Judge Michael McC _ nick - Voice For The Defense Online

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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
Page 1 and 2: Judge Michael McC _nick*WELDON HOLC
Page 3: President's ColumnLas Vegas! Please
Page 7 and 8: saying what he says.BW: If gives yo
Page 9 and 10: are five judges that want to try so
Page 11 and 12: themsinceI'vebeenhereissoflofaliais
Page 13 and 14: son v. State, 661 S.W.2d 708 (Tex.C
Page 15 and 16: ANNOUNCING THE 1989 EDITIONS OF THE
Page 17 and 18: granted.Judge Onion further argued
Page 19 and 20: Warrantless Searches and Seizuresby
Page 21 and 22: ARlZONA V. YOUNGBLOOD,No. 86-1904,
Page 23 and 24: DOUBLE JEOPARDY - ENHANCEMENT - RET
Page 25 and 26: FACTS: Police cavtain testified at
Page 27 and 28: Opinion by Judge Teague; November 2
Page 29 and 30: that the defendant appeared to be c
Page 31 and 32: they were stolen, read and recorded
Page 33 and 34: ~ ~~~~ ~(Tex.Crim.App. 1970); see a
Page 35 and 36: S.W.2d 387, 388 (Tex.Crim.App. 1977
Page 37 and 38: to state an offense) and would besu
Page 39 and 40: ject isallowed to wtfor a short per
Page 41 and 42: A Comparison of the Public Defender
Page 43 and 44: List of Granted Petitions for Discr
Page 45 and 46: Supreme Court interprets the corres
Page 47: TCDLEl Building FundThe Texas Crimi

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