific objection CAc correctly utilized the
egregious harm test.
.. * * * *
WHITSITT v. Honorable LannY_fiamsax. No. 69,636
Writ of Mandamus Granted -- Judge White; Judge Campbell concurs
in results. Judge Teague dissents. Concurring Opinions by Judges
Onion and Miller November 12. 1986
MANDAMUS -- WHAT ACTION CAN TIC TAKE WHEN D WAIVES RIGHT TO
APPEAL AS PART OF RECOMMENDED SENTENCE? TeA ORDERS THAT TIC
VACATE ITS ORDER INSTRUCTING THE DISTRICT CLERK TO "HOLDt! THE
NOT I CE OF APPEAL AND SCHEDULl NG A "SHOW CAUSE
tt
HEARING TO
DETERMINE WHETHER D SHOULD BE ALLOWED TO APPEAL.
SO NOV/DEC 1986 6
F.. Jury convicted Din two cases of h1nderinq secured
creditor. In exchange for recommended sentence by state. D
aqreed to waive jury assessed punishment and right to appeal. D
waived right to appeal prior to assessment of punishment and then
orally after probation was granted. TIC followed recommended
However. D proceeded to fiIe timely notice of appeal.
TIC directed dIstrict clerk to hold notice of appeal In abeyance.
TCA agreed that tIc's action was improper. The plain language of
Article 44.08 V.A.C.C.P. shows that fording a notice of appeal is
a proceduraI matter that. sha11 "be done by the clerk". Therefore
neither tIc or clerk had any discretion. Mandamus was proper
remedy -- D had no other adequate remedy because his attempt to
appeal had been blocked by tIc and habeas corpus was not
available because D did not have "final conviction" by
Article 11.07.
CONCURRING OPINION [ONION]: It is beyond
dispute that TCA has jurisdiction to issue
writ of mandamus. However. cause would be
best left to CIA to whom appeal was taken and
whose juridlction Is involved.
CONCURRING OPINION [MILLER1: Is concerned
that parties may not realize question of 0'5
waiver of right to appeal might be contested
in CA before it receives the entire record.
Miller views State as able to file a motion
to dismiss in CA bringing up only that
portion of testimony and statement of facts
germane to queslton of appeal waiver.
.. .. * * ..
R. No. 629-82 -- Possession of Cocainf:'
Conviction Reversed: Opinion on Appel lent's PDR on Motion for
Rehearing -- Judge Cl inton; Judges Onion and Tom Davis concurring
In result. Judges W. C. Davis and Whfte dissenting November 19,
1986
NOTE: TeA's original opinion on D'S PDR
affirmed conviction.
WARRANT AFFIDAVIT -- ALTHOUGH REASONABLE INFERENCES CAN BE
DRAWN FROM INFORMATION CLEARLY SET OUT IN AFFIDAVIT. REVIEWING
COURT CAN NOT READ IN MATERIAL THAT DOES NOT APPEAR ON ITS FACE:
D argued that affidavit In support of search warrant was
insufficient under state and federal constitutions. Conviction
was affirmed by El Paso CA in unpublished opinion delivered in
,June of 1982. one year before decf s ion in .UJ.LnLQ.?_'I-!_tl?_s, 462
U.S. 213 (1983) using two-prong test of 378
U.S. 723 (1964) The CA concluded that "cumulative import" of alI
the al legations in the affidavit was sufficient.
SO NOV/DEC 1986 7
Relevant parts of the affidavit alleged that:
"A conf I dent I a I i nfor'mant. who is we I I known
In the community. a reputable person and who
is galnfUllYf employed and who affaint "'"
has known or many years to be re lab e
person. Affaint [sic] has checked cr'iminal
history on people Involved and shows
evidence the two people involved show the
most recent arrest. as Dec. 1979, arrest made
for a dangerous drug and possession of stolen
property. Surveil lance has been set up and
activity is taking place in the garage area.
where these people back their car all the way
Into the garage, where a storage is visiblv
seen directly In back of the garage area.
When Keith Henderson was observed by Affaint
[sic] on 4-2-80 carrying brick type packages
believed to be marijuana. A plastic tub with
plastic tubeing [sic] was also observed being
carried Into the back yard by one Keith
Hendel-son. I nformant has a I so ,-evea Ied that
Keith Henderson fr-equents tr',e piace on a
da I I y tJases. Th f 5 I nformat Ion has been check
out by Affalnt [sic] and surveil lance began
since March 31, 1980. bv Affaint f:::.icl. /O,f-
Main point of contention during Jury argument was Identified by
State as a credibility of D's claim he had been stabbed. To
support of this argument State stressed no knife was found. that
all the blood found at the scene was deceased's rare blood type.
that deceased was so intoxicated [.36%] as to have been virtually
defenseless, and that there was no evidence deceased was violent.
Circumstantially State highlighted evidence Inconsistent with D's
claim of ignorance of amount of blood and number of wounds
inflicted. Defense counsel rebutted state's argument. Defense
agreed that the paramount issue for Jury determination was
whether D had told the truth in claiming he had been (or at least
reasonably believed he had been) stabbed first.
A 1 though vo I untary mans I augtlter was not. necessar I 1 y an tlaft.er'
thought" as ft was in 700 S.W.2d 208. 213 the
issue of "sudden passion" was in the TCA's view "quite obviously
the least of D's priorities, Judging from his presentation of the
evidence and his argument. both of which emphasize the
Justification of his conduct under the law of self defense".
CONCURRING OPINION [ONION]: Does not believe issue of
"sudden passion" was raised.
DISSENTING OPINION [CLINTON]: Dissents for same reason
stated in Lawrence. Also takes issue with conclusion
of CA that issue of "sudden passion" was not raised.
Good discussion of evidence for what raises sudden
passion when 0 testifies he is "scared".
* * * * *
SD NOV/DEC 1986 8
Opinion on State's PDR: Competency
No. 404-84--
Hearing Upheld -- Judge W.
C. Davis; Judge Teague concurs in
by Judge Onion joined by Judge
result, Concurring Opinion
McCormick, Dissenting Opinion
by Judge CI inton November 19, 1986
SUFFICIENCY OF EVIDENCE WHAT IS THE CORRECT STANDARU FOR
REVIEW OF JURY FINDING AT D'S COMPETENCY HEARING? TCA says that
standard of proof in competency hearing is that Incompetency must
be proved by proponderance of evidence. Because standard Imposed
identical where 0 seeks to avoid criminal conviction by asserting
affirmative defense of insanity [P.C. Sec. 8.01(a)] standard of
review establ ished in Guilder, No. 899-84, del ivered November
6. 1985 should be used. When appel late court reviews sufficiency
of evidence in competency hearing, it may only ask whether the
evidence presented was legally sufficient to support jury
rlnding. CA must look at all evidence on competency in I ight most
favorable to jury finding. then determine if any rational trier
Gf fact could have found that 0 failed to prove his defense by
faint [sic] has also observed
several
narcotic users in and out of 724
Del Mar,
staying for brief periods of time."
Also contained in affidavit was statement that D was seen unlaw-
fully possessing marijuana and cocaine by the Informant within
past 24 hours, and that Affiant had good reason to believe that
drug was now concealed by 0 at 724 Del Mar Street.
TCA recognized that search warrant affidavit must be read in
common sense and realistic manner. and that any reasonable
Inferences could be drawn from facts and circumstances contained
within Its four corners.
However, this affidavit was not sufficient for the fol lowing
reasons:
1. The only information provided by the confidential Informant
in affidavit is that sometime within 24 hours of the morninq of
4-4-80 rwhen affidavit was sworn to) he had seen marIjuana and
cocaine "'!PE,!,=_en!.L2:': in DIs possession at an undisclosed location.
tlad case been dec i ded under Aqu i 1ar tt1ere wou 1 d have been a
Pl'ob 1em with the "verae i ty" it was not asserted that
informant lacked any criminal record or shown he had given
information in the past that had proved accurate. Even if total
trustworthiness were assumed on Informantls part, his information
alone fails to show contraband could be Found at 724 Del Mar
Street neither 0 nor drugs were In any way connected witt,
that address.
NOTE: Assert i on that "prem I ses are in the 5 I on
and under the control of 0" Is not attributed to
informant. It is purely conclusory '3tatement; a source
1s not qiven for it.
SO NOV/DEC 1986 9
2. Affiant stated he "checked criminal history on two people
involved" and found "the most recent arrest as Dec. 1979". for
possession of dangerous drugs and stolen drugs. The identity of
the "2 people involved" is not disclosed nor is what they are
81legedly involved In. Neutral reader is not told by what means
cr i m ina I h I story of these peop I e was checl<ed and whether "most
recent arrest" was for one or both people. Lastly, neither of
the two people Is connected in any way with the home at 724
Del Mar Street -- unless, one of them happens to be Keith
Henderson, a fact not disclosed by the affidavit.
3. A I though aff i ant st.ates that "surve I 1 1 ance was set uo" he
does not say where. While it is not totally unreasonable to
bel ieve that it was the home at 724 Del Mar that fact is "by no
means selfevident".
4. Fact that "these people" [TCA says presumably may be "two
people" alluded to above, although this is not definite) drive
their cars all the way into the garage Is not conduct which is
unusual on its face. Neither is presence of storage in a garage.
Affidavit does not state that "activity" in the garage area some-
how Involves storage faci 1 Ity.
S. Affiant states that on 4-2-80 he observed Keith Henderson
carrring "brick type packages bel ieved to be Marihuana".
Affidavit does not state how affiant can identify Henderson; does
not state where Henderson was seen earrIng the packages; cloes not
say who believed the packages to be marijuana or the basis for
th is be lief [other than the fact that they were br i ck type 1 .
TeA says significance of plastic tub and tubing Henderson was
seen carrying to the back yard "escapes us". Common knowledge
does not suggest that sale or ingestion of marijuana or cocaine
cal Is for the use of these ftems and affidavit does not set out
information to justify such conclusion as a matter of special ized
knowledge.
6. Affiant's observation of "several narcotics users in and out
of 724 Del Mar, staying for brief periods of time" was not
supported by statements of how affiant came by this information
or the basis for his bel ief that these "several" people were
narcotics users. No showing that marijuana or cocaine are amo ng
the narcotics these people are known to use. TCA notes that
although the fact that known narcotic users frequent a place For
brief stretches of time may be enough to corrobot'ate an
informant's tip, so as to combine to estab\ ish probable cause, it
does not by }t?J2.Jf provide more than a t'easonable suspicion that
contraband may be found there.
NOTE: This case is not one in which TCA was primari ly
concerned with evaluating reI iabil Ity of inFormation
that was hearsay as to the afFiant; rather focus was on
whether under the "totality of the circumstances" the
information in affidavit provided "substantial basis"
to support magistrate's findinq. """
* * * * *
SO NOV/DEC 1986 10
Jackie GOFF, No. 656-83 -- Murder Conviction Opinion or.
PDR - Per Curiam, Concurring Opinion by Judge Onion,
Dissenting Opinions by Judges CI inton and Teague November 19.
1986
NOTE: CA's opinion reported at 681 S.W.2d 619
JURY INSTRUCTION VOLUNTARY MANSLAUGHTER -- FAILURE TO PLACE
BURDEN ON STATE OF NEGATING SUDDEN PASSION IN THE APPLICATION
PARAGRAPH APPLYING LAW OF MURDER TO FACTS WAS NOT FUNDAMENTAL
ERROR REFLECTING "EGREGIOUS HARM": Jury charge here
from same I i rm i ty as I ve charge i n 0, 675 S. W. 2d
749 it to place on State the burden negating sudden
passion when charge applying law murder to the As a
result there exists a "decided I ikel ihood" the jury may have
dispossed of D's case without ever having to consider the sudden
passion issue which, raised by the evidence, must be
by State beyond reasonable doubt.
TeA t.hat any 1 " error incase was harm less
because evidence led to support the charge given on voluntary
manslaughter. D sought PDR on theory that when TeA has a
fundamental in charge, no determination harm need be
made as a prerequ is i te to reversa I . Then a I on9 comes
686 S.W.2d 157 t!.ELQ: because no object. ion to charge was made at
trial. failure to give Jury instruction authorizing conviction
for' murder I n accordance with i must create "egreg i ous
harm" reversal warranted.
TeA record and concluded that, even assuming issue of
"sudden passion arrising an adequate cause" was raised bv
evidence, voluntary manslaughter was an "incidental" theory
defense, so that the "subtle deletion" t.he State's tJUf'den
on the absence sudden passion could not "real IsticaJ Iy
be construed to Inure to D's egregious harm. evidence
here consist.ed entirely D'S testimony.
Facts show that both D and deceased had been drinking heavi Iv
all day. They initially encountered each other at a pool hal I.
where deceased was bel I igerent. Later that evening 0 went to
pick up roommate's at bar were she danced. Deceased
was there, making a pest Deceased made statement
indicating he intended to "kill" D and jabbed D in ribs with
unspec i i ed blunt obJect. Deceased then suggest.ed t.hey 00 out--
side and fight. 0 stated he intended to hit deceased with door
as they went through it, but he could do so, deceased
stabbed him In the leg. Once outside deceased with D
companion and D stabbed him. Deceased then "took running".
D's brother joined him at the door and the two of them followed
the deceased and D's out into a They found the
friend kicking deceased, who was on the ground. D and his friend
then carried the deceased to a ditch across the road. LAter,
when he learned deceased's death, 0 feared deceased rlad bled
to death from the wounds wh 1ch he had i nf I I cted, so he l'an
away. 0 never saw his friend w1th a knife and testified he never
saw a knIfe In deceased's hand. He was equally persisteant in
his test. i mony that, once stabbed, he became "scared". I n the
nature of rebuttal evidence State showed that deceased's b100rl
so NOV/DEC 1986 11
could be on the porch, In the in a stripe across the
road. and In the ditch. State also presented testimony
deceased's sister that she had never known him to carry or own 3
No was at the scene or on deceased's body.
preponderance evidence.
Doctor testified that in his opinion D was not competent
to stand trial because she could not help her trial lawyer
conduct her case; he dlagnosee] D as having "paranoid
schizophrenia". D's attorney related that week hearing.
while he was interviewing D in jai1. she began to scream that he
was insane. Doctor that this behavior was consistent
with his diagnosis. Two jatI matrons corToborated the occur'ence.
Against wishes trial counsel. D during competency
hearing -- her testimony was mostly lucid and articulate In view
TeA. Primarily D expressed frustration that her case had not
gone to trIa I and that she had not been alie cjetector
test to prove her innocence the charge that she killed her
mother. Ouring jury argument counse1 stat,ed that jury
did not need to believe what doctor said or what matron said and
that they could conclude D was merely upset.
Reviewing evidence elicited at competency hearing TeA could not
say that jury's that 0 was competent was irrational.
Considering D's testimony and jury argument her attorney, TeA
concluded it was "very easy" to see that rational trier of fact
could given D exactly what she asked -- a criminal trial
In which she could have an opportunity to establish her
innocence.
CONCURRING OPINION [ONION]: T8rming the Van
ullder test the defense rationality test"
Onion rjoined by McCormlckl can not agree with its
extension to competency hearinqs. However both would
agree that evidence was to support judgment.
DISSENTING OPINION [CLINTON]: Unl Ike insanity, penal
code does not Incompetence as a or
defense. To utilize the test urged by the
maJority. Article 46.02 V.A.C.C.P. must place the
burden of at Incompetency hearing on D to prove
incompentency by proponderance; it does not.
* * * * *
,James Benton No. 714-84 OW I ConvI ctIon i rmed:
Opinion on State's PDR -- Judge Clinton; Judge Mil jer disserts,
Dissenting Opinion by Judge Teague November 19. 1986
NOTE: Similar issues also addressed in and
both of which were delivered on same date.
EVIDENCE OF D'S REFUSAL TO TAKE A BREATH TEST ADMISSIBLE IN PRE-
1984 DWI CASES? TCA ANSWERS YES. First CA reversed D's
SO NOV/DEC 1986 12
convictions holding that tic erred in admitting evidence of his
refusal to submIt to breathalyzer test. CA ruled that state law
applicable at the time prohibited this admission and rei ied on
state author i ty independent of Fifth Amendment.
548 S.W.2d 706.
NOTE: Tex.Rev.Civ.Stat.Ann., Art. 6701L-5, Sec. 3(g)
presently allows such evidence to be admitted effective
January 1. 1984.
TCA concluded that neither Article 1, Sec. 10 of the Texas
Constitution or Article 38.22, V.A.C.C.P. afforded Qreater
protection regarding admissibility of reFusal evidence than did
FiFth Amendment.
NOTE: At least four other CAs have held there is no
independent basis in state law for excluding evidence
of refusal to submit to breath test. They Include
Dallas. Texarkana. Houston [1st], El Paso. and Corpus
Christi r opinIon for cItatIon to specific cases in
each jurisdiction.
Over 0' s object Ion. ofF I cer test i f i ed that. aFter
initially agreeing to take a test. D changed his mind and reFused
to submit. and did not thereaFter request that any test be
administered.
TCA concluded that any reI lance on Article 38.22 is
currently untenable -- reFusal of 0 to submit to breathal izer
test did not come about as a r'esult of "custodial interrogation"
For purposes of Article 38.22. Article 1, Sec. 10 of the Texas
Constitution is not violated because reFusal to submit to a
chern I ca I breath test For i ntox i cat i on I s not a f.2.!!lpeL
communication.
NOTE: JUDGE CLINTON, who authored majority opinion
In F I I ed a dissent I ng op In ion in de I I vel-ee!
the same day.
DISSENTING OPINION [TEAGUE]: In addition to reasons
stated in .Thomas. Judge Teague takes
position that "any jury would draw From a reFusal the
adverse inFerence of consciousness of quilt. i.e., that
o reFused to submit to a chemical test because he knew
the results would reFlect the many drinks he had
taken." equating taking of blood or breath From an
accused to the to give or take such a test is
nonsencical because reFusal is, by deFinition.
communication.
SO NOV/OEC 1986 13
* * * * *
tLLt;J:OEe I McG I NTY , No. 1058-84 -- DW I Conv I c-t i on Aff i rmed: on
Appellant's PDR -- Judge White; Judge Mi 1 ler dissents, Dissenting
Opini0ns by Judges CI fnton and Teague November 19, 1986
JURY CHARGE -- TRIAL COURT ACTION IN DEFINING "REASONABLE DOUBT"
OVER OBJECTION WAS WRONG BUT NOT REVERSIBLE ERROR: TcA held that
tic erred when it instructed the jury on its definition of
reasonable doubt. The charge given reads:
"A reasonable doubt is a doubt based on
reason and cornmon sense. A reasont::lb Ie doutJt
is the kfnd of doubt that would make a
reasonable person hesitate to act in the
conduct of their more serious and important
personal affairs. Proof beyond a reasonable
doubt must, therefore, be of such a
convincing character that YOU would be
wil ling to rely and act upon unhesitantly in
those most I mportant of your own affa i 1'5. ' fI
D objected to charge. TCA reviewed under to determine if
there was "some harm" to D. TCA concluded that there was no harm
because erroneous instruct i on favored D by i mpos I ng a qreatF:r
burden of proof on state.
PRE-1984 OWl D'S REFUSAL TO TAKE BREATHALIZER TEST ADMISSIBLE:
Like the 0 In above, 0 here at f i r-st agt t?ed to take test
but then refused once he was at the booking desk. D was clearly
in custody at time he refused to take blood alcohol test. but at
time he made this refusal, he had not been warned of his rights.
TCA concludes once again that Art. 38.22. Sec. 3(a)(2) Is
inapllcable since 0 did not receive the warning of Art. 38.22.
Sec. 2(a). In addition, officer's irlQuiry if 0 would take blood
a I coho I test was not an i nterrogat ion as "po lice words ancj
actions normally attendant to arrest and custody do not consti--
tut.e i nterrogat I on. " 712 S. W. 2d 499. TCA conc 1uded
that D may not. avo id mak ing dec is ion by invok ing Fifth Amendment
pr i v i I ege or prophy I act ic safeguards of M.i!::9D.9_9. Refusa I to
submit to breath test was not result of custodial interrogation.
DISSENTING OPINION [CLINTON1: Wrlile reFusal to submit
to taking a blood or breath sample is not a product of
"custodial interrogat ion" under Ar-t. 38. ,Judqe
Cl inton reviews refusal to comply with an oFFicial
request. to subml t to such a test a product of f:2rne.':!.i:--
s ion and a F01- purposes of the Texas
Constitution, Art. 1, Sec. 10. Reader is refered to
dissenting opinion In FI led the same clay.
SO NOV/DEC 1986 14
II
DISSENTING OPINION [TEAGUE): Unl ike D's in and
Bass D here was never given warn i ngs after he
was arrested or advised of the DWI Sec. 2(2) warnings.
Major i ty re 1 i ed heav i I y on 59
U.S. 553 (1983) as it did in the majority opinion in
Quipping that majority has a "Freudian love for
decisions by the Supreme Court". Judge Teague asks why
majority does not discuss opinion in __
v. McCarty. 14 S. Ct.. 3138 (1984) -- !il warn i ngs
apply to even misdemeanor tl'affic offenses.
Judge Teague would also have OWl law declared unconsti-
tutional because when accused has refused a request to
give specimen of breath or blood. that act may be
introduced into evidence at his trial; however. there
is no provision providing for jury instruction on that
issue.
Evidence of refusal is not per se probative of the
existence of any fact that is of consequence to
determination of D's guilt. Thus. refusal evidence is
not properly part of State's case in chief. It should
become admissible only where it can qual ify or disprove
contentions made by D.
Refusal to take a breath test constitutes testimonial
compulsion protected by Art. 1, Sec. 10 of the Texas
Constitution TCA should adhere to action of Supreme
Court of South Dakota on remand and and fi nd a
violation of state law.
Dissent stresses that "it is clearly coersive to grant
a suspect a right to refuse while fai I ing also to
inform him that his refusal can be used for all
practical purposes. as evidence of his intoxication.
* * * * *
M..aL\lin_{.... -1iLbJ=-AI3Q. No. 99-85 -- Murder Conviction Reversed:
Opinion on Appellant's POR Judge Onion; Dissenting Opinion by
Judge White joined by Judges W. C. Davis and McCormick Novmet>er
I'), 1986
NOTE: CA opinion reported at 682 S.W.2d 686.
WIFE WAS INCOMPETENT WITNESS AGAINST HUSBAND IN PROSECUTION FOR
MURDER OF HER ADULT DAUGHTER: FactS: At the time of the offense
Jean Willard was D's wife although divorce proceeding had already
been instituted; divorce was stil I pending one year after the
offense on day of trial. D was charged with murder of Lynn
SD NOV/DEC 1986 15
Pinyozy, Jean Willard's adult. 37 year old daughter by previous
marriage. On he date o he oense Jean Wil lard and her daughter
went to D's farm house to remove some of Mrs. Wi 1lard's
belongings. She testified that after she arrived. D took a tea
kettle away from her. hit her and broke her glasses, and then hit
her and Lynn with his fist. The two women retreated to their
vehicle in the yard. Actfng on D's pleas they returned to house
but D once again attacked them. He got a gun and shot Lynn who
was in the yard near her vehicle. Jean Willard also testified
that D forced her to accompany him to New Braunfels, and then to
Austin where she was released later that night. 0 asserted self
defense although there was some evidence that his relatives
altered the crIme scene. 0 objected to Jean Wi Ilard's trial
testimony on the basis that she was his wife and disqualified as
witness for State.
There Is no confIict between Q.9TC 573 S.W. 2d
12 and Young v. State, 603 S.W.2d 581. did not hold that
wle is a competent witnesses in any offense involving 0 where
she. although not the alleged victim in the charging instr'urnent,
is shown to have been subject to an act of assault or violence by
D during the course o the charged offense. Wife in was a
competent witness under the "minor child" exception of Art.
38.11. V.A.C.C.P. Young involved a different exception to the
article; there State attempted to claim that although wife was
not the named injured party, she was Injured when Appellant
rammed the complainant's car in which she was a passenger. Art.
38.11 exception allowing one spouse to testify against the other
"in any case where an offense involving any grade of assault or
violence committed by one against the other" has no appj ication
where "the wife was not the injured party in the case being
tried."
Trammel v. United , 445 U.S. 40 (1980) does not effect this
case because it dealt with the judicial evaluation o a court-
made priv!lege, and did not deal with a specific statut.e. As the
Supreme Court noted in footnote 9, Texas was one of eight states
that by statut.e makes one spouse incompetent to testI fy agaInst
the other.
TCA also noted that under the new Texas Rules o Criminal
Ev'dence. Rule 504, effective September 1. 1986, one spouse may
testIfy against another. This new rule however has no
appl IcabllIty to D's case because Art. 38.11 was In effect at
time of trial. Had that rule been properly appl ied. there may
have been no conviction and hence no appeal. Even though in
event of a retrial Jean Willard would be permitted to testiFy
against D under Rule 104, this fact does not call for affirmance.
DISSENTING OPINION [WHITE]: While agreeing with the
majority that the recent promulgation of rule 104 is no
justification for affirming D's conviction and should
SO NOV/DEC 1986 16
not be used before Its effective date, dissent would
hold that when the legislature revised the husband-wife
prIvilege tn 1965 [enactment date of Art. 38.111 it
abandoned the language which mandated that the witness
spouse be alleged as a victim in an indictment or
information.
* * * * *
No. 267-85 -- OWl Conviction Affirmed:
Opinion on Appellant's PDR - Judge Campbell; Judge Miller
dissents, Dissenting Opinions by Judges Cl inton and Teague
November 19, 1986
PRE-1984 REFUSAL TO TAKE BREATH TEST ADMISSIBLE IN OWl
PROSECUTION: Although the Issues here are similar to those
n:lised in Bass andtls-Q.ion discussed above, vdth each new author
of the majority opinion, different considerations are brought. to
t)ear I n addi t Ion. unI Ike and the record here shows
that 0 was 'nformed of his M rights and of some of the
consequences of his refusal to take a breath test [although he
was not told that evidence of his refusal might be used against
t) I m at his tr- i a 11 . I n one ground of error D charged that
admission into evidence of his refusal to provide a breath sample
violated state law.
NOTE: 0 asserted the evidence violated Art.
38.22, V.A.C.C.P. and V.A.C.S. Art. 6701L-5 (1977); It
violated his privilege against self IncrimInation under
Art. 1, Sec. 10 of the Texas Constitution and Art.
1.05, V.A.C.C.P.; and lastly that it violated hfs right
to counsel under Art. \, Sec. 10 of the Texas
Constitution and Arts. 1.05 and 38.22. V.A.C.C.P. TCA
noted that while these arguments all Involve state law,
they present at least three different legal theories in
a single ground of error. Here D's arguments are
sufficiently clear for court to address; however by
combining more than one legal theory in a single
ground, 0 risks rejection on ground that nothing is
presented for review. 642 S.W.2d 791
TCA found that claims admission of evidence violated Art. 38.22
and OWl law not preserved for review because they were not the
basis of a trial objection. TCA did agree that objection to
evidence as violation of state constitutional privilege against
self incrimination was preserved.
CAUTION: D filed a trial objection prior to
trial in which he stated his reliance on Art. 1, Sec.
10. During trial he made objection by reference to the
SO NOV/DEC 1986 17
trial objection. a copy of which is appended to
opinion. Because tIc accepted the objection in that
form and overruled It. and later gave 0 a contlnlng
objection on that ground, t/judge was obviously aware
of the substance of the pre-trial objection. Use of
written trial level objections are very much in vogue
since they enable defense lawyer to direct the court's
attention to substance of complaint without informing
jury of its legal foundation. But be advised under the
majority opinion there may be circumstances where this
practice does not sufficiently preserve error for
review.
Majority notes that Art. 1. Sec. 10 has been found to be more
protective than the Fifth Amendment. 707 S.W.2d ')75
Thus. while the Texas constitutional protection may sometimes "be
comparable in scope to the Fifth Amendment, an independent
examination of the history, the polley, and precedent surrounding
relevant state law is necessary before such a conclusion can be
reached." Nevertheless TCA rejects D's claim that Texas ConstI-
tution provIdes a broader scope than Fifth Amendment based on
difference in language -- Fifth Amendment is phrased "to be a
witness against himself" whereas Texas Constitution uses phrase
"to give evidence against himself".
TCA rejects argument that OWl statute compels D to refuse a
breath sample in violation of Art. 1, Sec. 10. Central to
majority's view is that State could have legitimately "relieved 0
of the relative benefit of making such a choice by compel 1ing him
to provide physical evidence". Instead, Stat.e at.tempted to
influence 0 into providing such evIdence with a threat of penalty
for refusing.
Majority found that issue of whether refusal to provide breath
sample violated the right to counsel provision of Art. 1. Sec. 10
was not preserved for review. Even though 0 cited to that
Section of the Texas Constitution in his written trial objection
TCA concluded that the citation, given the obvious relevance of
the self incrimination clause in the context of the surroundlnq
testimony and pre-trial motions, was enough to direct. TIC's
attention to the Self Incrimination Clause of Article I, Sec. 10
but did not suggest to tIc or O.A. that 0 was also raising the
Right to Counsel Clause of Art. 1, Sec. 10.
TCA found that claim admission of evidence of refusal to provide
breath sample violated D's right to counsel under Art. 38.22,
V.A.C.C.P. was not preserved because not raised in court below.
NOT ERROR TO REFUSE INSTRUCTION TO JURY ON FACT ISSUE RELATING TO
0'5 REQUEST FOR COUNSEL BEING INTERPRETED AS REFUSAL TO PROVIDE
BREATH SAMPLE: Apparently relying on Art. 38.23 V.A.C.C.P. 0
SO NOV/DEC 1986 18
------------------_......._--.
sought an instruction from TIC which would have ordered jury to
disregard any evidence of his refusal to provide a breath sample.
Such an Instructfon wouId have removed the fact. quest.i on from
jury's consideration and so did not fal I under Art. 38.23. There
was no dispute regarrding the facts surrounding D's refusal to
give a breath sample.
NOTE: Because TCA affirmed on statutory grounds.
majority express no opinion whether Right to Counsel
under Art. 1, Sec. 10 of the Texas Constitution
attaches prior to D being formally charged.
DISSENTING OPINION [CLINTON]: Although D's refusal to
take breath test. even if by silence, is not an
exercfse of the right to remain silent, it is an
involuntary expression of a consciousness of guilt.
Judge Clinton would find refusal to submit to a breath
test a violation of Art. I, Sec. 10 because it is the
"compelled communication" of a consciousness of guilt
and thus violates D's constitutional right to be free
of compulsion to "give evidence against himself".
* * * * *
9avt9 Wayne LABELLE. No. 1239-85 -- Revocation of Probation
Affirmed: Opinion on State's PDR -- Judge Miller; Concurring
Opinion by Judge CI intion. Dissenting Opinion by Judge Onion
joined by Judge Teague November 19. 1986
NOTE: On original appeal case was reversed by EI Paso
CA at 670 S.W.2d 755. TCA reversed decision and
remanded for consideration of other grounds at 692
S.W.2d 102. On remand El Paso CA once again reversed
at 698 S.W.2d 738.
MOTION TO REVOKE PROBATION -- TCA ENGRAFTS INDICTMENT RULE OF
~ Q ~ S 707 S.W.2D 900 TO THE ADEQUACY OF MOTION TO REVOKE PROBA-
TION PLEADINGS, AND REQUIRES THAT THERE BE A HARM ANALYSIS: D
was originally charged and convicted of burglary of a habitation
and punishment was assesed at 10 years probation. Four years
later State moved to revoke D's probation alleging that he had
removed and destroyed a government record; TIC revoked and
sentenced D to five years. Prior to hearing D objected to Motion
to Revoke Probation stating that it failed to provide adequate
notice. TCA agreed that reference in Motion to Revoke Probation
to_fla government record" was not merely an inadequate discription
but constituted no dlscription at all.
However. even though the motion was inadequate, D lost. TCA
adopted the new rule of Adams 707 S.W.2d 900 and applied It to
SO NOV/DEC 1986 19
motion to revoke probation In order to determine whether
reversible error has occured. D won on Issue that motion to
revoke failed to convey some requisite item of "notice". D lost
on issue of whether motion provided adequate notice upon which he
COLI 1 d prepare a defense. As In TCA rev i ewed ent i I-e record
for prejudice to D's substantial rights. Testimony showed that
counsel at residential treatment center spoke with D about the
government document, which turned out to be D's file. From this
TCA concluded that It is uncontroverted that the identity of the
government record in question was clear to D. Also of importance
-- D fai led to produce any witnesses or evidence on his behalf,
D's attorney did not argue that the act had not occured, but
rather stressed that D had been Influenced by peers; and in his
brief D failed to suggest any way in which his ability to prepare
a defense was hampered.
* * * * *
Bernard BECKNELL. No . .59,827 Murder Conviction Affirmed
-- Panel Opinion by Judge McCormick, Concurrinq and Dissenting
Opinion by Judge Teague November 19, 1986
NOTE: This is a penal opinion on direct appeal.
SEARCH AND SEIZURE UNDER FACTS OF CASE D'S FATHER COULD NOT
CONSENT TO SEARCH OF ADULT SON'S ROOM IN FA"rHER'S HOUSE: D's
father was the home owner; however he testified he was al lowed to
go Into D's room only when 0 was there. The door to D's bedroom
was padlocked and D had only key to the lock for past two or
three year's. In adcJitlon, he would eat and cook his meals
separate from the rest of family. Under these facts TCA agreed
t rlat "the th i rd party here did not exerc i se equa I contro lover
anD equal use of the premises being searched". Because D's
father lacked capacity under these facts to effectively consent
to a search, the search of D's locked bedroom was improper.
Evidence seized was gun dealer's business cards and records
showing D's purchase of two hand guns and ammunition. TCA held
that error in admitting this evidence was harmless because of
overwhelming evidence of guilt.
* * * * *
No. 551 -as Burq Iar y Convi ct jon
Remanded: Opinion on Appellant's POR -- Judge W. C. Davis; Judges
Onion and Teague dissenting to remand November 26, 1986
NOTE: CA opinion reported at 688 S.W.2d 698
JURY CHARGE -- PRESUMPTIONS -- NIGHTTIME ENTRY IN BURGLARY PROSE
CUTION: CA failed to address issue of whether tic
SO NOV/DEC 1986 20
fundamental error In giving jury charge that law presums an
attempt to commit theft if one enters a habitation at night time.
TCA relies on recent opinion in .i?rg.\'mjD...9. No. 245-85. del ivered
September 17, 1986 finding such Instruction to be error. Case
remanded to CA for review of "egregious harm
fl
under Almanza.
* * * * *
No. 632-85 -- Murder Convict.ion Affirmed:
Opinion on Appellant's PDR -- Judge W. C. Davis with Judge Tom
Davis concurring In result and Judges Onion, Clinton and Teague
dissenting November 26, 1986
NOTE: CA opinion reported at 691 S.W.2d 739
CONFESSION -- CONFE ION NOT INVOLUNTARY'BECAUSE "PROMISE" D
RECEIVED FROM POLICE WAS NOT CONDITIONED ON HIS GIVING
CONFESSION: D murdered deceased acting with deceased's
wife. Three days later he was arrested in Tennessee. He was
arraigned and an attorney was appointed for him in Tennessee.
Fa] lowing day Texas investigator went to interview D. After
meeting with out of state Investigator, Texas officer talked with
D who told him D understood his rights and that he had an attor-
ney. Officer explained to D that he was investigating deceased's
murder and that he knew what had taken place during He
also told D that deceased's wife had given statements and asked
if D wanted to talk about offense. D stated several times that
even though he wanted to talk about it. he was too young to die
and did not want to get death penalty. Officer showed D the
murder statute and capital murder statute in penal code. He read
both statutes and explained the differences to D. Officer testi-
fied that when he talked to D. based on what he knew about the
facts of the case, he considered it a murder case and not a
capital murder case. 0 told officer he wanted to talk to him but
that he wanted to see his attorney. D consulted with Tennessee
lawyer. Officer then spoke with lawyer who told officer D wanted
to talk about offense but was afraid he would get death penalty.
Officer called Texas and discussed scenario. On advice of D.A.
conclusion was reached that cases were not capital murders and
would not be accepted as such by D.A. office. If D initiated the
subject. officer was authorized to tel I him pol ice would not file
capital murder charges.
At this point Tennessee officer returned and said D wanted to
talk to Texas officer. When 0 reentered room he stated he still
had reservations about death penalty and officer asked if he
would feel better about it if officer stated In writing that a
murder charge would be filed rather than a capital murder charge.
D said he would feel better if that were done, Texas officer
executed affidavit. If was officer's position at trial that his
SO NOV/DEC 1986 21
written affidavit would hopefully lead 0 to confess. He stated
he repeatedly told 0 he could have his attorney with him or could
waive counsel.
TCA did not find this to be a classic case of confession induced
by "promise". Here "promise" was unconditional. Although
officer hoped his statement would ease D's mind so that D would
confess. it was not contingent on 0 making a statement. Decision
not to charge 0 with capital murder was not made In response to
D's w I shes or to accomodate D; I t was a ctlO ice made by the D. A.
after considering the evidence police had.
HELD: D's statements were self-motivated and voluntarily made
after D's anxiety about death penalty was shown to be ground
less. "Promise" Is made when D expresses fear prosecution for
seme offense for which he actually cannot be prosecuted. and
State explains he cannot be prosecuted for the feared offence.
fol lowing whIch D confesses.
CONFESSION NO V. PROBLEM WHERE D
INITIATES CONVERSATION ABOUT OFFENSE IN RESPONSE TO INQUIRY IF
HE WERE HUNGRY: D alleged there had been an
451 U.S. 477 (1981) violation because pol ice initiated the
conversation with him that led to his confession after he had
Invoked his right to counsel.
At his request 0 spoke with his attorney in room in
kitchen area of sherrif's office. He remained there while his
attorney went to talk to Texas officer. Tennessee officer went
into kitchen. fixed himself a cup of coffee and asked if D wanted
one. The two of them started t.a I king about var I ous th I nqs ot her """
than case. During this conversation Tennessee officer asked D if
he was hungry and D said he was but he had been unable to eat or
sleep since "it happened." He stated that he had to talk about
"this thing" to get it off his chest because he could not eat or
sleep. Tennessee officer testified that 0 told him that he had
tr I ed to exp I a I n to his Iawyer that he wanted to ta 1 k about. I
and that he knew he would have to go back to Texas but that his
attorney had not I f stened to him. At th I s po i nt
officer left kitchen and told Texas officer D wanted to talk to
him. Although told that he could have attorney with him, D
indicated that he wanted to talk to Texas officer. It was at
this point that officer gave written statement concerning capital
murder charges and 0 confessed.
TCA notes that Edwards does not forbid all conversation between
pol ice and accused. Record of facts and circumstances in ttlis
case show that D Initiated the re-interrogation about the
offense.
* * .. * *
SO NOV/DEC 1986 22
----
Blaine JON..ES. No. 759-85 -- Murder Conviction Remanded:
Opinion on Appellant's PDR -- Judge Campbell; Dissenting Opinion
by Judge Oinion joined by Judge Teague November 26. 1986
,JURY 1NSTRUCTI ON -- FAILURE TO INCLUDE ISSUE OF SUDDEN PASSION IN
MURDER APPL ICATION PARAGRAPH WAS ERROR --- CAUSE REMANDED FOR HARM
DETERMINATION: Relying on Cobarrubio 675 S.W.2d 749 TCA ffnds
jury charge error for failing to include Issue of sudden passion
in the paragraph applying the law of murder to the facts. There
was no trial objection. Test on reveiw under will be
whether error created harm so egregious as to deny D fair trial.
Case was remanded to CA because two significant decisions had
been dedded since CA opi ni on was deI i vel-ed. In CastLLl2=
707 S.W.2d 559 TCA concluded that where voluntary
manslaughter was the primary defense, then Cobarrubio error was
egreqious enough to require reversal. In constrast.
700 S.W.2d 208 holds that where voluntary manslaughter was Inci-
dental defense. the main thrust of D's case being self defense,
harm is not so egregious as to require reversal.
DISSENTING OPINION: CA had determined that error, If
any, was waived by failure to object. That was the
ground on which D's PDR was granted. Dissenters would
not send this case back to CA for harm analysis because
the issues have been clearly joined and can be 1itl-
gated by TCA. Dissenters also note that case has been
in system for over six years.
* * * * *
Q.<2E'!ald WaynE!_GOOQ, No. 773-85 -- Burglary of Habit.atlon
Conviction Reversed: Opinion on Appellant's PDR -- Judge
Campbell; Judge W. C. Davis concurring in results and Concurring
Opinions by Judge Onion (joined by Judge White), Clinton and
Teague November 26, 1986
,JURY ARGUMENT REVERSIBLE ERROR FOR STATE TO ARGUE THAT D'S
NON-TESTIMONIAL DEMEANOR WAS A INFERENCE OF GUILT: Facts: o
burgled complainant's house and restrained both complainant and
her eight year old daughter by threatening them with knife. D
subjected complainant to various forms of sexual abuse, took
money from her purse and fled. Both complainant and daughter
identified D as intruder. D t.estified and presented alibi
defense that he was at his sister's apartment; D's sister
corroborated this alibi. Durfng closing argument at guilt, D.A.
said:
"Another thIng, it fs not a contest of
backgrounds. We don't want you to convict
r
SO NOV/DEC 1986 23
anybody because he [0] hasn't got a doctor's
degree or something. That doesn't matter.
But I tell you one thing: you don't have to
go to one day of school to sit over hear
[sic] and listen to [the complainant] up here
talking about all the brutal ities and
indignities she went through. You don't have
to go through one day of school to show a
I fttle bit of concern and emotion. You
observed his demeanor in this courtroom and I
submit to you It is a reasonable deduction
that he would have reacted in some way, shown
some concern. He's just sat there cold,
unnerved, uncaring, just like he was I ike
t.hat morn I ng. That te 1 I s you a great dea 1
about him. That has nothing to do with
articulation or being able to speak or
education. No, that has to do with the fact
that he is guilty and he could care less this
week that he is guIlty and he could less back
on June 9th, 1983."
[Defense counsel objected that State was
using D's orderly demeanor in courtroom as
evidence against him, and this was outside
the record. TIC overruled objection. Later.
D.A. once again focused on D's demeanor:]
"You have heard from the evidence in
this case your [sic] are deal ing with, and,
you know, it was interesting that Mr. Parks
[Defense Counsel] got up here and talked
about, 'it Is terrible, it is tragic. it is
brutal and we al I feel sorry for her [the
complainant]. Anybody who would be able to
sympathize. would be able to have some
concern for what she went through.' Why in
the world dfdn't we see any of that in his
[D's] demeanor over here? I mean he is
conceding __II
[Once again e ~ e n s e Counsel objected and
tic overruled.]
"You know. you can be order I y and yet. st II I
show something on your face."
CA had held D.A. had properly stated his impression
demeanor on witness stand. D agreed that jury was
observe his demeanor when he was testifying as an aid in
his credfbility. But 0 argued that to al low State to
of D's
free to
Judging
attach
SO NOV/DEC 1986 24
probative force at guilt-innocence to D's orderly demeanor and
conduct whi Ie the compIa i testi f i es is as harmfu1 as
commenting on a failure to testify. TCA agreed.
Majority cites 493 S.W.2d 230 as listing the 4
acceptable areas of jury argument and demonstrated how none of 4
categori es app1ied here. AI lowing State t.o summari ze 0's
nontestimonial demeanor impermissibly placed D's demeanor before
jury through D.A.'a unsworn Jury argument. This was not a
summary of evidence. Likewise, argument was not reasonable
deduction from evidence because nontestimonlal demeanor is
it-relevant to the issue of his guilt. TCA asks, "What logical
connecti on exIsts between absence of overt sympat.hy and presence
of guilt, particularly in view of Appellant's plea of not guilty
and his presentation of an alibi defense." D's neutral conduct
was entirely consistent with his trial defense.
*' * * * *
INT, No. 227-86 BurgI ary ConvI ction
Affirmed: Opinion on State's PDR Judge Onion, Concurring and
Dissenting Opinion by Judge Teague Joined by Judges McCormick and
Campbel I November 26, 1986
NOTE: Co-D's conviction reversed at 695 S.W.2d 754
JURY CHARGE ERROR TO INSTRUCT JURY ON PRESUMPTION OF THEFT
f"ROM NIGHTTIME ENTRY IN BURGLARY CASE: Facts: D was convicted
._---
of burglary as a co-D. He stayed In van while co-D was seen by
cops entering store. TIC charged jury on presumption that:
"Our law provI des trlat the act of breaking
and entering a building at nighttime raises a
presumption that the act was done with the
intent to commit theft. Such a presumption is
rebuttable"
T/judge then charged on general law of presumptions under Sec.
2.05, P.C. Held: Nothing in burglary statutes or other statutes
indicates that a presumption from evidence arises re: proof of
Intent as an essential element of burglary. D.A. as
deductIon from evI dence that intent t.o commit theft can be
inferred from nighttime entry without consent. BUT, "The eviden-
tiary 'presumption' or permissive inference was never Intended to
I-elieve the prosecution of proving every elements of a crime
beyond a reasonable doubt or to be used in a jury charge for that
purpose." Presumption also OK for appel late review purposes, but
not as jury instruction. 0 suffered "some harm" under Almanza.
SO NOV/DEC 1986 25
Members
M
Woody S. MONICA
J. Michael MONKS
Gerald P. MONKS
Connie MOORE
Mary MOORE
Richard L. MOORE
Robert MORROW III
Robert MOST
Cynthia MULKEY
David MURRAY
Vincent MUSACHIA
N
Gabriel NAHAS
Howard NATIONS
Jay S. NEDELL
Carol A. NEELLEY
Steven NELSON
Lawrence T. NEWMAN
Jeffrey R. NEWPORT
Allan S. NIGHT
o
Douglas O'BRIEN
Michael A. OLSEN
Charles ORSBURN
Will OUTLAW
P
James L. PALMER
Robert J. PANDAK
George PARNHAI1
SO NOV/DEC 1986 26
14005 Luthe Road Houston
4189 Bellaire #200 Houston
4189 Bellaire #200 Houston
P.O. Box 300788 Houston
202 Travis #208 Houston
2100 Travis #1212 Houston
2611 F.M.1960 W.#A-10l Houston
3120 S.W. Fwy. #406 Houston
2711 Main #203 Houston
1235 No. Loop W.#1100 Houston
708 Main #1035 Houston
411 Fannin #302 Houston
3000 So. Post Oak #1400 Houston
6700 Belmont #9 Houston
2134 Richmond Houston
801 Congress #225 Houston
2600 Lazy Hollow #1012 Houston
9039 Katy Fwy. #203 Houston
2502 Fannin #100 Houston
3100 Weslayan #369 Houston
200 Lyric Centre Houston
320 Main St., #200 Houston
1314 Texas Ave. #1201 Houston
2323 So.Shepherd #1100 Houston
1118 E. Brown Deer Park
2100 Travis #1200 Houston
77039 590-9009
77025 661-7400
77025 669-0248
77230 622-6223
77002 225-3100
77002 224-6843
77068 444-7279
77098 526-9269
77002 650-0598
77008 863-8766
77002 228-5197
77002 227-7273
77056 960-9690
77005 439-1680
77098 520-9119
77002 222-0862
77063 622-1060
77024 468-8850
77002 659-6666
77027 877-8886
77002 223-8411
77002 227-8201
77002 222-1581
77019 520-0404
77536 446-1027
77002 224-3967
------------------...
Jerry PATCHEN 1400 Congress Houston 77002 228-4888
William M. PAVLOV 1221 Lamar #1220
Houston 77010 650-3500
Vic PECORINO 650 North Belt E.#105 Houston 77060 445-5777
Robert PELTON 1610 Richmond Houston 77006 524-8471
Joel PERALEZ 2701 Louisiana Houston 77006 520-6056
Alan PERCELY 9801 Westheimer #345 Houston 77042 468-7940
Ira PERZ 502 Caroline #200 Houston 77002 224-7640
John F. PHILLIPS 7326 Tall Pines Houston 77088
Margaret POISSANT 3000 Post Oak Blvd.#130Houston 77056 621-1810
Kenneth R. POLAND 2255 Braeswood Park Dr.Houston 77030 797-1848
Gary POLLAND 1600 Summit Tower Houston 77046 621-6310
William B. PORTIS 1001 Texas #230 Houston 77002 224-6873
Charles PORTZ 609 Fannin #1000 Houston 77002 223-5299
Patricia A. POWELL 723 Main St.#232 Houston 77002 224-1161
Rick PRINZ 333 Clay St.#2323 Houston 77002 651-9111
Terry PROCTOR 630 Uvalde Houston 77015 453-8338
Carl R. PRUETT 202 Travis #306 Houston 77002 228-6050
Q
Mary K. QUINN 320 Main St. 100 Houston 77002 237-9100
R
Leon RADINSKY,JR. P.O. Box 1306 Houston 77001 663-7701
Scott RAMSEY 3000 Smith Houston 77006 520-1620
Steven C. ~ P O P O R T 3620 Broadway Houston 77017 645-5225
Clayton RAWLINGS 1927 Norfolk Houston 77098 520-7701
Mary M. RAlvLINS 1800 Lyric Centre Houston 77002 222-6464
T.M. REARDON 2701 Louisiana Houston 77006 524-3537
Leonard REINA 3303 Louisiana #140 Houston 77006 520-5535
Frumencio REYES 3702 N. Main Houston 77009 869-5977
Willie J. RHODES 1314 Texas Ave. #401 Houston 77002 228-9903
Jesus C. RIOS 13700 Stuebner Air. Houston 77014 586-7580
SO NOV/DEC 1986 27
"'"
Herb H. RITCHIE 3407 Montrose #205 Houston 77006 521-9216
Tom ROBERSON 467 Clingham Drive Houston 77024 464-6035
Sylvia ROBERTSON 2700 Post Oak Blvd#1520Houston 77056 621-7878
Robert RODRIGUEZ 2640 Fountainview #100 Houston 77057 977-1481
Roy T. ROGERS 4001 Leeland Houston 77023 224-2415
William G. ROSCH 707 Travis #2100 Houston 77002 222-9595
James ROSE 506 Caroline #300 Houston 77002 228-2346
Marian S. ROSEN 1800 Lyric Centre Houston 77002 222-6464
Steven R. ROSEN 2502 Fannin #100 Houston 77002 659-6666
Robert ROSENBERG 1914 Memorial Way Houston 77007 861-9271
Leonard ROTH 3401 Louisiana #220 Houston 77002 520-8155
Lawrence ROTHENBERG 1800 W. Loop S.#1310 Houston 77027 961-0841
Roy E. ROWLAND 720 Bayland Houston 77009 861-0782

Joseph II. RUMBAUT 1001 Texas Ave.#500 Houston 77002 227-0130
R.S. RUTHERFORD 1812 Lubbock Houston 77007 880-8310
SD NOV/DEC 1986 28
eventually be held each weekday evening from 10: 00 p.m. to 2: 00
a.m. in order that no misdemeanor defendant will ever be held in
the County Jail over 24 hours before seeing a magistrate.
Spanish speaking bailiffs are provided by the Sheriff's
offjce to assist with Spanish American prisoners and a videotape
library of the statutory warnings in a variety of foreign langu-
aqes is in the works to assist in handling all foreign defend-
ants.
The Harris County Pre-trial Services Agency has expanded to
i_nterview each defennant appear ing for a hearing. Except that
Pre-Trial Services will not interview nor assist in the release of
any defendant who is in the process of being released on a surety
hondo The hearing officer will be kept abreast of the status of
any surety hondo Likewise, these interviewers are fluent in
Spanish to assist Mexican American defendants. The interview is
completen before the defendant appears for his hearing and the
interview sheet is completed and hefore the hearing officer at the
time of the hearing. Therefore, a timely determination for
release on personal bond may be made.
Long range plans include a closed circuit television system
so that defendants held in outlying city and county jails may be
promptly brought before the hearing officer via a telecommunica-
tions network. Finally, the judges hope to continue refining the
process to provide for the eff icient but fair hand ling of all
misdeMeanor detainees. If you have any questions, comments or
suggestions please contact Judge Sherman Ross.
21
Charles Freeman has written the following
motion which he files when he is shipped to the
newly created "Impact Courts".
MOTION CHALLENGING JURISDICTION OF
THE COURT, JUDICIAL POWER OF THE COURT,
ASSIGNMENT OF THE JUDGE, AND POWER OF THE JUDGE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the accused in the above-entitled
and numbered cause, and moves this Court to
decline to try said cause herein, and in support
hereof would show this Court as follows:
I.
That the 174th Judicial District Court of
Harris County, Texas, does not have jurisdiction
over said cause.
II.
That implementation of so-called "impact
courts" in Harris County, Texas, one of which is
this Court, violates the Division of Powers
Doctrine, nullifying and voiding such implemen-
tation thereof.
III.
That neither the Constitution, nor the
Legislature, of this State has established this
Court.
IV.
That there is no judicial power vested in
this Court1 and no jurisdiction for this Court to
exercise and that there are no lawful orders for
this Court to enforce thereby.
V.
That the Honorable Judge , was neither
elected by the qualified voters nor validly
assigned to the 174th or the Judicial District
Courts of Harris County, Texas.
VI.
That the Honorable Judge ____, has none of
the powers of a district judge.
VII.
That no rule authorizes any district court
judge to act in a cause over which said district
court judge's own court does not have jurisdiction
under the Constitution and laws of this State.
VIII.
That for this Court to try said cause
violates said Accused's substantive rights under
the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution; under Article I,
Sections 3, 3a, 10, 15, 19 and 29, Article II,
Section I, Article V, Sections lr 2, 7, 8 and 11,
and Article XVII, Sections 1 and 2, of the Texas
Constitution; under Sections 1.001(bl, 21.001(a),
24.007, 24.008, 74.031, 74.033, 74.034, 74.036(a),
74.061 and 75.011 of the Texas Government Code;
under Articles 1.03(5), 1.04, 1.05, 1.27 and 21.30
of the Texas Code of Criminal Procedurei under
Section 1.02(6) of the Texas Penal Code; and,
under applicable federal and state law.
WHEREFORE, PREMISES CONSIDERED, Accused prays
this Court (1) conduct a pre-trial evidentiary
hearing as to the foregoing allegations; (2) make
written findings of fact and conclusions of law
attendant theret01 and, (3) grant Accused's Motion
Challenging Jurisdiction of the Court, Judicial
Power of the Court, Assignment, of the Judge, and
Power of the Judge, and decline to try said cause
herein.
Respectfully submitted,
let's ~ e r From You!
We want to hear from youl 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 participationI
22
leads the "Texas Throwdown Band", an outstanding
Hearsay... By AUen C. IsbeU
If you passed Judge Mary Bacon's courtroom local Country and Western Band. They recently
P
erformed at the Cattleg ard f J d '1
an
d
saw Wa
1
ter Boyd making an impassioned jury u or u ge BJ. 1
argument, with no one present but Walter and the Ragan's benefit. The band appears at area clubs
Court Reporter, you may have thought that Walter and is the opening act for many famous singers. If
had finally cracked. Story is that visiting Judge the man in front of the band, under the cowboy
Frank Pr'ce limJ.ted h . hat, seems vaguely familiar, that is Louie.
t e Jury argument to 15
minutes on an habitual case, and Walter thought he Congratulations to Jim Steele, who persuaded
needed more time. So, he made his bill of a jury to give his client probation after
exception containing what he would have said, if convicting him of aggravated sexual assault.
given more time. Maybe the Court of Appeals will is our expert on STA.
find it more interesting than who Clyde Williams and Denise Collins are on a
left, saying, "I've heard one jury argument by roll. Three Not Guilty's in a month. In another
Walter; I'm not going to listen to another one case, client got a 5 year probation for aggravated
twice as long." robbery and one of the jurors offered the client a
Jerri L;ttle, . . job after the trialI
J.S now an assJ.stant Attorney
General with the highway division. In Rockport, that "famous Houston lawyer" is
Mac McInnis, Professor Peter Murphy, Gayla Walter BoydI, who returned for a second murder
Sims, and Walter Boyd were among those attending trial that brought T.V. and front-page coverage.
the new Houston House TheatreIS, opening play Becoming an "Habitual" in marriage Walter and
about an English barrister. This new theatre Virginia Boyd married each other for the third
. t 1 ) time November 1 1986 . G 1
(F
annJ.n a Lee and in downtown area, promoted by " J.n aveston. Congratu-
Marty & Lois Fleck, also has a happy hour, 4:00 lations to Walter and best wishes to Virginia.
p.m., Thursday, Friday, and Saturday, serving Gary Trichter has met with appropriate
wine, beer and popcorn. authorities conerning police officers impersona-
Ms. Cynthia Gaskin Mulkey is our resident ting lawyers. He has shown them the "light", and
expert on Tate v. Short writs. Got one granted in they promise not to do it again. Rumor is that
Judge Pruett's Court _ one of our reporters ran threatened that defense lawyers will start
into Cynthia's very satisfied hot check client. impersonating policemen (under the legal theory of
Mary Conn has also been successful in this area. "what's good for the goose is good for the
As if Jim Skelton and Walter Boyd aren't already gander") and to protect the image of the police,
fighting over enough already, both are bidding for they agreed to stop
the affections of Cynthia. It's a draw so far, One Defendant wanted his case transferred out
since neither has been the least bit successful. of the l76th because he heard the Judge was "the
Ask Skelton about his recent date, who ended up meanest" in the courthouse, and that he put his
wai ting for him outside Fort Bend jail for two own wife on probation, and had convicted his own
hours in very cold weather while Jim talked with a son. Judge Hatten denies this is true - at this
client. As for Boyd,
no one w ~
'II
a
d'
mJ.t ever having
time.
The Honorable Angel Fraga held an Appreciation
a date with him.
Reception at Primo's on November 25. Over 100 sup-
Harold Metts, president of Houston Bar
Association, and Board of Directors for the porters and friends attended the fajitas fare.Judge
Felix Salazar did a yeoman job as MC. In attendance
Houston Bar Association hosted a luncheon for the
were HCCLA president, Candy Elizondo, M.A.B.A. Pres-
directors and officers of the H.C.C.L.A. in
ident, Berta Mejia; J.e. Castillo,
conjunction with the jointly sponsored criminal
Ruben Guerrero, Frumencio Reyes, and Judges Robert
law seminar October 31st. It was a first step in
Lowry, Eric Andell, Al Leal, Bonnie Fitch, Francis
bringing better communications between the two
W i l l ~ ~ and Carolyn Day Hobson. Past-President,
associations.
Robert Pelton chaired the event.
For us who watch Cybil Shep ard: Marilyn
Joseph M. Rumbaut ended an agonizing trial on
Turboff's sister wrote the script for a recent
a drug case in Federal Court with a mistrial for
"Moonlighting" episode.
In the "criminal defense lawyers are really his client on all counts after everyone else in
interesting people department," Louie Crapitto the conspiracy pled or was found guilty.
23
commENTS ON THE RECENT ELECTION
By AZZen C. IsbeZZ
Congratulations to the newly elected Judges, Some races were extremely close. The difference
who faced contested races. oetween victory and defeat in the C.C.C.L.#13 race
Chief Justice Frank Evans (1st Court of Appeal) was .4%; in the C.C.C.L.#4 race 1.2%. Incumbents
Justice James (Bud) Warren (1st Court of Appeal) (whether Democrat or Republican) fared better.
Judge Pat Lykos (180th)
None of the races was a runaway. Money given by
Judge Don Shipley (182nd) the defense bar may have made a decisive
Judge Jay Burnett (183rd)
difference between victory and defeat. The voting
Judge Bob Burdette (184th)
public crossed party lines and voted for the
Judge Carl Walker (185th)
judicial races independently, despite the very
Judge Michael McSpadden (209th)
offensive T.V. ads by one party to vote a straight
Judge A.D. Azios (232nd)
ticket because that party was tough on criminals,
Judge Woody Densen (248th)
whereas the other party was soft on criminals.
Judge Bill Ragan (C.C.C.L.#l)
That straight slate involved a large number of
Judge Don Hendrix (C.C.C.L.#2)
judges who have nothing to do with the criminal
Judge Jimmie Duncan (C.C.C.L.#3)
justice system. Judge Michael McSpadden is to be
Judge J. Anderson (C.C.C.L.#4)
commended for resisting pressure to be a part of
Judge Hannah Chow (C.C.C.L.#5)
such a blatantly deceptive appeal. The voting
Judge J. Musslewhite (C.C.C.L.#6)
public rejected this appeal. Hopefully, such
Judge Alfred Leal (C.C.C.L.#9)
tactics, having been ineffective, will not be used
Judge David Mendoza (C.C.C.L.#ll)
in 1988.
Judge Mark Atkinson (C.C.C.L.#13)
Judge Jim Barkley (C.C.C.L.#14)
somETimES THEYDO WEAR THE WHITE HAT
By Allen C. Isbell
The following story is from the October 1986 issue 1985 convenience store robbery and murder.
of The Texas Prosecutor: Prosecutors refused to acknowledge at first that
they had the wrong man but Lipe persisted, did
"I ain't no hero", said Gene Lipe, further investigation, and finally went to a State
Investigator for the Van Zandt County District District Judge in Canton with his story. The
Attorney, in response to questions asked him about Canton Judge contacted the judge who was trying
his role in freeing a 22 year old murder suspect the case and the trial was stopped. The innocent
who had been incorrectly charged. Lipe was suspect was freed on September 12th - eight months
instrumental in investigating information offered after being taken into custody.
by a prisoner in the Van Zandt county jail which Lipe spent 25 years as a Dallas police
indicated that the Carrol ton District Attorney's officer before retiring and taking the position
Office was trying the wrong man for a November, with Van Zandt County.
24
______ _
WHATISTHEHARRISCOUNTY WHATDOES HCCLA DO FOR WHAT DOES A MEMBER DO?
CRIMINALLAWYERS
ASSOCIATION?
The HCClAis a non-
profit, tax exempt,
professional Association
made up oflawyers from
Harris County,Texas, who
are working to promote
excellence and high ideals in
the practiceofCriminal
Law.
Any lawyer in good
standing with the State Bar
ofTexas, who is endorsed
by a member of
HCCLAis eligible to join.
Theendorsement recom-
mends the applicant as a
person ofprofessional
competency, integrity and
good moral character who is
actively engaged in the
defense ofcriminal cases.
THEDEFENSEBAR?
Referrals throughour Lawyer Referral Ser-
vice and throughour membership direc-
tory.
HCCLA publications including DOCKET
CALL, a monthly newsletter summarizing
significant decisions ofthe Texas CoW1 of
Criminal Appeals and Texas COW1S ofAp-
peals and topics oflocal interest tothe
criminal defense bar.
Regular Monthly Luncheon geileral
membership meetings featuring speakers
on subjectsoftopical interest.
Provides a responsive local forum for
lawyers activelyengaged in the practice
ofcriminal law.
Opposes legislation and local rules which
infringeonindividual rights protected by
constitutionalguarantees.
Promotesa productiveexchange ofideas
andencourages better communication
with prosecutorsand the judiciary.
Provides continuinglegal education pro-
grams for improving advocacy skills and
Imowledge.
Promotes a just application ofthe CoW1
appointed lawyer system for indigent per-
sons charged with a criminal offense.
FIles Amicus Curiae Briefs where ap-
propriate.
Participateandexchange infonnation and
skiU in ourCLEprograms.
Contributetoour Brief Bank Service.
Perform agreed Pro Bono services.
Bring to the Association's attention proper
grievances in the practice which merit
response and action.
Sharein thecommaraderie atour monthly
luncheons and annual social "vents.
Takecalls onourReferral Service.
Justice
Duty
Freedom
FeUowship
-
66
Applicant:______________________________
Professional Organizations in which your are a member in good
standing: ___________________
MWling Address: ______________________________
Telephone:___________________
Haveyoueverbeendisbarredordisciplined byanybarassociation
orareyouthesubjectofdisciplinaryactionnowpendin6-g___
FumName:
DateadmittedtoBar:___LawSChool
ForRegular Membershipenclose $100.00annual fee.
Date,Degreefrom LawSchOO'Ll_____________
TYPE MEMBERSHIP Student
(Expected graduation date.____
date signatureofapplicant
Advisory
Honorary EndorsementonreversemustbesignedbyHCCLAMEMBERIN
Regular OOOD STANDING
ENDORSEMENT
I, a member in good standingofHCCLA believe this applicant to be a person ofprofessional competency, integrity and good
moral character. The applicant is actively engaged in the defense ofcriminal cases.
MAILTHISAPPLICATIONTO:
HarrisCountyCriminal
Lawyers Association
signatureofmember
P.O. Box 22773
Houston, Texas 77fJ27
713/2272404
BLACKWOOD
BAIL BOlDS
~ 8 6 ~ 6 5 5
LET US PLAB YOUR JAIL BIU:!K.
26
Wednesday Deaember 17
Inns of Court II
50aCarto tine
5 - 7 pm
afree aoaktails per
person - hors'd'oeuvres
CASH BAR
PLEASE .JOIN USI
27
Court Tales
By Judge SheZZy Hancock
THE FAT LADY HAS SUNG FINALLY
The election is over. Election anxiety of judges and lawyers
began long before the first Monday in February, 1986 (the filing
deadline) and didn't end even for a minute until November 4th.
Most of the sitting judges will stay on the bench.
Congratulations to them. And congratulations also to those who will
take the bench for the first time on January first. Hopefully, the
newly-elected judges will be around a few years before some young
attorney decides to roll the dice by paying a filing fee to run
against them.
No local judge, civil or criminal, won by more than 57% of the
vote. That was Judge Ann Cochran of the 270th civil district court
who tallied 57% of the votes in her re-election bid. Most of the
margins in the judicial races were about 53-55%. This is another
manifestation Harris County is about equally divided between
Republicans and Democrats.
Lawyers, judges and other courthouse observers believe the voter
was better educated for the judicial races this election than for
those in the past. But what about the next judicial race?
This election gave us another argument for reform in the way we
elect judges. There were 522,635 ballots cast in the election. The
"big lever" was pulled by 39% or 202,258 of these voters. Of the
"lever pullers", 57% or 114,774 were Democrats, 43% or 86,258 were
Republicans and 1% or 1226 were Libertarians.
Many of the straight ticket punchers punched for the wrong reason.
When writing the election law, the legislature allowed "lever" voting
for one who wanted to vote his or her party. It was not done so a
voter might avoid the confusion and time consumption of the ballot.
What caused confusion and time consumption on the November, 1986
ballot was the judicial races. Many "lever pullers" punched to end
the confusion of the judicial contests. A voter will cast a more
educated vote if the judicial races are on a different ballot.
THE WEEK END HEARING OFFICER
The county criminal court judges have launched a new featur into
the Harris County criminal justice system. Now, there is a hearing
officer on duty week-ends.
The judges have selected Jim Garrett as the hearing officer.
Hearing Officer Garrett brings 15 years of legal experience to the
position. After graduating from the University of Houston Law School
in 1971, Garrett became an assistant district attorney for Harris
County where he served for 3 years. While serving as an assistant DA,
he returned to college where he earned a Masters Degree from Sam
Houston University in Criminology and Corrections. After leaving the
DA's office, Garrett opened a law practice in Humble where he
practiced for 11 years. Garrett was appointed by the Commissioner's
Court in 1985 as Criminal Justice Coordinator for Harris County
concerned with jail population. Garrett and his wife and family
reside in north Harris County.
28
Staff counsel for the county criminal court judges, Richard
Anderson, has prepared an article on this new procedure that can be
found in this edition of Docket Call. Simply stated, the hearing
officer will deternmine if probable cause exists to continue detention
of defendants. He will administer legal warnings to defendant. He
will set bond and review backgrounds to determine if a defendant is
qualified for a pre-trial release bond. The hearing officer will
follow guidelines established by the judge of the particular court
where the case is pending. He will not hold trials, accept pleas, or
sign arrest or search warrants. Hearing Officer Garrett has another
responsibility, however, he will review applications for mental
health committments.
WEEK-END SIGHTSEEING AND A CRIME
Every attorney knows the "sightseeing quotient" found in Austin is
high. After all, it's our state capitol. There's the Capitol
Building at the foot of Congress Avenue, the Governor's Mansion, Lake
Travis and Barton Springs to name just a few sights to visit. But
did you know about the 1930 motorcycle that is on display in the
Department of Public Safety's Training Academy? I didn't think you
did.
The Texas Department of Public Safety began in 1930 as the
enforcement arm of the Texas Highway Department. They didn't use
patrol cars then. Forty-seven men rode Harley Davidson and Indian
motorcycles.
History's first highway patrolmen to die by the hands of
desperado's were motorcycle riders. They were H.D. Murphy and Edward
B. Wheeler who rode motorcycles like the one parked in the DPS
academy. On April I, 1934 a farmer who lived on a major highway
between Dallas and Grapevine sat on his front porch. He casually
watched a parked car with a man and a woman sitting in it. A whisky
bottle was thrown from the car's window. Later, Patrolman Murphy and
Patrolman Wheeler investigated the suspicious car. As Patrolman
Murphy, the more experienced of the two oficers, dismounted his cycle
and approached the vehicle, a shotgun protruded from the car's window
and fired twice. Both patrolmen were shot.
As the farmer watched in horror, a woman got out of the car and
walked over to one of the dying lawmen. She turned one over with her
foot and shot him again in the head. Laughing, she jumped back into
the car. She and the man sped away. Both officers were dead.
Fingerprints taken from the whiskey bottle and photo
identification proved the couple was Bonnie Parker and Clyde
Barrow two outlaws who terrorized the Southwestern United States in
the 1930's.
Patrolman Murphy and Wheeler became a part of DPS history as the
first highway patrolmen to die in the line of duty during criminal
activity. But, they weren't the first to die in the line of duty.
Several were killed before them while riding those two-wheeled
machines on the early Texas rural roads. The safety record of the
motorcycles, or the lack thereof, and the advantages of the
automobiles contributed to the demise of the motorcycle patrolmen in
DPS history.
Those early motorcycle riding highway patrolmen had to be rugged
individuals because all the motorcycles had wooden seats and no
windshields. There was a hand-painted state seal on the front fender
and a tool kit on the forks. On the luggage rack is a crude first aid
kit and there is a fire extinguisher strapped to the rear fender.
The motorcycle mounted highway patrolmen totally disappeared from
Texas highways in 1957. A bold experiment briefly returned the cycles
to Texas highways from 1978 to 1982.
Today, the old 1930 vintage-condition motorcycle sits on front and
rear wheel stands atop a redwood platform. It appears cocked and
ready for recall. Besides the old motorcycle, the DPS has on display,
some guns and other law enforcement artifacts from days gone by. The
headquarters of the Texas Department of Public Safety is located at
5805 North Lamar in Austin.
That's all for this edition of Court Tales; see you in the next
edition of the DOCKET CALL.
30
BLACKWOOD BAIL BONDS
Mr. Edd C. Blackwood Jr.
Harris County License # 74145
713-862-2655
September 7, 1986
It is with this writing that I wish to notify you of my dissociation
with ABO, Burns & Blackwood Bail Bonds. From this day forward, I am:
BLACKWOOD BAIL BONDS.
Please do not be alarmed or overly concerned. Due to a succession of
inappropriate situations, the staff and I have decided it would be in
our best interest to separate. And, since this decision was one of
significant importance, and critical to my prior commitments to you,
to provide excellent service that I have made this decision. It is by
doing this that I will be able to continue to promise you prompt, pro-
fessional 24-hour service.
Sincerely Looking Ahead,
~ : : i ~ ~ , f ~
cw/E.B.JR.
Letters
The 1st Amendment guarantees an individual's
right to freely and openly express his views and
to have ideas compete for acceptance in an open
market place of thought. Inasmuch as the press is
a viable medium for proliferating the free
exchange of ideas, the editor of "Hearsay" is
obligated to allow the exposition of other
gossipmongers: even when distressingly, he may
himself be the object of trivial observations.
This having been said, I now relate those matters
which acutely focused my attention on the
Honorable Allen C. Isbell, while at the victory
party for Judge Evans and Judge Warren on November
4, 1986.
The atmosphere of the party and the attire of
those who attended was less formal than that to be
found at a similar Republican function. Isbell,
clad in blue jeans and a rapidly fading Levis
jacket, went seemingly unnoticed through the
relaxed, albeit politically concerned crowd. He
did, in fact, suggest that a group of us might
consider displaying our swank democratic fashions
at some of the republican soirees which were by
then in full swing.
It was not, this suggestion that drew
attention to the otherwise unobtrusive editor.
Rather, it was a flickering glare from a metal
object emanating from under his 501 Blues jacket.
Further investigation revealed that his front
shirt pocket contained a full set of stainless
steel silverware, which he intended to use. Even
I, a left-wing defender of the downtrodden, found
it unusual for a person to carry his own eating
utensils out to dinner. It could be that Isbell
has an irrational fear of communicable diseases
and is unwilling to trust the Health Department's
inspection of the Cattle Guard's facility. Or, it
could be that Allen was afraid that the fajitas
would be served frontier fashion and that, absent
a knife and fork, he would be forced to eat his
dinner by hand. To avoid this potential
embarrassment, and in a somewhat republican move,
Allen came fully prepared not to eat with his
fingers. Most likely though, Allen's behavior was
simply due to that type of eccentricity which
allows him to walk his own path while at the same
time endearing himself to all of us. It is the
best of all possible worlds when a bit of humor
can be obtained from a person's individualism.
Keep it up Allen.
HOUSTON/GALLERIA AREA
Solo Practitioner has prestigious
executive office space for one or
5 attorneys. Library, conference
room, telephone, secretarial and
word processing available. Type
of arrangement negotiable. Call
(713) 621-7878 or (713) 944-2312.
Free Parking $300.00 + per month.
Referral Service
FELONY CALLS RECEIVED
OCT
16
NOV
22
FELONY CASES RETAINED o 1
MISDEMEANOR CALLS RECEIVED 20 46
MISDEMEANOR CASES RETAINED 2 7
TOTAL SURVEYS MAILED 24 12
SURVEYS RETURNED 13 29
let's Hear From YOU!
We want to hear from youl 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 participationl
Colin B. Amann
32
THE CHRIRmRN SPERKS
RTTRIGil1 RTTR/Boy
By Randy McDonaZd
Past-President, Robert Pelton, has asked me
to get our members to contribute information about
witnesses used by the State. Many of us run into
the same police officer, chemist, or other experts
called to testify by the State. Sometimes the
testimony in one case differs from the testimony
in another case. HCCLA proposes to collect and
record the names of these witnesses and styles of
cases in which they testified. If an attorney has
the same witness in a case, he/she can call HCCLA
and obtain this information. With this informa-
tion, the attorney can contact the court and
obtain a transcript. Another source is Appellate
attorneys who have access to transcripts of the
testimony. With cooperation and accurate
reporting, HCCLA members can enjoy having advanced
testimony of certain witnesses for purposes of
impeachment or settling the case.
The Federal public defender has such
information about many Federal witnesses. If you
have a Federal case, you may want to contact them.
To report this information, call the HCCLA
office (Donna). Give her complete and accurate
information, including, but not limited to, style
and number of case, type of testimony (i. e. HPD
chemist, arresting officer), his name and badge
number, the area of relevant testimony or the area
of expertise.
COURTHOUSE TRIVIR
Allen C. Isbell
1. What Judge was the last person to deliver
ice in Houston from a wagon drawn by two mules,
and who has a picture to prove it?
2. Only one Criminal District Court chambers
has a shower, can you name the Court and the judge
who had enough stroke with the County Commis-
sioners to have it installed?
By Mary E. Conn
On 09/30/86, HCCLA member Sandra Smith and
HCCLA Board member Ben Durant convinced a jury to
give their client, Cheryl LaRue Davis, probation
in the tragic case in which Ms. Davis' three
children died when their home caught fire.
Ms. Davis admitted that she left the children
at home alone, but by the excellent work of
Defense Counsel, the jury was convinced that the
mother's act was not intentional, and that the
appropriate punishment for the tragedy was
probation for the mother, who had pleaded guilty
to involuntary manslaughter.
Congratulations to you both on fine work!
Suggestion for this month's award submitted
by Gloria V. Smith.
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35
DISTRICT COURTS TRYING CRIMINAL CASES
Bldg. Clerk
Court Judge Rm/Fl. Ext. No. Coordinator Court Rep::>rter
174th JonN. Hughes Cr-520 6324 7840 Samy Jefferson
176th William Hatten Cr-507 6328 7822 Kay Arrlerson Sherry Gentry
177th Miron Love Cr-700 6332 7841 Les Oliver Tamra Parks
178th William T. Harmon Fi-5th 6336 7843 Lima Hanson Gail Williams
179th 1. D. McMaster Cr-500 6340 7848 Judy Shaver a r l e ~ Swope
180th Patricia R. Lykos Cr-306 6344 7847 Ted Jaynes Kathleene O'COnner
182m Donald K. Shipley Cr-608 6350 7846 Carolyn Hamilton Valdeane Coe
183rd Joseph Guarioo Cr-823 6354 7853 Jinmy Pillow Marilyn See
184th Bob Burdette Fi-5th 6358 7852 Ron Story Debbie Traylor-Zann
185th George L. walker Cr-532 6362 7852 Carolyn Madeksho Jennifer Slessinger
208th Thanas !butt Cr-514 6374 7826 Mary Alcoba Phyllis Thibodeaux
209th Michael T. McSpadden Cr-424 6378 7854 Kathy Norman Janet Samers
228th Ted Poe Cr-806 6650 7827 Elaine Stolte
230th Joe Kegans Cr-628 678.2 7823 David Als....orth Bella Joe Fisher
23200 A. D. Azios Cr-800 6778 7821 Doug Harvey Brema Palmer
248th W:::x:X3y R. Densen Cr-631 7094 7825 Doug Pettit
262m Doug Shaver Cr-708 6961 7828 Lanelle Roberts Pat Ranirez
263rd Charles J. Hearn Cr-719 6944 7842 Carolyn Graham Sharon Cook
337th Johnny KoleOOa Fi-2m 7746 7851 Charlie Brossman Darlene Hulka
338th Mary Bacon Cr-600 7775 7838 Betsy Clerrmer &lna Hipp
339th Norman Lanford Fi-2m 7787 7838 Mona Freed Marilyn Skinner
351st Albert Pruett Cr-829 5620 7845 Mona Zinmerman Myrna Hargis
Impact Court-Family Law Ctr-6th Fl. 5021
AJ:MlNISTRATIVE OFFICES - IbCJn 100
Hon. JonN. Hughes, Admin.Judge6324, 6575 JURY CHARGE BlNK - IbCJn 100 5653
Jack Thanpson, Court Administrator 6575 Barbara Samford 5653
Patty Caoo, Fiscal/Admin. Secretary 5396
Maria Cruz, Secretary 6579 (X)MPtrrER AIDED ".I'R.1NSCRIPTIGJ CENTER. 7768
Ted Doebbler, Staff Attorney 6575 - 3rd Floor -
&l Erwin, Operations Coordinator 5704 Helyn Guerry, CAT Coordinator 5598
Leslie Gay, Project Analyst 6859 &6740
Joyce Metoyer, Alternate Coordinator 6575 Cherrie L. Bowen,
Nancy Pulido, Admin.Asst/Exec.Sec 6576 &litor Terminal Operator 5598
Susan Schmitz, Research&Dev.Analyst 5703 &6740
Joan Taliaferro, Alternate Coord 6575 Judy Fox,
Peggy Witt, Alternate Coor.i.dnator 6575 &litor Terminal Operator 5598
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Educational Programs SCheduled
MEMBERS CHRISTMAS PARTY, "ed.
esd
",December 17,
________.......
noon,
19 6, 5,00-7'00, I, of
Administration Bldg.
COurt II, 502 Caroline.
8
JUSTICE IN ACTION - ASeries of Forums
NEW DRUGS, NEW PROBLEMS, NEW PROGRAMS
PRESENTERS: JOHN CLEVELAND, D;rector - Alter.,ti.e Dr" Abuse Tre'tment Pro,.
LARRY ANDERSON, Director _ I.hale.t AbuBe Pro,r,m,
DATE:
PLACE: ASSOC;'tio. for .the erican,
the Advancement of Am
Friday, J"u,ry 9, 198, . De art.e.t
TIME
Harr;s County JUvenile Room
3540 West D,ll,s, Upst"r. 0 Te"s Ju.enile ,.d
hours of
the
Three
' 9:00 ,m - 12,00 pm. beeppro.ed by
" credit has
Adult Probation CommIttee.
INSTITUTES
AND COURSES - TCDLA
January 30-
31

1987
FOR
THE NONSPECIALIST
LITIGATION Antonio
BA
Four
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February 12
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...----- Educational Programs Scheduled ----....
BOARD MEETING Thursday, December 11, 1986, 12:00 noon, Administration Bldg.
MEMBERS CHRISTMAS PARTY, Wednesday, December 17, 1986, 5:00-7:00, Inns of
Court II, 502 Caroline.
JUSTICE IN ACTION - A Series of Forums
NEW DRUGS, NEW PROBLEMS, NEW PROGRAMS
PRESENTERS: JOHN CLEVELAND, Director - Alternative Drug Abuse Treatment Prog,
LARRY ANDERSON, Director - Inhalent Abuse Program,
Association for the
the Advancement of Mexican Americans
DATE: Friday, January 9, 1987
PLACE: Harris County Juvenile Probation Department
3540 West Dallas, Upstairs Conference Room
TIME: 9:00 am - 12:00 pm.
Three hours of training credit has been approved by the Texas Juvenile and
Adult Probation Committee.
INSTITUTES AND COURSES TCDLA
January 30-31, 1987 LITIGATION FOR THE NONSPECIALIST
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_____________________ ___
WHATISTHEHARRISCOUNTY WHATDOES HCCLA DO FOR WHAT DOES A MEMBERDO?
CRIMINALLAWYERS
ASSOCIAnON?
The HCCLAis a non-
profit, taxexempt,
professional Association
made upoflawyers from
HarrisCounty,Texas. who
are working to promote
excellenceandhigh ideals in
thepracticeofCriminal
Law.
Anylawyer in good
standingwith the StateBar
ofTexas. who is endorsed
bya memberof
HCCLAis eligible tojoin.
Theendorsement recom-
mends theapplicant as a
person ofprofessional
competency. integrity and
good moral character who is
actively engaged in the
defense ofcriminal cases.
THEDEFENSEBAR?
Referrals through our lawyerReferral Ser-
vice and throughour membershipdirec
tory.
HCCLA publications including D<X:KET
CALL,a monthly newsletter summarizing
signiftcant decisions ofthe TexasCourtof
Criminal AppealsandTexasCourtsofAp-
peals and topicsoflocal interest tothe
criminaldefense bar.
Regular Monthly Luncheon general
membership meetings featuring speakers
onsubjectsoftopical interest.
Provides a responsive local forum for
lawyers activelyengagedin the practice
ofcriminal law.
Opposeslegislation and local rules which
infringeonindividual rights protected by
constitutionalguarantees.
Promotesa productiveexchangeofideas
andencourages bettercommunication
with prosecutorsand the judiciary.
Providescontinuinglegal educationpro-
grams for improving advocacyskiDs and
knowledge.
Promotes a just application ofthe Court
appointed lawyer system for indigent per-
sonscharged with a criminal offense.
HIes Amicus Curiae Briefs where ap-
propriate.
Participateand exchange information and
skiD inourCLE programs.
Contributetoour Brief Bank Service.
Perform agreed Pro Bonoservices.
Bringtothe Association's attention proper
grievances in the practice which merit
response and action.
Sharein thecommaraderieatour monthly
luncheons andannual social events.
Takecalls onourReferral Service.
Justice
Duty
Freedom
FeUowship
-
66
Applicant:_________________
Professional Organizationsin which your are a member in good
~ d i n g
Mailing Admess: ___________________________
Telephone:___________________
Haveyoueverbeendisbarredordisciplined byanybarassociation
orareyouthesubjectofdisciplinaryactionnowpendin.l>-g____
FIrmName:
DateadmittedtoBar:____LawSChool_______For Regular Membershipenclose $100.00annual fee.
Date,Degreefrom LawSchoo'LI___________
TYPEMEMBERSHIP_
_
_
_
Student
(Expected graduation date ____)
Advisory
Honorary
Regular
Sustaining Membership $200.00
_-:--_
date signatureofapplicant
EndorsementonreversemustbesignedbyHCCLAMEMBERIN
GOODSTANDING
ENDORSEMENT
I, a member ingood standingofHCCLAbelieve this applicant to bea personofprofessional competency, integrity and good
moral character. Theapplicant is activelyengaged in thedefenseofcriminal cases.
MAILTHISAPPLICATIONTO:
HarrisCountyCriminal
LawyersAssociation
signatureofmember
P.O. Box22773
Houston,Texas7702.7
713/2272A04