CONTENTS v01. 18, NO. 10 FEATURE ARTICLES - Voice For The ...

JOURNAL OF THE TEXAS CRIMINALDEFENSE LAWYERS ASSOCIATIONVOICE for Ilte Defeme (ISSN 0364-2232) i!published monthly by the Texas CriminaDefense Lavers Assaciatian, 600 W. 13thAustin, Texas78701, (512)478-2514, Annuasubscriplion rate for members of the assaciation is $100, which is included indues. Secancclass postage paid at Austin, Texas. POST.MASTER: Scnd address changes to VOICE foiIlzeDefnre. 600 W. 13th. Austin, Tems78701.All articles and other editorial contribution:should be addressed lo theeditor. Kerry P. Fin.Gerald, Reverchon Plazaat TurtleCreek, Suilt1350.35W Maple Avc., Dallas, Tcxas75219.Advenising inquiries and mntracls sent to Allerdonnaliy, Arfforms, Inc., 6201 Guadalupe,Austin, Texas 78752 (512) 451-3588.EDITORSEditor, VOICE fortlie DefeweKerry P. FitzGeraldDllllaskwciate EditorJackV. StricklandFblf WorthBusiness EditorF.R. "Buck" Files, Jr.TylerFAitor, Significant Deeisiom ReportCatherine Greene BumcltHoustonOFFICERSPresident1.A. "Jim" BobaOdessaPresidenl-EleetTimEvansFort WorthFirst Vice-F'msidentRichard Alan AndenonDallasSecond ViceResidentGerald H. GoldstcinSan AntonioSecretarymeasurerDavid R. BiresHowtonAssistant Secwtary/lka~urerRonald L GoransonDallasSTAFFExecutive DlmetorJohn C. BostonAdnlinistrative AssistantLillim SummarellSeerffaryShannon MclntoshBwkkeeperEecretaryLinda Shurnate@ 1989 TEXAS CRIMINAL DEWNSELAWYERS ASSOCIATIONJune 1989 CONTENTS v01. 18, NO. 10FEATURE ARTICLES6 Star Wars in the Courtroomby Justice Charles Bleil. Sixth Corrrt ofAppeuls andArdge Charles F. Campbell, Jr., Texas Court of Crinrirml Appealswit11 assisiarrcefro~n Joan Chachere14 Opening the Door to Extrinsic OffensesThrough Misleading Blanket Statementsby Prof: Frederick C. Moss20 The TCDLA Speakers Bureauby Tim Evans23 The Texas Law of Deadly Weawnsby Kevin Wilson25 Killer Mistakes by the Prosecutor in Adjudication and Transfer Proceedingsbv Robert 0. Duwsori27 DWI Litigation Part IVby J. Gary TrichterCOLUMNS3 President's Column 33by J.A. "Jirrr " Bobo4 Editor's Columnby Kerry P. FitzGeraldSDR1-8 Significant Decisions Report3826 The Federal Comer 40by F. R "Buck" Files, Jr.42Motion Practice: Motion for Juryat Guilty/Not Guilty Stageby Joseplr A. Corrnors, IIIAppellateDevelopmentsby Walter M. Reaves, Jr.A View from the Benchby Chief Justice Craig T. EIIOCIIIn and Around Texasby Jo111r Boston5 Lawyers' Assistance Conunittee 43 Memorandum to All Attorneys7 Index to Advertisers Arguing Before the Court17 Publications for Sale of Criminal Appeals35 CDLP/TCDLA Senunar ScheduleEduard A. hlalletl, Hourton (1988-I9891Charles 0. Butts. San Antonio, (1987-88)Knar Jones, McAllen (1986-87)Luuir Dugas. Jr., Orange (1985-861Clinon L. "Scrappy" ~otmes. hngview (1984-85)Thomas G. Sharpe, Ir., Bra~~~niville (1983-84)Clilford W. Brawn, hbbock (1982.83)Charles M. McDonald, Wac0 (1981-82)Rhrt 0. Jones, Auslin (1980-81)DIRECTORSWebb Bid, PairIfavidL Bot~fonl.A"~tinWiltianl A. Bratton.111, DallaStanBrorn,AbilcncCharlaL~~~on.DullaDick DeCuerin. H-tmFR. "BacYFdc;r,TylcrR d d "Rmty" Cuycr, Sam Antonio\Wllim"Bill"THabem, Sugarlandhlul C. Hd1,LubbockJohnHmah,TylerHarry R. Heard. langvicwIcky Hinkley, MiJlanlRobenC.Hiaon, DallasFdhckson,DdlorJeRKemy, Fon W dLynn hsalone. WarnPAST PRESIDENTSEAgarA, hlas~",miltasIohnH. Mller,lr, SintonB. G. ''&my Morris. AustinRobcrt A. Prim. 1V. San Antonio.. .MarkSteww. San Antoniolack V. trickl lad. Fort WMhI. hglas Tinker, CaplsChris,iR&rt Gqwy nmr, HmtonStanlev I. \Veinbere. DaIIacVinem Walker Perini, Dallas (1979-80)George F. Luquette. Hwrton (1978-79)Emmett Colvin. Dallas (1977-781C. Anthony Frilour. Ir., Hauston (1972-73)Frank Maloney. Austin (1971-72)mules Lanehan. LubbockDavid Mitrhan~HounonIhonw S. Berg. HouitonBetty BlacL?\~ll.AurlinhfichaelP. Hcislell. Fort Wonhlun WooJwrd Fox, HoustonMark G. Dmiel. Fm \VMh

A new year is about to begin for TexasCriminal Defense Lawyers Association.Ed Mallett is ready to retire and pass thereins of leadership to me. Ed has workedhard and tried to do many things for theAssociation this past year. Please let himknow how much you appreciate the time,work, and effort he has expended for theAssociation and its members.Each time a new president takes office,he has grand ideas on how to run the Association,and many goals he wants to attain.There are many things I would like tosee the Association accomplish. Two mainareas are membership and our financialstatus. Those two areas go hand in hand.We are approximately 1,200 membersstrong at this time. We really need to be2,5W members strong to enablens to havea large impact on things that occur in thelegisTatureand to ha~eistron~ voice in theStateBar. The Association, togrow, needsto be responsive to our members' needsanddesires. As a whole, I think theassociationdoes a good job in educating ourmenlbersthrough the Voice for the Defetise andcontinuing legal education. The Sig-~@caiit Decisions contained in each issueof the Voice is the best update on the Courtof Cnminal Appeals that anyone can obtainshort of reading each and every publishedopinion of the court.The area that I feel the Associationneeds to improve upon is members andtheir needs. I know our Association hasbeen very helpful to a number of attorneysin the recent past; and I know we have beenhuman and dropped the ball a few times.I'm honest enough to admit amistake whenit's made; and I'm forthright enough toassure you that the Association willtoughen up and make sure our members arereally helped and that any mistakes whichare made ai-erectified. In short, Icanassnreyou that the Association can and will reactto our members' needs.The Association has a good staff. Thoseof you who do not know them personallywill hopefully get to know them throughthis column. Shannon McIntosh is oursecretary who deals primarily with membershipapplications. In reality, Shannon isPresident's ColumnImportance of Membership to TCDLAa jack-of-all-trades. She does a little bit ofeverything 'om answering the telephoneto handling our most important senunars.She is adistinct asset to our Association.Lillian Summarell, our administrativeassistant, is a transplanted Bronx/Bostonian.Lillian has the heart of alioness andthe connections and experience of a wellseasonedtracker and guide. She handlesthe matter we have with the State Bar,handles our accounting, plans our housingarrangements for seminars, communicateswith our speakers, coordinates the hideswith the printer, attends almost every oneof our seminars, attends and records all ofthe minutes of the board meetings and executivesessionsfor the Association, TexasCriminal Defense Lawyers Project and theEducational Institute. In her spare time sheis the administrative assistant fortheTexasCriminal Defense Lawyers Project, andlast hut not least, because she was a childbride is now a very busy grandmother.John Boston is your executive director.Not only was he a flying member ofSemper Fi, but he handles recruiting ofnew members, helps plan our programs forseminars, coordinates our activities withthe State Bar, answers to the executivecommittee and officers, and attends allsenunm and board meetings whiie keepingabreast of political developn~ents inAustin as well as the rest of the state.During his spare time, John is executivediector of the Defense Lawyers Projectand a practicing attorney.As each of you can see, our small staffhas lots of jobs and responsibilities. Eachof them has a job because of you. Pleasecall upon them when yon need them. Iwouldask, however, that younot give thema lot of "busy work" that could easily beacconlplished by your own staff. Whenyou need help, call any of these people atthe home office and they will be back intouch with you as soon as possible. Eachone of them wants to aid and assist all ofour members that they possibly can. Manytimes ourstaffis travelingand yourrequestneeds to be put on our answering machineso that they can get back to you when theycall in to get messages off the machine.J. A. "Jim" BobnMany times we have members or officersand directors who call up and say"make my reservations," which is somethingthaicouldveryeasilybedoneby eachpractitioner's oftice staff. When you needhelp in any legal matters or any Associationmatters,thestaffwants tohelp youandwill help you as fast as can possibly beaccomplished.In discussing membership, I would beremiss ifIdid not state that the Associationis failing to reach a huge potential of membersin the Dallas and Hanis County area.I know that therearegood lawyers in thoseareas that are members of their criminalcounty bar associations and not membersof Texas Criminal Defense Lawyers Association.To beeffectivein thelegislatureand the State Bar, we need all the lawyersacross the state as well as those in thespecific areas I have just mentioned. Weneed each and every lawyer who handlescourt appointments across the state. Theattorney who gets an occasional court appointmentprobably has a greater need forour Association than an attorney who isboard certified in crininal law. The solepractitioner can benefit greatly if in noth-June 1989 1 VOICE for the Defeme 3

The Voice is privileged to honor one ofits founders, Weldon Holconlb of Tyler, inthis month's issue.Jim Bobo and I were visiting conceminga number of people who have consistentlyand effectively contributed to theTexas Criminal Defense Lawyers Associationyear afler year afler year. We resolvedthat one in particular - WeldonHolcomb-certainly deserved extra recognition becauseof his substantial involvement withTCDLA.I sought out a conunent or two from afew of his many friends:"If I am ever asked by the Reader'sDigest who has the most unforgettablecharacter that I have ever met, it wouldsurely be Weldon Holcomb."This quiet giant of the courtmomfromEast Texas has that unique abilityto completely dominate the courtroomwithout appearing tointimidatethe witness,opposing counsel or the judge.Further, he has the restraint necessarynot to physically hand the jurors theirstickofpeppernlint candy untilafter theverdict when they're all in the hall outsidethe courtroom seeking - his autograph."His influence on the jurisprudence ofthe State of Texas has been monumental.Most of you know of the changesClassified Ads - -Classified Advertising MUSEBe typed.Be worded as it should appear.Include the number of mnsecutive ismitis to appear.Beprepaid. (Make checkspayable to Artfarms,Inc.)' Be received by the 15th of the monthpreceding date of publication.Classified ads are $15.03 for the first 2.5 wordsand 50C for every ward over 25. Advertisingcopy should be submitted to ARTFORMS.6201 Guadalupe, Austin, TX 78752. Tel:(512) 451-3588.Acceptance of classified advertising forpublication in the VOICE for rlte Defm doesnot imply approval or endorsement of anyproduct, service, or representation by eitherthe VOICE for rlre Defense or the TCDLA.No refunds an cancelled ads.4 VOICE for the Defense I June 1989Editor's Columnbroughtabout by his prosecution of BillieSol Estes, and his argument to theUS. Supreme Court in the Wade casewhere he rewrote the rules on lineups.But he has also been a guiding light inmany other areas of the law, includingthe evolution of the Gaskin Rule. Helost the battle in Rose v. State, 427S.W.2d 609 (1968) where he advancedthe theory that if a witness has used anywriting to refresh his memory for thepurpose of testifying, the adverse partyis entitled to have the writing producedat the hearing and cross-examine thewitness. But what is more important, hewon the war whenRnle 61 1 oftheRnlesof Criminal Evidence was adopted."The world would be a better place inwhich to live if we had more reallawyers like Weldon Holcomb. I knowmy life has been enriched by knowinghim."JIldge Ben F. Ellis, DallasJudge Ben EUis"When I came back to Tyler in 1967to be a prosecutor, I found that abouthalf thedocket was represented by WeldonHolcomb.I bad probably hundredsof cases in which he was representing -thcdclundant and I w~sreprcsentingtlicStatc. Inall tl~csecnscs, I iound Weldo~~to be totally honorable. When Iswitchedover to the defense side of thedocket in 1970, I continued to see Weldonon viaually a daily basis in thecourthouse. Whether he had just won orhad been on the down side of a case, hisattitude was always the same. He wasfriendly not only to the people who heldKerry P. FitzGeraldpublic office, but to the folks whoworked in the courthouse or were simplycoming and going."I suppose that Weldon has practiceddefense law in Tyler longer thananybody else, and has probably reprtsentedmore people during those years.He has been a credit to the bar, and acredit to the position of defenselawyers."For eighteen years now, Weldon hasbeen a leader in TCDLA. While somepeople sewed their term as presidentand dropped out of sight, Weldon hascontinued to contribute, continued toattend meetings, and continued to be aleader in the association."F. R "Buck " Files, TylerF.R. "Buck" Files, Jr.

WeldonHolcomb has not only beenoneof TCDLA'sprominent founders way backwhen,and its president from 1976 to 1977.but he has also continued to actively helpTCDLAand its members on a regular basisthroughout the years since his presrdency.With certainly no obligation to do so,Weldon's attendance records and participationat board meetings over the yearsis an envious one.Weldon Holconlb is nianied to JoanCade of Chandler, Texas and they havefourchildren. He was educated in theTylerpublic schools and graduated in 1942. Heobtained his BBA from the University ofTexas and he graduated from the Universityof Texas Law School. He volunteeredservice in the United States Army AirCorps. from 1942 through 1945 and was inthe United States Air Force Reserve from1950 through 1958, when he was dischargedwith the rank of Fmt Lieutenant.He has previously served as Secretaryto the Texas Legislature for four sessions(1947, 1949, 1951 and 1951 Special Session).He was an Assistant AttorneyGeneral of Texas from 1951 to 1952. Heserved as an Assistant District Attomey inTylerfrom 1953 to 1959, when he becamethe Crinlinal District Attorney of SmithCounty until 1962.Weldon prosecuted the Cnillo-Chapacases in South Texas (which involved theGeorge Parr scandals). He was the firstDistrict Attomey to prosecute and convictBillie Sol Estes during the scandals of theearly 1960s. He prosecuted the firsttelevision hial in the United States (Estesv. United States).Weldon Holcomb defended Billy JoeWade in the Wade v. United States casesinvolvinglineups (388 US. 218), and thenwas deeply involved in the Beta a Gravescase (424 F.2d 524) (he obtained releasefor client for unlawful search and seizureby taking blood for blood type under subterfuge).Most of us are aware of the infamousdn~g bust of 1979.1980 in Tyler. Weldondefended the target defendant, Ken Bora.Four mistrials resulted before his clientwas released on habeas. Subsequently, thetwo nesting officers pledguilty inFederalCourt and went to prison for violation ofBora's civil rights. Eventually, over twohundred indictments against young personsin Smith County were dismissed.It is with agreat deal of pleasure that theVoice can recognize an individual such asWeldon Holcomb, who has repeatedlydemonstrateddedication toclient andcompetencyin the courtroom. He has also sig-.nificantly contributed to his communityand to TCDLA. It is comforting to knowthat lawyers such as WeldonHolcomb exemplifywhat TCDLA is all about.Lawyers' Assistance Committee MembersDistrict 1:Charles Rittenberry500 Fisk BuildingAmarillo, Texas 79101(806) 372-1217Mark HallP.O. Box 2187Lubbock, Texas 79408(806) 763-4617District 2:Jim Boho409 North TestOdessa, Texas 79761(915) 332-0676Rod PontonP.O. Box DEl Paso, Texas 79951(915) 532-1601District 3:Ed Mason12221 Merit Dr., Ste. 850Dallas, Texas 75251(214) 991-0200Jack Strickland500 Main St., Ste. 201Fort Worth, Texas 76102(817) 338-1000District 4:Red R. "Buck" Files. Jr.109 West FergusonTyler, Texas 75702(214) 595-3573District 5:Jack Zimmermanand Jim LavineFive Post Oak Park, Ste. 1130Houston, Texas 77027(713) 552-0300Kent SchafTer3000 Texas Commerce Towel600 Travis St.Houston, Texas 77002(713) 228-8500District 6:Robert Yzaguirre821 NolanaMcAllen, Texas 78501(512) 682-4308Douglas Tinker622 S. TancahuaCorpus Christi, Texas 78403(512) 882-4378District 7:Gerald Goldstein2900 Tower Life Bldg.San Antonio, Texas 78205(512) 226-1463District 8:Lynn MaloneMcDonald, Hmon,Malone and CanonicoP.O. Box 1672Waco, Texas 76109(817) 754-7317June 1989 1 VOICE for the Defense 5

Star Wars in the Courtroomby Justice Charles Bleil, Sixh Court of Appeals and Judge Charles F. Campbell, Jr., Texas Court of Criminal Appealswith assistance from Joan ChachereWhenfocusingonnewtypesofeviden- defendant to determine whether he spoke The test was based upon certaintiarymatters which may appear in our trial truthfully about the murder with which he premises: blod pressure is influenced bycourts. it is wrha~s best to begin by look- was charged. change in the emotions of a witness anding at acasgwhich rests at thethreshold ofsystolic blood pressure increases arewhat is meant by the title of this paper,"Star Wars in the Courtroom.'' Thatdecision, which launches us into what theCircuit Cowt called "this twilight zone," isthe not-quite-so-recent case of Frye v.United States, 293 P. 1013 (Ct. App. Dist.of Columbia 1923).In F?y, the Comt dealt with a singleissue which arose during the course of adefendant's murder trial. The defendant'sattorney offered anexpert witness to testifyabout the result of a deception test whichhad been conducted upon the defendant.The test, described as the systolic bloodpressure deception test, was given to thebrought about by nervous impulses sent tothe sympathetic branch of the autonomicnervoussystem. It was presentedto thetrialcourt that scientific experiments haddemonstrated that such emotions as fear,rage and pain always produced a rise ofsystolic blood pressure and that deceptionor falsehood or the concealment ofcriminal acts, accompanied by fear ofdetection when theactor is under examination,raised the systolic blod pressure in acurve that axresponded to the sbugglegoing on between fear and attempted controlof that fear in the actor's mind as theexamination touched on key aspectsof theconduct about which the actor was attemptingto deceive the examiner. Thetheorv behind this test was that uutb wasIspontaneous and came without consciousJudge Gmpbell is a graduate of SMUSchool of Laur He was an Assista~t DiswictAttorney in Har ris Counr,~from 1959-1972. He served as County Attorney andDistrict Attorney between 1972 and 1979.Judge Gnpbelln~sanAssis~a~~tAttorneyGeneral front 1979-1982, where hewas Chief of Prosecutors Assistance DivisionrrnderAttorney Gerzernl Mark White.Judge Canlpbell uus elected Judge ofthe Texas Court of Criminal Appeals in1982. He is a board cert$ed specialist incriminal law, since 1975 and is licensed lonmctice inall StateandFederal courts. HeIIis apast member of the State Bar Committeeon New Criminal Legislation (1977)anda@cfhculty ntenrber of the Texas JudicialCharles Bleil has served as Justice of College (1983). He is a rnenlber of thethe Sixth Court ofAppeals since 1981. Hereceived his B.B.A. fron~ Texas TechUniversiiy in 1966 and his LLB.from theUniversity of Texas in 1966. He ues inge1teralpracticefro1a197I-78, andservedas Jndge for the 5th Judicial Districtfrom1978-81. He has been on the ExecutiveCommittee, Judicial Section since 1986,and is a Fellow of the Te~as Bar Foundation.6 VOICE for the Defense I June 1989Board of Directors ofthe Texas Senate forthe Judiciary (1986I1988) and a mem&of the Supreme Court h~~ldicial EducafionBecutive Committee (1986-1988). Joan Efiwbeth Chocltere earned herHe has been a frequent lecturer on all B.B.A. fron The Utli18ersiiy of Te.ws atpltmes of cri~ninalaw at numerous sellri- Austin. She attended St. Magi's Universitynars sponsored by the State Bar of Texts S~hool of Law and g~hduatedfronl Southand has lectured at numerous se~ninars Texas College of lnw in May of 1988. Shespons~redbybot~t~rosecrrforsa~~ddefe~~se is cur~.errtly serving as a briefi~zg attorneyattorneys.on the 6th Court ofAppeals in Texa~kanta.

effort, while telling lies required a consciouseffort that was reflected in the bloodpressureand that theriseproducedby falseresponses was easily detected and distinguishablefromtheriseordinarilypmducedby fear of the examination itself. Beforetrial, thedefendant was giventhedeceptiontest and thescientist whoconducted thetestwas offered as an expert witness concerningthe test and the results obtained.The trial court sustained the government'sobjection and excluded theexpen's testimony. The defendant's attorney,inpresenting thequestion totheappellatecourt, sought reversal upon one rnle:The rule is that the opinions of expensor skilled witnesses are admissiblein evidence in those cases inwhich the matter of inquiry is suchthat inexperienced persons are unlikelyto prove capable of fomiing acorrect judgment upon it, for thereason that the snbject-matterso farpartakes of a science, art, or trade asto require a previous habit or experienceorstudy in it, in order toacquire a knowledge of it. When thequestioninvolveddoesnot lie withinthe range of common experience orcommon knowledge, but requiresspecial experience or specialknowledge, then theopinions of witnessesskilled in that particularscience, art, or trade to which thequestion relates are admissible inevidence.general acceptance in the particularfield in which it belones.We think the systolic blood pressuredeception test has not yet gainedsuchstanding and scientific recognitionamong physiological andpsychological authorities as wouldjustify the courts in adnuttingexperttestimony deduced from the discovery,development, and experimentsthus far made.The Circuit Court affmed the trialcourt's exclusion of this evidence. Fromthis case, we canextract what can becalledthe Fry rule: in order for an expert to beable to testify concerning a particulardeduction from a well-recognized scientificprinciple, the basis which gives rise tohis deduction must be upon matters sufficientlyestablished to have gained generalacceptance in a particular field and must bereliable. An underlying scientific principlemust be sufficiently reliable for the testimonyof a witness to be of assistance tothe jury. It has been observed by onetextbook writer that imposition of the Fqztest serves to (1) insure that a minimalreserve of expens can critically examinethe validity of a scientific detemination ina particular case, (2) promote a degree ofuniformity of decision, (3) avoid the interjectionof a time:consuming and often nusleadingdetermination of the reliability of ascientific technique into the litigation, (4)assure that scientific evidence introducedwill be reliable and thus relevant. ...& (5) oro-ized knowledge will assist the trier of facttounderstand theevidence or to determinea fact in issue, a witness qualified as anexpert by knowledge, skill, experience,training, or education, may testify theretoin the form of an opinion or othenvise.When an issue concerning the admissibilityof expert testimony of this typearises during the course of a trial, the questionwhich must be answered by the trialcourt in the exercise of its discretion issimple: regardless of the relative newnessor complexity of the evidence offered, atrial court n~nst decide whether the orofferedevidence is sufficiently reliable to beof assistance to thejury. See Sutton ArticleVII: Opinions arid &perf Tesri~nony, 20Hous.L.Rev. 445, 459 (1983); Tex. R.Evid. Handbook. With the stage thus set,we now proceed to examine a few types ofevidence which have begun to be offeredin our trial courts, namely: hypnoticallyinduced testimony, testimony concerningDNA ("geneticfingerpint") evidence, andtestimony related to the battered womansyndrome.Hypnotically lnducedTestimonyThe focal point of a discussion ofwhether hypnotically induced testimony isadnussible in Texas must begin withZnrliv. State, 758 S.W.2d 233 (Tex. Crim. App.1988), which holds that in some instanceshypnotically enhanced testimony may beadmissible. A look at the facts of the caseis helpful.Zani was convicted in 1981 for the Julv293F. 1014. Thedefendant citedmany vide a preli&&y screening to protect 23,1967murderofan~ustinco~venienc~cases supporting this rule. The Circuit againstthenaturalinclinationofthejyryto store attendant at the Town & CountryCourt, in determining whether the trial assign significant weightto scientific tech- Store. Zani had been a part-time eniployeecourt erred in excluding the expert niques presented under circumstances ofthatstoreforaboutthreeweeksbetweenwitness's testimonv concerning the test, where the trier of fact is in a wor wsition mid-Mav and the earlv oart of June. 1967.observed:Just when a scientific principle ordiscovery crosses the line betweenthe experimental and demonstrablestages is difficult to define. Soniewherein this twilight zone theevidential force of the principle mustbe recognized, and while courts willgo a long way in admitting experttestimony deduced from a wellrecognizedscientific principle ordiscovery, the thing from which thededuction is made must be sufficientlyestablished to have gained-. .to place an accurate evaluation uponreliability, and (6) impose a ihresl~oldstandard of reliability in light of the factthat cross-examination by opposing counselis unlikely to bring inaccuracies to theattentionofthejury. Graham, Ha~dbookofFerlerwl Evidence, 9 703.2 (2nd ed. 1986).Rule 702, of both the Texas Rules ofCivil Evidence and Texas Rules of CriminalEvideuce, is applicablein this area andthus oughtto be kept in nund. It. . , .He knew how to operate the cash register,and, because he had sometimes beenresponsible foropening or closing thestarewhen he worked there, he would haveknown the combination to the floor safe,hidden' beneath a rubber mat behind theregister.VOICE ADVERTISERS~eshony by Experts Bailman ~ ond . . . . . . . . . , 13Forensic Consultations . . . . . . . 39If scientific, technical or other special- FreelanceEnterprises . . . . . . . ~. 19. .June 1989 / VOICE for the Defense 7

attack to the police and submitted to aphysical examination which revealed thepresence of semen in her vagina. Vaginalswabs taken from the victim containedblood type 0. A crime lab analyst testifiedthat both thevictimandappellant Andrewswere blood type 0. Andrews, however,like a majority of the population, was asecretor, meaning that he secreted hisblood type in his saliva and other bodyfluids. The analyst conceded that while thetype O blood could have originated inAndrews' semen, it could also haveoriginated in the victim. The analyst concludedthat, based on blood types, sixtyfivepercent of the male population couldhave been the source of the semenand thatAndrews was included in that group.Over objection, the state presentedevidence derived from DNA testing linkingAndrews to the crime. DNA testinggreatly limits the percentageof individualswho could be the source of the blood sinceit determines the structure of the DNAmolecule contained in the blood, not justthe blood type. The DNA test comparedAndrews' DNA stmcture as found in hisblood with the DNA structure of thevictim's blood and the DNA found in thevaginal swab, taken fromthevictimshortlyafter the attack. Michael Baird of Lifecodes,a corporation specializing in DNAidentity testing, testified that a match existedbetween the DNA in Andrews' bloodand the DNA in the vaginal swab, statiugthat the percentage ofthe population whichwould have the same DNA stmcture indicatedby the samples would be 0.0000012percent. In other words, thechance that theDNA structure found in Andrews' bloodwouldbeduplicated insomeother person'scell was one in 839,914,540. The structureof an individual's DNA nlolecule, whichcontains his genetic information, is so uniqueit has been called a "geneticfingerprint.""Genetic fingerprint" evidence has alsomade its debut in Texas. Although noTexas appellate court has passed on theissue of adnlissibility of DNA test results,it isamatterthat will beaddressed by thosecourts in the near fiiture. DNA evidencehas reportedly been admitted in severalTexas district courts, with a persuasive inlpacton the outcome of the respective cases.The Florida Court of Appeals inAridrei16 v. State examined the test for admissibilityof DNA evidence using theguidelines set forth by the Third Cicuit inUnited Stoles v. Dowiing, 753 S.2d 1224(3d Ci. 1985). The Downiiig approachrecognizes relevancy as the "linchpin" ofadmissibility and at thesame time requiresscientificevidenceto bereliable. The courtin Andrews found the Downing "relevaucy/reliability"approach preferable to theFrye "general acceptance" approach. InDowiing, the Thiid Circuit declared thatwhere a form of scientific expertise has noestablished "track record" in litigation,courts may look to a variety of factors thatmay hear on thereliability of the evidence.753 F.2dat 1238. Thesefactorsinclude: (1)the novelty of the new technique - itsrelationship to more established inodes ofscientificanalysis; (2) theexistenceofspecializedliterature dealing with the technique;(3) the qualifications and professionalstatureofexpert witnesses; (4) tbenonjudicialuses to which the scientific techniquesare put. Douwirrg, 753 F.2d at 1238-39,citing Weinstein's Evidence $702[03].To deternine whether evidencederivedfrom DNA testing meets critenon one, thecourt in Andrew explored the scientificprinciples upon which DNA testing isbased. The following suminary is based onthe testimony of David Housman andMichael Baird, Ph.D.s in biology andgenetics, respectively, who explainedDNA analysis at Andrews' trial: DNA is amolecule that carries the body's geneticinforn~ation. It is contained in every livingorganism in every cell that has a nucleusalmostevery cell of the human body.Strands of genetic coding are found in theDNA and the configuration is different forevery individual, except for identical offspnng,suchas twins, triplets,etc. Theconfigurationis the same in all of the cells ofan individual andits characteristicsremainunchanged during the individual's lifetime.To read the information contained in theDNA,certaincbemical procedures areperformed.A procedure known as restrictionfragment length polymorphismhas existedfor ten years and enables scientists to cutthe strands at predetermined locations andcompare the DNA structure of differentindividuals. The test involves treatment ofthe DNA molecule with an enzyme orreagent which recognizes differences in thesequences found in the DNA molecule.The discoverer of the use of thesereagents,a Dr. Arber, was awarded the Nobel Prizeabout ten years ago, and Housman, ascholar and professor of molecular genetics,testified that DNA sequencing andcomparison testing has beendonefor aboutten years, is considered reliable, is performedby a number of laboratories aroundthe world, and is generally accepted in thescientific community. Housman furthertestified that DNA testing is routinely usedin the diagnosis, treatment and study ofgenetically inherited diseases. Accordingto a footnote in Cobey v. State, 533 A.2d944,950, N1 (Maryland App. 1987), DNAprint identification evidence is admitted attrial in England.ThestrandofDNAis cut at veryprecisepoints using the reagents which in effect"read" the order of the elements and cutprecisely at the sequence they recognize.The next step is to identify by length theDNA fragments. This is done through gelelectrophoresis, which separates the different-sizedfragments of DNA. In thisprocedure, the cut DNA is put in a cellmatrix composed of gel and a negativeelectric current is applied. The DNA,which has a negative charge, runs towardthe positive charge. The gel acts as a sievein which the large fragments cannot moveas fast as thesmallerones. Once thelengthof the DNA fragments is established, theDNA is transferred to a piece of nylonmembrane. A radioactive probe is thenadded which identifies particular fragmentsthat it is designed to recognize. Themembrane is put next to x-ray film and thefilm is exposed by the radioactivity. Thefilm is developed and the results revealbands of DNA. Such bands, or more accuratelythe pattern ofsuchbands, can thenbe compared to those obtained in tests ofother specimens. (Andrews opinion, p. 11:summary of test described in testimony byDr. Housman, a professor of moleculargenetics, and Dr. Baird of Lifecodes.)Testimony in the Andrew case indicatedthat if some problem arose in conductingthe DNA test, the tester couldexpect no result at all rather than an erroneousresult. The frequency by whichgiven DNA bands appear in the populationis calculated using an established statisticaldata base, employing a statistical formulaknown as the Hardy-WeinbergEquilibria. This principle is used for determiningother genetic characteristics suchas blood type or Rh factors, dates back tothe 1920s and has been generally acceptedJune 1989 1 VOICE for the Defense 11

in the scientific community as being accuratefor this calculation. (Ar~rlrewsopinion, p. 14).The court in A~dreivs conduded thatevidence derived from DNA testing mettheguidelines set forth inDowning by theThird Circuit, and applied the followingguidelines to the facts:failed to show error on this point."It appears that Texas appellate courts -depending on the evidence in a particularcaseand thelaying ofaproperpredicatewillin all likelihood approve the use ofDNA test results. This position is readilyjustifiable under an application ofthe Fryrule, the Dowrlirl~ or "relevancy apwoman who was madly in love with herhusband; that even though he went too farwith his sex "games," she willingly participatedin and enjoyed most of them.Thus, her relationship with her husbanddid not produce in her a fear of him as sheclaimed, hut when she found out that hewas involved with another woman, she(1) N~wlty 01. the ncw technique mi pro~~ch,"~~runderourown~ule7(~,'~l'cx~s shot and killed him inn jcalous rage..thu nonjudicial uses III which thc scicntilic Kulcc ol'Crinlinltl lividencc. I'a~ilcla Fielder's theory of the case w;~ctechnique is put.that she had suffered tortuous physical,The evidence mdicated that DNA test- Battered Woman Syndrome Evidence emotional and sexual abuseat the hands ofing had been utilized for approximately tenher husband; that this violent relationshipyears and was considered to be a reliable, Expert testimony tending to explain convinced her that he could and would killwell-established procedure, performedina why a woman might remain in a marriage her if she disclosed his sexual proclivitiesnumberoflaboratories aroundtheworld.It in which her husband physically and men- to anyone; that on the night of the homhasbeen used in the diagnosis, treatment tally abused her is admissible if relevant icide, when she revealed that she had disandstudy ofgenetically inheriteddiseases. and of assistance to the factfinder. A look cussed their relationship with an attorney,The court concluded that this extensive at the case of Fielder v. State, 756 S.W.2d he became angered; she tried to run away,Inonjudicial use of the test was evidence 309 (Tex. Crim. App. 1988), demonstrates but he pulled the pistol and indicated thattending to show the reliability of the tech- to us this developing area of evidentiary he would make good on past threats to k~llniqne. law. her. Because of her fear and belief that her(2) The existence of specialized litera- Pamela Fielder killed her husband of husband would kill her, she grabbed theture dealing with the technique. three years on July 23, 1981, by shooting gun and shot him to death.The record revealed that a great many h~m seven times with a .45 caliber pistol. Section 19.06 of the Texas Penal Codescientific worh existed regarding DNA She was charged with murder, claimed provides the following:identification. According to Baird, Life- self-defense, and was convicted by a jurycodes maintained a file on all scientific of voluntary manslaughter. PamelaFielder In all prosecutions for murder orjournal articles and publications with claimed during the trial that she had suf- voluntary manslaughter, the Stateorregard to DNA testing and he was unaware fered physical and sexual abuse from her the Defendant shall be permitted toof any article that argued against the test's physicianhusband withincreasing severity offer testimony as to aU relevantreliability. throughout the marriage. What seemed to facts and circumstances surrounding(3) The qualifications and professional begin as bizarre sex games blossomed into the killing and the previous relationstatureof expert witnesses. sado-masochistic sexual abuse by Danvin ship existing between the accusedThe state's witnesses were accepted by Fielder and near the end of the marriage he and the deceased, together with allthe trial court as eminently qualified ex- became physically violent when they ar- relevant facts and circumstancesperts in the field of moleculargenetics. gued.Shetestifiedthathefearedthatsome- going to show the condition of the(4) The nonjudicial uses to which the one would find out about his peculiar niindoftheaccusedatthetimeofthescientific techniques are put. proclivities andtoldherthat ifsheevertold offense.The test and the information received anyone he would kill her. Ultimately thefrom it were shown to routinely be used in two Fielders argued during drinks. Darwin The only contested "conditionof mind"the diagnosis, treatment and study of Fielder banged his pistol down on a table, issue at trial was the reasonableness ofgenetically inherited diseases. then sat down on the edge of a chair. Pamela'sfearthatDarwinwouldusedead-Inupholding the trial court's admission Pamela Fielder banged her drink down ly force against her at the time of the killoftheevidencederivedfromDNA testing, next to the pistol. She picked up the pistol ing, and this was themaincontested issue.the Florida Court of Appeals stated the and started backing away from Darwin PamelaFtelder's claimindefensewa.s thatfollowing: "Incontrasttoevidencederived F~elder, directing him to leave her alone when she shot her husband, she believedfrom hypnosis, truth serum and polygraph, and when he continued approaching her, that he would kill her if shedid not kdl himevidence derived from DNA print iden- she, in fear for her life, remembered that fmt. This claim raised the justificationtification appears based on proven scien- "the gun went off." She testified that she defenseunder Section9.3l(a) of theTexastific principles. Indeed, there was grabbed thepistol becauseshehadto make Penal Code whichprovides that apersonistestimony that such testimony has been him leave her alone and that if she didn't justified in using forceagainst another andused to exonerate those suspected of get away he would kill her. to the degree that "hereasonably believes"criminal activity. Given the evidence in The Court of Criminal Appeals charac- the force is immediately necessary tothis case that the test was administered in terized both the State's and Pamela protect himself.conformity with accepted scientific proce- E~elder's theory of the case thusly:During cross-examination of Panieladures so as to insure to the greatest degree The State's theory was that Pamela Elelder, the State attempted to get her topossible a reltable result, appellant has Fielder was a competent, professional admitthat,contrarytoherdirecttestimony,12 VOICE for the Defense I June 1989

in which she said that she was afraid toleave her husband for fear that he wouldkill her, that in fact she was not afraid ofher husband and that she did not leave himbecause she loved him. The State's crossexaminationof Pamela Fielder called intoquestion exactly why she did not leave herhusband or seek help from a third partyduring the course of the marriage.Thedefense thencalled a psychologist,Beatrice Matheeney, who was a marriageand family counselor and a Ph.D. in thefield of psychology. Matheeney profferedtestimonythat shehadanopinionasto whya woman who did not condone ~racticessuch as occurred during the ~ieider marriagewould nonetheless continue to staywith orremainwith her husband. The Stateobjected to Matheeney's proferred testimonyand opinion because the testimonywas (I) not relevant; (2) not shown to be ofassistance to the trier of fact; and (3)prejudicial. The trial court detemlined thatthe objection was well taken and sustainedit. On hill of exception, Matheeney explainedthat there is a recognized phenomenonin the profession that most peoplehave a tendency to believe that they wouldnot endure a situation such as PamelaFielder found herself in; that all the averageperson can see is that the abused womanreturns to her abuser without really nnderstandingher reasons; that those who havenot experienced abuse do not have anyframe of reference to fully understand whya woman would stay with a man whoabused her in a fashion as described byPamela Fielder; and that the kind of perversesexual abuse, hypothetically detailedtoMatheeney while testifyingas a witness,would be even more difficult to disclose toanother person than simple beatings orother strictly physical abuse.The trial judge concluded that to permitMatheeney's opinion in evidence beforethe jury would be "an invasion of theprovince of the jury in the fact fmdingprocess."Again, in rebuttal, the defense offeredadditional testimony of two Ph.D.s in thefield of sociology, colleagues at theUniversity of Texas at Arlington's Centerfor Social Research. These witnesses wereprepared to compare Pamela Fielder andher abusive situation with 542 otherwonien and to show that, of all theabusivehusbands they had researched, only abouttwo percent were more violent than DarwinFielder and that the level of violenceexperienced by Pamela Fielder was "ex-ceptionally high." This evidence was excludedas having no relevance, and as nothaving been shown to he reliable, competentexperttestimony which wouldassistthe jury in resolving an issue in dispute.The Cow of Criminal Appeals referredto its decision in Wenter v. State, 711S.W2d 639, in which it examined Section19.06, supra, as a rule of "relevance."There it emphasized that 19.06 in no waybroadens or otherwise affects the rules ofevidence which apply, or the nny in whichthey apply in a homicide case; that collateralfacts which do not logically tend toprove or disprove matters in issue are not. . .. .adlmSsLble.The Court held in Werner that 19.06permits two types of evidence: "(1) all'facts and circumstances surrounding thekilling' whichare probative ofthematerial'condition ofthe mindofthe accused at thetime of theoffense'; and, (2) all 'facts andcircumstances surrounding . . . the previousrelationshipexistingbetween the accusedand the deceased' which areprobative of the material 'condition of themind of the accused at the time of theoffense."'TheCourtofCriminal Appeals held thatthe exclusion of Matheeney's testimonywas error and that the testimony wasrelevant in that it could explain the enduranceof the hypothetical woman in away that the jury could infer it to he consistentwith the claim of fear of the abuserand that the testimony was of appreciableaid to the factfinder and would becif assistanceto the jury. The Court also concludedthat the other experts' testimony was admissible,but that it might have beencumulative and therefore within the trialcourt's discretion, would not of itself warrantreversal.ConclusionWhere are wegoing with regard to thesenewtvoes ofevidence?It aDueats thatthereare &ny new types of evzence being offeredinthe coumoom. We have discussedseveral types,bntasoursociety progresses,many more areas of expertise are developing.Consequently we may expect that, associety continues to produce a wide arrayof experts, these groups will be offeringopinions incourt based on principles whichare accepted in varying degrees by otherspossessing l ie skills, knowledge, trainingor special experience in a particularscience or trade.While it appears that new types ofevidence will keep our courts "somewherein this twilight zone5'in which "the evidentialforce" of scientific principles demandsrecognition, we can be guided by someobservations. The application of the F ietest calls for a two-part judicialdetemination,(1) that the trial court itself finds thescientific test reliable and (2) that itsreliability is generally or substantially acceptedin the pmicular scientific field inwhich the test belongs. Newness of the testor evidence alone, like the three presentedin this paper, is not a bar to admissibility,for every scientific technique must have itsfust day in court. Moreover, neither lack ofabsolutecertainty nor lackofuniformity ofexpert opinion precludes a trial judge fromfinding on the basis of expert testimonyand any other relevant evidence admittedat trial that a scientific tesvevidence is reliableand that the tesvevidence's reliabilityis, or would be generally or substantiallyaccepted in thescientific field at issue. See,generally, the majority opinion inBurefootv. Estelle, 103 US. 3383,463 S.Ct. 880,77L.Ed.2d 1090 (1983).The trend in Texas Courts, as isevidenced by a reading of Znni, supra, andFielder, supra, along with Rule 702 of theTexas Rules, is to liberally allow experttestimony inalmost any situation in whichthe testimony is relevant and helpful tothetrier of fact.--FIRST TO YOUR RESCUE24 HOURS. ANY JAIL TERMSSE HABLA ESPANOL FRIENDLY SERVICE1189BellnirrBbd. .Suitel01 +Hou~ton,Texa977WZ?GERALD P. MONKS. Ph.D.WdW(*N BONDCO. UC. a14IIYIBONDEOSUPERVISION1UIDS TO:RMECO~OL,TAXCONTROL,SELFCOMRO1Franchise AvmilmbhJune 1989 I VOICE for the Defense 13

Opening the Door to Extrinsic OffensesThrough Misleading Blanket Statementsby PmL Frederick C, MossInfroductionThe accused, your client, insists ontaking the standio his own defense. Duringdirect examination, you ask why he ranfrom thescene of thecrime. He answers, "Igot scared. I've never been in troublebefore." You know that he has an arrestrecord as long as the prosecutor's arm, butno convictions admissible under TexasCriminal Evidence Rule 609. Or, evenworse (check your malpractice insurance),comforted by the restrictions of Rule 609,you ask him, "You have never been introuble with the.law before, have you?" towhich he says, "No." Or, on cross-examnation,in response to a question by theprosecutor asking why he ran from thecrime scene, the accused states, "Well, Igot scared when I saw the police coming. Ihave never been in trouble with the lawbefore."In all of the above situations, yourclient's answers have kicked open thedoorto his entire "rap sheet." The prosecutor isnowpem?itted toquestion theaccusedcontceming his arrests, convictions for misdemeanorsnot involving moral turpitude,,, and any other "trouble with thelaw" he hashad, no matter how long ago it occurrrd., Further, the D.A. now may inh'oduce extrinsicevidence to contradict your client'sdenial of the other "trouble" if he denies it:i on cross-examination, even though the- point beingconaadictedisacollateralmatter.And, it is no defense to this extrinsicproof (e.g., dope, guns, Miranda-less statements,etc.) that it was seized in violationof your client's constitutional rights.Whenever the accused takes the stand,'. either during the guilt or penalty phase ofthe trial, the accused and his attorney mustbe acutely aware of the dangers of dooropeniug"blanketstatements" which createa false impression of the accused's lawabidingness.This article will discuss thekinds of statements that will open thedoor,and what if any limits exist onthe kinds ofimpeachment evidence admisssible once14 VOICEfor the Defetise I June 1989Frederick C. Moss is an AssociatePmfessorofOlwat the Southern MethodistUnisersi~~ School of Law in Dallas. Overrlie lust eleven years, he has taught coursesin criminal law, criminal procedure,evidence. prof2ssio1ial responsibility andtrial advocacy. Pmf: Moss came to S.M. U.in 1978afier receiving his LLM.frorn Harvardwhere he nnosa teaching Fellowfron1975 to 1977, and a lecturer-in-law in1977-78. At Hannrdhe estaWishedthe$rstpmsecvtion clinic for students. Prior to hisyearsatHarvard, Prof: Moss nnos on Assis-tant United S t Attorney in Washington,D.C. for four years, 1971-75. He receivedhis J.D. from Villanow University LawSchool in 1968, and his B,A. in 1965fronGeorgetown University.Since 1981, Pro$ Moss has been theDirector of the National Institute for TrialAdvocacy Southern Regional twining session.He also writes the Evidence Updoecolunin for the Texas Stute Bar LitigationSection's publicufion, The Advocate. Helectures frequently at CLE programs onevidence and legal ethics.the door has been opened. The article willconcltlde with a discussion of the Prescottcase, a valuable case to have at hand whenarguing to the trial judge that your clientdidnot open thedoor toimpeachment withcollateral extrinsic offenses.The Limits on Cross-ExaminationIt is clear that the accused who testifiesis subject to impeachment as any otherwitness. Hammett v. State, 713 S.W.2d102,105 pex.Cr.App. 1986). Thus, hiscredibility as a witness may be impeachedby reputation and opinion testimony(T.R.Crim.Evid. 608(a)), and by convictionswhichmeet the requirements of Rule609. Prescott v. State, 744 S.W.2d 128,130 (Tex.Cr.App. 1988). However, priorbad acts or couvictions not admissibleunder Rule 609 are not admissible to impeachthe accused's credibility as a witness,even if the extrinsic offensedemonstratesthewitness'slackoft~thful-ness. T.R. Crim.Evid. 608@);Alrxander v.State, 740 S.W.2d 749,761 (Tex.Cr.App.1987). Such extrinsic offenses are usuallyadmissibleonly ifthey arerelevanttoshowsome fact like those spelled out in Rule404(b): motive, opportunity, intent, identity,knowledge, etc. Absent suchrelevance, the defendant cannot even bequestioned about extrinsic offenses.Alemnder, supra. They are simply not admissibleunder the rule banning evidencetending to show a "propensity" to commitcrime. T.R. Crim.Evid.404@). @'hisis nottrue, of course, at the punishment phase ofthe trial, see T.R.Cr.Evid. 404(c);T.R.Cr.P. 37.07, sec. 3, when the character,of the accused is admissible, and may beproved by reputation, opinion and priorconviction evidence.)Finally, it is alsoclear that the accused,like all other witnesses, cannot be inlpeached(contradicted) on a collateral matter.That is, if a collateral point is raised bythe prosecution on cross-examination, theaccused's answer may not becontradicted

with later proof. The term "collateral"refers to facts which have no relevance tothe proceeding other than to attack credibilityofthe witness by contradiction. See,e.g., Flanne~y v. State, 676 S.W.2d 369,370 (Tex.Cr.App. 1984). There, thedefendantwas charged with murdering the manaccused of raping his daughter. The courtheld it improper for the prosecutor to introducetestimonytocoutradict thedaughter'sdenial on cross-examination that she hadtold the police that she had orgasms duringthe attack. Whether she reported that shehad orgasms was a collateral matter, andcontradiction with extrinsic prooE is nutpermitted.Therefore, if an accused is asked oncross-examination about some collateralconduct, his answer is not subject to contradiction.In Alemnder 17. State, 740S.W.2d 749, 761 (Tex.Cr.App. 1987), arape-murder case, the prosecutor knewthat, when the testifying defendant purchaseda gun a month before the murder,he failed to mention his two prior felonyconvictions. On cross-examination, theprosecutor asked the defendant whether hewas the "sort of person who would lie."The defendant replied, "I try not to be."Thereafter, the prosecutor was permitted toelicit the false gun application from thedefendant. The court reversed the conviction,holding that, "The State cannot openthe door to matters not othenvise admissibleand then prove up. the collateralevents, unless the events themselves wereindependently adnlissible." In Moreno v.State, 711 S.W.2d382 (Tex. App.-Houston[14th Dist.] 1986), the defendant wascharged with attempted murder after attackinga police officer with a knife. Oncross-examination, and over objection, thedefendant was asked if he had owned gunsand had fued them within the apartmentcomplex where the offense occurred. Afterthe defendant denied these questions, theprosecutor was permitted to call witnessesto contradict him. This was held to be improperimpeachment on a collateral matterinjected into the case for the first time bythe prosecutor on cross-examination. Seealso, Slripnmn v. State, 604 S.W.2d 182(Tex.Cr.App. 1980); Mueldin v. State. 308S.W.2d 36 (Tex.Cr.App. 1957); Clark lrState, 693 S.W.2d 35 (Tex.App. - Houston[Ist Dist.] 1985); Smtlia~n 1,. State,683 S.W.2d 89 (Tex. App. - Dallas1984).Opening the Door:TheTroublewith"Trouble"However, all ofthese protections vanishif the careless accused makes a "blanket"statement on direct examination whichcreates a false impression of the blanlelessnessof the accused's life. The Colut ofCriminal Appeals has heldnumerous timesthat:An exception to this general mle[prohibiting the admission of otherwiseinadmissible extraneous offensesto impeach a defendant-witness]arises when a witness, during directexamination, leaves a false inipressionastotheextentofeitherhis prior(1) arrests (2) convictions (3) chargesor (4) "trouble" with the police.Ochoa v. State, [481 S.W.2d 847,850 (Tex.Cr.Ap., 1972)l.When the accused leaves such a falseimpression during his diict examination,he is commonly said to have "opened thedoor" to an inquiry by the State as to thevalidity ofhis testimony. That is, the Stateis allowed, duringcross-examination,todowhat it could not otherwise do. That is,dispel the false impression left by the accusedas to his past, a subject which isusually anirrelevant issue, collateral to thecase, and thus inadmissible. Prescott v.State. 744 S.W.2d 128, 131 (Tex.Cr.App.1988) (Footnote omitted.)When the doorhas been opened, theprosecutor may not only pursue the matteron cross-examination and elicit the informationnecessary to dispel the false impressionthere, but she may also introduceextrinsic evidence of the contradictingfacts if the defendant does not concedethem on cross. In Ex Parte Carter, 621S.W.2d 786 (Tex.Cr:App. 1981), after thedefendant admitted only two prior convictionsand two prior arrests on direct, theprosecutor was alIowed to elicit thedefendant's 13 other arrests from anotherwitness. And in Gi1111ore 1,. State, after thedefendant said on direct that he "would notand had not committed" an anned robberyinthat conmunity, theprosecutorwas heldto have properly been allowed to introducewitnesses who identified the defendant ashaving robbed another store in the samecommunity eight days after the chargedrobbery.Once the prosecutor has questioned theaccused about the extraneous offenses tocorrect a false or misleading statement ondirect, and assuming that the prosecutorhas a good faith basis for thequestions (seein@), the prosecutor is not required to"prove up" the extraneous offenses or"trouble" if the accused denies the priortrouble. Nelson v. State, 503 S.W.2d 543(Tex.Cr.App. 1974). However, if the othermisconduct is denied, and proofsuch asthedefendant's "pen packet" is not properlypresented, the prosecutor should beprevented from making any further referenceto the collateral nusconduct.Whether the door has been opened tocontradiction with all four kinds of prooflisted in Prescott depends largely on thesweep of the blanket statement and thequestions to which it responds. Prescott,supra. The broadest question will createthe greatest potential for a misleadinganswer. For example, in Bell v. State, 620S.W.2d 116 (Tex.Cr.App. 1981), the accusedwas asked by his counsel if he haddone anything of a cri~ninal nutvre in hispast. After the defendant revealed only oneprior felony conviction, the prosecutorwaspermitted to question about two misdemeanorconvictions and his arrests andindictments for two robberies. Because thedefendant 'was asked such a broad question,the answerimplied that the one felonyconviction he mentioned was the only"thing of a criminal nature" in his past.This, of course, was not true. Had thedefendant been asked only whether he hadany prior felony co~~victions, his answerwould have been true and, arguably, notmisleading. See also, Nelson Ir State, 503S.W.2d 543 (Tex.Cr.App. 1974);Alesunder s. Sfare, 476 S.W.2d 10 (Tex.Cr.App. 1972); Heartfield v. State, 470S.W.2d 895 (Tex.Cr.App. 1971); and Barrrettv. State, 445 S.W.2d 205 ' (Tex.Cr.App. 1969). In all ofthese cases, thedefendantwas asked whether he had ever been"in trouble" before, and he either respondedwith a flat, "No," or he recountedsome, but not all, of his "trouble" with thelaw. This led the court ineach case to holdthat the defendant had opened the door toa fuller inquiry into his record.It is clear that some defendants believethat they are safe in denying or onuttingreference to arrests and nunor convictionswhen asked overly-broad questions. Theymust bedisahused ofthis erroneous notion,. .June 1989 1 VOICE for the Defense 15

and counsel must becareful in phrasing the volunteeringmisleading inforn1ationaboutquestion. An example of how careful his past. Because thekey notion hereis thatphrasing can prevent the accused's answer of the defendant's waiver by "volunteerfromopening the door to his entire arrest ing" or initiating the subject of his past, itrecord is found in Rodriqrrez v. State, 272 would he logical to conclude that such 1S.W.2d 366,367 (Tex.Cr.App. 1954). The volunteering could occur on cross-exdefendantwas charged with possession of amination too. Andso thecourts haveheid.marijuana, and testifiedondiiect examina- In the punishment phase of the detionthat he had never been convicted of a fendant'srobbery and kidnapping trial, thefelony, norhad heever beenin "any serious defendant was questioned on cross-extrouble."The ma1 court held that this tes- amination as follows:timony opened the door to cross-examina- Q. Now, when you realized that [the victioninto his being jailed for "disturbance" tim] escaped and ran into the conand"vag," and several otherja~lings where venience store[,] you and Bob ran?he wasnot charged andreleased. The Court A. Yes, ma'am.of Criminal Appeals held that the de- Q. If you were so concerned aboutfendant's assertion that he had not been in cooperating with him, why didn't you"serious trouble" did not open the door to wait for law enforcement people to getconvictions for petty offenses and arrests there?on unspecified charges. These were not A. Well, I got scared."serious trouble," and therefore did not Q. Scared of what?contradict the defendant.A.Thatwas thefmt timelhadheenbusted,But, it is a slippery business not to open you know.the door inadvertently when questioning Q. Are you sure that was the fmt time youthe defendant on direct about his past. In have ever been arrested for anything?Burden ,r State, 634S.W,2d349,351 flex. A. Yes, ma'am.App. - Fort Woah 1982), the defendant The coua of appeals in this case, Marwascharged with indecency with a child. tinez v. State, 728 S.W.2d 360Theqnestionputtohimondirectexamina- ('lex.Cr.App. 1987), held the subsequenttion was: "And is [this] the first time you cross-examination, which established thathalve] been accused by anyone of doing the defendant had been arrested previouslyanything of the nature charged here .. .?" for "sexual abuse [of a child?]," to beThe response was affnlative. On cross, proper TheCourtofCriminalAppealsdistheprosecutorwasallowedtoestablishthatagreed, observing that the appeals courtthe defendant previously had been arrested had erroneously concluded that Eater v.for rape in Virginia. The court of appeals State. 645 S.W.2d 812 (Tex.Cr.App.held the cross-examination to have been 1983), permitted the contradiction of aproper, noting that the remoteness of the defendant's false blanket statementsarrest was immaterial. See Ochon v. State, regardless of whether the falseinlpression481 S.W.2d 847 (Tex.Cr.App. 1972). was the result of direct or cross-examina-Clearly, the court of appeals felt that rape tion. The Court of Criminal Appealsis "of the nature" of indecency with a reiterated that the general rule is that theminor, and, thus, rebutted the defendant's false impression must be initiated by the"blanket" claim.defendant on direct examination. HOWever,the Court went on to say that this case0 ening the Door calls for similar treatment, and upheld theon &SS-~xamination cross-examination as proper.The Court stated that the general ruleTherulepermittingthecontradictionof exists to prevent abuses by prosecutorsblanketclain~sofgoodcharacter, asquoted who might try to "set up" thedefendant onat length in the Prescott case, supra, states cross "by clever maneuvering," and thenthat the false impression must be created introduce otherwise inadmissible exbysomething the defendant says on direct traneous offenses under the guise of imemminationbefore contradiction will be peachment. Martinez, 728 S.W.2d at 361.allowed. The rationale for this is that the However, this case was distinguishable.defendant is protected from being qua- Here the defendant had "voluntarily testionedabout extraneous offenses and ar- tified as to his prior criminal historyrests unless he waives that protection by without any prompting or maneuvering by16 VOICE for the Defense I June 1989the prosecutor and in so doing he falselyasserted that he had never been arrestedbefore." The prosecutor's "wholly innocent"question,"Why were youscared?"was not adeliberatesubterfuge toelicit thefalse imprewon and set the defendant upfor contradiction.The general rule, therefore, must be expanded,the defendant may be impeachedwithcollateralextraneous offenses torebuta false impressioncreated by thedefendanton diiect examination, or volunteered byhim on cross-examination. The expandedrule is further demonstrated by Burrow v.State, 668 S.W.2d 441,443 (Tex. App. -El Paso 1984). Burrow was charged withDWI. On cross-examination, he was askedhow many beers he had consumed prior tohis mest. Hemponded that hedidnotliketo drink and did not drink much. In rebuttal,the state's witness testified that thedefendant visited his barthree to fourtimesa week and rarely stopped drinking hardliquor until he was drunk. The court ofappeals approved ofthis tactic, because thedefendant's response on cross was beyondthe scope of the question put to him.Therefore,he opened the door to the rebuttal.Pyles v. State, 755 S.W.2d 98, 112(Tex.Cr.App. 1988), illustrates how adefendant can inadvertantly nudge the"door" ajarondiect, and thenvolunteer ananswer on cross which kicks it open all theway. Pyles shot a deputy sheriff. He adnuttedburglarizing several businesses thatnight and taking a gun he found at onelocation. He claimed to have been scaredwhen confronted by the officer in the darkand shot in self-defense, not knowing thevictim was an officer. On diiect exanunation,the defendant claimed to have stolenthe gun for no palticular reason other thanto sellit, andinsisted that he hadnever useda pistol in his life. The Court characterizedthis testimony as implying that he was nota manof violent intentions. Thenoncross,when the prosecutor suggested that thedefendant disliked the police, he volunteered,"I have actually had personalfriends that were police officers."In rebuttal,the State was allowed to prove thatwhile injail prior to the trial, the defendanthad scrawled on the wall, "Kill all whitepig police" and "Kill, kill, Judge, D.A."The Court of Criminal Appeals held thatthe rebuttal evidence was properly admittedbecause, on direct, the defendantfirst raised the issue of his non-violent

tendencies, and, on cross, he gratuitouslyvolunteered his friendship with officers.Therefore, the State had the right to rebutthe "false insinuations" about his goodrelationships with law enforcement officers.Pyles is a close case. It seems clearthat theprosecutorknewofthe wall writingbefore he began to cross-examine thedefendant. It is also certain that regardlessof what the defendant said on direct, theD.A. was going to ask the defendant abouthis feeling toward police officers, culminatingwith an accusation of hatred ofpolice ;hat was likely to be denied. Thiswas a "set up" on cross. Nevertheless, theCourt was on firmer ground with its alternativeholding. It reasoned that Pyles'shatred of police officers was not collateral,but was relevant to prove his motive inshooting the deputy. Certainly this is correct,hut it directly contradicts the earlierholding, which was that Pyles had openedthe door to inlpeacl~iiterrt on a collateralmatter. 755 S.W.2d at 115.No Constitutional LimitsThe United States Supreme Court hasheld that whenadefendant has gratuitouslymade sweeping claims of righteous livingondirect examination, the prosecutionmayrebut the testimony with evidence that wasseized unconstitutionally. In Walder v.United Smtes, 347 US. 62 (1954). the accusedwas charged with four drug sales. Ondirect, he volunteered that he had neverpossessed, sold, or transferred narcotics.Oncross, hedenied that a capsule of heroinwas seized from his home two years earlier.In rebuttal, the prosecution called witnesseswho testified to the heroin seizure.The earlier drug case was dismissed afterthe heroin was suppressed for having beenillegally seized. The U.S. Supren~e Courtheld that Walder had abused his FourthAmendment protections by trying to usethem as a shield for perjury. See also, Harrisv. New York, 401 U.S.222 (1971)(statementof defendant which was suppressedfor having been taken in violation of Miraitdacould be admitted to impeach hercontrary direct examination testimony);and United Stares v. Havens, 446 US. 620(1980)(cut-up T-shirt illegally seized fromdefendant's luggage held admissible to rebutdefendant's denial on direct and crossthat he bad anything to do with the narcoticsfound sewn into the clothing of acompanion). The lesson of these cases isthat illegally seized evidence and statementsare available to the prosecutor tocorrect a defendant's "mis-painted picture."Requirement of Good FaithBut a prosecutor may not take randompot shotsat an accused who makes sweepingclaims of prior clean living. Questionsabout adefendant's orior"trouble"mustbefounded on a good kth belief in the truthCheck DesiredPurcharePublications For Saleof the facts inquired about. Thus, for example,after a defendant asselts that he hasnever been in trouble before, the prosecutorcannot ask, "I see you grew up inHouston. Do yon want this jury to believethat you were never arrested in all youryears there?" Unless the D.A. has a "rapsheet" listing an arrest in Houston in herpossession, the question alone is highlyimproper. In Garcia v. Stare, 319 S.W.2d727 rex.Cr.App. 1959), the prosecutorcross-examined the defendant concerningan arrest for carrying a pistol. On a hill ofSales PriceCrinlinal Practice Materials (2 vol.)1988-89 Editiona Federal Criminal Practice Manual (3 vol.)1986-1987Editio11a IncompetencyAnsanity Defense Manual (1 vol.) $50.00I986 Editio~ta Capital Murder: Defense Against the Death Penalty Manual $50.001986 Editiona Drug Offenses and the Fourth AmendmentApril 19870 DWI Defense Manual - May 1987 $50.00n TCDLA Homicide Course Book- Septeniber 1987 $75.00a Representing Sex Offenders and the "Chemical Castration $10.00Defense" - Author: Ray TaylorSales Tax is not included. (7 3/4% as of April 1, 1989)..................................................Please check desired purchare(s) and send this order form to theCriminal Defense lawyers Project, 600 West 13th Street, Austin, Texas 78701.CIMBTATYLIPWChWNO0 cash sale check enclosed 0 please bill*All bmks will be nuiled bmk rate (4 weeks delivery) unless athewise specified.June 1989 1 VOICE for the Defense 17

~ ~ ~ ,~~~~~~exception, it was established that the The defense attorney's first line of He expressly denied implying that he hadprosecutor knew that the gun charge had defense to attempts to impeach a client's "never had a lawyer, never had a casebeen dismissed. The bad faith conduct of "blanket statements" is usually to argue before." The trial court then, over objectheprosecutor resulted in a reversal of the that the defendant did not open the door to tion, permitted the prosecutor to bring outconviction. See also, Dnvis 1,. Stnte, 268 the collateral misconduct. If the testimony the prior felony trial.S.W.2d 152 (Tex.Cr.App. 1954). by the defendant which the prosecutor The court of appeals held the inlpeach-In order to preserve a "bad faith" objec- claims was misleading was ambiguous, men1 to be proper, finding that the trialtion, evidenceofthe prosecutor's bad faith then theanswer to thequestion whetherthe court was withinitsdiscretioninruling thatmust be in the trial record. See Alex-ander prosecutor can introduce the collateral the defendant's redirect testimony wasI,. Stnte, 476 S.W.2d 10 (Tex.Cr.App. other "trouble" should be governed by misleadingandopenedthedoor.TheCourt1972); andHear~Jeldv. State, 470 S.W.2d Prescott v. State, 744 S.W.2d 128, 131 of Criminal Appeals disagreed.895 (Tex.Cr.App. 1971). If the defense (Tex.Cr.App. 1988). Prescott was chargedattorney believes that the prosecutor is with murder. He chose to testify, and on The answer here was in direct"bluffing," that is, cross-exanlining about cross-examination he was questioned response to the question asked.nonexistent arrests, for example, the about his relationship with two persons When attempting to detemune thedefendant's attorney should immediately who had executed affidavits supporting meaning of a response, the predicateobject and seek to approach the bench. Prescott's version of events. The prosecu- question is a determinative interpre-Once there, counsel should demand to tor sought to deternine how the defense tive tool. The appellant's responseknow the basis of the questions. If the learned the identity of the two, and bow it was not a deliberate attempt .. . todefendant's "rap sheet" does not contain happened that both gave their affidavit to portray himself as one ignorant ofthe matters gone into by the prosecutor, the defense attorney on the same day. the criminal justice process. It wascounsel should insure that the accused's On redirect, the defendant testified that however, indicative of an appellantrecord is made a pad of the trial record for he did not know the two before the inci- unversed in theeveryday proceduresappeal purposes. This was done in Nelson dent. Then, going into the taking of the of attorneys - particularly with%r State, 503 S.W.2d 543 (Tex.Cr.App. affidavits on the same day, counsel in- respecttothetakingoftwoaffidavits1974). Defense counsel may even call the quired: in one day.prosecutor to the stand out of the hearing Q: Now, did you have any control overof the jury to establish a record for appeal what day that I decided to workon your The Court went on to concede that theon the bad faith issue. Keel ir State, 434 case? defendant's response may have been am-S.W.2d 687 (Tex.Cr.App. 1968). Of ... biguous. But it ultin~ately held that, "Givencourse, if the prosecutor's basis is ques- Q: When I decided to take a statement or an ambiguity, the complained of responsetionable, counsel for the accused should do anything in your case? should be narrowly construed." The courtmoveforanlistrial.Ifthemotionisdenied, A: No, sir, I had no control over that. ..neglected to point out that the harm in thecounsel should request that the jury be ... defendant's testimony, if any, was thorinstructedto disregard the prosecutor's Q: Did you - do you find anything un- oughly countered on re-cross when he adquestions.Defense counsel must remain usualthatthelawyerdecidedtoworkon mitted that he did not mean to imply thatalert and not let the prosecutor refer to any your case took two statements one day? he had "never had a lawyer, never had abaseless extrinsic offenses during closing A: Well, I'm - this is my fust time of case before." The trial coult should haveargun~ent.Evenifthereisagoodfaithbasis going through this. Hopefully my last. terminated the cross-examination on thefor the collateral impeachment, it must be In other words, I don't I ' m not sure extraneous offense at that point. The falseremembered that "other trouble" evidence, about the legal lawyer (pause) what- impression was completely rebutted, andoffered to correct nlisleading testimony, is ever- the prejudice of bringing out the prioradnutted only to impeach thedefendantns Q: Okay. felony trial would have been avoided.n witness. This means that the prosecutor, A: -procedures. Nevertheless, Prescott is a signal to thein her summation, may not use the col- The prosecutorknew that thedefendant trial bench that they should be slow to rulelateral offenses as "procensitv" or charac- had beentriedforafelonvinthesamecourt that anaccusedhasone~ied todoortoother-~~ ~ ~~~ ~ ~ ~~ter evidence. That is, she ma; not use thewise inadmissible other crimes evidence if"other trouble" as proof of your client'scriminal propensities, or argue that theprobability that accused committed the offensepresently charged is increased by hisother indiscretions. This is firmlyprohibited by Tex.R.Crim.Evid. 404(a)and the fust sentence of Rule 404@).Ambiguous Blanket Statements:PrescottIS VOICE for the Defense I June 1989one year earlier. When sie tried to pin thedefendant down on re-cmss and get him tosay that he had never been charged with acrime before, the defendant wriggled offthe hook. The prosecutor had the courtreporter read back the earlier "this is myfirst time of going through this" answer,and asked him, "Now, what did you meanby your answer?" He replied, "What Imeant was this is t his is the first timethat I have been questioned about two witnessessigning statements the same day."the testimony is an~biguous.The core of the Prescott holding is thattheantidote may beworse than the disease.Certainly, Rule 403 demands that the trialcourt measure the possible prejudice to thedefendant resulting from the rebuttalevidence against the improper advantagethe defendant tried to take. An ounce ofmisleading does not call for a pound ofcure.

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*:Mail completed form to:* Sales tax information: inside Austin MTA: 73'495 Freelance Enterprises, I ~c.elsewhere in Texas: 7% P. 0. BOX 15243Austin, TX 78761-5243

The TCDLA Speakers Bureau:How to Get the Lions Club to Stand Up for Individual Rightsby Tim EvansThe pendulum of justice has gatheredsuch momentdm from its fall through thearc of individual liberty that it nowthreatens to sweep up the innocent in itsrush toward conviction. From our observationposts, we criminal defenselawyers seethis danger sooner than those citizens whoare turned the opposite direction - on thelookout for crime. We must get them tolook over their shoulders and realize it isthe gyroscope of checks and balances thatrights our ship of state and keeps us free.We must get this message to the potentialjurors andvoters inour communities ifwe are to survive the frenzy of fanaticismwhipped up by opportunistic politiciansand sensationalistic journalists preying onthe citizens' concern about crime.Let me suggest, however, that you donot try the preceding lawyer language onthe good boys at the local ~i~~~ club. Tim Eior~spractices law with thepr~n ofThe Exhaulted Tail Twister is likely to roar Evans, Gandx Daniel & Moore in Fortyour pinko butt out of the room. Worth. He received his law degree from~ ~ we must ~ be t more ~ clever. d we Terns Tech Universiiy in 1969and is boardmust convince them that criminal defense cert'fied in cri~nlinal law.lawyers are real people with a genuine Tim is the president-elect of TCDU,concern for our comlunities. hi^ is a vice-chairman of the cri~nir~al jcrstice secprettytall order in these times, but I ' ~ tion of the State Bar, and serves on theconvinced that it can be done. why Pe~ml Code Adiiso~y Coris~rittee for theI urge each of you to beconle active in the State Bur. He was selected as the "Out-Texas Criminal &fense L~~~~~~~ speak. standing Crirni~ml Defense Lawyer" forers ~ureau and start talking some sense to 1987-88 by the Criminal histice Sectio~i ofyourneighbors.the State Ban He is also nj?eqrterrt lectrrrerHere are some ideas about how to get at State Bar CLEprogralm.your foot in thedoor and anoutlineof whattosay when youget therethathave workedsurprisingly well for me.human being, but also sincerely concernedFig: In your offers to speak, forget about the common good. You might startabout high sounding topics such as "Our off with something like this: "I'mproud toConstitution," "Civil Liberties," or the be able to tell you I'm a criminal defense"Right to aFairTrial."Instead, play to their lawyer and I'mhere onbehalf of the Texaspreconceived prejudices by offering them Criminal Defense Lawyers to offer you aa chance to "Put a Crinunal Defense look behind the political rhetoric and sen-Lawyer on the Hot Seat" or to find out sational headlines and tell you the huth"What's Really Going on Down at the about what really goes onatthecourthouseCourthouse."and in the criminal justice system. Now letSecondly: When you get there, start off me stop right here and tell you that I knowby showing them that you are not only a many of you out there just said to your-selves, 'I can't believe you just publiclyadmitted that you were a criminal defenselawyerand thenhadtheaudacity tosay youwere proud of it!' Well, it's because I'vegot faith in our common belief in fairnessand our natural apprehension ofpowerthatI can say this with some confidence thatyou'll agree with me before I step down."Third: Explain to them that our fundamentalvalues inthe criminaljusticesystemare sound. That their judges andprosecutors are just as committed to doingthe right thing as their police officers; infact, often times more so. That they havebee given amisperception ofthe systeminthree major areas. First because whenthings go right, as they usually do, itdoesn't make headlines. The media searchesfor the unusual or sensational andtherefore if all they ever read or hear aboutis theexception to therule, they soon beginto believe that the exceptions are the rule.Secondly, politicians have discovered thata sure way to get votes is to incite theemotions and fears of the voters about thecrime problem and offerthemselves as thesolution. Another tactic is to find somebizarre isolated incident where the systembroke down and blame their opponent forit. Then they claim the opponent is soft oncrime. Third, too many people in the systemtry to shift the blame when they arequestioned by the media about what iswrong. This ismost evident with the policeas they constantly point the finger atlawyers and judges even when it is theywho made thenustake. We must all realizethat a belief in the overall effectiveness ofthe criminal justice system is the greatestdeterrent to crime and those within thesystem must support it to restore that faith.The outline follows:I. Personalize Yourself. (Just as youwould do for a client before a jury.)A. FamilyB. Ties to the community20 VOICE for the Defense I June 1989

C. Concern about the crime problems11. I'mhere to answer your questions,' ., hut let me throw some out to get us. . started. (ask for a show of hands)' A. How many of you believe, criminals have too many rights?B. How many believe we needtougher laws to combat crime?C. How many believe liberal judgeslet too many criminals off on legaltechnicalities?D. How many believe there's toomuch plea bargaining going on at theCornhouse?E. How many believe too manycriminals are paroled too early?E Finally, how many of you want toknow how I could represent somebodyI knew was guilty?0.k.. let's take the questions one at atime.III. Crindnals have too many rights.A. Criminals have very few rightsand about the only one that comes tomind is to be free from cruel andunusual punishment.B. Because people aren't"criminals" in this country until theyare convicted.C. "Criminal's Rights vs. Victim'sRights" are the buzz words ofpoliticians trying to get you to votefor them because they'fe "tough oncrime," (Who could win if they cameout in favor of the criminals?)D. Let me assure you that nobodywants to protect the guilty fromproper pmsecution. The danger isthat thisrhetoric of politicians tryingto take advantage of your legitimateconcerns about crime will confuseyou about the impatance of thoseprecious safeguards that protect theinnocent from the mistakes andabuses of bureaucraticgovernmentalpower.E. Here you may want to go oversome fundamental principals (don'tcall them "rights") such as trial byjury, presumption of innocence, burdenof proof, and the exclusionaryde.F. We must have rules and they mustapply in all cases. Otherwise, whendo we allow them to he bent or dis-carded and who gets to decide? (Askthe business people in the audiencebow many are governed by federalregulators. How many would like itif the regulators got to change therules whenever they felt like it?)N We need tougher laws.A. More political propaganda1. The easiest thing for apolitician to do is pass a law orpropose one. It's much easier todo this than vote to fund additionalcourts, or a new jail, ortell constituents that the newjail is going to bein their neighborhood.2, Here point out that everylegislature has had its "crimepackage" which has yet to stopcrime.E.g.s: 1920sCrimeEradicationAct1968 Omnibus Crime ControlAct, etc.B. The myth of deterrence1.11's been afirst-degreefelonywithuptolifeinthepentorape,rob and murder in this state forover 100 years.2. Enhanced penalties andmandatory sentences cannotdeter because nobody knowsabout them until after they'recaught. (Here tell your audiencehow educated and awareof public affairs they are, thenask them if they know whattheir sentence would be if theyburglarized a building; a home;had a gun with them? Theywon't know, so how could anuneducated ghetto kid high ondrngs possibly know, or bedeterred?)V. Liberal Judges and Legal TechnicalitiesA. Liberal judges are extinct.B. A Judge is a refeee, not a participant.C. The loser screams "technicality"and blames the judge, just like acoach or fan blames the referee. A"technicality" to the loser is usuallya violation of a fundamental mle oflaw to the winner.D. When some courageous judge ob-serves a foul and calls it against theprosecution or police, do you reallybelieve either will admit to thenewspaper that it was their mistakethat caused the case to get reversed?(No, they will blame the judge andscream "technicality.")E The truth about appeals. A commonmisconception of the public isthat even if a person is convicted,their lawyer can "get them off" onappeal. This is not only untrue, itleads to a dangerous hut erronemusfeeling that criminals can beat thesystem.1. Only a small percentage ofall cases is appealed.2. Of this small numberr only12 to 16% are reversed.3. Most cases that are reversedaremerely returned for anothertrial, and the defendant doesnot "get off."VI. Too MuchPlea BargainingA.Inaperfectworld thereshould notbe plea bargaining. But .. .Get thenumhershm your district clerk. (InTarrant County it's about 1,200cases per court.)B. Point out that thedec~sionis basedon what both sides believe a jurywould do with the case.C. The defendant gives in also. Thestate often gets a guilty verdict in amarginal case.D. They are well represented bycapable prosecutors who are notgoing to give cases away and judgeswho stand for election have to approvethe agreement.W. Too many prisoners are let outearly.A. Tell them (to their surprise) thatwe have had mandatory minimumsentences in Texas since 1977.B. We all told the legislature and thegovemor that this would expand theprison population. However, thepoliticians told you they weren'tgoing touse yourtax dollills to buildcountry clubs for criminals (morebuzz words) and you went for it.C. Incarceration is extremely expensiveand should be reserved for incorrigibles.Alternatives must bedeveloped,June 1989 1 VOICE for the Defense 21

D. The length of a sentence is nodeterrent (see "myth of deterrence"supra). So we need shorter sentences,imposed quicker because certaintyof apprehension andpunishment is much moreof a deterrentthan oppressive sentences inlposedafterthefact.Butthis will takemoney forlongoverduecourtexpansion.VIII. How can I represent the guilty?"Because in doing so I have the opportunityto daily participate in upholdingthe miraculous system of checks andbalances given us by the founders ofthisnation to protect against the inevitableabuses of governmental power broughton by the human shortcomings of thosewho wield it. By making sure thegovernment follows the rules when itdeals with a bad person, we insure thatthe good citizens will always have theprotection of these rules."In summary, let me assure you that inthe vast majority of cases the guilty areconvicted, even after the rules are followed.(In Tarrant County the D.A.3conviction rate is 97% - this usuallyastounds the audience.)"Let me also assure you that the systemworks. It is overburdened from alaekofproper funding and planningby the verypoliticians who tell you they are toughoncrime, but fundamentally it is souud.The answer is not to weaken oursafeguards and make it easier to convict,for if we do this, we make it morelikely that the innocent will get caughtup in the rush to judgment and subjectto the abuses of unrestrained power.Rather, the best deterrent to crime is toget themessageout that thesystemdoeswork. If guilty, you will be convicted,you will be punished, you will not getoff on a technicality. If there are anyamong you who still doubt me, thinkabout this: The Texas Department ofCorrections is straining with the burdenof 40,000 prisoners and the county jailsof our state hold thousands more -these people did not get away withcrime!"This outline is only intended to providegeneral topics and ideas. It sh&d beliberally supplemented with examples,anecdotes and emotion, just as if you wereconductingjury voirdireorfinal argument.Otherwise, you mightjust as well put themto sleep by readingthe Constitution. Ithinkyou will find that if you get your audienceinvolved, you'll be rewarded when JimBob comes up after your speech and says,"You know, I never really thought about itlike that before."For those of you willing to accept thechallenge and "speak up," I have includedthe following form letter which can beeasily tailored to address virtually any organization:Dear Program Chairman:Do your members want to know whatreally goes on at the Criminal Courthouse?What's the deal with "plea bargaining,"parole, and legal "technicalities?" Wouldyou like to put a lawyer on the hot seat toanswer YOURquestions about the criminaljustice system?None of us condone crime but it is essentialthat our solutions to the problems inthe criminal justice system be based onfacts. The Texas Crinunal Defense LawyersAssociation is sponsoring this programtoincreasecommunity awareness bygiving you the opportunity to hear andquestion those who are at the courthousedealing with these problems daily.As a member of TCDLA I am ready towork with you to speakor~rovide sceakersto your organization. The-format \hll be ashort speech followed by a question andanswer period in order that your memberscan be personally involved and ask theHARD questions that so often are left unanswered.Please contact meor my legal assistant,Mary Pracht, at 817/332-3822 if you areinterested in this program.Sincerely,President's Columnc o ~ z r i ~ t d3o eing else but using the significant decisionsto reduce their research time. Each of youreading this column needs to run your ownrecruiting program to bring the lawyersthat I havediscussed in this paragraph intothe association. Cany a membership fom~on youand offer to fill it out for any lawyerwho should be a member of our Associationand get his check right then so that hecan join us right away.Texas Criminal Defense Lawyers As-sociation needs to bring in "new blood" togrow, get new ideas, and develop leadersin the area of criminal law for the future.The Association has been in existencesince 1970. We are rapidly approachingour twentieth anniversary. lhaveonly beencarrying the banner for defendants since1973. We have many members who werecarrying the banner for erinunal defendantsa long time before 1970 when theAssociation was frst thought up and adecision made to begin the Association inthe back of a taxi cab. If we do not stattoday to bring in new people with newideas, it will never happen. People who winraces begin by taking the first step. Talk ischeap. The time for talking is passed. Weneed each of you to act now to become amoving force in the future of the TexasCriminal Defense Lawyers Association.If our nlembenhip grows, our financialposition will improve. Financially, we canimprove our position by running seminarsthat are well planned and well promoted.Our Association has to plan a reasonablebudget and live within our means. Hopefullythis can be done with the help, time,and effort of each member. Help make theTexas Criminal DefenseLawyers Associationamoving force in the stateof Texas..22 VOICE for the Defeuse I June 1989

ISIGNIFICANTDECISIONS .REPORT Editor:Catherine Greene Burnett IJuan Manuel GUTIERREZ, No. 68,5O&Murder ConvictionAffirmed: Opinion by Judge McCormick; JudgesClinton and Miller Concur in Result; Judge Teague Dissents;February 1,1989.CONFRONTATION-CROSSEXAMINATION-IM-PEACHMENT ON COLLATERAL ISSUES PROPERLYDENIED:Fack: X called aseye witness to murder of brother. He testifiedthat on nieht of murder heaccomoanied his brother to a lounee.c> s, .while they wcrcdrinking with friends, L) enterud and ask~xl rosunvk to c/w.l'hev wcnt outside. X followed to doorw,~v andvhched. He saw D standing two feet from his brother &hen hesuddenly tooktwo steps backward, pulled out a gun, and fired itfour or five times killingc/rv. Hc testified he did not see anyweapon near c/w and that c/w did not carry gun. Whcn Ws attorneyobjected to time frameof question, X said he had not seenbrother carry gunin last year.After State ~sted, D sought to introduce testimony of Y, apparentlygoing to issueof whether she had seen c/w carrying gunwithin last year. On appeal, State argued evidence was collateral;D areued

D relied on Sumnerv. Shuman, 107 S .Ct.97 L.Ed.2d (1987)as support for his argument that becausc he was already under alife sentence in the reduced capital murder guilty plea fromanother county, Eighth Amendment barred impositionof deathpenalty. TCA distinguished Sutnner. In that case D was convictedunder Nevada statute that mandatddeath penalty for murdercommitted by person who was already under sentence of life imprisonmentwithout oossibilitvof oaroleif another and seoaratekurder was cammitth. SKtieldthat under "individuaLedcapitalsentencinr: doctrine" thestatute was unconstitutional becakeit did not aiiow forconsiduntion of mitigating factors. Incuntrast underTexas statute, imrx~sitionof dwth uenaltv was notmandatory; instead jury was reiuired to make individualizeddetermination and consider any relevant mitigating evidence. Ininstant case D was allowed to present all of his desired mitigatingevidence at punishment. Sumner therefore inapplicable.Barbara Ann GRIFFIN, No. 955-86-011 State's PDR-Opinion by Judge Clinton: Judge Teague Concurrs inResult; Judge Miller not participating; February 8,1989.C/A reversed at 715 S.W.2d 790.CONFESSION-JUVENILE NOT GIVEN FAMILY CODEWARNING-SUBSEQUENT CONFESSION FOUNDNOT TO BE TAINTED:Facts: D was 16 year old juvenile at time of offense. She wasconvicted as party to murder; punishment assessed by jury at 15years. C/W found strangled in his home 6/29/83. He had beendead for several days. On 7/13/83 officers, acting on anonymoustip, went to home of D's aunt. Aunt consented to search of homeand investigators found set of glassware that had been taken fromC/W'S house. Aunt and D agreed to accompany police to stationand give affidavit explaining how they came to possess glassware.Neither D nor aunt were under arrest. At station, as D gave affidavitto officer, it was discovered she was a iuvenile. While aff~d.~vitwas being typed, V mnwnrtd to bc fir&rprinted. Officcrslearned thai fingerprints matched ihost:ar n~urder \cent.. I) plawduder nrruji and given Mirnnda wrnings. D told olficw "I was inIIO~ISP, but 1 didn't kill him." 1:orthc next lvmr offimrand V "diccussed"murder and officer took notes. Later D was taken to~nagislrdle who administered family code wtrnlng under Section.51.09(b)(l). Macistnttr was not told i~lxwr mior "discussion" hutweenD and ocicer.D then gave officer written statemcnt implicating - hersclf asparty 10 mitrdcr. Sht: was taken bc,f(woa difirre~~t tnagistratt* thatnight and once again instruct~ul in arcordance with Swti~~n 51.09.This magistrate was also not told 1) had bcm quesrioncd prior tofirst 11ragistralt:'s warnings. D was not ddvistsd about admiwbilityof her initial or.d stolcmel~t. I ler initial oral statemont was not admittedat trial.C/A reversed, finding that second, written statement wasrendered involuntary because D was unaware her earlier oralstatement could not be used as evidence against her. Because C/Afound D's oral statemcnt inadmissible as matter of statutory (asopposed to federal constitutional) law that court declined to holdwhether subsequent rvritten confession was in any sense"tainted" by the illegality which affected the oral confessiongivenprior to any juvenile warnings. Instead, C/A held second confessionwas itself involuntarily extracted and thus a due processviolation (because D was never told theoral statement could notbu uscd against her and w) was "nwcr frw of the psychologiraland practical di~~~dv~nt~~gcshavinrlolrcadv confcidj') - C/A~recognized that the so cakd "cat &t of th; bag" theory of in.voluntariness of confession was of 'limited value" but found a"Icgislative determination" emanating from the family codeprovision designed to provide greater consideration and protectionto juvenile offenders.TCA rejected this approach. It did however, agree with C/A intwo areas: 11 since D was iuvenile when she madeconfession CIAdid nor err in mcasurin): iugdity of hcr oral confession against &Y.tion 51.09; 2) (:/A wascorrect for invoking thugwater protectionsallordul to juvenilcs by the fdmily code in guncrd, except to rxtentit ~uruorld to rely uvon the lccislativeattitudu to dcfinc theCASli 0VI:KKUI.I:I): Swink u. Slalc, 617 S.W.2d 203(I'ex.Crim.App. 1981). COMMEN7': It is now clwr that is-5us involving substantive rightsof juveniles bcforethcyare transferred as ddults to stand trial (c.g., Icg.iliry of delmtionor confessioll) are controlled by dpplicablt! provisionsof the family codccvcn thou~h they an: raiscd in criminalforum.Nevertheless,TCA overrules decision of C/A and finds thatunder totality of circumstances, Ws written confession was voluntary.This is not a case in which D's first confession was deemedinadmissible because it was actually coerced. Here there is noissue of involuntariness because an initial confession "soilledovef' to render second confession involuntary as well. In the absenceof some evidentiaw corroboration. the mere oossibilitv thata "psychological disadvantage" was at work is not suflicie~~t torebut Sutds othcrwis.?adrqi~.ltt? showing of vuluntdrincs~. Ilad I)actually testifitxi that sht! wol~ld nor havegiven written amft!ssion" l ~ for" t thc:~,arlit:r oral conf~~ssit~n. a fact issue would h;~vc! bt!a!nraised. In that case thestate would have to produce someevidence that the oral statement was admissible and t/c wouldhave been required to factor this evidence into its determinationof voluntariness under due process clause a totality of circumstancestest. To this extent, the "cat out of the bag" theory still lives.COMMENT: TCA noted that under this hypothetical, assumingt/c found first statcment inadmissible, there weretwo other factors which would then militate in D's favor.First, her youth would make her "but/fof' claim appcarmore plausable than the same claim from an adult. Semnd,not only was D told her prior oral statcment could not beused against her before she signed the written confessionshe was in fact positively told as part of Mirnnda warningsthat a prior statment would be used. However, without"more definite evidence" that D's prlor statement played anactual role in her decision making (free will) process, TCAupheld decision of t/c that statement was admissible.Robert POWELL, No. 849-85On State's PDR-by JudgtMcCormick; February 15,1989.C/A reversed at 694S.W.2d 416.CONFRONTATION-SECTIONS 4 AND 5 OF CHILDVIDEO TAPE STATUTE VIOLATE TEXAS CON-STITUION:Facts: D convicted of indecencv with child; enhanced punish-ncnr aswswd at lilr. C/A rcvcrscd ~(~nviction find~ng that intrwiuctionol vidn, rawd interview with child victim viohted9rticle 1, Section 16, Texas Constitution and 6th Amendment, U.S.Zonstitution.Prior to trial, State requested taped interview with child victimmrsuant to Article 38.071 (V.A.C.C.P.). Tape was made and intro-Iuced over objection. After testimony, defensecounsel requestedSignificanl Decisions Report June 1989

~~ ~ ~-~~~~opportunity to cross examinechild victim before jury. T/C deniedthat request relying on Section 5 of Article 38.071 which states thatchild who is given a taped interview under either Section 3 or 4 ofthestatute may not be compelled to giveinqourt testimony. D'sattorney was, however, given opportunity to develop furthercross examination of the child victim via video tape; he declined.Case xias remanded to C/A for harmless error analysis underRule8l(b)(2).T.R.A.P..TCA agreed withC/A andcited to Coy v.Iowa, 108 S.Ct.2798 (1988) which held that allowing witness to beseparated by screen from D denied his right of confrontation andalso to Long v. State, 742 S.W.2d 302 (Tex.Crim.App. 19871 whichoreviouslv held Section 2of Article38.071 unconstitutional. BothCoy and Long snpprr C//\'s holding Scctious 4 and 5 as violalivcof tl~cconfrontati~n claux of both stdtc dnd fcdrr.11 cottslituli~ms.Ben BYNUM, No. 760-8Wn D's PDR-Oyinion by JudgeMiller; Judge Clinton Joins; February 15,1989.C/A affirmed at 711 S.W.2d 321.1NI)ICTML:N'I'-MOTION TOQUASH SHOULII HAVEBEEN GltANTEIl HUT DENIAL I:OUND 1IAItMLESS:Facts: D, county judgeof Potter County, formed Citizens forProgress (CFP) for the purpose of helping pass a bond election tofinance construction of new Potter County District Courts facility.D received manv contributions for CFP. State orosecuted on5cuunt indictment allegin): nrisnppl~cation of fiduciary fu~~ils~llarijinl: from allegation that I) ca*hcd in con1ributi:m clwrkswithout properl~accounting for them. D was convicted on all5counts by a jury; t/c assessed punishment at 10 years probtionand a 55,000.00 fine.HELD: T/C erred in denying D's motion to quash indictment;h6wever. denial was harmless. D contended that the indictmentprejudiced his rights by failing to describe the money and checksthat were thesubject of each of the 5 counts in paragraphs of theindictment. D areued that the indictment failed to describe the.,typcand amount of currency allcgnlly misnpplicd; furthtv, th;~r itfaiicd to adwuatt4v dcacribc the contribnror's chu:ks allercdcashed by drawee and the amount; D objected to the indzinitedescription of property as "namely: money".Prior to trial, State filed copies of the 10 checks it intended to introduce,which clearly indicated thedrawer, payee, date, numberand amount of each check, This list was given to D.When a check fonns a basisof an indictment, it must adequatelydescribe the drawer, payee, number,and amount. Even thoughthe indictment was sufficient to charge an offense for misapplicationof fuduciary funds under Scctin 32.45, PC., questionremained: whether D is entitled to further notice to adequatelyprepare a defense. Adams v. State, 707 S.W.2d 900 (Tcx.Crim.App.1986).D's motion to quash specifically excepted to indefinitedescriptionof the property allegedly misapplied.T/C erred by failing togrant motioo to quash. However, defect was in a matter of form,rather than substance, [lanecka v. State, 739 S.W.2d 813(Tex.Crim.App. 1987)) Proper method to alleviatedifficultywould have been for State to amend indictment and set out withsufficient pnrticularity the property allegedly misayplicd. I lowever,in'causc Slate tendered copies of the chccks,'l'CA rould notsec how failure to grant D's m&ion to quash had any bearing onability to prepare defense.GRAND ~URY TESTIMONY-D DENIED ACCESS TOTRANSCRIIT OF STATE'S WITNESS:State used D's grand jury testimony extensively during itscross examination. D did not complain that State failed to tenderhim a transcript of his testimony following its use before jury oncross examination. Instead he urged that he was denied access togrand jury testimony of State's chief prosecution witness (P.C.).At trial t/i denied D's motion for disclosureof PSsgrand jurytcwimony'forcross examinatton. Slate slipulatcd I'.C?S t:r.~n~l,urytc~~timony was nsd to n:frcsh hcr rccollcrl~un prior to trial.TCAltcld fact that I'.C. was 1)'s urim,~rv accusorand chief ntitn*!ssagainst him was not sufficient to show a particularized need forgrand jury testimony.Thus it was not an abuse of discretion todeny him access to this testimony for cross examination. Productionof grand jury testiomony falls within sound discresion of t/c.McManus v. State, 591 S.W.2d 505 (Tex.Crim.App. 1979). Reviewingcourt found only "insignificant and slight" the inconsistenciesbetween grand jury and trial testimony. Thus D failed to makeshowing of particularized need or special reason to secure testimony.Despitereservations regarding the practice of allowing witnessto review his grand jury testimony without allowing D equal access,TCA was constrained to find no abuse of discresion by t/~.NOTE: This case was tried before theapproval of the newrules of criminal evidence were adopted. Rule16.04 now exprcsslyprovides that grand jury testimony be ordered to beproduced upon timely motion.Donald Lee MURPHY, No. 1169-86-On D's PDR-Opinion by Judge ~iller; Dissenting Opinion by JudgeClinton, Joined by Judge Teague; kbrunry 15,1989.CONFESSION-SILENCE-NO INPROPRIETY INRESUMED INTERROGATION 15 DAYS AFTER CLEARINVOCATION OF RIGHT TO SILENCE:Issue: Was t/j justified in finding policeofficersdid not violateD's rights under Mirandav. Arizona, 384 US. 436 (1966)?krcf.;: 0119/3/84 Ilouitun I'oliccarres~ed Don warrant from,\nd~rson COLIII~Y. I'rior to this drresl, I II'U recc.ived informationthrough crimestoppers that implicated D and D's brother in robbery/murdercommitted inHarris County. Investigating OfficerCain learned that D rvas wanted in Palestine forcapital murder.At Houston Police Station D was read warnings. He told Sgt.Foster he had heard of robbery/murder, but didn't see how he.,could hclp himself by talk in^ to Foster. D was released to PaleslineauthXririesthe ncxt day. Substyue~~tly, a '11-U gave stntt~metlt~mylicating I) in I Ionston robbcry/murder. ['dice nolt to Pale+lint: to ouc,.;tiun 11. In.I'al~~stinc on O/lY/RO. . . . D was wdd his right,. "He stated, "I know my rights" and he did not request presence ofIttornev. Officers asked D if he had an attomev: ,.D told them hadIn attortey appointed in Palesine, but did not want hint prcs~nt.D rhtm "~ eavestattmont imulictine " himsclf $15 uar~icimnt in 1 luus-:on case; this confession %;as admitted into evidenceat trial over3bjection.HELD: In affirming, TCA held issue rvas samequestion con-+anted by Supreme Court in Michigan v.Mosley, 423 US. 96:1975). Once person in custody indicates desire to remain silent,here is no per se proscription of indefiniteduration for furtherpestioning. Instead thecritical question is whether a person's"right to cut off questioning" was scrupulously honored. Detcrninationof this issue must be made on case bv case basis.Here [)did invoko his right to remain siltmt when ht? told ufiwrho didn't sec how hecottld hclp himself by talking to police.I'CA found under tht: Etcls D's riuht " to rwwin silent and cut offpestioningrvas scrupulously honored becausequestioningJune 1989Significant Decisions Report

ceased immediatelvuvon Ws invocation, D was then transferredto another county,ii&ston l~olicc madeno attcnlpt tu rcinlerrogatoD until 15davs later. D was ., riven his warninrrs " a sccondti&eprior to any qukstinning.DlSSENTlNG0PINION:Two judge dissent chastisesmajority for concentrating mercly on the factor of lapsedtime from Houston session to Palestine session during thattime D was confined injsil "already subjected to inordinatepressures working to undermine his will". UnlikeMoselyhere D was questioned about samecrime. Dissent pints toabsence in decision of c/a or State's brief to evidence of anvother factors than mere passage oftime betweeninitial barreninterrogation and later productive one.. 1 . ; : ..I I 1John Will WEBB, No.074-87-On D's PDR-Opinion byJudge W.C. Davis; Judge McCormick Concws in Result;Judges White and BerchelmannDissenf; Febmary15,.1989.C/A reversmi convictions of hvo m-IYs at 722 S.W.2d 154.WITNESSES-SEQUESTRATION-NO JUSTIFICATIONFOR DISQUALIFYING DEFENSE WITNESS AFTER"THE RULE" WAS VIOLATED.Fats: D convicted in joint tdal of aggravated mbbery; punishmentassessed at 55 years; case involved robbery/murder of selfservice gas stationemployee. In order to placeexcluded testimonyin perspective, a brief recitation of trial testimony is necessary:Strife's e's: A testified he was friend of dcceased. c/w andvisited him on night of robbery/murderat service station office.In early morning hours D came by shop and visited for 20minutes saying he would return. Ashort time later he came backand parked his car in front of the stationnear the phone booths.Once again c/w opened officedoor for D. A noticed a second mansitting in glass enclosed office, stopping just outsideof lockeddoor. At this oint, D pulled gun from pants, pointed weapon atc/w. and to1 B him to open door. When c/w ooencd door. twomcirnshed insidc!andLpushed c/w and I\ inhadjoinin$storeroom. A heard r/ds brother tellother; A and c/w wouldhavcto be killtd because they could identify robbcrs.A wasshotin head; c/w was killed. Based on A's identificaion and dxrivtion,D was arrested when he reponed to parole officer.Defense: D testified in own defense, saying he had picked up Band driven him to gas station, having previously taken him theresevcral times at his request. D was told Bmuld get money frommanager, c/w. When c/w would not allow D and B intomanager's office they went to a dicegame where D lost all hismoney. D had taken B to gas station several times at B's request; Btold D he could get money fmm c/w. D denied being present atgas station when robbery occurred, testifying that two unidentifiedmen walked up to cashier's window and were invited insideby A as D was leaving. D admitted signing two statements, bothof which incriminated him.Kebu1lnl:Li tcstifitd for Stateat wbuttal stage. U was chargedwith samecrimeas D and co-D's but has scvaratu trial sottina. " Btestified D planned robbery and that B's sofe role was to sit at cashwindow and "act like themanam". - B denied knowine " eitherc/w or A and also dcnicd evw receiving muney from either ofthem. Finally, Bdenicd ever asking D to give him a ride to the stationor to r\'~ apartment; however, hedid admit driving with D tostation onc timeothcr than nirht ., of murder.Excluded Cvidznce: Dattempttul to rcbut O's tvstimony by c;lllingX-the rv~tness wh:~w:testimony wascxrluded. At hcaring out-side jury's presence, X testified she had heard testimony of police~fficers, B, and a portion of Ws testimon T/J sustained State's3bjection and refused to allow x to testi$solely on basis that "thetule" had been invoked and violated. Via bill of exceptions, X tesifiedshe had known D for years, was present in the car with Dmd B at least three times when B asked to be taken to the ., %as sta-:ion"to gcl some na~ne)/'; was with D inside rhecar while U spcntloor 15 rninulcs inside the crasstation: that B knew buthc/w and1\ by name;that Xand D hih takcn B ~ A'sapwtmt*nt I onat lcnstmeoccassion;and that althourh shcdid nut know why Bweived money duringtheir tGps to the gas station, shhs~ecuatedit was for sexual services.ISSUE: How do D's rights to due process and to present witzessesin his defense relate to exclusionof a witness under "the.u1er'?NOTE: At time of trial "the rule" could be found in Arts.36.03-36.06, C.C.P..They have b m repealed. The rule iscurrentlv found in Tex.R.CrimEvid. 613. There is vitually nodistincikm hetwcwn thr old code provisionsand tho&rule. Thus Webbshuuld he equ~lly applicable to cas~!s lricdalter 911 /86, when thcncw rulc went into effect.IIEI.I):T/J abus(d its discretion in disqualifying witness X.As a result D was dcnicd fcxloral and state constitutionalright to call witness in his behalf and due process right tofaif trial.TCA adopts a two part test for appeal of witness disqualification.Reviewing court must determine:1) If tl~erule was violat& and the \vit~~cssdisqualifid,whether tht!particularcircurnstances (otherthan thcmercfact of theviolation) tcnd to show Dor hisattorney conscntcd,procurd or uthcnvise had knowlcdwof the witnessestresencein thecourtroom, and theGntent of thatwituessestestimonv;and2) If no partic~~larcirc~rmstanccs~~xisted to justify disqu,~lificationofthe witn~w, was tht, excluded trstimony cm-&a1 to the defense.When t/c exercises its "sound judicial discretion"it must conideralternative sanctions available (examples; cautionary instrucionsor contempt proceedings).COMMENTrThere is no "blanket" rule of reversible error.Application of the two pan test on review must be made ona~case~bv case basis.Under the f.rcts prescnttd, thero wasanabusr.ofdiscn:tion inI~iscase ~CCBIISC I) the violation was iust "twhnical" and wasilldvcrlant-no~hingin record shwvs dur his lawyer knew of X's)resmco in courtrnom and the possibility her testimony wuuld beelcvant to thecasr until aftor U'testificul~thcrt: was no&winy,of'impropcr"cc~nduct by D, X, or Usattorney; 2) theexclud~~d tesim6nyivas"crucial'-it would have been the sole corroboratingvidence going to show ossible motive and bias of State's twohief witnesses(A and EIfPRACTICE GUIDE: D met his initial burden ofprovidinganadequate appellate record to be weighed in considering theabuse of discretion issue -the substance of X's testimonywas preserved for appeal by bill of exception. D furthershowed thesignificanco of the excluded testimony in thecontext of the trial itself.CAUTION: Remember that this case dealt with exclusionofparty's own witness. A different line of cases applies if theclaim on appeal is that anadverse witness wasn't properlyalloIwdto testify. In that case, the test is that reversiblecrroroccurs if theobjected to testimony is admitted and the complainin6party is harmed. See, Archer, 703 S.W.2d 664CTex.Cnm.App. 1986).Significant Decisions Repxi June 1989

court would find Ws testimony true or even believable.Encarnacion CAMACHO,No. 327-86On State% PDR-Opinion by Judge Campbell; Judges McCormick, Davisand White Dissent; February 15,1989.EVIDENCE-HANDWRITING COMPARISON-ART.38.27 APPLIES WHEN D DENIES HANDWRITINGUNDER OATH:Fucacts: D convicted of murder. C/W, 77 year old woman, wasfound in her bedroom, dead by strangulation, with an apronknotted around her throat. A handwritten, but unsigned note wasfound on her bcdy; the notc was written in ~panish'jnd questcdforgiveness fur the murder.'l'hure wen: nu signs of forced entryintoc/w's hnnst:. Dlivcd ingarage behind c/w's homeand hadaccess toil to nr: kitchen and bathroom; knot in apron wassimilar to tvueof knot 1) nsrd in his aarden. I landwritinc-comparisone$&t compared handwriticg on note with handkitingsamples given by D-testifying there wasa "high probability" thatnotc was written by D. D testified in own behalf, denying thathandwriting onnote was his. C/A~e~rsedfindingevidcnceinsufficientbecause State offeted no evidence to corroborateexpert's testimony.ISSUE: If D denies his handwriting, but not his signature, doesArt. 38.27 C.C.P. ~DDIv?LEGAL BAC'K'GKOUND: ~ rt. 38.27 provides: "It is competentto giveevidenceof handwriting by comparisonmade by experts or by the jury. Proof by comparison onlyshall not be sufficient to establish the handwriting of a witnesswho denies his signatureunder oath."HELD: Art. 38.27 applies whether D denies signature or handwriting.Stato must present other evidence tending to conned D toauthorship of disputed document. When note is not considered,remaining evidence connecting D to crimeis "scant at best". Convictionreversed.James Lee HILL, Nos. 0605-87-0607-87-011 D's PDR-Opinion by Judge Teague; Judges McCormick and WhiteDissent; February 15,1989.JURY INSTRUCI'ION-MISTAKE OF FACT DEFENSE:Facts: D, a doctor of osteopathic medicine, wasmnvictd inasingle trial of thnrseparate offensosof commacially distributinga controlled subsiance without avalid medical purpose. D tes-tifid at puilt-innocence ., that based on svmvtoms , . reuorted bv undarcoveragent, and bascd on tcsst I) ran on agent, U'beliavtul hewasdispmsinr: thedrur (Ritalin) for a valid mrdicai uurvose. 1)request&d jurycharge OK defenseof mistakeof fact; t jj rehsed.Ifeld: Denial of mistakeof fact charge resuits in reversibleerror. Reasonable belief bv D that he was disoensine drue to*2 "agent for vdlid medical p;rpuse wonld have'negattd culpabilityelemcnt usscntinl to State'scase. Dcatitled to charge if thrrc wassonwcvidcncc: brforc jury that bccanscof mistake Dformmlrc:asoni~blc belief aboui a matter of fact and his bclicf nwatcd theculpability essential to State's case. The issue is raised h&e by IYsowntostimony.NOTE: -use D repesled a mistake of fact charge, underAlrrtmnzu,~ S.W.2d 157 (Tex.Crim.App. 1984), the test onreview is whether he suffemd some harm. TCA found someharm because issue of D's intent to commit offcnsc was ajury question the issue onappl is not whether reviewingAndrew MILLIGAN, Nos. 802-87 and 803-87-on D's PDR-Opinion by Judge McC6rmiek; Judge Teague Concurs inresult; February 15,1989.C/A affirmed at 733 S.W.2d664.CONSOLIDATION-FAILURE TO OBJECT IMPLIESCONSENT2Fac6s: D was chargedin two separate indictments for un-authorized use of motor vehicleand burrrtarvof habitation ",(during buglary L) took keys to car parked outside n:sidenct: andmade his esww in it). 1) was tricd bcforc iurv on both indictments.At no Gme before or during prow'dihgs did D object toconsolidation.Hdd: By failing to obpct to consolidation, D is deemed to hawgiven his ansent. As a result, he is barred from complaining ofresulting multiple convictions.Larry Wayne WHITE, No. 69,332-Capital Murder ConvictionAffirmed-Opinion by Judge McCormick: JudgeWhite Concurs inresult; Concurring Opinion by JudgeClinton; Judge Teague Dissents; Februq 15,1989.VOIR DIRE-CAPITAL MURDER-JUROR NOT DIS-QUALIFIED UNDER FACTS DESPITE FAILURE TODISTINGUISH "DELIBERATE" FROM "INTENTION-4L":Facts: Potential juror repcatcdly statcd he would aulomaticallyInswer spccial issne one "yes" hxause he found D guilty of capialmurder. I lowcver, during vnir din: and withnnt objrction by'>, pruswutor mJ indiclntenl which allcr:tul that while D was in.eke of committing and attempting tocommit robbery, he intenionallycaused c/w'sdeath "by chokin her with his hands and.tabbing her with a screwdriver". D cha 7 Ienged juror for cause>as& on his answers regarding special issue one; t/c summarilywemuled challenge; D exercised peremptory strike.PROCEDURAL GUiDE: Issw was preserved for appeal bccauseD uscd all his vcrm~torv challenaesdurinrr courseof voirdireand req~ested~na&ditional~crempt~y challenrreto strike iuror Ponder who was swornand seated on3 3lleld: Under thesc facts no error wasshow by t/c's refusal tolisqualify X.'l'CAackn~~rvledgcd that asa matter of few, the Ineanngof "dcliberdtely" under special issue one is different from thentmning of "intentional". Iiowcvcr, rnnrt nntcd that it is "clwf'n smnt:rases asa mattt:r of fact that cvidcmc~: which suffici6:ntly,stnblishesa killinx wascummittt:d delibcr.~tt:lv will i~lso establishhe killingwas min~entional".AlthoughTCA recogniized that evidence to beadduced in anyparticular case is not a moper . . subject during ., voir dire, here therevas no objection when indictmrtn was wad to potential junw.'hus TCA found thiscaw to beone where "as a matterof connonsense" someactsof murder of and by themselves reflectdeliberation" undcr special issue one on the faceof the indictnent.lu~ors "are supposed to know" the meaning of deliberate.CA could not mnclude "tkm was anything wrong" when jurorisualized himself as satisfied beyond a resonable doubt that DSignficant Decisions Report

"intentionally" caused the death of a woman "by choking herwith his hands and stabbing hw with a screwdriver and furtherseeing thathe would also and necessarily find that such conductwas committed "deliberately". TCA could not conclude thataotential iuror's resmnses meant he would refuse to considerAUUITIONAI. AKEA-SU1:I:ICIl~NCY 01: EVIDENCE'I'OSI f0W MIJRDER "INTHE COlJKSB 0I'COMMI'~I'INGROBBERYU:This presents interesting discussion of sufficiencyto support aggivating element-revolving aronnd thoissuc of whcthcr D intended to takec/w's property before,or as, he murdered her. There is a detailed analysis of thecircumstantial evidence resented and thcreas&ablenessof hypotheses advancedLby D to explain his possession ofV~?!~@&RK ?l'd Property.. ...a..,. , .,. .1. . :.1than as series of isolated statements. Salient factor here was mannerin which application paragraph was ablc "to tacitly incorporatcnnabstract proposition of law which was statcd earlier" inthecharge. Under definnitional .%!tion, jury wasrlcarly informdthat it most firbt find D both "intentionally or knowingly or nrk-Icssly committed or attempted to commi

d,< -tive "issues of ultimate fact" in the license suspension hear-17' ing and theDWI prosecution.TCA points out that theprobablecause determination is necessarily limited only to2information available at the time of the arrest. For thisI..- . I reason, facts which cometo light after that arrest and which~bIcould go to establish Wsguilt at DWI trial would not berelevant to show probable cause. Examples of such laterdeveloping evidence include res gestae statements, voluntaryanswers to custodial interrogation following properwarnings, and refusal to given speciman as evidence ofguilt.Loran Wade MAY,No. 59,648-On D's mehearing-Opinion by Judge Teague; Judge McCormickDissents;February 22,1989.STATUTE UNCONSTITUTIONAL-PREAMENDMENTPORTION OFHARASSMENT STATUTE VOID FORVAGUENESS:Jury convicted D of class B misdemeanor offense of harassmentunder Section 42.07P.C. (NUTE: effective9/1/83, provisiondiscussed here does not appear in amended version). D challengedconstitutionality of Section 42.07(a)(l) which provided thatoffense was committed if person intentionally "communicates bytelephone or in writing invulgar, profane, obsence or indecentlanguage or in a coarse and offensive manner and by this actionintentionally, knowingly, or recklessly annoys or alarms theredpient".TCA held statute unconstitutionally vagueit made noattempt to define terms "annoy" or "alarm" and failed to specifywhosesenstivitiesare relevant indctormining what isoffensive.COMMENT: Present statute contains one provision in subsection(4) which might appear similarto portion ofpmmendment statute found unconstutitionaLThat sectionprovides an offense is committed if D intends to harass,annoy, alarm, abuse, torment, or embarass another and he"(4) causes the tclephone of another to ring repeatediy ormakes repeated telephonecommunications anonymouslyor in a manner reasonably likely to harass, annoy, alarm,abuse, torment. embarass. or offend another. TCA does notaddress constitutionality of that provision. I)espite surfacesimilarities. it might well be that this subsection isconstitutionalbecake it &uses on what is "reasonably likely" toannovor alarm "another-thus, the focus seems to be morea "reasunable pcrwn" than the subj~~tivc scnsibilitirs of the"rccipicnt" of the phonecall which was found in the fornwrprovision.PROCEDURAL HISTORY: This is an appeal from a pro-trialappliction for writ of habus corpus raising a double jtwpardyclaim. D's original amvictiun was reversed by C/A (674S.W.2d 809). and that rcversal was upheld by'I'CA (693S.w.2d 4x7):Facts: In 1982, D was prosecuted and convicted by a jury ofcapitalmurder. Before that trial, DA notified t/j and D that hewould not seekde@hpenalty.Jury was selected as though casewere a non-death penalty case. After jury found D guilty of capitalmurder, t/j dismissed the jury and assessed Ws punishment atlife imprisonment. This action was based on understanding of t/j,Ws attorney and DA that t/c was authorized to do so. In assessingWs punishment at life imprisonment, t/j never expressly orimplicity answered either of the mandatory special issues underAaicle37.071 V.A.C.C.P.. Neither did t/c make any express or implicit findings favorable to D. BecauseDA had announced he wasnot seeking death penalty, trial level participants believed onlypunishment available was confinement for life. On direct appealfrom that conviction, C/A reversed holding that t/j erred by dischargingjury and assessing D's punishment at confinement forlife.TCA affirmed that judgment.lldd: Ih~blc @pardy dim nut forbid impusition of dmthucndtvat retrial. Orieinalconvirtion "was rcvmed kcauseof irk1&or-t/j was not authorized to assess D's punishment at lifennddischarge the jury.COrMMENT:'l'hcrc oppmr to be only two circu~nslanccs inwhich a jury can pn,perly bc: dismissed at the punishmantnhaseof a ranitdl murdcr trial, neither apply here: 1) whereb is juvcnile'certified to stand trial asad3t;has been foundguilty by jury of capital murder and theonly possiblepunishment that may be assessed is confinement for life; 2)where D is tried for capital murder and jury convicts D oflesser included offense.(:ONCURKIN(; OPlNlON(Clinlun): Aftcr a lengthy cxaminatiunoflcgislative history and intcnt,JudgcClintun umcludcs IIAhas prosccutorial discretion which extends to punishment phaseof raplial murder trial. If UA choost:~ nut to scckd

that hypothetical had potential of confusing or prejudicing thejury to Us detriment.Held: D did not meet his burden under first pmng of Stricklandv. Wmhington, 466 U.S. 668. TCA did not find attorney's representation fell below an obiwtive standard of reafionablencss. Inmaking that dctcrmintion; themajority pointed to several tacticalreasons which would support failure toobject to whrd-man/trigger-manhypothetical (1) tacticaldecision to refrain from alienatingpotential juror knowing therc wasno firm lcgal basis onwhich to obicct and knowine that ~rciudicial cffuct of hv~othcticalwas, at best; speculative; (2)Iy trial attorney to gain gre'a'terlatitude in scope of his voirdire by allowing State to usehypathetical and (3) jumr's responses to hypotheticals might giveinformation and insight useful in D's exercise of peremptory challenges.DlSSENTlNGOPlNlON (Clinton): Judge Clinton deplores"gratuitous abdicationUof Texaslaw in only using theStrickland test.DISSENTING OPlNION (Teague): Like Judge Clinton,JudgeTeague urgesTCA to adopt independent state constitutionalstandardsforjudging theeffectiveness of counsel-arguingthat Texas courts have done a great deal ofwork in articulating the law of attorney effectiveness in contextof criminal defense work which should not be abandonedbecause as matter of federalconstitutional law S/Cthas now laid down method for evaluatingthe thresholdlevel of performance demanded under US. Constitution.Judge~kgue views Stricklmd as reflectingtrend by S/Ct toexpress scope of federal constitutional rieht in more eeneral "language-l&ing to States to further degne.JudgeTeaguc also dissents to the burden uf persuasionused in incffcctivcassisla~~ccclaims vlacine thc burdcnofshowing harm onD rather than stat; JudgL~ea~ue offerslengthy criticism of harmless error rule and dissents toTCA's wholesale adoption of Strickland.DlSSENTlNGOPINION (Duncan): Under cither the Sfricklandstandard or test of Ex Parte Duffy, 607 S.W.2d 507 JudgeDuncan would find trial counsel ineffective.Willie Terion WASHINGTON, No. 69,737-Capital MurderConviction Affirmed-Opinion by Judge Miller;Judges McCormick and Duncan Concured in Result; ConcurringOpinion by Judge Clinton; March 1,1989.JOINDER-MISJOINDER DOES NOT OCCUR WHENTWO OFFENSES ARE ALLEGED IN A SINGLE INDICT-MENT BUT ONE OFFENSE IS LESSER INCLUDED OFTHE OTHER:This is a cascof first impression. D was indicted in a single indictmcntforcapital murder, murdw and aaarav.~tcd .,~, robbcrv.Ueforc trial, DA abandont?dparagnph alleging aggravated ;obbcry.Trialc(n~nscidid not filemotion to auash indictmcnt.T/Ichaiged jury on capital murder and mur& and Ddid not objktt~~chargcs~~hmittcd. On appwl, Dclaimcd that indictnrent irnproperlymisjoined three&ensesand that had his lawyerobjected,potentially reversible error would have been preserved.TCA viewed claim as basically an ineffective assistance charge forfailure to object.LEGAL BACKGROUND: Art 21.24 V.A.C.C.P. permitsjoinder of two or moreoffen& in oneindicfment if offensesaroseout of same criminal episode as defined in chapterthree of Penal Code. Effective 9/1/88, Section 3.01 P.C. wasamended in way that would allow joinder of offenses withwhich D wasrharged. At tinicof Ws trial, howt!ver, Sectio~~3.01 dafind criminal episode as repwtcd commission ofanv oncoffensa arainst .. vrowrtv - under Title 7 of PC.HELD: NO immD&isioinder. Art. 21.24 V.A.C.C.P. does notapply bccause ArdLr is lc&r inchrded offcns of capital murdcr.Conccvt of misioindcr docs not includcalle~arion of two offensesin oAe indicthent if one of those two offezses is a lesserincluded of thc other.Ex pate Randall Dall ADAMS, No. 70,787-Writ ReliefGranted Opinion-by Judge Duncan; March 1,1989.COMMENT: Yes, this is fhe Adams which formed the basisof the movie The Thin Blue Line. Yes, this is the Adamsdecision which was brought to national prominance on TedKoppel'sNight Line.HABEAS CORPUS-RELIEF GRANTED BECAUSE EX-CULPATORY EVIDENCE OF PRIOI( STATMENTDELlUERATELY A-OT DISCLOSED AND DA KNOW-INGLY USED PERCURED TESTIMONY:Fircts: During Ws capital murder trial X testified out of jury'spresence that she had identified D in lineup. During writ hearingit wasestablished that X had identified someoneother than D inlineup. D was told by police officer in charge of lineup that sheidentified wrong person and was given Ws number in lineup.During capital murder trial, X specifically identified D as beingat scene of murder. During writ hearing it was developed that Xgavestatement to police within a week of offense that driverofcar at murder scene had three inch afro and was either "aMexican or a very light skin black man". This statement to policealso claimed that X and husband passed by the two cars and didnot know about the shmtinguntil the next day. At capital murdertrialDA did notgiveX'sstatement to D's attorney either beforetrialor after shetestifiedalthough DA had Voluntdrilydone sowith statements of other state witnesses in compliance withdiscovervorderof t/c. When Ws attorncv learned of statementdnri~

The Texas Law of Deadly Weaponsby Kevin WilsonintroductionSince early 1985, the law concerningaffirmative, deadly weapon findings hasradically changed. Findings once thought"good as gold" by judges, prosecutors, anddefense attorneys are now void. New requirementsfor pleadings, fact finding procedures,and judgment wording have beenimposedby theCourtofCrimina1 Appeals.These changes are of great importance tothose who try felony cases, because anaffumative, deadly weapon finding hasmore effect on the actual sentence servedby a defendant than any other provision ofthe sentencing statutes.Statutory LawThe basic law concerning deadly weaponfindings is found in the definition sectionof the Penal Code,' and the ProbationZand Parole3 provisions of the Code ofCriminal Procedure. Together, theseprovisions have the following effects:a deadly weapon finding prevents theconvicted person from becomingeligible for parale until he has servedone-fourth of his sentence, or 15 years(whichever is less)?only ajuty may grant a convicteddefendantprobation (if he is otherwiseeligible) once it finds that a deadlyweapon was used during the commissionor flight from the offense. A judgecannot grant probation once a deadlyweapon finding has been made.sif the jury does grant probation, thejudge may still send the defendant toprison for up to 120 daysPRemember, however that a peaon maybe conv~cted of an "aggravated" offense(regardless of whether an affirmative findinghas been made), thathas thesameeffectas an affumative, deadly weapon finding?PleadingsUntil recently, no special pleading ornotice of the State's intention to seek adeadly weapon finding was required. InChavez v. State, 657 S.W.2d 146--Kevin Wilso~l is in private practice inAustin, Texns. He served as art AssistanfDistrict Attorney in Bell County for fouryears, prusecuting child abuse cases andanswering appeals. In his last case, heassisted Steve Tokoly, Gppy Eads, nndO.L. byd prosecute Jerry "the Anirnal"McFadden for capital murder. He is agraduate of the Baylor University Schoolof Lnw and the University of Kansas.(Tex.Cr.App. 1983),theCourtheldthat the14th Amendment's due process clause didnot require that State specially plead adeadly weapon allegation in the indictment.Then, in the case of fi Parte Pafterson,740S.W.Zd766 (Tex.Cr.App., 1987),the Court adoptad Judge Clinton's longstandingview that Aa I. § 19 of the TexasConstitution requires that the State giveformal notice that it intends to seeka deadlyweapon finding. While the opinion didnot requiresuch, the Court said that adeadlyweapon allegation in the indictmentwould be sufficient to give fair notice. TheCourt did not indicate any other approvedforms of notice. The Ft. Worth Court ofAppeals has ruled that actual, oral noticeduringplea discussions is sufficient to pro-I PDR on the issue of notice in Gilben v.State, No. 0075-87, and may clarify itsholding.ProofThe question "what is a deadlyweapon?" is a mixed one of law and fact.The Penal Code defines two types of deadlyweapons: "per se" weapons and "nunnerofuse" weapons. Aper se weapon is "afirearm, or anything manifestly designed,made, oradapted for the purposeof inflictingdeath or serious bodily inj~ry."~ Determiningwhat is aper se weapon is a matterof law, and the judges of the Court ofCriminal Appeals have wrangled with thislike their brethren of the Supreme Comthave wrestled with the tern "minerals" inan oil and gas lease.Aamnner ofuse weaponis "anything inthe manner of its use or intended use thatis capable ofcausing death or serious bodilyinjury.'") Determining manner of use isa fact question. This difference is important,for the Court has held that unless it isa per se weapon, the State must showthrough size, use, and context of the offense,or expert opinion, that the weapon(usually a knife) wasdeadly. Merely showingthe weapon to the jury won't suffice.Perse deadly weapons are firearms, pistolsand rifles." Manner of use weapons areguns, shotguns, knives, automobiles,hands, fists, clubs, fm or anything else."June 1989 1 VOICE for the Defense 23

Since Tisdole v. State, 686 S.W.2d 110(Tex.Cr.App. 1984), arguing sufficiencyof the evidence in a knife case has beenho$ess. [See theannotations inL. Baker,$ 1.07(a)(ll), Te.3-as Penal Code Hardbook, (1988edition)l. As theElPaso Courtof appeals noted: ". ..legal experience andcommon lay experience dictate that virtuallyany instrument, backed by therequisitemaliceand intent, is capableof causingdeath, creating a substantial risk of death,causing serious permanent disfigurement,or impairment of bodily function." Chavezv. State, 740 S.W.2d 21 (Tex.App., Xth,1987). One court has broadly interpretedthe "use or exhibition" requirement to includeproof that the defendant had a pistolinside a zippered canying case under hisleg during a drug deal. Patterson v. State,723 S.W.2d 308 f.Tex.App.,3d, 1987).The law of parties does not apply toaffmative findings. Travelstead v. State,693 S.W.2d 400 (Tex.Cr.App. 1985). TheState must also show that the particulardefendant on trial used or exhibited itduring the commission of the crime.Making The FindingThere was a lot of confusion amongdistrict courts and courts of appeal as towho could make the deadly weapon finding,and what constituted avalid finding. Ittook the Court of Criminal Appeals twoyears to establish the rules:1. There are no implied deadly weaponfindings. Polk v. State, 693 S.W.2d 391(Tex.Cr.App. 1985), overruling Cl~nvez v.State, 657 S.W.2d 156 (Tex.Cr.App.1983). This includes findings based onconviction for a lesser-included offense.Ex Parte Flannery- S.W.2d-(Tex.Cr.App., No.69,789, 1987).2. The factfinder makes the deadlyweapon finding. Ex Parte Nirzo, 659S.W.2d 436 (Tex.Cr.App. 1983). If thefactfinder on both guilt and punishment isthejury,thenthejury must makethedeadlyweapon finding. Ex Parte Olsteneda, 697S.WZd'617 (Tex.Cr.App. 1985); a- ParteLara, 693 S.W.2d 403 (Tex.Cr.App.1985). When the Court sets punishment,then either the judge or the jury may makethe affmative finding. Far111 v. State, 702S.W.2d 602 vex.Cr.App. 1986); a-ParteWebster, S.W.2d 327 (Tex.Cr.App. 1986).The Code of Criminal Procedure does notsay when the issue should be submitted;24 VOICE for f11e Deferrse I June 1989but the courts have indicated theirpreference for the punishnlent stage.Bro~vn v. State, 740 S.W.2d 45 (Tex.App.,14th, 1987).The affirmative finding must be madeat the original trial, and not at alater probationrevocation hearing. Er Porte Sl~an:724 S.W.2d 75 (Tex.Cr.App. 1987); Sl~nrlnor~v.-State, 723 s.w.26i22 (T&.A~~.,3d., 1987).The best method for obtaining a clear,undisnuted affmative findine is to submita special issue to the punishment factfinder, and to have the finding incorporatedon the face of the jndgment. I suggest thefollowing wording for the issue:Do you find from the evidence, beyonda reasonable doubt, that this defen-dant,,did thenand thereuse or exhibit a deadly weapon, towit:, during the commissionor immediate flight from the offensefor which you have convicted himher?(Answer Yes or No.)-Eliminating the FindingThe Code of Criminal Procedure, Art.42.01, requixes that an unambiguous, affirmativefinding be on the face of thejudgment. Ex Parte Brooks, 722 S.W.2d140 (Tex.Cr.App. 1986); Ex Parte Moore,727 S.W.2d 578 (Tex.Cr.App. 1987). Thismeans that the deadly weapon must beidentified and specified as such. Ex PartePoe, 751 S.W.2d 873 Vex.Cr.App. 1988);c.f., Shockley Ir State. 747 S.W.2d 470(Tex. App., Ist, 1988). For instance, arecitation that "Murder (knife used)" isin~ufficient.'~ The Court of Criminal Appealshas also required that the proper factfinder be specified; i.e., if it was the Court,the judgment should state that "the Courtaffirmatively fmds that a deadly weaponwas used by the defendant during thecourse or immediate flight from the of-fense."" Thus, any aff~mative findingwhichdoesnot follow this formula is opento attack:The (court/jury) finds beyond areasonable doubt that the defendant(her/hinl)self used or exhibited adeadly weapon, to-wit, a:- duringthe commission of the offense fromwhich he was convicted in thiscouse, or during the immediate flighttherefrom.The high court has inconsistently dealtwith judgments which contain incorrectrecitations in the affmative finding. Inone line of cases, the judges have refusedto enforce the judgment when it misrecitesthe fact finder, and they reform the judgmentby eliminating the affirmative findingaltogether. See E.r Parte Lara, supra:Ex Parte Brooks, supra. However, inanother line, it has permitted the State tocorrect the judgment in a rrzrr~c pro t~rr~cproceeding to include the finding, or tospecify the type of weapon used. ExPnrtePoe, 751 S.W.2d 873 (Tex.Cr.App.,1988)13; Curry v. State, 760 S.W.2d 261(Tex.App., 3d, 1987); McGinnis v. State,664 S.W.2d 769 (Tex.App., 6th, 1984).Finally, you should beware of a stunt theHanis County D.A.'s office is trying: onappeal, if the affirmative finding wasmade, but not placed on the judgment, it isasking and getting the Court of Appeals(under Tex.R.App.Proc.R. 80) to reformthe judgment to include the finding. Rischer7. Stare, 746 S.W.2d 287 (Tex.App., lst,1988)(pet. mnding): Herrina v. State, 752s.w.2; 169 ex.&^., lst, 1988). (Agoodargunlent can be made that this is an abuseof R. 80 because it denies the defendantdue course of law in that he has no noticeto contest the issue, nor is the appellatecourt a fact fincling body.)Effective Assistance IssuesThe deadly weapon laws contain severaltraps for those who have only superficiallyexamined the statutes. One sourceof confusion is the failure to distinguishbetween the effect of a conviction for an"aggravated" offense and the effect of adeadly weapon finding. The parole andprobation eligilibility restrictions listed inArt. 42.12, Sec. 3g and Art. 42.18, Sec. 8@)(I) apply to two classes of offenses: (1)theenumerated"aggravated" offenses; and(2) arry offense in which a deadly weaponfinding has been made. Not all "aggravated"offenses incur the automaticparole and probation restrictions; onlythose listed in Art. 42.12, Sec. 3g [Capitalmurder, aggravated kidnapping, aggravatedsexual assault, aggravated robbery].The distinction is inlportant for tworeasons. First, the person convicted for anenumerated "aggravated" offense suffers

Killer Mistakes by the Prosecutor in Adjudication andTransfer Proceedingsby Robert 0. DawsonAdjudication Proceedings1. Petition fails to charge each elementofthe offense. In theMatterofW.H.C.,LU,580S.W.2d 606 (Tex.Civ.App.-Amarillo1979) (arson petition fatally defectivewithout his effectiveconsent). But, beyondthat, same particularity as inindictment notrequired. On the Matter of Edwards, 644S.W.2d 815 (Tex.App. - Corpus Christi1982) (capital murder petitionneed not setout manner and means of killing, contraryto the requirements of pleading in an indictment).2. Failure to ask for payment of restitntionin the prayer for relief of the petition.Inre A.F.D., 628 S.W.2d 87 (Tex.App.-Beaumont 1981) (required in order to supporta restitution order). In the Matter ofM.H.,662 S.W.2d764 (Tex.App.-CorpusChristi 1983) (prayer for disposition ofcase enough to support restitution order).3. Record fails to show that the petitionand summons were served personally onthe juvenille respondent. In the Matter ofD.W.M., 562 S.W.2d 851 (Tex. 1978)(juvenile must be affirmatively shown bytherecordno presumption of service).4. Juvenile courtjudgemust personallyexplain (not merely "admonish" as requiredby 26.13 CCP for acceptance ofguilty pleatofelony) to theresondent at thebeeinnine - . of the adiudication . hearing - thefollowing: (1) allegations made, (2) natureand possible consequences of the proceedings,including the law relating to the admissibilityof therecord of ajuvenile courtadjudication in a criminal proceeding (SeeArt. 37.07 CCP as amended in 1987 -felony adjudications admissible beforejury at penalty phase of criminal case unlessmore than 5 years old and no interveningadjudicationfordelinquency orCINS),(3) privilege against self-incrimination, (4)rieht - to trial and confrontation.,\,(51 reore- .sentation by attorney, if not already represented,(6) right to trial by jury. Failure ofjuvenile court judge on the record personallyto explain these six matters to therespondent is reversible error, without anappellate court inquiry into harm. Thestatute, Family Code § 54.03@), is mandatory.D.L.E. v. State, 531 S.W.2d 196(Tex.Civ.App. - Eastland 1975) andnumerous other cases. There is a split ofauthority on whether the juvenile courtnust include possible lesser included offensesin explaining the allegations to therespondent. A.E.M. v. State, 552 S.W.2d952 (Tex.Civ.App. - San Antonio 1977)(yes); In theMatterof D.L.K., 690 S.W.2d654 (Tex.App. - Eastland 1985) (no). Inany event, it is not enoughthat thejuvenillecourt determines that the defense attorneyhas explained the charges to his client -the court must do so personally on therecord. A.E.M. supra,5. Waivers under Section 51.09(a),Fanuly Code must be joined in by both thedefense attorney and the respondent personally.A waiver by the attorney alone isinsufficient. V.C.H. v. Strrte, 630 S.W.2d21 (Tex.Civ.App. -Houston [14th Dist.]1982) (jurytrial);K.W.S.,521 S.W.2d890(Tex.Civ.App. - Beaumont 1975) (defectin summons). Also, waiver by failure toobject is always of doubtful validity becauseof 5l.O9(a). In the Matter of W.H.C.,580 S.W.2d 606 (Tex.Civ.App. -Amarillo1979) (failure to except to defect in thepetitioncontrary toTRCP90not a waiver).WAIVERS UNDER SECTION 5 1.09(a)ARE THE BIG, BOTTOMLESS PIT OFKILLER MISTAKES FOR THEPROSECUTOR. BEWARE!Transfer Proceedings6. Failure of the petition and/or summonsto state that the purpose of the hearingis to consider "discretionary transfer tocriminal court" or words to that effect.R.K.M. v. State, 520 S.W.2d 878(Tex.Civ.App. - San Antonio 1975). Thisdefect isjurisdictionalandwillresult inthereversal of any resulting criminal conviction.Hardesiy v. State, 659 S.W.2d 823(Tex.Crin1.App. 1983).7. The diagnostic report cannot beomitted in transfer proceedings. One mustbe filed with thecourt evenifitdoesn't sayanything because the child, on advice ofcounsel, refused to cooperate with the interviewedtester.R.E.M. v. State, 532S.W.2d 645 (Tex.Civ.App. -San Antonio1975).8. Failure personally to serve the transfersumnlons on therespondent is jurisdictionaland will result in invalidating anyresultingcriminal conviction. Proof of servicemust appear in the criminal caserecord. Jolinson v. Stme, 551 S.W.2d 379(Tex.Crin1.A~~. 1977).9. If the record in the criminal proceedingsshows that the defendant was underthe age of 17 at the time of the offense, therecord must contain a juvenile court transferorderortheconviction will beset aside.Ellis ir State, 543 S.W.2d 135 (Tex.Crim.App. 1976).10. The defendant can be prosecutedonly for conduct for which he was transfed.Ex pme Allen, 618 S.W.2d 357(Tex.Crim.App. 1981).TheStateislimitedto conduct, not to any specificchargebasedon that underlying conduct. Wooldridge I?State, 653 S.W.2d 811 (Tex.Crim.App.1983).1 I. If thejuvenilecourt retains jurisdictlonover one of several offenses chargedin a transfer petition, then the State will beprecluded from prosecuting the defendantfor any of the alleged offenses, even thosefor which the juvenile court has orderedtransfer. Stanlej, v. State, 687 S.W.2d 413(Tex.App. - Houston 114th Dist.] 1985).The Stanley rule does not apply if thejuvenile court dismisses one allegation buttransfers others and the rule has beenmodified torestrict it tosituations in whichthe juvenile tout retains jurisdiction andthen exercises it. Riclrardson v. State, 728S.W.2d 128 (Tex.App. - Houston [14thDist.] 1987).June 1989 1 VOICE for the Defense 25

All Texas sheriffs have one thing incommon: Given the opporfunity, they willtell you what a problem it is to run a jail.Those of us who have had the experienceof representing sheriffs in Federal litigationwould agree with theii concerns.When the Supreme Court hands downan opiniondealing with censorship whichimpacts the Federal Bureau ofPrisons, it isobvious that the opinion will have a"trickle down effect" on the operation ofTexas iails. For this reason. Thorrnburxh - v.~bboti - US. . S.Ct.-,- L.Ed,. 1989 WL 48804 (argued INovember& 1988; decidedMay 15,1989)1is worth looking at. This case had to dowith the reasonableness of regulations setforth at 28 C.F.R. $$540.70 and 540.71[which generally permit an inmate to sub-The Federal Cornerby F.R. "Buck" Files, Jr.-hntedcontext." The Cotut recognized, however,that these constitutional rights must he exercisedwithdueregardforthe"inordinatelydifficult undertaking" that is modemprison administrafion. The Court pointedout that it hadbeensensitive to thedelicatebalance that prison administrators muststrike hetweenthe order and security oftheinternal prison environment and thelegitimatedemands ofthmeon theoutsidewho seek to enter theenvironment, in personor through the written word.InProcunierv. Martinez, 4I6U.S. 504,the Court had earlier acknowledged theexpertise of prison officials and Gad admittedthat the judiciary is "ill equipped"to deal with the difficult and delicateuroblems of orison nlanaeement andout thit the Court cad affordedscrihetoortoreceiveapuhli~tion withoutconsiderable deference to the detenninapriorapproval but which went on to F. R (Btrck) Files, Jr. has been in the thn of prison administrators who, in theauthorize the warden of an institution to privatepractice oflaivin Tylersince 1970 interest of security, regulate the relationsreject apublication in certain circumstan- andis withfiejirmofBain, Files, Allenand between prisoners and the outside world.oes] and of The Program Statement of Olldwell, P.C. Hispractice is limitedto the [Procunier was concerned with ourgoingJanuary 2 1985 lwhich wrmitted a reiec-tion ofsexually explicit material havinh, tado with homosexual or sado-masochisticmaterials or materials that involve heastialityor children].The history of this caseis found in footnote2 of the opinion: '"I%is law suit wasfiled by prisoners in May 1973, and wascertified the following year as a class action.In 1978, three publishers, thePrisoners Union, Weekly Guardian Associates,and the Revolutionary SocialistLeague, wereadded as partyPlaintiffs.Thesnitalso challenged &ve;al prison practices,largely concerning inmate corresponden*that are not at issue here . . .A bench trial on the claims for injunctiverelief took place in 198 1, and a memorandumopinion and accompanying orderwere issued by the District Cow in September1984. The Coult of Appeals . . .denied injunctive relief pn 1987'J."By any standard, itcouldnothesaid thatthis case involved a ''rush to justice."In its opinion, the Court held that theDistrict Court had correctly anticipatedthat, the proper inquiry in this case iswhether the regulations are "reasonably26 VOlCEfor the Defense I June 1989- -reuresentution of defendants fir1 criminal versorral corresuondence betweeninmatesand civil rights nratters. Befoe entering &d non-inmat& and with regulations thatprivate practice, he prosecuted and de- providedfor censorshipof letters that "unfendedntilirary courts-n~anialfor the U.S. duly complained, magnify grievances orMarine Corps (befoe they hada JAG) attd express inflammatory political, racial,served as a First Assistant Crinrinal Dis- religious or other views or beliefs."]trict Attorney in Smith Counfy.In Procunier; the Court reviewed theCertified as a criminal law specialist regulationsinquestionunderthe followingsince I975 and a charter number offhe standard:Texas Criminal Definse Lnwyers Association,he is afieqaent lecturer at CLE coursessponsowdby the State Bar of Texasandthe CDLP.related tolegitimatepenalogic interests,"and concluded that under this standard theregulations in question were facially validandremanded thecasetotheDistrict Courtfor a determination of the validity of theregulations as they applied to each of 46publications which were thesubject of thesuit because they were being sent to inmateswithin the Federal prisons.Theopinionacknowledged that thecensorshippermitted by the regulations inquestion ". . . would raise grave FirstAmendment concerns outside the prison(1) The regulation or practice inquestion must further an importantor substantial governmental interestunrelated to the suppression of expression;(2) Prison officials . . . must showthat a regulation authorizing mailcensorship furthers one or more ofthe substantial governmental interestsof security, order, andrehabilitation.Second, the limitation of FirstAmendment freedoms must be nogreater than is necessaty or essentialto the protection of the particulargovernmental interest involved.

Table of ContentsXXIV. Jury Charges and Instructions(confinued)9) Failure to Vidw Tape10) Failure to Allow Defense Time toReview Charge1 I) Necessity12) "Or Contributed to Cause"13) PossibleInjury to Defendant'sHead14) Penal Code15) Scientific Evidence UnderpinningIntoxilyaerI6)Refusal of Chemical Test17) Se~arate Verdict FormXXV; ~ uisc i conduct ~1) Pressure from Other Jurors2) Trading Guilty Votes for Leniencyvotes3) Jurors' Tolerance of AlcohoI vs. TheDefendants: Matters Not in Evidence4) Lack of a Chemical Test WithoutRefusal: Matter Not in Evidence5) False Answers During Voir Die6) Juty ShuffleXXVI. Lesser Included OffensesXXVII. Miranda Warniuw1) AttachmentXXVIII. Motions to Quash1) Failure to Specify "Per Se" or "Impairment"2) Intoxicationby .I0 orlossofNomalFaculties in one Paragraph3) Failure to Specify F'hblic Place4) Failure to Specify Intoxication ofBreath, Blood or Urine5) Failure to Specify "Intoxication" inMotion to revoke Probation6) Failure to Specify SubstanceCausingIntoxication7) Failureto Specify Manner and Meansof How Vehicle Was Operated8) Failure to Specify Automobile BeingDriven9) Waiver of Motion to Quash by PleadingGuilty10) "Under the Influence" vs. '%toxi-DWI Litigationby J. Gary TdchterPart IV1 Gary Trichter is a partner in theHoastoffialveston firm of Tricker &Hirschhorn. He is co-author of thetextbook Texas Drunk Driving Law andnurlwrs the nwnthly article, "DWI PracriceGems" for Texas Crirnbml DefenseLawyers Association's Voice for theDefense. Gn~y is Co-chairman of the NationalAssociation of Criminal Defensehyers' DrunkDriving Committee ardomember of the Harris County CriminalLmvyers Association 's BmrdqfDirectors.He is a nationaNy rccognizedsentinar kcturerand journal author. He is especiallynotedfor his defeisiive techniques in dfugcourierprofile highwy cases.cat&11) Open Container: Failure to define"'immediate pssession" and open container12) Amending the Infomation13) Motion to Quash Where DefendantCharged With Criminally NegligentHomicide by being under Influence ofAlcohol and Controlled SubstanceXXIX Normal Mental and PhysialFaculties: H MerMM. Presumptions1) Shifting Burden of Proof2) Pmof of Sobriety=XI. Other Intoxicated PersonsXXXII. RadarXXXIII. Reopening Testimony AfterClosingxXXIV. RFI- Additional Predicate&din Frequency Interference1) Texas Cases (None)2) Other JurisdictionsXXXV. Subpoenas and Wrlts ofAttachment1) Subject to Witness Being PresentXXXM. SufEciency1) General Constitutional Standard2) Delayed Teat3) Police Officer Testimony4) Breath Test Evidence Only (Intoxilyzer)5) 210 Liters of Breath6) Defendant's Own Admissions7) Wheeling the Driver8) Circumstantial Proof of Driving9) Test Refusaland Art. 6701 1-5 @and3 (DWI Oml and Written Admonitions)under Article 38.23, Tex.Cr.Cr.F'ro.XXXVII. Test Refusal and thePrivilege Against CompulsorySelf-IncriminationXXXWII. Test Refusal and the Rightto CounselMMrx.Privilege Against CompuJsorySelf-Incrimination and AlcoholEvaluationsXL. Unanimous Jury VerdictsXXIV. Jury Charges andInstrucfions(confinrced)9) Failure to Video Tape ((DestructionofEvidence)Note: CJ, 35Tex.Jur.3d26&278.5141-142 (implied: Jury may be told they mayinfer that had tapebeenmadeit would havebeen favorable to the accused). See also,June 1989 i VOlCEfor the Defense 27

State v. Werkheiser, 474 A.2d 898(Md.Ct.App. 1984) and California v.Trombetta, 104 S.Ct. 2528 (1984)(Capacity to preserve is equal to actualpreservation).- Bur see, Franks 1r State, 724 S.W.2d918 (Tex.App. - San Antonio, 1987).-held: No error for trial court to refusedefendant's objection and requested juryinsfructionconceming the State's failure tovideo tape.10) Failure to Allow Defense Time toReview ChargeLewis v. State, 744 S.W.2d 377Vex.App. - Fort Worth, 1988).-held: Failure to allow defense counselany time to review court's charge, to makeobjections to the coua's charge and toallow time for requested inslructions waserror.11) NecessityPentycuff v. State, 680 S.W.2d 527(Tex.App. - Waco, 1984).-held: Defense of necessity requires abelief and determination on the part ofdefendant that the comnlission of the offensecharged against him was imniediatelynecessary to avoid other ~mminentham.-held: Without an admission that hecommitted the offense charged, a defendantis not entitled to a defense of necessity.12) "Or Contributed to Olrrse" (111-voluntmy n~n~slaugl~ter)Crab v. State, 729 S.W.2d 383Vex.App. -Fort Worth, 1987).-held: Error in involuntarymanslaughter prosecution regarding effectof intoxication to include in charge language"or contributed to cause" as it lessenedthe State's burden of proof. See also,Robbins v. State, 717 S.W.2d 348Vex.Cr.App. 1986).13) Possible Injury to Defendant'sHeadNeaves v. State, 725 S.W.2d 785(Tex.App. - San Antonio, 1987).-held: There was no error to refusedefensive charge that defendant's impairmentwas due to a possible head injuryrather than by intoxication where noevidence was presented that thedefendanthad actually been injured.28 VOICEfor file Defense I June 198914) Penal CodeCane v. State, 698 S.W.2d 138(Tex.Cr.App. 1985).-held: Trial court, in its discretion, maygivejury instrwtion onobjectives of PenalCode. However, where trial court choosesto give jury instruction on objectives ofPenal Code, it should instruct on all ofstatutory objectives, and not merely onsome of them.15) Scientific Evidence UnderpinningIrrtoxilyzerRay v. State, 749 S.W.2d 939 (Tex.App.- San Antonio, 4/29/88) (opinion onrehearing).-held:No enor in failing togiveinstruc-tion thal,iury IIIIIS~ tint find intoxilyzcrl~asvdid scientific basis bclorc it n~uvconsldcrits results.16) Refrrsal of Clfenrical TestMassie v. State, 744 S.W.2d 314(Tex.App. -Dallas, 1988).-held: Art. 67011-1 which allows foradmission of a chemical test refusal doesnot require jury instruction saying that therefusal is only evidence and that it shouldnot be considered for puqmses of guilt.Refusal is evidence of guilt.Butsee, Grant v. State, 738 S.W.2d 309(Tex.App. Houston [lst Dist.] 1987).-held: Prosecutor's argument thatrefusal occurred because defendantthought he was guilty and would not passtest was erroras the refusal statute does notprovide for snch explanation.17) Separate Verdict FormSims v. State, 735 S.W.2d 913(Tex.App.-Dallas, 1987).-held: Thereis no authority for separateverdict form for multiple theortes of sameoffense - a general verdict is proper. Accord,McGinty v. State, 740 S.W.2d 475(Tex.App. - Houston [lst Dist.] 1987).Reardon v. State, 695 S.W.2d 331(Tex.App. -Houston [Ist Dist.] 1985) (ageneral guilty verdict is sufficient if thereis evidence to support either theory.). Butsee Ray v. State, 749 S.W.2d 030(Tex.App. - San Antonio, 1988) (opiniononrehearing) (separateverdict should havebeen given).See also, Ex Parte Adam, - S.W.2d- (Tex.App. -Houston [14th] 9/1/88).-held: Retrial in multiple theory in-toxication case (i.e., mental faculty, physicalfaculty, and .lo) after mistrial becausehungjury not barred onjeopardy,collateralestoppel or due process grounds for trialcourt's failure to give trifurcated verdictfom~.18) 210 Liters ofAirRayv. State, -S.W.Zd-(Tex.App.- San Antonio, 4/29/88) (opinion onrehearing).-held: Trial court should have given instructionthat alcohol concentration isdefined as per Art. 6701 1-l(a) (I) (B) asthe number oE grams of alcohol per 210liters of air. However, absent a showing ofharm, there is no reversible error.19) ExpertsRussell v. State, 749 S.W.2d 77(Tex.Crim.App., 1988) (en banc).-held: A jury instruction which combinesa general instruction on thecredibility of witnesses with a specific instructionontestimony offered by anexpertwitness is an impermissible comment onthat expert's testimony if the result is tosingle out his testimony.XXV. Jury Misconduct (See also, R.606, Tex.R.Evid.1I) Pressrirepom Other JurorsGarza 11. State, 695 S.W.2d 58(Tex.App. -Corpus Christi, 1985).-held: Uncontroverted claim of juror,shown through affidavit and testinlony,that she was the only one of six jurors tovote not guilty to charge of driving whileintoxicated, that she voted that way five orsix times, and that she finally voted forguilty after pressure from other jurors didnot establish such extreme juror misconductas to render denial of motion for newtrial an abuse of discretion.2) Trading Guilty Votes for LmiencyVotesVorwerk v. State, 735 S.W.2d 672(TexApp. - Austin, 1987).-held: It is jury misconduct and reversihleerrorwhereonejuror promises anotherjuror to assess a light sentence at punishmentin return for a vote of guilty.3) Jurors' Tolemnce ofAlcol101 vs. theDefendants: Matters not in EvidenceMcGary v. State, 658 S.W.2d 673

(Tex.App. -Dallas, 1983).-held'~t isjury n~isconduct forthejurorsto convict a defendant because there wastestimony that he consumed a certainamount of alcohol which the jurors feltwould have caused them to be intoxicated,and where said decision was made onevidence outside the record, i.e., their ownrespective tolerance with alcohol consumption.4) Lack of a Cl~ernical Ted WithoutRejirsal: Matter not in EvidenceRoe v. State, 69 1 S.W.2d 73 1 (Tex.App.-Beaumont, 1985).-held: Indefendant's trial for DWI, juryimproperly consideredevidence other thanthat presented in court where defendant'srefusal to take breathalyzer test was notoffered in evidence and where jury consideredthe lack of breathalyzer testevidence as an indication that defendantmust have declined test because he felt hewas intoxicated.5) False Answers During Voir DireStowe v. State, 745 S.W.2d 568(Tex.App.-Houston [lst] 2/18/88).-held: False andfor misleading answersby prospective juror during voir dire mayviolate due process. However, the recordto show a violation must show: (1) thequestion asked, (2) the answer given; and,(3) that the juror did not tell the truth.Nontranscrihed questions and answerscannot be judicially noticed by the trialconlt.6) Jlcry ShrrSfleUrbano v. State, S.W.2d(Tex.App. -Houston [Ist Dist.] 6/16/88).-held: No harm in granting state a juryshuffle afterdefendant had received apriorshuffle.Batchelor v. State, - S.W.2d -(Tex.App.Dallas, 848/88).-held: Defendant's right to shuffle includesright to see jury fust in the orderthey will be seated. Violation of said rightis automatic reversible error and no harmneed be shown.Berkenler v. McCariy, 104 S.Ct. 3138 Intoxication(1984).-held: Miranda safeguards attach assoon as a suspect's freedom of action iscurtailed to a degree associated with formalarrest. See also, NY: v. Qlrarles, 104S.Ct. 2626 (1984) (public safety exception).XXm. Motions to QuashI) Faihrre to Spec~fi "Per Se " or "Impairment"Garrdiri v. State, 703 S.W.2d 789(Tex.App. - Waco, 1985).-held: No need to specify. But see Rayv. State, 749 S.W.2d 939 (Tex.App. - SanAntonio) (opinion on rehearing 4/29/88)(error not to specify).2) Intoxication by .lOorLossofNormalFaculties in One ParagraphBut Defendant needs to show harm ifrecord has statement of facts to get reversal.But see, Walker v. State, 751 S.W.2d268 (Tex.App.-SanAntonio,5/4/88) (it isreversihleerrorifmotion is not grantedandthere is no statement of facts as harm ispresumed).Sims v. State, 735 S.W.2d 913(Tex.App. -Dallas, 1987).-held: No error.3) Failure to Specify Public PlaceKing v. State, 696 S.W.2d 302(Tex.App. -Fort Worth 1985), remanded,728 S.W.2d 381 (Tex.Cr.App. 1987) onremand, 732 S.W.2d 796 (Tex.App. - FortWorth, 1987).-held: No need to specify.4) Failirre to Specffi 111toxication ofBreath, Blood or UrinePerryman v. State, 687 S.W.2d 371(Tex.App. - Houston, 1984) (pet. pending).-held: No need to specify. But see, Solisv. State, 742 S.W.2d 873 (Tex.App. - SanAntonio, 1987) (error not to specify).5) Failure to Specify "Zntoxication " inMotion to Revoke ProbationGarcia v. State, 747 S.W.2d 379(Tex.Cr.App.,No. 1241-86,1988).-held: Information alleging that thedefendant didnot have normal use of mentaland physical faculties whiledriving wasinsrrficient to inform him of the mannerandmeans of intoxication, i.e., by alcohol,drug, controlled substance or combinationthereof.7) Failure to Specifi Maliner andMeans of Horv Vehicle Was OperatedDahl v. State, 707 S.W.2d 694(Tex.App. -Austin, 1986).-held: No need to specify.8) Failure to Speclfi Auton~obile BeingDrivenBiederman v. State, 724 S.W.2d 436(Tex.App. Eastland, 1987).-held: No need to specify.9) Waiver ofMotion to Quash by PleadingGzriliyLugan v. State, 679 S.W.2d 179(Tex.App. -Fort Worth, 1984).-held: Defendant who pleads guiltywaives right to complain on appeal thatinformation failed to provide him propernotice. Butsee Teague 11. State, 737 S.W.2d105 (Tex.App. Corpus 1987).-held: Not waiver by pleaof nolo. However,absent statement of facts no harm canbe shown.10) "Under the Inf7zrence" vs. "Intoxicated"Maddox v. State, 705 S.W.2d 739(Tex.App. 1987) (pet. granted).-held: Information that pled "under theinfluence of intoxicating liquor" ratherthan "intoxicated" was sufficient to chargecrime of DWI.11) Open Container: Failirre to Define"bnmediate possessior~ " ond Open CalltainerState v. Scharbrough, 732 S.W.2d 445(Tex.App. 1987).-held: No need to define.XXVI. Lesser Included OffensesTracks ". 744 S'W'2d 677 12)A111e11dingtl1eI1~0fonnation(Tex.App. - Austin, 1988).See, supra, Section entitled Double-held: In MRP it is not error to fail to Dixon v. State, 737 S.W.2d 134Jeopardy. specify the particular definition of in- (Tex.App.-Fort Worth, 1987).XXVII. Miranda Warnings toxication. -held: Legislative amendments to Art.28.09 and 28.10 now allow for amend-1) Attachment 6) Failirre to Specify Substance CairsingJune 1989 I VOICE for the Deferlse 29

ments without the filingofanewconlplaintwhere the trial court has not dismissed orquashed the original complaint.13) Motion to Quash Wwe DefendnntChnrged with Crin~innllg NegligentHomicide by Being Under InJrrence ofAlcoho1and Contro1ledSubstni1ceBebeau v. State, S.W.2d -(Tex.App. - Houston [lst] 86 1/83).-held: Error not to grant motion forfailure to state offense.XXM. Normal Mental and PhysicalFaculties: HisCHerWutkirrs v. Stnte, 741 S.W.2d 546(Tex.App. -Dallas, 1987).-held: The faculties in issueare those ofthe DWI defendant.XXX. PresumptionsI) Shifrh~g Burden of ProofForte s. State, 707 S.W.2d 89(Tex.Cr.App. 1986).-held: .10 per'se statute does not shiffburden of proof to defendant as it is not anunconstitutional mandatory conclusion ofintoxication. See also, Scherlie v. Stnte,715 S.W.2d 653 (Tex.Cr.App. 1986).Bat see Eck~imn a Stnte, 603 S.W.2d937 (Tex.Cr.App. 1980) wherein it wassuggested that an improper jury chargemay improperly shift the burden of proofto an accused even though the penal lawdoes not.2) Proof of sob vie^Palafox v. Stnte, 509 S.W.2d 846Vex.Cr.App. 1974).-held: Under the former .l0 presumptionstatute, proof of a breath test of lessthan .I0 did not constihlte primae facieshowing of sobriety.XXXI. Other Intoxicated PersonsYnrbororrgh lr State, 384 S.W.2d 705flex.Cr.App. 1964).-held: Not error to admit evidence thatpassenger in defendant's automobile wasintoxicated.XXXII. RadarSee, Police Radar 1980: Has the BlackBox Lost Its Magic?, by Trichter and Patterson,Vol. 11, St. Marys L.J. 829 (1980)(good discussion on Texas law on radar).XXXIII. Reopening Testimony aRer30 VOICE for the Defense / June1989ClosingM- A- B-v. State, 718 S.W.2d 424ITex.Aoo. - Dallas. 19861.-held: It was error for trial court to notallowdefendant toreopentestimony wherewitness was present and ready to testify,charge had not been read to jury and finalargument had not been made, and thatcourt had some indication that tcstimonvwas material to issue of intoxication.XXXN. RFI-AdditionalPredicate(Radio Frequency Interference)I) Texas Cnses (None)2) Other JllrisdictiorlsRo~nano ir Kiine~elinai~, 474 A.2d 1(N.J. 1984).-held: Courts may takejudicial notice ofscientific reliability and accuracy ofbreathalyzer. Results of breathalyzer canbe affected by RFI under certain circumstancesand future test results will beadmissible if 1) 2 tests or readings areperfom~edand they are within toleranceof0.01% of each other, or 2) (a) periodicon-site RFI tests are performed and theinstrument is found to be nonsensitive thesaid results will be admissible, or @) if theinstrument is found to be RFI sensitive,then the state must prove no band-held ormobile transmitters were in closeproximityrrifdtheinstrunlent was shielded.Cor~rnronn~enlth v. Neal, 464 N.E.2d1356 (Mass. 1984).-held: Admissibility of breathalyzerresults is contingent on presentation by theprosecution of an adequate foilndation thatinstrument was not so susceptible to radiofrequency interference as to create a significantrisk that the result was inaccurate.At a minimum, the prosecution should beprepared to demonstrate that RFI testingprocedures reconmended by the manufacturer(Smith and Wesson) in a customer'sadvisoly have been followed.subpoenaed witness does not appear, . thepa& calling himnlust:I IReouest n writ of attnchment whichmust be denied:, .2) Show nhnt the witness would hnvetestifies to;3) Show thnt testin~o n~or~ldhave beenrele~~nnt and mnterinl.Ifall three requirements are met, reversibleerror will result unless the AppealsCourt deternunes beyond a reasonabledoubt that the e m made no contributionto the conviction or to the nunisbment.Jncksoi~ v. Virginia, 443 US. 307, 99S.Ct.2781 11979).-held: Due process requires that no personbe madeto sufferthe onus of acriminalconviction except upon sufficient proof,defined as evidence necessary to convincea trier of fact beyond reasonable doubt ofthe existence of every element of the offense.U.S.C.A.Const. Amend. 14.-held: The critical inquiry on review ofthe sufficiency of evidence to supportcriminal conviction must be not simply todetermine whether recorded evidencecould reasonably support a finding of guiltbeyond a reasonable doubt; the relevantquestion is whether, after viewingevidence in light most favorable toprosecution, any rational trier of fact couldhave found the essential elcnlent of thecrime beyond a reasonable doubt.2) Delnyed TestAlrr~is 1,. State, 578 S.W.2d 406(Tex.Crim.App. 1979).-held: Fact that chemical test was administeredI hour and 20 nunutes afterdefendant's arrest showing a 0.12% alcoholcontent, did not preclude finding ofintoxication on theory that delayed icstXXXV. Subpoenas and Writs ofpossibly showed higher level of alcoholAttachmentbecause of time gap between point of con-1) Subject to Witness Being Present sumption and point at which alcohol wasa) Texas Casesabsorbed into the system, ivhere e.vperierlcedhighnq' pntrol o$icer testifredErwin v. Stnte, 729 S.W.2d 709 that deferrdn~rt nus intoxicnted nWe(Tex.Cr.App. 1987) (en 6nnc).operating u motor ld~icle nrlddeferrriant's-held: A subpoena by the prosecutor can contention nus argrredto the jrrry (pre "perbe relied upon by the defendant. sen case). Accord, Forte v. State, 707-held: In order to preserve error when a S.W.2d 89,95 n.10 (Tex.Cr.App. 1986).

Note: The court noted at 407 thatappellant's argument "that a breath testadministered 1 hour and 20 minutes afterarrest is of no meaning" might bemeritorious if the results of a chemicalbreath test were the only evidence of hisintoxication.Crawford v. State, 643 S.W.2d 178(Tex.App.- Tyler, 1982).-held: Fact that breath test could havebeen given up to an hour after appellant'sarrest did not bar admissibility where thestate also introduces opinion testin~ony ofthemestingofficefs that the appellant wasintoxicated at the timeof his arest (pre perse case).Note: The Crawford Court notes at 180that appellant'sargument might havemeritif the breath test results were the onlyevidence of his intoxication (pre per secase).McCnfferty v. State, 748 S.W.2d 489(Tex.App. -Houston [lst Dist.] 3/10Js8).-held: Application of circumstantialevidence test (i.e., there must be exclusionof every other reasonable hypothesis exceptthat of guilt) is appropriate in DWI-held: To prove element of intoxicationin driving while intoxicated prosecution,onbasisof0.10% alcohol, Statemust offerproof beyond reasonable doubt that anychemical test offered in evidence provideshustworthy evidence of alcohol concentration,and substantiate inference that defendanthad 0.10% alcohol concentration inhis body at time of offense.sion that he had been driving car in questionwas insufficient to estabhsh corpusdelicti of driving while intoxicated, absentevidence corroborating the admission.7) Wheeling the DriverColenian v. State, 704 S.W.2d 511(Tex.App. -Houston, 1986).-held: Evidence that defendant was intoxicatedat time police officers arrived at@) Otherjurisdictionsscene of automobile accident was insuffi-Califanin v. Trombetta, 104 S.Ct. 2528 cient to support driving while intoxicated(1984).conviction, absent evidence that defendant-held: Themateriality ofbreathsamples was driving the vehicle or that be wasis directly related to the reliability of the intoxicated at time he was driving.Intoxilyzer itself. The degree to which Sirlast v. State, 688 S.W.2d 631preserved samples are material depends on (Tex.App.- Carpus 1985).how reliable the Intoxilyzer is. This cor- -held: Absent any evidence that enginerelation suggests that a more direct con- of vehicle was still hot or that car was stillstit~rtio~ral attack might be made on the smoking, and there being no evidence insuflciemy of the evidence underlying the record fixing time of accident, ev~denceState's case. After all, if the Intoxilyzer was insufficient to show that defendantwere tmly prone to erroneous readings, drove at the time he was intoxicated. Seethen Intoxilyzer results, without more, also, Reddic v. Stafe, 736 S.W.2d 923might be insufficient to establish guilt (Tex.App.- San Antonio, 1987). But seebeyond a reasonable doubt.Yemy v. State, 734 S.W.2d 766 (Tex.App.- . Stote v. B~rlina, -. 400 N.W.2d 872 (Neb. -Fort Worth, 1987).pr&ecution with .18 b&h'test result and 1987).8) Circrrnistantial Proof of DrivingStatefails toconnect defendant'scondition -held: Intoxilyzer 4011 AS does notat the timeofthe test to hisconditionatthe allow for variations in ratio of breath to Keennn 1,. State, 700 S.W.2d 12time of drivine -.(over 2 hours and no dis- blood and is too unreliable to suonort . a (Tex.Aoo.-Amarillo. 1985).cussion about absorption or elimination of conviction. But see State 1r Babcock, 419 ' -held:~videncethaivehicle wasparkedalcohol).N.W.2d 528, (Neb. 1988) whereinBur1i11~ - predominantly on road with its lights on,limited to its facts).;hat witness saw exhaust coming fiom tail3) Police Officer Testirrrorl),State v. Lowther, 740 P.2d 1017 pipe of vehicle on at least one occasion,Irion v. State, 703 S.W.2d 362 (Ha.App. 1987). and that defendant was only person in(Tex.Aoo. Austin. 1986). -held: Mere fact that legislature vehicle sunnorted conviction for driving. - L-held: Opinion testimony of mesting provided for admissibility of intoxilyzer whileintoxicated.officer, standing alone, is sufficient to test result did not autoniatically the result Seealso, Reynolds v. State, 744S.W.2dprove element of intoxication. with sufficient evidence of guilt. 156 (Tex.App. - Amarillo, 1988). (PDR4) Breath Test Evide~~ce 0111)~ (Irrtoxilyzer)(a) Texas casesSch~mker v. State, 704 S.W.2d 548(Tex.App. -Corpus Christi, 1986).-held: Statute prohibiting driving whileintoxicated [Vernon's Ann.Tex.Civ.St.Arts. 67011-11 was satisfied by expertwitness's testin~ony that intoxilyer testresult represented defendant's blood-alcoho1concentration and did not requirethat evidenceestablishnunlber of grams ofalcohol in defendant's body at time of arrest.Forre v. State, 707 S.W.2d 89flex.Cr.App. 1986).5) 210 liter.^ of BreathWagner v. Stafe, 720 S.W.2d 827(Tex.App.- Texarkana, 1986).-held: Where there was no objection tostate expert's testimony that intoxilyzerwas working properly and that a result of.10 or more meant there were 2 grams ofalcohol in 210 liters of the defendant'sbreath, it was not error to refuse a directedverdict on the grounds that the State failedto show that 210 liters of air were actuallymeasured.6) Defendant's Own Admissio~~sColeman 11. State, 704 S.W.2d 511(Tex.App. Houston, 1986).-held: Defendant's extrajudicial admis-LL -Application Pending.)-held: Evidence was sufficient to showdefendant was driver based on officer testimonythat defendant was found alone indriver's seat with the door closed, his feeton the floorboardunder the steering wheel,and, with his car one-half in a ditch.Bat see Ballard v. State ,- S.W.2d-(Tex.App. -Houston [Ist Dist.] 3/3/88).-held: Evidence insufficient to showdriving/operating where vehicle's windowswere closed and engine running withdefendant slumped over steering wheeland unconscious, where he smelled of alcohol,took an intoxilyzer test whichresulted in a .27 but there was no witnessas to defendant driving or as to how longdefendant had been parked.June 1989 1 VOICE for flze Defense 31

9) Test RefisalandArt. 67011-5$2and3 (DWI Oral and Written Admor~itions)Under Article 38.23, Tex. C. Cr.Pro.Tatagolin v. State, - S.W.2d -(Tex.App.Ft. Worth, 8/30/88).-held: Art. 6701 1-5, 92 and 3 strictlyrequired a police officer not a civilian togive oraland written DWI admonitions -refusal is inadmissible if non-officer giveswarnings and it is shown to be harmful.Note, e m is only deemed hmful wherea casual connection is made betweenrefusal and the non-officer.XXXVII. Test Refusal and thePrivilege Against CompulsorySelf-IncriminationSorrth Dakota v. Neville, 459 US. 553,103 S.Ct. 916 (1983).-held: Admission of a chemical testrefusal does not offend the Fifth Amendmentprivilege against compulsory self-incriminationif there is no impermissiblecoercion.-held: Request to take achemical test isnot interrogation within the meaning ofMiranda.-held: Due process is not offended bythe admission of a DWI suspect's refusalto be tested even where police fail to warnthat such a refusal could be used againsthim.Accordas to points 1 and 2 only:Bassv. State,723 S.W.2d687; McGirrgv. State, 723 S.W.2d 719; Thomas v. State,723 S.W.2d 696, all decided by the TexasCourt of Criminal Appeals (1986). Note,Itonwer, that Bass and ilfosrns leave openthe question of whether or not a refusal isa communication.XXXVIII. Test Refusal and the Rightto CounselReznc v. State, 722 S.W.2d 32(Tex.App.-Dallas, 1986).-held: Error to allow jury to hear accusedrequesting counsel because such aclaim may not be relied upon as evidenceof guilt and that it was possible jury wouldbelieve accnsedguilty becauseof his attorneyrequest.See also, Stone v. McMillion, 500N.E.2d 326 (Ohio App. 1986), Wainwrighrv. Greerfield, 106 S.Ct. 634, 642 (1986),Bruno v. Rushen, 721 F.2d 1193 (9th Cir.1983) andZenrim v. Solear, 573 F.2d 1027(8th Cir. 1978). Butsee Jrrirrail I? State, 73 1S.W.2d 708 Vex.App. - Houston [14Dist.] 1987).XXXVIX. Privilege AgainstCompulsory Self-h~criminationandAlcohol EvaluationsPeople v. Baker, 511 N.E.2d 219 (Ill.App. [4thDist.], 1987).-held: Defendant convicted of DWIcould claim privilege against compulsoryself-incrimination on alcohol evaluationwhich was used to determine punishment.XL. Unanimous Jury Verdicts(a) TexasRay v. State, 749 S.W.2d939 (Tex.App.- SanAIIt0~0, WAS) (opiniononrehearing).-held: No error by court failing to givejury instruction andspecial verdict formonseparate theories of intoxication (i.e., lossof normal faculties and .lo) where therewas sufficient evidence of guilt on boththeories.See also, Exparte Adaii~s, - S.W.2d- (Tcx.App. -Houston [14th] 9/1/88).-held: Retrial in multiple theory intoxication(i.e., mental faculty, physicalfaculty and .lo) aftermistrialhecausehungjury not bmed on jeopardy, collateral estoppelor due process grounds for trialcourt's failure to give trifurcated verdictform.@) Other JurisdictionsUS. v. Gibson, 553 F.2d 453 (5th Cir.1977).U.S. Jr Bcros, - F.2d - (3d Cir:1987) (42 CrL 2147- 11/25/87).Burch v. Louisiarra. 441 US. 130. 99S.Q. 1623 (1979). A six-person jury in anonpetty offense must be unanimous.Special Note: In Texas the .I0 alcoholcoucentrationdef~tion is separate and in-dependent element of the offense of DWI.Forte v. State, 707 S.W.2d 89, -(Tex.Cr.App. 1986). In the author'sopinion, it would he improper for a jury toreturn a guilty verdict by mixing theoriesofintoxication, i.e., two for mental, two forphysical, two for .lo. Accordingly, for aconviction to pass constitutional muster,each of the theories on which convictionoccurred had to have been unanimouslyagreed upon by thejury.HFederal CornerThus, a restriction on inmate correspondencethat furthers an importantor substantial interest of penaladministration will nevertheless beinvalid if its sweep is unnecessarilybroad.In Thornburgh however, the Court wasconfronr&l with the problem of inconlingpublications; i.e., material requested by anindividual inmate but targeted to a generalaudience.In lianer v. Safley, 482 US. 84, the32 VOICE for the Defense I June 1989Supreme Court had dealt with incomingpersonal correspondence from prisonersand the problems created by the impact ofthe correspondence on the internal environmentof the prisoner. In Zrriler, theCourt had recognized that the Martinezstandard failed to afford prison officialssufficient discretion to protect prisonsecurity.In iliornburgh, the Court held thatregulations affecting the sending of a publicationto a prisoner must be analyzedunder the T~friter reasonableness standard:such regulations are "valid if they arereasonably related to legitimate penologicalinterests."The Court went on to point out thatTurner had identified several factors thatare relevant to, and that serve to channel,the reasonableness inquiry: Are theregulationsat issuelegitimate? Are they neutral?Are they rationallyrelated to theobjective?Thornburgh should he well received bythe Bureau of Prisons; and. at the veryleast, Thornburgh suggests to us thatCounty jails having written policies andprocedures sinlilar to C.F.R. $8 540.70 and540.71 are going to be on solid ground.[Don't you know that the averageSheriff will be pleased to learn that heprobably won't have to let his prisonerssubscribe to publications depicting sadomasochistic,homosexual, heastiologicalsexual activity with children?]

Motion Practice: Motion for Juryat Guilty/Not Guilty Stageby Joseph A. Connors, 111NO. CR 012-89THE STATE 5 INTHE 139THOF TEXASDI~ICT COURTvs . S OFDEFENDANTHIDALGOcorn, TEXASMotion for Juryat Guilty/Not Guilty PhaseTO THE HONORABLE JUDGEOF SAID COURT:Comes now the Defendant and movesfola . iuw . trial at theguiltyhot - . guilty - -. phase,saying:1) Article44.29@), V.A.C.C.P. is inapplicableto this case..2) Said Article 44.29@) became effec- Ltive on Angust 31, 1987. See S.B.No. 43, -and ex post facto provisions of Article 1,3 16 oftheTexas Constitution, and aviolationof fundamental fairness embodied in"the due course of the law of the land"provision of Article 1, 8 19 of the TexasConstitution.5) To apply to defendant's case the1987 amendment to Article 44.29, wouldbe a violation of the Federal Constitutionwhich prohibits not only enactment of expost factolaws but alsolawswhichdeprivedue process and/or equal protection: Article1,s 9, clause 3 and 8 10, clause 1 andthe Fourteenth Amendment.Summaryof ArgumentDefendant submits that only Aaicle44.29. sunra 11985) is a~~licable to thisChap. 179, 5- Gbstantial iiierests ofdefen-1, pgs. 2711-2713, 70thdants have been modified by the 1987Legislature (1987 Regular Session). PriorMr. Connors received his BA degree leeislation. The new 1987 Article 44.29to that date,44.29 hadno sub-para- from the University of Southwestern aliows the State to maintain a convictiongraph cb). In fact 44.29,Louisiana in 1970 and his JD degree from during the retrial without presenting anyV.A.C.C.P. (1985) read:the Universitv of Texas in 1973. evidence. Such is a far crv from the oldWhere the court of appeals or theCourt of Criminal Appeals awards anew trial to the defendant, the causeshall stand as it would have stood incase the new trial had been grantedby the court below.. .Mr. Gurors served as a briefng atforneyfor the Tems Court of Civil Appeals inAmarillo from 1973 to 1974 and ms onAssistant Criminal District Aftorney inHidalgo County from 1976 to 1978. Hecurrently is inprivatepmctice in McAllen.He is board certified in criminal law and1985 Article 44.29, whicLProhibited theState from obtaining a convrction uponretrial without presenting sufficientevidence to convince the fact finderbeyond a reasonable doubt of all elementsof the charged crime. See also V.T.C.A.Penal Code 5 2.01.3)No appellate court should inshuct the is the Secreh~flreasumr of the Texas Astridvis-a-vis Article 44.29, sociation of Board Certijed Criminal Law Supporting Memo of Lawbecause that articleislegislatively directed Specialists (1987-1989). Mr. Connors is ato the ttial court, which is the only proper charter member of the College of the State Article 1, Section 16 ofthe Texas Conforumto decide in the first instance the BarofTexas(1983-1989)andadirectorof stitution reads: "No bill of attainder, exapplication of that Article.TCDLA.post facto law, retroactive law, or any law4) The 1987 amendments to Article Mr. Connors has lectured in numerous impairing the obligation of contracts, shall44.29 of the Texas Code of Criminal Pro- continuing legal &cation progmms, in- be made." Generally, statutes are not to becedure d~ould not be applied to this case. cludi11gtheAdvancedCrin2i11al Law course applied retroactively. Ex par& Abahmh,This defendant is entitled to the benefits of at fhe crjmiIurl pial ~d~~~~~~ ~ ~ ~ t ; 561 t ~ S.W.2d202,204 t ~ . (Tex.Cr.App. 1978).the Procedd ~les in effect at the times He has also authored a number of articles At the time of every step in defendant'she al'egedl~comittedthecharged on criminal law and procedure, including case except rendition of the opinion andhe was and sentenced in this those published in the Advanced Criminal judgment by the court of appeals, Articlecase, hegave notice and his case Law course 1aterials, the Texas Bar Jaw- 44.29, V.A.C.C.P. (1985) did not give anywas submitted for decision by the court ofand the Voice for the Defense. Mr. cow the authority to nullify defendant'sappeals'V.A.C.C.P.To(1987) asArticlethereafter44.29(b),enactedConnorspresented the oral argurnent be- right to have his case "stand as it wouldwould be a violation of the retroactivityfore the United States Supreme Court in have stood in case the new trial had beenRay v. United States(l07S. Ct.2093; 1987). granted by the [district] court below"June 1989 1 VOlCE for the Defense 33

I1within 75 days of defendant's sentencingin open court on October 31,1986. Article44.29, V.A.C.C.P. (1985). To apply the1987 amendment to Article 44.29,V.A.C.C.P. (1987), retroactively merelybecause there was a delay and the court ofappeals' judgment was rendwed after theeffectivedate of the statutory amendmentwould result in depriving thedefendant ofsubstantial protection - the right underArticle 44.29, V.A.C.C.P. (1985) torelitigate before a new jury the issues ofboth guilt and punishment in this cause.Such are violations of the Texas Constitution.On rehearing, this Court shouldmodify its original opinion to provide forreversal and remand for new trial in accordancewith the pmvisions of Micle4429, V.A.C.C.P. (1985). See Ex parieAbahosh, supra.As to procedural changes other thanchanges in the rules of evidence, theSupreme Gourt has stated the test in thisway: a procedural change which does notinjuriously affect a substantial right towhich the accused was entitled as of thetime of his offense is not ex post factothough retroactive; but it is otherwise if itdoes deprive him of a substantial right.Miller v. Florida, 482 US.-, 107 S.Ct.2446.2450-2454.96 L.Ed.2d 351 (1987);Kring v. Missouri, I07 US. 221, 2 S.0.443,449-455,27 L.Ed. 506 (1883) [wherethe Court held the new law was an nnconstitutionalex post facto law which depriveddefendant of a substantial rightsince old law in effect at time of offense,provided that on a charge of first-degreemurder aguilty plea tosecond-degreemurderoperated as an acquittal of fust-degreemurder, even if the plea is later set aside,while the new law, passed after commissionoftheoffense, provided that if the pleais set aside, new trial may be had for fmtdegreemurder]. However, it is not alwayseasy to place a particular proceduralchange in one category or the other. Exparte Johnson, 697 S.W.2d 605Tex.CrimApp. (1985)(separatedissentingopinions by Judges Onion, Clinton andTeague). A procedural change, which hasbeen held to be substantial, is the completeabolition of jury trial, State ex rel. Sherbumev. Baker, 50 La.Ann. 1247,24 So.240 (1898), or the abolition ofjury trial asto assessment of punishment. Winston v.Stare, 186 Ga. 573, 198 S.E. 667, 669(1938)[where the Georgia Supreme Courtheld that the new law permitting only annexed to the crime, when comjudgesto set punishment was an ex post mitted. 4th. Every law that alters thefacto law as to Winstonbecauseit deprived legal rules of evidence, and receiveshimofthesubstantial preexistingabsolute less, or different, testimony, than theright to have a jnry asses punishment law at the time of the cornunderthe indeterminate sentence law in mission of the offense in order toeffect when the criminal act was comtheoffender.nlitted]; Hurt v. State, 187 Ga, 73,199 S.E.801 (1938)[sameas Winston, supra]; Camp Texas has adopted that samedefinition.v. State, 187 Ga. 76, 200 S.E. 126Hill v. State, 146 Tex.0.R. 333, 171(1938)[same as Winston, supra]. See alsoS.WSd 880, 883 (1943), cert. dismissedWave and Scott, Szrbstantive Criminal320 U.S. 806,64 S.Ct. 72, 88 L.Ed. 487Law, 5 2.4 Ex Post Facto Laws pgs. 140-(1943); Millican v. State, 145 Tex.Cr.R.141 (West 1986).It isclearthat whilesome195, 167 S.W.2d 188, 190 (1942); Holt v.of the methods of trial may be changed,Stafe, 2 Tex. 363, 364 (1847)[where theeven as to offenses of a prior date, but theCoiiri held the legislation, Stats. 1846,law securing to theaccused the right oftrial161, which required the jury in certainby jnry cannot be repealed, as relates tocases to assess the punishment to be incriminalacts which had been done at theflicted, not to be an ex post facto lmv, intime of the repeal through subsequentviolation of Article 1, 5 14 of the Texaslegislation or constitutional amendment. A Constitution in reference to the 1846 trialnew statute or consfifution, materially imofthiscauseonan 1844 indictment, whichpairing to his disadvantage the right of theprosecution was pending at the period ofaccused to have the question of his guiltadoption of the first state Constitition,determined according to the law as it wassince that act of 1846, ". . . merely subwhentheoffense wascommitted,is exposfstitutes the opinion of the jury for that offact0 in its application to felonies comthejudge in those cases, but it does in nomitted before enactment of the new law.respect operate to the prejudice of the ac-. ...". . .because, in respect of such crimes, the. ."I.constitution bf theunited States gave theaccused, at the time of the commission ofhis offense, the right to be tried by a jury oftwelve persons and made it impossible todeprive him of his liberty except by theunanimous verdict of such a jury."T?ionipson v. Ufah, 170 US. 343,18 S.0.620, 623-624, 42 L.Ed. 1061(1898)[reversing conviction by jnry ofonly eight persons for crime committed inUtah territory but prosecuted after Utahbecame a state].Article 1, S$ 10, clause 1, of the UnitedStates Constitution prohibits a State'senactment of any ex post facto law. TheUnited States Supreme Court stated theclassic definition of an ex post facto law inOllder v. Bull, 3 US. (3 Dall.) 386, 390(1798), where the Court said:1st. Every Law that makes actiondone before the passing of the lawand which was innocent when done.criminal; and punishes such action.2d. Every law that aggravates acrime,or makes it greater thanit was,when committed. 3d. Every law thatchanges the punishment, and inflictsa greater punishment, than the lawSupporting Authorities1. Exparte Abahosh, 561 S.W.2d 202,204 (Tex.Cr.App. 1978)[where the 1977amendment to Anicle 44.02, V.A.C.C.P.(effective August 29,1977), was declarednot to be retroactive so as to nullify theappeal of a defendant, who had pled guiltyon August 5, 1977 but was sentenced on~e~tember 9,19771.2. Chalin v. Slate, 645 S.W.2d 265(Tex.Cr.Aoo. 1982>(0n Rehearingi983)[whe& the C&t holding dueprocess of law does not allow prosecutionfor possession or delivery of phentermineif the offense occurred between the timewhen Riddle was decided and whenAshcrafi was decided, the Court quotedfrom Bouie v. City of Columbia, 378 US.347, 352-355, 84 s.0. 1697, 1702, 12L.Ed.2d 894 (1964) in part saying:When a state court overrules a consistentline of procedural decisionswith the retroactiveeffectofdenyinga litigant a hearing ina pending case,it thereby deprives him of dueprocess of law "in its primary Sense34 VOlCEfor the Defezse I June 1989

ot an opportunity to be heard and to that the provisions of V.T.C.A. Penal pmhibit the enactment of ex post factodefend [his] substantive right." Code, 8 12.46, which becameeffectiveon laws: Article 1, 8 10, United States Con-Brinkerhof-Faris Trust & Sav. Co. June 7,1979, applied only to prosecutions stitution; Article 1, $16, Texas Constituv.Hill,281 US. 673,678 [SO S.Ct. ofcrin~esmmrnitredafteritseffectivedate, tion].451,453,74 L.E.. 11071. fortoapply it retroactively toprosecutions 4. Fx parte Alegria, 464 S.W.2d 868conducted after its effective date of June 7, (Tex.Cr.App. 1971) [where the Court3. fi pane Bonfrartr, 707 S.W.2d 107 1979, would violate the provisions of the granted relief for although the statute in(Tex.Cr.App. 1986)Lwhere the Court held Federal and State Constitutions which effect at thecommission of the offense andTentative FY89 CDLP/TCDLA Seminar ScheduleJune 8-10,1989 June 29,1989TCDLA Criminal Law Short TCDLA Executive CommitteeConrse- San Antonio -Holiday Inn Meeting-5:OO-6:30 p.m.-HolidayRivetwalkInn RiverwalkJune 28Juty 1,1989SBOT ConventionSan AntonioThe Sfare Bar of Texas will beHendquaneredat rite MarriortJune 29,1989Criminal Law InstituteSponsored by: Texas District andCounty Attorneys Association,Criminal Justice SectionJune 29,1989CDLP Executive Committee June 30,1989June 29,1989TCDLA Annual Party with Auction&Hall of Fame Inductees -7:00 p.m.-closing - (Plaza Nacionalin LaVillita)June 30,1989TCDLEI Boad Meeting-9:3@10:30 a.m.-Holiday lnnRivetwalkti^^ 4:00.5:~) p,m.-Holiday inn Friends of TCDLA Board Meeiing -Riverwalk10:30 a.m:12:00p.m.TCDLNCDLP Proposed FY90 Seminar ScheduleJune 30,1989TCDLA Amual Meeting (BoardMeeting)-10:30 a.m.-1:OOp.m.July 20-21,1989CDLP Skills Cours~Ahilene(Embassy Suites)August 10-11,1989CDLPFederal &State AppellatePractice-Ft. Worth WoahingtonHotel-tentatively)September 20-22,1989TCDZAFederal Shortcourse-Dallas (Holiday InnDowntown Elm Street)September 8-9,1989TCDLA Board and ExecutiveMeetings - Odessa (CDLPExecutive Meetings)September 20-22,1989TCDLAFederal Criminal Law ShortCourse -DallasOctober 19-20,1989CDLP DWI Seminar- San AntonioDecember 9,1989TCDLMCDLP Board and Executive-DallasJanuary ll-12,1990CDLP Dnig Offenses - McAlknFebruary 15-16,1990CDLP Sex Offenses - HoustonFebruary 17,1990TCDLMCDLP Board and Executive-HoustonApril 18-22,1990TCDLA Spring SeminarMay 17-18,1990CDLPFederal Crimid Law - SanAntonioJune7-10,1990SBOT Convention - DallasCriminal Law InstituteTCDLNWLP Board &ExecutiveMeetings, TCDLA AnnualAwardSmartyMarch 3-9,1990 July 12-13,1990November 16-17,1989 Criminal Trial Advocacy Inst. - CDLP Skills Course - WacoCDLP Skills Course -Austin Huntsv~lleAugust 16-17,1990Decen~ber 7-8,1989 Aprn 6,1990 CDLP Appellate Law Seminar -CDLP Federal Criminal Law - Dallas CDLP Skills Course -El Pas0 HoustonJune 1989 1 VOICEfir the Defeme 35

conviction would authorize prisoner'seligibility for parole upon his life sentencefollowing cumulation of credit for fifteenyears; application to such prisoner ofstatute enacted thereafter increasing theminimum period for parole eligibility totwenty years, %vould be ex post facto inviolation of Article 1, § 16 of the TexasConstitution].5. Phillips v. State, 92 Tex.Cr.R. 3 17,244 S.W.146 (1922). The Court's entireopinion reads:Convictionis for sellingintoxicatingliquor. Punishment, three years inthe penitentiary.The sale upon which the prosecutionis basedoccurred prior to the amendmentof the law by the Thirty-Seventh Legislature, when thepurchaser was an accomplice. Thetrial however, was had after theamendment became effective, underwhich the purchaser is no longer anaccomplice. The only two witnessestestifyingforthe state werejoint purchasers.Appellant contends that thelaw as it existed when the offensewas committed controls, and that, inthe absence of corroborative testimony,the trial judge should havegiven the requested instruction toreturn a verdict of "not guilty."Plachy v. State (Tex.Cr.App.) 239S.W. 979, holds that the amendmentby the Thirty-Seventh Legislature isan ex post facto law as it applies tooffenses committed prior to itsenactment, and is direct authority forappellant's contention. It, however,had not been decided when the instantcase was tried.The judgment must be reversed, andthe cause remanded.6. DeCordova v. Cify of Gdvesto~ 4Tex470 (1849) [where the Court discussedat some length the question of what constitutedeither an ex post facto law or aretrospective law within the intent of theinhibition].7. Martin v. State, 22 Tex. 214 (1858)[where the Court reversed the judgment ofconviction and remanded the cause]. TheCourt's entire opinion reads, id. at 215-216:This indictment was presented and36 VOICE for the Defense I June 1989filed at the fall term, 1856. At thespring term, 11th April, 1857, thedefendant pleaded, in abatement,that Patrick Henry C. Pearcy, one ofthe grand jurors who found the bill,was not a freeholder in the state, norhouseholder in thecounty, as well asother grounds. The district attorneyadmitted the facts, "but denied thesufficiency of the plea, under thenew code," and the court sustainedtheobjections to the plea, and held itto be insufficient, to which ruling,the defendant excepted.Thecode provides, "that alloroceedings,had kterthc titnc thi5 kt t;~k~seffect. shrill he col~ductal iiccordinc -to its &visions."It took effect fromand after the fist day of February,1857. See Final Title, pp. 1857-8.It further provides, that no such pleato an indictment shall be entertained(art. 401), but that such objectionmust be made by challenge to thejuror, while the grand jury is beinginlpaneled. Ms. 401,364,369. Thiscode provides a new mode of summoningand organizing a grand jury,which did not go into effect untilafter this indictment was found. Atthe time the indictment was found,the defendant could not challenge agrand juror for such cause, and hisonly remedy was, topleadit inabatement,when required to answer thecharge, after the indictment waspresented. Stanley v. The State, 16Tex. 537.The question now presented, is,whether he can be deprived of theright to object, in some availabJemanner, to the legal competency ofthe grand jurors by whom he hasbeen tried, by thischangeofthetimeand manner of asserting it. He filedthe plea before pleading not guilty,at the first term of the courtafter thecode went into operation, and whichwas as soon as he was permitted, bythe previous practiceof the courts, todo it.It can hardly be supposed that thelegislature intended to cut off sovaluable a right, by changing themode of procedure. The old law didnot permit him to challenge thejuror;and before theindictment was found,the new law required him to do so,and did not allow him to plead it inabatement. To enforce the new law,in such case, would give it aretroactiveeffect, which is contrary to thespirit of the constitution. Hart. Dig.52. Our decisions held, that defendanthad the right to plead this, inabatement, when called upon toanswer. Stanley v.TheState, 16Tex.557, and cases cited. The code, ifliterally enforced, retroacts on thisright, and requires it to have beenasserted, if at all, at a time that waspassed, whenat that time thelawdidnot permit it to be asserted. Even inEngland, and in our sister states,where there is no express inhibitionof retroactive or retrospective laws,the courts will, if possible, construea law not to have been intended tohave such effect, when thereby importantrights will he dcfwtcd. &Ig.Stat. and Con5t. law. 68 190.6X9. Itwould also, most likeii, be held tohave thcclti.ct, as to this right, c)f aneauo~t firr~o law. wl~ich is orohihitdA -by our constitutibn. Hart. .Dig. 52; 1Kent, Com. 408-9.We think the court erred in holdingthe plea to be insufficient. Judgmentreversed and cause remanded.Reversed and Remanded.8. Cnlloir~ay v. State. 7 Tex.App. 585(1880) [where the appellate court reversedbecause there was a fatal variance betweenthe allegation of sole ownership and theproof of joint ownership, even though thedistrict corrrt had overruled thedefendant's timely motion to strike for thatvariance the joint ownership testimony,becarrseArticle 426, anew provision in theRevised Texas Code of Criminal Procedure"... which was in force at the time ofthe trial, met and obviated the objection"].There, the appellate court said:It is well established that alaw whichalters the legal rules of evidence, andreceives less or different testimonythan the law required at the time ofthe commission of the offense inorder to convict the offender, is expostfacto. Holt v. The State, 2 Texas,363; Murray v. n e State, 1 TexasCt.App. 417.9. In Turbeville v. Gowdy, 272 S.W.

559. 561 ITex.Civ.Ann. - Fort Worth statute still in effect at the time of the1925, no At), thecou; hiscussed retmaclivelaws, saying:A retroactive law, in the sense of theconstitution, and in so far as is hereapplicable, which prohibits suchacts, is onemade that affects acts orrights accruing before it came intoforce. A statute is retroactive whichtakes away or impairs vested rightsacquired under existing laws, orcreates a new obligation, imposes a'new duty, or adopts anew disabilityI in respect to tmsactions or considerationsalready passed.alleged offense].11. Cardenas v. State, 683 S.W.2d 128,131 (Tex.Avn. - San Antonio 1984,xwhere after agoodretroactivitydiscussion, the court held that thepresent law, Tex.Rev.Civ.Stat.Ann. article2372 p 35 13(b) (Vernon's Supp. 1984),cannot be appliedretroactively].12.Alvamdo v. State, 723 S.W.2d 318,319-320 (Tex.App. -Austin 1987, reviewpnted). There, the Court dealt with theFpamlejuryinst~ctionmandatedby Mile37.0794(a) V.A.C.C.P. (1986), saying:Article 37.07, 4(a), relates to pro-'cedure; it is not substantive law10. Lindsey v. State, 672 S.W.2d 892 defining criminal acts and providing(TexAop.-Dallas 1984,) -. [where the for penalties. The general mle is thatI court reversed, holding that appellant was in theabsenceof&expressintentionI chareed and convictedunder an irnnermis- to the contrarv. nrocedural statutessibl&x post facto application of the 1981amendments to V.T.C.A. Penal Code $21.03, which clearfy required less or differentevidence to convict from the 1973convollitigati&komtheireffectivedate; that is, they apply to both perudingand future actions. Wade v. State,572 S.W.2d 533 (Tex.Cr.App.1978)(Speedy Trial Act applied topending case); Granviel v. State, 552S.W.2d 107 (Tex.Cr.App. 1976)(amendment of statnte providing forpretrial examination of defendant bypsychiatrist applied to pendingcase); Wilson v. Start, 473 S.W.2d532 (Tex.Cr.App. 1971), and Millerv. State. 468 S.W.2d 818(Tex.Cr.App. 197l)(au1endment ofstatutes governing admissibility ofcanfessions applied to pendingcase); Ritcltey v. State, 407 S.W.2d506 (Tex.Cr.App. 1966)(&nge inswuse's testimonial immunity ap-&ed to pending case); ~inclair kStote. 159 Cr.R. 35.261 S.W.2d 167(1952)(amendmknt of statutegoverning right to severence appliedto pending case).Respectfully submitted byAppellant's attorneyJoseph A. Connors 111Texas Law of Deadly Weaponsconriltuedfmmprge 24the parole and probation eligibility restrictionsregardless of whether he was a principalor an accomplice. Second, waivingthe deadly weapon finding for anenumerated "aggravated" offense does notaffect theparole and pmbatiourestrictions;the defendant must still serve the flat"quarter time." The only way to eliiatethe fat-time restriction is to reduce thecharge to a lesser-included offense. ExParte Pruitr, 689 S.W.2d 905(Tex.Cr.App. 1985).Thus, many plea agreements have beenchallenged on the grounds that the defenseattorney misinformed his client aboutprobation or parole eligibility. The Courtof Criminal Appeals has refused to voidsuch guilty pleas unless themisunderstanding was madeanaffirmativepart of the bargain. Er Parte Ausfin, 746S.W. 2d 226 (Tex.Cr.App., 1988) (defendantnot eligible for shock probation; pIeabargain is void); Ex Parte Evans, 690S.W.2d274 @zx.Cr.App. 1985); Ex ParteYomg, 644 S.W2d 3 (Tex.Cr.App. 1983).However, an affirmative misrepresentationby counsel, in which the trial judgetakos no part, is ineffective assistance ofcounsel under the Strickland v.Waslzingtan14 standard, if the defendantreliedonit toreject or accept apIearecornmendation.Ex Parte Wilson,-S.W2d-(Tex.Cr. App. 1985).Anothertmpisthe"probationon1y froma jury" effect of the statute. The effect ofArt. 42. I2 Sec. 3g is to force the defendantto choose jury punishment if he desiresprobation. No problemif you face hangingjudge. If your juries ~IE generally tougherthan the trial judgein that particular do youadvise the defendant to forego his onlyhope for probation? Or does he, after readingthe opinions in May v. State, 660S.W.2d 888 (Te.x.App., 3d, 1983), afd722 S.W.2d 699 flex.Cr.App. 1984) andTrevino v. Srate, 752 S.W.2d 735(Tex.App., Eastland, 1988) feel obligatedto submit a timely application for probrtion?With either choice, he should informhis client of the risks involved, and obtainthe client's agreement.The Court is trying to makesenseout ofthe legislature's murky language; but Idoubt there will be muchsuccess whenonejudgerefuses to believe that arevolveris aform of firearml%hile another places theburden of showing no criminal intent onthedefendam'saI. Vernon's Anno. Penal Cala. See. 1.07(a)(11)2. Vernon's Anno. Code Cdm. Pmndm'e, Art.42 12, Sec 3g.3 Vemon's Anno. Cale Crim Pmcodure. Art.42 18, Sec. 8(Q.4. m. 42.18, Sec.B(c).5. Art. 42.12, Sec. 3g (a); May v. State, 722S.W.Zd699(l'cx.Cr.App. 1984),&PaneAusrin, 746S.W.Zd226 (Tex.Cr.App. 1988).6. Art. 42.12 Sec. 3g @).7.Art. 42.12,Sec. 3g(a).8. Penal Cede Sec. 1.07 (AN I).9 PenalCadek. 1.07 (A)(ll).10. Polk v. Smte. 693 S.W.2d 391 (Tex.Cr Am.1985)(firearm); '7hampen v. Store, 521 S.W.2d 621(TexCr.App. 1974) (patot) Bmvo v. State. 627S.WZd 152 (Tex.CrApp. 1982)(rifle).I1 Ciawrv. Stme, 657S.W.Zd146(Tex.Cr App.1983)(pn); Tunier v. State, 664 S.W.2d 86(Teir.Cr App 1984)(fiS or club).12. Ex Parte Mender, 724 S.W.2d 77(TexCr.App. 1987); Er Parre Hqhes, 739 S.WZd869 (Tex.Cr.App. 1987).13. Ex Parte Brooks. 722 S.W.2d 140(Ta.Cr.App. 1987); Fmn v. Stare. 702 S.W2d 602(Tex Cr.App. 1986).1% This illustrates the pmblemof filing aptconvictionwrit.Defcndanthad agmdpoint (that thejudgment did not have a pmp" &innative finding);however, the Vial corn euchred him at the writ hearmgby entering a nunc pm tux judgment.14.466 US. 668 (1984).IS. Gomez v. Stan, 685 S.W.2d 333, 336-337CTex.aApp. 1985).16.lirdalev. Stare. 686S.W.Zd 1IOCrex.Cr.App.1984).June 1989 1 VOICE for the Defense 37

Appellate DevelopmentsA Systematic Approach to Reviewing the Recordby Walter M. Reaves, Jr.One of the most difficult things abouthandling an appeal is getting started. Alllawyers arc possessed with an inherent tendencyto procrastinate, and rush franticallyat the last minute to meet deadlines. Theirapproach is sometimes disorganized,which often results in the expenditure ofunnecessary time. With a systematic approachto reviewing the record, you cansave time and decrease the possibility ofmissing important issues. This article willset forth such an approach, which is usedby the author. It is by no means meant tohe authoritative,-and each reader shouldcertainly feel free to adapt this approach tohis own style.1. ~ead the Closing Arguments. If youare not trial counsel, the best place to startis with closing arguments. A review of thearguments will give you a general overviewof the case, the evidence that wasintroduced, and what issues were contested.While you are reading the closingarguments, write down all ohjectionswhich were made by defense counsel, aswell as all ohjections made by the state,which were sustained. Do not attempt toweed through the objections at this time,and pick only those you feel are meritorious.Instead, write themall down. Youwill review the objections later, and determinewhich ones you feel have merit inlight of the entire case, and all the issuesavailable.2. Review the Transcript. The next stepin obtaining a "feel" for the case is toreview the transcript, and look at the differentmotions that were filed. This willgive you a general idea of some of theissues which were raised and litigated.Lookcarefully at the indictment, as well asthe various pretrial motions which werefiled. Also review the jury charge, as wellas any requested instructions that weresuhmitted.3. Read the Transcript. After you haveread the closing arguments and reviewedthe motions filed, you will have a basicunderstanding of the natureofthecase, andWalter Reaves, Jr. is a solo practitionerin West, Texas. He obtained he B.B.A. degreefrom Bates College of Law, theUniwrsity ofHo~cston in 1980.He is admitted to pracrice before theState Co~rrts of Te~as, the United StatesDistrict Conrtfor the WesternandEasternDistrict of Te~as, and the Fifrh CircuitCourt of Appeals, and is a nrernber ofTCDLA.He is boardcertijed in criminal law bythe Texas Board of Legal SpciaIi.?ation,and is a member of the College of the StateBar of Texas.should be ready to read the transcript.a) Voir Dire. The first part of thetranscript will generally contain atranscription of the voir dire proceedings.Yougenerally do not need toread theentirevoir dire, word forword. Instead, look forobjections to questions and challenges forcause. When you see those things; look atthe questioning which preceded the objectionor challenge. On a separate piece ofpaper, write down all the challenges forcause, and briefly summarize the ground'for the challenge, as well as all the objec-tions. men you have f ~hed the voirdire, look for any ohjections or motionswhich were made either prior to or immediatelyafter the jury was selected. Youshould look for requests for additionalperemptory challenges, as well as whethera Batson challenge was made. Again, notethese on a separate piece of paper, as theywill beessentialinestahlishinghannifyouchoose to raise an issue concerning juryselection.b) Trial Pmceedings. After yon havereviewed the voir dire. the next stev is toread the transcript. Thdhestway to20 thatis with a tape recorder in your hand, or apad nearby. As you are reading thetranscript, summarize the testimony. Donot try to condense your summary, butinstead try to make it as complete as possible.Beside each item note the volumeand pagenumber so you will have it availablefor future reference. This summruywill be invaluable to you when it comestime to prepare the brief, and the time youspend on it initially will reap dividendslater. Instead of having to repeatedlythumb through the record for some itemyou know is there, you can look throllghthe summary, and immediately locate it.With the summary, you can easily summarizethe evidence for a particular pointof error and obtain citations to the recordquickly, without having to repeatedly skimthrough the whole transcript.While youarereading the transcript anddictating your summary, write down allohjections and other items which you seeas possible error. Again, don't try to weedthrough themat this time, but instead writedown everything. You will go back over itat a later time and make your decision asto what to include in the brief. When youare writing down the ohjections and otherpossible errors, I suggest you divide yourpaper in half, or use litigation ruled paper.On the right hand side note the objection,38 VOICE for the Defense I June 1989

or the potential error, and put a citation tothevolunieand pageso that you can readilylocate it later. The left side will then be leftfor yourcomuients, or your notes concerningyour thoughts on thatparticular groundof error.4. Localirzg Errors. When reviewing therecord, there are particular errors whichyou should be alert for.a) Indict~i~eut. Look carefully at the indictment,and check the wording againstthe statute. Make sure all the essential elementsof the offense are set forth in theindictment. Look for any motions to quashwhich may have been filed, and note thecourt's ruling.b) Jltr)~ Selectioir. Look for challengesfor cause by the defense which were overruled.Also look for challenges by thestatewhich wereobjected toandgranted. Inrarecases, yon may also have a challengegranted by the courtsua sponte, which youshould also note. You also should look forany Batson objections, and carefullyreview the prosecutor's reasons forperemptorily strikingeachpiuticularjuror.c) Pretriul Motio~ts. Many serious issueswill be litigated by way of pretrialmotions. You should carefully reviewthose pretrial motions, especially those thatappear to be out of the ordinary. Reviewthe record of any pretrial hearings to determinethecourt'sruling, and summarize anyevidencewhichmay havebeenintroduced.Particularly look for motions tosuppressormotions to quash.d) Jlriy htstntct~ous. Carefully reviewthe jury instructions, as they can often beone of thenlost fruitful grounds forappeal,despite Ali~ruuza. Look at the instructionsand determine whether they contained alltheessential elements of the offense. Also,check theapplication paragraph against theindictment, to determine whether thecharge properly limited the jury to considerationof matters alleged in the indictment.Look for requested instructions,whether they be in writing or orally made.Also carefully read any objections to thecharge, both those in writing and thosemade orally.e) Prior Coueictio~ls. Review thepunishment portion of the trial, and determinewhat objections were made to anyprior convictions which were introduced.Carefully review any exhibits which wereintroduced, (which will generally be a "penpack"). Determine whether the prior con-victions am valid, and look for any objectionswhich may have been made to theprior convictions. If it is a habitual indictment,check the timing of the offenses todetermine whether they were in properorder and sequence. Also, look for dispositionof the case on appeal, especially ifthere is some notation in the documentsthat an appeal was taken.f) Motions in Lirnine. Contested itemsof evidence will often be raised by way ofmotions in limine. Look at the motions, aswell as the ruling made by the court in thepretrial hearing. Compare that mling withthe actual events at trial, to determinewhether the evidence sought to he limitedin the motion was in fact admitted. Also,determine whether the prosecution compliedwith the motion in limine, andwhether any objections were made duringtrial.g) Jury Argumerlt. Although seldomgrounds for reversal, there are still caseswhere jury argument may be so harmfulthat it will result in reversal. Look for anyobjections which were made to the prosecutor'sargument. Also, carefully reviewthe jury argument to determine whetherthere is any blatantly improper argumentwhich was not objected to, hut which canbe asserted as a fundamental ermr.5. Selecting the issues. Once you havegone through the record and completedyour review of all the material, you areready to review the potential errors youhave noted. There may be one or many.Nevertheless, you should go through eachone, and determine whichones you feel aremeritorious. There may be some issueswhich you know have no merit, and willreject them almost routinely. Others youmay feel have merit, hut upon initial resea~chfind they do not. The benefit oflisting the potential errors on a separatepiece of paper and leaving space by theside of each item is that you can note yourthoughts or your reasoning behind not includingany ground in that space. Otentimesit is helpful at some later time,whether it be immediately prior to filingyour brief, or later when your client isquestioning why you did not raise a particularpointoferror,tolookat thatlist,anddetermine your reasons for notraising it.6. Housekeeping. An essential part ofreviewing the record is determiningwhether the court has all the evidenceneeded to make a decision. You shouldlook at the designation of record to determinewhat was requested and forwarded tothecourt. Ifyon haveajury selectionques-FORENSIC CONSULTATIONSComplete case investigation, analysis, and managementQualified experts in all fields to include:Accident AnalysisAddictiooologyPolice ScienceDrug ChemistryCrime SceneFingerprint ScienceForensic PathologyToxicologyFirearmsQuestioned DocumentsPsychiatryForensic PhotographyEmergency MedicineBiomedical ScienceAdditional Expert Witness Services AvailableAllow us to review your case and providethe best forensic witnesses available.FORENSIC CONSULTATIONS6801 Lake Worth Road, Suite 214Lake Worth, Florida 33467June 1989 1 VOICE for the Defertse 39

A View from the BenchSomething Funny Happened on the Way to the Court of Appeals;The Great Writby Chief Justice Craig T. EnochGratefirlappreciarior~ to Mr. Gary Moore with the Fr#h District Court of Appeals, for On Anril5.1989. the Court of Criminaland Ms. Sharon Olldwell, staff attorneys their assistance with this article.Appeals issued Rodriguez v. Court of Appeak,Eighth Supreme Jrrdrcial District.'Judge Teague decries the opinion as a battlein a "tuff' war.2 Presiding Judge Mc-Cornlick exclaims that theopinion "flies incivil docket manogernerrt in Texas.Certified in Civil Trial Law by theTexas Board of Legal Specialiurtion,JudgeErrocli has served on the fnnrltiesof the College for New Judges and theState Bar lnsritrrte for Continrring LegalEducation. Litigation attorneys contir~irallyrank Judge Enoch as mie of thehighest rated judges in Dallas County.Judge Enoch chaired the DallasBar's Courts and Corirt Facilitiesthe face of orderly administration of justice"and "tums a segment of our criminaljustice systemon its head."'Rodriglrez was an original proceedingbrought before the Court of Criminal Appealsunder an application for writ of mandamus.Interestingly, the two dissentingJudges whowroteopinionsdid not actuallydisagree with the result; that is to say, anout-of-time appeal. But, they posit, youcan't get there from here.'Department during the critical study of What does the plurality opinion inDallas County's criminal court Rodrigrrez say?5 Simply, a district court infacilities needs. The results of thedepartment 's efforts led to Propositions4-A arid 4-B of the 1985 Corrnty BondElection. providing for a new criminalcorrrts building at the Sferreft site. Hiscommitment to the legalcommunity andthe State of Texas, under micle 11.05,Texas Codeof CrinunalProcedure, bas theauthority to direct a court of appeals for theState of Texas to entertain an out-of-timeappeal.Who is Mr. Rodriguez, and how did hework in thearea ofeffectivecorrrtplarr- get in this mess? Mr. Rodriguez was con-Craig T Enoch uas appointed Chief ning brought recognifion frvm the victed by a jury of felony theft. He wasJustice of the Fiff District Court of members of the Dallas Assocration of assessed a five-year probated sentenceAppeals of Texasaf Dallas by Governor Young Lawyers as the Outstanding with a $5,000.00 fine. A timely motion forWilliant P. Cleinenfs, Jr. on February Young Lnwyer for 1985.new trial was filed in thetrial court, but was27, 1987. 77ie Fijih CorirtofAppeals is In addition to his judicial service, overruled by operation of law. Although athe largest state court of appeals in the Judge Enoch co~rtirrues to work withirr timely notice of appeal was filed, Mr.nation.the commrrnify. He has chaired the Rodriguez's lawyer failed to have theChiefJustice Enoch began his judi- board of directors for the Area 10 Spe- transcript and statement of facts timelycial career by appointment to the IOlst cial Olynlpics Track& FieldEvenfs. He filed in the court of appeals. This lawyerDistrict Court by Governor Clemenfs in serves with the Circle 10 Council of the was notified by that court that the record1981. He nos elected to afirll term on Boy Scouts ofAmerica on the Commit- was late, but that he still had time to movethat corrrt in 1982 and re-elected tee for Handicappped Scorrting. He is for an extension of time to file the record.with~ut opposition in 1986. While on an active member ofthe Kinarris Cltrb He was alsoinformed that failing to timelythat court, Judge Enoch developed a of Dallas. He crrrrmtly co-chairs the file the motion for extension of time or todocker management program which "Meals on Wheels" task force of the file the actual record within the time perproducedthe sharpest decline in back- Community Corrncil of Greater Dallas. nuttedothenvise, would result in theappelloggedcases of any civil district court He, with his family. is active in their late court dismissing the "attemptedin Dallas County's history. 771;s pro- chirrch, St. Michael andAIl Angels. appeal."Thelawyerfailedin bothrespects.yam >%as adoptedby the State Ofice ofAs warned, thecourt of Appeals dismissedCourt Administrafio~i as u model forthe appeal." A timely motion for rehearingwas ovemled by the appellate court, hut40 VOICE for the Defense I June 1989. ,

strangely, theattomey failed to seekapetitionfordiscretionaryreview with thecourtof Criminal Appeals.Coming to the realization that he was acandidate for being declared an ineffectivecounsel, Mr. Rodriguez's attorney filed anoriginal petition for writ of habeas corpusin the convicting district court in El PasoCounty. Thebasis for the writ was thatMr.Rodriguez was restrained by virtue of hisconviction and that Mr. Rodriguez wasbeing deprived of his right to an appeal byvirtue of ineffective assistance of counsel.The district court, after a hearing, foundthat counsel was ineffective and concludedthat under&icle V, Section 8 of the TexasConstitution, the writ should be grantedand ordered that Mr. Rodriguez be givenan out-of-tiute nppeal. Armed with thisorder,Mr. Rodriguezonceagain attemptedto appeal his theft conviction. Not surprisingly,the State fded a motion to dismssthe appeal which the appellate courtgranted, holding that the district court didnot have the jurisdiction to grant Mr.Rodriguez an out-of-time appeal. Further,the appellate court directed its clerk to notaccept the record or the (again proffered)motion for extension of time in Mr.Rodriguez's case. Faced with these conflictingorders, Mr. Rodriguez's Iawyerfiled a petition for writ of mandamus withthe Court of Criminal Appeals seeking tocompel the appellate court to comply withthe district court's order granting the outof-timeappeal.The anomaly of the Rodriguez case hadits genesis infipnrte Renier, 734 S.W.2d349 (Tex. Gim. App. 1987J7 In that case,the Court of Criminal Appeals took itselfout of the post-conviction writ of habeascorpus business in those cases not involvingactual confinement from a felony conviction.&Since Mr. Rodriguez was onprobation and, therefore, 1toi confined, theCourt of Criminal Appeals had no jurisdictionto rule on his application for writ ofhabeas corpus. However, under article11.05 of the Texas Code of Criminal Procedure,thedistrict court alsohas writjurisdiction.Because the district (and county)courts' jurisdiction extends to cases wheremerely "restraint," as opposed to "coniinement"is involved, these lower courts havejurisdiction over writs filed byprobationers and misdemeanants. SeeRenier, 734 S.W.2d at 353; TEX. CODECRIM. PROC. ANN. art. 11.22 (Vernon1987).In Rodriguez, the Court of Criminal Appealsholds that a writ of habeas corpuspursuant to TEX. CODE CRIM. PROC.ANN. art. 11.05 is theproperaction toseekredress; that this "Great Writ" exists toaccommodate just such situations where aperson is restrained and afforded norecourse under statutory law. The highercourt thenconditionallv aants the aoolica-. - ' .tion for wit ofmandamusdirecting that themiddlecourt must obey thelower court andmust accept the appeal? HI. No. 70,003 (Tex Crim. App., April 5, 1989).2. Slip op. at p. 1 (Teague, I., mncuning).3. Slip op. at p. I (McCormick, P.J., dissenting).4. Presiding Judge McComick chxges lhat theplumlily has acled hastily in granting lrial courts thepwer to order appellate couris to hear appeals thatthe appellate courts are without jurisdiction to hear.He writes that no stahlte or WnsliNliond provisionprovidesfortheissuanceoftheaderasentend hereinby the trial court. He merts that an original writ ofhabeascorpus totheCourtofCrimrnd Appeals wouldbe proper.Judge Berchelzuannehallenges thedecision in Ermrfe Rerzier irrfio. He criticizes that case's holdinedue.JudgcDuncanalsodlsscntal, butwithwtopinion.5. Judges ClintonandTeagrnejoined theplwality,but authored concurring opinions. Josice Clintonnlaltes reference to the "Great Writ" in Cmtnote * tohis opinion. Slip op. at p. 3 (Clinlan. J, concurring).6. In a faofnote in the plurality opinion, JudgeMiller states that there is no provision in the TexasRules of Appellate Procedure allowing the late tilingofmionttoextendthetimeforfilingtherecord.(Slipop. at p. 2.) Surprisingly, not one author in any of thetion, you will need the jury selectionsheets, showing the strikes by thestate andthe defense. You may also want any jurorinfom~ation cads to use indetemuning thevalidity of the prosecutor's reasons for exercisinga peremptory challenge. If youhave a question based on a video tape, anaudiotape, or someother important item ofevidence, detemune whether that has beenforwarded to the court. Most of the time itwill not, unless specifically requested byappellant. If it is not there, file a motion toopinions written in this case mentions mle 2@),S~qmaio,t ofRulesirr Cdari,rnlMnllers. Other mlesnot mentioned xemle 53 (m), When No Smrenle?t ofI'nctsFiledin Appdsof Crimi#mICnses, andmlc83,No. . . Dis,r~issnl for Wan1 of Foml or Srdbsfmee, ofthe Texas Rules of Appellate Procedure.7. Decided undcr TEX. CODE CRIM. PROC.ANN. art. 11.07.8. It should beem~hasized that the haldinz in the~mirignez case appk to he limited to ths easesinvolving pmbationers and persons convicted of misdemneanon.9. The plurality opinion states:. . . the act to be compelled, the filing anddocketing of relator's appeal by the Court ofAppeals, is a ministerial one.It then, however, states:Having concluded that the trial court had thejurisdiction to grant therelator an mt oftinleappeal, we will mnditianally !pnt the application for a wit ofmandamus.I submit that thefiling and rlockerittg of documenuwith the court is a ministerial funcfion. but theCrim. App. 1981).Wbuld it not have been the better mme for thehigh court toconclude that the failureoftheappellatecourt to "file" thefindings of inefffftivcassistanccofcomd and the mion for extension was the actthenrehsed togrant theout-of-tinleappeal,apetitionfor discmtionary review would be available. Even,dare I say it, a writ of mandamus in lhe Court ofCriminal Appcals would he available to review anabue of discretion, if any, by the appellate court.Hordil8on v. Smfe, 579 S.W.26 213 (Tcx. Crim. App.1979). Seedso, Tex. R. App. P. 83. Under this alternativeapproach, Rmier would not hwe to be discarded,no violence to the orderly adminisUation ofjusticewouldoccur, andtheresult would hethesanle.supplement the record to insure that theevidencegets to thecourt for review. It willdo you little gcod to argue about the contentsof an audio or video tape if the courtdoes not have it in its possession.With a systematic approach to reviewinga case for appeal, counsel can quicklyfamiliarize themselves with therecord, anddetermine those issues of significance.Once youhave a cleargraspof the facts andtheissues, research is mucheasier. With allthe infomation at your fingertips, preparationof the brief comes down to organizingyour research and integrating it with thefacts.June 1989 1 VOICE for the Defetrse 41

In and Around Texasby John BostonThis stor~th's In and Around Texasor request that a hearing be held. If, after~lumn is a discrission of the Counsel forexplanationofhis rights, the paroleeelectsIndigent Paroleespmg~am with thanks toto waive either or both of his hearings, theWilliam C. LaRon~e. Ocrttive Director.waiver must be signed by two witnesseswho are representatives of any law en-The State Bar of Texas Counsel forforcement agency. If the parolee requestsIndigent Parolees program needs morean on-site hearing, the area supervisor willlawyers.schedule a timeand place and sendanoticeTheprogram, which wasinitiated hytheof hearing to the pamlee, his attorney, theState Bar of Texas in cooperation with thedistrict parole officer, and theassignedon-Texas Criminal DefenseLawyers Associa-siteinvestigator. The paroleeand all otherslion, was designed to provide legal repre-concerned will benotified in writing of thesentation to indigent parolees at on-sitedate, place, and time of the hearing.hearings convened to consider revocationThe fact finding phase hearing includesof parole. It is administered by a staffan explanation of how the parolee is alprojectdirector at the State Bar Head-leged to haveviolated the conditions ~f hisquarters in Austin. Program funds comeparole, the presentationofthefmdings of ahm a grant h m the Criminal Justicepreliminary investigation, the facts sur-Division of the Officeof the Governor androunding the allegations, and presentationa contract with the Board of Pardons andof testimony andfor documents to sustainParoles, but the heat and muscle of the stitute a pamle violation. An opinion is- the allegation. The parolee has the opporprojectis the panel of participating attor- sued by Attorney General John Hill states tunity to confront witnesses against himneys. These are experienced criminal that an attorney should he provided to rep- and to present witnesses and/or documentsdefenselawyers who are willing to handle resent a parolee at a revocation hearing rebutting the allegation.this type of hearing and who will do so at when theparoleedisputes theallegationof During the dispositional phase, thethe fee schedule specified in the grant a violation or offers substantial reasons to hearing officer may review the parolee'saward which provides for a maximum fee justify ormitigate the violation of the con- overall adjustment and will make arecomof$50 a day.dition~ofparole~citing Gagnon v. Scarpel- mendation which might be to continue onEach parolee who is alleged to have li, 411 US. 778,36LEdEd.2d 656 (1972), as parole, change the conditions, or to revokeviolated the conditions of his pamle is en- authority. Since there had heretofore been parole and return the parolee to incarceratitledto a hearing before parole is actually no mechanism to provide such legal coun- tion.Theprocedureforjuvenilesishasicalrevoked.Foradults, the hearing is presided sel to parolees, a Counsel for Indigent ly the same as that for adults, but there areover by a hearing officer who is a staff Parolees Program was proposed to fill the differences: the juvenile is under the jurisrepresentativeof the Board ofpardons and gap. The program has heen operating very diction of the Texas Youth CommissionParoles. For juveniles, the hearing is successfully since June of 1974,but there (TYC) and is referred to as a "ward ofpresided over by a hearing officer who is a is a pressing need for more participating TYC", the juvenile's siatus is formallystaff representative of the Texas Youth attorneys becaureofthedramaticincreases referred to as "field placement"rather thanCommission. Thehearings aredividedinto in the number of hearings."parole"; and the onsite hearing is contwophases, fact finding and dispositional. The parole revocation process for adult vened to consider revocation of "fieldThe fact finding phase hearing is required parolees begins with an arrest or some placen~ent." The two most important probythe ruling of the United States Supreme other alleged parole violation. At that cedural differences are these. First, aCourtinMorrissey v. Brewer, 408 U.S.471 point, the supervising field offcer submits juvenile may not wive his or her right to(1972), wherein the court concluded that a violation report. That report is reviewed anon-sitehearing withoutadviceof Cormtherequirementsofdueprocessnecessitate by the Board of Pardons and Paroles and a sel. In the case of a juvenile, waiver ofseveral proceduralsafeguards in the parole decision is made to either issue a pre- preliminary hearing must besignedby bothrevocation process. One of these is the revocation warrant Or to continue parole the juvenile wrvd of TYC and by therequirement that a preliminary hearing be pending the disposition of the charges. If a juvenile's attorney. Second, the juvenileconducted at or near the place of the mest pre-revocation warrant is issued, it is (ntard of TYC) shall not be q~restioned byor the alleged violation to determine passed to a local law enf01y:emeut ~fficer the hearing oficer rtnless he or she haswhether there is probable cause or rea- who then takes the parolee into custody. been called as 4 witness by his or hersonable ground to believe that the atrested The parolee may either admit the alleged attorney. In that case, interrogation will beparolee has committed acts which con- violation and waive his right to a hearing, limited to questions concerning the42 VOICE for the Defense I June 1989

specific allegation then under consideration.At the conclusion of the hearing, thehearing officer prepares a full report of thehearing for subtnission to the appropriateauthority (Board of Pardons and Paroles orTexas Youth Commission). The report includesthedate, time, and placeofthehearing,the identity of those present and whatthey contributed, a statement regardingwhat, if any, mle violation the parolee admits,and a statement from the hearingofficer indicating whether or not in hisopinion the alleged parole violations actuallyoccurred and specifying the evidencewhich he considers to havesustainedthe findings.Where a Texas Youth Council hearingofficer finds that there is probablecauseorreasonablegrounds to believe thatthe wardof TYC violated the conditions of placement,the TYC Aea Supervisor will bepromptly notified. If the Area Supervisorso directs, the ward is returned to the TexasYouth Council Reception and ClassificationCenter for a hearing before the FieldPlacement Revocation Committee todetermine whether or not field placementshall be revoked. The juvenile ward ofTYC will be represented at that hearing bystaffcounselemployed by theTexas YouthCouncil.The initiation of this project to providelegal representation at revocation hearingsis an important step forward, but the successof the program depends upon yourparticipation!If you are interested in joining in thisimportant project or if you would like moreinformation, please contact W.C. Latowe,Center for Correctional Services, State Barof Texas, P.O. Box 12487, Austin, Texas7871 1. Toll free: 1-800-252-9230.In July, 111 and Aroirnd Te.ms and theLegislntive Repoit will continue to bring anupdateoftheresults ofthe7lstLegislature.MemorandumTo: All Attorneys Arguing Before the Court of Criminal AppealsWe recently received the folloivirtgMeinorandroi~o~i~ Jtrdge Mic11ael J. Mc-Cormick, Presiding Judge of the TernsCotrn of Crintinol Appenls. Judge Mc-Connick indicated t11nt the Court is displnpirtgthis Me~norart~lu?it in thecorrrtroontfor the co~tvertie~tce ofattorneys~vho ivill be nrguing before the Cotrrt ofCriminal Appenls. The Mernornndrrnt colttairlssonte protocol ntensures which theCo~rrtbelievesnreiteededtogrmrn~ttee theproper decor~rnt dnring the sribntission ofcases.A growing nunlber of attorneys nowpracticing before the Court are new to itspractice and therefore unaware of its procedures.We have, from time to time,reminded the bar about the particulars ofarguing before this Court. The followingare a few suggestions:1) Obtain a copy of the suhnlission listfrom the Clerk's office. This will give yousome idea as to when to expect to argue.2) Ifyou wish todivide the timeallottedfor argument, make these arrangementsbefore the Court takes the bench. Sucharrangements may be made with thetimekeeper located at the bailiffs desklocatedat the front of the courtroom. Informthe Court of such arrangements at the out-set of your argument.Allocation of time is especially importantfor those cases which have been consolidatedfor argument as the sum total oftime allotted to such arguments remains attwenty (20) minutes.3) When your case is called by thePresiding Judge, move to the appropriatecounsel table, appellant on the left and theState on the right, as you face the bench.Move to the podium when presentation ofyour portion of the case is called by thePresiding Judge. Please remind the Courtof your name and the county from whichthe case arose.4) Limit the presentationof your casetothe legal issues involved and do not embarkon a jury argument. REMAIN BEHINDTHEPOD1UMATAL.LTIME.S DURINGTHE PRESENTATION OF YOURCASE. DO NOT MOVE ABOUT THECOURTROOM, LEAN OR POUND ONTHE PODIUM. Speak in a conversationaltone.5) There are two lights on the podium:a yellow light and a red light. In all situations,unless you give the timekeeper instructionsto the contmy regarding thedivision of time, when there is one (1)minute remaining in the time allotted forpresentation of your case, the yellow lightwill come on and in most instances remainon throughout the minute. When time forpresentation of your case has expired, theyellow light will be extinguished and thered light will come on. Please concludeyour argument before the red light comeson. Do not continue arguing once the redlight is on. You may remain to answerquestions propounded by the Court. Onceyou have finished presenting your caseand/or answering questions, vacate thepodium area as quickly as possible.6) Please note that your presentation ofthe case is not the fast exposure the Judgeshave had to the case. The Staff Attorneysprovide an in-depth preview of your arguments,i.e., the Bench Brief, which isreviewed by the Judges before oral argumentsbegin. Please, in the course ofpresenting yourcase, includediscussion ofany new cases not cited in your briefwhichmight have an affect on your case. In addition,please submit a supplemental list ofauthorities containing any citations notpresented in yourbrief to the Clerkpriortoargument.Copies of this memorandum are availableupon request from the Clerk's office.June 1989 1 VOICE for the Defense 43