journal of the texas criminal defense lawyers association

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