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

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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
Page 2 and 3: JOURNAL OF THE TEXAS CRIMINALDEFENS
Page 4 and 5: The Voice is privileged to honor on
Page 6 and 7: Star Wars in the Courtroomby Justic
Page 11 and 12: attack to the police and submitted
Page 13 and 14: in which she said that she was afra
Page 15 and 16: with later proof. The term "collate
Page 17 and 18: tendencies, and, on cross, he gratu
Page 19 and 20: ANNOUNCING THE 1989 EDITIONS OF THE
Page 21 and 22: C. Concern about the crime problems
Page 23 and 24: ISIGNIFICANTDECISIONS .REPORT Edito
Page 25: ~~ ~ ~-~~~~opportunity to cross exa
Page 29 and 30: d,< -tive "issues of ultimate fact"
Page 31 and 32: The Texas Law of Deadly Weaponsby K
Page 33 and 34: Killer Mistakes by the Prosecutor i
Page 35 and 36: Table of ContentsXXIV. Jury Charges
Page 37 and 38: (Tex.App. -Dallas, 1983).-held'~t i
Page 39 and 40: Note: The court noted at 407 thatap
Page 41 and 42: Motion Practice: Motion for Juryat
Page 43 and 44: ot an opportunity to be heard and t
Page 45 and 46: 559. 561 ITex.Civ.Ann. - Fort Worth
Page 47 and 48: or the potential error, and put a c
Page 49 and 50: strangely, theattomey failed to see
Page 51: specific allegation then under cons

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