tcdla - Voice For The Defense Online

REGISTRATION INFORMATION
l'lease complete md send this rrgist~ation fu1111 by I I I to ~ TCDLA
600 West 13th St. Austh TX 78701-1700 or by fax to (512)469-9107,
Bw card #
COURSE DlRECTORSr
DEXTER GILFORD AM) MICHAEL HElSKELl
Phone
piuc
PEATURED SPEAKERS INCLUDE8
Bill Allison
lukrrluhnid
Christopk Gunky
George Sehormm
Terrence Kirk
Richard Andwson
David Botsford
David %eaponJ
Tyrone Moncriffe
Mb Gibm
Gerry Morris
keb Timmerman
Dick Muerin
J. Dou as Tinker
Kent Sh f aek
Michael Ramsay
David P. &ugh
I
I
a I am appl 11 Cur a scho+,~rship by November 30th. To apply, send a lener indimling:
,ur nenrwicther p ~k received a scltolanhip before and when as well as two
&ten of recommcndstiun, we from a judgeand one lmn~ a member ofTWIA.
U Plae check here or call the omce if you require spc.cial assislance.
WE Hill bc happy to help you in any say we cm.
TOPICS INCLUDE:
The Bidvaned Basiw of C~I-Eminafion
* Pmporatbn of Crebination
Cros-Earmining ihs Armti O f b in m Wl Cam
Crass~Examinatton of appm~~reserving Error
the Ethics ofCm-Esgam~nation
* Cms-hminah in Close Qu&rs and the &tiw
Use of Demonsfrafive Evidswe
Crass-d the E ewifnes
a Cross in ~ edefena ~oses
CIawaf the F m & Paha\ogisI
OosrExomination of the Counselorund Caseworker in
a Swml WssauIt Ccse
9 The Ten Most Importdnf Fadors Se~clmfinh) u Good
Oos5-~ominmim ham a 0-em dram- ino of ion
Cross-Examination in Coses Iwo!Gng DNA
* Cm-of Snitch and fnbrmonts in Wru$ Cases
C;m$a-Emination in Mife Cokw lacima Promutiem
Tales From thehnt Lines: brims of Cms-
Exominati6n

~ -
COLUMNS
- = .. . - . =--
6 President's Message
8 Editor's Comments
9 From the Four Corners of Texas
1
10 Federal Corner
12 1 The Corner Office
I
26 Announcements
27 1 Membership Benefits
DEPARTMENTS
-
7 New Members
l5 I
Motion of the Month
1
Schedule of Events
26
29
I
Significant Decisions Report
36 1 Leifer to the Editor
FEATURE STORIES
Resisting the Crown: Analyzing the Role of
the Criminal Defense Lawyer
By Jack B. Zi~tttner~nnn
Things to Know About Lawyer Advertising
BJ~ Ray Can tu of the Stnte Bnr of Tms
A Very Different Visit to Washington, D.C.
BJI Keith ILZIWII~CIII

lHE PURPOSES OF TCDLA
The purposes forwhich the corporation is organized are:To protect and ensure by rule
of law those individual rights guaranteed by the Texas and Federal Constitutions in
criminal cases;to resistthe constanteffortswhich are now being made to curtailsuch
rights;to encourage cooperation between lawyers engaged inthe furtherance of such
objectives through educational programs and other assistance; and through such
cooperation, education and assistance to promote justice and the common good.
2001- 2002 OFFICERS
Presideni Beiiy Blackwell, Austin
Presideni-Elect Mark G. Daniel, Fort Worth
1 st Vice President Cynthia Huiar Orr, San Antonio
2nd Vice President Daniel Hurley, Lubbock
Treasurer Randy Wilson, Abilene
Secretary Siuarl Kiaord, Austin
Ediior Voice for ihe Defense John Carroll, San Antonio
Ediior Significant Decisions Repori Cynthia Hampion,Austin
Immediate Past President Bob Hinlon, Dallas
I
STATEMENT
Voicofor theDefe~se (ISSN 0364-2232) is
published monthly, except for
Januatyfiebi~~ary and July/August, wllicli
are bimontl~ly, by the Texas Crimninal
Defense bwyem Association Inc., 600 West
13" Street, Austiu, Texas 78701. Printed in
the USA. Basic subscription mte: $40 per
year w11e11 received as a benefit of TCDLA
n~embcrsl~ip. NOI-member subscriptions:
$75 m111dy. Periodicals Postage Paid at
Auslln, Texas.
POSTMASTER: Send atldress
cllanges to I'oicefo.lhoDefe~~se, 600 West
1361 Street, Austin, Texas 78701. I'oicejkn
the Defewe is published to educate, ~ I~I
and support attorneys in the p~xctice of
criminnl defense law.
CONTRIBUTORS: Send d fahlre
articles to Greg Vdl, Westfall, Plan 8-
Cutra, One Sununit A=, Suite 910, Foit
P'oltl~, TX 76102, 8171877-1700. Please
send all other niateriuls for publicahon to
Job11 l%rroll, 111 \Vest Ol~nos Drive, Sari
Antonio, Texas 78212.2101829-7183 or to,
l'oice for the Defe~~se, 600 \Vest 13h
Street, Austin, TX 78701, 5121478-2514,
Fa 5121469-9107, e-m;ul materials can Ire
sent to m.tcdla.com.
Staten~ents and opiuions published in t l ~
I'oice for the Dofoeso arc those of the
author md do not necessxrfiy represent d~e
position of TCDW. No material 111ay be
reprinted without prior approml md pmper
credit to the nclgaziue. 02001 T ew
Criminal Defense Lawyers Association.
DIRECTORS
ERlC M. ALBRITTON, Longview
G. PATRICK BLACK, Tyler
WES BALL, Arlington
DANNY EASTERLING, Houston
LANCE EVANS, Fort Worth
ALBERT0 GARC#A, Austin
MlKE R. OIBSON, El Paso
DEXTER GILFORD, Austin
DAVID GUINN, Lubbock
RONALD P. GUYER, San Antonio
WILLIAM S. nams, Fort Worth
CYNTHIA HENLEY, Houston
RODERIQUE HOBSON, JR., Lubbock
CHRIS HOOVER. Plano
W.H. "BENNIE" HOUSE, JR., Houston
JEFF KEARNEY, Dallas
J. CRAIG JEW, Dallas
MARTIN LENOIR, Dallas
ROBERT LERMA, Brownsville
ASSOCIATE DIRECTORS
H.W. "WOODY" LEVEREW, JR., Midland
JESSE MENDEZ, Lubbock
GEORGE MILNER, Ill, Dallas
TYRONE MONCRIFFE, Houston
WALTER VKiPn REAVES, West
RICHARD RODRIGUEZ, Harlingen
KATHERINE SCARDINO, Houston
GEORGE SCHARMEN, San Antonio
STANLEY SCHNEIDER, Houston
RICHARD SEGUM, JR., Austin
RONALD SPRIGGS, Amarillo
MARY STILLINGER, El Paso
J. GARY TRICHTER, Houston
MANDY WELCH, Houston
GREG WESTFALL, Fort Worth
DON WILSON, Abilene
PHIL WISCHKAEMPER, Lubbock
HENRY BEMPORAD. San Antonio LARRY MOORE, Fort Worth
WILLIAM CARTER, Madisonville ANDY NOGUEms, McAllen
MIKE CHARLTON, Houston
VERSEL RUSH, Wichita Falls
BRIAN CHAVEZ, Odessa GRANT SCHEINER, Houston
KNOX FITZPATRICK, Dollas
JOE SPENCER, El Paso
DIANNA HOERMANN, Son Antonio JOHN YOUNG, Sweetwater
TCDLA STRIKE FORCE
DANIEL W. HURLEY, CHAIRMAN
-.- --. -. -
DlSTRlCl THRFF
BlLL WISCHKAEMPER
RON SPRIGGS
ROD HOBSON
DAVID GUlNN
DfSTRICTwo
MICHAEL R. GIBSON
JIM DARNELL
WOODY LMREW
TOM MORGAN
BOB HINTON
SCRAPPY HOLMES
ERIC ALBRIIION
BARNEY SAWYER
- .- . . . . . . -
KATHERINE SCARDINO
DAVID CUNNINGHAM
MlKE ClUUlLTON
SmLEY SCHNEIDER
TYRONE MONCRIFFE
MARJORIE MYERS
GARY TRICHTER
DISTRICT SIX
SHELDON WEISFELD
BOBBY LERMA
KYLE WELCH
DOUG TINKER
- DISTRICT -.. *- SFVFN -- -
FRANK SUHR
CYNTHIA ORR
GEORGE SCHARMI
JOHN CONVERY
RUSTY GUYER
DiSlRlCT ElGHl
CAROLYN DENERO
RANDY LEAVIW
GERRY MORRIS
BlLL ALLISON
DAVID BOKFORD
JOE CANNON
JIM BROOKSHIRE

AMICUS CURIAE
1 RickHagen (940) 566-1001 (940) 382-5829 fax
, Cynthia
CONTINUING LEGAL EDUCATION
Tim Evans (817) 332-3822 (817) 332-2763 fax
Gerry Morris (512) 479-8600 (512) 479-8600 k?
INNOCENCE COMMITTEE
Hnjar Orr (210) 226.1463 (210) 226-8367 fax
DEATH PENALTY COMMIWEE
Chic Cynthia Httjar Orr (210) 226.1463 (210) 226-8367 fax
Dlcector: PItU Wischkaettiper (806) 763-9900 (806) 763-9904 fax
HALL OF FAME
Clifton "Scmppy Hohnes (103) 758-2200 (903) 758-7864 fa
LAWYERS ASSISTANCE
Dan Hurley (806) 770-0700 (800 763-8199 fax
LLGISLATIVE
Keith Hmpton (512) 746-8484 (512) 476-9309 fax
Subcornmiltee: Indigent Repwentation liaisoi~ wfitate Bar of Texas:
Catherine Greene Burnett (713) 646-1831 (713) 646-1766 fax
MEMBERSHIP
Bentlie House (713) 688-3398 (713) 680-0804 fa
Lydia Clay-Jackson (409) 760-2889 (409) 756-0901 fa
Verse1 Rush (940) 767-7567 040) 723-9972 fax
Sheldon Wehfeld (956) 546-2727 (956) 544-7446 fax
Chmlie Butts (210) 226-1692 (210) 226-2297 fay
SECOND CHAIR COMMITTEE
Carolyn Dencro (512) 472-1353 (512) 472-1316 fay
RURAL AND SMALL TOWN
John R. Smlth (935) 598-2744 (936) 598-6336 fay
NOMINATING
Mark Daniel
PAROLE AND SENTENCING
Bill Habern (936) 5942123 (936) 594-9100 LG
David O'Neil (936) 294-1663 (936) 594-9100 h~
Robert Hinton
Dallas(2WO- 20311
Michael P. Heiskell
Fort Worth (1999 -2WO)
Kent Alan Srhaffer
Houston (1998 -19991
E.6. "Geny" Morris
Austin (1991-19981
David L. Bofaford
Austin (1996-1997)
Bill Wlsrhkaemper
Lubback(1995-19W
Ronald L. Oomnson
Dallas (1994-1995)
Dwid R. Bires
Houston (1993-1994)
Gerald H. Goldstein
San Antonio 11992 -19931
Rirhd Alan
Anderson
Dallas(1991-19921
Nm Evans
Fortworth (I990 -199ll
Judge J.A. "Jim"
Bobo
Odessa (1989 -1990)
Edward A. Mallefl
Houston (1988-1989)
Charles D. Bum
San Antonio (1987-19881
Knox Jonese
McAllen (1986-1987)
John Cnmll
MCD Digltal
Ill W& Olmos Drivc 1512) 656-8299
Sul Aotanio, T m 78212
(210) 829-7183 PRINTING
MPWS, INC.
FEATURE ARTICLES EDITOR &In wq.ot4o
...
\BpstfaI, Plan %CUlcer
OneSumrmf Avc , Sulle 910
Fortworth, 1X 76102
($17) 877-1700
Louis Duga*, Jr.
Orange (1985-19661
Clifton L. "Scrappy"
Holmes
Longview (1984-19851
Thomas Ollberl Sharpo, Jr.
Brownsville 11983 -1984)
Clifford W. Brow
Lubbock (1982 -19831
Charles M. McDonald
Waco (1981-1982)
Judge Robert D. Jones
Austin (1980-1981)
Vincent Walker Pehi
Dallas (1979-19801
George CL LuqucHs*
Houston (I978 -1979)
Emmen Cohn'n'
Fairiield,VA (1977-1978)
Weldon Halcomb
Tyler 11976-19771
C. David Evans*
San Antonio 11915-19761
George E. Qilkerson
Lubbock (1974-19751
Phil Budeson*
Dallas 11973-1974)
C. Anthony Frlloux, Jr.'
Houston (1972-1973)
Hon. Frank Maloney
Auslin (1971-19121
ASSISTANT FEATURE
ARllCLES EDITORS
2900 Tower I& BIdg.
PRODUCTION ASSISTANT .%n Antonio. Texas 711205
TCDLAlHome OlMce
(512) 418-2514 W. Kegan x'y~~
IZO m. 316, stc 300
rnfi worth, Tcw 76102
(817) 336-5-5600
I
IMPORTANT TAX NOTICE
DUES/TAX NOTICE PLEASE NOTE THE FOLLOWlNG
I
GENERAL COUNSEL
Wie M Bailey (kbaik)@lcdlmm)
CONTROLLER
Alegia OR1uec (egiag@tuUacom)
Durn IoTGOIA ne not deductible as achtablocontdb~liion but maybe dcductcd?3ao
ordloa~businsss e\pensc.
muse olTCOL4s lfgislativc pmzm. $39 oE~~lmlng md regular memhrship dua
is not d ucllble ma busmess e\penE
PROOW COORDINATQR
PROGRAM PLANNING ASSISTANT
(OVEMBER ZOO1 W.VCDM.COM
VOICE FOR ME DEFPHSE S

T
CDU is illways looking for new enlightening and entertaining speake~s and write~s. If you
would like to get involved we wodd love to have you. Iu order to get on tlle speaking circuit,
yo11 must be willing to write a papel: hlmy among us are eccellllet speakers but due to busy
schedoles it is impossible to prepare the necmaty papec For this reason, TCDIA is constmtly in
search of the great spcakcr who will dm write The best way to let 11s know that you want to speak 1s
to write an article for the I'oice. Materid for p~~blication can be subrnitkd to the Editor, John Carroll,
to the Feature i\lricles Editoq Greg Westfall, or dxectly to tl~e home office 600 \V 13'"St ,Austi~~, Tern
78701. (We are also looking for s~~ccessfi~lmotio~~s to include in the I'OlCE.) If yon wiU write, we will
ask you to speak at seminars if yon have indicated that you are i~rterrsted Ve like to stan speakem at
smaller semina~sponsored by the Crinunal Defense lawyers Project, to allow some on-the-job-tr&~ing
before tack@ one of the m$or TCDIA seluham.
If you do uof want to speak or write a~liclcs, getting involved a11 mean agreeing to help with one
of 1tDMs many coni~rittees. Each )wr the comminees do the bulk of the wrk for d ~e orgalinhon.
Keith Hanqmn is illways lookmg for help on his legislative committee. Cynthia Orr needs volunteax
for the death penalty comnlittee and the innocence project. Stua11 Kinard and I are cusrently workng
on the D.W. con~rnittee and need help foUowing up on some great idens and with y me arch that needs
la be done.
The core of TCDIA is involven~ent It is a recognition that we can not do this alone, Belylay we
see young lawyc~struggling with difficult clients and issues. Reach out and give a lrelping hmd Offer
to give their clie~~t a secnnd opinion. If you know tlut a laver has done an e~ceptional job, be willing
lo tell Wher client so. Just patting a young la\vjer on the hack, litelally and/or with words, can make
them and their client feel so n~ucl~ better about their circumstances.
There are many "tncks of the tlade" tht we IILR leamd from more experienced Iawps that w e
need to pass dong.
MESSAGE
GET INVOLVED BY PASSING ON YOUR EXPERIENCE
Son~e of the most essential techaiques passed on to me concern collecting your fee. At your courthouse
you n~ay know tl~nt judges will reset a case for afew months, dlovu~g iime for the lawyer to collect
payment before final disposition of the case. ihave learned to send delinquent clients a letter that
includes a copy of a motion to withd~m! In the letter I explain that I intend to file the motion with the
court, if they don't get their pa)lllrnts aught up :tccortling to our contract. The trick is to send two lett
e one ~ certified and one byregular md. Tllis way if they avoid the certilied mad, they will still receive
a copy of the n~otion to withdnw: BEWARE: If a lawyer doesn't insist on being paid, tl~en the clieiit
wiU think either the Iaw~er knew the fee usas too high to start with, or that the lawyer didn't believe Illat
they deselvetl the fee. hlaug lawyers take the position that they get as nmch of their fee" up front" as
possible because that is dl theywiU ever collect. A nlentor of 111ine tells the sto~y of the la\\yr getting
a call from a fornter client. Former client sqs," I l~ave good news I have that looney1 owe yon for tlwt
D.W.I. you I~andletl for me a couple of yean ago. The bad news is, I'm in jail on a new case and I need
)'nu to post my bond." (I11 21 yeas ofpractice, I lla'e never had that happen to me. Rut I have had a
client who wrote 8 bad check for the first p:~)n~ent on his case. When I withdrew hom Ms case, he
caUed wanting his money back!)
BETTY BLACKWELL'S MAXIM #I
Never let them lealre owing you money - they u~11ol come back. If you must complete a case without
the fuU fee being paid, tell tl~e client you are lowering the fee and d l it even. Or, give )our client
a stack of your business cards and tell them they won't owe you my money- if they give their hiends
)our card.
Reaclling out to other iawye~s MU l~elp disp~ove the public perception that all la~yers aar only in
it for themselves. By helping each other, we Improve the q~~ality of representation for e\zel-jone.
TeU thenl TCDIA sent )on. W
6 VOICE FOR THE DEFENSE W.1COLA.COM NOVEMBER 2001

NEW MEMBER
ENDORSER
DECEA
15W, S m DAY
Stephen l? Auatin Hotel,
Austin, 1X (512) 457-8800
8:00 a n. - 830 a.m. TCDLEI
Judith i'cur
Sanh Rolaud
Bertrm 0. Wood San hntot~io Kelly Bailey
8:30 a.m. - 900 a.m. CDLP
9:00 am. - 10:OO am. TCDLA Executive
10:OO am.- 11:OO a.m. TCDLABoard
First Chair Attori~qs - go to the message
board in the "meu~be~s oulj?' section of our
urebsite to list your ~~pcomlug heaviugsmd 11%
als. You hiow pu coudl use the help.
Second Chair Attonteys - go to message
board mid search for oppo~$ouities to lrmn
and gaio esperience.

PRO BONO SERWCES
COMMENT
R
ule 6.1 of the hlodel Rules of Professional Conduct provides that "A lawyer should aspire to render
at last 50 homs of pro bono publico legal services per year? According to the Rule, in ful-
Uing this obligation, tl~e lawyer should provide a substantial majority of the 50 hours of legalsew
ices without fee or expectation of fee to (1) pelsons of limited rueam; or (2) charitable and other organizations
designed primady to address the needs of persons of limited n~eans and lmiy21s should provide
any additional se~vices through: (1) delivery of legal services at no fee or subs~antidy reduced fee to in&-
viduals, groups or o1;mimtions seeking to secure civil lights, civil liberties or public rigl~ts or to charitable,
religious commu~uty governmentnl and edncatio~d o~pyizations or where payneut of standard fees
would significantly deplete the organization's economic resaurces or would be othenvise inappropriate;
(2) delivay of legal services at a substantially redoced fee to persons of limited means; or (3) participztion
in activities for huproving the laur, legal system or profession.
According to the conunents to the Rule, evety lawr sleres this obligation regardless ofprofessio~~al
p~omine~~ce or urorkload. But what about ~ I~IM la~ers laborh~g for indigent defendants at low court
appointed wages? Accord'mg to the conlmeut, that doesn't count. Conunent one provides that "Senices can
be perfon~~ed in civil matters or in criminal or quasi-crin~inal nmtters for which there is 110 goxrelmlent
obligation to provide funds for legd representation, soch as post-convictio~~ de;rth penalty app~l cases.
When the governnlellt l~as taken on the respot~sibility of providit~g legd sewices, uitho~~t regard to the
adequacy of the fundi~~g, there is no pro bono obligation.
According to comnlent four, the intent of the lawyer to render free legal senices is essential. Selvices
rendered cmot be cons~dered pro bono if an auticipated fee is uncollected. Thefiual comment to the rule
provides that it is not a nlatter to be enforced tl~rough disciplinary sanctio~~s. The pro bone obligation is
purely volunta~y.
In 1992, the State Bar of Texas adoptedm aspilationd pro bone policy c7Lling on Texas 1axvels to volm~tarily
provide 50 hours of pro bono legal senices to thc poor each yea. This palicy includes a system
for volunfaiy reporting of pro bono se~vices. The response late has typically been around 25% reporting
a median of 20 to 25 hou~s. That adds up to a lot of IIOUIS. In the 1993-1994 reporting y).ea there was a
high response of 43% reporting 726,000 houn of pro bono. At a n~odest hourly late of $150 dollas el
houl; bat's a contribution by Tesas lawyels of $108,900,000 00 dollars worth of tlair time.
PIO bo11o legal se~vices are needed to M the void between goverluuent funded legd services and the
needs of he poor. Now Illat Texas lms a shtutoly pravisior for compensating counsel appointed to death
penalty post conliction representation, indigent paso~~s hi need of crinunal defense representation at all
levels caul geneiay III~II to the comt appointn~eut system hd even though the fees ;rre less than what we
nmdd charge ifwe had a solvent payjug client, we go into a court appointment expecthg to be paid. Two
th~ngs that make pro bono difficult arc the lack of that most inlpo~lant resource, time, and lack of knowledge
of the area of the law in uluch )our bee selvices may be needed. Today the profession is so specialized,
unless you regularlyp~xctice family law for example, you may never liave handled a divorce &mly
law is probably the area uhcre pro bono services are most i~ecded. Fo~lunately, ~INIY locd bar &=.sociations
now offer bee co~~ti~uinglegd etlucation invmous areas of the law to Iau~e~s mterested in pro bono
represeutatio~~. In addition, the pro bono obligation can be saisEied in rimy, nnn- tndiholld ways by making
contributions of your time to yam community. The rmmn we are asked to contdbulepri~~~artiytluough
the lendition of bee legd setvices is obviovbns, the slull is unique to our profession.
Menhers of tlus o~gmimtion spend a great deal of time helping people u h are ~ not IegaUy ent~tled to
free legal assistance. Responding to inquiries from prisoners, educating their fellow lawyen regarding the
needs of the poor, assissistmg coua appointed clients ;utd their fanlilies in adnunistrative ad other legd matters
that ae not an ohligatiou of the COIII~ appointment and witl~out ally expectation of compensation So
often these senkes are provided witlmut a tl~ougl~t tl~af the lauyer n m&ug an importmt contr~bbution to
society Ren~ember tl~ase hours ul~en the State Bar voh~ntay pro bono repo~?ing form comes he n~d.
Let the bar, and the public, knowvl~at you are doh~g for theneedy UI your conmunity. It can only inprow
our stmding in societ): and maybe, we can get people to stop abusing Shakespeare's clever bttlehe "Iilets
kill all the lauyen." W
8 VOICE FOR THE DEFENSE WWW.TCDLA.COM NOVEMBER 2001

JUSTICE SERVED
Baron Connelly wceiwd a not guilty on October 2151 for an already incarcerated TDCJ inmate,
\Va)mon Flemon charged with assault of a co~~ectional officer, in the 23* Dist~ict Court of
B~azo~ia County, Texas, JudgelYlan Stilley ptwiding.
Doug Beeson received a not guilty from a jury in Bastrop hvo in a case whew a s11e1ifPs deputy
u2a accused of attempted sexual assault of a female police officer (off duty, of cou~se).
Walter M. Reaves, Jr. has s~~ccwfi~lly secured a full pardon for Calvin Wasliington hsed upon
DNA evidence. Governor Perry gmted ithe pardon on October 11,2001.
Guy I. Womack of Houston secu~rd a dismissal for insufficient evidence from the US. Attotney's
Office for the South&ti District of Texas, in laredo. Mr. Womack represented the sole defendant
and only driver of a tractor/t~dle~.loaded with 2,800 pounds of marijuana
Mr. W'omaek also secured a motion to suppress from US Dist~ict Judge Kem~eth Hojt Judge Hop
suppressed four kilog~;lms of heroin fouud iu the stlitcase of the defendant in U.S. c Hernandez,
on the grounds that the Houston Police ofacer 11ad violated the passenger's rights agu' nst unrmsonable
search vhen he entered the luggage con~partment of a Greyhound Dm ininonston, probed
her suitcase mith his hands and fhen approached the female pmenger and told her to disembark
from tbebns. Tl~e Gove~~unent h;ls appealed his decision. Mc TVon~ack is representing her before
the U.S. Court of Appeals for the Rkh Circuit
RCCDLA IS FRONT AND CENTER ON LOCAL CRIMINAL ISSUES
The Hanis County C~iminal Defense Laqers Association has i&ased to the publ~c its Senate Bill
7 proposal. The committee chai~; Jack Zimmerman, was joined by HCWM president,Wayne
Hill, David Jones, Jim Leitner, Mike Charlton, Davld Hiatta,and CynthiaHenley. Poradditional
detah e-mail Wa)11e Hdl at wth@aol com.
fICCDL4 1s also co-sponsoring a 11ve call-in cable access show wh~ch airs on channel 17 in the
Houston city hmits on Thu~sdaynightsfmm 8 to 830 p.m. Theshowis sponsored by Dan Gemon
and HCCOM, wtli Cynthia llenley as the HCCDU ~rp~wntatin~e. They discuss cu~~wit events in
cnmllial justice mattes.
HCCDWls nest board meeting is scheduled for lbcsday, November 13 at noon at the criminal courthouse.
HCCDIA is sponsoring The SecorrdAmtrun/ Copil~g with the Pructice of lnlu SJlmposill~n. The
cost is free but a $25 donation w~ll be accepted to help dehy the apeuses ;lssoc~ated 1vitl1 the
seminar Any money collectedin excess of the cost of the se~uharwvill be allocated to the HCCDW
scbolarsliip fund. Contnct Gythia Henlcy for more inforn~ation at 713-2288500.
THANK YOU TO RICK HAGEN & DCCDLA
A special U~anb is owed to TCDJA bead nnember; Rick Hagen, and the Denion County Criminal
Defense lavqers Association for its generosity in sponsoring ihe &er-Lours cvetits at the
Deuelopiing the Theog~ of u Cnse Smni~~ar. Without M1: Hagen thc sentmar would not have been
as s~~ccessf~~l.
WHAT'S OOlNG ON
IN YOUR CORNER
OF TEXAS?
LET US KNOW
151214782514
NOVEMBER ZOO1 YVIVW.ICOLA.COM VOICE FOR THE DEFENSE 9

... AND, THE JUDGE CONTINUED,
"DON'T CAU< TO
E
ven the best jndge can make a n~ling that wiU incme the stress level of the chest defense lawyer
to somewhere just off the chart. This wvas gloriously ill~~slstrated in a cae in dud1 Waldo Snerd represented
Dunvood Douel:
Doper and some of his hiends I~ictl conwrttd a schen~e to impon a thu~~s;u~d II~IIIII~S or SO of nwii
n fun I I I I I ~ I . 1'111'~ wv~ultl 119we lreen nlore s~~ccl.ssful in their ventwe if llw - vilot of their ch:lrlc8r
plane had not "lfoin~ed the'united Shtes Customs Seivice of their armgements.
hfost of the conspi~atois entered pleas of guilty, but Doper and one other co-defendant cl~ose to go to
trial. They were charged with violations of 18 U.S.C 5 371 and 21 U.S.C. $8 952(a) and 841(a). Sewren
davs dkr the trial beean, Doper tesaed in his own defensc. Mr. Snerd conclnded his direct examination
41 ER. '"Btrck Piles, Jz
giw& this same lnst~uction to eveiy wih~esswhose te&nony had been interripted by axecess
Mr. Snerd objected to tlus proposed u~stiuction, explaining that he betieved that he had aright to confn.
with Itis client about matters other than the en~inent cross-exzolination md Illat he wished to discuss
l~rol~lrn~s ~'elaliny; to he tri;~l with his client. Tlw judge i~~ditwd hat lie 11ad confidme hat ct11111st4 wvould
follmv his i~lstrechn; I~~rwver, Iw euprtwd SUIII~: 1lo1111t tint the defendn~~t \w,ould he :iblt: 111 do so, saying
"I think lhu wwonld undentu~d it if i tnld l~im j11s1 not to t;tlk 10 ~IJII. :u~d I just think it is lrelter tl~itt he
not t$k to you ;I~J~UI ;u~wtl~i~~r." , - .MI: Snerd ohiecttd to the cu~~rt's rdiw - 11111 :~t~t~.~re~~tly &. intIic:~tid t11aI 111:
~wld comply with it
When court convened the next nio~lk~g. hk Suerd reauested and received pe~nussion to reopen Itis
FEDERAL
CORNER
"
anteed by the Sixth Aneudment.
T~IIIS. we Iiave the Geders' Rule wI1ic11 has been modiCied on onlv one occasion: In Perm u. Leeke, 109
S.Ct. 594 (1989), the Supren~e Court ileld t11at the Fedelxi ~onstithlon does not con~pel"a trial judge to
abwv a chninal defendant to consult with Ius attorney clndt~g a brief break ill his testioony.
Why, then, are .ewe conce~ned about the Ceders' Rule? Because on Septen~ber 19 2001, the Unlted
Slates Cout of App& for the Fifth Circuit (the Coort) retwsed a defendant's convictLon because Judge
Junes T. Thnble, Jr. of the United States District Court for the VresteulDisfrict of 1.ouisiana was oh~io~ioosly
unaware of it - and if a federal judge didn't know about it, maybe it's wort11 writing about. See Wied
States u. Johison, -B3d. -, 2001 Wt 1096996 (ShCIc 2001).
In Johnson, six defendants were cha~xed in a 49-connt indictn~ei~t wit11 rarious h g and other related
offenses. One of the defendants -Troy Marks - begm testfying on the ninth day of trial. Before lus
attorney had concluded the direct examination. Tndze T~%lble called a recess for the eveninn. As he had
10 VOICE FOR THE DEFENSE W\NW.ICDLA.COM NOVIMBER 1001

...
AND, THE JUDGE CONTINUED, "DON'T TO YOUR CUENT DURING THE RECESS."
I
COURT Therecord will reflect thnt the jury has withdrawn
tiom the courlrnom. Mc Marks and counsel. no oneis to
talk to hlr. Marks about this case until he h& con~pleted
his testimony, either side. JavyeeMc Marks, I'm talking
about lawyers, I'mtalhg about any codefendantsand
whatnot. Talk ahoutwhatever, the weather or what's going
on in the NBA, or whatever, but don't talk about the me.
ATIORNM AT UW: I call talk to him, Judge.
COURT No sir, you can't. Not wMe he's under examiuation
you can't. We just stopped in the middle of his exam
ination.
ATI'ORNEYXI LAW: Very well.
The fonowing day, duriug cross-emminatiou of Marks by the prosecution,
the court again recessed, this time for the weekend. The caurt
made the sanle sequesh'ation order and, during a discussion regarding
the attorneys' problems with seeing their clients at the jail, the following
exchmge took place:
A'ITORNEY AT IAV I wanted to go wd-I m't talk to
him at all. His relalives can't talk [to] Iim. He's in t l ~
t~ialfor lus life. Somebody ought to be able to. He shotlld
be able to talk to somebody
COURT: You can't talk to him Mr. Rcglster because there
wiu be no reasoil for you to talk to him other U~an talk to
IW about the case.
COURT: You m"to that while he's under mmination.
As soon as his examhalion II%< Iwn con~pleted, cross
:ad anv redirect :u~d ~nnmleted, the^ WLI ran talk to him
all want to. NOIV, dd I unherst&d that they're not
going to let you d him next week after he's completed
lus examination?
AlTORNEY AT TAW: I hwe had no problem.
Sounds filluiliaq doesn't it? And the result was the 5mne as in
Geders In reversing Marks' conviction, Judge Politz, writing for the
Court, found the situation at bar indistinguishable from Gders and
quoted some of the language horn the Snprcn~e Court's opinion in that
case:
A sequestration order dects a defendant in quite a different
way from the way it affects a nonparty witness who
pres~mably has no stake in the outcome of the trial. A
nonpastywitness ordinarily has little, other than his own
testimony, to dlscuss with trial counsel; a defendant ina
crimiod me must often consult with his attorney during
the trial. Moreover, 'the rule' accomplislm less when it is
applied to the defendant lather thau a nonpaltywitness,
because the defendsnt as amattwofright can be and usoally
is present for all testimony and has the opporiunily to
discuss his testimony with his aitorney up to the time he
takes the witness stand.
Such recwe6 are often ti~nes of intensi\,e work, with mctid
drcisions to hc made and st~~tegies to bu retiewed.
The la~yer may need 111 ohvain from lh clinn inforniatiun
made relcmnt by thc day's kstln~o~~y, or he may need to
pu~xoe inqui~y :dong lines nttr fully explored earlier. At the
vely lwt, he uvernight recess during t~ial gives the ilefem
h a a chance to discuss with counsel thc siuoilicancc " of
the day's events.
Judge Polilz pointed out that the Sup~vn~e Court had deternunud that
there were orl~er wap to deal with inipropcr codrhi~~g including rigo~
011s eross.eaanunation designed tu ferret out tl~ose attolnq5 who class
the ethical lines bctwcen discuisinr testimonv and seekink to influence
it. He also noted that by preve~~G Marks om talking &th his attorney
during the memight recesses, the district court had dep~ived Marks
of "the guirling hand of counsel at ewy step in the proceedings against
II~III."
Ceders' problems arc, of coursq uncnmnam. Jt~lnruun is the first
rase with this iwue 111:lt the Rfth Circuit has wtitten on in liftem ).cWdrs.
Most of us will never have a judge tell us that we can't talk to a client
du~iog an overnight recess. But if it happens, we howw11at the anmr
is: 'With all due respect, your honor, the Supreme Court and the United
States Court of Appeals for the Fifth Circuit say that I m."
It's nice to know that the Sixth Amendment is still alive and well.
The Voice for the Defense is loolung for authors for features iu~d
columns. Areas of special interest include:
Advanced Triol Sklb Fo~orfeiture RICOICCE
Appellate Issues low Office M~og@IneM Senlencing Guidelines
Copiiol Cases Motion Prodice Sex Crimes
Demanstrofive Evidence
Drugs
DWI
Ethics
Forensics
Murder/Monslaughter
Personal Offenses
Pleo Negotiolions
Pelice/f'rosetutodol Misconduct
Property Offenses
Safiol Crimos
Trial Tottits (Basittsl
Whife.Collor Crimes
rrixif ow wb sitefor fk
nrrllmrSpckaf.
NOVEMBER 2001 WWW.1CDLA.COM
VOICE FOR ME OEllNJC

THE CLIENT FILE
IT'S MORE THAN JUST A PLACE TO STICK THE
INDICTMENT
L
aw scl~ool
offem many subjects: contncts, procedure, torts, constitutional law, trial skills, and writing
skills, just to name a fen,, The is not, hen-ever, a cou~se named "Paper Work" or "Organizing
aFile" when, in fact, there oought to be. The chief complai~~t by clients to the grievance committee is
not incompetence, but some sort of neglect bytl~e attorney TVllat is going on? nmt aftonle)s admit itwas
as a lack of organization that led to the neglect. To avoid the headache of co~~stanlly smrclQ for inlporrant
papels or \vo~se a grievance, apply these record-keeping tips to yaw pmtice.
THE
Every document the State generates, place in the file:
Con(plNi~rt
I~forrnfltion
Indictrrre~~t
O&se report or notes theref,am
Accident report
kh reprt
A~~fop$g report
~llotiorrs
ALR paperroork
Corresporrde~ice
Every document you generate or your client
provides, place in the file:
111t1r!4e for1n
Propss roles
File checklist
Legal ngrement
~lledical records release
Discoueny
Noliorrs
July clllllge
Releuarrt stnlrites md caseIaro
Oral or ~i~riitenl StateIlIeIrts
Euidmce
Pre-trial releme pnpers
Driwr's licemepaper~i!ork
Trial brids
Corresponrdenrce
Every document the Court signs, place in the file:
Orders on nrotions
Bonds
Arrtend~nter~ts to 6o11d condifio~rs
Dri~'er's lice~rse s~rs~e~rsio~rs
OccrrpRtion~~llice~rse or~lers
Disr~issflls
i'robntio~r conditions
No file, no matter how straight forward the case, should be
without the following documents:
The Corr@lairrt
The Chmgirrg i~rstr~irrrne~rt
The Borrrl
The Relera~rt statrrtes
The Int~rhe for^
Pmgress rrotes
12 VOICE FOR THE DEFENSE W.TCDlA.COM NOVEMBER 2001

Once you have obtained these documents, the real work IS in
orgilllizing them for each client. The time you spmd initially to cueate
a system that will grow with your practice is weU worth the ef011. The
suggestions below ait a compilation ftom crhlnal defense attorneys
who dmloped systems for their puwctices tl~mugl~ many )ears of trial
aud error.
Client. Number
Ench client sl~ould have lus own We wit11 a client number assigned.
Do not use the cause number for the clietlt number as the cause 11umber
may change throu@ succe&l motions to quash. ColIsider using
the last two digits of the yea and anotller number based upon the
order in which the client hired you. For example: The number 01-
0043 wouhl be assi&~ed to the fotzy-tl~ird client to hire you h the yea
2001. If the client is arrested OII anoll~et cl~al~e on 2002, asslgn a
new numberand pull the old file for ~eference.
The client number should be utilized by all stalTmembe~s to track
work done and expenses, even when a flal fee is set. It Is R good idea
to hxck the amount of time expe~~ded on each me to have a basis
upon wluch to set fees 011 similar future cases. hlost attoune)s will set
out in tlleir fee agreemeats tile momt charged for copying, facsimile,
long distance, postage, over night aud couuier expenses, The
newer office equipment has the capability to track these exyetlses by
client number. in the event your equipment does not 11m-e a system
that automatically records the client lumber, provide a 'log" by the
machineaere thefollowlugin£o~mation can be recorded: date, client
number, expense, and std memberk initids.
At the end of the year you \will be able to how how many clients
hired you that year, how long it took to resolve each case, md how
many case you will cany over to the nest )vat It is recon~nlcnded to
close out uses at the end of the yew. You cau place tllemin order by
client munber or by alphabet. Wl~ichevcr metllad you utilize, keep
record of the closed Wes' location ou n master list.
Int~ke Sheet
I11 the file the~e should also be an intake sheet filled out by the
client. Thisdocument must mntain at least the biographical information,
the case inlormation. and the contact information of the client.
Wr more serieus cases, the suggeshon is to use a lengflly intake sheet
that asks for cti~ninal histo~y, psycho/social history, military se~vice,
employment histoq, chemical dependency histq, medical history.
aud a listing of all the potential witnesses in the we. Photocopy this
document on colotvd paper and place it in the same locanon of eveq
file. Each time the client him )nu, have him fill out another intake
fonn as the infomation ofteu changes. This is wvhetv we management
sofhvalv bemmes instrumental. Once the inilial input of informattoo
is complete, it can be changed as needed and printed out for
the file.
Progress Notes
Cutate a me progress sl~eet for each We, photocopy it 011 a aclifferent
color of paper and place it also in the same location of eyeryNe.
The case progress sheet should have the date of any actinty done on
flue me, a description of the activity, wd the srdf member's initials.
All activi.ity, no matter howminor, sl~ould be recorded such that auyoue
picicldug up tl~e fde is able to know the status of the rase. If you Iwe
case nlanagemeut softwae, notes cm be kept electmcally.
Pile Checklist.
The easiest vay to ensure the work is being done ml a we
is to
make a cl~ecklisthat travels aroumd with the file. This documentcan
be utilized to indicate the work needing to be done and the work aehlally
done. The cl~eckltst at the end of this article is a good example.
File Folder
For smaller misden~eanor cases, you may want to use manila file
folders. For DWl's, complicated ohdemeanors and felonies, use a
folderwithmultiple dividm. The gene~d consensus is to always plnce
the same documents in the same lomtion in evety We. This reduces
the time spent looking for the client's phone number! Some attonlels
even go as far as to use differeut colored paper for their inter-office
documents. Pbce docun~entsinto the Rlc with the most recent papers
on top.
The outside of the falder can be used to show quickly-needed
unformation such as the couut, came number, nest court date, and any
action that needs to be t&ei~. Some attorneys have inexpensive stnrups
made for tkis pu~pose. It is also strongly recammended that you use
the outside of the We to display your business wd or otlte~ identify
ing information and d~e words "Confidential Infomation.
AttomeyKlienI Privilege" in the event the file gets left in the courtroom.
Conclusion
Where some of these suggestions may seem tedious, it is huportant
to keep 31 nnlin ttleya1.e made to reduce themount of time and energy
spent on slmftling paperwork so you can locos 011 p~wcticing Imv.
After all, you went to law school and your clie~lt hired you to practice
la*.
fax order request to 512-469-9107
Committees
are Meeting
Across the State.
Call Kellie at
512-478-2514
for Assistance
I in your County
NOVEMBER 2001 VfWW.TCDIA.COM VOICE FOR THE DEFENSE 13

THE CLIENT FILE
FILE CHECaST
Client
CauseNo.
Re-Trial Motions
- Suppression
- Request for Notice
- Other
PC dfidavi t
- Indictment I IrJormation
- Warmt & Return
- Offense Report I Accident Report
Video I Fhotos I ALR t?pc
Crime Scoppxs
WitnessInfo
Diagnms I Field Notes I Msrmnl
Cm Hist (D. W, V)
Vehicle I Residence Smhcd
Codefendant I Informant
Sanity (D, W, V)
Prints I Ballistics I Hair Smpies
DNA I Medid Re~ads
DPS info
Eval of Drugs
ID issues
Autopsy
Civil Discovery
- Other
Trial Motions
Limine
App for Probation
Election of Punishment
Sequester
Shuffle
- Other
- Notes
Routine Instructions
Legal Srvs Agmt
Referral Thank You Letter
Asgnmt of Bond I Cash Bond Rcpt
Call I Meet wl Client
Call I Met WI State
Call I Meet wl Probation
Meet wl Judge
Log Expenses
ALR request / subpoenas I etc.
Set up File
Ltrto Client
Order Pre-Trial Transcri~t
Reset use
Set aside BF
check wamnts
- Other
Soecial Instructions
Interview W's
Subpoena W's
Ccordinate W's For Trial
- Research
- Investigator
- Other
Close File
- Obrain Orders I Probation Paprs
Refernl Ltr Clcsure
Closure Ltr to Client
- Return Weapon I Proprty
- Cash Bond Refund Order & Check
Submit Voucher
- Other
- Notes

TIIE STATB OP TEXAS
COURT IW IAW NO. 1
RONNIE WUSAt
TO THE HOKOMLEJUDGE OF SAID COURT:
COi\IES NOW the Defendat and hercby requests this Honorable Court to enter an ordm prohibiting tl~e Stale
from attemptiitg to admit any evidence of potential civil SWCCMS that could lim been imposed upon defcndantk
NOVEMBER ZOO1 YIWW.ICDM.COM VOICE FOR ME DEFSNSI IS

MUIION OF THE M OM
Texas driving privileges because he allegedly refused to subnut to an Intodpe~ Test after his arrest. In suppo~Z hereof Defendant would show the fol.
lowlg:
I.
RRLEVAiW SArnIES
Texas 'Iimsportation Code section 724.061 states as follows:
h person's refusalof a request by an officer to submit to the taking
of a specimen of breath or blood, whether the refial was
express or the result of an intentional faih~re to give the specimen,
I~J. he introduced into evidence at the person's trial. (emphasis
added)
Additionally, Texas T~ilnsportation Code section 724.015 states in relevant part as follows
Before requeslig a person to submit to the taking of a specime~~,
the officer shall inform the person ody and in writing that:
if the person rcfi~ses to submit to the taking of a specimen, that
reji1sa1 m q v be admissible in a subsequ8)1tprosecutiom;
if tl~e person refuses to subnut to the taking of aspecimeu, the person's
license to opnxte a motor vehicle will be automatically suc
pended, whether or not the person is subseq~~ently prosecnted as
a result of the arrest ..(emphasis added).
11.
SUMMARY OF D!Bi\?)AhT'S
POSITION
Neither the plain meaning of the aforementimted statutory provisions nor Texas case law inte~prcting them make the possible penalties for a test
refusal automatically admissible as evidence of guilt in a DWI prosecution shyly because the refusal to subniit to breath testing EEQ be admissible.
To hold othetwise would allow the State to connect ir~dwant and non-p~obativevidence to at1 mnexpllnlned refnsal as cuc~unstnntid evidence of guilt.
m.
SATUTORY AIIYSIS
The starting point in any Stahltot). col~st~uction analysis is the plain language of tl~e statute in issue. Bmlun u. State, 943 SS.\V.2d 35,36 (Teu. Crim
App. 1997). When a statute is clwr and unambiguo~~s, [the con~t] should apply the plah mw&g of its words, unless that plain nleaning lcads to
abst~rd resolts. Buykin u. State, 818 S.W.2d 782,785 (Tcx. Crim. App. 1991). Final$ the court "sl~ould resort to extmtexh~al fact013 when the
stah~tory language is ambiguous or the clear iat~guage gelearls to absurd results." Id (emphasis added).
The relevant portions of Transportation Code Sections 724 061 at~d 724 015 state only that a pmon's 'kefi~sd" to subnut to the taking ofa specimen
may be adn~issible in a subsequent Dm proceeding. Furthermore, as per the Code Construction Act, section 312.002, ~Meamng of TVords,
(a)Except ILS provided by Subsection (b), vords shall be given their ord~na~y meaning.
T11e enabling language stating that a refusal "mar be admitted in a DWI proceedmg does not open the door or enable the possible civil penalties
for a refusal to be admitted as well. The plain language of the statutes iadicates the Legislature's inten1 that only a refd is atlnuss~ble, and canditio~~ully
at best. The "condition" of course is that the refid be relevant. Ilere, it must bc understood that a refusal then is not dways relevant.
Indeed, to be admitted as relevant it must nleet the ~~mdates of Rules 402 and 403, wiiich ate discussed below.
Moreowr, because thc plain lmguagc does not extend to the penalties for refusmg, U I ~ 1ang11age is unan~higuous and those penalties arc sin~ply
not admissible This appliertion of the plain language does not lead to absurd results Thus, the word "lefusal" iu the statutes cmot be e\pmded
to include andlor incorpo~xte the civil penalties for refusal to st~bmito an haodper test ahsent express legislative intent If the Legislahlre wanted
to make the civil penalties admissible it wo111d have said so
As per Texas Rule of bMdence 402, "[elvidence wbich is not relevant is inadmissible." Rule 401 defines "relnvnt evideace" [as] "mean[ingl evidence
having any tcudency to makc the cxi8tence of my fact that is of consequence to the determination of the action LEQE probable or less prohable
than it urould be without the evidence." (en~pl~as~s added).z
Notl~Qin sections 724.015 or 724.061 autho~izes the admission of what anlounts to a rule of evidence that allows he icicil~g in nith the cake. IIad
the legislature intended that evidence of the civil penalties be adnllssible in addition to a reh~sal to submit to i~ brmth tmt, it could have so pmided
16 VOICE FOR THE DEFENSE WWW.TCDLA.COM NOVEMBER 2001

1
1
h~ the statutes. The State an cite to no autho~ity indicating that the legislature intended that evidence of the civil penalties should be admissible at
trial. Because no authority mandates the penalties for refusal are admissible, and because the bare existence of those penalties makes it neither
more, nof less p13bahle that Defendant was intoxicated, such evidenu! is clearly irrelevant, and the~cfore not admissible.
Even if the court finds that the penalties for a refusal have some remote relevance to the issue of guilt or fonocence, those penalties should still
be excluded from evidence ~rnder Rule 403. Rule 403 provides that "[allthough relemt, evidence may he excluded if its probative due is substantially
ouhveighed $the dwer of ulllair prejudice, confusion of the issues, or misleading the jury, or by considemtions of undue delay, or needlessp~wenlati~n
of cumulative evidence." IIere, tl~e admission of penalty evidence, after the refusal is already admitted, would clearly conhwe and
mislead the jury to the extent that both the refusal and peoaltyrelemce would be clearly ouauhghed by the ~isk of unfafr prejudice.3
V.
OPffi\lG THE DOOR
1 Sholould the Court deny this Motion in Limine by dowing the State to introduce evidence of the civil sanctions for x refusal, Defendant requests
the cou~t chxacterlze the State's proffer &s malogous to Mted avgumeot . Accordingly, such a proffa. opens the door for the Defendant to introd~lu!
evidence that he in fact requested an ALR henring, be. the relevance is that he did nor believe the praposed sospe~~sioo was legitimate, that he
did not suffer any ALR sanctions for refusing a breath or blood test or that the Department of Public Safety didnot have enongh evidence to suspend
Defendant's driver's license under the reduced scrutiny of a lesser burden of proof.
M.
PRAYER
WmRIEORE, piwises considered, the Defendauk rcspcctfully req~~esls this co~ut enter an order prohibiting the State fron~ presenting or eliciting
any evidence of potential civil sauctions that could be imposed upon defendant*.^ Texas driving privileges for defendant's alleged refusal to submit
to an intolilyzer test subsequent to his arrest for driving while intoxicated.
. . , .
' - Respectfirlly submitted,
TRICHTER & SAMUEISON, P.C.
By:
CHRISTWN C.SAMUEISON
SBN 24002859
The Kkby Mmsion
2000 Snlith Street
Houston, Texas 77002
Tel: (713) 524-1010
Fax: (713) 524-1080
Attorney for Defendant,
CERTIPIGSE OP SERVICE
I hereby certifg that a t ~ ;ad w correct copy of the above andhegoing Motion has beeo delivered to the Assisrant Distlict Attorney presently
assigned to this me on thls the day of ,2001.
CHRISTIAN C. SAMWIISON
NOVEMBER 1001 'WWW.XDLA.COM VOICE FOR ME DEILNSS 17

CAUSE NO. 1234567
§ COURT AT WW NO. 1
ORDER
On this day came on to be hard Defendant's Motion In lirnileTa PrecludeThe State Front Presenting Evidence Of Potential Civil Sanctions Fm
Defendant's ~ ehsd To Submit To Any Intoxllyzer Test, and dter considering the same it is hereby
GRANTED DEMBD.
SIGAXJ and ENTERED his
&y of
1. &IW~D& u. Stnte, 44 S.W.3d 656, 664 (Tex.App. -Austin 2001) (stating neither the Ma1 cou11 nor an appellate court hm the power to legislate
and read into a stahlte snmehing omitted therefrom hy the legishhlre by adding wards not in the statute)
2. It npst be ren~embered tlm in AbuiNe u Sot& DnBota, - U .S.. the Supreme Court found tl~at a refusal to t&e a breath test as admissbleand
not vialacwe of the privilegeagainst self-incrimination only becaitseit was releva~rt, i.e. Neville showed hisguilty mind by adniit~ing'Tm too dnnk
to pass the test "
3. Ci@ ofRockJbri u. Elliott, 308 IU.App3d 735,721 N E2d 715 (1999) (holding evidence of civil sanctio~~s for reh~sd inadmissible because
not authorized u~~der plain mmning of statute refi~sal wm automatically admissible and probative value of refusal sanctions were substantially antweighed
by dauger of ~~nfnir prejudice).
MEMORIALIZES
CHARLES BALDWIN
QUlN BRACKETT
JACK H. BRYANT
PHIL BURLESON
WARD P. CASEY
C. ANTHONY FRILOUX, JR.
EMMETT COLVlN
KNOX JONES
GEORGE F. LUQUETTE
DAVID A. NIX
DON R. WILSON, JR.
GEORGE ROLAND
RICHARD W. HARRIS
CWs Snnfrrelson is a partner of the Jaw Firm of Triclder & Sanmelson, P.C. in
Houston where he practices criminal law with an emplimis on Dm litigation. Chris
is an active member of both TCDU & the UCDL and is a freqent lecturer and
author on DWI related fopics,
~~amd~HaTCaFI~hrnredheseaahw
TCMAd, Snce TCDiEl rr a 501kiCll orpxwm. yangi ii
bdadxt& SondWl&wmto~TCMAdf~~~16WW 13h
Sheet AurM, TX 78701
18 VOICE FOR THE DEFINES \HYYW.TCDLA.COM NOVEMBER 2001

opinion before it is disseminated. Pre-approval allows the lawyer to
have an advertisenlent reviewed beforehand so that the attorney wiu
know~\rhether the ad con~plies nit11 the ~ules or whether the nlaterial
needs to be corrected before it is disseminated to the public. In order
to obtain Pre-approval, tl~e la\ver must submit the advertisemeut,
application form and fee 30 days prior to hst clissemination. The
lawyer d l receive a letter of response within 25 d~r;. iUlhoogl~ Preapprovalis
not required, it is reco~muended that the attorney submit
their materials to the Slate Bar before it is disseminated.
BJI Ray Cmtzr of the State Bfrr of Texas
Regrtlnfion
Lawyer .4dvertising is regulated by Part VII of the Texas Discipha~y Rules
of Professional Conduct.
Enforcenrenf
Reg~dalions are implemented and enforced by the Adrzertising Review
Conln~iltee and the Advertising Review Departme~~t of the State Bar of
Texas.
Purpose
To protect the pnblic from lawyer advertising that is false, nusleading or
deceptive.
Wlinf il~e kriyer Aduerlisirrg Rnles couer
All forms of public media advertisiug and written conunu~~icatioas
designed to sokcit legal seivices, such as the following:
Yellow pages or similar directories
Magazines
Ne\\rspapeis
Outdoor Displa~illboartls
'WRadio
Internet \Vebsites
Ta~geted Written Solicitation Letteis
Broclmm
FILING REQUIREMENTS
Public media advertisements and targeted solicitatios letters are
required to be submitted to the Advertising Review Depa~lment u~lless
otherwise exempt under mle 7.07(d).
Public media ad\~ertisements ad targeted solicitation letters IIIIIS~
be submitted with a completed application form and $75 application fee
to the Advertising Review Department
DISTINIXION BEIV'EEN PRE-APPROVU AND PILING
re-approud
A lawyer may subnut lus!l~er adverlisen~ent or written comn~m~icatio~l
to the Advertising Review Depa~lment to obfain an admncetl adviso~y
If a layer chooses not to seek pre-approval, he or she must file
the advertisement simulta~eoesly ipoa fist publication. ll~e ad will
be reviewed and a response will be sent to the attorney. If the adve~
tisement contains violations, the Committee may offer the Iamyer Le
opportunity to correct a simple violation, or nay foward the matter
dicectly to the regional counsel's office for possible disciplinaq
action.
EXEMPTIONS PROM FILING
Totnhfone Infor.rrmfion
The Lanyer Advertising R111es mandate that lawyers subnut their
advertising materials mdess it is othe~wise exempt under Rule
7.07(d). The exemptions apply to advertisements that coorain only
professional ton~bstone information such as the following.
JoLn Doe, Attorney at hw
Personal lnju~): Family Lnw
12 Margatita Drive Amtin, TX 463-5858
Not Ceraed bgthe Texas Boald of Legal Specialization
Ii~cluding additional infor~uation may kick the ad ontside of the
exemptions and the attorney \v0111d then be required to submit the ad
to the State Bxr. Qpidx inclusion of generic statements about the
attorney or the legal seivices offered will make the ad fall outside of
tl~esemp(ions, for example: Quality Legal Services, \Ve u2l fight to
w i n your case, No fee if no recoveiy, Plxcticiag in Harris Comlty for 15
yeals, \Ve'll work l~ard on your ba~h~~ptcy case, etc. (See Rule
7.07(d)(l) for g~~idase)
Attome~s that send letters to indivirl~~als based on a specific occurrence
a ~d legal problem of \vIiich the lawyer is aware must submit the
letter and envelope along with the application form and fee to the
Ad\zertising Re\iev Department. Comnloii examples include letters to
individuals that have been arrested or have foreclos~~res listed on their
homes.
\kitten Communications that are exempt from submission include:
Lette~s to curre~~t or former clieuts or family member
Iiiformation requested by the prospective client
Letters that are not motivated by a speciGc occurrence and
legal problem
Comn~unications to other lawers
NOVEMBER 2001 WW.1CDU.COM VOICE FOR THE DEFENSE 21

THINGS TO KNOW ABOUT WWl€R ADVERnSlNG
&&Firnu brochures typically are not requid to be submitted to
the State Bar because of how they are ussally dissen~inated. 'IjpicaUy,
they are sent to clients, people who have requested information, or
tl~ey are gouug to otlw lawym. Evel~ though a broclmre aiay be
exempt, a lawyer is still prolubited from including false, misleading or
deceptive statenlents in the material.
If a brochure is illded to sonleone that has a specific legal problem,
then the brochure and any cover letter attached to il are required
to be formally submitted to the Advertising Review Department.
Similarly, if a brochure is disseminated at a public place, such as a
couvt house, tluen it must also be sub~uitted to the Advertisi~~g Review
Deparknent.
CONSEQUENCES FOR NON-COhlPLIANCB
Violation of tlue lawyer Advertising Rules is a
violation of the Disciplina~y Rules. See Chapters I! and E
The Advertising Review Coni~nittee may fo~~vard my
11o11-comp1ying attorney to an appropriate Grievance Con~rniltee
Non-Gler fee of $200 for la\vyers that do not appropriately
file their ads.
WHERE CAN I TURN TO FOR GUIDANCE ON UNDERS'1'MDlNG
THESE RUL!jS?
Interpretive Cou~~~~ents define the Comniittee's inte~yretatioes
in order to clarify specific aspects of the 1111es
Cd or write the r\live-tising Review Departrent Staff, P.O. Bos
12487 Austin TX 78711 or 800-566-4616
\Vrifien request of nn opinion from Advertishg Review
Can~nuittee
Televisioa Advertising - Helplid hints
If possible, submit the script to the Advertising Re\icwDeprtment
for pre-approval before tlue video is produced. The script will be
reviewd and the attomcy will be sent correspo~~dence indicating
whether it has been approved or not. This do\vs the attorney to m-
ily make changes to the script ifnecessa~y.
Pre-approval of tlue Script is not required. If a lawyer produces the
video and subwits it to us upon first dissemniuation, that is acceptable.
IIo~vever, there may be potential problems if the video is produced
and then submitted to the i\dvertising Review Depastment. If there are
problenis with the script, the attorney will have to go re-edit the conlmercial,
u~luch is usuaUy an added production cost. 1n some
instances, attorneys have not been able to use their conmerciak
because they could not be re-edited for various reasons.
Actors may not portray layers
Actors niay portray clients, as long as the appropriate
"D~amatization" statenlent is clearly displayed 011 tlue screen wl~ere
the actass are appeariag. See 111terpretive Conln~ent Nun~bcr nvo.
Make sure that appmpuiate disclaimets are co~ispicuous and on
tlue screen long enongl~ to be read. For example, the "Not certi-
fied ...." disclainer IIIIISI be clearly displayed on the screen. I'lacing
the text in a black box may make it easier to read. Gcneially, the disclimer
must be 011 the screen for at least five seconds. If there is
other written text on the screen at the salne tulle, !hen it nmst be displayed
for n~ore than five seconds.
INTBRNET WEBSITE ADVERTISEMENlS
Notes: See Interpretive Co~nnlent 17 for more inforn~ation
~\ttomey nmst submit pru~tout of hon~epage (first screen) of website
to Advertising Review Department u~lless othe~nise noted in
Interpretive Con~nuent 17. Altl~ough the attonley \rill only submit the
first screen of the website, the other pages may not violate the provisions
of the h\\~er Adwtising Rules in any capacity
Principal office disclosure nmst be on homepsge.
If areas of law referenced on homepage, then attornqs nlust indicate
if they are "Not Cerlified by Texas Board of Legal Specialiation"
on tlue l~omepage. If areas of law are not referemd on Iuotnepage, but
are referenced on other pages, then tlue "Not Certified ...." disclaimer
is requked on tlme pages.
FREQUENnY ASKED QUESTIONS FROM SSA'TE BAR OF TBXAS
ADVERTISING REVIEW DEPARTMENT
For more idorn~ation, contact: The Ad\'cdising Review Committee
C/O State Bar of Texas
PO. Box 12487
Austin, IX 78711-2487
Telephone: 1-800-566-4616
Fax: 512-463-1475
Attention: Ray Ca~tu
Web Site: 11ttp://\\?wtesesbar.~0n1/at~info/adrev/q11est.l1t1i1
(Unless otl~ellrise noted, the ten11 "ad" or "advertise~nent" dso
refers to written solicitations. The term hRC denotes the Advertising
Review Comniitfce.)
1. Wl~ere a n I find tlie new rules for lawyer advertising
a ~ the ~ application d form to submit materials to the State
Bar?
The "nen*' Iauyr Ad\wtising Rules went into effect in July
of 1995 and can be found in Part W of tl~e Texas Discipliiia~y
Rules of Professional Conduct. You nlay request a packet of
inforniation containing these 1111es, nu application fon~i, and
other infor~native materials from the Advertising Review
Department at 1-800-566-4616.
2. Horn do I submit advertisenlei~ts to the State Bar?
AII advevtising lawyer must sub~uut a copy of his or her ad, a
conlpleted application form, and a $50 filing fee to the
Advertising Review Departnle~t of the State Bar. If the ad ill
question is a television or mdio spot, a productio~~ script nmst
be subniitted along nith a tape of the conin~ercial. (The production
script may be submitted without the tape if the lawyer is
requesting pre-approval prior to actual production of the conmercial.)
If the ad is a solicitation leftel; a copy of the envelope
must be included with the letter For print advertisements, a
copy of the ad itself nus st be submitted. For Websites, a printout
of the homepage (see interprelive con~n~ent 17) and a statement
22 VOICE FOR THE DEFENSE W.TCDLA.COM NOVEMBER 2001

I
I
I
of the URL address of the website mnst be submitted.
3. Do all advertisements have to be submitted to the State Bar?
No. Not all advertisements are required to be submitted for
review. Rule 7.07(d) wtlines the exemptions to Sling An advertisingattomy
sl~ould review tllis 11de to determine whether he or she
is required to submit his or her advertisements to the Bar. If an ad
meets the exemptions, it is not reqnired to be submlned but must
st& comply with dl other applinble portions of the adve~?ising
lules. If an ad does not meet the exemptions, the lawyer must file it
with the ARC.
4. mat happens if I don't snbmit nly non-exempt advertisement
for review?
Failure to file a nnn-exempt ad is a violation of the disciplinaty
rules. The ARC may fonvard to the Bar's disciplinal). system any
attorney who fails to comply with the 111lles. In addition, if it comes
to the Committee's attention that a lavyr has not timely Ned a partic~rlnr
advertisement, a $150 non-filer fee will be ;tssessed (inaddition
to the stru~dard $50 filing fee) for failure to co~nply with theflling
requirements.
5. Do I have to get my advertisement approved before 1 can
disseminate it?
No. A lawyer is not required to seek pre-approval before disseminating
an ad. (Requesting pre-approval is an option for the
lauya and is discussedin the next question.) Ifan ad does not meet
the Rling exemptions in Rule 7.07(d), it is n~andato~y that the
laver simply file the nd upon k t dissemination.
6. What is the difference between a pre-approval and nfiliog?
Alauyer requesting preapproval of an advertisement must submithis
or her material to the Advertising Review Department at least
thty (30) days prior to the first dissemination of the matedal
(NOTE: In the case of telephone directories or simihr pnblicalions,
it1 order to request a pre-approval, the lawyer must submit his or
her ad to the Bar at least thirty (30) days prior to the deadline for
changes/co~~ections to the ad.) The ARC will review the ad for violations
and respond to the applicant within hventy-five (25) da)s
from lhe date of receipt. The response will either approve the ad or
outline the applicable vtnlations. If violations are noted, the attorney
is glven twenty (20) days to correct the ad and respond back to the
ARC if he or she still intends to dissenrinnte the ad. A pre-approval
opinion given by the Committee is bimcllngin favor of the attorney in
any subsequent disciplinruy proceeding concerning the ad. If a
layw intends to disseminate the ad in less than (30) days or if the
ad is already in public disseminatiw, thelavamust sin~ply Ne the
ad with the ARC. (There is a space on the application form in which
the attorney must either request a pre-approval opulion or declare
the submission a 6li11g instend.) Once Ned, the ad is reviewed for
applicable nolations, and if none are present.a written approval is
sent to the attorney. Depending on the more of the violations in a
filing, if any, the ARCwill either (1) refer the mdter to the Bar's disciplinmy
system, or (2) inform the attorney of the violutions. If the
latter occurs, tl~e attorney is then giw ten (10) days to stop dissemtion
of the advertisement immediately and respond back to
the ARC with either a corrected ad or a notice that dissemination
had been permanently ended.
7. There are some aspects of the lawyer advertising rules
that I jnsf don't understand. Ate there my additional
guidelines avdahle that can help me to more clearly
understand these rules?
Yes. In an effort to help attorneys, the ARC developed
Interpretive Co~iunents thut ontllne the Committee's specific
interpretations of certain rules. T11ese comments along with
other helphd hfonnation can be obtained in the information
packet available tluough the Ad~wtising Review Department.
The o~ajority of the material in the inforniation packet is also
posted here in this site. In addition, an attorney may seek guidance
about inte~praations of the rules by calling the staE of the
Advertising Review Department at 1400-566-4616.
8. How do the new rdes apply to Internet Web sites?
Web sites are considered by the ARC to be a form of public
media advertising. Lawyers or law frrms that post Web sites
concerning legnl setvices must s~~b~nit a p~dnted copy of the
homepage of the web site to the ARC along with an application
form md $50 fee unless the information on the homepage fits
within the exemptions in Rde 7.07(d). The homepage must
contain app~opriate disclaimers and disclosures where applicable.
(Please see interpretive Comment 17 for fu~*her details
about Iiling web sites and bringing them into compliance \vith
the 1111es )
9. Do 1 have to submit my advertisement for review every
year?
No. Once an adis apprnved, it is not required to be re-sobmined
until a substantive change is made to the ad. According
to the ARC, a simple change of street address or phone number
does not constitute a snbstantive change. However, any other
addition, deletion, or changc of text in the ad requires that the
ad be subnlitted with a new application form and filing fee.
10. gihat is the status of the disclaimer statement "Not
Certified by the Texas Board of Legal Specialization?"
Are lawyers still reqnired to include the disclaimer in
advertisements?
Yes. Rule 7.04(b)(3) requires that any lawyer who sdvertises
any area of p~xtice in which he or she is not board certi-
Bed must inclnde the disclaimer shtemcnt in the ad. The disclajmer
nust containno cl~anges, abbreviations or additions. It
nust be displayed conspicc~ously and be sepnrate and apart
from ofher text. Cu~rently, this disclain~erequiremenl is &ill a
par$ of the Texas Mscipllnruy Rules of Pmfessional Conduct,
and ali advertisements must comply with Rule 7.04(b)(3). In
April of 1997, the State Bar Board ofDirectors approved aprnpod
to delete Rule 7.04(b) (3) from the rules. This proposal
is currently under review by the Supreme Court of Texas. It is
likely that the Court will order the Bar to hold a referendum on
this and other rules cl~anges in the coming year. in a aeferendurn,
all licensed atton1e)s in the state will be notitled of the
proposed i111e cl~anges and given an opportunity to vote on the
proposals. At least 51% of the state's attorney must vote in the
referendum for its outcome to be binding.
11. Can the department staff tell me wer the phone if my
ad is exempt? if 1 fax or otherwise send my ad to sW
or describe it to than over the phone, can they giveme
an opinion or polnt out violations7
No. The stdfofthe Ad\ertising ReviewDepa~lment does not

WINOS TO KNOW ABOVC LLL\IYCER ADVERllSlNG
give official opinions over the telephone nor do they accept
fwd advertisements for initial review. In order to obtain an
official re*, a lawyer must send a copy of the advertisement
along with the application form and filing fee to the State Bar. If
the lawyer is not certain whether he or she should submit the
ad to the State Bar, he or she is advised to again review Rule
7.07(d). If still unsure, the lamger niay submit the ad for review
out of an abundance of caution. The staff can answer general
questions and guide a lawyer to the appropriate rule($) but will
not make any determinations of exempt status.
l2.what are some of the most common mistakes that
lawyers make with regard to these advertising rules?
Failure to make the mandatoiy Hing of non-exempt advertisements
and written sokcitation letters
Fdure to take advantage of the option to have the ARCpreview
an advmisement or letter for compliance.
Failure to make even a curmy effort to read md understand
the rules.
Fanure to plan and react to publication deadlines.
(Particslwly in the case of telephone directories.)
Failure to reallre that violations of these ~ des wIU subject
an attorney to the grievance procw. W
24 VOICE FOR ?WE DEFENR WVJW.TCDlA.COM NOVEMBER 2001

NOVEMBER 2001 WWW.TCDlA.COM VOICE FOR ME DEIENSE ZS

Autopsy report not subject to Public Information Act
Lawyers on the Move
Altliough the Pnblic Information Act, Texas Government Code chapter Pis-President, Chwlrlr% D. "Chrlie" Butis, h~ moved Us offices h,
552, does not apply to records of tllc judiciuy, such peconls may be 6243 IH-10 West 7* noor, San AuotuioI Texas 78201. The uew numadable
to the pubk mdw odterk A"prouSsiondautopsy ~po+t" ba is (210) 734-7488. ll~e new fax is (210) 979-7430, His cell
prepared in comectiou with an inquest by a justice of thepeacc is not phone is (210) 240-8239 and his e-md d ~mesare
adable under the R!blic Information Act, but members of the public carlosm~go@msn.com or wit&tnwfox@mI.~.
may inspect it pursuant to section 27*004 of theGovennueuf Code. JC-
0422

A VERY DIFFERENT
WASHINGTON, D.C.
0
n Monday Odoher 15, 2001, nineteen members of the Texas
Crimiual Dehc hyms Associatian wcrc induefed into the
United Stales Supreme Caurt Bar. Along with appro*lolateiyfaay
other Lawyers from thmu@o~lthe nation, it was an experience in formditg,
trxditiou, and history
Mor to my induction with tlus dkdnguished group of Texas la~v)ers, I had
the upportunlty to anfve in Washhgton, D.C. the previous Thday niglit to
see the sites, gauge the dttihlde ofthe iesidents, and see fmil: My brotlier is
a journalist in Wsbgtun.
I dyed on Fflday for a primte tour of the Sup~rme Court I was forbmete
to he the only one for tl~e tour and saw many great sites ofthe Coti~z, inc111ding
thelibrruy, dinhg room, and private rneefii rooms ofthe Supi~me Court.
Atternyards, 1 walked across the street to the Capitol and sat in the gallel). of
the House of Rcp~tsentatives to hear debate 011 the tmorism bllL My day co1-
mii~aLed wifh a hike fhrough tle mall area &ere I saw the Vietnam, Kolran,
Wasl~ington, Lincohi, FDR, and Jeiferson memorids, My afternoon rvns
marked by a chance encounter witl~ a man at an ootdoor &ntho had lost a
dmghter in the Penlttgw terrorist act. It was a sl~ocking bit of reality to be
enjeyiugniy coffee a8 I listened to this gentlemm ~dk about his hughter. He,
I will new fo~vt
On hlor~day, the Supreme Court personnel led eveqvne into a be;~~~tlIul
confaecmce room dmm the haU from the c~nrl~wm. We were addtesses by
the detk of the court dressed in gmy, puistrlpe t&. hi tbis room, we were
membled in dphabeticnl mder aud thni ptwceeded down the hallway
towards tl~eco~lrtroom. The coumoooom is entirely made of imported materials,
wood, marhle, stone, 511 the four walls of the courtroom tliere are fom
diEerent reliefs med in marble deplelhgthe great figures of justice adrm
so11 th'ou~uthe ages. We sat in fle am ~werved ~I?I' Supreme Conrt Bar
membus. Afler a fcw momelifs, the United States Suprenlk Court wns &d
in session. Seven of tlic nine Justices were prwnt, with only Justices Scalia
and Breyer not in attendance.
Mter the reading of preliminary orders by ChiefJustice Rehnquist, the .
movltnts for each group assembkd, including our TCDLA gmup, and
announced each bar member indMduaIljr Aner a h bar member rose after
theirnamewcalled, the Marshall, the nrst women to hold that post, swore
us In oollectively as new members of the Supreme m n Bat U was truly a
momentousBecasion, in an ~m&atyplace, in front of the juristswifh the
most influence on our culture.
Afteimrds, our group reassembIed in this well-appointed conference
mom with IIISII furnishings and d6car. We enjoyed mr brenkfast
with our fiicnds and family and with our eventual distinguished gucsts,
Justices KenncdpdGinsbcrg. It was an honor to meet tl~enl. Ifound
them to be edmmdina~): yet we discussed ordinmy topics. Justice
Ginsberg fanted ro us ahnut mmm in the lmv and how far nre have
came its a profession with women now eqtally half of the sh~dent population
in law schools. Justice Kennedy fold us about his dap ii~ Tbs
and bow much he liked Sim Anto~do and H!n susqe. Yes, 1l was a
vuudiBFem~c tdp to Wasldngton, D.C. W
2.8 VOlCl FOR IHC DEEENIE WWWJCDM~COM NOVEMBER SO01

COURT OF CRIMINAL APPEALS
PDR Opinions:
RECORD OF PUNISHMENT HEARING MTER REVOCATION OF DEFERRED HELD
NECESSARY TO APPEAL IU?NM?~KEVINKIRlZoY u. Stnte, KO. 1193-00, t\l~pellant's
I'DRfron~ Dallas County; Reversed, 9/12/01; Offense: l\lurder; Sentence: 30 y1-s (revocation
of defened); COA: Afinned (NP- Dallas, 5/9/00); Opinion hfeyeew; \Vanlack dissents w/o
opini011.
Appc1l;unt pled gailfy in 1990 per a negotialed plea, and was assessed 10 grs deferred probation,
which ~vas later revoked ~II 1992. Ile filed a pro se notice of appeal, wl~icl was not
acted on because ll~e COA l~ad no recod that an appeal 11ad been filed until 1999, w11e11 the
COA ordered the trial court to conduct a hearing. At that Ilearing, the trial court found that
the reporter's record honl the deferred atljodicatios hearing 11ad been destroyed by a11 act of
nature, and could not be reconstructed, Appellant arg~~ed on appeal thnt 11e mns entitled to a
new punis11111ent 11e;uing becnese the record ~vas destroyed tl~ro~~gl~ no fault of lus, and he
wanted to raise ineffective nssistance of counsel at the p~~nislment hearing. COA l~eld the
record from the adjndicalion punis11111ent hearing was not nccessaly bemuse Appella~~t could
not raise an ineffective assistance claim u~~der TCCP 42.12, g: 5(b). PDR was granted to determine
mhetl~er tlus Loldu~g was correct.
HELD: Appellant is not proliihited 6.on1 raisin ineffective assistance of counsel
durine the aunisl~~rent nhase after adi~~dication of guilt because s11c11 a clahl
is "oiwelated to" a claim reeardine the nronriety of the conviction. CCA rejects
State's argument tl~at TIM' 25.2(b)(3) bars his claim, ha\ing just held to the central). in
I'idmwi, No. 151-00, handed down on 6/20/01. Because i\ppellant can n~ade that clnim, the
record is "necessa~y to tile :~ppeal's resol~rfion" as reqoired by Th\P 35.6(D (3). Ho\verel;
CMvacates ll~e judgment and renlands to COI\ for a detern~ination under ThlP 35.6(f)(4) as
to a,l~etlw "tile parties can agree 011 a con~plete reporter's record."
USE OF PRIOR DEFERRED W S EX POST FACT0 VIOMI'ION: FLOYD THOM4S
SCOlT 1,. Sfnte, No. 1220-00, Appellant's PDR from Polk Count)'; Reversed, 9/12/01;
Offense: Ag.Ses.bssl1; Sentence: I.ifc; COA: AUirmed (19///866 - Texarkaaa 2000);
Opinion Keller (unanimous)
In 1991 ,\ppell;u~t pled guilty to indecency and received deferred adjudication, nhich he
successfully completed. The State (owr ao ex post facto objection) used this deferred to
enhaoce Appellant's sentence in the present case and, after pleading true, he received a
n~andato~y life sentence. At the time Appellant pled guilty to indecent): lus disclarged
deferred sentence could not be used for enl~ancement. PDR was granted to determine
wl~ether the enhancement violated the US Constitotion's ex post facto provision
HELD: Enhancement with an anrevoked deferred co~~stit~~ted an ex post facto
violation. CC\ first analyes the statute, TIT g: 12.42(c), w11icl1 is 1997 was an~ended to
n~andate a life sentence if, anlong other tl~ings, tile defendant l~ad pre\~iouslg been assessed
deferrred for one of several sex offenses; even tl~ougl~ he had con~pleted lus commonity supervision
and llad bee11 discl~arged. Howvel; the stmlte included a sa~ings clause making ils
application retrospective old)! CCI\ concludes the legislahlre intentled to pernlit use for
enl~al~cen~ent of deferred adjudicatiom tint mere assessed before the enactment of the
enha~~cerne~~t provision. Moreover, because tile statote esplicilly restricts he collateral consequences
of an offense, the rlefentlant is entitled to rely on that restriction. I'onishment for
the offense is increased by the removal of the statu~oty restriction, and sucl~ an increase in
punisl~meot constitules an ex post facto la!^ J~~dgn~ent is tilerefore reversed, and case is
ren~;~ndetl for proceedings consistent \villi the opinion.
DECISIONS
REPORT
SDR for iVouc~~h?r 2001
NOVEMBER ZOO1 W.lCDLA.COM VOICE FOR THE DEFENSE 29

change his answer, and police treated lus request for an attorney as a
refi~sal to take the test. Cops gave liini sob~iety tests, and lie answered
questions after being hfiandized. He was later charged with DWI. At
trial, Appellant unsuccessh~lly objected when the audio portion of the
videotape showing lhis invocation of the right to counsel was introduced.
PDR was granted to decide whether the audio portion was correctly
admitted at trial as substantive evidence of guilt.
HELD: Because there is no rigbt - to counsel hefore receiving
Miranda warnings, or being charged with an offense, no
constitutional riel~ts are violated by admission, as substantive
evidence, of a recordine of tbe defendant's rea_mt for counsel
before taking an intoxilwer test. CCAfust holds the recording
was relevant to the ju@ determination that Appellant was intoxicated
- any sign of iup~~iient in his ability to speak was circumstmtidy
relevant. Also, because refusal to take a blood-alcohol test is
relevant, Appellant's precondition to taking it - that liis lau~er be
consulted - was also relemt to his refusal to take the test. Tl~e juy
could have considered Appellant's request to be ioc~iminating because
it reflected an awareness that lie \vas intoxicated and ~~eeded to consult
Ius attoroey about whether it \vodd be better to take the test md let the
layer cross-examine tlie results, or to refi~se and take t11e refusal to
the jury Appellant's refusal had probative value beyo~ond lus request for
an attorney. CCA rejects all Appellant's constitutional grounds -
denial of rigl~to counsel (5[11 Amendment light to counsel not inhplicated
because Appellantwas not subject to interrogation and lus statements
were not product of custodial interrogation; 61' Aniendnient
riglit l~ad oat yet attached because Appellmt had not been cl~arged wit11
a crime, thus no for~~ial adversa~y judicial proceedings had been started);
no due process violation (no due process concerns because no
bkmda warnings had been @enen, and no promise had been broken;
CCA distingt~ishes Hflrdie, 80711319 (CCA 19911, in wliicli defendant's
request for counsel was made before refusing the brath test, but dter
receiving illirm~da warnhgs); 110 5f11 Aoie~~dment set-incriniination
violation (request for counsel under these facts cannot be constmed as
a desire to reniaui silent, and i\ppeUw~t was not coerced by cops into
requesting counsel. Judgment is Illerefore &~ne(I.
OBSCENITY - SUFFICIENCY OF EVIDENCE AND EXCLUSION
OF DBFENSIVT EVIDENCE: RALPH CLLVTON BURDEN, JR., u.
Stnte, No. 1689-99, Appellant's I'DR from Dallas Connty; fimed,
9/19/01; Offense: Promotion of Obscenity; Sentence: (not in opinion);
CO,\: fillled (NP-Ddas 1999); Opinion Price, joined by Keller,
Womack, Johnson, Keasler, He~wy & Holcomb; bleyei~ concurredn./o
opinion.
Appellant, a clerk in the Star Adult Video &nte& sold a videotape
entitled "Hardcore Scl~oolgirls Volun~e 5" to undercover cop
Repersoo, \vho anested lun~ &er watcl~igthe tape. Cop testified that
he chose the video because of sexually explicit photographs on the
box, and in his opinion, tbe video was obscene. Appeilaht testifled that
although he knew the cha~acter of the video was sexually explicit, he
did riot know the exact content of tlus particular video. A defense
expert testified that images on the tape \!we not utlconin~oa in tlie
indust~y, and tliat the tape was not obscene. Appellant also proffered
the testimony of \Vilder, another expert, who woold have testiGed that
anyone with a conhputer and modem could access similar o~ate~ial
over the internet, ;u~d that iocluded public camputen at tlie Dallas
Public Jiblay which did not restrict access to the internet. The trial
court excluded Wilder's testimony and evidence as irrelevant, and
cumulative and confusing under TRE 403. Wilder in fact did go to the
libmy and downloaded material from the internet sites he had presented
during his testimony for a bill of exceptions, and vo~ild have
testified that anyone could have found sexually explicit images witliout
hitemention from library personnel. The evidence was agaui excluded.
Appellant's PDR was granted to deterniine whetl~er the evidence
~vas legally sufficient to support the conviction, and wl~ether Wilder's
testimony and evidence was properly excluded.
HELD: Evidence is legally sufficient if the defendant had
lu~owledee of the sexually explicit character and content of the
m . Appellsnt had argued 111at uoder the Fint Amendment and
tlie relevant stahlte, TPC 9 43.23, the defendant niust how that what
he promotes is legally obscene. Bemse tliere was no evidence that
Appellant knew the videotape was so offensive on its face as to affront
community standards of decency, he argues the evidence was legally
insufficient. After su~veying Supreme Court cases and its oWu precedent,
CCAfinds that notlung in g 43.23 or theU.S. Constitution requires
Il~e defendant to know that the material in question is legally obscene.
Tlie statute states that a pelson conimits an offense if, "knowing its
content and chancter, he proniotes . . . u,itli intent to proniote any
obscene material or obscene device." Tlius, the Shte need not prove
the defendant knew the material wvas legally obscene; it is enough that
lie had knowledge of the materid's sex~~ally explicit clha~xcter aid content.
Here, CCA says there \\%IS sucl~ evidence presented tlhrougl~
Reyelson md Avpellahl's testimony, thus, evidence wvas sufficient.
"
rele\ilnt, competent evidence bearing on the issue of conteniporaly
standards, not all such evide~ice is per se admissible. Tlie key to
whether tlie trial cou~t's exclusion of e\idence was an abuse of discretion
is wl~ether the tri;d court's action created a false in~pression with
the ju~y. Here, the trial court's ndings did not do that. CCA then adopts
a 2-part test from US. u. Pinkrrs, 579 EZd 1174 (gth C ~L l97X), as the
standard for adlilting conipanble materials in an obscenity case. The
defendant niust sIio\v: (1) there is a reasonable resenhblance behwen
the proffered compa~able materials aid the allegedly obscene materials;
and (2) there is a reasonable degree of comnimuty acceptance of
the proffered comparable ~nate~ials. Without snch a showing, the evidence
must be excluded as lacking sufficient probative value. R is not
enougl~ that the material is merely available because all that shows is
that other persons are involved in similar activities. Even if the standard
is met, tlie trial court still has discretion to exclude the materials
if sucli we un1iecessarilyc11ni~11;ttive, confusing to the jm): or niake the
trial unn~anageably con~plex and leogtl~y Having said this, CG\ then
holds the trial court did not abuse its discretion because tlie excluded
testiniooy did not reasonablyresemble the video, and Appellant did not
show a reasonable degree of comn~uoity acceptance. Thus, because
he did not nieet the 2-part standard, he loses. Along the way, CCA disapproves
ofAsar 79911802 (Dallas 1990, PDR ret'd), to the extent that
it suggests other sen~dy explicitly material is per se adniissible do
demonstrate contenlpolary conimunity standwds.
PRETRIAL HABEAS CORPUS & COGNIZABILITY: BENNm
IWISE u. State, No. 1425-00, Opinion on Court's Own Motion, from
Harris County; Grarit of Relief Reversed, 9/19/01; Offense: Illegal
NOVEMBER ZOOI WWW.1CDLA.COM VOICE FOR ME DEFENSE 31

dumping; Trial Court: Inforn~ation Quashed; COA: Reve~sed (23111449
- Houston [14tl1] 2000, PDR rePd); Opinion: Keasler, joined by
Keller, Meyeen, Psice, Womack, He~vey & Holcomb; Johnson concurred
in result.
Appellant filed a motion to quash the information and a pretrial
writ, allegiug tlte illegal dnmping stahlte was unconstih~tional as
applied to 1Cm because the information did not allege a culpable mentd
slate. The trial court denied both, but COA reve~sed and dismissed
the infomation after hding that a ntental state of at least "reckless"
was required for tbe offense. Mer CC4 refused the State's PDR, CCh
tlten pnted review on its own motion to determine wl~etlter tl~e issue
was cognizable on habeas cotpus.
HEID: Pretrial habeas writ may not issue on pound that a
penal statute is beine ~~~~co~~stitntio~~all~
applied bemuse of
allegations in the indictme~~t or infornlation. CG\ briefly discussesmits,
then addresses Appellant's arguments. Generally, CCh has
lteld that whenever there is a valid statute under ~'l~icl~ a prosecution
may be brought, babes co~pus is not amilable to test sufficiency of the
complaht, ilfor~nation, or indictment. tUt11ough tbere are recognized
exceptions to Illis IIII~, Appellant is not arg~~ing any - he does not
areuc " that the statute is ~~~tco~lstit~~tio~lal on its hce (mennine " there is
no vdid smhlte md the charging inslmment is void), or that the plea&
ing on its face, sho\vs tl~e olfcnse is barred by lin~itatio~~s. Appellant's
argument that the statute is unconstih~tio~ld as applied because the
iuformation fds to allege a culpablemental stateis rdy
just an attack
on the charging instlnn~c~lt. Failure to allege a culpable mental state
does not render the iilfo~n~ation void; it is simply subject to being
qnashed. Appellant has not alleged my grounds cognizable on a wit,
The issue of wl~etl~er the stat~~te requires a culpable n~ental slate is not
yet ripe for review, as appeal of the trial court's denial of the motion to
quash provides Appellant wit11 an adequate remedy at law TTm, CWs
judgment is reversed.
DEATH PENAElY JOIMNYRAY CONNER u. Stale, No. 73,591,
from Harris County; Mll'med, 9/12/01; Opinion: Meye~s, joined by
Kellel; Price, Johnson, He~~eg & Holcon~b; \Tomack conculs UI point
one, but olbe17r~ise joins.
Facts: Appellant shot the victim wi~ile robbing ber stoly. An eye-
\vitness inside the store testified that he heard someone say "Give me
aU your money," and saw 11th robber pointing a gun at the victim's
cbest, ale robber shot at the eye-witness, as he rat away Tlte eyewitness
t11e11 tunled to sce the robbq u'ho he later identified as
~\ppellant, shooting the victim. Other witnesses saw the robber run
away and speed away ill a nwrby \relucle. Appellant hlrlled IIimself in
a few da)~ Intel: CCA holds the evidence is legally md factually suEcient
to support the conviction for murder in the course of aggravated
rol~beq~.
Tainted idc~ttfication: The pboto army shown to \wious witnesses
was overly suggestive because Appellant's photo was tbe only
one that showed police booking nun~bc~s.
HBLD: Trial court did not abuse its discretion in holding
the out-of-cosrt identification was inioermissiblv . sueeestive ...
and did 11111 rnwe tllc \\ilncssrs tu t~~isitle~~lifv Asnell;ml. (:C\
IIOICS 111t1t fi~r
of 111v \ IY IIIIIII~IS 11;iiI OIII~T 11x1s of tlw hi1uhi11~ " cml, ,
and the sixth sl~owed the pe~son staading aginst a height indicator
The witnesses could have made the same assumption about all the men
in tlte photo spread.
Gang tattoo testimony: During punishn~ent a HPD cop was
allowed to testify as at expert what tattoos were worn by membe~s of
various street gangs, and the n~eaning of those tattoos. He testitied
rega~rli three of Appellant's tattoos. Appellant asserts tlial this testimony
gave the jmy the impressioo that Appellant was a violent mcnlber
of a "black street gang" wl~e~~
there was no evidence to connect
I~II to SLICII a gang or gang activity.
HELD: 'lestimonv concerning the n~eani~ie behind
Annella~it's tattoos was relevant to his character and hence to
punislune~~t. bloreover, only once did tlte cop suggest tltat one of
Appellant's tattoos was comtected wit11 gang activity. Also, CCA rejecls
Appellant's argument that tlte evidence was more prejudicial than probative
under TRX 403.
Denial of hearing on motion for new trial: Here be clnims he
WZIS de~ued the etYective assistance of connsel because the trial court
instructed juro~s that they were not obligated to discuss their senice
witlt defesse counsel. Because the joron refused to speak with couw
sel after trial, he was unable to ineestigate statlltoly grounds for a new
trial.
HELD: Anoellant was not deprived of effective counsel or
doe process becaose he was not prevented from doing somethine
he has the legal right to do. Nothing pmrents the Ida1 court
from so insh~ucling tlte jut): md notlung requires juro~s to spmk with
counsel and cooperxte \vit11 the i~~\~estigation.
PDRS GRANTED IN SEFTEIMBER
1750-00 PEACOCK, JAAIES DNlD 09/12/01 A llill Rail Jumping
(027///657)
1. Did the state prove they had exercised due diligence in ereculing
the capias that resulted from tbe motion to revoke Pmcock's probation?
0337-01 GARCIA-VEGA, bWRLE LISHTE 09/12/01 S Hidalgo Cap.
fifi~rdel; Agg. KiKid~pping % rQg. R 032 897(032///897)
1. Should the juvenile law of a sister state or Texas ju~venile 1awgo1~erl1
the admis~ibility of a written statement taken by law enforcelllent
authorities of a sister state?
0496-01 GRIFPITII, LONDON 091 12/01 A Harris Agg. Sen~alksa~~lt
(NP)
1. Did tlte Court of Appeals err in holding that an enl~ancement
paraglxp11 that was rejected by tbe j1ny could be sufficient to support
the petitioner's automatic sentence of life imprison~nent for agg~xvated
sexual assault of a cldd?
0519-01 BFAI,, DANIEL LOUIS 09/12/01 A Harris Possession
wvfintent to Deliver Amphetmi~~e (035///676)
1. Tl~e Comt of Appeals erred in l~olding tbe date to be nsed in
32 VOICE FOR THE DEFENSE \NWW.lCDlA.COM NOVEMBER ZOO1

determining tl~e finality of a conviction, for enl~mcement purposes, is
tl~e date the judgment is signed and not the date of the appellate court's
nlandate.
2. The Court of ilppeds erred in holding that the e\idence wa
legally sufficient to support the finding of t~ue to the enl~ancement
pa~xgrapl~.
0542-01 CHAW, RICHARD, JR. 09/12/01 S Potter Agpvated
1ka111t (034Uf692)
2. If indeed the trial court's procedure um improper was the error
in proceeding with elwen juro~x "S~IIIC~II~" error defying 11x111
analysis, as the Co~ia ofilppeals held?
0587-01 McCLINTON, JK, HAROLD 09/12/01 S Harris Possession
of Cocaine (038///747)
1. Does a trial court have the power to refor111 a defendant's sentence
after tl~e defendant has heady begw to sene the sentence?
0598-01 MOTILW, FRJDDIE 09/12/01 S Harris Capital Murder
(038///821)
I. Does harmful error under Rule 44.2(b) of the mles of appellate
procedure result from theintroduction of \ictin related evidence at the
guilt stage 1'11en that e\idcncc is it~~~ocuous and failed to mislead or
colh~se the july in making its determination of whether the Appellant
had the specific intent to kill?
2. Should a Court of Appeals examine the ove~wl~eh~ung evidence
of guilt in deterwining 11arn1 i~nder Rule of Appellate Procedure
44.2(b)?
3. Wlwe there is legdly md factually sulficie~it eddencc to support
a conviction for capital n~urdcr, does the adnussian of irrelevant yet
benign victin~ related evidence during the guilt phnse constitute
revessible error under Rule 44.2(b) of the Rules of Appellate
Procedure?
4. Does inadmissible evidence h~troduced at the guilt stage violate
a defendant's substmtid rigl~ts under Rule 44.2(b) of the Rules of
Appellate procedure w11c11 there is strong e~idence of the Appellant's
goilt, the contlxdicto~y evidence is weak, selt-sen4ng, aud not belie\,-
able, and the outcome of the case \\,auld not have changed had the
improper evidence not bee11 admitted?
0746-01 \T'lI,LOYER, CMG JOMTHON 09/12/01 S \Vaiier Agg.
Sexual i\ssault (03W672)
1. The Coml of ilppeds erred in holding that the trial court's ruling
could not be upheld on a basis not mised at trial.
2. The Court of i\ppeds erred it1 holding that R~de 613(a) of the
Texas Rules of Evidence did not apply because the victim was the defendants
partyopponent under Rule 801(e) (2).
3. The Court of Appcals erred in holding the exclusion of defense
evidence is harmful wllere anotl~er witness testifled to the same or similar
evidence.
0817-01 hli3NDEZ, JOHN BUSTMIOhIT: 09/12/01 ATaylor Morder
(042///347)
1. Wlletller the adoption of Rule 33.1, Tea. R. App. Proc., requiring
contempolwleous objection to presewe all non-stmch~d appellate
error ha overruled thirty years of court opinions requiring the trid
court to stla sponte u~itlal~x\v a guilty plea before a ju~y rvl~en evidence
of innocence is adduced before that jur). and not withdraun.
0827-01 IILITCIIINSON, CLYDE 2, JR. 09/12/01 A Harrison
Bwglaiy of Building (042///336)
1. Did the Coml of Appeals err in ordering the trial court to supplemeut
the trid record \\it11 written Eu~dings of fact md conclosio~~s
of law that wcre not required by law to be made by the trial court?
2. Did the Court of Appeals err in osdering the record to be supplemented?
3. Did the Court ofAppeds err bydlouu~g the state to supplen~ent
the record with regard to Appellant's Batson challenge, wl~ich unfairly
gave the state hvo bites at the apple?
0953-01 GUTIERREZ, ESEQUIEL 09/12/01 S Sau Palricio Delive~y
of Controlled Substance (046///394)
1. This Court should re-examine Stover's l~olding that wl~ere a
motion to revoke is fled and a capias issues before the espimtion of
the probationa~y term, but the probationer is not apprel~ended until
dter the tern1 is expired, the state must, if the issue is raised, prove due
diligem in attenlpting to apprehend the probationel:
0958-01 ANTONELLI, LOUIS 09/12/01 S Dallas Motion to Quash
(NP)
1. Did the Court ofAppeals err in selectively iuld 11at.sldy applying
civil appellate rules to a criminal appeal instead of p~~rposefully
less-stringent crin~~d
xppeuste li~les?
2. Because the trial court's second order cannot stmd independently,
and is only effective if it incolpontes the fint order, the Court of
~lppeals erred UI dimissing the state's appd because it referred to the
date of the only order quailing the indictment.
01-1057 KEETER, JACKIE RUSSELL 09/12/01 S Hanliltou Indecency
u/Cl~ild (046///394)
I. Did the Court of Appeals apply an improper standard of revieicw
to the trial court's denial of the defendant's motion for new trial?
2. When ruling on a n~otio~~ for new trial based upon the victin's
recantation of her trial testimony, is the trial court required to accept
the recantation as probably true if there esists no controverting evidence?
NOVEMBER 2001 WWW.TCDL&.COM VOICE FOR THE DEFENSE 33

SIGNIFICANT DECISIONS REPORT
0860-01 BURNElT, DEW3 LYNN 09/19/01 S Denton Deliveq of
Col~h~lled Substance (NP)
1. Did the Court of Appeals err in remiug ard remanding tl6s
cause for new tdal since notlk~gin the record shows tiat Appellant
was not aware of tl~e conquenccs of the ph~.
COURT OF APPEALS
HABEAS CORPUS & COA'SJUlUSDICTION:BXPBR?21 O m ,
No.2-00-496-CR, 8/31/01.
Defardnnt files awit of habeas corpus anackinghis probated sentellce
oncestate fles a nmotiou to revoke. Because revocation lrad not
occur~ed before appml was taken, state argues two reasom to defeat
COKs jurisdiction:
(1) Trial corul did not issuc the writ. GO)\ 11okIs that once trial
court rules on the achld merits of the wit, whether it issued the wril
is immatelial. COA may IIW the case.
(2) Defendant not in custody because of &s probationary stahls.
COA holds that mitl~ a misdemeanor wvril, the defendant need not be in
custody. The collated consequences d his probation are sufficient to
sl~cnv co~~fit~emcnt. Furtl~eg tile cnsto&aI reqt~irenlent uw deleted
from nmi felony writs by Uie 1995 ameudments to TCCP Art. 11.07.
A trial court's ~efusal to allow voir dire on the parole cllarge is ao
abuse of discretion. Harm is measured by constihltio~~al standard
because the exercise of pelemptoty challenges is grounded in 6th
Anendment right to counsel. Because one cannot determine 11at1u
under thwe drcums@nccs, the case is re\med.
URINALYSIS 'IWl' NOT SCIBfYIlHCALLY RELIABB
I\rANDBZ u. State, No. 13-00-065-CR, 8/31/01,
COA applies Da&?ri md KelC to a u~inalysis test and hds hat
state failed to establish its scientific reliability
IMPORTAW CASE - HARRIS COUIY1Y BAIL SCHBDW
VIOLATES CCA STANDARDS: EX PARTB BOW, No
01-01-00266-CR, 8/30/01.
COA holds tlrat Harris Couuty Distrlct Co~ul bail scl~edule violates
the sta~~dards of the CW in setting bail because it reqnires a band for
tlreft cases equal to hwie the value of what is alleged to have been
stolen.
STXl'E JAIL PELONIBS: WAITS u. State, 2-99-166-CR, 9/13/01
Because mder Campbell, 49 S.W.3d 679 (Tes.Crinl.App. -
2001), the terrus state jdfdo~~y ad felony are ~uun~ally exclosive, tile
state may not use an ut~aggmwakd slate $1 felony to e~llwme a possession
of a controlled subslance me to a second degree felon)!
VOLUNTARINESS OF COWESSION: REED u.
2-00-144-CR, W3l/Ol.
State, No.
SI'ATEMEW AGAINST PENAL IWCERESE BlBNDBZ u. State,
03-00-00473-CR, 9/13/01
The defendant tried to cllalleage the voluutariuess of her confession
in fmnt of tlre jely byu~trod~~ci~~g her psychiatric records. COA
holds that absent a11 apt to inte11)rct the rccords, the evidence was
more prejudicial tllm probative and sl~oulrl 11aw been excluded.
OUTCRY STATEMENT: MACGILrnY u. State, No.
09-00-274-CR, 8/29/01
While a child's outcry staten~est must be specific, it need not bethat
specific as to the time the offense occurred. Here, the stateu~eut contallled
sufficient cletd about the conduct of the defeudant to be adsussiblc.
PEACE OPPICER'S ArmlORllY IS LDIITEO TO HIS CITY
LIMITS: GEWON 11. State, No. 10-00-066-CR, 8/31/01.
Cat\ holds that the 1995 amendme~~ts to TCCP ht. 2.13(a)'s definition
of peace officer effectively limited a city police officer's authority
to ~IIS citylurlits, tlrus distingilisi~ingAtgel u. St&, 740 S W.2d 727,
absent a showing of hot pursuit. Becme officer Irere d~d uot stat the
chase until omide of ids city huits, he could not Ilave lawfully bee11 in
hot pnrsuit.
DENIAL OF SOIR DIRE ON PAROLB CHARGE IS ABUSE OF
DISCRBTION: LOREDO J! State, Xo. 13-00-524-CR, 8/31/01.
?or a siatenlent agaimt penal interest to be adn~issible, it o~ust
inculpate the rleclarot to the same degree as tile defendant. A state-
11rent that is broadlyself i~~clulpato~y is sN
iinad~uissible if it attempts
to shift the bla~ue to he defendant. Here, tl~e dtness admitted some
culpability but tried to portcay the defendant as tire principle actol:
Statement is not tllus adn~issible. Stateluent also violated 6th
hdmeol \r\rlr~r tile state wms involved in the state~~~eat's taldug, the
canfcssion in\olved pat ew~ts, and it wxs not s~~hject to adw~sarial
testing.
REMOTE PRIORS INSUPPICIBNT FOR PEI.0NY DWI: C4STIL-
LO u. State, No. 03-00-000185-CR, 9/13/01.
Tl~evidence iu a felany DM is insufficient to sustain the judsdictionai
elements af prior convictions wilere the pi.iors are too remote
aud tbe~e 1s no iutemeuing couvictim.
IMPORTANT CASE - APPELWTE JURISDICTION; SEX
OFPENDER REGISTRATION: WKLE u. State, No.
03-01-00200-CR, 8/13/01.
(1) Notice of appeal. The clefenrlant pleaded guilty in rehlm for the
smte's co11se11t to xllo~wr the t~ial court to cousider ;UI e~tcureorts
offense at sc~~tcncirrg and in re tun^ for no futhcr cl~afges to be filed.
Stlte argwd that this plea bargain depliVed the COA of jurisdiction
absent trial coua permission to appeal. COAholds that TRAP 25.2 does
34 VOICE FOR THE DEFENSE WWW.1eDU.COM NOVEMBER 2001

not apply with plea bargains but only wlien the punisl~ment messed
does not exceed that agreed to by tl~e parties. Because hre was no
agreed puuishment, COA bad jurisdiction to hear tlie case.
(2) Adhnonisluuent of Sex Offender Registmtion. Becat~se COA
holds that see offender registration is not a direct eoosequeuce of the
guilty plea, oidy a colkted one, the faiiure to so admonish the defendant
does not render his plea invo11mt;uy. It does, however, fad to conlply
with TCCP Act. 26.13 and thus is reversible. [Note: Act. 26.13
specificauy requires the admonishment where applicable.]
NECESSITY DEFENSE ESTABLISHED: PENNmTGTON u. Sfafe,
No. 22-0-341-CR, 8/27/01.
Necessity raised as a defeuse to posessian of a conmoUed substme
where defendant testiEes that she ggrabbed dmgs off table when
sl~c snv boj&nd t~slng tliem md her son walking into tlie roam. She
then nn out of the Iiouse and down the street uyhere shewas wrested
by police. Imporhnce of case is tl~a COA holds that dullile evidence of
a legal alternative, hele cdling the poke to nun boyfriend tn, is relewnt
to the issue, it, by itself does not contl'ol its resohhon. COA finds
evidence sufficie~~t to establish elements of defense.
STATE'S APPEAL UNAUTHORIZED BY flATVlR State u.
DWGEUS, NO. 08-01-00205-CR, 8/23/01.
State may not appeal a decision to exclude evidence based on privilege.
TCCP 44.01 hits state appeds to those motions that seek to
exclude ikgdly obtdned evidence, not motions based on rules of cvideuce
mother ucclusiona~yrules. COAacknow1cdges that issue is currently
before CCA on PDR but rexerses anyway
PELON DWI: BLWOT U. Sfate, No. 14-00-00847-CR, 8/23/01.
The defendant, charged wit11 felony DWI, songht to hoke Tumea
u. State, 11 S.W.3d 198 but instcad sought to exclude dl evidcl~ce of
prior DWls, including pmhibiihig state from reading
.
auegations to the
jury, instcad of jug, ash1 'PBmea, the evida~ce itself. COA holds that,
becmse the defe~idmt sought more relief iu his motion and objection
than that to which he w;ls entitled under Tc~nte-z, the tiid court was
within ils prisdicfion to properly deny tlie motion.
NO RIGllT TO SERVICE DP PSI: TORRANE u. Sfate, No.
2-00-405-CR, SIL9/01.
COA holds that a defm~da~it is llor entitled to be pe~so~~dy sewed
with Pre Sentam Report in order to be able to lodge objectioos to it
JURY WAIVER: EGGBR 11. State, No. 04-96-00654-CR, 8/29/01.
PLUSEE-fAAlLDR FAX
A defendant mq~~ot
collate~ally attack a prior judgment used for
cnliance~ne~~t based 011 it's failure to haw a witten julywaiver. This is
not tlkc kind of issue that re~~de~x the prior jndgment vold.
NOVEMBER 2001 WWW.lCOLA.COM VOICE FOR THE DEf€N$E 55

DON'T CALL
THEM PRISONS
by Roger Hummel
Most Texans, when asked, will brag that if only they had
a bit more humility, they'd he perfect.
1t follows, then, that there is ample physical evidence
OF Texans' peculiar and immodest practice of memorializing them-
selves long before they depart this earth by attaching their
names to buildings, lakes, bridges, freeways, ballparks, roads,
airports, arenas, courthouses, and anything else that will likely
endure after their namesakes' overfed, beer-bloated bodies have
ceased to function.
And so it is with Texas prisons. Except in Texas. they
don't call them "prisons" out of concern for the living person
after whom they are named.
Who would want "state prison" appended to their name? The
eponymous William J. Clements State Prison, for example, has
an omlnons ring to ?t that does not flatter the former governor.
So in Texas, they Call them "units," a less foreboding label
which is not as likely to offend.
So it came to pass that the 2800-man maximum security prison
near Livingston which, since 1999, has served as home to Texas'
death row was named the Charles Terrell State Prison. Or the
"Terrell Unit,' if you prefer.
(Following the November 1998 escape of seven condemned
men from the aging 0. R. Ellis State Prison near Huntsville,
Texas' death row for men was moved 40 miles east to the Charles
Terrell State Prison in Livingston, a newer facility which opened
in 1993.)
Terrell, now a Dallas insurance executive, was formerly
the chairman of the Texas Board of Criminal Justice (TBCJ). He
was appointed to the board in 1987 by republican Governor Clements.
A democrat and life-long anti-crime crusader, Terrell earlier
served as chairman of the Greater Dallas Crime commission and the
36 VOICE FOR WE DEFENSE WWW.rCOLA.COM NOVEMBER 2001

Don't Call Them Prisons
Rummel
Texas Criminal Justice Task Force. It is therefore fitting and
proper that the home of Texas' infamous death row memorializes
Charles Terrell.
Terrell disagrees. "Xvery time something happens on death
row, it's the 'Terrell Unit' and it's just really something I
don't want to read about,A Terrell told The Dallas Morninq Newg.
Last month, Terrell asxed the TBCJ to remove his name from the
death row facility. (The actual executions are performed in
Huntsville, 40 miles west of Livingston, at Texas' oldest prlson
which is known as "The Walls." The Livingston facility serves
as the holding area for Texas' condemned men.)
Terrell stepped down as prison board chairman in 1990.
He said he is ambivalent about the way the death penalty is
adminiatered in Texas today and questions whether it is an effective
deterrent.
"If I thought it was truly the deterrent that I felt the
electric chair was, maybe I wouldn't be so ambivalent," said
Terrell, adding that he didn't think that lethal injection "put
the fear of God in anybody like the tKouqht of the electric
chair did."
The TBCJ is ertpected to rename the Llvingston prison after
Allan B. Polunsky, the most recent former board chairman. Apparently
Polunsky, a San Antonio attorney, ha8 no qualms about
attaching his name to the death row that feeds the busiest execution
chamber in the nation.
Sources:
Associated Press reports

CDLP presents
the 2001.2002 phone seminar line~up
November 8"
December 6''
February 7'"
April 18Ih
JUIY 25'
2 hours of tLE over the phone for only
$25 per person
Ethics
Resources for the Indigent Client
Mental Health Issues in Criminal Law
Defending Juveniles
Search and Seizure
Immigration Consequences
fax request for registration form to 512-469-9107
Hertz Rental Ca-
Now offering Discounts to TCDLA Members!
1 TCDLA Members are entitled to special discounts with Hertz. Your Discount
1 Number issued through the TCDLA home office is the key. Write it down and
use it every time you make a reservation!
To check rates or make a reservation, visit hertz.com, call your travel agent or
call Hertz at 1-800-654-2200. Be sure and mention the Discount Number to
receive special discounts.
Call the home office at 512-478-25 14 for the discount number.
3s VOICE FOR THE DEFENSE WWW.TCDLII.COM NOVEMBER 2001

What every trial lawyer needs ....
Cheat Sheets!
permanent, laminated, and ready to go for your
Trial Notebook
I
4 separate cheat sheets
1. Texas Rules of Evidence -all relevant rules of evldence at your finger tips with practice commentary
2. Making and Meetlng Objections - objections and responses to common evidentlary hurdles
3. Common Drug Offenses -complicated drug laws summarized in easy-to-read charts
4. Lesser Included Offenses -statutory and case law that support you lesser included offense argu-
ments
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office with Vilewnline.
To order, visit vitemnline.wm or call Cora Forh at 1-800-797-2969. Be sure to
dick on the TCDLA logo on Vitec's website or mention you are a TCDLA member
if you call.
NOVIMEER 2001 WWW.TCDM.COM VOICE FOR THE OEFENSE 39

o New Member Application 0 Renewal
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State whether a membership certificate is desired 0 yes 0 no
o Mr. 0 Ms.
Name
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Please check correct category:
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I hereby apply for niembership in dle Texas Crhhlal Defense lawj'em
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NOMINATlN6 ENDORSEMENT
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