journal of the texas criminal defense lawyers association

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