Judge Michael McC _ nick - Voice For The Defense Online

Judge Michael McC _nick*WELDON HOLCOIIB11 1-B N. SpringTyler, Texas 7

JOURNAL OF THE TEXAS CRIMINALDEFENSE LAWYERS ASSOCIATIONVOICE for the Defense (ISSN 0364-2232) ipublished monthly by the Texas CriminiDefense Lawyers Assaeiation, 603 W. 13thAustin, Texas 78701, (512) 478-2514. Annursubscription rate for memben of the assaeialion is $100, which is included in dues. Secoaclass postage paid at Austin, Texas. POSTMASTER: Send address changes to VOICEfotheDeferrre, MX) W. 13lh, Austin, Texas 78701All anicles and mher editorial contributionshouldbeaddressed totheeditor, Kerry P. Pi@Gerald, Reverchan P lm at Turtle Creek, Suit1350,3500MapleAve., Dallas, Texas 75219Advertising inquiries andcontrack sent to Me,Connally, Arlfoms, Ine., 6201 OuadalupeAustin, Texas 78752 (512) 451-3588.EDITORSEdilor. VOICE for the DefenseKerry P. fiitz~erald*DallasBusiness EditorF. R. "Buck" Files, Jr.TylerEditor, Significant Decisions ReportCatherine Greene BurneftHoustonOrnICERShidentEdward A. MallenHoustonPresident-ElectJ. A. "Jim" BoboOdessafist Vlce-PresidentTim EvansFort WorthSecand Vice-PresidentRichard A. AndersonDallasSecretary-TreasurerGerald H. GoldsteinSun AntonioAssistant Secretary-TressurerBuddy M. DickenShermanSTAFFExecutive DirectorJohn C. BostonAdministrative AssistantLillian SummarellSecretaryShannon MclntoshBookkeeper/SecretaryLinda Shumate6, IY8V'I'EXAS CWMINAL UEWNSKIAWYEllS ASSOCIATIONJANUARY 1989 CONTGNTS VOL. 18, NO. 5FEATURE ARTICLES5 Talking With. . .by Bill White12 The Benson-Boozer Debate:How Should We Measure Sufficiency of Evidence?by Chris Hiibner19 Warrantless Searches and Seizures, Part IDby Jade Meeker24 The Probation Revocation Hearingby Judge Richard Mays30 Polygraph Usage for Attorneys in Criminal Casesby Bill Parker32 In Memoriam- W.T. Phillips33 A Comparison of the Public Defender and Ad Hoc Systemsof Providing Indigent Representationby Judge Pat McDowellCOLUMNS3 President's Columnby Edward Mallet4 Editor's Columnby Kerry FitzGeraldSDRl-8 Significant Decisions Repoa34 White Collar Defenseby Michael E TigarNEWS3 Announcements4 Announcements7 Index to Adveaisers11 CIassifiedAds35 List of Granted Petitions forDiscretionary Reviewby John Jasuta36 TCDLA Committee Updateby Jeffety Hirrkley38 Legislative Updateby E.G. (Gerry) Morris39 In and Around Texasby John Boston27 Lawyers Assistance Committee37 The Enticementby Patti AndersonPAST PRESIDENTSCharlw D. Bum, Ssn Anlonio. (1987-88) George F. Luquelte, Houston (1978-79)Knor lanes, MeAllen (198687) Emmett Colvin, Dallas (1977-78)Luuis Dugas, Jr. Orange (1985-86) Weldon Holmmb, Tyler (197677)Clifton L. "Scrappy" Holm, Lungview (1984-85) C. David Evans. San Antonio (1975-76)Thomas G. Sharp. Ir.. Brownsville (1983-84) George E. Gilkerron, Lubbock (1974-75)Clifford W. Brown, Lubbock (1982-83) Phil Burlwon. Dallas (1973-74)Charlw M. McDonald. Waco (1981-82) C. Anthony Fdoux, Jr. Hourton (1972-73)Roben D. Jom, Austin (198IL81) Frank hlaloney. Austin (1971-72)Vincent Walker Perini. Dallas (1979-80)DIRECTORSDavid 8. BiresHoustonk i d L. BotsfardAustinWilliam A. Bratton 111DallasStan BrowAbilencCharlw L. CapcnonDBUmJoseph A. Connors IIIMCAIIS~Dick M. DeGuerinHwstonBob &Ira&Wichita FallsF. R. "BueL" Files, Ir.TVIEI -,~~~ AurtinCarolyn Clause GarciaHoustonRonald GuyerSan AntonioMark C. HallLubbockHarry R. HeardLungviewleffmy ~ in~leyMidlandFmnl; JacksonDallasJeff KeameyForr wonhJohn LincbargerFan wonhLvnn Wade MaloneWarnEdgar A. MasonMlsrJohn H. Miller. Irlack J. RawitscherHou~tooCharlss RittenbenyAmarilloKent Alan ScbaflerHoustonGeorge SchamnSan AntonioDavid A. ShemadAustinMark StevensSan AntonioJack V. SfricklandFon wmhI. Douglas TinkerCorpus Chn'stiStanlev I. WeinbereD&-Sheldon WeirfeldBrawnrvillsWilliam A. WhiteAustinDain P. WhitwonhAurlinBil WisehkaempcrLubbodiRoben 1. YlaguirreMcAllcnJack B. ZimmcrmannHo~stonASSOCIATEDIRECTORSDon A&msI~ine~ike &ownLubbockWilliam T. HabemSugar LandBob HintonDallasJulie HowellAurlinChuck LanehanLubbockMargy MeyersHwrtonDavid MitchamHoustonRod PontonEl PasoDennis PowellOmgeGeorge RolandMcKinncyMartin UnderwoodC0msloek

President's ColumnLas Vegas! Please plan to attend yourPast President's Seminar and Mid-yearBoard Meeting at the world-class GoldenNugget, a totally new downtown resort.We'll be thereFebmary25-27,1989. Atour of the sights along the Strip will showyou great entertainment and some of thetackiest people in America (members ofthe TCDLA and visiting judges notwithstanding).Wecan play golf andtennisin thevalley and we'll be only 45 minutesfrom the slci slope$ and Hoover Dam.In addition to recreation and CLE, wecan catch up on what's happening in ourstate and national governments.For example, a two-year study releasedin December by the Criminal Justice Sectionof the American Bar Association hasreported the "side effects" of the war ondrugs. Thereport concluded that enormousgovernment expenditures have totallyfailed to reduce importation, sale or use ofdope. Indeed, the drug war has created anunderground network of enormouseconomic impact that feeds upon and issustainedby the present systemofprohibitions.Instead of curtailing drug abuse, themassive allocation of law enforcementresources todrug cases hascaused pridlockin the administration of our nation's judicialbusiness, civil and criminal.The study reported that:the Justice Depattment and DEA hierarchies.We defenselawyers all know of the £requencywith which agents viblate the oath.For example, filing a Franks v. Dela~varemotion is the rule -not the exceptioninsearch wmant cases. Now, it's been admitted:The perjury we expect fromofficers is symptomatic of a disease in thesupreme federal drug agency, whosecredibility with the publichas been, in part,sustainedforyears by its abiity to successfullydupe the press.'J%e ABAstudy was basedontestimonytaken from all pups in the legal community,added to a survey of police,prosecutors, defense lawyers and judges.The ABA conclusion is that Constitutionalrestrictions, such as the exclusionaryrule and the Miranda protections, are nothindering the police and prosecutors frommaking their cases. Most of the personscontacted in the survey reported that a lackofresources, and amisallocationofresourcesarethemajor obstacles to effective lawenforcement, rather than Constitutionalprotections.What this means is that the TexasCriminal Defense Lawyers Associationhas been and remains on the right track inits criticism of the rhetoric of the vigilantepups organized shortly before each bien-Ed Mallettnial legislative session. At the Ias Vegasseminar and meeting, we will vote torecommend or oppose specific Bills thatwill bepending intheTexas legislahuethisspring. We will take positions based onfact, not fiction.There will be one purely social item onthe calendar: Scrappy Holmes willcelebrate his 50th birthday. It's time toParty.These extraordinary efforts havedistortedandoverwhelmed the criminaljustice system, crowding docketsand jails, and diluting law enforcementand judicial efforts to deal withother major criminal cases.Shortly after this announcement,another flap began, a controversy whoserelationship to the ABA Report is subtlebut real: The DEA confessed to having aninstitutional policy of lying to the nationalnews media. This means that what the JusticeDepartmenttold American people, foryears, about the size and number ofseizures and the names and numbers ofdefendants, were often lies told to"protect" covert operations and to enhancecongressional funding and job security forAnnouncementsHome Run Hitter's SeminarPlan now! TCDLA's spring trip will be to CANCUN, Mexico. We will depattWednesday, April 5,1989, and return Sunday, April 9,1989.The package price is $545/double occupancy, with a $150 single supplementcharge. This price includes: 4 nights deluxe accommodations at theHOTEL INTER-CONTINENTAL CANCUN; hotel tax and tips; surcharges; maid service; baggagehandling; round trip airfare from DFW or Houston Intercontinental; round trip transfers;and our meeting room.The hotel has its own water purification system, beautiful pool, best beach in Cancun,deep sea fishing, and sightseeing trips to the many beautiful spots of the island.1f ycni would likejunior innd dcluxe suites, thcy arc available at an extra charge.- FOR --- FURTHER - - INFORMATION. PLEASE CONTACI' Martha land~m ofAssociated Travel, 1-800-3465764.FULL PAYMENT IS NEEDED BY FEBRUARY 6,1988.January 1989 1 VOICE for the Defense 3

Editor's ColumnWehopethateachofyouenjoyedavery second edition of "Texas Rules ofmerry Christmas and that you have a suc- Evidence Manual," written by Hulen D.cessful 1989. We have been delighted at Wendorf (Professor of Law Emeritus,Ithenumber ofyou who havesent us articles Baylor University) andDavid A. SchlueterI forpublication in the Voice. Weencourage (Associate Dean and Professor of Law, St.-all of wu to eet involved and send articles.and thus share your expertise. Please notemy change of address for the materials:Kerry P. FitzGerald, 3503 Maple Avenue,LB 27, Suite 1350, Dallas, Texas 75219.As 1988 drew to a close, Richard"Racehorse" Haynes received yet anotheraward, this time fromthe California Attorneysfor Criminal Justice. They selected"Racehorse" to receive the 1988 SignificantContribution to the Criminal Jus-tice Systemaward.'All ofus are awaiting furtherword fromtheunited States Supreme Court, this timeMarv's Universitv). , These authors did anexcellent job in bringing together a mountainof materials in this Manual. The rules,both civil and criminal, are examined indepth and are compared. The relevantcases are discussed under each rule.Whether youarein thefieldtrying lawsuitsor appealing adverse judgments, orwhether you are thejudgecalling theshots,there is always a need for materials whichcontain the rules, cases construing therules, and an independent analysis whichbrings the rules into focus. This Manualwas written by two professors with out-for thedecision in ~nited~fates v. Mistret- standing bac&un&. I believe the endfa, which w+ argued in October of 1988. result is an evidence Manual, with Supple-This case will decide whether or not the ments, which will benefit every one of us.federal sentencing -- rmidelines are constitu- The Manual is available from the Michietional.Company [(P.O. Box 7587, Charlottes-While we wait for that decision, many ville, VA 2290&7587) (804) 972-7600].of us continue to file a Notice of Appeal Chuck Lanehart, a prominent Lubbockfollowing sentencing, ifthereis any chance attorney, sent me a jury note received byat all that the defendant would have been the Court just before a mistrial wasable to secure a lighter sentence had the declared. His client had a .I1 B.T. in aguidelines not been Eollowed.D.W.I. case. Chuck wrote that he hadIn the meantime, the United States "framed the owma1 in (his) office as aKerry P. FitzGeraldtv."After receiving Chuck's jury note, Irecalled a similar note, which made meequally ill in a case tried in the late '70s.The note read: "We are hopelessly deadlockedinour efforts toreach averdict. It isthedesireandrequestoftheentirejurythatthe evidence be reopened because theevidence presented is insufticient and in-General Accounting officeis conducting a reminder that the defense counsel should canclusiv~, making a true verdict imposcomprehensiveanalysis of the federal sen- be forever vigilant in reminding juries of sible." A subsequent special pleaof doubletencine rmidelines and their resoective ao- the law in regard to the burden of oroof in ieonardv likewise fell on deaf ears. So-- - ,. ,plication throughout the country. Two acriminalcase." Thenoteread: "Jury isun- muchfor war stories, at leastthose withoutofficials fiom the office in Cincinnati, able to make a decision due to lack of a happy end'mg. I hope each of you enjoysOhio came to Dallas in early November of evidence. Four -guilty; - . Two -not gug- . a very rewarding - 1989.last year and interviewed members of theFederal Judiciary and the United StatesAttorney's Office in Dallas. They alsovisited at len& with our own resident expert,F.R. "~UCK' Files. It was quite obviousthat these officials were not onlyconcerned with making a report to Congress,but were also committed to submittinga very thorough analysis whichincluded input from experts within thecriminal defense bar, such as Buck Files.I am not really the person to write bookreviews, and I generally fmd it difficult toenlist much help in writing a book review.Instead of delegating another such effort, Ithought ~wouldpe~onall~ recommend the I4 VOICE for the Defeme I January 1989AnnouncementsLong Range Planning.Cammittee MeetingWill be held at the GOLDEN NUGGET HOTEL, Las Vegas, Nevada, Friday,February 17,1989 from 3:00 p.m. to 300 p.m.This meeting is an open meeting and all members are welcome to attend and helpTCDLA make plans for the fuhlre. Please bring your ideas, advice and informationthat will help TCDLA better represent you, the criminal defense lawyer, or thecriminal justicesystem.If you have ideas, advice, information or requests and cannot attend, please sendto Ron Goranson, 714 Jackson Street, Suite 900, Dallas, Texas 75202 or call Ronat 214-651-1121.

Talking With.. .by Bill WhiteOn January 1,1989, Judge John Onion, Court of Criminal Appeals Judge since of those conversations appear below.twenty-two years as a Texas Court of 1981, was elected the new Presiding JudgeCriminal Appeals Judge, eighteen years of of the Court. Bill White, an Austin lawyer, Bill White (BW): What has been yourwhich he served as a Presiding Judge, had an opportunity to talk to the two men personalphilosophy as an appellate couHretired. Judge Michael McCormick, a about the court and their careers. Excerpts judge?Judge John F. Onion, Jr. nus electedto the Court of Crintinal Appeals in 1967and, at 41 years of age, became theyoungest elected judge at that time toever serve on the Court of Criminal Apoeals.In 1970, Judge Onion wselectedzs Presiding Judge of the Court ofCriminal Appeals in the first statewidedection far the position of PresrdingJudge. He nus re-elected in 1976 and2982 without opposition. Judge Onion'urs drafted arrdparticipared in securing'egislalion and proposed constitutionalzmendnzents affecting the operation of'he Coun He organized the first staffforzny appellate coun in Texas which has5econte the model for many other appel-'ate courts. Judge Onion has personallybvritten over 4SW legal opinions and7articipated in thousands of otherfecisions.Prior to his tenure on the Coun ofCrirninal Appeals, Judge Onion servedIS the District Court Judge for the 175thDistrict Coun in Bexar County, Texasfrom 1957 until 1967 when he waselected to the Court of Criminal Appeals.He hasalso servedasa~tassistantdistrictattorney for Bexar County andas a Justiceof the Peace for Precinct NumberOne in Bexar County. Judge Onionreceived his ID. from the University oJTexas School of Law in 1950.Judge Onion has received numerousho~wrs during his legal career. In Marchof 1973. he nus chosen as the orrtstandinggraduate of the Universiry of TexasSchoolofLawforcontributio,r to thefieldof law and society. In May of 1972, hewas awrded Order of the Coif by theUniversity of Texas School of Law foroutstanding judicial service. JudgeOnion is listed in Who's Who inAnzerican Law and was chosen by theState bar in 1984 and 1988 as Outstand-ing Judge in Texas for demonstrating excellenceas an appellate judge andsubstantive contributions to the legalprofessions. Judge Onion has conductedsenrbursthrough the National College oJthe State Judiciary in various states andis a long-time faculty member of theTexas College for the Judiciary. He hasalsopublishednun~erousanicles in nunydifferent publications, including theTexas Bar Journal, the southwesternLaw Journal, the Texas Law ReviewandSouth Texas Law Journal. Judge Onionalso authored the "Special Co~nntentaries"found in the 1965 Vernon's Amnotated Code of Criminal Procedure,Volumes I through 5.Judge Onion sewed in the UtzitedStates Marine Corps during World War11. He is married and has three children.Judge Onion: I think every judge whocomes on the court probably comes as aproduct of his experience and backgroundinlarge measure and probably has a prettygood idea of his philosophy before he getshere. Some people are labeled state'smindedjudges by virtue of their opinionsor sometimes because of their background.Maybe they've been former district attorneysbefore they came to the court. Somejudges come here having shared both theexperience of being a prosecutor and adefense counsel. Others come here strictlyas defense counsel, and many people havea tendency to try to put them in slotsor givethem labels, and they say they're defensemindedor they're state's-minded. Mybackground and experience for so manyyears has been as a judge; I thii myphilosophy is to call them as you see them.Let the chips fall where they may, and onetime you're going to be ruling for the state,another time for the defense, but when thepublic sees that you arecalling themas yousee them, and you're not trying to reach acertain result in every case, I think theyhave more respect for that judge and hisopinion because they know he's trying tobe fair and impartial. They might not alwaysagree with what be does. They maylie to applaud the guy that's on their sideof the docket more or gives the indicationthat he is, but every judge I think is aproduct of some background, and in fact, Ithink when you examine most of thejudges' records, you may find that theyhave maybe written more one way for thedefense than for the state and visce versa.But, you'll fmd that they've gone bothways. I think most, by the time they gethere, are trying to be fair and impartial.BW: Myfirst cnnfact with the criminallaw was in 1976, as a briefing attorney forthis court. I recall that when I wanted togain an understanding of a particularJanuary 1989 I VOICE for the Defense 5

area of the criminallaw, I usually wenttoone ofyouropinwns becanse they seemedto contain an historiealperspective ofthelaw. Is that something you have alwaystriedto do as ajudge? Give lawyem an hktoricalperspective of the mqior areas ofcriminal law?Judge Onion: Yes, because I like thatas an approach to use in trying to understandsomething. It's always helped meand I guess I've always felt like if I'mgoing to have to do the research, I wantsomebody else to have the benefit of itwithout having to plow through the sameground. If they can find an opinion of minetbat would take them through, and I try tobe as thorough as I can. I think that meansI've tried to keep in mind that in writingopinions, you write for a whole bunch ofdifferent groups. You write for the partiesand for the trialbench. And then, of course,you have to keep in mind that youropinions may be of some help to the lawstudent. I've always kept something elseinmind that I haven't always been successllin selling to other judges. That is yon try towrite an opinion that's understandable tothe press because if the press doesn't understandit, they'll give you lots of badaverage, publicity, when you're just asright as you can be. But if you haven'tmade it clear so that the unhained lawyeror the non-lawyer news media has difficultyunderstanding it, thcn you may cnd upwith a lot ofouestions about vouroninion.Then I guess, being a trial judge, I alwaysthought that it always helped to put a littlefwtnoteor something inthat tells themthisis theway it might save youquestions lateron at the trial of some other case.BW: So you feel like these opinionsshouldhe@givegiridanceto both lawyersand trial jndges on how to conduct theirbusiness?Judge Onion: Oh, yes, absolutely. Ithink that's the main purpose of writingone of these opinions. The main purpose,of course, is to dispose of the case and doso rightly, but I think in the process, if youcan aid the bench and the bar in the trial offuture cases, keep in mind that some lawstudent may be readmg your case, may behelping him to learn the law, and also keepin mind the court canbe saved alot of uglypublicity if the non-lawyer news reportercan understand what you're talking about.BW: I never thoughf of writing fortheunderstanding of the press.Judge Onion: Oh, yes, and sometimesI've said that to judges, "The way you'vegot it phrased here, it's going to wave aredflag-you'reright, butthe way yon'vegotit phrased is going to make a hunch ofpeople mad about it. Write it, explain it alittle bit better." And a lot of times judgeshaven't always agreed with me on that approach, but I think thosearethings that I'vetried to keep in mind.BW: I think the bench and bar wouldbe interested in knowing what actnalprocess yon go through in researchingand wriring an opinion.Judge Onion: It depends fmt of allwhether or not we've had oral argument. IfI'veheenexposed to acase through oral argument,and having read the benchmemorandum before I heard oral argument,I know something about it beforehand.If not, if I'm getting the case fresh, Istart just lie1 do with all cases in readingthe briefs and getting a feel for what the issuesare; I don't take one ground of error,I read through the entire brief because lotsof times, you find working only on oneground of error, you find that you're overhkingsomething that relates to anothcrone. So1 trvtorcadthc bricfsoibothsidcs.get a pre& good idea of what the issuesare, all the issues, and then I read therecord. And I think this is important. Manytimes people ask me as an appellate judge,"Do you read the record?" Not only do Iread therecord, hut Iread it maybe two andthree times. And sometimes the answer tothese points of error are very simply statedin the record. Very clearly in the record.They may not have been pointed out in thebrief, or they've been overlooked in thebriefs. I think answers to some of yourtougher questions are found simply byreading the record. Then I start my individualresearch trying to group the pointsof error that are related, but to answer eachand every one of them and to thoroughlyresearch the case. We find many times thebriefs are just kind of an assistance to getus started. A lot of times, we really have todo theresearch afterthecasegets here. Andthen after that's thoroughly done, then ofcourse, we try to put it into a draft opinionthat we will feel fully answers the points oferror and also will meet with the majority'sapproval. It doesn't serve any purpose towrite something way off out of themainstream and way off wme, hopingthat maybe the court will go along withyou. You realize that you've got a courtand the majority may say take it back andrewrite it, we won't go along with this.BW: So you take into considerationthe otherjudges' points of view from thebeginning.Judgeonion: Yes-that doesn'tmeanthatI'mgoing to change my outlookon thething, but I wouldn't go out and put somethingway out that I think is not goingthrough conference.BW: If you conld choose an idealbackground for an appellate judge, whatsod of background would it be?Judge Onion: I think he should first bea criminal trial judge with a few years experiencebefore he comes up here. I don'tsay that youcan't beagood appellatejudge 'or even a great appellate judge withoutthat, but1 thinkthat experienceis soimportant,I really do. I've told one legislativecommittee that I wouldn't write that in asa requirement, but as I get older in dealingwith more judges who are very sincereabout what they're looking at in the recordbut had no trial judge experience, I'm almostinclined to think tbat it maybe oughtto be a prerequisite to being on the appellatebench.BW: Al~mst all the appellate judgeshere have litigant experience as either apmsecntor ordefense lawyer, don't they?Judgeonion: Yes,they do. But it's sortof like the judge who was appoint6 to thetrial benchshortly after I went onto districtcourt. He was appointed to another districtcourt and he was a lawyer with many yearsof experience, and he came in to see me andsaid, "What do you say to a guy when youtake the guilty plea? I've been there 100times but Inever listened to whatlhe judgesaid, so please tell me." You can have a lotof experience in the Rial court as a lawyer,defense lawyer or prosecutor, but sometimesyou don't realize why the judge is6 VOICE for the Defense I January 1989

saying what he says.BW: If gives you a much befferfeel?Judge Onion: I thii it gives you amuchbetterfeelwhenyou'relookingat therecord.BW: You were a trial jdge for manyyears; didyou like being a trialjudge betterthan you've liked being an appellatejudge?Judgeonion: IS& both. I thinkit wasreal hard when1 first wneup to the appellatecourt not to be a little sow that I hadleft the trial bench. You were a judge onyour own down there, you called themlikeyou saw them, if you thought somethingwas right, you did it that way. Up here youhadto have amajority voteand sometimeswhat you thought was right was voteddown, and it's p~tty hard to take at times.But then after awhile, you get accustomedto it. I think Judge Tnunan Roberts took alot longer to adjust than I did. He had beena trial jndge a long time, too; and so, yes, Ithink the trial judge position is an enjoyableone. You get to see the lawyers andwitnesses and jurors, and youdeal with thelawyers and the people around the courthouse.All of that is gone when you get toan appellate court.BW: Which one do you think is theharderjob?Judge Onion: This one. Well, it's liethe former appellate jndge who said thatsomeday he was going to go back to thetrial court because down there he couldshoot and nm, up hem he had to stay stjuand write the reasons. I think that's true, Ithink you can call it as you see it if youthink it's right, you can say overruled orsustained, you can issue what orders youthink and go on about your businass. Youdon't have to research to give what youthink is the right answer, sometimes on avery meager record. And I think lots oftimes, triallawyers don't realize that whpthey'resending questians upthat theyreallywant answered, they don't call all theirwitnessesthat they need and whenthey dohave the important witnesses there, qeyleave a lot of questions hanging. A lot oftimes I don't think they review their cases,either. That'smy opinion. They oftendon'treview their cases and see what they needto ask, so if they ask just what comes tomind at the time and thenexpect us to takea meager record and lay down a hard andfast rule for all the courts to follow. Itmakes it very difficult. So, yes, this workuphereis muchharder. IknowI'veworkeda lot harder. I thought I was a very busy,energetic, hadworking trial judge, and itwasn't anything compared to what I'vedoneup heretokeep up overthe years. I'veworked nights and on the weekends. Istarted taking cases home becauseat first Ithought I was too slow in getting myopinions out and because all of the judgesat that time had been here for some timeand they seemed to be turning out theiropinions faster than I, so I started takingwork home. Twenty-two years later, I'mstill doing it, but I'm a hell of a lot fasterthan I used to be.BW: Overthe course of ZZyears, whatopinions ofyoum do you believe are yourbest work or are most sigmifcanf in theklw?Judge Onion: Oh, gee, I've wfittenover4,50Oopinionsinthe22 yearspndit'shard to pick out particular ones. I wouldthink that one case would be Olson 1484S.W.2d 756 -holding that compelling ablood test and handwriting exemplar donot constitute compelling an accused to"give evidence against himself' in violationof the Texas constitutional self-incriminationprivilege]. Perhaps Martinez[437 S.W.2d 8421,abouttheseparatehearingrequired, on challenged eyewitnessidentificatidn testimony would be anotherone. Yes, those are a couple that havelasted. In the past,I1ve written an opinionandit's lasted fot 10 or 12 years, and thena new majority comes along and overrulesthe case, hut those are the cases that havelasted and westill quoted by many COW.BW: Just as amatterof interest, doyourecall the most bizam case that you'veencountered?Judge Onion: One that always sticksout inmy mind is one1 mn't write. JudgeDailey wrote on a case 6ut of Harris Countywhere the jndge charged the jury on theextraneous offense and ignoredthe chargein the indictment. I thinkthat was the mostunusualthatIcan think of off the top of myhead. Thejudgechargedthejurytofind thedefendant guilty if they believedbeyond amisonabledoubt that he committed anextnurw,usoffense.BW:l hwe always wondered whetherpersuasive writing of the brief or persuasiveoml argument has any eflect onthe outcome of cases that come to theCourt.JudgeOnion: I think if it's a well-donebrief and it's wen-organized aud movesswiRly and concisely to the point that heseeks to advanceand is persuasive, you dotake a longer, harder look at it than if it'snot very well put together. Now oral argumentpeople are not going to likeme to saythis, but there have been few cases everchangedby oralargument. Many attorneyscome down here and argue, but they a@sayingusually what's already intheirbrief.In other words, very few cases are everchanged onthe basis of oral argument. Thereal value of oral argument as I view it isthat when you request oral argument,there's a bench memorandumdone by ouradministrativeassistant~,thejudgesreaditthey hear oral argument, and when someotherjudge draws that case and then c d-lates an opinion, they say, "Wait a minute,that's a little bit different than the case Iheardargued" or"Didn'theraisethis pointthat you haven't covered?" So, I think ithelps to prevent what aU appellate courtsseek to avoid, is a one-judgedisposition ofthe case. So oral argument I think is helpful.But as far as changing opinions, I'mnut sure it really does all that much gwd.BW: Would it be your advice todefense lawyers to no#filltheir brief withpoinfsthatdon'the agreaf dealof meritand limit their attention to their mostmeriforiouspoints?Judge Oninm Absolutely. I would alsosay something else. I never understand attorneyswho put their best pint of errornumber 16 in 32 paints of error, becauseyou plow through, and you find one afteranother that seems meritless, and prettysoon you say, "Well, this fellowhas alargeVoice AdvertisersClassified Ads . . . . . . . . . . . . . 9FreelanceEnterprises . . . . . . . . 15January 1989 I VOICEfor the Defense 7

number ofpoints of error, andnoneofthemare good." And then you stumble ontonumber 16 and you wonder why he buriedhis best point down there. Further, I havedifficulty understanding why an attorneywould makeone point of error number oneand another one that is so closely relatednumber28. And if you'regoingta writeonone of them, you're going to have to writeon the other one, and yet he'll brief it andput all the facts up there about number oneand then he has to rebrief it and say almostthe same thing in dealing with number 28.I don't know why they aren't pulled togethermore, but you find it in briefs thatway. They split themup, they're not closetogether at all.BW: Is there anything in particularthat you want to say to the judges and attorneysof Texas?Judge Onion: The only thing I canthinkof that I'd really like to say is that if1had to do it all over aeain. I'd still choosethe judiciary. I still think ;hat's an importantpas of thelegal profession. I thinkthatwe should take every effort to encouragemore people to consider the judiciary andgood people, we need good people, wellqualifiedpeople on the bench and I thinkto keep, to get good people and keep themthere, we're going to have to do somethingaboutjudicial salaries. I'msure that Icouldhave nladenlot morenamy practicing lawthiln sittinz - on the bench over all of thescyears. It's hard to say to my son who's alawyer or to other young people who ask,"Do you think there's a chance for me toever be a judge?" and I say, "Oh, yesthere's a chance, but I think you reallyought to seriously consider whether that'swhat you want to do so much that you'rewilling to give up something that you pmbabiycould acquire a lot easier." But, wedo need good, honest people who are goingto call them like they see them. I thinkthat's what the members of the bench andthe bar ought to be looking for. Do somethingtoencouragemoregoodpple to getinto the judiciary.BW: What, ifyou feellikesharingwifhus, are your plans affer you leave theCourt of Criminal Appeals?Judge Onion: Oh, I was afraid youwere going to ask me that. I really don'tknow. I'mprobably going to end up sittingby assignment around the various pints ofthe state as a trial judge. Of course, if theyask me to come sit on the appellate courtsometimes I wouldn't be opposed to that.InfactJ'd probably look forward to it. But,I assume that what I'll he doing mostly isaccepting assignments to the trial bench.BW: See you in Couft!Conversation WithJudge McCormickBill White (BW): What do you see asachange in yorcrrole now thdyou're thenervprwidingjr~dge of the Court?Judge McCurmick: As far as theopinion writing and all, I don't see that myrole will change; I'll still just be one of 9voting judges and so I don't expect tochange the direction that the court isJudge Michael J. McConnick wasplected to the Court of Criminal Appeals11 1981. In November of 1988, he won:lection to the position of Presidingludge on the Court of Criminal Appealsmd will begin his tenure in January of'989. Judge McCormick received hisSD. from the St. Mary's Universityichool of Law in 1970. He graduatedkom St. Mary's as an Honor Graduaterrzd was editor of the St. Mary's Lawmoving philosophically. I don't see thatthat's therolethat peopleperceive, at leastinternally, to be the role of the PresidingJudge. I say administratively, carry out thewishes of the court as far as administrativematters, but as far as the practitioner willperceive -I don't perceive that there willbe any change at all other than the changeof whoever thenew member that the governorappoints would impact the alignmentsof the coua.BW: Dayonperceive a change in howthe courf's going to opemte?JudgeMcCormiek: Yes, I've got a lotof ideas and I think there are a lot of othergood ideas that other judges have, and Ithink that we can say without hesitationthat if there's some ideas that surface thatmight helpus move cases a little better andbe a little more responsive to the needs Ithink in the system that the majority rulesis one way I'm approaching it. And if thereJorrrnal in 1969 and 1970. hr 1970, hewas named as the Leslie Merrin~ OutstandingLaw Graduate. He received hisundergraduate degree froin the Universityof Texas at Austin.Judge McCorrnick served on theBoard of Directors for the National DistrictAtiorneys Association from 1977rrntil1978. He ws Executive Director ofthe Texas District and County Altorneysas so cia ti or^ from 1976 throrrgh 1980,and served as President of the NationalAssociation of Prosecutor Coordinatorsin 1978. He worked as an Assistant DistrictAttorney in Travis County, Texas&a 1971 until Novernber of 1972 as aChief Felony Prosecutorand Chief of theAppellate Division. Judge McCormick~asalsoa bnepngattorneyforthe Courtof Criminal Appealsfrom May of I970through July of 1971.Judge McCorrnick is a member ofnumerous State Bar conmdttees and Iectrrresat many criminal law seminars. HeMas a member of the drafting committeeof the 1973 Penal Code and authoredBranch annotated Penal Code, 3rdedition.Judge McCormickalso received theRosewood Gavel Awardfrom St. Mary'sLaw School in 1984.8 VOICE for the Defense I January 1989

are five judges that want to try something,I hopethat we'll give it a whirl, unless youtry and you don't know if it's going towork; if it doesn't work we can always goback to whatever the system was before.Yes, so I think there's a number of thingsthat we can probably see tried that are newor novel.BW: Can you think of any way withyour present staff and caseload to speedup getting an opinion out?JudgeMcCormick: No, Bill we've gota fantastic staff and they can churn it out. Ithink we'reprobably operating close to themaximum right now. I think that we coulddeemphasize some things. What I wouldlike to do is see that the legislature give1 107 jurisdiction to thecourts of appeals.1think that would then free up - Thestudies that we've done indicate that wespend about 50 man hours, attomey manhours per weekou writs in our central staff,andthat'snotcountingthetimethat they'rereviewed up in our offices. That's essentiallyone very experienced lawyer we useto do take-offs on writs of which 90% arereally frivolous. Each judge has to act onabout 350 writs. Now, if we spread that outto the couits of appeals based on the numberof judges on the cows of appeals, itwould end up that each judge on the couaof appeals would end up doing about 25,about 2 per month.BW: Wouldyon give the corrrt of appealsdeath penalty jurisdiction also?Judge McCormick: I would like to, Ithinkat least the issues could be reviewed.I think we could separate a lot of the wheatfrom the chaff there and then handle themon petitions for review much lie we donow. I think that we could do morejusticeto the meritorious issues in thecase insteadof having to write on 47 clearly nonmeritoriousissues and only maybe 4 or 5 goodissues.BW: I have noticed in recenf timesseeing a lot of remands going back to thecourt of appeals to deal with issues ofharmless error. How do you feel aboutthat?Judge McCormick: Well, there's a lotof discussion about that. My feeling is weare a court of last resort and when you lookatthebasisupon which petitions for revieware granted, I perceive our role to be that ofthe ultimate decision-maker on issues, andonce we have made an ultimatedetermination,hopefully that determination is goingto be the law for a little while. It is the dutyof the court of appeals then to make thatapplication. And it's only those misapplications that we should be taking a lookat.1 know thatit'screatingalotofworkforthe courts of appeals, but realistically theyhavealready reviewed therecord one time.And it seems like at least it's arguable thatif it were sent back to the court or to thejudges that have already read that recordonce, they would certainly be able to comeup with a solution much easier than ushaving to redo it from the whole cloth.BW: What is your personal judicialphilosophy?Judge McCormick: My main approachto the interpretive position that thecow must take is that of a strict constructionisttype of judicial approach. I guessthat comes from the fact that havingworkedwith thelegislatureand seeing howthe legislature functions, I feel that that'sthe legislature's responsibility to write thelaw, and our responsibility to cany out andinterpret that law to cany out the intent ofthe legislature. Whether we agree with theintent or not should not enter into my writingof the opinion. If the expression of thelegislature is clear, if the intent is clear,then I think it's our responsibility as thecourt to carry that out.BW: How do you feel aboirt looking tothe United States Supreme Con~t decisiom~LY being the lasafthe land, insteadoJlonking to oiw State Consliliition lu seewhether il provides greater protectionthan federal law?JudgeMcCormick: Well, you're talkingin general terms certainly. We have theright to interpret our State Constitutionwithin the confines of similarprovisions ofthe US. Constitution. I think the issue primarilyevolves around the fundamentalrights of the Bill of Rights as expressed inthe two documents. I have an idea that unlessthere is a clear departure in the languageof the Texas Constitution from thecorresponding provision of the federalconstitution, that thehistorical backgroundis, as a general rule, that which was drawnfrom the federaldocument. History injournalsof the constihltional convention of1845 pretty well bear that out except insomevery limited ways. If you go backandlookatthehistorical basisofthedocument,and clearly see that there was an intent toafford a greater right, I have no qualmsabout that, but I do believe that original intenthas got to be part of my judicial philosophy.Had the people of Texas wanted abroader expression in our constitution,they would have said so.BW: Whatprocess do you go throughin writing an opinion?Judge McCormick: Well, I don'tknow. Mine's probably different fromeverybody else's. Just the work load keepsme from writing as much as I would liketo. I've always lied and enjoyed the appellatework, I did it when I was in theD.A.'s office as well as trial work. And Istill do a lot of it outside thecourt with mybooks and stuff. I wish I had more time todo it. As to the way it works now and theway we write opinions in my office, is myresearch assistant and my briefing attomeywill go pickup a case. We'll discuss the is-Classified Ads. Be typed.Be worded as it should appear.Include the number of consecutive issuesit is to appear.. Be prepaid. (M&e checks payable to k-forms, Inc.)Be received by the 15th of the monthpreceding date of publication.Classified Advertising MUWClassifid ads areS15.00 for the Bat 25 wordsand 50C for every word over 25. Advertisingcnov should be submitted to ARTFORMS.6'2% Guadalupe, Austin, TX 78752. Tel.(512) 451-3588.Acceptance of classified advertising forpublication in the VOICEfor lhe Defeme doesnot imply approval or endorsemenl of anyproduct, service, or representation by eitherthe VOICE for rlre Defense or the TCDLA.No refunds on cancelled ads.We Want to Buy Your Books! TopValue Law Book Exchange, 27516Blanco Road, San Antonio, Texas78258, 1-800-321-1228. We Sell Books,January 1989 I VOICE for the Defense 9

sues, what my gut reaction is, having reviewed it when it came up previously onPDR. I tell them my gut reaction of what Ithinktheoutwme oughtto beand why andthen I turn them loose and let them write.Mer they've prepared a draft opinion, itcomes back in here and as time allows, Iwork through those drafts, make whateverchanges I want, if they're in pretty goodshape wecanjust make minor changes thatmight he necessary and send it out of hereas an opinion. IfIperceive some problems,I may ask them to rewrite, re-research orreinvestigate those issues, hut right nowof tips you can think o$Judge McCormick: Put the best pointof error fust, don't hideit down in the bottomsomewhere. So many times, the bestpoint is downlike number eight or nine outoffifteen. Put your best one fmt, that's theone we're looking for if there's a goodpoint. Let us zero in on that one, don't letus work through all of them and, afterwe've written a forty-page opinion, discover,my God, here's a good point. I thinkthat's one thing. Secondly, undo discussionand hypothetical situations within abrief that don't really help us. I wouldpeal. Ithink you oughttowmeuphereandgive us your best shot.BW: After being an appellate coutrjudge for eight years, is there somethingthat you would tell trial couls judges toheb the appeals coutr do its job?Judge McCormick: WeU, you know,I'venever sat on a trial wurt. I don't thinkI have the temperament that I could sit onatrialcourt. Itriedalot of cases whenlwasin theD.A.'s office, Icamot sit and watcha trial. I cannot go walk into a courtroomand watch someone trying a we, and Ithat's about the only way that we &n pos- muchpreferthey statetheir groundoferror don't think I could sit on a bench and dosiblv even hove to stav

themsinceI'vebeenhereissoflofaliaisonfor ow budgetary matters,I think that or Iwant to hopefully regenerate that relationshipthat I've had with the legislature,hopefully in fuaherance of ow whole 5ystem.BW: Whnt are you goi~zg to ask fromthe legislature on behalfof the cowt?JudgeMcCormick: When it comes towhat thecontt wants in the way of legislativeaction,Iwill appear overthereonly onthose matters where the majority wants meto be wer there. I don't have anagenda ofmy own by any stretch of the hagination.Our primary goal, of come is our budget,and hopefully some improvement in theareaof staff, and I hope that I've got somecommitments from not just the prosecutors,but from the defense attorneys locallyfor some help in working with theleg&lature and try& to get thLm attunedto the fact that we do need some help. Wehaven't had any personnel increases since1973, and that I think is going to theprimary goal of the whole cow. Budget isow main concem at this time.BW: Who do you feel hns injluencedyou the most in your carver?JudgeMcCormiek: Oh, I thinkthere'sno question,leonDouglashadthemostinflueneeon me, at least in my weer. Hegave me my first job when I got out of lawschool. I've known him a long, long time.His daughter andmy wife weremommatesincollege.He gavemea job whenlgot outof law school. He encomgedme to go tothe D.A.'s office and get some trial experience,so i'd say that was the majorguiding hand' I'd say that secondly, I'dhave to say Dain Whitworth, probably. Iworked with Dain for so many years at theD.A.'s association. ThoughDainprobablywouldn't want to takecredit for it, butDainhelpedrriedevelop anattitudeofreceptive-ness and compmmise that I like to think Ihave.BW:Zsthere anythingyou wanttosayto the bench anddefense bar?Judge McCormick: Well, a couple ofthings. First of all, I'm really lobking forwardto the next six years, and I hope it'sgoing to be pfwductive for everybody involvedincriminaljusticeand int~courts.Secondly, I want you to understand, mydoor is always opentosuggestioy Ifthen?are practitioners that have someideas thatmight help us better do owjob, I $we wantto hear about it. I'm corning into this jobsoe of like the dog that caught the bus. Igot it, now what am1 going to do with it Iwant to be receptive to ideas that mighthelp us. Let's commnnicate, and if there'sa problem in ow rules or a problem in ouropefations that someone perceives, let usknow about it. We're not up here in anivory tower.IThe National Legal Aid & Defender Association presents:LIFE IN THE BALANCE: Defending Death Penalty CasesM4T)(3NALLEGAL February 24-25,1989AID & DEFENMRASSOC~A~ Wyndham Hotel Southpark, Austin, TX1625 KSmEEI, N.W.EIGHM FLOORWASH.. D.C. 2W06Co-sponsored by:Texas Criminal Defense Lawyers Association(202) 452-0620FacultyMillard FarmerCathy E. BennettScott HoweKevin McNallyDeana LoganGerald H. GoldsteinRobert McGlassonDennis BalskeJ. Vincent Aprile IIBryan StevensonScharlette HoldmanJoseph NurseyStephen BrightAndrea LyonDavid &ruckGeorge KendallAdvance RegBtratlon: NLADA 8 TCDLA members -- $160, Non-members --$ZOOFor information, contact: Mary Broderick, NLADA, 1625 K St. NW, 8th Floor, Washington, DC 20006.Phone (202) 452-0620.January 1989 I VOICEfor the Defense 11

The Denson-Boozer Debate: How ShouldWe Measure Sufficiency of Evidence?by Chris HiibnerIn January of 1980, Mike Onega wasindicted for credit card abuse.' The indictmentalleged that he "intentionally andknowingly with intent to fraudulentlyobtain property and services" presented aSears credit card with knowledge that thecard had not been issued to him. Ortegawas convicted and on appeal he alleged,inter alia, that the evidence was insnfficientto support the jury's fmdmg that heused the credit card with intent to fraudulentlyobtain both property and services.The Corpus Christi Court of Appeals heldthat although theie was no evidence thatOrtega used the credit'card to obtain services,the evidence was nevertheless sufficientto sustain his conviction for creditcard abuse. Ortem v. State. 653 S.W.2d1982). The court of appeals concluded:"We fail to see how the use of 'and services'in the indictment injured the defendant."Onega, supra, 653 S.W.2d at 830.The Court of Criminal Appeals, onoriginal submission, affirmed after findingthat the evidence showed Ortega intendedfraudulently to obtain not only "property,"but also the "services" necessaryto complete the transaction at the timehe presented the credit card. Ortega v.State, 668 S.W.2d 701, 705 (Tex.Cr.App. 1983). On rehearing the Courtreversed Ortega's conviction and ordereda judgment of acquittal, fmding that theevidence was insufficient to show that thesales clerk's "service" was the intendedobject of Ortega's desire. "The steps takento extend him credit were merelv , incidentalto the transaction." Ortega, supra, at706 (Opinion on Rehearing). It was heldthat the extension of credit, in and of itself,without further proof, does not constitutea "service."In reaching this conclusion, JudgeCampbell added, "because the charge instructedthe jury that it must fmd bothpropertyand services before returning a guiltyverdict, then it was necessary that there besufficient proof of both means alleged."12 VOICE for tke Defense I January 1989Chris Hiib,ter is a native of Oak Ridge,Tennessee. He graduated from IndianaUniversity in 1982 (Phi Beta Kappa) witha double major in history and politicalscience and received his J. D. degreefromthe University of Housfon Law Center in1985.Chris has worked as Briefng Attorneyfor Presiding Judge John F. Onion of theTexas Court of Criminal Appeals (1985-861, and was also employed as JudgeOnion's Research Attorney. He is licensedtopractice before the Texas Supreme Couriand the United States District Courtfor theWestern District of Texas. Chris is nowpracticing criminal law in Austin.Ortega, supra, at 707 (emphasis inoriginal). Judge Campbell maintained thatotherwise a guilty verdict would be contraryto the law and the evidence. and citedwith approval Judge Clinton's explanato~yfootnote in the opinion on original submissiondiscussing "surplusage" in the court'scharge. That fwhote read in relevant partBut once the [surplus] phrase is incor-porated into the court's instructions tothe jury in such a way that the jury mustfind it before a verdict of guilty isauthorized, Article 36.13, V.A.C.C.P.,it must be proved, or the verdict willbe deemed "contrary to the law andevidence." See Article 40.03(9),V.A.C.C.P. In sum, there is no suchthing as "surplusage" in the part of thecourt's instructions to the jury whichauthorizes a conviction, and if the prosecutorbelieves that portion of thecharge unnecessarily increases his burdenofproof, it behooves him speciallyto request a charge which correctlyallocates the burden pIaced on him bylaw. This is nothing more than thecourse of law which is due before a personmaybe deprived of liberty. Article1 .O4, V.A.C.C.P. And if the recordreflects the prosecutor has pursued thiscourse to protect his lawful obligations,but the trial court has neverthelessrefused the amendment to the indictmentor submission of the requestedcharge, and the evidence is found insufficientto support the verdict bemuseof the trial court's error in this regard,those reviewable rulings of the trialcourt found erroneous by the appellatecourt constitute "trial error," and theState is free to pursue another prosecution.Cf. Burks v. United States, 437US. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1(1978); and Greene v. Massey, 437US. 19,98S.Ct.2151,57L.Ed.2d15(1978).Ortega, supra, at 705, n. 10 (emphasis inoriginal).Judge Clinton's footnote No. 10 effwtivelyset the stage for a debate which hasdivided the Court of Criminal Appeals fornearly a decade. The debate focuses onwhether sufficiency of the evidence is tobe measured by the charge that is givento the jury. This article will analyze indetail two cases in which the Court hasaddressed this issue at length, namely Ben-

son v. State, 661 S.W.2d 708 (Tex.Cr.App. I982), cert. denied, 467 US. 219,104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)and Boozer v. State, 717 S.W.2d 608(Tex.Cr.App. 1984). The writer will thenturn to the subsequent case law to assesshow the Court has dealt with this issuesince deciding Benson and Boozer. Hopefully,a clearer picture will emerge fromwhat has proven to be a complex and contentiouslegal issue.On original submission, Benson attackedthe sufficiency of the evidence to sustainhis conviction based on the lack of evidenceshowing his intent to commit thefelony offense of retaliation.2 The indictmentalleged that Benson "did then andthere intentionally and knowingly enter ahabitation without the effective consent ofVirgie Harris, the owner, having intent tocommit the felony offense of retaliation."Writing for the majority, Jndge Odom succinctlyoutlined the question presented:Hence the issue before us is whetherone who intends "to coerce . . . aprivate citizen to drop assault chargespending against him" possesses therequired intent to commit the felonyoffense of retaliation. Stated more narrowly,is this "private citizen complainant,"who had not testified in anyofficial proceeding, a "witness" as thatterm is used in the Retaliation statute,V.T.C. A,, Penal Code, Sec. 36.06?Benson, supra. at 710.In disposing of this issue Judge Odomnoted that the Legislature had, by statute,differentiated offenses against "witnesses"only and "witnesses and prospective witnesses."The Conrt held that the term"witness" under V.T.C.A., Penal Code,§ 36.06(a), means "one who has testifiedin an official proceeding," thereby excludingamerely "prospective witness." It wasthus relatively easy to conclude that sincethe complainant, Mary Benson, was onlya prospective witness against her exhusbandin a pending assault charge, theevidence adduced at trial was insufficientto show that Benson possessed the requisiteintent to act "in retaliation for or on accountof the services of another as awitness." Benson, supra, at 71 1 (emphasisin original). Benson's conviction wasreversed and a judgment of acquittal wasordered.Jndge Odom's straightforward conclusionbecame a distant memory as the Conrtdelved headlong into the State's firstmotion for rehearing. This opinion,authored by Judge Clinton, interpreted theState's new approach as follows:On motion for rehearing, however,the State's Attorney contends the evidencewas adequate to support theindictment allegation that appellantintended to commit the offense of "retaliation''-~~long as the general term,"retaliation," is specifically narrowedto the alternative theory in which theintended victim is an "informant" asopposed to "witness." [footnote omitted]Therefore, goes the argument, theerror in the case is merely a matter ofan erroneous charge which was draftedon a theory not supported by the evidenceand, as such, presented only"trial error'' which does not necessitatethe entry of a judgment of aquittaL3Benson, supra, at 711-712 (emphasis inoriginal).Judge Clinton acknowledged the State'sadvancement of "a provocative argument,"but concluded that since the Statedid not object to the portion of the court'scharge now complained of on rehearing,it was precluded from benefitting from anyperceived error in the charge.More important for our purposes, however,is the rationale Jndge Clinton setforth in reaching this conclusion. Hewrote:Because a verdict of "guilty" necessarilymeans the jury found evidence ofthat on which it was authorized to convict,the evidence is measirred by thecharge which perforce comprehendsthe indictment allegations. [footnoteomitted] It follows that if [the indictment]does not conform to the charge,it is insufficient as a matter of law tosupport the only verdict authorized.[footnote omitted] Benson, supra, at712 (Emphasis supplied).Judge Clinton concluded that under thecourt's charge the only verdict authorizedin view of the evidence was "not guilty."Having found no "trial error" of whichthe State might benefit upon retrial, theCourt concluded that the disposition madeon original submission was correct. TheState's first motion for rehearing wasoverruled..The State promptly submitted a motionfor leave to file a second motion for rehearingbased on the identical contentions rejectedin the first motion for rehearing.Consequently, the Court again faced "theissue of whether the reviewing court mustlook to the indictment-as the State contends,or to the charge-to determine thesufficiency of the evidence." Benson,supra, at 713. After distinguishing thedistinct functions of the indictment vis-avisthe charge, Judge W. C. Davis determinedthat the charge in the instant casecontained no error. Judge Davis thenlooked to the indictment to see whether theevidence was sufficient to show that Benson"possessed the requisite intent to act'in retaliation for or on account of the servicesof another as a witness."' Benson,supra, at 714.A comparison of the "indictment, proofand charge," revealed, as it had on theprevious two submissions, that the Statefailed to satisfy its burden of proving thatBenson acted with anything but retaliationas it related to a "witness." In upholdingthe Court's previous result, however,Judge Davis added another dimension tothe analysis:We hold that when a charge is correctfor the theory of the case presented wereview the sufficiency of the evidencein a light most favorable to the verdictby comparing the evidence to the indictmentas incorported into the charge.Benson supra, at 715 (emphasis inoriginal).In denying the State's second motion forrehearing Judge Davis concluded that "[a]reading of the charge and indichnent as incorporatedinto the charge shows that theevidence is insufficient as a matter of lawto support the jury's verdict and the conviction."Benson, supra, at 716.Now, instead of measuring the evidencesimply by the charge that is given, as JndgeClinton had suggested, the Court expandedits analysis to include a comparison of theevidence to the indictment as incorporatedinto the charge "when a charge is correctJanuary 1989 I VOICE for the Defense 13

for the theory of the case presented."AU this did not sit well with JudgeMcCormick, who dissented to the denialof the State's second motion for rehearing.He argued, citing plenty of case law, thatthe Court's practice "bas been to reviewthe sufficiency of the evidence by examiningthe allegations in the indicrment and theevidence presented at trial." Benson,supra, at 718, n. 1. Judge McCormickexplained:The purpose of an examination as to thesufficiency of'the evidence is not todetermine whether this particular juryerred in their verdict, but whether "arational trier of fact" could have foundthe essential elements of the offensebeyond a reasonable doubt. Jackson v.Virginia, 443 U.S. 307,99 S.Ct. 2781,61 L.Ed. 2d 560 [(1979)]. In otherwords, has the State met the burden ofproviding the allegations made in thcirindictment against ., the dcfendcnt. Benson,supra, at 717-18.Although Judge McCormick agreed thatthe abstract portion of the charge expandedon the allegations in the indictment by addingthe phrase "as a witness," he did notbelieve this was error. He added:However, for the purposes of discussion,assuming the addition of thisphrase was error, it was not the type oferror envisioned in law to mandate ajudgment of acquittal. Rather, it is whathas become known as "trial error,"that is, error which renders a casereversible and ripe for new trial. TheUnited States Supreme Court in Burksv. United States, 437 US. 1, 16, 98S.Ct. 2141,2149,57 L.Ed.2d 1 (1978),recognized this distinction and includedincorrect jury instructions under thecategory of trial error. Benson, supra,at 718.Judgc McCormick concluded that the inclusionof "witness" in the~indictment~~~~~had~no bearing on Benson's guilt or innocenceand that "even if the jury charge shouldbe considered when discussing sufficiencyof the evidence, the evidence in this casewas clearly sufficient to find that appellanthad the intent to retaliate against a witness-witnessbeing properly defined at thetime of trial by a layman's definition."Benson, supra, at 721.After Benson, the battle lines wereclearly drawn. On one side a majority ofthe Court agreed that sufficiency of the evidenceshould be measured by comparingthe evidence to the indictment as incorporatedinto the charge. If the charge iscorrect for the theory of the case presented(i.e., there is no "trial error"), but theevidence is insufficient to support the instructionssubmitted to the jury, then anacquittal results. This is especially truewhere the State fails to object by tenderinga special requested charge under Article36.15, V.A.C.C.P., and as a resultshoulders an added burden of proof.The dissenters in Benson argued that anyerror in the charge should be interpretedas "trial error," thus entitling the defendantonly to a reversal and the possibilityof facing a new trial. The premise here isthat the indictment, and not the jurycharge, should be looked to in assessingthe sufficiency question. "In other words,has the State met the burden of proving theallegations made m their indichnent againstthe defendant?" Benson, supra, at 718(McCormick, J., dissenting). The argumentmaintains that the sufficiency errorwhich the majority found in Benson hadnothing to do with the defendant's guilt orinnocence and that the evidence clearlyproved up the allegations in the indicrment.In Boozer, the trial court's charge instructedthe jury that Margaret Wilson wasan accomplice witness as a matter of law;however, the evidence showed that thecourt's instruction was erroneous. Prior tothe submission of any charge to the jury,Boozer made a motion for an instructedverdict of acquittal based on the State'sfailure to meet its burden of adducing independentevidence corroborative of theaccomplice witness's testimony The motionwas overruled and on direct appealBoozer argued that the trial court hadreversibly erred by denying his motion forinstructed verdict. The El Paso Court ofAppeals found that while no corroborationof the accomplice witness existed, theevidence did not establish the witness asan accomplice as a matter of law and thereforeBoozer was not entitled to the instruction.Writing for the majority, JudgeClinton noted: "Thus, as we understandit, the court of appeals held the evidencewas insufficient to support the jury's verdictthat appellant was guilty under thecourt's instructions, but the insufficiencywas 'harmless' because appellant was notentitled to have the State prove whatthe trial court instructed the jury mustbe proved before a conviction was warranted."Boozer, supra, at 609.The Court of Criminal Afpeals rejectedthe lower court's rationale and reaffirmedthat "the sufficiency of the evidence ismeasured by the charge that was given."Boozer, supra, at 610 (emphasis inoriginal). In reaching this conclusion JudgeClinton stated specifically that the Courtwas not reviewing "whether the evidenceadduced at trial supported submission ofthe court's instruction that the witness wasan accomplice as a matter of law." Boozer,supra, at 610 (emphasis in original). Instead,Benson was cited for the proposition"that if evidence does not conform tothe instruction given, it is insufficient asa matter of law to support the only verdictof 'guilty' which was authorized." Boozer,supra, at 610-11. Judge Clinton dismissedthe State's now familiar argument conceming"trial error" and emphasized that theState, like the defendant, never objectedto the burden of proof placed upon it bythe trial court's instructions. He concluded:Under the trial court's charge inthe instant case, the only verdict authorizedin view of the evidence was "notguilty"; restated, had the jury followedthe trial court's instructions, appellantwould have been acquitted. Boozer,supra, at 611.Accordingly, the judgment of the court ofappeals was reversed and the cause wasremanded to the trial court for entry of ajudgment of acquittal.Judge McCormick dissented, as he hadin Benson, to the majority's opinion onoriginal submission. He noted: "Onceagain the majority has seen fit to enter anerroneous order of reversal and acquittalwhen the evidence presented at trial clearlysatisfies the allegations of the indictment."Boozer, supra, at 613. Judge McCormickargued, a la Benson, that the instructionalerror was not of the type envisioned towarrant a judgment of acquittal, hut ratheramounted to "trial error," which renderedthe case merely reversible and ripe for a14 VOICE for the Defense I January 1989

ANNOUNCING THE 1989 EDITIONS OF THE TEXAS HANDBOOK SERIESINCLUDING THE NEW ADDITION TO THIS SERIES:THE TEXAS CRIMINAL EVIDENCE HANDBOOKTEXAS PENAL CODE HANDBOOK:About 400 pages of text and casenotes, including the full text of the 1974 Texas Penal Codeand updated with- annotations on Texas court decisions reported through 754 S.W.2d.TEXAS DRUGS AND DWI HANDBOOK:Over 130 pages of text and casenotes, including the text of the Controlled Substances Act,Dangerous Drugs Act, Volatile Chemicals, Simulated Controlled Substances, and DWI Statutes,and updated with annotations on Texas court decisions reported through 754 S.W.2d.TEXAS CRIMINAL PROCEDURE HANDBOOK:Over 700 pages of text and casenotes, including the text of the provisions of the Texas Codeof Criminal Procedure relating to criminal procedure. (Does not include chapters relating toevidence, which are included in the Texas Criminal Evidence Handbook.) Also included areprovisions of the Texas Rules of Appellate Procedure relating to criminal cases, and updatedwith annotations on Texas court decisions reported through 754 S.W.2d.TEXAS CRIMINAL EVIDENCE HANDBOOK:About 400 pages of text and casenotes, including the text of the provisions of the Texas Codeof Criminal Procedure relating to evidence (Chapters 14, 15, 18, 24, 38 and 39), as well asthe Texas Rules of Criminal Evidence. Also included are annotations on Texas court decisionsreported through 754 S.W.2d.QuantityPrice1989 Texas Penal Code Handbook 60.001989 Texas Drugs & DWI Handbook 30.001989 Texas Criminal Procedure Handbook 90.001989 Texas Criminal Evidence Handbook 60.00AmountPostage and handling: $2.00 per book on orders under $100.00Ship to:Subtotal:Sales Tax*:Total Enclosed*:* Sales tax information: inside Austin MTA: 8%elsewhere in Texas: 7%Mail completed form to:~reelance Enterprises, Inc.P. 0. Box 15243Austin, TX 78761-5243

new trial. Since it was the trial court thaterred when it gave the faulty instructionto the jury, "the only proper remedy isto reverse and remand for a new trial."Boozer, supra, at 613. Judge McCormick'sdissent was joined by three other judgesof the Court.With such disparate pints of view dividingthe Court, the Statejustifiably filed itsmotion for leave to file a motion forrehearing. The Court denied the State'smotion, although several opinions werefiled both in support and in dissent of theCourt's action. Judge Clinton wrote to concurin the denial of the motion, reemphasizingthat "when the defendant, the Stateand the trial judge all agree as to what mustbe proved in a prosecution, yet the evidencefails to measure up, the State has hadits 'bite of the apple' since being given afair opportunity to marshall the evidencenecessarily includes a comprehensive electionof exactly what that evidence mustestablish." Boozer, supra, at 614. JudgeClinton concluded that there was no "error"other than insufficiency of the evidenceand that the State should not beallowed to complain on appeal that its"critical choice to acquiesce in the burdenimposed on it in the trial court, constituteda critical 'error' entitling it successively toprosecute a citizen." Boozer, supra, at614.Judge Campbell also concurred in theCourt's denial of the State's motion forrehearing. He felt, "[alfter carefully reexaminingthe issue in this case," that thecause was correctly decided on originalsubmission. Nevertheless, he complained:However, the majority on original submissionfails to define the crucial phrase"reviewable rulings of the trial court,"Boozer v. State, No. 402-82, Slip op.at 6, quoting Ortega v. State, 668S.W.2d 701, 705, no. 10 (1984), andtherefore fails to give the bench and baradequate guidance in determiningwhether appellate courts will permitretrials in cases where the State requests,but does not receive, a chargewhich correctly sets for the State'sburden of proof under the indictmentand facts of the case. Boozer, supra, at616.Judge Campbell cogently argued that inthe instant case the State shouldered agreater burden of proof by acquiescing ina jury charge requiring it to corroboratethe testimony of its key witness, which theState could not do. However, "[wlhen theState does make known its complaint to thetrial judge concerning the burden allocatedto it by the charge, it not only allows thetrial judge to correct the charge then andthere, but also notifies appellate courts thatthe State is not volunteering to shoulderany greater burden of proof than is requiredby the indictment and the evidencepresented in the case." Boozer, supra, at616. If the State follows this course of actionand the trial judge nevertheless insistson making the State shoulder a greaterburden of proof than required by the law,Judge Campbell "would hold that allrulings on the State's requested specialcharges pursuant to Art. 36.15, [V.A.C.c.P.] are re~iewable."~ Boozer, supra, at616. Such an error would then be considered"trial error" and the State wouldbe allowed to retry an accused, providedit complies with Article 36.15, supra. Thiswas essentially what Judge Clinton hadargued in Ortega, supra, at 705, n. 10.Judge Campbell would not, however,agree with the majority opinion's "implication"that the jury charge may not bereviewed unless the accused first raises theissue. He concluded:Thus, I don't think that reviewing theState's requested special charges is evenremotely tantamount to allowing theState to appeal. The function of the requestedspecial charge on appeal in thesufficiency context is to allow the appellatecourt to determine whether theevidence is insufficient because theState "bit offmore thanit could chew,"or because the trial judge erroneouslyforced the State to prove somethingwhich was not necessary under the lawnor under the evidence adduced at trial.In either situation, the decision toreverse or affirm is based on the chargeas given to the jury. Only the defendant'schallenge to the sufficiency of theevidence occasions appellate review ofthe State's requested special charges,and then the purpose of review is solelyto determine whether a retrial is permittedunder Burks v. United States,437 US. 1,98 S.Ct. 2141,57 L.Ed.2d1 (1978) and Greene v. Massey, 437U.S. 19,98S.Ct.2151,57L.Ed.2d15(1978). Allowing the State, in fact evenencouraging the State, to prevent adefendant from obtaining appellaterelief to which that defendent is not constitutionallyentitled is simply not thesame as allowing the State to appealfrom an adverse outcome in the trialcourt. Boozer, supra, at 617 (emphasisin original).Hardly a lone dissenter, Presiding JudgeOnion filed his dissent to the denial of theState's motion for rehearing, in whichthrcc othcr membcrs of thc Gurt joined.The Presiding Judge initially nnted that thctrial court had not erred in overrulingBoozer's motion for instructed verdict,since Margaret Wilson was not an accomplicewitness under Article 38.14, supra,and therefore her uncorroborated testimonyalone could support the conviction."This should have ended the matter."Boozer, supra, at 618. According to JudgeOnion the court of appeals "sua spontebroadened the contention and did not mentionat all the motion for instructed verdictset forth in appellant's only ground oferror." Boozer, supra, at 618.The court [of appeals] stated, "Appellant'ssole ground of error is that theevidence was insufficient to sustain theconviction because the same was basedupon the uncorroborated testimony ofan accomplice witness." Article 38.14,V.A.C.C.P.***The Court of Appeals agreed the evidencewas insufficient to corroborateWilson's testimony if she was an accomplicewitness, but held that in lightof Easter [536 S.W.3d 223 (Tex.Cr.App. 1976)], that Wilson could not beprosecuted as a party to the burglary,and was not an accomplice witness. Theclaim of insufficient evidence was rejected.Boozer, supra, at 618.Boozer then "switched" from his originalcontention on appeal to alleging that thecourt of appeals erred in denying him thebenefit of the finding by the trial court thatthe witness was an accomplice as a matterof law. It was on this basis that Boozer'spetition for discretionary review was16 VOlCEfor the Defense I Januq 1989

granted.Judge Onion further argued that themajority should have focused on Boozer'soriginal contention relating to his motionfor instructed verdict, rather than hlrningits attention to the court's charge whichcame after the ruling on the motion for instructedverdict. He explained:The majority holds the sufficiency ofthe evidence is judged only by thecharge given to the jury, and this is trueeven if, as in this case, the charge waserroneous under the law and facts andfavorable to the appellant. And the appellantis permitted to go scot-free bythe majority on a double jeopardytheory because the State did not object,even though Article 36.14, V.A.C.C.P., permits only the defendant, notthe State, to object to the court's charge.The majority reasons, however, thathad the State objected, then the erroneouscourt's charge would have onlybeen "trial error,'' permitting reprosecutionof the appellant. Boozer, supra,at 619.Judge Onion objected to the majorityallowing Boozer to use the erroneous juryinstruction, which was favorable to him,to go free even though the evidenceshowed him to be guilty of the offensecharged beyond a reasonable doubt.After discussing several cases involvingappellate review of sufficiency of theevidence under the corroboration of accomplicewitness rule, Judge Onion includedtwo hypothetical examples toillustrate his dissatisfaction with applyingthe standard of looking only at the court'scharge to determine sufficiency of the evidence.One hypothetical in particular ishelpful in understanding the dissenter'sviewpoint:Another question comes to mind. TheLegislature's lawmaking authority includesthe right to defme crimes and fixpenalties therefor. Article III, $ 1, Tex.Const.; Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998 (1913);McNew v. State 608 S.W.2d 166, 176(Tex.Cr.App. 1980) (Opinion on Rehearing).This is certainly not a judicialfunction, and there is a constitutionaldoctrine of the separation of powers.ArticleII, 5 1, Tex. Const. SupposetheLegislature enacts a penal statute defininga crime with elements "a," "b,""c" and "d." A defendant is indictedfor the commission of said offense. Theindictment properly charges the offenseand includes all four elements thereof.In charging the jury the trial court submitsthe four elements required by thestatute, but redefines the crime by addingelement "e" or a fifth element, andrequires the jury to find all fiveelements beyond a reasonable doubtbefore convicting. On appeal the defendantcontends the evidence is insufficientto support the fifth elementsubmitted. Viewing the evidence in thelight most favorable to the verdict, theappellate court agrees that despite thejury's finding, that the evidence is insufficientto support the fifth element,but that a rational trier of fact couldhave found beyond a reasonable doubtthe "essential" four elements of thecrime as defined by the Legislature.Under such circumstances, because theState did not object to the charge, doesthe court's erroneous inclusion of anadditional and unnecessary element callfor reversal and an order to acquit thedefendant? Boozer, supra, at 620-621.Here, Judge OMon is in line with thosedissenters who would measure sufficiencyof the evidence by the indictment, since itshould reflect the elements of an offenseas determined by the Legislature. If the indictmentis faulty, then obviously the entireconviction must fail. But if the chargeis defective or adds an additional elementnot required by law, then, so the argumentgoes, the State should not be saddled witha reversal and an order to acquit the defendant.This line of reasoningalso begs thequestion concerning jury charge error ina bench trial.Judge Onion concluded that the majorityhad given Boozer "more process thanis due" by looking only at the court'scharge to determine sufficiency of theevidence. He reasoned that the error inBoozer was not in the sufficiency of theevidence, but rather in the trial court's instructionsto the jury.In summary, the majority originallyerrs in not sticking to appellant's originalcontention that the trial court erredin overruling his motion for instructedverdict which does not implicate thesubsequently given charge. Next themajority errs in determining the sufficiencyof the evidence only by lookingto the court's instructions [footnoteomitted], even though erroneous, withoutreviewing the evidence or theholding of the Court of Appeals, andfurther insisting that the whole matterturns on the failure of the State to object.Boozer, supra, at 621.What, the reader may ask, has the Courtof Criminal Appeals done, if anything, tohelp explain the issues raised in Benson-Boozer? Shortly after Benson was decided,the Court entertained an appeal in whichthe trial court's charge on punishment informedthe jury that the defendant had pled"true" to an enhancement paragraph,although the record failed to show that sucha plea was entered. Wilson v. State, 671S.W.2d524 (Tex.Cr.App. 1984). No ohjectionwas made by either party to thischarge. Nevertheless, the State argued inits petition for discretionary review that"although there is no showing in therecord of appellant's actually pleading tothe enhancement oaraeranh. the 'record0 . -shows via the chrge, that the appellantpled true to the enhancement paragraph.'" Wilson, supra, at 525 (emphasisin original).Judge W. C. Davis disagreed and, citingBenson, wrote that a charge is notevidence. "[Rlather, it is a 'codification'of the State's theory of prosecution andevidence must be presented to support thecharge." Wilson, supra, at 526 (emphasisin original). In greater detail he explained:A recitation in the charge is not proof.Sufficiency is reviewed by comparingthe evidence to the indictment as incorporatedinto the charge. Benson, supra.The charge does not stand on its ownas proof. What the State asserts is sufficient,namely a recitation of a plea of"true" contained in the charge, is notevidence. Thus we are left with a chargeand insufficient testimonial evidence tosupport that charge. Wilson, supra, at526.January 1989 1 VOICE for the Defense 17

The Court affirmed the judgment of theHouston [Ist] Court of Appeals, which hadreversed the conviction because the Statefailed to present sufficient evidence to supportthe enhancement paragraph. Wilsonreconfirmed that sufficiency of the evidencewould be measured by comparingthe evidence to the indictment as incorporatedinto the charge.In Franklin v. State, 693 S.W.2d 420,432 (Tex.Cr.App. 1985), the defendanturged the Court of Criminal Appeals to extendits holding in enso on "and fmd that[double] jwpardy should bar the retrial ofany offense in which the court's chargeauthorizes the conviction for an offenselesser than, but included within, the offensecharged in the indictment." DonaldGene Franklin, of recent Supreme Courtfame, argued that double jwpardy shouldbar his retrial since he was granted a newtrial after the verdict was rendered andbecause the charge submitted to the juryfailed to allege that he committed thecapital murder intentionally whiie in thecourse of committing one of the underlyingfelonies enumerated under V.T.C.A.,Penal Code, $ 19.03.Writing for a unanimous Court, JudgeMiller explained the holding in Benson asfollows:In Benson, the jury was presented witha charge that contained no error, but expandedthat which the State was requiredto prove. We found that althoughthe charge contained elements of proofnot required for conviction for the indictedoffense, the State was nonethelessrequired to prove what wascharged beyond a reasonable doubt. Itfollowed that if the evidence did notconform to the instructions as given,then the proof was insufficient to supportthe only verdict of "guilty" thatwas authorized by the charge. We heldthat there was insufficient evidence tosupport the allegations as set forth in thecharge, and entered an order of acquittal.Franklin, supra, at 432.The Court declined to extend Benson tosupport Franklin's requested finding thatdouble jeopardy should bar his retrial,especially since doing so would conflictwith Article 37.14, V.A.C.C.P.6The next case to come down the pikewas Stephens v. State, 717 S.W.2d 338(Tex.Cr.App. 1986), in which the trialcourt's charge authorized the jury to findthe defendant guilty of aggravated rape asa principal or as a party, but not to findhim guilty of the lesser included offenseof rape. "Therefore to sustain the convictionthere must be sufficient evidence thatappellant was criminally responsible forthe aggravating element of threatening, byacts, words, or deeds occurring in thepresence of the victim, to cause death orserious bodily injury." Stephens, supra, at340. As in the previously discussed cases,the State failed to prove every element ofthe charged offense, so "there was noauthority by which to transform appellant'sintent to commit rape to an 'intent to promoteor assist the commission of the offense'of aggravated rape." Stephens.supra, at 340.With respect to the function of the jurycharge, Judge Clinton wrote:A trial court's charge explains tothe jury under what circumstances andof what offense it is authorized to convict.The sujiciency of the evidenceto support a conviction must thereforebe viewed in light of the chargethe jury was given. Bensou v. State,661 S.W.2d 708, 714 (Tex.Cr.App.1982). Stephens, supra at 339 (emphasissupplied).It was concluded that the Dallas Court ofAppeals had been correct in holding thatthe evidence was insufticieut to support appellant'sconviction for aggravated rape.Then, in Dunn v. State, 721 S.W.2d325, 332 (Tex.Cr.App. 1986), JudgeTeague reiterated what Judge W. C. Davishad written in Benson, namely that thestandard by which sufficiency is measuredmust he applied to the evidence in light ofa correct charge that corresponds to the indictmentallegations. (Emphasis supplied)In short, he explained:Under Benson v. State, supra, alsosee Boozer v. State, supra, unless theevidence conforms to the above instruction,although erroneous, it is insufficientas a matter of law to support theverdict of the jury. Dnnn, supra, at 334.Without going into the details, the trialjudge in Dunn submitted an erronwuscharge to which the State did not object.Nevertheless, the State sustained its burdenof proof under the charge and defeatedDunn's claim that the evidence was insufficientto sustain the jury's verdict.Dunn is the only case in which the Stateshouldered the extra burden of'proof andmanaged to conform the evidence to anerronwus instruction to support the jury'sverdict.The Benson-Boozer debate was continuedin Fain v. State, 725 S.W.2d 200(Tex.Cr.App. 1986). The trial judge inFain iustructedthe jury at the punishmentstage concerning two enhancement paragraphs,but inadvertently required the juryto find that one of the two prior convictionsbecame fmal before it was actuallycommitted. "Relying on Benson v. State,661 S.W.2d708 (Tex.Cr.App. 1982) andOmga v. State, 668 S.W.2d701 (Tex.Cr.App. 1983), appellant claimed in the Courtof Appeals that the evidence was insufficientto support the jury's finding of true,because the trial court's instruction requireda finding of true to be predicatedon a logical impossibility." Fain, supra,at 202. Because Fain did not object to theerror at trial, the El Paso Court of Appealsapplied theAlmanu2 v. State, 686 S.W.2d157 (Tex.Cr.App. 1984) (Opinion onRehearing) analysis and found there wasno actual egregious harm leading to thedenial of a fair and impartial trial.Writing for the majority, Judge TomDavis found that the court of appeals hadnot erred in treating Fain's claim of insufficientevidence as a claim of jury chargeerror, i.e., "trial error." JudgeTomDaviswrote:In the instant case, no one maintainsthat the trial court:s instruction was"correct for the theory of the case presented."Instead, in setting out his insufficientevidence claim for the Courtof Appeals, appellant showed that thetrial court's instruction was manifestlyincorrect. Appellant's claim as presenteddid not constitute a valid claimof insufficient evidence. The Court ofAppeals did not err in addiessing insteadthe predicate claim ofjury chargeerror. Fain, supra, at 202.18 VOICE for tlre Defense I January 1989

Warrantless Searches and Seizuresby Jade MeekerPart Ill8. Less Severe Intrusions WhereWarrants Are Not Required.1. "Stop and frisk" exception.In Terry v. Ohio, 392 US. 1, 88 S.0.1868,2OL.M2d 889(1968), and thecombindcases Sibron v. New York andPetersv. New York, 392 US. 40,88 S.0. 1889,20 L.Ed.2d 917 (1968), the Supreme Courtset fotrh the "stop and frisk" exception tothe warrant requirement, which applieswhen officers briefly detain a suspect. Therule was fashioned as follows:where a police officer observesunusual conduct which leads himreasonably to conclude in light of hisexperience that criminal activitymay be afoot and that the personswith whom he is dealing may bearmed and presently dangerous,where in thc coursc of inves&xingthis behavior hc identifies hini~elf;rsa policeman and makes reasonableinquiries, and where nothing in theinitial stage8 of the encounter servesto dispel his reasonable fear for hisown or others' safety, he is entitledfor the protection of himself andothers in the area to conduct a carefullylimited search of the outerclothing of such persons in an attemptto discover weapons whichmight be used to assault him.Terry, 88 S. Ct. at 1884-5. A detentionunder this exception has been widelytermed a "Terry stop."The federal rules have largely been followedin Texas. Thus after each point,federal citations will appear followed bystate citations.Thegrounds necessary tojustify aTerrystop are difficult to define with precision.Initially, probable cause is not required tojustify the initial stop since the investigationis considered to be a lesser intrusion.Rather, each case must be considered todetermine whether the officer hadJade Meeker presently scrvrs as a staflcrltonrev hr the Corcrr of Crimi~tui ArmcnIIs.z.She ob&ed her B.A.-degree from TrinityUniversity in mathematics andpoliticalscience, and her J.D. Degree frorn theUniversity of Texas School ofLaw in 1982.She has been a research attorney forJudge Chuck Miller, an associate withHaynes and Fullensveider of Houston, andan Assistant City Attorney for the City ofAustin. She also serves on the faculty ofthe Municipal Court Training Center, lectureson criminal law subjects for differentgroups inchrding the Texas Criminal DefenseLawyers Association and the StateBar, and teaches at Austin CommunityCollege."reasonable grounds to believe" the stopwas justified. Terry, and Adams v. Williams,407 US. 143, 92 S.0. 1921, 32L.Ed.2d 612 (1972). see also Florida v.Royer, 460 US. 491, 103 S.Ct. 1319,75L.Ed.2d 229 (1983). Meeks v. State, 653S.W.2d 6 (Tex.Cr.App. 1983); Breni v.State, 571 S.W.2d 314 (Tex.Cr.App.1978), and cases cited therein at 318;Fatenii v. State, 558 S.W.2d 463(Tex.Cr.App. 1977); Milton v. State, 549S.W.2d 190 (Tex.Cr.App. 1977): andMann v. State, 525 S.W.2d 174(Tex.Cr.App. 1975).A brief stop of a suspicious individualis permitted to determinehis identity or ohtainmore information. Adanls v. Williams,92 S.0. at 1923. See also Terry. In orderto justify theinitial stop, officers musthavespecific, articulable facts which, inlight oftheir experience and personal knowledge,together with inferences which arise fromthose facts, would warrant the detention.Terty, andAdam v. Wiliiams.Anderson v.State, 701 S.W.2d 868 (Tex.Cr.App.1985), at 873, citing Glass v. State, 681S.W.2d 599 (Tex.Cr.App. 1984); Meeks,supra; Walker v. State, 588 S.W.2d 920(Tex.Cr.App. 1979); Brem, supra; Adamsv. State, 552 S.W.2d 812 (Tex.Cr.App.1977); and Milton, supra.If there aresufficient grounds to believethat the suspect has a weapon, then the officermay conduct a limited pat-downsearch of the suspect's outer clothing forweapons.Mere suspicion is not sufficient. Threerequirements may be formulated. The factsmust yuppt a reasonable suspicion that:1. some activity out of the ordinary isoccurring or has occurred.2. The suspect is connected with thesuspicious activity.3. The suspicious activity is related tocrime. Terry, and United States v. Cortezand Hernandez-Loera, 101 S.Ct. 690(1981). SeeHoag v. State,728 S.W.2d375(Tex.Cr.App. 1987), and cases cited thereinat 380; Meeks, supra 653 S.W.2d at 12,and cases cited therein.The following are federal cases wherethe facts were found sufficient to justify aTerry stop.United States v. Hensley, 469 U. S. 221,105 S.0. 675, 83 L.Ed.2d 604 (1985):January 1989 I VOICE for the Defense 19

Police officers stopped the defendantbased on a "wanted flyer" issued byanother policedepartment showing that thedefendant was wanted for investigation ofan aggravated robbery. The Court held astopmay bejustifiedif the flyerorbulletinwas issued on the basis of a reasonablesuspicion that the wanted person has committedan offense. Evidence discoveredpursuant to that stop is admissible if the~olice who issued the flver had awere discovered in the back of the truck.Peters v. New York, 392 US. 40, 88S.Ct. 1889, 20 L.Ed.2d 917 (1968)(decided with Sibron v. New York): h officerwasinhis home whenheheatdanoiseat his door. His attempt to investigate wasinterrupted by a phone call, bubwhen hereturned to thedoorandlcoked through thepeephole, he saw two men tiptoeing out ofthealcovetowardtbestainvay.Theofficerbelieved that he had hannened uDon an at-ieasonable suspicion justifying the stop tempted b~glary. He opened hiidoor andand the police who stop the defendant do slammed it loudly behind him. The twonot act beyond the scope that would be al- men then fled down the stairs and werelowed the issuing police.stopped shortly thereafter. The facts wereFlorida v. Rodriguez, 469 US. 1, 105 sufficient to support a reasonableS.Ct. 308, 83 L.Fd.2d 165 (1984): The suspicion.defendant and his cohorts acted in an un- The following are federal cases whereusual manner while leaving an airplane the facts were found insutficient to justifyticket counter in the Miami Airport. One a Terry stop.person had spoken furtively to the other, Reid v. Georgia, 448 US. 438, 100and one was twice overheard by police ur- S.0. 2752, 65 L.Ed.2d 890 (1980): Theging the others to "get out of here." One defendant arrived at the Atlanta Airport onpersonmade Strange movements, "his legs a commercial flight from Ft. Landerdale,were pumping up and down very fast and Florida. A DEA agent saw the defendantnot covering muchground, ... as if the per- occasionally look backward in the direcsonwere rnnning in place," in an attempt tion of a second man, who carried ato evade the officers. Also, when stopped, shoulder bag similar to the one carried bythe suspects gave contradictory statements the defendant. The defendant reached theconcerning their identities. The stopping main lobby of the terminal, and the secondofficerbad specialtraininginnarcotics sur- man caught up with and spoke briefly toveillance and apprehension, and the defen- him. The facts supported at most a hunch,dantand theothers werestoppedinamajor and wereinsufficient to justify the stop.international airport where reasonable ex- Sibron v. New York, 392 US. 40, 88pectations of privacy were "of significant- SCt. 1889,20 L.Ed.2d 917 (1968): Sibronly lesser magnitude. .."was seen conversing with other personsFlorida v. Royer, 460 US. 491, 103 known to be narcotics addicts. The subjectS.0. 1319, 75 L.Fd.2d 229 (1983): The of the conversations was not known. Theredefendant was stopped after officers con- were insufficient facts to support the stop.cluded that his appearance, mannerisms, Special note should be taken regardingluggage, and actions fit the "drug-courier the "drug-courier profde" situation vis-aprofile."Hehad purchased a one-way tick- vis Terly stops. The Supreme Court haset to New York from Miami under a dif- granted a writ of certiorari in United Statesferent name. This case was reversed, v. Sokolow, No 87- 1295,43 Cr.L.R. 4061,however, because the detention after the June 8, 1988. The federal decision belowstop exceeded Terry limits.was reported at 831 F.2d 1413. The Ninth~nited Sturcs v..co).~~z, 440 US. 41 1, Circuii Court ot'Appeills prkwntcd 3 good101 S.Ct. 690, 66 L.Ed.2d 0221 (19x1): disvussi~~n~~t'thcflc.xibility notedin"dmg-Policebad investigatedtransportationofillegalaliens near the border in an areaheaviiy trafficked by aliens entering fromMexico. Footprints with a distinctive patternled to a highway, where the alienswere picked up in a vehicle. The officersset up surveillance and saw the defendantdrive a truck to the suspected pick-up site.Apassengerwas found wearing shoes withthedistinctiveshoeprint, andillegalalienscourier profile" cases, and held that areasonable suspicion must be founded onevidenceof on-goingcriminalactivity, andmay not merely be based on evidence correspondingto the "drug-courier profile."Under the facts of the case, there were insufficientfacts to support a suspicion ofon-going criminal activity even though thedefendant exhibited "drug- courier profile"characteristics.The question presented for review beforethe Supreme Court is whether a reasonablesuspicion that a person is engagedin narcotics trafficking may be based on acommon sense analysis of all of the informationin the officers' possession, or mayit be based on at least one factor that constitutesdirect evidence of an ongoingcrime plus circumstantial evidence thatmay be considered only if its significanceis verified by empirical or statistical data.Thus, the law may be modified by actionon this case by the Supreme Court.The following are Texas cases wherethe facts were sufficient to justify a Terrystop.Hoag v. State, 728 S.W.2d 375 (Tex.Cr.App. 1987): Officers suspected that thedefendant was involved in a burglary committedtwo days before his arrest. Whileunder surveillance, the defendant determinedthat no one was at home at the twohouses. He went into the backyard of onehouse and tried to open the garage door ofthe other house After returning to his car,the defendant drove to an apartment complex,pulled into the parking lot, and wentin. Thhty minutes later, he came out canyinga newspaper and a canned drink. Afterhe drove away, police went into the complexand looked, without success, for aburglarized apartment. The defendant waspulled over by a patrol car shortly afterward.The facts were sufficient to justify abriefdetention, but did not support thesubsequentwarrantless arrest.Marsh v. State, 684 S.W.2d 676 (Tex.Cr.App. 1984): A Texas Ranger was fishingon a ranch in Fort Bend County, andnoticed activity on the ranch's grass landingstrip shortly before midnight. He thensaw activity consistent with unloadingcargo in the dark by several persons, andsaw flares and flashlights. The officerknew that clandestine rendezvous withaircraft in remote locations in the dead ofnight were standard practices in the drugimportation trade. The defendant wasstopped shortly thereafter when the rangermet with another officer. There were sufficientfacts to justify the stop.Meeks v. State, 653 S.W.2d 6 (Tex.Cr.App. 1983): Two officers were on routinepatrol in a high crime area of Houston,and saw the defendant walking toward aparked car and away from a vacant lotwhere a semi-tractodrailer and a stakebedtruck wereparked. One officer noticed20 VOICEfor the Defense I January 1989

ARlZONA V. YOUNGBLOOD,No. 86-1904, OpinionbyChief Justice Rehnquist, Joined by Justices White,OTonnor, Sdia and Kennedy; Concurring Opinion byjustice Stevens; Dissenting Opinion by Justice Blackmun,Joined by Justices Brennan and Marshall; November29,1988.EVIDENCE -POLICE OFPICERST PAIIURE TOPRESERVE POTENTIALLY USEFUL EVIDENCE WASNOT DUE PROCESS VIOLATION:FACTS: In jury trial D convicted of child molestation, sexual assaultand kidnapping. Arizona C/A reversed conviction ongrounds state failed to reserve semen samples from victim'sbody and clothing. [7&.Zd 592(1986)1.Followine church services, c/w. a tenvear old bov. was abductedfrom-carnival by middldaged ma; of mediuk height andweight. Assailant drove c/w to secluded area near ravine andmolested him, then taking boy to unidentified, sparsely furnishedhouse where c/w was sodimozed four times. Another act ofsodomy occud after assailant tied c/w up whlleassailant wentoutside to start car. Afterward c/w was sent to bathroom to washup before being returned tocarnival. Assailant threatened to killc/w if he told anwneabout theattack which had lasted aboutone and a half hdurs.After c/w arrived home, his mother took him to area hospital.Doctor treated boy for lectal injuries and used a "sexual assaultkif' to collect evidence of attack. [From opinion, this appears tohave been a standard evidence gathering "rape kit!'] Doctor usedswab to collect samples from c/w's rectum and mouth, makingmicrosco~ic slides. Doctor also obtained samoleof clw'ssaliva. 'blood an2 hair. Doctor did not examine sam$es at iny time.Sexual assault kit was dadin secure refrieerator at dice station.Although c/w's tkderwear and t-shirt"wcmcoll&d bypolice at hospital, this clothing was not retrigcrated or frszen.Nincdays after attack.c/w idcntificd D as assailant fromphotographic lineup. D was arrested four wceks later.Ten days after assault, police criminologist examined sexual assaultkit. He testified he followed standard produre -examiningslides and determining whether scxualconduct had occurrcd.After determining there was such conduct, criminologist did notperform other tests, but he did lacea assault kit back in?efrigerator. Tests to identify bhod group substances were notroutinely conducted during initial exami&ii of assault kit; theywere ultimatelv conducted in onlvabout half of the cases.Criminologist aid not test c/w's dothing at this time.D indicted on charges of chid molestation, sexual assault andkidnapping. State moved to compel D to provide blood and salivasamples for comparison, but t/c denied motion on gmund Statehad not obtained a sufficientlvlame semensample to makevalidcomparison. D.A. asked ~tat&rinholo~ist to p&onnan ABOblood erow test on rectal swab sample and attempt to ascertainassailakfs bod type; test failed to detect any bldgroup substances.. -Six months aHer assault criminoionist examined c/ds clothinafor first time. He found one semen st& on underwear andanother on rear of tahirt. AttemDts to obtain blood mupsubstanmuslngAB0technique were ~nsuccessful. ~rimi;olo&t performeda P30 ~roteln molccule test on stains. which indicatedonly a smallal~ount of semen was present on clothing; test wasinconclusiveas toassailanfs identity. At timeof test, policedepartment had just begun using test although it was used inslightly mom than half US. crime labs.Ws ~rincble defense at trial was misidentification. Bothcrimin6iogi& for State and expert witness for D testified as towhat mieht have been shown bv tests performed on samplesshortly &er they weregatherd, or by'later tests perfornied onsamples from bov's clothinn if clothina had been prowrlv-T/C instructed jury that ifthcy found State had destroyed orlost evidence they might "infer that the truc fad isagainst theState's interests."C/A reversed, mncludingon basis of expert trial testimonythat timely performanceof test with properly p m + semensamples could have produced results which might have complete-1 exonerated D.This conclusion was reached even though C/A&d not imply any bad faith on State's part.HELD: No due process violation. S/Ct. characterized case as"what might loosely be called the area of constitutionaliy-guamnteedaccess to evidence." Court found State complied with Bradyv. Maryland I373 U.S. 83 (1%3)1 and United Slates v. Aprs [427U.S. 97 (197611. Prosecution disclosed relevant police reports to D,containing information about existence of swab and &thing andclw's examination at hospital. Additionally, State provided Wsexpert with lab reports i d notes preparedby pol&criminologist; IYs expert had access to swab and clothing.For D to prevail on federal constitutional grounds, it wouldhave to be because of some constitutional duty over and aboveJanuary 1989

~ ~~ ~~~~ ~"~ ~~~~~ ~that imposed by Brady and Agurs.SICt. distinmished its most recent discussion in this area,Caltomia o. ~ro"mbelta, 1467 US. 479 (1984)l. Trombefta was D.WJ.prosecution in which State introduced test results indicatingblood alcohol concentration. D sought to suppress test results onground State failed to preserve breath samples. Trombdta rejectedargument because: (1) officers were acting in good faith and in accordancewith normal procedure; (2) in light of procedures actuallyused, chances that preserved samples would have exculpatedwere slim: (3) even if samples might have shown inaccuracy intest, had alternative meaA of sh&in innocence. Although inpresent case, likelihood that preserv 2 materials would haveenabled D to exoneiate himself appears greater than in Trombdta,thereis a key distinction - State did not attempt to makeany useof its materials in casein chief.PRACTICE GUIDE: To come under the rule of Trombeffa, Dmust show that:1. Excul~atorvalue of evidence is "apparent!' IPossibilitythat seien sakples muld have exculp'aied D if preserved ortested is not enouah - tosatisfvstandard of constitutionalmateriality.]2. Exculpatory value of evidence must be apparent beforeevidence is destroyed. Presence or absence of bad faith byolice for due process purposes necessarily turns on policeEnowledeeof exculpatorv valueof evidencc at time it is lostA .or destroyed.Although due process clause makes good or bad faith of Stateirrelevant when State fails to disclose material exculvatowevidence, due process clause requiresdifferent resilt w6en appliedto State's failure to p rem evidentiary material "of whichno more can bc said than that it could subjected to tests, theresults of which might haveexonerated thedefendant!'. ~SICt. is unwillineto read "fundamental fairness" reauirementof due process clauscas imposing on police "an undifferentiatedand absoluteduty to retain and to preserve all material that mightbe of conceivable evidentiary significance in a particular prosecution."Court concluded that by requiring D to show bad faith bypolice it would (1) limit extent of police obligation to preserveevidence to reasonable bounds and (2) confine it to that class ofcases in which police themselves, by their conduct, show that theevidence could form a basis for exoneration. UNLESS D CANSHOW BAD FAITH BY POLICE, FAILURE TO PRESERVEPOTENTIALLY USEFUL EVIDENCE DOES NOT CONSTITUTEDENIAL OF DUE I'KOCESS. HERE CONDUCT CAN BEDESCRIBED AT WOKST AT MERELY NEGLIGENT.NOTE: - Criminoloeists " do not have constitutional dutv toperform any parlinrlartcsts. S/Ct. wascritical of opiAonbelow revardine State's inabilitv to "auantitativdv test"semen sc&ples'tvith the new P ~ teg. OSTEVEN A. PENSON V. OHIO, No. 87-6116; Opinion byJustice Stevens, Joined by Justices Brennan, White,Marshall,Blackmun, O'Connor, Scalia, and Kennedy; ConcurringOpinion by Justice O'Connor; Dissenting Opinionby Chief Justice Rehnquist; November 29,1988.RIGHT TO COUNSEL - FRIVOLOUS APPEAL - NOSHOWING OF PREJUDICE REQUIRED -HARMLESSERROR ANALYSIS NOT APPLICABLE:FACTS: D, an indigent, and two m-Ws were found guilty ofseveralsorious crimes in Ohio State Court and were sentenced tola28 vears. New counsel was appointed - - for appeal - - and filed timelynotice of appeal. ..A year and a half later, Ws appellate lawyer filed documentstvled "certificationof meritless appeal and motion" in StateC/A.~ ktwo e paragraph document staid Ws attorney revidwed appellaterecord, found no errors requiring reversal, and would not filemeritless appeal; attorney also asked to be allowed to withdraw.Following week, C/A entered order allowing appellate lawyer 'to withdmw and granting D 30 days to file pm se brief. That orderalso stated C/A would thereafter "independently review therecord thoroughly to determine whether any error exists requiringreversal or modification of sentence." C/A denied Ws requestfor appointment of new attorney. Without assistance of "any advocacyfor D",C/A made its own examination of record. Initially,C/A noted attorney certification that appeal was meritless was"highly questionable!' In fact C/A found "several arguableclaims" after it reviewed record and briefs filed by attorneys forco-Ds. C/A concluded "plain ermr" had been mmmitted in juryinstruction and reversed Ws conviction and sentence on onecount, affirming conviction and scntcnces on remaining counts.C/A concluded D "suffered no prejudice" resulting from"counsel's .--- ~--- failure to eive him m&conscientious examination ofthe record" because ?/A performed that fwction.HELD: If C/A concludes there are not frivolous.issues for appealit must, before issuing an opinion, give indigent defendantsassistance of counsel to argue appeal. Here, C/A did not followprocedural requirements of Anders v. California, L386 US. 738(1967)l. It committed even more serious emr when it failed to appointnew counsel once it found mord supported several arguab-Iv meritorious grounds for reversal. Thus, D was left withoutfonstit~tionall~ade~uatere~resentationappeal.In strictly Anders terms, C/A erred in granting attorney's motionto withdraw for two reasons: (1) motion should have beendenied becausecounsel's "certification of meritless appeal" failedto draw attention to anything in record arguably supporting aponl(2)CIA should not have acted on motion before making its1 --~- ~.own examination of record to determine whether attorney'sevaluationofcase was sound.S/Ct. noted that purposeof Andws brief is to assist appellatecourt indetermining both that attorney in fact conducted requireddetailed review of case, and also that appeal is indd so frivolousthat it mav bedecided without an adversarv .-pn?sentation.Thefunction &as served here.Once appellate court determines trial record supports arguableclaims, attorney must be appointed. This is a mandatory requirement.D does not need to showthat hesuffered prejudice underSfrickland v. Washindon, " . 466 U.S. 668 (1984). Additionally, a harmlesserror analysis is inappropriate. This is not the same dituationoresented bv a claim of ineffective assistance- here D was left:ompletely hhout representation during appellate court's actualdecisional pmcess.N0TE:This case is unlikesituation wherecounsel fails topress particular argument on appeal or fails to argue as effectivelyas he might.LOCKHART V. NELSON, No. 87-1277; Opinion by ChiefJustice Rehnquist, Joined by Justices White, Stevens,~'CO~~OI, Scalia, and Kennedy;Dissenting Opinion bylustice Marshall, Joined by Justices Brennan and Blacknun;November 14,1988.SDRQ Significant Decisions Report January 1989

DOUBLE JEOPARDY - ENHANCEMENT - RETRIALNOT BARRED DESPITE FACT PRIOR - CONVICTION--USED FOR ENHANCEMENT WAS INVALID:FACTS: D pled guilty to burglary and wasconvicted underArkansas habitual criminal statute- omvidine oenalrv ranee of 2040 years if D has four priors. At sep&atc sentGcing hbrin; Stateintmdud certified copies of four prior felonv convictions. luwfound State had met its'burden of ;roving the four prior co&-tions and imposed enhanced sentence. Enhanced sentence wasupheld on direct appeal and collateral attack, although D arguedone of the convictions relied on by State had been pardoned.Several years later, D was granted writ relief on theory that enhancedsentence was invalid because one of the prior convictionsusd to support it had been pardoned. ~msecutibn announced intentionto resentence D as habitual offender, using another priorconviction which had not bcen offered or admitted at the initialsentencing hearing. D interposed claim of double jeopardy; U.S.District Court held double jeopardy clause barred State from attemptingto resentence D as habitual offender on burglary charge.This decision was upheld by fedcralC/A which reasoned thatwithout the pardoned conviction, prosecution had failed topruvide sufficient evidencc to sustain enhand sentence.HELD: Double jeopardy clause did not prohibit retrial.RATIQNALE:Uurks v. Uniled Stales, 437 U.S. 1 (1978). does notapply.This case prwented question left open in Rurks'companioncase of Greene v. Masseu. 437 U.S. 19 (1978) . .- whether doublejeopardy clause allow&trial when reviewing court determinesWs convictionmust be reversed because evidence was erronmus-Ly admitted against him.Majority stresses Rurksdistinguishes between reversal basedsolely on evidentiary insufficiency and reversal based on ordinary"trial errors" such as "incorrectraeipt or rejedion of evidence."Majority held here that a situation was one of reversal because of''trial error:'WHATSTANDAKD WESREVIEWiNC COURTUSE - ISALL EVIDENCETO BE CONSIDERED? S/Ct. answers yes.Reviewing court must considerall evidenccadmitted by t/c indeciding - whether retrial Is permissible under double .-. ieouardvAclause.EFFECT OF STANDARD ON TEXAS CASES: Formulationof this test, unanswered until this timcby S/Ct, isconsistentwith TCA's general opinionson retrial following crronmusadmission of evidence. S/Ct. cites favorably toTCA opinion Rodcr688 S.W.2d E6 (1965), in footnote.N0TE:The effect on Texasenhanoemen1 cases isdiscussedbelow.Majority reasoned that Burks exception to double jeopardy baris premised on idea that reversal for insufficiency of evidence istreated no differently than t/c granting judgment of acquittal atclose of all evidence. When t/c passes on such a motion, it considersaU the evidence it has admitted. Completing this analogy,reviewing court must mnsider "thesame quantum of evidence!'DISSEmThree judgedissent views fact situationpresented here as example of classic double ieooardv evil ofState attempting to perf& its evidence thr~;~h'sucfessivcattempts at conviction. Dissent docs not view caseas oneofinadmissible evidence, but oneof prosecution's defwtiveproof. Thus, it would apply Burks.Dissent also castigates maioritv opinion for its terseness onissue of whether &viewing cotrt; when evaluating insufficiencyfor double iwuardv~uruoses. . should look to all ad-.&mitted-evidence or bnty the properly admitted evidence.Dissent sueeeste a "calibrated" test - consideriw amongother lacto& why the evidence at issue was deemed inidmissibleand whether D.A. tended in closecases to holdback probative evidenceof guilt.EFFECT ON TEXAS ENHANCEMENT CASES: It has been therule inTexas that defects in thestate's sufficiency to prove priorconvictionsalleged for enhancement (for example: lackoffinality), would result in double jeopardy being applied.Thus, aDefendant prosecuted under Section 12A2(d) PC, as a habltual offenderwithtwo prior conviction$,couldnot be prosecuted as ahabitual offcndeiat retrial had there been a def& instate% proof.It is unclear if Loekharf v. Nelson will change this result. For example,majority opinion in Lockhavl v. ~ eLn suggested that hadD o b i at trial and introduced proof of pardon, prosecutorcould havesubstituted another orfor convikion in tilace of thedefective prior. In ~ews,enhankment allegations kust be pled inindictment. However, with thereccnt libemlition of trial levelamendment, there isa possibility that just such a substitutioncould be made. It appears that on purely federal double jeopardygrounds, D inTexas would besubject to habitual offender statusit retrial - a departure fromprior caselaw.**.**Ex Parte Robert Edward BROYLES, No. 70,669 -WritRelief Granted: Per Curiam Opinion; November 2,1988.MISJOINDER - TWO NON-PROPERTY OFFENSES AGLEGED IN ONE INDICTMENT:U~on plea of no cuntest, D was convicted in two count indictmenicha&ingaggravatedrobb~r~and aggravated kidnapping;punishment wasassessed at fortv vears. IYs two convictions aroseh m same criminal transaction &d involved same c/w.HELD: When more than one offense is alleged in same indictment,such misjoinder constitutes fundamental error.This is truewhether or not offenses arose out of same or differenttransactions.Case was remanded for new punishment hearing. The judgmentand sentence here indicated only a slngle term of forty yearsimorisonment for both convictions. TCA reasoned that t/cmavnoi haveassessed punishmcnt at forty years had Donly bcen convictcdof aggravated robbery. TCA found it could not say that additionalconviction for aggravated kidnapping did not exertdistinct pwssure on t/c toward higher punishmcnt. Case wasremandd for new punishment tr&l.PRACTICE CUIDE: Bc aware that Sation 3.01, P.C. wasamended 9/1/87and defines"criminal episode" as "acommissionof two or more offenses, regardless of whether the harm isdireaed towards or inflicted upon more than oneverson or itemof property ...."This amended &ion only ap lic~ooffensescommittedafier9/1/87. Prior tog/l/87. Section 5).01 aodid . onlvtooffenses against property.Freddie Lee WEBB,No. 69,730 - Capital Murder ConvictionAffirmed: Opinion by Judge Clinton; Judge TeagueDissents; Judge Miller not participating; November 9,1988.January 1989Significant Decisions Report

CAPITAL MURDER - PUNISHMENT PHASE- CLAIMOF ENMUND V. FLORIDA "FATAL DHPECT":Dclaimcd jury's verdict on punishment was "fatally defeaive"because jury wasallowed to assess dea~h penalty without at firstexpressly finding he himself killed, anem led to kill, intended tokill or contemplated that lethal force wou P d beempioycd. Enmundv. Florida. 102 S.Ct. 3368 (1982). In short. D amed because hemuld have been convict& asa party tdthe cipital murder, thefinding required by Enmund may not have been made.FACTS: D and accomplice (never identified) kidnappedElizabeth Cantu and her husband (c/w). D told muplo they were"going to go for a ride, get some money and that islie] wasgoingto give it to him and that they wcm going to go back to Ship Ahoyand that lshe. who was nieht manaecrl was eoine to oven the safeand @veihek ail the moGy? At thve ktaurh hab;?th Cantuwas tied uo and left. C/W was held bv accomplice in cou~le'sblazer. D Ad co-D took c/w to city dbp whbre he was ;hotnumemus times by a ,357 or .38 caliber and a A5 caliber wea n;fatal shot came from the 357 or 38 weapon. Several months aterD was a~~rehended as he fled scene of robberv. During mmmissionof Kat offense (robbery of mnvenience store) ~ dii~ia~edchrome plated ,357 magnum revolver which ballistics proved tobe the sa'me weapon thit had wounded c/w. C/W's f6rmer wife(Olga Cantu) tfstified she knew D from high school and that c/wwarwith her on several occasions when s6ereFerred to D byname. From this evidence TCA theorized c/w may haverecagniAD, which could have been the motive for the killing.NOTE: Ina related point of ermr,TCA found evidence sufficientto support guiit/innmnoe and to support affirmativeanswer to&ecidissue one [the "delibemt&ess issuef'lunder a theory that D was eitherthe primary actor or aPatty.TCA overruled D's Enmund challenge on two theories. Itrepeated earlier holdings that as a matter of statutowconstructiin, law of parties maynot beapplied at punishmekt phaseoftrial. Cueuas v. Stale, 742S.W.2d 331 (1987). Having already concludedthat evidence suooorted iuds affirmative>nswerio suecia1issue one, TCA further conciudh, by authority of ~uevas,~thatdidatesof Enmund had been met. When a jury answers the firstiai issueat capital murder punishment phase, that issue in-Enmund findines. Neither Enmundnor S/Ct.'s laterdecision in Tison v. ~&onn, 107 S.Ct. 1676 (1987), placed additionalburden onTexas capital sentencing scheme.Secondly, TCA found jury made adequate finding of intent tokill in its verdict of miih, - whether or not it found Dguilty asprimary aaor or p&y. it isn't important whether or cot jurybelieved D pulled trigger of actual murder wmpon. Becauscjurywas requid to find% intent to pmmotcora&ist commissionofan intentionalmurder before it could convict D as a party to the offense.TCA could not sav its later ounishment verdict was "fatalivdefe&ve" under ~nrnuid.IDENTIFICATION- LINEUPCONDUCTED AFTER WIT-NESS LEARNED POLICE APPREHENDED MAN IN POSSESSION OFMURDER WEAPON:FACTS: Eliibeth Cantu identified Din lineua At trial D attemptedto provcsho had bccn primed to identiiy any short, lightcomplected biackman in the lineup. Prior to lineup witnesslearned police had apprehended man in possession of pistol thathad killed her husband. She was not told the name of sus wt, butseems to have bcen informed he would appear in lineup. e rior tothe live lineup, conducted five monthsafter thekilling, witnesshad sccn in &cessof 200 photographs of black malesand hadmade no identification. T/C found there was some suaestivenessto lineup because witness knew gun had been found, &t furtherP"found lineup was not impmissibly suggestive.I1ELD:Tfstimony adduced at pre-trial hearing failed toestablish~. t/cabused discretion in ~ermittinn in murt identification.TCA acknowledged it is "unhoubtedlythecase that in a substantialnumber of live lineuos the identification witncss will pre-supposethat police have some reason to believe one of the -ts is the perpetrator." If tNs faa standing alone wereparticirenoug to render lineup impermissibly suggestive, "precious fewlineups would meet constitutionalmuster?N0TE:TCA further noted evidence adduced at trial onmerits fortified earlier ruling of t/con identlfimtion.In a footnoteTCA indicated that limiting appellate reviewonly to fact8 adduced at pre-lrial hearing could placeappellatecourt in "the untenable position of having to reverse aconviction in the faoeof a record which supports albeit bclatedly,the trial couri's ruling." TCA made this observationdespite fact D "rciitigated" facts around pre-trial identificationonly in the context of trying to impunge the weight ofElizabeth Cantu's testimony - i.e., he was not attempting - -specifically to retly thelegil issue.Withat least seven judgfs ofTCA sharing this view, trialattomefs should becareful when weighing risk of anemptingto ikpeachordiscredit identificatiGn Gtness at latertrial.SEARCH AND SEIZURE - WARRANTLESS ARREST - WHENMAY THE POLICE ARREST BASED ON REPRESENTATION OF"ONE TIME" CITIZEN?FACTS: D was armted fleeing thescene of an unrelated mbberyseveral months later. DPS officer LC was patmllinginterstatehe received radio broadcastblackmales had just takendace. Fifteen minutes later LC was hezed down bv passingktorist, OP. In state of excitement 0I%formed Lk fie had-knfollowine two blackmalesdrivine a Mamuis. that thew men hadjust robbh a convenience store, &d that they were in possessionof eithera ,357 or ,358 magnum chrome plated pistol. OP also toldLC five cars had passed since OP stopped to contact LC; OP gaveLC license plate number. As LC gave pursuit, he broadcast informationOPhad given him. This was intercepted by Deputy Sheriffwho, together with LC, stopped D and his companion withinminutes. Chrome plated ,357 magnum was discovered in plainview, cocked, on front seat.HELD: Cfficers had probable cause to arrest D. Information OPsupplied to LC(that arrhed mbbery had occurred at conveniencestore and that robbers were fleeing in specified car) wassufficientto warrant a prudent man in believing occupants of the car hadcommitted felonv. Remainine issue - whether reasonable manwould credit OF% inEormati& under the circumstances - was sup-plied because OP's story was sufficiently detailed to su gest to LCthat he had direct knowledge; further information supp ied by OP"dove tailed nicelf with informationalready withincollectiveknowledgeof LC&~other lawenfo~emen~officers (the twoblack males had been involved in armed robbery and would bedriving a Marquis). Using totality of circumstances test, faaswould iustifv reasonable and prudent man in concluding that informationf6m OP wassuffisenlly trustworthy to act upon.EVIDENCE - ADMISSIBILITY OFTAPES COMPlLED FROMDISPATCHTAPE:D challeneed admissibiiitvof cassette taue recodinndocumentin~~lizabeth~an~u's initial call k~ police, sub'Eequentdialoeue between disoatchers and police officers, and further conversgionbetween diipatcher and bntu as she waited for someoneto come to restaumnt and release her.PiSignificant Decisions Reporf January 1989

FACTS: Police cavtain testified at time recording made, he wasin c w e of cornmuhication division of ~orps ~&sti policeDepartment. Incoming calls todepartment were recorded on twosix foot tall reel to reel ta e recorders with reels of ten and onehalf inches in diameter. i ach was a thirty channel recording - itwas capable of recording various conversations occurring simultaneouslv.Cri~p rerecorded the radio and telephone communicationspertaining to this robberyontosmall krder. He testifiedcassette tape contained no chanms, additions or deletions since hemade it. Chp was to &t through various channels onoriginal tape and, using his experience and knowledgeof policeterminology to "discern which conversations related to theinstantoffense and which did not." It was necessaryto render manysimultaneous dialoguesin a sequential order on cassettemrding.HELD:T/C did not abuse its discretion in admitting cassettetape.PRACTICE GUIDE - APPELLATEPROCEDURE: Cassettetape was introduced into evidence but was not forwarded~

~ -~~ ~PUNISHMENT AT SECOND TRIAL CONSTITUTE IN-EFFECTIVE ASSISTANCE? TCA answers "no" findingthat t/j was not limited by North Carolina v. Pierce tooriginally assess punishmentFACTS: D was convicted of delivery of heroin. T/J assessedpunishment at 15 years confinement. However, t/j later grantednew trial under former Article 40.09 V.A.C.C.P. on claim ofdeficiency in indictment's allegation. New indictment waspresented. New t/j was appointed to fill vacancy ontrial bench.Based on attorney's advice, D elected to have jury at second trialassess punishment. Punishment was assessed at 25 years afterjury found D guilty and he pled "true" to enhancement allegationof prior felony.HISTORY ON APPEAL: This opinion was on remand fromUnited States Supreme Court. Prior to that time case hadlengthy appellate history. In original appeal D complainedtrial attorney provided ineffective assistance by advisinghim to make jury election. D relied on North Carolina o.Pierce, 395 US. 711 (19691, fortheorythat second t/j wasbarred from assessing a greater punishment than first t/j -15 years. Thus, by electing to have jury assess punishmentat second trial, because that is what his attorney advisedhim, Dreceived 10 additional years of punishment.C/A held evidencesufficient to sustain conviction but initiallyremanded toT/C for hearingto determineif therewas "objective information" available which would have allowedthe secund t/j to assess a moresevere penalty. 640S.W.2d 323. Following evidentiary hearing. C/A determinedPierce applied, there was no objedive information,and D received ineffective assistance for sole reason ofhaving been advised to have jury assess punishment. Convictionwas reversed. 662 S.W.2d 74.State's PDR was granted and TCA affirmed judgment ofC/A -determining that prophylactic rule in Pierceapplied.TCA agreed that in electing to have jury rather than judgeassess punishment at second trial, limitation on unishmentrange was removed. Because trial attorney fail el to adviseD about impact of Pierce he was ineffective.State filed Petltion for Writ of Certiorari. Cert was grantedand case was remanded to TCA for further consideration inlight of Tern v. McCullougk, 475 US. 134 (19%). See, Texas v.Jackson, 475 US. 1114 (19%).Question before TCA is whether sole act of advising D to electto have jury assess punishment was ineffective assistance of counsel.A sub-issue, a critical issue in this case, was whether t/j waslimited by Pieree to the 15 years imprisonment originally imposed,when a jury would not have been so limited.Central to the prior decisions of TCA and of C/A was thatPierce would apply -in other words, that T/J at second trialwould have been "locked into" assessing no more than theoriginal 15 years. Obviously, if Piercedid no apply, t/j would beas free as jury to assess any term of years within lawful range forenhanced punishment.HELD: Based on Tern v. McCuliough, TCA found Pierce inapplicable. As inMcCullough, t/j granted Ws request for new trial.This action did not demonstratevindictiveness. Second, t/j hadno personal stake in prior conviction. If new t/j had been calledupon to assess punishment, there would have been different sentencersand Pierce presumption of vindictiveness would notapply. However, even if Pierce were a plicable,TCA found therecould have beenanother basis for tria f attorney not telling D thatt/j would belocked into prior punishment; new facts include: Wsfailure to appear, bond forfieture at second trial, and inclusion offive prior arrests in PSI not known to first t/j. Under allthesefacts, D did not satisfy two part test of Stricklnnd v. Washington,166 US. 668 (1984). Ws attorney satisfied standard of counsel"reasonably likely to render and rendering reasonably effective as-~istance!'TEXAS o. McCULLOUGH: D in McCullougk was convictedof mwder and received 20 years from jury at first trial. T/Cgranted new trial based on prosecutorial misconduct. Atsecond trial, t/j assessed punishment at 50 years, enteringfindings to justify the greater penalty imposed at the secondtrial ...-.-that .... two State's witnesses. who had not testified at the~~ - ~~first trial, added to credibility of key prosecution witnessesand detracted from Ws credibilitv and from defense witness;ncwtestimony dirwlly implicated Din murder andshcd new light on his life and conduct; and at second trial itwas learned for first time D had been released from prisononlv four months before murder. S/Ct. held due prowscla&e was not violated by impositionof 50 year sentence.Nothing in McCulloughfacts provided a basis for a Piercepresumption of vindictiveness - t/j at second trial providedan on therecord logical, non-vindictive reason for pesterpunishment. ~orehp&tantl~, even if Pieroe prcsimptiondid apply, t/j's finding for imposing greater punishmentovercame that presumption.~ ~ - ~ ~D1SSENT:Thc three judgeminority castigatcsmajorityooinion because it iudees the effectivenessof trial attorneyii 1981 based on ai9& opinion, and by so doing turns a .deaf car to thechant that comwtencvof rcprescntation isnot be judged by hind-sight.lohnnie Earl LINDSEY, No. 960-86 -on D's Motion forRehearing; Opinion by Judge Davis; Judges Onion, Clinton,Campbell and Duncan Dissent; November 23,1988.STATUTE OF LIMITATIONS - SEXUAL ASSAULT:This appeal involved the issue of whether Ws trial was barredoy statuteof limitations. It involves two 1983 amendments toV.A.C.C.P. On original submission, conviction was affirmed;TCAjtands by original opinion.1st amendment to Article 12.01 lengthened statute of limita-:ions for oHense of aggravated rape to-five 2nd amendment:nxtcd defense of sexual assault and prospectively abolished oflenseof rape; it further created a statuteof limitations for sexualxssault of 5 vcars. witha 3 years statuteof limitations for allothcrfelony offeises.Issue on appeal is whether the 2nd amendment implicityrepled 1st &ndment, thereby crratinga thrce ye& statuteofimitations for the former offense of aggravated rape. TCA huld itiid not hause effea of 2nd amendment was to create new ofbnseand abolish rape perspectiuely. Thus, 1st amendment did:reate anew statute of limitations for aggravated rape which apdied to D. Because D was tried within the5 year statute of limita-.ions applicable at the time of his indictment, conviction waslffirmed.Sammy Joe ADKINS, No. 512-87 - On D's PDR: Opinionby Judge Davis, with Judges Miller and White Concurringinresults; Dissenting Opinion by Judge Clinton,[oined by Judges Campbell and Duncan; DissentingJanuary 1989

Opinion by Judge Teague; November 23,1988.C/A reveKed at 675 S.W.2d 604.TCA remanded at 717 S.W.2d 363.C/A affirmed at 726 S.W.2d 250.APPELLATE PROCEDURE - SCOPE OF REVIEW FOGLOWING REMAND:FACTS:C/A originally rever&for.failure to suppress- evidence following invalid warrant. TCA vacated that judgment,remanding for determination of whether exigent circumstances existedtosupportwarrantless arrest. On remand, C/A found therewereno exigent circumstances to justify a warrantless arrest, butaffirmed under Article 14.01 V.A.C.C.P. (police officer may arrestoffender without warrant for any offense committed in hispresence or view). D claimed there was ermr when C/A did not'limit its review to thequestion on remand. TCA disagreed.t ken case is remanded to lower appellatec&, jurisdictionoriginally granted to that court by constitutional and stiitutorymandate isfilly restored. Exercise of reviewing function of intermediateC/A is limited "only by its own discretion or avalidrestrictivestatute." Evenif this were not true, D liere placed toorestrictive a reading on the wording of the remand.WARRANTLESS ARREST - CRJME IN OFFICERS PRESENCE:Ws warrantless arrest was upheld under Article 14.01 -offensecommitted in officer' s presence. TCAconcluded that circumstancescombining personal observation of police officer who conductedsurveillance with prior knowledge of officers allowed thewarrantlessarrest.FACTS: One week before arrest, officer received information'rom confidential source that every week ona certain day, a man:losely matching D's description and driving a blue automobile.vould meet a man nicknamed Pollockat Nutt's Bar inMcCamey.Two men would then driveto Pollock'shouse, go inside for shorttime, then return to the car and exchange drugs for money. Informantalso said that he had personally seen man matching Wsdescription sell cocaine, hashish, marijuana and pills. OfficerRenfrow was familiar withPollock's reputation as narcotics distributor.Onday D was arrested,informant againcontact Renfrowto tell him that a meetingbetween the two men was occurring.While Renfrow went to secure search warrant, Deputy Bailebegan surveillance outside Pollock's house. He saw Pollock and Dleave the house, enter the blue car, and conduct the describedtransaction. D then drove to Nutt's Bar, picked up another person,and droveoff - when he was stopped by Renfrow and Bailey.TCAacknowledged that standing alone Ws conduct atPoflock's residence could appear to be as consistent with innocentactivity as with culpable behavior. However, special informationpassed to officers by thereliable and credible informant had beensubstantiated by personal observation of D's specified conduct.Thus, probable cause that an offense was thenoccurring wasestablishedwhen officer's personal observation was coupled withtheofficers' prior colleaive knowledge.TCA concluded arresting officers possessed more than sufficientknowledge, based on reasonably reliableinformant corroboratedby personal observation, to believe D was thencommitting and had committed a narcotics offense.DISSENT(IUDGE CLINTON): Three judge dissent focuseson statutoryconstructionof Article 14.01. Clear statutoryrequisite is that offense actually be wrnmitted.lnstead,majority substitutes "probable cause to believe an offense isbeing committed." Minority views this as making yet"another excision" of protection against warrantless arrestsand incidental searches.Augustine RODRIGUEZ,No. 133-88, On D's PDR: PerCtiriam Opinion; Judge OnionDissents and Dissents toRemand; November 23,1988.PAROLE LAW INSTRUCTION - HARM ANALYSISUNDER ALMANZA WILL NOT SUEFICE:C/A found giving of parole law jury charge unconstitutional,relying on TCA's opinion in Rose, 752 S.W.2d. 529 (1987). C/Athen a lied harm analysis consistent with test set out in Almnnm6% S.P2d 157 (l984), concluding D had not suffered harm whichwas "calculated to iniure the rights of the defendant!' Afterre&w was granted, YCA dcli&ed its opinion on rehearing inRose. This case was remanded for harm analysis under Rule81(b)(2)Tex.R.App.Pm.; the AImanzn test isnot theproperstandardfor review.NOTE: On November 23.1988, TCA remanded five addi-~ ~-tional PDR's for reconsiderati& in light of Rose. Additional-Iv. on November 30,1988,TCA remanded two decisions forEx Parte Lorenzo DON CHRISTIAN, No. 69,847 -WritRelief Denied: Opinion by Judge McCormick; JudgesTeague and Campbell Concur in Results (Relying on ConcurringOpinion in Ex Parte Brown, 757 S.W.2d 367); DissentingOpinion by Judge Clinton, Joined by JudgeDuncan;November 23,1988.HABEAS CORPUS - ENHANCEMENT - TCA WILLNOT CONSIDER?WFFICIENCY OF PROOF OF SE-QUENCE OF PRIOR CONVICTIONS IF THERE IS ANYEVIDENTIARY SUPPORT RECORD:FACTS:D was convicted bv ,, iuw , of burglaw of building; -. iury -found "true" the allegations of two priorc6nvkons alleged forenhancement; in accordance with law at rime, t/ientend mandatorylife sentence. D appealed conviction and TCA affirmed inper curiam opinion.D filed article 11.07 V.A.C.C.P post conviction attack, claimingstate failed to present evidence regarding proper sequence of enhancementallegations. TIJ entered fact findings and conclusionsof law, asserting D was challenging sufficiency of evidence.HELD: Sufficiencvof evidence claims cannot be raised in collateralattack. As lo& as rccord is not "totally devoid" of cvidcntiarysupport,TCA will not set asideconviction. Hem, Stateintroduced two pen packets as proof of D's two prior convictions.Majority found these pen packetsconstituted "someevidentiarysupport" for enhancement allegations. Thus, record was not totallydevoid of evidentiary support and relief was denied. This wastrucevcn though oneof the pen packasdid not contain any allegationof when that offense was committed.PRACTICE GUIDE: Remember that this case involved a collateralattack. Presumably the sameissue would have beensuccessful if raised on direct appeal.Kenneth GENTRY, No. 69,869 - Capital Murder ConvictionAffirmed: Opinion by Judge Duncan; Judges Onion,Significant Decisions Report

Clinton, Teague, Miller and Campbell Concur in Result;November 23,1988.CONFESSION - NOT SHOWN TO BE PRODUCT OFCOERCION - D.A.'S VIOLATION OP DISCIPLINARYRULE DID NOT CONSTITUTE REVERSmLE ERROR:D challeneed admissibilitvof his video tadconfession ontwo groundGfirst, that it was the product ofhutess; second, thatthe D.A. violated disciplinary rules when he talked to D knowingthat D had attorney. TCA repcted both atfacks.FACTS: D was confined in Dcnton County Jail after arrest forc/w's murder. On 10/12/83 Ws mothcr wasarrested for intmducinga gun into Denton County Jail during visit with D. Officershoused Ws mother in vrison cell directlv behind D. D claimedthat over thecourseoflthe next week tokm days, his motherconstantlycried and begged to be released. On 10/23/83 D asked jailofficials if there was anything he could do that might prompt hismothefs release. He was told to speak with Deputy Sheriff, towhomD madeinitial oml confession. Immediately after D confessedto killing c/w, Deputy asked D if he wanted to give videotaved statement. Daskedif eivine this statement would helw expkitehis mother's rclease fkm $. Deputy explained he hid noauthoritv tomakca "deal" with D. but that he would contactDA's office so D could discuss maker with someone who hadauthority.On thc samc day, D discussed matter with assistant DA, whotold Din thc presence of other wilnesscs that no dcalscould bemadeon Ws mothcfsbehalf. Dcswitc this. Deavca vidm ta~edstatcmcnt and was apprised of hi;rights bcfok confcssingtoc/w's murder. Afterwards it was learned that audio oortion ofvideo tape had failed. D was told of problem and ask& if he waswilling to make second statement on video tape - he consentedand anotherconfession was taken the following day.HELD: TCA rejected contention that second video tape statement was made under duress. It was D who initiated contact withauthorities to make confession. Additionally, authorities did not- euaranteeanvadvantaee to D or collateml benefit to his motherin cxchangc tor confcszon. TCA found that at most, D was opcratinp,undcr misa~vrchension that if hcmadestatement.authoriticsm&ht then conbiherdoing something for his mother.Evenassuming that Ws assertions about duress were true, hisclaim did not warrant reversal for three reasons: (1) record clearlvreflectsD initiated contact withauthoritiesat thebeginning;(2) 'there was no indication authorities used tactics whichcould beconsidered coercive; (3) there was scarcely suggestion of a"nexus" between treatment of Ws mother while in custody forsmuggling handgun into jail and Ws willful confession to capitalmurder charge.D also challenged admissibility of video taped confession becauseit was taken moments after he talked to DA. D claimedpmsecutor violated Article XU, Seaion8, DR7-104of the CodeofProfessional Responsibility - forbiding attorney communicationwith a party concerning a case whenit is known the party is representedby counsel.FACTS:Prior to making video tape statement D explicitlystated he did not want his court appointed attorney present. TCAfound that without a doubt D waived his right to counsel prior tomaking statcmcnt. Theonly issue left is whctherviolation'of a disciplinaryrule constitutes a violation of state law sufficient to invokeex&sionary rule. This issue was previously decidedadversely to Din Pannell, 666 S.W.2d % (1984), where TCA heldthat disciplinary ruIes of Code of Professional Responsibility arenot laws of the State of Texas for purposes of the exclusionaryrulein Article 38.23 V.A.C.C.P. However, whenever such a post indict-ment statement is obtained in violation of the disciplinary rules,reviewing courts will sub* the facts and circumstances surroundingWs waiver and statement to meticulous and exactingrcrutiny on appeal.NOTE: D was not claiming his Constitutional right to counselunder Sixth Amendment was violated by DA's conduct.Had he made this claim, TCA would have had to addressthe impact of Patterson o. nlinois, 108 S.Ct. 2389 (1988).PRACTICE GUIDE: Consider building a record at the triallevel from trial counsel that trial attorney was not notifiedof inteniew or given reasonable oppoaunity to be present.TCA citesTenth Circuit opinion in footnote which requiressuch notice and observes "this is obviously not somethingthat thedefendant alonecan waive."MISSING WITNESS - ATTACHMENT OR COI~TINUANCE?D claimed t/c erred in denying request for continuance and atachmentfor absent witness subpoenad by State.FACTS: State requested and served on Ws brother a subpoenawdering him to appear in court on 1/16/84. He was served withiubpoenaon 12/13/83. However, Ws trial did not begin with jluyelection until 2/1/&1. Bmtherwas not called as witness by State.3 called brother to testify on3/1/84. Brother was not present. Dhenmadeoral Motion fDr Continuanceand Attachment forxother; healso requested that trial be indefinitely continued'until such timeas the subpoenaed witness can be hund."T/Cienied both requests. At time subpoena wasapplied for anderved on brother he was Denton County resident. He laternoved to Georgia.HELD: No error inrefusingto issue witness attachment. Beausecasewas continued, brother was no longersubject to sub-Joenaissued by State. D did not follow proper steps forittachment.PRACTICE GUIDE: Article 24.14V.A.C.C.P. allows issuanceof attachment for resident witness beforedisobedienceofsubpoena. However, to obtain this attachment, party requestingit must file affidavit withclerk stating witnessismaterial witness and is about to move f~om county.An additional remedy after brother had moved to Georgiawould have been for D to attempt to secure his presence byutilizing Article 24.28 V.A.C.C.P.HELD:TCA also held t/c did not err in refusing request forontinuance. D did not comply withstatutoryprerequisites of Aricle29.13 V.A.C.C.P. (authorizing continuance after trial hasregun).PRACTICE GUIDE: Request for continuance must be in wit.ing and sworn to be D - alleging facts sufficient to constitutesurprise and diligence. Additionally, motion forcontinuanceisnot self proving, so record must contain affidavitor otherwise reflect what absent witness would have testifiedto and that theexpected testimony is material todefense.HereTCA found no diligence in attempting to obtain brothefsIresence. It was Ws duty to have brother again served withrmcess and failing to do so was lackof diligence. Additionally,[ere there was no showing of materiality. Although D filed m eIon for new trial asserting t/c should have granted continuanceJ secure missing witness, no affidavit accompanied motion Addionaally, at hearing on motion for new trial there was noteslmonyabout what bmthefs testimony would have been.Significant Decisions Report January 1989

that the defendant appeared to be canying the parking lot. These facts wereas consisasmall gun inhis hand. Thedefendant was tent with innocent activity as they werethen stopped. The facts were sufficient to with criminal activity so the stop was notjustify the initial detention.justified.Bran v. State, 571 S.W.2d 314 (Tex. Daniels v. State, 718 S.W.2d 702Cr.App. 1978): The defendant was a sus- (Tex.Cr.App. 1986): The defendant waspectin several rapes. An officer received a seen in an airport coming from a Miamiradio call concerning a rape, and drove to flight. His eyes met with another manthe defendant's house. The defendant ar- deplaning from the same flight. After arived a few minutes later and the officer brief nod, they proceeded down the conrecognizedhis car. The defendant fit the course looking around nervously. In thedescription oftheassailant described inthe baggage claim area, one man handed hisradio call, and was seen wearing jeans but- bag to the other and went to the restroom.toned only at the top and bottom, and no Upon his return, the two men started talkundernear.The facts supported the deten- ing and joking until a white suitcase artion.rived. The stop thereafter was not sup-Milton v. State, 549 S.W.2d 190 (Tex. portedbyareasonablesuspicionindicatingCr.App. 1977): An informant told officers criminal activity.that he had personally observed that the Beasley v. State, 674 S.W.2d 762 (Tex.defendant had heroin on his person. He Cr.App. 1982): Two officers received adescribed how the heroin was packaged, radio call that suspicious people wereandsaidthatthedefendantcouldbelocated parked in a residential area of Mesquite.at the Yellow Cab Cafe. Within five They pulled up head-on to a pickup truckminutes after surveillance was set up at the parkedlegally on the right side ofthe road.cafe, the defendant was seen walking Thedefendantswerestandingattherearoftoward the cafe. When the defendant ap- the truck, the doors were closed, and theparently observed a marked patrol car hun hood was ajar. The defendants cooperatedthecomer, heentered thecafe as ifto avoid with officers and indicated that the truckdetection. The stop shortly thereafter was was broken down, and they were waitingjustified on the facts.for someone en route to help them. AnAmorella v. Stare, 554 S.W.2d 700 N.C.I.C. checkindicated thatthemen were(Tex.Cr.App. 1977): The defendant was known offenders. The facts did not showseen standing by an open t ~nk of a car the officers had any particularizedparked outside a Woolco Store not then knowledge that the defendants wereopen forbusiness. As theofficers drove by, engaged in criminal activity.the defendant closed the trunk, got into the Johnson v. State, 658 S.W.2d 623 (Tex.car, and drove away. The events were ob- Cr.App. 1983): An officer observed theserved at 1:30 a.m., in a high crime area. defendant's truck parked in aMcDonald'sThe stop was justified.Dzonpson v. State, 533 S.W.2d 825restaurant at 5:00 a.m., when therestaurantwasclosed. Thebed ofthe truckwasload-(Tex.Cr.App. 1976): The male defendant ed with furniture. The facts did not supportwas seen walking in a high crime area at a stop.about 1:00 am., canying a suitcase with a Schwartz v. State, 635 ~.~.2d 545woman's name on the identification tag. (Tex.Cr.App. 1982): The defendant wasThe following are Texas cases where seen leaning towards the middle of histhe facts were found insufficient to justify pickup when a police car drove by.the stop. Faulk v. State, 574 S.W.2d 764Comer v. State, -S.W.2d- (Tex (Tex.Cr.App. 1979): The defendant wasCr.App. No. 265-84, opinion on original stopped on the basis of apolicereport consubmissiondelivered April 9, 1986) cerning a "young black male" suspect in a(opinion on rehearing delivered April 13, robbery. He had been observed bending1988): Police observed the defendant and fonvard in his car.another male sitting in the cab of a pickup Cortinas v. State, 571 S.W.2d 932truckin the parking lot of a restaurant. The (Tex.Cr.App. 1978): The defendant wasinterior dome light was on and the two seen canying a sack which could contain amen were engaged in some activity con- bottle of beer near a robbery. The officercentrated on the seat between them. The stoppedthedefendant,butnotedthatbedidtruck pulled away as the officers entered not precisely fit the description of the rob-ber. The officer detained the defendant onthe grounds that the description givenmayhave been incorrect. A knife seized as aresult of the stop was not admissible intoevidence.Shaffer v. State, 562 S.W.2d 853(Tex.Cr.App. 1978): The defendant wasseen driving at a slow rate of speed.Tfmnell v. State, 554 S.W.2d 697(Tex.Cr.App. 1977): A policemansaw thedefendant and two other men seated insideaparked carin a well-lighted hospitalparkinglot at 2:16 a.m. The officer knew that anearby Kraft Food Company plantoperated 24 hours a day, but decided to investigate.The vehicle moved away whenthe officer approached the parking lot.Armstrong v. State, 550 S.W.2d 25(Tex.Cr.App. 1977): The defendant wasseen driving a car which appeared to havebeen spray painted.Leighton v. State, 544 S.W.2d 394(Tex.Cr.App. 1976): The defendant wasseen driving a white Fiat which officersbelieved was parked in front of a house thathad been burglarized.2. Roadblock detentions.In Dela~wre v. Prorue, 440 US. 648,99 S.Ct. 1391.59 L.Ed.2d 660 (1979), theSupreme Court considered the validity ofrandom stops ofmotorists intheabsenceofspecific, articulable facts indicating thatcriminal activity bas occurred. The Courtnoted that the Fourth Amendment applieswhen the State stops and detains an individualin an automobile even if the purposeofthestop is limited andthedetentionis quite brief. The question, however, waswhether the important ends sought by thespot checks, specifically valid licensing ofthe drivers and proper registration of thevehicles, justified the intrusion effected bythose checks.The Court concluded that the intrusionwas notjustified. Therandomstopsdidnotserve to disclose unlicensed drivers ordeter them from driving, nor was the stopnecessary to determine whether vehicleregistration requirements were met. Themarginal contribution to roadway safetyresulting from spot checks did not justifythe intrusion. Also, the serious possibilityof abuse by the officers since their discretionwas unbridled removed the spotchecks from permissible regulatory or adnlinistrativesearches.The Court held that stopping an auto-January 1989 I VOICE for the Defense 21

mobile and detaining the driver were unreasonablein the absence of an articulableand reasonable suspicion that the driverwas unlicensed or the vehicle was notregistered. The Court was careful to notethat the holding would not prevent a Statefrom developing methods for spot checkswhich wereless intrusiveordidnot involveunre~~ained police discretion.In Texas, prior to the Prouse decision,suspicionless license checks were authorizedunderArt. 6687b, Sec. 13, V.A.C.S.,which provided that any peace officercould stop and detain any motor vehicle inorder to determine whether the dnver hada valid license. Such stops were traditionallyprohibited if used as a subterfuge tocover up an unlawful stop based only onmeresuspicion. SeeMcMillan v. State, 609S.W.2d 784 (Tex.Cr.App. 1980), at 787,citing White v. State, 574 S.W.2d 546(Tex.Cr.App. 1978). See also Fatemi v.State, 558 S.W.2d 463 (Tex.Cr.App.1977).The Prouse decision was not given retroactiveeffect. See Luckett v. State, 586S.W.2d 524 (Tex.Cr.App. 1979). Thus, forstops conducted before that decision wasdelivered, the Court of Criminal Appealsdeferred consideration of the continuingviability of Art. 6687b, Sec. 13, V.A.C.S.See Meeks v. State, 692 S.W.2d 504(Tex.Cr.App. 1985)(roadblock was conductedon November 3,1977).The Court recently reconsidered theroadblock issue in a plurality decisiondelivered in Webb v. State,739 S.W.2d 802(Tex.Cr.App. 1987). In that case, officersset up a license check roadblock close inlocation to an establishment which sold alcoholicbeverages. In fact, the purpose ofthe roadblock was a d.w.i. check. TheCourt found that theroadblock wasproperlyconsidered a combiiation d.w.i. andlicense check.After holding that the defendant, whowas stopped, was seized for FourthAmendment purposes, the Court reviewedthe federal law regarding automobiledetentions. The Court held that suspicionlessstops were considered with regard tothree factors: the government's interest,the officers' discretion, and the intrusioneffected upon the individual. Based uponthese factors, the instant d.w.iAicensecheck was impermissible. Onpage 812, thecourt noted that under proper circumstances,aroadblock operation set up solely todetermine motorists' sobriety may be constitutionallypermissible under both thestate and federal constitutions. The instantroadblock, however, lacked proper constitutionalsafeguards and operationalguidelines to protect motorists from unreasonableseizures. The stops were madeas a subterfuge to conduct general investigationof the motorists. The decision wasonly a plurality, however, and the benchand barknst &nit a fin31 dctcrnlination onTex;~s n)adblocks in the future.3. Public and plain view exceptions.a. The federal mle.Thedocttineoftheplainviewexceptionto the warrant requirement permits an officerto seize evidence or contrabandwithout a warrant iftheofficer is ina publicplace and observes the evidence or contraband(public view), or if the officermade a legitimate intrusion upon thedefendant's privacy right when the item isdiscovered (plain view). This dochine ispredicated on the notion that if the officerhas legally observed an object in plainview, the owner's privacy interest withregard to the item observed is either nonexistentbyvirtueofthepublicobservation,or is vitiated by the officer's legal intrusion.The only interests remaining arepossessory. The doctrine was recently articulatedinTerns v. Brown, 460 US. 730,103 S.Ct. 1535,75 L.Ed.2d 502 (1983).In that case, the defendant's w wasstopped at night during a routine drivers'license check. A policeman shined hisflashlight into the defendant's car and sawan opaque, green party balloon, knottednear the top, fall from the defendant's handto the seat beside him. Based on his narcoticsexperience, the officer was awarethat drugs were frequently packaged insuch a manner. While the defendant wassearching his glove compartment for hislicense, the officer noticed a small plasticvial, loose white powder, and an open bagof balloons in the glove compartment. TheCourt of Criminal Appeals reversed thecase because it found that before the plainview doctrine could be used to justify thesearch and later seizure, the officer had toknow that incriminating evidence was beforehim when he seized the balloon.Brown v. State, 617 S.W.2d 196 (Tex.Cr.App. 1981).Thesupreme Courtreversed. The Courtnoted that in the plurality decisiondelivered in Coolidge v. New Han~pshire,403 US. 443, 91 S.Ct. 2022,29 L.Ed.2d564 (1971), awarrantless seizureofprivateproperty was permitted if three requiremen&were satisfied:1. The police officer must be in ?i properposition to view the item or the initial intrusionmust belawhl.2. The officer must discover the iucriminatingevidence inadvertently (he orshemnst not know in advancethelocationof evidence intending to seize it).3. It must be immediately apparent tothe officer that the item observed may heevidence of a crime, contraband, or otherwisesubject to seizure.Thus, if the officers are engaged in alawful activity in a particular place whenthe evidence is discovered, they may seizeit immediately. The Court concluded thatno impermissible search occurred in theBrown case and a valid plain view seizurewas made.The most important section of theBrolvn case concerned the court's discussionof the "immediately apparent" requirement.The Texas Court of CriminalAppeals held thattheofficerhad to "know"that the evidence before him was incriminatorybefore the seizure was justified.The Supreme Court held that thisinterpretation was too strict. Rather, therule merely requires that the facts availableto the officer would warrant a reasonableperson to believe that the item observedwas evidence of a crime or contraband. Itdoes not require that the belief be corrector more likely true than false. A practical,nontechnical probability that the evidenceis incriminating or contraband is all that isnecessary. Based on the facts presented inBrown, theofficerreasonably believed thatthe balloon contained an illicit substance.In Arizona v. Hick., U.S. -,'I07S.Ct. 1149,94 L. Ed. 2d 347 (1987), theSupreme Court considered the limits of apermissible search conducted pursuant tothe plain view doctrine. In that case, a bulletwas fired through the floor of thedefendant's apartment and injurda manbelow. Police entered the apartment tosearch for the shooter, other victims, andweapons. While there, they seized threeweapons and discovered a stocking

they were stolen, read and recorded theserial numbers. Someitems weremoved tofind theserial numbers. Uponlearning thataturntablehad been takeninanannedrobbery,the police seized it. The defendantwas later indicted formhbery.The Supreme Court noted that the mererecording of the serial numbers did notconstitute a search. A search did occur,however, when theequipment was moved.Thissearch wasseparateandapartfromthesearch permissible when officers enteredthe apmtment to look for evidence relatedto the shooting. Smce a search was conducted,probable cause was required.The Court stated that the plain view exceptiondoctrine consisted of extending tononpublic places the authority for officersto make warrantless seizures in order tospare police from the inconvenience andrisk of obtaining a warrant. The Courtadded that even though the officers had aright to be where they were when theequipment was found, since the equipmentwas unrelated to the original basis for theirentry into the apartment, probable causewas required before it could be properlyseized.b. The Texas mle.Prior to the Brown decision, Texasdecisions focused on the "immediately apparent"requirement. Given the SupremeCourt's Brown decision, however, theholdings in cases such as S~rllivan v. State,626 S.W.2d 58 (Tex.Cr.App. 1981),Howard v. State, 599 S. W. 2d 597(Tex.Cr.App. 1980, and DeLao v. State,550 3.W.2d 289 (Tex.Cr.App. 1977), areprobably no longer valid.Since the Brown decision, the Court ofCriminal Appeals bas considered thepublic orplainview exception. In Williamv. State, 743 S. W. 2d 642 (Tex.Cr.App.1988), the defendant was seen driving asuspicions green pickup truck. When theofficer approached and asked the defendantfor his license, the officer observedabout an inch of the stock of a rifle stickingour from under a towel in the truckcab.'Ike officer lifted the towel and discovereda stack of guns.The Court held that the facts weresimilar to those presented in Arizona v.Hicks, and stated that the focus must beplaced on whether theofficer bas probablecause to believe that the evidence discoveredwas associated with criminal activity.The officer in the instant casedidnot have probable cause to connect thepresence of guns in the defendant's truckwith criminal activity. Thus, the seizurecould not be justified under the plain viewexception and the case was reversed.Another case was reversed in Wiite v.State, 729 S.W.2d 737 (Tex.Cr.App.1987). In White, police responded to a disturhamcallat an apartment complex, andwere advised that a fight was in progress inone of the apartments. Thedoor to theunitwas left open, and police stopped both meninside and asked for identification. Theunit manager asked the officers to examinethe damage to the apamnent apparentlyresulting from the fight. No damage wasfound, hut one officer saw a credit card ontop of a stove bearing a name not given bythe two men. Although the defendant toldthe officer the card belonged to a friend, theofficer checked with the police department,but thecard had not beenreported asmissing. The officer noticed a largeamount of female jewelry strewnabout thefloor and several stereos and personalproperty items scattered around the apartment.A backpack was found on the floorwith a name and address written on it.When the police checked with the policedepartment, they were informed that theperson whose name was written on thebackpack had fded a burglary complaint.After placing a telephone call to the ownerof the backpack and verifying that severalitems found in the defendant's apartmenthad been stolen from her two days earlier,the police arrested the defendant andseized the property.Thecourtof Criminal Appeals held thatthe search and seizure was not justifiedunder the plainview exception because thediscovery of the stolenitems wasnot inadvertent,nor was it immediately apparentthat officers had happened upon stolenproperty. The officers did not have pmbablecause to believe that they had discoveredstolen property after beingallowed inside the apartment to look fordamage.The Court noted that items in plainviewcould not be seized if the officers did nothave reason to believe that the items wereevidence or hits or instrumentalities of acrime. The Court then extended thatdoctrine to searches conducted pursuant tothe plain view doctrine. Since it was notimmediately apparent to the investigatingofficers that the residence was connectedto a crime, the officers did not have probablecause to further investigate. Moreover,thediscovery of theevidence was notinadvertent given that the officer's continuedinspection and cataloging of eachitem after finding the credit card indicateda systematic search for incriminating evidence.Adifferent result was reached in Millerv. State, 667 S.W.2d 773 (Tex.Cr.App.1984). In that case, an officer almost ranover the defendant when the officer droveinto an alley in a crime m. The officerjumped out of the car and asked the defendantif he was all right. As the defendantstood there, the officer noticed that thedefendant appeared to be intoxicated.When theofficer asked thedefendant whathe was doing in the alley, he said he was"keeping a low profile." The officerdecided to arrest the defendant for publicintoxication. He observed a bulge in thedefendant's shirt and assumed it could bea weapon. The taller officer shined hisflashlight at the shorter defendant, saw acigarette package in the defendant's pocketfrom which extended a little triangularshaped clear plastic baggie containing awhite powdery substance the officerbelieved to be a narcotic. The baggie wasextracted and the defendant was arrested.The Court of Criminal Appeals upheldthe seizure as acceptable under the plainview doctrine. The officer had a right to bewhere he was, in the alley, when theevidence was seen. Moreover, the officerhad probable cause to believe the baggie inthe defendant's pocket contained an illegalsubstance. Thus, the seizure was authorized.Since the officer was in a publicplace when he saw the baggie protrudingfrom the cigarette package, this case mayproperly be categorized as a public viewexception situation.January 1989 I VOICE for the Defense 23

The Probation Revocation HearingBy Judge Rch~rd Mays1. Re resenting a Defendant in aPr d: atlon Revocation HearingA. Pretrial Preparation1. Consult with the probation departmentand obtain a copy of or review thepresentencereport.2.L~theopinionofthepmbationofficerwho has supervised the defendant.3. Obtaincharacter witnesses.4. The employer's testimony may hevery helpful.5. Family witnesses - to show familyinterest inthedefendant, andwho willstickby the defendant if the defendant is given -probation.6. Make sure there is adequate time forpenting the evidence - schedule theheariag properly so that it is not a rush job.B. Know the Judge1. Find out about the court and its historyin assessing punishment.2. Personalfeelingsregardingbeingthededsion-maker,3. Ability to overeom pressure.4. Feelings toward particula kinds ofcrimes and criminals.C. Conduct the Hearing1. Brevity where possible.2. Fully develop thestrongestpositions,i.e. employment, age, lackof criminalrec-01x3, marital responsibilities.3. Present the mitigating aspects of theoffense.4. Show the remorsefulness of the defendantand present it appropriately (trialcounsel may inform court if the defendantis a bad witness).5. Show society wouldbehmedby incarceratingthe defendant, i.e. family condition.6. Eliminate the probability of fohmcriminality on the part of the defendant.7. Show the defendant can abide by theprobation conditions.8. Balance society's and thedefendantsneeds (not rights) in argument.a. The need to protect society £ram adangerous defendant.b. Probation would help the defendant,Judge Richard Mays was born andraised in DaNas, He obtained his undargraduateandlawdegreesfromtheUniwrsifyof Texas.Judge Mays was inprivatepractice withhis fatherfrom 1965-1967. He mw an assistantDistrict Attorney in the DallasCounty District Attorneys Ofice From1967-1973, during which time he ws theChief Prosecutor of Criminal DistrictCourt Numbers 2 & 3, and was the ChiefProsecutor in charge of the Dalh CountyGrand Jury. Judge Mays has been thepresiding judge of the 204th Judicial DistrictCourt in Dallas from 1973 to thepresentHe has been a speaker at EDLA seminnrsandafrequent contributor of articlesto the Criminal Defense PracticeM&dals Manual.his family, and aid the connnnnity.c. Defendant was exceptional probationer,not just aregular probationer.d. Defendant will get GILD., employment,etc.e. Give the court a reason not ta justpunish the defendant.Il. FundamentalsA. Arevocation of probation hearingis not a criminal trial. Jones v. State, 728S.W.2d801 (Tex.Crim.App. 1987);Munozv. State, 485 S.W.2d 782 (Tex.Crim.App.1972); Hulsey v. State, 447 S.W.2d 165(Tex.Crim.App. 1969); and Tate v. Sfate,365 S.W.2d 789 (Tex.Crim.App. 1963).1. Note -the Caurt of Criminal Agpeals has said: "A probation revowtionhearing is not an adversarial proceeding, acivilaction, ora Criminalprosecution:'butis administrative in nature and is a meansofprotecting society and rehabilitating offenders.Hill v. State, 480S.W.2d200,202(Tex.Crim.App. 1972) (and cases citedtherein), cert. denied, 409 U.S. 1078(1972).2. Probationer is not entitled to a jurytrial. Munoz,485 S.W.2d at783 (and casescited therein); see aka, Wickware v. State,486 S.W.2d 801, 803 [Tex.Crim.App.1972). It has beenconsistently held that theprovisions of article42.12 section 8 of theCode of Criminal Procedure precludes ajury trial at a revocation h&g. Wckwre,486 S.W.2d at 803 (and cases citedtherein).B. The allegations in a motion torevoke probation need not strictly complywith the requirements of an indicbment. LaBelle v. State, 692 S.W.2d 105(Tex.Crim.App. 1985); Denpsey v. State,496 S.W.2d 49,50 (Tex.Crim.App. 1973);and Gonvrlez v. State, 456 S.W.2d 53,55(Tex.Crim.App. 1970); see also, Wlcox v.State, 477 S.W.2d 900, 901 n.1 Vex.Crim.App. 1972).1. However, the allegations in the motionto revoke probation should fully informthe probationer so that he and hiscounsel will know what he will he calledupon to defend against. Dempsey, 496S.W.2d at 52; and Wilcar, 477 S.W.2d at901 n.1.2. More~ver, due process requires thatthe probationer be given adequate andprior notice so as to enable him to preparehis defense. La Belle v. State, 720 S.W.2d101,104 (Tex.Crim.App. 1986) (andcasescited therein); Kuenstler v. State, 486S.W.2d 367 @x.Ciim,App. 1972); andCampbell v. Stafe, 456 S.W.2d 91824 VOICEfor the Defense I January 1989

~ ~~~~ ~(Tex.Crim.App. 1970); see also, Youngerv. Stare, 685 S.W.2d 657, 660 (Tex.Crim.App. 1985).C. The standard of proof in a probationrevocation hearing is not as stringentas the standard of proof in acriminal prosecution; i.e., proof need notbe beyond areasonable doubt. Russell v.State, 551 S.W.2d 710, 714 (Tex.Crim.App. 1973, cert denied, 434 US.954 (1977); Keel v. State, 544S.W.2d 151,152 (Tex.Crim.App. 1976); Reed v. State,533 S.W.2d 35,37 (Tex.Crim.App. 1976);Scamardo v. State, 517 S.W.2d 293, 297(Tex.Crim.App. 1974); and Kelly v. State,483 S.W.2d 467 (Tex.Crim.App. 1972);seealso, Guillory v. State,487S.W.2d327,330 (Tex.Crim.App. 1972); and Durar~ v.State, 485 S.W.2d 923, 924 n.1(Tex.Crim.App. 1972).1. The standard of proof that the statemust meet in proving offenses upon whichthe State relies in a probation revocationhearing is by a preponderance of theevidence. Gomezv. State, 685 S.W.2d 333(Tex.Crim.App. 1985); Olrdona v. State,665 S.W.2d 492 (Tex.Crim.App. 1984);Jackson v. State, 645 S.W.2d 303(Tex.Crim.App. 1983); Shaw v. State, 622S.W.2d 862, 863 (Tex.Crim.App. 1981);and Scan~ardo, 517 S.W.2d at 298.2. NOTE: Chief Justice Onion hasremained consistently convinced that theproper burden of proof in a revocation ofprobation proceeding is "beyond a reasonabledoubt." Keel, 544 S.W.2d at 152n.1; Scanlardo, 517 S.W.2d at 299 (OnionI., dissenting); Sizenwre v. State, 496S.W.2d 80, 83 (Tex.Crim.App. 1973)(Onion, I., dissenting); and Kelly, 483S.W.2d at 480 (Onion, J., dissenting).D. Sufficiency of the Evidence; InGeneral1. The uncorroborated testimony of anaccomplice may be sufficient to support arevocation of probation. Howery v. State,528 S.W.2d 230, 233 (Tex.Crim.App.1975); Regalado v. State ,494 S.W. 2d 185(Tex.Crim.App. 1973); Mann v. State, 490S.W.2d 545,546 (Tex.Crim.App. 1973);Richardson v. State, 487 S.W.2d 719,721(Tex.Crim.App. 1972), cert. denied, 411US. 972 (1972); Kelly, 483 S.W.2d at472;Moreno v. State, 476 S.W.2d 684, 685(Tex.Crim.App. 1972); Barnes v. State,467 S.W.2d 437, 440 (Tex.Crim.App.1971); and Gonmlez v. State, 456 S.W.2d53 (Iex.Crim.App. 1970).2. A voluntary confession to the subsequentoffense, even though uncorroborated,constitotes sufficient evidencefor a court to revoke probation. Bush v.State, 506 S.W.2d 603, 605 (Tex.Crim.App. 1974); Hicks v. State, 476S.W.2d 670, 671 (Tex.Crim.App. 1972);and DeLeon v. State, 466 S.W.2d 573(Tex.Crim.App. 1971), questioned onother grounds in Guerra v. State, 518S.W.Zd815,817(Tex.Crirn.App. 1975).NOTE: When a confession is reliedupon by the State it is error for the court todeny probationerthe privilegeof testifyingsolely on the issue of voluotariness of theconfession, without subjecting himself tounlimited cross-examination by the prosecutionon other issues. Richardson v.State, 622 S.W.2d 852, 858 (Tex.Crim.App. 1981); and Masters v. State,545 S.W.2d 180 ('Iex.Crim.App. 1977).3. Where the cammission of the subsequentoffense is alleged and proved, nofinal conviction is necessary for therevocation of probation. Bradrhaw v.State, 518 S.W.2d 548, 549 (Tex.Crim.App. 1975); Manirtez v. State, 493S.W.2d 954, 955 (Tex.Crim.App. 1973);Beck v. State, 492 S.W.2d 536, 537(Tex.Crim.App. 1973); Guillory v. State,487 S.W.2d 327, 330 (Tex.Crim.App.1972); Oliver v. State, 482 S.W.2d 874,875 (Tex.Crim.App. 1972); Carr v. State,476 S.W.2d 329 (Tex.Crim.App. 1972);Day v. State, 474 S.W.2d 246 (Tex.Crim.App. 1971); and Mason v. State, 473S.W.2d 15 (Tex.Crim.App. 1971).E. Remember:A probationer is on probation until themoment of revmation. Nichols v. State,501 S.W.2d 333, 335 (Tex.Crim.App.1973); Wilson v. State, 471 S.W.2d 416(Tex.Crim.App. 1971), questioned onother grounds in, Guerra v. State, 518S.W.2d 815 (Tex.Crim.App. 1975); andDeLeon v. State, 466 S.W.2d 573, 576(Tex.Crim.App. 1971), questioned onother grounds in, Guerra v. State, 518S.W.2d 815 (Tex.Crim.App. 1975).Ill. Requirementsfor Revocationof ProbationA. Once granted, probation shouldnot be arbitrarily withdrawn by thecourt; rather, probation can be withdrawnonly by lhe process of revocationof .~- orubatiun. Wezrer v. Stnre. 542 S.W.2d403, 405 (Tex.Crim.App. '1976); andBarnes v. State, 467 S.W.2d 437, 441(Tex.Crim.App. 1971).B. A court, once having grantedprobation, must find that the probationerhas violated a condition ofprobation in order to revoke, af€er ahearing in accordance with article 42.12section 8 of the Code of CriminalProcedure. Wester, 542 S.W.2d at405-06,Jackson v. State, 464 S.W.2d 153(Tex.Crim.App. 1971); Campbell v. State,456 S.W.2d 918, 922 (Tex.Crim.App.1970); and Wozencraft v. State. 388S.W.2d 426 (Tex.Crim.App. 1965); seealso, United States v. Taylor, 449 F.2d 117(9th cir. 1971); DeGay v. State, 741S.W.2d 445, 449 (Tex.Crim.App. 1987);Rogers v. State, 640 S.W.2d 248, 252,Tex.Crim.App. 1982); and Scanmdo v.State, 517 S.W.2d 293, 297 (Tex.Crim.App. 1974).The burden of proof is on the State toshowaviolationoftheconditions ofprobation.Shaw v. State, 622 S.W.2d 862, 863(Tex.Crim.App. 1981); Battle v. State, 571S.W.2d 20, 22 (Tex.Crim.App. 1978);Perry v. State, 459 S.W.2d 865, 867(Tex.Crim.App. 1970); Campbell v. State,456 S.W.2d at 918; andZane v. State, 420S.W.2d 953, 954 (Tex.Crim.App. 1967);cj, Jones v. State, 560 S.W.2d 673, 675(Tex.Crim.App. 1978) (The state's burdenin such cases is by a preponderance of theevidence).Where the basis of a revocation ofprobation is a violation of a penal law, i.e.,an alleged violation of the condition thatthe probationer not violate the law, the allegationscontainedin themotion torevokemust give fair notice and should allege aviolation of the law, hut need not he asprecise as are the allegations for an indictment.Crawfodv. State, 624 S.W.2d 906,908 (Tex.Crim.App. 1981); Chacan v.State, 558 S.W.2d 874, 876 (Tex.Crim.App. 1977); Acton v. State, 530S.W.2d 568, 570 (Tex.Crim.App. 1975);Diaz v. State, 516 S.W.2d 154, 156(Tex.Crim.App. 1974); Fowler v. State,509 S.W.2d 871, 873 (Tex.Crim.App.1974); Rhodes v. State, 491 S.W.2d 895,896 (Tex.Crim.App. 1973); Vance v. State,485 S.W.2d 580, 581 (Tex. Crim.App.January 1989 1 VOICE for the Defense 25

1972); Ganble v. Sip, 484 S.W.2d 713,714 (Tex.Crim.App. 1972); Jamson v.State, 473 S.W.2d 40,42 (Tex.Crim.App.1971); and Trcka v. State, 744 S.W.Zd677,680 (Tx. App. -Austin 1988, no pet.).1. Whenthe motiontorevoke probationfails to fully inform the probationer, he isdenied the rudiments of due process. La-Belle v. State, 720 S.W.2d 101 flex.Crim.App. 1986); Caddell v. State, 605S.W.2d 275,277 (Tex.Crim.App. 1980);Garner v. State, 545 S.W.2d 178, 179(Tex.Crim.App. 1977); Graham v. State,502 S.W.2d 809, 811 (Tex. Crim.App.1973); and Kuenstler v. State, 486 S.W.2d367,370 (Tex.Crim.App. 1972).When the allegations in the motion torevoke fail to fully inform the probationer,and the trial court has refused to sustain anexception timely filed, the probationer isdenied the mdiments of due process; theaccused is entitled to have the motion torevokeset forthin clearlanguagetheviolationrelied upon. Garner, 545 S.W.2d at179. In Gamer, it was held that referenceto the indictment was not sufficient notice537 S.W.2d 16,18 (Tex.Crim.App. 1976);andScamardo, 517 S.W.2d 293,298 (Tex.Crim.App. 1974). NOTE: Chief JusticeOnion consistently holds that the properstandard of proof is beyond a reasonabledoubt. Kelly, 483 S.W.2d at 480.2. While the trial court is the fmder offact and the sole judge of the weight andcredibility to be given to the witnesses, thejudge does not have absolute discretion inthedecisiontorevoke probation. Probationmay not be temnated without an a h -ative findiig of a violation of the conditionsof probation. Campbell, 456 S.W.2datY22; and Wozencrap, 388 S.W.2dat426.That fmding must undoubtedly be supported by some degree of sufficientevidence. Robens v. State, 537 S.W.2d461,463 (Tex.Crim.App. 1976); Scarnardo,517 S.W.2d at 297; andKubat v. State,503 S.W.2d 258, 260 (Tex. Crim.App.1974).3. Standard employed by the 5th circuitCourt of Appeals: "A revocation of probationdoes not require proof sufficient tosustain acriminal conviction. All that is reof the offense relied on for therevocation. auired is enoueh evidence. within a sound2. NOTE: The Court of Criminal Ap- Gdicial discreTion, to satisfy the districtpeals has held that the due process clause judge that the conduct of the probationerof the 14th amendment does apply to has not met the conditions of the pmbarevocationofpmbationhearings. Herndon tion." United States v. Garur, 484 F.2d 88,v. State, 679 S.W.2d 520, 522 (Tex. 89 (5th Cir. 1976); see also, United StatesCrim.App. 1984); and Wright v. State, 640 v. Evers, 534 F.2d 1186, 1188 (5th cir.S.W.2d 265,269 (Tex. Crim.App. 1982). 1976), cen. denied, 429 U.S. 1024 (1976).3. Further, the allegations in the motion 4. NOTE: Probation revocation is ato revoke probation should specifically matter entrusted to the sound judicial dispointout what the new offense is and in cretion of the district court, and only uponwhat way it is a violation of the conditions a clear showing of abuse of that discretionof probation. Garner v. State, 545 S.W.2d will the district court's decision be dis-178, 179 (Tex.Crim.App. 1977); and turbed. Bums v. United States, 287 US.Mason v. State, 495 S.W.2d 248, 250 216 (1932); andPickensv. Texas,497F.2dflex.Crim.App. 1973);seealso, LaBellev. 981,982 (5th cu. 1974), cen. denied, 419State, 720 S.W.2d 101, 104 (Tex. US. 880 (1974).Crim.App. 1986); and Matte v. State, 572S.W.2d 547,549 flex.Crim.App. 1978).D. Quantum of Proof Required toRevoke Probation.1. The majority of the Court of CrirmnalAppeals has held that apreponderance ofthe evidence must support the motion torevoke probation. Gomez v. State, 685S.W.2d 333, 336 (Tex.Crim.App. 1985);Cardona v. State, 665 S.W.2d 492, 493(Tex.Crim.App. 1984); Jackson v. State,645 S.W.2d 303, 305 (Tex.Crim.App.1983);Shawv. State, 622S.W.2d 862,863(Tex. Crim.App. 1981); Johnson v. State,E. Other Grounds for Revocation1. Revocation based upon failure to payrestitution, supervisory fees or costs,failure to suppoa dependants or failure toobtain employment will be invalid unlessthe evidence shows that the failure waswillful and intentional. Hill v. State, 719S.W.2d 199,201 (Tex.Crim.App. 1986);Jones v. State, 589 S.W.2d 419 (Tex.Crim.App. 1979); Basaldua v. State, 558S.W.2d2,7 (Tex.Crim.App. 1977); Curtisv. State, 548 S.W.2d 57, 58 (Tex.Crim.App. 1977); Herrington v. State, 534S.W.2d 331, 334 (Tex.Crim.App. 1976);Germany v. State, 486 S.W.2d 324, 325(Tex.Crim.App. 1972); and Pool v. State,471 S.W.2d 863, 864 (Tex.Crim.App.1971). But see Standfield v. State, 718S.W.2d 734 (Tex.Crim.App. 1986) (Statebears the burden of proving that an allegedfailure to pay fees and costs was intentional,but the probationer has the burden ofproving inability to pay as an affirmativedefense).2. Revocations based upon associationswith bad persons are invalid unless theevidence shows that the defendant hadknowledge of thebadcharacter of his companions.Gill v. Sfate, 556S.W.@354,355(Tex.Crim.App. 1977); Prince v. State,477 S.W.2d 542, 543 (Tex.Crim.App.1972); and Jackson v. State, 464 S.W.2d153,155 (Tex.Crim.App. 1971).3. Where revocation is based on afailure to avoid injurious or vicious habits,the state must allege and prove that therewas a habit and that the habit was injuriousor vicious. Campbell, 456 S.W.2d920-21.4. Where revocation is based on failureto report to the probation officer as'directed, the statemust introduce evidenceofwhen and how often the probationer wasdirected to repoa to the probation officer;lackof suchevidence willdefeatthe state'smotion to revoke. Campbell v. State, 420S.W.2d 715,716 (Tex.Crim.App. 1967);see also, Brown v. State, 508 S.W.2d 366,368 (Tex.Crim.App. 1974).5. Where revocation is based on thefailure by the defendant to remain withinthe boundaries of the state or a specifiedcounty, the state must show that theprobationer went outside the limits,generally for a substantial length of time,and that he did so without the permissionof the probation officer. McDonald v.State, 442 S.W.2d 386 (Tex.Crim.App.1969).IV. Constitutional RightsofProbationer in a RevocationProceedingA. It is clear from case law that aprobationer has a right to counsel at aprobation revocation hearing.1. An order of revocation bas beenrendered void by a showing that theprobationer was denied the right to counselat a revocation proceeding. Ruedas v.State, 586 S.W.2d 520, 523 (Tex.Crim.App. 1979); Exparte G~runan, 55126 VOICE for the Defense I January 1989

S.W.2d 387, 388 (Tex.Crim.App. 1977);andfipane Flores, 537 S.W.2d 458,459(Tex.Crim.App. 1976).2. A probationer may request counselinaccordancewitharticle42.12section 3b.Tex. CodeCrim. Proc. Ann. (VemonSupp.1988).3. Indigents. The United States SupremeCourt has held that as a matter ofconstitutional law an attorney must be affordedan indigent accused at aprocedmgfor revocation of probation, Mempa v.Rhay, 389 U.S. 128 (1967).4. As is the case with most other constitutionalrights the right to counsel maybe waived.B. Right to a Speedy Trial: 6thAmendmentNOTE: Although arevocation ofprohationproceeding is not a criminal trial, theprobationer does have a constitutionalright to a speedy trial. Champion v. State,590 S.W.2d 495, 498 (Tex.Crim.App.1979); and Fariss v. lipps,463 S.W.2d 176flex. 1971); see also, Flournoy v. State,589 S.W.2d 705, 709 n. 17 (Tex.Crim.App. 1979). In Hilts v. State, 476S.W.2d283 (Tex.Crim.App. 1972), it washeld that a delay of over one year in thefiling of a motion to revoke probation forleaving the county without permission didnot violate the right to a speedy trial wherea hearing was conducted within 13 daysafter the f hg of a motion to revoke andthe prohationer made no motion for aspeedy trial at any time or moved to setaside the motion to revoke in view of thedelay.V. Right to BailA. Misdemeanor RevocationA prohationer, convicted of a misdemeanor,is entitled to hail, as the reasonsfor holding the prohationer in jail are notso compelling as are thosein a felony case.Ex parte Smith, 493 S.W.2d 958, 959(Tex.Crim.App. 1973).B. Felony Revocation1. The Court of Criminal Appeals hasheld that article I section 11 of the TexasConstitution, protecting the right of bail,does not apply to a probationer who hasbeen arrested for a probation violation. Exparte Jones, 460 S.W.2d 428 (Tex.Crim.App. 1970). As the Court said: "Thepetitioner (probationer) is thus not entitledto hail as a matter of right pending a hearingon the State's motion to revoke probation."460 S.W.2d at 431; Ex parteAinmwrth, 532 S.W.2d 640, 641(Tex.Crim.App. 1976); and Valdez v.Sfate, 508 S.W.2d 842, 843 (Tex.Crim.App. 1973).2. Article42.12section8(a) ofthecodeof Criminal Procedure reads as follows: ''Ifthe defendant Ins not been released onbail, on motion by the defendant the courtshall cause the defendant to be broughtbefore it for a hearing within 20 days offiling of said motion. . . ."Tex. Code Crim.Proc. Ann. (Vernon Supp. 1988) (emphasisadded).a. In construing this amendment, theCourt of Criminal Appeals noted thatwhile the legislative amendment maynot alter the scope of constitutionalprotection (article I section 11, TexasConstitution), theamendmentraisedthequestion of whether arlicle 42.12 section8(a)created astatutoryright of hail.The Court held that while a prohationeris still not entitled to hail as a matter ofright pending a hearing on the State'smotion to revoke probation, aprohationer may be granted bail by thetrial court in the exercise of that court'ssound discretion. Ex pane Ainsworth,532 S.W.2d 640, 641 (Tex.Crim.App.1976).b.Inaddressingthe"within20days"requirementthe Court of Criminal Appealshas held that "when confrontedwith a request for a speedy revocationhearing pursuant to Section 8(a), thetrialcourtshallconductahearing withinLawyers' Assistance Committee MembersDistrict 1: District 5:Charles RittenbertyJackZlmmermanand JlmLavine500 Fisk Building Five Post Oak Park, Ste. 1130Amarillo, Texas 79101 Houston, Texas 77027(806) 372-1217 (713) 552-0300Mark HallKent SchafferP.O. Box 21873000 Texas Commerce TowerLubbock, Texas 79408600 Travis St.(806) 763-4617 Houston, Texas 77002District 2: (713) 228-8500Jim Bob0 District 6:409 North Test Robert YzaguirreOdessa, Texas 79761821 Nolana(915) 332-0676 McAllen, Texas 78501Rod Ponton (512) 682-4308P.O. Box DDouglas TinkerEl Paso, Texas 79951622 S. Tancahua(915) 532-1601 Corpus Christi. Texas 78403District 3: (512) 882-4378Ed Mason District 7:12221 Merit Dr., Ste. 850 Gerald GoldsteinDallas, Texas 752512900 Tower Life BIdg.(214) 991-0200 San Antonio, Texas 78205Jack Strickland (512) 226-1463500 Main St., Ste. 201 District 8:Fort Worth, Texas 76102Lynn Malone(817) 338-1000District 4:McDonald, Harmon, Malone andCanoniwFred R. "Buck" Files, Jr. P.O. Box 1672109 West Ferguson Waw, Texas 76109Tyler, Texas 75702 (817) 754-7317(214) 595-3573January 1989 I VOICE for the Defense 27

twenty days of the request or release ofthe defendant." Aguilar v. State, 621S.W.2d 781, 786 (Tex. Crim.App.1981) and Wilson v. State, 645 S.W.2d932,933 (Tex.App.-Dallas 1983, nopet.).1. Habeas Corpus is the properremedy if thetrial court fails to complywith the requirements of Section8(a). Ex parte Trillo, 540 S.W.2d728, 731 (Tex.Crim.App. 1976),overruled on other grounds in,Aguilar v. Sfate, 621 S.W.2d 781,785 (Tex.Crim.App. 1981).NOTE: Thedefendantmaydot awaitthe revocation of his probation andthen present a violation of the twenty-dayrequirement as a pund oferr& on appeal - such relief mustbe obtained prior to the defendant'sprobation revocation. Aguilar, 621S.W.2d at 786.see also, Robens v.State, 627 S.W.2d 183 (Tex.Crim.App. 1982).VI. Role of the Trial Judge inRevocation of Probation ProceedingsA. JurisdictionThe court which granted probation isthe court which has the jurisdiction torevoke position.B. Role of the Judge at HearingSince theprobationeris not entitled to ajury, the trial judge is the sole trier of Edctsin a revocation proceeding; the court alonedetermines the credib'llity of the witnessesand the weight to be given to their testimony.Thejudgemay accept orrejectanypart of the evidence offered. Willey v.State, 501 S.W.2d84,86 (Tex.Crim.App.1973); and Vancev. Smte,478S.W.Zd535,536 (Tex.Crim.App. 1972).C. Judicial Notice1. The trial judge in a revocationproceeding may take judicial notice of theindictment,thejudgment,theorderplacingthe defendant on probation, theofticer'smotiontorevokc.thewmnt.and317,318 (Tex. Crim.App. 1972): see also,Baumert v. State, 709 S.W.2d 212, 213-(Tex. Crim.App. 1986); and Wilson v.Srate, 677 S.W.2d 518, 523(Tex.Crim.App. 1984).Morwver,Clelandv. State, 572 S.W.2d 673 (Tex.Crim.App.1978) held that testimony on which thecourt took judicial notice is not generallyincluded in the record on appeal.2. Where the alleged violation is a newoffense and the ombationex has bee^ triedon the new offinse, the judge may takejudicial notice of thosefacts shown at trialif he presided over the trial. Barnenfez v.State, 500 S.W.2d 474, 475 (Tex.Crim.App. 1973), questioned in, Mc-Cown v. State. 739 S.W.2d 655 655(TexApp. - Beaumont 1987, no pet.)(Questioned the continued validity Of therule annonnced in Bunientez in light ofrule 201@) of the Rules of CriminalEvidence); and Stephenson v. Stare, 500S.W.2d 855, 857 (Tex.Crim.App. 1973);seealso, Bradleyv. State, 564 S.W.2d727,729 (Tex.Crim.App. 19781.D. If probation is revoked, the courtmay proceedwiththeaeasiftherehadheen no grant of probation. Tex. CodeCrim. Proc. Ann. art. 42.12 see. 8 (VernonSupp. 1988).Redoction of Sentences: Article 42.12section 8(a) provides that where probationisrevokedandthecourtdeterminesthat thebest interests of society and of theprobationerwillbeserved by ashortertermof imprisonment, the court may reduce theterm of im~risonment originally assessedto any term not less than the minimumprescribed for the offense of whichprobationer was convicted. Tex. CodeCrim. Proc. Ann. (Vernon Supp. 1988).E. In revoking probation, the trialcourt should make fSndings of fact andeonelusions of law and have themset outin the order; the order should then beentered into theminutes.NOTE: A written orderrevoking probationwill conbol over an oral pronouncementof thc hial iuds. Euhonks v. Slure.theshowcausenotice.~o~oofofsnchex- 599 S.W.2d 815, 817 (Tex.Crim.App.hibits is required. Hollowy v. State, 666 1980); Agullar v. State, 542 S.W.2d 871,S.W.2d 104, 108 (Tex.Crim.App. 1984); 874(Tex.Crim.App. 1976);Ablonv. State,Flenling v. State, 502 S.W.2d 822, 823 537 S.W.2d 267, 269 (Tex.Crim.App.(Tex.CrimApp. 1973); Mason v. State, 1976); and Jackson v. State, 720 S.W.Zd495 S.W.2d 248, 250 (Tex.Crim.App. 153 (Tex.App.- Houston @4th Dit.]1973); and Can~wn v. State, 479 S.W.2d 1986, pet. ref'd).28 VOICE for fk Defense 1 January 1989In Clapper v. State, 562 S.W.2d 250,25 1 (Tex.Crim.App. 1978), the writtenorder revoking probation contained thefinding: "[OIn the 5th day of May, A.D.,1976 [appellant did] commit theoffenseofauto theft. . . ." There was no request formore specific findings. The Court ofCriminal Appeals held that, absent such arequest, thefailureofthetrialcourttomakespecific findii in the order did not wnstitntereveasibleemr.Seealso, Bradley v.State, 608 S.W.2d 652, 655(Tex.Crim.App. 1980); and Mason v.State, 495 S.W.2d 248, 250 (Tex.Crim.App. 1973).VII. Recurring ErrorsA. Rmdamental Defects in the PrimaryConviction1. Defects in Indictmenta. Gened RuleAn indictment which fails to allege anoffense was committed by the accusedis insufficientto support a conviction. Aconviction which is based on an indictmentwhich fails to state an offenseagainst thelaw is void. American PlantFood Corp. v. State, 508 S.W.2d 598,603 (Tex.Crim.App. 1974).b. Examples1. Pickett v. State, 542 S.W.2d 868,869(Tex.Crim.App. 1976). Probationgranted after a conviction for assaultwith intent to rob, under the formerpenal code, was not a valid convictionwhere the indictment on which it wasbased failed to "aver ownership of theproperty taken."2. Tinzms v. State, 542 S.W.2d 424,426(Tex.Crim.App. 1976). Conviction andprobation werebaseduponafundamentallydefectiveindictment whenit failedto allege "that the offense was commitIedwithout the effective consent ofthe owner."3. Standley v. State, 517 S.W.2d 538,541 (Tex.Crim.App. 1975). Probationgranted after a conviction for conversionby hailee was based upon a fundamentallydefective indictment whichfailed to allegethe"va1ue ofthe property."a. Without such value alleged, thereis no way to determine if the DistrictCourt had jurisdiction andno way toproperly determine punishment.b. Indictment is void ab initio (fails

to state an offense) and would besubject to attack by a habeas corpusproceeding.4. Kasper v. State, 547 S.W.Zd633,634(Tex.Crim.App. 1977). Probationgranted after a conviction for"burglary;" indictment charged"burglary of a private residence atnight." The indictment was held insufficientto support the wnviction, as aburglary conviction cannot be supportedby an indictment chargingburglary of a private residence at night.5. Baker v. State ,547 S.W.2d 627,629(Tex.Crim.App. 1977). Probationgranted following a wnviction for conspiracyto sell marijuana. The Cow ofCriminal Appeals held that, since thecriminal conspiracy provisions as setforthin section 15.02of the Penal Codedo not apply to the Controlled SubstancesAct, the conviction is based on anindictment which does not allege an offenseagainst the laws of the State andhence is void.2. Because of the Judgment entereda. Omples1. In Pedraza v. State, 562 S.W.2d 259,260 (Tex.Crim.App. 1978), probationwas granted for two years following awnviction of the misdemeanor offenseof assault. The Court of Criminal Appealsheld that whileit was improper toplace appellant on probation for a twoyearterm, since the maximum term forthe offense of which he was convictedwas one year, the order was void onlyto the extent it purported to subject appellantto probationary supervisionbeyond the time authorized by law.2. kchuga v. State, 532 S.W.2d 581,582 (Tex.Crim.App. 1975). Probationfor three years was granted following aplea of guilty to the offense of defraudingwith a worthless check. The courtthereafter granted a new trial and later,againonapleaofguilty, assessed afiveyearterm of probation. The judgmentwas reversed by the Court of CriminalAppeals. The Court stated that becausethe record contained neitherreasons forthe increase in punishment, nor factualdata upon which such an increase couldhave been based, the judgment of thecourt assessing punishment must be vacated.532 S.W.2d 581, 582; NotihCarolina v. Pearce, 395 US. 711(1969); and Ex parte Bowman, 5231975).3. Gorizales v. State, 527 S.W.2d 540,542 (Tex.Crim.App. 1975). Probationforfive years was granted following awnviction forassaultto murderwithoutmalice. As the maximum punishmentby statute at the time of the offense wasthree years, the punishment was setaside.4. n~omus v. State, 525 S.W.2d 172,173 (Tex.Crim.App. 1975). Probationwas granted after defendant entered aplea of guilty to burglary of a privateresidence at night with the intent tocommit a felony; the court held that, asthe judgment (burglary) did not reflectaconvictionfor thecrimechargedin theindictment, the conviction in theprimary offense was void.3. Defects when primary convictionwas under a general statute, when a specialstatute on the same matter governed thegeneral statute.a. If a special statute provides a misdemeanorpunishment, thedistrict courtis without jurisdiction.b. In Sarratt v. State, 543 S.W.2d 391,392 (Tex.Crim.App. 1976), a two-yearprobation was assessed for "unlawfulpossession of a criminal instrnment, towit: a forged prescription." There weretwo statutes dealingwith the possessionof a forged prescription; probationerhad been indicted under the generalstatute rather than the special statute.The Court of Criminal Appeals held thatthedefendant should havebeen chargedunder the s~ecial statute nrohibitine* *rant was not issued by a magistrate,but by an additional (temporary)municipal judge appointed under aninvalid ordinance.2. Moore v. State, 562 S.W.2d 484,487 (Tex.Crim.App. 1978). Whereprobable cause to justify the searchof the probationer's van without awarrant was not shown, the seizureof marijuana found in the van was illegal.Since the seized mkjuanashould have been suppressed, therewas insufficient evidence before thecourt to support its finding that appellantviolated condition (1) of theconditions of his probation by possessingmore than 4 ounces ofmarijuana.3. McDougald v. State, 547 S.W.2d40 (Tex.Crim.App. 1977). Wherethe defendant violated no traffic lawwhile driving his vehicle on highway,and committed no offense inthe officer's presence, and the officerhad no knowledge that defendanthad committed a crime, theofticer was not authorized to makean investigatory stop, and any evidenceobtained by a search of defendant'svehicle following such astop could not be considered by acourt in arevocation proceeding. Seealso, Luera v. State, 561 S.W.2d497,498 (Tex.Crim.App. 1978).VIII. AppealsA. Direct AppealArticle 42.12 section 8fi) of the Codepossession df a forged insb;ment. ~ e i of Criminal Procedure prok&s that whenalso, Mills v. State, 722 S.W. 2d 411(Tex.Crim.App. 1986); and Ex partea probationer is notified that his probationis revoked for violations of the conditionsHarrell, 542 S.W.2d 169, 173 of that probation, and he is called on to(Tex.Crim.App. 1976).serve a sentence in jail or the penitentiary,4. Evidence obtained as aresult of an illegalsearcha. It is error to assume that revocation ofprobation proceedings operate under arelaxed set of evidentiary rules regardingsearch and seizure and the admissionof the fruits thereof.Examples1. French v. State, 572 S.W.2d 934(Tex.Crim.App. 1978) (Opinion onthe probationer may appeal the revocation.Tex. Code Crim. Proc. Ann. (VemonSupp.1988).1. Article 44.04 allows bond pendingappealnndercertainconditions. Tex. CodeCrim. Proc. Ann. (Vernon Snpp. 1988).2. NOTE: The sole issue on appeal of arevocation of probation hearing is whetherthe trial judge abused his discretion inrevoking probation. Gonmlez v. State, 456State's Motion for Rehearing). S.W.2d 53,54 (Tex.Crim.App. 1970) (andProbation was improperly revoked cases cited therein); B~iones v. State, 473when marijuana was found pursuantto a void search warrant. Here, war-January 1989 I VOICE for the Defense 29

Polygraph Usage for Attorneys in Criminal Casesby Bill ParkerPolygraph examinations are used ex- 4. Examination procedures and when the client insists on taking an extensivelyby attorneys and law enforce- 5. Validity of polygraph amination.ment officers across the United States.They shouldbeused as investigative toolsand are of value in certain situations;I. Basic polygraph function 3. Selection of apolygraph examinerhowever, they do havetheirlimitations and Thebasicfunctionofapolygraphis that In choosing a polygraph examiner, it isshould not be viewed as a panacea. It be- of a recording device. It records certain recommended that the first considerationhooves any attoniey practicing criminal physiological responses to psychological be his reputation. The examiner shouldlawtoday tohavea workingknowledgeof stimuli, the stimuli being the examination haveanestahlishedreputationforintegritypolygraph procedures and practices. questions. Fear of deception causes major and fairness, as well as forhis technical ex-The theory of the technical aspects of and immediate physiological changes in pertise. He should have a background inpolygraph procedures includes knowledge the human body. These changes take dealing with forensic issues and should beof the psychological and physiological meaning from empirical data produced by familiar with the personality types whichsciences, but these will not be thoroughly scientific research. are commonly involved in these types ofdiscussed in this article. This article will It is critical to understand and beaware cases. The examiner should be trained inprovide attorneys with a working know- of the fact that there are some examiners the use of a numerically scored zone comledgeof polygraph examination proce- practicing today whose evaluation of data parison technique. The facility employeddures and their use in criminal cases and produced during polygraph examinations by the examiner should have a videowill answer the most common questions is not based on scientific research. An ex- monitoring and recording capability.asked by attorneys.aminer may use one of several modemAlist ofreading material is provided for methods of evaluation, but they all share 4. Examlnafionproceduresthose who wish to go into more detail on one key term - zone conparison. Onlythe subject of polygraph. the zone comparison technique has been Examinations consist of two majorThere are several basic issues relating shown to result in an objective, numerical- phases. The fast phaseis calledthepre-testto polygraph examinations with which at- ly scored evaluation of the data produced inte~iew.Dnring this phase, theexaminertomeys should be familiar. during the examination. atkmpts to establish rapport with the snb-1. Basic polygraph function ject and convincehim that theexamination2. Common polygraph uses by attor- 2 Commonpolygraph uses byatlorneys will he conducted in aprofessional, objecneystive, and impartial manner. After some3. Selection of a polygraph examiner The situations where a polygraph ex- background information has been obaminationwill be useful are best deter- tained, the subject is allowed to give a perminedby an attorney in a given case, and sonal account of his involvement in theill parker born June jO, 1943 ill thus its usefulness is limited primarily by case. The polygraph technique and all ex-Dallas, Texas. the attorney's insight, knowledge of ply- amination questions are then reviewedH~ obtairleda B ,~, Degree in Crimbml pph, and ability to evaluate each par- with the subject so that he will know ex-Justicefrom Sa,n Houston Srate College in t~cular case. As a general rule, the test actly what questions will be asked on theHuntsville, Texas. questions should avoid anyhng that calls test. The review of the questions alsoill becallle a liceILEed polygraph ex- for a conclusion, opinion, or deduction, provides an opportunity to clarify any amatnine,.ill T~~~~ ilt 1980, He a mneln- suchas,"Didyou intendtok ill... ,"etc.,and biguities with regard to the relevant quesberofrhe~allas,TeuzsPo,iceDepnnlllent should be restricted to factual events that tions. The review of the polygraphfront 1964-1984. H~ retire. as eitherdid or didnot occur, such as, "When technique includes a brief explanation ofhaving spent n,ost of his in the JohnDoewasshotonMarch 15,1988,was how the autonomic nervous systemfunc-Criminal Investigation Division. He has the gun that shot him in your hand?" tions, causing phys-iological reactionsbeell president ofParker. Jor,es, Inc. since Some of the more common reasons at- which are recorded by the polygraph.1984, parker- J ~ is a ~ polygraph , ~ fin,, torneys contact ow office to request a The test subject is then attached to the~doillgan extensive anlorrrlt oflegal work in polygraph examination are: to verify the polygraphinshument, whichcontinuouslythe north Texas area. . statements of their clients for their own and simultaneously records electrcdermalH~ has been a speaker for the Dallas satisfaction; to approach the government's resistance, respiration, and cardiovascularB~~ ~ ~ D~~~~ c ~ ~ ~ i ~ attorney; , ~ ~ as ~ a ~ preliminary ~ ~ i fact-finder; ~ ~ activity ~ while i the test questions ~ are ~ ,A~~~~~~~~ zs Ofice, Texas District and when theclient is acontrol problem; to sort reviewed and answered. After all the ques-~ounry~,torlleys~Associationsall~ot~,er out responsibility for a particular client tlons have been answered and thesimilar organizations. whenmore thanonedefendant isinvolved, physiological responses recorded, thesub-30 VOlCEfor fhe Defense I January 1989

ject isallowed to wtfor a short period andthe procedure L then repeated. The dataproduced on the polygraph charts areanalyzed and an opinion is rendered basedon this data.Questions attorneys commonly ask:A. Who is genemlly un$t to take apolygraph examination?1. Children under 12 years of age aregenerally not considered fit because it isquestionable whether they can clearly distinguishright from wrong or truth tiom fiction.2. Psychotics -persons who have losttouch with reality3. Persons who have recently experiencedsevere body trauma4. Intoxicated persons or thosesufferingftom withdrawal of chemical substances5. Emotionally disturbed people, suchas relatives of murder victims or peoplewho have recently received intense interrogation(It should be noted that, contrarv tocommonbelief,psychopathicpersona~tiesmake good polygraph subjects.)amination being given to anyone not authorizedby the testee. The examiner willnot release the results of the examinationto anyone not designated by the testee inwriting.E. How can an afforney help preparethe examiner?The attomey should focus on theissuesoftheexaminationand not attemptto writespecific questions. The attomey shouldgive the examiner acomplete briefing concerningthe accusations made against theperson being examined, as opposed to theclient's response to such allegations. It ishelpful to provide any documentation relatingto the case, such as police offensereports.F. How many &&rent issties cart beincludedin one examinafion?Some polygraph techniques provide foran exploratory phase whichwould normallyinclude questions relating to the sameissue, but could allow @e subject to betruthful to one of these questions and untruthfulto others. Usually the questions tosuch an exploratory phase would he alongB. How long will apolygrnphthe lies of, "Do you suspect or do youexmMUnatr'on take?know who committedaparticular offense?Probably two to three hours with a zone Do you how who committed a micularcomparison technique, since the technique offense? id youeommitthe p&cularof- ing.requires that multiple polygrams be &-duced.fense?" However, using the exploratorymethod diminishes the validity of the procedure.Ideally, an examination should befocused on one iwue only, such as, "Didyon commit the paaicnlar offense?" AUquestions should be formulated in such amanner as not to allow a person to he untruthfulto one relevant question and truthfidto others.G. Can aperson who is in jail beexamined?Yes. The idealplace for anexaminationis in the office of the polygraph examiner,which is designed for examination purposes,but most federal, state, and localauthorities will provide a suitable place forexamination when requested.5, Validiv and reliabllifyA~view of the studies produced by thescientific community regarding the validityand reliability of polygraph testingclearly indicates that polygraph testing ismore reliable and valid than many othertesting procedures that are commonly acceptedby the community at large. Thesestudies refer to specific issue testing onlyand do not include those used in the commercialsector for pre-employment screen-C. What insfractions shouldtheattorney give his client regarding thepoIygraph exam'nafion?The client should be told to get a reasonableamount of rest and nourishment, touse no intoxicants or chemicals 48 hoursprior to the examination, but not to discontinueany medication taken for healthpurposes,such as insulin. The testee shouldallow hintlherself three or four hours oftime for the examination. It is stronglyrecommendedthat altomeys not attempt toexplain polygraph technique to the client,but to assure him or her that the proceduresare painless andharmIess and thathe or shecan depend on the examiner to explain thepolygraph technique fully before an examination.D. Who has access tothe resulfs of anexaminafion?The Texas State Polygraph ExaminersAct strictly prohibits the results of an ex-Polygraph Reliabilityand Validity StudiesResearcher % Validliy No. TestedBen lshai 1Ben lshai 2BershBittermanEdwardsElaadLyonPetersRaskin 1Raskin 2SummersThe average validity for 1,964 persons tested was 96.03%.(Repmduoed fromT-s Associalion ofPolygroph Erandners Legrslaliw Testimony Guide, Polygmphvs. PSE Ed. Wmd, Richard H. and Wagher, Tim. AprilZ, 1982.)January 1989 I VOICE for the Defense 31

On October 27, 1988, Charles M. Mc-Donaldand Bill Dunnam appeared befbrethe Terns Court ofCrimirm1 AppeaCs andparticipated in a proceeding honoring thelate Judge MI: Phillips, who served onthat Court Present wus thestate BarPresident,members of the Court of CriminalAp@s and the Supreme Court, and otherdistinguished guests. Judge Phillips nns amember of TCDLA, andproudly served thegoals offhe defense attorney. He was alsoa respected member of the Court of CrintinalApHeals. His memoriam as delivered,follows:Thank you* Judg? Onion,Martha, Vail,members ofthejudiciary anddistinguishedguests.We are here to honor thememory of ourdear friend, the late Judge W.T. Phillips.When I was asked to speak in hismemory, I was pmud to accept, and it is anhonor I will cherish the remainder of mylife.Irememberafriendly man with asmile,who enjoyed life, his family, and hisfiends. His friends called him W.T. Hisreal close friends called him "T."I remember a lawyer who l i i to flyairplanes. WifeMarthaleamedfirst-"'I"'had to learn so he could tell her how to fly.I remember, for example, in a law matter,a criminal case in Oklahoma in which'T" and1 were involved. The young defen-dant was accused of possession ofmariiuana in the d m lecesses of his suit-In MemoriamW.T. Phillipscase, which was zipped and locked and inthe hack seat of the car. The localpolicemansaid thathesmelledit andit wasin plain sight. Justice was served. 'T' andI got a dismissal premised upon our clientsigning a legal document whereby theyoung defendant agreed to banishmentfrom that small Oklahoma town for fiveyears. I assume that is stdl good law.When asked to be here, my thoughtsreturned to late in the evening of April 6,1976 when two people were. with me in myold 1967 Mooney ahraft on a heading of186 deg. southout of Waco. Intheairplanewith me were my dear fiends, Billy Dunnamand W.T. Phillips. Our destinationthat April evening was Austin, Texas. Wewere on our way with a cashier's eheck ofthe value of some several hundreds of dollarspayable to theDemocraticchairmaninAustin.'T" got signed up that last evening torun for election as a Justice on this Courtof Criminal Appeals which was then composedof five members.The rest of the story . . . with limitedcontributions from old friends and Wacolawyers, W.T. Phillipswas elected as a Justiceon this honorable Court. He servedproudly on this Court until 1981. The fouryears he served on this Court was pmbablythe happiest period in his life-to put itmildly, hklovedhis work, and thehonor ofbeing a judge of this Court.Judge Phillips would want me to putwhat I am now saving as a matter of uer-manent record.What Judge PhiEps did in 1976, withhimbeing andinarylawyerinamediumsizedtown, deciding he wanted to he ajudge on the Supreme Criminal Cwa ofthe stateof Texas, and then running for theposition, and being elected on a limitedbudget, is fast becoming, regrettably, athing of the past.W.T. Phillips did not have any judicialexperience prior to hecoming a member ofthiscourt. However,'"r"' waaalawyer whohad a strong dedication to the principles ofourBill ofRights, andaphilosophy offairnessand compassion.I have read in the past every one of hisopinions written whilehe was on this court.I have found that the opinions of JudgePhillips have never been criticized fordeterring or impairing the fundamentalrights of citizens ofthis country. His judicialachievements could not havehffin surpassedby some judge who was handpicked by some person ar group of individualswho probably would never haveaccepted or acknowledged a lawyer likeW.T. Phillips.Judge Phillips believed that thequalifications for being a judge were setforth in the Constitution. He furtherbelieved that if you had the constitutionaland statutory qualifications, then youshould have the right to seek a judgeship.The voting citizens of this state or countrywould then pass upon the philosophicalaualifications of that candidateto serve.- -JudgePhillips believed in the right of alawyer to put his name on the slate andProbation Revocation Hearings C. Collateral Attack have his right to serve passed on by themnliwedfror?pnge 29The Court of Criminal &peals, in fi voting citizens of the state. JudgePhillipsparte Moffeft, 542 S.W.2d 184, 185 continued to believe in this after the elec-S.W.2d 39,40 (Tex.Crim.App. 1971); and (Tex.Crim.App. 1976), created an excep- tion of 1980, in which he was not success-Ar~nstrong v. Stale, 472 S.W.2d 150, 151 tion tothc~lepnrhihitingccrllatcral attack fill.Crex.Crim.Ano. 19711. on thcsumciencv thecvidellce bvhold- My tiicnd Bill Dunnani will address inA Ling that a collGeral attack of & orderB. Habeas Corpus revoking the defendant's probation is per-To successfully use the writ of habeas missible where the revocation order wascorpus tochallenge theauthority ofthetrial h~ed on no evidence. See also, Ex parkcourt to revoke probation, the probationer Quirke, 710 S.W.2d 582, 585 (Tex.must show that the sentence was void and GritaApp. 1986); cj, Wol@ v. Smre. 560subject to collateral attack for want of S.W2d686,688 (Tex.Crim.App. 1978). 1authority to pronounce it.32 VOICE for fhe Defense I January 1989more detail the importance of some ofJudge Phillips's opinions and his legalphilosophy.Martha and Vail, and persons gatheredhere today, "T" Phillips was a good Judgeand what is more important, a good man.Thank you for permiaing me to be here.

A Comparison of the Public Defender and Ad HocSystems of Providing Indigent RepresentationBy Judge Pat McDowellAny system for delivering legal serviceto the indigent in criminal cases must havethreecharacteristics: it must provideeffectiverepresentation,it must be efficient, andit must be economical.Within those criteria, I would like tomake the following observations about thetwo systems.From the time I took the District Benchin 1981 until 1983,Iusedadhocattomeys.Alarmed at the rising costs of the ad hocsystems, I agreed to take part in the pilotproject for a Public Defender in 1983. Istayed with the PD system until 1986,when I concluded that the PDs were not aseffective, efficient, or economical as the adhoc, and that there were inherent weaknessesin thePD concept which resulted inlostefficiency incontrolling my docket, increasedjail costs, and eventually ineffectiveness.Let meturn fnstto thequestion ofwhichsystem provides the most effective representationto the indigent, since as lawyersand judges this has to be our primary goal.If effectiveness means an attorney useshis personal and legal skills for his client tobring about the best possible disposition ofhis case, then1 believe that thead hoc systemday in and day out gives thedefendanta better lawyer.In Dallas, where wehave alargepool ofexperienced and competent attorneys whowill do court-appointed work, it doesn'tmake any sense to waste this talent andplace a court's entire docket in the handsof two or three defenders who, regardlessof their dedication, cannot match what youcan get in the free market.Morereal, however, is theeffect that thekilling caseload borne by defenders has ontheir ability to serve their clients effectively.A lawyer simply cannot effectivelyhandle anywhere £ram 50 to 100 defendantsat one time in one court. Time has tobe taken away from one client to serviceanother, and there is no way a lawyer canbe engaged in a serious trial, prepare fornonjury andother contested hearings, workJudge Pat McDowell presides over theCriminal District Court Number Five ofDallas County. Judge McDowell wasoriginally appointed by Governor Clemntsin 1981 and has been re-elected nvicewithout opposition.Judge McDoweN was aprosecutor in theDallas County District Attorney's Oficefrom 1960-1962, when lie enteredprivatepractice. Judge McDowell war a Justiceof the Peace from 1979-1981.He is a former TCDLA member and wasboard ceri$ed in criminal law by the StateBar of Texas in the first year the programwas initiated. He obtained his College andLLB Degreesfrom SMU. Judge McDowellis a frequent writer and speaker on sirbjectsinvolving Criminal Law and Pmcedure.on plea bargains and pleas on pendingcases, and still take in several new cases aday.In Dallas, whether we like it or not, theDistrict Attorney's office already has toogreat an impact on the operation of a court.Dependingon thephilosophy, work habits,personality and skill level of the AssistantDistrict Attorneys assigned to court, yourability to control your docket can rangefrombeingvery easy toimpossible. InaPDsystem, if a court places the other side ofits docket in the hands of two or threedefenders, then the opportunity for ameltdown is very real.This takes us to the efficiency consideration.The observation has alreadybeen made that an attorney carrying acaseload in excess of 100 cases cannot effectivelyrepresent those clients. Neithercan that attorney get thosecases moved efficientlythrough the system regardless ofhow dedicated or hard-working he or shemay be.And this is the best case scenario. Whenan attorney bandlmg those 100 cases issick, takes a vacation, or leaves the job,there is no way another attorney can stepin and ~rovideffective representation tothedeftkdant without further delaying dispositionof cases.In Dallas, we are burdened with a jailpopulation crisis, and if it costs even$30.00 a day per prisoner, then any delaycaused by the PD system becomes a costnot reflected in the PD budget, hut whichhas a very real impact on the expenses thecounty bean inthecriminaljusticesystem.Keep in mind that a PD system isanother County bureau and that once it isestablished, it will be hard to terminate. Itis also a political office subject to thecontmlof no more than any three CountyCommissioners.The economy part of the picture is theone most often cited as a reason to have aPD system, regardless of the loss of effectivenessand efficiency. In fact, in DallasCounty, figures pmvided by the DallasCounty Auditor show that it costs $92,000a year to have one PD in a court, and thatthe court must then appoint ad hoc lawyersto handle the time-consuming and expensivecapital murder cases, the specializedcrime cases, conflict cases, and appeals. AJanuary 1989 I VOICE for the Defense 33

White Collar DefenseNew Fifth Circuit Criminal Jury Instructionsby Michael E. Tigar,Joseph D. Jamail Centennial Chairin Law, University of Texas; Chairman-Elect, ABA Section of LitigationWithin the next few months, a new setofpatternjury inshuctions forFifth Circuitcriminal cases will appear in draft form.The new instructions represent the firstoverhaul of pattern charges since 1979.The draft will be circulated to judges,prosecutors, and defense lawyers, and afmal version sent to the printer by mid-1989.The revised insmctions were unveiledat a recent meeting of Fifth Circuit districtjudges in San Antonio, sponsored by theFederal Judicial Center. The Fifth CircuitDistrict Judges Association committeeresponsible for drafting was chaired byJudge Hayden Head, of Corpus Cbristi.Other members were Ham, Lee Hudswthof~l~aso, ~eorge~azeno$~aredo,~~~Wingate of Jackson, and Adrian Duplantierof New Orleans.The judges asked me to serve asReporter to the Committee, to assist withlegal research and to present views of thepracticing bar. In addition, the committeehad received extensively-researched sobmissionsfrom some United States Attorneyoffices.Ordinarily, the creation of new patternjury charges would be a ho-hum affair.After all, one would expect that newstatutes and changing case law would occasionallyrequire revision of the wellthumbedFifth Circuit pamphlet.However, the Committeesaw its taskasbroader than simply bringing the old hookup-to-date. It simplified the form of alljurycharges, and made descriptive languageconsistent from offense to offense. It expandedthe number of offenses for whichpattern charges are provided.The committee's most significant workwas in therealmof theintent element in thestatutes it covered. In thepresent Fifth Circuitpattern book, a separate definition of"willfully" is provided that speaks in termsof acts done "voluntarily and purposely,withthe specificintenttodo something thelaw forbids; that is to say, with the bad purposeto disobey or disregard the law." TheMichael E. Tigar has conducted an activelitigation practice for more tlzarz 20years. He is the author ofscores ofarticlesand several books on legal topics. He hasbeen a member of the Universiry of Texaslawfactrlty since 1984, andnow holds theJoseph D. Jan~ail Centennial Chair inLaw. He isalso Chirrnan-Electoftlze ABASection of Litigation.various offense deffitions in the presentpamphlet suggest that this definition beread to the jury in almost every case.The fust problem with the present formulationis that even where the offensecontains willfulness as an element, theSupreme Court has approved a somewhatless expansive charge. See Urtited States v.Potnponio, 429 US. 10 (1976).Second, a generalized willfulnesscharge does not tell the jury to which actelement of the offense the mental elementrelates. Thus, there is substantial risk forjury confusion in the present formulation.The Supreme Court has repeatedly cautioneddistrict courts to define withprecision the mental element at issue, andto pay careful attention to theacts that mustbe proven to have been committed withthat state of mind.For example, in Liparota v. UnitedStates, 471 US. 419 (1985), the COGreversed a conviction for knowingly transferredfood stamps in violation of the law.It held that the element of knowledgemodified both the transfer and the fact thatthe defendant was acting in violation oflaw. The effect of Liparota is to requireproof of intentional violation of a knownlegal duty, which is customarily thought ofas "willfulness." The Court reached thisresult even though the statute at issue didnot contain "willfully" as an element.In many cases, of course, statutes andcase law compel use of the word "willfully"in thc jujch;wgc. Sre United Stores v.Il~rrton, 737 F.2d 439.44 1 (5th Cir. 1984).In each such case, the draft goes on todefine the term in the context of thatspecific statute.Theseventh and Ninth Circuits, in theirnew pattern jury pamphlets, have advocatedthat trial judges not use the term"willfully" unless it appears in the statuteallegedly violated. The Fifth Circuit committeedeclined to follow this suggestion,because Fifth Circuit law makes clear thatin some cases "willfulness" is an elementeven though the statute does not containthat term. See, e.g., United Srates v. Hunt,794F.2d 1095 (5thCir. 1986) (mail fraud).A telling example of the "element-byelement"approach to jury charges may beseen with respect to 21 U.S.C. sec. 841(a)(]), possessionof acontrolled substancewith intent to distribute. The draft patternsays, in pm:For you to find the defendant guiltyof this crime, yon must be convincedthat the government has provcd eachofthc folio\\ ing hcyond areabonnhlcdoubt:Pirst: That the defendant knowinglypossessed a quantity of34 VOICE for the Defense I January 1989

List of Granted Petitions for Discretionary Reviewby John JasutaIssues Presented in Petitions for Discretionary ReviewWhich Have Been Granted by the Texas Court of Criminal Appealsand Which Are Presently Pending DecisionSince July 17, 1985 the adn~inistrativestaffattorneys ofthe Court of CriminalAppealshave compiled, in the normal courseof business, a list of cases and legal issueson which the Court has grantedpetitiomfor review. Although originally preparedfor internal use only, the Court hasauthorized release of the list for publicationand for rise by the bench and bar ofTexas. The issues listed are summaries asworded by the stafi and do not necessarilyreflect either the reasoning or thephraseology used by the parties or by theCourt.The following are the cases and issueson which the Court of Criminal Appealsgranted review but which the Courthas notyet delivered a written opinion:PDR 1179-87 10n488, Lubbock Co.(A's PDR), Agg. Sexual Assault, TimothyBrian Cole: (1) Whether hearsay evidence(lab reports) concerning chemical tests isadmissible through one chemist, whenanother chemist who prepared the report isnot present to testify. What is therelationshipbetween rules 803@) and 803(8)@)and Coulter, 494//876 and Butler, 543//91?PDR1193-87 10/26/88, Harris Co. (S'sPDR), Agg. Sexual Assault (prior convic),Charles Johnson: (1) Was there tnrly avariance when the jury found aggravatedsexual assault by use of a weapon and didnot find the use or exhibition of a weaponfor the purpose of an affirmative finding?PDR 1208-87 10nfv88, Hidalgo Co.(A's PDR), Agg. Poss. ofMarijuana, JoseFrancisco Leal: (1) Whether the Court ofAppeals erred in finding the officers' entryonto the premises was proper under the"open fields" dochine and under Texas lawas a mpass. (2) Whether appellant consentedto the search of a hailer when toldthat if he did not consent, the off~cerswould come back and search anyway.PDR 1261-87 10R6/88, Smith Co. (A'sPDR#2), Theft, Kenneth Wayne Goodwin:(1) Whether appellant should be acquittedof count one, when the evidence was insnff.as to counts hvo through six in an indictmentcharging theft, aggregated. (2)Whether application of Art. 44.29 toappellant's case, which was pending in theappellate courts when Art. 44.29 wasamended, constitutes ex post facto violation.PDR 0805-88 10/26/88, Nueces Co.(A's PDR), Agg. Del. Cocaine, NoeGzdena: (1) Whether the Court of Appealscorrectly applied pre-Art. 37.07,V.A.C.C.P., law of Sneed v. State,6704262, to jury misconduct error. (2)Whether Rose v. State applies even thoughnot raised before the court of appeals.PDR 0898-88 10/26/88, Harris Co.(A's PDR), Agg. Robbery (enh.), RichardCollins: (1) Whether the Court of Appealsedinholding that theconfess~onwas nottainted by an illegal arrest.PDR 1187-87 11N88, Coma1 Co. (S'sPDR), Murder, David Zsador Port: (1)Whether defendant's oral statements wereadmissible under Art. 38.22, Sec. 3(c).PDR 1279-87 11/09/88, Hidalgo Co.(SsPDR), Agg. Se.tualAssaelt, Ruben Villalon:(1) Did theCourtofAppealscomtlyview the sufficiency of the evidence andwas the evidence sufficient to support aconviction? (in three grounds).PDRO853-88 11/16/88. Harris Co. (S'sPDR), SexualAssaultofa Child, Joe FrankHernandez: (1) Whether Sec.22.011(d)(l)(promiscuity) should be interpreted as adefense to sexual assault of child aged 14-17, whether or not the issue of consent wasraised by the evidence.PDR0118-8811L23/88, Bexar Co. (S'sPDR), D.U?I., Ralph Gerry Finch: (1)Whether the Court of Appeals erred inholding that the infomation should havebeen quashed because it did not specifywhether the defendant was intoxicated bynot having the use of his faculties orwhether he was intoxicated by reason ofthe introduction of alcohol into his body..A Comparisonconrirrr~edfrompnge 33court with two PDs costs Dallas County almost$200,000 a year before the costs forthese cases the PD doesn't handle are evenadded in.In fact, an analysis of thedispositions ofthe fourteen felony courts in Dallas for thefirst nine months of fiscal year 1988showed that there is little or no differencein cost between an ad hoc court and a PDcourt. This same analysis showed that theaverage cost per case was also about equal.There are some judges whose ad hoc costswere much higher than some others, hutthose judges maintained lower jail costsand defend their decisions to pay lawyersfor the work they demanded from them.In summary, the Public Defender systemand its inherent large caseloadsprevents efficient operation of a court'sdocket, denies the lawyer a chance to representhis client effectively, and costs thecounty as muchas theadhocsysteminrealcosts and much more than the ad hoc systemin hidden jail costs.January 1989 1 VOICE for the Defense 35

TCDLA Committee Updateby Jeffrey HinkleyThis Committee Update focuses on theactivities of the Amicus CuriaeCommitteeand the Spring Trip Committee, as ofNovember 30,1988.Amicus Curiae CommitteeThe Amicus Curiae Committee hasbeen extremely busy since the last report.Efforts by Chairman David L. Botsford2nd his Committee are as followC1. The Committee drafted affmlativelegislation for the forthcoming legislatureto considei. A proposed bill seeks toamend Section 2.01 of the Texas PenalCode and Article 38.03 of the Texas Codeof Criminal Procedure by inserting adefinition of the term "reasonable doubt."The proposed definition is substantiallyidenticalto thatcmployed in fdcral coullsthnuahout - thc Fifth Circuit. TheAnronuscdAdefinition is designed to help ensure juryunanimity concerning the reasonabledoubt standard. The proposed legislationhas been submitted to the TCDLA LegislativeCommittee for review and comments.2. On October 13,1988, the Committeefiled its "Statement in Support ofAppellant's Motion for Rehearing" in EdwardEarl Forte. In that case, the Court ofCriminal Appeals held:a. That under Article 1, Section 10, ofour State Constitution, the right tocounsel is triggered when an individualis conJkonted with the amassed powerof the State in such a manner that it isdeemed necessary that counsel'spresence is required to preserve thebasic right to a fair trial as affected bythe Defendant's right to meaningfulcrnss-examination of the witnessesagainst him, and to have the effectiveassistance of counsel at the trial itself;andb. That the citizens of this State are notentitled to counsel under the foregoingstandard when they are confronted withthe decision to take or refuse abreathalizer when requested todo so bya law enforcement officer. The Conlmitteeapplaudedthecourt's holding asto a,, but violently disagreed with itsholding as tob.,duetotheoptions availableto a citizen when confronted witha police officer's request for a breathalizer,which have among those optionsthe following:1. The right to give blood or otherbodily fluid samples, as opposed toa breath sample;2. The right to an independentsecond sample of the specimen supplied,and3. The fact that a "DIC-24," whichisthe Police Officer DWI StatutoryWarning form typically tendered toa DWI Defendant subsequent to arrest,is totally inadequate in itsfailure to delineate the rights of andoptions available to the citizen accused.Gary Trichter of Houston and E.G."Gerry" Moms, Austin, provided assistancein producing the proposal.3. On October 6, 1988, the Committeefiled its "Statement in Support ofAppellant's Motion for Rehearing" inBetty Lou Beets. Beets was a case whichaddressed the capital murder statute andheld that aperson who kills another for thelife insurance proceeds of the victim hascommitted murder for renumeration and,thusly, canbe charged with and convictedof capital murder under Section 19.03(a)(3) of the Texas Penal Code. Thatopinion was a reversal on rehearing of theCourt's original opinion. In theopinion ofthe Committee, that reversal was contraryto the legislative intent behind Section19.03. Carolyn Garcia assisted Mr.Botsford in this effort.4. OnNovember 1,1988, the Committeefiled its "Statement in Support ofAppellant's Petition for DiscretionaryReview" in Santiago Gallegos. This is acase pending PDR in the Court of CriminalAppeals involving the retroactive applica-tion of Article 44.29 @), Texas Code ofCriminal Procedure, which addresses theretrial on punishment only once you get areversal. Gallegos is a case where theCommittee had given Harry A. Nass, Jr.,from San Antonio, amicus support at thecourt of appeals level. Theconrt of appealsreversed thecasebnt remanded it for anewtrialon punishment only, based on ineffectiveassistance of counsel concerning theelection of whether to go to the judge orjury for punishment on an Article 44.12,Sec. 3g. case. Harry Nass is proceedingwith a PDR on the basis that the court ofappeals erred in its remand for a new trialon punishment only through retroactiveapplication of Art. 44.29@). Mr. Botsfordwill be working on this case.5. Joseph A. Connors, DI., McAllen,also has a case pending in the trial courtafter remand from the court of appeals involvingan Art. 44.29@) application. JoeConnors and Mr. Botsford are workingtogether. This case involves the sametheory as in Gallegos: retroactive applicationof Art. 44.29@) to a case that enteredthe appellate process long prior to theamendment to Art. 44.29.6. Rod Ponton, El Paso, called Mr.Botsford, on or about October 31, relatinga topic of intimate concern to our Associatlon.Apparently, Rod is aware of the factthatthestate, inaconpleofcases, bas filedamicus briefs before the Court of CriminalAppeals urging that the Court of CriminalAppeals uniformly interpret the State constitutionin a manner no broader than theway the Supreme Court of theU.S. has interpretedthe federal constitution. Rod hadjust f~shed doing a law review articleanalyzing the various constitutional conventionsthroughout Texas's history andisconvinced that the State's efforts in thisregard are completely out of line. Mr. Pontonis also concen~ed because he thinksthere is going to be pending legislationforcing the Court of Criminal Appeals tointerpret our State constitutionin the samemanner, or at least no broader than, the36 VOICE for the Defense I January 1989

Supreme Court interprets the correspondingprovisions of the federal bill of rights.He is also going to cooperate and coordinatewith the legislative history in thatregard.7. Walter Prentice and Mr. Botsford aregoing to be working on an all-out effort tosupportJackB. Zimmermann,Houston, onthc Pon rasc (involving oral confcs..ions).The Court of Criminal Annealb .. ermted theState's Petition for Discretionary Review.Walter andDavid aregoing to workin supportof Jack's position in that case in thecout of appeals, which was areversal.Por1involves oral confessions. In essence, thecourt of appeals went with Mr. Zimmermannin stating that an oral confessionwhichdoes not fall within the requirementsof Art. 38.22, Texas Code of CriminalProcedure, cannot be used.Spring Trip CommitteeChairman Buddy M. Dicken, Sherman,asked me to relay a short message that, asof November 29, 1988, tentative speakersat the seminar in Cancun, Mexico will includeWarren Bumett, Galveston; Richard"Racehorse"Haynes,Houston; Charles W.Tessmer, Dallas; and at least one JusticefromtheTexas Court of Criminal Appeals.wTHE ENTICEMENTPicture it: Las Vegas - February 15,1989 -Gambling, slot machines . . . a meeting of the minds.The Past Presidents' Seminar will be one you won't forget.The agenda is loaded.. . on that you can bet.To kick things off is a gambling classFor MCI.I;credit and nor to losc your. .. cash.Blackiuck and nnkcr. showeirls and all.~uarinteed bGhe rchettekheel, we kill all have a ball.If business is bad and cash is hard to find,The grievance committee will ease your mind.They'll be in the pits and your winnings they'll count.They know you want to reimburse that trust account.The seminar will be light - we won't tax your brains.Speakers will tell "war stories" which promoted their fame.We'll hear from such scholars as Burleson and Jones -Maloney, McDonald, Colvin and Holmes.The extracurricular is there for the seeking-You might even catch Scrappy doing transvestite peekingSo join TCDLA in the city that never sleeps-Money comes and goes, but memories are for keeps!The Benson-Boozer Debateconritnredfrompnge 18The Court also held that the court of appealswas correct in holding that Fain sufferedno harm leading to a denial of a fairand impartial trial.Judge Clinton concurred and dissented,noting that the majority in Fain latchedonto the language in Benson ("that whena charge is correct for the theory of thecasepresented") to defeat Fain's claim ofinsufficient evidence and to establish hisstatus as a "habitual" offender. JudgeClinton added: "Since Benson was decidedwe have continued to measure sufficiencyof the evidence according to the law asgiven to the jury in the court's charge,without inquiring whether that charge'was correct for the theory of the casepresented.'" Fain, supra, at 204. In JudgeClinton's opinion the Court in Fain abandonedthe prerequisite that the charge mustbe "correct for the theory of the casepresented" when measuring sufficiency ofthe evidence according to the charge.Although Judge Clinton agreed with themajority that Fain had not brought a validclaim of insufficient evidence, he dissentedto the Court's conclusion that fundamentalerror did not inhere in the jury charge.In Fain, as in Benson, the jury instructionwas clearly incorrect "for the theoryof the case presented." Fain, then,represents a departure from those casesholding that sufficiency of the evidence ismeasured by the charge as given. Thisrationale is based on the Supreme Court's"rational trier of fact" standard of reviewfor evidentiary sufficiency, which assumesfirst, that the trier of fact has been properlyinstructed and second, that the evidencecould reasonably support a finding of guiltbeyond a reasonable doubt. See Marras v.State, 741 S.W.2d 395,412 (Tex.Cr.App.1987) (W. C. Davis, dissenting); Jacksonv. Virginia, 443 US. 307, 318, 99 S.Ct.2781, 2788-89, 61 L.Ed.2d 560 (1979).Consequently, Fain's claim did not constitutea valid claim of insufficient evidenceand therefore the appellate courtsaddressed instead the predicate claim ofjury charge error.rnJanuary 1989 I VOICE for the Defense 37

Legislative UpdateReview of Pre-Filed Billsby E G. (Geriy) MorrisAs of the last week in November, approximately30 bills havi'ng to do withcriminal substantive law and procedurehavebeen pre-filed in theTexas HouseandSenate. Among thosebiis werethefollowingof particular interest.House Joint Resolution No. 12 filed byReprasentative Bob Richardson of Austinproposes a constitutional amendment thatwould grant the Legislature the power torequire or permit courts to inform juriesabout the effect of eood conduct time andeligibility for paroG or mandatory supervisionon the length of a sentence sewedby a defendant convicted of a criminal offense.House Bill 105 filed by the same sponsorcontainslanguagemakingitmandatorythat an instruction similar to that shuckdown in Rose v. State be given by the hidto a sentencing jury. The legislative committeewill oppose this legislation.House Bill 43 filed by RepresentativeWilliamson proposes to change thestatutory accomplice witness rule found inArticle 38.14, Texas Code of CriminalProcedure, to make a conviction supportableon the testimony of an accomplice ifthe testimony is corroborated by the testimonyof another accomplice. Thecommittee's position on this legislation isthat this change is unwarranted.House Bill 75 by RepresentativeBeancamp would change Article 38.23,ITuxns Codeof Criminal Procedure, torwdas followt: "Evidenceobtaind oursudnt toa governmental action is inadmissible inthe trial of a defendant only if the evidencewas obtained in violation of the Constihitionof the United States as construed bythe United States Supreme Court, and theCourt has ruled that theunconstitutionalityof the manner in which the evidence wasobtained makes the evidence inadmissible."Under this provision, violation ofState procedural rules would no longermake evidence inadmissible. A similarbiilwas introduced last session which was o pposed by TCDLA. The 1987 amendmentsto Article 38.23 represented a compromisewhich incorporated amodified "goodfaithexception" in our statutory exclusionaryrule. We will oppose any change to thisamended version of Article 38.23.Once again, we expect legislation to beintroduced seeking to change Article38.22, Texas Code of Criminal Procedure,to allow the introduction into evidence oforal confessions. WehaveaskedBobDawsonofthe University of Texas Law Schoolfor research assistance to determine howour oral confession statute compares withthose of the other states and whether a significantnumber of appellate cases havebeen reversed based on improperly admittedoral confessions. Information wehave gathered from news clippings indicatesthat police misconduct is apparentlyon the rise rather than the decline, andsafeguards for thecitizen arenowmoreimportantthan ever. We intend to strenuouslyoppose this legislation. We ask for thesupport of our members in fonvarding tous newspaper articles involving policemisconduct and also in contacting theirrepresentatives and senators to volce oppositionto this change in the law.Legislation will be introduced seekingto change Artrcle 38.23, Texas Code ofCriminal Procedure, to expand the "goodWhite Collar Defenseas charged;Second: That the defendant knew hewas in possession of a controlledsubstance; andThird: That he possessed the substancewith the intent to distribute it.You will notice that each of the threeelements contains a "mental" component.The instruction conhibntes to clarity bydcfining that coniponcnt separately ineachinstance. The defendant must know that hepossesses "something"; for example,somebody has planted the substance onhim will not suffice.Second, the defendant must know thatthis "something" is a controlled substance.Third, hemust have the intent to distribute,atermthattheinstructiongoesontodefine.I have been practicing criminal law formorethan twenty years. In that time, I havecome to appreciateclarity andsimplicity injury instructions, if that can be donewithout omitting crucial elements. I alsoconfess a preference, shared by the committeemembers, for a certain elegance, orformality, in jury instructions, as a meansof reminding jurors that they are engagedin an important, not to say solemn, task.The draft instructions will soon beavailable through district court clerks andthe Fifth Circuit Bar Association.Afmal note: Thedraft suggests that dishictjudges should, in every case where itis requested, give a "theory ofthe case" instruction.Suchaninstructionshouldberequestedin almost every case. It serves tosharpen the focus of jury argument, and toremind the jurors where the burden ofproof lies.38 VOICE for the Defense 1 January 1989

TCDLEl Building FundThe Texas Criminal Defense LawyersEducationalInstitute, whicbwas created asa nonprofit corporation by the officers anddirectors of TCDLA in May 1981 to enhancethe education of criminal defenselawyers in Texas, also owns the TCDLAhome office building in Austin. It is timeto movetowardpayingoffthemortgageonthe build'mg, and themost effective way toachieve that end is through tax deductiblecontributions to the Institute, and towardthat goal, we are reprinting a letter thatwent to the TCDLA membership with theannual dues statements in ~ecember fromTCDLEI Board Chairman Louis Dugasand TCDLA President Ed Mallett. Theletter is self-explanatory.December7,1988Dear TCDLA Member:The primary goal of TCDLA during the1988-89 membership year is the endowmentof our permanent home office. TheAssociation acquired a permanent site in1981 through the efforts of Charles M. Mc-Donald, The Honorable Bob Jones, DainWhitworth, and others. This real estate isowned and administered by the TexasCriminalDefenseLawyersEducationalInstitute,whose membership coincides withthe membership of the TCDLA.The TCDLA home office houses thestaff, whichcanies out the functions of theAssociation, including the planning ofeducational programs for the Associationand the Cn'minalDefenseLawyersProject,implementing the TCDLA legislativeprogram during legislative years, providingservices to the membership, includmga temporary office for members visitingAustin, and maintaining the records ofTCDLA, TCDLEI, and CDLP.To date, 41 TCDLA members havepledged or paid $1,500 in support of wmpletingthis project. John Boston arrangedfor refmancing of the property with anAustin hank. The note, with current principalbalance of $87,753.24, is w-signedeach year by Charles M. McDonald, PastChair of our Institute and Past President ofTCDLA.Viaually all criminal defense lawyerorganizations inTexas haveusedthebuild-In and Around Texasby John Bostoning at 600 West 13th Street. Approximatelyhalf of the original cost of purchase andremodelinghas beenrecovered fromdona-tions and rent collected h m the TCDLAand the CriminalDefenseLawyersProject.Now is the time to pay off themortgage.To further the goal of this project, weare enclosing along with your TCDLAmembership renewal, a pledge for thebuilding fund, payable in a lump sum of$1,500 or payable in $300 annual installmentsfor five years, each succeeding $300pyment lo bedue thc samc month-as the. . . .first uavmcnl until thc$I.S(W)isnid. Uwnfinal payment, you will become a Fellowof the Texas Criminal Defense LawyersEducational Institute, and your member-LegislativeUpdateconlinuedfronpge 38faith exception" contained therein to thescope of the good faith exception containedinleon. Professor Dawson will alsoprovideus withresearchassistance on thispoint to determine whether any appellatecases have been reported since enactmentof our statutory good faith exception in1987 where a search bas been held invalidbased on the search warrant affidavit failingto state probable cause. It may be thatthis legislation will attempt to fix aship will be memorialized in at least twoways: You will be awarded a plaquesuitable for display in your office, and yourname will be &av& on a largerin the Austin home office.Please, immediately upon receipt, signthe pledge and return it to the home officealong with your check for $1,500 or yoiu$300 initial payment. Those who havepledged or paid into the TCDLEI buildingfund will have their names publishedintheJune 1989 issue of the Voice for iheDefense and recognized at our annualmeeting - next summer in San Antonio. Thisrequest is, of course, made in addition tothe Association's need to promptly receiveyour annual dues.Cordially,Louis Dugas, Jr. Chair, TCDLEI andEdward A. Mallett, President, TCDLAP.S. PLEASE HELP: Your tax-deductiblecontribution to this endown~ent willhelp provide a comfortable and usefulhome for the defense lawyers of Texas nowand forever. If you need a pledge form,please lei us know, we'll send it.MembershipWe need to continue efforts to recruitnew members and sign up the old ones.During this legislative year, we need tospeakwith the support of as many believersin the rights of individual citizens as can hemustered. And what greater believers inthe Texas and U.S. Constitutions are therethan Texas Criminal Defense Lawyers?Every member get one new member. wproblem that is not broken. Again, thewording of the 1987 amendment to Article38.23 was a result of a compromise betweenthe opposing viewpoints expressedby the members of the House and Senate.We will argue that that compromise versionshould be given a chance to work todetermine if a problem in fact exists thatneeds to be addressed by further amendments.Please address your comments and suggestionsto the TCDLA Legislative Committee,c/o John Boston, 600 West 13thStreet, Austin, Texas 78701. rnJanuary 1989 I VOICE for the Defense 39