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

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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
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 and 26: ~~ ~ ~-~~~~opportunity to cross exa
Page 27 and 28: court would find Ws testimony true
Page 29 and 30: d,< -tive "issues of ultimate fact"
Page 31: The Texas Law of Deadly Weaponsby K
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

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

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