Judge Michael McC _ nick - Voice For The Defense Online

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