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COLUMNS6 President's Message7 Capitol Corner110 Editor% Comments12 Federal Corner14 From the Four Corners of Texas14 The Corner Office24 Announcements25 Membership Benefits16 I Motion of the Month26 Schedule of Events27 New Members20 Significant Decisions Report20 Expert Testimony on Eyewitness Memory41An4 ~\'og~ier~~s anldD~: Sfeuen 111. Snlifh34 Federal Law Short Course, a Huge Success

FOR THEDEFENSERAnmhllVoicefor fheoefase (MN 0364-2232) ispttblished monthly, except forJanuayiFebntary and Jttly/Ai~gt~st, whichare bintonthly, by the Texas CriminalDefense Iawyers Association Inc., 600 West13&strex!t, Atstiu, Tam 78701. Prititedinthe USA. Basic subscription late: $40 peryear when received as a benefit of 'PCDIAmembership. Non-niember subscriptions$75 annt~dy. Periodicals Postage P&d atAustin, Texas.POSTWISTLRr Send addresschanges to IbicefartheDefcnst?, 600 West13" Street, Austut, Texm 78701. Ibiceforthe Defense is published to educate, hxinaud support attorneys ie the pmctice ofcriminal defense lau:CONTRIBUTORSI Send dfeatnrearticles to GIP~ \vsth!l, W~ffdl, Plat &Cuker, One Sr~mmit be., Suite 910, FottWo~ili, 1X 16102, 817/877-1700. Pleasesend all other materials for publicatio~toJoh~ Carroll, 111 West Olmos Drive, Salthtouio,Texds 78212.21W829-7183 urto,reice fir fhe Doefens6 600 West 13aStreet, Ailstilt, TX 78701, 51Y478-2514,Fax 51Y469-9107, e-mall materials can besent to uw,tcdla.com.Statenients and opinions publislied in theVoice for the Defense are those of theauthor and do not nccmmily represent theposition of TCDIA. No matedal may bereprinted without p~iar approval and propercredit to the magazine. 02001 TexasCriminal Defense J,awye~s Association.The purposes for which the corporation is organized are:To protect andensure by rule of law those individual rights guaranteed by theTexas andFederal Constitutions in criminal cases;G resistthe constant efforts whichare now being made to curtail such rights; to encourage cooperationbetween lawyers engaged in the furtherance of such objectives througheducational programs and other assistance; and through such cooperation,education and assistance to promote justice and the common good.2001- %OOt OmI~fi~SPresident Betty Blackwell, Austinresident-~leci Mark G. 6anie1, Fort Worth1st Vice President Cynthia Huiar Orr, San Antonio2nd Vice President Daniel ~ ude~, ~ibbockTreasurer Randy Wilson, AbileneSecretary Stuart Kinard, AustinEditor Voice for the Defense John Carroll, San AntonioEditor Significant Decisions Report Cynthia Hampton, AustinImmediate Past President Bob Hinton, DallasDIRECTORSERIC M. ALBRIWON, LongviewG. PATRICK BLACK, TylerWES BALL, ArlingtonDANNY EASTERLING, HoustonLANCE EVANS, Fort WorthALBERT0 GARCIA, AustinMlKE R. GIBSON, El POSODEXTER GILFORD, AustinDAVID GmNN, LubbockRONALD P. GUYER, San AntonioWILLIAM s. HARRIS, Fort WorthCYNTHIA HENLEY, HoustonRODERIQUE HOBSON, JR.,LubbockCHRIS HOOVER, PianoW.H. "BENNIE" HOUSE, JR., HoustonJEPF KEARNEY, D0hsJ, cMrG JEW, DollasMARTIN LENOIR, DallasASSOCIATE DIRECTORSHENRY BEMPORAD, San AntonioWILLIAM CARTER. MadisonvilleROBERT LERMA, 6rownsvillen.w. "WOODY~ LEVEREW, JR.,JESSE MENBEZ, LubbockGEORGE MILNER, Ill, DallasTYRONE MONCRIFFE, HoustonWALTER "SKIP" REAVES, WestRICHARD RODRIGUEZ, HarlingenKATHERINE SCARDINO, HoustonGEORGE SCHARMEN, Son AntonioSTANLEY SCHNEIDER, HoustonRICHARD SEGURA, JR., AustinRONALD SPRIGGS,AmarilloMARY STILLINGER, El PasoJ. GARY TRICHTER. HoustonMANDY WELCH, HoustonGREG WESTFALL, Fort WorthDON WILSON, AbilenePrim WISCHKAEMPER, LubbockLARRY MOORE, Fort WorthANDY NOGUERAS, McAllenMIKE CHARLTON, Houston VERSEL RUSH. Wichito FallsBRIAN CHAVEZ, OdessaGRANT SCHEINER, Houston/ KNox FiTzPArRIcK, D~IIOS JOE SPENCER, EI PasoDIANNA HOEWNN, Sun Antonio lOHN YOUNG. SweetwaterMidland

I COMMllTEE CHAIRS AND CO-CHAIRSIAMICUS CURIAERick Hagen (940) 5661001 (940) 757-9878 fa:CONTINUING LEGAL EDUCATIONTim Evans (817) 332-3822 (814) 332-2763 faxGerryMorris (512) 479-8600 (512) 479-8600 faxINNOCENCE COMMllTEECynthia Hujar Orr (210) 2261463 (210) 2268367faxDEATH PENALTY COMMllTEEChair: CynihiaHujar Orr (210) 2261463 (210) 226-8367 faxDirector: PhU Wischkaemper (806) 763.9900 (806) 763-9904 faxHALL OF FAMECUfton 'Scrappy" Holmes (903) 758-2200 (903) 758-7864 faxLAWYERS ASSISTANCEDan Hurley (806) 7700700 (806) 763-8199 faxLEGISLATIVEKeith Hampton (512) 746-8484 (512) 476-9309 faxSubcommittee: Indigent Representationliaison~v/State BzofTexas:Catherine Greene Burneft (713) 646-1831 (713) 646-1766 faxMEMBERSHIPBennieHouse (713) 68&3398 (713) 680.0804 faxLydia ClayJackson (409) 760-2889 (409) 7560901 faxVerse1 Rush (940) 767-7567 (940) 723-9972 faxSheldon Weisfleld (956) 5462727 (956) 5447446faxCharlie Butts (210) 226-1692 (210) 2262297 faxSECOND CHAIR COMMllTEECarolynDenero (512) 472-1353 (512) 472-1316 faxRURAL AND SMALL TOWNJohn R. Smith (935) 598-2744 036) 59s6336 faxNOMINATINGMarkDaniel (817) 332-3822 (817) 332-2763 faxPAROLE AND SENTENCINGGary Cohen (512) 4766201 (512) 477-5778 faxBill Habern (931) 5942123 (936) 594-9100 faxDavid O'Neil 036) 2941663 (936) 5949100 fnwIRobert HlnlonDallas (2WO-2WllMichael P. HeiskellFortworth (1999-2003)Kent Alan SrhnfferHouston (1998-1999)E.6. "Gerry" MorrisAustin (1997-19981Dmid L. BotsfordAusun (1996-19971Bill WisrhkaemperLubbock(1995-19981Ronald L. GomnsonDallas 11994-19951Ddd R. BiresHouston (1993-1W)Gemld H. OoldsteinSan Antontoao (1992-19931Richad AlanAndersonDallas 11991-19921Tim EvansForth Worth 1199(1.19911Judge LA. "Jim nBob0Odessa (1989-19901Edvrard A. MulleHHouston (1988-1989)Chades D. BumSan Antonio (1987-19881Knox Jones*McAllen (1986-19871VOICE PRODUCTION TEAM- -EDITORJohn C;umUIll FeSIOJmosDINeSanhtnlomo,Te*as 78212(210) 829-7183FEATURE ARTICLES EDllORGmg WestlallWst% Phtt & WuerOne Sumnut Aw . Suite 910Fort Wdh, ZY 76102(817) 877-1703PRODUCTION ASSISTANTSwan VetalliceTeDU/Aonlc OMce(512) 478-2514Louis Dugas, Jr.Orange 11985-19861Clifton L. "Srylpy"HoImesLongview (1964-19851Thomos Gilbert Sharpe, Jr.Brownsvilla (1983-198BClirfed w. BrownLubbock(1982-19831Chades M. MrDonaldWac0 (1981-19821Judge Robert D. JonesAustin 11980-19811Vincent Walker PedniDallas 11979-1980)George F. LuqueHe*Houston (1978-19791EmrneH CoMn'Fairtield, VA (1977-19181Weldon HolrombTyler (1976-19771C. Dmid Evans*San Antonio (1975-19761George E. GllkersonLubbock(1974-19751Phtl Burlason*Dallas (1973-I9741C. Anthony Frlloux, Jr.'Houston (1972.19731Hon. Fmnk MaloneyAustin(1971-1972)ASSISTANT FEATUREARTICLES EDllORQnlhia & OmColdstein, Coldstein & IUllqZWO Tower tife Bldg.Snn Antonio, Tews 78205(210) 226-1463IMPORTANT TAX NWCEDUES/TAX NOTICE PLEASE NOTE ME FOLLOWNG$36 afynsr annual dua($lg Pa Stndcol Member) is lor a oneycarsukmlptlon fa theVoicsfor t1xDeJense. and $39 ofthe r@w dues is for KDL4 legidallre programs.Dues toTCOJAare not deductiblleasacharilable contribution butmay be deducted a anordiniuy business c~pense.huse ofTCDL4s l@lalislative pro .am $39 ofsustaining nnd regdumemk~liip duesis not d&ctibleas a business expense.CONTROLLERlUegrla Oli~arrz (eging@tcdla.com)PROGRAM COORDINAlORHandy rtlsmmy (mdpn@tcdla r odPROGRAM PLANNING ASSISTANTSum Vela-Rice (s\rlarice@lcdlacom)OCTOBER 2001 HIRKW.TCOLA.COM VOICE 901 ME DEFPNSI 5

THE FUTURELet evety nation Knout, ~ubether if wislm us tueNo~. i4 that wesMpa)? anyprice, 6eenn1ty burden, meet any hardship, snppororf anypien4 oppose unj~foe to assure the sxruiunl and fbesuccessof //he!-0.- Joht I! KenndjPRESIDENT'SMESSAGE\Nbe are at war. That is hat we face today That is whutwe face tomorrow. Collapseduddings, hijacked pla11es - there is nothing we cru~ do to stop it. It has happened., We knowthat the effects on our lives, on our children's liues, 011 our gradcldldrenblives, will be signiticant and fundamental. And unknown. The debh cloud that rosefrom the collapsed towels has d~lsted eely conler of America with sorrow and unce~%~inty Nocorner ofherim has been spaled, no courthouse left untouched. And just as ow lives cl~mgngodfo~ever on September 11,2001, so did the pmtice of law in America.During the cold war, Jolils and Etllel Rosenburg were convicted of transnlining nuclearsecrets to the Russians. In 1950, they wen convicted. They became the first US. civilians toreceire the death penalty in an espionage trial. On July 19, 1953, they were e~ecuted. Tl~eirla\\yas 11ad tried despemtcly to save them, hut public sentiment wm implacable. But tlus is different.I hed tl~mugh the Vietnam )mts wlw brave lanyers picked juries iinder wry l~ostile conditionsfor their "ddt dodger" clients Mapor Dailey accused pmtesteis of inciting riots as hispolice vented thcir anger upon Ule heads of hericm sms and daughters. At the end of t11eClucago Seven Conspimy Trial, the two defense attorneys were sentenced for contempt of court- one received a sentence of 20 months, the otl~er 4-years-13-days. But this is different.Vengeance Is in the heart of America. Our leade~s denland it. Tlte public &sts for it. Tl~cmedia encoumges it We will ham it, At twhat price?One day lie trials will begin. Our men~befs will sfand beside thearcuscd. Whm arrests occurbased on mistake^^ identity or false charges, it w i l l be our mcn~bers spec& up for the hopeless.\Ve must not forget our duty. It is our co~mt~y, 11aw no doubt, but it also the caunhy of thehapless and innocent thrown into jail. We represented Jack Rub~ we represented the Nazis ;ttNi~remburg and we nl11st co~~tim~e to do so, Mth heads held high. It is what we owe om countty.It is our duy.Remind jrour friends, neighho~s, and coegregations that wedlwml justice. Rut this is not theJust-Us ~etrih~tion that fills so many minds. Shoudd sealch wnmts and arrest ivarms be eliminated?Will that make us safe? \Ve know the a~swel; it will not Tlie founding fathers knew thatan aU-powehl government was more dangerous to the freedoms of its citims than mindlessterrorists.These are dark times, and there maybe darker times ahead, but we must IIOI lose sight of ourgoal --heedom. For ewlyone. Freedom fo~ all of 11s and fi.eedom for all of those umlike us. Uis the way that ue treat tire least amo~~g 11s that will define our legacy as a people. \Ve will punishthe guilty, but in our quest, we must not tnmple the innocent Wedl uot give comfort to ourenemies, but must not aUow our governmeot to strip us of our rights in the name of w. Godhave mercy om1 ouc souls if we do.6 VOICE FOR THE DEFENSE WWW.1CDla.COM OCyOSER 2001

ALR LawHB 63 - Cicense Suspension Period and ProcedureApplicnhilifJc Only tl~ereinstatenwt fee appl~cs to cases where comtissioi~ ofthe offense \ras conlmittedprior to September 1, 2001. N1 other HB63 chmgm apply "& to a person arrested for anoffense con~~uittedor after Septen~her 1,2001."Definition: The dehition of Driwm License for bothfailurc and refi~sal suspensions now includescomn~acid licenses and cotluuercial license pdtsIWfercrnfi: Sectiou 524 and 724 ae amended to add rU.R consequences to watercmR empowrtdwit11 enginm having a nnufachnw's ~ating of 50 horsepower or above.LicenseSeinm Section 524 011 and 724.ff32 are amended to allow arestulg officer at time of ai r -ing notice of suspension to (1) conten~poraneously seize defendauh license and (2) issuea tenipomydriving pernlit, eqiriug on the 4lst day of the ~ss~~ance. If conunefcial, it doesnot become eEcctive nntil24 hours after arrest. Article 524 032 section 4(d) and 724.041 sectio~~ ll(c) require LIPS to senddefendant doc~lmentntionof eltension of driving permit p~irdeges pending hearing and 524.035 (c) createsthe same clocumcntation rephemeat for continuance dates.Ketm~ oflicense: Department is required to reh~m license if the AIR judge docs llat hdin tl~eaffu~nativeSuspension fitended Iucreased Periods of Suspension:Pnilrr,~: No p~ior enforcerneut contacts witl~~10 yeae (forn~erlg 5), increased from 60 to90 days.One or inorc prior enfo~ement cont~ts within 10 yeam (fotmedy 51, iac~md from 180dnys to one year.R@sR/: No prior euforcen~ent contacts witl~in 10 yean (formerly 5), Incr~edfium~ 90 daysto 180 days. wit11 one or lnore prior enforce~nent contactspast 10 prs (formerly 5) increasedfrom 180 days to hvo yem.Gtven the incmse, dm sepmte categoq for under 21 drivers a eliminated.Rdnstate~neiit Pee: Increasedfro~n $100 to $125 for bat11 failwe aid refusal suspensions.SB886 elintinates occupational licenses for all Texas Goultuercid Driver's Lica~se suspcnsions.Section 521.242 of the Tmnsporfation Code entitled "Petitio~i"[under Subchapter I. entitled"Occnpational Lice~~se"] is an~ended so tl~at under (b) stating who may apply reference (1) toflwse swpendcd under Chaptw 522 “Tern Con~nwvid Dfiveh License AN" is deleted ,u~d nnnv (0 is added stating:(0 A court my not gmnt inn occupational license for the opentor of a Coninlercial Motorvebicle to which Chapter 522 "Tesas Conuuercial Driver's license Act" applies.CAPlCOLCORNERApplicabilit~? Senate B~U 886 "takes effect September 1, 2001." The bill niakes no farther referenceto applicabiliv Section 521.242.OCIOQER 2001 WWW.TCDLA.COM VOICE FOR THE DEFENSE 7

Senate Bill 671 hiakes Refi~sal to Surrender License A Class BMisdemeanor.Section 521.315 "Surrender oflicense," adds (c) and (d) whichmake it a Class B offense to fail or refme to surrender a license toDPS if the person's license has been demanded due to cancellation,disqud&ation or revocation.Applicability: Senate Bill 671 "takes effect September 1, 2001."The biU makes no fi~cthereference to applicability.DWI LawHouse Bill 5 becomes effective September 1,2001. It broadensthe Open Contai~~er Offenses and Consequences for Article 49Subseq~~ent ORenders.Open Corrtflir~er. Ad& a new section 49.031 creatlng m offenseas follows:A person conunits an offense IF the person knowinglypossesses an open container [containing any mount ofalcohol] in a pmenger area of a motor vehicle that islocated on a public higl~way, regardless of whether thevehicle is being operated or is stopped or parked.Possession by npelson of one or more open containenin a single criminal episode is a single offense.Dstnils of the law: It is an exception if the individual was a passengerin commercial trmsportation or in the living quarten of acamper, RV motorized house coach or motorizetl trdec The offenseis a Class C misdemeanor. Section 49.11 Entitled "Proof of blen$lState Unnecessaq" is amended by declamtion t11at it is inapplicable to49.031 offenses. No arrest is allowed wl~ere the defendant signs apromise to appearApplicnbilit~? Since it creates a crime it c;u~ constih~tionally applyonly to acts committed on its effective date, September 1 or oftexPRACTICE CalhllEiVT: Wl~at proof will suffice that it contains alcohol?PRACTIC~~IWTB: The passenger area spcciGcally excludes a gloveconlpartnlent or sinlila storage container that is locked, the t111nk orif no ttunk, the area behind the last upright seat.Pennl Code 49.09@i\'eru Clfissijcfltiorr Creflteb Increased pm~itive measures wheresubsequent comn~itted \\~itIun five yeas of comn~ission of most recentprior conviction, or within 10yenrs ofprior Intoxication Xanslaughter.iVeru r%?q~~irer~~enfs for n srrbseqzierrt DWI ofer~de~':A deep lung analysis device must be installed on each vehicleowned or ope~xted by the 49.09(g) defendant, md must remain so forone year after the first anniversa~y of license suspension the defendantnot operate any vehicle not so equipped. Pailore to comply is punis11-able by contempt.Applicflbility: Applies "only to a person convicted of an offenseinvolving the operating of a motor ~~elucle on or after September 1,2001."rh occupational driver's license is now prohibited. Section521.251 entitled "effective date of occupational license" is amended toinclude the follo~x*~g:Nohvithstanding any other provision in this section, if thepelson's driver's license has been suspended as a resultof second subsequent conviction under Section 49.04[DWl] 49.07 [Intoxication Assault] or 49.08[Intoxication Manslaughter], committed within fiveyears of the date on which the most recent precedingoffense was committed, an order gunting the person anoccupational license may not take effect before the fistannive~sary of the effective date of the suspension.AppIicabiIi!jc Applies "only to a pelson who applies for an occwpational driver's license on or after September 1,2001."INTEKPRBTFE COz\flfBNI. Whetllet the new (d) of 521.251 is toapply wl~en the current DWl is a second offense, or only applies if it isat least a third offense is on its face, ambiguous. Tlus is because it isnot clear whether the suspension referred to in "has been suspended"is the one for the current offense, or for an earlier one. For the personwith only a second, if the relevant time is from which the offe~isesare described is at the time of application, then at that time the secondoffenders driver's license "has been suspended as a result of a secondor subsequent conviction." This is bemuse application is by petitionandis to be made at the time a person's "License has been suspended."Subsection 521.242(a). However this inte~yretation is inconsistentwith both the ove~dl sci~en~e and lmguage of Section 521.251, withinwluch (d) is legislatively placed.Wrst, when the new (d) is examined in its legislatively designatedplace with the pre-existing-and unaltered-subsections (a) (b) and(c), it appeal3 to logical[y be the nest incremental extension of a stairstepping of prio~incident severity with (b) applying to a siugle priorsuspension resulting from an alcol~ol [or drug] related enforcementcontact, causing a 90-day prohibition; (c) applying to a single priorsuspension resulting from a prior DNI related conviction, causing a180-day ODL prolubition and the new (d) applling to two prior suspensionsresulting from hvo prior DWJ related con\ictions, causing aone-year ODL prohibition.Second, the identical language, "If the pelson's driver's liceme hasbeen susl)ende$ is used in B and C. In thek context the language canonly refer to a suspension separate from and pre-dating the one forwhich the current ODL application is being made because (b) and (c)both describe the suspension event as occurring "during the five yearspreceding the date of the penon's arrest."Eurthe~; the clear wording of the lauguage in (c) refers to a personwit1 one prior D\V1 con~iction and assigns the appropdale ODL prohibitionat 180 days.Were the language of (d) to be interpreted so as to also apply to aperson \\.it11 one prior OW, such inte~yretatioo would att~ihl~te to thelegislahlre an absu~d resdt -having hvo adjacent claws describecontlicting sanctions for the sale events. Tlus mo~lld violate a longstandingrule of statutoly interpretation. See Cc1111pbe1/ u. Stnle, 49S.W.311874 (Tex.CcApp. 2001) and mses cited therein.The period of a license suspension up011 convictio~l is increased.The title of Section 521.344 is changed from "Suspension for OffensesRelated to Use of Alcohol" to read "Suspension for Offenses InvolvingIntoxication." Section 521.344(a) (2)(a) (b) ad (d) are amended byadding the following underlined parts:Not less tl~an 90 da)s or more thw one year if the personis punished under Section 49.04 [D\VI] or 49.07[Intoxication Assault] Penal Code, except that if the person'slicense is suspended for a second or subsequentoffense under Section 49.07 [Intmication &sa111tl com-8 VOICE FOR WE DEFENSE WWW.lCDLA.COM OCTOBER 2001

vmitted with E e yyears of the date on wkcll the mostrecent preceding offense was conunitted, the suspensioncontinues for a period of one ),ear;For a DWI second and third the changes read:Not lm than 180 days or more than two years if punishedunder Section 49.09(a) [DWI Zud] or (b) IDWI3rd1, Penal Code, or not less than one year or more thantwo years, if the person is punished under Section49.09(a) or (L?), Peual Code, ad is subject to Section49.09(g) of that code.Appliuzbilify. These changes apply "only to the suspension of thedr~er's license of a person convicted of an offense commilted on orafter Septenlber 1,2001.For an intoxication manslaughter case, the suspension period hasalso changed:Contuiues for a period set by the comt of not less than180 days or more than 2 yeam except that if the person'slicense is suspended for a second or subsequent offenseunder Section 49.08 [Intoxication Manslaugllter], PenalCode, comn~itted within 10 yean of date on which tl~emost recent preceding offense was comn~itted the suspensioncon~mes for a period set by the court of notless tlian one year or more than hvo years.Applicabilip: Tl~ese changes apply "only to die suspension of thedr~er's license of a person convicted of an offense conmitted on orafter September 1,2001."Completion of progm~ no longer prevents revocation of license.Section 521.344(d)(2) allowed for a kense vevocation protection ifthe defendant completed a program. Tllis is eliminated for repeatoffenders under 49.09(a) and (b) who are subject to 49.03(g).Applimbilit~? Applies "ody to the suspension of the drivcr*slicense of a pelson co~~victed of an offense co~~unitted on or afterSeptember 1,2001.Deep 1unganal)~is exceptio~lis elu~~ated Sechon 521 444(d) (2)is amended sucl~ that the license evocation protection heretoforeafforded probationer because a deep-lung a~~alysis device was installedis elvninatedfor 49.04(gi offende~s under 49.09(a) and (b).Applicfibility: Applies "only to the suspe~~sion of the driver'slicense of a pelson con~icted of an offense conmitted on or dterSeptember 1,2001.Requirement of Evaluation under Atticle 42.12 9 9(11) is added.Seclion ~(II) a~ticle 42.12 CCP is anlended to add a "within Eve ycar"repeat offender requiren~eat Illat a 9(11) evaluation be done to deter-&le alcol~ol or drug rel~nbilitatio~~ required.Appli~~~biIiv. Applies "only to a1 eduatiotl ordered in relation toan offense coau~~iliued on or after September 1,2001.hticle 42.12, Section 13 1s a~~~ended 2s follows, applylng ody to apetson placed 011 conum~nitp supe~visio~~ for an offense conmitted onor after September 1,2001:Section (R) 49.090 offender required to do not less lhau 5 da)s[ve~sustandard 72 hours] in county jd 011 DWI secondSectio~i (g) July may not recon~mcnd Illat license not be suspeu&ed wl~ere second or tlurd DWI defecida~~t is a 49.09(g) offender.Section (k) Jud~cidly ordered suspension is inc~eased from vangeof 180 days to tmo years for second and third offender to mge of oneto-twoyears for second or tllird aifecting 49.09(g) offender.The 49.03 offense of Consumption of AlcoholBeverage by operatoris repealed.HB2250 -Broadens Both Impact and Scope of Priors Available for49.09 Enhancement.49.@(a) and (b) are amended so that no matter how long agocommitted, enhancement to third degree felony requires only one(venus the former two) prior intoxication n~anslaugliter, or a subslantiallysimilar offense from another state.49.09(c) and (0 are amended to this effect:(1)The "more than 10 years allel" remoteness exception is narrowedso that commission of the current offense must haveoccurred more than 10 years after the latest of:(A)tlle date the judgment was entered for the previous convic-Uo11;(B)the date of discl~a~ge from the cornunity supeivision of theprevious conviction(C)the date of successful completion of the parole of the previousconviction(D)me date of completion of the confinement or imprisonnlentfor the previous conviction.(2)A prior conviction for Intoxication Manslaughter may beused for enhancement no matter now remoteApplicabilitjc Applies "ody to the enhancement of punishment attl~e hidof w offaw a,mn&cd on order.. . [Septeruba. 1,20011."Amricnn Bnr&ociafio?r: XalfOnalRrrminlion of Ctin~i~nlOefer~se ~tcjwo: SlnleL!m Sponso~d Ahmrd Critwimd Inm Co~me. Aft KiMm cr,nenl@ pmcfica it1dr~silrr nud IrWkrlq ruiib bls to@ mrd bwprfnu~ J l i e Ki~~ard/, The Voices for.; the Defense&# Produced by Fireroads Producliansr r ,.

Standards for lawyers accepting appoinlmentsThe judges, UI consi~ltation with pwcticing lawyers, are puttingtogether sta~idards for lawyers seeking court appointmenls. There is aconcenl regarding Low many qualified lanyers will step up and acceptcourt appointments under the new system. The pool of lawyers qualifiedto accept appointnlents in sseious felony prosecutions is limited.Lawyers usit11 strong privately retained practices arc reasor~ablg coil-cerned that, if on the appoi~itment list, they may be oven~helnied withtime consuming court zsppoulted cases that 1viU t:;lke awq'h'on~ theirregular practice. This is going to cause many experienced layen toopt 0111 of the systeln. One proposal is that a Ianyer who feels he or sheIns reached their reasoaable liiuit of appointments can contact thecourt administratio~i office and ask to be taken off the appointment listfor a period of time. Such an option would also help layas in le~igthytrials or wf~o are working out of tow for extended periods.The various proposals being considered by the judges are going tobe finalized and ready for implerue~~tatio~l befo~the end ofthe yacEveryone appears r ~dy for this to be a work in progress tl~at is goingto be subject to changes as ive see how the new s)stem works. It willbe interesting to see how the diiTerent counties and judicial regionsdeal Njth impla~~entation of the bits requjl.emeuts andwlietlier thereare disparities &cling the equal treatment of people depending 011where they live. The VOICE is biterested in how Texas' muly countygoveininelits will deal with indigent ccri~ihial defense in the comingyme. Please write to us and tell us what is being done ~II your hometowli.Texas CriminalDefense LawyersAssociationis proud to be asupporter of theSouth TexasImmigrationCouncil, Inc.'slatest seminar,CriminalConvictions:MitigatingTheir Effecton ImmigrantsRegistratio~dCo~iti~ie~~tal BreakfastCor~aictious: IVi~nt Thej'~lIenrrfor Yorv A'o~r-Cifize?~ ClientMr. Dan Kesselbremie~; Hational Las~ers' Guild Im~u~gration Law ProjectProf. Junes Smith, UC DavisLIIII~~I wit11 hlr Dong Tinker, Criminal DefenseI%@ Boo~trerflrg Efect: Deferrtli,rg the A'on-Citizen Prtcitrg Pe~Ierd I~n~~~igrntiorr Chmges3d Stapleton, rbsistant Federal Public Defender, i\ppcals Section, Port \YiorthI07 N. 3rd, Harlingen, Texas 7855319

If you were practicing criminal law in the United States courls before November 1, 1987 - the effec-tive date of the United States Sentencing Guidelines - you remember when the words "obstruction ofjustice" struck terror in the heart of a defense Ia~yer. h f q if not most of these cues, were prosecutedunder the provisions of Title 18 U.S.C. @ 1510 (Obstn~ction of criminal investigation) or 1512(Tampaing with a witness, victim, or an informant). Once the PBI opened a He, really bad things co~lldhappen to your client. A Westlaw search shows that there were 1,159 published opinions in obstructionEases p~osecuted befare we had Ute guidelines.Then along came the guidelines which contain 5 3Cl.l. It provides that the sentencing court nlayinc~ase a defendant's offense IevelE(A) The defendant willfully obstrncted or impeded, or attempted to obstruct or impede, thea&ninistralion of justice during the come of the investigation, prosecution, or sentencing ofthe instnnt offense of conviction, and (8) the ohhuctive conduct related the (i) the defendant'soffense of conviction and any relevant cond~rct; or (ii) a closely related offense ...FEDERALCORNERAnother Weshw sparch rwds that there have berm published opinions in 2,699 guideha wes inwhich the col~d 11s imposed m upwatd adjustment for ohtruction of justice. 100 of these mses weredecided by the United States Court of Appeds for the Ffih Circuit (the Coart).Recently, the Court has affirmed upwatd adjustn~ents for obstruction of justice in the following mses:The defendant ohtair~edafalse passport for the purpose of ewding authorities and transferred assets tobusiness entities controlled by him or his fdy members. UnitedStutes u. Martinez, 2001 WL 968120(5'h GI: (Teu.)).The defendant wmmitted perjury at trial. UnitcdSfflfes v. 1IfcCnu7eey, 253 E3d 815 (5" Cic 2001).The defendant wmmined perju~y at trid. UnitedStntes u. Odiorlio, 244 43d 339 85" Cir. 2001).The defendant threatened a codefendant and uged others to lie or leave town. OititedStafas u.Sh~~@f@r, 238 E3d 580 (5h Cic 2001).The defendant committed perjury at trid. ihitedS111tesu. Phil&, 210 E3d 345 (5thCir. 2000).The defendant provided a materidly false shtement to the FBI th;lt significantly obstructed the investigation.UnitedStntes u. Smith, 203 E3d 884 (5" CIC 2000).The defendant atten~pted to escape from jail by bribing a guard. United Stutes u. Ecbego&?n-Barrueto, 195 E3d 786 (5hCic 1999).The defenduntfdedto appearat her sentencing heaing. UnitenStnkna Lujun-Smcedn, 187 E3d451 (ShCir. 1999).The defendant fled Iron1 oiilce~s who, pursuant to a lawfi11 arrest, had exetcisd cootrol over him.UniredStates u. H&u, 182 E3d 361 (5Ih Ck. 1999).So what's the lesson? Communicate mith your client nbout dl of the bad things that can happen to himif he acts afool. Defendnntswho lie at trial are going to get hort. Defendants who try to hide alittle moneyare going to get hmt Defendants who try to beat the system - without regard to how they do it - ategoing to get lmrt. Maybe if they hear about obstnrc(ion of justice at the first interview they will be easier tompment.12 VOICE FOR THE DEFENSE WWW.ICDLA.COM OCTOBER 2001

JUSTICE SERVED ~CORRECTI~ FROM SEPTWER ISSUE)Walter "Skip" Rcaves secured the release of Calvill \Vul~ington using DNA evidence to p~ovehis h~nocence. \Vashington was con\~icled of capilal murder io 1986 and se~ltenccd to life. Thepardoll applicalion is currently being comidered by the bowd.Mr. Keaves ;~lso secured a reversal on f:tct~~d suficimcy grounds for all aggrav:~ted robberyconviction. At trial, defense coud presented a co~l~pelling case of alibi, through work recordsand co-worke~s. That and the fact hat there \vas eridel~ce nothe her person llad committed therobha). beca~ne the focus of tl~e \%co Court of Appeal in its decision to reverse. The state hasfiled a PDRwl~ich \vas denied. The client was recently rele:ued on bail.NOT GUILTY VERDICTSRobert Estrada of LVicllita Falls tried a Special Court hklrtinl at Slleppard AFB ;and on 27111Ju~~ereceived a "Not Guilt)." 011 the charge of wrongfid use of MDhli\, a schetlule I controlled suhstance.WITNESS DATABASE MAINTAINED BY ACDLAThe Austin Crilniod Defense i:~yn i\ssociatio~l llas a clatab:~se of witness testimony andrCsum6s. Anyone who has :l case in the cenlral Texas area is encouraged to conlact Scott Smitllfor nlore il&m~ation.FBCCDLA TAKES GRAND JURY TO LUNCHTlle Fort Bend Count). Cri~nin:d Defense I.;~\\).ers Associatia~~ lneets on the firs1 Tllursday of ew).month frosl 11:30 to 1:00. The October 411', ineeting is entitled "Using Po\verPoint@ in Crimio:llCases". The meeting is free to ~reolbers.Recently FBCCDU took the grand ju~y to lunch, over the objections of rbe prosecutors and tile1orem:m of the grand ju~?. The grand jurors' had questions reg:trding the effect of a "110 bill" and\\hat options they llad instead of sio~ply "truc billing" cases. The gcl~ld jurors were surprised flu1a case cuultl be bruugl~to a suhseq~~eol grand juq if it were "110 hiUetP( by the currellt gmndjw): Members tllal attended ll~e luncheon were all pleased wit11 the gl.;uld jurors' questions :oldamazed at how lillle he grand jwolx knev of their optiom other tlm "trw billing" a else. Theh r Ins decided to conti~~ue this luncl~eo~~ for every gland juryA co~~linoi~~gproble~~~ for the FBCCDL\ I~ns been tl~eDislricr,\ttonleg's office hodgepodge olpolicicsregarding discoveq: Several prosecutors within the Fort Bend Ilistrict Attorney's ofice haveset up their ow11 discowl). policies \vl~ich require defense anoraey's to choose \vIllelher they usea ope11 file policy and are thco ~~~a~ltlatetl not to file a tliscorel)'motion or file a discow). nlotionand 11xe the district attorney's file closedWCBA MEETINGSWHAT'S GOING ONnot allow for ope~l-file cliscove~): but the Count). i\ttomefs office does.DCCDLA MeetingsIN YOUR CORNEROF TEXAS?LET US KNOW(5 12: 47825 14OCTOBER 2001 WWW.lCDLA.COM VOICE FOR THE DEFENSE 13

BEFORE YOU OPENTHE DOORS TOPRACTICEYou've got your fur~liture anmged, the supplies are stacked nmly in the drawe~s, tlie coniputersand dl tlic other equipmelit have been i~istded and are wordng, lib~ay books line the sl~elvesin tlie conference room, and the phone h~cs are con~lected. XT~at's missing? Read below tomake sore you have completed this to-do list unique io attornels before you open the do013 to your newI*\!, office.Obt& copies of the Attorney Complaint Inforn~zttion brocliure from the State Bar. Tliese broclo~resneed to be made available to your clients.Obtain a Copy of the Imyer's Creed. Pawg;lph 1 (4) of the Creed obligates tl~e attonley to educate theclient, among otliers, about the Creed.Set up separate e\yense and IOITA accounts wit11 a bank that 1s FDICTHECORNERPrepare your fee mntract tliat sets out tllc fee you arc cLugiug, the scope of your repmentation, youretliical and legal obligations, and the client's oblipalions. ~Uthough cont~xcts are 1101 maodatory forcriwiaal cases, theyak strongly reconunendcd. under Rule 1.02(d), a lawyer may limit the scope ofrepresenlatior the client's consent dter cousultation. Prospectivcagteellleklts limiting liabilityarenot dlowd under Rule 1.08(g).hure the State Bzr, locd bas, all court cle~ks, and postal autho~ities hwe yoor ddrew. Appropliatemotions should be tiled in active and domi;uit cases See, Rule 1.15 (d).Set up tw acco~~nts. Tas fraud is a c~i~iic of moral turp~htde, md tl~us is gcowds for automatic disbarnlent.In fhedinfter of UqdE. H~itt,Yhrejs, 37 Texas Snpren~e Court Journal 309 (1994).Set up MCLE reporting and establisl~ deadlines for eanung hours.Associatelneh~ork \nth espcrienced counsel to establish Rule 1.01 (a) safety net.Set up p11o11c and I I I log ~ log all calls, faxes and conesponde~~ce in client matters. This could late1be useful evidence if a dent should file a gicvance agd~ist yoo for neglecting a clieot's matter. See,Texas Disc~pli~ia~). Rule 1.01 (11).Sel up tickler system to establish Rule I.Ol(c) safety net. This itiforniatio~i could prove essential inproving unhitenhond neglect, which is not a grievable offense, merely nialp~xtice!Set up conficts list to protect against violations of Rdes 1.06 and 1.09.Obtain a copy of t11e court's local n11e.s and cl~eckta see whether your lad bar association hasany 1111es, creeds, guidehies or mandates.14 VOICE FOQ THE DEPENSE WWW.lCDlA.COM OClOBER 2001

Sampk ContractCONTRACT OF EMPLOYMENT FOR LEGAL SERVICESW E OF TEXAS vs.CH4RGE:CASE KO:I l~ereby agree to representa non-refundable &xed legd fee of $exceedsper lmur.(Client) in the above matter in consideration of. If my time spent on this matterIuours, tl~en client will pay ine at the mte of $-[If representation is to be huited, it shonld be stated in B~tsection] It is further unde~stood that if the caseis set for a ju~ytrial on any disputed issne, ;(II zdditional trid fee of $will be paid It is furtlrer rindentood Btat if fluecase is set for a trial or heaiug before the court on my disputed isme, an additional fee of $will bepaid. Tl~e t~ial fee is d11ew11e11 the Chent elects to plednot guilt' Tlie above fees do not include any appeal, and do not includetl~expcnse af prcp3sing tlte record for the appeal, or any post-conviction itpresentstion. It is huther understood that the abovefees do uot include my eqeiise for investigation, pl~otographs or any ofher apense necessay to prepme the me. It is furtherunderstood and agreed that slmnld the case have to be tctricd for my reason after it 1111s once been tried, tbat a reasonablecharge ~$11 be ;cgreed lrpon by tile parties for the retrial.It is further understood and greed that should the case he settled in any other manner than by contestedtrial, no part of the initial fee is to be returned. Purtl~er, once the client decides to 11ave a jury trial in this case,the jury trial fee is considered emled, no matter how the ease is concluded. It is exp~.ersIpagreed and understoodby tl~e parlies Illat KO PROMSES OR GUiUUNTEOS as fo the mrtconle of the case have been made. I do agree to exert my bestefforts at dl tinues in your behalf in representing the client in illis case and abide by the Texas Rules of D~sciplinmy CouductTlus contuxct sld be gove~ned by Texas la\% Ageed, ~~ude~xtood andaccepted on [date].CLIENTSThe Q~te Bar of Tern investigates and pmse~ntesal@inep. A!~kongbuot eve~~mplaint against or dispte uftlr &lawyer im.olrapmicSgio~~d I&-pfofessianal mismducc eclmmifted by Texasconduct, the Slrtte Bark ORce of General Counsel will provide yon ttIIhinformaUon about how tofiIc a complant. Plw call 1-800-952-1400 toll-&efor more infmmatiofl,OClOBER 2001 WWW.TCDLA.COM VOICE FOR THE DEFENSE 15

in a particular case satisfies the statutmy reqnirments, i.e., the tl~dprong of (~~cliability in) XilrJ~whether the technique was p operlyapplied on the occasion in question. Hflrtttm, 946 S.W.2d at 64(KeUer, J., conc~uth19) I tote and empl~mes omitletl)lThe basis of the defense's claim is not that the intodyer, it? tho-IJI, is iuvalld or umeliable. Both tl~eLegislature and the conas nppmrto be in agreement tl~at, ~~l~atevcr challe~~ges may be ntonnted in theoryto the maclhe's basis for opeittion, the law of Texas \dl renlamdeaf to tltose con~plaints wlllicl~ challenge the underl$og tl~eory ofoperation of the 111toXii)zer 5000. Nevertl~dcss, that theory or thosetl~eories un~lerlying the openfio~~ of the ~nachine musl he correctlyappLidon the occasion of tlte testing of the defendmt in aDWI me.THE SEATE OP TEXASVS.MOTION TO SWPRESS BWATH 'I'FSl' RESULTSDefendant Eles &is Motion to Snppre-ess put'sunnt Rules 102,403, 702,705, Rules of ~vidcnce andillata u. Sf&, 46 SX3d 902 (Tex.Crr\pp.2001) as follnws:IRETROGRADE EXTRAPO~ION OF BWH TEX NOT mmmSection 49.01, et seq, Tax. Pen. Code wlllich defines the offelm of drivingwl~lle intoxicated reqnires Ule sfate to prom the defcndm~t'spIt~~iologcdcondition wl~ile he \vm UI achd physical control of a motor vehicle.Under Rule 702, of the Rules of Evidence any expert opinion concerning the results of the tests xttempting to relate those resnlts to Mr.Defendant's pl~jsiological condition at some time prior constiti~tes NI tnreliable scientific techniqr~c under the facts of tlus case because the expe11wimess in Ibis case has no underlying data II~OII wlich to base an opioion concerning retrogntle e~trapnlaLion. Consequently, "ret-etrograde e\lrapolalion"of the ~esults of tile btmth tcst is not admissible, and it is a proper subject in a prrett.ial motion to suppress.U.WITHOUT RETROGRADE lXl%WOI.ATION TESTRESUETS ARE IRRELEVANT,fill DEPECTIW PROCEDURES OF TEST REDUCE PROBITY OF RESmThe sate must show: (1) tlv nlacl~ine functi~ned properly an tlte day of the test as mdenced by tlte rumd~lg of a reference sample through them&~e, (2) the existence of periodic supewision ova the or,~cbine and opemtion by one \\,IIO itndersh.nds tl~e sretenbtlt theory of the machine;and (3) proof of tl~e results of tlte tcst by a witness or witnesses qu&ed to tm~~late and intc~prd the resdts so as to eliminate hmmayIn this case, tltcrc \vas a problem with tlm ~nzuter ~II %hicll the test nras pa$ormformcd. A test whidt is in\& for any nyvamu is not admissible.The basis of i\fr Defendant's chim is not tl~athe into3)ze1', in t6eot:jl: fs indid or uoreliable. Tlu: clain~ is tlmt thefl~leory or those thcoriesundcrl#ng tlte operation of the n~achine were not cortwctp nppliliodon tl~e occasion of the testing of the defendant in a DWI case.ne into.dy~ is designed to measure the weight of dcohol ncco13tely in air only at 34 degrees.1. The intouil)t+er is designed to measure the ncigl~t of dcoltol accurately it air only at 34 degrees2. It is not clesigned to measure fie weigl~t of dcol~ol in air of an unknown ternpcralnre, and weight ofdc.~ltol measurenwutsmade by tl~eintodyzer 5000 of nir of an ~mknciwn tenlperahirc 01' of a teiIlpClYIhnt bigher Ihan 34 degrees centigtilde isunxelbable by clear nnd convinci~tg nidence 'OClOBER 2001 WWW.TCOL&COM VOICE FOR THE DEFENSE 17

B. PREJUDICE VERSUS PROBI'IYUnder Rule 403, Fed. Roles. Elid. any expat opinion concerning the resulls of the tests relating to those relating to Mr. Defendant's pllysiologicalcondition at some time prior have limited relmrlnce to tbis case. Thc wsc~lts, sin~ply because they are "sientiEc," mill cause a jury to convict wherethat july might otherwise not convicf wifhout the ~~nreliable scientific evidence.Neither the subject test nor tl~c refera~cesru~~pledc\~ice were kept at a known temperature and required by Texas Breath NcoholTes~Reg~lations,Tex. Admin. Code See. 19.3(c) Thus, the substantidprejudicid effect of those results ouhveigh the p~nbativevd~~e of the resctlls on Ute issue of whetl~mDefendant co~nmitted the offense charged. Thus, the breath test results fhemselves have wy little probity because of the defective procedures utilizedIII obtaining the breath test result.The assumption that breath alcohol concent~rltion at the time of arrest was greater than or equal to breath dcohol cormcent~rltio~l at LC tinle of thelest is at odds with the presumption of i~inocerrce and with the holding inilfflia u. Stale? supra. The purpose for tlre adn~ission of breath test results inanypro,rosecution for DWl is for the Shte to sl~ow the physiological stah~s of theindividual acc~~sed at the earlier point in timewheuhe ws driving. Tilereis no imbntfable presunlption in Tern bat Mx Defendant's breath test score of .08 or Iligher taken at the station after arrest is proof that he was dri!~ing wlde intoxicated at an earlier point in time111.PRAYXRUnder the facls presented in this case, the breath test iitselEshould not he admitted since its probity is low and it cannot be related to the events inquestion Additionally, the test is not adniisslble because its underlying theo~y rras not correctly applied on the occasion in question. L~kewise, theb~eath test evidence becomes less relevant to the proceedings the fnrtller $1 rime from the ntmt its resulls were takcn.WHHREFORE Defendant pmys that the court will set Ibis mntter douw for a hewing, and opon hearing punumlt to Roles 102,403 and 702 Rules ofElridenee ;u~dillafa u. Stnte, sslrplur, and order thatk the results and any ophlion coaccrning those ~esnlts as they relate to W. Defeudm~t's earlierpl~ysiological condition be suppressed; and8. the breath test results be suppmed.Respccthdly submitted,GEORGE SCILW\IEN401 S. hesaSan Antonio, Texas 78205Telepl~o~~e: 210-226-8021Pacslmile: 210-224-5722State Bar No. 17727500ATl'ORi\%Y FOR DEFEiDAhTCERTIFICATE 01: SERVICEI, George Schwmeu, do hereby ccrhfy that on Uus the - day of , 2 0 0 1 , a copy of thisMotion to S~~ppress nw delivered to the Count). Attorney by United States Postal Sewice this the - day of,2001.GEORGE SCHARMEN18 VOICE FOR WE DEFENSE WWW.TCDLA.COM OCTOBER 2001

~~ ~.George %bnrt~re#r-gmdriafcdfm~~~ St Xny9 U,ritw~iiySciiool of&m iw Smrd~rfo~~io, Bws hi I973 nJer lwni1i.e mei~rdn McbeIot9dwee Ine~dS~ntSo~~th~~w %tmStnI~ U,rirwsi@ it, Sou Jlnrca~: Tern m 1970 Geom rma adfnzIIedf8 fliePmclice oflaw i,t Term in 1973," -~~ ~111 1993 Geom an: &dreW?ed bv UM ~&m~&~dofrea(t~~bectnlimlio?tiriuril!n?knn fir f&i &rGenm uusa/so 6Mn/cem'Redbl*OCTOBER ZOO1 WWW.TCDLD..COM VOlC6 FOR ME OEllNSE 19

tification procedures to help then1 to evaluate the accumy of eyewitncsstestimony.~l14need to !inow that certahfacto~s me likely to leadto an irclccurate identiEcntion. They should be told of u,l~at an ideal,reliable in&tigation process nwld have been iu he situation, audthey sl~ould then be encouraged Lo compare tlre p~~opopm. procedure to;my sttggestiveprocedureactually used. \Ve shot~ld mcounge jurors torely upon their om judgment ~xtl~er tlm that of tlle eyewitness n~hotestified before them.Uufortu~utely, Inany co~~rts still preclude the defense horn calling apsychological eeperl wit~wss to adequately inform the jury of tlleprincipfesit~volved in md factors iun~tencing eyevitness testimony Withoutth~s testin~o~~y, the jnrors rentah unaware tint their focus should be onthe actual identification procedore used by the police rather than t l ~reselts of the procedme.How an ExpertCould Assist the Jury inEvaluating Eyewitness TestimonyIntroductionEvve~y day tn tile gtmt mate of Texas, asvd as io the rest of ourcountly, people are cded as ejeMtnesses in cnndllal cases.Both judges and juries tend to believe eye\ritnesses.Unfolhulately, too nlany of tl~es eyewitnesses are cleadnrrong, and asa result, many people ha e been comicted for crium tl~cy did notcommit. Dnring thelast few eontlis, mumy convictions have been owh~r~~edin Te~as by science, such as DNA and blood samples. The conmondeuondnator for these uuj~~st convictions ms witoess misidenuncation.The purpose of this paper is to create an anrareness on Ikowmportant it is for the crindnal defense ynctitinner to lure an eyenit-ness expert in order to provide tile best defense md avoid the possibilityof another ut~just comiction.The Impact Effectof Eyewitness Testimonyon JurorsEyexituesses are oRen wrong 111 their testimony. But often Ihey aresupremely co~ffident of their identEcation clmice and defense counselhas a haid time s11&1g that wihless confidence. Studies show thatjurors tend to believe cyeuituesses owotl~erwitnesses, even when thee)wltuess has been mlyeached. As many as 87 percent of forensicpsyci~ologists agree that an eyenttness' confidence in his identificationof au individual is not a good iudicator of accuracy Yet, jwon incorrectlybelteve that it is. And to make matter$ rsvolse, courts ofteninstruct the jut3 consistent wdlh he factors set fort11 by the SuperneCourt, that witness confidence is a idid mdicator of reliability!Jurots sl~ould be ad\ised of the factors involrred io eyewitness iden-PsychoIogicid C\pelTs GUI expla~n to tl~e jury that the~e arc fouressential rules to a did police eye~ituest idenhficatio~~ pmcedure:In anyliueup or photo spread pfncedure, the sospect n~ust notstand out. Idealll: tile photogixphs . . should be sl~om~ to !he eyewitnesssequentially, one at a time, as opposed to in a photoarray.Thei~~teniener should be teaware of which person or pl~oto isthe suspect, so illat the intentewVer does not i~ninta~tio~~altyconmuuircate his expectations to the uttness.The \vituess must be ad\ised that the suspect nlay or may not bein the U~~eup or army \V~tnesses who are told the suspect maybe in the lineup are fnr more likely to select someone, md to beinaccurate in that cholce.Finally, the witr~essl~ould be asked, at thelilament of identi&cation, how certain they arc of thei selection and the reasotlsfor itThe Impact of Presenting ExpertTestimony to the JuryAccording to De Elizabeth Loflus, nwld renowned expert in the fieldof eyewitness testin~ony, and co-author ofI?pwit~~~ss T~~fi~t~oty: Civilnlfd Crit~~irml, Tl~i~rl Edition, Lcxis Publishing (Elizabeth E Loftus,Ph.D., Jmes if. Do$, Esq. 19921, expert testimony ou I10w to eval11-ate eyewitness testimony, a good or bad identification procednre, cuhelp the jwy to distingnish those identiEcatious that ae n~ore likely tobe accurate from those that are hkely to be the product of mistakesLegal Test For Admissibility of EyewitnessIdentification Testimonyid call^ your evpert sl~ouldbe a psychiatrist or psychologst uitbscholarly c~edentials (books, journttls) or a tcxcl~ing psyclliatrist orpqcf~ologist who has studied the subject matter.20 VOICE FOR THE DEFENSE WWW.TCDM.COM OCTOBER 2001

EXPERT TESllMONY ON EYnnreMESS MEMORYIUnder Fedend Rule of Evidence 702, you ha~e the right to presentscientific, @technical, or o h specialized expert testimony, to assist thejut7 to ~~~lde~stand or determiue afact in issue. In Dnt~be~l u. df~vrellDon, Pl~arn~~aceulicals, hc., 509 U.S. 579 (1993), the Supreme Courteliminated the "Frye test", hokling t11at it ha beell replaced by Rule702. Under the "Rye T'", expelt testimony wa inadtnisstble unlesstl~e tecluniques OII whic11 t11c opiniom were baed had bee11 gel~erduyaccepted in the relevant scie~~titic comn~unitg. Frj'e u. UnitedStates,54 App. D.C. 46,47, 2% E 2d 1013, 1014 (1923). Da~bwt rejectsthe standard br admissibility of e.xperl opinion articulated il~fiye andgises the trial judge "the task of ensuring that a11 expert's testin~o~~yboth rests on areliable foundation and is relevant to the task at hand".Dalbert, 509 U.S. at 580. Dmbert is particularly intporla~t on thetopic of eyewitness identikation teslimony bccause the S~upren~e CmnZrelied on the a11a1)sis of thel%itd C~rcuit in UnifedSfdcs u. Doming,753 E2d 1224 (3d Gic 1985), wvluch inval\.ed the admission of experttesth~my on e)cwitness icle~~tificatiou. The Third Circuit adopted a"helphhss tesr'based on the scientific language of Fede~xl Rule ofEvidence 702. Dmwing, 753 B2d at 1230. III Downing, once tlwdefendant Itad properly demonstrated the reliability of the expert ophion,the trial colrrt allowed the expert witl~ess to testify about commouinnccuracies of perception caued by s$ress aI~d other problems witheyewitness identification Id. at 1230.In order to convince tlte coml that your experf's testimony is relewt,)mr expen mst be ready to q h n ho\r.psychological shldiesdeu~onsh'ate tlnt tile eyenitness ide~~tiGcation in your caseis unreliableand could have ppl-ot~ccd a mistaken identification of the defendant ifIre or she is not the peqetntor. Yo11 can aclkve tbis througl~ either aproffer or hearing.\Vim challenging epvitness identiRmtion with expert testimony,the district court 11as discretiall as to admissibilit): OLII Fir111 Circuitmakes a adistinctio~~ between proper and impropcr refusal of a court toadmit such testimony bmd OII the inlpollance of t11c eyewitness identificationto tile deterluioation of guilt or i~moceoce. Ut~iteulStntes u.illoor.e, 786 F. Zd 1308 (1986). The~lfoove conrt 11as accepted the scic~~tificdidity md reltability of such evidence but finds ils esclusionappropriate nrhere the eyewitness identifmtion is not "critical". Id. at1313.The Fift11 Ci~cuit seems to deke critical illstances wllere "casuale)wit~~ess testimmy may u~ak the wlive d8ercnce behwn a fu~dimgof guilt or innocence". id at 1312. The appellate coult d ~d hold thatin aU mllcr cases \\711ere the eyewitness itlet~lificationr is not critical,adnusslon of such testinmy is discretio~~q However, eqzcrt testimonyin those c w in "wl1ic11 the sole teslimonyis casbd eyenp1lnessidentification, expert testimony regarding the accuracy of the idenacationis adnuss~ble and properly m y be ewouraged.".Id. 1312.In sum, scienac expelt testimony, such as from a ps).cl~ologist orpsychiahist, will beallowed if it is based upon scientific htorrledge nu11will assist the Rier of fact to understand or determine a fact in issueJust because eyewitness is certain tl~nt his or hernmmy is correct, that does not meall that the memo~yis tn11y accurale.Vienring pi~otospreads and line-ups \\itl~oal carefulinstructions and precautions call make errors worse.In cases \hen convictions have been overtun~ecl becauseof new evidence, tile most conchmoll reason for tile originalconvictions were iulaccunte witness identi6c;ltionsof people.Human memory, includingeyewitness memory, can behighly fallible and inaccurateIh~man memory is not like a \ideotape, recording esperie~resexactly as they happen.Allhougl~ memoly often selves us i d in eveqdny life,people tend to ignore or forget about memory fnilnres.Stages of MemoryHman memoly co~~sisls of three stages, any of w11icI1can cause erron:PerceptionDeGned as an inte~pretation of w11;lt our sews tell usIs allected by awuptians and infe~wcesCan be easily confused (e.g., opticdillusions, magician'ssleigl~t of i~and)Is especially conh~setl under lug11 anxiety or stress"Perception of siimuli untler high stress is fragmented,unstn~ctured, reckless, short- circuited, narrowi~~ focus,and often nonse~~sicdly interpreted." (Yam~e): 1990. p.295)Storage for RetentionCan be dfectetl by interference (seeing other faces)RetrievalRetrieval failureOverview of an Expert's TestimonyThere are rimy factors, swh as stress amid high aniety,ll~at can lessen the zccu~'acy of ejevitness memotyOClOBER 2001 WWW.TCOla.COM VOICE FOR THE DEFENSE 21

There are many factors, such as stressand high anxiety, that can lessen theaccuracy of eyewitness memoryBiased lineups and photospreadsBias ca~~sed by expectations and leading qwstionsUnconsciom Tnnsference (Misahributcd fadarity)"...the phenomenonin wllich a persouseen in one situationis canfi~sed with or recalls as a pewn seen in a secondsituation." (Lohls. 1979. p. 142)Delay (time sum events wee wiu~cssed)Duntion of e!re~~t (usuall~ people tend to overestinmtetl~c duration of a stfesshl event)Rig11 levds of anxiety or emotion during a violent orstressful actStress and EearWeapon Focus (it refers to the cooce~~lratio~~ of a c~in~ewitness' attention on a weapon, such as a gun or We,wl~iclr ~tsults in the reduction of ability to ren~en~bcrother dctaii of the crhe) (Loftus Pr Doyle. 1992, p. 34)Cros9-~nctal idertification (individual n~embecs of aparticolarme have more diic111ty identifplg membe~s ofa different ~nce, arul me n~ore prone to guess the identity)(loft~~s&Do)~le. 1992. p 97-100)Emotion & Memory'"IheYerkes-Dodson Iawsa~~lhat ex%renle slress and arousal interfereWMI a person's ability to process iufo~.mation." (Loftus, 1979, p 172)"People find it hasder to recall inforn~atioiol~ about a violent event thana nonviolent one ..."(T.ohs, 1979, p 174)The notron that an ehtrcmely violeut incident prod~~ces a 'flaslrbuib~nen~oty' or b~nns an indelible print in mnen~o~y, cnphnh~g di perceptionsnftlle momalt ~II a permanent, vivid ad acculnte mano~y, sknplyis fdse." (Ymmney 1990, p 295)Just because an eyewitness is certainthat his or her memory is correct, thaidoes not mean that the memoryis truly accurateinaccu~nqof eyewitness idmtifcatfion." (Ymmey, 1990. p 316)In other words, you can not judge how accutnte someone's memo-~y is from how ceetain they are that tlteir memory is correct.Photo-Biased IdentificationBeseacI~ shows that viewing photogql~s prior to makiiig identificationcan taint the identification and lead to Mse idedcation. Tlusis known as "photo-biased identi5cation."Photo exposure makes a face look familiar. Witnesjes~vill often, ata later identification, ~~lnistakenly believe illat fan&rily comes fim theoriginal a n ent, rather than from the intc~'i'iening espos~~rc to the photograph.It is not possible to separate which event the witness is identi-~g-that wl~ich kt occnrred or the latcr viewing of the photo.Persons appeartng in ideuti6ation lineups who also appeared illprior photos, such as mug shots, may be at greater risk for false ideetficationWhen obse~wtions ofphoto mnys or lina~ps me involved, sip&cant problen~s with reliability can arise. For example, "t~nconscio~~sh%nsfera~cc" may occur, whereby a person seen in one situation isconfused with or redled as a personseen in anotl~er slt&?tion.Poblicit). abo~~t a case or person, another form of post-event informntion,cm also rw~lt PI a photo-biased identitkatior~, lasing a seriousqmshon as to the reliability of the pl~oto line-up proced~~re.Eyewitness identificatiou LUI be shown to be unreliable 8 the eyewitnessselected an individual who, dtI~ongl\ ~~nmnuected to !he crime,nvs elposed to media covelzge, and the witness selected the photo ofthe s~~spect depicted UI the media.Viewing photospreads and line-upswithout careful instructions and precautionscan make errors worseI,inenp Bias"One of the gods iia lineup co~lsmction is to ensule that the suspectdoes not appear distinctne or salient in the d~splai." Narmey, 1990 p318) To safeguard hueup fairness, a n~unber of procednres sho~~ldbe used when they use line-nps or p11oiomre.eads. Vialations of thesepmcedura an resnit in XI udair line-up or photospread.Were [here anmerous photos in the photospread tliatlooked vistlally slniilm to the snspect's photo, or wrehere features of the other olrotos Illat made them distillguishnhlefrom the suspecl's photo?Did the police infeniewer clearly state that the achlalpetyetrator might not he in tile photospred?Were the pictures B the photospmd shown sequentially?Codd "mock nimeses" (not me witnesses) pick outthe sl~spect st a rate that is ptertlm cbance?Tl~e lack of co~~eq~ondence bemen eyewitness certmt). and eyewitness ;~cnllxcy is apppparent fro01 shldies showing that eyewitnesseslc~tl of confidence remains constaut regardless of the acco~ney or22 VOICL FOR THE DEFENSE \N\NW.TCDIA.COM OClOBlR 2001

In cases when convictions have beenoverturned because of new evidence,the most common reason for theoriginal convictions were inaccurateeyewitness identifications of people"...eyewitness misidentikalior, is the principle factor in oser 11,aIf ofdl \\'rongfi~l felony con15ctions." (Yarme); 1990, p 289)"Mistaken identifications are the greatest single cause of wronghllcon\ictions."(\Veils & Lofhrs, 1984)Attacking the Admissibilityof the Government's EyewitnessIdentification TestimonyThe United States Supreme Court has advised that "Reliability is thelinclipi~~detennirliag the ndnussibili5 of ide~~tificatioa testimon)?'.11Ifl~sor1 U. Brnthwnite, 432 US. 98, 114 (1977). In Xeil u. Biggers,409 U.S. 188 (1972), the S~~prenle Cou~t listed the facton: to be consideredin detern~ining the reliability of a pre-trial identification. Thesecriteria include: (1) the opportunity of the nitness to view the crin~inalat the tune of the clime; (2) thc witness' degree of attention; (3) theaccuracy of the wihless' prior description of the c~iniinal; (4) the levelof certainty demonstnted by the nitness at the co~lfi.onteh; and (5)the length of time behveeeen the crinle and the co~lfi.ontation. See UnitedStatma Rogers, 126 E3d 655 (51h Cir. 1997).\Vl~en the constih~tionality of a pl~oto artagorsin~ilarpre-trial identificationprocedure is challenged, the due process clause of the UnitedStales Cotlstitution requires the court to collduct a hvo-step ilquily.The court nllrsf firs determine wl~etl~er the pl~oto army or procedurew;cs iepernussibly suggestive. If so, the court proceeds to determinewhether the idenrifications were ~neverthcless reliable imnder a "totalltyd the ckcumstances" ntialysis. Evidence of a pretrial photogq~lucidentification ~vill be inadmissable only if the pl~otog~aphic irlentificalion procedure is so suggestive as to rise to a my substantial likelihoodof irreparable nlisidentification. Simro~n u. UrritedStntes, 390U.S. 377, 384 (1968); UrritedStcrtes u. dlerk, 794 12d 950, 957 (5"lCil: 1986)In considering the suggestiveness of a photo arm) for cxunple, thecourl cansitlets the size of the mu!: its manner of pl-csen$tion by officersand the details of the photos themselves.A defendant's right to due process includes his right not to be victimizedby suggestive police identification procedures, inch~ding suggestivedisplays of pl~otogclpl~s that create avely substantial likelihoodof irrepaublc ~~~iside~~tificatio~~. Sirrrrrrorrs u. U~rited States, 390 US.377 (1968); UrritedStrrtes a dlerk, 794 E2d 950 (5Ih Cir. 1986).Pdwe to object to a suggestke in-court identification is groundsfor ineffective assistance of counsel. See UnitedStntes u. Mller, 229E3d 649 (7" Cir. 2000). See also IViikersorr a Coin, 233 E3d 886Cir. 2000) (hit on questionQ eyewitness violated ConfrontationCl;~use). EReferencesLoftus, E.E (1979).Qeriiitrress Testi~rlollj!Ha~vard Uni ersity PressLoftus, E.E and Doyle, J.M (1992)Epruitr~ess Tcsti~r~o~ql:The hlichie Con~pan): 2nd Ed.Wells, G.I.. & Loftus, E.E (1984)Eyeruitrress Testi~rro?y:Ps~chological Perspectiues,Campbridge Uuiversity Press.Yuille, Jolu~ C; Tollestrup, Patricia A.JorrrrrfliofAppliedP~ycholog~~ 1'0175, Jun 1990, pp. 268-273Yameb A. Daniel (1990).U~rderstm~di~g Police andPolice IVork: P~:~~chological issrres.New l'ork Unive~sity Press.U.S. Department ofJustice (1999).E~e~eitt~essEuide~lce: A Guide for ~ruBrforce~nerrl.The entire seminar is on audio cassette for only $85.00contact the TCDLA home officeOClOBER 2001 W.1CDLA.COM VOICE FOR THE DEFENSB 23

Phil Wischkaemper Hired by TCDLA. TCI)W is Parole Con~mittee Co-Chail; Bill Haben~, David O'Neal, Sean Buckley,pleased to mnouoce bowd n~embel; Phil R'iiscl~kaemper of i.ubbock, is and l'olanda Torres are pleased to ~IUIOUIK~ their firm is IIOW plxcticulg dlils newest enlployee. Phil is the director up the ~~ewlycreatetl CapitalAssistance Proglm hu~ded by the Crimniml Defense h~\ye~s Project :ladis, mong otltertl~~gs, responsible for pultingtogelherasel~u~~:~rfor capitalxtarIIe>s UI March 2002, in Gdveston.aspects of corrections la\\: The cnses Leylm~dle include: prisoner civil rightsviolatio~~s; ~legligence chins agaimt TDC; appd of TDC administc~tive 1111-ings; I~abeus filiugs; fedeld sentencing; life eel~da~~gen~ml of p~isorms; and]mole relme md rcvocalioa.Dnrlina C. Crowder 11% moved to a new of6ce across the street from theScholarships Awarded. TCDLA 11:s awarded scl~olawlupsto sir U~uveniiy of No1111 Tex:s English majols. The scl~ola~slups aregiven UI tl~e memol). of the late 1\1. P. "Rw)." 1)oncm Recipieats verechosen based open need mi acatlelnic l~erfofon~mnce.U~uve~sity Coorts Facility in hlcliialey, Teaas. Her IICW address is 1600 Nistthe., McKinoe): Texas 75069.Leticia Saachez Vigil 11as moved to a new ofice elfecti\~e November 1Hcr ne\r7address is 112 N.\T! 24th Street, Suite 116, Fort\~'orth, M 786106.David Botsford, fom~er sl~meholder of Sl~einfeld, hldeg 8: KT): PC. and aThe Passing of a Warrior. \T1elostagdflim~~lx~da\~t- put Presidc~~t of TCDIA is pleased to xulounce tht 11e llas reopened his prioram wiior UI \Vud I'irlps Cmj: \Tkud I'l~elps Cw, a q~ick-nittm1 defew !ha, 11e Lw Ofice Of David L. Bolsford Da\itl's office inclmles his associ-Uomq \\ho muedtl~e 1qm7of son~e of Tamil COLIIIIJ~SGIC~~I~T~~IS, (lied ate, Wter 1.ong md nvo of counsel atlomqs, past 11resident of TCDLk mdSeptmlw 1lf"of ahmt 2mck al his IIOIIE Ile \\:IS 64.retired Co~~rt of C I ~ I I Appds ~ I ~ Judge Frank Maloney antlfo~i~~er hsislaothh. be)' started lus legd career in \Wal~acl~ie \&re he n.a CouniyAtton~cya~~d also se~~cd:s asistant district :~nomeg in \Vaco before mov-T~wis Count). Alton~cg Kate Kelle): Effective approsk~~ately 10/15/01, theadtlress d be 1307 \Vest i\velmc, Austin, Texas, 78701.illg to Tar~-mt COIIII~ UI 1974. He worked one year in ll~e Tmmt COIIII~).District t\llomeg's Onice before going into private pmclicc where hewrked rig111 up to his dc.1r11.Ale Case). had a b~illiml III~II~ for leg;d issues mrl \vzs 21 tougl~ oppllent ill the cou~lmom. \Vl~en yo11 dked into a co~~~lroomwith All- Cseyan the otl~er side, yo11 knew you were in for a dogfight. He v;a a11 ind-Firefighter, EMS, and Rescue Relief Fund. rfyouweinterested UI asisring ll~osc WIIO 11ave lost lored ones in the tmgedy ofSepten~ber 1 101, please use the co~~lact i~~formtiol~ below All proceeds fromthe Firefighter, EhlS, and Kcscue \T1orkels Relief Fl~nd nil1 go to the fmilies ofthe fallen.lution Ile was idwys hle to uncover a tlefe~~se angle few otlm wosldI~ar noliced.Dote of Loss: Septeiiiber 11, 2001 Deprliireirt: Firejghfei: EMS, oridYet despite lus repot:~tio~~ for legal hrilhnce, he \\;s rdly:~ do~\~~-to- Xescie It"orkei'sRelicf Pimd * i\kle Yo&, i\'ero Yorkearl11 countl).la\vyer. I11 all lus ).MIS of practice, he new o\wd a pager Conlmt: Fit8 Uoirotiorrs Phoiis 877-863-4783 Secorrd Phoi~o: 2253-mil 011[)'just recelllly purcl~aetl a cellular plrolle. He reh~setl to r~se a 274-0432 Fox 253.274-0.709 e-irmit ~/sl,nie@~i'e~/oetltio~~s.co,,rcomputer escept for leg:~l research.\Y':mi Casey will be missed by eve~yone but not ~OS~ONCII. Inmate Correspondence. ~f you are interested in revie\~%~gurnlate correspoade~~ce recekd at lllc TCDW borne ol0ce, plme co~~tact us!Attorney General Opinions. Access to Jury Lists. JIIboth civil md cluni~~al :~ctions, jo17 lists omst 11e tlisclosed lo the panics\~l~e~en he p~liies ;INIOIIIIC~ rmdy for hid. Subject to the dkeclion of d ~eMember Recognized. TCDW mcmbel; Tom McKenzie, 11:sbee11 selected as Attorney kl 1.ite111 of the Year by the Tarrant Count).presiding judge the district clerk ma); ill lus or her discsction, re1c.w I'rogcun Tom 11:s dso bee11 appointed to the Tmns State Uai co~~~~~~ittee onsuch i~foln~ation to the parties :u :u~y lime dter ll~e ju~y list 11:~s beell A~nsc and Neglect.delivered to the sl~e~iff to sunu~~on the jum~x. The clerk 111l1sl not showondue fworitiso~, md may not pmide the list to one pariy while witl~-Iholdu~g it from another, 11lEon11atio11 cor~tai~~ed h~ ~ UIY question~~:iirescos~pleted pu~suant to section 62.0132 of the Govelm~ei~t Code, \vl~ileA Rising Star. Verse1 Rush of \Vicllita Fdls has bee11 given a "peprnment" coluom in the \Vichita RdIs Times :u~d Record News dter sening 011he editosial bo:rrl. She also is the author of a aiurder m)ste~).pla): A I'ort toco1lGdenti;d wit11 respect to third ptTies, is awihble to the litigmts in the KillFoi', which is receking I:W revieus ill a local pla)l~ousc.cause of action ill qoeslios. \T'l~ile llesol~al iufomlalioa concer~lingjoro~ sen%~g ill particuhu. crimi~~:ll pmccetlu~gs is co~denlial punuantto a~lide 35.29 of the Code of Criminal Procctlure, ;u~d III:I~ not be disclosedby the district clerk :abse~~t aa olrler from the tlial court, a~licleEngagement. Stephen Baer, a forn~er Assista~t US. ,\nome); \vhooow onices wit11 our inu~~ediatc Past-l'rcsirlent, Bob Hiotol~. rece~~tly gote~~gagetl to Jacal)n Sal~ of Cleveland, Ohio. They will excll:o~ge vo!n on35.29 does not preclude the provision of such i~fom~ation co~~cen~~g November 18,2001the general pnael lo coa~sel for the purpose of voi dire. JC-0405.HCBA Names New President. Steven R. Green of the LawAttorneys on the Move. Pat preside^^^, Alike Heiskell,is pleased to anllounce Dosglas Greenelm joined thefir~u ofJolmso~~,Ofice olhlike Head in ,\them 113s bee11 ~~an~ed Presitlent of the He~~tlelxonCoonh' Blr Asociation lor 2001-2002.\':III~UI & lkiskell :s a IICW associate. A? a formerfede~A public defender;he and is concent~ati~g his p~xctice in fedecd cou~~, 11111 is :!Is0 takingclill~~al s ~ civil ~ d cases ill State cou~l.24 VOlCl FOR THE DEFENSE WWW.1COLA.COM OCTOBER 2001

LegalEdge Case ManagemenC Software is offeri~~g a group rate to our~~lrnnbers b:ise(l up011 the rlnmber of people purchasing. The company \dl also personalize thesystem to i~~clude the names, addresses, telephone lumbers, and other biograplucal inforn~atio~tof cve~yJudge, Court and uwestigating agency in the State of Texis for the dztabase. Call LC AnnIIorrocks at 228-872-8429.Loislaw is offering a 10% discount to our inemhers. Call David Cross at 1-800-364-2515 s2260 or dcsoss@loisla\~~con~.R & R bookstore in Sail Antonio is offering a match or beat the lowest price on alllegal materials. It \vill not charge for shipping and has EVERY legal publication imaginable. CallRobert Donaldson at 210-225-1107.MI insurance company offers lo\v ntes for our 111el11bers on malpractice insurance.Call Horl-ram \Irl~idtleo at 361-576-2186.Brennes-Jones Group okrs our ~nembers the ability to accept credit card payowls :n wholesale credit card processing rates thl'ough the TCDIA Bankcard Progr:~. Cd,\on Rogers at 1-800-970-2592 ~1016.DELL.COM is offering TCDTd\ referral fees for Dell l~ard\varc pi~rclnsed online ll~ro~~gli theTCDW \vebsite. Go to TCDlh.cor~~ for the Dell 1i11k.Subscription Services Inc. is offeriog up to a 50% discount off the corer price ofnearly every magazine printed for our members. Call Marilyn at 1-800-289-6247.Please call, write or ernail Kellie Deilep :it kb:iilep@tctll;~,co~n

IOCTOBER 4-5, 2001R 'CDLP 'Deuelo 111g the Theoy of the Cme"RN tsson /En& lJoirrt Go~Clrrl,DerrtorrNOVEMBER 8,2001CDD' 'Fthim'?horre Serrrirmr. - 4-6jmI DECEMBER 6, 2001I CDLP "Ohtnirrirrg E~perts E. Kesorrrces for the Irrdigerrt Deferrdmrt"Phorre Senrinnr - 4@11rIIDECEMBER 13- 14, 2001TCDIA"' "Cross E.vmni~rntiorr Seminnr" - ArrslinFflciIit~: Ste hen F Atrstirr Hotel" Bonr illeetrrrg orr 12/15thR ..JANUARY 24-25, 2002GULP 'Dettelopirrg the Theor:]! of the (:me"Lorrguie~uFflcili!]? HorrreruootlS~ritesI FEBRUARY 7, 2002CDLIJ "Ut~rle,stflrtr(i,~g tbeiIIerrt(11 Issires of Cr~rri,,rirrnlDef~~dn~~ts"IPl~orre Serrrirrm - 4-@rrr JULY 25, 2002ICUtP "IVIxrt do yorr h(rue to hide" Chnlle~~gir~g SenrchesFEBRUARY 14-18, 2002 IJhorre Ser~rirrcrr - 4-@rrrPresiderrt's TI'@ - Snrr Diego, CflAUGUST 22,2002CDLP 'Itrrrrrigrntion Corrseqrrerrces ojCrirrtirrnl Conuictiorrs"lJho/re Serrrirmr - 4-@rrrMARCH 24-29, 2002CDLP "Crinrirrd W7/Aduocnq' Irrstitrrte"Hrrrrtsuille - SHSUAPRIL 1 1 - 1 2, 2002TCBU '*'DlIT2002"APRIL 18, 2002GULP "Defer~di~~gprueniles"Phorre Serrrirrnr - 4-(iprrrMAY 2-3, 2002CDLP 'Der~elopirrg the Theory of the Cme"Fflci/i!]c Cflrrtirro RedHote~El PflsoJULY 1 1 - 12, 2002CDLP "Hits the Bench"SEPTEMBER 5-6, 2002'ITCDL.4'Tederfll Lma Short Corrrse"Fncili!)e I~ermiss~rrrce Pew iIIflrqrre//eA'ero OrlemsIIIIIThe Voice for the Defeme is loola~g for authors for features 2ndcolumns. Areas of special interest include:Advonted Triol SkillsAppellole h e r Low Offire I,\onogenient Sententing GuidelinesMolion Protlite\Yhile-Callor (rimes26 VOICE FOR THE DEFENSE W.ICDLA.COM OClOBER ZOO1

NEW MEMBERCITYENDORSERE. Tay Bond,ConroeI.ydiaCI;~yJackson'11t11iahf. BorkettD~IIIOII1\la17 Lon CrosbieEileen CoxBoal~aastem^ R. hlicarsPatrick C11rmBedfordBrian J. \Y1ille1tElizabetl~ L. DeRieusJefiereg E. EUisI.ongviewVAustinEric AlbrinonMeridit11 Roo~~treeFrie~~dsspro~t~oles soci11IncIi1~1fies for TCUI.4, irtcltfditt~lheA11111tnl.lle1116ersh~ I'flrtr ~IIJIIII~.Gatnn~ou GuinnS~II ~lntonioJo111l Carrollbtl~e~y Hentl~er HaywodDallasS. Rde Fore111an\Veston C. I.oegeringDdasCraig JettCharles JlcadowDallasTim EvmJolm hlentlezAll~lillTonm GarzaCarlos Qui~~laliahlcAllenr\otly r\Toguer*sJimmy D. Rotlgers, I1\\'icIiita NlsJolln CorqStell LangsjoenQlerBobby hlimsIhrh SneadKilceliScott StewsJ.1'. \Wl.d~\uslinRandy \PiIsonThe 211" Chair Prop.. ,",'First Chair Attorneys - go to ll~e ~llessagc1 board in the "mc~nbers o~ily" sectio~~ of ourwebsite to list your upcoaing llearinp and trials.You 1a1ow)au could use tile help.Second Cllair Atton~eys - go to messageboard and search for opporhlnities to learsi111t1 gain cxpcrience.ww.tcdla.comOCIOBER aool www.rcDm.com VOICE ron THE DEFENSE a7

APPELLATE ALERTFor those of you who file motions for err 6nf1c reco~~~iderxlio~~ of a COXs decisio~~ p~usuantto TRAP 47.9, be aware Illat such a motion may not preseme your right to file a PDR.OnlJ' n tirirelJ'filed rirotios for rehenring iiruokirig TIM'49.1 (or Rule 49.5, if theCOA takes some further action, such as issuing a supplemeoral opinion) III~N esterrd thetirrrepc1.iod. The reason is e~idently the difiererenr ti~ue periods involved: Rule 49.1 requiresthe "regular" ll~otio~~ lor rel~rnring to be filed rnill~i~~ 15 days from the date the COA handsdo~r.11 its decision, wl~ile Rule 49.7 pro\~ides oslytl~at the motion for ar lxrrrc reco~~~ideratio~~111us1 be filed while the COA has "plenaq jurisdiction." Thus, if such motion is not filed witllinthe 15 dqs, the CCA rrrill disrniss~'orrrPDR as rrnrfrrreI)'. This situatioll has occurre11with COXs that 11:lve been treating reconsideration inations as "regular" notions, even if filedoutside the 15 da)s. Because there really is no provision for fi~ga "hlotios for RehearingEn Rnnc," if you \vant to ask for en banc rel~eari~~g or recomideration, it is therefore :I goodidea to file a "Motion tor Relle:lring and Reconsideration En Hanc," invoki~~g Rules 49.1 and49.7, and be sure it is filed witl~is the 15 days required by Rule 49.1.FIFTH CIRCUITSLEEPING LWYER IS NO W\VSEK Lr ALL: OILI'IV JEIIOLD BURDINE K JOHN-SON, No. 99-21034, Opi~lion on Rellc~ring En Ila~~c, Grant of Relief Afh~e~l, 8/13/01;Opinion: Benavides; Concurring Opi~lion: Higgu~botham, joined by King, Ibis 8 \\'einer;1)isseots: Joll~ joined by Smith, 8 Barksdale, joined by Jaws, Slnitl~ & Garza.DECISIONSREPORTSDR, for. October 2001Burdine \ms cowicred of capitd murder and sentenced to death bwk in 1984, and CGIaffir~netl. After a writ I~caring, although the state trial court recon~n~endetl granting reliefbecause Burdine's lanyer 11ad slept tl~rougl~ signific:mt portions of his trial, CCA denied relief.The federal district court gra~~ted relief l~asetl on the state 11abe.u court's findings, conclutlingtlut "sleeping couosel is eqoimle~~l to no cou~~sel at all." A Viftl~ Circuit panel disagreed, howevel; and reversed the grant of relief, holding tht: (I) district court l~atl created a new rule,so~netl~ing forbidde~~ u~~der Tiygrto I). Lm~c's retroactivity doctrine, and; (2) the prcsumptio~~of prejudice did not apply to Burdine's case. Beoavides, the aull~or of his opinion, wrotc adissent. Rehearing en banc was granted to rleternline \\.bether this inling \\as correct.Held: A rlefe~~da~~t's 6"' Aa~eod~nent richt to co1111se1 is violated w11e11 that defeodaot'scou~~sel is repeatedly onco~~scious tl~rougli oot iw~bstantial portioos of thedefendant's capital murder trial. Under such circ~~msmnc~:s, U.S I , Cmsic, 466 U.S.648, 104 S.Ct. 2039 (1984) requires Court to presume th:tt the 6'11 hnendo~cnt violation prejudicedthe defendant. After a le~~gtl~g analpis, the Court rejects :dl the State's arguments andco~~clutles Illat "Burdine seeks the benefit of a rule well-eslablisl~cd at the lim Illat his convictionbecame fieal: when a defenrlant does not hare cor~nsel at evey critical stngc of a crininidp~weeding, the coort IIIUSI IIESLIIIIC tlut such egregious deficiency prejudiced the fairnessof the trial. Bec:~~~se Burdine does not seek the benefit of a acw role, we need llot discussthe e;~rioas erceplior~s to 1eng11e." At the time Burdine's conriction beca~ne film1 (1987.whea the Supren~e Court denied cert), application of 6'" r\mendmeot priaciples firmly esrablisl~etlby 1987 (in Cmrric and Slricklrr~rd, both l~anded do\m in 1984), entitled l~im to effectiveassisko~ce of counsel at e\wq stngc of the proceeding, and con~pel such a presumption ofprejndice on the facts of tl~is case. 111 bolh Crorric :ml Stricklnrrrl, the Sup~r~nes recognizedtllat ahse~lce or denial of counsel at a critical stage of a criminal proceeding represents oneof the egregio~~s circu~nsrnnces that requires the presu~nptio~~ of prejudice. B~~rtline seeksapplication of this n~le to the facts of his case, arguing he nas repe:~tetlly\\~itlloul coul~sel duringthe most critical part or trial: guilllionocence. And hecause he was without coullsel, Courtsl~ould presunle prejudice in sccortl wit11 Crorlic. The rule Burdine seeks to benefit is0111 isnot mi\: should not have llreen su~yrising to the Sktte in 1987, and is not basred 11)' X?(rgr~e's28 VOICE FOR IRE DEFENSE WWW.TCOLA.COM OCTOBER 2001

SIGNIACANT DECISIONS REPORTnon-retroactivity mandate.lbing to the merits, Court agrees w~th the ~ ~~trict Court that anunconscious attorney equates to no counsel at all. Once the Courtaccepts (as the State and CCA did) as presumptively correct the statecourt's finding that counsel slept during portions ofthe trial, particularlythe guilthnnocencephase when the prosecutor was questioningwitnesses and presenting evidence, there is no need to attempt to furtherscrutinize the record. An unconscious attorney cannot exercisejudgement on behalf ofhis client, and when the Court has no basis forassuming that counsel exercised such judgment during critical stagesof trial, there is an insufficient basis for tmthtg the fairness of trial,and consequently must presume pejudice. (Court declines to adopt aper se rule that any dozing by counsel during h'ial me& a presumptionof prejudice.) Based on the state court's Wings, accepted by allas presumptively correct, the Court affirms the district court's grant ofrelief, md vacates Burdine's conviction.BNAANCEMENT FOR AGGRAVATED FBLONY HBLD NOTPROPBR: UNITBD $lX%S 1! LANDERIOS-GONZ.UW, No 01-10066,08/14/01.Defendant plead guilty to illegal reentry. The court imposed a 16-levelincrease under the guidelines, based on a prior conviction for anaggravated felony. The aggravated felony was criminal mischief, whichinvolved painting graffiti an a building and fence. The conrt concludedit wasnot a crlme of violence, which is defined as any offense which byits natmeinvolves a substantialiisk that physical force against the personor property of another may be used m the course of committingthe offense. The critical term was force, dich the court construed tobe synooylnous with destnwti~e or violent force. There is not a substantialrisk that a vandal will use destructive or violent force in thecourse of a conuuifting an offense such as the one here. Therefore, theenhancen~ent was not proper, and thesentence wasvamtedNO PROBABLE CAUSE FOR SEARCH OF CAR: UNW STXl2SF? HUhT NO. 00-60333,06/01/01,In this case the defendant was stopped for a t&c violation. He gotout of Ms car to meet the trooper, instead of waiting for the trooper toapproach him. Based on that action, the frooper looked inside the car,and uncovered guns and eventually drugs. The only basis for the searchw.u that the trooper testified he always searched a carforweapo~andcontraband whenever anyone got out instead of waiting for him. Courtholds that was not asu£Ecient basis for asearch. Court rejects the argumentsthat this was standard and accepfahle practice, the decision toleave the car was not com~on and that the defendmt was nervous. Ina specially conc~uring opmion, Justice King noted that the search couldbe supported heed on the dcers own experience or the specific factsof the stop. However, since no such evidence wasprcsented, the searchwas not proper.DURATION OF BORDER STOP NOT UNRBASONABIB: UNIT-Ba SlXfJ?S K nt4CHUC4-BARRBR4, NO. 00-50531,08/02/01.The defendant was stopped at a border check point, and questionedabout his citizenship. He was also asked whether he was anyingfirearms or drugs, which he denied. A consent to search was thenrequestedand obtained. The issue was whether the detention was law-ful. Court focused on the duration of the smp, and rejkted any focuson the specific questioning. Thus, as long as the dumtion of the stop isreasonable, an officer is free to ask questions unrelated to the initialpurpose of the stop, which in this w e was checking on immigrationviolations. Court concludes fhat the permissible duration of an immigrationcheckpoint stop is the themsonably necessary to determinethe ciUzenship status of the person stopped, which must be brief. Thestop here tookno more than a iew minnres, which was not unreasonable.Therefore, the search pursuant to consent was proper.SBhTBNCE IN EXCESS OF MAXIMUM VIOLATBD DEFBN-DAhl"S SuSSfAM1AI. RIGiE3 UNDED JYXBS t? GONZ41BS,No. 00-50406,07/09/01.The defendant plead guilty to conspiracy to possess with the intentto distribute marijuana. The factual basis indicated that he agreed todeliver approximately 500 pomds of marijuann The sentence wasbased on a total of 777 pounds of marijuana,md he was sentencedto78 months imprisonment. The defendant argued that this sentenceexceeded the mawimum sentence under the indictment, which wouldbe 5 years since no mounts were alleged Court initially addresseswhether the defendant waived his right to appeal. Court holds themerwas pxoper, and prevented the appeal of d~ug quantity and roleatljushnent issues. The waiver did not preclude an appeal of theAppredi issue tl~ou~gh. Court reviews the test for plain error, and COPch~des the defendant's substantial rights uae affected, since he wassentenced to more than the stmtory maximum. The court notes thatthere are two classes ofqppmdi errors which it has reviewed. Thefinst is a situation in which the indictment alleges drug quantity but theju~y was not instnicted on that element; the other is where the indictmentfailed to allege drug quantity. The latter could have been corrected,but not be former. Co~~rt goes on to suggest that the court has nojurisdichon in those cases. Where the indictment does not allege anenhanced amount, the court has no jurisdiction to impose anythingabove the normal sentence nus was reiterated in United Stafes u.Longoria, No. 00-50405 (5e Cir 7/19/01], which was also a guiltyplea case. There, the court held that aguiltyplea does not waive jurisdictionaldefects, wlich is the me when theindictment doesnot allegean enhanced amount.ERROR NOTTO AJAOW SEVERANCE OF UM(BLATBD COUlWtUiWIHI STXlW is SINGH, No. 00-40946,08/10/01.In this case, the defendant was charged with and convicted of harboringaliens for commercial gain. He was l o charged with being afelon in possession of a hearm, but was acquitted of that offense. Onappeal$ he alleged error in the failure to sever the possession count.Court agrees, noting that the count was not connected or related to theother charges. Because of that, the government was allowed to provethat the defendant had a prior conviction, and that he had beeninvolved in trafncking illegal weaprms. Bis credibility was a criticalissne, since he claimed he did not know be aliens wew working illegally.Since the prior conviction went to his credibility, court holds hewas prejudiced, and reverses the conviction.OClOBlR 2001 WWW.1CDLA.COM VOICE FOR M E DEFENSE 29

CREDIT DUB FOR BRRONBOUS RELEASE: mOMPSON KCOCKRELL, No. 00-40820,08/23/01.The defendant in this case was erroneously elea eased from prlsonand placed on mandatory supervision, which was subsequentlyrevoked. Ill this 8 3254 writ, he asserts he was not giwn credit for fietime during which he was erroneously released, which was 166 days.Cour~hoIds tl~atunder Texaslawuphen a defendant is released tlunughno fault of his owl, he is entitled to credit for that time. By failing togive Thompsor~ credit for that time, the state lengtl~ened his cou6nement,which impliates the due-procm clause. The court holds U I ~decision to deny credit for Ulat time was arbitmy, and incons~stcntwith the requirements of due-process. Thompson also alleged a dueprocessviolation based on the revocation of llis good time credits.Hmerer, courfs holds that was tl~e result of his own conduct, and wasproper.S~ICIENCY-FELONY IN POSSESSION: mmK 1WilD3, No. 00-40393 07/13/01.The defeudaut was chaged wit11 and comicted of possession of afireavn~ folio\\tng a conviction for a domestic violence offense. 'Rvoconvictions were alleged, oue of wl~icl~ was recklm conduct and tl~eotlm terro~istic threat. fie reckless couduct charge was based on anallegation that the defendant placed tile victim in irmniuent danger ofserious botllly iaju~y by pointing a firearm at IIM: To constilute a c ~keof dou~esticviolence, the offe~~se ~mst have as an elenlent the attempteduse of physical force, or the threatened use of a deadlyCourt holds that ueither offense nlects that dehitioa Dmdly conductdoes uot require that the defendmt acch~dy use l~lqsical force, nordocs it require that tltcre be any attempted use of pl~ysicd force. Courtdso holds that pou~tmg aweapoo at sonleone is not thesameas illreateniugto use tl~e weapon. The offense ofterroristic tl1re3t also docs notinvolve the zctual use of pl~ysial force. Therefore, tltere wa no evidenceto convict the defe~idant of the offense since laeither of the tvoconviclio~ls prol~ibited him froo~ possessiug a weapoi). An interrstingaspcctoffl~ls decision, is that this point was raised iua Ilia1 brief. Courtholds that siace the issue isupl~ether the facts support a conviction, theerror C ~ be I mised in spite of any wherSENTBNCING--DOUBLE COUNTIXG HELD PROPER: UNITEDSTATBS K CILLEWU), No. 00-30331,08/09/01.The defend;u~t was inihidy stopped for following too closely behinda tmctor t~ailer truck. When t11c driver of the nr exited, the defa~dmtgot in, ;old sped awav Bhigh speed chase ensued, in which the dcfendmtstruck another vehicle, drove outo a median caosulg workers tojump out of the way for their safety, a d drove in of 120 ~uilesper 11our. He also passed ~IIIG~S on the right sfionlde~ and almoststruck a police vehicle. The court enhanced his senteuce based onreckless endangerment dming fight, md also for aggtrwated ass;aultagainailst a iw enforcement officer. He xgued tltat IS in~perndssiblesince the conduct occ~~crcd 111 the same cbase. Court holds the focus ison the teruporal and spacial relationship behVeen the acts. 11 they areseparated in time ;u~d space, tl~enha~~ceu~euts for both call be wed.Ifere, there was a sepantion behveen the acts, aud therefore there wasno aror in messlug eenhaceementshr both the thrmt to civilim, mdeedau~gering a police officer.DUB PROCESS VIOLATED IN DISCIPLINARY PROCEEDINGS:BROUSSARD J! JOHNSON, No. 00-20432,06125101.The defendant \vas an imate in TDCJ. Infonuation was receivedham a confidential infornmt that the defendant was planning anescape, and that bolt cutters had been hidden in the kitcl~en area, Anofiicer was dispatched to investigate, and the bolt cutten were found.The defendant W;LS subsequently charged in a disciph~a~y hearing. Atthe hearing the iuvestigating officer testified regarding the informationprovided by the ioforrnant. He had not intewiewed the iafom~ant, anddid uot know his identit): or anytlliog else about the tip. Court coecludesthe fdure to support the reliability of the infonuant \>iolated thedefendants right to due-process. Tl~ere wns noting to assess the credibilityof the informant, since the ody witness did not know an)?i~ingabout the tip or wlio it came fr0111EVIDENCE HELD INSUFFICIENT FOR FELON IN POSSES-SION: UNITED STATP? J! OSBORNE, No. 0-10R62,08121101.The defendant was charged with beiug a felon in possession ofammunition, The prior conviction was out of Illinois. At oolle time,lllinois restored civil rights to conricted defendants after 5 years. Therlefendant's rights wcre so restored and 11e received notice of that.Subsequentl): Illinois changed the statute lo bar felons from ever possessinglireanas. Construing the laaguage of the statue, court holds thatthe subsequent action of the lllinois kgislahlre did not affect tile defendant.His rights had clearly been restored, even tl~ough it TKIS 5 yearsafter his release. Therefore, he did not co~nmit a crin~e, and his conlictionis set aside.HEMSAY- NO TRUSTWORTHIhTSS IN ORAL TESTING OFBUSINESS RECORDS: UNITED STATES I! SCOn, No. 00-10134,OR/I6/01.Ucfcndant \\.as charged with several otl~e~s with conspiracy to distributecocaine base, end distribution of cocaine lxw. The strongesttestimony against her wm boa a cooperating \\'ilness, who testifiedthat he and his partner routinelykept ledgers regarding drugs they soldto others. Tl~ose ledgers wcre roulinely destroyed and he had no personalknowledge of the defendant's involve~nent. However, 11e recalledsome mention in the records of dmgs sold to the defendant, and alsorecalled a conversatio~~ with anotl~er person concerning w11;1t they hadsold the defendant. The other person did not testif$ Courts l~olds tlwewas no indicia of trustworthi~~ess to allow tile adn~ission of testinm~yco~~cerning the records, since they were made years earlier, and draftedby sonleone else. Court also l~olds that ad~nission of the lestimo~~y11x1 a subsraotial inlpact on the verdict, ;u~d reversed the con\'iction.SENTENCING ENHAYCEivlENT HELD ERRONEOUS: OiVITEDSTATES J! VILIARREAL, No. 99-41-095,06111101.Defendant was charged among other tllings with finud in conoectionwith an irlentific;~tion docnmeut. The indictn~ent alleged that ll~edocun~enl ~ras a birth registr;dion form from the City of El Paso, andalleged it \\.as a persond ide~~tification rlocument. The IIILY~III~III selltmceis 3 yem, unless the docun~ent is a personal identificatio~~ card,11irtl1 cer~ificate, driver's licence, or identification document issued by30 VOICE FOR THE D€I%NSE WWW.TCDU.COM OCTOBER 2003

or under the authorily of the United States. The ju~y was only asked todeternline wl~ethcr the defendant mu iwoloed with an identificationdocument. Court llolrls that without suc11 a finding, a sentence overll~ree years was errox Reviewing the test of piail error, court finds theincre:lse UI sentence affected the fairness, integrity or public reputationof the judicial proceedings, and rcve~sed the sentence.EXCEPTION FOR 2241 PETITIONS: flPPeRY K CHAh"LER,No.99-41-4161,6/0WOI.SlGNlRCLLNe DECISIONS REPOReHEARSAY-EXCITBD LiTlERANCE EXCEPTION: Reyes v.Strrte, No. 02-00-283-CR, 6/14/01.Police officer arri\res at scene of mault 5 minutes afier receiling a911 cd. He described the complainaut as upset. \Vhen he aked herul~at happened, she said "He [the defendant] hit me." COA 11okIs thissatisfies TRE 803(2), the excited utterance rule. COA also r~lles thatstatements by the two clddren of the con~plainanl in respollse to theofficer's q~~estions were also excited utterances.IThis opinion is subslihlted for the palel opinion eillered onNovember 27, 2000. The petitioner fled a petition under 28 USC S2241, alleging a claim bnsed on the holdu~g of Richcirdso~~ 11. UnitedSt&s 526 US 13 (1999), wl~ich required ~III). unanin~ily in CCEcases. He filed a 2241 petition, alleging the remedy under 2255 \\'ainadeq~lale and ineffective. Court holds that limitations on second orsuccessive pctitio~~s do not nuke the remedy under 2255 inadequateor ioeffective. Inste;~d, the pelitiot~er nmst establish his claim is baedon a relroacli\~ely applicable Supreme Court decision mluch estblishedtllat tl~c petitio~~er inmay have been co~irictetl of a nonesislentoffense, and the chim imust Iuve been foreclosed by circuit llav at ll~etime wl~en the claim sl~ould have been i:~ised. Court holds thatRichrdso~r is ~'etroaclively applic:~ble. However; because the decisiondoes not establish that petitioner was innocent, or convicted of a nonedstcntoffense, relief TVIS denied.COMMENTS ON SILENCE POI,I,OX'ING ARREST HELDIMPROPER: UA'ITED E RODRIGUEZ, No. 99-10-982,07/30/01.The dcfe~~danl mas convicted of misappropriating postal funds.Postal investig;!tors obscwed llin~ mke hvo hags of money and placetl~em in a lockel: They confronted 11iu1 and placed him under arrest,illen questioned him about what llad occurred. Ile refused to answerquestions, in\zoking his right to remain silent and requesting a Iauyl:At trial 11e testiGetl that what he did urns to expose Uaws in postal secorityProsecutor questioned him about the failnre to make Illat claimwhen initidly questioned. He dso arg~~ed hat the stoiy was not crediblebecause it was not made at the first opportunity to do so. Courtl~oltls tlte prosecutor improperly used the defend;u~Us post-arrestsileace. Since the comments were tied tiirectly to the defendant's credibilityand the plamibility of his testimon): reversal was requiretl.COURT OF APPEALSHEARSAY-MEDICAL KECORDS EXCEFI'IOIOIY: Sfl~rdorirll 11.Sfnte, No. 01-00-00956-CR, 6/7/01.The medical records exception to the l~earsay rule, TRE 803(4), isnot linlited to shtements made by the patient to he doctor. A statementmade by the parent of an injured child to the doctor is also atlmissibleunder the rule. This is a case of first impression, ;~ccording lo the COA,becauseof the hvo prior Texas cues ti~at discuss the issue, one did not baseits decision on the rule and the other did not discuss it. COA relies onfedenl cases.[Case is noteworthy for the dissent, wl~ich exl~aostively analy~ss therule to urge its strict limitation.]ARRBST: Rodrigrrez u. Sfnte, No. 04-00-00710-CR, 6/13/01COA holds that a defendant is under arrest. and hence able to challeiigestatus for lack of probable cause if: (1) the suspect is p11)vicdydepri\d of his freedom in any significant way; (2) wl~en a law eeforcenlentoffice~s tells a suspect he may not leave; or (3) wllen a lawenforcen~ent officer creates a situation that woould leave a reasonablepelson to believe tl~at his freedom of moven~ent 11% l~een significantlyrestricted and d ~en there is probable cause to arrest and u41en theofficer has not told the suspect he is free to leave.HEARSAY- REQUIREMENT: Ledhetter' v.Stnte, No. 07-99-0417-CR, 6IlY01.Case constmes the una\~ailability requirement of TRB 804(b)(l)uhere the decla~mt nmst be unavdable for the hea~x~y exception toapply Here, tile witilness testified at fils1 trial, and \\as cross enaoined.Before the second trial, he was s e ~ witl~ d a subpoena 3 weeks beforehid. No writ ofattachment was issued to con~pel attendance where prosecutionknew witoess wo111d not attend trid before it conn~~enced. COA l~oldsthat w11ile merely issuing a subpoenawoould not be sufficient to establisl~una\~dabilit): sening it is. A writ of attacl~ment is not necessaq toaUow hearsaySI'IPULATION OF DWI PRIORS: Ororla a St&, No. 08-00-196-CR, 617101).Case construes limits of Tmez u. Stote wl~ere CG\ held that adefendant could force state to stipulate to prior DWs, in a felony D\Vlcae, and avoid use of those prio~s at guilt innocence stage of tdd. COAhere holds that Tmez does 1101 olean the prion can never be oelltioned.Thez merely limits the srate to reading only hvo allegationsto the ju~y anti limiting the evidence to the stipula' ' lolls.NOTICE OF APPEtU: ,llnr611t u. Stflte, No. 10-01-090-CR,6/13/01.Alost courts have held t11at TMI' 25.2(b) - the notice of appdrequirement following a negotiated guilty plea - is satisfied even witha general notice of appeal if the record reflects a satisfxtion of therule's other requirements: apretrial motio~~ or tile coort's permissionto appcal. COA holds that those cats were incorrectly decided andrefoses to follow them. The rule of substantial compliwce does notapply here.OClOBER 2001 WWW.TCDLA.COM VOICE FOR THE DEFENSE 31

COURT OF CRIMINAL APPEALSPDRs Granted in August 20010594-01 ADAME, BOBBY 08/01/01 S Hill Aggravated Robbe~y(037///141)1. The Court of Appeals erred in holding that the evidence waslegally insufficient to support the juty's finding of the use of a deadlyweaponin connectionwiththerobbery. Is there a requirement that thestate show that the "BB" gun was actually loaded to prove the "use ofa deadly weapon" under Penal Code 3 1.07(A) (17)?0632-01 BOGPT, JAMES 08/01/01 S Bexar Criminal Mischief(040///624)1. Did the Coua ofAppeals err to hold that a defendantwas entitledto a seKdefense instluction wlm he was not eha.qed with an offensernvolving the use of force against another?0733-01 CUELIAR, RUDY VALENTINO 08/01110 1 Val VerdeUnlawful Possession of Pirearm by Felon (040//U24)1. In a prosecution for the offense of felon in possession of afirearm, can a prior felony conviction for which the defei~dant wasgranted probation, and at the completion of the probationary period,the indictment was dismissed and the defendaut was released from allpenalties and disability resulting from the conviction, seme as theunderlying felony comiction?ISSUES GRANTED AND PENDINGIN SUPREME COURTArgun~entscheduled for October 2001:No. 00-6933, Lee, Remoll e Kemma, Sup!., CrossroadsCorrectianalCenter, 8th Cir. (213 E2d 1037)1. Did the 8" Circuit err by &rming the district court's denial ofa petition for habeas corpus because a defendant's due process rightsurere violated wl~en the ttial court refused to graut 11h1 a 19-hour continuanceto contact his three subpoenaed alibi witnesses uho uncxpectedlydid not regurn after a lunch break?2. Should a habeas corpus hearing have been held to at least considerthe testimony of the alibi witoesses?3. Has Lee m& a substantid shou~g of actual im~ocence, for hisalibi witnesses to be explored furtl~er to preveut a fundamental miscarriageof justice?No. 00-0957, Kansas \! Cme, Michael, from %mas Surpenw COIII~(7 P3d 285)Does the 14x Amendment's due prom clause require a state toprove that a sexually violent predator " mot control" his criminalsexual behavior before the state can civilly commit him for residentialcare and trstment?Arguments scheduled for November 2001:No. 00-9285, Walter Mlckens, Jr. %! Warden Taylor, 41hCircuit (240E3d 348) (capital murder)Did the Court of Appeals err in holding that a defendant must showan actual confuct of interest and an adverse effect in order to establisha SiBh Amendment violation where a trial coud fails to inquire into apotential confuct of interest about which it reasonably should havehownlNo 00-973, United States v. Alphonso Vonn, 9h Circuit (224 R3d1152)1. WheUler adistrict court's failure to ause a counseled defendantat his guilty plea hmhg that he has the tight to the assistance of counselat Mal, as required by Federal Rule of Criolinal Procedurell(c)(3), is subject to plain-error, rather than harmless-error, reviewon appeal wlmtl~e defendant fails to preseme the claim of error in thedistrict court.2. Whether, in determining if a defendant's subsrantial ~ights weredected bya district court's deviation from tl~erequiremeuts of FedentlRule of Crirnind Procedure 11 (c) (3), the coua of appeals may reviewonly the tlanscript of the guilty plea colloquy, or whether it may alsoconsider other pairs of the official recordNo. 00-1260, United States e Mark James fights, 9~ Circuit (219E3d 1138)Whether respondent's agreement to a tem of probation thatauthorized any law enforeenlent officer to search his person or pemniseswith or without a walrwt, and with or without iudkidualized suspicionof wrongdoing, constituted a valid consent to a search by a lawenforcement officer investigating cri~nes.Cat. Granted but Argcunent not yet scheduled:No. 00-8727, Ernest P McCamer v. North Carolina, Supreme Co11rtof North Carolina (capital omrder)Whether signihnt objective evidence demo~~strates that nationalstandards ha\% evolved such Illat execwing a mcntdly retarded manwould violate the 81hAnlendn~ent prohibition against cruel and unusnalpunislmeut.No, 00-1187, avid R. McKune, Waden, el al., v. Robert G. He,10th Circuit (224 E3d 1175)Does the revocatron of correctional institution privileges violate the5Ih hendn~ent's p~ivilege against sex-incrimination wl~cn the prison-32 VOICE FOR THE DEFENSE W.TCDM.COM OClOBER 2001

er has no liberty interest in the lost privileges and such revocation isbased upon the prisoner's failu~e to accept responsibility for thiscrimes a part of a sec offender treatment program?***Both the Supreme Court and CCA were still an summer brakwhen this issue was prepared. HNo. 00-1519, United States v. Ralph Ariw, 9" Circuit1. Whether the court of appeals er~*oneously departed from thetotality-of-the-eircumstanu~s test that governs reasonable-suspiciondetermhtions under the Fourth Amendment by holding that sevenfacts observed by a law enforcement oBcer were entitled to no weightand could not be cansidered as a matter of law.2. Whether, under the lotaliq-of-the-circumstances test, the BorderPatrol agent in this mehad reasonable suspicion that justfied a stopof avehide near the Mexican border.No. 00-9280, WilJiam Kelly v. South Carolina, Supreme Court ofSouth Camlina (540 S.E.2d 851) (capital murder)Did the trial judge's rebsal to inform a capital defendant's sentencingjury that he woltld never be eligible for parole if the july sentencedhim fo life imprisonment, mthcr than to death, violate Mmmons v.South Carolina, 512 U.S. 154 (1994)?The menlioned abwa aresyaopsas of opinions of Le appeals muns lmdSignilileaM Dwiiionr Repert wasrepomd byCynthia 1. Hamplon, Edmr Mke Chados Assislant Ediior1Weinnte ailmmmeots andconst~lvwilidsmfrom our membersandVoles for fhe Defense readwsPLEASE E-MAIL OR FAXJohn Canoil- WIICEEdiior .)canol!@ihemail.wm.210-829 0734TheSORS pnnlmg mst afunded hyThe Juddd BCoonTaining Fund andadminislared by theTexas Cwn of CfiminalAppeals

34 V01- FOR THE IMVENSR WWW+TCDM.COM OWOBBR 2001

jSEPTEMBER 1 3-14, 2001, KERRVILLE, TEXASYO. RANCH CONFERENCE CENTERA HUGE SUCCESSShnron and Grant Scheiner ofHow#onLois andPhil Wischkuemper ofLubbockAndy Nogueras of Mc Alle-tzRachel McClanzmy ofAustinOClOBlP ZOO1 WWW.TCDM.COM VOICE FOP WE DEFENSE 35

llW GuadalupeSamuel 8. Bast!. PartoorW d Certikd - Criminal LawTexaskd of Legal SpializAoo)Minton, Burton, Foster & CdinsAttoioeyr at Law, P.C.TwIRh Street OfiaAustio, TexasDimlLine: 411.0144Fa (512) 47643lSLegal Arrijlant:Sheila CwkAugust 20,2M)1TCDLAAttn: John Carroll6W West 13* StreetAustin, Texas 78701RE: Letter To The EditorTo Whom It May Concern:During my first interview with Bill Allison in 1986, he told me that a choice to work incriminal defense was a choice lo "represent people who are different." He understood the highcalling of fighting for he rights of our society's most despised. Towering in stature and in ideals,Bill went on to shepherd me through my early years in the profession.It was a privilege to work with Bill as a U.T. law student, law clerk, miate and partner forfifteeo years. His tenacity and dedication to the profession are an example I will carry with me forthe rest of my career.Sincerely,Samuel E. Bawl36 VOICI FOR THE DEFENSE WWW.TCDU.COM OCTOBER 2001

LETiERS TO THE EDlCORVoice for the ~ ~600 West 13~" St,f ~ ~ , ,Austin, TX 78701TCDLAMEMORIALIZESCHARLES BALDWINQUIN BRACKETTJACK H. BRYANTPHIL BURLESONWARD P. CASEYC. ANTHONY FRILOUX, JR.EMMETT COLVlNKNOX JONESGEORGE F. LUQUETTEDAVID A. NIXDON R. WILSON, JR.GEORGE ROLANDRICHARD W. HARRISPlwse consider o memwiol giif to TCDLEI in thename of these or other TCDIA members SinceTCDLEl is a 501[c/[3) ~goniratim, your gih islox deduatde. Send ywi donofion fa the TCDLAofke at 600 W. 13th Street, Austin, 7X 78701OCTOBER ZOO1 WWW.ICDLA.COM VOICE FOR THE DEFENSE 37

TCDLA endorses The Center forAmerican and International Law(fomesly The South\veste~n kgal Foundation)in itsCapital Tdal Ahoy PropJanuary4-11, 002tidpunb \\ill l.rrri\c h~ctl~mio~~ oll tllrsllblw n~d p~aaiceofclpital &fmzeli~itdio11.hlilch d dtr inwdon \\ill k u~u~i/crl :uuulld a II\IIIJI~~T~C~ cu:

#TCDLA MEMBE-HIPBENEFITSYour membership includes a l0.issue subscriphon to TCOLA's ollicral lournalIt is oackeo with detailed anlcles and mollons. wnneli bv and for defenseReceive tmely upoates abo~l developments in Texas criminal law, thloughthe Srgn~llcant Decisions Repot our web site, ltst service, and at TCOLA seminars.Only our members receive discounts on seminars and publications.Whenever zealous advocacy results ln threats of contempl against you. thebest criminaldclense anorneys in he state will coma to your delense.Your membership includes a motions disk containing M commonly needeamoti~s to make your pactice easier.Wnen you become a me.mber, yo^ w.ll be included,~ the annual membershipdrrectory, a valdable reoource to locate defense lawyers th~oughoutthe state.Add your name to the TCDLA rollso support its programs as if educates the legislature, public and criminalIdense bi '"r'il;:i;.*;G%A?.# & -4; &We need your help to support the onlyvoice for the defense in Texas on key constitutional and criminal justice policyquedions. Contribute to a committee such as the Amicus Curiae Commitmeand let us know who you know in the legislature.A member in good standing of the State Bat IA?xas (student and affiliate applicants excepted) who is engaged in theoefense of criminal cases is eligible for membership upon appioval ofapplicabon and receipt of annual membership dues. An applicationmust be endorsed by a member in good standing. Members of the judiciary(except honorary members) and those regularly employed in aprosecutorial office are not eligible.