AY 1984 - Voice For The Defense Online

as to call for an exercise of this court's power ofsupervision;2. When a state court of last resort has decided a federalquestion in a way in conflict with the decisionof another state court of last resort or of a federalcourt of appeals;3. When a state court or a federal court af appeals hasdecided an important question of federal law whichhas not been, but should be, settled by this court, orhas decided a federal ouestion in a wav in conflictwith applicable decisions of the u.2. SupremeCourt.3. Preliminary Mattersa Counsel for petitioner shall enter an appearance, paythe docket fee ($200.00, to be increased to $300.00in a case on appeal or Writ of Certiorari or in othercircumstances when oral argument is permitted), andfile, with proof of service as provided by Rule 28.40copies of a petition which shall comply in all respectswith Rule 21. The case then will be placed on the docket.It shall be the duty of counsel for petitioner tonotii all rexpondants, on aform supplied by the court,of the date of filiig and of the docket number of thecase.4. Contents of the Petition for Certiorari-Rule 21.a. Petition for Writ of Certiorari shall contain, in theorder here indicated:1. The questions presented for review, expressed in theterms and circumstances of the case but without unnecessarydetd. The statement of the questionsshould be short and concise and should not beargumentalive or repetitious. The statement Of aques'tion presented will be deemed to compriseevery htbsidiary question fairly included therein.Only the questions set forthin the petition or fairlyincluded therein will be considered by the court.2. A list of all parties to the proceeding in the courtwhose judgment is sought to be reviewed, exceptwhere the caption of the case in this court containsthe names of all parties. This listing may be done ina footnote. See Rule 28.1.,3. A table of contents and table of authorities, ifrequired by Rule 33.5.4. A reference to the official and unofficial reports ofany opinionsdeliveredin the courts or administrativeCagency below.S. A concise statement of the grounds on whieh theIL 10 VOICEfor the DefemefMay 1984jurisdiction of this court is invoked showingi. The date of the judgment or decree sought to bereviewed, and the time of its entry;ii, The date of any order respecting a rehearing andthe date and terms of any order granting an extensionof time within which to petition forcertiorari; andiii Where a crowpetition for writ of certiorari isfiled undm Rule 19.5, reliance upon that ruleshall be expressly noted and the cross-petitionshall state the date of receipt of the petition forcertiorari in connection with which the crosspetitionis filed.iv. The statutory provision believed to confer onthis court jurisdiction to review the judgment ordecree in question by writ of certiorari.6. The Constitutional proviswns, treaties, statutes, ordinances,and regulations which the case involves,setting them out verbatim, and giving the appropflatecitation therefor. If the provisions involved arelengthy, their citation alone will suffice at thispoint, and their pertinent text then shall be setforth in the appendix referred to in subparagraphI&) of this Rule.7. A concise statement of the case containing the factsmaterial to the consideratiim of the questions presented.8. If review of the judgment of a state court issought,the statement of the case shall also specify the stagein the proceedings, both in the court of first instanceand in the appellate court, at whieh the federalqueations sought to be reviewed were raised; themethod or manner of raMig them and the way inwhich they were passed upon by the court; suchpertinent quotation of specific portions of the record,or summwy thereof, with specifii reference tothe places in the record where the matter appears(e.g., ruling on exception, portion of court's chargeand exception thereto, assignment of errors) as willshow that the federal question was timely and pmperlyraised so as to give this court jurisdiction to reviewthe judgment on writ of certiorariWhere the portions of the record relied upon underthis subparagraph are voluminous, they shall be includedin the appendix referred to in subparagraphl&) of this Rule.9. If review of the judgment of afederalcourtissought,(oonfinued on page 19)

SIGNIFICANTDECISIONSEDITOR: Kerry P. F~trGeraldRichard A. AndersonDavid BotsfordCatherine Greene BurnettJulie HealdArch C. McColl 111David W. Coody. .VICENTE WZA, No. 1154-83, Opinion on D's PDR, Rev'd, Per Cwiam, 4/11/84.1NEW TFXAL GRANTH) IN ABSENCE OF VALID WRITrm WAIVER OF RIm TO JURY TRIAL: CCA agreedwith D's contention that the T/C comnitted fundamental error in conducting a trialbefore the court in the absence of a valid written waiver of D's right to trial by jury.Court distinguished Foster, No. 1-83-5-CR, delivered 9/29/83, Pet. ref'd wherein it wasclear that a written waiver had in fact heen executed by the D. Although the waiver oftrial by jury had apparently been lost or misfiled in Foster, circumstantially theevidence was clear that the written waiver had been executed.DEWEX HOSXIE, No. 867-83, Opinion on D's PDR, Judgment of C/A Rev'd, Prosecution ordereddismissed, Judge Campbell, 4/11/84.AaGRAVATEl RAPE INDIC'IMEWT m Y DEFETIVE: Aqg. rape indictment alleged inpart that D did intentionally and knowingly compel a f-e to suhnit to sexual intercourseand:"Did then and there intentionally and knowingly by act or mrds, and deedsccarq?elX to suhnit to sexual intercourse by placing the said X in fear of seriousboaily injury".Section 21.03(a)(2) P.C., in effect at the time of the offense, rayired that the threatconveyed be of "imninent" infliction of serious Mily injury. The court held that thefailure to allege imninent hang rendered the indictment fundamentally defective.WDaniel, 642 S.W.2d 785.''The State attempts to distinguish McDaniel, supra, by contending that thesecond allegation of 'then and there' in the indictment is sufficient to allege a threatof imninent serious H ily injury. While we agree with the State's contention that'then and there' means 'at that time and at that place', we find that, as this indictmtis worded, the phrase in question refers to wken and where the threat was madeand not to the nature of the threat. "May 1984/VOICE for the Defense SDll

IMPROPER JURY 2AXmmTr NOT HARMFLTL TI D: C/W testified that D robbed him at gunpointand that the D had worked for him prior to the offense for a period of twr, mnths atwhich tim he fired D. The D testified as to an alibi. The prosecutor then argued tothe jury:"First of all, I would like to thank you for your time and the attention thatyou have put irrto this case. It hasn't been a very long case and it probably could havebeen just one witness, it could have been Pfr. Charles W. Cooley (the C/w) who would cometo the stand and say 'It was this man that robbed me at gunpoint'. And let me tell youwhat Mr. Cooley asked me yesterday. He said, 'Wm's on trial here?'. That's what Mr.Cooley said. "The court sustained D's objection and instructed the prosecutor to stay within thetestimny but overruled D's W o n For Mistrial. Clearly any non-tes-al statementmade by the C/w to the prosecutor was outside the record and was impmper. The questionremaining was wkther in view of that determination, the argument was harmful to D, andthe court concluded that it was not."Proper jury ar-t W t fall within one of four general areas: (1) smtionof the evidence; (2) reasonable deduction £ran the evidence; (3) answers to argumentof opskq counsel; and (4) plea for law enforcement. Todd v. State, 598 S.W.2d 286(Tex. Cr. App. 1980). Error exists when facts not supported by the record are interjected.BeMykill v. state, 501 S.W.2d 86 (Tex. Cr. App. l973). Hmver, such erroris not reversible unless, in light of the record as a whole, the argmamt is extremeor manifestly inproper, violative of a mandatory statute or injects new facts, harmfulto the accused, into the trial."A well reasoned dissent by Clinton stated in part:"Analysis of this question (i-e., whether the error requires reversal)I., requires consideration of not only the record as a whole, including the facts adduced,the issues involved, the nature of the offense and the verdict, but also the possibilitythat the conviction resulted frcw passion or prejudice engendered by the argument, orIfrm the jury's consideration of matters other than evidence duly processed according 1to law . . . It follows that a patently egregious -tmightbe rendered harmlessby other attributes of the case such as overwhelming evidence or the failure of theargment to touch a material issue. . . Conversely the very argmentwhich ;ippearsinnocuous in one case might constitute reversible error in another. In sum, thisIdetermination can only be made case by case. Mayberry v. State, 532 S.W.2d 80 (mx.ICr. App. 1976). 1Standing alone, the improper arqument complained of here does not appear tobe pactinilarly extra, and no doubt would not require reversal if repeated in saneother cases. However, as chronicled above, the only real issue in this case was whether 1the jury believed beyond a reasonable doubt that a man all parties F e d was upstanding,was correct in identifying the accused as his assailant. Thus, the prosecutor'sinforming the jury that the C/W had asked him, 'h's on trial here?' injected inadmissibleinformation into the proceeaing which had the effect of bolstering the credibilityof the very witness whose credibility was in question. I%rewer, this new infomtioninferentially indicted defense counsel for utilizing improper tactics in the defense ofAppllant, when, in fact, his technique was beyond reproach. And finally, interjectionof the C/W1s query was calculated to operate on the emotions of the jury by castigatingan inclination any juror might harhour to believe Pppellant or reasonably doubt theISDl2 VOICE for the Defensfiay 1984

~SD-14CH?4EUES SWEEN, Nos. 64,087 and 64,088, Tm murder convictions, Rev'd, Judge McCormick,4/18/84.D'S CONFESSION WAS THE PRODUCT OF AN ILLEGAL ARRFISF-ADMISSION W ERROR: On January 9Kilgore and Longview police officers were called to a hdcide scene in Kilgore.Officers found bodies of two white males, Mike Haase and Wally Parks, in a rear bedrmof a house. It appeared that both victims had died as a result of shotgun wounds.Under the body of Wally Parks was found a handwritten note hearing the signatwe"Chuck". One shotgun shell was found at the scene. Wngview Officer Mike Maxey recalledthat on January 8 he had received a telephone call from the D regarding the two victims.Maxey had known the D for over two years. During this telephone conversation, the Dtold Maxey that the two victims had burglarized his home. In addition he had mentioneda shotgun. Maxey mentioned the D's name as a possible suspect and then he and fourother officers went to the D's house in Longview.When the group reached the house, two officers knocked on the front door. The D's wifeanswered and invited the officers in. When they asked to speak to the D, she led theminto a bedroom where the D was in the process of getting out of bed. An officer noticedin the room a shotgun hanging on the wall some five to eight feet from the D. The D,in response to a question, said that the gun was his and it was loaded. A pistol wasalso seen lying in plain view on a closet shelf and the D stated that it was also his.The officers seized both weapons, with the D's consent. The D voluntarily agreed toaccompany the officers to the sheriff's office.When the D reached the sheriff's office at about 10:45 a.m. he was taken to one of theoffices, was read his Miranda rights and signed a waiver form. Four officers questionedthe D for about an hour as to his whereahouts the previous 72 hours. During this timethe D told the officers that he and a friend had been target shooting on January 7 outon some rural property he owned. The officers then contacted a district attorney'soffice which advised that the officers could hold the D for investigation without filingcharges. The D, although not formally arrested, was placed in jail. Later that sameday the officers asked the D if he would take them to his property where he had been' target shooting and he complied. At least three armed officers accompanied the D tothe farm in question, where the officers found some .12 gauge shotgun shell hulls onthe ground. The shells were similar to those taken from the D's gun and similar to thehull found at the mder scene. One officer fired the D's shotgun for the purpose ofretrieving an empty hull for use in a bullistics test.The officers returned the D to the Gregg County Courthouse and put him in jail. At8:00 p.m. the D was removed from his cell and taken to the district attorney's officewhere he was read his Miranda rights again and questioned for two hours by two officersand the district attorney. At the end of the interview the D agreed to take a polygraphexam the nextmming in Tyler and the D was taken back to jail.The next rmming at 7:30 a.m. the D was driven to Tyler by ism officers and was given apretest interview by the polygraph examiner. At the end of the interview the D told theexaminer he did not want to take the polygraph exam but he did want to talk with MikeMaxey. When the D was alone with Maxey, he admitted cortunitting the murders. At thesame time Maxey was talking to'the D, another officer learned that the bullistics testhad come back positive on the D's shotgun. The D was then formally arrested and takenback to Longview where he was taken before a mgistrate and arraigned on two murdercharges. The D was then taken to the district attorney's office where he began givinga written statement at 12:15 p.m. which culminated in his signing the statement at2:00 p.m. on January 10.VOICE for the Defensepay 1984

The record is clear that from the first time the D was placed in the Gregg County Jailat 12 p.m. January 9, he was in custody. This investigative detention was clearlyimproper and mted to an illegal arrest. Ussery, 651 S.W.2d 767. Probable causedid arise on the mrning of January 10 when the D admitted to Maxey that he had cdttedthe double mders and anothxc officer learned that the bullistics test on the D's shotgunwas positive. The existence of probable cause'at this pint in time does not negatethe illegality of the D's prior detention. It is important, though, in determiningwhether the D's confession was the fruit of an illegal detention.A confession obtained through custodial interrogation after an illegal arrest should beexcluded unless intervening wents break the causal connection between the illegalarrest and the oonfession so that the confession is sufficiently an act of free willto purge the primary taint. Taylor v. Alabama, 102 S.Ct. 2664, 73 L.Ed.2d. 314 (1982);Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Fd.2d. 824 (1979); Brown v.Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Fd.2d. 416 (1975); Townsley, 652 S.W.2d515 S.W.2d 700.1791; Duncan, 639 S.w.2d 314; e,In Brown, supra, the S.Ct. set out four factors which mst be used in analyzing whetherthe confession was an act of free will. First, whether Miranda warnings were given--and they were in this case but the warnings alone are not sufficient in and. of themselvesto purge the taint of an illegal arrest. Second, the proximity of the confessionto the arrest--the D confessed ahout 24 hours after he was first put in jail. Third,the purpose and flagrancy of the primary illegality--the officers held the D in custodywen though they knew they did not have probable cause to arrest him, which amounted toa flagrant violation of the D's Fourth Arnenihnent rights. Fourth, the presence ofintervening circumstances-the D testified that he felt he was under arrest fran thetime the officers came to his house and that he did not feel the officers would havelet him go home at any time after that. The D was not left alone and was subjected toperiods of interrogation. At one point the D was driven to a rural setting, acccwpaniedby three armed officers. The record clearly allows the reader to infer that the Dwas in fear of his life at this point. "The record before us shows a concentrated1effort on the part of the State to extract a confession from &ppllant, even thoughthe officers involved knew they were holding Appllant without probable cause". UnlikeGant. 649 S.W.2d 30 (Tex. App. 1983), this situation is precisely what Brown was tryingto prevent. The State failed to meet its burden of showing intervening events thatmy have broken the connection between the D's illegal arrest and his confession.ROBERT WILSON, No. 68,048, Rar'd/Accpittal entered, Judge Tom Davis, 2/1/84.SI11TE FAILED TO PRNE INTENT TO DEPRIVE CXWB OF PROPERTY: The C/W grain ccanpanyvoluntarily sold thousands of pounds of mi10 grain to Transco Corp. f m 1974 to1979. The D was the manager of Transco. During several mths in the latter partof 1979 Transco Corp. paid for the shipcents with checks which were returned forinsufficient funds. The State tried the D for theft of property over the value of$10,000 on the theory that the D was guilty as the corporation's mger and thatthe consent was ineffective du? to deception; that the transactions ware really betweenthe C/W and a sham !l'ransco Corp. which was in reality a one-man operation controlledby the D. The proof amng other things showed that Transco Corp. was organized inDec. 1972 and that many other transactions occurred wkich ware paid for properlybetween 1974 to 1979. The court noted that the relevant intent to deprive the ownerof property is the accused's intent at the time of the taking. Peterson, 645 S.W.2d807. The court then found that the State had failed to sustain itsburden of proof toshow the requisite intent as alleged. The milo grain was voluntarily sold to theMay 1984/VOICE for the Defense SD-15

IAll of us (well, some of us) have endured the confusion of trafficaccidents and tried to summzrize on those pitifully inadequate insuranceforms in a few words or less exactly what happened. Here are summariesactually submitted when police asked for a brief statement on how aparticular accident happened.* * *Coming home, I drove into the wrong house and collided with a tree Idon' t have.The other collided with mine without giving warning of its intentions.I thought my window was down, but found it was up when I put my handthrough it.I collided with a stationary truck coming the other way.My car was legally parked as it backed into the other vehicle andvanished.A truck backed through my windshield into my wife's face.\A pedestrian hit me and went under my car.The guy was all over the road. I had to swerve a number of times beforeI hit him.I pulled away from the side of the road, glanced at my mother-in-law,and headed over the embankment.The gentleman behind me struck me on the backside. He then went to restin the bush with just his rear end showing.In my attempt to kill a fly, I drove into a telephone pole.I had been shopping for plants all day and was on my way home. As Ireached an intersection a hedge sprang up obscuring my vision.II had been driving for 40 years when I fell asleep at the wheel and hadan accident.May 1984/VOICE for the Defense SD17

LThe accident occurred when I was attempting to bring my car out of askid by steering it into the other vehicle.An invisible car came out of nowhere, struck my vehicle and vanished.I told the police that I was not injured; but on removing my'hat, I foundthat I had a fractured skull.I was sure the old fellow would never make it to the other side of theroadway when I struck him.The pedestrian had no idea which direction to go, so I ran him over.I saw the slow-moving, sad-faced old gentleman as he bounced off the hoodof my car.The accident happened when the right front door of a car came aroundthe corner without giving a signal.The telephone pole was approaching fast. I was attempting to swerve outof its path when it struck my front end.1%No one was to blame for the accident, but it never would have happenedif the other driver had been alert.I was unable to stop in time and my car crashed into the other vehicle.The driver and passengers then left immediately for a vacation withinjuries.$-I?-18 VQI(ZFfor the Defense/May 1984

SUPREME COURT PRACTICE from page 10the statement of the case shall also show the basisfor federal jurisdiction in the court of first instance.10. A direct and concise argument amplifying the reasonsrelied on for the allowance of the writ. SeeRule 17.11. An appendix containing, in the following order.i. Copies of any opinions, orders, findings of fact,and conclusions of law, whether written or oral(if recorded and transcribed), delivered upon therendering of the judgment or decree by the courtwhose decision is sought to be reviewed.ii. Copies of any other such opinions, orders, findingsof fact, and conclusions of law rendered bycourts or administrative agencies in the case, and,if reference thereto is necessary to ascertain thegrounds of the judgment or decree, of those incompanion cases. Each of these documents shallinclude the caption showing the name of the issuingcourt or agency and the title and number ofthe case, and the date of its entry.iii. A copy of the judgment or decree sought to bereviewed and any order on rehearing, includmg ineach the caption showing the name of the issuingcourt or agency, the title and number of the case,and the date of entry of the judgment, decree, ororder on rehearing.iv. Any other appended materials.If what is required by this paragraph or by subparagraphs1(f) and (h) of this Rule, to be includedin the petition is voluminous, it may, if more convenient,be separately presented.b. The Petition for Writ of Certiorari shall be produced inconformity with Rule 33. The Clerk shall not acceptany Petition for Writ of Certiorari that does not complywith the Rule and with Rule 33, except that a partyproceeding in forma pauperis may proceed in themanner provided in Rule 46.c. All contentions in support of a Petition for Writ ofCertiorari shall be set forth in the body of the petition,as provided in subparagraph lo) of this Rule. No separatebrief insupport of a Petition for Writ of Certiorariwill be received, and the Clerk will refuse to file anyPetition for a Writ of Certiorari to which is annexed orappended any supporting'brief.d. The Petition for Writ of Certiorari shall be as short aspossible, but may not exceed 30 pages, excluding thesubjcct index, table of autl~orities, any verbnth quotationsrequircd hy subparagraph l(f) of this Kule, andthe appendixe. The failure of a petitioner to present, with accuracy,brevity, and clearness whatever is essential to a readyand adequate understanding of the points requiringconsideration will be a sufficient reason for denyinghis petition.5. Form of Jurisdictional Statements, Petitions, Briefs, Appendices,Motions, and Other Documents filed with the court.](a) Except for typewrittenfilingspermitted by Rules42.2(c),43, and 46, a!l jurisdictional statements, petitions, briefs,appendices, and other documents fded with the court shallbe produced by standard typographic printing, which is preferred,or by any photostatic or similar process which producesa clear, black image on white paper; but ordinary carboncopies may not be used.(b) The text of documentsproducedby standard typographicprinting shall appear in print at 11-point or larger type with2-point or more leading between lmes. Footnotes shall appearin print at 9-point or larger type with 2-point or moreleading between lines. Such documents shall he printed onboth sides of the page.(c) The text of documents produced by a photostatic or similarprocess shall be done in pica type at no more than 10characters per inch with the lines double-spaced, except thatindented quotations and footnotes may be single spaced. Infoot notes, elite type at no more than 12 characters per inchmay be used. Such documents may be duplicated on bothsides of the page, if practicable. They shall not be reduced induplication.(d) Whether duplicated under subparagraph (b) or (c) of thisparagraph, documents shall be produced on opaque, unglazedpaper 6 % by 9 % inches in size, with type matter approximately4% by 7 M inches, and margins of at least % inch onall sides. The paper shall be fmly bound m at least twoplaces along the left margin so as to make an easily openedvolume, and no part of the text shall be obscured by thebinding. However, appendices in patent cases may be duplicatedin such size as is necessary to utilize copies of patentdocuments.2(a) All documents fded with the court must bear on thecover, in the following order, from the top of the page: (1)the number of the case, or, if there is none, a space for one;(2) the name of this court; (3) the Term; (4) the caption ofthe case as appropriate in this court; (5) the nature of theproceeding and the name of the court from which the actionis brought (e.g., On Appeal from the Supreme Court of California;On Writ of Certiorari to the United States Court ofAppeals for the Fifth Circuit); (6) title of the paper (e.g., JurisdictionalStatement,Brief for Respondent, Joint Appendix);May 19841VQICE for the Defense 19

(7) the m e, post offioe address, and telephone number ofthe member of the Bar of this Court who is counsel of recordfar the party concerned, and upon whom service is to bemade. The individual names of other members of the Bar ofthis Court or of the Bar ofthe hi@est court in their respectivestates and, if desired, their post offke addresses, may be added,but counsel of record shall be clearly identified. The foregoingshall be displayed inan appropriate typographic mannerand, except for the identification of counsel, may not be setin type smaller than 1 1-point or in upper case pica.(b) The following documents shallhave a suitable cover consistingof heavy paper in the color indicated: (1) jurisdictionalstatemehts and petitionsforwrits of ceftiofari, white; [2) mmo.tiom, briefs, or memoranda filed in response to jurisdictionalstatements or petitions for certiorari, light orange; 0) briefson the merits for appellants or petitioners, Iight blue; (4)briefs on the maits for appellees or respondents, light red;(5) reply briefs, yellow; (6) intervenar or amicus curiae briefs(or motions for leave to file, if bound with brief), green;(7) joint appendicesS tan; (8) documents fled by the UnitedStates, or by any officer or employee of the United States,represented by the Solicitor General, gray. All other documentsshall have a tan cover. Counsel shall be certain thatthere is adequate contrast between the printing and the colmof the cover.the document in question, except in the most extraordinarycircumstances.S(a) All documents filed with the court which exceed fnrepages, regardless of method of duplication (other than jointappendices, which in this respect we governed by Rule 30)shall be preceded by a table of contents, unless the documentcontairrs only one item.(L) All documents which exceed three pages, regardless ofmethod of duplication, shall contain, following the tableof contents, a table of authorities (i.e., cases [alphabeticallyarranged]), constitutional provisions, statutes, textbooks,etc.) with ~~rrect reference$ to the pages where they arecited.6. The body of all documents at their close shall bear thename of counsel of record and such other counsel identifiedon the cover of the document in conformity with Rule33.2(a) as may be desired. One copy of every motion andapplication (other than one to dismiss or affirm under Rule16) in addition must bear at its close the manuscript signatureof counsel of record.7. The Clerk shall not accept for Wmg any document presentedin a form not in compliance with this Rule, but shallreturn it indicating to the defaulting party wherein he has3. All documentsproduced by standard typographic printing failed to comply: the fhg, however, shall not thereby beor its equivalent shall comply with the page limits prescribed deemed untimely provided that new and pxoper copies areby these Rules. See Rules 15.3; 16.3, 16.5, and 16.6; 21.4; promptly substituted. If the court shiill fmd that the pro-22.2, 22.5, and 22.6; 27.1, 27.2(b), 27.3(b), and27.4; 34.3 visions of this Rule have not been adhered to, it may impose,and 34.4; 36.1 and 36.2. Where documents are produced by in its discretion, appropriate sanctions including but not limphotostaticor similar process, the foltowing page limits shall ited to diismissal of the action, imposition of costs, or diiapply:ciplinaiy sanction upon cowel. See also Rule 38 respectingoral argument.Jurisdictional Statement (Rule 15.3)65 PagmMotion to Dismiss or Affifrn (Rule 16.3) 65 pages Rule 39 cform of typewritten papers) further provides asBrief Opposing Motion to Dismissfollows:or Affm (Rule 16.5)20 pages 1, All papers specifidly permitted by these Rules to be pre-Supplemental Brief (Rule 16.6)20 pages sented to the court without being printed shall, subject toPetition for Certiorari @Me 21.4)65 pages Rule 46.3, be typewritten or otherwise duplicated uponBrief in Opposition (Rule 22.2)65 pages opaque, unglazed paper. 8% by 13 inches in size (legalReply Brief (Rule 22.5)20 pages cap), and shall be stapled or bound at the upper left-handSupplemental Brief (Rule 22.6)20 pages comer. The typed matter, except quotations, must bePetition Seeking Extmordinay Writ (Rule 27.1) 65 pages double-spaced. All copies presented to the court must beBrief in Opposition (Rde 27.2(b])65 pages legible.Response to Petition for Habeas Corpus(Rule 27.3@))65 Pages 2. The original of any such motion or application, except aBrief in Opposition (Rule 27.4)65 pages motion to dismiss or affirm, must be signed in manuscriptBrief on the Merits W e 34.3) 110oaees - by the party or by counsel of record,AReply Brief (Rule 3'4.4)45 pagesBrief on Amicus Curiae (Rule 36.2) 65 6. Btief in Opposition4. The court or a justice, for good cause shown, may grant a. Respondent shall have 30 days after receipt of a petition,Iewe for the filing of a document in excess of the page limits, within which to fde 40 printed copies of an opposing briefbut such an application is not favored. An application for disclosing any matter or ground why the cause should notsuch leave shall comply in all respects with Rule 43; and it be reviewed by the US. Supreme Court. It should be inmust be submitted at least IS days before the filing date of conformity with Rule 33, shall be as short as possible and

Imay not exceed 30 pages. Rule 22.2. Objections to thejurisdiction of the court to grant the writ of certiorarimay be included in the brief in opposition. Rule 22.3.7. Disposition of Petition for Certioraria. After due consideration the U.S. Supreme Court wdlenter an appropriate order.b. Whenever a petition is granted, an order to that effectshall be entered and the Clerk shall notify the court belowand counsel of record. The case will stand for briefing andoral argument. If the record has not previously been filed,the Clerk shall request the Clerk of the court possessed ofthe record to certify it andtransmit it to the US. SupremeCourt. A formal writ shall not issue unless specially directed.c. Whenever a petition is denied, an order to that effect willbe entered and the Clerk forthwith will notify the courtbelow and counsel of record. The order of denial will notbe suspended pending disposition of a petition for rehearingexcept by order of the court or a justice thereof.8. Briefs on the Meritsa. Time for filing.1. Counsel for appellant or petitioner shall file with theClerk 40 copies of the printed brief on the merits within45 days of the order noting or postponing probablejurisdiction, or of the order granting the writ of certiorari.2. 40 printed copies of the brief of the appellee or respondentmust be filed with the Clerk within 30 days afterthe receipt by him of the brief filed by the appellant orpetiti~ner.3. A reply brief wiu be received no later than one weekbefore the date of oral argument, and only by leave ofcourt thereafter.4. The period of time may be enlarged as provided inRule 29, upon appropriate application.5. No brief will be received by the Clerk unless the sameshall be accompanied by proof of service as requiredby Rule 28.,b. Contents of brief.1. Brief of appellant or petitioner on the merits shall complyin all respects with Rule 33, and shall contain inthe order here indicated:i. The questions presented for review, stated as requiredby Rule 15.l(a) or Rule 21.l(a), as the casemay be.The phrasing of the questions presented need not beidentical with that set forth in the jurisdictionalstatement or the petition for ceritiorari, but thebrief may not raise additional questions or changethe substance of the questions already presented inthose documents. At its option, however, the courtmay consider a plain error not among the questionspresented but evidence from the record and otherwisewithinits jurisdiction to decide.ii. A list of all parties to the proceeding in the courtwhose judgment is sought to be reviewed, exceptwhere the caption of the case in this court containsthe names of all such parties. This listing may bedonein afootnote. See Rule 28.1.iii.The table of contents and table of authorities asrequired by Rule 33.5.iv. Citations to the opinions and judgments deliveredin the courts below.v. A concise statement of the grounds on which thejurisdiction of this court is invoked, with citation tothe statutory provision and to the time factors uponwhich guch jurisdiction rests.vi. The constitutional provisions, treaties, statutes, ordinances,and regulations which the case involves,setting them out verbatim, andejving the appropriatecitation therefor. If the provisions involved arelengthy, their citation alone will suffice at this point,and their pertinent text, if not already set forth inthe jurisdictional statement or petition for certiorari,shall be set forth in an appendix to the brief.viii. A summary of argument, suitably paragraphed,which should be a succinct, but accurate and clear,condensation of the argument actually made in thebody of the brief. It should not be a mere repetitionof theheadingsunder which the argument is arranged.ix.The argument, exhibiting clearly the points of factand of law being presented, citi the authoritiesand statutes relied upon.x. A conclusion, specifying with particularity the reliefto which the party believes himself entitled.2. A brief on the merits shall be as short as possible but inany event shall not exceed 50 pages in length. A replybrief shall not exceed 20 pages in length.3. Briefs must be compact, logically arranged with properheadings, concrse, and free from burdensome, irrelevant,immaterial, and soandalous matter. Briefs notcomplying with this paragraph may be disregarded andstricken by the court.May 1984/~01CE for the Defense 21

9. Rule 36 governs the Brief of An Amicus Cuiae, whichshould follow the same form as set forth above underRule 34 for Brief* on the Merits. Amicus Curiae Brief maynot exceed 20 pages in length d submitted prior to considerationof the jurisdictional statement or the petitionfor writ of certiorari; if submitted in a case before thecourt for mal argument, it shall not exceed 30 pages mlength.E. ORAL ARGUMENT-RULE 381. Oral argument should undertake to emphasize and clarifythe written argument appearing in the briefs theretoforefded. Counsel should assume that all members of the courthave read the briefs in advance of argument. The courtlooks with disfavor on any oral argument that is read from~r prepared text. The court is also reluctant to accept thesubmission of briefs, without oral argument, of any casein which jurisdiction has been noted or postponed to themerits or certiorari has been granted. Notwithstandig anysuch submission, the Court may require oral argument bythe parties.2. The appellant or petitioner is entitled to open and concludethe argument. When there is a cross-appeal or a ctosswritof certiorari it shall be argued with the initial appealor writ as one case and in the time of one case, and thecourt will advise the parties which one is to open andclose.3. Unless otherwise directed, one-half hour on each side isallowed for argument. Counsel is not required to use allthe allotted time. Any request for additional time shall bepresented by motion to the court filed under Rule 42 nothtcr than 15 daysafterservice of appellant's or petitioner'sbrief on the merits, and shall set forth with specificity andconciseness why the case cannot be presented within thehalf-hour limitation.4. Only one counsel will be heard for each side, except byspecial permission granted upon a request presented notlater than 15 days after service of the petitioner's or appellant'sbrief on the merits. Such request shall be by amotion to the court under Rule 42, and shall set forthunth specificity and conciseness why more than one counselshould be heard. Divided arguments are not favored.5. In any case, and regardless of the number of counsel participating,counsel having the opening'will present his casefairly and completely and not reserve points of substancefor rebuttal.6. Oral argument will not be heard on behalf of any partyfor whom no brief has been Wed.7. By leave of court, and subject to paragraph 4 of thisRule, counsel for an amicus curiae whose brief has beenduly filed pursuant to Rule 36 may, with the consent of aparty, argue orally on the side of such party. In the absenceof such consent, argument by counsel for an amicus curiaemay be made only by leave of court, on motion particularlysetting forth why such argument is thought topmvide assistance to the court not othenvise available.Any such motion will be granted only in the most extraordinarycircumstances.F. REHEARINGS-RULE 511. A petition for rehearing of any judgment or decision otherthan one on a petition for writ of certiorari, shall be filedwithin 25 days after the judgment or decision, unless thetime is shortened or enlarged by the Court or a Justice.Forty copies, produced in conformity with Rule 33, mustbe filed (except where the party is proceeding in formapauperis under Rule 46) accompanied by proof of serviceas prescribed by Rule 28. Such petition must briefly anddistinctly state its grounds. Counsel must certify that thepetition is presented in good faith and not for delay; onecopy of the certificate shall bear the manuscript signatureof counsel. A petition for rehearing is not subject to oralargument, and will not be granted except at the instanceof a justice who concurred in the judgment or decisionand with the concurrence of a majority of the court. Seealso Rule 52.2.2. A petition for reheadng of an order denying a petition forwrit of certiorari shall comply with all the form and filingrequirements of paragraph 1 but its grounds must be limitedto intervening circumstances of substantial or controllingeffect or to other sutstantial grounds not previouslypresented. Counsel must certify that the petition is restrictedto the grounds specified in thiiparagraph and thatit is presented in good faith and not for delay; one copyof the certificate shall bear the manuscript signature ofcounsel or of the party when not represented by counsel.A petition for rehearing without such certificate shall berejected by the Clerk. Such petition is not subject to oralargument.3. No response to a petition for rehearing wilt be receivedunless requested by the court, but no petition will begranted without an opportunity to submit a response.4. Consecutive petitions for rehearings, and petitions for rehearingthat are out of time under this Rule, will not bereceived.G. MANDATES1. AU process of this court shall be in the name of the Presidentof the United States, and shall contain the givennames, as wellas the surnames, of the parties.2. In a case coming from a state court, mandate shall issueas of course after the expiration of 25 days from the day

the judgment is entered, unless the trine is shortened orenlarged by the court or a justice, or unless the partiesstipulate that it be issued sooner. The filing of a petitionfor rehearing, unless otherwise ordered, will stay the mandateuntil disposition of such petition, and if the petitionis then denied, the mandate shall issue forthwith. When,however, a petrtion for rehearing is not acted upon priorto adjournment, or is filed after the court adjourns, thejudgment or mandate of the court will not be stayed un-less specificalIy ordered by the court or a justice.3. In a case coming from a federal court, a formal mandatewill not issue, unless specially directed; instead, the ClerkWIU send the proper court a copy of the opinion or orderof the court and a certif~ed copy of the judgment (whichshall include provisions for the recovery of costs, if anyare awarded). In all other respects, the provision of paragraph2 apply.THURGOOD MARSHALL from pg. 7for defendants sentenced to death,14 andmore lawyers come forward to volunteertheir services.The attorneys who currently are shoulderingour collective burden deserve ourgratitude, not our scorn and not simplyour tolerance. They are making enormoussacrifices-emotional as well as financial.Prosecution of a single appeal on behalfof a person on death row frequentlyinvolves months of exhausting, seeminglyfutile effort. One lawyer has describedthe process as a "self-lacerating investmentof time and energy."15 To theattorneys willing to make such investments,again and again, I wish to expressmy admiration and thanks.1. At present, a state is constitutionally obliged to provide legal representation far anindigent defendant only at trial and in anappeal of right. Compare Ross u. Moffiff,417 U.S. 600 (1974),with Gideon v. Wain-wrigNt, 372 US. 335 (1963), andDouglosu. Cnlifornia, 372 US. 353 (1963). TheSupreme Court has never consideredwhether an indigent defendant who ischarged with a capital offense is entitledto asststance in the later stages of the appellate process.See Grqg v. Georgia, 428 US. 153, 231(1976) Obarshall, J., dissenting); Furmv. Gwrpia, 408 US. 238, 358-369 f1972)(Marshall, I., conourring).See. ex. Grm v. Geormh, 4228 US. 153-n976i:Woodm v North Carolina. 428 US. 280.305 (1976) (plmlity opinion); see alsoZarttv. Stephens, 462 US.-, -(1983); Eddiw v. Oklahoma, 455 US.104, 111 (1982); Furmun v. Georgia, 408US. 238, 309-310 (1972) (Stewart, 1..ooncurrint); - id., at 313 (White, J., concurring).See D. Clendinen, "Rising Death RowPopulation Burdens Volunteer Lawyers,"New York Times, Aug. 23, 1982, p. A15,col. 4.See SpinkeIIink r State, 313 So. 2d 666,673-74 (Fla. 1975) (dissenting apmionl:Kaplan, The Rohlem of Capitd Punishment,1983 U. Ill. LF. 555,576.See, e.g., Gross & Mauro, Patterns afDeath: An Analysis of Racial Disparitiesin Capital Sentencing and Homicide Vlutimization (October 1983) (unpubhshed);Mley v. Harris, -U.S. -, -(1984)(Brennan, 1 ., dissenting) (citing other studies);David Bruck, "Decisions of Death,"The New Republic, Dec. 12,1983, pp. 21,24Figures compiled by NAACP Legal Defenseand Educational Fwd, Inc.See Sanders v. United States, 373 US. 1,17-19 (1963); 28 U S.C ~22.54 Rule 9@)(1982).28 U.S.C. 5 2241 (c) (3).Cf. Bator. Fmlitv in Criminal Law andFederal ~aheag Corpus for State Prismas,76 Hnrv. L Rev. 441 (19631.Cf. H. Hart 6t. H. Wechsle~, The FederalCourts and the Federal System 1238-1239(1953).See Wainwight P Sykes, 433 US. 72(1977).Promislng efforts are being made by thestate of California to set un a uublicl~funded oteanizatian .~ ~.-~~to~~coor&tL~ ~the 1;cation uimunsel for parsonson death row.Ser R. tiirdncr, "Cr~minnl Law Nutcbouk,"Lor Angelcs Daily Journal, Sept. 23. 1983,p. 3.Statement by A.C.L.U. attorney HenrySchwmschild, quoted in "The Queueen ofDeath Row, " Ttme, Dec. 31,1979.p 60.New Members1 Name Endorsed By: NameII,DALLASAUSTINMarlee Baker JosephHiram MillerLea C. NoelkeDale B. TilleryRoyce B, WestGEORGETOWNDain P. Whitworth Laura M. Little J.B. BrookshrreJeanne B. KitchensJohn A. Yeager HOUSTONRichard E. Hamson Yvonne Michelle Williams Jeff BlackburnPORTLANDVigil W. YantaJeff Blackburn SAN ANTONIOJan E. Hemphill Rudolph Robert Whann, Jr. Charles D. ButtsPMay VOICE for the Defense 23

SOME OBSERVATIONSON THE DWI LAWby Louis Dugas, Jr., OrangeThe legislation amending the driving you file a motion based on language inwhile intoxicated laws is not state of the White v. Sfate, 440 SW2d 660 (196% toart. This article is my attempt to place a challenge the constitutionality of the title.few well chosen, from my point of view, In the White case, the court held that theobsemations demonstrating the foibles function of a title was to facilitate andcontained therein.protect the legislatin process by afford-Beginning at the beginning with the ing leginlators and other mterested personstitle midway it reads:a ready and reasonably accurate means of". ..amendin$ Chapter 173, Acts of knowledge of the contents of bins withthe47th Legislature, Regular Sesouthaving to read the entlre text. Thesion 1941, as amended (Articlecourt continued:6687b, Vernon's Texas Civil Stat-''Since that is the function of theutes) by addiig Section 4A andtitle, requirements in legislative billsamending Subsections (a), @I andare determinedby what the title says(d), and adding Subsections (e), (f),and not by what it was intended to(g) and (h), Section 24;. ..""say."This portion of the titie is misleading.Second, 1 suggest that you file a mo-It does not indicate which section of Art- tion seeking probation under 6687(b)icle 6687(b) is amended. For example, Set. 24(d), which you contend is still inArticle 1 of 6b87@) has subsections (a),effect. This section allows a person to retain his liceme if placed on probation by(b) and (d).+L. P#...4Lll= UWUI b.'Ya) defves vehiclesMY observations wf&h fofl~w are not(b) defmes motor vehicles scientific, sstiu a jury is not composed of(c) defines school bus"scientists. * ~ ~ concentrations-l ~ ~ h ~ l mustUsually blood for testing is taken invials containing 3 GCS which is the sameas 3 milliiters. Can you visualize filling33 113 cc vials for a blood test. Or whatabout using a 50 cc tube so you will onlyhave to do it twice. A 50 cc vial is usednormally to inigate or for tube feeding.The normal blood test for intoxicatiorruses from 1 to 2 cc's of blood.Move on with def~tions:"C&) the number of grams of alclcohol per 210 liters of breath;''One liter of breath is equal to 1,000cc's. A liter is 1.057 US. quart. 210 litersof breath are the same as a 55 gallon drumof breath. Anyone capable of giving thatmuch breath is going to be drunk justfrom expeKmg air. Most breath machhesuse about 53.5 cc"s of breath. The definitionalso does not require the breath tobe "alveolar" which the machine maker\claim is the only ah which affords apt*per test result.Remember the word "means" wasun-Upon reading Section 2 of the Act be defied by the court in the charge. If derlimd. The court Of the US.(SBJ, 68th Legislature chapter 303) we this is done, the analysis below could be "bdte v. fimkM 58 L.Ed. 2d 596"see an apparently different intent. It 'argued to the jury. Section 3 of the Act '07, said:appears the Legislature intended to amend listed in Vernon's as 6701 1-5 is in quesarule, a which de-Section 24, Chapter 173, Acts of the 47th tion. The Fit definition is as follows:clares what a term 'means' excludesLegislature, Regular Session, as amendedany mean& that is not stated."(Article 6687(b)) Vernon's Texas Civil "(1) 'Alcoholconcentration'means:Statutes. (emphasis added for later emphasis) Another pertinent definition:It appears that the titleis afflicted with (a) the number of grams of al- "(4) 'Public place' has the meaninga similar disease as the one which befellthe Controlled Substance Act. I suggestcoho1 per 100 milliliters ofbloovassighed by Section 1.07(a)(291, Penal Code."24 VOICE for theDefem/May 1984

Section 1.07(a) (29) Penal Code defines."Public place" mas any place towhich the public or a substantial group ofthe public has access and includes, but isnot limited to, streets, highways, . . ."Keading the statute, particularly Section4, it recites that refusal of the test isgrounds for suspension of your hcense todrive if it occurred on a public highwayor beach. There is nothing in Section 4 ofthe Act mentioning streets. 1 suggest thatyou move to set aside any suspension ofyour client's license for failure to give atest ifhe or she is arrested on a city street.The Act in Section 4 sets out requirementsfor testing (6701 1-5, Sec. 3b). Itrequires that the DPS establish rules approvingtesting methods and the conditionsof breath testing and analysis. Thesemust be published in the Texas Register.Since this is a new statute it is a mandatoryrequirement. To date, I have notseen any rules offered or adopted. Moveto suppress the test results for this failureto publish in the Texas Register.Finally, Section 28 of the Act is underobservation. This is the section dealingwith other Acts and spells our whether ornot they are continued or repealed. ReadingSec. 28(a), one notes that 6704 1-5,in effect before January 1,1984, died onJanuary 1, 1984. It was not carried for-ward as evident from a reading of Section28(a)."Section 28. (a) 20 A person whobefore the effective date of this Actrefused to submit to a test is subjectto the law in effect when the refusaloccurred, and that law is continuedin effect for tlze disposition of administrativeproceedings against theperson." (Emphasis added)There is no presumption of intoxicationexisting in cases which occurred beforeJanuary 1, 1984. I am certain thereare other blemishes, but for now thesesuffice.Thoughts FromABehind the Walls () )A substantial segment of correspondence walls should notfdl on deaf ears, we havereceived by the VOICE each month comes created this new department for wideningwith a return address of one unit or mother the scope of what we hope will become aof the Texas Department of Corrections. meaningful dialogue between those en-In the past, most of this correspondence gaged in the pracrice of criminal law andhas appeared solely in the "Letters to the our penpals, "in their essays, articles andEditor" columns of this journal. In the letters. -Ed.belief that the voices from behrnd thoseDear T.C.D.L.A.:This is a request, respectfully submitted,to you for legal assistance in contestingthe constitutionality of the "MandatorySupervision" law as authorized byArticle 42.12 C.C.P.The factual application of MandatorySupervision raises several logical and legalissues which briefly are:1. Mandatory Supervision is not parole,and parole is not Mandatory Supervision;2. Mandatory Supervision only applies toone being released from T.D.C. who willliQe in America, but not to an alien whowill be deported to another Country uponrelease from T.D.C.3. Mandatory Supervision is "ConstructiveCustody and Future restraint;" and4. Mandatory Supervision requires aprisoner or inmate to serve his sentencein installments; aad5. Mandatory Supervision makes all sta-May 1984/VOICE for the Defense 25

tutory laws authorizing the award of"Good-Time" for good behavior and efficientperformance of duties duringincarceration in T.D.C. null and void.A case in point: ExParte JohnnyMorris, No. 66603 (En Banc, January 20,1982) where the Texas Court of CriminalAppealsheld in pertinent parts asfollows:While good conduct the creditmay be earned by good behaviorand efficient performance of dutiesduring incarceration, it does not becomevested and may be furfitedfor violating ZD.C rules." (EmphasisSupplied.)Whide it may appear that my five (5)listed allegations are consummated, suchis not the case. A mass form of hypocrisyis being perpetrated on the public as wellas the inmate population of T.D.C. Aninmate in T.D.C. is encouraged to earn allthe "good-time" possible in order to advancelus or her early release. However,after earning such "good-time" and beingreleased from T.D.C., such iamate forfeitsthe "earned good-time" upon: acceptinglawful release, and must do his or hercomplete sentence under "'MandatorySupervision.", The analogy is like unto a wage earnerworking to earn a certain promised salary.He fulfas his required duties. However,when 'pay-day" finally arrives, the wageearner forfeits his salary by accepting it.Further, an inmate of T.D.C. can bedenied a parole and given a "serve-all"notification from the Texas Board of Pardonsandparoles. However, after satisfyingthe "serveall" and being released fromT.D.C., the released person is told andcumpcllcd to signin agrccmcnt accepting1fornl of Parole. "Mand3tow"Suocrvision."In conclusion, may I submit that Ihave many, many other facts that I couldmention regarding this subject, but respectfor your members'busy schedules compelsmy restraint until at such time I am honoredwith your favorable response.Appreciatively yours,HARRY GREENT.D.C. No. 369944T.D.C. Huntsville UnitP.O. Box 32Huntsville, TX 77348i26 VOICEfor the DeferaselMay 1984Send d correspondence dreet to Mr.Green. -Ed.Dear Editor:As we drink cup after cup of coffeelate into the night, we read our borrowedissues of VOICE forthe Defense. We copypage after page of notes to use in ourattempts to vindicate ourselves. We areindigent inmates turning to your readersfor help. No one on our wing receivesyour magazine. If any of you would be sokind as to send us any past issues ofVOICE for the Defense (or any other lawbooks), it would be greatly appreciated.The following men on J-line at theEastham Unit have formed a group togetherfor a common cause and pool ourfew law books. Please send to the followinginmates the above:HarmonVictor Sturm T.D.C. No. 358225MichaelHamey Val T.D.C. No. 281286-AEdwardEugenePetersan T D.C No. 356216Jlmmy "Dowg' Smith T.D.C. No. 312434Our purpose is not to harass the officialsof the Texas Department of Corrections,but only to obtain our libertythrough the judicial system. We try tomaintain ethical standards and emulatethe better attorneys of this state. Westrive to gain the respect of the officialsof the Texas Department of Correctionsand establish credibility in the judicialsystem.All of us would appreciate correspondencewith anyone interested in law.Michael Harvey Vail hopes to one day beemployed as a para-legal or in some phaseof law work. Please send him any informationyou might have on employmentin the law profession.I personally need help and adviceon an indictment for the offense ofAGGRAVATED KIDNAPPING. I wouldappreciate anyone who would be so kindas to respohd. The indictment reads asfollows:*****on or about the 6th day ofMay A.D. 1983, and before theprwentment of this indictment, inthe County of Dallas, and State ofTexas, did then and there intention-ally and knowmgly abduct anotherperson, to-wit: Jane Doe and withoutsaidJane Doe's consent did thenand there restrain said Jane Doebyusing and threatening to use deadlyforce on said Jane Doe and saidJohn Lee Jones did then and thereintentionally and knowingly abductthe said Jane Doe with the intent toviolate and abuse sexually the saidJane Doe.The names, place, and date of the foregoingindictment are fictitious. The aboveindictment has two (2) defects I amtrying to attack.The f ~st defect is that no $It knowledgeor intent was alleged in the usingand threarening $0 use deadly force. Thegist of the offense of Aggravated Kidnapping,Sec. 20.04, Texas Penal Code, isusing and threatening to use deadly force.Without the culpable mental state ofintentionally and knowingly, directlybefore and acting upon the aggravatingact of using and threatening to use deadlyforce, the indictment above only allegesthe lesser offense of KIDNAPPING, Sac.20.03, Texas Penal Code. The omittedculpable mental state should have allegedthe actor's state of mind in restrainingJane Doe by using and threatening to usedeadly force. See the cases of Ex ParteSuntellma, 6606 S.W.2d 331 ; and Ex PaneBunch, 608 S.W.2d 641 for comparison.Both of these are aggravated robberycases that apply the same reasoning.The second defect is the failure toallege an intent to prevent the liberationof Jane Doe.Sec. 20.04. Aggravated Kidnapping.(a) A person commits an offense ifhe intentionally or knowingly abductsanother personwiththeintentto:(4) inflict bodily injury onhim orabuse him sexually:The word "restrain" was substitutedfor the word "abduct." It would becomenecessary to add the phrase, "with intentto prevent his liberation," as the mentalstate accompanying the act of abducting,See the cases of Cmpenter v. State, 551S.W.2d 724; and Ex Parte Pmitt, 610S.W.26 782 for comparison.

By the way, this is notmy indictment.I am trying to help another inmate winhis freedom from an unjust 40 year sentence,by way of habeas corpus. AlthoughI attended S.M.U., I have never been anattorney. We collect no fees. We arerewarded by helping other human bemgs,who have been unjustly convicted. Itmight be noted that we do not always believethat everyone is unjustly convicted.I personally am serving a LIFE sentencefor a burglary that I did not commit.Two other quick indictment questionsfor your readers.1. Does the word "Individual" have to bealleged in an indictment for Murder, Sec.19.02, (a)(l)?? I have found some caseswhere the State's argument was supportedby old law that say no. By the definitionof "Individual" I contend that it musf bealleged to show a human being who hasbeen born and is alive -.2. Does the culpable mental states ofknowingly and intentionally need to bealleged directly before and acting uponthe word appropriate in a Theft Sec. 31.03indictment, if the phrase intent to depriveowner is alleged in the last part of theindictment??? My prior conviction.I would again like to thank Mr. JosephA. Connors, 111, for sendingme a copy ofhis "Confessions and Suppression Proceedings"last year.We pray that this letter will be pnblished.May GOD bless you for providingspace in your magazine for the men andwomen behind the walls.Thank you,HARMON VICTOR STURMT.D.C. No. 358225Eastham Unit J-LineRoute 1 Box 16Lwelady, Texas 75851Dear Editor:I've prepared a PetitionforDeclaratoryJudgment which concerns itself with theconstitutionality ofsection 151.314(e)C3)of the Texas Tax Code. This section imposesa sales tax on certain items sold inall commissaries of the Texas Dept. ofCorrections. This is the fit suit of itsnature in the history of Texas jurisprudence.This same issue can be litigated toascertain the legality (constitutionality)of the sales tax in Texas which wouldbenefit all Texas citizens. For the sake ofbrevity, I will touch on the essence of mysut so as to not burden this wriimg withthe entire 40 page memorandum of lawthat accompames the original suit.Bob Bullock, the state comptroller,and the United States Treasury Dept. inWashington, office of the mint, have toldme that Article I, Section 10 of theUnited States Constitution, "'is bindingon the states." I knew that. I just wantedan official determination. Art. I, Sec. 10declares:No state shall. . . coin money; emitbills of credit; make any Thing butgold and silver coin a Tender in paymentof debts.In tandem, Texas law upholds the dictatesof Art. I, Sec. 10. Article 43.02V.A.C.C.P. provides:All recognizances, bail bonds, andundertakings of any kind, wherebya party becomes bound to paymoney to the state, and all fines. . .shall be collected .in the lawfulmoney of the United States ONTLY.(emphasis added)Likewise, Title 12 United States Code,Section 152 declares:The terms 'lawful money' and 'lawfulmoney of the United States'shall be construed to mean gold andsilver coin of the United States.Further support is garnered from Title31 U.S.C. 5001 (formerly 31 U.S.C. 371;amended 1982 by Public Law 97-2548)which provides:US. money is expressed in dollars,dimes or tenths, cents, or hundreths,and mills, or thousanths . . . and allaccounts in the public office and allproceedings in the courts must bekept and had in conformity to thisregulation, had in dollars of themoney of the U.S.(The last half of the cited law is thesubstantive element. A fun report is discussedin the House report; HR Rep. No.97-651.)State officials have used thelegendarydefense of citing 31 U.S.C. 392 and thecase of Juilliard v. Greenmen, 110 US.421 as a means to set up great currents ofstrife. However, in defense against the tarbmsh of frivolity, I counter with the caseof Hagar v. Land Reclamation, DistrictNo. 108, 111 U.S. 701, which held thatlegal tender laws enacted by Cohgress donot apply to state entitia; that what thestates make a tender in payment of taxesis NOT a federal question. The Hagar casewas a unanimous decision which was heldthree months AFTER the Juilliord case.By extension, that whioh the states makea tender in payment of taxes is thatwhich they intend to utilize in dischargeof state obligations. Also, the unequivocalmandate of Art. I, Sec. 10, prohibits thestates from making "anything but goldand silver coin a tender in payment ofdebts."Nowhere m the entire US. Constitutionis the US. Congress granted thepower to establish a legal tender. Thatpower has always resided in the individualstates. Art. 11, Art. IX, Amendment X,Gaig v. Missow; 4 Pet (29 U.S.) 410;Gunn v. M y 82 US. (15 Wall) 610.Time and again it has been said thatTexas has some of the best legal mindsand constitutionalists' They must betalking about me.The gist of this thorny legal issueessentially springs from the fact that stateofficials, albeit disingenubusly, and NOTcommensurate with their oaths of office,said oath taken to uphold the constitution,have cast a smoke screen far afieldto debauch our legal monetary system,which is a far cry from the dictates of theSupreme Law of the Land. It is appallingindeed! This is the very reason Americais in an economic crisis. I have but onething to say:While this misbegotten weed maybrieflv flourish to block the oath of reason,so shall it be swept away like a tumbleweedin the strong currents of law.Constitutionally yours,R. WAYNE JOHNSONT.D.C. No. 282756Ellis Unit H20 1112Huntsville, Texas 77343-- AMay 1984/VOICE for the Defense 27

-~~TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION314 West 11th. Suite 315Austin, TX 78701(RETURN POSTAGE GUARANTEED)TEXAS CRIMINAL DEFENSE LAWYERSASSOCIATIONMEMBERSHIP APPLICATION(Please pnnt or type)NEW MEMBER APPLlCATION0 RENEWAL APPLICATION(To appear m Membersh~p Directory.)MAILING ADDRESSCITY STATE Z I PBUSINESS TELEPHONE ( 1COUNTYTELECOMMUNICATIONS ACCESSIBILITYYES-NO-TELECOMMUNICATIONS PROTOCOL -N/A -BAR CARD NUMBER(As recorded on State Bar Card)TITLE FOR SALUTATIONM ) M I ( M s . )NICKNAMEOFFICE ADDRESS (Street)CITY STATE Z I PBAR DATE MONTH YEAR(On a separate prece of paper please ten us whatspeeches you have glven, to whom, and when. Also,please llst artrcles pubhhed, pubhsher, and datePROFESSIONAL ORGANIZATIONS: (Current)LocalCountyStateNationalSPECIALIZATION:(Certification not required)CERTIFIED CRIMINAL SPECIAIJST. YESNO-LAW SCHOOL L E G R E EGRADUATION DATE: (Law School)HOOLCREESCHOOLREE-I (Names)SECRETARY'S NAMEAPPLICANT'S BIRTH DATEBIRTHPLACE (C~ty and State)HOMETOWN (C~ty and State)SPOUSE'S NAMERESIDENCE TELEPHONE (AC )Have you ever been disbarred or disciplined by anybar association, or are you the subject of disciplinaryaction now pending?Date(Signature of Applicant)ENDORSEMENT -~ ~~ ~,I, a member of TCI)L.\, belwe this appl~canto bc rpsrmn of pmfcssiun.d compctcncy ,intcgrtry, and goodmor~l chrracter. Thc applirmt lr actively cngsged inthe defrnrr of criminal caw.DateMail to:(Signature of Member)(Print or Type Member's Name)Some of the best legal minds.. .in this state already belong to the Texas Criminal DefenseLawyers Association. We believe we have now the best CriminalDefense Bar in the United States. We maintain that levelof excellence by continuously seeking out new minds, newenergies. Therefore we want YOU. . .if your legal and personalphilosophies are compatible with our purposesandobjectives:To provide an appropriate state organization representing thoselawyers who are actively engaged in the defense of criminal cases.0 To protect and insure by rule of law those individual rightsguaran-.teed by the Texas and Federal Constitutions in criminal cases.Towresist proposed legidation or rules which would curtail such rightsand to promote sound alternatives.To promote educational activities to improve the skills and knowledgeof lawyers engaged in the defense of criminal cases.To improve the judicial system and to urge the selectionandappointmentto the bench of wellqualified and experienced lawyets.To impmve the correctional system and to seek more effectiverehabilitation opportunities for those convicted of crimes.To promote constant improvement in the administration of criminaljustice.ADVANTAGES FOR REGULAR MEMBERSTCDLA Membership Directory-referrals to and from crimrnal defenselawyers in over 100 Texas c~ties.Outstanding Educational Programs-featuring recognized experts onpractical aspects of defense cases. TCDLA and the State Barannuallypresent many seminars and courses m all parts of the state.TCDLA Brief Bank service.Publicahons, including the monthly VOICE for the Defense with its"Significant Decisions Report" of important cases decided by thecourt of crimmal appeals and federal courts.0 Attorney General's Crime Prevenhon Newsletter. Summanes of latestcourt of cnminal appeals cases avdable to private practitioners onlythrough TCDLA's group subscnphon, included in dues.Organnational Voice through which cnminal defense lawyers canformulate and express their position on legislation, court reform,important defense cases through amlcus curiae achviw.Discounts and Free Offerings for publications of interest to cnminaldefense lawyers.Research service ava~lable at a reasonable hourly rate; messengerservice in Capitol area.ELIGIBILITY AND DUESEffective: January 1, 1982Voluntary Sustaining dues (VS). ....... .$300.00Sustaining dues (SUSI ............. 200.00Duesfor members in the firm ofa sustaining member ISMF) .......... 50.00Members admitted to practice: (MEM)2 years or less ................ 50.002- 5years .................. 100.005 or more years ............... 150.00Affiliate: Persons in careers which contribute todefense of criminal cases, e.g., law professorr, areelibible for affiliate membership upon approval ofthe application and receipt of the annual dues.Affiliate dues (AFF) ............ 25.00Srudents:Those regulsrly enrolled in a law rchoolin Texas are elibible for student membership.Student dues (SDM) ............ 20.00