journal of the texas criminal defense lawyers association

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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
Page 3 and 4: President's ReportTHOMAS G. SHARPE,
Page 5 and 6: THE NEW TEXASRULES OF EVIDENCEIN CR
Page 7 and 8: Legislature; Constitution Article I
Page 9: RONALD DANFORD, No. 62,855, Attempt
Page 13 and 14: -- NARCISQ RICO, No.6/29/83.68,637,
Page 15 and 16: EX PARTE VICTOR MAREK, No. 61,904,
Page 17 and 18: supra, i-e., as the juror, thr~ugh
Page 19 and 20: MICHAEL CAMPBELL, No. 027-83, Opini
Page 21 and 22: tory terms such as, "deliberately",
Page 23 and 24: WILLIE SKINNER, No. 839-82, Opinion
Page 25 and 26: 509 S.W.2d 356. The courts of ~ppea
Page 28 and 29: ". . . There is one thing qore I wa
Page 30 and 31: KO one has talked to the Jurors abo
Page 32 and 33: e reflected in a formal judgment or
Page 34 and 35: defendant would have to be willing
Page 36 and 37: contains the necessary allegation o
Page 38 and 39: 3727. Oldrecord books of munimentso
Page 40 and 41: vacuum. Commentary on the code's kn
Page 42 and 43: ~42retroactively, but only for thos
Page 44: TEXAS CRIMINAL DEFENSE LAWYERS ASSO

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