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

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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
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 and 32: The Texas Law of Deadly Weaponsby K
Page 33: Killer Mistakes by the Prosecutor i
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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