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Criminal Defense Lawyers Project POST OFFICE BOX 12487 CAPITOL STATTON AUSTIN, TEXAS 78711

TENTATIVE 1979 CDLP COURSE SCHEDULE

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IN THIS ISSUE

ARTICLES Excerpts f r o m research and analysis o n Electronic Surveillance in Law En- forcement prepared by t h e staff of the Commit tee o n Criminal Jurisprudence of t h e Texas House of Representatives: A. Wiretapping-Historical - - -

Perspective. . . . . . . . . . . . . . . . 6 B. Title 111 Limitations on Noncon-

p~-~

REGULAR FEATURES NEWS Editor's Corne r . . . . . . . . . . . . . . .4 Executive Committee Minutes

. . . . . . . . . . . President's Repor t . . 5 July 1 4 . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . New Members. . . . . . . . . . . . . . . 2 3 A ~ e t t e r . 5

Board of Directors Minutes July 21 . . . . . . . . . . . . . . . . . 1 9

Pictures of Your Executive Commit tee in Action . . . . . . . . 23

sensual Electronic Surveillance by . . . . Law Enforcement Officers . 7

C. Productivity of Electronic Sur- veillance . . . . . . . . . . . . . . . . 1 7

Voir Dire I,ouis Dugas, Jr

OFFICERS

President Vincent W. Perini Dallas President-Elect Robert D. Jones Auxin m m t Vice-President Charles McDonald Wac0 Second Vice~Presidenr Clifford Brown Lubbock Secretary-Treasurer David Bires Houston Asst. SecrerorylTreosurer Douglas Tinker Corpus Chrisfi

DIRECTORS

William F. "Bill" Alexander Dallas Richard Anderson Dollos Cecil W. Bain Son Aoronh Jack Beech Fort Worth James Bobo Odessa Russell Busby Amarillo Charles Butts San Antonio Raymond Caballero El Paso Antonio Canhl San Antonio Waggoner C m A U ~ f i n M e n Cazier Son Antonio Anthony Constant Corpus Ckristi Donald Dailey Coypu> Chrisfi Eugene DeBuUet Fort Worth

Woody R Densan H o u ~ t o n Louis Dugas Orange W. V. Dunnam Wac0 Michael Gibson Dollas Gerald Goldstein Son Antonio Grant Hardeway H o u ~ t o n Oliver Heard, Jr. Son Antonio Jan Hemphill Dollos Clifton Holmes Kilgore Stuart Kinard H o u ~ t o n Edward Mallett H o u ~ t o n Pat F'riest San Antonio Charles Rittenberry Amorillo Robort Salinas Mercedes Larry Sauer Houston Thomas Sharpe BrownsviNe Stanley Topek Houston Robert G. Turner Hotmon Stanley Weinberg Dnilos Rodger Zimmeman Austin Ronald ~ r p p Edin burg

ASSOCIATE DIRECTORS

Jimmy Don Carter Fort Worth Rusty Duncan Decafur Ron Goranson Dollas

Richard Harrison Dollas James H. Kreimeyer Beiton Robert Joseph Sin ton J. C . "Rusty" 03Shoa Lubbock James F. Pons S& Antonio Charles Scarborough Abilene David Spencer Austin Michael Thomas Iion Worth George L. Thompson Lubbock

PAST PRESIDENTS

Frank Maloney Austin, 1971-1972 Anthony Friloux Houston, 1972-1973 Phil Burleson Ddlos, 1973-1 974 George Gilkerson Lubbock. 1974-1 975 David Evans Son Anronio, 1975-1976 Weldan Holeomb Tyler, 1976-1977 Emmett Colvin Dollos, 1977.1978 George F. Luquette Houston. 1 9 7 8 ~ 1 979

Clif Holmes Managing E d i t o r

Marvin 0. Teague Edi tor , "Significant Decisions"

Judy Ward Exec. Asst. to the P m s

POSTMASTER: Please send address changes to Texas Criminal Defense Lawyers Association, 314 West 11th Street, Suite 211, Austin, Texas 78701. Phone (512)478-2514. VOICE for the Defense is pub^ lished monthly by the Texas Criminal Defense Lawyers Associa- tion. All articles and other editorial contributions should be addressed to the Editor, Clif Holmes, Box 1073, Kilgore, Texas 75662. Busi- ness correspondence, advertising inquiries and contracts, send to Dick Dromgoole, ARTFORMS AGENCY, Box 2242, Austin, Texas 78768, (512)451-3588. Annual subscriotion rate for members of th; association is $5, which is included in dues. Non- member subscription-$10 per year; single copy-$2.50. Second class postage paid at Austin, Texas. ISSN 0364-2232 0 1976 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION.

Texas

Criminal Defense Lawyers

Association AUGUST 1979

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approach, but with a commitment t o bers who have providcd the time, materi- programs and priorities designed to als, and skills t o make CDLP function. improve our system of criminal justice. CDLP needs more-it needs you. John 1979-80 should be a banner year. Our Boston, the project director, has done a treasury is stronger than at any prior stellar job of arranging, orchestrating, and time; officers, directors, staff, and mem- conducting the project seminars. Many of bership are comrnited; issues are real- you probably received, recently, a ques- wire-tapping, intermediate appeals, and tionnaire concerning CDLP. In it you the like; and a need for us exists. Each of were asked to commit t o help the project us can find a niche within our organiza- with your time and skills. I hope you tion and its programs where we can con- completed and returned it. If you didn't

get one, call John at (512) 475-5498, and One area where your contribution is request one. You can make a needed

needed is Continuing Legal Education. contribution to the cause of criminal We've been fortunate, extremely fortu- justice in that way. And your contribu- nate, since our organizational birth t o tion wiu be appreciated. have, co-existing with us, the Criminal TCDLA exists t o serve you, its mem- Defense Lawyers' Project. It has filled a bers-but since it's only a composite of its

We've now begun another year with gap in CLE which would, probably, have members, the bottom line is we serve one TCDLA. Each year of our short life has gone otherwise unfilled. But CDLP is not another. Creating a more competent, brought new challenges, and new succes- some independent, self-sufficient entity enlightened criminal defense bar is a ses. We've grown from a fledgling "40" which exists and functions on its own service t o us all. Won't you help you-and to a solid thousand-and rising. We've energy. It is, and has been since its incep- me. done that not with a "social club" tion, you and I. It has been our mem-

MEMBERS PRESENT

MEMBERS ABSENT

BUSINESS

MOTION

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

Executive Committee Meeting Austin Office July 14,1979

President Vincent Perini called the meeting MOTION Vincent Perini discussed that the use of the t o Order. It was established that a quorum Southwestern Bell Telephone Cards should was present. be used by the Executive Committee only,

with a motion then made, this was passed Vincent Perini, Robert Jones, James Bobo, by all present. Jack Beech, Pat Priest, David Bires

MOTION Robert Jones made the motion that the Charles McDonald, Clifford Brown, President's Travel allowance be made Douglas Tinker payable at the amount of $100.00, as in

the past, but payable on a monthly basis, Also present was C. M. "Pete" Arnold, instead of a l u n ~ p sum amount at the end TCDLA Staff C.P.A. of the year. This motion was passed on a

unanimous basis. Mr. Arnold was present t o discuss and present t o the Committee a full report MOTION Vincent Perini discussed that he would like concerning all aspects of the monthly the minutes of all the Executive Commit- financial statements, and general account- te meetings t o be published in the VOICE ing procedures. After a line by line expla- for the Defense, so as to more fully inform nation of what each item represented, and the membership of the Committee. After the way in which the figures were compiled general approval by President Perini i t was on the accrual basis of accounting, there decided that this set of minutes be pub- was a general question andpnswer period. lished as the resular Board of Directors

Meetings. A motion was made by Vincent Perini in

respect t o the continuing authority of President Vincent Perini then discussed the Robert D. Jones, President-Elect, t o standing committees, as now set in the continue to sign all association checks and TCDLA By-Laws. It was decided that each documents required by all state, city and Committee would have a Chairman selec- county agencies. This was umnimously ted by the President and then each chair- approved. (Conrinued on p. 22)

August 1979/VOICE fox the Defense

President5 Report

WIRETAP

Texas law enforcement officers have Ed Mallett, David Spencer, and other

no authority to conduct nonconsensual representatives of TCDLA attended sub- electronic surveillance, ~h~~ means sur. sequent sessions, and it will be our pur- reptitious "bugs,3 on a room or on pose t o monitor all of these hearings.

a telephone line, Federal law enforcement Representatives of the committees inform

officers, however, have such authority us that there will be others prior t o any

under Title I11 of the Omnibus Crime sessions. On August 2, the FBI jargon was

Safe Streets Act Of 1968' definitely of Watergate quality. For The same Act enumerates the terms on which individual states can enact example, they spoke of "quality cases,"

plementary legislation. "target areas," "listening posts," "trans-

Governor Clements has not issued his mission media," "interface equipment VINCENT PERINI

formal call for a special session of the (keeps the target telephone from cracking authority to do it either way,m Finally, and popping)," "clear transmission," "en-

Texas Legislature, but when he does he they said "the criminal element (I wonder says it will include wiretap legislation. coded transmission," "cable and pair if that includes me) is becoming more and

information from the telephone com- more sophisticated at detection.,, Meanwhile, the Criminal Jurisprudence pany," and countermeasures,,, Committee of the Texas House of Rep- The staff of the committee prepared a resentatives has begun a series of hearings In addition, here are of 45-legal-page background analysis of on whether Texas should have a wiretap of the choicer comments. Concerning wiretapping with an even longer appen. law. The Committee composition is as "minimization" of eavesdropping not

related to the criminal investigation, they dix. This is stricly an effort to gather follows: facts and data of use for the committee.

Lynn Nabors, Chairman, Brownwood asserted that they usually listen for two minutes, determine if a criminal conver- It in no way reflects the opinions of

Bob Hendricks, Vice-chairman, sation is taking place, and, if not, the members of the committee and is not a

McKinney committee report. Nevertheless, the in- Bill Clark, Tyler eavesdropping is discontinued-except formation in the report was of great Bill Harrison, Corpus Christi that at from 30 seconds interest to me and, I trust, other members Luther Jones, El Paso One minute they hack On the line of our association. I requested permission Pete Laney, Plainview to see if i t has turned to criminal matters. to reprint portions in this issue of the Bob McFarland, Arlington In other words, where the conversation VOICE, I was invited to do so with the Bill SulIivant, Gainesville is entirely personal or involves persons express proviso that this background John Whitmire, Houston not involved in the investigation, the best research must not be portrayed as repre- John Wilson, La Grange that can be hoped for is intermittent sentative of committee opinion, The The first hearings began August 2, eavesdropping. "Any privileged (to committee chairman, Lynn Nahors, was

1979, in the Old Supreme Court an for is very cordial with me, and this is an chambers at the capitol: The first wit- temninated," they mid. opportunity for me to express my - -

Geesses were FBI agents who testified Questioned about how bugs were gratitude to him for assenting to our use about the operation of Title I11 in prac- placed, they answered that entry can be of the work product of his committee tice and the technical side of wiretapping. made by "ruse" or "surreptitious staff. The excerpts are reprinted else- I attended this session of the hearings. entry." "The Dalia decision gives us where in this issue.

A Letter The Honorable Lynn Nahers, Chairman Committee on Criminal Jurisprudence House of Representatives P.O. Box 2910 Austin, Texas 78769 Dear Representative Nabers:

Thank you for your courtesy to me when I recently attended the opening day of the wiretapping hearings of your , committee.

I want also t o compliment the members of your staff for the work they have done giving the committee background and analysis on electronic surveillance. The research appears t o be good, the writing is excellent, and the elucidation of data is fascinating.

You will recall that I said that I would

like for portions of this excellent back- adequate t o satisfy any reservations you ground information to be included for might have had. This has proved an excel- the benefit of the lawyers, judges and lent review for me of the whole subject, legal educators who receive our monthly and I want other concerned defense publication VUICE for the Defense. lawyers t o be able t o share in this You assented but were concerned that knowledge. It is for that reason and no these materials might he misconstrued. other that I want t o use these portions.

I have enclosed photocopies of the I will assume that everything is satis- ,portions I am forwarding for inclusionin factory unless I hear from you or your

the publication. Also enclosed is a state- representative t o the contrary. In that ment in parentheses which is t o be event, please contact my office in Dallas inserted at the beginning of the excerpt. (214-521-0390) as soon as possible if Finally, I am enclosing for you a full there is a problem. Thanks again. copy of my "President's Report" telling of my attendance at the first hearing and explaining your position about our use of Yours respectfully, portions of the staff work. Vincent W. Perini

I trust that all of this is more than President

VOICE for the DefenselAugust 1979 5

Wiretapping - Historical Perspective

This is an excerpt from research and analvsis on Electronic Surveillance in Law ~nfo rcemen t prepared by the staff of the Committee on Criminal Jurisprudence of the Texas House of ~cpres&atives. It was intended for committee reference during wiretap hearings, neither for pub- Lication nor as an official statement. I t is reprinted here because the subject is of such obvious interest to readers of VOICE.

The first case in which the Supreme Court considered the status of wiretapping was Olmstead vs. United States, decided in 1928, 48 S. Ct. 564,277 U S . 438. It held that the tapping of telephone wires and the use of the intercepted messages did not constitute an unreasonable search and seizure under the Fomth Amendment. The majority of the Court in the 5 4 decision reasoned that the placing of wiretaps on the defendant's home and office telephones outside the premises did not constitute physical entry.

Justice Brandeis, in his dissent in Olm- stead, emphasized the effect of wiretapping on the victim's privacy. In his opinion wiretapping involved a search wherever i t occurred, and the words overheard were seized. Brandeis' views were not to prevail during the next forty years.

Although the Supreme Court considered the Fourth Amendment to be inapplicable to wiretapping, its opinion suggested that Congress could enact legis<Ltion outlawing the activity. Six years after the Court made this sug- gestion, Congress enacted Sec. 605 of the Federal Communications Act of 1934 which provided in part:

"No person not being authorized by the sender shall intercept any communication and devulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person."

Unfortunately, this legislative response to the Supreme Court's invitation to adopt statutonr controls over wiretavvina was

the regulation of radio broadcasting and transmission. Nonetheless, as enacted in 1934 and retained until 1968, Sec. 605 was the only federal statute concerning wiretapping.

Although n o specific exclusionary rule was included in Sec. 605 as enacted, the Supreme Court, in Nardone vs. United States. 58 S. Ct. 275. 302 U.S. 379 -

(1937), interpreted the statutes prohibition against intercepting and divulging the contents of messages as applying to federal law enforcement officers. Under Sec. 605 the Conrt held, federal officers could not lawfully testify concerning the contents of wiretapped conversations because "to recite the contents of the message in testimony before the court is to divulge the message." Thus, t o avoid violation of the prohibition against divulgence, evidentiary use of the information gained by wiretapping was forbidden.

Later, in the second Nardone case, 60 S. Ct. 266, 308 U S . 388 (19391, the Supreme Court went further and held that Section 605 bars not only evidence obtained directly by wiretapping but also evidence obtained by use of leads secured by wiretapping (the "fruit of the poison- ous tree" doctrine.)

In Weiss vs. United States, 308 U S . 321, 60 S. Ct. 269 (19391, the Supreme Court refused to limit Sec. 605 to interception and divulgence of interstate calls. The Court held that Congress could properly prohibit tapping of telephone wires which could be used for both intra and interstate conversations, although the only messages overheard had been intra- state.

Evidence obtahed by state officers from wiretapping was held to be admis- sible despite Sec. 605 in Schwartz vs. Texas 344 US. 199, 73 S. Ct. 232 (1952). The issue of admissibility under Sec. 605 of statesecured wiretap evidence in state proceedings was not finally resolved until the eve of Title 111 adop- tion, when the Court overruled Schwarts in Lee vs. Florida 392 U S . 378, 88 S. Ct. 2096 (1968). Lee was decided on the basis that wiretapping by state officers violated Sec. 605, and exclusion of eaves-

prohibit a police officer from testifying about a telephone conversation which he had overheard with the consent of one of the parties. Interception by consent of one of the parties became an integral part of Title 111.

Two bugging orders issued under a New York statute led t o the decision in Berger vs. New York, 388 U.S. 41, 87 S. Ct. 1873 (1967) in which the Supreme Court held the New York statute un- constitutional on its face. The statute's deficiencies, as determined by the Court, can be separated into four general categories.

First, the Court held that the process by which warrants were obtained was inadequate, especially the statute's failure t o require, as demanded by the Fourth Amendment, that the palce t o be searched and the persons or things to be seized by specifically described. Second, there were no limitations on the execu- tion of the warrant concerning either what could be seized, the period of surveillance, or the executing officer's dis- cretion. Third, the statute failed to require notice to the subject of the surveillance-before or after i t was conducted--or a showing of exigency sufficient to excuse prior notice. Fourth, no showing of probable cause was required for renewal orders.

In Katz vs. United States, 389 U S . 347, 88 S. Ct. 507, the Supreme Court repudiated the trespass doctrine developed under Olmstead. The Fourth Amendment, the Conrt held in Katz, "protects people, not places." Therefore, the attachment of a bug to the outside of a phone booth constituted an unreasonable search and seizure, even though there had been no penetration or physical intrusion into a protected area.

Writing for the majority, Justice Stewart held that the hug in Katz "violated the privacy upon which the defendant justifiably relied while using the telephone booth." Justice Harlan's concurring opinion expanded the significance of a person's reliance on his attempts to keep his conversation private into a prop- osition which has been aenerally accepted

.. - dropping evidence was the only means of as the rule and expounded by the Katz incomplete; the exclusionary rule, a' enforcing the federal statute. Federal law majority: prime ingredient in the legislation en- applies t o state judges and prosecutors, "There is a twofold requirement, visioned by Chief Justice Taft in Olm- as well as other citizens, and no court, first that a person have exhibited stead, was not specifically included in state or federal, could act as an accom- an actual subjective expectation of Sec. 605. plice in the willful transgression of any privacy and, second, that the expec-

The absence o'f any significant legis- federallaw. tation be one that society is pre- lative history for Sec. 605 created addi- The Supreme Court held in Rathbun pared to recognize as 'reasonable'." tional difficulties, as did the fact that the vs. United States, 355 U.S. 107, 78 S. The absence of federal wiretapping provision was adopted in the context of Ct. 161 (1957) that Sec. 605 did not legislation for the thirty-four years after

6 August 1979/VOICE for the Defense

WIRETAPPING-continued the enactment of Sec. 605 is not indica- tive of the numerous legislative proposals initiated in both houses during this period. The initial attempt t o alter Sec. 605 was proposed in 1938 as an anti-

wiretapping, except in cases involving serious offenses.

From 1965 to 1967 a subcommittee, chaired by Senator Edward Long, conducted hearings which revealed extensive illegal electronic surveillance by private oersons and ~ u b l i c officials. These hear-

Committee and floor level, the proposal was approved by the Senate on May 23, 1968. The House adopted the same ver- sion on June 6 , 1968. President Johnson signed the Omnibus Crime Control and Safe Streets Act of 1968, whichincluded Title I11 on June 19. 1968.

racketeering measure;it provided that the kgs culminated with the introduction in Under Title I11 Htates must enact spe- head of any executive department could 1967 of the Right of Privacy Act, co- cific legislation if they desire t o imple- authorize a wiretap. Although similar sponsored by Senator Long and twenty- ment the authority granted in the Act to bills passed both houses the difference two other senators. The bill received conduct electronic surveillance. The legis- could not be resolved. Preceding and President Johnson's endorsement and lative history of Title I11 clearly indicates during World War 11, proposals were support and would have prohibited wire- that Congress intended to permit state introduced annually in Congress which tapping and hugging at state and federal electronic surveillance laws to he more would have aurthorized wiretapping in levels except for national security investi- restrictive than the federal provision, and the interest of national security. Such gations at the direction of the Attorney therefore more protective of individual legislation appears t o have been unneces- General. This proposal was the primary privacy, but state enactments cannot be sary since every president from Roosevelt legislative alternative t o Title 111. less restrictive. Nor can they expand the through Johnson sanctioned wiretapping Title I11 is the product of two bills, use of electronic surveillance beyond the as a tool in matters of national security. one introduced by Senator John McClel- perimeters established, by Title 111.

With the advent of the 1960s the focus Ian and another almost identical bill by Congress did not intend to supercede of legislative proposals began to shift. Senator Roman Hruska which went state attempts to protect conversational Although national security was still an further in containing the procedural privacy, but merely to subject state important aim, countering organized aspects required by the Supreme Court in eavesdropping legislation to minimum crime was an increasingly important Berger. standards established by federal law. objective. The Kennedy administration In September and October 1967 the States appear to have the power to (1) endorsed legislative proposals for a McClellan and Hruska proposals were enact criminal sanctions for illegal dis- wiretapping law which would have amalgamated and considered by the closure or use of contents of intercepted authorized federal agencies to tap in cases Subcommittee on Criminal Laws and communications, (2) control the man of national security, investigations of Procedures of the Judiciary Committee. manufacture and sale of tapping and bug- organized crime and other serious crimes. After surviving strong attempts by ging equipment and (3) provide specific These same proposals prohibited state opponents t o amend Title I11 at the full civil remedies. (Art. 9019 V.T.C.S.)

Title I11 Limitations on Nonconsensual Electronic Surveillance by Law Enforcement Officers

Amendment search and seizure standards Amendment requires that warrants be This is an excerpt from research and to electronic surveillance. The Congress, issued only upon probable cause and that analysis on Electronic Surveillance in Law in enacting Title 111, went further, such warrants particularly describe the Enforcement Prepared by the staff of the however, and erected fairly elaborate place to be searched and the persons or Committee on Criminal Jurisprudence of ~rocedura l obstacles t o deter wholesale things to he seized. the Texas House of Representatives. It use of this 1 . i ~ enforcement tool and also A. Required Findings by a Judicial was intended for committee reference establish civil and criminal penalties for Officer during hearings, neither for pub- violation of those procedural require- Title I11 contains three probable cause lication nor as an official statement. It is merits, requirements. The judge must determine reprinted here hecause the subject is of Title 111 permits the states t o enact that there is probable cause t o believe an such obvious interest t o readers of electronic surveillance statutes if such individual is committing, has committed Y U I W . laws are compatible with the federal Act. or is about t o commit an offense enumer-

Twenty-two states have adopted statutes ated in the statute. The judge must I. INTRODUCTION which. t o some extent, mirror the two- further determine that there is probable

The legislative history of Title 111 of the Omnibus Crime Control and Safe Streets Act of 1968 (hereafter referred to as "Title 111") and the subsequent court decisions construing that statute indicate that the Act was intended to serve two Purposes: first, t o legitimize the use of electronic surveillance in the. investigation

fold purposes of ~itle.111. Several have nearly "tracked" the federal Act verbatim.

Because of the tendency of state legislation to emulate the Title I11 procedures, some discussion of what the "safeguards" of the Act have come t o mean in practice is in order.

cause t o believe that particular communications concerning that offense will be obtained through interception of wire or oral communications. Finally, the judge must determine that there is probable cause to believe that the facilities from which, or the place where, the communications are to be intercepted are being

and prosecution of certain types of ' 11. REQUIREMENTS FOR A

nsed or are commonly nsed by such crimes and, second, to control this type person. of activity in such a manner as t o mini- LAWFUL INTERCEPTION Given the available statistical data. mize its inherent and unique potential for The Fourth Amendment protects citi- there is considerable doubt as t o whethe; substantial intrusions upon individual zens from "unreasonable" searches and these "requirements" constitute an effec- privacy. seizures. Generally, this has come to tive method of limiting unjustifiable use

The first step in fulfillment of the mean (subject t o certain exceptions) that of wiretapping and bugghg. In each of latter purpose was the judicial and, later, searches must be accomplished pursuant the 10 years since passage of Title 111, legislative application of general Fourth t o a judicial warrant. The Fourth federal and state judges have approved

VOICE for the Defense/August 1979 7

TITLE 111 LIMITATIONS continued

more than 99% of all applications for interception orders. This would not be a significant phenomenon if arrest and conviction statistics confirmed the existence o f probable cause in a reasonably comparable percentage of cases. However, at least in narcotics investigations and prosecutions, some doubt exists as t o whether judges are giving appropriate critical examination to intercept applications.

For the last four years in which reasonably complete arrest and conviction data are available, federal interceptions in narcotics cases have failed to yield any arrests in more than one third of those cases and have failed to yield any convictions in more than half of those cases. For the last five years, state interceptions in Florida naicotics cases have failed to yield any arrests in more than one third of those cases and have failed to yield any convictions in almost three fourths of those cases.

There is some reason to believe, therefore, that, at least in narcotics cases, a significant number of judges have re- viewed applications for intercept orders with less critical analysis than contem- plated by either Title I11 or the Fourth Amendment.

A similar issue exists With respect t o the fourth finding required of a judge by Title III-that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." The 1976 report of the National Commis- sion for the Review of Federal and State Laws Relating to Wiretapping and Elec- tronic Surveillance (hereafter referred to as "the National Commission") concluded that, "in most Title 111 applications examined by this Commission," prosecutors have satisfied the requirement by a "sweeping recitation" of "standardized language."

The National Commission concluded that prosecutors should provide "more particularized information" t o satisfy this requirement. However, the Commission did not address the equally valid and, perhaps, more significant question of why judges required to make this finding have been content t o accept prosecutors' ad- mittedly inadequate assertions.

B. Order by a Judicial Officer An order authorizing the interception*

of wire or oral communications must embody the three probable cause requirements of Title 111, as well as the "particu- larity" requirement of the Fourth Amendment. The order must specify the identity of the individual, if known, whose communications are to be intercepted; the nature and location of the

communications facilities as t o which, or the place where, authority to intercept is granted; and a particular description of the type of communication sought t o be intercepted, and a statement of the particular offense t o which it relates.

The order need not specify the identity of the target individual in all cases, nor are law enforcement officers limited to intercepting conversations to which an individual named in the order is a party.

Justice Stewart, writing for a majority of the Supreme Court in the 1974 ded- sion in United States v. Kahn, pointed out that, "when there is probable cause t o believe that a particular telephone is being used to commit an offense but n o particular person is identifiable, a wire interception order may, nevertheless. properly issue under the statute." H; concluded that, "Congress could not have intended that the authority t o intercept must be limited to those conversations between a party named in the order and others, since, at least in some cases, the order might not name any specific party at all."

The dissenting opinion exvressed the concern of threejudges that the majority opinion implied that, "a wiretap warrant apparently need specify but Jne name and a national dragnet becomes operative. Members of the family of the suspect, visitors in his home, doctors, ministers, merchants, teachers, attorneys, and everyone having any possible connection with the . . . household are caught up in this web ."

Title 111 also requires that every order and extension thereof contain a provision that the interception shall be conducted in such a way as t o minimize the interception of communications not otherwise subject t o interception.

The "minimization requirement," as this provision has come to be known, was generally considered, at least until 1975, t o be one of the pivotal safeguards in limiting unnecessary invasion of conversational privacy. In 1975, however, the efficacy of the provision began to be called into serious question.

The case was Bynum v. United States. The Supreme Court, in a memorandum decision, denied the criminal defendant's petition for writ of certiorari, which petition was based on the government's alleged violation of Title 1IYs minimization requirement. The dissenting opinion of Justice Brennan discussed the salient facts of the case.

Government agents tape recorded every conversation and attempted communication over the defendant's telephone for a 34-day period and simul- taneously monitored approximately 90%

of those calls, which amounted to 102 hours of conversation time.

Seventy-one calls, accounting for 14% hours of conversations, were made by the teenage babysitter of the defendant's child. Neither the babysitter nor the other party were suspected of being members of the criminal enterprise, nor did they have knowledge of it. According to Justice Brennan's opinion, these conversations, "which were sometimes the subject of jokes by the monitoring agents, were often of a highly personal and intimate nature.''

Additionally, the government simul- taneously recorded and monitored 67 calls involving the defendant and his attorneys, 42 of which arguably were privileged conversations, according to Justice Brennan. Although the anthor- izing judge had ordered that no privileged conversations were t o be monitored, he was never advised that any privileged conversations had been intercepted.

Despite the implications for the efficacy of Title Ill's minimization requirement and Sixth Amendment con- siderations relating to assistance of counsel, a majority of the Court refused to set the case for argument and sum- marily denied the petition.

In 1978, the Supreme Court did directly address the minimization issue in Scott v. United States. In that case, a federal district judge had suppressed taped conversations obtained through a telephone tap because the government agent who conductbd the wiretap testified under oath that he and other agents were aware of the minimization requirement but made no attempt to comply with it and because the monitoring agents listened to and recorded all calls over the subject telephone.

The government appealed the district court order suppressing the evidence. A majority of the Supreme Court found n o violation of the minimization requirement, reasoning that an examination of the facts justified a conclusion that, if the agents had attempted to comply with the statutory requirement, they would have been reasonable in conducting the wiretap in exactly the same manner in which i t was, in fact, conducted.

A potential limitation on the scope of authorized electronic surveillance is the provision in Title I11 which permits a judge to include in an authorization order a requirement that progress reports be made. Conceivably, a judge could order the termination of an interception if progress reports indicated that excessive monitoring or recording of nonintercep- table conversations was occurring.

That this potential Limitation is itself severely limited is demonstrated by the

[Continued on p. 17)

8 August 1979/VOICE for the Defense

SlGNlFlCANT DECISIONS

ECENT IMPORTANT DECISIONS FROM THE COURT OF CRIMINAL APPEALS

Mawln 0 Teague Ed~tor

JULY, 1979 VOLUME V, NO. 11

NOTE: A l l of t h e following opinions f o r t h e week of J u l y 3, 1979 were En Banc except one, Pearson, which was Panel 83 , 2nd Quar ter , composed of Judges Odom, P h i l l i p s and W. C . Davis; opinion by J. Odom.

SHOOTING STORE OWNER, DURING COMMISSION OF ROBBERY, WILL GET YOU 40 YEARS FOR MURDER, BUT WILL PRECLUDE STATE FROM TRYING YOU FOR ASSAULT WITH INTENT TO MURDER. SEE EX PARTE HARRIS, 1/61,630, 7/3/79, J. Odom, En Banc, Unanimous.

COMMENT: The f a c t s showed t h a t " P e t i t i o n e r and another person entered a l i q u o r s t a r e t o commit a robbery." "When they pu l l ed t h e i r guns on t h e victum, h e f l e d and was shot." Held, "This was a continuous a s s a u l t on t h e same person i n a s i n g l e t ransact ion." "Because P e t i t i o n e r was f i r s t convicted i n t h e murder cause, t h e subsequent convic t ion i n t h e a s s a u l t wi th i n t e n t t o murder c a s e was ba r red under t h e double jeopardy c l a u s e s of t h e U.S. and Texas Const i tu t ions ." ( W r i t Granted). (Dal las County).

ANOTHER JEFFERSON COUNTY REVOCATION OF PROBATION CASE REVERSED I N FURRH, 1/58,399, 7/3/79, J. Odom, En Banc, wi th J. Douglas d i s s e n t i n g with opinion. (Reversed). ( J e f f e r s o n County).

COMMENT: This case i s a rehash of Wallace, 575 ( 2 ) 512, and Wester, 542 (2) 403. Here, t h e D appeared i n cour t on a MRP, pled t r u e t o t h e a l l e g a t i o n b u t t h e t r i a l cour t judge d id n o t revoke a t t h a t t ime but continued t h e D on probat ion. Subsequently, t h e t r i a l c o u r t judge revoked t h e D ' s pro- ba t ion an t h e b a s i s of t h e e a r l i e r p l e a of t r u e . Held, Can't do. "While t h e cour t could have continued t h e hea r ing and delayed e x e r c i s e of i ts d i s c r e t i o n t o cont inue, modify o r revoke probat ion," it could n o t change t h e e a r l i e r d i s p o s i t i o n a t a subsequent hea r ing a t which no f u r t h e r v io- l a t i o n of probat ion was shown. (Reversed).

CCA, PER 3. PHILLIPS, EN BAN;, UNANIMOUS, I N ELY, 856,623, 7/3/79, RULES THAT WHERE D WAS CHARGED BY INFORMATION, WHICH CONTAINED FOUR (4) COUNTS, EACH OF WHICH ALLEGED THAT A DECEPTIVE BUSINESS PRACTICE WAS COMMITTED BY THE D ON FOUR DISTINCT DAYS AGAINST FOUR DISTINCT VICTUMS, THAT THE D COULD BE CONVICTED OF ONLY ONE OF THE COUNTS DUE TO THE JURY CHARGE I N THE CAUSE. (Reformed). (Har r i s County). HELD, "It [ t h e ju ry charge] only author i zed the ju ry t o f i n d t h e D g u i l t y of one decep t ive bus iness p r a c t i c e offense."

3 . ODOM, WRITING FOR PANEL 113, 2ND Q U A ~ T E R , I N PEARSON, #58,055, 7/3/79, DISCUSSES SUPREME COURT DECISION OF MINCEY V . ARIZONA, 98 S.CT. 2408, AND RULES THAT IT I S NOT TO

I R ~ J August 1979/VOICE for the Defense

BE GIVEN RETROACTIVE EFFECT. ( A f f i r m e d ) . ( H a r r i s County) .

HELD: "The t r i a l c o u r t d i d n o t e r r o n e o u s l y admi t p a p e r s and w r i t i n g s s e i z e d d u r i n g a s e a r c h o f t h e h o m i c i d e scene ." "At t h e t i m e of t h e s e a r c h , t h e common law " e x i g e n c y r u l e " a l l o w e d s u c h h o m i c i d e s c e n e i n v e s t i g a - t i o n s . " S e e m , 475 (2) 938. "Because t h e s e a r c h and t r i a l i n t h i s c a s e o c c u r r e d b e f o r e t h e d e c i s i o n i n Mincy v. A r i z o n a , s u p r a , when Brown, s u p r a , was s t i l l good law, t h e d i s p o s i t i o n of D's f i r s t ground of e r r o r i s c o n t r o l l e d by i n s t e a d a f Mincey."

COMMENT: The D's c o n t e n t i o n t h a t h a n d w r i t i n g samples t a k e n f rom h e r s h o u l d have b e e n s u p p r e s s e d was r e j e c t e d a s 1 ) t h i s d o e s n o t v i o l a t e t h e p r i v i l e g e a g a i n s t s e l f - i n c r i m i n a t i o n and 2) no c a u s a l c o n n e c t i o n shown between t h e f a i l u r e t o t a k e h e r b e f o r e a m a g i s t r a t e and t h e t a k i n g o f t h e hand- w r i t i n g samples .

PANELS FOR WEEK OF JULY 11, 1979, ARE AS FOLLOWS:

P a n e l 112, 1st Q u a r t e r : J u d g e s Odom, Douglas and R o b e r t s . P a n e l # 2 , 2nd Q u a r t e r : J u d g e s T. D a v i s , Douglas and D a l l y .

3 . DALLY, I N RIDLEY, 1157,272, 7 / 1 1 / 7 9 , P a n e l 112, 2nd Q u a r t e r , ABATES APPEAL AS PROSECUTOR AND TRIAL JUDGE DID NOT DO I T RIGHT REGARDING FILING OF FINDINGS OF FACT AND CONCLUSIONS OF LAW I N THE APPEAL. (Abated) . ( D a l l a s County) .

COMMENT: A p p a r e n t l y , what happened h e r e was t h e p r o s e c u t o r who was h a n d l i n g t h e c a s e on a p p e a l f a r t h e S t a t e m e r e l y p r e p a r e d f i n d i n g s of f a c t and c o n c l u s i o n s of law, had t h e t r i a l j u d g e s i g n them and t h e n m a i l e d them t o A u s t i n by-pass ing t h e c l e r k ' s o f f i c e . Held, C a n ' t do. Must go t h r o u g h t h e p r o p e r c h a n n e l s .

THE DEBATE "WHEN I S A CHILD YOUNGER THAN 1 5 YEARS OLD" OR "WHEN I S A CHILD 1 4 YEARS OF AGE OR YOUNGER" CONTINUES IN AUSTIN BUT J. ODOM, WRITING FOR PANEL 112, 1ST QUARTER, I N SMITH, 1/57,023, 7 /11 /79 , w i t h J. Douglas d i s s e n t i n g w i t h o p i n i o n , HAS TWO VOTES AND RULES THAT INDICTMENT FOR INJURY TO A CHILD I S FUNDAMENTALLY DEFECTIVE BECAUSE ALLEGATION THAT CHILD WAS "YOUNGER THAN 1 5 YEARS OF AGE" WAS INSUFFICIENT TO SUPPLY THE ELEMENT OF INJURY TO A CHILD THAT THE VICTUM BE "14 YEARS OF AGE OR YOUNGER." (Reversed) . ( D a l l a s County) .

COmENT: I n d i c t m e n t , i n p e r t i n e n t p a r t , p r o v i d e d a s f o l l o w s :

D d i d "knowingly and i n t e n t i o n a l l y engage i n c o n d u c t t h a t caused s e r i o u s b o d i l y i n j u r y t o R o b e r t E a r l Smith, Jr. , a c h i l d younger t h a n 1 5 y e a r s o f a g e , by t h e n and t h e r e b i t i n g t h e s a i d R o b e r t E a r l Smi th , Jr., a n t h e l i p and t h e n and t h e r e b i t i n g t h e s a i d R o b e r t E a r l Smi th , Jr . , o n t h e t o e and by t h e n and t h e r e b i t i n g t h e s a i d R o b e r t E a r l Smi th , Jr . , on t h e f i n g e r s . . ."

NOTE : 3. Douglas is s t i l l convinced t h a t " P r a c t i c a l l y e v e r y o n e e l s e b u t a m a j o r i t y o f t h i s p a n e l c o n s i d e r s b y common u s a g e t h a t one is 1 4 y e a r s o f a g e u n t i l h e r e a c h e s 15." N e i t h e r o p i n i o n s t a t e s i f t h e D i s a d e s c e n d a n t o f one of t h e h i s t o r i c a l Donner P a r t y .

A CASE OF FIRST IMPRESSION? I N TORRES, 1157,697, 7 / 1 1 / 7 9 , J. T. DAVIS, w r i t i n g f o r P a n e l 2 , 2nd Q u a r t e r , RULES THAT INVOLUNTARY INTOXICATION I S A DEFENSE TO CRIMINAL CULPABILITY WHEN I T I S SHOWN THAT: ( 1 ) THE ACCUSED HAS EXERCISED NO INDEPENDENT JUDGMENT OR VIOLATION I N TAKING THE INTOXICANT; AND (2) AS A RESULT OF HIS INTOXICATION THE D DID NOT KNOW THAT HIS CONDUCT WAS WRONG OR WAS INCAPABLE OF CONFORMING HIS CONDUCT TO THE REQUIREMENT OF THE LAW HE ALLEGEDLY VIOLATED. CASE REVERSED BECAUSE TCT J FAILED TO GIVE CHARGE ON THIS ISSUE AS EVIDENCE RAISED THE 1SSUE.OF INVOLUNTARY INTOXICATION. (Reversed) . ( H a r r i s County)

COMMENT: Here, D, a f e m a l e , was o n t r i a l f o r a g g r a v a t e d robbery . A p p a r e n t l y , a b o u t a n h o u r b e f o r e t h e a l l e g e d r o b b e r y was committed, t h e D complained t o h e r b o y f r i e n d , a co-defendant who was f i r s t t r i e d f o r t h e o f f e n s e , t h a t s h e had a headache . He f i x e d h e r a d r i n k which c o n s i s t e d of Alka S e l t z e r and , unknown t o h e r , 4 o r 5 250 m i l l i g r a m T h o r a z i n e t a b l e t s . T h i s t e s t i m o n y came f rom t h e co-defendant . The D d i d n o t t e s t i f y . The

e v i d e n c e showed t h e D p l a y e d a l e a d i n g r o l e d u r i n g t h e r o b b e r y h u t , dur- i n g t h e k i d n a p p i n g and t a k i n g of t h e C/W t o a bank , t h e D j u s t p e t e r e d o u t and commenced s l e e p i n g .

HELD: D was e n t i t l e d t o a c h a r g e d i r e c t i n g t h e j u r y t o a c q u i t h e r i f they found t h a t s h e was i n v o l u n t a r i l y i n t o x i c a t e d .

NOTE : A s t o t h e f a c t s , J . D a v i s s a i d :

"Although t h e e v i d e n c e of a p p e l l a n t ' s s t a t e o f mind a t t h e t i m e of t h e o f f e n s e i s meager i t i s s u f f i c i e n t t o r a i s e t h e i s s u e f o r s u b m i s s i o n t o t h e j u r y . The v i c t i m t e s t i f i e d t h a t a p p e l l a n t seemed "drugged," and t h e c i r - cumstances s u r r o u n d i n g h e r a r r e s t a r e some e v i d e n c e of h e r m e n t a l s t a t e . T h i s i s s u e , j u s t a s t h e p a r a l l e l is- s u e of i n s a n i t y f rom m e n t a l d e f e c t o r d i s e a s e , " . . . l i e s i n t h e p r o v i n c e of t h e j u r y , n o t o n l y a s t o t h e c r e d i b i l - i t y o f t h e w i t n e s s e s and t h e w e i g h t o f t h e e v i d e n c e , h u t as t o t h e l i m i t s o f t h e d e f e n s e i t s e l f . " We f i n d t h a t a p p e l l a n t was e n t i t l e d t o h a v e t h e i s s u e o f i n v o l u n t a r y i n t o x i c a t i o n s u b m i t t e d t o t h e ju ry . "

J . DOUGLAS, WRITING FOR A UNANIMOUS EN BANC CCA, IN EX PARTE CRANFORD, /161,940 & 61 ,941 , 7 / 1 1 / 7 9 , RULES THAT THE FOLLOWING INDICTMENT WAS VOID:

D ". . . d i d t h e n and t h e r e e n t e r a b u i l d i n g w h i c h was n o t open t o t h e p u b l i c , w i t h o u t t h e c o n s e n t o f M r s . Agnes S h e l t o n , t h e owner, and t h e r e - i n a t t e m p t e d t o commit and committed t h e f t . "

HELD : T h i s I n d i c t m e n t d o e s n o t a l l e g e a c u l p a b l e m e n t a l s t a t e and i s fundamen- t a l l y d e f e c t i v e . (Reversed) . ( V i c t o r i a County) .

J. T. DAVIS, IN EX PARTE DANNY EDEN AND MARK KAISER, 1/61,097, 7 / 1 1 / 7 9 , En Banc, w i t h J. P h i l l i p s d i s s e n t i n g w i t h o u t o p i n i o n , FAILS TO WRITE ON THE INTERESTING QUESTION, I F A D ELECTS TO GO A JURY FOR PUNISHMENT, CAN THE TRIAL COURT JUDGE JACK WITH THE JURY'S VERDICT? ( W r i t D e n i e d ) . ( P o t t e r County) .

COMMENT: The i s s u e J u d g e Davis w r o t e on had t o d o w i t h w h e t h e r t h e Ds were en- t i t l e d t o j a i l c r e d i t f o r t h e t i m e t h e y had b e e n i n j a i l a w a i t i n g t r i a l . The Ds w e r e c h a r g e d , t r i e d and c o n v i c t e d f o r a g g r a v a t e d robbery . The j u r y found them g u i l t y and a s s e s s e d t h e i r punishment a t 7 and 5 y e a r s e a c h h u t t h e j u r y recommended p r o b a t i o n . The TCT J t h e n invoked A r t . 42.12, Sec . 3 f ( b ) , C.C.P., and g a v e t h e Ds "shock p r o b a t i o n " and s e n t b o t h Ds t o T.D.C. f o r 6 0 days .

HELD : "We h o l d t h a t s i n c e n o s e n t e n c e i s e n t e r e d when t h e p r o b a t i o n e r s were o r d e r e d c o n f i n e d under A r t . 42.12, Sec. 3 f ( b ) , C.C.P., t h e p r o v i s i o n s of A r t . 42.03, Sec. 2 , C.C.P., d o n o t app ly ." "Ds a r e n o t e n t i t l e d t o j a i l t i m e c r e d i t u n d e r t h i s s t a t u t e . " " W e f i n d t h a t i n t h e p r e s e n t c a s e n o c a n s t i t u t i a n a l r i g h t t o t h e c r e d i t f a r j a i l t i m e a w a i t i n g t r i a l e x i s t e d . "

COMMENT: D i s r e g a r d i n g t h e j a i l c r e d i t i s s u e f o r t h e moment, i t seems t h a t i f a D g o e s t o a j u r y f a r punishment and t h a t j u r y a s s e s s e s punishment a t r i a l c o u r t j u d g e s h o u l d n e v e r h e a b l e t o j a c k w i t h t h a t v e r d i c t . But Cf. A r t . 42.12, Sec. 3 f ( b ) , C.C.P. I n sum, as a j u r y of t h e D's p e e r s d i d n o t see f i t t o s e n d them t o T.D.C., why s h o u l d a t r i a l c o u r t judge h e a l lowed t o d o t h i s ? Al though n o t e x p r e s s l y s t a t e d by t h e o p i n i o n b e c a u s e o f A r t . 42 .12 , C.C.P., t h a t ' s why.

PANELS FOR WEEK OF JULY 1 8 , 1979, ARE AS FOLLOWS:

P a n e l # l , 3 r d Q u a r t e r : J u d g e s K e i t h , Onion, Odom and D a l l y . P a n e l # 2 , 2nd Q u a r t e r : J u d g e s T. D a v i s , D o u g l a s and D a l l y . P a n e l # 2 , 3 r d Q u a r t e r : J u d g e s Douglas , P h i l l i p s and C l i n t o n . P a n e l # 3 , 1st Q u a r t e r : J u d g e s C l i n t o n , D a l l y and W. C. D a v i s .

August 1979/VOICE for the Defense

Panel 83, 2nd Quar te r : Judges Odam, P h i l l i p s and W. C. Davis. Panel #3, 3rd Quarter: Judges T. Davis, Roberts and W. C. Davis. Panel #3, 4 t h Quarter: Judges Cornel ius , Douglas and T. Davis.

NOTE: Many of t h e following dec i s ions a r e , however, En Banc decis ions .

NOTE: The word i s out t h a t "July 18 i s t h e l a s t submission day f o r t h e Court u n t i l September." Thus, t h i s may he t h e l a s t S.D.R. f a r t h i s term af cour t unless opinions a r e handed down between now and September. I f you should come up with any suggestions o r ideas , regarding t h e S.D.R., a s t o changes f a r the b e t t e r , lease w r i t e and l e t me know a s I am s t r i v i n g a l l t h e time t o make i t b e t t e r . Of course, a s t o favorable l e t t e r s , I am not adverse t o those e i t h e r .

INDICTMENTS AND INDICTMENTS AND COURTS' JURY CHARGES ARE THE DOWNFALL OF MANY TRIAL COURT JUDGES AND PROSECUTORS DURINFTHIS WEEK.

I N PAYNE, #55,811, 7/18/79, Panel #3, 4th Quarter , Commissioner Cornel ius , CONVICTION FOR DEADLY ASSAULT ON A PEACE OFFICER REVERSED AS THE COURT'S CHARGE TO THE JURY AUTHORIZED THE JURORS TO CONVICT D ON A THEORY NOT ALLEGED I N THE INDICTMENT. (Reversed). (Harr is County).

COMMENT: "The indictment a g a i n s t appe l l an t charged t h a t he d id "with a p i s t o l in- t e n t i o n a l l y and knowingly cause s e r i o u s bodi ly i n j u r y t o Randy N. Mullens h e r e i n a f t e r s t y l e d t h e Complainant, a peace o f f i c e r i n t h e lawful dis- charge of an o f f i c i a l duty , knowing a t t h e time t h a t t h e Complainant was a peace o f f i c e r . . ." The charge, however, i n s t r u c t e d t h e ju ry t h a t :

"Therefore, i f you be l i eve from t h e evidence beyond a reasonable doubt t h a t t h e defendant, Antonio J. Payne, d i d , i n Harris County, Texas, on o r about t h e 29th day of September, 1974, wi th a f i r ea rm, to-wit , a p i s t o l , i n t e n t i o n a l l y o r knowingly cause s e r i o u s bodi ly i n j u r y t o Randy N. Mullens, and t h a t t h e s a i d Randy N. Mullens was then and t h e r e a peace o f f i c e r i n t h e lawful d i s - charge of an o f f i c i a l duty , and t h a t t h e defendant knew, o r had been informed, t h a t Randy N . Mullens was a t t h a t time a peace o f f i c e r , you w i l l f i n d t h e defendant gu i l ty . " (emph. supp. ."

HELD: "When t h e charge attempted t o apply t h e law t o t h e f a c t s , i t c l e a r l y in- s t r u c t e d t h e j u r o r s t h a t they could convict D i f they bel ieved t h a t he knew or had been informed t h a t Mullens was a peace o f f i c e r . " "That h e had been informed of t h e o f f i c e r ' s s t a t u s was a s t a t e of f a c t s a l l eged i n t h e indictment ." (Reversed) .

I N HOLLOWAY. #56.087. 7/18/79. En Banc. J. P h i l l i ~ s . wi th J. Dallv d i s s e n t i n g without opinion,

i n t e n t i o n a l l y en te r ing t h e h a b i t a t i o n , a s r equ i red by-Sec. 30.05 of t h e Penal Code." "It is e n t i r e l y p o s s i b l e t h a t a person may no t in tend t o e n t e r a h a b i t a t i o n o r know t h a t h i s a c t i o n s would cause him t o e n t e r a h a b i t a t i o n ( i . e . , e n t r y by mistake o r accident) even i f

p e knew t h a t he was not welcome there ."

s, 856,041, 4/25/79, 1/24/79, RETURNS TO CCA AND AIDS SEVERAL DS IN GETTING NEW TRIALS I N FORGERY TYPE OFFENSES.

I N LANDRY, 857,533, 7/18/79, J. T. Davis, En Banc, wi th J. Cl inton, joined by Judges Douglas and W.C. Davis, d i s s e n t i n g wi th opinion. DMRH GRANTED AND CASE REVERSED FOR FAILURE OF FORGERY INDICTMENT TO ALLEGE THE MAGIC WORDS "WHO DID NOT AUTHORIZE THE ACT." (DMRH Granted). (Har r i s County). ( ~ ~ ~ ~ ~ ~ ~ d ) . I

w i t h i n t e n t t o d e f r a u d and harm i n t e n t i o n a l l y f o r g e by p a s s i n g t o Sharon W e i l e r , a w r i t i n g a s f o l l o w s . " The j u r y c h a r g e used t h e magic words h u t , a s n o t e d , t h e I n d i c t m e n t d i d n o t c o n t a i n t h e magic words . "Unless t h e D was n o t a u t h o r i z e d t o a c t f o r t h e p e r s o n whose a c t t h e c h e c k p u r p o r t e d t o b e , h e committed no f o r g e r y o f f e n s e . ' ' "An I n d i c t m e n t must a l l e g e a l l e s s e n t i a l e l e m e n t s a f t h e o f f e n s e s o u g h t t o b e charged ." " W e h o l d t h e i n d i c t m e n t i n t h e p r e s e n t c a s e i s f u n d a m e n t a l l y d e f e c t i v e . " ( R e v e r s e d ) .

LIKEWISE, HUFF, #61,451, 7 /18 /79 , J. D a l l y , En Banc, I S REVERSED WHERE THE INDICTMENT ALLEGED MERELY THAT THE D "ON OR ABOUT JULY 8 , 1974 , DID THEN AND THERE UNLAWFULLY WITH INTENT TO DEFRAUD AND H I , FORGE, BY MAKING A WRITING AS FOLLOWS, TO-WIT: ( I n s t r u m e n t s e t o u t i n t h e I n d i c t m e n t ) , BECAUSE "SINCE THE INDICTMENT FAILS TO ALLEGE THAT THE PURPORTED MAKER OF THE CHECK DID NOT AUTHORIZE THE ACT, I T FAILS TO ALLEGE A NECESSARY ELEMENT OF THE OFFENSE." "MINIX, SUPRA, IS CONTROLLING AND REQUIRES THAT WE REVERSE THE JUDGMENT I N THIS CAUSE." ( R e v e r s e d ) . ( H a r r i s County) .

FOR LIKE REASONS, EX PARTE WILLIE DAVIS, 1162,090, 7/18/79, 3. C l i n t o n , En Banc, w i t h J. D o u g l a s d i s s e n t i n g w i t h o u t o p i n i o n , GETS A NEW TRIAL BECAUSE OF MINIX, SUPRA, AS THE INDICTMENT DID NOT ALLEGE THAT THE WRITING PURPORTED TO BE THE ACT OF ANOTHER "WHO DID NOT AUTHORIZE THAT ACT." "THAT AN INDICTMENT FOR FORGERY WHICH FAILS TO ALLEGE THAT THE WRITING PURPORTED TO BE THE ACT OF ANOTHER "WHO DID NOT AUTHORIZE THAT ACT" I S FUNDAMENTALLY DEFECTIVE I S THUS SETTLED." SEE MINIX, SUPRA. (Writ G r a n t e d ) . ( H a r r i s County) .

ODIS HAMMOND, #59 ,753 , 7/18/79, J. Odom, En Banc, Unanimous, GETS REVERSAL IN THIS AGGRAVATED ROBBERY CASE WHERE THE JURY CHARGE WAS RULED FUNDAMENTALLY ERREONEOUS AS THE "JURY AUTHOR- IZED A CONVICTION ON BOTH A ROBBERY THEORY AND AN AGGRAVATED THEORY NOT ALLEGED IN THE I N - DICTMENT." "THE CHARGE TO THE JURY AUTHORIZED A CONVICTION I F D EITHER COMMITTED ROBBERY

: AS ALLEGED I N THE INDICTMENT OR COMMITTED ROBBERY BY CAUSING BODILY INJURY." "ALSO, THE INDICTMENT ALLEGES THAT THE RUBBERY WAS AGGRAVATED I N THAT D USED AND EXHIBITED A DEADLY WEAPON." "THE INSTANT CASE PRESENTS US WITH A JURY CHARGE WHICH AUTHORIZED CONVICTION ON BOTH A ROBBERY THEORY AND AN AGGRAVATED THEORY NOT ALLEGED I N THE INDICTMENT. "IT I S THERE- FORE FUNDAMENTALLY DEFECTIVE.'' (Reversed) . ( T a r r a n t County) .

IN LONNIE YOUNG, 1158,076, 7 / 1 8 / 7 9 , J. Odom, P a n e l 113, 2nd Q u a r t e r , WHERE D WAS ORIGINALLY CHARGED WITH MURDER BUT I N THE COURT'S CHARGE TO THE JURY I T CHARGED ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER, CASE REVERSED BECAUSE THE JURY WAS AUTHORIZED TO CONVICT D UNDER A THEORY NOT INCLUDED I N THE INDICTMENT. ( R e v e r s e d ) . ( H i d a l g o County) .

COMC2ENT: S e e p . 1 0 I n f r a .

AND THEN THERE ARE THOSE TCT JUDGES WHO GET REVERSED FOR FAILURE TO GIVE A LESSER INCLUDED OFFENSE INSTRUCTION TO THE JURY. IN BRANHAM, #58,077, 1 / 1 8 / 7 9 , J. T. D a v i s , P a n e l 1t2, 2nd Q u a r t e r , CASE REVERSED FOR FAILURE TO CHARGE ON THE OFFENSE OF CRIMINALLY NEGLIGENT HOMICIDE WHERE THE D WENT TO TRIAL FOR THE OFFENSE OF MURDER BUT FOUND GUILTY OF INVOLUN- TARY MANSLAUGHTER. ( R e v e r s e d ) . (Denton County) .

HELD : " C r i m i n a l l y N e g l i g e n t Homicide i s a l e s s e r i n c l u d e d o f f e n s e of i n v o l u n t a r y m a n s l a u g h t e r and t h a t when e v i d e n c e r a i s e s b o t h i s s u e s , upon p r o p e r r e - q u e s t , t h e i s s u e s a r e t o b e s u b m i t t e d to t h e j u r y . "

"We c o n c l u d e t h a t b a s e d on a p p e l l a n t ' s t e s t i m o n y t h a t s h e t h o u g h t t h e gun was u n l o a d e d , t h a t s h e d i d n o t i n t e n d t o f i r e t h e gun, t h a t h e r f i n g e r was n o t on t h e t r i g g e r , and t h a t t h e gun a c c i d e n t a l l y d i s c h a r g e d when s h e was grabbed by a t h i r d p a r t y , t h e i s s u e of c r i m i n a l l y n e g l i g e n t homic ide was r a i s e d . Here , t h e t r i a l c o u r t e r r e d i n f a i l i n g t o charge t h e j u r y a n t h i s i s s u e . T h e r e f o r e , t h e t r i a l c o u r t e r r e d i n f a i l i n g t o c h a r g e t h e j u r y on t h i s i s s u e . "

NOTE : The o t h e r r e c e n t c a s e s where t h e CCA r e v e r s e d f o r f a i l u r e t o c h a r g e t h e

August 1979/VOICE for the Defense

j u r y on c r i m i n a l l y n e g l i g e n t h o m i c i d e , s u c h a s Moore, 574 ( 2 ) 122, and London, 547 (2) 27, Cf. Scott, 1155,695, 5 / 2 3 / 7 9 , a r e c i t e d i n t h e o p i n i o n .

JURY'S ALTERATION OF JURY VERDICT FORM RESULTS I N IDROGO, 1158,136, 7 /18 /79 , J. Odam, En Banc, Unanimous, GETTING N'LW Tl?&4I, WHERE HE WAS CONVICTED OF AGGRAVATED ASSAULT. L&!& ALSO HELD THAT " I N THE EVENT OR RETRIAL D MAY NOT BE CONVICTED OF MURDER (SINCE THE JURY HERE IMPLIEDLY FOUND HIM NOT GUILTY OF THAT OFFENSE BUT HE MAY, ON A PROPER CHARGE, BE CONVICTED OF AGGRAVATED ASSAULT." ( R e v e r s e d ) . (Bexar County) .

COMMENT: Here , D was on t r i a l f o r murder . The TCt charged t h e j u r y on t h e o f f e n s e of murder b u t d i d g submi t t h e o f f e n s e of a g g r a v a t e d a s s a u l t . F o r what- e v e r r e a s o n , t h e j u r y a l t e r e d t h e v e r d i c t form t o r e a d t h a t t h e j u r y found D g u i l t y o f a g g r a v a t e d a s s a u l t i n s t e a d of murder . Was t h i s j u r y n o v a t i o n o r j u r y r e v o l t ?

HELD : "It i s f u n d a m e n t a l e r r o r f o r a c c u r t t o a u t h o r i z e a c o n v i c t i o n by j u r y i n s t r u c t i o n s t h a t omi t even one e lement of t h e o f f e n s e . " "A f o r t i o r i t h e r e can b e no l a w f u l c o n v i c t i o n f o r a n o f f e n s e t h a t was n o t s u b m i t t e d i n t h e c h a r g e a t a l l . " However, " S i n c e a g g r a v a t e d a s s a u l t i s a l e s s e r i n c l u d e d o f f e n s e o f t h e murder a l l e g e d ( s i n c e t h e j u r y h e r e i m p l i e d l y found t h e D n o t g u i l t y o f t h a t o f f e n s e ) h e may, o n a p r o p e r c h a r g e , h e con- v i c t e d of a g g r a v a t e d a s s a u l t . " (Reversed) .

A HISTORICAL DECISION? IN SWAIN, 1155,946, 7 / 1 8 / 7 9 , C o m i s s i o n e r C o r n e l i u s , P a n e l 113, 4 t h Q u a r t e r , THE PANEL REVERSED THIS BURGLARY OF A HABITATION CONVICTION BECAUSE THE TCT JUDGE, I N A SWPLEMENTAL INSTRUCTION TO THE JURY, OVER OBJECTION, IN DEFINING HABITATION "AS EACH STRUCTURE APPURTENANT TO OR CONNECTED WITH A STRUCTURE OR VEHICLE ADAPTED TO THE OVERNIGHT ACCOMMODATIONS OF PERSONS WAS, WITHOUT MORE, CALCULATED TO LEAD THE JURORS TO BELIEVE THAT SUCH AN ENTRY WOULD CONSTITUTE THE OFFENSE," ESPECIALLY WHEN THE INSTRUCTION I S CONSIDERED TOGETHER WITH THE JURORS' QUESTIONS SPECIFICALLY INQUIRING IF THE STAIRS WERE TO BE CON- SIDERED A PART OF TIE HABITATION." (Reversed) . ( T r a v i s County) .

HELD : " I n t h i s c a s e t h e t e s t i m o n y o f t h e S t a t e ' s w i t n e s s e s showed o n l y t h a t D was on t h e s t a i r w a y o r o n t h e ground i n t h e yard." "The a f f i r m a t i v e de- f e n s e t h a t D e n t e r e d o n l y t h e y a r d o r t h e s t a i r w a y was t h u s r a i s e d by same ev idence ." "As D p r o p e r l y o b j e c t e d and c a l l e d t h e c o u r t ' s a t t e n t i o n t o t h e need of a c h a r g e t h a t t h e mere e n t r y upon t h e s t a i r w a y a l o n e would n o t b e b u r g l a r y o f a h a b i t a t i o n , h e was e n t i t l e d t o h a v e s u c h a c h a r g e g iven ." (Reversed) .

COMMENT: The r e a s o n I s a y t h i s may b e a h i s t o r i c a l d e c i s i o n is t h a t I can f i n d n o t h i n g i n t h e h i s t o r y o f t h e CCA whereby a l a w y e r who was known t o d e f e n d p e r s o n s a c c u s e d o r c o n v i c t e d of c r i m i n a l wrongs, who s u b s e q u e n t l y became a member of t h e CCA, r e c e i v e d a r e v e r s a l o f a c o n v i c t i o n .

COMMISSIONER KEITH, I N EX PARTE GLENN WALTON, 861 ,415 , 7 /28 /79 , P a n e l 111, 3 r d Q u a r t e r , - ORDERS BAIL SET AT $15,000.00 WHERE TCT J ORIGINALLY SET I T AT $50,000 BUT THEN REDUCED I T TO $25,000 WHERE D WAS CHARGED WITH MURDER. ( B a i l Reduced) . ( P o t t e r County) .

COMMENT: The i n t e r e s t i n g p a r t o f t h e o p i n i o n , I t h o u g h t , was t h e f a c t t h a t t h i s D, b y a f i n d i n g o f J. K e i t h , was i n d i g e n t , b u t " c o n s i d e r i n g t h e y o u t h of t h e D, h i s l a c k of a p r i o r c r i m i n a l r e c o r d , t h e f a c t t h a t h e s u r r e n d e r e d v o l u n t a r i l y t o t h e p o l i c e , and h i s i n d i g e n c y , we c o n c l u d e t h a t b a i l even i n t h e r e d u c e d sum o f $25,000 i s e x c e s s i v e . " " B a i l is reduced and now set a t t h e sum o f $15,000.00."

LIKEWISE, IN EX PARTE NARCISSO WDRIGUEZ, 1161,785, 7 /18 /79 , J. DOUGLAS, IN WRITING FOR PANEL 112, 3RD QUARTER, RITLED THAT A TRIAL COUKJUDGE ORDERING THE D TO POST A $25,000.00 - CASH BOND, WITHOUT ANY PROVISION FOR A SURETY BOND, KAS NOT AUTXRLZED TO DO THIS BYAT-. 17.02, C.C.P. "A r e a s o n a b l e s a r e t y bond s h o u l d h e a s s e s s e d b y t h e h e a r i n g judge." (Re- v e r s e d ) . ( D a l l a s County) . WILLIE HENRY McCLENDON, 1156,5223, 7 /18 /79 , J. C l i n t o n , w i t h J. D a l l y c o n c u r r i n g w i t h o- p i n i o n , SCORES AGAIN IN AUSTIN. (Reversed and Dismissed). ( H a r r i s County) .

COMMENT: O r i g i n a l l y , t h e D r e c e i v e d a r e v e r s a l , S e e 509 (2) 851, b e c a u s e t h e t r i a l

cour t e r red t o t h e p re jud ice of t h e D i n admit t ing i n t o evidence a t the g u i l t s t a g e f c r impeachment purposes a fe lony conv ic t ion of t h e D where 12 years 11 months had e lapsed between h i s r e l e a s e from pr i son and t h e t r i a l .

Upon r e t r i a l , dur ing t h e course of the t r i a l , t h e S t a t e could no t f i n d a wi tness who could t e s t i f y t h e deceased was known by t h e name a l l eged i n t h e indictment and, apparent ly , sua sponte, made a motion t o dismiss and same was granted. S t a t e d id no t , however, move t o continue t h e case .

The D was then re- indic ted t h e nex t week and was subsequently pu t t o t r i a l f o r t h e same of fense , over ob jec t ion , found g u i l t y and t h i s appeal r e s u l t e d .

QUESTION: Whether D a t t h e t ime t h e t r i a l cour t granted t h e S t a t e ' s motion t o dismiss had a l ready been placed i n jeopardy, thereby p r o h i b i t i n g f u r t h e r proaecu- t i o n f o r t h a t offense?

ANSWER: Yes. See and compare Downum v . U.S., 372 U.S. 734.

J. ODOM, I N EX PARTE LOCKLIN, #61,454, 7/18/79, En Banc, Unanimous, GRANTS POST-CONVICTION WRIT OF HABEAS CORPUS WHEN CCA AGREES WITH D'S CONTENTION THAT:

"(1) That he was incompetent t o s tand t r i a l i n 1961 when he was con- v i c t e d , ( 2 ) t h a t f a i l u r e t o conduct a competency hear ing separa te from t h e t r i a l on t h e m e r i t s denied him due process , (31 t h a t submission of t h e competency i s s u e t o t h e same jury t h a t decided t h e i s s u e of h i s g u i l t on t h e c r imina l charges denied him due process."

COMMENT :

HELD:

The r e a l holding was, however, t h e following:

"Previously it has been he ld t h a t t h e same ju ry should not decide both competency t o s t and t r i a l and gui l t - innocence, because t h e evidence on t h e l a t t e r e a s i l y could adversely a f f e c t t h e accuracy of t h e j u r y ' s determinat ion of t h e former. We today hold t h a t t h e converse i s a l s o t r u e : submission of t h e i s s u e of competency t o s t and t r i a l t o t h e same jury t h a t decides t h e t r u t h of c r imina l charges a g a i n s t t h e accused may adversely a f f e c t t h e accuracy of t h a t determinat ion of g u i l t , and a convict ion by a ju ry t h a t has a l s o decided t h e competency i s s u e cannot s tand. Several cons ide ra t ions l ead u s t o t h i s conclusion."

"We the re fore hold t h a t due process i n t h e determinat ion of t h e i s s u e of g u i l t i s v i o l a t e d when t h a t i s s u e i s t r i e d j o i n t l y wi th t h e i s s u e of competency t o s t and t r i a l . " (New t r i a l g ran ted) . (Writ Granted). (Tarrant County).

LIKEWISE, SEE SCHATFER, 1/57,574, 7/18/79, J . P h i l l i p s , En Banc, wi th 3 . Odom concurring i n t h e r e s u l t wi thout opinion, See a l s o June, 1979, S.D.R., p. 18, Wt!ERE APPEAL ABATED SO THAT TCT COULD MAKE A JUDICIAL DETERMINATION, PURSUANT TO ART. 42.06, C.C.P., REGARDING D'S COMPETENCY TO STAND TRIAL. (Abated). ( H i l l County).

J. DOUGLAS, I N HELTCEL, 1161,670, 7/18/79, Panel 8 2 , 3rd Quarter , ORDERS REVERSAL AND DIS MISSAL WHEN CONCLUDED THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT FINDING i"HE D GUILTY OF FELONY POSSESSION OF MARIJUANA. CReversedZ. ('Refugio County).

COMMENT: The f a c t s showsd t h e following:

"At approximately 2 a.m. on t h e morning of A p r i l 14, 1978, L.R. Park, Jr., Refugio Chief of P o l i c e , stopped a c a r dr iven by appe l l an t f o r speeding. Park a l s o observed a woman passenger i n t h e f r o n t s e a t and a male passen- g e r i n t h e back fe ign ing s l e e p . Off. Park saw t h a t appe l l an t ' s d r i v e r ' s l i c e n s e was expired and received permission from him t o search t h e c a r f o r weapons. A p i s t o l was discovered under t h e f r o n t s e a t . Park not iced t h a t both passengers appeared nervous and he asked t h e back s e a t passenger, l a t e r i d e n t i f i e d a s Thomas McCain, t o s i t up. When he d id , two brown

IR-7 August 1979/VOICE for the Defense

paper bags containing b r i c k s of marijuana were found where McCain had been ly ing . Off. Park s t a t e d t h a t a sea rch o f t h e r e s t of t h e c a r and i t s occupants produced no o the r evidence of marijuana. There was no t e s t i - mony r e l a t i n g t o t h e smel l of marijuana i n t h e c a r . There was evidence I t h a t the c a r belonged t o McCain. Park t e s t i f i e d t h a t although appe l l an t appeared " too f r i e n d l y , " he d i d clot make " fu r t ive" ges tu res o r appear t o be nervous."

HELD : "There was no proof t h a t a p p e l l a n t had knowledge of t h e presence of contraband. The marijuana found was i n t h e back s e a t i n s i d e a paper bag which had been sec re ted under McCain. There was no evidence of a no t i ceab le odor wi th in t h e c a r and no o the r contraband was found e i t h e r i n t h e c a r o r on a p p e l l a n t ' s person.' ' (Reversed).

J. T. DAVIS, I N JACKSON, #61,694, 7/18/79, Panel 83, 3rd Quarter , REVERSES DELIVERY OF MARIJUANA CONVICTION WHEN HE REJECTS THE STATE'S CONTENTION THERE WAS SUBSTANTIAL COM- PLIANCE WITH ART. 26.13, C.C.P., AND FINDS THERE WAS I N FACT NO COMPLIANCE DUE TO TCT JUDGE'S FAILURE TO ADMONISH D, ON HIS PLEA OF GUILTY, AS TO THE RANGE OF PUNISHMENT. MERE PRESENCE DURING TRIAL RULE REJECTED. (Reversed). (Brazor ia County).

BURKS AND GREENE GET EX PARTE DIXON, 062,089, 7/18/79, J . Douglas, En Banc, Unanimous, OUT OF THE PENITENTIARY BECAUSE HIS ORIGINAL CONVICTION WAS REVERSED BECAUSE OF INSUFFI- CIENT EVIDENCE, SEE 541 (2) 437, WHICH, BY BURKS AND GREENE, BARRED A RETRIAL. (Writ Granted). (Hunt County).

COMMISSIONER CORNELIUS, I N NEW, $57,031, 7/18/79, Panel 83, 4th Quarter , REJECTS D'S CON- TENTION THAT MOTION TO QUASH THE ENHANCEMENT FORTION OF THE INDICTMENT SHOULD HAVE BEEN GRANTED BECAUSE TAE D WAS SENTENCED ON THE SAME DAY THE JUDGMENT WAS ENTERED. "Such an i r r e g u l a r i t y may he used t o chal lenge t h e convict ion only i n a d i r e c t a t t a c k , and i t may no t be used t o c o l l a t e r a l l y a t t a c k t h e judgment." (Affirmed). (Dal las County).

PANEL 83, 1ST QUARTER, I N TONEY, #56,710, 7/18/79, J. W . C . Davis, SPLITS, BUT HIS TWO ARE BETTER THAN 3 . CLINTON'S ONE AND BURGLARY CONVICTION UPHELD. (Affirmed). (Lamb County). NOTE: The ml i t h e r e was n r imar i lv over t h e s u f f i c i e n c y of t h e evidence and maior i ty , pe r J. W.C. Davis, ru led i t was s u f f i c i e n t . J . Cl inton d i s sen ted w i t h opinion.

LIKEWISE, I N MARTINEZ & STONER, #56,406, 7/18/79, J. Dal ly , J. CLINTON AGAIN CAME OUT ON THE SHORT END OF THE STICK AND PANEL #3 , 1ST QUARTER, AFFIRMS CONVICTION OF DS FOR STEAL- I N G 60 POUND BLUE NEKOOSA OFFSET VELLUM PAPER. "In essence, D s were accused of s t e a l i n g paper from t h e S t a t e , and then s e l l i n g i t back t o t h e S t a t e i n t h e form of completed p r i n t i n g jobs." (Affirmed). (Travis County).

The following goes wi th Yolmg, 858,076, supra .

"In t h e c o u r t ' s submission of t h e l e s s e r included offense of voluntary manslaughter, i n t h e paragraph under which appe l l an t was convicted, applying t h e law t o t h e f a c t s , t h e cour t charged:

"I f you f i n d and b e l i e v e from t h e evidence beyond a reasonable doubt t h a t on o r about t h e 22n'd day of may, 1Y76, i n Hidalgo County, Texas, t h e defendant, Lonnie M. Young, d id i n t e n t i o n a l l y o r knowingly cause t h e death of James Graham by shooting him with a f i r ea rm, t o w i t , a gun, o r d i d then and t h e r e in tend t o cause s e r i o u s bodi ly i n j u r y t o t h e s a i d James Graham and wi th s a i d i n t e n t t o cause such in ju ry did c a m i t an a c t c l e a r l y dangerous t o human l i f e , t o w i t , shoot ing a t James Graham wi th a gun and causing the death of t h e s a i d James Graham, hu t you f u r t h e r 5ind and b e l i e v e from a l l t h e f a c t s and circumstances i n evidence i n t h e case , o r you have a reasonable doubt the reof , t h a t the defendant, i n k i l l i n g t h e deceased, i f h e d i d , acted under t h e im- mediate in f luence of sudden pass ion a r i s i n g from an adequate cause then you w i l l f i n d t h e defendant g u i l t y of voluntary manslaughter."

This charge author ized a convict ion under theor ies i f voluntary manslaughter pursuant t o V.T.C.A., P.C., S 19.04 coupled wi th both S 19 .02(a ) ( l ) And §19.02(a)(2), whereas t h e indictment was d r a f t e d under 5 19 .02(a ) ( l ) only. Thus, t h e jury was author ized

convict appe l l an t under a theory not included i n t h e indictment. ' '

1R-8

TITLE 111 LIMITATIONS ON by the Supreme Court last Spring practice is particularly intrusive andsus- NONCONCENSUAL involved whether an order authorizing the ceptible t o abuse since it leaves naked to

"bugging" of a place of business or a the hands and eyes of government agents residence requires a further authorization items beyond the reach of simple eaves-

from D . ' to break and enter the premises in order dropping." Bynum case. In that instance, the author- to put the "bug" in place. The Supreme

izing judge had ordered that privileged Court, in Dalia v: United Sfafes, held, in a This decision may, in practice, have conversations were not to be monitored. 5 4 decision, that the authority to break little impact upon law enforcement sur- However, be was never informed of and enter is implicit in Title Hi's authori- veillance activities since the statistics the interception of the 67 conversations Zation of "bugging" to intercept oral indicate that it is not nearly as widely between the defendant and attorneys and (as opposed to telephone) communica- used as wiretapping. The issue, however, was, in fact, told that no privileged com- tions. was considered by the National Commis- munications had been intercepted. sion to be of sufficient gravity to warrant Furthermore, although the monitoring Justice Stevens, dissenting, framed the a recommendation that a specific court agents knew of this provision of the issue thusly: "The practice entails an authorization be necessary for the surrep- order, they were inadequately equipped invasion of privacy of constitutional titious entry into premises in order to to comply with it because their super- significance distinct from that which install a "bugging" device. A minority of vising agent never told them what types attends nontrespassory surveillance; the Commission considered the practice of conversations were privileged. indeed, it is tantamount to an inde- to be so intrusive as to require that it be

A difficult issue which was laid to rest pepdent search and seizure. . . the outlawed altogether. . ~

Productivity of Electronic Surveillance This is an excerpt from research and analysis on Electronic Surveillance in Law Enforcement prepared by the staff of the Committee on Criminal Jurisprudence of the Texas House of Representatives. It was intended for committee reference during wiretap hearings, neither for publication nor as an official statement. It is reprinted here because the subject is of such obvious interest to readers of VOICE.

I. SOURCES OF DATA A. Annual Reports Title I11 of the Omnibus Crime Con-

trol and Safe Streets Act of 1968 contains certain reporting requirements relative to the use of electronic surveillance by law enforcement agencies pursuant to that Act. These reports are filed with the Director of the Administrative Office of the United States Courts. The information is compiled and published by that office annually.

Specifically, every state and federal judge must file a report on each application made to him for an order authorizing the interception of wire or oral communications. These reports are to be filed within 30 days after the expiration of an intercept order or extension thereof or the denial of an order.

The Director sends reporting forms to every prosecuting official who has made an application for an intercept order during the year. These reports are to be returned to the director with information relative to applications made by the prosecuting official during the year, including number of persons overheard, number of conversations intercepted, number of incriminating conversations intercepted, cost of interception, and

results in terms of arrests, trials, convictions, etc.

Additionally, because of the time lapse between the authorization and the ulti- mate disposition of a case, prosecutors must file supplementary reports providing the above-described information relative to interceptions authorized in preceeding years.

This report to the committee is based in part on the published reports for the years 1973 through 1978. Reports for the preceeding years were not available because the Administrative Office of the United States Courts no longer has sufficient copies for distribution.

B. Report of the National Commission The National Commission for the

Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance conducted a two-year study, resulting in a report t o the President and Congress of the United States in 1976. The report is based on studies of electronic surveillance activities for the years 1969 through 1973. This report to the committee does not discuss the National Commission activities and findings in detail, but does refer to specific findings relating to sentences in narcotics cases in which electronic surveillance was used.

11. PRODUCTIVITY OF ELECTRONIC SURVEILLANCE

A. Incidence of Use Generally Trends in the use of electronic surveil-

lance by both federal and state law en- forcefient agencies indicate that this type of activity has become less favored in recent years. After the passage of the federal Act in 1968, law enforcement agencies embarked upon a four-year trend of increasingly liberal use of this newly-sanctioned investigatory and prose-

cutorial tool. The activity reached its peak in 1972, however, and has declined significantly in each of the last six years.

Federal law enforcement agencies began to decrease their use of wiretaps and bugs in 1972 and that trend has generally continued, with the exception of spurts of activity in 1976 and 1978.

The decline is more pronounced on the state level. In 1969, less than a year after the passage of the federal Act, nine states authorized electronic surveillance by law enforcement agencies. That number doubled in the following year and gradually increased thereafter, reach- ing 22 in 1973. Since that year, the number of states authorizing law enforcement wiretapping and bugging has - - ~

not changed. Even more significant 1s the fact that

law enforcement agencies in those 22 states have steadily and substantially decreased their reliance on electronic surveillance in the last six years. The decline in actual use of this tool began in 1972 and authorization applications began to decrease in the following year. The downward trend in applications has continued unabated since 1972.

The probable reason for this decline is the shift in electronic surveillance resources from gambling cases to narcotics cases. The overall trend of decreased usage coincides with a general trend of decreased usage in gambling cases and a general trend of increased usage in narcotics cases. In 1971, gambling cases accounted for 69.8% and narcotics cases only 15.4% of all electronic surveillance applications. With a shift in priorities during the succeeding years, that gap has narrowed to the point that, in 1978, gambling cases accounted for 42.1% and narcotics cases 34.0% of all

VOICE for the DefenselAugusf 1979 17

PRODUCTIVITY OF The statistics indicate that about 15% reasonably complete for the respective ~ - ~ .~ ELECTRONIC SURVEILLANCE of all conversations intercepted in jurisdictions for these years), one third

narcotics surveillance are incriminating. of the federal surveillance installations continued Some cases yield a higher oercentaee. and the state surveillance installations

electronic surveillance applications. while others dccas iona~<~ie ldno incrik: failed to yield any arrests (the exact Statistics relating to incriminating bating conversations whatsoever (for percentages are 34.0% for federal

conversations and costs indicate that this example, five intercept authorizations narcotics surveillance installations and shift of resources has been away from a obtained by the Virginia attorney general 33.7% for Florida narcotics surveillance relatively high-yield, low-cost enterprise in a narcotics investigation in 1978 installations). (gambling surveillance) t o a relatively resulted in the interception of 5,031 For those federal and state installa- low-yield, high cost enterprise (narcotics conversations, none of which were in- tions which did yield arrests, the average surveillance). Because Narcotics surveil- criminating). Federal interceptions in nar- number of persons arrested per installa- lance appears t o be relatively less pro- cotics cases in 1978 yielded 14.7% tion was 8.75 in federal cases and 7.17 in ductive and unquestionably is more incriminating conversations. The figure Florida cases. expensive than gambling surveillance, law for gambling cases was 53.4%. For the enforcement agencies have become more period 1973 through 1978, federal inter- 3 . Convictions selective in the use of wiretapping and ceptions in narcotics cases in Texas The same caveats applicable t o arrest bugging, thus bringing about a trend of yielded 15% incriminating conversations. statistics are a~plicable to conviction decreased usage overall. The figure for gambling cases was 83.7%. statistics as well. If anything, the corre-

B. Producfivity in Narcotics Cases Florida, the only one of the "Big F~~~~ lation between the use of electronic The productivity of wiretapping and states (New Jersey, New York, Florida ~"veilhnce and convictions becomes

bugging by law enforcement agencies is and Maryland accounted for 67% of all even more tenuous, because more variable difficult to analyze with any degree of state intercept applications in 1978) factors are involved. objective certainty. The only statistical which uses electronic surveillance pri- The sanle data base as was used for data for the years 1969-1978 which are marily in narcotics cases, reported in arrests indicates that 52.7% of federal sur- available are the required prosecutors' 1978 that 15.9% of intercepted convcr- veillance installations in narcotics cases reports relative t o number of conversa- sations in narcotics cases were incriminat- nationwide failed to yield any con- tions intercepted, number of incriminating. The figure in gambling cases was victions, ln ~ l ~ ~ i , j ~ cases, 72.7% of sur- ing conversations intercepted, numbers of 37.3%. veillance installations in narcotics cases anests, trials, motions to suppress granted

During the period 1969-19782 failed to yield any convictions. For those and denied and convictions in cases in incriminating conversations for ail offense which electronic surveillance was used. categories (state and federal) have consti- installations associated with convictions, As previously stated, only the reports for tuted between 40% and 50% of all com- the average number of per the years 1973-1978 are available t o the munications intercepted, with the excep- was 5.26 and for committee staff. tion of two and 1978, In Florida installations 2.27. The number of

With respect t o incriminating conver- 1971, 62% of all communications inter- convicted in federal cases was sations, there is no objective standard; cepted were incriminating. This was the 60.0% of the number arrested. In Florida the prosecutor's opinion of the nature of peak year for use of electronic surveil- cases, the of persons convicted the conversation is the sole determinant lance in connection with gambling 31.6% the number arrested. and although such conversations may offenses and the low year for use in con- , the years studied, there is no provide investigatory leads, they do not nection with narcotics offenses. In 1978, with respect to the

always provide usable evidence. however, only 27,7% of all communica. severity of sentences imposed in narcotics With respect t o arrests, since the inter- tions intercepted were incriminating. in which was

cept application process requires a During that year, the incidence of use of and in which convictions were showing of probable cause t o believe the electronic surveillance in connection with obtained. The person(s) named in the application islare gambling offenses was at its lowest level a profile of sentences in involved in the commission of an offense, since 1969 and the incidence of use in narcotics in which sur- a legal basis for the arrest of such per- connection with narcotics offenses was at veillance was in the years 1969 sons (although not necessarily for the its second-highest level. through 1973. The profile does not pur-

conviction) would seem to exist at the port t o cover all narcotics cases in which 2. Arrests surveillance was used for those years, but time the application is made' The primary

A correlation between the use of is instead a sample which the commission value of electronic surveillance in securing electronic surveillance and arrests is apparently believes to he representative. arrests seem, therefore, to be in tenuous at best. The reported statistics The report shows that 49% of the convic-

law enforcement officers t' give no clue as t o the number or per- tions resulted in no imprisonment at all identify the 'Onfederates Of the

centage of arrests which could not have or imprisonment of less than one year. who is the target of the surveillance. However, the reported arrest data does been made "but for" the use of electronic Another 22% resulted in imprisonment not distinguish among the persons surveillance. The reports merely indicate of from one to five years.

arrested who were named in the intercept that surveillance was used and that arrests The penalty range for misdemeanor

application and those arrested who were (including numbers of persons arrested) violations of Texas law extends up to

not so identified. either were or were not made. one year confinement (Class A mis- With respect to convictions, the However, some statistics are worth demeanor). Assuming that some portion

reports do not indicate whether the sur. noting. Using a data base of federal of the Commission sample which fell veillance provided most of the evidence, interceptions in narcotics cases for the into the one-to-five year category were some of the evidence, or little or none of years 1973 through 1977 and intercep- sentences of one year, the Commission the evidence. tions in Florida in state narcotics cases sample indicates that approximately 50%

for the years 1973 through 1977 (the (probably more) of the convictions were . Incriminating conversations reports indicate that arrest data are the equivalent of a Texas misdemeanor.

PRODUCTIVITY OF ELECTRONIC SURVEILLANCE

continued 111. FWANCIAL COST OF ELECTRONIC SURVEILLANCE

The cost of electronic surveillance, as might be expected because of inflation, generally has increased during the period 1969 through 1978. The primary cost figure is manpower. Federal surveillance is substantially more expensive than state surveillance, probably because of a difference in salary scales.

Cost figures show only two years in which the average cost of electronic snr- veillance declined-I971 and 1975. In both of these years, relative incidence of intercept applications in gambling cases increased and that in narcotics cases decreased.

Federal surveillance throughout the United States in narcotics investigations in 1978 cost an average of $41,577 per installation, while the average cost in gambling investigations was only $10,703. In Florida during the same year, the average cost per installalion in narcotics cases was $18,584 and only

$2,630 in gambling cases. The National Commission attributed

the relatively high cost of surveillance in narcotics cases to the nced for 24-hour operation of an installation and the consequent manpower costs involved.

IV. CONCLUSIONS The usc of electronic surveillance

generally by law enforcement agencies has declined substantially in the last six years. The probable reason for this decline is the diversion of electronic surveillance resources (primarily manpower) away from gambling cascs and toward narcotics cases.

Narcotics surveillance unquestionably is more expensive than gambling surveillance, chiefly because of the apparent necessity of around-the-clock surveillance.

Additionally, narcotics surveillance is something of a "boom or bust" enterprise. Interception of incriminating conversations is relatively infrequent (as compared to the frequency in gambling cases). Furthermore, although successful surveillancc installations typically yield multiple arrests and convictions, reports

of fcderal and Florida prosecutors indicate that fully one third of surveillance installations in narcotics cases are totally unsuccessful in terms of producing any arrests. Nor has wiretapping and bugging been a gencral boon to prosecutors, as more than half of the federal and nearly three fourths of Florida narcotics surveillance installations since 1973 have failed t o yield any convictions.

As a result of this shift in priorities away from low-cost, low-risk gambling surveillancc and toward high-cost, high- risk narcotics surveillance, wiretapping and bugging is being used more selectively and, therefore, less frequently.

A consequence of such selectivity in narcotics cases should be the devotion of electronic surveillance resources to the investigation and prosecution of the "kingpins" of the illicit narcotics traffic. That such selectivity has not been demonstrated in the past is indicated by the National Commission report showing that this relatively expensive law enforcement tool was used in narcotics cases through 1973 to obtain convictions which were, in at least half the cases, the equivalent of a Texas Penal Code misdemeanor.

NOTE:

MEMBERS PRESENT

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

Board of Directors Meeting - Holiday Inn - Dallas

July 21,1979

These minutes have not been officially approved by a formal motion by the Board of Directors, and are subject t o change. Individual members in attendance may have additions or corrections to these minutes when finally approved at the next Board of Directors meeting on September 15, 1979. We are publishing them now so that the VOICE readers will have them as quickly as possible.

President Vincent W. Perini called the meeting t o Order. The roll was called, and i t was established that a quorum was present.

Vincent W. Perini, Robert D. Jones, Charles McDonald, David Bires, William F . "Bill" Alexander, Richard A. Anderson, Cecil W. Bain, Jack Beech, Jjm Bobo, Allen Cazier, Anthony F. Constant, Eugene DeBullet, Woody R. Denson, Louis Dngas, W. V. Dunnam, Jr., Michael Gibson, Gerald Goldstein, Grant Hardeway, Richard Har- rison, Mrs. Jan Hemphill, Clif Holmes, Ed- ward Mallett, Pat Priest, Charles Ribben- berry, Larry Sauer, Robert G. Turner, Stanley Weinberg, Ronald Zipp, Don Car- ter, M. P. "Rusty" Duncan 111. Ron Goran-

VOICE for the DefenselAugust I979

MEMBERS ABSENT

REASONS GIVEN FOR ABSENCES

son, Robert L. Joseph, J. C. "Rusty" O'Shea, C. W. "Robin" Pearcy, James Pons, David Spencer, Michael Thomas, George Gilkerson, Weldon Kolcomb.

Clifford Brown, Doug Tinker, Russell Bushy, Charles Butts, Raymond Caballero, Antonio Cantu, Waggoner Carr, Donald B. Dailey, Oliver Heard, Jr., Stuart Icinard, Robert Salinas, Thomas Sharpe, Stanley Topek, Rodger Zimmerman, James H. Kreimeyer, Jr., Charles Scarborough.

Clifford Brown-European Trip Waggoner Carr-Mrs. Carr needed him at a Meeting. Thomas Sharpe-In Trial, [I.S.A. vs. Bradsby, Brownsville, "Black September Case." In Trial, (California) State vs. Blodgett. Stanley Topek-In Trial, On Call by Judge, CPR Case. Oliver Heard, Jr.-Prior Committment in connection with the Family Law Advisory Commission t o the Texas Board of Legal Specialization, scheduled in advance of this meeting. Emmett Colvin-Has remarried his first

JULY BOARD MINUTES-continued

wife and mother of his three children and in Colorado on honeymoon. George F . Luquette-Appointed by the ZOlst Judicial District Court as Master & Chancellory for one trial on this date.

MOTION

BUSINESS

MOTION

MOTION

BUSINESS

President Perini has appointed three members t o the Executive Committee, as prescribed in the TCDLA By-Laws: Jim Bobo, Pat Priest, and Jack Beech. A formal motion t o accept these appointments was made by Weldon Holcomb with a second from Clif Holmes. These appointments were accepted by the members present by a unanimous approval.

Jim Bobo gave a report on the July 7th, 1979 Executive Committee Meeting which was held in the Austin Office. The Minutes t o this meeting and all future meetings will be published in the VOICE for the Defense. The minutes of this meeting were published in the July issue.

Vincent Perini then asked that the minutes t o the July 7 , 1979 Executive Committee Meeting be formally accepted. This was done by a unanimous approval of all members present.

Due t o a vacancy on the Board of Directors, by the resignation of Pete Torres, Richard Harrison, an Associate Director, was placed by Presidential appointment on the Board of Directors. C. W. "Robin" Pearcy was appointed t o fulfill the unexpired term of office of Richard Harrison on the Associate Board. By a formal motion by Robert Jones, these appointments were accepted by unanimous approval of all members present.

David Bires, Secretary-Treasurer, gave the financial report and explained t o the Board the Glossaries made by TCDLA C.P.A., C. M. Arnold; these glossaries are an item by item explanation of each item on the financial statements and the trial balance. They will be mailed t o the Board with each month's financial statements.

Discussion then followed regarding the Standing Committees as prescribed in the TCDLA By-Laws. The Standing Commit- tees and their appointed Chairmen by President Perini, alongwith their Executive Committee Liaisons are as follows: 1. Membership Committee: Robert Jones, chairman (Committee of the entire Board:) L. Legislative Committee: Ed Mallett, Chairman: Jack Beech. Executive Commit- tee ~ i a i s o n 3 . Publications Committee: Pat Priest, Chairman: Clif Holmes. Ex-Officio member as Editor bf VOICE

4. Amicus Curiae Committee: Marvin Teague, Chairman; David Bires as Execu- tive Committee Liaison 5. Qualifications (By-Laws) Committee: Ron Zipp, Chairman; Doug Tinker, Liaison to the Executive Committee 6 . Public Relations: Richard Anderson, Chairman; Clifford Brown, Executive Committee Liaison 7. Continuing Legal Education Committee: Gerald Goldstein, Chairman; Jim Bobo, Executive Committee Liaison; John Boston, Ex-Officio Member; Weldon Holcomb, Ex-Officio Member; Charles Butts, Ex-Officio Member 8. Brief Bank (Member Services) Commit- tee: Allen Cader, Chairman; Charles McDonald, Executive Committee Liaison 9. Finance and Budget Committee: David Bires, C h a i r y ; Doug Tinker, Executive Committee lalson

MOTION There was a unanimous approval of the Presidential Committee Chairmen.

As the President of the TCDLA, Vincent Perini is the official representative for TCDLA for the Criminal Defense Lawyers Project's Executive Committee. He is able t o appoint two other members from our Association to the CDLP Executive Com- mittee. He has appointed Weldon Holcomb and Charles Butts. With a formal motion made t o approve these appointments, they were accepted by a unanimous approval of all Board members present.

NEXT The next Board of Directors meeting will MEETING be held September 15, 1979 at 10:OO a.m.

at the Hyatt Regency Hotel in Houston.

BUSINESS Vincent Perini discussed the subject of attendance at all Board meetings, and the necessity for all members t o be present. There will no longer be any Excused Absences noted in the minutes of any Board rpeetings. Members of the Board will be listed as either present or absent. If the Austin office is contacted with a reason for an absence at a Board meeting, the stated reason will be given in the minutes. This will not be in the place of an "Ex- cused Absence," but will inform the other members of the Board of Directors that the Board Member Absent from a meeting was absent because of the stated reason.

The meeting was adjourned at 12:50 P.m. Respectfully Submitted,

Judy Bolander Executive Assistant to the President

Your TCDLA office needs to know if yon have changed your phone number or address within the last year. We want t o have our membership list absolutely correct. Please call or write if you need t o report a change.

Thank you.

August I979/VOICE for the Defense

VOIRE DIRE I Louis Dugas, Jr.

"A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its limits. The group of 12, who are drawn to hear a case, makes a decision and melts away. It is not present the next day to be criti- cized. It is the one governmental agency that has no ambition. It is as human as the people who make it up. It is sometimes the victim of passion. But it also takes the sharp edges off the law and uses con- science to ameliorate a hardship. Since it is of and from the community, i t gives the law an accept- ance which verdicts of judges cannot do."

(William 0 . Douglas, We, the Judges. 389 ((1956))

In the trial of a criminal case before a jury, nothing is as much drudgery to most lawyers as the selection of the jury. Because of this, a great many lawyers are looking for the magic formula which will enable them t o select a jury favorable to their side. This magic formula will allow the jury t o he selected without the lawyers being present. Other lawyers are looking t o other fields for guidance. There is no magic formula, and the science of psychology is not any more exact in the selection of jury than the art of law.

Everything depends on work-dull boring work-to have a successful voir dire. This paper is written as an aid t o those of you who are willing to climb into the pit, stay alert, and select a jury you hope will favor your client. If you can afford the psychologist, you won't read this nor will you need to. This is for the lawyer whose clients pay him enough to defend the case, but not enough to hire the experts,

THE BASICS Once you have been retained to

defend a criminal case, your preparation for voir dire should commence. First, you study your client. You observe his manner of speech, his mode of dress and the story he tells. You may have t o become a make-up director as well as the action director. If your client looks had, and smells worse, you have problems. The movies have brainwashed people into thinking that all homely or ugly people are guilty. If your client is in that category you may want to suggest changing

his hygiene habits. Find a beautician, after your client has bathed, and get advice from her or him on how to do little things to make your client pre- sentable. Next, get your friend at the local men's shop to suggest the type of clothing to improve your client. Of course, if your client is handsome, and smells clean, your problems are lessened.

After you have made, or endeavored to make, your client acceptable, you begin the next phase-the law.

LEARN EVERY ELEMENT OF PROOF REQUIRED IN YOUR CASE:

I've seen lawyers who were about as effective in this area as a man kicking the tires of a second-hand car is in selecting a good car. These are the areas in which you want to know how the jury will act. While we are at this point, it should be noted that there are two schools of thought on voir dire. One school is the brainwasher. The brainwasher stands forth with his silver tongue and tells the jury all about the facts of the case. The jury panel is never queried unless it is a question such as, "Do any of you know the prosecutor?", which is directed to the entire group.

The other school is the dull, plodding one. The jury panel is questioned indi- vidually (more about the questions later), and their responses noted.

It is your choice which you prefer. I use the second, not because I like it, but the silver of my tongue sometimes gets brassy. In any event, know the sub- stantive law as it applies to your case. It may well mean the difference in your client's being found "Not Guilty" or "Guilty." A number of lawyers are fact lawyers who pay little or no attention to the elements of the law. The results are noticeable-their clients get found guilty in most of their cases. You've got to think this out. You've got t o take the facts and the law, combine them and come up with questions on voir dire to elicit answers that are educational. Secondly, prepare even more by doing all the discovery you can. Discovery is 6 very basic tool to help in your voir dire. The more you know about your opponent's case, the better information you can obtain from the panel.

The jury will use the charge as their guideline for deciding the case. Do what the good civil lawyers who try jury cases do. Prepare for your voir dire by first preparing the issues to be submitted.

Find a charge involving the iaw in your case, study it and prepare your voir dire from it. After all, it will be such a charge which will guide the jury in, making its decision.

Be certain you know who the state's witnesses will be, or you may wind up with a personal friend of the witness on the jury. I recall a criminal case several years ago in which the wife of the District Attorney was chosen as a juror, and that type of sloppy voir dire goes on today.

After discovery and preparation of your theory of the case (if there is one), you are set for trial and are facing a group of people who qome to court as a panel with no leader, no organization, and no instructions as to what type case they will hear. It is more like a group of people in an airport, each trying to find out when his plane leaves and from which concourse. Among these people who come to court with all of their patterns of living as deeply ingrained as they are old, are roughly one-third who do not believe in the presumption of innocence. Your task is to disqualify as many of these as you can.

HUMANIZE YOUR CLIENT Earlier a mention was made of

cleaning up your client for the trial. Now you must introduce your client t o the panel by telling them his age, education, where he works, how long he's been a resident of the community. Next, introduce all members of his family who are in court. Most or all of these folks will not testify on guilt or innocence, but if you can let the jury know who they are, that factor may well affect the outcome in your favor.

Introduce yourself, tell the panel who you are. They know you are a lawyer, hut little else about you. Tell them about your family, your law practice. It is an excellent opportunity to do public relations work which will not only benefit your client but yourself.

VOICE for the DefenselAugust 1979 2 1

VOIR DIRE-continued

LISTEN AND WATCH The key t o successful voir dire is a

good eye and, above all, an ear that hears. Voir dire starts with the prosecutor talking t o the jury panel. Dull as it may be, you must position yourself during his voir dire so that you can see the person and hear what his responses are. Many times during the state's voir dire a person will start t o speak after he has answered the prosecutor's question. Usually, the prosecutor does not hear, as he is already interrogating the next venireman. Make a written note and talk to that person when your turn comes.

We are at the point when body language or nonverbal behavior comes into play. Watch as the people respond t o the prosecutor's question and again make note, then watch again as you seek a response. See i f their body responses are the same. Other than this, I do not attempt t o utilize body language as a guide, for i t can be misread. A lawyer attempting t o select a juror by the use of body language may well be in the same posture as a first semester medical student doing heart surgery. In other words, he doesn't have all the necessary tools. Body language is useful if you have a barometer t o go by, for example, how that person usually moves and acts. In a courtroom setting you are not likely to have that guideline, as there is no pre-voir dire "get acquainted" procedure.

Listening t o people closely will usually pay handsome dividends. Most people do

not answer questions in a straightforward BE YOURSELF manner. If you listen you will detect an I am not a "Racehorse" Haynes. I answer designed t o pacify, but which don't have his gift of gab, the constant does not come close t o being responsive flow of words. I am myself. I know that to the question. Press these nonanswers I have a voice that can be harsh and softly and tenderly, but press them for an cutting, but I also know how t o modulate answer. Many will be unable t o d o so, for my voice. So, I present myself and I sell their life consists of avoiding answers. myself, just as I am. What you see is what I would be wary of these for they are you get. usually prone t o let someone else do the Be yourself, but be a brain surgeon. work. Of course, you have those whose Pick the brains of every good lawyer you attempts t o evade are deliberate. Pin know. Watch their voir dire and see how these down and you may have an answer and what questions they ask. Then when that will give you cause t o challenge. your turn comes, with your new-found

knowledge, d o your own thing. GET ACQUAINTED

In the short space of time allotted t o THE USE OF LANGUAGE voir due you barely have time for intro- As lawyers, we should know how t o ductions, much less getting acquainted. phrase questions t o elicit information. You must get t o know as much as You Somewhere, our education has been neg- can about these individuals during voir lected and we are not exhibiting the ex- dire. This is where the challenge of voir pertise in language lawyers once did. dire occun. You must get each Person t o There should be a course in law school talk about himself. Only if you learn entitled, "How to ask questions." about what they consider important can People are making money from you make decisions on selectingiurors. lawyers by writing books telling us how

I have a favorite question t o find out t o ask questions. Basically, voir dire what is important. I ask about their questions should be open-ended in hobbies. What people d o for relaxation structure. This means they cannot be tells you more about them than where answered "yes" or "no." he person is they work. My voir due examination is then placed in the position of doing most tedious, dull and boring t o many, but the of the talking. Usually the words, results have been gratifying. I try t o get "what," "how," or "why," signify the everyone on the panel t o answer queb- beginning of an open-ended question. tions. Sometimes it's like trying t o get A good voir dire may not be as your haby to speak that new word for dramatic as the rest of the trial, but i t grandmother. Keep asking, and eventually can predestine the result. you'll get a response upon which you may make a decision. * * *

MINUTES OF EXECUTIVE COMMITTEE from v . 4

MOTION man would in turn appoint up to a number (continued) of ten, members of the Board of Directors

t o work with them on the Committees' goals and aims, and give regular reports at Board Meetings. Discussion then turned to the improvement of the VOICE for the Defense, and that Clif Holmes remain as Editor. Each of the standing Committees was discussed, and the goals each should work for. The standing Committees set and the Chairmen appointed are: Memembership Committee Chairman: Robert D. Jones Legislative Committee Chairman: Edward Mallett , Qualifications Committee Chairman: Ron Z ~ P P Public Relations Committee Chairman: Richard Anderson Finance and Budget Chairman: David Bires Legislative Committee Chairman: Edward Mallett (with possible hired lobbyist during special called session.)

Continuing Legal Education Committee: Gerry Goldstein Publications Committee Chairman: Pat Priest Amicus Curiae Committee Chairman: Marvin Teague Brief Bank Chairman: Allen Cazier

President Perini then replaced resigned regular Board of Directors member Pete Torres of San Antonio with Richard Harri- son of Dallas, presently an Associate Direc- tor, for the unexpired term of office. To replace Richard Harrison on the Associate Board, C. W. "Robin" Pearcy of San Marcos was appointed.

The meeting was adjourned at 1:30 p.m.

Respectfully Submitted, Judy Boldander

Executive Assistant t o the President

Augurt 1979/VOICE for the Defense

NEW MEMBERS Name Endorser Jacquel, Linda . . . . . . . . A. D. Downer Huntsville Longoria, John . . . . . . . . .Cecil W. Bain San Antonio Rolph, John W.. . . . . Herbert S. Bristow Waco Schleider, Ben H., Jr. Houston Swander, Steven H. . . . . . . . . J im Evans Ft. Worth

Need help in researching a case? If so: contact TCDLA Law Clerk, Matt Jones. He is available t o assist you at the home office-314 West 1 l t h street, Suite 21 1: Austin, Texas. (512) 478-2514 ... Make use of Association materials and Staff , Charge for research time is $5.00 per actual time spent on each project. By contacting the TCDLA Law Clerk for your research needs you not only help yourself, but also your Association

Your Executive Committee in Action Pictures in top row-from left t o right: 1) Vincent Perini at head of table with Bob Jones and Jim Bobo; 2) Jim Bobo (rear view) and Pat Priest; 3) TCDLA C.P.A. C. M. "Pete" Arnold, with Jack Beech and Pat Priest. Bottom row-from left t o right: 1) Vincent Perini facing Bob Jones and Jim Bobo; 2) Past President George Gilkerson and Director Charles Rittenberry; 3) Jim Bobo, Pete Arnold, and David Bires.

A M E R I C A N J O U R N A L O F

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To subscribe contact: Manay~ny Editor American Journal o f Criminal

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VOICE for the DefenselAugust 1979 23

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION, Suite 21 1, 314 West 11th Street, Austin, Texas 78701

Some of the best legal minds . . . in this state already belong to the Texas Criminal Defense Lawyers Association. We believe we have now the best Criminal Defense Bar in the United States. The way we maintain that level of excellence is contin- uously to seek out new minds, new energies. Therefore we want YOU. . . if your legal and personal philoso- phies are compatible with our purposes and objectives:

CTo provide an appropriate state organization representing To improve the judicial system and to urge the selection those lawyers who are actively engaged in the defense of and appointment to the bench of well-qualified and exper- criminal cases. ienced lawyers. To protect and insure by rule of law those individual rights To improve the correctional system and to seek more ef- guaranteed by the Texas and Federal Constitutions in crim- fective rehabilitation opportunities for those convicted of inal cases. crimes.

*To resist proposed legislation or rules which would curtail *To promote cwstant improvement in the administration of such right's and to promote sound alternatives. criminal justice To promote educational activities to improve the skills and knowledg'e of lawyers engaged in the defense of criminal ADVANTAGES FOR YOU ~ - - - - -

cases. *Referrals to and from recommended criminal -----------------------------. defense lawyers in over 100 Texas cities i through the TCDLA membership directory.

MEMBERSHIP APPLICATION I*~nmmaries of latest Court of Criminal Appeals I cases through the Attorney General's Crime

Application of: I Prevention Newsletter. Available to private prac- (Name, please print or type) I tioners only through TCDLA's group subscrip-

~- ~

Please letter certificate: as above I tion, included in dues. I *Access to many publications dealing with the other I practice of criminal law through TCDLA dis-

Street or Box No.: I counts & free offerings. City and Zip Code: l*TCDLA's publications, including the monthly Firm Name: I VOICEfor the Defense, with its "News & Business Telephone: I Notes" on current activities, legislative

I summaries and other legal news. Date Admitted to State Bar of Texas Admitted to Practice in: Law School (Name, degree, date)

College (Name, degree, date)

(If student, expected date of graduation) Professional Organizations in which applicant is member in good standing:

A monthly SIGNIFICANT DECISIONS RE- PORT of important cases decided by the Court of Criminal Appeals. . .now included as a pre-punched, centerfold snapout for your library.

*Use of TCDLA Brief Bank service. Outstanding educational programs featuring recognized experts on practical aspects of defense cases. TCDLA and the State Bar annually present many seminars and courses in all parts of the state. An organization through which criminal defense lawyers can formulate and express their ~os i t ion on leeislation. c'onrt reform. imnortant , .

Have you ever been disbarred or disciplined by any bar association, or ; affectingrights defendants through

are you the subject of disciplinary action now pending I amicus curiae activity and other matters ! affecting the administration of criminal justice I in Texas.

(Date) (Signature of Applicant) I I

I, a member of TCDLA, believe this applicant to be a person of I professional competency, integrity, and good moral character. ?IyEXAs The applicant is actively engaged in the defense of criminal cases.

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