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FEBRUARY 1982 UWE& ip;ssoc~aam VOLUME 1.1, NUM . ~ ~. . ,

The charge is "DRIVING WHILE INTOXICATED." And the defendant is your client

TABLE OF CONTENTS 0 Introduction 0 The Metric System

Length, Volume, Mass Temperature Conversion Alcohol Reporting Terminology

Laboratory lntoxilyzer Model 401 1ASA Laboratory Procedure Breathalyzer Models 900 and 9OOA Laboratory Procedure

Instrumentation The lntoxilyzer Model 401 1AS-A The Breathalyzer

Ethanol Pharmacology/Toxicology

Legal Aspects of Chemical Breath Testing Breath Test Case Law

Reports 0 The Regulations

Trouble Shooting 0 Glossary

Index

Anybody who tries a breathalyzer case ought to nave this manual. In fact, I've been trying to find out how to get one for years. Hugh Lowe

Board Certified in Criminal Law A ustin

Developed by and for the Texas Department of Public Safety Published by TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

Publication date: 6 to 8 weeks Order from: Prepub Price to Members and nonmembers: $30.00 + tax (1.50) = $31.50 TCDLA Price to members: $45.00 + tax (2.25) = $47.25 314 West Ilth, Suite 315 Price to non-members: $55.00 +tax (2.75) = $57.75 Austin, Texas 78701

JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

OFFICERS

President: Charles M. McDonald Wac0 Prerident-Elsct: Clifford W. Brown Lubbock First Vice President: Thomas G. Sharpe, Jr. Brownrviile Second Vice President: Clif Holmer Kiigore Secretary-Treasurer: Louis Dugas, Jr. Orange Asst. Seeretan/-Treasurer: Stephen H. Capelie Austin

DIRECTORS

William F. "Bill" Alexandsr, Dallas Richard A. Anderson, Dallas Cecil W. Bain, San Antonio David R. Bires, Houston Jam- Babo, Odessa John C. Boston, Austin Charles D. Butts, San Antonio Donald B. Dailey,Jr., Corpus Christi Eugene DeBullst, Jr., Fort Worth Woody R. Denrsn, Houston M. P. "Rusty" Duncan Ill, Denton William V. Dunnam, Jr., Waco T i m Evans, FOR Worth F. R. "Buck" Filer. Jr., Tyler Michael Gibson, Dallas Gerald H. Goldstein, San Antonio Ronald L. Goranson, Dallas Grant U. Hardeway, Sr., Hourton Richard E. Harrison, Dallas Oliver S. Heard. Jr., San Antonio Jan Hsmphill, Dallas Knox Jones, McAllen J a m s H. Kreimeyer, Jr.. Belton Edward Mallen, Houston A rch C. McCall Ill, Dallas John J. C. "Rusty" O'Shea, Lubbock C. W."Rabin" Pearcy, San Marcos Jack J. Rawitreher, Houston Eduardo R. Rodriguez, Brownsviile Larry Sauer, Houston David Spencer, Austin Michael R. Thomas, Fort Worth E. Stsnlsy Topek, Hourtan Robert G. Turner, Houston Stanley Weinberg, Dallar R o n Zipp, New Braunfelr

ASSOCIATE DIRECTORS

Jack W. Beech. Fort Worth Robert M. Brawn, Lubbock Melvyn C. Bruder, Dailas Joseph A. Connorr 111, McAilen Malcolm Dade, Dallas

Deborah A. Gottlieb, Houston M m s e L. Harmon, Waco Charles Rittenberry, Amarillo Charles W. Teamsr, Dailas Doug Tinker, Corpus Christi Fred L. f inrley, Jr., Dallas Dain P. Whitworth. Austin

PAST PRESIDENTS

Frank Maloney, Aurtin 1971-1972

C. Anthony Friloux, Jr.. Houston 1972-1 973

Phil Burleson, Dallas 1973.1974

George Gilkerson, Lubbock 1974-1975

C. David Evans, San Antonio 1975.1976

Weldon Holcomb. Tyler 1976.1977

Emmett Colvin, Dallas 1977-1978

George F. Luquette, Hauston 1978-1979

Vincent W. Perini, Dailas 1979-1980

Robert 0. Jones, Austin 1980-1981

Editor: Stanley Weinberg

"S~qml'cant Den: nioni H t l w r " Editor: Kerry P. FitzGerald Contrhutino Editors: Richard Anderson

Arch C. McColl Ill

Executive Assistant t o the President: Rosalind Brinkley

Membership Secretary: Laurie Ramm

POSTMASTER: Pieare rend address chanw and business correspondence to Texas Criminr Defense Lawyers Arrociafion, 314 West lltl street, su i te 315, Aurtin. TX 78701. Phon (5121 478-2514.

VOICE for the Defenre i s published month1 b y the exa as Criminal Defense Lawyers Arrc ciation. AII articles and other editorial contr butions should be addressed to the Editol Stanley Weinberg. 7509 lnwood Road, Suit 300, Dallas, T X 75209. Advertising inquirie and contracts, rend to Dick Dramgople. Ar. forms Agency, P.O. Box 4574, Aurtin, T: 78765, (5121 451-3588. Annual rubwriptio rate for members of the association is SIC which i s included in dues. Nonmember rut wripfion-$20 ~ e r year: single copy-$5 Second class portage paid at Austin. Texa' ISSN 0354-2232

Q1981 TEXAS CRIMINAL DEFENSE LAWYERS ASSOClATlON

FEBRUARY 1982/VOLUME 11, NUMBER 6

REGULAR FEATURES . . . . . . . . . . . . . . . :ditor's Corner. .4

. . . . . . . . . . . . .etters to the Editor .4 . . . . . . . . . . . . . 'resident's Report. .5

. . . . significant Decisions Report ,1534 Uew Members. . . . . . . . . . . . . . . . .43 3oard of Director's Meeting,

. . . Waco, December 12,1981. .44-46 3ut Yeroner! . . . . . . . . . . . . . . . . .47

NEWS . . . KDLASeminar in Las Vegas .11-12

Tahoe Seminar Sponsored by Dallas County Criminal

. . . . . . . . . . . . Bar Association. .46

ARTICLES Impeachment Update

. . . . . . . . . Judge Chuck Miller 6 -1 0 auestions to Ask about Confessions

. . . . . . Joseph A. Connors 111 .13-14 Cruel, But Not Unusual- A Personal View

. . . . . . . . . . . Clifton L. Holmes .35 Criminal Appeals in Texas- A New Look

. . . . . . . . Kerry P. FitzGerald .36-43

CALENDAR OF EVENTS FEB 18-19 Federal Criminal Lawlnsti-

tute-South Texas College of Law-Houston.

FEB 19 Murder: Counsel for the Defense-CD LP-Houston.

FEE 21-25 Dallas County Criminal Bar Association Seminar, Tahoe

MAR 4 Applications for Criminal Rules of Evidence-CDLP -Austin.

MAR 21-26 Criminal Trial Advocacy Institute-Sam Houston State University-Hunts- ville.

MAR 25-28 TCDLA Seminar Las Vegas

APR 15-16 Criminal Defense Skills Course-Dallas.

MAY 6.7 Criminal Defense Skills Course-Corpus Christi.

THE COVER Independence Hall-Thomas Jefferson's walking stick, where Constitution of United States was penned. (compliments of Emmett Colvin, Dallas)

Editor's Corner

or to try to make you feel bad. However, persons charged with offenses of auto- in ease you are ever cakd to serve on matlcally being liars. It is also ethiially a criminal jury again,I want you to realize venal when that same pnhlic representa- that almost all criminal defendants lie tive proceeds to attack his fellow attor- under oath, and that they do it quite neys who represent the citizens accused skillfully." as suborners of perjury. ~ n d , in addition,

That wasn't enough for Mr. Martin. spreads his sticky smear of calumny to He also told the jurors that, "Addition- tdut the right of future defendants to ally, many criminal defense attorneys not only a fair and impartial jury but to are quite adept at teachimg their clients effective assistance of counsel. how to get away with snoh lies, I feel ~efense Attorney Jimmy tassels de- strongly that our criminal justice system fended the four men acquitted by the will not be effective unless potential jurors to whom Martin wrote his stink j u m s are informed about the frequency bomb of a letter. He says he is "ince~ed'" with which defendants Iie." about it and has asked the local bar

Martin's boss, Angelina County Attor- grievance mmmittee toreprimand Mattin. Something terribly wrong isbeingdone ney Ed Jones, to hi$ credit, reprimanded Somehow, either thelaw school where

to the presymption of innocence. his assistant and sent letters of apology the assistant prosecutor got his training This fundamental linchpin of our ctim- to the judge, jurors and defense lawyers is woefully lacking it its effo~ts to shape

inal jurisprudence is being slapped, in the case. He also correctly noted that the thinking of attorneys to he, or Martin stomped and mauled every time you turn Martin's statement was in conflict with chose to ignore it. atound. the basic principle of law that a person is Martin, for his paa, told reporters

The latest attack happened over in presumed innocent until proven guilty. that there were many things he said in East Texas when a prosecutom w m e However, Mr. Jones also said, accord- the letter that he should not have said citizens who s;lt on a jury that "almost ing to reports,inexplaining that the state- because he let himself get too involved all criminal defendants lie under oath." ments were just not accurate, that the let- in the case.

Assistant Angelina County Attorney ter was"theerrorof a youngpmsecutor." The VOICE hopes that Martin stays Joe Martin apparently got his nose bent It seems to us to go much further than involved in his cases, but not so deeply out of joint when those jurors found four that. that the basic principles of law, due men charged with hunting violations It is one thing to he irritated over process and fairness, fade from view. not guilty of the accusations. losing a case. But, it's a moral abomina- We hope he remembers that those same

According to newspaper accounts, tion when a professional representing all principles support his client, the State of Martin told the jurors, in part, 4 am the citizens of the State of Texas in Texas and its citizens, all of whom not writing this to say 'I told you so' Angelina County goes on record to accuse happen to he presumed innocent.

Letters to the Editor To the Editor:

At a recent seminar here at Texas Tech University School of Law dealing with legislation from the 67th Legisla- ture a number of attorneys expressed deep, and I think clearly warranted, concern about a new provision of the Con- trolled Substances Act, Section 4.052(a) (Illegal Investment) makes a person guilty of an aggravated first degree felony punishable by 5 to 99 years or life and a 850,000 to $1,000,000 fme "if the person knowingly or intentiodly (1) re- ceives or expetlds funds he knows or heiieves are derived from the commission of an offense under [the sections of ihe Act defining the new %eravated' drug offenses] ." Literally, this provision poses

a serious risk of potentialcriminal liability to any attorney paid a fee by a person alleged or thought to he a drug dealer in connection with his representation in any matter, criminal or otherwise. Wheth- er or not there is a prosecutor some- where nasty enough to try to use i t against an attorney, the provision's mere existence is an ominous cloud over drug de- f e w wotk and it raises some serious right to counsel questions. It obviously could affect a signignificant portion of our membership and is something the Associa- tion would have an immediate interest in responding to.

Consider this an offer of assistance in any attempts by the Association to neutralize this threat.

Sincerely, Charles P. &bany

Professor of Law, Texas Tech University

Dear Editor: The October issue of the VOICE fa

the D e f m included my article on the Foreign Corrupt Practices Act of 1977. In order to put that legislation in a congressional perspective this epilog is provided.

During the last year Congress has held hearings to determine whether the Act should be abolished. If you want to order some portions of the congressional record covering these hearings please contact your congressman.

The key issue in the suggested elimina- tion of the Act is the recognition that American companies cannot he competi- tive with companies operating in foreign countries unless they pay a premium to someone in power. The recognition of the "mordida" as a means of doing husi- ness in Mexico has similar application

President's Report

If you haven't planned your Las Vegas trip, you've only got a few days left. The deadline for reservations is February 19 to attend the Federal Criminal Law Seminar planned at the Dunes Hotel March 25-28. If you don't have the time to make your plans, give Rosalind a call at the headquarters office, and she'll confirm aU the arrangements for you. Special thanks go to Knox Jones and Richard Harrison for setting np the Spring Trip, getting the speakers and plamirtg the details. We appriedatc their contributions and the time they dedicated from their busy schedules to arrange this outstanding weekend.

February 5 was a red-letter day for the association in Dallas. A historic first took place at the Adolphus Hotel following a CDLP seminar when all the past presidents and President-Elect Clifford Brown met for a formal group portrait. Look forward to receiving the June Con- vention issue with the final product on the cover as we begin our twelfth year as the largest and finest criminal law association in the nation.

" ,, currentlv based on the number of years CHARLES M. McDONA L D you have been a member of the State Bar. Those wbo have been a member like to continue reading it. We appreciate for two years or less should pay $50; the fine commelrts made by the judiciary if your license is dated between 1976 and the overwhelming support they have and 1980, you would pay $100. All voiced for our publication in the recent bar dates preceding 1976, would place poll regarding their complimentary issue.. you in the $150 dues payment category. We also appreciate your comments and Help support your organization by send- participation regarding the association's ing your dues in timely so budgets can business. We invite your letters and com- be prepared and planning can begin for ments and urge you t o have an active the legislative session. mice in the association.

A recent poll of judges indicates that Looking forward to seeing you in they read the VOICE and they would Las Vegas on March 26.

LETTERS continued

to Japan (aircraft contracts) and other and would appreciate Mr. Sparks' assist- and other substances. major friendly sovereigns. ance in locating the source from which Do you have such a list either in a The reality of doing business in a this quote is taken. booklet or simply as a listing?

foreign country includes the evaluation The second concern is the paragraph Any assistance you can render will of money and time expenditures. I sug- on page 29, which begins with the sen- be appreciated. gest you purchase the congressional cence: "Second, the legislature haspro- Very truly yours, record on these matters if you have a hihited a trial court judge from giving a Robert P. Walker case under the Act. Some of the informa- person shock probation who has received Attorney At Law tian may be important on the type of probation before." Port Arthur, Texas . &

foreign financial activities our government recognizes and condones.

Thomas G. Sharpe, Jr. Brownsville

Dear Editor: I appreciate Mr. Sparks' review of

criminal law legislation in the September issue. There are two commentaries, however, which cause me some concern. In the first paragraph on page 29, Mr. Sparks quotes from new legislation: "The placing of a defendant on a probation for a conviction of a felony or misdemeanor shall not l i e considered a final conviction for the purpose of this act."

I have not been able to find this explicit statement in legislation which passed,

In my review of Senate Bill 123, I am not able to arrive at this conclusion, and again request Mr. Sparks' assistance.

You have an excellent publication and I sincerely appreciate your efforts, and those of Mr. Sparks to inform all of us in the criminal justice business of changes in the law.

Very truly yours, Don R. Stiles

Executive Director Texas Adult Probation Commission

Dear Sir: I am trying to locate a listing of chemi-

cal laboratories who are equipped to test items such as clothing for chemicals

Dcar Editor: I wanted to let you and the other

members of the Criminal ~ e f e n s e Law- yers Association know how much I appreciate your forwarding to me your monthly journal. I want to adnse you of a change of address and I would appreciate your forwarding to me all future copies of the journal at the following address: Norman L. Utter, Associate Justice 13th Court of Appeals Nueces County Courthouse Corpus Christi, TX 78401

Thank yon ag$n for sending me the copies.

Kindest personal regards, Norman L. Utter

(More letters on page 46.)

February 1982/VOICGfor the Defense 5

IMPEACHMENT UPDATE Judge Chuck Miller County Criminal Court No. 7 Dallas

INTRODUCTION: The prerequisite to the relevance of this subject is that a

witness has testified or a statement of a witness is in evidence (dying declaration, former trial testimony, deposition, etc.) and you don't want the testimony believed or want less weight given to it. You want to impeach that witness.

The various rules of evidence concerning this subject are broken down into essentially three categories:

FIRST: Impeachment by Facts Inconsistent with Present Testimony.

SECOND: Impeacl~ment by Facts Showing Bias, Animus, etc.

THIRD: Impeachment by Evidence of Bad Character. Additionally, there is a narrow area of impeachment of

expert witnesses which is treated as a fourth category.

GROUND RULES: 1. You can impeach your OWN witness by evidence of

bad character (for T & V, etc.) (C.C.P. 38.28) if SURPRISED (can't put witness on stand just to impeach him) and testimony INJURIOUS. WILLIAMS 521 + 250; PELTON 322 + 529.

2. You can impeach other's witnesses as outlined hereafter:

FIRST CATEGORY: IMPEACHMENT BY FACTS INCONSISTENT WITH TESTIMONY I. DEFINITIONS:

(1) PRIMARY FACT = any fact a witness testified to under oath at a trial.

(2) IMPEACHING FACT = any fact inconsistent with Primary Fact.

11. ADMISSIBILITY OF IMPEACHING FACT (1) If the Primary Fact is brought out on DIRECT

EXAMINATION (DIE) then the Impeaching Fact is per se admissible on Cross Examination (X/E) or later.

(2) If the Primary Fact is brought out by X/E and the Impeaching Fact is proffered by the XIE'ing party then the Impeaching Fact must be shown to be not collateral or immaterial. MARTm 105 + 1090.

Test of Collateral: Could the Impeaching Fact be admitted as part of the impeaching parties' case?

Reason for a different rule where the Primary Fact is brought out on DIE is that it is unfair t o bind a XIE'ing party to an answer to a Q asked on D/E that he can impeach; but courts frown on the same party "setting 'em up & mowing 'em down."

111. ADDlTIONAL ADMlSSIBILITY RULES IF D IS THE WITNESS WHO GAVE THE PRIMARY FACT (1) Concerning either D's Written or Oral Prior Incon-

sistent Statement. Non-compliance with Miranda v. Arizona (384 US. 436) does not ~ roh ib i t use of impeaching statement. Harrisv. N.Y., 401 U.S. 222, 28 L.Ed. 2d 1.

(2) Concerning only D's Oral Prior Inconsistent State- ment. A. Oral Confession statute specifically allows use of

the oral statement of D if the statement "BEARS ON THE CREDIBILITY OF THE ACCUSED AS A WITNESS" (Art. 38.22 55, C.C.P.) and the statement is (1) made in open court by D or (2) is res gestae or (3) a statement not the result of custodial inter-

rogation (Cunningham 488 + 117;Dzmcantell 563 + 252; See definition of INTERROGA- TION in Appendixl) or

(4) if voluntary a statement made as a result of a custodial interrogation.:!

IV. METHOD OF IMPEACHING Prior Inconsistent Statement of the witness consisting of the Impeaching Fact or Another witness to testify t o Impeaching Fact (1) Prior Inconsistent Statement

Nature: Can be written or oral, sworn or unsworn, but i t must be INCONSISTENT (loose area). State- ments essentially must repel each other. : Can't use silence at the time of ARREST. Doyle v. Ohio 426 US. 610; 49 L.Ed. 2d 91. Predicate: A. Witness testifies to Primary Fact B. Witness is given time, place and t o whom Prior

Inconsistent Statement containing Impeaching Fact was made or given (it's sufficient if you reasonably alert witness about statement). Huff 576 + 645.

C. Ask witness if he made it. lVilson 275 + 799; Bostick 363 + 474.

Result of Witness response to Prior Inconsistent Statement: A. If admits it can't introduce it.

Kepley 320 + 143; Clzerb 472 + 273.

B. If denies or can't remember it then introduce and prove up statement (written or oral). Thrash 500 + 834.

C. If witness impeached by Prior Inconsistent State- ment, he can be rehabilitated by explaining Prior

6 VOICE for the Defensflebruary 1982

Inconsistent Statement; or can rebut Prior Incon- sistent Statement with a Prior Consistent State- ment. Gill 479 + 289; Smith 475 + 238. Beware Article 38.24 C.C.P.-if introduce part of a writing (Prior Inconsistent Statement) other side can introduce the rest. Argue that only parts relevant to emlain the inconsistencv are admissible.

D. Prior Inconsistent Statement used for impeachment is NOT substantive evidence ever and won't sns- tain a conviction. Rogers 368 + 772; Hall 297 + 685.

(2) Using Another Witness to prove Impeaching Fact: If the Impeaching Fact is not a Prior Inconsistent Statement then may prove up Impeaching Fact with other witnesses eitherwith or without fxst challenging the witness who testified to the Primary Fact.

(3) Examples of Both Methods. A. Where Primary Fact elicited on X/E and NO

IMPEACHMENT allowed becauseof collateralness. Kelburn 490 + 551; Narc, who allegedly bought LSD from D, on X/E denied ever dehvexing drugs to civilians-defense not allowed to introduce evidence that he had. Corpus 463 + 4 and Archiga 462 + 1: Narc, who allegedly bought drugs from D, on X/E admitted makmg 42 "buysJ' and further admitted one was from "XJ'-defense not allowed to introduce evidence showing "X" was out of country in a mentalinstitution at exact time of "buy." Cox 246 + 474: D on trial for selling whiskey to ATF Narc. D's wife on XIE by state denied selling whiskey to ATF Narc-State not allowed to put ATE Narc on stand to rebut.

B. Where Primary Fact elicited on X/E and IM- PEACHMENT ALLOWED. Binnion 558 + 485: Narc, who allegedly bought MJ from D, on X/E denied ever smoking MJ or offering to sell Heroin to D-defense should have been allowed to rebut. Montemayor 543 + 93: D charged withaggravated assault on a peace officer. On X/E peace officer complainant denied ever fighting with X under similar circumstances-defense should have been allowed to rebut by putting X on stand. (D raised self defense.) Cooper 578 + 401: "When the guilt of the accused turns on the evidence of a single witness, the general rule against impeachment on collateral matters must not be so rigidly applied as to shield that witness from a piercing credibility review by the fact-finder. Besides, in a drug sale prosecution, drug transactions by the condemning witness are not so clearly collateral."

C. Where Primary Fact elicited on DIE and IM- PEACHMENT ALLOWED. Simmons 564 + 769: D on trial for robbery denied

use of narcodcs. Stateallowed to introduce routine probation records saying, "He admitted using drugs several times and also use of Heroin." (Okay to use

. records under Texas Business Records Act, Art. 3737e V.A.C.S.) Interesting case since D made the Primary Fact Statement in response to the CW narrating D's res gestae statement, "I have a mon- key on my back, d l00 a day!'

SECOND CATEGORY: IMPEACHMENT BY FACTS SHOWING BIAS, INTEREST, ANIMOSITY OR MOTIVE TO LIE OR SLANT THE TRUTH

I. RULE: When the defense is doing the impeaching then because of the sixth amendment's right of confrontation of witnesses great latitude should be allowed the accused to show a witness'bias or motive to falsify his testimony, etc. Davis v. Alaska 415 US. 308,39 L.Ed. 2 347. Otherwise the GENERAL RULE is that the extent to which a witness may be cross-examined, for the purpose of showing bias, on a collateral matter rests in the sound diwretion of the trial judge. TEIA u. Garza 308 + 521; Alford v. US., 282 US. 687 75 L. Ed. 624. Must balance probative value against (1) possibility of undue prejudice, embarrassment or

harrassment; (2) possibility of misleading or confusing the jury: (3) possibility of undue delay or waste of time.

11. SPECIFIC AREAS (1) Specific ACTS of MISCONDUCX not resulting

in an impeachable conviction GENERALLY are NOT ALLOWED for use in impeachment to show bias, motive, ill feelings or animus, Art. 38.29 C.C.P. Hoffman 514 + 248; Smith 516 + 415; Mtrrphy 587 + 718. but OFTEN ARE ALLOWED because of the D's sixth amendment right of X/E in spite of Art. 38.29 C.C.P. Simmons 548 + 386 at 388.

Examples: A. Defense generally may show that a KEY state's -

witness: (1) has been arrested for even unrelated offenses

Simmons 548 + 386. State's key witness had three unrelated charges against him but all three had been dismissed before witness testified. Defense should have been allowed to explore area. Castro 562 + 252. One of State's KEY witnesses was originally arrested and indicted for an offense arising out of D's offense. Case dismissed against witness before D's trial. No deals made. State had more evidence (including confession) against D than Patton had tanks. Defense still should have been

February 1982/YOICEfor theDefense 7

IMPEACHMENT UPDATE continued

allowed to explore area in front of jury. Although HARMLESS ERROR RULE applies in this area 562 + 257 (Cf. Davis v. Alaska, supra, 415 US. at 318 saying Harmless Exror Rule didn't apply in some fact situations).

(2) is presently on probation, even juvenile probation; Davis v. Alaska, 415 U.S. 308, 39 L.Ed 2d 347 (1974). State's key witness on juvenile probation for unrelated offense at time of testimony. No deals cut. Defense SHOULD HAVE been allowed to show witness' status.

(3) is presently under unrelated charges though no deals have been made: Randle 565 + 927. State's KEY witness UNDER indictment for unrelated offense in another county. DA testified no deals were cut. Defense SHOULD HAVE been allowed to show witness' status. See also Evaw 519 + 868.

(4) is presently suspected of or charged with same offense as D (ie. accomplice witness). O'Neal146 S.W. 938.

B. But if witness isn't a KEY witness then defense is generally not allowed to go into the first three areas (discretionary). Mufseher 514 + 905.

C. Also if the key witness has been fned for unrelated theft but no criminal charges were ever filed, same result as B. Smith 516 + 415. CW, who was only witness in robbery case, was fned for theft of some money that was unexplainably missing from the robbed 7-11 six months after alleged robbery. D not allowed to bring this up-collateral and immaterial.

D. Also if the key witness police officer has been suspended for an unrelated incident and might want to curry favor with the police chief-defense still can't go into it. Cloud 567 + 801. Police Officer CW suspended for making an unrelated false report seven months after arresting D but before Trial. Collateral and immaterial.

(2) Any "Deals" made for KEY witness whether WLT- NESS KNOWS OF DEAL OR NOT are provable. Bwlshalter 493 + 214. Co-indicted key state's witness was unaware of agreement between his attorney and DA to dismiss his case after he testified against D and for the state. Defendant should have been allowed to present the "deal" to the Jury. (Don't forget Motion to "Reveal the Deal": see Giglio v. US., 405 U.S. 150,31 L. Ed. 2 104 119721.)

(3) Within discretion of court, relationships between accused and key witness (for state or defense) are provable. Bmtzford 306 + 725. CW filed civil suit against D before trial. Defense should be allowed to acquaint jury with this fact. Brown 323 + 954. Key defense witness had allegedly committed sodomy with D (Reversed when the state

went into this-prejudice, outweighed ~robative value). Daywood 248 + 479. Key defense witness properly Q'd by state regarding her heterosexual relationship with D.

111. METHOD O F IMPEACHMENT FOR BIAS, INTEREST, ETC.: (1) Can XIE witness directly about it (i.e. ask him if

biased or question about specific acts). (2 ) Can simply show specific act of witness by other

witnesses without predicate (unless it's a prior utter- ance-then must lay same predicate as Prior Inconds- tent Statement). Campbell 320 + 361 ($10 bribe). Olmpbell 320 + 361. D's witness "X" testified D was sober on the date of arrest for DWI. Without further predicate DA allowed t o call witness "Y" to say "Xu had offered "Y" a $10 bribe to also say D was sober on date of arrest. No evidence D knew of bribe offer. DA's action proper to show motive, bias or interest ofwitness "X". Note: Impeached party can rebut evidence of bias with ANY OTHER evidence tending to show absence of bias or may recall impeached witness to deny bias. G i n 153. S.W. 147.

THIRD CATEGORY: IMPEACHMENT BY EVIDENCE OF BAD CHARACTER I. GENERAL RULE:

The only bad character trait of a WITNESS that can be brought out for impeachment is the witness' bad character in the area of truthtelling or Truth and Veracity (T &V). (Even true for accomplice witness testifying for stateJ3 Exceptions: Rape victim's prior chastity-see Tx. Penal Code Art. 21.13; Murder victim's prior aggressiveness where self-defense is in issue-see Brown 477 + 617.

11. GENERAL RULE AS TO D'S CHARACTER TRAITS A S A D (Of course when D takes the stand he also becomes a witness subject to impeachment): The state cannot attack the D's character or reputation until the D puts it in issue. Lucas 378 + 340.4

111. ONCE WITNESS HAS TESTIFIED or D has out his reou- tation in issue with a "eood reu" witness5 then other side ., can Impeach that witness only by one of the three following methods: (1) Use of Prior Convictions to show bad character of

that witness for T & V. (2) Use of Evidence of that witness' bad reputation

fo rT&V. (3) Use of "Have you heard" Q's to test a reputation

witness' knowledge and thereby impeaching him with examples of specific acts of the person whose reputation is in issue.

(1) Prior Convictions Evidence of Prior Convictions to show bad character for T & V. Method: Ask witness on XIE if he was convicted of "X" offense in "X" county at "Xu time. Jolz~ison 453 + 828. Or: Prove by testimony of another witness without

8 VOICEfor the DefenseRebruary 1982

Caution: When the party vouching for the witness brings up his past convictions they are in evidence for all purposes and therefore he gets no limiting

first asking the impeached witness. Johnson 453+ 828. Rules: A. Can use only felony CONVICTIONS or convictions

for misdemeanors of moral terpitude. Neil1 258 + 328. (Moral Terpitude = prostitution, theft type offenses, adultery, etc. but not MJ, DU'I, UCW, etc.) See Texas Digest, Criminal Law Key 369.2(1). CONVICTION as used here means a finaI (not on appeal) conviction (Art. 38.29 C.C.P.) Burden of proof t o show finality: Once the impeaching party has established the fact of conviction, either by questioning the witness or producing the judgment and sentence, the burden shifts t o the party sponsoring the witness t o show conviction is not fmal and that burden must be met with the use of competent documentary evidence. Poore 524 + 294; or state probation if witness is still on probation (Art. 38.29 C.C.P.): OR federal probation whether expired or not. Korematm ;. U.S. 319 US. 432.

- I. Also, Conviction must be RECENT IN TIME.

No longer than ten years but even use of more recent convictions is discretionary. Courts look t o age of Defendant at time of offense and conviction and now; events since offense and conviction; offense itself and evidence of witness' reformation. See Stephens 68 + 181; Miller 549 + 402; Dilkzrd 218 + 476; Davis 545 + 147. TIME is computed from Defendant's release from jail (or projected release if actual is unknown) or, in probation cases, time of conviction. McClendon 508 + 851. TIME is further computed by leap-frogging back from conviction to conviction in up to ten year increments if, and only if, the convictions are felonies or misdemeanors of moral terpitude (i.e. Murder Conviction eight years ago that witness got out of pen on three years ago would allow impeachment of witness with a rape conviction seventeen years ago.) Davis 545 + 147.

C. No details of conviction allowed other than what crime was and time and place of conviction. Driehs 301 + 123.

D. A Pardon does not preclude impeachment with the pardoned conviction. Nor is Pardon admissible to rebut impeachment unless granted on subsequent proof of Innocence. Logan 448 + 462 cf. Gaines v. Sf. 251 SW 245 (1923).

E. If conviction is void and same is shown on collateral attack in present proceeding then it can't be used. (i.e. No atty-Bursett v. Texas, 389 US. 109; missing element of offense in indictment; etc.) Loper v. Beto 405 US. 473.

instruc6onif the^ is the witness that they are only t o be considered as to the D's T & V.

(2) Evidence of Bad Reputation in Community for (T & V) (etc.) Method: Q: "Do you know the reputation of "X" in the community where he liveslworks (among the people who know him best)?"

A: "Yes!' Opposing Counsel: "Objection (if he hasn't yet!) Request an out-of-presence hearing t o test the witness' knowledge. Judge: "Granted." Crawford 480 + 724; Curtis 519 + 883. Later resuming in front of jury: Q: ''Is that reputation good or bad?" A "Bad (Very Bad)!' Q: "IS it such as to entitle "X" t o belief under oath?" A. "No (Heavens NO)." Davis 115 + 968. (MUST allow last question.) Note: If outdpresence hearing refused, make Bill oFException. A Impeached witness must have tes tsed on vital

matter. Howell 109 + 1064; Yarborough 276 + 303.

a Reputation witness can't be testifying as to personal opinion. Perasco 323 + 257.

C Reputation witness must know reputation of 'IX" in the community in which "X" lives or lived recently but needn't have known Defendant before trial. Chamberlain 453 + 490.

D. If reputation witness hasn't heard "X's" reputation discussed or hasn't heard of specific bad acts of "X" then he's NOT qualified to say "X's" reputation is BAD (if says reputation is GOOD, he NEEDN'T have heard it discussed and needn't have heard any specific good stuff.) Gilson 145 + 182; Smith 283 + 936; Watson 605 + 877.

E. Witness is allowed to state his own occupation even though it might, by itself, seem prejudicial to the D. (Carrillo 566 + 902, witness was an investigator for the Organized Crime Division of the A.G.'s office; Orfir 577 + 249, witness was a Federal DEA agent.)

(3) Impeachment of a Reputation Witness in X/E: Done by "Have you heard'' Q's asking rep witness if he has heard of spec& incidents involving the vouched-for witness (or Defendant) which conflict with the type of reputation that the reputation witness testified about. Adants 255 + 513. Example: Witness has testified that "X" has a good

February 1982/VOICE for fheDefense 9

IMPEACHMENT UPDATE continued

reputation for sobriety in DWI case. On X/E "Have you heard that 'X' was arrested for public intoxication 25 years ago in Dallas while he was a juvenile?" is proper.

Rules: A. Purpose is to test witness' complete knowledge of

the reputation he's talking about. B. Q's can't assert that the incident DID occur.

"Did you know" versus "Have you heard." Moffett 555 + 437; Maxwell 595 + 126. ie . "Have you heard 'X' beat his wife after she discovered he burglarized a house in 1973" is IM- PROPER because is a direct assertation that "X" DID burgle a house.

C. Q's MUST be in Good Faith (can get out-of- presence hearing on this and put DA on stand).

D. The act Q'd about must be inconsistent with the reputation talked about, i.e. can't ask "have you heard 'X' stole?" when witness testified about "X's" reputation for sobriety.

E. The Q's cannot be about the present offense. Frison 473 + 479.

F. The Q's can be about juvenile acts. G. No remoteness rule,

Cherry 502 + 9. H. Can be leading-more effective: "You're not tell-

ing this jury that you've heard 'X' burglarized a house in Dallas last year, are you?"

NOTE: Where Co-Defendants are ADVERSE to each other and one Co-Defendant's Attorney asks the other Defendant's reputation witness "Did yon know" type Q's over objection, that Defendant gets another trial (otherwise known as a free severance and unlimited discovery), DeGrate 518 + 821. Note Also: Exactly what the witness has heard is not admissible t o rehabilitate witness after "Have you heard" Q's (as opposed to "What do you base your opinion on?'' which opens the barn door). So ask "Have you heard GOOD stuff" Q's if reputation is bad, i.e. "Have you heard 'X' was voted Man of the Year by the Jaycees?" See also Torbert 313 + 303 for an excellent example of the state using this tactic. See also Tucker 578 + 409 where state asked a "have you heard" Q about D's former rape trial and defense not allowed to show trial resulted in acquittal.

FOURTH CATEGORY: IMPEACHMENT OF AN EXPERT WITNESS In addition to the methods of impeachment previously drs- cussed, an expert witness is vulnerable to an impeachment attack on two areas:

1. Past conduct indicating a bias toward one side, and 2. Impeachment by expert treatise.

I, PAST CONDUCT INDICATING A BIAS TOWARD ONE SIDE OR THE OTHER. Example: If a doctor habitually testifies and/or is paid as

an expert by one side then he can be X/EJd about same in front of the jury. Barrios v. Davis 415 + 714; Aussell v. Young 452 + 434. If X/E is disallowed by judge you must perfect Bill of Exception to preserve error. &ambers 568 .+ 313, (where the defense sought to so question Dr. James P. Grigson in a capital murder case). See also Art. 40.09 56 (d) (I), C.C.P.

-Bill of Exception -Offer of Proof -Don't need to re-object in front of jury.

11. IMPEACHMENT BY EXPERT TREATISE Example: If you can get an expert, on X/E, to admit that a book or treatise, etc., is authoritative, then you can read passages contra to witness' position or testimony and ask him if he agrees with them and Q him from there. Goes to discrediting witness' testimony or its weight. Bodes v. Bourdon 219 + 779; Goodnight v. Phillips 458 + 196.

.................................................

APPENDIX 1. See definition of interrogation as: So long as officer's

statements were designed to elicit incriminatingstatements. Brewer v. Williams, 430 U.S. 387, 51 L. Ed. 2d 424.

2. Note: 5 3 of Art. 38.22 C.C.P. was amended eff. 9/1/81 to allow admission of recorded oral confessions in state's case-in-chief. Formerly this section provided that a voluntary oral statement could only be used for impeachment and then it must have been recorded or it still could not be used. By repealing this old language in 93 and by leaving 05 intact, has the legislature inadvertantly sanctioned the use of a voluntary, non-recorded confession for impeachment. See Duncantell 563 + 252 far ammuni- tion.

3. Shannon 567 + 510. Accomplice witness testifying for state was only other person besides D who could have committed the murder and also the only eye witness to the murder besides D. No other strong evidence D and not accomplice did murder, other than accomplice's testimony. D NOT ALLOWED to proffer evidence of accomplice's bad character for being law abiding or peaceful.

4. Exceptions: Defendant says he's never been in SERIOUS TROUBLE. State can impeach with felonies or misdemeanors of moral terpitude regardless of remoteness. Rodriguez 272 + 366; Stephens 417 + 286, Defendant says he's never been in TROUBLE. Don't even waste your time objecting for the next 20 minutes Hoffman 514 + 248. Note: State can't ask Defendant, over objection, if Defen- dant has ever been in trouble, but if no objection and Defendant says, "No," then even extraneous offenses come in over objection. Carter 550 + 282.

(@nfimed on page 46)

10 VOICE for the DefeMebruary 1982

FIND YOURSELF IN

MARCH 25128,1982

FEDERAL CRIMINAL LAW SEMINAR March 26,1982

PROGRAM

Attendees will meet in Pyramids I and 11, South Tower-2nd floor

Opening Remarks Charles McDonald, President, T.C.D. L.A.

Grand Jury Abuse J.A. "Tony" Canales, Corpus Christi

Opening Statement and Final Arguments Emmet Colvin, Dallas

Break

Cross-Examination Under Federal Rules Gerald H. Goldstein, San Antonio

Luncheon Luncheon Speaker: (Pyramid 111) Oscar Goodman, Las Vegas

Handling Complex Federal Criminal Cases Phil Burleson, Dallas

Emasculation of the Attorney-Client Privilege Frank Maloney, Austin

Break

Use of Tape Recordings in Federal Criminal Richard "Racehorse" Haynes, Houston Cases

Cocktail hour (Regency I & Il-at end o f corridor)

TCDLA 314 W. l l t h , Suite 315 Austin. TX 78701

Enclosed is $ as full payment for persons. Make check payable to TCD LA.

ADDRESS - PHONE

CITY STATE ZIP

Add $75. per person for SEMINAR REGISTRATION FEE. Check here if attending 0

DEPARTURE CITY HOUSTON 0 DALLAS 0 (Check One) $234 $250

See pnge 12 forfli&rched- uler and dead- lines far reservations.

RESERVATIONS:

HOTEL: RESERVATION DEADLINE: March 1, 1982 PRICE: 3 nights at Dunes Hotel,

double-$50 per night FOR RESERVATION: One night must be prepaid; for deposit invoice, call 1-800-634.6971

NOTE: Mr. and Mrs. Morris Shenker of the Dunes Hotel will host a cocktail party opening nhht from 8-9 p.m. in Regency t & 11, South Tower.

SEMINAR/AIRLINE: RESERVATION DEADLINE for both: February 19,1982 Make reservations through T.C.D.L.A.- see reservation form. AIRLINE PRICES: Based on air fares as of January 18, 1982. GROUP DEPARTURES: From Dallas D/FW and Houston Intercontinental (see schedule).

- FLIGHT SCHEDULEIDALLAS - DIFW Airport

(Ameriuan Airlines hospitality suite open at2:30,3/25)

AIRFARE $250 3125 Depart Dallas 4:08p.m. American Air-

lines. Flight 640 (nonstopi

Arrive Las Vegar 4:47 p.m.

3/28 Depart Lar Vegas 12:OOp.m. American Air- lines, Flight 414 McCarran A~rport

Arrive Dallas 429p.m.

-FLIGHT SCHEDULEIHOUSTON- Intercontinental Airport

AIRFARE $234 3/25 Depart Houston 4:30 p.m. Western A~rlines

Arrive LasVegas 6:33p.m. Flight621 ( l r tap in Albuquerque)

3/28 Depart Lar Vegas 9:50a.m. Western Airlines Flight 620 McCarran Airport

Arrive Houston 3:Wp.m.

Reservations should be made throuah TCDLA - office. Send reservation form on page 17 to:

TCDLA ~uite-3 l5,3 14 West 7 1 th Austin, Texas 78701

Deadline for reservations is February 19, 1982,

12 VOICEfor the Dt?Fe~~se/February 1982

SOME QUESTIONS TO ASK ABOUT CONFESSIONS Joseph A. Connors 111 McAllen

I ruislz to ackiiowledge uahrable assist- . a m e bi conpletbrg tkese qi~estions received from the follosbrg TCDLA members: Louis Dugas, Kerry Fitz- Gerald, Clif Holnzes, J.M. Rnmirez, and Richard Tl~ori~ton.

A.Defense Attorney's Partial Cross- examination of Officer WhoTook Written Confession:

Q. It is true that you did not want to take (Defe~~dant's Name) before a Magis- trate until you had obtained a complete written statement from (Defendn~~t's Naine)?

Q.I t is true that no Magistrate saw (Defendant's Name) until after you had obtained a complete written confession from (Defendant'sName)?

Q. Do you speak more than one language?

Q. What are they?

Q. What is your dominant language?

Q. What language did you use when you told (Defendant's Naine) his Mirmda rights?

Q. What language did you use when you interviewed (Defendant's Name)?

Q. If the defendant's statement was given in a language other than English, who translated i t into English?

Q . W a s the translation made to your satisfaction?

Q. Did you ask (Defendairt's Name) if he agreed with the translation?

Q. Did you tell (Defendant's Name) that this statement would be used to try to send him to the State penitentiary?

Q. Did you tell (Defetzdant's Name) that he should not give a confession until after he had talked to an attorney?

Q. Did you tell (Defe~zda~~t's Name) that an attorney could probably help him while the police were interviewing and interrogating him?

Q. Did you tell (Defendant's Nnine) that he would be better off in the long mn if he did not give the police a statement?

Q. Did you explain to (Defelrdavzt'sNair~e) how he could immediately get a free lawyer?

Q. Did you tell (Defendant's Name) whom he could ask so he could immediately get a free lawyer?

Q. Did you tell (Defe,idmt'sName) what he should do so he could immediately get a free lawyer?

Q. Did you tell (Defei~datit's Name) that if he wanted to remain silent, the police would not ask him any more questions? Q. Did you tell (Defei~dai~t's Name) that if he wanted t o remain silent, the ~ o l i c e would not talk anymore about this case in his presence?

Q. Did you tell (Defendarzt's Name) that since he could not reach anyone on the telephone, the police would hold off interviewing him until after he could make another hone call and talk to the party he was trying to reach?

Q. Did you tell (Defendant's Name) that if he gave a statement, it would help him in Court?

Q. Did you personally determine of your own personal knowledge which parts of ,'Defendaiit's Name) statement were true?

Q. Did you personally determine how many times (Defendant's Name) had been arrested prior to the occasion in question?

Q. Did you tell (Defendant's Nome) that you preferred that he cooperate with you and not call his lawyer into the interview?

Q. Did you tell (Defendatrt's Name) that you frowned on his recording your interview with him?

9. You read the Miranda rights to him from your card?

Q. Then you let him tell his version of what happened?

Q. Then you interrupted him with some questions?

Q. Then you asked him to tell it all to you again?

Q. Then you wrote in down in your own handwriting?

Q. Then you let him read what you had writtcn down?

Q. Then he said that it was okay?

Q. Then you had it typed up o n the printed form, entitled "Statement of Accused"?

Q. Then you handed the "Statement of Accused" to him?

Q. After he read it all, you brought two witnesses into the room and let them watch and witness his signature?

9. You never read out loud to him anything printed or typed on his "Statement of the Accused"?

Q. He never read out loud to you or the witnesses anything printed or typed on his "Statement of the Accused"?

Q. Was an attorney present during your questioning of (Defendant's Name)?

Q. What tests did you conduct to determine the reading level of (Defendant's Naine)? Q. What is (Defendant's Name) reading level?

Q. What tests did you use to determine the intelligence level of (Defer~dant's Name)?

February 1982/VOICE for the Defense 13

SOME QUESTIONS TO ASK ABOUT CONFESSIONS continued

Q. What is the intelligence level of (De- fendant's Name)?

Q. Is (DefendatrtJsName) literate?

Q. After only heating of his rights, was (Defendant's Name) capable of nnder- standing each of his rights?

Q. Did yon ask him if he understood the rights as you read them to him?

Q. You did nothing t o assure that (De- fendant's Nume) understood his constitutional Miranda rights?

Q. You did nothing to assure that (De- fendant's Name) understood his statutory Article 38.22 rights?

Q. You arrested (Defendant's Name) at (time). Correct?

Q. You began taking his statement at (time). Right?

Q. You fmished taking his statement at (time). Is that correct?

Q. Yon didnot chose to take (Defendant's Name) before a magistrate until you had taken a complete statement from him. Correct?

Q. Yon did not determine (Defendant's Name)'s state of intoxication before you advised him of his rights. Correct?

Q. You did not attempt to ascertain if (Defendant's Name) could understand what you were telling him, did you?

B. Defense Attorney's Partial Exam- ination of Defendant Who Gave Confession:

Q. How much education do you have?

Q. Can you read much?

Q. Do you know what your reading level is?

Q. Do you know what your intelligence level is?

Q.Do you know what your hearing ability is?

Q. When the Officer read you your rights, did you understand fully the meaning of each of yonr Miranda rights?

Q. When the Officer read you your rights, did you understand most of the words he used?

Q.When the Officer read you yonr Miranda rights, were there some words whose meaning you did not know?

Q. Look at Exhibit Nb. (the Offi- Q. Do you know what your retention cer'sMirunda Warninecard orone similar). levelis? Tell Judge and th; ~ u r ~ , which words you did not understand.

Q. At the time the Officer read you your Miranda warnings, did you have sufficient money t o hire an attorney to assist you in defending against this charge?

Q. Did you hear Officer here today testify that he did not want to take you before a Magistrate until he had obtained a complete written statement from you?

Q. If Officer had taken yon before a Magistratebefore hehadobtained your written statement, would you have done anything differently?

Q. What time is i t right now?

Q. How much change do I have here in my hand? (Show Defendant a mixture of coins to see i f he has any mathematic abilities!)

Q. Did you hear Officer here today say that he did not tell you that he preferred that yon cooperate with him and not call yonr lawyer into the interview?

Q. Do you speak more than one language?

Q. What are they?

Q. What is your dominant language?

Q. What language did Officer use when he told you yonr Miranda

Q. Did you hear Officer rights? here today say that he did not tell you that your written statement would be Q. What language did You use when used to try to send you t o the State Officer interviewed you? penitentiary? Q. When you were talking to Officer Q. If Officer had told you that, during the interview, what would you have given him yonr written language did you use? statement like vou did?

Q. Did you hear Officer Q. If you gave yonr statement t o the

here today say that he did not tell yon Officer in a language other than English,

that vou shodd not eive a confession who interpreted it for you and him?

until ifter you had talked t o an attorney? Q. Was the translation of yonr state-

Q. If Officer had told you that, ment satisfactory to yon?

would you have then given him your Q. Before you gave your statement, did written statement like you did? he say that he preferred that you cooper-

Q. Did you hear Officer ate with him?

here today say that he did not tell you Q. Before you gave your statement, did that an attorney could pobably help yon he say that he h referred that you not call while the police were interviewing and your lawyer into that interview with the interrogating you? officer?

Q. If Officer hadtold you that, Q. What did that statement by him cause would yon have then given him your you to do, if anything? statement like you did? Q. Did you hear Officer Q. Did you hear Officer here today say that he did not tell you here today say that he did not tell you that he frowned on your recording his that you would he better off in the loug interview with him?

run if You did not give the police a state- Q. Before you gave your statement, did ment? he say that he frowned on your recording

Q. If Officer had told you that, his interview with you?

would you have then given him your Q. What did his statement cause yon to statement like you did? do, if anything?

Q. Did you hear Officer Q.Before you were arrested on this here today say that he did not tell you charge, had you heard of the who you could ask so you could immedi- Mirandn rights? ately get a free lawyer? Q. At the time of your arrest, did you Q. Do yon know what your compre- know how those Miranda rights applied hension level is? to you?

14 VOICE for the Defendebruary 1982

BILLIE MARTIN: No. 59,074; Burglary of a Building Enhanced; Life; Reversed; Judge W. C. Davis; En Banc Opinion; November 25, 1981

THE RECORD DID NOT SHOW A KNOWING AND INTELLIGENT WAIVER OF RIGHT TO COUNSEL BY D AS IT DID NOT REFLECT A SUFFICIENT COMPETENCY INQUIRY OR A SUFFICIENT ADMONISHMENT: Prior to trial D appeared before another judge concerning his desire to waive counsel but there was no record made of that hearing. Immediately prior to the trial, the court noted that the.other judge had previously determined D would be allowed to represent himself and only advised D he would be held in the same standard as would an attorney. An attorney was appointed to sit with D and advise him but the attorney would not be allowed to take an active part in the trial. D signed a waiver which recited he had been admon- ished as to the advantages and disadvantages of representing himself.

C.C.A. held that the Appellate record must show that the Defendant has made a knowing and intelligent waiver of the right to counsel and has been informed of the dangers and disadvantages of representing himself. Geeslin, 600 SW2d 309. A requisite is an inquiry into D's background, age, education, experience and mental health history. The waiver executed in this case does absolutely nothing to inform C.C.A. of the extent or content of any competency inquiry or admonishment. The proceedings must be transcribed and included in the record. Thus the judgment was reversed.

DAVID HERRERA, LETICIA HERRERA and JESUS MENDOZA; No. 60,807; Robbery; Reversed

BECAUSE OF A FATAL VARIANCE BETWEEN THE NAME OF THE INJURED PARTY IN THE INDICTMENT (PEDRO ORTIZ GABALDON) AND THE NAME GIVEN BY THE COM- PLAINANT IN HIS TESTXMONY AT TRIAL (PEDRO GABALDON ORTIZ), THERE WAS A FATAL VARIANCE SUCH AS TO RENDER THE EVIDENCE INSUFFICIENT TO SUPPORT THE THREE CONVICTIONS FOR ROBBEW AND THUS THE JUDGMENT OF ACQUITTAL

February 1982/VOICEfor theDefense SD-15

EX PARTE JOIiMNY MORRIS; No. 66,003; Post Conviction P7rit; Relief Granted; Judge Teague; En Bane Opinion; November 25, 1981

D, ERRONEOUSLY RELEASED FROM TDC, WAS ENTTTLED TO FLAT TIME CREDIT AND GOOD TIME CREDTTS EARNED: Uncontroverted facts showed that D's five year sentence for burglary was to commence November 25, 1977. D was received at TDC on December 6, 1977 but TDC erroneously showed his sentence to commence November 25, 1975. On December 28, 1978 D was released to "mandatory supervision." On December 28, 1979 D was arrested and jailed as a result of violating his mandatory supervision parole and after he was returned to TDC on Janaary 24, 1980, all of the "good" time he had previously accumulated before his erroneous release was ordered forfeited by officials of TDC.

A person erroneously released from TDC, prior to his correct release date, is entitled to flat time credit on his unexpired sentence for all periods of time that he was out of custody which occurred subsequent to sentencing on that conviction. Here D was erroneously released through no fault of his own. Ex Parte Esquivel, 531 SW2d 339; Ex Parte Tarlton, 582 SW2d 155; Ex Parte Hurd, 613 SW2d 742. C.C.A. found that D was entitled to flat time credit from November 25, 1977 to the present date: any good time credit he accumulated from November 25, 1977 until he was released on December 29, 1978; and lastly any good time credit he may m e accumulated since the date of his arrest on November 28, 1979. If D's "flat time" plus "good time" credits exceed his sentence of five years, he must be released from any further actual confinement resulting from his sentence in this case.

RAY HOUSTON; Eio. 65,221; Voluntary Manslaughter; 8 TDC; Reversed; Judge W. C. Davis; Panel Opinion; December 2, 1981

STATE IMPROPERLY IMPEACHED OWN WITNESS: State called D's brother, X, who testified that he was in a grill playing pool when he saw the deceased poking his fingers in D's face arguing with him. A fight erupted and he saw blood coming from the deceased. X pulled D away from the deceased. Upon further questioning, X denied that D struck the deceased after X pulled them apart. The State has X's written statement to the police after the stabbing. wherein X stated D continued to strike the deceased after the witness had intervened and pulled D away. They claimed and proved surprise.

A party may not impeach his 9wn witness unless the vitness testifies to facts injurious to that party's case and the party demon- strates that he was-surprised by such testimony. If the state has offered no evidence to prove a relevant fact, it cannot be said that its witness who denies the existence of that relevant fact has by that denial stated facts injurious to the State's case. W s , 417 SK2d 59; Lewis, 593 SW2d 704. C.C,A. found that the state was confronted with a mere failure of proof and held that the State improperly impeached its own witness by reading portions of the witness' statement before the jury.

February 1 9 8 Z / V C f o r h e D e e SD-I7

RAYMOND SPRING; No. 61,060; Burglary of a Habitation; Enhanced; Life; Reversed; Judge Clinton; Panel Opinion, December 2, 1981

ILLEGAL SEARCH AND SEIZURE: The alleged burglary occurred in Arlington on November 12. D and his wife were arrested at 4:00 a.m. December 12 in Bedford and put in the Bedford City Jail. The same day a Bedford officer called a Fort Worth officer X and asked that D's apartment be kept under surveillance until Bedford Police arrived with a search warrant as Bedford Police believed that there were other items in the apartment taken from burglaries in their city. The apartment number given was 119. Officer X and Y maintained surveillance within a hun- dred yards of D'S apartment. An hour later the police saw a man identified as D's father approach the door of the apartment and remove a United Parcel note from the door. As he returned to his car, the officers stopped and asked him for identification. Meanwhile another Bedford officer had called the manager of the apartment complex, Miss Crites and told her that D had been arrested for burglary and was in the Bedford Jail. The officer asked Crites if she could legally go over and inspect the apartment to see if there was anything wrong there and because of this '\problem* brought to her attention, Crites, together with her maintenance man, did go to D's apartment. Crites knocked and when no one answered, she opened the door and entered. At this time the officers followed her inside, saw marijuana and eventually recovered various stolen property used in the burglary prosecution.

The initial intrusion into D's apartment occurred without a search warrant and was thus per se unreasonable unless it fell within some exception. Katz V. United States, 389 U, S. 347; 88 S.Ct. 507 (1967). The State aruued that the officers surveillinq at the bare request of another law enforcement agency are. authorized to "secure", to "maintain the integrity'' of the place being watched and its contents. C.C.A. stated that neither may the threshold be reasonably crossed without a warrant by police officers nor may the locked door be opened by the landlord or his agent to permit them to do so. Stoner v. California, 376 U. S. 483, 490; 84 S.Ct. 889 (19641, for to uphold such an entry search and seizure without a warrant would reduce the Fourth Amendment to a nullity and leave tenants' homes secure ,only in the discretion of landlords. Crites, the apartment manager, acting at the instance of the Bedford Police Department, became an instrument or agent of the State when she agreed to and went to carry out the mission assigned her. The validity of the officers' conduct depends upon whether the requesting officer had probable cause to instigate the action and proof of what is said to constitute it must be made. Bazan, 522 SW2d 224. No such proof was made in this case. The Bedformice never showed up with a search warrant and the Fort Worth officers had not the slightest idea of what objects might have been stolen or from whom at the time of the search. Thus C.C.A. held that D was deprived of his reasonable expectation of privacy. Kolb, - 532 SW2d 87; Chambers, 508 SW2d 348.

DAVID LONGORIA; No. 67,040; Probation Revocation; Affirmed; Judge Daly; Panel Opinion; December 2, 1981

CAR WAS WITHIN STATUTORY DEFINITION OF "PUBLIC PLACE": At 5:40 a.m. police spotted car in large public park, stationed ten to twenty feet

of the main park road. Officer shined light and saw two heads in the front seat and as he approached saw D lying directly behind another male. Both were asleep and nude from the waist down. There was other evidence that D had engaged in deviate sexual intercourse with the other male.

C.C.A. held that the evidence was sufficient to support finding that the car containing D and the other man was readily accessible to the public or a substantial group of the public and therefore was a public place under Section 1.07(a) (29) P.C. C.C.A. distinguished Kirtlee, 585 SW2d 724 wherein C.C.A. found that D's car, which was travelling down a public road, was not a public place since there was no showing that the car was accessible to the public or a substantial group of the public.

EDWARD SULLIVAN; No. 68,412; Probation Revocation; Reversed; Judge Roberts; Panel Opinion; December 9, 1981

ILLEGAL SEARCH AND SEIZURE - PILLS NOT IN "PLAIN VIEW": At 4:30 a.m. officers went to the scene of a minor traffic accident where they saw D, the apparent driver of one of the cars, trying to change a flat tire. D produced his driver's license. One of the officers walked around D's car to check for "damage or anything else." Through the open driver's door, the officer saw a zippered pouch on the passenger side of the front seat; the pouch was partially unzipped. Through about a two inch opening in the pouch, the officer saw a dark brown bottle and a clear plastic hag containing a white powder. The officer picked up the pouch and confronted D with it at that time. D said the pouch contained sugar. A closer examination of the pouch revealed that the brown bottle contained 89 capsuls which were deep purple in color (later shown to contain no controlled substance), 2 vials containing white powder (the white powder from one vial was methamphetamine, while the other vial contained no controlled substance) and 3 clear plastic bags containing white powder (one bag contained no controlled substance, the other two contained methamphetamine).

The State filed its motLon to revoke D's probation based upon this possession of methamphetamine. At the hearing on the State's motion and D's motion to suppress the evidence, the Trial Court suppressed all items seized from D's car except the two clear plastic bags shown to contain methamphetamine. The arresting officer testified that upon seeing the pouch in his personal and professional opinion he thought it may possibly be some kind of narcotic. C.C.A. held that the State failed to show that at the moment the zippered pouch came into "plain view", the arresting officer had any basis for believing that its contents were inherently suspicious or that they were in fact contraband. The officer's testimony was no more than a conclusion which fell short of showing why the conclusion was reasonable at the time of the seizure. C.C.A. noted that in the past it had held that a clear plastic bag is not an object that is inherently dangerous contraband or stolen goods (Duncan, 549

-5- SW2d 730) and C.C.A. was unwilling to hold that white powder is any different. Further, objects which are not inherently suspicious can become so under certain circumstances. The State can show the seizing officer was aware at the time of the seizure that contraband drugs are commonly packaged in a particular manner. This specialized knowledge

Febtuary 1982/VOICE for theDefense SD-19

in combination with suspicious facts and circumstances, can sustain the Seate's burden of proof; Brown, 617 SW2d 196. Thus, the two plastic bags were the products of an illegal search and seizure.

JAMES CALVIN JONES; No. 59,335; Opinion on State's Motion for Re-hearing; Denied; Judge W. C. Davis; En Banc; December 9, 1981

MEANING OF "WITNESS" UNDER SECTION 36.06 P.C.: The term "witness" as used in Section 36.06 P.C. means one who has testified in an official proceeding, as set forth in the panel's original opinion. C.C.A. rejected State's argument that the term "wikness" should also apply to one who perceives an event and relays the information gained to the police.

LEONARD ORTEGA; No. 61,233; Burglary, Enhanced; 50 TDC; Reversed; Judge Roberts; Panel Opinion; December 9, 1981

COURT ERRED IN ADMITTING EVZDENCE OF EXTRANEOUS OFFENSE TO PROVE D'S INTENT TO COt.IE1IT THEFT WHERE INTENT NOT A CONTESTED ISSUE: Facts showed D was seen prying on the front door of a house in which no one was then home, while an accomplice waited in a car parked in front of the house. When D was seen by a police officer, D immediately stopped his attempt to enter the house and fled in the waiting car. The screen door latch had been pulled off and the wooden door of the house had been damaged in an attempt to pry it open. D did not testify nor did he offer any defensive theory to other witnesses. Over objection the State showed that D was stopped for a traffic violation, and when officer learned that there was an outstanding arrest warrant for D in a burglary case, he searched and recovered from the car a clock radio which had been taken during a burglary committed the day before.

C.C.A. first noted that the State's evidence was sufficient for the jury to infer an intent to commit theft. When the required intent can be inferred from the act itself, and the Defendant puts on no evidence to rebutt the inference, intent cannot be said to be a contested issue. While the extraneous offense was relevant to the issue of D's intent, D's intent was not a contested issue and therefore it should not have been admitted. Albrecht, 486 SW2d 97.

POLICARPIO VIDUARRI; No. 61,340; Aggravated Rape; Life; Affirmed; Judge Odom; Panel Opinion; December 9, 1981

USE OF TERM "FAILURE" IN CHARGE INSTRUCTING JURY ON D'S FAXLURE TO TESTIFY NOT PREJUDICIAL: D argued that the use of the word "failure" in the instruction wherein the Court told the jury that the jury could not consider the "failure" of D to testify against D was prejudicial and requested the use of more neutral language. C.C.A. held that the charge given was substantially the same as in Article 38.08 C.C.P. Further, when a refused charge is adequately covered by the charge given, no harm is shown. Sheppard, 545 SW2d 816.

Notwithstanding this decision, many trial courts will modify

these boiler plate charges to accommodate defense counsel. It is easy to see how the term "failure" might be prejudicial depending upon its use. Many times the term is used to assume a duty that the person in question has but does not carry out. The term is consistently used in ineffective assistance of counsel type case. Why not alter the language so that the jury is instructed that if the Defendant simply does not testify, his action in not testifying cannot be used against him.

NO STANDING TO COMPLAINT OF SEARCH MADE OF STOLEN VEHICLE: D challenged the search of the car in which the aggravated rape occurred. Since the car was a stolen vehicle, D was in no position to challenge the search.

BILLY VINSON; No. 61,551; Shrimping in Closed Waters; Reversed; Judge CLinton; Panel Opinion; December 9, 1981

FUNDAMENTALLY DEFECTTVE COMPLAINT: The complaint drawn under Section 201.012(a) of the Parks and Wildlife Code alleged that D used shrimp trawl in the public waters of Texas to-wit: Burnett Bay, while said waters having closed to the using of said shrimp trawl. C.C.A. held that the failure of the complaint to allege a culpable mental state of intentionally or knowingly and to include the essential element of distance relationshiw to the limits of a citv (within one mile1 rendered the com-

- ~ - 4 -~ ~-~ ~ ~

plaint fundLmentally defective. Amer:ican Plant Food C O ~ . v. State, 508 SW2s 598 (Tex. Crim. App. 19741.

ERNEST0 GARCTA; No. 67,877; Capital Murder; Death; Reformed to ~ife; Judge Onion; En Banc Opinion; December 9, 1981

EVIDENCE INSUFFICIENT TO SUPPORT JURY'S FINDING ON ISSUE OF FUTURE DANGEROUSNESS: C.C.A. summarized evidence as showing that D had been drinking most of the afternoon and into the evening before two Mexican Nationals, illegally in U.S.A., appeared at the yard of his home. They were seeking a taxi and offered to pay for the gas to take them to a taxi stand. Obviously they had money and D may well have meant to take advantage of them because of their illegal status. There was conflicting evidence about the shooting. A State's witness testified that D demanded money, hit the deceased with a gun and when the deceased agreed to sur- render his money, D shot the deceased. Co-Defendant B, who was acquitted, testified that during the transaction in question he heard the demand for money but also heard a struggling or a "punching" before the shot was fired. D offered evidence as to alibi. ~uring the punishment hearing, there was no showing of any prior criminal record or prior acts of violence by D. The facts showed very little planning, although C.C.A. noted it was a senseless and unnecessary murder.

Dr. Jerry Landrum, a psychologist from Tyler was the only witness during the punishment phase. He testified he did see D (date and location unknown) but D refused to talk to him when he tried to get some history and information and was uncooperative in that manner. Landrum stayed in the same room with D thirty minutes observing him. He did not describe any actions by D nor what he observed but did state he had an opinion on the probability of D commiting violent acts in the future. Landrum concluded D had an aggressive anti-social personality. There was

February 1982/VOICE for theDefense SD-21

no showing that any tests were administered to D or that Landrum obtained any information from any other source. C.C.A. concluded that "Dr. Landrum's testimony is ludicrous in light of the record before us and cannot be seriously considered in assaying the evidence to support the finding to Special Issue Number 2 under Article 37.071."

C.C.A. could not conclude that the evidence taken as a whole was sufficient to support the jury's finding on the issue of future dangerousness. Wallace, 618 SW2d 67; Horne, 607 SW2d 556; Brooks, 599 SW2d 312; Warren, 562 SW2d 474. The punishment was reformed to life imprisonment.

MELVIN LAWRENCE; No. 68,316; Robbery; 5 TDC; Reversed; Judge Tom ~avis; Panel Opinion: December 9, 1981

INVALID TO TRY BEFORE THE COURT - STATE DID NOT EXECUTE JURY WAIVER: D pled nolo contendere before the Court but the prosecutor did not sign a jury waiver agreement. Apparently D and his counsel did. The prosecutor signed a post-conviction affidavit as to his intent to sign the waiver f ~ r m but the C.C.A. held this did not satisfy the explicit requirements of Article 1.13 C.C.P. Thus the Trial Court improperly proceeded to trial without an effective jury waiver on and part of the State. Thompson, 226 SW2d 872.

JACKIE RICHARDSON; No. 60,481; Indecency with a Child; Affirmed; Judge McCormick; Panel Opinion; December 16, 1981

UNRESPONSIVE ANSWER BY STATE'S WITNESS ON CROSS THAT D HAD BEEN TO PRISON BEFORE HELD NOT REVERSIBLE ERROR: The complained of testimony is as follows :

"Q (By Defense Counsel) When Jackie -- when you say that Jackie stuck his finger up your vagina, you didn't make a sound then?

A I was scared because he has been in -- to the pen before and r was afraid -- to make any noises"

C.C.A. held the Court's prompt instruction and disregard cured the error, if any, at the guilt stage. C.C.A. added that it could not say the answer given by the prosecutrix under this record was improper. C.C.A. distinguished Salinas, 175 SW2d 253, a case wherein D pled guilty and did not testify. On direct examintion DA elicited that D had just returned from the penitentiary when the crime was committed. D was given the maximum punishment.

COMPLAINANT'S ANSWER RE TAKING A POLYGRAPH TEST ESSENTIALLY CURED BY COURT'S INSTRUCTION: Defense counsel asked the complainant whether a certain statement had been the only thing she had signed and she responded "No, I have signed something else; it was when I went to take a polygraph test." The objection was sustained and the Court instructed the jury to disregard. C.C.A. held that where a witness gives an unresponsive answer which mentions a polygraph test but does not mention the results of such

test, there is no error in failing to grrant a. mistrial when the objection has been sustained and the jury instructed to disregard.

H. L. PETERSON; No. 60,679; Theft over $10,000; Probation; Affirmed; Judge McCormick, Panel Opinion; December 16, 1981

THEFT INDTCTMENT HELD SUFFICIENT ABSENT MOTION TO QUASH: D argued indictment was fatally defective as it failed to give him notice of the specific acts with which he is charged. Ihdictment alleged theft by knowingly and intentionally appropriating property to-wit: Current money of U.S.A. of value of more than $10,000 without the effective cQn- sent of the owner, Marvin Loveless and with intent to deprive said owner of said property. No Motion to Quash was filed. C.C.A. held indictment charged an offense under the law and was thus sufficient. Jackson, 571 SW2d 1.

EVIDENCE SUFFICIENT TO SUPPORT CONVICTION: D, a construction contra~t~r, entered into an agreement wlth Marvin Loveless wherein D agreed to con- struct a miniwarehouse for Loveless for $61,000. During a six-month period Loveless made six payments totalling $58,000 to D and D told Loveless the money would be used to pay for materials he needed for the construction. Construction began on time and during the entire period it progressed much to Loveless' satisfaction. After six months Loveless began receiving calls from various suppliers saying they had not been paid by D. Then Loveless had trouble contacting D. Finally D came and asked for more money for materials from Loveless who refused. Further contacts with D ceased. at this time more than seventy-five per cent of the job was finished. Five subcontractors testified that D owed them monies, the total being over $10,000. D testified that midway through the construction he began having difficulty on another job in callecting monies; and that with respect to these subcontractors he had disagree- ments, i.e. one subcontractor charged more than the agreed price: another furnished materials which were not in accordance with the contract etc. D testified he intended to pay all outstanding bills when the disputes in amounts could be settled. C.C.A. held that in view of this evidence and the fact D never told Loveless that the bills were not being paid, that the evidence was sufficient.

Judge Odom's dissent questioned the sufficiency of the evidence to prove D stole the money. The fact that there were unpaid bills does not show D did not use the $58,000 to pay for materials as promised. Consistent with the proof described by the majority is the possibility that D spent all of the $58,000 on materials and the unpaid bills relied upon by the State were the result of cost overruns. Further, Judge Odom questioned the sufficiency of the evidence to prove ineffective of consent induced by deception under Section 31.01 (2) (El P.C.

FRANK H. FRANKLIN; Reversed;

No. 60 Judge

,283; Aggravated R~bbery; McCormick; Panel Opinion;

Enhanced ; December

Life; 23, 1981

FUNDAMENTALLY DEFECTIVE CHARGE: C.C.A. held that Court's charge Was fundamentally defective as it did not require the jury to find D took or attempted to take the property in question without the owner's effective

February 198Z/VO/CElbrfheDefense SD-23

consent. Williams, 622 SW2d 95.

DONNA NcGLYNN; NO. 67,435; Possession of Methaylphenidate; Reversed; Judge McCormick; Panel Opinion; December 23, 1981

AFTER D LEGALLY ARRESTED, HER PURSE WAS LEGALLY SEARCHED BUT THE BROWN PRESCRIPTTON BOTTLE INSIDE WAS ILLEGALLY SEARCHED: Officer answered a disturbance call and when he arrived at the scene, he saw D's boyfriend lying on the ground, quite intoxicated. The offic'er arrested the boyfriend. D became angry and slapped the officer which led to her immediate arrest for aggravated assault. Before the officer put D in the police car, he took her purse away and put it on the hood of the police car. The officer opened the purse to make an on-sight inventory of its contents and to look for any weapons. When he opened the purse, he discovered a brown prescription bottle containing three or four different kinds of medication. The label on the bottle shawed the prescription was issued to D. The officer opened up the bottle. Later some of the pills were found to be the controlled substance.

First, C.C.A. found that the purse was to be considered part of D's person and that it may be searched when incident to the arrest of the person. Stewart, 611 SW2d 434.

Court rejected State'.s argument that search.was legitimate under the "plain view" doctrine. Coolidge v. New Kampshire, 403 U. S. 443 C1971). For this doctrine to apply there are three requirements which must be met: (1) The police officer must have had a prior justi- fication for his intrusion; 12) There must be an inadvertent discovery Of incriminating evidence; and 3 ) Tt must be immediately apparent to the police officer that the evidence before him is incriminating. The officer testified in part that he did not actually know at the time that some of the items in the purse were controlled substances; that the bottle was brown, translucent and he could see through it and that it bore a valid prescript,ion label for D. He saw several kinds of pills and assumed there was a possible violation of the controlled substances act but there was nothing about the pills that told him that one or more of them were a controlled substance. The only reason he opened the bottle and looked inside was because it was more than one different kind of pill. He had made many arrests as a police officer for violation of the controlled substances act, had arrested persons carrying controlled substances unlawfully in such prescription bottles as found in D's purse and it was his experience that when more than one type of substance is in that bottle, a violation of the controlled substances act may be had. C.C.A. concluded that this testimony demonstrated the officer merely assumed there might be a possible violation of the law. State v. Elkins, 245 Or. 279, 422 P2d 250 (1966); Eisemman v. Superior Court, 21 Cal. App. 3d 372, 114 Cal. Rptr. 856 (1972).

"The officer's testimony indicates nothing more than a hunch and fails to demonstrate reasonable grounds to believe any of the pills found in &ppellant's prescription bottle were controlled substances."

I think Judge McCormick should be commended for writing an

SD-24 VOICEfor fhe Defense/February 1982

excellent opinion, with a pleasant ending.

JOSEPH DESHONG; No. 60,571; Misdemeanor Possession of Marijuana; Affirmed; Judge Tom Davis; Panel Opinfon; December 23, 1981

EVIDENCE HELD SUFFZCTENT TO SHOW PO$SESSZQN OF MARTJUA~NA:. Officer observed two automobiles speeding and swerving at one another. One of the vehicles was skopped and' khe officer observed D driving and X in the passenger seat. Upon opening the car door, the officer observed what he thought to be a plastic baggie containing marijuana on the floorboard on the dr&vexls side between the edge of the seat and the left door. D was arrested for wreckless driving and the auto was released to his passenger. When D testifled, his attorney asked~hh whether or not he had any personal knowledge of the marijuana "in your vekicle?", to which D responded in the negative, Qn direct examination of an employee of D, be was asked if he was familiar with. "Mr. Deshong':sn (the Defendant) automobile and he said he was.

C.C.A. concluded that the marijuana was in open view once the car door had been opened by the offjlcer. D testified that while driving the car he had entered through the door on the driver's side. The contraband was faund within an enclosed area. The location of the contraband, on the floorboard directly in front of the driver's seat, was con- venLently accessible to D. The evidence strongly suggested that D was the owner of the vehicle. At the time of the offense, D was the driver. Finally, the contraband was found on the same side of the car seat as that in which D was sitting. Other than D's proximity to the place where the marijuana was found, these additional facts and circumstances showed D's knowledge and control of the contraband and the evidence is thus sufficient to show possession.

"The affirmative link can be established by showing additional facts and circumstances which indicate the accused's knowledqe and control af the cantraband. Norman v. State, 588 Southwest 2d 340. Among such additional facts which can establish the affirmative link are: the marijuana was in open or plain view, Hughes v. State, 612 Southwest 2d 581; the place where the contraband was found was enclosed, Mendoza v. State, 583 Southwest 2d 396; the narcotic wascon- viently accessible to the accused, Hahn v. State, 502 Southwest 2d 724; the accused was the owner of the place where the contraband was found, Moulden v. State, 576 Southwest 2d 817; the accused was the driver of the automobile in which the contraband was found, Aldridqe v, State, 482 Southwest 2d 171; and the contraband was found on the same side of the car seat as the accused was sitting, Orosco v. State, 298 Southwest 2d 134."

February 1982/YOICE for theDehnse SD-25

THOMAS JOHNSON; No. 60,694; Possession of Marijuana; Reversed/Acquittal Entered; Judge McCormick; Panel Opinion; (Date not given)

EVIDENCE INSUFFICIENT TO SHOW D POSSESSED MARIJUANA IN VEHICLE: Officer's testimony showed D and his brother were stopped and that marijuana was found hidden, not in sight, in the car. D was the driver. There was no evidence who owned the car. No marijuana was found on D. Nothing indicated D was under the influence of marijuana nor was the odor of marijuana noticeable in or around the car. Dmadeno furtive gestures under the seat. C.C.A. held the evidence insufficient. Presswood, 548 SW2d 398; Olguin, 601 SW2d 941; Heltcel, -- 583 SW2d 791; Morr, 587 SW2d 711.

THOMAS WILSON; No. 60,947; Opinion on Appellant's Motion for 3e-hearing; Judgment Reversed; Judge Onion; En Banc: December 23, 1981

FUNDAMENTALLY DEFECTIVE CHARGE: In an aggravated robbery case, Trial Court erroneously instructed jury on the culpable mental state of "recklessly" which was not alleged in the indictment and thus the charge authorized the conviction upon proof of the lesser culpable mental state than those alleged in the indictment.

ROBERT GILL; No. 62,833; Possession of Controlled Substance; Opinion on State's Motion for Re-hearing; Overruled; Judge Teague; En Banc; December 23, 1981

POLICE ILLEGALLY ENTERED LOCKED TRUCK OF AUTOMOBILE UNDER GUISE OF LNVEN- TORY SEARCH: On original submission (May 28, 1980) the panel held the warrantless search of the locked trunk of the automobile D was sitting in when arrested was an unreasonable search. D was prosecuted for possession of hydromorphone found in a grocery store type bag that was seized as a result of the search. The state now contends the search of the trunk was an "inventory search", conducted solely to insure the security of the contents of the vehicle prior to the police turning it over to the private storage facility.

Initially, the Court examined South Dakota v. Opperman, 428 U.S. 364 (1976), wherein an auto was taken to the City pound for an overparking violation and there it was inventoried, which inkbded the contents of a glove compartment which was unlocked. The marijuana contained in a plastic bag was found in the glove compartment. Opperman does not apply to the inventory search of a locked trunk of an automobile.

A true inventory search of an auto, occurring outside the legal concepts of'probable cause or search incident to a lawful arrest means that, using a standard inventory form prepared pursuant to standard police procedure, a police officer or his agent lawfully inventories the contents of a lawfully impounded motor vehicle. Daniels, 600 SW2d 813. As the officer is simply taking stock of loose items of personal property found in the vehicle, items of personal property found in plain view or in unlocked compartments of the vehicle may be seized. But the issue here is not whether the police had the lawful right to seize the grocery store type bag and examine its contents, but whether the police had the lawful right to forcibly enter the locked trunk of the automobile.

SD.26 VOlCEfor lhe D e f e n d e b ~ a r y 1982

The concept of a true inventory search is not an exception to the warrant requirement of the Fourth Amendment or of Article 1 Section 9 of the Texas Constitution. Its existence really rests upon the caretaking responsibility an officer has toward a lawfully impounded automobile. Absent a showing of probable cause and exigent circumstances, a warrantless search of a locked automobile trunk is aer se illeaal. Arkansas v. Sanders, 99 S.Ct. 2586 (1979); United StaLes v. hadw wick, -- 433 U.S. 1 (1977).

The expectation of privacy in a locked trunk can be overcome only by the showing of probable cause to believe some dangerous instru- mentality, contraband or fruits of a crime are contained therein, and exigent circumstances exist to preclude 'the need to obtain a warrant. Borner, 521 SW2d 852. C.C.A. concluded that the State's argument amounts to no more than advocating a routine lawful arrest of a suspect in an auto authorizes a search of virtually every nook and cranny of that auto. C.C.A. rejected this argument.

As the police officers had lawfully impounded the automobile, they had the lawful right to perform "caretaking" functions regarding it. However under these facts they did not have the lawful right to forcibly enter the locked trunk of the automobile. Under both state and U. S. constitutions, the forced entry into the locked trunk of the automobile constituted an unlawful intrusion.

DENNIS KNAB; No. 66,942; and MELODY - KITCHENS; No. 66,943; Possession of Marijuana; Affirmed; Judge McCormick; Panel Opinion; January 6, 1982

LNE'OFWATIONS ALLEGING "POSSESSION" SUFFICIENT; Ds filed motion to quash informations, asserting the informations failed to state where the possession was by actualcare or custody or control or management or by con- structive possession. The informations simply alleged the respective D possessed a usable quantity of marijuana etc. "Possession" is "not an act, nor is it an omission, but is defined as something distinct from both act and omission" and thus no more precise definition is required. Thomas, 621 SW2d 158; Phelps, No. 67,930 (delivered 9/30/81).

EX PARTE ANTHONY PREJEAN; No. 68,540; Relief Granted; Judge Teague; En Banc, December 23, 1981

TEE RIGHT TO CONFLICT - FREE COUNSEL MAY BE WAIVED, IF SO KNOWINGLY AND VOLUNTARILY: Apparently in a three-man law firm, two of the attorneys had represented D's brother on an identical charge which had subsequently been dismissed and in this case D insisted on the third attorney representing him. The State objected on the basis of a conflict of interest. At the hearing, D filed a written waiver of potential conflict of interest, testified he had discussed with the third attorney potential conflicts of interest they might have and desired to waive his right to conflict free counsel and wanted the third attorney to represent him. Tke Court also had appointed another lawyer who continued to represent this defendant.

February 1982/VOICEforlhe Defense SD-27

C.C.A. held that the t h i r d attorney was ent i . t l&d to represent D. D ' s r i g h t t o t h e ass i s t ance of counsel i n c 1 ~ d . e ~ freedom of choice i n t he s e l e c t i s n of counsel by the accused. A defendant i s e n t i t l e d t o t h e ass i s t ance o f counsel f reCf rom any c o n f l i c t of i n t e r e s t which conceivably could impair counsel ' s e f fec t iveness . The r-ule before t h e C.C.A. and t h e F i f t h Ci rcu i t : A cr iminal defendadt h a s t h e r i g h t t o i n s i s t upon re ta in - ing an a t to rney with otherwise d i squa l i fy inq c & f l i c t s , The r i g h t t o con£ l i c t - f r e e 'counsel may be waived, i f done so knowingly and voluntar i ly . Such a waiver of t h e r i g h t t o confl ict . f r e e counsel: should include a showing t h a t t h e defendant is aware o f the k o n f l i c t of i n t e r e s t , r e a l i z e s t he consequences of continuing with.such~counse1, and is aware of h i s r i g h t t o obta in o the r counsel. This t h i r d requf-renent i s r e f l ec t ed here by t he f a c t t h a t another a t to rney had a l ready be& appointed f o r t h e defendant and was a c t i v e through t h e proceedings a t t r ia l and on this appeal, i n cooperation w i t h r e t a i n e d counsel. C.C.A. found t h a t t h e issuance of a W r i t of Mandamus was t he proper remedy t o vacate t he order of t he T r i . a l Court prohibi'ting the t h l r d a t to rney from represent ing t he defendant (Appli-cant here) but C.C.A. assumed i n view of th is . opinion t h a t t h e T r i a l Court would immedi.ately vacate h i s order and t h e W r i t of Mandamus would i s s u e only i f t he T r i a l Court refused t o do so..

CHARLES THOMPSON; No. 68,380; Appeal Dismissed; Judge Clinton; Panel - Opinion; December 9, 1981

UNAUTHORIZED ASSESSMENT OF PUNISHMENT - APPEAL DISMISSED: After D received "deferred adjudica t ion probation" under A r t i c l e 42.13 Section 3d(a) C.C.P. f o r DWI, t h e S t a t e f i l e d a "Pe t i t i on f o r Revocation of Probated Sentence and Final Adjudication," which C.C.A. described a s a "model pleading." In the p e t i t i o n t he S t a t e a l leged t he commission of another DWI on October 1 2 , 1980. A hearing was held and t h e T r i a l Court found D g u i l t y and set punishment a t 2 years confinement i n t h e County J a i l , which was probated. C.C.A. held t h a t under A r t i c l e 67011-1, V.A.C.S., t he minimum punishment provided by law was confinement f o r no l e s s than t h r ee days and no more than 2 years -- and by a f i n e of between $50 and $500. Thus t he punishment assessed was inva l id and t h e order adjudicat ing g u i l t was inva l id and t h e C.C.A. d id not have j u r i sd i c t i on t o en t e r t a in t h e appeal.

IMPROPER REVOCATION OF D ' s PROBATION: I n t h i s case a f t e r D on November 25 was placed on two years probation, t he very next day an order was entered revoking D ' s probation. The ba s i s was t he very same DWI used t o proceed t o adjudica te D ' s g u i l t . C.C.A. s t a t e d t h a t t h e record f a i l e d t o show any motion t o revoke probation o r any a l l e g a t i o n t h a t D had v io la ted a condit ion of probation imposed on November 25th s ince t he probation was imposed. Thus D w a s denied due process.

SD-28 VOICE for the DefensuFeb~uay 1982

SUPREME COURT OF THE UNLTED STATES - WASHTNGTON V. CHRISMAM; No. 80-1349; January 13, 1982; Affirmed

SEARCH AND SEIZURE - PLATN VIEW DOCTRINE: On the evening of January 21 a university police officer saw D's roommate (Overdahl), a student at the university, leave a student dormitory carrying a half gallon bottle of gin. Washington state law forbids possession of alcoholic beverages by persons under 21 and Overdahl appeared to be under age. The officer stopped him and asked for identification. Overdah1,said his identification was in his dormitory room and asked if the officer would wait while he went to retrieve it. The 'officer answered that under the circumstances-hewould have to accompany OverdahL, to which Overdahl re- plied "O.K." Overdahl's room was approximately 11 x 17 feet and located on the eleventh floor of the dormitory. D, Overdahl's roomrnater was in the room when the officer and Overdahl entered. The. officer remained in the open doorway, leaning ayahst the doorjamb whuhile 'mtching D and Overdahl. He saw D, who was in the process a£ placing a small box in the room's medicine cabbet, become nervous at thesiyht ~f the officer. Within thirty to forty-five seconds after Overdahl entered the rQom, the officer notfced seeds and a small pipe lying on a desk egght to ten feet from where he was sta~nding. From his training and exper%.ence, the officer believed the seeds were marijuana and the pipe was of a type used to smoke marijuana.' The officer entered the room. and examined the pipe and seeds, confirming that the seeds were marijuana and observing that the pipe smelled of marijuana. The officer informed Overdahl a.nd D of their rights under Miranda and each acknowledged they understood and were willing to waive them. The officer asked whether thestudents had any other drugs in the room. D handed the officer the box he had been carrying earlier which contained three small plastic bags filled with marijuana and cash. The officer called for assistance andupon the arrival of another officer, Overdahl and D were told a search of the room would be necessary. The officers explained to both that they had an absolute right to insist a search warrant be obtained but they could voluntarily consent to the search. The two students conferred briefly and then announced their consent to the search and signed written consent forms. The search yielded more marijuana and a quantity of LSD, both controlled s.ubstances.. D was convicted of posession of more than 40 grams of marijuana and possession of LSD.

The Court first noted that the plain exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize clearly as incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. this case the officer had placed Overdahl under lawful arrest and therefore was quthorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahlks elbow at all times.

Thus the Court held that it was not unreasonable under the Fourth Amendment for a police officer, as a matter of routine, to monitor the m.ovements of an arrested person, as his judgment dictates, following tbe arrest. The offi~er~s need to insure his own safety - as well as the integrity of th&arrest - is compelling, Such surveillance is not an

February 1982/VOICEfor f h e f f e f e e SD-29

impermissible invasion of the priyacy or per;sonal liberty of an individual who has been arrested. (F~ottI~te 4: "~ndeed, where the rule otherwise, it is doubtful that an arrested person would ever be permitted to return to his residence, no matter how legitimate the reason for doing so. Such a rule would impose far greater restrictions on the personal liberty of arrested individuals than those occasioned here").

The officer properly accompanied Overdahl into his room and his presence there was lawful. With restraint, the officer remained in the doorway momentarily, entering no farther than was necessary to keep the arrested person in his view. Tt was only by chance that while in the doorway, the officer observed in plain view what he recognized to be contraband. Had he exercised his undoubted right to remain at Overdahl's side, he might well have observed the contraband sooner.

D argued that the officer lacked authority to seize the contraband even though in plain view because he was outside the room at the time he made his observations.

The Court concluded that regardless of where the officer was positioned with respect to the threshold, he did not abandon his right to be in the room whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe. (Footnote 5: "The circumstances of this case distinguish it significantly from one in which an officer, who happens to pass by chance an open doorway to a residence, observes what he believes to be contraband inside. See, e.g., Payton v. New York, 445 U. S . 573, 585-589 [19801; Johnson v. United States, 333 U. S. 10, 14-15 [1948]"). This is a classic instance of incriminating evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual's area of privacy. The Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances.

Since the seizure of the marijuana and pipe was lawful, the Court had no difficulty concluding that the evidence and the contraband subsequently taken from D's room was properly admitted at his trial. D voluntarily produced three bags of marijuana after being informed of his rights under Miranda and he then consented in writing to a search of the room. The seizure of the drugs pursuant to D's valid consent did not violate the Fourth Amendment (Footnote 7: "We reject as frivolous the Respondent's contention that, on the facts presented here, Officer Daugherty was required to knock and announce his presence at the doorway prior to entering the room").

SD-30 VOICE For the Defeme/Peb~uaiy 1982

FEDERAL SUMMARIES:

U.S.A. v. Ballard, e t al. Nos. 79-5268, 79-5506 and 80-5752, 12-10-81, Judge Bill, Direct Appeal, Reversed In Part. INCORRECT THEORY OF PROSECUTION - llDAISY CHAIN1' OIL SALES: The Defendants were convicted of conspiracy and mail fraud, specifically mail fraud to further a scheme in which an employee intentionally "breaches a fiduciary duty of honesty or loyalty t o an employer by accepting kick-backs". The mail fraud involved non-disclosure of facts by the employee to the employer under sales which were governmentally regulated. The Fifth Circuit noted, however tha t "not every breach of fiduciary duty works a criminal fraud" and reversed the conviction.

Moreover, even though there may have been sufficient evidence for conviction on a conspiracy count, because the trial court's charge was over broad on t h e theory of mail fraud, different jurors could have based guilty verdicts on differing portions of the charge which, if true, would have deprived the Appellants "of a unanimous jury verdict." U.S.A. v. Gipson, 553 F.2d 453 (5th Cir. 1977).

Alderman v. Austin, No. 80-7820, 12-11-81, Judge Hill, Habeas Corpus, Affirmed In Part, Keversed m Part. DEATH PENALTY - JURORS WHO COULD NOT SIGN JURY VERDICT: After jurors said that they both convict and vote for the death penalty, the prosecutor got them t o say that if they were selected foreman of the death penalty jury, that they could not a verdict that would effect capital punishment. He then successfully challenged them for cause under Witherspoon. This was error because it was excluding jurors on a broader basis than Witherspoon: they had not stated "unambiguously" that they could not - vote against the imposition of the death penalty.

In re GRAND JURY PROCEEDINGS, In the Matter of Pavlick; No. 80-3742, Judge Polltz, Appeal, Keversed. ATTORNEYS ASSERTION OF ATTORNEY-CLIENT PRMLEGE IN GRAND JURY AS TO WHO PAID HIS FEE: After an attorney refused t o tell the Federal Grand Jury the name of the person who paid his fee for representing t h ~ e e defendants in a drug conspiracy case, the government moved t o compel disclosure which was denied by the trial court. On appeal, the Fifth Circuit held that the identity of the person who seeks advice of a qualified attorney on the matter which includes that person's potential criminal exposure, where the mere disclosure of the person's identity would tend to incriminate him for past criminal ac ts is protected by the attorney-client privilege. Moreover, whether the attorney actually undertook performance of the requested services was not dispositive as to whether the attorney-client relationship came into being; but, rather, once the individual told the attorney about his legal problems which involved potential criminal exposure, the attorney-client relationship came into being.

February 19BZ/VOICEfor fheDefeflse SD.31

U.S.A. v. DeSimone, 111, No, 79-5675, 11-2-81, Judge Anderson, Appeal, Reversed. INSUFFICIENT EVIDENCE - IMPORTATION OF MARIJUANA: The Defendant was in the presence of others who checked into a motel in Tuscaloosa, from which motel room calls were made to an island, after which two eighteen foot trucks were rented, 900 gallons of fuel were purchased along with other materials, and around 3:30 A.M. the trucks went to an airstrip where a DC-6 landed with large quantities of marijuana.

The connection of the Defendant to these activities was that he was associated with the co-defendants a t various times over a period of several days and he attempted flight in the middle of the night from an automobile which was "ditched" near the airport. While this evidence certainly arouses suspicion mere presence is not enough and even though it may be ''probable" that the Defendant was involved in the conspiracy, that is not evidence beyond a reasonable doubt.

U.S.A. v. Miller, No. 80-5912, 11-2-81, Jud e Anderson, Appeal, Affirmed. -ONTEMPT FOR FAILURE 80 COMPLY WITH PRETRIAL SUBPOENA DUCES TECUM IN CRIMINAL TAX FRAUD CASE: The Fifth Circuit held that the previous voluntary disclosure to the I.R.S. of two ledger books stripped the books of their confidential nature and thus defeated the attorney-client privilege. In the absence of the attorney-client privilege, the taxpayer's attorney could not assert the taxpayer's Fifth Amendment privilege against self-incrimination.

The attorney failed to carry his burden of proving that the government was guilty of misrepresentation, deception or fraud in connection with the transfer of ledger books from the taxpayer's accountant to the I.R.S. and the attorney also failed to prove that the taxpayer's accountant lacked authority to turn the ledger books over to the revenue agent.

Batey v. Balkcom, No. 80-7668, 11-16-81, Judge Johnson, Habeas Corpus Relief Granted. INADEQUATE PREPARATION OF COUNSEL AND ACTUAL CONFLICT MADE INEFFECTIVE ASSISTANCE OF COUNSEL: Two Defendants, arrested for the armed robbery of a grocery store, each developed a different story contradicting each other in preparation for their defense a t trial. The retained lawyer, realizing this, filed a motion for severance and asked another attorney to be on "standby" in the event the court denied the motion. When the court, on the day before trial, did deny the motion, the attorney who was initially retained represented one of them and the attorney "on standbyn represented the other.

However, the attorney on standby had been researching legal aspects of the case and was in the employ of the first attorney. Aside from one visit to the scene of the crime the second attorney's familiarity with the facts had been limited to information supplied from the first attorney. He interviewed no witnesses and had not read a transcript of the preliminary hearing. Moreover trial tactics and defense were a "joint venture1'.

The Court of Appeals found "an actual conflict of interest" which violated the defendant's Sixth Amendment right under Cuyler v. Sullivan, 446 U.S. 335 (1980).

Spivey v. Zant, No. 80-7243, 11-16-81, Judge Tjoflat, Habeas Corpus, Relief Granted, Vacated & Remanded In Part. DEATH PENALTY - JURY INSTRUCTIONS - MITIGATION - RECITAL IN ORDER FOR PSYCHIATRIC EXAMINATION OF ATTORNEY INSUFFICIENT: The State trial court's capital sentencing instructions to the jury were consti- tutionally inadequate because those instructions were devoted almost exclusively to a discussion of what it would take for the jury to find the aggravating circumstances existed or did not exist. The instructions did not deal a t all with their functioning in determining the death penalty sentence and they did not communicate to the jury that the law recognizes the existence of facts or circumstances which, though not justifying or excusing the offense, may properly be considered in determining whether to impose the death sentence.

The evidence that the state trial court's order for the psychiactric examination of petitioner identified an attorney as petitioner's counsel was an insufficient basis for the habeas corpus court's finding that the petitioner was represented by counsel on the date that the psychiatric examination was ordered, in possible violation of Estelle v. Smith, - U.S. - , 101 S.Ct. 1866 (1981).

U.S.A. v. Williams, No. 81-2087, 11-18-81, Judge Brown, Appeal, Reversed. HEARSAY "VALUE" - NOT BUSINESS RECORD: The Defendant was convicted of transporting in interstate commerce a stolen motor vehicle. Part of the government's proof was a "verified" statement that the trailer was worth $5,600.00. This statement was made by a person who operated the trailer maintenance facility a t one of the terminals for the company who owned the stolen truck. The person who made the statement did not testify a t trial but another person, who was the custodian of the records, "authenticated the witness".

Over objection, the statement came in as a business record. The Court of Appeals held that the statement, made almost three years after the incident in question was not made in the course of a regularly conducted business activity nor was i t the regular practice of the business activity to make such memorandum. It was all too clearly prepared for the purposes of the trial alone and thus did not possess any of the trustworthiness necessary to remove it from the hearsay exclusion.

U.S.A. v. Tobias, No. 80-7561, 11-30-81, Judge Hatchett, Appeal, Remanded for Kesentenc~ne. SENTENCIN~ - FALSE ASSUMPTION - ALTERNATIVE SENTENCING: Because it is a denial of due process for a sentence to be based upon erroneous and material information or assumptions, United States v. Tucker, 404 U.S. 443 (19711, the trial court's assumption in this ease that the Appellant knowingly and intentionally obtained large quantities of chemicals, which was reflected from the Court's statement on the record at sentencing, is erroneous because such chemicals were provided by the DEA Agents and there is nothing in the record to indicate that the Defendant had any awareness of the number of units that could be produced by the chemicals.

February 1982/VOICE for IheDefmrse SD-33

Secondly, because il is impossiblc from the record lo determine the Defendant's exact age, it is possible that a t the time of conviction he was to be covered by the provisions of the Youth Corrections Act. If so, the trial court would be obligated to consider whether the Youth Corrections Act was appropriate and to make the finding that sentencing under the act would be of "no benefit", United States v. Hall, 525 F.2d 970 (5th Cir. 1976). I t is an abuse of discretion trial court to fail to do so which failure occurred in this case. Dorszynski v. United States, 418 U.S. 424 (1974).

I FEU TERRIBLE.

k

SD-94 VOICEfor the Defensflebruary 1982

1 CRUEL, BUT NOT UNUSUAL- I 1 A Personal View 1 Clifton L. Holmes i Kilgore

Hopefully, my return so soon to these pages will not violate any sense of editorial propriety, but I believe I have something to say. . .or, at least, some feelings (frustrations?) to vent.

I've just completed the trial o f a capital murder case. That is, I just went through an ordeal, prescribed by law,

I where a fellow human being, the defendant, and twelve other fellow human beings, the jury, were subjected to the most bizarre, inexplicable charade ever devised by a supposedly informed legislature. He was given, as punishment, a sentence which no thinking human being can defend, by twelve of his fellow citizens, who really didn't want to give it.

Other than the facts of the offense,

commit such inhumanities? Yet, we really know how. BECAUSE THE LAW SAID IT WAS O.K.! And, if the LAW said i t was O.K., human beings could, ostrich- like, stick their shamed heads in the sterile sands of law, leaving nothing but their gutless asses shining, shamelessly.

Oh, but its not changed that much. Though we don't officially approve rnessy atrocities, we now, as a sovereign entity, sanction a much cleaner, less repulsive form of the same goddamned tliirrg-the senseless, sickening stitling of life. Our State (us) now proposes to take human beings to some private sterile room, strap them forcibly to a sterile gurney, force a sterile hypodermic syringe into their vein, and pump therein

there was nothing to aid the jury in an- swering the absurd second special issue. Yet our morbid friend, Dr. Death, (ed. troteeDr. Grigson), emphatically, without reservation, based on a hypothetical question which merely cited the facts of the offense, testified, in aU his grim- shrouded glory, that this man was cerfair~ to commit future criminal acts of violence. . .that this human being was "a cancer" on society which must be cut out and destroyed. . .and, that he was uniquely qualified (nay, appointed) to identify these "cancers."

AU of us have heard, and used, the arguments against the death penalty- of children in 19th century England being put to death for petty theft; of human beings being subjected, over the centuries, to all manner of heinous atrocities-hanging, beheading, drawing and quartering, stoning, and butchering-all in the name of justice. And, we wonder, how could thinking hmnan beings, supposedly civilized, abandon all reason and

In days, weeks, of jury selection, I tirelessly attempted to convince honest, thinking, feeling human beings that they really were in favor of capital punish- m e n t - ~ task 1 found particularly repug- nant. But even where I succeeded, the ominous "15 strikes" reared its ugly head. All that was accomplished was I had succeeded in perhaps neutralizing someone who was really on our side. I had at least confused a fellow citizen who had, at first, been unconfused in his opposition to officially sanctioned murder. I found no way t o untrack the

an amount of lethal poison sufficient to cause their certain death.

I tried to do my job. I did the best charade, to convince them there really I could-mayhe not as good as should is no way to have your cake and eat it, have been done. But, regardless of effort, too. That if you vote "~es" you vote to whoever's, my good friends, we've been KILL, and it's not O.K. just because the snookered. I honestly believe the twelve LAW says i t is. I picked did ,jot ruant to kill tile young 1 suppose I'm simply seeking sympa- maw. They simply responded to duty. thetic ears. . .and minds. . .and hearts. Dr. Death made it easy. . .he answered We reauy ought to stop this atrocious their silly question for them. The law officialconduct. ... says "probably," doesn't i t? And the LAW says its O.K. to kid him. . .or, even, we're supposed to kill him! And after all, we can, like Dr. Death's "sociopath," give our conscience a day off and blame it on the LAW. FINGERPRINTS, COURT TESTI-

So long as our law gives jurors the out, the excuse, the gutless way out, we'll continue to have fellow human beings

State and Federal courts. Can answer condemned to death. And Burns and

his conscience against the death penalty.


CRIMINAL APPEALS IN TEXAS - A New Look

Kerry P. FitzGerald Dallas

(I want to acknowledge flre invaluable Apparently, under the amended pro- assistance of Pat Amett, Assistant Super- visions of the code, thejudgment and sen- visor in the Criminal Apellafe Division tence are now entered on the same date, o f flre Dallas Cosmtv District Clerk's which would notmallv be the date the <

Office, and John JasutaandPat Shannon, Administrative Assistants to tke Court of Criminal Appeals, all of whom assisted substantially in the preparation of the following materials.

Every effort has been made to incor- porate tke new legislative developments and the new rules affecting appeals promulgated by the Court of Criminal Appeals to reflect tke proper procedure to follow in appealing a criminal case.)

I. MOTION FOR NEW TRIAL Article 40.01 defmes a "new trial"

as the rehearing of a criminal action after verdict, before the judge or another jury. The Motion for New Trial may only be fded by the Defendant. Article 40.02, C.C.P. The grounds for new trial in a felony case and in misdemeanor cases remain the same. See At.ticles 40.03 and 40.04, C.C.P.

Article 40.05, C.C.P., governing the time to apply for a new trial, has been amended. A Motion for New Trial must be fded prior to or within 30 days after the date the sentence is imposed or suspended in open court. This provision must be read in conjunction with both Article 42.01 and Artide 42.02, C.C.P.

Article 42.01, C.C.P. defines judgment as "the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the Defendant."

Article 42.02 defines "sentence" as "that part of the j;dgment, or order revoking a probated sentence, that orders that the punishment be carried in- to execution in the manner prescribed by law."

judge or jury sets the punishment. There is no longer any time lag between the entry ofjudgmentand the entry of sentence.

One or more amended motions for a new trial may be fded without permission of the trial court (1) before any preceding motion for new trial filed by the movant is overruled and (2) within 30 days after the date the sentence is imposed or suspended in open court.

Whether the Defendant may file an amended Motion for New Trial after the 30-day period with leave of court is not addressed in the new provisions. Thus, if the Defendant does seek to file an amended Motion for New Trial after the 30-day period, leave of court should be sought andgoodcause should be shown for f ang the amended motion after the 30-day period.

If the original or any amended Motion for New Trial is not detetmined by a written order signed within 75 days after the date sentence is imposed or suspended in open court, the motion will be considered overruled by operation of law on expiration of that period. In other words, the motion is overruled by operation of law on the 76th day following the date the punishment is formally imposed as reflected in the sentence.

It remains the duty of the Defendant to bring the Motion for New Trial to the attention of the court within ten days after i t is filed; however, it may be presented to the court or a hearing held on it after the 10-day period, in the discretion of the trial court, but in no event shall the delay operate to extend the 75-day time period within which the Motion or amended Motion for New

Trial must be determined.

11. MOTION IN ARREST OF JUDGMENT

A Motion in Arrest of Judgment is an oral or written suggestion to the court on the part of the Defendant that the judgment has not been legally rendered against him.

Article 41.02, C.C.P. governing the time to make the motion has been amended. This motion must now be made within 30 days after the date the sentence is imposed or suspended in open court. Again, the definition and timiog of the sentence is the same as that noted above under the Motion for New Trial section.

If the Motion in Arrest of Judgment is not determined by oral order or written signed order within 75 days after the date the sentence is imposed or suspended in open court, it must be considered overruled by operation of law on the expiration of that period of time.

Further, an order overruling a Motion in Arrest of Judgment shall he considered as an order overruling a Motion or amended Motiou for New Trial for the purpose of giving Notice of Appeal.

As a practical matter, the Motion in Arrest of Judgment is not used very fre- quently. In the event this Motion is filed, care should he taken to insure that it does not conflict with any other pending Motion for New Trial, for purposes of giving Notice of Appeal.

111. NOTICE OF APPEAL In order to perfect an appeal to the

Court of Appeals, Notice of Appeal must be given, either orally in open court or in writing and filed in duplicate with the clerk. The clerk of the trial court,

36 VOICE for theDefense/Pebruary 1982

i n turn, shall note uuon the duulicate In aU cases annealable bv law t o the VI of the New Av~ellate Rules which c. . .

the file number of the case and the date Courts of Appeals or the Court of Crimi- specifically addresses Motions for Exten- the Notice of Appeal was filed or given nal Appeals, the clerk of the trial court sion of Time. and forward i t to the appropriate Court that entered the judgment of conviction of Appeals. or order rcvokimg roba at ion sought to VII. FORMAL BILLS OF EXCEPTION

This Notice of Appeal shall he suffi- he appealed from must, under his hand A party desiring to have the record cient if it shows the desire of the Dcfcn- and seal of the court, make and prepare disclose some action, testimony, evidence, dant to appeal from the judgment or an appellate record comprisinga truecopy proceeding, objection, exception or other other appealable order t o the Court of of the matter designated by the parties, event or occurrence not otherwise shown Appeals. hut nwst always include, whether desig- by the record may utilize a Bill of Excep-

The Notice of Appeal must be filed nated or not, copies of the following: tion for this purpose. within fifteen days after the overruling 1. The material pleadings Bills of Exception must be fded with of the Motion or amended Motion for 2. Material docket entries made by the clerk within 75 days after Notice of New Trial, and if there be no Motion the court Appeal is given. The specifics of presen- or amended Motion for New Trial, then 3. The court's charges tation and qualification are delineated within fifteen days after sentencing. 4. The jury's verdicts in Article 40.09(6), C.C.P. "Sentencing" means the date the sen- 5. The judgment or any order A Bill of Exception shall he a necek tence is imposed or suspended in open revoking probation sary predicate for appellate review only court or the date the other appealable 6. The Motion or Amended Motion if the matter complained of is not other- order is signed by the trial judge. Article for New Trial wise shown by the record as provided 44.08(c), C.C.P. 7. The Notice of Appeal in Article 40.09, C.C.P.

No Notice of Appeal is required to 8. Any Appeal ~ o n d , and Errors otherwise shown by the record b e given in a case in which the death 9. All formal bills of exception. may be reviewed on appeal without the penalty has been assessed, because appeal The matter so prepared shaU be assem- necessity of any Bill of Exception. If is automatic to the Court of Criminal bled and shall constitute the Record o f the transcription of the reporter's notes Appeals in such cases. However, as most Appeal. or any court order or docket entry by of the subsequent appellate steps are Because of the various pre-trial motions the court shows the occurrence or exist- triggered by the date Notice of ~ p p e a l which may have been fded in the case ence of any particular action by the court is given, written Notice of Appealshould and the hearings which may have been or refusal of the court to act, or any always be fled. held with respect to such motions, the objection, or exception, or any other

For good cause shown, the Court of Designation of Record should identify event, no further proof of the occurrence AppeaIs may permit the giving of Notice specifically what motions and hearings or existence of same shaU be necessary. o f Appeal after the expiration of such the appellant desires to have incorporated Article 40.09(6) (v), C.C.P. fifteen days. in the appellate record. Formal exceptions t o rulings on evi-

dence, opinions or other actions of the IV. THE PAUPERS OATH VI. THE STATEMENT OF FACTS court are unnecessary. For all purposes

The trial court must order the reporter The record may include a transcrip- for which an exception has heretofore t o make a transcription of his notes tion of all or any part of the proceedings been necessary, it is sufficient that without charge t o the appellant, if the shown by notes of the reporter t o have a party, at the time the ruling, opinion, court finds, after hearing in response occurred before, during, or after the or action of the court is made or sought, to an affidavit filed by the appellant not trial and the same will constitute the makes known t o the court the action more than twenty days after giving Statement of Facts for the appeal. which he desires the court to take or Notice of Appeal, that the appellant is A transcription applicable to any his objection to the action of the court unable to pay or give security therefor, proceeding occurring before Notice of and his grounds therefor. If a party has

Appeal must b e fled with the clerk for no opportunity to object t o the ruling V. THE DESIGNATION OF RECORD inclusion in the record no later than 60 or order at the time it is made, the

Each party may file with the clerk of days after Notice of Appeal. absence of an objection does not there- the trial court a written designation A transcription of the notes applicable after prejudice him. Article 40.09(6) specifying materials for inclusion in the t o any proceeding occurring after Notice (c), C.C.P. record. The appellant must file his desig- of Appeal must be filed with the clerk When the court refused t o admit of- nation within twenty days after the giving for inclusion in the record not Iater fered testimony or other evidence, the of Notice of Appeal. The State must than 30 days after the end of such pro- party offering same shall as soon as fde its designation within 30 days after ceeding. practicable, but before the court's charge the giving of Notice of Appeal. Any extension of time for meethg is read to the jury, be allowed, out of

The failure of the clerk to include these limitations for either the appellant the presence of the jury, to develop the designated matter will not be ground or the state may be ganted by the appel- excluded evidence or other evidence for complait~t on appeal if the designa- late court in which the case will be Filed before the reporter, and a transcription of tion specifying such matter is not timely or a judge thereof for good cause shown his notes showing suchtestimony or other fded. Each party must serve a copy of on timely application to the appellate evidence and any objections and excep- its designation on the opposing party. court. Article 40.09(13). See aIso Rule tions of the party offering same shall,


CRIMINAL APPEALS IN TEXAS continued

when certified to by the reporter and included in therecord,establish the nature of such testimony or other evidence, and the objections and exceptions made in connection with the court's exclusion of such testimony or other evidence and no BiUs of Exception shall be essential to authorize appellate review of the question whether the court erred in excluding such testimony or other evidence. The court, in its discretion, may allow an offer of proof in the form of a concise statement by the party offering the same of what the excluded evidence would show, to be made before the reporter out of the presence of the jury as an alternative method of causing the record to show such excluded testimony or other evidence, and in the event the record contains transcription of the reportec's notes showing such an offer of proof the same shall be accepted on appeal as establishing what such excluded testimony or other evidence would have consisted of had it been admitted into evidence.

When testimony or other evidence has been excluded by the court over objection of the party offering same, no further offer of the same need be made to preserve the claimed error.

When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then such objection shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objection being renewed in the presence of the jury. Article 40.09(6) (d) (3), C.C.P.

VnI, APPROVAL OF THE RECORD Notice of Completion of the Record

must be made by the clerk by certified or registered mail to the parties or their respective counsel. If neither fdes and presents to the conrt in writing any objection to the record within fifteen days after the mailing of such notice and if the wurt has no objection to the record, the court shall approve the same. More explicit provisions concerning a supple- mental record and a hearing on objections are also included in Article 40.09 (7), C.C.P.

THE COURT OF APPEALS IX. FILING APPROVED RECORD

WITH CLERK The record, on approval by the court,

shall be fded with the clerk of the trial court, who shall immediately transmit i t to the appropriate appellate conrt. Article 40.09(8); Rule 103 (a) of the New Appellate Rules.

Notice of the Approval of the Record by the court shall be made by the clerk by registered or certified mail to the parties or their respective counsel. Article 40.09(a), C.C.P.

Under no circumstances shall the transmission of the appellate record to the appropriate appellate court bedelayed because briefs were not fded. Rule 103(a) of the New Appellate Rules.

X. THE APPELLANT'S BRIEF Within 30 days after approval of the

record by the court, the appellant must file with the clerk of the appropriate Court of Appeals the original and three copies of the appellant's brief, or the number of copies required by the rules of the Court of Criminal Appeals. The rules may not require him to fde more than ten copies. Article 40.09(9), C.C.P.

The 30day time limit shall commence when the Notice of Approval of the Rec- ord is mailed. Article 40.09(a), C.C.P.

Appellate briefs are not to be fded in the trial court. Rule 103(a) of the New Appellate Rules.

Extensions ofTime for filing the appellant's brief may be granted by the appellate court in which the case will be fded or a judge thereof for good cause shown on timely application to the appellate wurt. Article 40.09(13).

XI. THE STATE'S BKIEF Within 30 days after appellant files

his brief with the clerk of the appellate court, the state must fde with the clerk of the appellate court the original and three copies of its brief, or the number of copies required by the rules of the Court of Criminal Appeals.

XII. SERVICE OF COPY OF BRIEF UPON OPPOSING PARTY

refer to that part of the ruling of the trial court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings which are designated to be complained of in such way so that the point of objection can be clearly identified and understood by the court.

If the appellant includes in his brief arguments supporting a particular Ground of Error, they shall be construed with it in determining what point of objection is sought to be presented by such Ground of Error; and if the court, upon consideration of such Ground of Error in the light of arguments made in support thereof in the brief, can identify and understand such point of objection, the same shall be reviewed not withstanding any general- ity, vagueness, or any other technical defect that may exist in the language employed to set forth such Ground of Error. Article 40.09(9).

All briefs must be printed or typewritten on 8-'/; inch x 11 inch letter size pages or the equivalent thereof.

Briefs should be as short as possible, but in no eventshall they exceed 50 pages unless leave of the appellate court is first obtained.

Typewritten or printed lines must he double-spaced and all pages mnst have margins of at least one inch at the top, bottom, and each side.

Briefs mnst be compact, logically arranged, concise, and free from burden- some, irrelevant and immaterial matter.

Citations to the appellate record(R) shall indicate the number of the volume in Roman numerals and the number of the page in Arabic numerals being cited, in the following form: "R. 1V.-1,2,3." Rule 201 of the New Appellate Rules. Briefs not complying with this rule may be disregarded and stricken by the appellate court.

An original and three copies of each brief must be filed with the Court of Appeals. Rule 201 of the New Appel- late Rules.

Each party upon filing his brief with the clerk of theappellate court, shall cause XW. ORAL ARGUMENTS BEFORE a true copy thereof to be delivered to THE COURT OF APPEAU the opposing party or to the Within fifteen days of the mailing of counsel. Article 40.09(101. C.C.P. the Notice of the Setting of the case . ,,

before the Court of Appeals, aU counsel XIII. CONTENT OF APPELLANT'S of record will acknowledge receipt of

BRIEF SUBMITTED TO such notice and advise the clerk whether COURT OF APPEALS or not oral argument is desired. Failure

Each ground of error shall briefly to advise the clerk will constitute a waiver

of oral argument, provided, however, that a Court of Appeals may direct that a particular case be argued orally. Rule 204 of the New Appellate Rules.

Unless extended by the Court of Appeals in special cases, the total maximum time for oral arguments shall be twenty minutes per side. Counsel for appellant or applicant is entitled to open and conclude the argument. Counsel will

A majority of justices shaU determine whether opinions delivered by the court en banc shall be signed by a justice or issued per cnrianz, and whether they shall be published. A similar rule exists for Panel Opinions. Rule 207(a) and (b) of the New Appellate Rules. An unpub- lished opinion shall neither be deemed or cited as precedent. If a case is decided by acertificate of Aff~mance or Reversal,

not be permitted to read at length from theceaificateshaUidentify each issue that briefs, records, or authorities. was decided and the supporting authorities

Counsel may make an oral correction that were relied on in deciding that issue. t o his brief, but multiple additional cita- Rule 207(c) (d) of the New Appellate tions should not be made orally; they Rules. should be reduced to writing and filed with the clerk. Rule 205 of the New XVI. REHEARINGS-RULE 208 OF Appellate Rules. THE NEW APPELLATE RULES

A decision by a panel may be modified or overruled b y a majority of the member-

XV. SUBMISSIONS IN THE COURTS ship of the panel that initially decided OF APPEALS-RULE 206 OF THE the case or by a majority of the justices

NEW APPELLATE RULES sitting en banc. Except as is otherwise Generally, ~ri~inalsubmissionaof crim- provided, Motions for Rehearing shall

inal cases in a Court of Appeals shaU be be disposed of by the panel that initially t o a Panel of the Court consisting of three decided the case. See Rule 206. Rule justices. A majority of a panel will con- 208 (a). stitute a quorum and a concurrence of After the decision of a panel is deliv- a majority of a panel shall be necessary for a decision.

Where a case is submitted to an en banc court, whether on Motion for Re- hearing or otherwise, a majority of the membership of the court shall constitute a quorum and the concurrence of a majority of the court sitting en banc s h d be necessary to a decision.

A hearing or rehearing en banc is not favored and should not be ordered except in extraordinary circumstances. A vote need not be taken to determine whether a cause shall be heard or reheard en banc unless a justice of the en banc court requests avote. If a vote is requested and a majority of the membership of the en banc court vote t o hear or rehear the case en banc, the case will he heard or reheard en banc; otherwise, it will be decided by a panel of the court.

The Courts of Appeals, in each case decided by them, must deliver a written opinion, setting forth the reasons for such decision; o r where precedent exists, in its discretion may decide the same by a Certificate of Affumance or Reversal with citation of supporting authorities. In either event, any judge may file an opinion dissenting from or concurring in the action of the court. Article 44.24 (c), C.C.P.

ered, any party during a rehearing must, within fifteen days after the decision is dehered, present to the court a Motion for Rehearing distinctly specifying the grounds relied upon for rehearing and accompanied by such written argument in behalf ofthemotion as may be desired. Oral argument will not be permitted and no reply to a Motion for Rehearing need be filed unless requested by the court. Rule 208(b).

If a Motion for Rehearing is granted, the court may make final disposition of the cause without reargument, or may order the causeresubmitted (with or without oral argument), or may make such orders as are deemed appropriate under the circumstances of the particular case.

Sufficient copies of all such papers shall be fded with the clerk so that each member of the en banc court will have a copy.

Except as provided in Rule 206(e), the Motion for Rehearingshallbe disposed of by the panel that initially decided the case. If a majority of the justices of the panel that initially decided the case are of the opinion that the case should be reheard, the motion shall be granted and the case shall be resubmitted to the panel for a decision, with or without oral argument as a majority of the pane1

shall decide. If a majority of the panel are of the opinion that the case should not be reheard, the Motion 9 Rehearing shaU be overruled. Rule 208(b).

A majority of the justices of the en banc court may order an en banc reconsideration of any decision by a panel within fifteen days after such decision is issued on its own motion.

XVII. STAY OF MANDATE-RULE 210 The mandate of the Court of Appeals

shall be stayed automatically where: (1) a Petition for Discretionary Review to the Court of Criminal Appeals has been fded with the clerk of the Court of Appeals which delivered the decision within 30 days after the fmal ruling of the Court of Appeals, or (2) the Court of Criminal Appeals, or a judge thereof, has filed an order for review of the decision of the Court of Appeals. See Rule 303.

A Court of Appeals may stay the issuance of its mandate for not more than 60 days to permit the timely ffing of an appeal of Petition for Writ of Certiorari to the Supreme Court of the United -

XVIII. RULES OF CIVIL PROCEDURE RULE 211

Where not inconsistent with the Code of Criminal Procedure and these rules, as they now exist or may hereafter exist, the Rules of Civil Procedure shaU govern proceedings in the Courts of Appeals in criminal cases.

COURT OF CRIMINAL APPEALS XIX. DEATH PENALTY CASES

Article 40.09, C.C.P. and Rules 201 and 202(a) shall govern the appeal of the case in which the death penalty has been assessed. An original and three copies of the briefs must be fded in such cases.

XX. STATE'S RIGHT OF APPEAL Article 44.01, C.C.P. (State cannot

appeal) has been amended. While the State does not have the tight of appeal generally in criminal actions, this provision shall not be construed any longer to prevent the State on its own motion, from petitioning the Court of Criminal Appeals to review a decision of the Court of Appeals in a criminal case.


CRIMINAL APPEALS IN TEXAS continued

XXI. I)IS(:l<ETIONAI<Y KIWIIIW IN (;ENlIMI.-RULli 302

The Court of Criminal Appeals (here- inafter referred t o as C.C.A.), on its own motion, with or without a Petition for Discretionary Review being filed by the appellant or the state, may review a decision of a Court of Appeals in a criminal case.

Discretionary Review by the C.C.A. is not a matter of right, but of sound discretion.

In determining whether to grant or deny Discretionary Review, the fouowing indicates the character of reasons that will be considered:

1. Where a Coua of Appeals has rendered a decision in conflict with the decisions of another Cowt of Appeals on the same - - matter.

2. Where a Court of Appeals has decided an imvortant auestion of state or federai law whkh has not been, but should be, settled by the C.C.A.

3. Where a Conrt of Appeals has decided an imuortant ouestion of state or federal law in conflict with the applicable decisions of the C.CA, or the U.S. Supreme Court.

4. Where a Court of Appeals has declared unconstitutional, or ap- pears to have misconstrued, a statute, rule, regulation or ordinance.

5. Where the justices of the Court of Appeals have disagreed upon a material question of law necessary to its decision; and

6 . Where a Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a depaaure by a lower court, as to call for an exercise of the C.C.A.'s power of supervision.

A Motion for Rehearing in the Court of Appeals shall not be a prerequisite to the gtanting of a Discretionaxy Review, with o r without petition, by the C.C.A.

XXII. DISCRETIONARY REVIEW WITHOUT PETITION-RULE 303 The C.C.A. may on its own motion by

a vote of any four judges of the court grant review of a decision of a Court of Appeals in a criminal case at any time before the Court of Appeals decision

becomes final as determined by Article (3) Statement of the Procedural His- 42.04(a), C.C.P., Kule 209 and 303, tory of the case. The petition should

Unless otherwise limited in the order state the dates of the deliwry of any itself, an order for review shaU extend opinion or order of the Court of Appeals, the 45day time before a Court of Appeals the dates of the ffing of any motion for decision in a criminal case becomes rehearing or a statement that none was f i a l for an additional 45 days. See fded, and the dates of the overruling of Rule 209(b) as to when a Court of other disposition on any motions for Appeals decision becomes fmal. An order rehearing. for review shaU be signed by a judge of (4) Grounds for Review. A statement the CCA. of the grounds upon which the petition

is predicated shall be stated in short form XXIII. DISCRETIONARY REVIEW without argument and the grounds shall

WITH PETITION-RULE 304 be separately numbered. Where the party The C.C.A. may review a decision of filing the petitionhas access to the record,

a Court of Appeals in a criminal case he shall (after each ground) refer to the upon petition by the appellant or the page of the record where the matter com- state. See Article 44.45(b) (I), C.C.P. plained of is found. In lieu of grounds

The original or a legible copy of the for review, the petition may contain petition must be fled with the clerk of the questions presented for review, die Court of Appeals which delivered the expressed in the terms and circumstances decision within 30 days after the fmal of the case hut without unnecessary ruling of the Court of Appeals as deter- detail. The statement of the questions mined by Article 42.04(a), C.C.P. and should be shoa and concise and should Rule 209. See Article 44.45(b) (2), not be argumentative or repetitious. C.C.P. (5) Reasons for Review. A direct

Even if the time specified in Rule and concise argument, with supporting 304(b) has expired, a party who is other- authorities, amplifying the reasons relied wise entitled to file a petition may do on for the granting of review. See Rule so within ten days after the timely filing 302(c). The opinions of the Court of of another party's petition. Appeals will be considered with the peti-

tion, and statements therein, if accepted XXIV. THE PETITION FOR by counsel as correct, need not be re- DISCRETIONARY REVIEW peated.

A Petition for Discretionary Review (6) Prayer for Relief. The nature of shaU be as brief as possible and shall the relief sought by the petition should be addressed to "The Court of Criminal be clearly stated. Appeals of Texas" and shaU state the If any petition for discretionary re- name of the party or parties applying view is unnecessarily lengthy or not for review. prepared in conformity with these rules,

The petition shaU include the fol- the Conrt may require same to beredrawn. lowing: The petition for discretionary review

(1) Index. The petition should con- may be typewritten or printed. If i t is tain at the front thereof a subject index, typewritten, it must be with a double including an abbreviated rendition of the space between the lines and on heavy ground or question presented for review, white paper (8% inches x 11 inches) with page references where the discus- in clear type. Ten legible copies of the sion of each ground or question presented petition shaU be delivered to the clerk may he found andalso a list of authorities of the Coua of Criminal Appeals either alphabetically arranged, together with by counsel or by the clerk of the Court references to pages of the petition where of Appeals from copies furnished by same are cited. counsel. The derkof the Court of Appeals

(2) Statement of the Case. The shall file the original or a legible copy of petition shaU contain a brief general the petition and forward it, together with statement of the nature of the case. any copies furnished by counsel, to the Such statement should seldom exceed Court of Criminal Appeals. See Article one-half page. The details of the case 44.45(b) (3), CodeofCriminalProcedure. should be reserved to be stated in connec- When a petition for discretionary re- tion with the grounds or questions to view is filed in the Court of Appeals, the which they are pertinent. petitioner shall, at the same time, cause

40 VOICE for the Deiefls&eb?uary 1982

copies of the petition to be delivered to the attorney of record for the respondent and to the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711.

Within fifteen days after the fding of the petition for discretionary review the clerk of the Court of Appeals shall note upon his record the filing of said petition, and forward to the clerk of the Conrt of Criminal Appeals the petition and any copies thereof furnished by counsel, together with the original record in the case, the n~otion filed therein, and certified copies of any judgments, opinions and orders of the Court of Appeals.

The petition with the original record in the case, the motions filed therein, and certified copies of any judgments, opinions, and orders of the Court of Appeals shall be fded with the Court of Criminal Appeals.

The clerk of the Court of Criminal Appeals shall notify the attorneys o f record by United States Mail of the filing and docketing of petitions for discretionary review in the Court of Criminal Appeals. The respondent shall have 30 days after the receipt of the petition from the petitioning party, unless additional time is allowed within which to fde a reply to the petition with the clerk of the C.C.A.

An original and ten legible copies of all replies and other briefs, motions, and papers shall be delivered to the clerk of the Court of Criminal Appeals for filing. True copies of such instruments shall be served on the opposing counsel and the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711.

The petition, or brief, or any reply may be amended or supplemented at any time when justice requires npon such reasonable terms as the Court may pre- scribe. The record may be amended in the Court of Criminal Appeals under the same circnmstancesand on the same terms as in the Court of Appeals.

After administrative processing, a petition for discretionary review shall be assigned by the administrative staff t o a judge, in rotation, and the judge to whom such assignment is made shall have the responsibility for making an initial review and of reporting on such petition to the Court for a determination of whether to grant or refuse the petition for discretionary review.

When the Court refuses or dismisses a petition for discretionary review, wheth-

er the respondent has filed a reply or not, the clerk of the Court will retain the petition, together with the record and ac- companying papers, for at least fifteen days from the date of rendition of the order refusing or dismissing discretionary review. At the end of that time, if no motion for rehearing has been timely filed, or npon the overruling or dismissal of such motion, in case one has been filed, the clerk of the Court of Criminal Appeals shall transmit to the Court of Appeals which rendered the decision below a certified copy of the orders refusing or dismissing such petition and of any order overruling a motion for rehearing thereof, and shall return the appellate record to the clerk thereof, but shall retain the petition for discretionary review.

XXV. ORAL ARGUMENTS Within fifteen days of the mailing of

the notice of the setting, all counsel of record will acknowledge receipt of such notice and advise the clerk whether oral argument is desired. Failure to do so will constitute a waiver of oral argument; provided that the Court may direct that a particular case he orally argued.

If review is granted, the petitioning party (or, if there was no petition, the party who lost in the Court of Appeals) shall fde a brief within 30 days after the granting of review. The opposing party shall fie a brief within 30 days after the filing of the petitioning party's brief.

Briefs shall comply with Rule 202(a) and copies shall be fded and served as required by Rule 304(i).

Unless extended by the C.C.A. in special cases, the total maximum time for oral argument shall be twenty minutes per side, with counsel for appellant or petitioner entitled to open and conclude the arguments.

XXVI. REHEARINGS-RULE 309 A motion for rehearing may be filed

with the clerk of the Court of Criminal Appeals within fifteen days after the initial opinion or order is delivered, unless the time is shortened or enlarged by the Court. However, no motion for rehearing will be received from an order granting discretionary review.

The motion for rehearing must briefly and distinctly state its grounds, together with any supporting arguments. A reply to the motion need not be filed unless

requested by the Court. An original and ten copies of the motion and any reply thereto shall be filed. Copies of the motion and any reply shall be delivered to the opposite party and the State Prosecut- ing Attorney, P.O. Box 12405, Austin, Texas 78711. Any motion for rehearing or reply thereto may be amended or supplemented- with leave of the Court a t any time prior to final disposition. A motion for rehearing or a reply thereto is not subject to oral argument.

If five members of the Court are of the opinion that a rehearing should be granted in whole or in part, the motion will begranted and the cause will be there- after set for submission to the Court. Otherwise, the motion for rehearing will be denied.

The clerk will give all parties notice of the disposition of the motion.

If a motion for rehearing is granted, the Court may resubmit the case without oral argument. If oral argument is permitted, counsel will be limited to fifteen minutes per side. The movant is entitled to open and conclude the argument. The clerk will notify all parties of the time for such resubmissions.

If the Court delivers an opinion on rehearing which changes the disposition of the cause from that on original submission, the losing party may fde a motion for rehearing within fifteen days after said opinion is delivered. In such event, the procedures outlined in the first five paragraphs above will be followed.

XXVII. MANDATE-RULE 310 When a decision of the Court of Crimi-

nal Appeals becomes final, the clerk of the Court shall issue a mandate to the court below. A decision of the Court shall be final at the expiration of fifteen days from the ruling on the final motion for rehearing or from the rendition of the decision if no motion for rehearing is fded. See Article 44.02a, Code of Crimi- nal Procedure.

XXVIII. ASSIGNMENTS AND SUBMISSIONS EN BANC-RULE 312

The Court shall sit en banc for hearing appeals in death penalty cases, cases of discretionary review, cases in which leave to file was granted under Rule 313(a), cases which were docketed under Rule 313(c), and rehearings under Rule 309.

(Continued on p a p 43)

February 19WVOICE tor theDefense 41

THE STATE OF TEXAS VS. NO.

JUDGE PRESIDING: TRIAL ATTY:

COURT REPORTER: APPEAL ATTY: Retained/Appointed

OFFENSE: (APPEAL

PUNISHEIENT: (JAIL1 - (TOC) - BOND1

SCHEDULE OF APPELLATE STEPS iVENT 1 TIME I DATE DUE 1 EXTENSIONSICOMMEN

i 7 I . -

A Date punlshmnt fonnal ly llnposed 42.01 and 42.02

I I I

F Paupers Oath 40.09(51 1 E + 20 1

B Hotlon f o r New T r i a l 40.05

D Acted u on10verruled as a mat te r o f law 40.05(c!

E Notice of Appeal 44.08b

I If no Hot lon f o r New T r i a l . . . . . . . . . not necessary i n death penal ty cases;

automatic appeal t o C.C.A. - 44.08(a))

A t 30

A + 75

0 + 15 A t 15)

H Statement o f Facts Pre-Notice o f Appeal Proceeding Post-Notice of Appeal Proceeding i t h i n 30

avs a f t e

C k n d e d Hot ion for New T r i a l I I I

. . I I G Designation of Record 40.09(2)

Defense S ta te

E + 20 E + 30

I B i l l o f Exception 40.09(6)

J Not ice of Completion of Record 40.09(7)

K Object ion t o Record 40.09(7)

L Approval o f Record 40.09(8)

Y Date Not ice o f Record Approval Ha i led 40.09(8)(9)

N Appellant 's B r i e f Due 40.08(13)

3 State's B r i e f Due 40.01(10)

p Notice of Set t ing l n Court o f AoDeals

1 Oral Argument

i Decision of Court o f Aooeals 1 I 1

E + 75

J + 15

K 1

H t 30

PI t 30

) Request f o r Oral Argument P + 15

. . I I I I Denial o f Motion f o r Rehearing (i.e.. F i n a l

Rul l n d

. . I I I

I P e t i t i o n f o r Discret ionary Review by Court of Cr iminal Appeals - by appel lant o r s t a t e f i l e d w i t h c l e r k of Court o f Appeals - 10 Copies; Rule 30+; Service on Respondent and State Prosecutlna A t to rnev l

1 Motion f o r Rehearing (d iscret ionary by A o ~ a l l a n t ) 5 + 15

Review Denied I I I I Respandent's Reply V 30

I Opinion

Notion f o r Rehearing

Review Granted

P e t l t i o n e r ' s Br ie f

Resoondent's B r i e f

Motion f o r Rehearing I

X + 15

2 + 30

AA t 30

CRIMINAL APPEALS INTEXAS Rules 1 , 2, 3, 4, 5 , 8, 9, 10(a), 12, 13, in effect until the Court shall dispose of continued 14, and 15, as amended, insofar as they all nondeath penalty cases appealed t o

are applicable t o the direct appeal of the Court of Criminal Appeals and which XXIX. ASSIGNMENT AND DISPOSI- nondeath penalty Cases t o panels of the are still pending in the Court at the time TION O F ORIGINAL APPLICATIONS court of Criminal Appeals, shall remain these rules take effect. FOR WRIT OF HABEAS CORPUS, OTHER EXTRAORDINARY WRITS, SPECIAL CASES, AND POST-CONVIC TION APPLICATIONS FOR WRIT O F

HABEAS CORPUS-RULE 313 A motion for leave t o file must accom-

pany all original applications for writ of MEMBER NEW MEMBERS

ENDORSER MEMBER ENDORSER

habeas corpus, mandamus, and other extraordinary writs and motions and ten copies of all such papers shall he presented t o the clerk for distribution t o the judges of the Court. After administrative processing, all original applications for writ of habeas corpus, mandamus, and other extraordinary writs, shall be assigned by the administrative staff to

AMARILLO Mallory G. Holloway . William McKinney

AUSTIN Charles Schiesser. . . . . . . . . .Bob Jones Kenneth D. ~ c h u b h . . .William P. ~Llison

. a judge, in rotation, and the judge to BRYAN whom such assignment is made shall have David Barron . . . . . . . . .Henry C. Paine the responsibility for making an initial review and of reporting on such case to DALLAS the Court for a determination ofwhether Jonar~,alI W. Vickery , , , , John R, Leigh to grant leave to file. Upon presentation to the Court, motion for leave to file may be denied or the application may be FT. WORTH handled iii accordance with such other Max Blankenship. . .Eugene De~ul le t , J r . instructions or orders as shall be issued by the Court. In the event at least five mem- GRAND PRAIRIE bets of the Court are of the tentative R. Scopeins . . . .Leland a. Gietlcv opinion that the case should he filed and set for submission, motion for leave to fde will be granted and thc case shall then be handled and disposed of in accordance with such instructions o r orders as may be issued by the Court. No motions for rehearing or recousidera- tion will be entertained from the denial o f a motion for leave to fde an original application. The Court, however, may reconsider such a denial of a motion for leave to fde on its own motion.

Motions for extension of time and motions fded with respect to cases pending on the Court's docket (e.g., to advance on the docket), after administrative processing, shall be presented by the clerk or the administrative staff to thc presiding judge, or to a judge designated by the presiding judge, who may grant or deny the motion or refer it t o the en banc conference for consideration. The motion will be handled and disposed of in accordance with the instructions of the presiding judge, the designated judge, or the en banc cbnference.

XXX. TRANSITION RULE-RULE 401 Former Court of Criminal Appeals

HOUSTON Gamy Michael Cooper 111 . . . . . . . . . . . . . . . . . . . . , . . . . . . . Arthur Jackson

Ray B. Martin. . . . . . CharlesW. Medlin

MIDLAND Jeffrey Hinkley. . . . , . . . William Smith

ODESSA Willie Schmeder . . . . . . WarrenBurnett

TYLER Paul S. Colley, Jr. . . . . . Former student John H. Hannah, Jr.. . . Weldon Holcomb

WAC0 ~ a ~ f o r d J. ~ I a c k . . . . . Merrilee Harmon John B. Faulkner. . . . . Merrilee Harmon Tommy P. Herring, . . . Merrilee Harmon Torn Moore, Jr.. . . . . . Merrilee Harmon

Texar Cou~lr af Mded r i l h m Prom A p p l r - Gill I nedof handdarn 1215 yr

MAILED WEEKLY POSTAGE PREPAID Send for Order Blank and Complimentary Sample

Bmderr Avanlable far Eary Storage

I2 YEARS OFSERVICE P. 0. Box 1262, Austin, Texas 78767

(512) 346-1804

February 1982/VOICEfar theDelense 43

BOARD OF DIRECTORS PRESIDENTS ABSENT: Frank Maloney, recommended that the association join

MEETING - WAC0 Anthony Friloux, Jr., Phil Burleson, the Trial Lawyers and Texas Teachers t o George Gilkerson. C. David Evans, Em- take advantage of the lobbying strength - - . - -

DECEMBER 12, 1981 mett Colvin, Vincent Perini and Robert and numbers with shared services. Wet- Jones. donHolcomb movedand John J.C. O'Shea

Guests present included Garland Wier seqonded that a committee be formed t o of San Antonio and Hector Villarreal of meet with the two groups and report

The ~ o a r d of Directors of the Texas dinb bur^. The minutes of the October back to the Board. Motion carried. Criminal~efense Lawyers Association met 3 ~ o a r d meeting in Dallas were approved President McDonald asked for interested at 10:OO a.m. on Saturday, December with one correction on Page 6. The refer- parties; Louis Dugas was appointed chair- 1 2 at the Hilton Hotel in Waco. ence was corrected to read that Richard man with Charles Butts and John O'Shea

Harrison, not Richard Anderson, reviewed appointed t o the study committee. I. INTRODUCTION O F the executive committee's recommenda-

POLITICAL CANDIDATES tions relating t o the Spring Trip. V. RECORDS MANAGEMENT .he following candidates spoke with Representatives from three computer-

the Board regarding their qualifications: 111. BOARD APPOINTMENTS oriented companies were introduced to John H. Hannah, Jr., candidate for President McDonald recommended to the Board and asked to give seven t o eight Attorney General; Chuck Miller, can& the Board that Jack Rawitscher of Hous- minute discussions regarding their word date for Court of Criminal Appeals ton replace Antonio Cantu, appointed to and/or data processing units. Represen- (Place 2) formerly held by Truman the Fourth Judicial District of the Court tatives present included Reb Baccus of Roberts; and Ted Robertson, candidate of Criminal Appeals. Mr. McDonald Alpha Micro, Mike Linney of IBM and for Supreme Court, (Place 1). recommended that Merrilee L. Harmon David Brookins representing CPT. Alpha

The meeting was called t o order. of Waco replace Mr. Rawitscher as Asso- Micro and CPT displayed their equipment ciate Director. Weldon Holcomb moved for the Board's consideration. After each

11. ROLL CALL and Louis Dugas seconded that the presentation, the representatives were Roll was called, and it was established Board approve the President's m o m - asked to comment on the price of their

that a quorum was present. mendation. Motion carried. equipment, the maintenance service ren- OFFICERS PRESENT: Charles Mc- dered by their company and the number

Donald, President; Clifford Brown, Presi- IV. LEGISLATIVEDISCUSSION of features on the required list their dent-Elect; Thomas Sharpe, Jr., First Mr. Tom Ragland, Chairman of the equipment could perform. The represen- V.P.; Clif Holmes, Second V.P.; Louis Texas Trial Lawyers Criminal Law Com- tatives were then dismissed from the Dugas, Jr., Secretary-Treasurer; and Steve mittee, was introduced to the Board to meeting and open discussion followed. Capelle, Assistant Secretary-Treasurer. discuss parallel legislative interests be- Richard Anderson reviewed the presenta-

DIRECTORS PRESENT: Richard An- tween TTLA and TCDLA. He proposed tions and recommended that the Board demon, Charles Butts, William Dunnam, that the Criminal ~ e f e n s e Lawyers form a purchase the CPT at the price of 623,000. F.R. Files, Michael Gibson, Ronald coalition with the Trial Lawyers and the After finances were discussed, Steve Goranson, Richard Hartison, Jan Hemp- Texas State Teachers Association to CapeILe moved and Richard Anderson hill, James Kreimeyer, Jr., John J.C. explore similar legislative goals andideas. seconded that the association purchase O'Shea, David Spencer, Michael Thomas He proposed that the coalition function the CPT. Motion carried. Mr. Anderson and Stanley weinberg. DIRECTORS as a clearing house of ideas and noted was commended for his personal study ABSENT: William Alexander, Cecil Bain, that each organization would main- of the computers on the market and his James Bobo, John Boston, Donald t a i n h own independence in the group. contribution to the committee. RonGor- Dailey, Jr., Eugene De~ul le t , Woody Barbara O'Neal, President-Elect of the anson noted that the association should Densen, Rusty Duncan, Tim Evans, Texas State Teachers Association, was keep the memory typewriter until the David Bires, Gerald Goldstein, Grant introduced by Mr. Ragland. She noted new system was running smoothly, and Hardeway, Sr., Oliver Heard, Jr., Knox her concern about theeffect of the "New sell it at their discretion. Clifford Brown Jones, Edward Mallett, Arch McCoU Right" on public education. Her interest made the official motion and Tom Sharpe 111, C.W. Pearcy, Eduardo Rodriguez, in forming the coalition was to carry seconded the motion. Motion carried. Larry Sauer, Stanley Topek, Robert messages of common interest. Turner and Ron Zip. Mr. Ragland and Ms. O'Neal excused VI. OFFICE PROCEDURES

ASSOCIATE DIRECTORSPRESENT: themselves from the meeting, and the M,. McDonald noted that h u i s Dugas Jack Beech, Robert Brown, Joseph floor was open for discussion. President Orange had submitted a proposed Connors 111, Malcolm Dade, Fred Tinsley, McDonald noted that he felt the legislative manual t o the Board for consideration. Jr., Charles Tessmer and Doug Tinker. group would lend both people and money ~e asked his executive assistant t o pre- ASSOCIATE DIRECTORS ABSENT: to our efforts in the next session of the pare an outline of the work duties of the Melvin Bruder, Deborah Gottlieb, Charles Legislature, noting that more emphasis employees before the handbook was Rittenberry, Jack Rawitscher and Dain could he expessed with larger blocks of in fmal form. Whitworth. power. After discussion regarding possible

PAST PRESIDENTS PRESENT: Wel- problems which muld be encountered VII. PUBLICATIONS COMMITTEE don Holcomb, George Luquette. PAST between groups, President Mc~ona ld A VOICE for the ~efufse-President

44 VOICE for IheDefensflebruary 1982

McDonald called a closed session after the meeting to discuss the publication.

B. Co~rtinuirrg L e p l Education-Joe Connors reviewed the goals of the CLE Committee for Chairman Robert Turner who was attending a CLE seminar in Washington. One of the major goals of the committee is to solicit more materials from members for the VOICE; also included in the goals for the year was a recommendation in the form of a motion that it be a ~ o a r d requirement for each member to submit one article for consideration. Mr. Connors' motion was seconded by Louis Dugas. Motion carried.

C. Criini~zal TrialMafiunl-Joe Connors, Chairman of the Publications Committee, reviewed the previous discussion on the manual. Before turning the floor over t o the editor of the Texas Criminal Trial Manual, Mr. Connors asked the Board to rule if the association wants to continue updating the manual by Garland Wier, o r if they would like to notify Mr. Wier t o discontinue daily revisions. Mr. Wier spoke briefly regarding his preparation o f the manual and reported that it is currently up to date; however, he noted that many more subjects had been added t o the publication. His recommendation was that the manual be reprinted in its entirety to include the expanded index. Clif Holmes recommended that the new material be presented as a supplement rather than reprinting. Mr. McDonald noted that although the association had cleared the initialexpenses on the ~ublica- tion, there were still a great number of manuals available for sale. After consider- able discussion, Mr. McDonald asked Mr. Connors to present his final recommenda- t ion on the matter to the ~ o a r d at the next meeting.

D. Crimirzal Law Outline-Mr. Connors reported that 1500 copies of the outline, published by the National College in Reno, Nevada, had arrived at the home office. He asked Rosalind Brinkley, Executive Assistant to the President, when the manuals would be mailed. Mrs. Brinkley noted that initially the manuals had been held due to the increase in postage rates and the approval of non- profit permit status. In addition, the mailing had been held due to lag time for computer updates t o be completed b y t h e new service bureau handling the account. The unsorted labels were re-

ported to have arrived the day previous to the Board meeting and were presently being sorted for issuance t o those who had paid their dues. Mr. Connors moved that the outlines be mailed at the earliest possible date; his motion was seconded by Clif Brown. Motion passed.

E. Texas ~reat lz Akoliol Testing Pro- gratn-Operator MamiaCMr. Connors reported that 37 orders had been received to date for the manual at the prc-publication price of $30. He made a motion that each member of the Board purchase a copy of the manual a t the pre-publication rate in order that the printing ex- pense would be covered. Rusty O'Shea seconded themotion to print 1000 copies. Motion carried.

F. DPS Book Distributed by CL Section-Mike Brown of Lubbock reported that a Department of Public Safety book on law enforcement, review- ingpenal codes and miscellaneous criminal laws had been purchased by the Criminal

yearly assessments toward the building purchase. Mr. McDonald said that he was checking further into the tax deduct- ibility of donations to such a fund. He noted that it may be necessary to form a separate corporation to establish tax credit. Plans were being made to request an IRS ruling on the matter. Contribu- tions to date to the building fund were reported to be $2,200 which are presently drawing 10.12% interest. Mr. McDonald asked members to report any ideas they might have on how the tax consequences could be handled in order to expedite immediate planning. Several Board members came forward with donations to the fund.

X. FEDERAL RULES OF CRIMINAL PROCEDURE

Mr. McDonald announced that he hoped that someone might attend the hearings on the proposed amendments to the federal rules of criminal ~rocedure. The dates announced were as follows:

~

Law Section of the state Bar at cost. He noted that the same material would

Court of Claims ~ l d g . , February 10-11

cost in excess of $30 if purchased directly Washington D.C.

from a oublishine company. Mr. Brown Federal Court ~ l d g . , February 11-12 - - . noted that the publication would be Chicago, Illinois mailed to members of the section before Federal Court pebruary 11-12 the end of the year and asked that every- Sari Francisco, California one keep this publication in mind when they pay $10 for CL section dues as plans Those wishing to testify should con-

are for this to be a continuing project. tact the Secretary to the Committee.

G. Penal CodeHandbook-WeldonHol- XI. STATE BAR RULES OF EVIDENCE comb asked about the possibility of UP- McDonald reported that the state dating Penal Code Handbook which had Bar had appointed a committee to draft been distributed by the association in rules of evidence which would apply to previous years. Mr. McDonald asked Joe botll civil and criminal cases, He said Cannors to check into the possibility of he did not see anyone,s name from tllis printing it. association on the committee and re-

quested that the association be represented VIII. MEMBERSHIPCOMhUTTEE in some manner. Mr. Tom Sharpe of Mr. McDonald noted that he was quite Brownsville restated that it was the

upset that numerous inactive members purpose of the committee to decide if were still displaying their membership there should be uniform rules of evidence certificates. He asked that Charles Butts in criminal and civil matters. He voiced look into some way to update the certi- his concern that someone contact the ficates so that only those who are paid resident of the State Bar regarding in- current would receive recognition as put from the association due t o the effect members of the association. on criminal lawyers. Richard Anderson

moved that the President address a IX. BUILDING FUND letter to Wayne Fisher outlining the prob-

President McDonald passed out pro- lems our association has with this and ask posed pledge sheets for the TCDLA that consideration be given to appoint- building fund giving members the option ing a representative from our association. of becoming a "Fellow" of TCDLA Rusty O'Shea seconded the motion; by pledging a total of $1,500 or optional motion carried.


B O A R D MINUTES cont inued

XII. ANNUALTRIP Richard Harrison reported that the

Spring Trip had been confirmed for March 25-28 and that 75 rooms had been reserved at the Dunes Hotel in Las Vegas. He noted that Morris Shenker had arranged for meeting rooms and a cocktail party for members of the association. Room rates (double occupancy) were set at $50 per night. Mr. Harrison noted that Knox Jones was setting up the seminar, and that expenses t o attend would he tax deductible. Air flight con- firmations were to he completed and information published in the VOICE with a February 19 deadline set for reservations. The decision was made t o include an announcement regarding the trip in with the mailing of the Criminal Law Outline, and that both items should he mailed as soon as possible after the meeting.

XIII. LEGISLATIVE REPORT in order that the $20,000 certificate Steve Capelle noted that the legisla- couldberenewedfor an additional period.

tive committee had not met as yet and Motion carried. asked members of the Board to send Mr. CapeUe noted that a new style of suggestions on areas in need of change. invoice would he used this year and

XIV. FINANCIAL REPORT that the additional information requested Mr. Capelle reviewed the October would he used for the directory and

financial statement and reported that initial computer input. The deadline the association is staying in the black for dues payments was discussed by with a balance of $28,000 in repurchase the ~ o a r d . Jan Hemphill recommended agreements at a savings institution in that the deadline on the invoice be moved Aust: at thirteen percent interest as ap- from March 31 to March 1. It was also proved by the Board in October. He noted that three invoices would not be reported that one thirtyday agreement mailed this year. The ~ o a r d agreed that had been rolled over with interest on the the second invoice should be stamped $10,000 certificate totalling 8109. Some "FinalNotice." of the $20,000 60-day investment Louis Dugas moved and Rusty O'Shea would need to he withdrawn to cowr seconded that the meeting he adjourned. expenses in late November. Mr. Dngas Motion carried. moved and Mr. Connors seconded that Respectfully submitted the money authorized for the printing Rosalind Brinkley of the Breathalizer Manual be deposited Executive Assistant t o the President

IMPEACHMENT UPDATE con t inued from page 10 5. A. When does Defendant's reputation evidence come in?

1) Defendant's Reputation Defendant can prove, during guilt stage and when germane to the case, various good reputations either before or after he testifies or even if he doesn't testify (theory is Defendant's reputation is questioned by the charge so he can counter that question.) Good reputation can be for: PEACEFUL AND/OR LAW ABIDING-any case Lovett 258 + 335 (at guilt or punishment phase.) SOBRIETY-DWI case or where Defendant's intoxication is in issue. Foley 356 + 686. HONESTY AND/OR FAIR DEALING-theft case. Hamman 314 + 301. PEACE and QUIETUDE-assault case.

2) State can rebut above with bad reputation witnesses as to same trait.

3) State cannot question Defendant's FACT witness about Defendant's reputation just because

~e fendan t takes the stand even if Defendant has already put on reputation witnesses. Lovett 258 + 335.

4) State can't argue Defendant's failure to come forward with any reputation witnesses. Dee 388 + 946; Harmon 45 + 583.

5) State can put on evidence of Defendant's had reputation for being peaceful and law abiding during punishment phase-period. Only time State can INITIATE reputation evidence against Defendant except T & V after D takes the stand.

B. When does witness' reputation come in? As to T & V of any witness: 1) BAD reputation admissible only after he testifies.

Yarborouglt 276 + 303. 2) GOOD reputation admissible only after witness

impeached by reputation or CONTRADICTORY statements (Downing 136 S.W. 471) a? scathing X/B (Bowers 134 + 263) (not sufficient that witness is just telling a story different from what other witnesses are saying). ~ 3 .

LETTERS. . . from page 5 Please change your records to reflect

that I have replaced Danny Price as Director of Programs of thc State Bar of Texas.

1 enjoy reading and passing on the March 1 , 1 9 8 2

information in the VOICE. (If dues n o t received, name Thank you for your services. will not be inclirded in 1982

Very truly yours, VaLinda Hathcox

Directory .) Director of Programs, State Bar of Texas

February 21 thru 25 TAHOE SEMINAR

sponsored by D A L L A S C O U N T Y

46 VOICEfor the Defense/February 1982

Great moments in courtmom history should be shared. The VOICE will publish excerpts from courtroom transcripts whose outrageousness demand presentation. Submissions should be sent to VOICE for the Defense, 374 M! Ilth, Suite 315, Austin, TX 78701.

MIRANDA: A BURNING TORCH OP JUSTICE srcbmitted by Paul Womack

Austin, Texas (Whereupon, the Defendant, while

seated at the counsel table and in the presence of the jury, produced from a hidden location on his oerson a small

NO DEFAULTS HERE THE DEFENDANT: I'll go to the submitted by J. O'Keefe Barry ~en i t en t i a r~ .

THE COURT: You took the words THE COURT: You're still pleading rieht out of mv mouth. - -

guilty in each case now because you are guilty?

GHOST STORY

THE DEFENDANT: Yes, sir. submitted by Ken Sparks

THE COURT: All right. The Court, Hoaston, Texas

being of the opinion in each case that Q. You never been placed in jail in you're mentally competent, your plea is New Orleans? voluntary, that you understand the con- A. Yeah. sequences of several pleas, the Court Q. What did they get YOU for there? will accept your plea of guilty in each A. I Went to jail for drunk. And they PUG case and find you guilty as charged and me in jail for attempted robbery. assess your punishment at ten years Q. What happened to that? confinement in the Texas Department A Nothing. of Corrections in each case. With the 9. Nothing? further fiidine bv the Court that your A. I was the only spook in the neigh-

borhood. so thev nut me in iail. - ,

wooden sulphur-headed 31cendiary de- best interest and the best interest of vice, to-wit: a kitchen match, setring on society will be subserved, I will suspend fue several sheets oE paper, which burn- the imposition of these sentences and ing sheets were then laced on top of place you on probation for a ~ e r i o d of the Defendant's head, which in turn re- ten years. sulked in the immediate ignition of the Now you'll get a copy of the terms Defendant's hair. and conditions of your probation.

The Defendant thereupon left his chair Now, in each of these cases, ~ o u ' r e amidst exclamations from his counsel, going t o have to make restitution. admonitions from the Court, the per- You're going to pay that $10.00 a vasive aroma of burning protein, and mouth. moved toward the Bench in a manner In addition to that you'll pay $150.00 suggesting his intention to ascend thereto. attorney's fees and you'lltake that 810.00

Whereupon, the Defendant was there- a month that I waived as the probation upon sat upon by various Court officials fee and add $5.00 to it. [whom the Court relied upon] and was Thirty-five dollars a month onthe 10th immediately (1) subdued, (2) given warn- day of November and on the 10th day of ings as to his constitutional and legal each month after that date until you've rights, which warnings complied in all paid all that money. respects with the Constitution and laws You understand me? of this State and the United States, and THE DEFENDANT: Yes, sir. (3) extinguished, following which a re- THE COURT: You know what's going cess was taken and enjoyed by aU.) t o happen if you don't pay it?

PROFESSIONAL NVESTIGATION2 THROUGHOUT TEXAS & U.S.

26 YEARS EXPERIENCE FORMER POLICE DETECTIVE

Richard "Dick" Clark

INVESTIGATOR DALLAS

2 141438-5355 Phone Answered 24 Hours

SL. 205-A Member. TEXAS ASSOCIATION LICENSED INVESTIGATORS

T E X A S PENAL CODE HANDBOOK AVAILABLE NOW-A ONE-VOLUME ANNOTATED PENAL CODE!

This remarkable Handbook contains casenotes on every reported case decided by the Court of Criminal Appeals under the 1974 Penal Codc, plus the full text of the Code with the 1981 amendments. Casenotes are arranged logically to make finding the case you need quick and casy. Find it fast in the courtroom- reduce research time in pretrial and on appeal. All this in a single 8-112 by 11 volume at a cost of only $30, plus $1.50 sales tax and $2 postage and bandling. At this bargain price how can you afford not to have this unique tool a t your fingertips? Order your copy today. Send $33.50 per copy to:

FREELANCE ENTERPRISES, INC. 7215 CREEKSIDE AUSTIN, TX 78752


- .-

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION, 314 West'llth, Suite 315, Austin, TX 78701

Some of the best legal minds

0 To promote educational activities to improve the skills and knowledge of lawyers engaged in the defense of criminal cases.

MEMBERSHIP APPLICATION (please print ortype) i I

Name (as recorded an Bar Card1

Name (as desired in Memberrhlp Directory) i

Date of Birth I

Street or Box No.: I I

Clty and Zip Code: I F ~ r m Name: I Busmess Telephone. AC 1 I Date Admltted t o State Bar of Texas Bar Card No

I I

Admttted to Practrce m: I Law School (Name, degree, date1 1

I

College (Name, degree. datel i I

- . . .in this state already belong to the Texas Criminal Defense Lawyers Association. We believe we have now the best Criminal Defense Bar in the United States. We maintain that level of excellence by continuously seeking out new minds, new energies. Therefore we want YOU. . .if your legal and personal philosophies are compatible with ourpurposes and objectives: 0 To provide an appropriate state organization represent- 0 To improve the judicial system and to urge the selec-

ing those lawyers who are actively engaged in the de- tion and appointment to the bench of well-qualified fense of criminal cases. and experienced lawyers.

0 To protect and insure by rule of law thore individual 0 To improve the correctional system and to seek more rights guaranteed by the Texas and Federal Constitu- effective rehabilitation opportunities for those con- tions in criminal cases. victad of crimes.

0 To resist proposed legislation or rules which would cur- 0 To promote constant improvement in the administra- tail such rights and to promote sound alternatives. tion of criminal justice.

ADVANTAGESFORREGULARMEMBERS

OTCDLA Membershtp Directory-referrals to and fromcriminal defenselawyersln over100Texascltlss.

Outstanding Educational Programs-featuring recognized experts on practical aspects of defense Eases. TCDLA and the State Bar annually prewnt many remlnars and courser in all parts of the state.

OTCDLA Brief Bank servioe.

~Publicatrons, including the monthly VOICE for the Defense with its "Significant Dec~sions Report" of important carer decided by the court of cnminal appeals and federal courts.

.Attorney General's Crime Prevention Newsletter. Summartes of latest court of criminal appeals cases available to prtvate practitioners only through TCDLA's gmup subscription, included in dues.

0 Organizational Vo~ce through which uimmal defense lawyers can formulate and express their posltion an legislation, court reform, impartam defense cares through amlcus curtae acttvlty.

*Dacountr and Free Offerings for publications of in terw to crminal defense lawyers. Research sewtce available at a reasonable hourly rate; messenger service i n Capitol area.

i 1 (If student, expected date of graduation) I I

I Professional Organizations in which applicant i s member in good standmg: I I I I

i I

i Have you ever been disbarred or disciplined by any bar association, or are you 1 I the subject of disciplinary action now pending? I I I I I i (Date1 (Stgnatwe of Applicant1

: I I I . I I

ENDORSEMENT I

I I I I, a member of TCDLA, believe this applicant to be a person of I I professional competency, integrity, and good moral character. The 1 ( applicant i s actively engaged in the defense of criminal cases. I I I I

(Stgnature of Member1 I

Mail to: I I TCDLA, Suite 315.314 West 11th Street, I I Austin, TX 78701, (5121 478-2514. Print or type name of member I

J

ELIGIBILITY AND DUES Effect~ve: January 1, 1982

. . . . . . . Voluntary Sustaining dues IVSI. .$300,00 . . . . . . . . . . . . . Sustaining dues (SUS) 200.00

Dues far members in the f ~ r m of . . . . . . . . . . a sustamng member (SMFI 50.00

Members admitted t o practice. (MEMI . . . . . . . . . . . . . . . 2 yearn or less 50.00

. . . . . . . . . . . . . . . . . . . 2 6 years 100.00 . . . . . . . . . . . . . . . 5 or more years 150.00

Affiliate: Persons in careers which contribute to defense of crimtnal cases, e.g., law professors, are elibible for affiliate membership upm approval of the application and receipt of the annual dues

. . . . . . . . . . . . . Afflllate dues IAFFI 25.00 Srudenrs: Those regularly enrolled in a law school in Texas are eiibble for student membership.

. . . . . . . . . . . . Student dues ISDM1 20.00

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