Judge Michael McC _ nick - Voice For The Defense Online

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