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

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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
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 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: strangely, theattomey failed to see

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

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