1 - Voice For The Defense Online

&-wThe dissenters would have held the indictment to be voidable, not void,subject to a motion to quash, and, as none filed, relief should have beendenied.SEE ALSO RICHARDZ #57,981, 3/29/78, J. Phillips, Panel $3, 1st Quarter, WHERE IT WASRELE THAT INFORMaTION TWT CHARGED TREFT BY CHECK WICH 0NT.Y ALLEGED "MERCHANDISE" WASFUNLIAMENTALLY DEFECTIVE. (Jefferson County). (Reversed and dismissed).COMMENT: The key to a description of property it seems to me is rather simple. Allme needs to do is read Art. 21.09, C.C.P. "If knom, personal propertyalleged in an indictment shall be identified by same, kind, number,and ownership." "When unknown, that fact shall be stated, and a generalclassification, describing and identifying the property as near as maybe. shall suffice."CCA UNANIMOUSLY REVERSES VANDERBILT, $56,834, 3/22/7&, J. Onion, EN BANC, WtZN IT HOLDSTB~T REVERSIBLE ERROR WAS COMMITTEDBY TJ'S REFUSAL TO ALLOW TEE D TBE OPPORTIINIY TODEVELOP EVIDENCE BEFORE THE JURY RELATIVE TO THE ISSUE OP TEE VOLUNTARINESS OF AN ORAL->COMMENT:What got the State into trouble here, it seems they took too many confeseionsfrom the D and, contrary to the usual rule, talked too muchwith the D and/or his attorney prior to taking the confessions.FACTS: D, an Amarillo police officer, abducted and killed a high school student.(Doesn't it seem that nest to marijpana being outlawed, the recentnotorious actions of some police officers have really been a shot inthe arm for snme defensr lawyers?). After his arrest and being placedinto custody, things get a little detailed; i.e., an attorney is in thepicture, the D's wife comes onto the scene. "deals" are discussed andpossibly made, etc. An oral confession was ruled admissible but awritten confession was excluded by the TJ.On appeal, the D'a complaint centered around TJ's excluding evidenceof the "deal." "I want to go into the deal." "The State has enteredevidence that they offered theD a deal sometlme in the evening ofApril ttle Uth to sign a writteq c&ession." "Then, they put inevidence that tifey 'immediately withdrew it and he thereafter immediatelygave an oral confessionbased upon no deal whatsoever." "NOW, I wantto show that the State did not in fact withdraw the deal, because thedeal was still being talked about from approximately midnight until2:35 a.no.. at which timeMr. Cur-ti. dictated the deal on a tape whichwas played here the other day, and later had it transcribed." "I wantthe jury to be able to decide far itself whether in fact the deal wasmade, sad if it was, whether or not it waa withdrawn."Things looked pretty sealed at this point as TJ ruled that this testimonywas inadmissible. Then the State called an attorney "and askedwhether he conducted any negotiations on the D's behalf with anyone,to which he replied yes."At this point, defense attorney hollered that the "Open Door" doctrine applied.TJ ruled: "No, he didn't open the door."COMMENT:ILKLD:"A D is nlluved the op~tunity to preaenL evidence to the jury onthe issue of che voluntar1new.e of t t conFesnjon ~ which rhe Stare*iotraduredgtrialinnt h+." See Art. 38.22, See. 2, C.C.P.,and Act. 38.24, C.C.P. Rwersed.It seems to me that the CCA said whichever way you want to cut theissue this testimony was admissible.CCA also pointed out that:"In the event of a retrial, we call attention to the recent case ofWarren v. State, #55,613, 3/5/78, (See also Vol. N, No. 6, Peb.,1978, S.D.R., p.101, on sufficiency of the widace to support anaffirmative finding to special issue #2 of Art. 37.071, C.C.P. [asthegtate introduced no evidence at the punishment stage of the trial]."IN EX PART^ a=,PANEL OY CCA STKAICUTKNS OUT LKISLATlVE MESS,KECAIU)IN(: BAIT.,356.956, 3/22/78, T.%m, Panel I2, 1st quarter. (hbbuck CounLy). (Reverded).FACTS: D, eonvieted of robbery, received 13 years. TJ refused to set appeal bandas punishment exceeded 10 years.HELD: "We therefore set aside the order of the TCT denying bail under Art. 42.09.""The provisions of Art. 44.04(c) should have been applied by the TCT todetermine whether to grant or to deny bail."VOICE for the DefenselA