journal of the texas criminal defense lawyers association

President's ReportTHOMAS G. SHARPE, JR.At the time I took the oath of offtceas your president I was immediatelyconfronted with Stanley Weinberg's commentin the "Editor's Corner" of theJune issue of the VOICE. His concernrelated to the problem regatding theinvasion of an attorney's office byfederal enforcement officers in California.Even though no formal charges werelevied against the attorney, he obtainedan order from the federal court enjoiningfurther inspection and copying of documents,After enduring a court appointmentregarding a misdemeanor murder case inthe federal court in San Antonio, Texas,I was not shocked by the conduct of thefederal gwebent in California. In theSan Antonio case, we were faced withTitle 111 ordw of wiretaps and conversationsbetween attorneys and clients,husbands and wives, and recording ofconversations from the attorney interviewroam at the Harris County Jail.There also exists a movement inthis country by fedeml prosecutors toattempt disqualif~cation of criminal defwe lawyers on the premise that they areeither witnesses, unindicted cwonspirators,or parties to the offense. I supportthe position that the Association hastaken of enlisting our Strike-Force tocome to the aid of lawyers who findthemselves being steam-rolled by overzealous agents of both federal and stategovernments.If the privilege of attorney-client Barefoot. The decision, which touchesis to he more than a rule of evidence, at least 1,200 condemned murdererswe must obviously seek legislation at across the nation, establishes a shortcutthe state led to insure the safepards for the federal courts in speeding alongof confidentiality as it relates to those the handling of cases which attempt tofjles and documents we hold in mst for postpone exemtions. It must be notedour clients.that all of the executions scheduledAfter leaving the onnual meeting in are for violations of state law and thatFort Worth I sought higher ground in those persons seeking federal reviewColorado for a few days of rest and re- are clinging to the apron of the Concuperation.On July 1, 1983, a copy of stitution for relief.the Rocky Mauntain News' lead srov Fortunately, out civilization as it presceughtmy eye. It was entitled, "ODDS ently exists on fhis planet has ceasedFAVOR SLAY SUSPECTS IN JURY to eut off the hands of burglars as aTRIALS." The article involved a survey deterrent and no longer removes thewhich included dl homicide cases from tongues of the obscene and profane.1977 through 1982 filed in the Denver When you analyze the decision in theDistrict Court. Of the 79 cases that Barefoot case and compare it to thewent to jury trial, 28 resulted in acquit- statistics from Color& courts, themt&. In 23 of the cases the jury found may be some suggestion of light at thethe suspects guilty of lesser charges end of the turmel.than those brought by the district attor- The statesmustnowdeterminerhfirughney's office. In only 28 cases was the their respective governors and legialatotsdistrict atsorney succe8sful in ohtag if we are going to pay stihwe, te life wa guilty verdict on the chargeshe sought. to death. If we arc to mrpq &e,&The survey concluded that proof beyond of the eoademnea in a peried wfa @&a reasonable doubt was most difficult we would 6xecute at legst &w a-d#pid the majofity of these cases and that The~e k some s-tiotr th& &?fre'gda&jurors were not willing to take a chance of this countr~ WIU do? @Sf@ WSby inferring guilt where an element allow- &65~~-.1pild@k@~~kof the offense was not proven. ity. We nosf-cied PA le~%~~&$is'oaI recall the quote from Lbfd BamtG, the fe$ed cWS5 &e i$+ & &B ps"A jury can do justicewhereajudge d o only h& a Id, wi& sm&q @dPahas to follow the law may not." Q~L adequate safeguards at the $lab SWednesday, July 6th, the Suprema Court, protey our citizens &on& t h d+B~iitein a 6-3 vote, decided the ease of Thomas plinishment.August I9&3/VOICO for the Defm 3

STANLEY WEI?NBERG-ehat the cmupbJrrt prqlzably would nat ShviEf Don Byyrd. Wo, h; didn't testiEybe rdwred to the Ddaa County Grad about the She@s sanity. Re did say hebelieved By& had snffared a mild ~ troh

THE NEW TEXASRULES OF EVIDENCEIN CRIMINAL CASESOR Nrn?By Walter FK SteeZe JI:DallasINTRODUCTIONOn the 23rd day of Nowember, 1982,the Texas Supreme Court adopted theTexas Rules of Evidence to be effectiveSeptember 1, 1983. The preamble to theRules by the Texas Supreme Courterplicitly states that they are "herebyadopted and promulgated to governcivil actions in the various courts ofthis State."l In addition, the legislativehistory of the Rules reflects a consciouseffort by the drafting committee tolimit their applicability to civil cases.%Despite these efforts to limit the applicabilityof the Texas Rules of Evidenceto civil cases, cogent, if not persuasive,arguments can he made that at least someof the Rules will apply in criminal cases.Those arguments are presented below,step by step.POWER OF SUPaEME COURTTO MAKE RULESFOR CRIMINAL CASESArticle 5, section 25 of the TexasA graduate of Southern Methodist UniversitySchool of Law, Walter W. Steele,Jr., is a professa at that institution andAssociate Dean for Clinical Education.He was admitted to the State of TernsBar in 1957 and is a member of theAmerican Bar Association-Ed.Constitution vests in the Supreme Court records must yield to a conflicpower to make rules applicable to all provision in the Code of CriminalPmcourts:due, thus the Supreme Court rule wcSec. 25. The Supreme Court have controlled had it not conilkshall have power to make and with a contrary state law-the Cestablish rules of procedure not of Crimimal Procedure.inconsistent with the laws of the The Court of Criminal AppealsreacState for the government of said the same result under similar factscourt and the other courts of this Johnson v. State, 93 S.W. 735 ( ~t. CrState to expedite the dispatch App.1906),of business therein.3Again, in Sessiom u. State, 197 SThat language is clear, precise and un- 718 (Ct. Crim. App. 1917)" the ccambiguou$: the Supreme Court has held that some recently enacted prmle-making power for all courts with sions of the Code of Criminal Procedonly one limitation; a mleof the Supreme changed the practice for appeal whCourt cannot conflict with the laws had previously been established byof the State.4 Nevertheless, one might Supreme Conrt under its Artide 5, :argue that the Supreme Court has no 25 authority. Furthermore, in Sessicrule-making power in criminal cases the Court of Criminal Appeals cited tsince the Supreme Court has no ju& earlier occasionswheretheSupreme Codiction in criminal cases,had enacted rules applicable toAt the outset that argument is tenuous Court of Criminal Appeals under Art.because it is an argument of implication 5 authority.juxtaposed against a clear expression to Thus it seems quite reasonablethe contrary in ~rticle 5 of the Texas conclude that the Texas Supfeme CotConstitution. Moreover, the Court of despite the fact that it has no jwisdict.Criminal Appeals, itself, has recognized in crimiuaI cases, does have power to m;the power of the Supreme Court to make rules applicable to criminal casb, prules in criminal cases. In McElroy v. vided those mbn do not cm&t wState, 172 S.W. 1144 (Ct. Grim. App. the laws of tke state. Of wnrse,1915), the Court of Criminal Appeals more significant question is whethernoted Article 5, sec. 25 of the Texas not the Supreme Court has escerciConstitution and held that a Supreme said nibmaking power in the TeCourt rule having to do with appellate Rules of Evidence, and it is tu tiAugust 19831VOICE for the Defense

mestion that we now proceed. the leejslaturc prior to the enactment the same to remain in effect unlessof Art& 1731alArt. 1731a. Sec. 1. In order toconfer upon and relinquish to theSupreme Court of the State ofTexas fullrule-making power in civiljudicial proceedings, all laws andparts of laws governing the practiceTHE TEXAS RULES OF EVIDENCEARE THE EQUIVALENTOF STATUTE LAWAs previously discussed, the expresslanguage of the preamble to the TexasRules of Evidence limits their use to civilcases, and that limitation is consistentwith their legislative history. Therefore,any argument that the Rules apply tocriminal caes must be exttinsic to theRules themselves. he appropriate exttinsidityis fonnd in ~rticle 38.02, TexasCode of CrirninalProcedurc, which states:The Rnles of Evidence pfescribedin the statute law of thisState in civil suits shall, so far asapplicable, govern dso in criminalactions when not in conflict withthe provisions of this Code or ofthe Penal ~ode.5~ronght into focus is the meaning ofthe phrase ". . .prescribed in. the statutelaw of this State in cisil suits. . ." foundin Article 38.02. If the Texas ~ules ofEvidence fall within that phrase then asecond question arises: Though oneconcludes that the new Texas Rules ofin theEvidence are ". .statute law of this State in civil suits. .."is there some reason to believe that Article38.02 is totally inapplicable? First tobe addressed is whetber or not the TexasRules of Evidence fall within the phrasecontained in Article 38,02.Obviously, the Texas Rules of Evidenceare prescribed in this State in civil suits.consequently, the question boils down towhether or not the Texas Rules of Evidenceare "statute law''-the phraseused in Article 38.02 of the Texas Codeof Criminal Procedure.~rticle 1731 Texas Cid Statutesaffirms the power of the Supreme Courtto make rules, not inconsistent with thelaw, for the government of the Texascourts. Article 1731 is merely an affumationby the legislature of the rulemakingpower invested in the Supreme,Court by Article 5, section 25 of theTexas Constitution.But in 1939, the legislature passedArticle 1731s Texas Cd Statutes.Article 1731a delegates to the SupremeCourt aU of the legislative power to makerules of practice in civil actions, even tothe point of repealing all laws passed byand ~rocedure in civil actions arehereby repealed, such repeal to beeffective on and after September1, 1941. Provided, however, that nosuhst'antive law or part thereof ishereby repealed.6In other words in 1939, the legislaturewiped the slate clean and delegated to theSupreme Conrt all legislative power tomake rules in civil cases in the future.7That delegation by the legislature of allof its power, together with the poweralready possessed by the Supreme Courtunder the Constitution, leaves no doubtthat after 1939, all rule-making power incivil cases belongs to the Supreme Court.However, as a check-rein, the legislatutereserved to itself the right to dirapproveany rule ~ro~ounded by the SupremeCourt.8Article 1731a, Sec. 2. The SumemeCourt is herehv investedkith the full rule-makin'g power inthe practice and procedure incivil actions. Such rules shall notabridge, enlarge or modify thesubstantive rights of any litigant.Such rules, after promulgation bythe Supreme Court, shall he fdedwith the Secretary of State and acopy thereof mailed to each electedmember of the Legislature on orbefore December 1st immediatelypreceding the next Regular Sessionof the Legislature and shall bereported by the Secretary of Stateto the Legislature, and, unlessdisapproved by the Legislature,such des shall become effectiveupon September 1,1941; providedhowever, the Supreme Court may,from time to time after September1, 1941, promulgate any specifkrule or rules or any amendment oramendments to any specific ruleor rules and make the same effective,except as hereinafter provided,at such time as the Supreme Courtmay deem expedient in the interestof aproper administration ofjustice,and until disapproved by the Legi*lature. Any such specific rule orrules, or any such amendment oramendments to any specific ruleor rules, shall be Hed by the Clerkof the Supreme Court with theSecretary of State, and a copythereof mailed by the said clerkto each registered member of theState Bar of Texas, at least sixty(60) days before the effective datethereof, and reported by theSecretmy of State to the nextsucceeding Regular Session of theLegislature in the same manner ashereinabove provided.9Now, to reiterate the issue at hand:Are the Texas Rules of Evidence "statutelaw'-the term used in Article 38.02Texas Code of Criminal Procedure?The Rules were expressly passed underthe authority of Article 1731a-the delegationof power by the Legislature to theSupreme Court.lO Furthermore, the Rnleswere presented to the Legislature fortheir potential disapproval all in accordancewith the conditions of Sec. 2 Article1731%. Furthermore, the Rules, themselves,contain an express repeder ofstatutes.lf Each of these repealed statutesseemingly conflicted with policies establishedby the Supreme Court in the RulerTherefore, logic would dictate that thenew Texas Rules of Evidence, althoughpropounded by theTexas Supreme Conrt,are "statute law."One need not rely upon logic aloneto reach the conclusion that the TexasRules of Evidence are "statute law."'There exist at least four cases to thateffect. Childress v. Robinson, 161 S.W.78 (Ct. Civ. App. 1913) was the fustcase to diacuss the point, and to hold thatSupreme Court rules have the force andeffect of statutes. Bedner v. FederdUnderwriters Exchange, 133 S.W.2d 214(Ct. Civ. App. 1939) was the next case toconsider the issue and in that case thecourt made the following expansivecomment:In making and establishing [therule in question] the SupremeCourt was exercising legislativepower under direct grant of suchpower by the Constitution, &s anexpress exception to the generalgrant of dl legislative power to the6 VOICE for the DefenseJAugust 1983

Legislature; Constitution Article II could be made that the Court's intentionssec. 1; Id. Article 111 sec. 1; Id. should be controlling in determiningArticleV, sec. 25, Vernon's Ann. St. the scope of application of the RulesThe controlling effect of the in- made by them.tention of the Supreme Court as Note that the Texas Rules of Civilthe Law maker, and the rules and Procedure were passed under the sameprinciples governing the ascertain- authority as the new Texas Rules ofment of such mtention, are the ~videuce.lS On two earlier occasions thesame as applicable to a statute TexasCourt ofCrirninalAppealsdiscussedof the state enacted by the Legis the applicability of the Texas ~ules oflature.12Civil Procedure to criminal cases. In both~ i in ~ B~~~~ & , ~ ~ i ~ k 153 ~ of ~ those h cases ~ ~ at least ~ ~ part , of the opinion~,~,2d 342 (ct. cm. 1941) the was based on the rationale that the TexasCourt made this comment:Rules of Civil Procedure would not applyin criminal cases unless there was a clearThe and statutes do' expression of intent to make themconfer upon the Supremeapplicable in criminal cases. In HollowayCourt' the authority and powerY. Stnte,l6 decided in 1944, the Court ofto make and establish rules notCriminal Appeals expressed the thoughtinconsistent with the law of thethis way: ". . .[TI he rules governing civilState for the government said actions are applicable and controllingcourt and other courts of thein criminal matters only when expresslyState, Article V, set. 25, Constitumadeso by statute,~,17 Again, in SessionsVernon's Ann. St'; Arts' 1730v, S*afe,18 decided in 1917, the Courtand 1731, Vernon's Civ. Statutes,of Criminal Appeals expressed its feeling1925' Such when promulgated that of Supreme Courtandhave all the effectrules should be determined, in part, byand force statutes. .. .The powerthe intention of the supreme court:when exercised is the exercise ofWe think it is a mistaken view tolegislative power under direct grantby the Constitution.13assume that this rule controls theauthority of this Court to passThat same language was used Once againupon questions disclosed in thein Church v. Crites, 370 S.W.2d 419,record of appeal, The Supreme421 (Civ. A ~ 1963). ~ . Thus, the court has nottoclusion that the Texas Rules of Evidencerules for this Court for that purare"statute law" seems inescapable. Norpose, and it is a mistake to holdis that proposition of law at all unusual.that those made for other courtsMany courts have held that court tuleswould have such effect.19properly promulgated and not exceedingSince the Supreme Court had nothe limitation of the court's rule-making intention of m&gRules ofpower have the force of law and areEvidence applicable to criminal cases,tantamount in this respect to rules incor-Holloway and Sessions appear to be veryporated in statutes.14persuasive at first blush. Those twoARTICLE 38.02 TEXAS CODE opinions do lend strength to the argu-OF CRIMINAL PROCEDURE APPLIES ment that Article 38.02 is totally inap-Even if the Texas Rules of Evidence plicable to the situation now underare ". . .rules of evidence prescribed in consideration. But the key to Hollowaythe statute law of the State in civil and Sessions lies in the realization thatsuits. . ."-the language used in Article the applicability of the Texas Rules of38.02-is there some reason to helieve that civil Procedure was being discussed inArticle 38.02 is totally inapplicable in those cases; not the applicability of thethis particular situation?Texas Rules of Evidence.Were it not for Article 38.02 there The impottance of this distinction mustwould he a serious question about the not be ignoredand, in fact, was recognizedapplicability of the Rules to criminal by the Court of criminal Appeals, itself, incases. Since the Supreme Court's expressed the recent case of Warminski v. Dear,intention was to adopt rules that govern 608 ~.~.2d 621 (Ct. rim. App. 1980)civil actions, a well reasoned argument (en banc) where the Court noted thedistinction between Article 38.02 Codeof Criminal Procedure and Article 40.10Code of Criminal Procedure; Article 38.02deals with the applicability of tules ofevidence; while Article 40.10 deals withthe applicability of the Texas Rules ofCivil Procedure.20 Since Article 40.10did not exist when HolZoway and Sessionswere decided, the Court of CriminalAppeals had the freedom in those twocases to speculate about the effect of theSupreme Court's intention on the scopeof the applicability of the Texas Rulesof Civil Procedure.The fact that Article 38.02 is cast interms of rules of evidence in the "statutelaw" should not be taken as an intentionto exdude rules propounded by theSupreme Court, because until now rulesof evidence were, in fact, prescribed instatute law. Rules of evidence prescribedhy the Supreme Court simply did notexist. Therefore, any broader languagein Article 38.02 would have appeared tobe superfluous, so there is no reason tobelieve that the Legislature intended touse the term "statute law" as a limitationon court-made rules of evidence.Through the haze one fact stands out;there has always been an attempt to applypractices of civil courts to criminal courts,except in instances where the Legislaturehas expressly formulated a practice uniqueto criminal courts. This underlying themeof parallelism can be seen over and overagain. First, Article 5, sec. 5 of the TexasConstitution gives the Supreme Courtpower to make rules for all courts. Nextis the fact that since 1856, the TexasLegislature has consistently declared inone statutory revision after another thatthe rules of evidence in civil cases willapply in criminal cases unless in conflictwith the Code of Criminal Procedureor the Penal Code.21 Next is thefact that in the 1965 revision of the Codeof Criminal Procedure the Legislatureamended Article 40.10 to apply theTexas Rules of CivilPmcedure to cPiminalcases tmless in conflict with the Codeof Criminal Procedure. EindyY it isdifficult to ignore the "why nat" arpmentimplicit in the language of Article38.02 of the Texas Code of CrituinalProcedure+ Given its Iong-standing tenureas a part of the jurisprudence of thisState, why should Article 38.02 not beapplied to the issue at hand?August 1983/VOICE for the Defense 7

,EFFECT OF THE REPEALER CLAUSE Rules of Evidence must yield insofar asWe ase about to enter what is, con- they conflict with those statutes whichceptionally, the mast difficult part of the Tex8s Rdes of Evidence left standing.this paper. in fact, all that has been wid, To some it may appear anomalous toSUP+B~ is little more than an introduction argue (as was done earlier that the lanforwhat follows here. Our problem cen- guage in the preamble to d e Texas Rulestets on the language of the Repealer of Evidence ezPressly limiting the RulesClause in the Texas Rnles of Evidence. to civil cases is negated by Article 38.02This Repealer Clause purports to repeal of the Texas Code of Criminal Procedurt;thirty-eight statutes at parts of statutes. only to argue in the same context thatThe fact that the Rules repealed statutes similar language in the repealer clauseor attempted to lends considerable weight of the Texas Rules of Evidence mnst beto the arguments, supm, that the Rules applied strictly. In fact, there is no anoarethe legal equivalent of statutes. A maly and the position taken is quite conlistand brief synapsis of the statutes sistent. The arguments presented ahovepurportedly repealed will be found in to the effect that Rules of Evidence arethis footnote.2z"statute law" under Article 38.02 standOur problem lies with the following as stated Thus, the Taxas Rules oflanguage in the repealer clause: ". . . Evidence ate "presciibed in the statutedeemed to be repealed insofar as they law of this State iro civil snits" and,relate to civil actions."Z3 Taken literally, therefore, "gourn also in crim'mal actionsthat lanpagc results in the listed statutes . . .&, according to Article 38.02 despitedeemed repealed (and Snpreme Court Iatlguage to the contraq in the preamble.rules substituted) in civil cases, while But what are the Texas Rules ofthe listed statutes remam in force in Evidmce? They are a body of Rulescriminal cases. In turn, referring to the which, in criminal cases, are contraryargumeuts, qra, tbat the Supreme in some aspects to a body of statute lawCmrt Rules are equivalent to statute not repealed. In criminal cases the Sulawand thus imposed in criminal cases preme court's ml~making power is to canalby virtue of Artide 38.02, the result derived fiam Article 5, section 25 of thewodd he the law of evidence in ciuninal c was Constitution which expressly limitscasescorning from three sources, accmding 'the Supreme Court to rules "not inconsisto the following hierarchy:tent with the laws of the State.'qs1. Texas Code of Criminal Procedures, Those thirty-eight statutes referred to inand Texas Penal Code.the repealer clause of the Texas ~ules2. Statutes, including those whi~h are of Evidence as "deemed to be repealeddeemed repealed in civil cases by insofar as they date to cmil adions"arethe Texas Rnles of Evidence. sdll on the books in criminal cases and>3. Texas Rules of Evidence to the thus, werride the Texas Rules &Evidenceextent that they do not conflict to the extent that they areinconsistent.with "1" or 'Z", above.Findy, htief mention should be madeIf Article 38.02 makes the Texas of one remaining possible wgument.Rules of Evidence applicable because Assuming, as argued above, that thethey are the equivalent of statutes (and thirty-eight statutes were not repealedthat is the po$ldon taken here) and if for criminal cases by the Texas Rulesthe Texas Rules of Evidence include a of Evidence, can it be said that therepealer chase (and they do) then that Texas ~des of Evidence simply repealedrepealer clause mnst he as applicable as those statutes by implication to thxany other aspect of the Texas Rnles of extent that the two bodies of law areEvidence. Thus, we have new "statute *in conflict? After all, it is a well knownlaw," the Tms ~ules of Evidence, which mle that if two statutes conflict thehas expressly left in place some conflicting most racenr will control.~6 Accordingor redundant statutes, at least insofar as to this argument, if a provision of thecriminal cases ate concerned.24Texas Rnks of Evidence couflic* with aThe point has been made earlier that pre-existing statute, the Texas Rules ofcourt rules must yield if in conflict with Evidence controls because it is later inexisting statutes. Therefore, insofar as time. However, the proposition is basedcriminal cases are concerned, the Teaas on an im@cation that does not applyhere. The implication inherent in themaxim thzt the latest statute controlsis that the Legislature intended the lateststatute to contrd.27 In this case, there isan expressed intentian to the contrary,i.e., that the latest stature not conwol,at least as far as criminal cases are concerned.CONCLUSIONFm the most part: the argumentspresented in this paper are based on"logic" and same wen-known mIes ofconsuuction. It does not take unusualinsight into the ways of appellate mumto know that logic and well-known rulesof construction are not the only basisfor appellate opinions.A reasonable supposition is that theTexas Court of Criminal Appeals willnot be anxious to apply the Texas Rulesof Evidence In criminal cases. Severalfactors lead to that conclnsion. First,the Supreme Court, itself, disavowedany intention to have its rules apply tocriminal cases. Second, at the time ofthe public hearings on the Texas Rdesof Evidence, there was considerable vociferousopposition to making them applycases.28 Last, and mostsignificant, is the notion that the TexasCourt of Criminal Appeals may simplydisfavar the idea that the Texas SupremeCourt can unilatedy change Texascriminal jurispmdence.Whatever the ufhate outcome as tothe applicability of the Texas Rules ofEvidence, we aU have a hit of egg on ourfaces, because we are conftonted with theprospect of a body of statutory law,oriQjndy passed to govern civil cases,now repealed fat civil cases and applicableonly in criminal cases. The Texas benchand bar deserve better.FOOTNOTES1. Texas Rules of Evidence, Preamble,Supreme Coun of Texas, (1982).2. Caperton, "Federal Rules-ProposedTexas Code Overlay: Part IV,"45 Twc. Bar J. 1049, 1051 (Sept.1982).3. Aft. 5, Sec. 25, Texas Constitution.4. The Supreme Court of Texas hasrecognized that its rules cannotcodkt with IeEjsIative enacrments.Few v. Charter Oak Fire InsllranceCompany, 463 S.W.2d 424 (TxSp. Ct. 1971).(Contihued onpage 37)8 VOICE for the Defense/August 1983

RONALD DANFORD, No. 62,855, Attempted murder, Rev'd/Acqltl entered, JudgeW. C. Davis, Panel opinion, 7/13/83.FATAL VARIANCE BETWEEN INDICTMENT AND PROOF: Indictment alleged D attemptedto kill c/W by shooting him with a gun, whereas evidence showed only thatD fired five shots at the C/W, who was unharmed. Windham, 638 S.W.2d 486.BRYAN ROUTH, No. 62,883, Credit card abuse, Rev'd, Judge W. C. Davis,Panel opinion, 7/13/83.1'PUNISHMENT EVIDENCE SHOULD HAVE BEEN REOFFERED AFTER MISTAKE WAS DISCOVERED:During the punishment phase and after introduction of evidence includingexpert testimony showing D to be the person convicted of a prior offenseas alleged in the indictment, it was determined that D had not pled tothe enhancement count nor had the count been read to the jury. D wasimmediately arraigned and the indictment was read to the jury but D'srequest that a jury be instructed to disregard the testlmony previouslyheard was overruled. D's contention now that the court erred in overrulingthe request in the absence of a reoffer or stipulation of evidence is meritorious.Welch, 645 S.W.2d 284.THOMAS BROWN, No. 63,688, Incest, Aff'd, Judge McCormick, Panel opinion,7/13/83.,EXTRANEOUS OFFENSES--PRIOR INCESTUOUS ACTS: Besides the act alleged in theindictment, the state showed prior incestuous offenses between the G/W andD.I,In matters of incest or rape under the age of consent,it is often of lmportance to show the attitude betweenthem and the relative size, age, and strength of theparties, and if possible, to show how one in a positionAugust 1983/VOICE fwthe Defense SD-9

1Ir- - --demanding care and guidance of a related person, has failedin such duty and has adopted an unnatural attitude relativethereto, and by fondling or otherwise, evidences a desirefor sexual gratification towards such child or relative. Wetherefore think that where any such acts become material tothus show them they are admiss?ble. Johns v. State, 236 S.W.2d820,823.""RIGHT" TO GRAND JURY TESTIMONY OF DEFENDANT: In this case D concededthat under the present rule he had no absolute right to have the grandjury testimony made available to him. Acuff, 433 S.W.2d 902; Johnson,503 S.W.2d 280. D argued that since his testfmony was taken after hehad been arrested and incarcerated, this was in fact custodial interrogationand he was entitled to a copy of that testimony. The court disagreed,Statements made bg the accused are discoverable under Art. 39.14C.C.P. However, D does not have a general right to discovery of evidencein the possession of the state, even if the evidence is the defendant'sown statement. Quinones, 592 S.W.2d 933. The decision is dfscretionaryon the part.of the TC. Reversible error will not occur unless the evidencesought is material to the defense of the accused. In this case arevfew of the grand jury testimony of D showed only that D denied committingthe offense. Judge McCormick re-emphasized the long standing ruletbat the defendant is not entitled to a copy of grand jury proceedingsunless he can show a "particularised need". m, 543 S.W.2d 623.XORRIS BRITTON, No. 64,198, Burglary of a hahitation, Rev'd, Judge Teague,Panel opinion, 7/13/83.FUNDAMENTALLY DEFECTIVE BURGLARY JURY INSTRUCTION: In applying the lawof burglary of a habitation to the facts in this case the TC totallyomitted any reference to a culpable mental state and thus the jury chargewas fundamentally defective as it did not charge all essential elementsof the offense. Doyle, 631 S.W.2d 732.BILLY DYKES, No. 65,329, Opinion on reinstatement of appeal: Aff'd,Comm'r Dally, En Banc, 7/13/83.CONFESSION WAS VOLUNTARILY MADE AND NOT THE RESULT OP "PROMISES": In thisvery brief opinion, apparently a law enforcement officer told D, underarrest, that if he would cooperate with the sheriff the sheriff would helphim, The court found no promises were made and no specific codperationwas requested. A confession is not rendered inadmissible because it ismade after an accused has been told by the officer taking the confessionthat it would be best to'tell the truth or it would be best for the defendantto go ahead and make a statement or it would he better to get thedefendant's business strafght. Smith, 237 S.W. 265; Collins, 352 S.W.2d841; Link, 355 S.W.2d 713; Coursey, 457 S.W.2d 565.SD-10 VOICE for the DefenseJAugust 1983

JULIA MONTEZ, No. 68,441, Rev'd, Judge Clinton, En Banc, 7/13/83SPEEDY TRIAL ACT VIOLATION: D was arrested on June 21, 198Cl, for transportingan alcoholic beverage in a dry area. In a criminal action inwhich the accused is charged with a misdemeanor the state must be readywithin 90 days of commencement of action--here, arrest of D. Art. 328.02Sec. l(2) CCP. Not only does the record fail to show that the stateannounced ready during that 90 day period, but at the hearing it did notclaim to have been ready before September 24, 1980, the first trial dateset by the court.JERRY PEARSON, No. 68,519, Possession of heroin, Rev'd, Comm'r Dally,En Banc, 7/13/83.WARRANTLESS ARREST OF D UNLAWFUL: Two officers received information froman unnamed informer of proven reliability that D, who was in the PlaymateBar, had in his possession in his right hand vest pocket a Tylenol boxcontaining ten foil packets of heroin. A short time before the informergave this information to the officers, he had been with the appellant.One of the officers knew D. Within 15 minutes after receiving this information(near midnight) the officers went to the bar. They asked D, whowas an employee of the bar and who was on duty at that time, to step outsideto talk to them. When he did he was immediately arrested and theofficers found eight tin foil packets of heroin in a Tylenol box in theright hand pocket of D's vest.Before booking D into jail, officers called a magistrate who met them atthe business establishment at 2 a.a. and arraigned D. There was no testimonythat the officers believed D was about to escape; on the contrary Dwas working at his job and was less likely to escape (see Hardison, 597S.W.2d 355)."We hold Art. 14.04 CCP does not require a showing that theoffender in fact was about to escape, nor does it requirea showing that there in fact was no time to procure a warrant.The statute merely requires a showing that the officer wasacting upon satisfactory proof from representations by acredible person that the felony offender is about to escapeso that there is no time to procure a warrant". Fry, 639S.W.2d 463.In this case there was no evidence that the officer was acting upon satisfactoryproof from representations by a credible person that D was aboutto escape, so that there was no time to procure an arrest warraat.JOHN NIXON, No. 68,552, Indecency with a child, ~ev'd, Comm'r ally, EnBanc, 7/13/83.DA IMPROPERLY ASKED "HAVE YOU HEARD1' QUESTIONS OF DEFENSE WITNESSES:Defense questions of a defense witness that elicited that D was a goodhard working employee did not transform the wftness lnta a reputationAugust 1983/VOIGE for the Defense SD-11

EX PARTE CASHMAN, No. 69,128, Relief granted, Judge ~c~ormick, En Banc,7/13/83.PRIOR CONVICTION USED IN ENHANCEMENT PARAGRAPH VOID--NEW TRIAL GRANTED:D was convicted of robbery and with his punishment enhanced with a priorconviction for robbery out of Colorado, sentence was set at 50 years.Subsequently D showed certified copy of an order vacating this Coloradoconviction. Court held that because it appeared the prior convictionrelied on for enhancement purposes had been voided, D was entitled torelief, as well as a new trial because the jury was elected to assesspunishment in this case. Ex Parte Garcia. 578 S.W.2d 141; Ex Parte Niven!619 S.W.2d 184.. HAPVEY NICHOLS, Na. 68,360, and WLUIAM DUGAN, No. 68,595, Opinion onDs' Motion For Rehearing: Overruled, Judge Onion, En Banc, 7/13/83.TITLE 11, CHAPTER 71 OF PENAL CODE IS CONSTITUTIONAL: D6 were convicted~f engagin8 in organized criminal activity by conspiring to commit theoffense of unlawful delivery of a contfolled substance, MJ, under Section71.02(5) PC. D argued the captian of Senate B i l l 151 adding to the PenalCode, Title 11, Chapter 71 yiolated Art. 111, See. 35 of Texas Constitution,as the caption failed to indicate in any manner that the TexasControlled Substances Act (Art. 4475-15 VACS) was affected by the bfll.The court held that here there was not a bill that amended or changed thecontrolled Substances Act. Section 71.02(a)(5) creates an off@nse oroffenses within the framewotk of the Penal Code by mere rele~ence tooffenses in the Controlled Substance* Act. The CSA was not affected.Other statutes outslde the Penal Code may be looked to in asceitnining thdefinition of an offense Etnd to give weanins to language that appears incrirainal statutes. The eaptfon here was not required to give notice ofwhat laws it df'd not affect, amend, change, ate,SD-12 VOICE for the DefenselAugust 1983

-- NARCISQ RICO, No.6/29/83.68,637, Misd. theft, Rev'd, Comm'r Dally, En Banc,FUNDAMENTALLY DEFECTIVE COURT'S CHARGE: The information alleged D committedthe theft as a party whereas the court's instructions to the juryallowed his conviction on the theory he committed the offense by his ownconduct or as a party. Court found fundamental error on the basis thatthe charge allowed conviction for the commission of an offense in a mannernot alleged in the charging instrument. Cumbie, 578 S.W.2d 732; Gooden,576 S.W.2d 382.The Court also stated that a party to an offense may be charged with theoffense without alleging the facts which make the,defendant a party tothe offense and criminally responsible for the conduct of another; but ifthe evidence supports a charge on the law of parties the court may chargeon the law of parties even though there is no such allegation in theindictment or information. Apparently the information would have beensatisfactory had it simply alleged that D committed the offense by hisown conduct.NOBLE MAYS No. 68,824, Capital murder, Rev'd, Judge Teague, En Banc,6/29; 83.- ESTELLE V. SMITH ERROR: D filed a pretrial motion on the issues of incompetencyand insanity. The state filed its motion, presumably to discoverevidence to rebut D's stated claims. A transcription of the record ofthat hearing was not available. A pretrial psychiatric exam was conductedby Dr. Grigson pursuant to a court order. The main purpose of the examinationwas to determine D's competency to stand trial, although in thiscase D had at the time the exam was conducted injected into the case theadditional issue of sanity at the time of the commission of the offense.It was never stated to defense counsel that the exam was going to encompassthe issue of D's future dangerousness or to what end the psychiatrist'sfindings could be employed during the forthcoming trial. The court foundcontrolling the fact that D's counsel wzs not given notice that Grigson'sexamination of D would encompass the issue of D's personality and to whatend Grigson's findings could be employed during D's trial. "This failureby the trial court to give appellant notice clearly violates the holdingin Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 115 (1980).Grigson was the only psychiatrist to testify at the punishment hearing.He testified over D's objection, and after being duly qualified by thestate. He informed the jury it took only one hour and twenty minutes forhim to examine D and make the determination that D was incurable and untreatablesociopath because of his high degree of antisocial personality-Grigson had reviewed the Yichita Falls police records, pen packets, andother psychiatric examinations performed at Russ State Hospital. Grig30nfurther testified that D did not have a conscience, repeatedly broke therules, concerned himself only with self pleasure and self gratification,manipulated and conned others in order to satisfy his own personal interests,was never remorseful and did not have any feelings Of guilt orshame or embarrassment after having done something wrong or unlawful.August 1983/YOICEfor theDefense SD-13

The state qrgued that the testimony was admissible particularly as Grigsondid not use phrases such a8 "future dangerousness" or give an opinion asto D's future dangerousness or on the issue of "probability"; and asdefense counsel knew there was going to be an examination by someone viathe court's pretrial order. The court found Grigson's testimony more thanequated the meaning of the plirase "future dangerbusnessW and the courtwas confident that the jury received Grigson's message that D, a highdegree incurable and untreatable sociopath would in the future commitcriminal acts of violence. Grigson's testimony if accepted would be ofimmense benefit to a juror answering the probability question of Article37.Q7l(b) (2) C.C.P.The court emphasized that the -- Smith opinion did not concern itself withthe details of the psychiatric examination or what may have occurred inthe past regarding an examination 00 a defendant. More importantly, theopinion concerned itself with the giving and receipt of notice by counselof what findlngs would evolve, flow, or result from a pretrial psychiatricexamination and to what end those findings would be employed by the examinerat the defendant's trial. The court expressed the belief that theSmith court's primary holding was that it is only after sufficient noticeis given and received by counsel that counsel might then be able to givehis client "the guiding hand of counsel".In this case, defense counsel was put on notice that the examination wouldencompass the issues of competency to stand trial and sanity at the timeof the commission of the offense (Art. 46.02, Sec. 3(a); Art. 46.03, Sec.3(a) C.C.P.) and an end result of such examination would be that findingsas to those issues would occur. The court emphasized, however, thatappellant's counsel in this case was not put on notice that the examinationby Grigson would encompass the issue of whether D had a high degreeantisocial personality and was a sociopath, and to what end Grigson'sfindings could be employed during the course of appellant's trial and thatis why -- Estelle v. -- Smith requires."The trial court should not have permitted Grigson totestify over objection to the findings he had maderegarding appellant's personality. Appellant's trialcounsel had not been given notice that the pretrialpsychiatric examination would encompass the issue ofappellant's personality. Thus, appellant was deniedthe assistance of counsel in making the significantdecision of whether to submit to the examination andto what end Grigson's findings could be employed duringthe trial. Este1le.v. Smith, supra. Appellant's convictionmust be reversed. See and compare Massiah-x,United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d246 (1964); Brewer v_Williams, 430 U.S. 387, 97 S.Ct.1232, 51 L.~d.Pd-4 (1977).IT,SD-14 VOICXfor the Defeme/August 1983

EX PARTE VICTOR MAREK, No. 61,904, Judge Clinton, En Banc, 6/29/83.- -. -- -CONTEMPT BEFORE GRAND JTJRY - REFUSAL TO PRODUCE DOCUMENTS--RELIEF GRANTEDAS TO JAIL COMMITTMENT ORDER: D received a subpoena duces tecum for anumber of described books, papers, and records for 1982 of an entitynamed Grain Producers Inc., etc. At a court hearing at which D appearedwith counsel, the court found D had refused to produce certain documentsand held him in contempt, imposing a $100 fine and ordering him committedto jail "until he was willing to produce said documents in compliance withthe order of the court and the grand jury's subpoena duces tecum". Afterreviewing various provisions of the Code of Criminal Procedure (Art. 20.15,24.06, Sec. 3 and 20.15) the court concluded that there was "simply noprovision in the CCP for confinement until subpoenaed material is producedbefore a grand jury." Art. 20.15 is restricted to a grand jury witnesswho "refuses to testify" and provides for a fine and jail committmentuntil he is willing to testify but D in this case did appear and testifyso 20.15 is not applicable. Thus D is entitled to relief from the restraintand detention imposed but not from payment of fine. By footnote5, the court added:"As indicated, the judge of the court tentatively advancedthe notion that since on March 10 he had ordered applicantto produce records for the grand jury a 'direct contempt'of the court occurred when applicant refused to do so. Butthe command in subpoenas duces tecum was to bring materialsto the grand jury, not to the court. See Ex Parte Wilkinson,641 S.W.2d 927, 933 (Tex. Cr. App. 1982) (concurring opinion)Thus, the general power and authority of a court to punishfor contemptuous conduct under Art. 1911a V.A.C.S. is notimplicated here."\.-.PAMELA PERILLO, No.6/29/83.68,872, Capital murder, Rev'd, Judge Teague, En Banc,COURT'S REFUSAL TO PERMIT D'S TRIAL COUNSEL TO EXAMINE A PROSPECTIVE JURORWAS REVERSIBLE ERROR: Prospective juror X initially stated on examinationby DA that although it would he very hard for him to give a person death,he would be able to sit on a jury which returned a verdict which wouldmandate the death penalty; that while he did not know if he could find aperson guilty of capital murder and in turn answer the special issuesaffirmatively, he would try to fulfill this responsibility if selected andthat he could reach a fair verdict including a verdict sentencing someoneto death depending upon the facts. On continued questioning by DA, Xchanged his position by stating he did not guess he could give the deathpenalty in a case and would certainly consider answering one of the specialissues in the neeative so ,that D would receive life rather than death; andX ultimately agreed with the DAIS leading questions by stating he wouldalways answer at least one of the special issues in the negative resardlessof what the facts might he to avoid having the death penalty assessed. Thecourt questioned X, who responded that he would avoid giving the deathpenalty, however, if the facts were horrible enough he guessed he couldreturn a verdict of guilty. Finally, X stated he would have to say no tothe question "Could you in the worst set of facts you could think of everAugust 19831V01CE for the Defeme SD-15

i p -sit as a juror along with eleven others and return a verdict that wouldresult in death?". After X gave this response, the trial judge sua spontegranted the DA1s earlier challenge for cause and excused X. D's trialcounsel requested permission from the court to examine X but the requestwas denled.I.The above summary shows tliat X was a "vacillating furor" in that he wouldtake one position or stand at one time and then later would take anotherposition or stand, diametrically opposed to the first stand. Williams,622 S.W.2d 116 in light of X's vacillation, court was unable to statethat had D's trial counsel been given the opportunity to question him, Xwould not have returned to his former position and agreed that he couldhave found D guilty of capital murder and thereafter would have answeredin the affirmative to statutory special issues.Excusing a prospective juror without giving counsel for the defendant anopportunity to question the juror should not ever occur, unless the recordaffirmatively and unequivocally reflects that the prospective juror would,regardless of the evidence, automatically vote for a verdict that wouldprohibit the assessment of the death penalty. The voir dire summary abovedoes not reflect such a firm and fixed attitude and position. For failingto give D's trial counsel the opportunity to question the prospective juror*reversible error occurred. +c&x, 638 S.W.2d 439.- Witherspoon v. Illinois- 9391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)decreed that a prospective juror in a death penalty case may not be excusedby the trial judge, unless that person first makes it unmistakihly clearthat (1) he would automatically vote against the imposition of the deathpenalty without regard to the evidence which might be developed at thetrial of the case, or (2) that the person's attitude toward the deathpenalty would prevent him from making an impartial decision as to thedefendant's guilt.If even one prospective juror has been erroneously excused by the trialjudge, on a challenge for cause by the state, when the challenge is basedsolely on the venireperson's opposition to the death penalty, and it islater determined on review that such person should not have been excusedfor that reasons, in Texas this will result in the defendant not onlybeing granted a new trial on the issue of punishment, but on guilt aswell. -a Adams v. _ Texas __ 9 4.48 U.S. 38, 100 S,Ct. 2521. 65 L.Ed.2d 581 (1980);Fearance, 620 S.W.2d 577.The trial judge clearly violated Art. 35.17 when he refused to allowdefense counsel his right to question the prospective juror. See Huffman,450 S.W.2d 858, 860; Ortega, 462 S.W.Zd 296, 304.However, the CCA has held that the mere refusal by the trial court to per*m i t defense counsel to que~tion a prospective juror in a death penaltyrase, though error, may be harmless error. White, 629 S.W.2d 701, 706.Whether such etror map rise to the level of reversible error depends uponthe answer to the following question: Wbether, at the time the state makits challenge for cause, or at the time the trial judge grants or sustainthe statels challenge for cause, the prospective juror has been shown tobe absolutely disqualified under Adams v. Texas and Witherspoon v. IllSD-16 VOICE for the DefcnselAugust 1983

supra, i-e., as the juror, thr~ugh questioning by the prosecuting attorneyor the TC, made 4t absolutely and unmistakably clear that he would automaticqllpvote against the imposition of the death penalty? See Burns v.Estelle. 592 F.2d 1297 (5th Cir. 19801; Jurek v. Estelle, 623 F.2d 2950(5th c%. 1980).JAMES PARKER, No. 58,329, Opinion on remand from U.S. Sup. Ct.: Aff'd,Judge Onion, En Banc, 4/20/83.INSANITY DEFENSE RAISED--APPLICABILITY OF ESTELLE V. SMITH: D was convictedof burglary with intent to commit rape, punishment was enhanced to99 years. Conviction originally was affirmed in -- Parker, 594 S.W.2d 419.U.S. Sup. Ct. remanded for further consideration in light of Estelle v.Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).Estelle v. Smith and the Fifth Amendment: Where, prior to the in custodypsychiatric examination ordered by the cnurt to determine the defendant'scompetency to stand trial, the defendant had not been warned that he hasthe right to remain silent and that any statement made could be usedagainst him at the sentencing proceeding, etc., admission at the penaltyphase of a capital felony trial of psychiatrists' damaging testimony onthe crucial issue of future dangerousness violated the Fifth Amendmentprivilege against compelled self incrimination because of a lack of appraisalof rights and a knowing waiver thereof. the death penalty imposed couldnot stand.Estelle v. Smith and the Sixth Amendment: The Sixth Amendment's right torounse? was violated where de-fense counsel was not notified in advancethat the psychiarric examination would encompass the issue of future dangerousnessand tbere was no affirmative waiver of the right to counsel.Both Fifth and Sixth Amendments are applicable to the states by virtue ofthe Fourteenth Amendment. Klloy v. Hogan, 378 U.S. 1 (1964); Argersingerv. Hamlfn, 407 U.S. 25 (1972).Barker's Fifth Amendment rights: D's court appointed counsel filed arequest for psychiatric evaluation both as to competency and sanity, asdid the state. Both parties agreed to the appointment of Dr. Coons. Dalso requested a competency hearing and filed a notice of intention toraise the insanity defense. Art. 46.03 CCP. After Dr. Coons report thatD was legally insane at the time of the alleged offense, the state withoutcourt order had D examined in jail by Dr. Holbrook whose findings werecontrary to Dr. Coons'. The request for a competency hearing was notpursued as Dr. Coons believed D was competent. D moved to suppress Dr.Holbrook's testimony, which was denied but the court ordered a copy ofDr. Holbrook's report delivered to D, which was done on the mor~ing oftrial. D pled not guilt9 to burglary and when the state rested, B presentedan insanity defense. In rebuttal state called Dr. Holht~Ok, oVBZD's objections that he had not been appointed by the court under &*f.46.03 CCP which was the exclusive procedure for an accused to be e-xawinedby a psychiatrist. No objections were voiced on the basis of the PYfthor Sixth Amendments. Dr. Holbrook's testimony reflects rfiat his evaluationof D and his opinion were not based on or even related to D'sAugust l9831VOICE for the Defense SD-17

Was the d,e~ia1 of counsel to protact 33"s Fi.Eth Amendsent rights in thisnolz-capztal rase re.yer:sible etrorl 'No. The court found that it w@u&d heabsurd to hpld that D wasved his Pi'fth. A%te.n;lm.eat right a but he couiii stilluse the d.sni.al of his Sixth Amendment right to Munsel t.0 protect hfsFifth Araendm'ent right td prevent the state f50m using rebuttal testiin-onyarisiag out of the Zlamd interview. Xbt~ithsta~ding the above, th,e courtalso emphasized that there was .no object'bn oefered oa tbifi basis at trialIand it was not eye* urged on the original s&mlssion of thfS appeal,.The court emphasiaed that Texas has long had and enforced a contemporaneousobjection requirement. Even a constitutional error may be waived by failuseto object. Boulware, 542 S.W.2d 677; Moulden, 576 S.We2d 817; Corley,582 S.W.2d 815. Even in the federal realm, the U.S. Sup. Ct. has recognizedvalid state interests in adopting procedural rules requiring defendantsto make contemporaneous objections to objectionable matters attrial in order to subsequently secure federal habeas corpus review ofthose matters. Wainwright v. Sykes, 433 U S . 72, 97 S.Gt. 2497, 53 L.Ed.2B594 (1917); Francis v. Xendersan, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Bd.2d149 (1976). In Engle v. Isaac, 102 S.Ct. IS58 (1982), the court recentlyheld that on federal habeas revsew, the futility of presenting an objectionto the state courts cannot alone constitute "cause" for a failure toobject at trial under Wainwright v. Syke2. The court did acknowledgethat in some cases (Ex Parte Demouchette, 633 S.W.2d 879; Er Parte English,642 S.W.2d 482) it had granted relief under Estelle v. Smi,th, even thoughno contemporaneous objection was made at trial, applying what this courtperceived to he the fedeEal constitutional law rejecting a waiver of thiserror.SD-18 VOICE for the DefenselAugust 1983

MICHAEL CAMPBELL, No. 027-83, Opinion on D's PDR: Aff'd, Judge Campbell,En Banc, 6/29/83.HARRASSMENT INFORMATION NOT FUNDAMENTALLY DEPECTIVE: Sec. 42.07 providesthat a person commits an offense of harrassment if he intentionallycommunicates by telephone or in writing in vulgar, profane, abscene orindecent language or in a course and offensive manner and by this actionintentionally, knowingly, or wrecklessly annoys or alarms the recipientor intends to annoy or alarm the recipient. The misdemeanor informationomitted the words "by this action". The court held that the gravamen ofthe offense of harrassment was the communication to a victim in vulgar,profane, obscene, or indecent language or in a course manner with theintent to annoy and alarm the victim, and that the phrase "by this action"was a transitory or prepositional phrase that tends to connect the actof communication by the offender to the intent of the offender to annoyand alarm the victim. A commonsense reading of the information shows thatit was sufficient to allege an offense. Ex Parte Adame, 632 S.W.2d 619.EXTRANEOUS OFFENSE - RETALIATION: D was on trial for the murder of X.It appeared that D and a defense witness were subsequently charged forretaliation arising out of threats by them against state's witnesses inthis case. The court held that under these circumstances Art. 38.29 wouldnot prevent demonstration of the charges against the defense witness toshow her bias, prejudice, and interest in testifying for D. By footnotethe court stated that "although the general rule is the details of theoffense should not be shown (Murphy, 587 S.W.2d 718), trial objection wasnot based on that rule. Trial objection must be on the same ground asthat urged on appeal. (Carrillo, 591 S.W.2d 876). Neither was this theoryasserted in the ground of error on appeal.Also important is the court's approval of the following language in the1, CA decision:h he court then recognized that although under Art. 38.29 CCP'unadjudicated criminal offenses are inadmissible for impeachmentpurposes,' evidence of pending charges is neverthelessadmissible 'under certain circumstances for the limited purposeof showing bias, prejudice, interest, and motive of thewitness in testifying as he did'. Carrillo, 591 S.W.2d 876;Moreno, 587 S.W.2d 405."ALONZO HYNSON, No. 902-82, Opinion on D's PDR: Rev'd, Judee Clinton, EnBanc, 6/29/83.DOES "RECENT UNEXPLAINED POSSESSION ETC." RULE APPLY TO PROSECUTION FORRECEIVING STOLEN PROPERTY?, No. Jn order to draw inference of presumptionof guilt from the circumstance alone of possession of stolen property,such possession must he personal, must be recent, must be unexplained,and must involve a distinct and conscience assertion of property by theaccused. HL?_e, No. 620-82, del. 3/16/83. However, such possession doesnot justify the conclusion that he fraudulently received the st6leg propertyknowing that it was stolen and thereafter concealed it.August 1983IVQIC8 for the Defense SD-19

Thus, the court found that the CA decided the sole ground of errQr presentedby D on an impermissible "pr&umption" of guilt for appropriatingproperty knqwing that it was stolen by another, rather than consideringwhether unexplained possession of recently stolen property was coupledwith other signiffcant circumstances so as to justify an inference ofknowledge on the part of D that the property was stolen. For that reaso~the CA erroneously affirmed the order revoking probation; the cause wasremanded to the CA.STEVE ROBLES, No. 245-82, Opinion on State's PDR: Rev'd and remanded toCA, Judge McCormick, En Banc, 6/29/83.JURY CHARGE IN BURGLARY OF A VEHICLE CASE NOT FUNDAMENTALLY DEFECTIVE:Indictment alleged D did enter a vehicle, whereas court's charge authorizconviction if jury found D did break into or enter a vehicle. Court fourthat under the charge given, if the jury found that D did break into thevehicle, the jury necessarily found that D entered the vehicle. Thus t h ~court's charge did not enlarge on the indictment because proof of breakirinto is not different from or less than proof of entering.WILLIAM ANDR-, No. 701-82, Opinion on State's PDR: Rev'd in part, aff',in part, Judge Teague, En Banc, 4/20/83.APPLICATION PARAGRAPH OF CHARGE WAS EFFECTIVE BECAUSE IT ASSUMED TWOESSENTIAL DISPUTED FACTS: D was convicted of promotion of obscenity byselling an obscene magazine. The application paragraph related in partthat if the jury helieyed D did, knowing the content and character of thematerial, intentionally sell to X obscene material, namely one magazineentitled "Swedish Erotica No. 25" which depicts and describes patentlyoffensive representations of actual or simulated sexual intercourse, analintercourse, and oral sodomy, then the jury should convict. D objected onthe grounds that this application paragraph assumed two essential facts:(1) that the magazine in question was obscene material and (2) that itdepicted and described patently offensive representations of actual orsimulated sexual intercourse, anal intercourse, and oral sodomy. The courtheld that a trial court in its charge to a jury should never give the juryan instruction which constitutes a comment by the court on the elements ofthe alleged offense, or assumes a disputed fact, unless such fact comeswithin an exception to the general rule of prohibition that is set out inMarlow, 537 S.W.2d 8. Although D did not dispute the authenticity of themagazine or its content in this case, D made an issue during the trial asto whether the magazine was obscene. Thus reversible error occurred.NO NECESSITY TO DEFINE,THE TERM "PRURIENT INTERESTIr: The court first notedthat the term "prurient interest" was not contained either in the informationor in the application paragraph of the court's charge. Only in thecontext of the definition of the word "obscene" does the phrase "prurientinterest in sex" appear in the charge. The term "prurient interest" isnot defined by statute and there is no requirement to so define the termin the court's charge. A similar attitude was taken recently in King,553 S.W.2d 105, a death penalty case, wherein this court beld that statu-SD-20 VOICE for the DefenseJAugust 19831I

tory terms such as, "deliberately", "pr~bability","criminal acts ofviolence", and "continuing threat to society", all of which unquestionablyhave acquired technical meanings, dld not have to be defined in the chargeto the jury even in the face of an objection. Further, the absence ofa definition for this term does not render the statute void for vaguenessnor does the omission violate either due process under the federal constitutionor due course of law under the Texas Constitution, Red BluffDrive In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981).In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 11973)(which overruled Roth v. United States, 354 U.S. 4761, the Supreme Courtheld that printed material is not protected by the first amendment to theUnited States Const. if the material, when viewed as a whole, appeals tothe prurient interest in sex, and the material portrays "sexual conductin a patently offensive way, in which, taken as a whole does not haveserious literary, artistic, political, or scientific value". The threepart test of Miller is set forth at page 11 of the slip opinion in Andrews;the four part test for material to be obscene under the Texas statute isset forth at page 15 of the slip oplnion in Andrews.\.THE APPELLATE COURTS MUST FORCE TBEMSELVES TO BE A CAPTIVE AUDIENCE: Itis encumbent upon appellate courts to further make the independant determinationwhether the material is constitutionally obscene. In other words,under the decisions of the U.S. Sup. Ct. and the CCA, in an obscenity case,where the defendant pleads not guilty and trial is to a jury or to the courtbut the defendant is found guilty and appeals his conviction, it is nowencnmbent upon intermediate appellate courts of Texas as well as the CCA,to make independant determinations as to whether the material that isalleged to he obscene is constitutionally obscene. And then there was thejudge who was overheard saying that this would simply additional requiredreed+~g viewing for law clerks!JOSEPH LANDRY, No. 68,725, Aff'd, Comm'r Dally, En Banc, 7/29/83.INDICTMENT AND COURT'S INSTRUCTIONS WERE SUFFICIENT: D argued that theindictment and the court's charge were fundamentally defective, for thefirst time on appeal. The indictment alleged that D did "break and enter"the vehicle. The court's charge authorized conviction if the jury foundD did "bteak into or enter" the vehicle. Sec. 40.04 PC (burglary of avehicle) provides in part that an offense is committed if a person "breaksinto or enters a vehicle".Since the definition of the term "entry" in Sec. 30.04 is broad eaopah toinclude "breaking into", "enter" and "breaking into" are not two separateways or methods in which the offense of burglary of a vehicle nay be committed;when entry is all+ged it includes breaking into. Therefore theindictment is not fundamentally defective, the court's charge is not fundamentallydefective, and the court did not err in deffntng the term"break intov, although it would be unnecessary to submit a defihition ofthe words "break into" since those words are not statutorily defined andthey have a common meaning. Adaml, 524 S.W.7-d 693.August 1983/VQICEfur the Defense SD-21

RANDALL SEWELL No. 63,266, Murder, Aff'd, Judge McCormick, Panel opinion,4/20/zSDOUBLE JEOPARDY--MANIFEST NECESSITY SHOWN: After D's Motion to Shufflewas overruled, a jury was impaneled and sworn. Court decided error hadbeen committed and when the state and D declined to ask for mistrials andannounced their desire to continue the trial, court on own motion declareda mistrial determining that there was a "manifest necessity to do so".Whether there can be a new trial after a mistrial has been declared withoutthe defendant's request or consent depends upon whether there is a "manifestnecessity" for the mistrial or the ends of public justice wouldotherwise be defeated. However, only if jeopardy has attached is a courtcalled upon to determine whether the declaration of a mistrial was required9,by manifest necessity". Chvojka, 582 S.W.2d 828; Illinois v. Sotuerville,410 U.S. 458 (1973). Here jeopardy had attached as the jury had beenimpaneled and sworn. Crist v. Bretz, 437 U.S. 28 (1978).Q: Did "manifest necessity" exist in this case? A trial judge properlyexercises his discretion to declare a mistrial if an impartial verdictcannot be reached, or if a verdict of conviction could be reached butwould have to he reversed on appeal due to an obvious procedural errorin the trial. If an error would make reversal on appeal a certainty, itwould not serve the ends of public justice to require the government proceedwith its proof when if it succeeded before the jury it would automaticallybe stripped of that success by an appellate court. Illinois v.Somerville, supra. (In Somerville the TC declared a mistrial after itdetermined it was faced with a defective indictment). Eere, the TC faceda similar situation in that in Texas the right to shuffle a jury panel isprovided for under Art. 35.11 CCP and upon timely demand it is an absoluteright, denial of which constitutes reversible error. Davis, 573 S.W.2d780. Thus the TC did not abuse its discretion in granting a mistrial onits own motion. See also Durrough, 620 S.W.2d 134.BILLY SMITH, No. 956-82, Opinion on D's PDR: Aff'd, Judge Odom, En Banc,5/11/83.ERROR IN COURT'S CHARGE HARMLESS: Court in applying law of murder to factsomitted element of "acting under the immediate influence of sudden passionetc.", hut did include it in subsequent voluntary manslaughter instruction.Court held that jury must have found all elements of murder under both themurder and voluntary manslaughter instructions since the murder and voluntarymanslaughter paragraphs required such finding. "The benefit toappellant from the erroneous submission of the voluntary manslaughtercharge is obvious. The error was not merely harmless; it was actuallyadvantageous in its consequences for the appellant".SD-22 VOICE fo~ the DefenseJAugust 1981

WILLIE SKINNER, No. 839-82, Opinion on State's PDR: Rev'dIJdgmt of Acq'tlentered, Judge Teague, En Banc, 4120183.EVIDENCE INSUFFICIENT TO PROVE D GUILTY OF PROMOTING BY EXHIBITING TO XOBSCENE MATERIAL, NAMELY, A FILM: D, a college student, worked at atheater to defray her expenses at college and just happened to be thecashier on the unfortunate day the officers bought tickets and enteredto view the film. She had no managerial responsibility or financialinterests in the theater or its operations and for that matter had neverseen the film. The evidence was held insufficient. Acevedo, 633 S.W,Zd856.STEPHEN BARNHART, No. 808-82,En Banc, 4120183.Opinion on State's PDR: Rev'd, Judge Teague,MOTION TO QUASH PROPERLY OVERRULED: D was convicted of promoting obscenity.In part, the informatjon alleged that D, knowing the content andcharacter of the material, intentionally did sell to X obscene material,namely, one magazine entitledwhich depicts patently offensiverepresentations of actual and simulated sexual intercourse and sodomy.The court held that the word "sodomy" was merely descriptive of what thestate had to prove and thus the matter sought through the Motion to Quashwas essentially evidentiary. A charging instrument must allege sufficientfacts to give the accused person notice of precisely what he is chargedwith committing. However, unless a fact is essential to give an accusedperson notice of what he is accused of committing, the charging instrumentneed not plead the evidence that the state will rely upon to proveits case. May, 618 S.W.2d 333.JOHN DUPLECHIN, NQ. 378-83, Qpinion on D's PDR: Rev'd and remanded to CA,Per curiam, En Banc, 6/29/83.ENHANCEMENT - FUNDAMENTALLY DEFECTIVE PRIOR CONVICTION - SUBSEQUENT ATTACKAVAILABLE: D was convicted of aggravated assault and two prior convictionsbrought him automatic life. In this PDR, D complaints that one prior convictionused for enhancement was based upon a fundamentally defectiveindictment. No objection was voiced at trial. The absence of an objectionto the use of the prior conviction, based upon a fundamentally defectiveindictment does not serve so as to preclude a subsequent attack upon aconviction that utilized the prior conviction for enhancement purposes.Thus D may challenge for the first time on appeal the validity of theindictment underlying one of the prior convictions used for enhancementpurposes. Ex Parte Nivens, 619 S.W.2d 184; u, 633 S.W.2d 520 was di5-tinguished in that H i l l claimed one of his prior convictions used for 'enhancement was invalid because he was without counsel at the time O f theconviction. H ~ S failure to object at trial precluded later complaint.

II&Est=i6t Jd$e Ea -present defendant in the appeal of bfrr enn6ietlen ankwas csmrpensatea therefor. WePner alsa filed a ~otioh for appointlilent ofcounsel to represetit t3e dafmdaut 17) the bat1 haheas corpus appeal, ~ b i ~ hnotion mas deqfed. ThSs denial was neser challen~ed. Weiner uadertookto repressr-Rt the defendant fn intBPs bail lastter and now contends his appaintnentto appeal the or$$inal cozmiotion alsa required rqresentatlon %n thebafl habe~s coipuw appeaZ and thus be should be cornpensatad therefor.Court held tkat the order- appohting Wel-ae* dld not cpnstitute 4n appointaentts represent, rha dePendant ia %He bafl babeas corgus appeal an4 thusth.* v~j.t ~f aantkms wba $enfed.1.In his coacurring spitrim Judge Onion adroftly notm thett there is noappeal from a refusal. to issue or grant a weft crf h@beas corpus even aftera hearing to cletetmine whether to grant: the writ; and thaat there are tactmerhods ta obtsin bail an apseal, by writ or by Art. 4C.O&. Reaause of thelatter provision manda.rtrws shauld not be available in this case. In anyevent I think it is fais to say Chat Judges O.nion, %Tfller, i*IcCormick,Glintan, and T e w e are very concetned aboat the imglfcatio~s of the boldingof this case. As wne judga pointed out, "An order appotnting counselon appeal for an indfgent defendant should not be requfred to iteaize thesteps that counsel has authoriaed to undertake on appeal. An indigentdefendant i5 entitled to the effective assistzlaee ef counsel an appeal.Such counsel should not be limited or ~est~ainedit9 undextakinf~ by thefailure of the appaintment ort?e+- to list evergr step he is authorized totake on the defendant's behalf while the case is on %peal." (Onion,cancrurlitlg opinion, pgge 7). And as enrphaeiaed by Judge Clfvtan in hiselisseating opinion: "Inhibiting full, robust and consoientlons xepresentatienof %he iadigent appellant, as well as tha indigsat aceuaed, illserves t$e legal professfon and the criminal justice systea."DUBCAE3 V, BVAWS, No, 69,113, Applioation for W r i t of Prohibition, JtiagftYcCormSck, En Bane. 6/29/83.GWT bUFB0RITH IS AVAILABLE TO THE COURTS OF APPEAL TO ENPQRCF; ?BE kESPQ1Y-SIBILITY DT APPOIWTEV REPELCATS FQUNSEL FOB AB INDICEMT APPELLABT TOIEJSBRE TBE FrLIEO QP AM APfYELLATl$ BBIEP2: Beemme of Art. QbL.11 CGP, oncetbe appellate record is filed in the CA, the TC is without aothority toact further exeept as to band pursuant to Art. 41.81 CGP, Thua a GA inthese dtuarions tnay not stag the proceeaings and 0s-dar the TC to ZamOQe acaort appbinted eoqnqal ia a case pendins be4wre the appqale kourt &mdappoint saother attoxney. ,The C,A m y abacet the appeal and iastruet the T@ to etqsvfa the pretectianof the dght of an indisent defendant t~ the effectrye as~istancs sfconaael on appeal and Pn EB dohq tha jusis&ietisn af: tbe ease may beproperly reeurn@d to the TC whfeh Pn tern can eeereise the oprlons delineetedin Fuillar& 557 S.W.2d 118. If the appeel is ebated, the eaea istrested 6s if nb appeal had been frfed ln the appellate cs'urt, Lesbjrn&SD-24 WEB fm r& ~ ~ / A u $ u1 sDE3t

509 S.W.2d 356. The courts of ~ppeal ~ l s o have available the power ofconteapt pursuant to Art. 1911a VACS.CHARLES BUFORD, No. 1010-82, Opfnion on D's PDR: Rev'd, Judge Campbell,En Banc, 6/8/83.SPEEDY TRIAL ACT--COURT ERRED EN OVERRULING D'S MOTION TO DISMISS: D wasarrested for attempted murder on May 5, 1979 and released on bail 5/23.As a result of the 5/5/79 incident, a parole violation warrant was issuedand D was reincarcerated in TDC froa July 24, 1979 until Jan. 18, 1980.An attempted murder indictment was not returned until Oct. 26, 1979, or144 days after arrest. In response to Drs motion to dismiss, the statereplied that it was ready for trial and had been ready since shortly afterthe arrest was made. The state's rationale for not obtaining an indictmentbefore Oct. 26 was articulated by the CA as follows:I1The state countered with evidence that a grand jury wasavailable in Morris County only twice a year, once in thespring and once in the fall, and that the spring sessionof the grand jury had already been recessed at the timeappellant's offense was committed. It was shown, however,that the state considered asking the court to call thegrand jurors back during the spring term but did not doso because the district attorney and his investigatorwere unavailable and they chose not to request the MorrisCounty attorney to present appellant's case to the grandjury. 11The court held that the state failed to demonstrate why it was not readywithin any of the exceptions to the Speedy Trial Act. Pate. 592 S.W.2d620.GEORGE PHIFER, No.5/25/83.64,359, Murder, Life, Rev'd, Judge Clinton, En Banc,TRIAL COURT ERRED IN REFUSING TO SUPPRESS D'S WRITTEN STATEMENT MADE ASA RESULT OF CUSTODIAL INTERROGATION--WAIVER OF COUNSEL NOT SHOWN: D wasa poorly educated 28 year old black male who was unable to read or writ6except to sign his name and had an IQ of 69. Actually, three separatelaw enforcement agencies dealt with D after his arrest between about Jan.2 and Jan. 9. At the outset D did ask for counsel and a court appointedcounsel was made available. This attorney made an agreement with twolaw enforcement agencies not to talk or question D outside of his presence.Members of the third law ~nforcement agency, however, managed to 2steacr~gateD and eventually obtain a statement. Because of the times, daees,persons, and sequences of events, this case has to be read ta be beJieved,The court identified the question as whether D waived his right to thepresence of counsel during custodial interrogation under the Fifth AmEtlament.Stone, 612 S.W.2d 542. The court stressed the heavy burden on thegovernment to demonstrate that the defendant knowingly and lntentionallyAugust 1983/VOICEfor the Defense SD-25

waived his privilege against self incrimination and his right to retainedor appointed counsel. Faulder, 611 S.W.2d 630. The court noted that theTC found the confession was freely and voluntarily made--but the questionof "voluntariness" is an inquiry distinct from whether a knowing andintelligent waiver occurred. Neither is the question answered by anyfinding that D waived the right to have his attorney present during themaking of the statement. The Fifth Amendment guarantees the presence ofcounsel during interrogation, which by definition is designed to elicitand necessarily preceeds an incriminating response. *de Island v. Innis,446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).What must the state prove in order to establish waiver? An accused havingexpressed his desire to deal with the police only through counsel, is notsubject to further interrogation by the authorities until counsel has beenmade available to him unless the accused himself initiates further communication,exchanges or conversations with the police. Edwards v. Arizona,451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In this case thestate had the burden at the suppression hearing to prove that after thedefendant had requested counsel and defense counsel had secured an agreementamongst various law enforcement authorities not to talk to the defendant,the defendant initiated the later meeting at which he gave a finaland culpatory statement. Apparently on the morning of January 9 an officerinitiated a conversation with D; during a second conference with D, Deventually stated he did not want his attorney present and then confessed.The court emphasized that it would not fashion a rule that the police mayviolate a prisoner's Fifth Amendment right to the presence of counsel aslong as they eventually obtain from him during the fnterrogation a statementthat he does not wish counsel to be present while he confesses.Wilkerson, 68,937 (del. 5/18/83).BOBBY SEARS, No. 61,677, Opinion on State's Motion for Rehearing: Denied,Judge Odom, En Banc, 6/18/83.APPLICATION PARAGRAPH OF ATTEMPTED RAPE CHARGE FUNDAMENTALLY DEFECTIVE:Attempted rape indictment alleged that D did with specific intent to commitrape attempt to have sexual intercourse with X, a female not his wife withoutthe consent of X by knowingly and intentionally using force and threatsilsaid attempt amounting to more than mere preparation that tended but failedto effect the commission of the oEfense intended.The application paragraph in the court's charge read:"Now if you find from the evidence beyond a reasonable doubtthat on or about the 17th day of April, 1978, in Dallas County,Texas, the defendant did without the consent of X, a female,and hy the use of force, attempt to have sexual intercoursewith the said X, and that the said X was not the wife of thesaid defendant, then you will find the defendant guilty ofattempted rape. ''The majority opinion held the application paragraph fundamentally defective.Stidbam, 590 S.W.2d 502. Judge Teague concurring opinion stated that theSD-26 VOICE for the DefensejAugust 1983

". . . There is one thing qore I want to say here. You know,there has been a lot of testimqny about who waq there andwho saw what. And there is one person we haven't heard fromin this case, who could testify a lot about what was goingon, and that's Miss Turner here. Tyler. Excuse me.Defense Counsel: Your Honor at this time I want to make anobjection. When Mr. Malone (prosecutor) was making hisoutbursts on the one person that hasnbt testified, he leeredand directly looked at the defendant and nodded his head overthere. "At the Motion For New Trial hearing it wae shown that the DA carefullypositioned himself and pointed directly at the defendant during most ofthe complained of remarks, and then after a very "pregnant pause" concludedhis statement by making reference to one Miss "Turner" or "Tylerm.The defense testimony established the DA's physical conduct. The courtreporter verified the pause of over a second which occurred before theprosecutor specified to whom he was referring when he said that there wasonly one person the jury had not heard from, although the pause obviouslywas not reflected in the record. The court by footnote then stated thatthe state on appeal contended that this argument was meant to explain theabsence of a key witness for the state, Jean Tyler. " Such contention isbeyond the pale of reasonability and common sense. No reasonably competentprosecutor would, during jury summation, stand in proximity to appellantand his attorneys and call the jury's attention to the absence and failureto testify of one of his (the prosecutor's) eye witnesses." The courtconcluded that the argument in conjunction with the prosecutor's physicalactions and delivery was manifestly intended to be and was of such acharacter that the jury would naturally or necessarily take it as a commenton the failure of the appellant to testify, in clear violation of Art.38.08 CCP. w s , 525 S.W.2d 177; -- Bird, 521 S.W.2d 89 (it should alsobe noted, however, that the TC overruled D's objections at trial).RICHARD KING, No. 67,652, Murder, Death, Rev'd, Judge Teague, En Banc,6/8/83.D'S ORAL CONFESSION TO 1974 ARSON CASE DURING PUNISHMENT PHASE NOT ADMIS-SIBLE UNDER ART. 38.22.CCP: Indictment and evidence showed D killed X inX's residence while X was watching a football game on TV. During punishmentphase, police officer testified as to D's bad reputation in Floridaand that in 1974 D confessed to this officer that he had burned his automobilefor the insurance. The Florida judgment of conviction was notadmitted into evidence as D showed that at the time of the conviction hewas without counsel. 5ee Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258,19 L.Ed.2d 319 (1967). D's oral confession was the result of custodialinterrogation and the stbte does not argue otherwise. D's trial occurredin March, 1980, Although the oral confession was made in 1974, theadmissibility of the oral confession is governed by the law in effect atthe time of trial. Wilson, 473 S.W.2d 532. Although a TC in a capitalmurder case has wide discretion in admitting or excluding evidence at thepunishment stage, nevertheless exclusionary rules of evidence still governthe admissibility of evidence. Rumbaugh, 589 S.W.2d 414. The stateargued that under Art. 38.22 Sec. 5 the statement was admissible, by virtuof Art. 37.071, Sec. a CCP. The court held, however, that Sec. 5 had noSD-28 VOICEfor the Defense/August 1983

application to th,e oral confes,aion. of D 'ecause the amendatory act whichpromu1gqte.d that sect.ion of the etatute expressly stated th.at' it appliedonly to stateme~nts ma,de. 00 pr after' its effecti;ve date (-Aug. 27, 1977).Thus: the s-tatqnent of D wae Onadn?i.sslhle.. Butler, 493 S.W.2d 190.EVIDENCE INSUFFICIENT TO SUSTAIN A "YES" ANSWER TO llPRO~ABZLI~Y'r QUESTION:Other than arson testimony and reputateon testimony of one officer, stateshowed D committed several Gurglaries of schools for whlch he receivedshock probation type sentences. The court concluded that the evidencewas jnsuSficient to support the affirmative answer to the probability%uestlon a9 to future violent conduct. Wallace, 618 S.W.2d 67; Sanne, 609S.W.2d 762; Brasfield, 600 S.W.2d 288; Warren, 562 S.W.2d 474. Further,court was unahle to hold that there was not a reasonable possibility thatthe admission of the oral confession did not materially affect the jury'sdecision to answer the second question in the affirmative. Jordan, 576S.W.2d 825; Clemons, 605 S.W.2d 567. As the punishment was assessed bythe jury, the court may not remand the cause only for a new hearing onpunishment.ROOSEVELT GORDON, No. 68,414, Aff'd, Judge Odom, En Banc, 6/8/83.DEFENDANT'S ADMISSION OF GUILT OF OFFENSE AT PUNISHMENT PHASE WAIVEDEVIDENTIARY OBJECTION: During guilt/innocence phase, state impeached Dwith prior felony conviction for possession of marijuana over ten yearsold, over objection. However, majority held that at punishment stage, Dagain testified hut admitted he was guilty of the burglary offense allegedin the indictment and for which he had already been found guilty by thejury and thus this evidentiary objection made at the guilt stage was waivedby such punishment stage testimony. Brown, 617 S.W.2d 234.FFFBUM WEBBER, No. 68,505, Kidnapping, Aff'd. Comm'r Dally, En Banc, 6/8/83.AND WILL THE REAL "VERDICT" PLEASE STAND UP: After deliberations on punishment,the foreman handed the verdict to the court. The court statedthat "the jury has found the defendant guilty of the offense of kidnappingand assesses punishment at 4 years confinement in the Texas Department ofCorrections" and told the jurors they were excused. The defendant requestedten days for sentencing. The court granted the request and then immediatelyadded--apparently to the jury--"now, the portion that you have filledout and signed here, it says, 'we the jury find the defendant guilty ofkidnapping and assess punishment at 4 years and we further find he has aiwd*been convicted in this or any other state of a felony and recommend punishmentto he probated'. Was that not your verdict?" The foreman statit was not their verdict., Defense counsel moved for a mistrial, am0other things stating that the jury had been discharged. The jury wapolled and each juror stated it was not their verdict. The court a1the jury to look at its verdict again and the jury deliberated two mmlnutes and returned a verdict showing punisBment was not to be prbbateddThe court held tliat when tBe jury is not sk3garstetI ,C.f a ~ son'ly l k??.&&'ir~,&%$separat'& and are still in tfie pkeaenc.e be fhe~ eeiift ap$e%21~'' t-hdAugust I983 / VQEE for the Defense SD-29

KO one has talked to the Jurors about the case, the court may recall thejurors to correct their verdict. The record does not show that the juryhad separated, even though the coyrt had told the jurors they were excusedand they had not been out of the presence of tFe court when they werereconvened to correct the verdict. West, 340 S.W.2d 813.FgAMK HENDERSON, No. 68,429, Possession of gambling paraphernalia, Aff'd,Comm'r Dally, En Banc (514 split), 6/29/83.EVIDENCE SUFFICIENT TO SUPPORT POSSESSION OF GAMBLING PARAPHERNALIA CON-VICTION: Officers executed a search warrant and arrested D while he wasplaying poker with others; $14,000 was confiscated, together with two"line sheets" in D's pocket. An officer explained that a lfne is a pointspread on a football game established for gambling purposes to stimulatean equal amount of betting of both teams. The numbers in the first colu?nnof squares in the exhibits were the lines established for gambling pnsposesand the figures in the boxes where the teams were named were thosefound in the newspapers. The line sheets had five telephone numbers ofthree known bookmakers in Houston. One of the telephone numbers wqs ofTom Venus, who, although not arrested, came to the premises where D wasarrested while the search warrant was belng ezecuted. Comm'r Dally notedthat much of the testimony concerning the line sheets was admitted withoutobjection that the officer had not been qualified as an expert witness.In this case it was alleged gambling paraphernalia was possessed with intentto further gambling. The state's proof that D possessed the "line sheetsN,that they were "records", "slips", or "writings" described by the statuteas gambling paraphernalia when aided by the prima facie evidence provisionof Sec. 47.08 (proof that an actor possessed gambling paraphernalia isprima facie evidence that the actor did so knowingly and with the intent\-,to further gambling) furnished sufficient evidence to prove D possessedgaabling paraphernalia with the intent to further gambling.JUAN MORENO, No. 626-82, Opinion on State's PDR: Rev'd, Judge Clinton,En Banc, 6/1/83.MANDATORY PERIOD ALLOWED FOR PREPARATION FOR TRIAL UNDER ART. 26.04 CCP:An attorney previously appointed to represent an indigent accused who isconfined to jail in lieu of bail on a complaint is entitled to ten days toprepare for trial from the day the indictment or information is filed withthe clerk of the TC.By footnote 6, the court stressed:I,This holding may make it somewhat inconvenient for appointedcounsel to follow more closely whatever charging proceedingsimplicate his client; however, to be remembered is that unlesswaived a confined accused still must be allowed ten days tofile written pleadings after being served with a copy of theindictment in a felony case. Art. 25.01, 25.02, and 27.12 CCP.Art. 25.04, Id., expressly provides that if the offense is amisdemeanor service of a copy of the charging instrument isSD-30 VOICE for the Defeme/August 1983

not nece$.sary, but th.e accused pr hls. counp,el may demandand s,hall he given a-copy. th.e.$eof., $e.eGoIden, 2.44 S.W.816 (:1922) a,nd Green, 269 S.W'. 795 (:l9.2').'..". .JAMES WHITAKER, No. 867-82,En Banc, 6/1/83.Opinion on State's PDR: Rev'd, Judge Odom,ARBITRARY 45 MINUTE LIMITATION ON VOIR DIRE EXAMINATION NOT ABUSE OF DIS-CRETION: D was convicted of delivery of methamphetamine. CA reversed forfailure to grant D adequate time to examine prospective jurors during thejury selection process, citing - DeLaRosa, 414 S.W.2d 668. In this 514decision, court found D had shown no harm and TC's limitation of jury voirdire to 50 minutes was not unreasonable.Prior to trial Judge Odom notes that counsel had jury information forms25 minutes before voir dire began and then the court set a limitation of45 minutes per side on examination of the panel. The state took 37 minutes.D took up the entire 45 minutes and was given an additional five minutesto complete it. When D was questioning the 25th member of the panel, thecourt cut him off and D was prohibited from questioning the remainingseven persons of the panel. D requested permission to perfect a Bill ofException in order to show what responses the prospective jurors he hadnot questioned would have given; the request was denied.One dissenting opinion emphasized that the CA was impressed that therecord indicated no attempt on the part of D's counsel to prolong the voirdire; that no objections by the state as to D's questions other than toform were made; and that none of the questions asked were irrelevant orwere immaterial or were unnecessarily repetitious.Judge Odom writing for the majority, however, emphasized that the recorddid not reflect whether the jury was composed entirely from those he wasable to examine or whether it included veniremen he did not examine individuallyand therefore D had not shown that he was harmed. Odom stressedthat the TC should be allowed discretion and that counsel should have theresponsibility to budget his time within reasonable l i m i t s set by the TC.ARNULFO ACOSTA, No. 919-82, Opinion on State's PDR: Rev'd, Judge TomDavis, En Banc, 6/1/83.COLLATERAL ATTACK OF ENHANCEMENT PARAGRAPHS--DEFENDANT FAILED IN BURDENOF PROOF: D's indictment alleged escape from custody, with two priorCalifornia convictions alleged for enhancement. CA reversed, holdingthat the two prior felony convictions from California alleged in theindictment were not sucjec't to being used absent proof of waiver ofindictments. The judgments in the two causes reflected that the trialswere upon informations. Initially, the law in other states is presumedto be the same as the law of Texas when not proved to be different. Second,while Texas law requires an affirmative waiver of an indictment in a noncapitalfelony case, there is no requirement that the waiver of necessityAugust 1983/VOICE for the Defense SD-31

e reflected in a formal judgment or sentence; and there is a presumptionof regularity of judgment. Court held that it was the burden of thedefendant to demonstrate that the two prior California convictions werevoid, i.e., that the defendant did not waive the right to trial by indictmenteither in writing or in open court. Hankins, 646 S.W.2d 191; Ex ParteRaines, 555 S.W.2d 478.WARREN COSPER, No. 238-83, Opinion on D's PDR: Granted, Per Curiam, En Banc6/1/83.CA ALWAYS HAS OBLIGATION TO REVIEW SUFFICIENCY OF EVIDENCE ON APPEAL: CAreversed D1s conviction, holding that court's charge to the jury was fundamentallydefective for failing to require a jury to find all of theelements of the offense of engaging in organized criminal activity underSec. 71.02 PC. Cosper, 646 S.W.2d 676 (Tex. App. - San Antonio, 1983).In his PDR, D now argues that CA erred in failing to address seven separategrounds of error in which he challenged the sufficiency of the evidenceto support his conviction, that if any of these grounds have merit anyfurther prosecution would be barred under Burks v. United States, 437 U.S.1 (1978) and Greene v. Massey, 437 U.S. 19 (1978).Court agreed and pursuant to authority conferred on CCA by Art. 44.37 and44.45(b) CCP and Rule 304(k) (Tex. Cr. App. Rules), appellant's PDR isgranted and the cause is remanded for consideration of said grounds oferror, without any expression of opinion with respect to the ultimatedisposition of those grounds of error.PRENTICE ELLARD, No. 68,425, Possession of morphine, Rev'd, Comm'r Dally,En Banc, 6/1/83.SEARCB AND SEIZURE--DEFECTIVE STIPULATION OF EVIDENCE CAUSES REMAND: Dwaived jury trial and pled not guilty before the court; D urged on appealerror based on overruling of motion to suppress. State responded thatstipulated evidence independent of any evidence which D urges was unlawfullyobtained will support the conviction. D stipulated that "(6) that.withbut admitting the tkuth of any of the allegations, the state's witnesseswould testify as to facts that if believed, would satisfy on the elementsof proof in the indictment." The court first observed that this stipulationwould support the finding of D's guilt independent of any evidencethat was alleged to have bBen unlawfully obtained. However, the agreementto stipulate was flawed and did not comply with Art. 1.15 in that D'swaiver and consent to stipulate evidence was not approved by the courtin writing and filed in the file of the papers in the case. Compliancewith Art. 1.15 is mandatqry for a stipulation to be considered as evidence.Valdez, 555 S.W.2d 463.1As D's waiver and consent was not approved by the court in writing andfiled with the file of papers in the cause, the stipulation may not heconsidered and the evidence fails to support the conviction. Young, NO.68,165 (4/6/83). Since this was trial error, an acquittal will not beentered. Young, supra; EX Parte Duran, 581 S.W.2d 683.5D-32 VOICE for theDefense/Au$ust 1983

EX PARTE GARY WESTCQTT, No. 69,138, Rev'd, Judge Miller, En Banc, 6/1/83.PROCEDURE FOR HOLDfNG DEFENDANT WITHOUT BOND UNDER ART. 1, SEC. lla(2) OFTEXAS CONSTITUTION: In order to hold a defendant without bail under Sec.lla(2) of the Tedas Const. the following sequence of events must occur:1. A defendant must be indicted for a felony and be out of jailon bond;2. A defendant must Be then accused of committing, while on thatbond, a felony less than capital in this state:3. A defendant must then be arrested on the accusation in #2 above;4. A district judge must hold a hearing wherein the state must showsubstantial evidence of the defendant's guilt for the felony in #2 aboveand the district judge must enter an order denying bond, all within sevendays of the defendant's arrest in #2 above.The chronology of events showed that D was arrested for aggravated assault,posted bond, and was released from jail. D was then indicted for aggravatedassault within ten days. Within four months D was arrested formurder, posted bond, and was released and several months later was indictedfor murder. Four days after this murder indictment the trial judge grantedex parte the state's motion that bond be denied pursuant to Art. 1, Sec.lla of the Texas Constitution. Ten days later D was arrested when heappeared in court to answer the murder charge. Five days later a hearingwas held on D's W r i t of Habeas Corpus in the TC but the only evidencepresented was a stipulation of the above sequence of events.The district judge in this case apparently accepted the state's argumentthat he could issue an ex parte order denying bond after return of themurder indictment and hold a hearing within seven days of appellant'ssubsequent arrest. The state would have Art. 1, Sec. lla modified byuse of Art. 11.57 CCP so that the words "incarceration of the accused"would mean something other than appellant's Feb. 19, 1983 arrest for murder.This argument is without merit. Ex Parte Da*, 574 S.W.2d 166.It is apparent from the record that the district judge's order was notentered within seven days of appellant's incarceration upon the murderaccusation on Feb. 19, 1983. Even had the order been timely entered, tothis day no hearing as contemplated by Art. 1, Sec. lla has been held orsubstantial evidence of the guilt of the defendant offered in support ofsuch an order. The judgment of the district court denying bail to theaccused is reversed and the order denying bail is set aside. No MotionFor Rehearing will be entertained. Thomas v. State,621 S.W.2d 158.GARY BURKE, No. 454-82, Opinion on D's PDR: ~ev'd, Judge Onion, En Banc,6/22/83.,JURY ARGUMENT--MISSTATEMENT OF LAW: D, charged with murder, was conviceedof voluntary manslaughter and sentenced to 20 years TDC. D presentebevidence of self defense and that the deceased moved in a fast mannertowards him, etc. immediately prior to the shootfng. In his argument tothe jury, the prosecutor stated in part that before a person could usedeadly force as per self defense, and take another person's lWe, theAugust 1983/VOICE for the Defense SD-33

defendant would have to be willing to take a beating. D's objection thatthis was a misstatement of the law was overruled. An argument which containsa statement of the law eontrary to the coj~rt's charge is error.-, Davis 506 S.W.2d 909; Lincoln, 508 S.W.2d 635; Hauldin, 628 S.W.2d 793;Dues 634 S.W.2d 304.-3By overruling D'e objecti-on the TC put tiie staap of judicial approval onthe prosecutor's misstatement of law. The prosecutor's mark was not onlyerroneous but was so manifestly improper as to require a reversal. Theprosecutor's subsequent reference to the court's charge, without correctingthe misstatement of the law, was not sufficient to overcome the irreparableharq to D.LARRY TOWNSLEY, No, 583-82,En Banc, 6/22/83.Opinion on D's PDR: Aff'd, Judge Tom Davis,CONFESSION--ILLEGAL ARREST--INTERVENING EVENTS BROKE CAUSAL CONNECTIONBETWEEN ILLEGAL ARREST AND CONFESSION: D was convicted of murdering hisgirlfriend late the evening of Nov. 9. Her body was discovered at 9 a.m.Nov. 10. Shortly thereafter D, his mother, and brother drove up to thetrailor park and all were invited to the police station. D went willingly.At about 4 p.m. D demanded to be charged or released. Police found trafficcommitments which required fines totaling $56, which D was prepared to pay.D nevertheless was held and then interrogated at about 9 p.m. to 10:30 p.m.On Nov. 11 at 10:37 a.m. D was arraigned. Subsequently D was interrogatedby a polygraph examiner and subsequently gave three written incriminatingstatements.D was not illegally arrested until he unsuccessfully attempted to pay histraffic fines at 4 p.m. on Nov. 10. No probable cause existed to detainD between approximately 4 p.m. and 10:30 p.m. on Nov. 10. However, a verydetailed scrutiny of the evidence by Judge Davis showed probable cause tohold D after 10:30 p.m.The police cannot hold anyone for investigation, beyond the very briefkind of stop and frisk allowed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889 (19681, of a homicide on less than probable cause. Dunawayv. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Therebeing no probable cause to arrest D for the murder of his girlfriend, therewas no probable cause to hold him for investigation or suspicion of thehomicide, after 4 p.m. However, after additional facts were developed by10:30 o'clock p.m., the facts and circumstances were sufficient in and ofthemselves to warrant men of reasonable caution in the belief that anoffense had been committed and that D had committed the offense. Brinegarv. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).,A confession obtained through custodial interrogation after an illegalarrest should be excluded unless intervening events break the causalconnection between the illegal arrest and the confession so that the con-fession is sufficiently an act of free will to purge - the primary taint.Taylor v. Alabama, 102 S.Ct. 2664 (1982); Brown v. Illinois, 422 U.S. 590,95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Duncan v. State, 639 S.U.2d 314;Green 615 S.W. 700.fSD-34 VOICE for the Defense/August 1983

Four factors generally determine if the confession was an act of free will.(1) Whether l$i.randa warnings were giyen, as they were Jn this case. (2)Proximity of the confessfon to the arrest - D confessed over 24 hours afterthe illegal detention between 4:00 and 10:30 p.m. Court acknowledged thatthe action of the police in holding D for investigation of homicide whenthey knew they had no probable cause to arrest him initially was an improperand flagrant violation of Bis Fourth Amendment rights. The most importantfactor to be considered fn thie case 2s tAe presence of intervening circumstances.At 10:30 p.m. the police had probable cause to detain D for themurder of his girlfriend and thereafter he was legally confined. All theinformation obtained was legally obtafned and not the fruit of any illegalarrest.WILLIAM ANDREWS, No, 701-82, Opinion on D's Motion For Leave To File MotionFor Rehearing: Denied, Judge Clinton, En Banc, 6/22/83.BRIEFLY REVISITING MILLER V. CALIFORNIA, 413 U.S. 15, 93 S.Ct. 2607, 37L.Ed.2d 419 (1973): The court first stated that none of the often quotedstatements and observations by the S. Ct. were intended or designed todefine current community standards of obscenity in terms of tolerance, ashas been contended. The court then held that:I,. . . When a properly instructed jury in this state rendersa verdict of guilt reflecting its conclusion that the materialat issue is obscene, it has found the material exceeds thelimits of what the community tolerates. That is, rearrangingsomewhat the order of statutory factors, the jury has:First determined that facial content of the material insults(affronts) current community standards of decency to thepoint of being patently offensive to the average person inthe community;Then, after examining the whole of the material, concludedthat the average person, applying contemporary communitystandards, would find the material arouses (appeals to)such a shameful or morbid interest in sex as to be prurient;And finally, decided that the material in its entirety waswithout important (serious) literary, artistic, political,or scientific value in the community.So construed, the guilty verdict means the material on trial isobscene beyond the limits of tolerance of the communl-ty. I1JOE GIBBONS, No. 62,553, Aggravated kidnapping, l~?r'&Panel opinion, 6/22/83.

contains the necessary allegation of an act by the accused which comprisesmore than one statutorily defined neans of its performance, as here withthe allegation of abductton, But the indictment fails to specify which ofthe statutory definitions of the act is relied upon, the Sndictment issubjert to a Mot2011 to Quasli. Coleman, 643 S.W.2d 124; Gorman, 634 S.W.2d681.The state argued the omission was harmless in that through subsequent discoverythe state's theory upon the issue of abduction was made plain, butthe court stated that it has expressly rejected discovery as a cure forthis type of error in Brssfield, 600 S.W.2d 288, 298-299.JAMES TAYLOR, No. 65,286, 65,287, Murder, Attempted murder, Life in eachcase, Rev'd, Judge Clinton, En Banc, 6/22/83.IMPROPER CROSS EXAMINATION BY STATE OF DEFENDANT'S COINDICTEE (AND WIFE):In a very unusual situation the state's evidence showed that D and hisgirlfriend who later became his wife prior to tr'al picked up a number ofother individuals and that subsequently during a drug deal a shooting brokeout and one person was killed and another wounded. The court, in reviewingthe sufficiency of the evidence, recognized that the evidence as to D'Sguilt of murdering the deceased was tenuous. During the state's case inchief, the state had D's girlfriend, Marilyn, brought into court foridentification of eye witnesses, After the state rested, the defensecalled Marilyn and inquired as to whether she had consulted with herattorney to which she responded in the affirmative and whether she desiredto testify today, to which she responded in the negative. The witnesswas then passed. Marilyn was then cross examined by the state with respectto an alleged statement that she had made to an otficer until the prose-,. cutor had elicited before the jury the facts that the witness had said, D was in the front seat of the car with her, that he had a big revolverand had pointed it at the guy with preludin and took them out of his hand,that she and D ran after the car died and that D was going to rob a dopedealer, etc. After each question by the prosecutor, the witness refusedto answer on the grounds that the answer would incriminate her. After thethird such question and answer defense counsel objected "to this line ofquestioning", which was overruled.The court held that this objection was adequate to preserve the error underthe circumstances presented. Zillender, 557 S.W.2d 515. The court,thenheld that the state had every right to conduct proper cross examination ofMarilyn and even elicit her implication of the privilege (hushandlwife);the state, however, was not entitled to have the witness invoke the FifthAmendment repeatedly and knowing she would do so seize upon her refusal.to testify as an opportunity to place before the jury parts of her hearsaystatement which out of confext incriminated her husband, the accused. Forthis manifestly prejudicial conduct on the part of the prosecutor whichadulterated the very integrity of the fact finding process, both cases werereversed and remanded. Washburn, 299 S.W.2d 706; Lackey, 190 S.W.2d 364.SD-36 VOICE for the DefenseJAugust 1983

RULES OF EVIDENCE from p.85. Article 38.02, Tex. Code Crim.Proc. Note should be made of thefact that Article 38.02 has hadprecursors since 1856: "The Rulesof Evidence known to the CommonLaw of England, both in civil andcriminal cases shall govern in thetrial of criminal actions in this state,except where they are in conflictwith the provisions of this code orof some statute of the State."Art. 638, Tex. Code Crim. Proc.1856, Oldham and White, Digestof Geneml Statute Laws of Texas(1859)."The Rules of Evidence prescribedin the statute law of this state inCIVI~ suits shall, so far as applicable,govern also in criminal actions whennot in conflict with the provisionsof this code or of the Penal Code."Art. 704, Tex. Code Crim. Proc.(1925).6. Art. 1731a, Sec. 1, Tex. Civ. Stat(1925).7. See Interpretativire Commentary, Art.5, Sec. 25, Texas Constitution 2Vernon's Ann. Civ. Stat. Constitution320 (1925).8. Bar Association of Dallas v. HexterTitle G. Abstract Co., 175 S.W.2d108 (Ct. Civ. App. 1943) aff'd.179 S.W.2d 946 (Sp. Ct. 1944).9. Art. 17315 Sec. 2, Tex. Civ. Stat.(1925).10. Texas Rules of Evidence, Preamble,Supreme Court of Texas, (1982).11. Repealer Clause, Texas Rules ofEvidence, Supreme Court of Texas(1982). Although the language usedby the Supreme Court in the RepealerClause is unequivocal ("are deemedto be repealed") one should notethe very different language of Article1731a, Sec. 3 whichseemsamhigvousat best as to the power of the SupremeCourt to repeal any statutesafter 1941. These issues are beyondthe scope of this particular paper.12. Bedner u. Federal Underwriters Exchange,133 S.W. 214 (Ct. Civ.1941) (dicta).13. Brown v. Linbenkoger, 153 S.W.2d342, 343 (Ct. Civ. 1941) (dicta).14. See generally, Courts, Sec. 17421 C.J.S. 260 (1940).15. Order adopting rules, Texas SupremeCourt, 1 Vernon's Tex. Civ. RulesAnn. XLIII (1979).16. 178 S.W.2d 688 (Ct. Crim. App.1944).17. Id. at 689.18. 197 S.W. 718 (Ct. Crim. App. 1917).19. Id. at 719.20. "The provisions of the rules ofcivil procedure, insofar as the sameare applicable and not in conflictwith the provisions of this Code, assuch rules now exist or may hereafterexist, shall govern bills of' exceptionand statements of fact. Art. 40.10,Tex. Code Crim. Proc.21. Supra, f.n. 5.22. Synopsis of repealed statutes:41a-1, Sec. 26. A CPA or PA shallnot be required to disclose informationwithout permission of client,in connection with any professionalservices as a CPA, PA, partnershipor corporation. This section doesnot apply to information used inpreparation of Gnancial statements,consulting se~ces, tax returns andschedules, audits, reviews and compilationsof financial statements.3714. Color or interest does notdisqualify a person from testifying.3715. Husband or wife of party toa suit or who is interested in theissue to be tried, shall not be incompetentto testify except as to confidentialcommunication betweenspouses.3715a. No ordained clergypersonshall be required to testify concerningconfidential information disclosed in a professional capacitywhen the gCving of such testimony isobjected to by the communicant.Presiding judge may compel suchdisclosure if in his opinion the sameis necessary to a proper administrationof justice.3716. In actions by or against executors,neither party will be allowedto testify against the others as toany transaction with testator, intestateor ward, unless called to testifythereto by the opposite party.3718. Printed statutes of Texa,US. or territory of any foreigngovernment, purporting to have beenprinted under authority thereof, shallbe received as evidence of acts andresolutions contained therein.3719. A certified copy under seal ofSecretary of State of Texas of anyact or resolution contained in printedstatutes shall he received as evidence.3720. Certified copies of all recordsand filed papers of public officersand courts of this State, shall beadmitted as evidence.3721. Certified copies of recordsurveys may be used as evidence inany court of the State.3722. Certified copies and certificatesfrom Secretary of State, AttorneyGeneral, Land Commissioner,Comptroller, Treasurer, AdjutantGeneral, Commissioner of Agriculture,Commissioner of Insurance,Banking Commissioner and StateLibrarian shall he received in evidencein all cases in which originalswould be admitted as evidence.3723. All declarations and protestsmade and acknowledgements takenby notary publics andcertified copiesof their records shall he admittedas evidence.3724. In suit by State against anyofficer or agent on account of failureto pay State, a certified transcriptfrom Comptroller's office shall headmitted as prima facie evidence.3725. Certified copies of ancientinstruments prior to February 1837shall have the same force and effectas originals.3726. Every instrument which hasbeen recorded in county clerk'soffice for period of ten years, whetherproved or acknowledged may beadmitted in evidence without necessityof proving its execution.3726a. Certain documents such asfinal judgments, affidavits on Glefor five years, shd hp; primr, hietrue evidence when offered in 4suit involving title to read estate efseeking a declaration of heirship,3726b. Defects not affecting admisihility in evidenee of cert& insMtmeats:when inswment mubjeet toregisration purpotting to be act oftrustee has actually been recordeafo~ a period of ten years, it shallbe admissible as widenee thoughauthority of trustee to act is nototherwise established.August l983/VOICE for the Defense 37

3727. Oldrecord books of munimentsof title of real estate in countiesorganized prior to January 1882and certified copies of originalrecords contained therein shall havesame force and effect that certifiedcopies of original records have inorganized counties.3728. Where a county has been ormay be created out of the terntoryof any organized county, certifiedcopies of records of deeds and otherinstruments relating to red estate,which have been transcribed according to law may he admitted in evidence.3729. Pertains to admissibility ofevidence of abstracts of land titlescompiled from record books of anycounty prior to 1890, where saidrecords were wholly or partiallydestroyed or last during May 1874,March 1876 and January 1889.3730. If suitis brought on any instrumentor note filed in any suit in anyother court in Texas, a certifiedcopy of snch instrument or noteshall he admitted like the original.3731. Certified copies of documentsfrom heads of state departmentsshall he admitted as evidence whereoriginals would he.3731a. This act provides for andregulates the admission as evidencein Texas courts of any officialwntten statement, certificate record,return or report, proceedings ofstate legislature, foreign laws andauthentication of copies thereof.3731b. This act ~rovides for roofand admissibility of photographicand photostatic copies of businessand official records.3731~. Outlines the use of photographicand photostatic copies ofwritten instruments in judicial oradministrative proceedings.3732. Comptroller certificate of pay- 'ment or assessment of taxes shdbe admissible to prove same.3734a. In any civil or criminal casewhere attested/witnessed instrumentis offered in evidence and instrumentis not ~e~uired by law to be witnessedor attested to, execntim ofsame may be roved in same manneras ifitwerc not attested or witnessed3737. Records of corporation orauthenticated copies shall he competentevidence in any action towhich a corporation is aparty.37372 Records or certified copiesthereof of insolvent or closed banksin the hands and under seal of BankCommissioner of Texas shall bereceived as evidence without otherproof of correctness of same.373%. In civil trials, handwritingby comparison by jury or expertsshall be competent evidence. Standardof comparison must be proved tosatisfaction of judge to be genuinebefore allowring same to be comparedwith handwriting in dispute.3737~. This Act provides for admissibiKty of evidence of certified copiesof certain instruments required byStatute or by rules of RailroadCommission of Texas to be filedwith the Railroad Commission ofTexas and authorizes certificates tosnch copies to be made by certainspecified officials.3737e. Act provides for and regulatesadmission as evidence of memorandaor records kept in the regular courseof business.3737f. Prohibits admission of evidenceof the settlement of a claimfor property damage and/or paymentof medical expenses in a lawsuitfor damages for ~ersonal injuriessuffered in the same occurrenceon which the property damage and1or medical expense claim was based.3737g. Outlines procedure for andintroduction of evidence of makingcertain advance payments as definedin the Act to ton claimants andprovides for prospective applicationof Act and effect of payment on thetolling of statute of limitations.4495b, Sec. 5.08. Provides for nondisclosureof confidential and privilegedcommunication between licensedphysicians and patients exceptas provided for in this section.45901 Sec. 9.01. In action broughtto recover damages on health careliability claim, no advance paymentmade on claim by defendant healthcare provider shall be construed asadmission of liability.45901, Sec. 9.02. Except as othetwiseprovided by subchapter, evidenceof an advance payment shall not beadmissible during trial of actionbased on heath care liability claim,unless and und there is a finalaward in favor of claimant in whichcase the trial judge will reduceaward to the extent of the advancepayment.556111. Pertains to confidentiality ofcertain information pertaining tomental or emotional health of anihdividual and provides for injunctiverelief and civd damages.6701d. Sec. 151. A conviction fortraffic violation less than a felonyshall not affect or impair the credfbility of such person as a witness inany civil or criminal proceeding.23. Texas Rules of Evidence, RepealerClause, Su~reme Court of Texas(1982).24. Not all of the statutes left in placeconflict with the Texas Rules ofEvidence, but it greatly facilitatesthe discussion to nse the xenerak-pation "conflicting."25. Art. 5, Sec. 25 Texas Constitution.26. Most recent expression on the subjectcomes from Office of the AttorneyGeneral of Texas, Slip opinionNo. MW496:. . .two legislative acts arerepugnant to, or in conflictwith each other, the one lastpassed, being the latest expressionof the legislature wn,although it contains no repealingclause, govern, control, orprevail so as to supercede andimpliedly repeal the earlier actto the extent of repugnancyAnd see PLums v. Houckins, 106S.W.2d 745, rev'd on other grounds130 Tex. 412, 110 S.W.2d 549(1937).27. Repeal by implication is neverfavored or ~resnmed, and a repealby implication will be allowed onlyif result is inevitable or plainly intendedby legislature. Berry v.State, 156 S.W. 626 (Ct. Crim.App. 1913).28. See, Caperton, "Federal Rules-ProposedTexas Code Overlay: PaxtIV," 45 Tex. Bar J. 1049, 1050(1982).38 VOICE for the DefenselAugust 1983

A MODEST PROPOSAL -VESTIGE OF OUTLAWRY:A Proposal for theElimination of theCancept of FelonyBy C h b mmr2 mn CfmeArlingtonA mmber of TCr)LA. adr. Fm Che $ thus adaaneing the peception of jwb could carry the fwfei~ure of ladads andAssosiata Profesar of Poiitfed Sdemm, a propoftiowte and, in the pnooess, good6 and posdbly a dcafh ksnrencdmsre of TBW at dingt tan, Lf. poviding wekon~~ 1lRkages of ao&o@ ~&~iisticandfade biition ml~ed,-1, fn tha USAP &R"R,S (Bet.), d don. Nibbling effoas to constrier the secondarily $ady enleg she lista pmctis& lawyet-Ed. mm$e of feloniaus disability hwe somee of from the ddhited numbersiarm reilched tbe stage of minor exper- rhe cammon law cewgnized a d apply-*- mid-~enturp, for quaIirat&ly henration, without widyrrad mtermt ing tho term misdememor '3-0&offsns&smetem @~BQ= Mna] or hcidericee3 Litde .eke bas occ11~e& athar &an ttebon or felony.*'%justke b e faliated in ortan-. Felony sdl &ttns the m& conceptid By evdution the prbperties of felonyBy consensus, t$e &e pro "t: lam has asch of Amkcan cdmind dawiikation. a se&d staxus. Eslony becameadwnced to the s$atatr af .wciaI menace Felony dp$ss, &any stains, and a &me punishable hy piten* cmafidb m e a eent~pioae of pnblic fehy aIienw%s. A felony conohtion dis- fineme& &en cwt* jurisdictiohd conwmen.Tke fidd of c r W $a% bm its meipienp from o~portynity for texts in the oou* hierarchy, surrtmn&dhizs grown apace, developing a bmt of the upppre~htches of acbieverneut, SU& as &th spedal pcedural gmec~on~7new activities a d rechniques kndudng the profdm and pubfie sf&. The nmdy beat% a minimum Mnteecethe greatest nom of expansion in the felon carrie.~ s psg.chdo$a$ bcaud, an of a year an& a dv,8 and amigned aadhiarmy of Americul higher edu~ati0n.1 intemd self-d&s@on tlrat may we11 4pbg a host of unique and amidLikewise &d l;nfr has u~deigotle have a beariag on rd&ism. The bahiliries.9 The differentiation beenyital, and, in some respects, svdutionw %mvictd Pelan" carries in popular mi8hea-mi ad fd5by became more ofsh.a~lges &a&astic erpansion of dt- wage a. wter connotation that often a dichotomy thm adkthetirm.fense coneti~~nal rights to preddmi- evokes a reacrion akin ro mod leprosy. THEMOMENTCMnant state adoption of the Model Ped Fislaay, vim& unc-haged &I mute ~h, pw&&,pnt SoItfce qfCob. Innmative -than@, f&t darner and in hpct, ~ontinnes to ikptt ande&t it may at may not haw. h ~d in to impart tlYe s+7 ofwiokedness fa?-.capin$ with thp. core, pblan ofiriminal insthe o&ino?tkwar&nd the q M i g.adivFty. hheen the main theme ad it bmtowqd ia the forhrulatory a@,@phetiomemi of~tyearr, of thP cirmmon 1aw.4 The may d 1M~ophd&,,. &~roewic m,d rnw nat be worth the pikc e*%%e$ .a+-,&swmmic. rea@hts ev~pxywhe*~. Few sub- h~rdesinz~osedAugubt 1983/VOICE for

vacuum. Commentary on the code's known, and thereby requiring him or endeavoring to mandate sterilizationconstruction stated that the revision forthwith to surrender himself; and upon the sole ground of conviction forsought to "identify and considcr fun& also empowering and requiring the felonious moral tnrpitude.2fimenial policy issues and resolve them by sheriff of any county in the State Broader disabilities operate, some withchanging existing law,"l3 considering in m which such fugitive shall he to sound reason and some not nearly sothe process new offenses, values, consoli- take such power with him as he sound. Deprivation from holding publicdation, reclassifkation, evidentiary rules, shall think fit and necessary for the offices and positians of public trust findsand penalty policies.14 Review studies going in search and pursuit of, foundation in preventing the possessionlooked to similar basic issues.15 Nowhere and effectually apprehending, such of power by convicted criminals, a prowas theideaof felony critically examined, fugitive &om justice, which pro- tective measure grounded in the puliceor raised. clamation shall be published at the power. This has a special and valid appli-The formulation of the progenitor of door of the courthouse of any cation to laws exchding felons Gomthe Texas law, the Model Penal Code, county in which such fagitive is positions of influence in the private sectordemonstrated the same pattern. A pano- supposed to lurk or conceal hm that have potent public impact and anply of policy aspects were considered, self, and at such other places ingrained history of corruption, sncb asand treated, and often incorporated as the justice or judge shall direct; waterfront labor 0r~anizations.26into this landmark project; the idea of and if any person against whom The most potent disability rests inMony did not even receive perfunctory proclamation has thus been issued career disqualification. This covers anperuaal.16 In a way, this seems to have continues to stay out, lurks and immense range of fields including mostbeen the only major issue of refom totally conceals himself, and does not professions and many vocations. Thisignored. With unreflective purity, inertia immediately surrender himself, any disability applies directly through liengoverned,apattern consistentlyreenacted citizen of the State may capture, suce, or in an ancilliary manner such asin the ~rolon~ed and so far unfruitful arrest, and bring him to justice, qualifications for bonding a person.effort to codify federal criminal law.17 and in case of flight or resistance Most states leave this matter in the dieThe entire process exemplifies zp- by him, aker being called on and cretionary powers of the authoritativeproaches neglecting the spirit of the law. warned to surrender, may slay him administrative body involved, with aFelony, in usage, glows with the emhers without accusation of any cnme.19 nearly universal presumption operatingof outlawry. This statute, unused and unusable, the Slight inroadsThe term outlaw, early assimilated now constitutes a example of hiis favoring flexibility have taken t lace inby every American child and popularized torical savagery. I~S many felonious cous- years, hut in the main the adamanbya refracted vision of the ethos of tho ins, although many times removed, do tine attitude preference for disquaEfica-I. Old West, carries a legal souffle of con- not. tion continues to hold away.z8'notation. From Robin Hood to Jesse The incapacitation brought by felony Admittedly, in this area the conceptJames, outlawry conveys a sense of light conviction represents an interesting, and a wdege b&owed and regulatedromanticism. Nothing could be further not too logical, hodgepodge. A felon should contd A conviction of felonyfrom the truth. loses his right to vote, a proviso mainly grade probably should create a presumpAn outlaw was one placed totally upheld on the theory of preserving the againstlicensurp, a~rewmPti0nt~atbeyond *he law, an official pariah subject probity of the democratic process.20Can O ~ be Y overcome with a phalanxto immunized apprehension and summary This means little on its own, since felons evidence. clearly, the publicextinction. This veritable "un-person" form a tiny fiaction of the electorate. be protected from conneclostall legal standing and became an But in principle-the principle of depriva- tive reasons for disqualifioation (embezoutcastin inner communal darkness.18 tion of citizenship as punishmentZl zlers, for example, have no businessThe anly surviving American statute on and more vitally as a trigger or test to being CPAs). Thefact nonetheleu remainsthe subject, from North Carolina, con- other disqualifications applied to felons, that legal status classification done, andveys the message: disenfranchisement operates as a public nearly all juris&tions normally have aIn all cases where any justice or policy. This policy has important ramifi- hundred or more patterns of conductjudge of the General Court of Jus cations. categorized as felonies, bars career entrytke shall, od written affadavit, Some areas make sense and bear a and development in most key fields ofaed and retained by such justice logical connection to the pubIic interest. occupational endeavor by virtual operaorjudge, receive information that a A felon's conduct in merely possessing tion of law. Felony blots, almost perfelonyhas been committed by any or bearing aims serves solidand defensible manently. The spirit of outlawry noperson, and that such person flees purposes of protection.22 Others stand longer thrives, but it does linger.from justice; conceals himself and as relatively inconsequential; exclusionevades arrest and service of the from jury service carries little blight.23usual process of law, the justice Still othem represent a dying severity; SOLUTIONSor judge is hereby empowered and our law now contains few provisions If the pemsive control that the conrequiredto Hsue proclamation requiring felons to register with local cept of felony exercises poses aproblem,against him reciting his name, if authorities when in their vicinity,Z4 and many in good faith will flatly eject40 VOICE for the Defense/Augusst 1983

the idea that one exists, two lines of solu- by experience, reason, and the needstion emerge. One would seek to modify of society.its rigors, the other to deal with the root- One avenue of revision that migbtage of the concept itself. In America, well be considered would he a reclassithelatter has never really been broached, fication by title, generally parallel to thelet alone tried. current hierarchy of Texas criminalSignificantly, in our legal motherland, categories. Class C misdemeanors couldEngland, this major step has been taken. be termed what most of them really are,The Criminal Law Act of 1967 abolished "infktions," since, with afew exceptionsthe distinction between felonies and mis like shoplifting, they cover non-intendemeanors.In the process it abolished tional conduct. Misdemeanors could befelony by merger.29 Analyticdy, certain kept with the Class A and B gradation,problems soon emerged. A new dass or split, with the less serious being calledof "arrestable offenses" was carved out, '5nisdeeds"' and the more serious "mispresenting the substantially broader pow- demeanors." Likewise, the felony specerstraditionally attached to felony appre trum could undergo reentitlement. Thirdhension. The degrees of criminal partici- degree felony, by far the mostpation were consolidated and simplified, category, could be characterized as aa change already accomplished in the "violation," with second degree felonyUnited States by the Model Penal Code.30 assigned the more serious label of "of-Thus the English pattern signals a major fense" and the critical areas of fustattendant problem implicit in the possible degree felony affxed with the purifiedelimination of felony,its irradiative effect. name of "transgression." Such a realign-Felony imbues criminallaw structurdi- ment, at least, would avoid and void thezation, especially criminal procedure. tag of stigma carried by felony.From the types of charging instruments In final analysis, the perpetuatingto routes of appeal, the felony/misde- pariah nature of felony conviction, themeanor distinction patterns the legal automatic ascription of disrepute andcriminal process. Conspiracy illustrates abiding half-citizenship, cannot really bethe type of reconstruction that would considered consonant with the canonsensue from the abolition of felony; of an advanced civilization. Felony, asit applies to felony alone.31a brand and a concept, may well haveAny serious effort to restrict, and far outlived its usefulness. As a vestige ofmore to eliminate, the usage of felony outlawry, the idea of felony constituteswould require a careful, systematic, and an atavism, a somewhat faded atavismorganic review and resplicing of the admittedly, but an atavism nonetheless.whole of the legal criminal system. Innovations of mitigation have beenNeeded usages and policies, however, udertaken, all within the last decade.could be retained by intelligent and The Penal Code, in the interests of juscreativeanalysis, and the public interest tice, allowed reduction of a third degreecould he competently snbserved, while felony to a misdemeanor, and the scoperemoving the ancient felony framework of expunction has been widened; abovefrom the corpus of the law. Tradition, all, the coming of suspensory and potenasexemplified by the prolongation of tially self-destructive conviction throughthe harsh rlgors of contributory negli- deferred adjudication strongly suggests- eence. . should serve rather than control. a selective vrocess that now mixht well beOther approaches might and should undertaken systematically.32 it the verybe utilized. Felony could be retained for least, reflection and exploration are incertain inherently dangerous criminal order. The efficacy, impact, and effectactivities like burglary and capital murder.of working ideas in the crimind law seedA special species of enhancement under ;egular and dynamic reevaluation. Wtthcarefully drawn guidelines cdd beimmense benefit most of them haiekept for the label of "felanious" muchin the same manner that our modern---- aenlnvs --I.--.l - the ..-. standard ~..~ of "aeera- -vated." Civil disability based on logicand the public weal could and probablyshould be made applicable when merited%idundergone this process of &\iiaWreinregation. Whether by review or elimination, so should felony.h a sig~d;adk+$

~42retroactively, but only for thosewith felony convictions.8. By delimiting maximum misdemeanor incarceration to a year, Texas in1973 virtually joined the prevailingpattern of differential. This state,howevet, has never directly employedthe yearlyear and a daydistinction, and the DWI statutewith its two yeat m&um sentenceremains a major exception.9. Wayne R. LaFave and Austin W.Scott, Handbook on Criminal Law,St. Paul, West Publishing Co., 1972,pp. 26-29.10. Texas Penal Code, Section 12.02.11. Texas Penal Code, Section 12.02;Section 1.07 (14).12. Branch's 3rd Edition, San Francisco;Bancroft-Whiteney Co., 1974, VolumeI, pp. 28, 585, 587-88.13. Keeton and Reid, "Proposed Revisionof the Texas Penal Code,"45 Texas Law Review 399, at 406.14. Ibid., at 413.15. Note, "Problems with the TexasPenal Code," 11 Houston LawReview 122949.16. Wechsler, "Codification of CriminalLaw in the United States; TheModel Penal Code, 68 CofarmbiaLaw Remew 1825, December 1960.17. S. 1439, 95th Congress, 2nd Session,1978.18. Bkzck's Law Dzctionary, 5th Edition,St. Paul: West Publishing Co., 1979,p. 933; Blackstone Cornmentarier,283-84.19. Article 7, Section 1548, NorthCarolina, Code ofCriminal Procedure.20. Harper u. Virginia Board of Ektions,383 U.S. 673; Lassiter v.Northhmnpton Board of Elections,360 US. 45. Specifically in Texas,Election Code, Section 5.01. Forfull, albeit slightly dated development,Comment, "The Equal ProtectionClause as a Limitation onthe States' Power to DisenfranchiseThose Convicted of a Crime," 21RutgersLaw Review 297-321, Winter,I96 7.21. Trop v. ~dIes, 356 U.S. 58, inv&dates formal deprivation of citizenshipas constituting cruel and unusualpunishment under the eighth amendment.22. Texas Penal Code, Section 46.05.23. Comment, "Restoration of DeprivedRights," 10 William and Mary LawReview, 92435, at 927, Summer1969.24. Ibid., at 928.25. Comment, "Civil Disabilities of Felons,"53 Virginia Law Reuiew,40323, March 1967, at 413-14.26. Ibid., at 416-18: William and Mary,op. cit., at 927.27. William andMary, op. cit., at 929-30.28. Requiring high level waivers for entranceinta the armed forces, 10U.S.C. 3523(c), 8253ja).29. RJ. Walker, "The Abolition ofFelony," 118 The New Law Journal,19-21, January 4,1960.30. Texas Penal Code, Section 7.01(c).31. Texas Penal Code, Section 15.02.The objective of conspiracy mustbe a felony, although the chargecan be a misdemeanor A if directedto accomplish a thiid degree felony.32. Texas Penal Code, Section 12.44(reduction to misdemeanor); TexasCode of Criminal Procedure, Articles55.01-55.05 (expunction); TexasCode of Criminal Procedure, Article42.12, Section 3d(a) (deferred adjudicadon).1.THOUGHTS FROM BEHIND THE WALLSKEEPING THE RECORD STRAIGHT last day for Gling by the State, OctoberA substantial segment of correspondence11, 1982. Monday, October 11, 1982receked by the VOICE eachmonthcomes Otha C.with a return address of one unit or an- TDC # 297174 was an official state holiday (ColumbusDay) which made the last day for flingother of the Texar Depnrtment of Correc- Unittions. In the past, most of this corres-Huntsyille, Texas 77340October 12, 1982. The petition was f3edin the Thirteenth Court of Appeals on~ondence has appeared solely in the "Let- Re: No. 86682: Washirtgton v. State Tuesday,12, 1982,ters to the Editor" columns of this joui- Petition for discretianary review fromVery d y yours,nal. In the betief that the uoicesfrom be- the 13th Court of ~ ppdsThomas Lowchind those walk should not fall on deafClerk,ears, we have created this new depart- Dear Ms. Washington:Texas Court of Criminal Appeals, Austinment for widening the scope of what we I read with interest your letter to thehope will become a meaningful dialogue VOICE for the ~efense in the June 1983between those engaged in the practice 'publication.Dear Editor:of crimind hw and our "en pals," in You state ih the second paragraph The recent 68th legislative session,their essays, articles and letters.-Ed.. of your letter that the State's petition after hearings on past injustices andfor discretionary review was filed "two inequities under Texas Habitual Criminalmonths and seventeen days after my case Statute SECTION I., Section 12.42(d)was reversed." et seq, passed new legislation (H.B. 1048)Please be advised that your case was as a presc~iption designed to immunizereversed by the Thirteenth Court of against and eliminate such firtare in-Appeals on August 26, 1982, making the justices.VOICE for theLkfeme/August 1983

Yet, they wholly failed to address DOIN'THE BITCHnon-violent crimes, hut their own rulesthe present plight of those currently by JoeD. Childras for commutation specify that requestsserving time in TDC, whose situations (reprinted from TDC's IOIhT ENDEAVOR) for commutation must be "based uponas recipients of those past unjust and*acts directly related to the case and notunequal practices brought about the One the wisest moves made by theupon outside or unrelated matters."change in the law.68th session of the Texas Legislature wasmeans that the passage of the ha,Texas'~ ~ H.B. t h 1048 and S.B. 603, its psi% House Bin 1848,the realization by lawmakers that thehabitual statute. This frontier law,comPanian were strOqgl~habitual statute was in some cases unjusr,mitten in 1856, had no plasein a modemby the District Attorneys Association gystem of criminaljustice.cannot be cited as a reason for theon grounds it would be a loss of a potentcommutation request. It appears, then,weapon for prosecutors. It was indeedThe revision alhs for discriminatory whether by on the partthe most potent weapon in the largesentendng from ment~-~m~ of legidatom or simple red tape snarls,arsenal of what has been, for many nine years for a third felony conviction. the men under those habitual sentencesTwmt~-fiveyears, a prosecuto~ reign of tenor inYears is a harsh sentence won't be affecsed by the passage of thefor a check forger, but it is a substantialTexas courts. This was made abundantly .bill. hi^ situation can be likened to theimprovementdear in evidence shown in legislativeover a mandatory lifesentence.passage of the and-slavery bills in thehearings, media reports and fuaher wen1860s. What good would the bill havedemonstrated by the current over-crowd-The introduction of the hill was no done had it not freed the ones who wereing in the Texas Department .of Cordoubtsparked by federal court orders in bondage at the time, if it had onlyrections.to reduce the TDC population, hut there applied to those who had not yet beenwhat can be done now about the was also a humanitarian motive involved, horn?present plight of those currently servingas evidenced by examples given the The governor and the attorney genera,life sentences for three non-violent of- bill's proponents. They cited numerous it would seem, are in the position now tosenses TDC which stemmed fromeance~ where minor offenses resulted help these inmates. ~t would be a simplepractices under the old habitual statute? m life sentences for men who w0uld task to instimte a blanket commutationseveral cumbersome, the consuming have received no n~~re than five Years, to the minimum-twenty-five years forandcostly proceduresexist-~beas corpusoften less, had they not been prosecuted those non-violent offenders serving habitapplicationsto trial courts, Court of under the habitual statute.ud sentences. This would Gee many ofCriminal Appeals, Supreme Corn of The bill o+dy had a rider which the men and at least offer the chance ofTexas and Fed4 Courts on denial offered help to those non-violent of- parole tomanyothers.~hiscouldheeasil~of equal protection of the law. Also, fenders currently serving habitual sen- accomplished with the computer oonthecommutation procedure which has tences. It was subsequently dropped to trolled records division of TDC, wherebuilt in procedural faults. See: enclosed facilitate passage of the bill, a move made inmate records are adable in a matterarticle which appeared in the March necessary by the vociferous objections of seconds. Those inmat- meeting theissue of TDC's magazine JOINT EN- of disttict attorneys throughout the criteria could he recommended forDEA FOR.state. Once the rider was dropped, how- the blanket commutation.There is a saying in law: "Where there eve5 the bill became simply a law to stop There are several reasons why such ais a right, there is a remedy."' It is sug- fitwe miscarriages of justice; it does policy should be adopted, not the leasgested here that the remedy lies with nothing to help those whose plights of whicb is the simple humanitarian goaleither the Governor, by a blanket com- initiated the legislation in the fust place. of amending a mong done unto another.mutation of non-violent offender sen- Technically, men who are currently Also to be considered is the fact that thirtences to the 25 year minimum, or by serving habitual sentences can follow the revision bill will lead to hundreds ofan Advisory Opinion by the Attorney established rules for commutation, but petitions flooding the caurts in the nearGeneral, outlining an expeditious, direct there are catches. Fitst, the recommenda future, reminiscent of the revanping ofprocedure to fdow for those non-violent tion of three trial officialsthe judge, t6e marijuma laws in the early serrmries.offenders. . .whose future is now. the sheriff and the district attorney-is Court time and attorney the is i\t aPlease consider the above set out required. There is very little chance that pmium in these days of bas&issues and if you feel they have merit Henry Wade or John Holrnes, the district dockets, and mote h e hog4and deserve your Association's assistance attorneys for Dallas and Harris Counties, tatan up in deciding m di, wk&. . .then help in whatever manner you respectively, win recommend any com- have been automa* dts dm mafeel is best suited in solving the problem mutations, no matts how justified, since changed,in a just, economical and espedidous they were among the most vocal op- +& prrww of th.e &&hPd fdfisiahfashion. ponents of the revision hill. bill has ~l~led oud:imd I&@ &D S W ~in^^^^^. The parole board's recommendation,.about the h e r wh built a rnJoeD, Chr7dress is dso necessary for commutation, and spatious and eye-plw*@g, && ro&#I48807 they have the power to give relief to lofts and a coat r9 bdght Ped a9Huntsville inmates serving habitual sentences for the outside-and nu door,August N83/VOICE for the Defense 43

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION314West 11th. Suite 315Austin, TX 78701(RETURN POSTAGE GUARANTEED)r'-"'---"""---""-----------------I TEXAS CRIMINAL DEFENSE LAWYERSIIASSOCIATIONIII MEMBERSHIP APPLICATION !I(Please print or type):NAME(To appear m Membernhtp Dmctory.)MAILING ADDRESSCITY STATE Z I PBUSINESS TELEPHONE ( )COUNTYTELECOMMUNICATIONS ACCtSSlBlLITYYES -NO-TELECOMMUNICATIONS PROTOCOL -N/A -BAR CARD NUMBERNAMEI(As recorded on State Bar Card)TITLE FOR SALUTATION.(Mr) -(Mrs) -(Ms.) - INICKNAMEIOFFlCE ADDRESS (Street)ICITY STATE Z I P BAR DATE MONTH YEAR - II(On a separate ptece of paper please tell us what !LocalcountyStateNationalSPECIALIZATION(Cert~Rcat~on not requned)CERTIFIED CRIMINAL SPECIALIST YESNO-LAW SCHOOL L E G R E EGRADUATION DATE (Law School)GRADUATE SCHOOLGRADUATE DEGREEUNDERGRADUATE SCHOOLUNDERGRADUATE DECREEFIRM AFFILIATIONOTHER MEMBERS IN FIRM (Names)SECRETARY'S NAMEAPPLICANT'S BIRTH DATEBIRTHPLACE (City and State)HOMETOWN (Clty and State)Have you ever been disbarred or disciplined by anybar association, or are you thesubject of disciplinaryaction now pending?DateII(Signature of Applicant) IIIENDORSEMENT , I1, a member of TCDLA, believe this applicant to be a Iperson of professional competency,integrity, and good :moral character. The applicant is actively engaged in Ithe defense of criminal cme.s.IDateMail to:(Signature of Member)(Print or Type Member's Name)1iI!!iIIIIII!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 yourlegal and personal.philosophies are compatible with our purposesandobjectives:To provide an appropriate state organization representing those.lawyers who are actively engaged in the defense of criminal cases.Toprotect and insure by rule of law those individual rightsgnaranteedby the Texas and Federal Constitutions in criminal cases.0 To resist proposed legislation or rules which would curtail such rightsand to promote sound alternatives.r 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 sekctionandappointmentto the bench of weU-qualified and experienced lawyers.To improve the correctional system and to seek more effectiverehabilitation opportunities for those convicted of crimes.0 To promote constant improvement in the administration of criminaljustice.ADVANTAGESFORREGULARMEMBERSTCDLA Membership Directory-referrals to and from criminal defenselawyers in over I00 Texas cities.Outstandmg Educational Programs-featuring recognized experts onpractical aspects of defense cases. TCDLA and the State Bar annuallypresent many seminars and courses in all parts of the state.TCDLA Bnef Bank service,Publications, inclndmg the monthly VOICE for the Defense with its"Significant Decisions Report" of lmportant cases decided by thecourt of crimmal appeals and federal courts.Attorney General's Crime Prevention Newsletter. Summaries of latestcourt of criminal appeals cases available to private practitioners onlythrough TCDLA's group subscription, included in dues.Organuational Volce through which c~immal defense lawyers canformulate and express their position on legdatlon, court reform,important defense cases through amicus curiae achvity.Discounts and Free Offerings for publ~catlons of interest to criminaldefense lawyers.0 Research service available at a reasonable hourly rate; messengerservice in Capitol area.ELIGIBILITY AND DUESEffective: January 1, 1982Voluntary Sustaining dues IVSI. ........$300.00Sustaining dues ISUS) ............. 200.00Dues for members in the firm ofa sustaining member ISMFI .......... 50.00Members admitted to practice: IMEMl2 years or less ................ 50.002-5years .................. 100.0050i more years ............... 150.00Affiliate: Perrom in careers which contribute todefense of criminal cases, e.g., law professors, areelibible for affiliate membership upon approval ofthe application and receipt of the annual duer.Affiliate dues IAFFI ............ 25.00Students: Thore regularly enrolled in a law schoolin Texas are elibible far student membership.Student dues ISDMI ............ 20.00TEXASCRIMINALL W Y ERSASXXJlATlLlV