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OCTOHERI986

DOCI(ETCALL
A MONTHLY PUBLICATION OF HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION
CRIMINAL JUSTICE
EDITOR
Isbell
GENERAL MANAGER
Robert Pelton
PRODUCTION
Donna K. Kleszez
DOCKET CALL is published
monthly by the Harris County
Criminal Association, a
non-profit. tax exempt
professional Association of
criminal defense lavyers.
ADVERTISING RATES;
FULL PAGE.$200.00
1/2 Page............... 100.00
1/4 Page............... 50.00
DISTRIBUTION: 500 copies
monthly. Articles and other
editDrial contributions should
be sent to HCCLA. P.O. Box
22773. Houaton, Texas 77027 or
the Association office at 705
Main St. 1400. Houaton, 77002.
TELEPHONE:(713) 226-2404.
DEADLINE for the November
nevsletter is October 28, 1986.
Board of Directors
1986-87
..t
Cande lano Elizondo

Allen C. Isbell
Vic
Feli:I: Cantu
ScCrtt.rY
G. Mao Secrest
Trill.'...
Mary Moore
Chair
Randy MoDonald
Roger Bridgwater
Walter Boyd
Mary E. Conn
Benjamin Durant
Miahael Essmyer
Jan WoodJiJard FO:I:
Ruben Guerrero
Jim Lavine
Han-y Loftus. Jr.
aazoland McInnis
Dal)id Mitcham
Wi n Outz.m.,
Robert Pe ltc:m
Richard Trevathan
Gary Trichter
K:ristine C. Woldy
OCTOBfR 1986
CONT(NT8
FROM THE PRESIDENT'S DESK Candelar>io Elizondo 3
ATTORNEY I I D. CARDS She:riff Klevenhagen 5
HCClA JUDICIAL POll ". 6
HEARSAY I , I I Allen C. Isbell 8
TWO QUEST IONS ANSWERED , Allen C. Isbell 9
THE CHA I RMAN SPEAKS I Randy MaDonald I
CRIMINAL JUSTICE Jim Skelton 10
COURT TALES , I .. ", '" I., . Judge Shelly Hanaoak13
WHAT WAS THE JUDGE TRYING David Mitaham
TO DO I 15 I
EDUCATIONAL PROGRAMS 21
LETTER TO HOLMES Dan Ge:rson 25
LETTERS I I , 26 I ,
OBJECTIONS TO JURY CHARGE
BASED ON ART .37.07 SEC. 4...,AUen C. IsbeU
UARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION
Past Pnsidents 1971- J985
J. Anthony Fritoux
Stua:t't Kina:t'd
George Luquette
Marvin O. Teague
Diak DeGuerin
W.B. ItBennie
ll
House
3
Jr.
David Biree
Woody Densen
WiH Gray
EdlvaPd MaHett
Ca:t'otyn {}(nIaia
Jack B. Zirrrnermann
Ctyde Wit Uarne
Robert Petton
1972-1973
1973-1974
1974-1975
1975-1976
1976-1977
1977-1978
1978-1979
1979-1980
1980-1981
1981-1982
1982-1983
1983-1984
1984-1985
1985-1986
-----..... ..._---
I
From the President's Desk ... By CandeZario ELizondo
Every day I see an erosion of our individual rights. Histo-
ry has taught us that the denial of rights to the guilty acts as
a precedent to the denial of the same rights to the innocent.
am all for the government's concept of stopping illegal drug
traffic as every good citizen should be, but I am adamantly
opposed, as every citizen should be, to the government acom-
plishing that goal at the expense of our civil tights.
Much media attention has arisen concerning the government's
war against drugs. In the real sense this has occurred because
it's an election year, but politics ought not be confused with or
overshadow our individual liberties. The House and Senate bill
on the War Against Drugs flies in the face of our Constitutional
guarantees to be free from governmental interference and intru-
sion.
The government's answer on the war on drugs is to take away
everybody's rights, (do away with the exclusionary rule) and even
go as far as to gather illegal evidence by allowing police offi-
cers to impersonate defense attorneys.
The government has declared war on everyone's constitutional
rights. This war is the same thing that occurred in Nazi Germa-
ny. Indeed, Hitler's government used the military to police the
citizens. We should all fear our government's use of the milita-
ry to police our citizenry. We have police. Our police are
accountable to the citizens whereas our military is not.
We have seen what effects the military has in some of the
South American countries.
3
Our present administration decries that drugs are having an
adverse impact on the American people and that is true, but their
solution is to do away with the exclusionary rule on the pretense
that it prevents the truth from being told. If that is so, we
might as well do away with the attorney-client privilege next
because that supposedly prevents the truth from being told and
then we ought to do away with executive privilege which President
Reagan relied on during the Rehnquist hearings, because that also
hides the truth.
During the anti-drug hearings and while watching the amend-
ment approved by wide margins, Representative Don Edwards of
California said: "this is what happens when you have a panic."
The fervor can best be described by Representative Barney
Frank of Massachusetts.
"We have done violence to common sense, to legislative
procedure and Gramm Rudman; and we have taken some shots at
several amendments to the Constitution. I am afraid this
bill is the legislative equivalent of "crack;" giving you a
short time high but dOing long term damage to the System and
being expensive to boot."
Our President, in his speech on September 14, 1986, told the
American public that we owed the dead soldiers of America an all
out effort in the war against d r ~ g s so that their deaths would
have meaning. Their deaths do have meaning in that they gave
their lives protecting the Constitution and Bill of Rights
let's preserve that meaning. Let's not let this hysteria trample
our precious rights.
4
Attorne, Identification Cards
To alleviate much of the confusion that occurs in passing bar
cards back and forth from the MCC to attorneys when attorneys
come to the jail to visit their clients, the following procedure
will be implemented.
Attorneys will be issued permanent passes that will take the form
of identification badges. These badges will be yellow, in color,
and will include a picture of the attorney, Texas Bar Card
number, driver's license number, DOB, height, weight and day of
issue.
When an attorney comes to visit he will continue to check in with
MCC, but will not have to leave his bar card. He must sign in
with the date and the time he leaves.
PROCEDURE FOR ISSUING CARDS
1. Attorneys will see one of the Detention Bureau secretaries.
Attorneys will be required to bring with them two (2) facial
photos, 1 1/4" by 1 1/4". One photo will be attached to the
attorney badge while the other will be attached to a 3x5 index
card. This card, along with the pertinent information, will be
kept in the MCC as a cross reference when the Attorney comes to
visit.
2. The attorneys will be able to have these badges made up
Monday through Friday between the hours of 8:00 a.m.- 5:00 p.m.
During the initial issue, the following schedule will be
effective, for the week of October 13th:
Monday Last names beginning with A thru D
Tuesday Last names beginning with E thru I
Wednesday Last names beginning with J thru M
Thursday Last names beginning with N thru
Q
Friday Last names beginning with R thru Z
3. This information will also be posted at the MCC and attorneys
booths throughout the jail.
4. This badge, once issued, will be kept by the attorney and
worn in a visible manner when entering the jail. It is imperative
that the attorney realize that the badge does not mean that they
will not have to sign in or out.
5. In the event a badge is lost, the attorney shall call the
Detention Bureau immediately to report the loss. At that time, a
new identification will be issued.
6. All badges are the property of the Harris County Sheriff's
Department and must be surrendered upon request. Sheriff
Klevenhagen.
s
HCClA 1986 JUDICIAL POLL RESULTS!
CRIMINAL DISTRICT
180th District
182nd District
183rd District
184th District
185th District
209th District
232nd District
248th District
County Court No.
County Court No.2
County Court No.
County Court No.
County Court No.
County Court No.
County Court No.
County Court No.
County Court No.
County Court No.
COURTS:
1
3
4
5
6
9
11
13
14
CANDIDATE PREFER
Ruben Guerrero 78
Pat Lykos 10
Donald K. Shipley 50
Marshall Williams 17
Jay W. Burnett 60
Mike Wilkinson 22
Bob Burdette 74
Carol H. Lane 10
George H. Godwin 45
Carl Walker, Jr. 21
Michael McSpadden 37
Moses "Moe" Sanchez 42
A.D. Azios 68
Glenn J. Youngblood 12
Woody R. Densen 68
E.D. McKinney, Jr. 13
David Jaroszewski 6
Bill Ragan 74
Don Hendrix 66
Rob Walker 13
Jimmie Duncan 26
Cheryl E. Irvin 60
James E. "Jim" Anderson 25
Francis Williams 34
Hannah Chow 47
Roy T. Rogers 8
J. R. "Bob" Muss1ewhite 81
Larry Wilson 5
Alfred G. "A1" Leal 76
Joe S. Powell 9
David Mendoza 52
Jack "Pick" Pickren 28
Mark Atkinson 32
Bonnie Fitch 42
Jim Barkley 30
Raymond "Ray" Fisher 14
6
___________________________________________ __________ __
Supreme Court Place 1 Charles Ben Howell 8
Oscar H. Mauzy 37
Supreme Court Place 2 Robert M. Campbell 31
Nathan E. White, Jr. 1
Chief Justice Ct. of AP. John L. Bates 14
First District Raul A. Gonzalez 34
Frank G. Evans 60
Tom D. White 11
Associate Justice Mike Hjamarson 3
CT of AP. First District James F. "Bud
fl
Warren 56
311 Surveys were mailed to the membership;
127 Surveys were returned by October 2, 1986.
CROWNCOURTLECTURES
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BARRISTERS ON ADVOCACY
Friday,October24,1986
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1303 SanJacinto
Lecturers:
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David Barnard, Barrister, member Gray's Inn. lecturer Inns of Court School of Law, books:
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co-author"EvidenceandAdvocacy"
KeithEvans,Barrister,memberMiddleTemple, Gray'sInnandStateBarofCalifornia.N.I.T.A.
advocacyinstructor,book:"Advocacyat theBar"
Peler W, Murphy, Barrister, member MiddleTemple, State Bar ofCaliforniaand StateBarof
Texas. professor South Texas College of Law, books: "A Practical Approach to Evidence",
"Evidence:Cases andArgument", co-author"EvidenceandAdvocacy"
8:30 Registration
9:00 OpeningRemarks
9:05 TheNatureofAdvocacy:FourPerspectives
10:30 Break
10:45 ConstructingandDeliveringyourClosingArgument
12:00 Lunch (OnYourOwn)
1:30 TheArtofSuccessfulDirectExamination
2:15 TheRapierandtheSabre:SecretsofCuttingCross-Examination
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....
__
Uearsa,... By AUen C. IsbeU
Mary Heafner's beautiful ring (3kt diamond
surrounded by gold) is only a "friendship ring,
given to her for being "a wonderful person".
Walter Boyd and Clyde Williams now office
together.
Mexican Independance Day Parade saw several
local judges riding high. Judge Angel Fraga,
riding with Judge Felix Salazar was almost thrown
from the convertible when it started up. Same day,
a Pasadena Parade featured other Judicial Candid-
ates, including Ruben Guerrero and Judge Robert
Baum (Juvenile Court). Saturday television in the
Central Penitentuary Unit at Sugarland shows adult
inmates telling juvenile probationers how the real
life is, and why the juvenile offenders need to
get out of crime. Judge Baum believes the program
developed by Catholic Chaplain Gonzales is a
wonderful idea
Congratulations to pizzitola, Hinton, and
Sussman in their defense of contractor Durwood
Greene. Tried in Galveston on a change of venue.
Defense apparently proved that Greene is jus t a
good ole boy who did not know what his asphalt
company was up to in Harris Conty. Corporation
found guiltYJ he acquitted. . James Leitner
and Dennis Spurling pulled one out of the fire
when they got life for hatchet killer charge with
Capital Murder in the 351st. Leitner has formed a
partnership with Roger Bridgewater. Correct your
H.C.C.L.A. directory to show 501 Caroline 11200,
Zip 77002, Phone - 224-4233.
Judge Bill Ragan's campaign party at the
Cattle Guard, Saturday, October 04, 1986, may have
been the success of the year. Big crowd, great
music by the "Texas Throw Down" Country Western
band, and fun for all. Judge Ragan should make it
an annual event, like Constable Rankins's.
Good to see Retired Judge Dan Walton sitting
as visiting judge in the 263rd. .William Dean
Leikam, Attorney-Artist, may have his paintings
displayed at the Hooks Epstein Gallery soon....
Mike Monks and Pat Monks have opened law offies in
delegation is James Stafford. Can you imagine
Stafford in P.R.C.!' .Don't plea bargain with
Douglas Durham! The former Chief Prosecutor is now
amongst us. Firm called CorneLius, Durham and
Horan. His "view" of the case has undergone a
metamorphis (word to be defined next issue for
Walter Boyd).
It has been "fruit basket turn over" time at
the Court house with four District Courts moving.
A new schedule is published in this month's
"Docket Call". Current as of 10/06/86. Probably
will change again after election-day.
Angelica Landa is helping in recruiting new
members. We need others to volunteer. Doug Durham
promises to join since he will be making so much
money as a "Court-Appointed" lawyer.
Referral Service
REFERRAL SERVICE STATISTICS
AUGUST
Felony Calls Received 25
Felony Cases Retained o
Misdemeanor Calls Received 44
Misdemeanor Cases Retained 5
Total Surveys Mailed 30
Surveys Returned 19
SEPTEMBER
17
3
20
3
24
11
CRIMINAL JUSTICE
By Jim Ske "Lton
This article is about the place where trial lawyers
play the so-called "criminal justice system". The phrase
"criminal
they talk
however,
insiders.

justice system" is a term used by when
to outsiders about criminal courts. We InsIders,
know the real truth, and we will admit it to other
This "criminal justice system" business is more
It is a qame played between
TWO QUESTIONSANSWERED
By Allen C. Isbell
1. What Authority Is A "Per Curiam" Opinion?
A published "Per Curiam" opinion is a strong
statement and authority from the Court of Criminal
Appeals. This is not to be confused with an
unpublished "Per Curiam".
2. What Authority Is "P.D.R. Refused?"
In a published Per Cur iam opinion, Burch v.
State, .W.2d (Tex.Crim.App. No. 906-85
decided June 25, 1986), the Court of Criminal
Appeals reminded the Bench and Bar:
To prevent any misunderstanding, we take this
opportuni ty once again to emphasize that summary
refusal of a petition for discretionary review by
this Court is of no precedentia1 value. This is
true whether the petition is refused without
oplnlon, as is the usual practice, as well as
where the petition is refused with a brief opinion
disavowing the reasoning employed by the Court of
Appeals, as in the instant case. The Bench and Bar
of the State should not assume that the summary
refusal of a petition for discretionary review
lends any additional authority to the opinion of
the Court of Appeals. Sheffield v. State, 650
S.w.2d 813 (Tex.Crim.App. 1983).
The Chnltmnn Spenks...
By Randy McDonald
Most members of HCCLA may not know that the
board approved the purchase of a computer. Well,
why in the world would we need a computer? I
really do not know the complete answer to this,
but Candy Elizondo says that we do. He claims it
will be useful in collecting delinquent dues. My
question is: Do we need a computer to collect
dues?
Well, maybe Candy is right. Maybe members
will pay dues once the computer spits out the
names of those members that are delinquent, and
then the "Docket Call" publishes their names much
like the State Bar of Texas publishes names of
lawyers who have not paid bar dues. With that type
of notoriety maybe a District or County Judge will
feel bad for the delinquent
him to a case. Of course,
people who want to join an
HCCLA do so for a reason.
maybe for the Docket Call,
attorney and appoint
I still believe that
organization such as
If not for the CLE,
with the update on
recent opinions. So, all you members who know you
are delinquent, get those checks in the mail
before the list comes out. Be sure to mark on your
check that you are paying because of this column
and not because of the computer.
Experience Builds Strength
Chief Justice
Frank Evans
Re-elect
Associate Justice
Bud Warren
First Court of Appeals
29 Years of Judicial Experience
1948 Norfolk Houston, Texas 77098
Paid for by the Frank G, Evan. R<H>lecllon Campaign, Janet Evans, Treasurer anid James F, (Bud) Warren Re-election Campaign, Merle Warren, Treasurer.
9
CRIMINAL JUSTICE By Jim SkeZton
This article is about the place where trial lawyers
play -- the so-called "criminal justice system". The phrase
"criminal justice system" is a term used by insiders when
they talk to outsiders about criminal courts. We insiders,
however, know the real truth, and we will admit it to other
insiders. This "criminal justice system" business is more
like a game than a system. It is a game played between
lawyers with a judge acting as an umpire. The prize or
reward is the verdict. The defendant is needed just
as chips are needed for a high stakes poker game. The
highlight of the game is the jury verdict, which comes after
both side have puled out all the stops to win.
The trial process has all the trappings of an academy
award show. The deliberations are secret, just like the
secret balloting for the best picture. Some hot-shot
accounting firm knows the Oscar winners in advance, but the
criminal system is not so fancy. Instead of high priced
accounting firms, we substitute bailiffs listening at the
jury door. When the jury walks out with a verdict, they are
given a standing ovation by everybody but the judge. If all
twelve of them are looking down or dragging a rope, it is
very bad for the defense team. If the twelve are smiling or
shooting the finger at the judge, it is very bad for the
state. The jury 'foreman hands the ballot to the ease
dropping baliff, who hands it to the judge, who then reads
it for about ten hours before he hands it to the clerk. The
clerk then reads the verdict. Who is going to win? Do you
get the Oscar of does Oscar get the jail?
The winning side reacts just like the Oscar winners.
There are big smiles, hugs, hand shakes and many thank you
murmurs. Often times there are tears and many sighs of
relief. Meanwhile, the loser goes slinking off, wishing they
could pull the North American continent over their head. Old
Cecil B. DeMille could not put on a better show.
This "criminal justice system" as everyone loves to
call it, consists of three basic players: a judge, a
prosecutor and a defense lawyer. Each has a separate role
and a different set of rules. The prosecutor's role is to
convict and punish. They wrap themselves in a cloak of self
righteousness and bleat and paw with all the vigor of a bull
moose in rutting season.
It is amazing to watch a prosecutor who has traveled
extensively in Spring Branch as a child give a jury the
benefit of his life exeriences. It is even more amazing to
watch a person whose pimples have barely dried, make
recomendations on punishment to an elderly judge, knowing
that the judge will usually follow the recomendations. If the
medical profession operated as we do, the interns would do
all the surgery and the staff doctors would drop by to look
at the scars or autopsy report.
10
I
I have always wondered what the world would have been
like if it had been created by prosecutors. The Bible says
that light and darkness were created the first day.
suspect that if prosectors had been around on that first
day, they would have created jails as soon as their beady
little eyes became adjusted to the light of day. They would
never have permitted a night to come along without having
jails and the Texas Department of Corrections. So I imagine
that the rehab and TDC would have slipped in the first day,
just after day light and well before nightfall.
On the second day when God was busy separating the
water from the land, the prosecutors would be feverously
working on a bunch of stupid laws. This way, they could set
up a system to control and be the big bosses of anything
that God later created. They could, for example, make a
distinction between being drunk and being stoned. Alcohol
could be the accepted drug and marijuana, that well known
corruptor of youth, virgins, and McLennan County District
Attorneys, could be "against the law". They could also
create that strange form of perjury that grants immunity to
all narcotic officers and police officers who lie under oath
"for a good cause".
On the third day when God created grass, "herbs yeilding
seed" and "fruit trees yeilding fruit", there would be a big
flap. The prosecutors would not sit still and permit that
green stuff called grass to really be grass. Mushrooms that
could be boiled into weird teas that make one see in the
dark, coca leaves that could be refined into boundless
paranoid energy, and any other substance that could make one
high, would not have escaped their probing eyes or sniffing
noses. The lone exceptions would be barley and other grains
that could be used for beer and booze. There could be no
prosecutors without "silver bullets" and endless discussions
of hangovers.
Day three would have required more changes. A lot of
the "frui t trees yei Iding frui t after hi s kind" and '''herbs
yielding seed after his kind" would have been replaced with
softball diamonds. Ball parks are a damn sight more
important than a bunch of flowers and apple trees. Besides
that, this herb business smacks of health food stores, which
smacks of hippies, which smacks of unconventional life
styles where people live and let live and mind their own
business. That's some dangerous stuff. People like that
can't be controlled. Ball parks, on the other hand, are "all
American". They instill "character" and that competitive
instinct. They build a good vocabulary as one learns such
things as "that's the way to go" and "come on, put it right
in here." Ball parks lowers one's 1Q about ten points a
visit. Ball parks are also good places for guys to "cop a
feel" by patting each other on the rear end. Stealing a
phrase from the Bible, it could be said that the third day
brought ball parks "yeilding fruits after his kind".
11
On the fourth day if God had limited the creation to
stars and the moon, the prosecutors would have been a surly
lot. They would have sulked and pouted. Why moons and stars
are the fodder for poets and writers of romantic songs. The
heavenly bodies play no part in the grim business of
punishment. It would probably have been about this time that
the prosecutors would have started whining for something to
be created that could be put in jail. The world, even if it
was only going on its fourth day, had to be depressing if
there was nothing or no one in it to be bullied or bossed
around.
The fifth day would have been much more pleasant since
it was the day for making fish and birds. Prosecutors would
have saved God a lot of trouble. The only fish that would
have been created would have been those that could be snagged
with a hook, then dragged around, and mounted on the wall in
living plastic. If you canlt shoot it on the wing, then
don't create it, would have been the rule for birds.
Prosecutors are seldom found among the throngs of bird
watchers or whale gazers. Saving the whales is not a
priority item with prosecutors. If you can't put it in jail,
catch it, shoot it, or pat it on the rump, why have it
around?
The sixth day was the big one. Animals that could be
hunted down and shot and stuffed were created. This is the
stuff that tests the measure of a man. One can get out in
nature and stalk dumb animals with high powered guns and
kill them. The best thing is that the animals had no guns so
they could not shoot back. The sixth day was made for
Hemmingway and prosecutors. And best of all, man was
created. Hot dog, now there is something that could be put
in jail.
The sixth day would not have been without controversy.
For one thing, the prosecutors would have balked at this fig
leaf business. Fig leaves would be acceptable if they came
in double knit or polyester and if their color was any shade
or navy blue or black. Prosecutors could never wear fig
leaves -- that would not match their wing tip shoes or penny
loafers. But aside from this minor tiff over proper attire,
the creation of man would have gone smoothly.
The seventh day would have gone pretty much as planned.
Prosecutors adapt to resting like the big brained dolphin
adapts to the sea. Prosecutors have written the Kama-Sutra
of sleeping, they know 102 positions to sleep. This is why
they have the background to become judges, most have years
of practice at sleeping in public.
Thus ends this possible theory of creation. It is
foolish but no more foolish then thinking that the "criminal
justice system" believes Article 2.01 of the Code of
Criminal Procedure, where it is written: "It shall be the
primary duty of all prosecuting attorneys, including any
special prosecutors, not to convict, but to see that justice
is done. They shall not suppress facts or secrete witnesses
capable of establishing the innocence of the accused."
12
By Judge Hanoook
Court Tales
A few editions ago of the DOCKET CALL and Court Tales,
Oakwood Cemetery, located in Huntsville, was mentioned as a good
place for an attorney and his family to visit. Oakwood Cemetery
is the final resting place of Sam Houston.
There is another interesting place for an attorney's family
to visit just a few hours from Houston Independence, Texas.
Independence has the grave of Mary Lea Houston, the wife of Sam
Houston.
Sam's father-in-law was a strong willed Baptist preacher.
Now Sam was the head of the Texas Army, President and Governor of
Texas once he went away to live with the Indians. It is said
he stayed drunk for 2 years while living with the redmen. The
Indians called him "the Big Drunk". The marriage of Preacher
Lea's daughter, Margaret, to the likes of Sam Houston must have
caused much discussion around Independence.
Sam died before his wife, Margaret Lea. When he died,
Margaret moved in 1850 to Independence, Texas, west of
Huntsville. Her mother lived there. Margaret died of Yellow
Fever in 1867. She was buried in this small town next to her
mother. One might speculate she was not laid to rest next to Sam
in Huntsville because the transportation of a Yellow Fever
infected body by wagon all the way to Huntsville would chance to
spread the disease.
Sam's mother-in-law, Nancy, had an eccentricity about death.
She spent some time planning her funeral. She had the lid of her
casket made with glass so her face could be seen as she lay
there. While the casket was in storage waiting for use, Mrs. Lea
used it to store coffee and sugar. The slaves were so scared of
the coffin with the glass lid that they stayed away from it and
didn't steal any coffee or sugar. Mrs. Lea died in 1850 and she
lay in state inside the glass-lidded coffin with a handkerchief
over her face. The tomb of Margaret Lea Houston and her mother,
Nancy Lea, can be seen in Independence.
The old home of Margaret Lea Houston is located in the town.
It is privately owned but can be toured. I'm sorry that I don't
know when the house is open to the public.
Across the street from the graves of Mrs. Houston and her
mother is the Independence Baptist Church. This is one of the
oldest established Baptist churches in the state. Probably, one
of its earliest pastors was Reverend Lea, Sam's father-in-law.
Later, George Washington Baines preached here. He is the great-
grandfather of former president, Lyndon Baines Johnson. The
church has a museum in it that is open to the public Wednesday
through Saturday from 10 a.m. to 4 p.m. and on Sunday from 1 p.m.
to 5 p.m.
13
Down the road from the church is the remains of Baylor Female
College. This college was organized in 1865 and was the
forerunner to the present day Mary Hardin-Baylor College located
in Belton. There is a creek that separated this women's college
from the men's school and it was affectionately known during that
day as the "River Jordan". Later, the men's campus moved to Waco
and became the present day campus of Baylor University.
There are other historical sites in Independence. It won't
take long to see them either because little restoration has
occurred. For instance, there are no markers in the town square
saying that Hood's Brigade was formed here early in the civil
war. Some remains of the old Blanton Hotel still stand. No
markers say the Fathers of Texas stayed at the Blanton while
writing the Texas Declaration of Independence down the road at
Washington on the Brazos.
(Thanks to Myra Hargrave McIlvain and her book, "Texas Auto
Trail the Southeast", 1982, for providing some of this historical
information.)
Independence is at the intersection of Highway 50 and 390.
Wait until April when the bluebonnets are in bloom to drive to
Independence. Travel northwest on Highway 290 toward Brenham.
Turn on Highway 1155 and drive through the old town of Chappell
Hill. There are interesting antique shops, restaurants and a
museum here. North of Chappell Hill you will drive through
rolling hills that will be covered with bluebonnets during the
season.
Have you noticed an influx of "lawyer" jokes recently? - Here
is an example A doctor, an architect and a lawyer went bird
hunting. Each brought a bird dog. The doctor's bird dog was
named "Old Scalpel". The architect's dog was named "Old Gothic"
and the lawyer's dog was named "Old Subpoena". The three hunters
came upon a pile of old cow bones in the woods. The doctor said,
"watch this. Sic 'em, Old Scalpel." And the dog jumped into the
middle of the old bones and quickly arranged them into a perfect
skeleton of a cow. The architect said, "that's nothing. Watch
this Sic 'em Old Gothic". The architect's dog arranged the
bones into a beautiful building-like structure.
The lawyer said, "you haven't seen anything yet. Sic'em, Old
Subpoena". The lawyer's dog bit the other dogs on the heel,
grabbed all the bones and ran into the woods.
What happened to the "aggie" jokes? Maybe there is a ratio
between the success of the aggie's football team and the number
of "aggie" jokes. And then a ratio between the "aggie" jokes and
the "lawyer" jokes. When there are fewer "aggie" jokes there are
more "la wyer" jokes. Since the "aggies" won the cotton bowl
game last season and are highly-rated this season look out for
more "lawyer" jokes.
That is all for "Court Tales" this edition.
14

WHAT WAS THE JUDGE
TRYING TO DO By David Mitaham
In the Houston Post, Tom Kennedy posed the
question, "Just what is this Judge trying to do?".
He purported to reveal, "how politics work at the
courthouse." Throughout his essay, he relied on
incomplete, misleading information. This is a
response to Kennedy's analysis of issues involved
in Judge Woody Densen's contempt proceedings
against certain County Officials.
Judge Denson was trying to see that State Law
was properly obeyed by the government officials
entrusted with the execution of lawful orders from
a District Court. In the face of substantial and
immediate political heat, Judge Densen took a
principled stand for the Rule of Law over
political expendiency.
The controversy revolved around compensation
paid to court-appointed counsel for the defense of
indigents accused of felonious conduct. The
applicable state law is Article 26.05 V.A.C.C.P.
enti tled, "Compensation of Counsel Appoin ted to
Defend". The Code states that the money, "shall be
paid from the General fund of the county",
according to certain specific, legislatively
mandated provisions. A lawyer is to paid, "for
each day or fractional part thereof in Court
representing the accused, a reasonable fee to be
set by the Court, but in no event less than
fifty-dollars". That in a nutshell is the Law of
the Code: A reasonable fee set by the Judge, no
less than fifty-dollars.
Last Spring, a group of Harris County
District Court Judges acting under the name,
"Board of Judges", promulgated an appointment fee
schedule with a built-in maximum per court
appearance to be paid court-appointed counsel.
This policy was placed into being by a peer group
vote. The problem with this new policy of the
Board of Judges was that it clashed with the
dictates of Article 26.05. The Legislature
intended that the Judge on the Bench responsibly
to consider the facts and circumstances of each
case and set "a reasonable fee" to be paid to
court-appointed counsel. There is no provision in
the Code allowing a Judge to abdicate this
responsibili ty to the Board of Judges, the
Consensus of Peers, or anybody else.
In July, the new policy of the Board of
Judges went into effect and County Audi tor, Joe
Flack, was directed to alter the character and
disposition of any District Court Judge's Order
that did not conform to the nLaw of the Pack."
Judge Densen continued to operate under the Law of
the Code by setting reasonable attorneys fees for
work done in his Court. Auditor Flack began
routinely rejecting Judge Densen's figures,
refusing to comply with the Court's orders.
Contempt proceedings followed wherein Auditor
Flack pled to the Court that he was caught between
Judge Densen's orders and the decree of
Commissioners Court, which recently adopted the
Law of the Pack.
The Commissioners Court should be mindful of
the 1975 opinion of the State Attorney General
number H-499, which states;
The Commissioners Court of a County is under
a duty to budget and order paid the amount of
any reasonable attorneys fee properly set by
a Criminal Court Judge pursuant to this
Article (26.05 of the Code of Criminal
Procedure) for the representation of indigent
defendants.
A trial Judge's order can be overturned only on
showing that it was so arbitrary, unreasonable,
and capricious as to be to an abuse of discretion.
Prior to July 1986, the Auditor paid all of
Judge Densen's orders for reasonable attorneys
fee. Upon advent of the "Law of the Pack", Judge
Densen's orders are now construed as unreasonable
per see This is the prevailing pretzel logic, and
it offends the Code's requirement that the sitting
Judge set a reasonable fee. The issue, clearly,is
whether County Government will follow the law and
obey a proper order of a District Court.
It may be a good idea to let a Board of
Judges decide the schedule for court-appointed
fees, with a locked in maximum. However, to do
this, State Law must be amended. Th is involves
more hassle than a quick vote of fifteen Judges at
a board meeting, but that is the proper recourse.
In years past, a maximum fee was set by the
statute which preceeded the present state law
embodied in Article 26.05. After considering the
matter, the Legislature specifically determined
that the Judge make the decision as to a
reasonable fee and rejected a proposed fee
schedule remarkably similar to the "Law of the
Pack".
Having practiced before Judge Woody Densen as
a Prosecutor and as a Defense Attorney, I attest
that he is dedicated to providing a fair trial to
15
all parties. He is Board certified in Criminal
Law. As a State Representative, he helped draft
the Texas Penal Code. One of the most active trial
courts in the State, the 248th disposed of more
criminal cases than any other Harris County
District Court in 1985. Judge Densen's ordered
attorneys fees were average relative to the other
District Courts in the county. Aside from his
expert knowledge of the law and his demonstrated
willingness to work long hours, Woody Densen
manifests what is most important in a judge -
personal integrity and courage of his convictions.
Waist-deep in the treacherous water of an election
year, the Judge stands for what he believes is
right under the law, regardless of the poli tical
risk. The Rule of Law and the People of Harris
County were well served by the recent principled
actions of Judge Woody Densen.
Editors note:
David Mitcham is a former Harris County Assistant
District Attorney Board Certified in Criminal Law
by the Texas Board of Legal Specialization and a
Director of the Harris County Criminal Lawyers
Association.
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 participationI
He-Elect
JudgeJiDlmie
DUNCAN
CountyCriminal CourtatLaw No.3
29 Years
Dedicated
Judicial Service
H R R s T u D o
R(onge
Rusty Hill
6 I 4 R ( H M o N 0
HOUSTON. TEXRS 7 7 0 0 6 5245528
PaidFor By
JudgeJimmie DuncanAppreciationCommittee
GeraldPayte,Treas. 12011 PradoWood
Cypress, Texas 77429
16
CJ5ig,niiicCfn! o;:gecisi"11s
,.
fiRST COURT Of APP(ALS By L. 111
Decisions from August 13 to September 10, 1986.
Robert Preston Gaddis v. State, No. 01-84-656-Cr
STATE'S DWI JURY ARGUMENT, TO THE EFFECT THAT DEFENDANT-DID NOT
TAKE THE BREATH TEST BECAUSE HE KNEW IF HE DID "THE GAMF. WOULD BE
OVER" HELD REVERSIBLE ERROR. YOU NEED TO READ MTD STUDY THIS ONE.
Defendant was charged with DWI. The information alleged only
the first statutory theory, i.e., not having the normal use of
mental/physical faculties. During guilt/innocence phase of trial,
the prosecutor argued that the defendant did not take the breath
test because if he did "he knew the game would be over."
The Court of Appeals held this to be improper argument.
Specifically, the Court reasoned that (1) there are now two ways
to commi t DWI, (2) there was no evidence in the record that the
defendant was .10 or more, and (3) therefore the argument was not
only outside the record, but arguing an unplead theory of
liability.
WHY THIS CASE IS IMPORTANT.
This case is even more important for another reason. The
Court found that the prosecutor's argument was extremely
prejudical, and not very probative. The Court noted that .10 is
no longer a presumption of intoxication, but only a separate
means of committing the crime. Apparently the Court is reasoning
that since .10 is no longer a presumption of intoxication, no
inferrence can be made from the decision not to take the chemical
test in regards to the other way of committing the offense.
THEREFORE, YOU SHOULD OBJECT TO THE EVIDENCE SHOWING THAT THE
DEFENDANT REFUSED A CHEMICAL TEST, ON THE GROUNDS THAT THE
PREJUDICAL VALUE OUTWEIGHTS THE ROBATIVE VALUE.
As you know, by statute (Article 6701L-5 V.A.T.S.) the
decision not to submit to a chemcial test is admissible before
the jury. The reason for its admission is to show the guilty
knowledge of the defendant (that even he knows "the game is
over"). I f the prosecutor's argument to this effect is error, it
is only because the refusal is not subject to this inference of
guilt. Therefore, object to the evidence, not later down the road
to the argument.
QUESTION: In this case, there was no expert testimony that
a person with .10 in his blood is intoxicated. Would the
prosecutor have been outside the record if this fact had been in
the record?
October 1986 SD 1
Vincent Ochoa v. State, No. 01-85-638-Cr
WHEN MUNICIPAL POLICE OFFICERS LEAVE THEIR CITY WHILE ON DUTY,
THEY BECOME CIVILIANS JUST LIKE THE REST OF US FOR PURPOSES OF A
WARRANTLESS ARREST.
In the landmark, shaken-them-up, earthquake revelation also
known as Love v. State, 687 S.W.2d 469 (Tex. App.-Hou[ 1st] 1985),
the Court h e d ~ h a t for purposes of a warrantless felony arrest
under Article 14.04 Texas Code of Criminal Procedure, a municipal
police officer ceases to be a "peace officer" when he leaves his
city limits.
Remember, as a general rule, a citizen can make a
warrantless arrest only where (1) the offense is committed within
the citizen's view and (2) it is a felony or misdemeanor which is
a breach of the peace. A peace officer, on the other hand, can
arrest (1) for any offense within his view, or (2) for a felony,
where the officer has probable cause from a credible person, and
reason to believe that the offender is about to escape.
In Love the officers made a warrantless felony arrest for a
dope offense not committed within in their view. Since they were
peace officers, they could make the arrest even though the
offense was not within their view (they had probable cause to
arrest, and reason to believe the offender was escaping). The
dope was seized pursuant to a search incident to the arrest.
HOWEVER, the arrest turns out to be invalid, since the officers
crossed the municipal city limits, and became civilians. Since
the officers were not authorized to arrest for offenses not
within their view, the search incident to that arrest was bad.
In this case, Pasadena undercover officers made a dope buy
within the city limits of Houston. The Court here agreed that the
Pasadena officers were now civilians, not peace officers.
However, the dope buy went first, and then the arrest. No dope
was seized incidental to the arrest. The taking of the dope as
part of an undercover transaction was not a 4th search or
seizure. Furthermore, the arrest could have been made by
civilians, since the offense occurred in the officer/ civ1ian' s
view.
End result: Since the arrest could be made by civilians, and
no technical search or seizure took place, no evidence should be
suppressed by city officers going outside their city. NOTE: In
applying the Love, remember that the Court was talking about
arrests under the general provisions of the CCP. Under the
traffic statutes, any city officer may make a warrantless traffic
arrest anywhere in Texas.
This case also illustrates an important principle in PDR
drafting. That is:
TO GET THEIR ATTENTION ON A PETITION FOR DISCRETIONARY REVIEW
(PDR), IT DOES NOT HURT TO LEAVE THEM LAUGHING.
The above noted case is on PDR to the Big Court in Austin.
Note that it came out of the same Court of ll-.ppea1s as Love. Rumor
has it that the appellate counsel argued in his PDFlthat the
First Court of Appeals does not really understand the Love
decision (its decision), and that the Court of Criminal Appeals
October 1986 sn 2
should grant PDR in order to assist the Court of Appeals in
figuring out what it meant. Remember, you must tell the Big Court
why it should hear the case!
FOURT((NTH COURT OF APP(ALS
Decisions from August 13 to September 10, 1986.
Calvin Louis Miguez v. State, No. 14-85-403-Cr
FOUR SEPARATE ATTEMPTS AT THREE SEPARATE LOCATIONS HELD
SUFFICIENT DUE DILIGENCE TO TOLL STATUTORY SPEEDY TRIAL TIME.
Probably the only time you can get a case dismissed on
statutory speedy trial grounds (Article 32A.02 Texas Code of
Criminal Procedure) is where an indictment, information or arrest
warrant is issued, and the state does not arrest the defendant
within the proper time per iod. Where this happens, the state is
not ready as a matter of law, and must show that one or more
periods of delay are properly excludable. The most popular
exclusion is that the state has used due diligence in locating
the defendant.
Here, Harris County Sheriff's Deputies tried four times at
three locations to arrest the defendant. Each location was a
plat::e where the defendant was "known" to hang out. No luck in
finding the defendant, but the Court of Appeals held due
diligence in trying.
This case demonstrates the sensitivity of facts, and
judgment of the Justices of the Court of Appeals, in measuring
the facts constituting "due diligence." The majority of the Court
discounted the following facts: (1) the defendant had been
recently paroled, (2) the parole records mistakenly showed the
defendant to be an "abscounder," (3) the defendant's last name
was incorrectly spelled on the indictment, and (4) the deputies
did not know that the defendant was regularly visiting his parole
officer. The majority of the Court held that the four attempts at
three locations was sufficient due diligence. The state was not
charged with the "erroneous spelling of his name on the
indictment as well as other bureaucratic snags."
The dissenting opinion, by Justicer Ellis, points to these
very facts to show lack of due diligence.
Leroy Jones v. State, No. 14-85-553-Cr
RIGHT TO USE FORCE TO DEFEND PROPERTY DOES NOT EXTEND TO
RETRIEVING YOUR MONEY AFTER BEING THE VICTIM OF A DISHONEST DOPE
DEAL. NO MORE ARMED SELF-HELP TO ENFORCE RIGHTS IN DOPE
'rRANSACTION. P1PLICATIONS ~ H N BOGGLING.
October 1986 SU 3
As you know, force may be lawfully used against a second
person in order to protect your property. Section 9.43 Texas
Penal Code. This is a right deep felt by all right thinking
Texans. A serious inroad diluting this right was made in this
case.
Defendant in this case goes to his neighborhood quasi-
quality pharmacutical retailer to purchase his weekly supply of
"keeps you running." A.fter making the transaction and leaving,
defendant discovers he has been given something other than the
real thing. Piece in hand, defendant exercises self-help remedy
(See D.C.C.) and gets his money back.
On appeal, the Court holds tha t "By no stretch of the
i.magination could the statute (Sec. 9.43) be reasonably
interpreted to protect a purchaser of dope who attempts to
retrieve his money when he discovers he has been duped instead of
doped." Remember, if they can do this to this person's right to
get his property back, then they can do it to anyone.
IF IT IS NOT IN THE APPELLATE RECORD, YOU'LL NEVER GET REVERSIBLE
ERROR. PUT WHAT THE TRIAL COURT KEPT OUT IN SOMEWHERE.
This is another example of the need to make a record as to
the evidence the trial court kept out. On state's case, all the
bad stuff the defendant said upon his arrest comes out. On cross,
defense counsel wants to get all the good stuff the defendant
said on arrest (like, a really good explanation for why he was
where he was when he was). The state objects a bunch of times,
the trial rules a bunch of time, and the defendant walks away
with a record which fails to show, either through an offer of
proof, or Q & A out of the hearing of the jury, precisely what
the good stuff the defendant said
On appeal the defense counsel assures the Court as to what
the good stuff was. The Court held it was wrong wrong wrong for
the trial court to bar the admission of the good stuff. The
reasons, take your pick: res gestae of the arrest, rule of
optional completeness, or the "It Just Makes Sense" Doctrine. In
any event, defendant loses loses loses because the appellate
record does not show what (1) the officer who is testifying to
these statements would have said on cross, or (2) through any
other witness (including the defendant) what was said.
NOTE: Do not be hard on the counsel at trial who did not
make a record of the allegedly good stuff that the defendant
said. Perhaps a record of what the defendant said would show that
it was not so good after all, and the defense counsel was in a
far better position having to make it up reveal what the
explanation was for the first on appeal.
Kenneth Lamar v. State, No. 14-84-S18-Cr
REPLACEMENT VALUE CAN BE USED TO DETERMINE VALUE OF ITEM TAKEN
FOR PURPOSE OF GRADE OF OFFENSE.
Oc toiler ) 'JllG :;IJ 4
-- --
At trial the owner of stolen furniture testified to what
would cost to replace items. Defendant argued that replacemer
value can be used only where stolen items have no market
Court of Appeals rejects this argument, noting that replacemen
value is authorized by statute, if market value cannot be readily
ascertained. Note that here stolen furniture was never recovered,
so that it was impossible for owner to determine the market
value.
Gary Donnel Sidney v. State, No. 14-84-733-Cr
Defendant gets fight with complainant. State's version
is that defendant kicked and hit complainant with fists until
complainant expired. De fendant' s version is that he pushed the
complainant only once, and then hit complainant only once, and
then the complainant fell and hit his head on the curb (like in
the movies).
FISTS OF FURY. STATE NOT AUTOMATICALLY ENTITLED TO RETREAT CHARGE
WHEN DEADLY FORCE IS EMPLOYED WITH WHICH ARE NOT PER SF
DEADLY WEAPONS. TRIAL COURT SOCKED WITH REVERSIBLE ERROR.
There is no question but that defendant's fists did result
in the death of the complainant. However, the issue is whether
the fist were "deadly weapons" as such. A deadly weapon is a
weapon which (1) is designed to cause death/serious bodily
injury, or (2) is intended to cause death/serious bodily injury.
Since the defendant disputed intent, a fact issue was raised.
The Court of Appeals handled this decision with kid gloves.
The Court began with the general law: where nondeadly force is
used, a party is not under the duty to retreat. However, where
deadly force is used, the party must attempt to flee and fight
another day.
In this case, the Court held that it was error for the trial
court to charge simply that the defendant had a duty to retreat
before using his deadly fists. Instead, the jury should have been
to first determine whether the defendant's fists were
deadly weapons as a matter of law, and then apply the appropriate
law of self defense. TKO to the trial court on this one.
Rajski v. State, No. 14-85-4l2-Cr
IN ORDER TO PRESEVE
ERROR ON APPEAL.
INTRODUCE EVIDENCE AT A.
A motion to sever joined defendant is to be made under
Art ic1 e 36.09 Texas Code 0 f Cr i m i na 1 Procedure. Th i s ca se
reaffirms the language of the statute, which requires not only a
written motion for severence, BUT EVIDENCE HEARD AT THE PRETRIAL
AS WELL. In other words, when your motion is carried to
the day of trial, and you are rushed rushed rushed to hear them
all before lunch, and the jury panel is coming in, yes! you must
put on evidence.
Also, the Court notes that a defendant has a heavy burden of
showing prejudice by the joinder. So what else is new?
October ]986 sn 5
Somewhere else in these case reviews, this author harped on
the failure of trial counsel to make a good record of what was
kept out. This case is an excellent example of exactly the
too good of a record as to what happened at
trial. Read on.
In this case, the motion to sever sounded awfully good
(adverse defenses by defendants, lots of prejudice, the specture
of the co-defendant taking the 5th and staying off the stand, and
if only the co-defendant could be forced on the stand, lots of
exculpatory stuff will come out!) However, the Court went one
step further, looked at the evidence produced at trial, and
concluded that co-defendant's testimony would not have been all
that helpful, and no prejudice by the joinder. May be there was a
good reason why defense counsel did not produce evidence at trial
after all?
()c t0uc:r ] 98() SlJ 6
COURT Of CRIMINAL APPEALS By Catherine Greene Burnett
* * * THE FIRST OPINIONS FOLLOWING SUMMER RECESS WERE * *
* * * DELIVERED SEPTEMBER 17th AND WERE OVER 500 PAGES * * *
Rusty Leon OSBAN, NO. 368-83 Opinion on State's Petition
for Discretionary Review: Felony Theft Conviction Affirmed
Judge Tom Davis, 9/17/86 [Dissenting Opinions by Judges Teague.
Cl inton and MI I Jer]
SEARCH AND SEIZURE -- DISCOVERY OF SMALL AMOUNT OF CONTRABAND IN
PASSENGER COMPARTMENT PROVIDED PROBABLE CAUSE FOR SEARCH OF TRUNK
INITIAL SEARCH OF PASSENGER AREA AUTHORIZED UNDER NEW
AS SEARCH INCIDENT TO VALID CUSTODIAL ARREST:
Facts: Cop saw 0 driving Cadi I lac in North Dal las; from his
conversations with other officers cop knew D's driver's license
had been suspended for another six or seven months. After
checking that Cadi I lac registered to 0, cop stopped 0 and asked
to see his driver's license. 0 produced a val id Oklahoma
I icense, but radio check confirmed that D's Texas I icense was
under suspension. 0 was then arrested and placed in squad car.
Cop cal led wrecker to impound Cadil lac and began to search
passenger compartment, finding 3 "Black Moll ies" in the ashtt-ay
and $3,000.00 over the visor, in the glovebox, on the dash and
in the front seat. Cop took keys from ignition and unlocked
trunk, finding 8 handguns, 4 of which were introduced at trial
and identified as stolen In burglary several days earl jer.
[Although not addressed in the majority opinion, DISSENT also
points out that there was alternative to impoundment because 0
told cop his ex-wife was there and could take the keys and
custody of the car; officer refused to do so because he didn't
know who woman was.1
Held: The key question to be asked in determining probable cause
for a further search when an officer discovers a small amount of
contraband in the passenger compartment of a car Is: "Whether a
man of reasonable caution would be warranted in the belief that
other contraband I terns may be located in the trunk tI I . e. ,
"Is It reasonable to assume that an automobile driver or
passenger presumably possessing an I I legal control led substance
might be hiding more of the substance in the trunk"?
Majority finds that even If discovery of "Black Mol lies" gave
probable cause for trunk search, question remains whether officer
was justified in searching passenger compartment in first place.
then reI ies on New York v. 453 U.S. 454 (1981) for
proposition that search incident to valid custodial arrest of
pet-sons who are in 0r recently have been in an automobile extends
to the entire passenger compartment and all containers [open or
closed] found there. Although State had never reI ied on Belton
to support. va 1 i d i ty of search .Be I t9n contro Is.
October 1986 SD 7
~ ~ a r t e James Rathme I 1. No. 973-83 OpInion on State's PDR:
Pre-Trial Habeas Corpus ReI ief Denied Judge McCormick,
9/17/86 (Dissenting Opinions by Judges Onion, Cl inton and
Teague]
DOUBLE JEOPARDY HOW MANY MANSLAUGHTER PROSECUTIONS LIE WHEN
D IS OWl AND HITS CAR KILLING BOTH OCCUPANTS? TCA says two.
Here 0 filed pretrial habeas corpus appl ication seeking to bar
second involuntary manslaughter prosecution on theory that trial
would expose him to double jeopardy. Stipulated writ evidence
showed that: While D was driving while intoxicated. he struck an
automobile in which two women were riding; both women died as a
result: D was indicted separately for Involuntary manslaughter
for each death: D was subsequently convicted in death of one
woman and punishment was assessed at 2 years confinement.
[PROCEDURAL NOTE: The pretrial writ of habeas corpus is an
appropriate remedy to review a double jeopardy claim. Under such
circumstances an interlocutory appeal is not only "a proper but a
prefert'ed remedy". ]
Held: Neither Blockburger [284 U.S. 684 (1980)] nor McW! I Iiams
[634 S.W.2d 815 (1982)] apply precisely to D's case. The
rationale of those cases app] les to situations in which the
criminal conduct violates 2 separate distinct statutory
provisions; here D's conduct violates one distinct statutory act
- twice. The offense of involuntary manslaughter is completed
with the death of a single Individual; it is of no consequence
whether the other death in question occurred prior to, contempor-
aneously with, or subsequent to the death for which D was first
tried.
Paul HERNANDEZ, No. 10009-83 Opinion on Appellant's PDR:
Capital Murder Conviction Affirmed Judge Tom Davis
[Concurring Opinion by Judge Cl inton; Dissenting and Concurring
Opinion by Judge Teague]. 9/17/86
INEFFECTIVE ASSISTANCE OF COUNSEL STRICKLAND V._WASHINGTON
ADOPTED AS A MATTER OF STATE LAW; NO GREATER PROTECTION OFFERED
BY TEXAS CONSTITUTION THAN AS A MATTER OF FEDERAL CONSTITUTIONAL
LAW:
The two-pronged test of Strickland_vo_Washlngton [104 S.Ct. 2052
(1984)J is adopted in ful I. The majority holds that the Texas
Constitution offers no greater rights or protections than the
Sixth and Fourteenth Amendments to the U.S. Constitution. The
fir'st prong of Strickland [I.e., the standard for determining
ineffectiveness] differs I ittle or not at all from pre-Stricklanq
opinions of the Court. The second prong [i.e., the test for
prejudice a reasonable probability that the result would
have been different] differs from the former Texas rule [See, Ex
p a ~ t e Duffy, 607 S.W.2d 507 (1980) holding that effective
assistance was so important a right to a petitioner condemned to
death that its infraction could never be treated as harmless
error]. Majority concluded from a review of the entire record,
that trial counsel rendered "sub-par" assistance but that. in t.he
partIcular instances where this occurred, it was not shown that
the result would have been different had trial counsel's
assistance been effective.
(1clnbcr 198() Sf) 8
CAUTIONARY NOTE INTERPLAY OF VOLUNTARY MANSLAUGHTER AND
CAPITAL MURDER: In a footnote relative to a Jury charge issue
t,he major i ty made the fo I low i ng observat i on:
" Moreover. we do not believe that
'sudden passion' arises from an 'adequate
cause' under V.T.C.A., Penal Code. Sec. 19.04.
when a D is in the course of committing one of
the underlying offenses delineated in
V . T . C . A.. Pena I Code, Sec. 1 9 . 03 (a) (2) ... "
James Wallace VICKNAIR, No. 036-84 Opinion on State's PDR:
Remanded to Court of Appeals Judge Tom Davis [Dissenting
Opinions by Judges Teague and Clinton], 9/17/86
SEARCH AND SEIZURE CRACKED TAIL LIGHT GAVE OFFICERS PROBABLE
CAUSE TO STOP D'S CAR:
Facts: Cop saw car with defective taillight -- I.e., it had a
cracked lens and white light showed to the rear of the car while
moving. Cops stopped car; D was driver. 0 had no Texas
license and was placed under arresst. Marihuana discovered in
plain view in car.
Ct/App reversed on a finding that a cracked taillight emitting a
white light is not a violation of Art. 6701d. Sec. III [Motor
Vehicle Laws pertaining to equipment] and D's tail light did emit
a visible red light at al I times. TCA ignored that section of
the c i v I I statutes in favor of the "I nspect, f on of Veh I c I es"
section and the Administrative Code. After much cross
referencing between the civil statutes and the Act and D.P.S.
regs and ru I es, major I ty conc I uded that "the cr I t,er i a promu I gat,ed
by the Department under authority of the Act constitute the
criteria of good working order and adjustments as required in the
Act" [I.e., Would D's car qualify for an inspection sticker?] A
person driving a motor vehicle with equipment that is not in
"good working order and adjustment" Is guilty of a misdemeanor.
A warrantless arrest is sanctioned under Section 153 of Art.
6701d.
Charles Andrew MESSER, No. 570-84 Opinion on Ap's PDR:
Possession Cocaine Conviction Reversed. Remanded for Acquittal
Judge Miller. 9/17/86
STIPULATIONS WHAT HAPPENS WHEN STIPULATION NOT SIGNED BY
TRIAL JUDGE?
If that constitutes all of State's evidence. conviction wil I be
reversed on sufficiency grounds. Here both sides entered stipu-
lation and agreed that if State were to cal I its witnesses, they
wou I d test i fy to t,he facts conta i ned I n the offense report.
Stipulation was signed by D. his attorney. and D.A.; it was not
approved and signed by trial court. Held: (1) Stipulation and
everything it contained [i.e . offense report] may not be
considered as evidence; (2) 0 did not waiver error in stipula-
tion by fail ing to object to it at trial [i.e., failure of trial
October 1986 SD 9
judge to sign stipulation is fundamental error and can be raised
for first time on appeal]; and (3) because D's statement that his
bag contained cocaine was part of offense report. it was never
properly admitted into evidence and could not be used to support
conviction.
Ex parte Calvin_Lloyd_Padgett. No. 766-84 Opinion on Ap's
PDR: Pre-Trial Habeas ReI ief Denied Judge Campbe 11
[Dissenting Opinions by Onion and Teague]. 9/17/86
DOUBLE JEOPARDY COLLATERAL ESTOPPEL -- WHAT IS THE EFFECT
OF A FAILURE TO ANSWER SPECIAL ISSUE NO. 2 ON THE CAPITAL MURDER
TRIAL OF A SECOND VICTIM OF THE SAME ROBBERY?
Majority finds that an inabil ity to answer a special issue is not
the ~ a m e as a negative answer. Therefore. there is no col lateral
estoppel problem in prosecuting as capital the trial involving
the second victim of the same robbery after the jury in the first
trial had been unable to answer Special Issue No. 2 on future
dangerousness. Majority viewed jury's inab!l ity to answer
Spec I a I I ssue No. 2 as mere 1 y a "nonanswer" rather than an acut.a 1
determination of the future dangerousness issue. To reach that
conclusion majority reI ied on legislative history to Art. 37.071
and fact that prospective jurors may not be Informed of the
effect of fallute of the.jury to agree on an issue submitted
under that Article.
Louis King CAMPBELL. No. 1018-84 Opinion on Ap's PDR: Court
of Appeals Reversed Judge Miller [With Judges Onion and
McCormick concurring in results and Concurring Opinion by
Teague]. 9/17/86
BOL RING EVEN UNDER NEW RULES OF EVIDENCE. PRIOR
CONSISTENT STATEMENT MUST BE MADE AT A TIME BEFORE SPEAKER HAD A
MOTIVE TO FABRICATE:
Facts: D kil led deceased in front yard by hitting him in head
with heavy object. No one at scene volunteered information to
investigating officers. One month later cops told by Crime
Stoppers that Jackson was witness. Jackson later gave statement
and was State's eyewitness at trial. Her version was
contradicted by D and his 2 eyewitnesses. D's entire case turned
on self-defense. On cross-examination Jackson stated she had
been paid [$400.00] one month after giving i nfOl-mat ion. On
rebutall officer testified Jackson had said the "same things" in
each conversation or statement he had with her and that she had
"never changed her story".
Held: Rains [146 S.W.2d 176. 178 (1940)] sets out prevail ing
rule that if a prior consistent statement was made after a motive
or inducement existed to fabricate. then the supporting statement
is inadmissible. The new rules of evidence [Tex.R.Cr.Evid.
801(e)(I)J contain no requirement for admlssibil ity that the
prior consistent statements be made before the time when the
motive to fabricate arose; however. when federal courts have
interpreted the identical language they have tended to
incorporate the requirement of absence of motive to fabricate
e x a ~ rule will also include this requirement and the rule of
wil I remain Intact.
October 1ge() SjJ ]U
Anthony C. WILLIAMS, No. 140-85 Opinion on Ap's PDR: Ct/App
Affirmed Judge Tom Davis [With Judge Onion Dissenting. and
Dissenting Opinions by Cl inton (joined by Miller) and Teague],
9/17/86
SEARCH AND SEIZURE PARKING WITH "LEFT WHEELS TO RIGHT CURB"
[I.E., ON THE WRONG SIDE OF THE STREET] CONSTITUTES MISDEMEANOR
TRAFFIC OFFENSE AND THUS PROBABLE CAUSE TO ARREST IT IS
UNIMPORTANT THAT OFFICER WAS INVESTIGATING WHAT HE THOUGHT WAS
NARCOTICS TRANSACTION:
Informant told cop that X was sel I ing marijuana in the
area. Cop saw D's truck parked on wrong side of street, with D
sitting in driver's seat and X standing by open driver's door.
Cop could not tel I if the men were handing something to each
other or shaking hands. CoP walked over to investigate; when he
arrived 0 was standing by open door and X had moved off. Cop saw
brown bag on floorboard of driver's side. Looking inside and
moving shirt. he saw gun sticking out of 2nd sack. Cop asked if
was 0'5 truck, and when 0 said yes, arrested him.
Held: Under Art. 6701d, Sec. 153 any peace officer may arrest
without warrant any found committing violation of any
provision of Art. 6701d [Motor Vehicle Laws]. Thus cop had
probable cause to arrest 0 for violation of Sec. 96(a) -- right
hand wheels were not paral leI to and within 18 inches of right
hand side of curb, which is required when stopped or parked on a
2-way street. It is of no importance that cop was investigating
what he took to be a narcotics transaction. Search of sack was
justified as search Incident to arrest. Unimportant that this
search "preceded the formal custodial arrest by a few moments."
No. 69.109 -- Capital Murder Conviction Affirmed
-- Judge W.C. Davis (Concurring in Result: Judges T. Davis,
Miller, McCormick and Campbel I; Dissenting: Onion, Cl inton,
Teague] 9/17/86
WARRANTLESS ARREST REASONABLE BELIEF THAT D ABOUT TO ESCAPE:
The test for a warrantless arrest under Art. 14.04 [Felony
comm i tted and offender about, to escape] is two-fo 1d: ( 1 )
Whether information available to officers would justify their
bel ief D would flee if not placed in custody; (2) Whether the
conduct of officers unnecessarily created likel ihood of such
action by D. Key factor should be availability of reasonable
alternative conduct to the arresting officer. Plural ity rejects
idea that merely because 0 found in motel frequented by
transients. reasonable to bel ieve 0 about to escape. Facts: Cops
were directed to D's room by witnesses who said saw someone
running that way in bloody clothes; when cops knocked on door,
they were greeted by D's companion and saw D in underwear; D
agreed to step outside and was he was then identified.
October 1986 SD 11
County Court atLaw No. 14
"ON. ANC[L FRAQA
TELEPHONE NUMBER: 221-5683
LOCATION: 1302 Preston, 3rd fl.
COORDINATOR'S NAME: Alan Acosta
COORDINATOR'S PHONE: 221-5683
CLERK'S NAME: Anna Worthy &
Georgia Taylor
COURT REPORTER: Brenda Burleigh
BAILIFF'S NAME: Joe Alvarado
PROCESS SERVER'S Neil Hines
PROBATION OFFICER'S NAME: Noelia Esparza
PROBATION OFFICER'S PHONE: 221-7688
PROSECUTOR'S EXTENSION: 221-8327
COURT
Appointments are made Monday through Friday around 8:15 am.
A daily roster is maintained for attorneys.
Attorneys are asked not to request an appointment until after
thirty days from the last appointment.' The judge will ask
questions regarding indigency and an affidavit will be filed with
the court. The judge will pay for a Petition for Discretionary
Review. There is no policy regarding investigatory fees. The
judge will pay $125. per setting and $200.-250. per day for tried
cases.
BOND CONSIDERATIONS
The court considers the prior record of the defendant in
setting of bonds. The court grants a PTR bond based on the
defendant's own statements, PTR rating and PTR's attitude towards
bonds. The court will grant an MRP ; $1500. or bond in accordance
with other court custom. The court will retain the original bond
pending a motion for a new trial and also pending sentencing.
An indigent on a PTR, cash or surety bond can continue to be
represented by an appointed on a case by case basis.
DOCKET AND TRIAL CONSIDERATIONS
The court does not grant J & S Resets; on probation cases
defendant is allowed to pay fine, cost & fees over probationary
period of 6 mos. to one year; $50. minimum per month. A case will
be set for trial in 2 to 3 months and will go to trial in the
week it is set unless both sides agree to a continuance.
Policies on speedy trial waiver are that motions can be made
on trial date. No policy regarding examining trial. Pre-trial
dispositive motion settings should be made on trial date only.
There is no time limit on Voir Dire or on final argument if
within reason.
SENTENCING CONSIDERATIONS
Probation will be considered in all cases where available.
Deferred Adjudication is considered where available; not on
DWI's. A typical recommendation for a first offense in a DWI is
probation- 180 days/2 years with fines from $200-250. A written
motion and an oral proof are required for an application for
probation. The court seldom adds special conditions for
probation; each determined on cases by case basis. The court
will grant probation to defendant's if the case warrants
Octrl])Ccr ] Sll 12
probation and if the defendant qualifies. The judge will listen
to both sides and does not automatically follow the prosecutor's
recommendation. The court considers technical violations of
probation on a case by case basis and will jail therapy.
Fines can be paid in installments.
can receive probation.
Membership Directory
Kevin HAGERTY 609 Fannin, #408
"
Barry J. HARDS 6363 Woodway
Ronnie HARRISON 1018 Preston, #100
Robin HARTMAN 4109 Caroline
Larry D. HATLEY 320 Main, #500
Ron HAYES 705 Main, #401
Richard HAYNES 4300 Scotland
Claude R.HAZEL 1221 Lamar, #1220
Mary HEAFNER 202 Drew
Steve HEBERT 2815 North Main
Thomas HENDERSON 2200 Post Oak #420
Joe HERNANDEZ P.O. Box 1923
Julie HILL 723 Main St. #505
Wayne T. HILL 1233 W. Loop So.#1030
Wesley HOCKER 2611 FM 1960 W.#A-101
Robert E. HOPPER 1111 N. Loop W. #570
Bennie HOUSE,Jr. 3303 Louisiana, #114
Kevin HOWARD 723 Main St., #620
William HOWELL P. O. Box 276
Hal HUDSON 609 Fannin, #217
Frank HUGHES 504 Church
Bob HUNT 99 Detering, #240
An unnocumented person
Houston 77002 225-0721
Houston 77057 782-4000
Houston 77002 223-4034
Houston 77002 521-1135
Houston 77002 229-9898
Houston 77002 237-0034
Houston 77007 868-1111
Houston 77010 951-9711
Houston 77006 528-6575
Baytown 77521 422-3553
Houston 77056 552-1892
Houston 77001 223-2866
Houston 77002 237-0523
Houston 77027 623-8310
Houston 77068 444-7279
Houston 77008 861-8225
Houston 77006 528-6911
Houston 77002 224-1731
Manvel 77578 224-8538
Houston 77002 237-1182
Crosby 328-2040
Houston 77007 868-3505
October 19Sb Sil 13
Ronald D. HUNTER P.O. Box 890021 Houston 77289 486-8125
I
Robert INGER 8538 Cede1 Houston 77055 683-7803
Allen C. ISBELL 202 Travis, #208 Houston 77002 236-8333
J
Timothy JACKSON 1612 Richmond Houston 77006 526-1612
Quincy JAMES 806 Main St.#600 Houston 77002 225-1351
Thomas JE:-:NINGS 6500 No. Fwy.,#109 Houston 77076 691-6421
Paul JENSEN 2929 Allen Pkwy.#1717 Houston 77019 521-1888
Juanita JEYS 2211 Norfolk #525 Houston 77098 524-8110
Charles JOHNSON 9525 Katy Fwy.#101 Houston 77024 461-0683
:10 r gan JOHNSON 1420 Washington Houston 77002 222-2406
Travis JOHNSON P.O. Box 101008 Houston 77270 863-7878
A R JOHNSTON 11767 Katy Fwy.#1000 Houston 77079 870-1980
Barry JONES 1208 Franklin Houston 77002 225-3425
Joyce F. JONES 3303 Louisiana,#150 Houston 77006 522-0022
K
Larry KNAPP 2929 Allen Pkwy.,#2600 Houston 77019 529-3992
Nancy KREMERS 1701 Fairview Houston 77006
Robert C. KUEHM 3000 Post Oak #1400 Houston 77056 621-5454
L
Angelica LANDA P.O. Box 725 Houston 77002 861-9271
Kenneth E. LANIER 708 Main St. , #725 Houston 77002 222-8161
Jim E. LAVINE Five Post Oak #1130 Houston 77027 552-0300
Jack LEE 608 Fannin, #1113 Houston 77002 861-8647
Steven M. LEE 6001 Gulf Fwy.#A-101 Houston 77023 921-4171
William D. LEIKAM 2828 Bammel Lane #901 Houston 77098 528-6261
E. Matthew LEEPER 4412 Caroline Houston 77004 520-5022
James :1. LEITNER 2134 Richmond Houston 77098 520-9180
George L. LEWIS 3701 Kirby #1200 Houston 77098 659-3904
Joseph LICATA 5444 Westheimer, #1500 Houston 77056 963-9888
Harry LOFTUS 2915 San Jacinto Houston 77004 5 2 9 ~ 3 3
n,:trJj,r,), J 'H;tJ :ill J;:
John LOHMANN 5005 Riverway,#450 Houston 77056 961-7999
Jap LOTT 6302 Gulf Fwy. Houston 77023 225-1351
Rita LUCIDO 815 Hawthorne Houston 77006 527-0511
George LUQUETTE 2900 Smith,#201 Houston 77002 522-4220
M
Nick MALA VIS 1001 Texas Ave.#940 Houston 77002 225-0666
Edward MALLETT 55 Waugh Dr. #900 Houston 77007 526-1778
Michael MANESS 1900 No. Loop W.#500 Houston 77018 680-9922
Richard M. MARSH 720 Bayland Houston 77009 880-4363
Randy MARTIN 9339 Eastex Fwy. Houston 77093 695-6496
Hattie S. MASON 3220 Louisiana #103 Houston 77006 520-5057
Darrell McALEXANDER 204 Fannin, #736 Houston 77002 222-6601
James McBRIDE 6430 Richmond, #300 Houston 77057 522-3789
Neil C. McCABE 1303 San Jacinto Houston 77002 659-8040
Charles McCALLISTER 723 Main #238 Houston 77002 223-3854
Donna McCARTY 9606 Richmond Houston 77063 977-8677
Randy McDONALD 2701 Fannin Houston 77002 655-8005
Richard McGONIGLE 2101 Lexington Houston 77098 526-2422
Garland McINNIS 216 Stratford #5 Houston 77006 224-6719
Mark McINTYRE P.O. Box 3572 Houston 77253 872-0007
Thomas McMANUS 16526 Market Channelview 77530 452-1571
Francisco MEDINA 2900 Smith #220 Houston 77006 527-9610
Charles MEDLIN 3110 S.W. Fwy.#190 Houston 77098 529-8500
Berta MEJIA 1211 Hyde Park Houston 77006 522-9609
David MENDOZA 1001 Texas #600 Houston 77002 223-9202
Stephen MESCALL 200 Park St. Baytown 77520 422-3553
Paul MEWIS 23034 Chelsen Bridge Katy 77450 521-2411
William MEYER 6885 Griggs Rd. Houston 77023 222-0550
Kenneth MINGLEDORFF 430 Highway 6 So.#215 Houston 77079 497-7180
David MITCHAM 1400 Congress Houston 77002 228-4888
October 1986 SD IS
DISTRICT COURTS TRYING CRIMINAL CASES
~
Coordinator Court Rep:>rter
SaOOy Jefferson
Kay Arrlerson Sherry Gentry
Les Oliver Tamra Parks
LiOOa Hanson Gail Williams
Judy Shaver Marlene Swope
Ted Jaynes Kathleene O'COnner
Carolyn Hamilton Valdeane Coe
Jinmy Pillow Marilyn See
Ron Story Debbie Traylor-Zann
Carolyn Madeksho Jennifer Slessinger
Mary Alcoba Phyllis Thibodeaux
Kathy Norman Janet samers
Elaine Stolte
David Als\\Qrth Bella Joe Fisher
Doug Harvey BreOOa Palmer
Doug Pettit
Lanelle Roberts Pat Ranirez
Carolyn Graham Sharon COOk
Charlie Brossman Darlene Hulka
Betsy Clerrrner FDna Hipp
Mona Freed Marilyn Skinner
Mona Zimnerman Myrna Hargis
JURY CHARGE BANK - R:>an 100 5653
Barbara Samford 5653
CXJMPUTER AIDED TRllNSCRIPTIrn CENTER. 7768
- 3rd Floor -
Helyn Guerry, CAT COOrdinator 5598
&6740
CherrieL. Bowen,
FDitor Terminal Operator 5598
&6740
Judy Fox,
FDitor Terminal Operator 5598 ~
&6740
Court Judge
174th JonN. Hughes
176th william Hatten
177th Miron Love
178th William T. Harmon
179th I. D. McMaster
180th Patricia R. Lykos
18200 Donald K. Shipley
183rd Joseph Guariro
184th Bob Burdette
185th George L. walker
208th Thanas R:>utt
209th Michael T. McSpadden Cr-424
228th Ted Poe
230th Joe Kegans
23200 A. D. Azios
248th \'b:ldy R. Densen
26200 Doug Shaver
263rd Charles J. Hearn
337th Johnny KoleOOa
338th Mary Bacon
339th Norman Lanford
351st Albert Pruett
Bldg.
~ / F I .
Cr-520
Cr-507
Cr-700
Fi-5th
Cr-500
Cr-306
Cr-608
Cr-823
Fi-5th
Cr-532
Cr-514
Cr-806
Cr-628
Cr-800
Cr-631
Cr-708
Cr-719
Fi-2OO
Cr-600
Fi-2OO
Cr-829
Impact Court-Family Law Ctr-6th Fl.
AIl'flNISTRATIVE OFFICES - R:>an 100
Clerk
Ext. No.
6324 7840
6328 7822
6332 7841
6336 7843
6340 7848
6344 7847
6350 7846
6354 7853
6358 7852
6362 7852
6374 7826
6378 7854
6650 7827
678.2 7823
6778 7821
7094 7825
6961 7828
6944 7842
7746 7851
7775 7838
7787 7838
5620 7845
5021
Hon. JonN. Hughes, Admin.Judge6324, 6575
Jack Thanpson, Court Administrator 6575
Patty Caro, Fiscal/Admin. Secretary 5396
Maria Cruz, Secretary 6579
Ted Doebbler, Staff Attorney 6575
FD Erwin, Operations Coordinator 5704
Leslie Gay, Project Analyst 6859
Joyce Metoyer, Alternate COOrdinator 6575
Nancy Pulido, Admin.AsstjExec.Sec 6576
Susan Schmitz, Research&Dev.Analyst 5703
Joan Taliaferro, Alternate Coord 6575
Peggy Witt, Alternate Cooridnator 6575
October 1986 SD 16
LETS MAKEA DEAL
NewlyRemodeledDowntownOfficeSpace
40,000SQ. It. contiguous 150'sq It load
Private elevator lobby
Guard service and electroniC IIldeo surveillance
sa.OO SQ. It. rental $1000 sq It budd out
allowance
ANDIOR
Three 11,500.00 SQ. ft. Hoors 150'sq It load
NewMarblelobbyguardservice - electrontcvideo
surveillance
$10.00 pet" sq. It. per floor - $1000 budd
allowance
out
ANDIOR
Executiveofficesuites- wholeHoorfrom300so ft
up AIservices
-AND/OR
MixedIIoors - 500SQ. It. to 2500 sq. It
$12.00 pet" SQ. ft. completely bulh out
Monthtomonth orlease
Call Bill Curti. - 713-223-8592
OrYourBroker
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following QreQs:
drug nnQlysls
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Qlcohol toxicology
nnonymous drug testing
dwl consultatIon
clandestine labs
Qrson debris analysIs
Ptlvate InvestigatIons
CONSULTATION
FOR CROSS-EXAMINATION OF
OPPOSING SCIENTIFIC EXPERTS.
713-331- 2655
1600 EAST HWY. SIX, SUITE 350
HOUSTON, TEXAS 77511
FORMER DPS CHEMISTS
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MOSES "MOE"
ANCHEZ
FOR JUDGE
Pol Adv. paid for by ComrTllttee to Elect Moses Sanchez <!d
lola Slater, Treasurer, 1206 Eagle. Houston, Texas 77004
VOTE
N
Servedwith ValorinKorean War
A
(u.s. Marine Corps)
ctlve Community Leader
(Jaycees, WLACandothers)
ational Bar Assoc. (Hispanic)
CIVil&: Criminal Attomey
Honesty&: Integrity
ExperiencedTrialAtty-1SYears
ZealOUSlYSeeking Support
526-5728
ELECT
GEORGE H.
GODWIN
185th District Court
FormerHarris County Assistant District
Attorney
Most Experienced Candidate in Number
ofJuryTrials
Board Certified in Criminal Law,
Texas Board of Legal Specialization
Deemed Qualified bythe Harris County
Judicial QualificationsCommittee
Pol.Adv.paid forby GeorgeH.GodWinCampaignFund,A. RossRommel!,Jr., Treasurer,2701 Fannin,Houston,Texas. 63
RE-ELECT JUDGE
MUSSLEWHITE
Proven Judicial Experience
County Criminal Court No. 6
PD. POL ADV. SUE MUSSLEWHITE, TREAS.
12219 KIMBERLEY
Educational Programs Scheduled
BOARD MTfNG
THURSDAY} OCTOBER 9} 1986} 12:00 NOON} ADMINISTRATION BLDG.
CAFETERIA. MEMBERS ARE WELCOME TO ATTEND.
WEDNESDAY UPDATES
APPELLATE COURT UPDATES} 12:00 NOON} JUDGE LOVEIS COURTROOM} 1.0
CREDIT} MODERATOR: JIM SKELTON.
LUNCHEON PROCRAM
THURSDAY} OCTOBER 16} 1986} 12:00 NOON} INNS OF COURT} 707
TRAVIS} 15TH FLOOR. 1.0 CLE CREDIT} SCHEDULED SPEAKER:
WENDELL ODOM} CHAIRMAN} DEPARTMENT OF PARDONS &PAROLES -
TOPIC: "DON/T GO DIRECTLY TO TDC - PAROLE FROM HARRIS COUNTY
JAIL". ALL ARE WELCOME TO ATTEND. FOLLOWING SPEAKER ADIS-
CUSSION OF IMPACT COURTS &ATTORNEY FEE SCHEDULE BY LOCAL BAR
ASSOCIATION MEMBERS.
CRIMINAL LAW INSTITUTE
FRIDAY} OCTOBER 31} 1986} 9:00-4:00 PM} SOUTH TEXAS COLLEGE
OF LAW} 1303 SAN JACINTO} MODERATOR: RICK TREVATHAN} SPEAKERS
INCLUDE:
VIC BLAINE."JURY SELECTION
BOB I,DIRECT EXAMINATION
MIKE RAMSEY,. EXAMINATION
DICK DE GUERINJURY ARGUMENT
JAN FOX. "." RULES OF EVIDENCE
J1M STEELE,"'.1SPEEDY TRIAL ACT
JIM SKELTON..,RECENT DEVELOPMENTS IN LAW
CO-SPONSORED BY HOUSTON BAR ASSOCIATION &HCCLA.
MEMBERS: PRE-REGISTRATION
REG, AT DOOR 85.0
NON-MEM: PRE-REGISTRATION 110.8
REG. AT DOOR 135.
MAIL CHECKS TO : HOUSTON BAR ASSOCIATION} 707 TRAVIS #1300
1
HOUSTON} TEXAS 77002 OR CONTACT 2L2-1441
MARIA RAGO OR LINDA PANZICA FOR INFORMATION,
ELECT
REPUBLICAN CANDIDATE
~ M BARKLEY
A NATIVE HOUSTON/AN
JUDGE
Harris County
Criminal Court
At Law No. 14
..11M BARKLEY HAS 10 YEARS OF PROVEN
TRIAL EXPERIENCE IN THE HARRIS
COUNTY CRIMINAL COURTS AT LAW AND
WILL BRING TO THE BENCH THE
KNOWLEDGE, DISCIPLINE, AND DEDICA-
TION REQUIRED IN THE ADMINISTRATION
OF EQUAL JUSTICE UNDER THE LAW.
Political Ad Paid For By Jim Ba.rkley Campaign, Ann S Barkley, Treasurer
Re-Elect ...
JUDGE BILL
RAGAN
COUNTYCRIMINALCOURTATLAW #1
1m
iA I
Paid for by Bill Ragan Judicial Campaign. ~ U,
Mickey Ragan, Treasurer. 6326 Grovewood ""'::;::'
Lane. Houston, Texas n008. --
R
E
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C
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JUDGE
ELECT
RUBEN GUERRERO
180 th JUDICIAL
DISTRICT
PAID FOR BY ELECT RUBEN GUERRERO MARY 202 TRAVIS 77002
LETTERS By Dan GeT'BOn
Dear Johnny:
Once more here I am writing you to complain
of being deprived of an examining trial by a
rushed-through indictment. Certainly this is a
controversial case and your opinion and mine
differ greatly on the legality and ethics of the
police posing as attorneys at the direction of
your assistants. That issue will be litigated in
court at another time; I am not writing to belabor
those points.
However, I was upset once again when I
requested an examl.nl.ng trial in this case, was
given a date agreed to by Chuck Rosenthal, and yet
was informed on the day before the setting by the
coordinator that indictments had been returned. I
have complete faith in your integrity and when I
received your letter of August 20, 1986, stating
that indeed it is your policy that cases set for
examining trial are not to be purposely indicted,
I was satisfied.
Yet, Chuck Rosenthal, a prosecutor estab-
lished in the hierarchy of your office, with years
of experience, looked at me dumbfounded when I
told him that there was such a policy. I now have
had two cases which were set for examining trial,
prematurely and purposely indicted by a special
prosecutor and by a chief prosecutor of a district
court who both profess ignorance of an important
policy. Such a policy is meaningless, if it is not
first of all made clear to all prosecutors and
secondly, enforced with sanctions.
Defense attorneys have come to expect such
"dirty tricks" and this is a sad and unhealthy
situation. If you really want to stop this
behavior then I suggest that you send out a
memorandum to all assistants, post copies of it in
both elevators in your building and take measures
against those that violate the policy.
Thank you for your prompt and earnest
attention to these matters.
Editor's Note: this letter was sent to Mr. Holmes
with the following memorandum being sent to all
staff prosecutors as a result.
INTER-OFFICE MEMORANDUM
TO: Staff Prosecutors
FROM: Bert Graham
SUBJECT: Examining Trials
DO not present a case to the Grand Jury until
after an examining trial if a defense attorney
requests same.
The general rule has its exceptions, which are as
follows:
1. All murder cases.
2. All cases involving child abuse both
physical and sexual.
3. Cases in which the defense attorney fails
to appear for the examining trial setting
or otherwise delays the prosecution.
4. ,Cases involving such extraordinary
Cl.rcumstances that same must be brought to
the attention of the court in the interest
of justice or for the protection of the
parties.
Approval by your division chief is required for
such extraordinary exceptions as provided under
Exception #4.
Although in the past we successfully litigated the
proposition that a defendant has no right to an
examining trial if his case is first presented to
a Grand Jury, we nevertheless agreed with the
Judiciary and defense bar to the above policy many
years ago in order to make viable central filing
at Intake.
Dear Editor:
In your recent issue of Docket Call Jamail v.
State, No. 14-85-019-CR, was discussed in the
Significant Decisions Section. The author of that
article has totally distorted the opinion as
rendered by this court.
Jamail does not stand for the proposition
that once a defendant has been given his Miranda
warnings he has a Fifth Amendment right to counsel
to determine whether to submit to a test of any
bodily substance. I know of no case that stands
for the proposition that an accused is entitled to
an attorney merely because he has been Mirandized.
The author of the article apparently read the
dissent of Justice Draughn, in which the majority
opinion was also misstated. Jamail requested and
was denied counsel during custodial interrogation
and the interrogation did not cease. The fact that
he had been given Miranda warnings created no
right to counsel prior to making a decision
regarding compliance with any testing of breath or
bodily fluids. However, when an accused is
undergoing custodial interrogation and requst an
attorney, all interrogation must cease unless and
until the accused initiates further communications
and affirmatively waives right to counsel. Edwards
v. Arizona, 451 U.S. 477 (1981).
I realize that it is confusing to a reader
when a dissenting opinion misstates the holding of
the majority opinion; however, I am concerned that
your readers will likewise fail to understand the
holding of the Jamai1 case. Please reprint in your
next publication the Jamail case with the correct
holding, or contact me about a possible solution
to this problem.
Judge Ross Sears (14th Court of Appeals)
Dear Editor:
I was set for jury trial in Judge Hatten's
court on 9/15/86. Although the Court was already
in trial, it took more than two hours for me to be
released "on call". On the morning of 9/18/86
Judge Poe's court called and informed me I would
be first out on 9/22/86. The afternoon of 9/18/86
Judge Hatten's court called and the case was
carried until 9/22/86. On 9/22/86 I informed Judge
Hatten that Judge Poe's court had sent for a jury
prior to my arrival and that I would be in trial.
On 9/24/86 Judge Hatten's court again carried my
bond case until 9/29/86.
I feel that carrying a case for three weeks
is excessive as it is difficult to practice law
under these circumstances and is coercive of pleas
to the client who must again and again miss work.
I hope that those judges who engage in this
practice, which seem to be those with huge docket
backlogs, will be more fair in the future.
lsiMary Moore
Objections To The Jury Charge Based On
Article 37.07 Section 4 (Parole Law)
by: Allen C. Isbell
I have been asked to share the objections I
make to the jury charge concerning the parole law.
If others have additional objections, please send
them and they will appear in future issues.
The Court errs in instructing the jury in the
language of Article 37.07, Section 4 in that this
instruction is unconstitutional because it
violates the separation of powers in that it is a
legislative encroachment upon judicial powers.
The Court errs in instructing the jury in the
language of Article 37.07, SECTION 4 in that this
instruction is unconstitutional because it
violates the separation of powers in that it is a
legislative encroachment upon the clemency powers
embodied in the parole system which belongs to the
executive branch of Government.
The Court errs in instructing the jury in the
language of Article 37.07, SECTION 4 in that this
instruct on is unconstitutional in that it invites
the jury to speculate on matters outside its task
of deciding proper punishment.
The Court errs in instructing the jury in the
language of Article 37.07, SECTION 4 in that this
instruction is unconstitutional becuase it is
confusing and vague.
The Court errs in instructing the jury in the
language of Article 37.07, SECTION 4 in that this
instruction misleads jurors as a matter of law.
26
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Candidate for Judge. CCCL #13
Mark Atkinson is the Republican nominee for Judge of CCCL #13.
Mark has handled over 500 criminal cases in 14 Texas Counties. as well
as Federal and Municipal Courts. He earned a B.A. degree in History from
the University of Texas at Austin and his J.D. from South Texas College of
Law.
Mark Atkinson and his wife have 3 boys. ages 3. 6 and 7. They
attend West University Methodist Church. Mark is active in various civic
organizations and is a Cub Scout Den Leader.
Mark's goals in running Court 13 include being fair, honest and
impartial, with concern for the rights of the accused, any victims. and the
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Specifically, he would like to see cases tried or pled within a short time
after an accused is arraigned. He also believes that the Court should be
responsible for notifying any victims of procedures for monitoring cases which
involve them.
Mark Atkinson was rated "Qualified" by the Harris County Judicial
Qualifications Committee, and "Preferred" over his opponent by 55%. of the
respondents to the Houston Bar Association Poll.
For Judge, Harris County Criminal Court at Law #13
1818 Memorial Drive Houston, Texas 77007 (713) 868-3967 or 561-6669
Paid for by the Mark Atkinson for Judge campaign Vicki Atkinson, Treasurer
WHATISTHEHARRISCOUNTY WHATDOES HCCLA DO FOR WHATDOES AMEMBER DO?
CRIMINALLAWYERS
ASSOCIATION?
The HCCLAis a non-
profit, taxexempt.
professional Association
madeupoflawyers from
HarrisCounty.Texas, who
are working to promote
excellenceand high ideals in
the practiceofCriminal
Law.
Anylawyer in good
standingwith the State Bar
ofTexas, who is endorsed
bya member of
HCCLAis eligible tojoin.
Theendorsement recom-
mends theapplicant as a
person ofprofessional
competency, integrity and
goodmoralcharacter who is
activelyengaged in the
defense ofcriminal cases.
THEDEFENSEBAR?
Referrals throughour Lawyer Referral Ser-
vice and throughourmembershipdirec-
tory.
HCCLA publications including DOCKET
CALL, a monthly newslellersummarizing
signifu:ant decisionsoftheTexas Courtof
Criminal AppealsandTexasCourtsofAp-
peals and topicsoflocal interest to the
criminaldefensebar.
Regular Monthly Luncheongeneral
membership meetings featuring speakers
onsubjectsoftopical interest.
Providesa responsive local forum for
lawyer.; actively engagedin the practice
ofcriminal law.
Opposeslegislation and local rules which
infringe onindividual rights protected by
constitutionalguarantees.
Promotes a productiveexchange ofideas
andencourages bettercommunication
with prosecutorsandthejudiciary.
Providescontinuing\egaI education pro-
grams for improvingadvocacyskiUs and
knowledge.
Promotesa justapplicationoftheCourt
appointedlawyersystem for indigent per-
sons chargedwith a criminal offense.
FIles Amicus Curiae Briefs where ap-
propriate.
Participateand exchange information and
skiD in ourClEprograms.
Contributetoour BriefBank Service.
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Bring tothe Association's attention proper
grievances in the practice which merit
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66
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Professional Organ.izations in which your are a member in good
____________________
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orareyouthesubjectofdisciplinaryactionnowpendinjS.g___
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moral character. Theapplicant is actively engaged in thedefenseofcriminal cases.
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P.O. Box 22773
Houston, Texas 77027
713/227-2404
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