in this issue - voice for the defense online...the proposal would double the fees in some instances,...

IN THIS ISSUE

ARTICLES REGULAR FEATURES NEWS

To Inc. or Not to Inc. Minutes of August 12 Board Lawyer Claims Poor Can't Get . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Louis Dugas, Jr., Orange .4 Meeting. .3 Effective Counsel .3

. . . . . . . . . . . . Cross-Examination Editor's Corner .4 Sam Houston Clinton, President's Report. . . . . . . . . .33 Austin. . . . . . . . . . . . . . . . . 34

OFFICERS

President George Luquette Housro~z Pre~ident-Elect Vincent Perini Dollos First Vice-President H a w Nass Son Antonio Second Vice-President Robert Jones Austin Seererory.Treoawer Charles McDonald Woeo Asst Secretory-Treasurer Gerald Goldstein son A,,t0,,10

DIRECTORS

Jack Beech Fort Worth David Bires Houston Clifford Brown Lubbock RusseU Busby Anzorillo Charles Butts Son Antonio Raymond Caballero El Poso Antonio Cantu Sav Antonio David Carlock Dollos Waggoner Carr Austin M e n Cazier Sun Antonio Anthony Constant Corpus Cilt i~ti Eugene DeBuUet Fort Wortl~ Louii Dugas Orortge W. V. Dunnam Wneo F. R. (Buck) Piles, Jr. Tyler Keny PitzGerald Dallas

Michael Gibson Dollos Grant Hardeway Hou~ton Oliver Heard, Jr. Son Antonio Jan Hemphi Dollos Clifton Holnies Kilgore Stuart Kinard Hou~ton L. J. (Boots) Krueger Liberty Edward Mallett Houston Pat Priest S m An touio Charles Rittenbeny Amarillo Robert Salinas Mereedes Thomas Sharpe Brownsviile Richard Thomton G o l ~ e ~ t o n Doug Tinker Corpus Christi Stanley Topek Houston Peter Tones, Jr. Son Antonio Stanley Weinberg D~IIPs Francis W~lliarns Houston Rodger Zimmeman Allstit, Ronald Zipp Edinbur*

ASSOCIATE DIRECTORS

Keith Alaniz Son Antonio Richard Andmson Dollos James Bob0 Odessa Charles Burton Austin Richard Hanison Dallas Bennie House Houston

C. W. (Robbin) Pearcy Son Morcos Lamy Sauer Hosston Willis Taylor Lubbock Michael Thomas Fort Worth R. L. Whitehead Lotlgview

PRESIDENT'S ADVISORY COMMITTEE

Leon Jaworski Housto#t Louie Welch Houston Morris Jaffey Dallas Roy Butler Austin Noman Brinker Dallas

PAST PRESIDENTS

Frank Maloney Austin. 197'1'1-1972 Anthony Priloux Howton, 1972-1973 Phil Burleson Dollm, 19 73-1 9 74 George Gilkerson Lubbock. 1974-1975 David Evans San Antonio, 1975-19 Weldon Holeornb Tyler, 1976-1 977 Emmett Colvin Dnllos. 1977-1 978

Clif Holmes Managing Editor

Marvin 0. Teague Editor, "Significant Decisioas"

stre&, Suite 211, st st in, Texas 78701. Phone (512)478-2514. VOICE for theDefease Is pub- lished monthly by the Texas Criminal Defense Lawyers Associa- tion. All articles and other editorial contributions should be addressed to the Editor, Ctif Holmes, Box 1073. Kilaore. Texas 75662. BusC ness correspondence, advertising inquiries and contracts, send to Dick Dromgooie, ARTFOKMS AGENCY, Box 2242, Austin, Texas 78768, (512) 451-3588. Annual subscription rate for members of the asociation is $5, which is included in dues. Non- membersubscriptian-$10 per year; single e o p y 4 2 . 5 0 . Second class postage paid at Austin, Texas.

Texas

Criminal Defense Lawyers

Association OCTOBER 1978

MINUTES OF BOARD OF DIRECTORS MEETING LAWYER CLAIMS POOR CAN'T GET EFFECTIVE COUNSEL

MEMBERS PRESENT

EXCUSED ABSENCES

UNEXCUSED ABSENCES

BUSINESS

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION BOARD OF DIRECTORS MEETING

SAN ANTONIO AUGUST 12,1978

President Luquette called the meeting t o order. The roll was called. I t was established that a quorum was present.

George Luquette, Harry Nass, Charles McDonald, Gerald Goldstein, Jack Beech, David Bires, Charles Butts, Anthony Constant, Gene DeBullet, Louis Dugas, Buck Files, Michael Gibson, Grant Hardeway, Oliver Heard, Jan Hemphill, Clif Holmes, Boots Krueger, Edward Mallett, Thomas Sharpe, Richard Thornton, Dong Tinker, Stanley Topek, Stanley Weinberg, Rodger Zimmerman, Ronald Zipp, Bennie House, Richard Anderson, Larry Sauer, James Bobo, Michael Thomas, C. David Evans, Weldon Holcomb, Pat Priest.

Vincent Perini, Robert Jones, Clifford Brown, Russell Busby, Tony Cantn, David Carlock, Waggoner Carr, Allen Cazier, Kerry FitzGerald, Stuart Kinard, Robert Salinas, Pete Torres, Francis Williams, Keith Alaniz, Robbin Pearcy, Emmett Colvin, Richard Harrison.

Raymond Caballero, W.V. Dunnam, Charles Rittenberry, Willis Taylor, Charles Burton, R.L. Whitehead, Frank Maloney, C.Anthony Friloux, Phil Burleson, George Gilkerson.

The minutes of the July 15, 1978, board meeting were approved with a minor change after discussion from the floor. President Luqnette discussed a t length the past actions of the Executive Committee. Minutes of the July 29, 1978, Executive Committee meeting were distributed t o the board. Much discussion followed, regarding past problems of the Association; and the solutions t o these that have resulted from the meeting. The budget was dis- c~ased in a general fashion, with no action being taken a t this time; because the monthly operating expense had previously been set.

The San Antonio membership drives, headed by David Evans had been very successful. The Drive ending on July 26 had acquired approximately $2,000.00, and the membership drive before this board meeting on August I l th. , had produced approximately $850.00. All directors working on these drives were to be com- mended for their hard work for the Association. Discussion continued concerning the Dallas membership drive to be led under the direction of Jan Hemphill. It was planned to be held on August 22nd before the next board meeting, with a cocktail party that night organized by Michael Gibson.

Committee reports followed; with Clif Holmes, Editor of the VOICE again stating his need for more advertising, He also requested that the directors send t o him articles that could be reprinted in the VOICE.

President Luquette reported that the Amicus Curiae Committee had received its first case. It concerns whether or not a District Judge, before indictment, could increase a bond before a Justice of the Peace. The Letter requesting filing of an Amicus Curiae brief in the Association's behalf will be given to David Ziegler of Houston.

The next CDLP skills course t o be held 1n Houston, September 7th & 8th, was discussed regarding a possible Houston membership drive.

(Continued on page 35)

Austin (UPI) 9/29/78 Many poor people accused of crimes in

Texas are not receiving effective legal representation because the attorneys appointed for them are young and inexperienced, the president of the Texas Criminal Defense Lawvers Association said Thursday.

George Luquette of Houston told the ~ o u s e ~ C r i m i & Jurisprudence Committee attorneys lose money by accepting ap- pointments to represent indigent defendants under the present system of fees for court-appointed attorneys.

"The fee schedule is way too low," Luquette said. "I do not believe across the state they aregettingeffective counsel.

"Not every criminal is Cullen Davis, and Racehorse Haynes or Percy Foreman are not there to represent them. Con- sequently, criminals with appointed counsel are getting young and inexperienced lawyers."

Under the present fee system, court- appointed attorneys receive a maximum of $50 per courthouse appearance, and can be paid for only one appearance per day on behalf of indigent clients.

"I cannot go to the courthouse and represent any criminal for $50." Luquette said.

Judge Chuck Miller of a Dallas County criminal court a t law presented the committee a proposed revision of state law dealing with fees and activities of court- appointed attorneys, and said the plan has the backing of the State Bar's Crimi- nal Law Section.

The proposal would double the fees in some instances, provide for payment for appeals handled by the coutt- appointed attorneys and require mar- ginally indigent defendants t o pay part of the attorneys' fees.

Miller told the House committee the Bar panel also preferred that discretion t o choose the attorneys appointed to handle cases for indigent defendants be taken out of the hands of trial judges, but said such provisions were omitted from the proposed legislation because judges oppose it.

Richard Anderson, a Dallas attorney who worked with a Bar committee draft- ing the bill, said much of the current system of choosing court-appointed attorneys involves political patronage.

"Some judges will appoint what we consider heavyweight attorneys, and some judges will not appoint the so- called heavyweight attorneys because they don't want to be hassled in their court- room," Anderson said.

VOICE for the Defense/October 1978

Editor5 Corner

Sunset, hell. What I saw appeared closer to midnight. We've broached the subject of the Bar's current situation on several occasions in this column. We've yet to receive the first response from our membership concerning the subject. The hearings in September at which the Sunset Commission sought "input" from the public at large demonstrated graphically the "esteem" in which we're held by many segments of the population. I was more than

surprised that little or no testimony was offered by members of the Bar at large. While many ex-Bar officials offered their reasoning, few "just lawyers" appeared. Our always stellar performer, Director Waggoner Carr, offered wen- reasoned support for the continuance of the right to a jury trial in grievance matters. Travis Shelton, another TCDLA member and former President of the State Bar, presented pertinent testimony. But, in my opinion, the salvation of a viable Bar organization will come from the membership at large, if at all. We should not fool ourselves that well- known attornevs can c a m our leeis- lative football, Lnassisted. if we are-to preserve a Bar organization which can serve the needs of our profession while also protecting and upholding the rights and interest of the general public, we have t o get involved in the process. The legislature is no longer "lawyer domina- ted'-a majority are non-lawyers. Both presiding officers in the legislature are non-lawyers. When presented, proposed legislation affecting the Bar will be viewed not primarily by lawyers, but

by a real cross section of public opinion. God forbid, our CLIENTS? How do we communicate to them that no purpose can be served by throwing the baby out with the bath water? What pro- posals can we make which would assure a bar organization dedicated to professional competence, sure, efficient justice, and the public good? I don't have the answers. But, brethern, we don't have long t o find them.

The organized Bar has been under much criticism of late from almost every direction-50% incompetent (Burger, C.J.), minimum fee schedules = price fixing ( V W i a Bar Case): advertising by lawyers-is O.K. (or is it?) (US. u p . Ct.). As professions go, I suppose these past few years have marked "our turn in the barrel." We're smart enough-and competent enough-to formulate and institute answers for these problems. I don't believe we need a superimposed bureaucracy to handle that chore. I don't believe you do, either. Let us know.

Ed.

TO INC. OR NOT TO INC. Louis Dugas, Jr., Orange

Texas Law, as do the laws of a number of other states, provides for the forma- tion of professional corporations. Since I practice law in Texas, I am vaguely familiar with the Texas Statute and have no acquaintance, speaking or otherwise, with the laws of other states dealing with professional corporations.

I became interested in the subject of lawyers forming corporations when I looked around my community and discovered most of the firms in my town had incorporated. I figured there must be some advantage to being incorporated and started asking questions. The first lawyer I asked said it enabled him to own a car through the corporation. The next lawyer said his accountant suggested he do so. A third said it enabled him to lease his building to the corporation. So far I had received only isolated responses, none of which had me panting to incorporate my office. Next I asked my accountant if he knew of any good Ieason for me to incorporate-"any good reason" being one which would put more money in my pocket. The accountant said it would enable me to invest more in IRA. I asked him if he had any

inside information that the Irish Re- publican Army would win out in the dispute in Northern Ireland. Sarcasm dripping on my desk, he informed me that IRA was a pension plan formulated by the Federal Government for self- employeds. He furthered my education by telling me there was another pension plan for richer-self-employeds titled "KEOGH"; and, if incorporated, I could contribute more t o a retirement plan. All of which sounded great, but would it stop my Social Security pay- ments, I asked. "Negatory" was his answer. I thought about his retirement pitch for all of a second. Did Inc. put more money in my hands now? He never told me, so I did some reading of the IRS Code. This is like a first grader reading a text in Greek. However, I discovered a couple of jewels. One of which is that if you, as an individual, make at least 50 grand, you are taxed at the same rate as a corporation.

Some lawyers kept saying you could set your salary, leave the rest of the money in the corporation and borrow it against next year. I discovered two areas of problems. One, you could have

your salary reset by IRS if they decided you were drawing too much. Second, if you let the money accumulate in the corporation beyond the reasonable needs of the business, then you become subject to another tax as a penalty. I decided then and there as far as taxes went, I would remain unincorporated.

My thoughts then turned to the cor- porate statutes or statutes governing corporations. The professional corporation statute is silent but the business corporation act requires resolutions granting authority to perform certain acts. As a professional corporation, did I need to pass a resolution authorizing me to file a lawsuit? What about the members of the corporation? Must there be a resolution authorizing them to represent a client in Court? What about Motions? Are they covered by the resolution? Further, how would the pleadings be signed? Does the president sign the pleadings as Joe Jukes, President; the Vicepresident as R. Rich, Vice-president. and so on? How do you distinguish between the officers? The statute in Texas provides for the issuance of shares which

(Continlrcd on p. 33)

October 1978/VOICE for the Defense

I 1

FROM THE COURT OF CRIMINAL I APPEALS I

Marvin 0. Teague: Editor

SEPTEMBER, 1 9 7 8 VOLUME V, NO. 1

WELL, SPORTS FANS, HERE I T I S , THAT TIME OF THE YEAR AGAIN. FOOTBALL HAS NOW OFFICIALLY ARRIVED AS HAS THE BEGINNING OF THE NEWYEAR FOR THE COURT OF CRIMINAL APPEALS. BY THE FIRST WEEK'S DECISIONS, DEFENDANTS RESEMBLE THE BOOKIES AS, FROM THE OPINIONS, THE DS AREN'T OFF TO A GOOD START (22 REVERSALS OR GRANTS OF RELIEF VERSUS 256 AFFIRMANCES OR DENIALS OF RELIEF, ALMOST 8%), AND, FROM m CONFIDENTIAL INFORMANTS, THE BOOKIES ARE DO- ING ABOUT THE SAME AND JUST GETTING IB/Y AND, BUT FOR THE t T ~ ~ ~ ~ l l THEY, TOO, WOULD BE BATTING ABOUT THE SAME. HOWEVER, FORTUNATELY FOR MOST OF US, WE DON'T HAVE T:1E "TEAMS" TO FACE, AS DOES RICE, BUT WE MUST SIMPLY STRIVE TO DO BETTER EVEN I F MANY TIMES OUR "FACTS" RESEMBLE A LACK OF DEPTH ON OUR TEAM'S PART.

AS YOU KNOW, WE HAVE EN BANC, (THE ENTIRE COURT), OPINIONS, AND PANEL DECISIONS. THE NUMBER OF THE PANEL DECISIONS WHICH FOLLOW WERE COMPOSED OF THE FOLLOWING JUDGES:

P a n e l #1, 3 r d Q u a r t e r : J u d g e s Odom, V o l l e r s a n d W. C. D a v i s . P a n e l 8 2 , 2 n d Q u a r t e r : J u d g e s O n i o n , D a l l y a n d V o l l e r s . P a n e l # 2 , 3 r d Q u a r t e r : J u d g e s O n i o n , P h i l l i p s a n d T. D a v i s . P a n e l 83, 1st Q u a r t e r : J u d g e s R o b e r t s , P h i l l i p s a n d V o l l e r s . P a n e l # 3 , 2 n d Q u a r t e r : J u d g e s R o b e r t s , Odom and T. D a v i s . P a n e l #3, 3 r d Q u a r t e r , J u d g e s D o u g l a s , R o b e r t s a n d D a l l y , with J. K e i t h

s u b s t i t u t i n g f o r J. D o u g l a s o n o c c a s i o n .

THESE ARE THE FIRST SUMMARIES SINCE JULY 19, 19.78. I F YOU HAVE BEEN'WONDERING WHERE THE S.D.R. HAS BEEN, I HAVE JUST BEEN DRINKING m HADACOL TO STRENGTHEN m BODY FOR THE COMING YEAR. (YOU KNOW HOW WE HEALTH FANATICS, SUCH AS GEORGE GILKERSON, ARE ABOUT SUCH THINGS).

F I R S T THE WRIT OPINIONS.

EX PARTE CANTRELL, 8 5 8 , 8 6 9 , 9 1 2 0 1 7 8 , P a n e l 112, 3 r d Q u a r t e r , J. T. D a v i s , GETS ONE 2 5 YEAR SENTENCE REMOVED FROM H I S T.D.C. RECORD DUE TO THE DOCTRINE OF CARVING. ( W r i t ~ r a n t e d ) . ( T a r r a n t C o u n t y ) .

COMMENT: D c o n v i c t e d , on p l e a s o f g u i l t y , f o r m u r d e r ( l i fe) , r o b b e r y ( l ife) a n d a s s a u l t t o m u r d e r ( 2 5 years). D d i d n o t attack the m u r d e r c o n v i c t i o n , w h i c h i n v o l v e d a d i f f e r e n t p e r s o n f r o m the o t h e r 2 cases.

VOICE for the Defense/Ocfober 1978

Held, " P e t i t i o n e r ' s convict ion f o r a s s a u l t w i th i n t e n t t o murder wi th mal ice i n Cause //83,403 should have been barred under t h e carving doctrine." The robbery convic t ion occurred p r i o r t o t h i s convict ion. Thus, t h i s convic t ion was void.

LIKEWISE, EX PARTE ISREAL WILLIAMS, #58,644, 9/20/78, P.J. Onion, Panel #2, 3rd Q u a r t e r , GETS' PARTIAL RELIEF A S D PLEAD OUT TO ANURDER AND A ROBBERY WHICH AROSE OUT OF THE SAME TRANSACTION AND BOTH WGRE THE RESULT OF A CONTINUOUS AND UNINTERRUPTED ASSAULTIVE TRANSACTION DIRECTED AT A SINGLE VICTUM. THUS, THE ROBBERY CONVICTION WAS VOID AS VIOLAT-E OF THE DOCTRINE OF CARVING. (Writ Granted). (Dallas County). Held, "The robbery convic t ion i s s e t as ide . I ,

COMMENT: However, t h e o t h e r 60 year convict ion, f o r murder, remains i n e f f e c t .

INFORMATION FOR BURGLARY CONVICTION HELD VOID I N EX PARTE JOHN WAYNE NIXON, 858,868, 9/20/78, J. P h i l l i p s , Panel iI2, 3rd Q u a r t e r , FOR FAILURE OF SAME TO ALLEGE THAT THE ENTRY WAS WITH THE INTENT TO COMMIT THEFT OR A NAMED FELONY OR THAT IT ALLEGE INSTEAD THE ELE- MENTS OF THE FELONY OR THEFT I N THE INDICTMENT. (Writ Granted). (Polk County).

ALSO, SEE EX PARTE MARVIN L. DOBBINS, #58,866,9/20/78, J. W.C. Davis, Panel #1, 3rd Q u a r t e r , where Panel ru l ed t h a t Information f o r Criminal Mischief was void and should b e d h m i s s e d because i t f a i l e d t o a l l e g e t h a t t h e proper ty was destroyed without t h e e f f e c t i v e consent of t h e owner, an e s s e n t i a l element of t h e offense. Thus, TDC o f f i c i a l s were t o b e s e n t a copy of t h e opinion and, by impl ica t ion , t o c u t M r . Dobbins loose from whatever he w a s doing un le s s , of course, h e had been put on t h e p a y r o l l a s a r e s u l t of a l l of t h e i r l a w s u i t s f i l e d s i n c e t h e w r i t was f i l e d . ( W r i t Granted). (Gaines County].

RULE THAT THE S&lF, PRIOR CONVICTION CANNOT BE USED TWICE TO ENHANCE PUNISDENT, AND FACT THAT THIS APPLIES WHENTWO CASES ARE TRIED TOGETHER, SEE EX PARTE ROBERT EARL WILLW?S, i/58,645, 9/20/78,. J. P h i l l i p s , Panel #3, 3rd Quarter , I S GOOD LAW BUT DOESN'T HELP WILLIAMS GET OUT OF THOSE COTTON FIELDS. (Writ p a r t i a l l y g r a n t e d i n one case , but denied i n o t h e r c a s e ) . (Dallas County). (

COMMENT: Here, D plead out on two (2) burglary of motor v e h i c l e cases . The same p r i o r convic t ion was a l l eged i n b o t h cases. D ' s punishment was t h u s en- hanced al though he only got 15 yea r s on each case. Held, "The p r i o r convic- t i o n was proper ly used t o enhance punishment i n t h e f i r s t conv ic t ion b u t t h e same convic t ion should not have been used t o enhance punishment i n t h e second conviction." "The l a t t e r cause must be remanded f o r proper assessment of punishment."

A t l e a s t , however, by t h e opinion, t h e D w i l l g e t t o go back t o D a l l a s f o r a t l e a s t a day and enjoy the s i g h t s of t h e Da l l a s s k y l i n e and s e e how i t has changed s i n c e h e was t h e r e l a s t .

CAN YOU BELIEVE THAT SONE OF THOSE OLD FELONY CONVICTIONS WHERE THE D D I D NOT HAVE COUNSEL, WAS INDIGENT, DIDN'T WAIVE COUNSEL, ETC., ARE STILL COMING IN? D DEVERE JOHN STANFORD, [158,696, 9/20/78, J. Dally, Panel #3 , 3rd Q u a r t e r , GETS WRIT GRANTED ON A 1950 CONVICTION WHERE THE RECORD SO REFLECTED THIS FACT. (Writ Granted). (Guadalupe County).

COMMENT: I wish t h e Court would put i n t h e opinion whether t h e D , i n t h i s t ype s i t u a t i o n , had previous ly made p a r o l e a s , otherwise, i t appears tfw D has been continuously locked up f o r over 28 yea r s and t h i s can, w i thou t more, des t roy t h e confidence t h e . p u b l i c has i n t h e news media a s they have convinced t h e genera l pub l i c t h a t nobody s t a y s t h a t long.

Note: Both t h e TJ and t h e DA i n t h i s case were dead.


THIS IS AN INTEBESTLNG ONE. EX PARTE McCURDY, #58,867, 9/20/78, Panel # I , 3rd Quarter, ALSO WILL GET TO MISS THE RODEO THIS YEAR AS CCA FOUND THAT INDICTMENT FOR ESCAPE WAS FUNDAMENTALLY DEFECTIVE. (Writ Granted). (Dallas County). See Sec. 38.07, P.C.

COMMENT: Here, D was indicted for escape i n tha t he did "knowingly and intent ional ly escape from h i s confinement i n Woodlawn Detention Center where he was i n custody of F. N. Gilbert , a t the said penal ins t i tut ion."

Held, "Here, the Indictment alleged the punishment element under subsec. (c) (21." "It fa i l ed , however, t o a l lege the th i rd element of the underlying offense a s those elements a r e l i s t e d i n Garcia, 537 (2) 930." "The Indictment is therefore f a t a l l y defective and pe t i t ioner i s en t i t l ed t o relief."l&%xtng element was "under a r r e s t fo r , charged with, or convicted of a felony".

COMMENT: A s everyone knows, there i s always a raging controversy between Dal las i tes and Houstonites as t o which City is the most pro- gressive. In Houston, however, when one mentions Woodlawn, he immediately thinks of a well known cemetery i n tha t City. Perhaps, M r . McCurdy was from Houston and tha t caused him to escape from tha t i n s t i t u t i on when he learned t h a t was where he was going t o be kept.

WAS A FATAL DEFECT, WHICH CAN BE RAISED FOR THE FIRST TIME ON APPEAL" [and by way of Habeas Corpus] ." (Writ Granted). (Hunt County). J. Vollers dissented for the reasons he s ta ted i n Ex pa r t e Canady, 563 (2) 266.

BUT, NOT ALL WRITS WERE GRANTED.

EX PARTE JAMES SMITH, #58,179, 9120178, J. Dally, Panel #2, 2nd Quarter, DIDN'T MAKE IT I N HIS CLAIM THAT SEXUAL INTERCOURSE WAS NOT OR COULD NOT BE CONSIDERED A CRTXIMMAL EPISODE; I.E., THE REPEATED COMMISSION OF ANY ONE OFFENSE DEFINED I N TITLE 7 OF THE PENAL CODE. (Writ Denied). (Taylor County).

COMMENT: The f i r s t pa r t of t h i s Indictment alleged the D unlawfully engaged i n sexual intercourse with a female, whom he claimed t o be h i s daughter. The second p a r t alleged tha t the D "knowingly and intent ional ly during the course of t he same criminal episode caused serious bodily in jury t o t he female."

Held, h he criminal episode referred t o is the a c t of sexual intercourse with t he complaining witness." "We hold that the emphasized phrase cons t i tu tes a su f f i c i en t a l legat ion tha t D knowingly and intention- a l l y engaged i n sexual intercourse."

NOTE: Sec. 21.03(1) provides tha t aggravated rape r e su l t s i f D "causes ser ious bodily injury or attempts t o cause death to t he victum o r another i n t he course of the same criminal episode. I,

VOICE for the DefenselOctober 1978

COMMENT: The reasoning and rat ionale given to reach the desired r e s u l t is d i f f i c u l t , i f not impossible, t o understand a s t h i s Indict- ment spec i f ica l ly attempted t o a l lege three (3) possible criminal offenses:

1 ) Rape

2) Causing Serious Bodily Injury t o another o r

3) Aggravated Rape.

I f , "In order t o es tab l i sh criminal responsibi l i ty for the offense of , the S t a t e must a l lege and prove that the D acted intentional- l y , knowingly o r recklessly," See Childs v. Sta te , 547 (2) 613, and i f t h e word "Unlawfully," i s insuf f ic ien t t o cover t he r equ i s i t e mental s t a t e , see Reynolds, 547 (2) 590, it is d i f f i c u l t t o understand t h i s bootstrapping operation.

I n sum, I honestly believe the prosecutor was trying t o plead the offense of aggravated rape, See Sec. 21.03, P.C., but was drawing, a t the same t i m e , an indictment involving a T i t l e 7 offense, offenses against property, and j u s t got the two screwed up. So, it may be some poor s lob got indicted tha t same day for having repeatedly had sexual intercourse with an insuf f ic ien t check. However, t he Panel did hold its nose on t h i s indictment a s i t did say, "We do not commend i ts use [ i n the future]"

EX PARTE EWING, #58,268, 9/20/78, J. Odom, Panel #3, 2nd Quarter, See a l so 549 C2) 392, ALSO DIDN'T I~AKE I T ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL. (Writ denied>. (Harris County).

COMMENT: Regardless of what you call. i t or how you c a l l it, it s t i l l seems t o me, ( a t l e a s t , t ha t i f one can read a record on appeal, and, regardless of how badly the accused was defended, i f , from a t o t a l i t y of t he circumstances, the D got a " f a i r t r i a l , " whatever tha t may be, then counsel w i l l no t , i n S t a t e Court, a t l e a s t , be held ineffect ive or incompetent. However, keep i n mind our Federal Judiciary and the F i f t h Circui t a re , a t times, not qu i te so kind toward such counsel.

TCT BOO BOOS IN - SMITH, #59,033, 9/20/78, J. T. Davis, Panel /t2, 3rd Quarter, AND GIVES FUNDAMENTALLY DEFECTIVE CHARGE I N AGGRAVATED ROBBERY CASE. (Reversed). (Angelina county) .

Here, D indicted f o r aggravated robbery, i t being alleged, in par t , tha t D I, in tent ional ly and knowingly" placed Warren Garrison i n f ea r of imminent bodily injury. However, TCt charged the jury tha t it could convict the D if they found he "intentionally, knowingly or recklessly caused bodily injury t o Warren ~ a r r i s o n . "

Held, "Consequently, the T C t allowed the jury t o convict D . . . i n a manner of committing robbery which was not alleged i n the indictment." "This charge, then, was fundamentally erroneous and requires reversal of D ' s conviction."

P. J. ONION WRITES OPIETION FOR PANEL #2, 3RD QUARTER, I N McWHERTER, #58,769, 9/20/78, REVERSING CONVICTION WHERE D FIRST ENTERED A PG AND THEN, DURING TRIAL, AFTER STATE RESTED HER CASE AND' PRIOR TO CHARGE BEING READ TO THE JURY, MADE MOTION TO TCT, WHICH WAS DENIED, TO PERMIT H I M TO CHANGE HIS PLEA FROM GUILTY TO NOT GUILTY. (Reversed). (Harris County).

October 1978fVOICE for the Defense

COMMENT: I think, in reading between the l ines , the TCt may have been t rying t o jack with the D's a t t y . but, i n the end, as seen by the reversal , the D ' s a t ty . got t o jack with the TJ.

Held, "A l i b e r a l pract ice prevails i n t h i s state concerning the withdrawal of a gu i l ty plea." "Where a gu i l t y plea is before a jury the accused a t any time before the retirement of the jury may withdraw h i s plea and thus put upon the S t a t e the burden of proving h i s g u i l t beyond a reasonable doubt." "Thus, the accused may a s a matter of r i gh t withdraw h i s gu i l ty pika without assigning reason therefor a t any time bsfore the retirement of the jury, but thereaf ter . however, the withdrawal of the plea would be within t he discret ion of the court."

Also, C C A t s panel ruled tha t harmless e r ro r doctrine not applicable a s urged by the State.

MIGHT MAKE THE D, DOES NOT MAG? HIM A THIEF. (Reversed). (Dallas County).

COMMENT: Here, S t a t e was trying t o revoke D ' s probation claiming he comi t t ed the offense of t h e f t of a purse. Evidence showed that D met two (2) women and a male, who was with the women,in a Dallas nFghtclub. The two ladies went to t h e restroom and the D a lso went t o the same res t - room where several other women were located doing t h e i r thing. D apparently j u s t stood near the s ink and door t o the restroom. One of the women went ins ide one of the s t a l l s with the other woman holding the door closed a s the door was broken. (Apparently, i n Dallas at l ea s t , l i b e r a l thinking does have i ts l imi t s ) . The one who went in- s ide the s t a l l l e f t her purse on the s ink thinking the door holder was watching same. Needless t o say, when the one came from the s t a l l , the D was i n t he process of leaving, with the C/W then discovering her purse t o be missing. D was pursued and accused of s tea l ing the purse but he denied doing t h i s dastardly deed; probably, also denying he would do such a dastardly thing i n such a high c lass place a s t h i s was . TO convince the c/W he was not the t h i e f , he then p a r t i a l l y undressed. Nobody saw the purse i n t he D ' s possession. Now you see i t , now you don't.

Held, "There is no d i r ec t evidence supporting the S t a t e ' s a l legat ions i n i ts motion t o revoke probation." "The chief incriminating circumstance r e l i ed upon by the S t a t e is D ' s presence i n the restroom near Skelton's purse short ly before it was discovered missing." "Mere presence a t the scene of the crime i s not suf- f i c i e n t alone t o show guilt." "Under the present circumstances the S ta te ' s evidence created only a surmise or a suspicion tha t D had violated the condition of probation as alleged and that reasonable minds could a r r i v e a t conclusions other than D ' s gui l t ." Reversed.

COMMENT: It w i l l not be surpr is ing t o see, i n the future , i n Dallas a t l e a s t , a condition of probation for male probationers t ha t they must not go ins ide ladies '

VOICE for the Defenseloctober I978

GUADALUPE COUNTY'S IETHOD OF HANDLING APPEALS I S NOT ACCEPTABLE TO CCA AND PANEL 1113, 1ST QUARTER, I N -9 HOGAN #57,547, 9/20/78, J. P h i l l i p s , ABATES APPEAL. (Guadalupe County).

COMMENT: Here, Panel could not , from t h e Record on Appeal, without d i f f i c u l t y , f i g u r e out when t h e D plead gu i l ty . D had r e t a ined counsel but such counsel l a t e r was allowed t o withdraw whi le case on appeal. Two (2) days l a t e r , D f i l e d a f f i d a v i t of indigency but t h i s was appa ren t ly n o t brought t o t h e TCt's a t t e n t i o n . However, a s t h e D had not proper ly designated any m a t e r i a l s t o be included i n the Record on Appeal, t h e TCt ru l ed t h a t t h i s cons t i t u t ed an abandonment of h i s appeal.

Held, "The t r i a l cour t has no a u t h o r i t y t o u n i l a t e r a l l y abandon D ' s appeal and waive D ' s appeal even though the s t a t u t o r y p rov i s ions f o r t h e p repa ra t ion of t h e record and f i l i n g of D ' s b r i e f had not been proper ly pursued." Case remanded f o r a hear ing t o determine i f D ind igent and/or whether he wished t o f u r t h e r pursue h i s appeal. (Abated). See a l s o Thompson, 1159,357, 9/20/78, J. P h i l l i p s , Panel #2, 3rd Quarter . Abated. Hopkins County.

J ONION, I N MONTGONERY, #57,246, 9/20/78, Panel U2, 31W QUARTER, RULES THERE I S NO FELONY CRIME IN TKXAS FORIIARING A FALSE STATEMENT TO OBTAIN A FIREARM. (Remanded). (Travis County).

COMMENT: Here, S t a t e a l leged a p r i o r Federa l Firearms Conviction, f o r enhancement of punishment purposes.

Held, "A p r i o r f e d e r a l convic t ion used f o r enhancement of ~ u n i s h m e n t , a l though c l e a r l y a fe lony under f e d e r a l law. must a l s o be a n of fense which i s denounced bv t h e l a d Texas a s a felony." r, There is no s p e c i f i c o f f ense set out i n t h e f i r ea rms p o r t i o n of t h e Texas Penal Code t o p r o h i b i t such conduct." Also, this would not c o n s t i t u t e a "governmental record," s e e Sec. 37.10, P.C., a s "The d e f i n i t i o n of "government" does not inc lude t h e f e d e r a l government, bu t only t h e s t a t e , count ies , mun ic ipa l i t i e s , o r p o l i t i c a l subdiv is ions of t h e s ta te ." "It is thus apparent t h a t D could n o t have been s u c c e s s f u l l y prosecuted i n t h e c o u r t s of t h i s s t a t e under Sec. 37.10 f o r making a f a l s e e n t r y i n a f e d e r a l governmental record requi red t o be kept by f e d e r a l law."

Thus, with t h i s holding, one of t h e p r i o r convic t ions a l l eged f o r punishment f e l l , t hus causing a remand t o t h e TCt f o r another punishment hea r ing f o r which t h e maximum punishment w i l l b e 2 t o 20 and a p o s s i b l e f i n e up t o $10,000.00. Undoubtedly, t h e TCt w i l l probably g ive t h e D t h e max of 20 a s by t h i s dec i s ion h e did escape a l i f e sentence.

NOTE: Again, and a s mentioned s e v e r a l t imes before , i f you a r e dea l ing with a h a b i t u a l c r imina l indictment case , always e l e c t t o have t h e j u r y a s s e s s t h e punishment a s i f t h e TCt fo l lows h i s oa th of o f f i c e , h e is going t o g i v e your man o r woman l i f e imprisonment. I f , on t h e appeal , you succeed i n g e t t i n g a new t r i a l on t h e i s s u e of punishment, then you aet a new t r i a l on t h e whole shoot ing match. Here, i f t h e t r i a l a t t o r n e y had done t h i s , t h e D would have g o t t e n a new t r i a l on t h e e n t i r e c a s e r a t h e r t han a remand on t h e i s s u e of punishment.


TJ ADMITTING EXTRANEOUS OFFENSES I N TRIAL OF JONES, #55,823, 9/20/78, J. Dally, Panel # 3 3RD QUARTER, with J. Douglas dissenting without opinion, GETS D JONES A NEWTRLAL. (Re- versed). (Dallas County).

COMMENT: Here, D on t r i a l fo r burglary of ahab i t a t i on with the in ten t t o commit thef t . S t a t e was allowed t o a lso show tha t 3 days before t h i s offense the D broke in to another apartment and raped a woman who t e s t i f i e d t o t h i s extraneous offense. Prosecutor argued and TJ agreed that t h i s l a t t e r offense showed h i s i n t en t t o take property through an a t tack of a woman.

Held, "The S ta t e having alleged tha t D entered the habitation with the i n t en t t o commit t he f t , evidence of an unrelated offense of rape was of no probative value i n establishing that intent." "Moreover, i t has been held tha t where in ten t can be inferred from the a c t i t s e l f , evidence of extraneous offenses is not admissible." Reversed.

Also, not harmless e r ror as D got maximum of l i f e imprisonment.

NOTE: Although bett ing on the admissibil i ty of extraneous offenses is not a s a fe thing t o do a s often-times it is heads it i s admissible and t a i l s it i sn ' t , (and, I personally think a l o t of T J s do f l i p coins on t h i s type issue) , many of the cases where the CCA has reversed a re c i ted i n the opinion.

BUMS V. U.S., 98 S.Ct. 2141, AND GREENE V. MASSEY, 98 S.Ct. 2151, ARRIVE I N AUSTIN AND MANY DS NOT ONLY GET A REVERSAL BUT DISMISSAL OF TREIR CASES AS WELL. A r t . 44.25, C.C.P., is, i n par t , unconsti tutional.

UNDERWOOD, #55,368, AND AYERS, 855,365, 9/20/78, P.J. Onion, Pan-el 82, 3rd Quarter, GET REVERSALS WHERE THEY W E R ~ A R G E D AND CONVICTED FOR POSSESSING GRASS OF MORE THAN 4 OUNCES BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF POSSESSION. (Reversed and Dismissed). (Travis County).

COMMENT: These a r e companion cases, although by separate opinions, where each D was charged with possession.

In Underwood, supra, the f a c t s showed only the following resu l t ing i n the following holding:

"Appellant was found i n the l i v ing room of the house a t t he time of the search. There was no showing that he had leased o r rented the house, had the u t i l i t i e s i n h i s name, or shared jo in t possession of t he house. None of h i s personal clothing o r possessions were shown to be i n the house. No cash o r contraband was shown t o have been found on h i s person. The personal papers and mail which were seized bearing a d i f fe ren t address were not shown t o r e f l e c t h i s name. There was no evidence of fu r t i ve gestures toward t h e contraband when the o f f i ce r s entered the premises, no attempt t o escape, and no evidence of any marihuana smoke, no evidence of appellant being under the influence of marihuana or other drugs, and no incriminating statements a t the time of a r res t . The record does not es tab l i sh appellant 's posi t ion i n the l iv ing room-dining room so a s t o show close proximity or pla in view. Further, the m e r e presence of an accused near where the prohibited items a re found, standing alone, is not su f f i c i en t t o show possession.


In B U r b v. U.S., 98 S.Ct. 2141, 57 L.ed2d 1, the U.S. Supreme Court by opinion on June 14 , 1978, held t h a t the "Double Jeopardy Clause precluded a second t r i a l once the reviewing court has found the evidence lega l ly insufficient. . . ." I n Greene v. Massey, 98 S.Ct. 2151, 57 L.3d2d 15, handed down the same day a s the decision, the Supreme Court held, "Since the const i tut ional prohibition against double jeopardy is fu l ly applicable t o s t a t e criminal proceedings, Benton v. N'd. I395 U.S. 784, 89 S.Ct. 2056, 23 L.3d2d 7071, we a r e bound t o apply the standard announced i n Burks t o t he case now under review.

Having found tha t reversal must r e su l t i n the ins tan t case since we concluded tha t the evidence is insuf f ic ien t t o support the conviction, the Supreme Court's decision i n Burks v, U.S. and Greene v. Massey d i c t a t e t ha t no further prosecution be had i n t h i s cause."

Likewise, in Ayers, supra, the f a c t s showed only the following resu l t ing i n an iden t ica l holding:

Appellant was found i n the bathroom of t h e house a t t he t i m e of the search warrant. There was no showing tha t he had leased o r rented the house, had the u t i l i t i e s i n h i s ;lame, o r shared j o i n t possession of the house. None of h i s personal clothing o r possessions were shown t o be i n the house. No cash o r contraband was shown t o have been found on h i s person. The personal papers and mail which were seized bearing a d i f fe ren t address were not shown t o r e f l e c t h i s name. There was no evidence of fu r t i ve gestures toward t h e contraband when the of f icers entered the premises, and no evidence of any marihuana smoke, no evidence of appellant being under t he influence of marihuana or other drugs, and no incriminating statements a t the time of the a r res t . However, the f a c t t ha t appellant was found i n the bathroom with a weapon i n h i s hand seems t o be r e l i ed upon by the S t a t e as an inference of an attempt t o escape. We conclude tha t appel lant ' s presence i n the bathroom with a weapon, which he surrendered without res is tance, is insuf f ic ien t , standing alone, t o affirmat?-ely l i nk him t o t he contraband which was seized i n other pa r t s of t he house.

ALSO, I N ANOTHER POSSESSION CASE, DAMRON, #56,031, 9/20/78, P.J. Onion, Panel 82, 3rd Quarter , CASE REVERSED AND ORDERED DISMISSED BECAUSE EVIDENCE INSUIT. (Reversed). (Hall County).

C O m N T : The f ac t s showed the following and the Panel answered the question posed i n the negative:

I, In t he ins tan t case the appellant was (1) not a t t he place searched a t t he time of t he search, and (2) there were other persons present a t the t i m e of the search and shown t o be l iving there so appellant was not i n exclusive possession, (3) t he marihuana was found i n a closet i n a bedroon without any showing i t was appellant 's Iiedroom o r only bedroom i n the house and no showing of appellant 's personal belongings i n the c lose t o r bedroom o r even the observation of any

men's clothing ete., and (4) appellant was not found i n possession of any contrabana a t the time o r a r r e s t nor (5) was he under t h e influance of any narcot ic and (6) he did not make any incriminating statements ,

It is t r u e t h a t i t was s t i p u l a t e d t h a t t h e premises were t h e community proper ty of t h e appe l l an t and h i s w i fe and t h e r e were r e fe rences t o t h e f a c t t h a t t h e house was h i s res idence , and t h a t h i s w i fe and c h i l d were p resen t a t t h e t i m e of t h e search . There was no evidence, one way o r t h e o t h e r , whether o the r persons l i v e d o r f r equen t ly s tayed the re . The ques t ion thus presented i s whether t h e S t a t e has e s t a b l i s h e d an a f f i r m a t i v e l i n k from the appe l l an t t o t h e marihuana found when he was n o t present under the p a r t i c u l a r circumstances of t h i s case . S t a t ed another way, is the evidence s u f f i c i e n t t o s u s t a i n a convic- t i o n of an accused, who i s not p re sen t a t t h e t i m e of t h e sea rch , where contraband i s found i n h i s res idence under t h e above described condi t ions?" NO.

LIKEWISE, I N ROBINSON, #54,915, 9120178, J. T. Davis, Panel # 3 , 2nd Quarter , THE PANEL RE- VERSED A CIRCUMSTANTIAL EVIDENCE BURGLARY OF A HABITATION CONVICTION AND, BECAUSE OF = AND GREENE, SUPRA, THE CASE WAS ORDERED DISMISSED. (Reversed and ~ i s m i s s e d ) . (Wichita County).

COtIMENT: The f a c t s , r a t h e r d e t a i l e d , a r e s e t out i n t h e opinion. However, Judge T. Davis, f e e l i n g so r ry f o r news le t t e r e d i t o r s , s e t out a good s u m a r y of t h e f a c t s which a r e a s fol lows wi th t h e Cour t ' s holding:

,I By way of summation, t h e incr iminat ing f a c t s show t h a t t h r e e b l a c k males were a t t h e scene of t h e burglary around 8 a.m. on t h e day i n ques t ion . Appellant was i d e n t i f i e d by t h e wi tness Davenport a s being a t a l o c a t i o n l e s s than a m i l e from t h e burglar ized house t h a t morning. Appellant was a r r e s t e d i n t h e company of George Nixon, Jr. and William Robinson about 11 a.m. t h e same morning. Nixon was i d e n t i f i e d a s one of t h e t h r e e persons a t t h e scene of t h e crime. William Robinson's f o o t p r i n t matched a p r i n t found a t t h e M i t c h e l l res idence .

Presence i n t h e v i c i n i t y of a crime i s n o t s u f f i c i e n t t o s u s t a i n a convic t ion . Ysasaga v . S t . , 444 S.W.2d 305. We f i n d t h a t t h i s f a c t o r , along wi th a l l of t h e o t h e r circumstantances i n t h i s cause, amounts t o nothing more than s t rong susp ic ion o r a p r o b a b i l i t y t h a t appe l l an t committed t h e cr ime charged. W e conclude t h a t t h e evidence does n o t exclude a l l o the r reasonable hypotheses except a p p e l l a n t ' s

I I g u i l t and f i n d t h e evidence is i n s u f f i c i e n t t o support t h e convic t ion .

ALSO, JOHNSON, #54,642, 9/20/78, J. Odom, Panel # 3 , 2nd Quarter , GETS A LIKE RESULT W A CREDIT CARD ABUSE CASE. (Reversed and Dismissed). (El Paso County).

COMMENT: This i s an i n t e r e s t i n g case and involved a c r e d i t card , which had been s t o l e n , be ing used a t t h e Montana Mining Co. It seems, by t h e f a c t s , e i t h e r i t was l a t e i n the day o r t h e prosecutor had h i s mind on something e l s e a s t h e w a i t r e s s who t e s t i f i e d was unable t o t e s t i f y t o t h e name t h a t was on t h e c r e d i t card and was not asked by t h e D.A. t o i d e n t i f y it . The cash ie r could n o t i d e n t i f y t h e D a s t h e person who presented t h e ca rd . The S t a t e thus f a i l e d t o show t h a t t h e D presented a c r e d i t card belonging t o another t o t h e w a i t r e s s who i n t u r n gave i t t o t h e c a s h i e r who i n t u r n c a l l e d t h e p o l i c e . The c a s h i e r t e s t i f i e d h e got t h e card from someone who was n o t i d e n t i f i e d o r c a l l e d a s a wi tness .


Held, "There i s no evidence ident5fying the card presented t o Thomas (the waitress1 a s the Griff in (name of r e a l owner1 card, nor is there any evidence connecting D with the Gr i f f in card introduced by the State.'' However, the defense almost saved the day f o r the S ta te a s a defense witness t e s t i f i e d tha t 3 days before, i n New Orleans, she saw a person who ident i f ied himself a s Gr i f f in give the D a l i k e c red i t card. ( "There i s no evidence, however, tha t t h i s card was the one presented i n E l Paso, nor did t h i s witness identify St. 's Exh. 1 a s the card she saw."

COMMENT: A l l I can say is tha t i f t h i s D was the cu lp r i t , I'll bet h i s par t ic ipat ion i n our jud ic ia l system cost him a l o t more than the amount on the Montana Mining Co. check.

CCA IN HAMMETT, 1158,453, 9120178, J. Odom, En Banc, BREAKS NEW GROUND I N DEATH PENALTY CASE AND D GETS NEW TRIAL BECAUSE, THOUGH D ASKED THE TCT TO APPOINT A PSYCHOLOGIST OF THE D'S CHOICE TO TESTIFY AS TO THE PROBABILITY THAT HE WOULD COMMIT FUTURE ACTS OF VIOLENCE, THE TJ REFUSED. (Reversed and Remanded for a new t r i a l ) . (Brazoria County).

COMMENT: The D ' s motion and h i s ground of e r ror a r e s e t out i n the opinion.

Held, "The issue i n t h i s case is not the exclusion of evidence, a s it was i n Robinson, 548 (2) 63, but ra ther , the denial of a motion sought t o permit D t o secure such evidence i n the f i r s t place."

"If the sca les of j u s t i ce a r e t o weigh equal regardless of wealth; i f the hand of j u s t i ce is t o extend as f a r t o those who cannot afford t o h i r e an expert a s t o those who can; i f the S ta te is not t o have exclusive access t o experts, i f the jury is t o hear " a l l possible relevant information about the individual defendant whose f a t e i t must determine," u, and not hear only those experts ( of the prosecutorial persuasion; i f fa i rness and open inquiry a r e to characterize the jud ic ia l exploration of the accused's mental condition and possible future conduct, then the indigent cap i t a l murder defendant must have equal access t o expert opinion psychological or psychiatric testimony from some expert of h i s

I , reasonable choosing, but not necessari ly h i s f i r s t choice.

"We hold denial of appellant 's motion fo r appointment of a psycholo- g i s t was revers ible error."

COMMENT: This i s t r u l y one time one cannot c a l l the CCA a hypertechnical Court as the majority did not require t h e D to show tha t i f the TCt had granted the motion he could have gotten someone, the name of t ha t person and what t h a t person would have t e s t i f i e d t o i f he had examined the D. I n f ac t , t h i s jus t didn ' t sound l i k e the CCA a s t o what a D usually has t o show t o per- f e c t h i s e r ror . Maybe it was the f ac t t he case was a death penalty case.

J. Vollers, wri t ing a lone dissent ing opinion, said, i n my words:

1. The Ground of Error was not any good; 2. The Ground of Error submitted and the Ground of Error t h e Court

wrote on a r e not the same and, of course, grounds of e r ror , l i k e objections made a t t r i a l and on appeal, must be the same.

3. Another Doctor, who was appointed, examined the D.


However, though scary, he perhaps h i t the n a i l on the head,as t o a val id objection t o the death penalty; i .e., can we afford i t i f tha t kind of accused is en t i t l ed t o a "millionaire's defense," when he said:

I' It is u t t e r foolishness t o suggest tha t our system of jus t ice can afford the indigent defendant with expert testimony t o same extent tha t a mil l ionaire who is accused of crime can afford for himself. I t i s sheer fa l lacy t o suggest tha t we can afford t o allow an indigent defendant to seek examinations u n t i l he f inds a psychiatr is t who w i l l t e s t i f y favorably for him. It is an u t t e r disregard of our s ta tutory process and our pr ior cases t o suggest tha t when a t r i a l judge appoints a dis interested expert the accused is denied the opportunity t o pze- sent an expert other than those "of prosecutorial persuasion."

NOTE: By t h i s ra t ionale , Cullen Davis must now declare bankruptcy. ' BUT, ROBERTS, 855,662, 9120178, P. J. Onion, Panel 92, 3rd Quarter, A D.W.I. CASE, ONLY GETS A REVERSAL BUT NO DISMISSAL. (Reversed and remanded for a new t r i a l ) . (Bell County).

COMMENT: Here, D charged with D.W.I. S t a t e did not, by the opinion, c a l l any witnesses but simply offered and had admitted in to evidence a "Texas Peace Officer 's Accident ~ e p o r t , " which indicated that D was the operator of a vehicle. Attached to t he report was an a f f idavi t of the a r res t ing off icer , who had s ince l e f t Bell County and joined the Marine Corps, who s ta ted tha t he observed D behind the wheel of the vehicle imed ia t e ly a f t e r the accident and tha t D appeared t o be intoxicated.

Held, "The court erred i n admitting the report i n to evidence" and, without the report , t h i s made the evidence insuff ic ient .

Why was the report inadmissible? Hearsay? No. Sec. 47 of A r t . 6701d, V.A.C.S., provides tha t accident reports are made without prejudice and a r e privileged and confidential .

COMMENT: From a close reading of t h i s opinion, a s t o the f ac t s , i t simply appears tha t the T J had ju s t f inished reading something tha t some prosecutor had prepared f o r t he next Legislature that I would c a l l , "The Elimination of the Witness Act," and thought t h i s was something the l a s t Legislature had passed. Otherwise, nothing e l se makes sense about t h i s case. Why, however, wasn't the case ordered dismissed?

CCA TELLS LOUIE WAINWRIGHT, I N CORTEZ, #58,630, 9/20/78, J.T. Davis, En Banc, With Judges Douglas, Dally and W. Davis 3issenting without opinion, THAT FLORIDA'S AUTHENTICATION AND CERTIFICATION OF PEN PAPERS CERTIFICATE IS NOT ANY GOOD I N TEXAS AND REVERSES A DEATH PENALTY CONVICTION. (Reversed). (Nueces County).

COMMENT: Louie Wainwright, i n case you don't know, is the equivalent of W. J. Estel le , and i s the Director of the Florida prisons which a r e still operating i n t h a t State.

A t the punishment stage, the S t a t e offered and had admitted i n t o evidence, over objections, several p r ior convictions from the S t a t e of F l o r i d a v i a a "pen packet".

~ e l d , " ~ n t h e in s t an t case, there i s no c e r t i f i c a t e by a judge of a court of record i n which the record is kept cer t i fying the a t t e s t i n g o f f i c e r has l ega l custody of the asserted writings. Nor is there a c e r t i f i c a t e from the Secretary of S t a t e of Florida or any otker appropriate of-


f i c i a l cer t i fying a s t o Louie Wainwright's postt ion and t o the f ac t t ha t he has custody of the documents a s asserted i n h i s ce r t i f i ca t e . It i s c lear , therefore, tha t the t r i a l court erred i n admitting St. 's

11 Exh. #45 i n t o evidence. Reversed. /

CCA a l so held t h i s not t o be harmless error .

PANEL OF CCA, Panel #2, 3rd Quarter , I N DECKER, #58,587, 9/20/78, J. T . Davis, RULES THAT UNLESS D PERSONALLY AGREES TO RECOMMENDATION OF D.A., PER ART. 44.02, C.C.P., TJ CANNOT DENY H I M AN APPEAL. (Af f irmed) . (Ector County) .

COMMENT: A r t . 44.02, C.C.P., providespin general, tha t i f there is a plea bargain agreement and the D and h i s at torney agree t o the recommendation of the D.A. and the plea bargain i s approved by the T J and followed, then, except with permission of T J , D cannot appeal h i s case.

Here, T J denied D h i s r i gh t t o appeal because there was a plea bargain agreement which was followed and approved by T J . However, record did not r e f l ec t D personally joined therein. Held, "We construe A r t . 44.02 t o require the D t o personally agree t o the recommended punishment." Need- l e s s t o say, D received no r e l i e f regarding h i s claim t h a t admonishments of T J , regarding r igh t s one gives up i n the Stipulation form, must affirma- t ive ly appear i n the Record. Thus, very l i t t l e i s still needed f o r a TJ to comply with A r t . 26.13, C.C.P.

J. PHILLIPS DISCUSSES RAMIFICATION OF BREATHALYZER TEST RESULTS AND ADMISSIBILITY THEREOF I N SLAGLE, J54,947, 9/20/78, J . Ph i l l i p s , Panel Q2, 3rd Quarter. (Affirmed). CTravis County). (

COMMENT: The long and short of t h i s opinion is tha t 1 ) the administration of the breathalyzer i s okay, 2) it is admissible and 3) the usual presumption inst ruct ion doesn't have anything wrong with it .

The problem with t h i s type case i s tha t it got t o Austin too l a t e . If i t had been the f i r s t case to be decided involving the breathalyzer, it makes one wonder what the l a w would be today. However, it i s n ' t and wasn't so we a r e now stuck with breathalyzer resu l t s .

NOTE: I f you are handling an appeal and as f a r a s you can t e l l it is a case of f i r s t impression, t r y t o get Amicus b r i e f s f i l e d , backing you up, a s we should never forget t ha t the law the Court makes today i n your case may very well decide what law we must follow 10 or 20 years from now and, as we a l l know so well, r a r e l y is a law favorable t o those accused of crime passed by the Legislature. And once the CCA has wri t ten on an i s sue and continued t o w r i t e s imi la r opinions on tha t issue, it i s very d i f f i c u l t t o get a change o r t o g e t past cases overruled.

FOR AN INTERESTING CASE~INVOLVING D'S COMPETENCY TO STAND TRIAL, WHICH I DON'T BELIEVE WILL STAND MUSTER DOWN THE ROAD, READ D I N N , 1154,939, 9/20/78, P. J. Onion, Panel #2, 3rd Quarter (Affirmed). (Nueces County). 1

October 1978/V01CE for the Defense

COMMENT: Whether i t was t a c t i c s o r jus t what is not shown by the opinion. However, i n t h i s Aggravated Assault case, t he evidence adduced during t r i a l appeared ra ther overwhelming, t o me a t l e a s t , to r a i s e an issue a s to the D'S competency. However, no issue was made of t h i s pre- t r ia l . During t r i a l , the evidence ref lected bizzare behavior on the par t of the D a t the time of the commission of the offense. After stabbing two persons the D then f led t o h i s mother-in-law's house where he asked her t o k i l l him. The defense during t r i a l was insanity. Other witnesses t e s t i f i ed D ' s conduct w a s "weird or hard t o believe," "acted l i k e an insane man," "acted l i k e a crazy person," "out of h i s mind," "he l o s t h i s mind." However, jury chose not t o believe t h i s defense.

During t r i a l , a s a r e su l t of t h i s widence, TJ,sua sponte, 3 times, inquired of D ' s a t t y . as t o the D ' s competency t o stand t r i a l . of a T J a c t s sua sponte, you have got t o believe he thinks something i s wrong).

Arresting o f f i ce r t e s t i f i e d D wasn't crazy; he was ju s t mean.

T J , apparently, a f t e r hearing this testimony then decided he had be t t e r work on the appeal record and entered a finding tha t he found the D competent t o stand t r i a l .

D ' s t r i a l a t t y . then asked f o r appointment of a psychiatr is t , which was denied.

Panel of CCA ruled, speaking through P. J. Onion:

"We a re no t here confronted with a s i t ua t ion where the T J f a i l ed t o h a l t the proceedings on h i s own motion or the question of the sufficiency of the evidence t o cause the judge to h a l t the proceedings t o make inquiry ." Thus, no e r ror found .

COMl-lENT: With the evidence tha t i s s e t out i n the opinion, it is d i f f i c u l t t o understand how Sec. 2(b) of A r t . 46.02, C.C.P., was not invoked: "If during the t r i a l evidence of the D ' s incompetency is brought t o the a t t en t ion of the court from any source, the court must conduct a hearing out of the presence of t he jury t o determine whether or not there i s evidence t o support a finding of incompetency t o stand t r i a l . " I f a finding of incompetency t o stand t r i a l occurs, then a new jury panel s h a l l be impaneled t o determine the i s sue of competency t o stand t r i a l . Compare Hassler v. S ta te , 473 (2) 513, not c i ted i n the opinion.

I think the Courts a r e not through with M r . Dinn and we w i l l probably s e e t h i s case i n Federal Court a t a l a t e r date. During argument, t r i a l counsel f o r the D made the argument t h a t the reason the defense did not bring a psychia t r i s t was because " that would cost a t l e a s t $250 and t h a t ' s not available. "

REMEMBER: I f your c l i e n t enters a plea of "true" t o enhancement a l legat ions , h e cannot be heard t o complain t h a t t he evidence, on t h i s i s sue , is insuf f ic ien t on appeal.

, q. DALLY, I N NORRIS, 854,686, 9/10/78, Panel 1112, 2nd Quarter, WRITES O P I N I O N UPHOLDING CITY 3F HURST'S SPEEDING ORDIANCE. (Affirmed). (Tarrant County).

VOICE for the DefenselOctoher 1978

COMMENT: This had t o do with a "school zone" type ordinance. D claimed t h i s ordinance conflicted with S t a t e law and S ta t e regulations. CCA sa id i t

COMMENT: I think what r e a l l y sank the D ' s boat i n t h i s case was that he made a jud ic ia l confession tha t he violated the s ecu r i t i e s law and i t was a l so shown he had t ra in ing i n and could read the Spanish language. Thus, I think h i s contentions, regarding the above, a s well a s h i s complaints about the Indictment, e tc . , probably did not ge t the warm reception he had expected because of t h i s .

COMMENT: However, a s to remoteness of a p r ior conviction used for impeachment, t he "ten year" r u l e i s not absolute. Held, "There being evidence showing a lack of reformation and the subsequent conviction of another felony, the 1961 conviction i s not deemed subject t o the objection of remoteness.

I t

CLEAR ACRYLIC PLASTIC AEROSOL SPRAY PAINT SNIFFS OUT D HOLDER, 1/58, 811, 9/20/78, J. P h i l l i p s , Panel #2, 3rd Quarter, AS REVOCATION ORDER AFFIRMED. (Palo Pinto County). See S ~ C - 42-08> Public Intoxication.

COMMENT: This i s one of those cases where the D, when arres ted, had been dr iving a l l over t h e road. Police Officer t e s t i f i e d tha t "he had experience with (

I, over a thousand individuals who were intoxicated by alcohol or drugs, and,in h i s opinion,the D was intoxicated. ( In looking i n the l a t e s t Texas Legal Directory, Palo Pinto County has 28,505 people. Does t h i s mean tha t 1/29 of the population is on drugs o r alcohol?).

Held, "The S ta te ' s proof t ha t D 'smelled l i k e a i rplane glue o r pa in t thinner ' and the c lose proximity of t he can of acry l ic lacquer and the baggie with the acry l ic substance within i t t o the dr iver ' s posit ion i n the automobile driven by D is su f f i c i en t to e s t a b l i s h that the acry l ic lacquer paint was the cause of D r s public intoxica- t ion. I' (Af f inned) .

CCA RULES I N FERGUSON, 858,706, 9/20/78, J. Dally, En Banc, Death Penalty Case, No d issen ts , THAT "WE ARE RELUCTANT TO SAY THAT THE STATE AFFIRMATIVELY ESTABLISHED TEAT D FREELY AND VOLUNTARILY CONSENTED TO THE SEARCH OF HIS BODY AND SEIZURE OF HIS BLOOD," BUT RULES THIS WAS, I F ERROR, HARMLESS ERROR. (Af f inned) . (Bell County1 .

COMMENT: Apparently, the following established the probabi l i ty question, See A r t . 37.071, C.C.P.

"The death penalty i s a harsh penalty; i t is especial ly h a r s h w b n . assessed against a person who is 17 years of age as was t h e D when he committed the offense." " However, i n view of the savage, ru th l e s s murder f o r which D was convicted and i n view of the e n t i r e record, we cannot say tha t t he death penalty assessed is unjust." c


CCA SPLITS OVER RIGHT TO COUNSEL I N MISDEMEANOR CASES WHERE MAXIMUM POSSIBLE PUNISHMENT ' CARRIED TIME AND FINE BUT D RECENED ONLY FINE. -s EMPY i/55$957, 9120178, J. Dally. (Af- firmed) . (Dallas CountyJ .

I COMMENT: D was charged with t he f t of over $20.00 but l e s s than $200.00. See Sec. 31.03Cd). Maximum punishment provided for t h i s Class A misdemeanor offense i s f i n e up t o $2,000 and/or time up t o 1 year i n county j a i l .

I Held, where the T J merely assesses a f ine , even though he could have as-

sessed time, the court w a s not required t o appoint an attorney t o represent the D even rhough the D was indigent, not represented by counsel and convicted under a s t a t u t e which included imprisonment a s a possible punishment. Ex par te Herrin, 537 (2) 33, overruled.

Held, "It has been the law i n t h i s S t a t e for 100 years that such admonishment [as t o t he consequences of a plea of gu i l ty ] need not precede the acceptance of a plea of gu i l ty t o a misdemeanor."

J. T. Davis, joined by Judges Onion and Roberts, dissented with opinion. J. Ph i l l i p s a lso dissented wfth opinion.

COMMENT: This case more c lear ly resembles a plea for S ta te ' s Rights but, as any student of Consti tutional Law knows, S t a t e ' s Rights haven't existed i n t h i s country f o r many years. However, we should never forget t ha t but for the S t a t e of Texas where would we be concerning the Consti tutional r igh ts of individuals? Perhaps t h i s case w i l l be the predicate f o r a fur ther and addit ional Consti tutional r i g h t t ha t many of us had taken for granted.

CCA RULES I N MOZANDES, #53,814, 9/20/78, J. Odom, En Banc, Death Penalty, No Dissents, \ 'PHAT "THE CONSTITUTIONAL RIGHT TO A UNANIMOUS VERDICT I N FELONY CASES EXTENDS ONLY

TO THE RETURN OF A VERDICT ADVERSE TO THE ACCUSED, AND THAT THE LEGISLATURE MAY PROVIDE FOR THE RETURN OF A VERDICT FAVORABLE TO THE ACCUSED ON LESS TU UNANIMOUS AGREEMENT." THUS; .NOTHING WRONG WITH 10 MAN VERDICT I N DEATH PENALTY CASES. (Affirmed) . CRacogdoches Countyj . PANEL OF CCA RULES I N BRYANT, #54,948, 9120178, P.J. Onion, Panel #2, 3rd Quarter, THAT INDICTMENT FOR AGGRAVATED ROBBERY, WHICH LEFT OUT WORD "WITH," WAS NOT FUNDAMENTALLY DEFECTIVE. (Affirmed). (Matagorda County). Although the CCA'S Panel ruled f o r t he S ta te , it rejected h e r argument t h a t because Hart Graphics of Austin printed t h i s form t h a t t h i s should not make t h e Indictment defective.

COMMENT: Here, Indictment alleged as follows: 11 .... Defendant, on or about the 4th day of Sept., A.D. 1975, and before the presentment of t h i s indictment, i n sa id County and State , did then and there Aile i n the course of committing the f t and with i n t e n t t o obtain property of Paul Lewis, the owner of t h e following described property, to-wit: lawful money of the United States of America i n t h e amount of $485.75 without the e f fec t ive consent of said owner and i d t h ? in ten t t o deprive the sa id owner of said property, did then and there exhibit a deadly weapon, to-wit: shotgun, and did then and t h e r e intent ional ly and knowingly threaten and place the sa id Paul Lewis, the

I , owner of sa id property, i n f e a r of imminent bodily injury and death.... (emph. supp . ) .

Note: The word "with" i n brackets i s the "with" t ha t gas left out of t h e Indictment.

VOICE for the DefensefOctober I978

PANEL OF CCA, IN -* BROWN $55,060, 9/20/78, J. Keith, Panel 113, 3rd Quarter, with J. Douglas no t par t ic ipat ing, DISCUSSES LAW OF CONSPIRACY AND ATFIRMS CONSPIRACY TO COMMIT CAPITAL MURDER FOR THE .PROMISE OF REMUNERATION CONVICTION. (Affirmed). @ I Paso County) -

NOTE: Merely because the pol ice use a subterfuge t o a r r e s t a D, that does not nu l l i fy a subsequent confession.

D SALMONS, 858,850 & 851, 9120178, J. Dally, Panel #3, 3rd Quarter,SAYS THAT CENIKOR FOUNDATION IS WORSE THAN PENITENTIARY. PROBATION REVOKED BECAUSE D LEET CENIKOR FOUNDATION WITHOUT AUTHORIZATION AND PROBATION REVOKED. AFFIRMED. (Tarrant County).

COMMENT: CCA said t h a t this condition of probation, at tend the Cenikor Foundation, was poco weino and dZd not cons t i tu te an unauthorized delegation of jud ic ia l authority.

D was given an option; i .e. , go back t o Cenikor or go t o the peni tent iary, D chose the l a t t e r .

COMMENT: I think many times, i n t rying t o represent our c l i en t s , and attempting t o get them the best dea l possible, we oftentimes overlook the f a c t tha t some of these drug programs aren' t what the brochures era& them u p t o be. How many of your t r i a l judges have gone t o these places and seen how they a r e run and what they ac tua l ly accomplish?

I DON'T KNOW ABOUT THIS ONE. D CASTILLO, 1155,207, 9/20/78, J. Dally, Panel 1\39 3rd Quarter, WAS REPRESENTED AT TRIAL BY COURT APPOINTED COUNSEL. AFPER SENTENCING, HE HAD RETAINED COUNSEL AND ALSO MADE AN APPEAL BOND. ATTY. HAS NOT SEEN D SINCE HE WAS RELEASED FROM JAIL AND BELIEVED HE HAD GONE TO MICHIGAN. HELD, "D HAS NOT FXERCISED DUE DILLIGENCE I N PURSUING THE APPEAL. I' (Aff imed) . (Harris County).

COMMENT: The problem I have with t h i s one is the f a c t the opinion does not s t a t e i f '( the attorney on appeal was hired and paid or j u s t hired. (As so many of us know, there is a difference). The appeal at torney apparently never did any- think except t o give not ice of appeal a s no br ie f was f i l e d , e t c . There is no showing what sum of money, i f anything, was paid fo r t h e appeal bond.

Thus,if andwhen M r . Cas t i l l o comes back in to our jud ic ia l system, I Suspect a w r i t w i l l be forthcoming from several d i f fe ren t direct ions; i .e. , 1) he was actual ly indigent o r 2) h i s retained attorney did nothing on the appeal.

NOTE FOR YOUNG LAWYERS. I f you a r e going t o represent a D on an appeal, always make sure you have been paid o r arrangements f o r t h e f ee have been made before making an appearance i n court. Once your name ge ts on the books a s attorney of record, then i t is there u n t i l removed by the trial Court. I suspect, i n t h i s case, much valuable time of our courts, at torneys, etc. , w i l l be taken up a t some time i n the fu ture and the evfdence w i l l probably show the attorney was not paid anything f o r h i s being i n the case. However, he w i l l probably get t o waste two (2) o r three (3) days i n court on a w r i t hearing.

REMEMBER. "BEFORE THE DOCTRINE OF CARVING CAN BE APPLIED TO REVERSE A SUBSEQUENT CONYICTION FOR AN OFFENSE ARISING OUT OF THE SAME CRIMINAL TRANSACTION AGAINST THE SAME VICTW WrCH FORMED THE BASIS FOR A PRIOR CONVICTION, THERE MUST BE A PRTOR CONVICTION." THUS, MERE FACT TH!iT D TRIED AND CONVICTED BUT GOT NEW TRIAL IS NO BAR TO SUBSEQUENT PROSECUTION. BOaRS, d155,683, 9120178, J. Ph i l l i p s , Panel 112, 3rd Quarter. (Affirmed). CHarris County>.

(.

October 1978lVOICE for the Defense

PANEL I N GONZALES, #55,686, 9/20/78, J. P h i l l i p s , Panel #2, 3rd Quar t e r , SAYS THAT "BY NO STRETCH OF THE IMAGINATION CAN IT BE CONTENDED THAT THE EVIDENCE I N THAT CAUSE RAISED THE ISSUE OF ENTRAPMENT. " THUS, CASE AFFJXMED. (Harr is CountyJ . T . T. DAYIS, I N MARES, #55,778, 9/20/78, Panel #2, 3 r d Quarter , DISCUSSES BENCH CONFERENCES AND FACT THAT THIS D I D NOT CONSTITUTE CONDUCTING THE TRIAL I N THE D'S ABSENCE. (Affirmed). (Hidalgo County).

Held, "The presence of D a t such conferences d id not bear "a reasonable s u b s t a n t i a l r e l a t i o n s h i p t o t h e oppor tuni ty t o defend." "We f i n d no v i o l a t i o n of A r t . 33.03 nor do we f i n d t h a t D was deprived of any r i g h t guaranteed by t h e 6 t h Amendment." I, No e r r o r i s shown."

COMMENT: Books could be w r i t t e n about Bench Conferences. The t ragedy of them i s t h e r e i s usua l ly no record of what happened a t the Bench. A poss ib l e s o l u t i o n t o t h i s problem i s t h e Sony. Ask t h e t r i a l judge t o l e t you l eave your Sony on h i s Bench and then when t h e r e a r e Bench Conferences punch t h e but ton. Then, a t t h e end of t h e t r i a l , mark it a s an e x h i b i t marked " ~ e n c h conferences" and make i t p a r t of t h e record .

ON WOULD YOU BELIEVE? THERE I S SUCH A THING, I N DALLAS, AT LEAST, AS AN EXPERT/"BOOSTER GIRDLES." REGINA JACKSON, #55,924, 9/20/78, Panel # l , 3rd Quarter , LEARNS THAT THIS I S SO AND MUST NOW GO AND DO LIFE FOR STEALING. (Affirmed). (Dal las County).

PANEL I N -, GREEN 1/55,942, 9/20/78, J. W. David, Panel #l, 3rd Quarter , RULES THAT INDICTEIENT FOR INDECENCY WITH A CHILD NOT FUNDAMENTALLY DEFECTIVE AND THAT "THE ALLEGATION THAT HE KNOWINGLY EXPOSED HIS GENITALS TO THE c/wvU IS SUFFICIENT TO ALLEGE" THAT HE DID SO KNOWING THAT SHE WAS PRESENT." "THAT HE COMMITTED THE ACT TO HER IS SUFFICIENT TO ALLEGE THAT HE Co~iITTED THE ACT WITH KNOWLEDGE OF HER PRESENCE." (Affirmed) . (Dallas County).

lANT TO KNOW HOW TOUGH DALLAS JURIES ARE? ASK BRINSON, #57,071, 9./20/78, J. Roberts , Panel #3, 1st Q u a r t e r , WHO PLEAD GUILTY TO A D.W. I . TO A J U R Y AND GOT THE MAXIMUM OF 2 YEARS AND A $500.00 FINE. (Affirmed). (Dallas County).

COMMENT: It appears t h a t t h e D i s a l s o e l i g i b l e f o r a pe r ju ry convic t ion , See A r t i c l e 42.13, C.C.P., a s he swore t o an app l i ca t ion f o r misdemeanor probat ion and only had 5 p r i o r felony convic t ions .

J. ROBERTS DISCUSSES I N FLOYD, #57, 623 & 624, 9/20/78, Panel #3, 2nd Quar ter , OFFENSE OF AGGRAVATED PROMOTION OF PROSTITUTION. (Affirmed) ; (Dallas County) .

Held,Secs. 43.02(a)(l) AND 43.04 ARE CONSTITUTIONAL. Panel a l s o r u l e d , concerning a hypo the t i ca l , t h a t i f a man suppor ts and f inances two m i s t r e s s e s [unquest ionably t h a t is not a defense lawyer] whom he knows t o engage i n p r o s t i t u t i o n i n h i s absence t h a t t h i s "pass ive knowledge of surrounding circumstances a lone does n o t c o n s t i t u t e an e n t e r p r i s e o r business ."

J. Roberts a l s o , i n d i scuss ing sexua l dysfunct ion c l i n i c s ( those p l a c e s where by screwing you g e t i t o u t of your system), s a i d t h a t t h i s i s s u e should proper ly b e addressed t o t h e L e g i s l a t u r e a s a ma t t e r which i s wholly w i t h i n t h e i r pro- v ince .

J. ODOM DISCUSSES "SAFE PLACE" I N WRIGHT, 1/58,504, 9/20/78, Panel 111, 3rd Q u a r t e r , SEE SEC. 20.04, AGGRAVATED KIDNAPPING STATUTE, AND RULES THAT THIS PHRASE IS COMMONLY UNDER- STOOD AND NEED NOT BE DEFINED TOR THE JURY. (Affirmed). (Dallas County).


1 WHAT DOES A PLEA WITHOUT A RECOMMENDATION FROM THE PROSECUTION MEAN? J. T. DAVIS, I N

j McKELVEY, 858,608, 9120178, Panel #2, 3rd Quarter, DISCUSSES THIS QUESTION, I N PART. (Af- firmed) . (Harris County).

COMMENT: The plea bargain here was t h e S t a t e would make no recommendation a s t o punish 1 ment and would not oppose granting of probation. 7-

Held, "A recommendation t o 'not oppose probation' cannot be un i l a t e r a l l y converted by the D i n t o an agreement t o affirmatively recommend probation for him." Thus, nothing wrong with prosecutor taking an adversar ia l approach i n cross examining D ' s wife and h i s fa ther .

NOTE: It has come t o my a t ten t ion tha t a lack of mutual understandingmay e x i s t regarding a plea without a recommendation. I n Harris County, Texas, f o r example,where t h i s is usually predicated upon a presentence investigation, some prosecutors have been known t o come i n t o court a t the punishment s tage and actual ly make recommendations regarding punishment; the D.A. taking the posit ion t h a t a p lea without recommendation concerns only the probation department and not the D.A. So, i n handling t h i s kind of s i tua t ion , make sure what you think i t means, i t a l so means what t he t r i a l judge and the prosecutor thinks i c means.

J. ONION DISCUSSES, I N ULLOA, #58,638, 9/20/78, Panel 112, 3rd Quarter, OFFENSE OF ROBBERY. (Affirmed) . (Coma1 ~ou;;t?;ijr

CO?@iENT: "Sec. 29.02 IS BROADER I N SCOPE THAN THE PRIOR ROBBERY OFFENSE, HOWEVER, BECAUSE IT APPLIES TO VIOLENCE USED OR THREATENED ' I N THE COURSE OF COM- MITTING THEFT, ' WHICH IS DEFINED I N SEC . 29.01 TO INCLUDE NOT ONLY VIOLENT CONDUCT ANTECEDENT TO A COMPLETED THEFT, BUT ALSO VIOLENCE ACCOMPANYING AN ESCAPE IMMEDIATELY SUBSEQUENT TO A COMPLETED OR ATTEMPTED THEFT ," IS INCLU[- ED.EVID. HERE WAS SUFFICIENT WHERE D , AFTER LEAVING STORE, APPER SHOP- LIFTING, GOT IT ON WITH THE OWNER, "THUS, THE VIOLENCE OCCURRED IN FLIGHT FROM THE SCENE OF THE THEFT." "THE EVID. CLEARLY REFLECTS THAT D INTENDED TO APPROPRIATE OR OBTAIN CONTROL OF THE SHIRTS AND I N FACT D I D SO AND ONLY DISCARDED SAME IN FEAR OF APPREHENSION."

PANELS ARE AS FOLLOWS FOR THE WEEK OF 9/27/78.

Panel #I, 1st Quarter: Judges T. Davis, W. C. Davis and Dally, Panel #l, 2nd Quarter: Judges Ph i l l i p s , Douglas and W. C. Davis. Panel #l, 3rd Quarter: Judges Odom, Vollers and W. C. Davis. Panel #3, 1st Quarter: Judges Ph i l l i p s , Roberts and Vollers. Panel #3, 2nd Quarter: Judges T. Davis, Roberts and Odom.

WOK- LANGFORD, fi56,977, 9/27/78, J. Ph i l l i p s , Panel 1/3, 1st Quarter, with 3 . Roberts con- curr ing without opinion, and with J. Vollers dissent ing with opinion, a revocation of probat ion, HOLDS THAT ENTRAPMENT CAN BE ESTABLISHED AS A MATTER OF LAW. (Reversed). (Galveston County).

COMMENT: Here, police wanted t o catch a couple of burglars whom the D knew q u i t e well. Pol ice Officer ins t ructed D t o work with these people but he wanted t o be contacted about the time and place of t he burglar ies before they occurred. This agreement enabled the D t o get probation.


Apparently, the other burglars became suspicious of the D inducing h i m t o take narcotics t o show he was one of them. The pa r t i e s then decided t o go i n to neighboring Brazoria County and c m i t t he burglary made the bas i s of the S t a t e ' s motion t o revoke. However, the D was not ab le t o contact h i s cop buddy by telephone u n t i l a f t e r the burglary had occurred.

Pol ice Officer admitted t ha t i f he had received a telephone c a l l from the D-before the burglary, the D would not be i n the dock.

HELD : There a r e two general t e s t s fo r entrapment recognized throughout the United States ; the "subjective" and the "objective."

"SUB JECTIVE" : Whether there was inducement on the pa r t of the S t a t e and Whether the D showed any pre- disposi t ion t o commit t he offense.

"OBJECTIVE" : The Court considers only the nature of the police a c t i v i t y involved without regard t o the criminal tendencies of the D.

HELD : Our Legislature, See Sec. 8 .06, P.C., has adopted the " o h j e d v e " - t e s t .

TEST: Was there police inducement?

I f so, what was the nature of t he police a c t i v i t y involved, without reference t o the predisposit ion of the pa r t i cu l a r defendant?

After reviewing the f a c t s of t he case, J. Ph i l l i p s then concluded: "Having f a i l e d t o rebut o r contradict t he defensive evidence of entrapment, we hold the f a c t s of t h i s case es tabl ish a prima f a c i e case of entrapment." Reversed.

NOTE : J. VolLers dissented on the bas i s , i n my opinion, t ha t a s the TJ revoked the D ' s probation, he didn ' t bel ieve the D ' s testimony; therefore , the D cannot complain t ha t h i s defense of entrapment was rejected.

BUT, NOT ALL OFFENSES ARE SUBJECT TO THE "AS A MATTER OF LAW'' DEFENSE. IN JOHNSON, 055,041, 9/27/78, J. Ph i l l i p s , Panel #l, 2nd Quarter, THE EVIDENCE WAS HELD SUFFICIENT TO SUSTAIN AN UNLAWFULLY CARRYING A PISTOL CONVICTION EVEN THOUGH THE EVIDENCE WAS, BY THE OPINION, TOTALLY UNDISPUTED WHY THE D WAS CARRYING THE PISTOL. (Affirmed). (Dallas County).

COMMENT: A l l of the evidence showed tha t the reason the D had the p i s t o l was because he was moving from one locat ion t o another location. H i s vehicle was stopped because i t matched the description of a suspect vehicle i n a burglary. However, no evidence t o show D was i n way, form or fashion connected t o a burglary.

HELD : "The S t a t e established a prima f a c i e case when i t demonstrated D was found carrying a handgun."

TheNew Penal Code has not qhanged: "We therefore hold t h a t a person carrying a handgun from an old residence w i l l const i tu te a defense t o prosecution under Sec. 46.02; but such person w i l l not be e n t i t l e d t o carry such weapon id ly , or f o r the sake of carrying i t , o r habitually, or f o r some unlawful purpose."


SO, D I D THE D WIN?

- t5ve controverting evidence t o rebut the defensive theory."

NOTE : By t h i s holding, every person who car r ies a handgun, regardless of h i s s ta tus; i . e . , a peace o f f i ce r , member of t he armed forces, national guard, securi ty guard, on h i s own premises, t rave le r , hunter, fisherman, etc. , he is i n violat ion of the law. He, however, has a defense, but i f the jury o r T J does not believe tha t ~ e r s o n ' s defense, even i f it is uncon- troverted, he can be found gui l ty and the conviction w i l l be sustained on appeal.

C f . Allen V. Sta te , 422 (2) 738, not c i ted or discussed i n the opinion.

Although I do not recornend i t , due t o A r t . 14.01, C.C.P., any John Doe Citizen now has the r i gh t t o a r r e s t any pol ice of f icer a s it would seem tha t person carrying a p i s t o l i s a prima f ac i e offense against the public peace. Of course, the pol ice of f icer has a defense i f a jury or TJ believes him. But, who knows? Jus t because he is i n uniform, says he i s a cop, has a badge and a card tha t says he is a cop, i f he is not believable, he is not a cop.

AND THE BEAT GOES ON FOR POSSESSION CASES. WIERSING, #57,154, 9/27/78, 3 . W. C. Davis, Panel #I, 1st Quarter, GETS REVERSAL I N REVOCATION OP PROBATION CASE AS EVID. RULED INSUPF. TO SUSTAIN POSSESSION OF MARIJUANA CHARGE. (Reversed). (Harris County).

NOT SO, SAYS THIS PANEL. The jury or the TJ is the so l e judge of t he c r ed ib i l i t y of the witnesses and of the evidence. "Having been properly charged i n the ins tan t case, the jury could properly disbelieve D ' s defensive evidence." "The S ta te was not required t o introduce affirma- (

COMMENT : Here, D was a passenger i n the hacksoat of an automobile stopped fo r having a loud muffler. While one o f f i ce r was checking the dr iver out, the other o f f i ce r walked t o car, leaned h i s head ins ide and smelled a f a in t odor of marihuana. He could not pinpoint the "freshness" of the odor as to whether i t was a day old or a week old, e tc . He apparently then had everyone get oat of the automobile and "as D got out of the car Morrison saw about 1 inch of p l a s t i c on the f loor s t icking out from under t he sea t i n t he back."

The woman who had been s i t t i n g next t o the D i n the backseat said it was hers. The T J sa id he didn ' t believe t h i s witness. The D , of course, t e s t i f i e d it was not h i s . Needless t o say, the T J didn't believe him e i ther .

Held, "The S ta t e has f a i l ed t o prove by a preponderance of the evidence tha t D was i n possession of the marihuana." A s t o the T J ' s dis- be l ie f of w i t ' testimony, panel said: "However, h i s disbel ief of her testimony cannot be taken a s evidence tha t the marihuana belonged t o D , i n l i g h t of the f a c t tha t two other persons were i n the car and did not disclaim ownership of the contraband a t

I, t r i a l . Reversed.

NOTE: A more detailed summary of t he fac t s , t o sus ta in the holding, shows the following. See Ayers and Underwood, supra, and Damran, supra.


" T h e record r e f l e c t s tha t appellant did not o m the car nor was he i n exclusive possession of t he car i n which themarihuana was found. Neither was he the drFver of the car. There is no evidence tha t appellant made any fu r t i ve gesture when the o f f i ce r approached the car, or t ha t appellant appeared t o be nervous during t h i s time. The record does not r e f l e c t t ha t appellant or any of the passengers gave any conflict ing s to r i e s , or tha t anyone made any suspicious or incriminating statements. There was no attempt by appellant o r the other passengers t o f l e e the scene. Off. Morrison t e s t i f i e d tha t he did not s m e l l the odor of marihuana on appellant 's clothing, nor did he find any contraband on appellant when he searched him. There was no evidence that appellant appeared t o be under the influence Of any drug. The record does not r e f l e c t tha t the baggie of marihuana was i n p la in view of appellant, since i t was under the s ea t and only an inch of p l a s t i c protruded. After a f u l l search of the car, no more marihuana was faund. The marihuana was not found i n appellant 's actual possession. The S ta t e did not attempt t o disprove the ownership of the contraband by the driver o r the t h i rd passenger."

ANOTHER CREDIT CARD INDICTMENT BITES THE DUST I N EX PARTE MATHIS, #57,073, 9/27/78, J. Vollers, Panel /!3, 1st Quarter. (Writ Granted). (Dallas County).

COMMENT: Indictment here alleged, i n pertinent par t :

"D . . . did unlawfully, then and there present t o Charles Epley, an A & A Credit Card Number 28576, with in ten t t o obtain property and service, without t he e f fec t ive consent of the cardholder, R. Saba." HELD, INDICTMENT " f a i l s to a l lege tha t the D had the in t en t t o obtain

the property fraudulently and i f f a i l s t o a l lege that he acted with knowledge tha t the c red i t card had not been issued t o him or t h a t i t was not used with the e f fec t ive consent of the cardholder." "The Indictment omits elements of the offense, (See Sec. 32.3l(b) (1) (A), P.C.) , and is fundamentally defective.'' Writ Granted.

HABITUAL CRIMINAL CASES, TO ME AT LEAST, HAVE ALWAYS BEEN INTERESTING. MAYBE BECAUSE I HAVE SEEN TOO MANY OF THEM. HOWEVER, I F YOU HAVE ONE, READ EX PARTE MONTGOMERY, #56,718, 9/27/78, J. Ph i l l i p s , Panel 83, 1st Quarter. ( W r i t Granted). (Travis County). This is a pro s e w r i t case.

COMMENT: D was t r i e d i n Travis County and got l i f e as a habi tual criminal. That case is s t i l l on appeal.

He thereaf ter plead gui l ty on this case which apparently contained a Williamson County pr ior conviction, which was used i n the habitual case where D got l i f e . See supra.

He claimed tha t h i s sentence of 16 years i n -cause was excessive a s the pr ior conviction used i n t h i s cause was the same pr ior conviction used i n the habi tual case.

HELD: "The record supports D'S contention tha t a 1969 burglary conviction from Williamson County i n Cause No. 13,598 was twfce used f o r enhancement purposes, i n i t i a l l y for enhancing D ' s punishment a s a habitual criminal i n Travis County, Cause No. 49,806, and then subsequently enhancing D ' s punishment a s a second offender i n Travis County Cause No. 49,807."


"The law i s c lear tha t i n prosecutions under Sec. 12.42 the same pr ior conviction cannot be used t o enhance a D's punishment t o l i f e as a habitual criminal i n two separate cases." However, "The use of a p r ior conviction t o enhance the punishment a s a second offender does not preclude the S ta te from again using tha t con- v ic t ion t o a f f i x the s t a tu s a s a habitual criminal."

HELD: "The S ta t e i s not permitted t o use a pr ior conviction f o r enhancement under Sec. 12.42, (a), P.C., a f t e r the S t a t e has successfully invoked the same pr ior conviction a s par t of its e f f o r t to enhance the D ' s sentence under Sec. 12.42(d).I1 "Once a pr ior conviction is u t i l i z e d t o obtain the maximum automatic sentence avai lable under sentence available under our P.C., Pt should be put t o res t ." 3 hold the S ta te is estopped from using a pr ior conviction f o r enhancement under the habi tual criminal provisions of the Penal Code.''

Thus, case remanded t o T C t to assess D ' s punishment as a th i rd degree felony and not a second degree felony.

NOTE: The ru les of the game, I don't think, have been great ly changed. The S ta t e is en t i t l ed to enhance punishment with a pr ior conviction; i .e. , i f the D is charged with a 3rd degree felony but he Ras a p r io r conviction, he can be graduated t o a 2nd degree. In other words, with only one pr ior , he can only be graduated one degree, except fo r a f i r s t degree, when the punishment is l i f e , o r f o r not l e s s than 15 nor more than 99 years. However, i t appears, by the opinion, t h a t -prior can be used only once to graduate the punishment. But, if the D has a pr ior , l a t e r ge t s convicted and then subsequent1 gets convicted again, with the two (2) p r iors alleged f o r enhancemen of punishment, he can get l i f e imprisonment per Sec. 12.42Cd).

F However, once t h i s i s accomplished, the pr iors used t o get l i f e cannot be used again.

I N SUM, I think t h i s decision simply holds t ha t once a pr ior con- v ic t ion i s used t o accomplish the maximum permissible punishment &lowed by law, then it cannot thereaf te r be used again. I n other words, i f a pr ior i s used t o enhance a s a second offender, it cannot again be used in a second offender s i tua t ion but can be used l a t e r - i n a habitual offender s i tuat ion. It cannot then be used thereaf ter .

WOW. WOW. IF YOU DON'T HAVE A COPY OF BRITTON, ii56',680, 9/27/78, J. ~ h i l l i p s , panel ji3, 1st Quarter, with J. Vollers dissenting with opinion, RUN, DON'T WALK, AND GET A COPY OF THIS ONE. (Reversed) . (Dallas County) .

COMMENT: The f a c t s showed the following:

Appellant was a passenger i n a vehicle observed by two Dallas pol ice o f f i ce r s t o be blocking the two west-bound lanes of a Dallas s t r e e t [violat ion of City Ordinance] a t 1:50 a.m. The car d id not move u n t i l a f t e r the police pulled up and turned the i r l i g h t s on. Appellant was observed as bobbing, weaving, or swaying h i s head. Upon one o f f i ce r ' s inquiry, appellant mumbled incoherent responses. Appellant was fur ther observed t o have "glassy" and bloodshot eyes. The of f icer asked appellant t o e x i t the vehicle a t which time the o f f i ce r arrested appellant f o r public intoxication. The o f f i ce r then frisked appellant, finding a syringe containing fresh, milky w h l t e residue i n h i s f ron t I

resuming the pat-down, appellant reached f o r his pocket. The of f icer removed appellant 's hand and withdr~w amatchbox from appellant's pants pocket i n which 12 pink capsules, l a t e r found t o contain heroin, were found.

D I D THE STATE WIN? HELD: "It is c l ea r from the of f icer ' s testimony tha t given the f a c t s observed

by him, he lacked probable cause t o a r r e s t D f o r the offense of publ ic intoxication." "No f ac t s o r information was provided by the pol ice of- f i c e r t o indicate anv basis for a reasonable inference that D ' s sus- .,

I, pected intoxication was a degree tha t would endanger himself or others. See Sec. 42.08, P.C. "There being no probable cause to lawfully a r r e s t D without a warrant, the search of D ' s person cannot be ju s t i f i ed a s a search incident t o a lawful arrest." "The pol ice o f f i ce r ' s conclusory statement tha t the f r i s k w a s f o r the sake of h i s and h i s partner 's safety f a i l s t o s a t i s f y the mandate of Terry v. Ohio." "The of f icer provided no f a c t s upon which a reasonably prudent man could conclude tha t D was armed or posed a danger t o the police of f icers ."

HELD : "The search of D which resulted i n the discovery of a matchbox containing heroin capsules was not j u s t i f i ed under the f ac t s and circumstances i n t h i s record ." Reversed.

HINES, #56,554, 9/27/78, J. T. Davis, Panel #3, 2nd Quarter, GETS REVERSAL DUE TO PROSECUTOR BEING ALLOWED, OVER OBJECTION, TO ASK D ON CROSS EXAMINATION ABOUT EXTRANEOUS OFFEI'?SES m C H OCCURRED SUBSEQUENT TO THIS OFFENSE. (Reversed). (Orange County].

COMMENT: The f a c t s were ra ther in te res t ing i n t h i s delivery case. Cops t e s t i f i e d tha t D went ins ide a residence and got: t he dope. A 67 year old woman said she had l ived there for approximately 24 years, did not know the D and t e s t i f i e d he had never been i n her home. D a lso so t e s t i f i ed .

On cross examination, over objection, prosecutor was allowed t o ask D if he had used heroin subsequent t o t h i s offense and he said he had.

Held, Objections made, though weak, suf f ic ien t .

Held, "Although the testimony of the D c lear ly raised a defensive theory of a l i b i , i n order t o prove an extraneous offense the S t a t e must a lso prove suf f ic ien t comon distinguishing cha rac t e r i s t i c s between the extraneous offense and the primary offense t o enable its probative value t o outweigh i t s prejudicia l effect." "The f a c t tha t D used heroin three months a f t e r he is alleged t o have de- l ivered it t o Payne adds l i t t l e , i f anything, i n the way of proba- t i v e evidence to rebut h i s defensive theory of alibi ." See a l so Okra, 507 (2) 220, c i ted and discussed i n the opinion. Reversed. -

D STEPHENSON, #55,443, 9/27/78, J. Odom, Panel ii1, 3rd Quarter, SHOWS JURY MISCONDUCT AND GETS NEW TRIAL. (Reversed). (Dallam County).

COMMENT: This case shows the beauty of being i n a small county as , contrary t o the big c i t i e s , everybody usually knows everybody. I n t h i s aggravated rape case, the a f f idav i t of the jury foreman ref lected t h a t several women jurors s ta ted they knew two of t he defense witnesses and i n t h e i r opinion they did not have a good reputation for being t ru thfu l . Others on the jury a l so sa id they personally knew a l l or some of the f a c t s of the case and they knew the D was gu i l ty beyond a reasonable doubt.


HELD : "We conclude from t h e cha rac te r of t h e o t h e r evidence received by t h e j u r y dur ing d e l i b e r a t i o n s t h a t such evidence w a s adverse t o D and re- q u i r e s a new t r i a l . " Reversed.

COFfMENT: The opinion does not r e f l e c t i f t h e prospect ive j u r o r s were asked dur ing v o i r d i r e if they had any personal knowledge about t h e f a c t s o r t h e \

p a r t i e s t o t h e case o r t h e wi tnesses who might t e s t i f y . It is inconceivable t h a t somebody d i d not a s k t h i s ques t ion and got negarive r e p l i e s from these persons. It i s a l s o probable, f f t h i s d i d occur, t h a t t h e s e good c i t i z e n s w i l l go unpunished. Hopefu~ ly , M r . Stephenson w i l l r ece ive , on t h e r e t r i a l , t h e f a i r and impar t i a l j u ry he , unquestionably, d i d n o t re - ce ive t h i s t i m e .

PANEL OF CCA, I N DOESCHER, 1154,865, 9/27/78, J. P h i l l i p s , Panel #1, 2nd Quar ter , RULES THAT SEARCH WARRANT AFFIDAVIT I S NOT ANY GOOD. AND THAT CONSENT OF D!S WIFE NOT ANY GOOD BUT HARMLESS - ERROR RULE GETS D. (Affirmed). (Dal las County).

HELD : I , It is c l e a r from a review of t h e a f f i d a v i t t h a t , a s i d e from t h e D ' s w i f e , none of t h e informants upon whom t h e a f f i a n t r e l i e d a r e named o r i n any o the r way cha rac te r i zed a s c r e d i b l e o r r e l i a b l e by t h e a f f i a n t . " "Thus, the mag i s t r a t e was not apprised of any f a c t , information, o r "underlying circumstances" t o permit him t o conclude t h a t t h e "yellow money bag and b lue s t e e l revolver p i s t o l " were connected wi th t h e aggravated robbery o r a t t h e l o c a t i o n i d e n t i f i e d f o r search i n t h e a f f i d a v i t . "

HELD : A s t o t h e w i f e ' s consent t o search , t h e Panel ru l ed : "We t h e r e f o r e hold, a s a mat te r of l a w , t h a t t h e r e can be no voluntary consent t o search i f t h e o f f i c e r s secur ing t h e "consent" a s s e r t t h a t they ~ r e s e n t l v possess a search warrant t o search t h e premises f o r which "consent i s sought." Also, " the prosecut ion h a s ' f a i l e d t o c a r r y its burden of proving t h a t , under t h e t o t a l i t y of t h e surrounding circumstances, M r s . Doescher's consent was voluntary , a s a mat te r of f a c t . "

BUT, HARMLESS ERROR BECAUSE OF THE FOLLOWING:

11 F i r s t , none of t h e i tems se i zed i n t h e course of t h e search of 2038 F o r t Worth S t r e e t on Jan . 9 , 1975, were admltted i n t o evidence. Rather , t h e i r s e i z u r e and i d e n t i f i c a t i o n were t e s t i f i e d t o . Second, approximately $10,800

.was s t o l e n i n t h e a l l eged robbery a t gunpoint; some of t h e currency be ing new b i l l s , some o ld . Mrs. Doescher v o l u n t a r i l y surrendered approximately $6,478 t o t h e p o l i c e from t h e premises two days a f t e r t h e search. Th i s currency was i d e n t i f i e d a s being bound s i m i l a r l y t o some of t h a t taken i n t h e i n s t a n t robbery. Thi rd , two eyewitnesses p o s i t i v e l y and unequivocal ly i d e n t i f i e d appe l l an t a s t h e perpe t ra tor . "

GET READY. 1 ANTICIPATE, AFTER GORDON, 1157,414 & 415, 9/27/78, J. Roberts , Panel # 3 , 1st Q u a r t e r , THAT WE WILL COMMENCE SEEING MANY TRIAL JUDGES, WHERE THE D IS PLACED ON PROBATION FOR MULTIPLE OFFENSES AT THE SAME TIME,USING CUMULATION ORDERS TO BE EFFECTIVE I F THE D VIOLATES HIS PROBATIONARY TERMS AND/OR CONDITIONS. (Reformed and aff i rmed). [Tarrant County).

COMMENT: Here, D placed on probat ion at t h e same time i n two ( 2 ) cases . The S t a t e subsequently f i l e d and had granted i ts motion t o revoke probat ion . D ' s o r i g i n a l punishment was 4 yea r s on each case bu t same was probated. The TJ, a f t e r revoking t h e probat ion, t hen "stacked" o r made t h e two cumulative t o one another .

(


HELD: "A t r i a l judge does not have the power t o order a cumulation of sentences when h e revokes felony probation i f nei ther the or ig ina l judgment suspending the imposition of sentence and placing the D on probation provides fo r a cumulation of the sentences."

"However, t h i s does not mean t h a t the TJ could not have p r o p e r l ~ placed the cumulation order i n to t h e judgment granting probation and the order granting probation." See EX 542 (2) 117, Vol. 11, No. 6, Peb. 1976, S.D.R., p. 4.

HELD: "The proper t i m e f o r a TJ t o order cumulation i n a case where he grants felony probation is when probation i s granted and tha t unless t he cumulation order is ref lected i n a t l e a s t the judgment granting probation, the cumulation order is ineffective." Here, inef fec t ive and sentences reformed.

NOTE: J. Vollers dissented saying tha t Spencer, 503 (2) 557, controls and case should have been affirmed ra ther than reformed.

COMMENT: This case points out the importance, i f you a re representing a D and a dea l is cu t f o r probation and he has several cases, t o get the prosecutor t o l e t him plead t o only one case and get the others dismissed i f you can. Otherwise, you may be ge t t ing your c l i e n t a whole bunch of time i n t he fu ture a t the present time. I f you cannot get the other cases dismissed, make i t par t of the p lea bargain t ha t the probations a r e t o be served concurrently and not t o be cumulated.

TWO PANELS ORDER APPEALS DISMISSED I N WALKER, #54,163, 9/27/78, J. Roberts, Panel #3 , 1st Quarter , with J. Vol lers dissent ing with opinion, AND LOVETT, 858,565, 9/27/78, J. Odom,

, Panel #I, 3rd Quarter, with J. Vol lers dissenting with opinion. (Gregg County and Har r i s County).

COMMENT: In Walker, supra, the . ju ry assessed the D ' s punishment on June 18, 1976. On June 28, 1976, the D was sentenced.

Held, "The record does - not reveal t ha t D affirmatively waived h i s r i g h t t o f i l e a MNT or motion i n a r r e s t of judgment during the remaining portion of June 28, 1976." "Therefore, the imposition of sentence on June 28, 1976, was one day premature and we a r e without ju r i s - d ic t ion t o en t e r t a in t h i s appeal." APPEAL DISMISSED.

In Lovett, supra, a r e a l screw-up occurred. Apparently, i n reading between the l i n e s , t he T J ordered a presentence report on the D a f t e r he was found g u i l t y by a jury. A hearing on t h e MNT occurred, which w a s overruled, and then the D had h i s punishment assessed and he was then sentenced.

Held, "Because the sentence was pronounced too soon, the appeal must be dismissed." "After proper time f o r MNT has passed and any such motion disposed of , timely sentence should be pronounced and no t ice of appeal may be given." APPEAL DISMISSED.

VOICE for the Defense/Ocfober 19 78

COMMENT: It is elementary but often-times forgotten t ha t the proper s teps t o be followed a r e a s follows:

1. Punishment f i r s t assessed by T J or the jury;

2. After punishment assessed, D has ten (10) days i n which t o f i l e MNT unless he affirmatively waives same.

3. After ten (10) days o r waiver, he o r she can then be sentenced.

4. Notice of Appeal then, i f permitted, must be given within ten (10) days from da te of sentencing or , i f no sentence required, then, See A r t . 44.08, C.C.P., i f no motion fo r new t r i a l f i l e d , ten (10) days from date of entry of judgment. I f MNT f i l e d , then within ten (10) days from da te i t was overruled or could have been overruled, i f no sentence required.

The important of t h i s i s r ea l l y seen i f your c l i e n t is incarcerated and not out on b a i l a s you simply lose addi t ional time before your case i s properly decided by the CCA.

PANEL OF CCA, I N JONES, 858,445, J. W. Davis, Panel #I, 2nd Quarter, RULES AGAIN THAT THERE I S NOTHING WRONG WITH T J FORCING A D TO ENTER INTO ONE OF THE DRUG PROGRAMS. (Affirmed). (Bexar County). See Supra. Here, i t was the Pdtr ic ian Movement. Order of revocation was upheld f b r f a i l u r e t o repor t and f a i l u r e t o comply with the ru l e s and regulations of that group.

WATCH OUT. THOUGH PEN PAPERS CAN BE THE DOWNFALL OF THE STATE, SEE CORTEZ, SUPRA, I N STEM, #55,791, 9/27/78, J. Odom, Panel #l, 2nd Quarter, THE CERTIFICATION WAS HELD SUFFICIENT WHEN THE PEN PACKET WAS APPARENTLY ACCOMPANED BY OR A LETTER WAS LATER SENT TO SHOW'WHO THE CUSTODIAN WAS. (Affirmed) . (Dallas County).

COMMENT: It seems t h a t a proper objection, if i t had been made, would have been suf f ic ien t t o exclude t h i s evidence. However, the opinion is not c lear on whether proper objections were made t o the admissibi l i ty of t h i s document.

J. ODOM SAYS, I N HOLLOWELL, #55,940, 9/27/78, Panel #l, 3rd Quarter, with J. Vollers con- curr ing i n the r e s u l t , THAT STATE'S CONTENTION THAT IT WAS UNAWARE OF THE EXISTENCE OF A PALMPRINT UNTIL THE TRIAL WAS I N PROGRESS IS UNTENABLE. "THE PROSECUTOR HAS A DUTY TO KNOW WHAT EVIDENCE IS AT HIS DISPOSAL^^ BEFORE HE GOES TO TRIAL, HOWEVER, HARMLESS ERRORRULE GETS D. (Affirmed). (Dallas County).

COMMENT: Here, D ' s at torney f i l e d Motion fo r Discovery and TJ granted motion as t o any r e a l evidence i n possession of the prosecution. The State , however, l a i d behind the log and then,needless t o say, "surprised" D with a palm- pr int . Held, "The palmprint c lea r ly was within the motion." See&. 39.14, C.C.P. Held, "Although evidence w i l l fu l l y withheld from disclosure - under a discovery order should be excluded from evidence, we hold i t s admission here was harmless."

PANEL OF CCA, I N POTTS, #56,676 & 677, 9/27/78, J. Phi l l ips ; Panel #3, 1st Quarter, BOOTSTRAPS D OUT OF COURT. (Affirmed). (Dallas County).

COMMENT: Here, D PG t o two (2) cases, S t a t e introduced i n t o evidence D's j ud i c i a l confessions which did not include the magic phrase, i n these t h e f t cases, I f without t h e owner's consent." D affirmatively waived the reading of t he Indictment, but s ta ted t ha t the jud ic ia l confessions were subs tan t ia l ly t rue and correct . (


Thus, i n my words, as the D knew what she was charged with and a s the Indictment did contain the magic phrase and a s the D then affirmed the confessions of g u i l t which were introduced in to evidence without objection, t h i s consti tuted an affirmation o r j ud i c i a l confession tha t she committed the offenses a s alleged i n the indictment. Affirmed.

GOOD POLICE GUESS WORK AND BOTTLE OF COLOGNE IS D BREM'S DOWNFALL AND HIS CASE, 855,467,-g/27/; J. W. Davis, Panel #I, 2nd Quarter, AFFIRMED. (Dallas County).

COMMENT: D was a prime suspect i n a s e r i e s of rapes which occurred i n Dallas County. However, police could not put those rapes on him.

On t h i s occasion, a woman was raped and of f icer , who w a s familiar with the other rapes, made a beeline t o the D ' s residence where, upon D ' s a r r iva l , he arres ted the D. "He s ta ted that D was wearing no underwear and had a strong odor of cologne." A search resulted i n finding a knife which t h i s C/W said was s imilar t o t he one used i n her rape. Another off icer , who had gone t o C/W1s apartment and smelled the odor of cologne, a lso went t o where the D was and smelled the same odor of cologne. A search of the D ' s car revealed a b o t t l e of cologne.

Indictment f o r aggravated rape O.K.

Police had the r i gh t t o temporarily detain the D.

The knife seized was O.K. and admissible. A s the of f icer had the r igh t t o temporarily detain the D , he had the r i gh t t o "frisk" him for h i s safety.

The consent t o search of the D ' s auto was poco weino and the bo t t l e of cologne was admissible.

Though the D was told by h i s attorney not t o sign any statements, he did not t e l l him not t o s ign any consent t o search forms. Thus, h i s consent t o search h i s residence was O.K.

The In Court Ident i f icat ion was O.K. a s not tainted.

The prosecutor has no duty t o invest igate other cases i n order t o supply the defense with information concerning them.

Merely asking pol ice of f icer the Q: "Now, was h i s a r r e s t the r e su l t of an accident or a mistake, o r a guess, o r t he r e s u l t of intense pol ice work'?" not suf f ic ien t t o get revers ible error. Inst ruct ion t o jury r u l e got t he D , i n par t , on th i s .

NWE: The opinion does not s t a t e if t h i s was Brut Cologne. I suspect t ha t whatever brand i t was, tha t the D no longer uses it, or , i f Brut, he no longer watches the Joe Namath show i f he previously did.

PANEL OF CCA, I N SMITH, #54,727, 9/27/78, J. Phi l l ips , Panel #l, 2nd Quarter, RETECTS D'S CONTENTION THAT ATTEMPTED BURGLARY INDICTMENT SHOULD HAYE ALLEGED THE SPECIFIC INTENT TO COMMIT BURGLARY. (Affirmed) . (Harris County) .

COMMENT: Panel a l so held tha t TJ need not , per s e , hold a hearing, regarding ad- mi s s ib i l i t y of p r ior convictions, p r ior t o t h e i r admissibi l i ty .

VOICE for the Defense/Ocrober 1978

NOTE: About the only thing you can do here, i f you have a good objection, is i f the T J refuses you a hearing, jus t commence talking and objecting, f o r whatever reasons, and hope tha t on appeal one of your objections s t r i k e s gold. Do t h i s again whenever the S t a t e makes her offer. I f nothing else , it makes the c l i en t f e e l good. C

PANEL OF CCA RULES I N BONEY, #54,891, 9/27/78, J. Phi l l ips , Panel $11, 2nd Quarter, FOLLOWTNG INDICTMENT FOR AGGRAVATED ASSAULT WAS NOT FUNDAMENTALLY DEFECTIVE:

I, . . . on o r about April 4, 1975, did then and there unlawfully commit an offense hereaf ter s tyled the primary offense, i n tha t he did inten- t iona l ly and knowingly cause serious bodily injury t o Berry Jane Outlaw

11 . . . Evid . a l so ruled su f f i c i en t even though no one person t e s t i f i e d tha t the i n ju r i e s sustained consti tuted serious bodily injury. (Affirmed). (Harris County).

FOR AN INTERESTING CASE, BY WHAT WAS NOT SAID, SEE -2 PARR #54,736, 9/27/78, J. Ph i l l i p s , Panel //I, 2nd Quarter, REGARDING TAKING A BLOOD TEST. (Affirmed). (Wise County).

COMMENT: This was an involuntary manslaughter {murder by auto) charge. D refused three (3) times but then consented to the taking of the blood t e s t by a nurse.

1) Panel ruled that def in i t ion of intoxication per Sec. lg.O5(b), P.C., was O.K.

2) Indictment, which tracked s t a tu t e , also ruled O.K. and not fundamentally defective.

I \

3) Prosecutor's jury argument, t o which objection made and sustained, that: "I've dismissed plenty of cases when I don't think there 's enough evidence t o go t o t r i a l on them." "There is no point i n t rying them." O.K. a s T J ' s ins t ruc t ion t o jury cured error.

NOTE: I ' m not sure what a good reply to t h i s would be but I think the Defense Attorney made the wrong statement i n r e t a l i a t i o n a s he said: "I've pled a l o t of people gu i l ty , too, but I don't think tha t has anything t o do with the f a c t s i n t h i s case."


President3 Report The other day I found myself sneaking More and more I was becoming convinced

out of the backdoor of my office dodging that the law attracted and harbored more bill collectors while cursing another dissatisfied dreamers, yearning malcon- client who had just beaten me out of a tents and outright misfits in its ranks large portion of my fee. Upon reaching than any other trade or profession under the elevator I noticed a beautiful creature the sun. standing patiently thereby. Still frustra- "Part of the reluctant attraction of the ted over the immediate series of events, law to these rootless wanderers, Isensed, and still being human too, my approach was that not only did it offer a shelter was one of a small commentary on the of kinds, but perhaps more than any status of my profession. She listened other calling it more easily allowed its attentively to my verbose, if not elegant, votaries to escape gracefully into busi- comments, as to what was wrong and if ness or politics or diplomacy or some- things didn't get better 1 was faced with where. . . .Had not the great brooding two alternatives-slitting my writsts or Abraham Lincoln himself been a prime getting out in the world and attempting example of all this? And, to be fair, was profession he hated; i t was far worse to to flnd honest work. not the law, of all the professions, the frnd himself miscast in a profession he

Smiling sweetly and revealing without one that most appeased and comforted revered. a doubt the prettiest face I have seen its reluctant pilgrims even as it frustra- "Inm~doubtandsou1-searchingthefare- in years, she handed me a piece of paper, ted them? The law, I saw, was the last of well lecture of frail old Dean Lattimore obviously xeroxed and stated, "maybe the romantic professions. came crowding back to me. 'Always this will help." The next instant she was "Whatever doubts I had about my own remember, young men,' he had told our on the elevator going up, as all "angels" place in the legal profession, there was law school graduating class, 'that the Should, while I naturally stood and one thing on which my mind remained law is the busy fireman that puts out waited for one going down. clear: I still nourished a profound respect society's brush fires; that gives people a

I mention this story only so the writer for the law as an institution. That respect nonphysical way to discharge their may give literary credit to the person had if anything increased since I had got hostile feelings and settle fheir violent responsible for the president's message out of law school. Mr. Bumble had once differences; that spells the difference to this beautiful creature, name yet called the law an ass, true, but for my between a barroom brawl and a debate; unknown, whose message I now pass part i t was not the law that was an ass, that substitutes order and predictable on to you for maybe a different look at but rather some of its practitioners for ritual for the rule of tooth and claw. what we call work. (Herein follows what they made of the law. Whatever Never forget, young people, that the tbe message received.) imbecilities they might have foisted on very slowness of the law, its massive im-

"More and more lately I had come to their profession, it was the law-and only personality, its neutrality, its calm in- SUSpect that the law was the great catch- the law-that kept society from coming sistence upon proceeding according t o all of the professions. It was the alluring apart at the seams, the world from re- settled procedures and ancient rules, its beacon that beckoned those bewildered verting t o a jungle. tendency to adjust and to compromise, and uncertain individuals who didn't "No other system than the law had yet its very delays if You will-that a l l of know precisely what to do. In these been found for governing men than raw these act to bank and cool the fires of days, I reflected, a young man of good violence; it was society's safety valve, viplence and passion and replace them family could not choose to become an the most painless way for men t o resolve wlth order and reason. Ponder well, if artist or poet. People would simply laugh their differences and achieve some sort you will, that this is a tremendous civd- at him, and moreover who was there to of peaceful social catharsis; any other izing accomplishment in itself, whatever teach him these arts, where was he to way lay anarchy and chaos. My doubts, the outcome of a particular case. The learn these subtle crafts? Where were then, were not about the worth of my law not only saves anarchy; i t a h saves these young men to go, what were they profession; rather what WiUy Poe was face."' LAUGHING IVHITEFIH, Robert to do? Almost naturally, it seemed, many ever doing in it. It was bad enough for a Traver (John D. Voelker), 1965,~~.23-24. of them turned in desperation to thelaw. young man to find himself adrift in a George L~quet te TO IMC. OR NOT from p. 4 are "freeIy transferable" to other pro- stockholders and getting himself elected attempting to erode the attorney-client fessionals. Ordinary lay-persons cannot t o the presidency of the corporation. privilege so why help them by incorpora- invest in a law firm. This turned me off, There are many more problems inherent tion. If you incorporate, you can be since like most lawyers, I think "1's to a professional corporation, not the called before the grand jury and you can- the greatest" and I could really have a least of wbich is the large firms buying up not claim the privilege, as corporations super law firm if I could sell stock to your stock, and you become a local cannot claim the privilege. This is well- the general public. Since I oan't do it member of the largest firms, and their settledlaw. my way, I thought about a law fum with employee. I've always thought that the title each member of the firm being a share- My most serious objection is that "LAWYER was the most impressive holder. What fertile ground for a minority as a corporation, you lose your Fifth I've ever heard. President of a corpora- stockholder's derivative suit! What about Amendment privileges. As a lawyer, tion is a rather mundane title requiring annual meetings? Would you have proxy unincorporated, you can cfaim attorney- so much paperwork to keep IRS off and cumulative voting? I visualized a client privilege if summoned before a your back. My position: I do not want junior member of the firm and a minority grand jury. If you practice criminal law, to retire, so incorporation for me is stockholder obtaining the proxies of all then incorporation should not be for out. I want to die in Court objecting to of the lunior members and minority you. Prosecutors and grand juries keep a Judge's ruling. m

VOICE for the Defense/October I978

CROSS-EXAMINATION

*Mr. Clinton is a former director of TCDLA, a noted criminal law practi- tioner, and Judge-elect of the Texas Court of Criminal Appeals.

CONSTITUTIONS AND STA TUTES

In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him . . . Sixth Amendment, US. Constitution

In all criminal prosecutions the accused . . . shall be confronted by the witnesses against him. . . Article 1, Section 10, Texas Constitution

In all criminal prosecutions the accused . . . shall be confronted with the witnesses agarnst him . . . TEX. CODE CRIAl. PRO. Article 1.05

The defendant, upon a trial, shall be confronted with the witnesses, except in certain cases provided for in this Code where depositions have been taken. TEX. CODE CRIAf. PRO. Article 1.25

CROSS-EXAMINATION

I. lNTRODUCTION Cross-examination finds "expression in

the Sixth Amendment, which provides that in aU criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' " Greene v. McEIroy, 360 US. 474, a t 496497 (1959); Coulter v. State, 494 S.W.2d 876 (Tex.Crim.App. 1973). Texas has long recognized that cross-examination was embodied in the confrontation clause contained in Article 1 Sec.10 of its constitution. Kemper v. State, 138 S.W. I025 (Tex.Crim.App. 1911).

Anglo-American jurisprudence has long considered confrontation t o be "[oIne of the fundamental guaranties of life and liberty" which is "so essential for the due protection of life and liberty that it is guarded against legislative and judicial action by provisions in the Con- stitution of the United States and in the constitutions of most, if not of all, the states composing the Union." Kirby v. United States, 174 U.S. 47, 55, 56 (1899). This concern with confrontation

Sam Houston Clinton? Austin of one's accusers led Texas to adopt a confrontation clause in its earliest constitutions that traced its federal counterpart. However, state and federal development of "confrontation law" was independent until the landmark case of Pointer v. Texas, 380 US. 400 (1965), which incorporated the Sixth Amendment confrontation clause into the Fourteenth Amendment. The Court held the confrontation clause "to be enforced against the States under the Fourteenth Amend- ment according to the same standards that protect those personal rights against federal encroachment." Id at 406.

Cross-examination is the most impor. tant aspect of confrontation. Its impor. tance is best described by Wigmore:

"For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross- examination as a vital feature of the law. The belief that no safe- euard for testine the value of - human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strenath in lenathenine.exverience." 5 wigmore o n ~videnc; (3rd ed. 1940) 1367. " [ ~ l h e mission of the confrontation

clause is to advance a practical concern for the accuracy of the truth determining process in criminal trials." Dutton v. Evans, 400 US. 74 at 220 (1970). This quest for accuracy in the determination of truth is expressed by the constitutional stature given cross-examination, yet i t is the same quest that also results in limited exceptions to the right of cross-examination. Cross-examination "is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Cilainbers v. Mississippi, 410 US. 284, at 295 (1973).

11. SCOPE OF CROSS-EXAMINATION The scope of cross-examination is

within the trial court's sound discretion, Toler v. State, 546 S.W.2d 290 (TexCrim. APP.~ 1977); Richardson v. State, SO8 S.W.2d 380 (Tex.Crim.App. 1974). This discretion must, however, be exercised within the parameters of the confronta-

tion clauses of the United States and Texas constitutions and the rules of evidence. See Evans v. State, 519 S.W.2d 868 (Tex.Crim.App. 19751, Jackson v. State, 482 S.W.2d 864 (Tex.Crim.App. 1972). The right to cross-examination is no longer seriously challenged, the issue is the right to "effective" cross-examination. Denial of the right of effective cros%examination is "constitutional error of the first magnitude and no amount of showina of want of vreludice would cure it." Ev&s v. State, supra at 873, citing Davis v. Alaska, 415 US. 308 (1974) andBrooklzart v. Jaais, 384U.S. l(1966). Commonly, such a denial occurs when the defense is trying to attack the cred- ibdity of a State's witness. According to the Court of Criminal Appeals, the general principle is "great latitude should be allowed the accnsed in showing any fact which would tend to establish ill feeling, bias, motive and animus of any witness testifying against him." Evans v. State, supra at 871. Caution should be exercised in regard to the words "any witness," as the Court of Criminal Ap- peals has refused to find a denial of effective cross-examination when it deter- mined that the witness was not a "ma- terial" witness. Alutscher v. State, 514 S.W.2d 905, 920 (Tex.Crim.App. 1974). The test of relevancy for the credibility attack is whether:

'& . . . Evidence to show bias or interest of a witness in a cause covers a wide range and the field of external circuu~stances from which probable bias or interest may be inferred is infinite. The rule encompasses all facts and circumstances which, when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only." Jackson v. State, supra, quoting Aetna Insurance Company v. Paddock, 301 F.2d 807, 812 (5th Cir. 1962).

A. EXAMPLES - I. Defendant wanted to cross-examine State's witness concerning prior arrests for purpose of showing bias towards the State. At pre-trial i t had become known that the complain- antlwitness had three charges dismissed. The trial court denied the request, but on appeal the conviction was reversed because the refusal was a denial of the

October 197S/VOICE for the Defense

tight t o effective cross-examination. Simmons v. State, 548 S.W.2d 386 (Tex.Crim.App. 1977). The Court of Criminal Appeals rejected the State's argument that the dismissed charges were distinguishable from pending charges on the issue of potential bias. Id at 388.

2. State's expert witness testified that his opinion concerning defendant's sanity was also the opinion of a board of psychiatric experts. The Court of Criminal Appeals reversed the conviction on the ground that while witness' opinion was admissible, the testimony of the witness concerning the opinion of others was inadmissible because the defendant would be denied his Sixth Amendment right t o effective cross-examination. Hosfetter v. State, 527 S.W.2d 544 (Tex.Crim.App. 1975).

3. Defendant was tried under a circumstantial evidence theory for a murder occurring during a robbery. State's witness testified that he had given defendant a set of gloves similar to ones found in defendant's car, that defendant was friend of co-defendant who had been positively identified, and that he had gone with defendant the day after robbery to shoot a gun similar to one used in robbery. On cross-examination it was shown that witness was friend of codefendant, had access to defendant's car, had a pair of gloves similar to ones found in defendant's car, and fit the third witness' description of the robber. Defendant wanted to cross-examine wit-

ness concerning pending felony indictment for sodomy. The trial court refused the request. On appeal, defendant argued that this refusal denied his constitutional right to effective cross- examination. The Court of Criminal Appeals reversed rejecting the State's contention thai Article 38.29 of the Texas Code of Criminal Procedure (evidence of a charge is inadmissible for impeachment) controlled the situation. In doing so the Court found the requested cross-examination went to bias, motive and prejudice, and was not to general impeachment. Evans v. State. 519 S.W. 2d 868 (Tex.Crim.App. 1975).

4. Confession of codefendant which implicated defendant was admitted at jomt trial. Co-defendant did not testify. Although trial court gave limiting instruc- tions as to its use only against the codefendant the Supreme Court reversed conviction on ground that no limiting instruction could be a substitute for the defendant's constitutional right of cross-examination. Bruton v. United States, 391 US. 123 (1968).

S. Defendants wanted to offer evidence and elicit testimony of officers showing police brutality after heroin arrest. After hearing outside presence of jury in which officer testified that defendants had beell taken to hospital after arrest, trial court refused to allow jury t o hear any evidence concerning matter. Court of Criminal Appeals

reversed, reasoning that "great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him." Hooper v. Sfate, 494 S.W. 846 (Tex.Crim.App. 1973).

IILHELPPUL HINTS IN CROSS- EXAMINATION 1. Cross-examine only when it's n e e

essary. Some of the State's witnesses' testimony may not be harmful to yom position after direct, but your cross- examination could elicit harmful testimony.

2. If you are going to cross-examine make sure you know what the answer should be. If you are not sure don't ask the question.

3. Outline where you want to take the witness with your crossexamination. Then prepare your questions carefully so as to reach your goal. If earlier State's witnesses have testified t o facts whish you know will be inconsistent with the witness' answers on cross, then attempt to ask questions that will show this inconsistency. Don't help the State's case by asking the same questions the State ksked.

4, Use leading questions; you have the tight to on cross.

5. Remember!! Stop while you are ahead. Going further may put you behind.

s

NEWSPAPER REPRINT from p. 3 Miller said the cost of the higher attor-

ney fees could be paid from an increase in court costs of $25 in misdeameanor cases and $50 in criminal cases. The proposed legislation also would require persons given probation in felony cases to repay the county for the cost of their court-appointed attorney.

"If a fellow is indigent to start with, how in the world would you expect that individual to pay back the court costs?," asked Rep. Cullen Looney, D-Edinburg.

BOARD MINUTES from p. 3 Concerning the general financial situation, Thomas Sharpe made the suggestion that we reproduce the Deputy Opinions, for sale to our members. President Luquette stated we should consider whether or not we would want to be in competition with her on them. It was decided that we should consider this further, before reaching a decision.

There being no further business, the motion was made by President Luquette that the meeting be adjourned. After being duly seconded from the floor, the motion carried. The meeting was adjourned at 11:25 a.m. Respectfully submitted,

Judy Bolander Executive Assistant to the President

ORDER NOW

CASSETTES FROM JURY SELECTION: SCIENCE AND LUCK SEMINAR

AND

PUBLICATIONS AVAILABLE FROM TCDLA

ORDER FORM AND LIST ONBACK COVER

VOICE for the DefenselOctober I9 78

. ., CRIMINAL DEFENSE LAWYERS ASSOCIATION, Suite 211, 314 West 11th Street, Austin, Texas 78701

PUBLICATIONS AVAILABLE FROM TEXAS CRIMINAL DEFENSE LAWYERS

ASSOCIATION

B-1 APPROACHES TO JUR Y SELECTION - Voir Dire I, Seminar, Materials & Handwriting Analysis, by

. . . . . . . . . . . . . . . . . . . . . . . . . Ray Walker $25.00 1 . ! B-2 Erisman's, MANUAL OF REVERSIBLE [ . . . . . . . . . . . . . . . . . . . . . . . . . . ERRORS. $33.50 I

. . . . . . . . . B-3 GEORGETOWN LA w JOURNAL ; $ 5.00

B-4 Tessmer's, HO W TOBREAK A BREA TH- . . . . . . . . . . . . . . . . . . . . . . . . ALYZER. . .$15.00

I . . . . . . . . . . . ~ B-5 TRAFFIC LAWS, by Jim Lovett $ 2.00

I B-6 TABLE OF OFFENSE AND PENALTIES : . . . . $ 1.00

CASSElTES AVAILABLE FROM TEXAS CRIMINAL DEFENSE LAWYERS

ASSOCIATION

(These cassettes are each one hour. They were made front the seminar entitled: 'Yury Selection: Science and Luck.')

Speakers and Their Topics: Each Tape

A-1 Ray Walker, Dallas-Jury Selection Throu~h Hand- . . . . . . . . . . . . . . . . . . . . . . writing Analysis $10.00

A-2 Fred Time, Dallas - Jury Yoir Dire, Body . . . . . . . . . . . . . . . . . . . . . . . . . . Language. $10.00

A-3 Richard "Racehorse" Haynes, Houston - Voir . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dire $10.00

A 4 Dr. Robert Gordon, Dallb - A Psychological Sfrategy . . . . . . . . . . . . . . . . . . . . forJury Selection. $10.00

A-5 Doug Tinker, Corpus Christi J u r y Selection in Capital . . . . . . . . . . . . . . . . . . . . . . . . Murder Cases $10.00

A-6 Stuart Kinard, Houston -Individual & Group . . . . . . . . . . . . . . Dynamics in Jury Selection. $10.00

A-7 Warren Burnett, Odessa -VoirDire. . . . . . . . . . $10.00

. . . A-8 COMPLETE SET OF ALL OF THE ABOVE $70.00 (Please allow two weeks for delivery.)

ORDER FORM

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in this issue - voice for the defense online...the proposal would double the fees in some instances,...

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