c@v@r - voice for the defense online

An Interview w i t h Marvin Teague Pamela Lancwter. . . . . . . . . . . . . .8

Texas Law on Defendant's Mot ion to Disclose Informant's lndenti ty and Location Joseuh A. Connors Ill .. . . . . . . .37

. . . . . . . . . . . . . . . . . . . . Editorial .3 New Members. . . . . . ........... .3 Guest VOICE

The TV Trial Lawyer Emmett Colvin . . . . . . . . . . . . . . .4

Dialogue . . . . . . . . . . . . . . . . . . . . .6 President's Report. ............. .7 Bu t Yeroner! . . . . . . . . . . . . . . . . .43

TCDLA Legislative Package. . . . . . . .38 Criminal Lawyer Lester L. May Dies. .41 In the Brief Bank. . . . . . . . . . . . . . .43

c@v@r Marvin Teague of Houston, editor of "Significant Decisions Reportn-see interview on page 8.

October 1980

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

OFFICERS

President Robert D. Jonss Austin Presiden t.Elect Charles MeDonald Wac0 First Vice-President Clifford Bmwn Lubbock Second VicePresiden t Tom Sharps Brownsviile Secretmy Treasurer Jan Hemphill Daiias Asst. Secfetaw-Treasurer Stephen H. Capelle Austin

DIRECTORS

William F. "Bill" Alexander Dallas Richard Anderson Dallas Cecil W. Bain San Antonio James Bobo Odessa Russell Busby Amarillo Raymond Caballero El Pam Antonio Cantu San Antonio Allen Cazisr San Antonio Anthony Constant Corpus Chrirti Donald Dailsy Corpus Christ1 Eugsne DsBullet Fort Worth Woody R. Denson Houston

Louis Dugas Orange W.V. Dunnam Wac0 Michael Gibson Daliar Gerald Goldstein San Antonio Ran Goranran Dallas Grant Hardsway Houston Richard Harrison Dallas

Oliver Heard, Jr. San Antonio Clifton Holmer Kilgore Knox Jonss McAllen Edward Mallett Houston Arch McColl Dallas J.C. "Rusty" O'Shea Lubbock C.W. "Robin" Pearcy San Marms Pat Priest San Antonio Charles RittenLwrry Amarillo Eduarda R. Rodriguez Brownsviiie

Larry Sauer Houston

Marvin Taague Houston

Mike Thomas Fort Worth

Stanley Topsk Houston

Robert G. Turner Houston

Stanley Weinberg Dallas

Ronald Zipp Edinburg

ASSOCIATE DIRECTORS Jack Bsesh Fort Worth David R. Bires Houston Charles 0. Cawer Beaumont Joseph A. Connors, Ill McAlien

M.P. "Rurtf' Duncan Oecatur Tim Evans Fort Worth Herman Gotcher Austin James Kreimeyer Belton Dennis MeGili Lubbock James Pons San Antonio Oavid Spencer Austin Bill Wood Denton

PAST PRESIDENTS

Frank Maloney Austin, 1971-1972 C. Anthony Frilaux Houston. 7972.1973 Phil Burleron Dallas. 1973-1974 George Gilkerson Lubbock. 1974-1975 C. David Evans San Antonio, 1975-1976

Weldon Holcomb Tyler. 1976-1977 Emmett Colvin Dallas. 1977-1978 George F. Luquette Houston, 1978-1979 Vincent W. Ferini Dallas, 1979.1980

Clifton Holmer Editor Pamela 5. Laneaster Managing EIJitor Marvin 0. Teague Editor, "Significant Oeci~io~b" Judy Ward Exec. Asst. to the President

POSTMASTER Please send address changes to Texas Criminal Defense Lawyers Association.314 West 11th Street Suite 211, Austin, Texas 78701. Phone (5121 478 2514. VOICE for the Defense is pub- lished monthly by theTexas Criminal Defense Lawyers Associa- tion. All articlesand other editorial contr!butionsshould beaddressed to the Editor. Clif Hoimes, Box 1073 Kiloore. Texas 75662. Busi- . ness correspondence, advertising inquiries and contracts, send t o Dick Dromgoole, ARTFORMS AGENCY. Box 4574, Austin. Texas 78765,1512) 4513588. Annual subscription rate for members of the association is $5, which is included indues. Non- member subrcription-$10 per ywr. singiecapy-$2.50. Second cia% postage paid a t Austin, Texas. ISSN 0364-2232 Q 1976 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION.

ditor" Corner

.'much ado" about presidential choices that belief-especially when "GUVNER (none?) and little concern about that BILL" is so hell-bent on passing them and which may sffect us far more than which our brethren on the other side of the White House seeker theelectorate chooses. docket are so strategically placed, po-

. Immediate appeals. .interlocutory ap- litically. peals. . .wiretapping. These are matters of vital interest to anyone really wn- We need a concerted effort to inform cerned with individual rights and liber- the public of the dangers involved; to ties-and, I'm afraid there aren't many advise them of the COST involved; and, of us. That being the case, the few we are to persuade them to our point of view. need to be particularly active. There is We are now some 1,150 in strength. I f a long-standing belief among Texw PO- each of us makes that effort in our locale,

CLlF HOLMES liticos that proposed Constitutional a- talks to out friends, associates, clients and mendments usually fail because voters do acquaintances, and ''gets the ear" of the not understand the propozal and will vote media, we can defeat these measures. I

Once again the political process has agsinst what they don't understand. I urge you to do so. m6ved full circle t o NOVEMBER. There's don't feel very oomfortable relying upon Ed.

MEMBER N E W M E M B E R S

ENDORSER MEMBER ENDORSER MEMBER

Les Procter. . . . . . . . . . . . . .Bob Jones Austin Lang Smith . . . . . . . . . . . . .Bob Jones Austin John Andrew King. . . . . .David Spencer, Austin Jim Bobo, Tim Evans Thomas A. Autry . . . . . .David Spencer, Austin Jim Bobo, Tim Evans John A. Yeager. . . . . . . .David Spencer, Austin Jim Bobo, Tim Evans Jerry Buckner. . . . . . . . . .Phil Burleson Weatherford T.J. Baynham, Jr. . . . . . . .Phil Burleson Tyler Richard L. Garza. . . . . . . . Jesse Gamez San Antonio Mike Lantrip Austin Joe B. Henderson, Jr.. . . . . . Bill Habern Huntsville George Stephen Hebert. . . . . .Bob Jones Baytowo Melissa Hirsch. . . . .Robert V. Garcia, Jr. Odessa

Ronald P. Guyer . . . . . . . . Dan Naranjo San Antonio

Terry A. Newman . . . . . .David Spencer, Austin Jim Bobo, Tim Evans

. . . . . . . . . . Herbert Evans. .Bob Jones Austin

. . . . . . . . Lynn Sanders .David Spencer, Austin Jim Bobo, Tim Evans

. . . . . . Melvyn C. Bruder Jan Hemphill, Dallas Vincent W. Perini.

Joseph Connors Stanley Charles Thorne. . Robert S. Jones Wac0

. . Marshall D. Brown, Jr. .Carolyn Clause Houston Garcia Fred Menefee Tatum Dothan, Alabama

. . . . Terrence McDonald Arch C. McColl San Antonio

..... John E. Wright. .Joseph Connors Huntsville Edward J. Ganem Victoria John A. Mead San Antonio Brock Huffman. . . . . . . . . . Cecil Bain San Antonio R.D. Reading Wabash, Indiana Joe James Sawyer Fort Worth

. . . . . James Eduardo Porter .Cecil Bain San Antonio

James R. Gillespie San Antonio Lynn S. Patton Longview Andres Hernandez. Jr. San Antonio Richard Petronis Killeen Neal Dancer Coprus Christi Craig A. Washington Houston Joe F. Sandlin Anahuac James R. Moriarty Houston

. . . Robert C. Hunt. Houston Stanley C. Schneider Houston Sim W. Goodall Memphis Mike Aranson Dallas Nancy Lee Jessee. . . San Antonio Dennis D. Morgan Wharton

ENDORSER

Marvin Teague, Bilf Dunnam

Arch C. McColl

. Richard Alley

VOICE for the DefenselOctober 1980

THE TV TRIAL LAWYER Emmett Colvin

Dallas

Time and time again, beginning with jury selection. lawyers, generally prosecutors, emphasize that actual jury trials bear no resemblance to TV trials, that There is no Perry Mason. Jurors will mechanically respond that they can put aside preconceived notions about trials acquired through television. In fact, they always answer the question affirma- tively. It is naive to assume that a nation red-eyed from watching television and which merely scans the printed word can shuck TV-formed impressions for the duration of a trial. While lawyers should recognize that we are not the prime fac- tor in a win or loss, it is time that we do reaIize jurors are entitled to better than they receive. While we know success in a trial is generally grounded upon lengthy preparation before trial, the jury does not see this.

What jurors do see and experience is one interruption after another and long delays. If this were a theatrical per- formance, their price of admission right- fully would be refunded. Far too often, just when the trial catches the jury's attention, they are thrown into the hallway or iury room while the lawyers hag- gle over matters about which they can only speculate. And don't ever think they don't speculate! In fact, I have concluded that, on many occasions, jurors have more common sense than do lawyers. We worry too much that this common sense is influenced by the inaccu- racies portrayed by TV trials.

The trend toward television coverage of trials i s accelerating and will undoubt- edly continue. In a television world im- pregnated with commercials, dedicated to split-second timing, and cemented with cute, laughing newspersons. lawyers are not ready for the exposure, Newscasters have become so sophisticated and callous that they can quickly describe the loss of thousands of humans in an earthquake

and then with equal brevity, joke about the weatherman. Journalists can make lawyers appear to be fools, perhaps because we are.

Criminal defense lawyers have fallen into an occupational habit of blaming the prosecutors and the courts for attempting to destroy America's great system of justice. Bullshitlll (oh, that felt good-and to think, most of my public life, I have avoided such a descriptive word.) Lawyers represent one citizen at a time and, whether we like it or not, we are in show business. Our work calls for the finest form of acting. The few superb trial lawyers win because the audience believes the proof showed that the defendant was not guilty. The true art of trial work i s in achieving this audience reaction. Mere rhetoric will not suffice; cases are not won by rhetoric alone. The trial expert i s a master of nuances: the force of understatement, the whisper to a jury held in rapt attention, the dignity of apparent truth and the ap- pearance of an absolutely honest defense, to name but a few.

More important than the expert's particular skills, however, i s the lawyer's belief in the case and the client. One might call this the "glue" without which a case will not hang together. A lawyer need not have an absolute belief about the client's guilt or innocence; in fact, very often a lawyer's strivings are directed not at the issue of guilt or innocence but toward winning a reasonable punishment. Lawyers represent humar~ beings and must recognize that the sorriest somof-a- bitch has some good qualities or at least understand how he came to be the person he is. W~thout this understanding, a case will lack that crucial adhesive-a lawyer with a clear and unabiding belief in all his words and actions.

I recently reviewed a trial transcript and concluded that the best prosecutor in

that courtroom was the defense lawyer. Though the prosecutor did an exceeding- ly poor job in direct examination, the defense lawyer's cross-examination thor- oughly developed all theevidence touched upon in direct, resulting in unbelievable harm to the client. I do not write for the lawyer who has not learned the mechan- ic?; of trial work.

Defense lawyers can take advantage of these "do it by the numbers" prosecutors. An example: Prior to trial of a murder charge where the defense was accident, I asked the client i f he knew the position of his arm when the gun fired. When he replied in the negative, I l e e tured him to never forget that he simply didn't know the position of his arm, and that, in fact, a person rarely knows the position of his arm when a gun fires accidentally. I then warned him that the prosecutor would also ask this question and would persistently attempt t o force him to take the gun and demonstrate for the jury the position of his arm.

My concern was not merely that I didn't want the jury to see my client handle a weapon, but more often than not, a client led into such a demonstra- tion will finally settle on some position. however improbable i t is that the position is accurate. My admonishment was the same at every pretrial meeting. A t trial, when the prosecutor did ask the question, my client responded, "I daft know." Despite my objections to repetl- tion and harrassment. and my client's consistent reply, the prosecutor, in a state of complete frustration. finally insisted that my client "just guess" about the position of his arm. Imagine my surprise when the judge overruled my objection to that request! For fear that my client might then fold, I stated, "With all due respect, Your Honor, I am instructing my client to simply te l l the truth. ~f he knows i t *' The client

October 198ONOICE for the Defense

got the point and answered, "I am very sorry, Your Honor, but I can't guess because I don't know." That ended the rather ridiculous colloquy. The jury also understood and acquitted the defendant; a few jurors later expressed the opinion that both the prosecutor and the judge had harrassed the defendant.

The form of acting I am importuning you to explore is the Stanislavski method, where one throws oneself into the part he is playing. When you are portraying a tree, you are a tree. A lawyer who em- ploys this method will not mechanically t ry cases the same way each time.

With thorough preparation, a lawyer's flow of evidence should excite the jury. There will be no unnecessary delays in the flow, and, where there is a delay or interruption, a lawyer should respect- fully tell the jury that he or she 1s also opposed to the interruption. Presenta- tion of evidence should be planned to peak a t just the right moment in the course of the trial. Avoid over-examining and do not become enamored with the sound of your own voice. Be honest and natural.

Think about how to give the TV- oriented jury what it expects. On television, there i s nearly always a fingerprint in evidence. We know that in the real world, prints are hard to lift, and sophisticated tests are often lacking. Thus, develop the lack of fingerprints, but don't overplay, for the prosecutor may well call in an expert to explain why there were no prints.

The juror expects suspense. Give it t o him. While you need not arrange for someone in the audience to jump up and confess, try to pace presentation of evidence so as to stimulate the jury in the morning and again in the afternoon. CertainLy i f an actress can peddle a Maxi- pad, a lawyer should be able to sell a human being. While a lawyer may not have booms, lights, sets and grips, he or she does have charts, graphs, and phoro- graphs, together with imagination. which can provide more.

If you thought I was going to express concern about the adverse impact of tele-

vision on defendants' rights, you are in error. I don't know what the impact i s and I doubt that anyone else does. My review of the research data and its conclusions reflects a complete lack of dispositive evidence. My attitude was summarized by Judge Coward:

You give any problem to an academic and they will come up with questions that can't be answered. They're not dealing with reality. I am in the real world.

Appellate courts should not act without some definitive evidence. In fact, some, particularly the United States Supreme Court, provide their own lack. See Garnett v. DePasquafe, 443 US. 568, and Richmond Newspapers v. Virginia, No. 79-243. We have l i t t l e to do with those matters; we simply adjust to them in our world far from Nirvana.

It is in this real world that we find the great artistry of Edward Bennett Williams, Washington, D.C.,; Percy Fore- man and "Racehorse" Haynes. Houston; Paul T. Smith, Massachusetts; Albert Krieger, Florida; G.L. Spence, Wyoming; James Shellow. Wisconsin; Steven C. Rench, Denver; David Glickman. Beverly Hills; Warren Burnett, Odessa; James P. Linn, Oklahoma City; Frank Maloney, Austin. to name but a few. The "Master." Jake Erlich. looks down from the heavens.


Before his death, "Uncle" Earle Stan- ley Gardner told me how distinctly different were the "greats" to have such sameness. That sameness is the "glue"- that belief-that total devotion to a human in a courtroom.

When Percy Foreman told the press in relation to his representation of James Earl Ray, that he didn't care whether there was a conspiracy or not, this remark [with typical Foreman bluntness1 fully described his proper role. He did not come to Memph~s to solve a world problem. He did not come asasociologist. He came as a realist, not to promote a cause but to represent one human being. That the client may have later been dis- satisfied i s immaterial. The work satisfied Percy, a man not easily satisfied. He does

not fit in a format, for like all great trial lawyers, he is the format.

While we may satisfy our personal ego by injecting our philosophical views, we would do well for our clients to concen- trate our principle.effons in a very prag- matic way and turn what we see to our advantage. What an opportunin/ we have in this TV world! We are the better actors. We have to be, for unlike the prosecutor, we are not coddled, fondled, and supported by the courthouse crowd. It i s only when they leave office that the defense practice separates the adult from the child.

In giving the jury what i t wants, look at the real world for tools to capture the jury's attention. A jury has to listen, but a television audience can switch chan- nels. How do you capture your audience of six or twelve? You do i t with imagination-a never-ending imagination. As you look and listen you do so always with a thought-how can 1 use that before a jury? The pouibitities are unlimited.

"Racehorse" and I recently had lunch and he suggested that lawyers affect a "Huntley-Brinkley" method in courtroom argument. Do you remember the Huntley-Brinkley newscasts? Suppose that after making a point in argument, a lawyer turns to his cocounsel and asks, 'What do you think, Jane?" Jane could then stand and make her contribution. Do you assume a judge would not permit this? How do you know until you try? The judge has the discretion. Presenting argument in this way creates a "think tank" atmosphere, increasing the chance that you'll think of that brilliant argument before leaving the courtroom. Gee, that's just like TV! But don't end your argument by saying, "Goodnight, Chet."

Dialogue . . . September 23,1980

Mr. Emmett Colvin, Mr. Arch C. McColl and Officers, Directors and Members of the Texas Criminal Defense Law- yers Association

314 West 11 th Street, Suite 21 1 Austin, Texas 78701

Dear Emmett, Arch and Members of the Committee: I wanted to take this opportunity to

express my sincere appreciation to each of you and the Texas Criminal Defense Lawyers for vindicating my honor. I t is just another example of what an extremely valuable asset membership in our association can be.

I am concerned that it was the united front that only an organization like the TCDLA can provide that keeps intem- perate public servants in line.

Sincerely, Gerald H. Goldstein

for Levey and Goldstein Ed. note: The following motion and

memoranda were entered against Gerald Goldstein in U.S.A. vs. William Harrison King. See "Dialogue" in August-Septem- her VOICE for related letters.

acting on their behalf from any further communication with the persons who were jurors in the trial of this case. The United States moves that a hearing be held to determine the nature and extent of contacts already made. The United States further moves for an order requiring Gerald H. Goldstein, defendant Walter Arthur Parker's lead counsel at trial, to appear before the Court to show cause why he should not be held in contempt of the Court for violation of applicable ethical considerations and disciplinary rules.

MEMORANDUM Rule 51F). of the Rules of the United

States District Court for the Northern District of Florida, provides in pertinent Dart that:

(F) Disbarment and D~scipline. Any member of the bar of this Court may be disbarred, suspended from practice for a definite period, reprimand- ed, or subjected to such other disci- pline as the Court may deem proper after hearing and for good cause shown.

* * The professional conduct of al l members of the bar of this Court shall be governed by the Code of Professional Responsibility of the American Bar Association as modified and adopted by the Supreme Court of Florida to govern the professional behavior of the members of the Florida Bar. An attorney may be subjected to the ap- propriate disciplinary action for a violation of any of the provisions of this Code in connection with any matter pending before this Court.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF FLORIDA PANAMA ClTY DIVISION

THE UNITED STATES X OF AMERICA, X PANAMA Plaintifff, X CITY VS. X CRIMINAL WILLIAM HARRIS- X NO. MCR SON KING, e t al., 80-00207 Pertinent provisions of the Code of Defendants X Professional Responsibility, as modified

and adopted by the Florida Supreme MOTION FOR RESTRAINING ORDER court, are as follows: AND FOR ORDER TO SHOW CAUSE

The United States Attornev's Office has received information indicating that defendant's counsel or persons acting on their behalf are communicating with persons who were jurors in the trial of this case in a manner contrary to that se t out in the Code of Professional Responsibility of the Florida Bar, the provisions of which are incorporated by the Rules of the United States Court for the Northern District of Florida.

Accordingly, the United States moves for an order restraining defendants, defendants' counsel, and any agents, employees, investigators, or other persons

~ i~c ip l inary Rule 7-108 Communica- tion with or lnvestigation of Jurors.

* * (B) During the trial of case:

(1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.

* * * ID) After dismissal of the jury in a case with which he is connected, a lawyer shall not communicate with or cause another to communicate with any juror regarding the trial except to determine whether the verdict may be

subject to legal challenge, in which event he shall scrupulously follow the procedure described and provided in EC 7-29 hereof. (El A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a venireman or a juror. (Fl All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror. Ethical Consideration 7-29.

Both before and during the trial, a lawyer should avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not. Subject to any limita- tions imposed by law i t i s a lawyer's right, after the jury has been discharged, to interview the jurors solely to determine whether their verdict i s subject to any legal challenge provided he has reason to believe that ground for such challenge may exist, and further provided that prior to any such interview made by him or under his direction, he shall file in the cause, and deliver a copy to the trial judge and opposing counsel, a notice of intention to interview such juror or jurors setting forth in such notice the name of each such juror. The scope of the interview should be restricted and caution should be used to avoid embarrassment to any juror and to avoid influencing his action in any subsequent jury service. Ethical Consideration 7-30. Vexatious or harassing investigations of veniremen or jurors seriously im- pairs the effectiveness of our jury system. For this reason, a lawyer or anyone acting on his behalf who conducts an investigation of veniremen or jurors should act with cir- cumspection and restraint. David L. McGee, Assistant United

States Attorney, received a telephone call from William Boe, Special Agent with the Federal Bureau of Investigation in Panama City, Florida, on July 16, 1980. In that telephone call, Mr. Boe related that he had been contacted by Kenneth Harper, who was a juror at the trial of this case. The substance of Mr. Harper's conversation with Mr. Boe was

' (Continued on p. 42)

October 198ONOICE for the Defense

President's Report

CDLP FUNDING

David Dean, Governor Clements's general counsel, Willis Whatley, CJD's general counsel, and I recently met at David Dean's office to review funding for the Crirninal Law Project. I was assured that the project would continue to receive funding from the Criminal Justice Division of the governor's office until September 19Bf. I expressed the Association's appreciation for the gover- nor's support in this vital project.

We also discussed the governor's proposal to submit to the Legislature a state L.E.E.A.-type plan. The monies collected from a tax on a l l pleas or findings of guilty would continue the efforts of the Criminal Justice Division and improve the ci'iminal justice system. I expressed my disappointment with the failure to provide a defense lawyer on the Advisory Council. However, we should support th is measure with the proper amendments. 1 request tha t each of you contact your local senator or legislator.

TIME FOR IMPROVEMENT (GOVERNOR'S ANTICRIME

PACKAGE) Felton West, chief, Fast Austin Bu-

reau, in a copyrighted article in the Houston Post on Sunday, September 13, 1980. outlined Governor Clements's Anti-Crime Package.

1 believe once again that the governor b y hi6 Anti-Crime Package, which in- cludes:

(a) Improvement on the parole board; Ib) A juvenile probation system; (c) Wiretap; (d) Overhaul of shock probation; te) More stringent aggravated rape

statute; M) Increased penalties for rape, sex-

ual abuse, and indecency involving

children; (g) Tougher pornography laws; (h) Ways to make drug trafficking un-

profitable; (i) Oral confessions; (j) Explanation to juries how parole

works; (k) Make forfeiture of bail bonds

easier; (I) Still to be formulated-H. Ross

Perot's Texans' War on Drug$ Committee's ''plan of attack";

gives TCDLA a rare opportunity to improve upon our criminal juStice system.

We can once again remind the citizens of thls great state that Texas i s not like Nazi Germany was before World War II. We can show that it is our freedoms that the governor and his general. Perot, are attempting to diminish. We have the opportunity to show the people and their elected representatives that we do not need more government, more regulations, and automatic strinqent penalties.

TCDLA oan improve upon our system by showing that there is no need for "General" Per& and his troops to tap our phones and to listen to our conversa- tions; by showing that a "good professional" police officer will do his job by reducing a confession to writing after the proper warning by an impartial magistrate; by showing that the judges and juries of this state haVe protected our citizens for years; and finally by showing that there are more than sufficient numbers of laws and regulations on the books today without adding any other unnecessary and costly items.

MEMBERSHIP There is an unending need for more

members to Carry the fight for freedom of our citizens. Have you done your share? Have you enlisted your quota? Have you done your job?

ROBERT D. JONES

SIGNIFICANT DEGlSlONS The month is passing with a great

many tears and fears. However, I feel exceptionally blessed with the recommendations of Emmett Colvin and his committee. I considered t h e committee's recommendations and made the decision that I should appoint Kerry fitzGerald of Dallas as editor and Arch McColl and David Botsford as associate editors. I feel certain they will do an excellent job in providing us with an accurate analysis of the recent decisions from both the Court of Criminal Appeals and the 5th Circuit. If you have any sugges- tions for improvements, please contact Kerry.

MARVIN TEAGUE I am not capable of putting on this

sheet my admiration and thanks to Marvin Teague, a true defender of the people. He and his staff have made our job much easier. We shall miss him and his work. However, we can rest assured that Mawin Teague will continue to be a judge of the first class.

OCTOBER 4,1980 I am looking forward to the Member-

ship Drive and Directors' Meeting in Houston.

L A P E L P I N S

TClDLA Iogo ia gold with black enatnel. . .nrdUrary-type fastener. . .7/8"x 3/4" $8.00 plus sales tax = $8.40

ORDER FROM YOUR TCDLA OFFICE 3 14 West I 1 th Street, Suite 21 1 , Austin, Texas 78701

VDlCE for the DefenselOctober 7980

AN INTERVIEW WITH MARVIN 0. TEAGUE Pamela Lancaster

Pamela: Tell me why you decided to run in 1980 for a judgeship on the Texas Court of Criminal Appeals.

Marvin: It has always been an objec- tive of mine to be on the court. In the middle 1960s when I started appealing cases and got hooked on appeals. I thought that's where I would like to be someday. In 1978, 1 ran and lost. The race was, however, a close one. It came out about 54% to 46%, which is actually only a 2% spread.

Pamela: Did it seem worth trying again?

Marvin: Well, no i t didn't. Campaign- ing disrupts your personal life and your law practice, consumes your time, and is financially backbreaking, so I said in 1978 that was the last time. Then in January, 1980, after a TCDLA Board meeting in Austin, several members got together socially and discussed the pos- sib~lity of someone running against Judge Douglas. It was the consensus that Judge Douglas could be defeated. Though there should be dissension, it was believed he had become ineffective as a judge because of his dissents. An appellate judge, in my opinion, has to carry weight in the trial courts and be respected by trial judges and the trial bar, and not just carry the tag of "dissenter."

Pamela: Must a candidate be a defense lawyer or a prosecuting lawyer to be a judge on the court of criminal appeals?

Marvin: No. the Texas Constitution only requires that a person be a practicing lawyer for at least ten years or a combination of being a practicing lawyer and a judge of a court of record for at least ten years and be over the age of 35.

Pamela: Did you have to have your arm twisted this time or were you ready to go again?.

Marvin: Essentially, at this l~t t le gathering of about fifteen people, somebody said, "Well, Teague can do it." So, after some arm-twisting, I said. "If you all will support me. financially and otherwise, I'll make another stab at it." We eventually got a lot of support from lawyers. not just defense lawyers, but lawyers in general. I felt that if we could keep the State Bar poll close that I could eventually win. Judge Douglas did edge me in that poll, but it was only by 2%. Considering that he was an eleven year

incumbent, and had more name identification in the legal community than I did, I felt this was acutally a victory. When the Dallas Bar Association poll results showed me to be the victor, I knew then I could win. Really, from that point forward, things went smoothly. I won the Houston Bar poll by 67% and the certified criminal lawyers' poll by eight to one.

Another part of our game plan was to contact as many newspapers as possible. Newspaper owners, publishers, and editors like to bet on the incumbent and will usually endorse that person over a have them get the word out and then hit challenger. However, by contacting those an area. For example, we wanted to make persons or the reporters handling poli- about five counties in East Texas in one tical campaigns, I was able to get a nice day, so Clif Holmes met me at an airport writeup even though the paper may have and took me to a couple of cities and endorsed my opponent. In this regard, then another lawyer took over when Clif we did manage to get several major news- had to go back to his office. I must paper endorsements in Corpus Christi. always thank the Good Lord that we have San Antonio, Austin, Amarillo, and Fort Southwest Airlines. Worth, which helped immensely. Pamela: Now that you are there,

We also set out to get endorsed by what do you think you will bring to the every political group known to man or court? if we couldn't get endorsed. to at least Marvin: Well, I think we've got t o find nullify an endorsement for Judge Doug- some solutions to some of the problems las. In this kind of race there is not real the court has. The court has a backlog. money to spend on advertising. Not administrative so much, but there

Pamela: What was your greatest is a case backlog. Everybody accepts the expense? figure that it takes about two and a half

Marvin: Newspapers and advertising. years to dispose of a case. This i s not I suppose I spent, give or take, $45.000 good for the public or the defendant Or on the campaign. anyone else for that matter. It is just not

Pamela: How do you dec~de where to a good system where you are talking spend your campaign time? Do you have about lengthy delays. I feel that if, in a campaign manager to direct you7 the near future, something is not done

Marvin: No. In this kind of race you to remedy this situation, what's going to don't have a staff. I was the P.R. man, happen is what has happened in the past. the secretary, the reservationist. and the Some federal court judge is going to step banker; so you might say, I did it on my in and say, 'We don't care what your own. I also made a little study and found excuses are, you are not doing it right. that in any statewide judicial race there and we are going to show you how to are 53 of the 254 counties that, if you operate your appellate system." This is can win a majority of those counties, not good, but this has always been the you're probably going to win the race. case when a federal court intervenes in We concentrated on those 53 counties. the state's business. We have seen it in We physically visited 51 of them. You our jail systems where there was wm- have to go the cheapest way and use the plaint after complaint, and finally the best means poss~ble to get name identi- federal courts said, "If you are going fication. You might be driving along, see to sit on your dusters and do nothing. a radio station, pull over, go in and, then we will do something," and they interestmgly enough, get to talk to the did. I th~nk we are in the position where "people." You contact as many friends the people of the State of Texas can as you have around the state and try to make a choice as to how we want to

October 198OIVOICE for the Defense

handle our appellate cases. Pamela: What do you think needs to

be done? Marvin: I have thought of several

things. They haven't grabbed hold, however. One panacea has been the proposed Texas Consitutional Amendment giving criminal iurisdiciton to the Texas Courts of Civil Appeals. I am not in favor of that for several reasons, mainly because if a person appeals to a court of civil appeals, and doesn't get what he wants, usually a reversal, then he i s going to petition the court of criminal appeals for relief. The judges may not have to write an opinion, but they will have to spend the time to go over the records and the briefs t o see what the person is complaining about. Way back in the 1930s the court had a similar backlog problem. The Legislature created a commission^ of Appeals. The court of criminal appeals judges approved the opinions as prepared by the Commission. I t worked once. So, why not use i t again?

Pamela: What caused the backlog? Marvin: What's caused the backlog

is that we have more criminal laws on the books, more people who commit crime in Texas, and more people who get convicted who want to appeal. Generally, a person who gets convicted in a contested trial will appeal it. That's the American way of life. Some appeals have merit, many don't, but everybody wants somebody to review his or her case to see if he or she received the so-called fair trial that he or she is entitled to receive.

Pamela: Judge Roberts is in favor of some sort of intermediate court of appeals. What do you think of that?

Marvin: Well, this court of civil appeals amendment would amount to that. I t would be an intermediate court. Another minus that I can see with this proposed Texas Constitutional Amendment is that this came up a couple of years ago and the consensus of opinion was against it. Today i t i s back on the ballot, or will be in November. I have not to this day seen. read, or heard from a judge of any court of civil appeals who unequi- vocally favored this amendment. I'm not saying that a judge on the court of civil appeals is not qualified to write opinions. I feel if they are smart enough to get to be an appellate judge, they are smart enough to write an opinion regardless what the case is about. My objection i s that their interest i s not in the criminal


law field. A judge on the court of civil of time. The court had gotten to the appeals has a background devoted to civil point by 1970 of being nothing more law, not criminal law. I have been waiting than a watering hole where you would for all of these judges on the courts of stop and spend a few minutes because civil appeals to come forward and declare you knew you would eventually go on this to be the greatest thing ever. But to the federal courts. Everyone knew they haven't. So. we are asking the public the court of criminal appeals wasn't to approve something that the prospec- going to do anything. I t was actually tive judges of these cases have not yet a waste of time in many instances. approved. Pamela: How do you think that

There has been talk of creating inter- changed in the past ten years? mediate courts of criminal appeals. We Marvin: I think there were several may need to create an intermediate court major changes. First, the court increased of criminal appeals for Dallas and Hous- from three members to five members, ton, because I'd say that the majority, then Judge Onion came along in the late or 65%. of the cases come from those 1960s. He was the bright, new face in two counties. Another maior minus comparison to what we had seen in the comes to mind. Our judges on the courts past. Unfortunately, most of the judges of civil appeals are elected from a very in the 1950s and 1960s didn't want to small area, usually a fourteen-county change. "Let's live and l e t live, not area. I fear that when one of those judges rock the boat or make any changes, and writes a very controversial and unpopu- after so many years we will retire, and lar decision, he will gain an opponent in somebody like us will take our place," the next election. Fortunately, a judge on appeared to be their philosophy. Then in the court of criminal appeals is elected January, 1971, Judge Odom and Judge from all 254 counties and has a larger Roberts became members of the court; area for the "heat" to he spread should they are not, in my opinion, the kind of he write an unpopular opinion. Maybe individuals who will just go along to get we need to hire one of those high- along. Then, the court increased from five powered, high-priced outfits to come in to nine. So, I think the expansion of the and te l l us how to do the job better. court plus the arrival of new-thinking

pamela: H~~~ the courts begun using individuals have made the public aware

these efficiency experts? there is a Texas Court of Criminal Ap- ~ ~ ~ ~ i ~ : NO^ to my knowledge, as far peals. Attention can be both good and

as the court of criminal appeals goes. bad, suddenly H ~ ~ ~ ~ ~ ~ , I understand the ~ i f t h cir. the newspapers realize that the court cuit did use a consulting firm, corpora. reverses cases. Unfortunately, there are

tion$ and businesses do it and, letrs face still newspaper editors in this state who it, the court of criminal appeals is a big don't know there is a court named the organization with a budget of about three Texas Court of Criminal Appeals or why million dollars, I donst know how many i t exists. They call it everything under the employees they have now, but you can sun. . . ."The Texas Court of Civil Crimi-

figure approximately 35 in addition to nal Appeals. The Texas Civil Court of the judges. N ~ W , pam, you are talking Criminal Appeals." Even the building about a $3,000,000 annual budget and where the court sits i s called "The Su- maybe they need someone from the out- preme Court Building."

side to come in and show them ways Also, I think it's like everything in the that the system can be made better. I criminal law field. We've been like a step- think we need to do something in the child both within and without the Bar. nature of studying our problem rather Back in the 1960s. if you told somebody than putting something on the ballot you practiced criminal law, you were and hoping the votels will pass it and, looked down upon. I think today the therefore, cure all our problems. It's like public, as well as the Bar in general. snapping your fingers and saying now this has a great deal more respect for the is going to be our solution without criminal defense lawyers. Certainly the giving it the necessary thought and study. pioneers in the criminal law field have I think the citizens of Texas are paying helped make this possible. Richard for a lack of leadership by members of Haynes, who is well known as a criminal the court going back to the 1940s. 1950s. defense lawyer, has been on the Board of and 1960s. Essentially we did not have a Directors of the State Bar. Phil Burleson very effective court during that period has heen on the Board of the State Bar,

TEAGUE INTERVIEW (continued) as has Bill Alexander, Bob Jones, and I don't know how many more.

Pamela: The consensus seems to be that Marvin Teague is going to be a liberal on the Texas Court of Criminal Appeals. What do you think of that? What kind of philosophy of law are you taking to the court?

Marvin: Well, I hate to be classified by a label. All of us have hberal tendencies and we all have conservative tendencies. If I had to sum up my philosophy in one sentence, I would say: "Marvin 0. Teague believes that an accused person must recieve a fair trial under the law in the trial court and if he or she does, then that conviction will be affirmed; i f he doesn't, then that conviction will be reversed." Of course, a "fair trial" is decided by the particular facts of the particular case.

Today I think the public sees in the court nothing but a court that is going to reverse a case and cut some criminal loose. sending him back out to rob, rape, or murder. I think we've got to educate the public as to the court's main function: to see that an individual received the fair trial the Constitutions and the laws say he or she is entitled to. I would like to see a newspaper that re- ports on a reversed case print in big, bold letters that the defendant received a reversal because he did not recieve a fair trial, rather than print ''the court of criminal appeals lets a mass murderer loose."

Pamela: How do you think this sort of inaccuracy can be changed?

Marvin: I think that the court has poor public relations at this time. I think the judges should come out of their ivory tower and start talking t o newspaper reporters. All John Doe Citizen knows is what he reads in the paper and what he sees on television or hears on the radio.

Pamela: And what he reads or hears is the layman's interpretation of a court decision.

Marvin: Of course, they can read the opinions of the court, but without some training and experience, opinions don't make any sense. Sometimes even with training and experience they don't make sense. I think we've got to get out and mix more with the public to make them aware of what the court really does.

I understand there's a lot of conster- nation that I am going to reverse every

case. Some defense lawyers think that Teague is going to afflrm every case. I have a friend in the district attorney's office in Houston who made the comment that the lawyers who will be most surprised will be defense lawyers and not the prosecutors, because the proseuctors do not expect much from Teague. But, they sa~d the same thing about Judge Sam Houston Clinton. Not too long ago, however, he affirmed a death penalty case. Roughly nine out of ten cases are going to be aff~rmed. Regardless of the judge's personal think~ng he is going to write a certain number of affirmances even though he may be the most wild- eyed liberal in the world. A judge may also be the most conservative judge in the world and write a lot of reversals.

One thing the appellate court has begun doing is emphasizing the respec- tlve roles of the parties at the trial court level. In other words, they are looking at what the trial judge did or did not do that he or she was supposed to do or not do. This is something new. We are seeing the grading of each participant's papers to see if he or she is actually doing what he or she is supposed to be doing. For example, the court has reversed a lot of cases on jury charges. It's the function of the trial judge to prepare a legal charge. And yet we know that in many of our trial courts, it's the court reporter who prepares the court's charge. A layman, no less. When the case comes to a close the first thing you hear from some judges is to tell the court reporter to fix up a charge. Now, don't get me wrong-a lot of judges will spend time preparing a charge, but there are a lot of judges who say to the court reporter, "Go fix up a charge," and the next thing you hear from the court reporter is, ''Where is my McClung's?" Or she or he has a cabinet that has this charge and that charge and she pulls this page and that page and puts it together.

The appellate court i s now saying you might be sorry down the road i f you don't spend a little time at the trial level. The prosecutors, for example. have been reversed in a lot of cases for faulty indictments. The court is saying if you don't do it right, we are going to grade your paper and give you an "F" and send it back. Even the defense lawyer hasn't been left out. We are seeing more cases reversed for ineffective assistance of counsel. The appellate court is looking to see how well the defense lawyer did

I f you go back to 1965, a trial judge could do no wrong. The defense lawyer could do no wrong, and the prosecutor could do no wrong. Apparently, the only person who could do anything wrong was the defendant.

his job. Did he defend the man or woman like he should have? If you go back to 1965, a trial judge could do no wrong. The defense lawyer could do no wrong. and the prosecutor could do no wrong. Apparently, the only person who could do anything wrong was the defendant. The appellate court simply put a seal of approval on a lot of incompetence. A lot of attention has been drawn to the fact that we have a new penal code. Interestingly, when it came up for pas- sage, in my opinion, a majority of defense lawyers did not want a new penal code. A good lawyer will tell you that you don't monkey with something that's taken 25 to 30 years to perfect. The majority of the prosecutors who wrote the penal code wanted to do b~gger, better, and newer things. A lot of the reversals coming down today are simply because of this newness. I believe you should think long and hard before you start changing anything in substantive criminal law.

Pamela: As the author of "Significant Decisions Report" for about six years

(Continued on p. 351

1 PROFESSIONAL I THROUGHOUT TEXAS & U.S.

26 YEARS EXPERIENCE FORMER POLICE DETECTIVE

Richard ''Dick" Clark

INVESTIGATOR DALLAS

2 141438-5355 Phone Answered 24 Hours

SL.205-A hiember: TEXAS ASSOClATlON LICENSED INVESTIGATORS

October 1980NOICE for the Defense

I SIGNIFICANT DECISIONS l report on RECENT IMPORTANT DECISIONS FROM

THE COURT OF CRIMINAL APPEALS, THE FIFTH CIRCUIT COURT, AND THE

Editor: Kerry P. FitzGerald U. S. SUPREME COURT

I Co-Editors: Arch C. McColl Ill David L. Botsford

ABBREVIATIUNS USEO: I I0 save sDace Blue Boo*. form I S not tollowa.1 r-S.W.2d; C.C.P.-Texas Code of Crlrnrnal Pro- cedure; P.C.-Texas Penal Code 11974); D-Defendant; Co-D-CoQefendant; A M R H and SMRH-Appallant's and State's Motion for Rehearing; MNT-Motion for New Trial: TCT-Trial Court; PE-Prere~ing Error; U.S.C.-United States Code: FRCP-Fedsrel Rules of Criminal Procedure: FRE-Federal Ruler of Evidence; FRAP-Federal Rules of Appellate Procedure; [ I -Editorial notes.

IN THIS ISSUE: STATE OPINION BY ARCH C. McCOLL Ill

Federal Opinions will begin next issue

STATE OPINIONS FOR THE MOEPPH OF SETEMBER, 1980

APPEAL OF FOUR?H A M E N X W QUESTION ON PLEA OF GUILTY - STIPULATION - Brewster, et a1 (64,333; 9-17-80; a££ 'd; Clinton) : !Ib amid waiver of the Fourth Amendment question by a judicial wnfession, the Defendant attempted to preserve the issue by simply stipulating that witnesses muld tes t i fy that he pssessed wntraband on the date as alleged. Also stipulated was that a chemist muld tes t i fy that the substance was indeed the aontraband alleged, hydromrpt-ane. On appeal, the Defendant raised the Fourth Amendment question a s well as sufficiency of the evidence. Held: "If other evidence is sufficient to s u p r t the pleas of nolo =endere, the stop, arres t and search issues fade into unreachable oblivion. Haney v. State, 588 S.W.2d 913." Putting aside - a l l stipulated testimny regarding the f ru i t s of the search, including the chemical analysis, there is l e f t a stipulation that the witnesses muld tes t i fy that on the day and i n the place i n question,


each appellant "did intentionally and kmwingly pssess. ..hydro- mrphsne. " That is suf f ic ien t to s u p p r t the plea and we do not reach the Fourth Amerdment question.

PE - Cbviously, one cannot now preserve a Fourth Amendment question on a plea of gu i l ty or mlo wntendere even t b u g h Art. 44.02 C.C.P. states "a Defendant i n any criminal action has the r i g h t o f appeal ... upon either his plea o f gu i l ty or plea of mlo wntendere before the w u r t and [he does m t need the mrmission o f the court to appeal] ... on tl&e matters which have be& raised by a written A t i o n prior to t r i a l . " Perhaps the legis lature i n the d n g session can c l a r i f y whether this wnstruct ion o f its s t a tu t e correct ly ex- - presses the leg is la t ive intent.

ATPEMPTED AR5CN - MERE PREPARATION - Oody (59,999; 9-10-80; af f 'd; l b m Davis) : Defendant p u r e d gasoline on floor of building and wadded up paper was found "in and near" the gasoline. Held: The a c t s went bepnd mere preparation and constituted an a t t i t under 15.01 P.C.

ATPEMPTED BURGLARY - SUFFICIENCY-PARTIES - Urtado (58,918; 9-17-80; rev'd and acquitted; Clinton; Atty., Gerald L. ~nderson) : The evidence sbwed the Defendant "making a cutting-type motion across the top" of a window screen on a b u s e next to tha t o f witness. When the witness approached the Defendant, he saw m tools i n the Defendant's hand and the Defendant, along with tw others , ran to a car which Defendant drove away from the scene. Held: The evidence is insuf f ic ien t to shsw attempted burglary or t E t h e Defendant was a party to tha t offense. The "act" of the Attempt Statute , $15.01(a) PC, by which the S ta t e attempted to prove attempt was the Defendant's hand mving across the top o f the screen. This, together with the cu t i t s e l f , was circumstantial evidence t h a t the Defendant c u t the s a e e n , but it was incmbent t h a t the S ta t e ' s evidence exclude every reasonable hyp- thes is other than the Defendant's gu i l t . Sewell v. S ta te , 578 + 131.

The Defendant's evidence sbwed tha t he t o o k tw p u n g wmen to look for a housekeeping job and he waited i n the car while they went to inquire. After they did m t return, he went to look for than. When he came u p n them and saw what they had done, he scolded them, fel t of the screen and suggested they leave. A t this p i n t , he was wnfronted by the eyewitness and, scared, he ran to the car.

The S ta t e ' s evidence "whslly fai led to exclude every reasonable hyp thes i s other than the screen was cu t by the Defendant." The evidence is also insuff ic ient to prove the Defendant was a party because it must shsw a t l e a s t t ha t the encouragement or agreement to the wrnnission o f the offense was "wntempraneous with the criminal event. " Here, the people with the Defendant t e s t i f i ed tha t he d id not k m w what they were up to. Defendant, by driving them away from the scene, was acting a f t e r the criminal event. I f Defendant's wnduct is chargeable at al-t w u l d be mre appropriately charged a s hendering apprehension o f prosecution, 538.05 Texas PC.

October 1980lVOICE for the Defense

CHARACTER - REPIPTATICN - Brown (58,106; 9-10-80; rev'd; bbe r t s ) : The defense alabi witness h m e s t i f i e d that the Defendant, at the time i n question, was a t his h u s e and the witness v7as wmpleting a form for a schcol loan for the Defendant. The witness had written on the form that the Defendant "is a very intelligent young man w b is tryitq to prepare himself for the future welfare of h i s fellow man." H : The State wuld m t convert the witness i n t o a character %tness by asking on cross-examination whether that statement concerned the Defendant's m r a l character and then proceed to ask "have ~u heard" questions. See Ward v. State, 591 + 810, 818; Wrenn v. State, 597 + 369; bwell v. State, 593 + 314; - White 590 + 936: Washington 590 + 493.

CIKXWTANTIAC EVIDENCX CHAEGE - UNCERTAIN IDWCIFICATION - Britton (59,223; 9-17-80; rev'd; Clinton) : The complainant, acting as a good samaritan, stapped on Central Expressway i n Dallas to help a man who was standing next to his stalled vehicle and flagging himdown. The stranded person then pulled a knife on the wmplainant, cut h i m several times and the wmplainant threw his wallet down and ran to ca l l the police. The stranded man l e f t i n the complainant's vehicle. That same day, the Defendant was arrested i n that same vehicle with the wmplainant's billfold. A t the identification hearing, o u t of the presence of the jury, Martinez v. State, 437 + 842, the good samaritan test if ied that he muld m t swear that he recognized the Defendant a s the man w b cut him, tbugh he did identify a mwshot of the Defendant as being the person w b c u t him. The Defendant requested a charged on circumstantial evidence. Held: The "boot- strapped" identification re l ies on the inference t E i f the p b t o is the guil ty party and the p b t o p r t r a y s the Defendant, then the Defendant is the guilty party. An inference is a characteristic of circumstantial evidence, m t direct evidence. Altbugh the evidence "may lead to an a l m s t i r res t ib le conclusion that appellant is guilty," the t r i a l wurt is m t relieved of the duty of charging the jury on the circumstantial evidence present here. This is not a "close juxtaposition" case.

CCT4?ENT ON FAILURE TO TESTIFY - McCarron (59,190; 9-17-90; aff Id; I b m Davis) : In a white-collar theft, the prosecutor's evidence shwed that the Defendant made the rotation "draw" on a piece of paper. The prosecutor asked the complainant, "P7e11, you just have to accept [the writing] at face value unless m u talk to the person w b wrote it, i sn ' t t h a t right?" The Defendant objected to the question as a comment on the lack of testimny by the Defendant. Held: "At the time the wmplained~f comment occurred, the State had m t closed its case and appellant had m t rested her case. A wmnent such as that canmt be held to refer ta a fai lure to testimny which has m t yet oocurred." Garcia v. State, 513 S.W.2d 559.

PE - Under th i s rationale, the prosecutor wuld m e n t on the Defendant's failure to t es t i fy beginning i n m i r d i r e and wntinue throughout the t r i a l of the case up until the time the Defendant res t s her case. A Mtion i n Limine obiectincr to such or actice. based on Lakeside v. Oregon, 435 U.S. 586 &d C2jrffi.n v. Caiifornia; 380 U.W. 609, should be f i led i n advance of t r i a l .


CCXWESSICN - CE?DDY - Heaver (63,881 9-10-80; aff 'd; mbertson): The Defendant, as a condition of probation, was placed i n a residential treatment center and made an admission to oounsellor there when asked i f he had been drinking during routine urine sample. - Held: Altbugh appellant's presence a t the residential center was mandated by the order of the El', he was not taken into custody by the counsellor a t the treatment center when he took appellant into the restroom for the routine taking of a urine sanple.

~ I N U A N C E - 22 DAYS ENOI.K%l PmARATION IN CAPITAL CXEDER - Skillern (63,255; 9-10-80; aff'd. 6-2; Cdom) : Trial d a t e m n t death penalty cases was s e t 22 days after appintment of counsel. The tm oounsel unfamiliar with the case needed to review one copy of the prior appellate reoord, secure an investigator and bal l is t ics expert, interview 50 Sta te ' s witnesses w h did not l ive "anywhere nearby," because the case was on a change of venue, and prepare defensive and punishent evidence. Counsel f i led mtion for continuance. Held: Absent a "showing of prejudice," 22 days is enough time to p r e e for th i s capital murder case.

Dissent - (Phillips with Foberts, Clinton not participatirq) 22 days is simply not enough time to prepare. When i n respnse to the motion for continuance, the ' E C told the a t tys to simply read the prior record, that respnse ignored the fact that (1) counsel has a duty to oonduct an independent investigation of the case [See ABA Stds. relating to Defense Function] (2) one canmt judge the credibility of witnesses from a cold record and (3) "Discharging the burden to become acquainted with the facts is not s t r i c t l y an armchair pastime."

EL - REPRESESTING THREE D l F E N X W E - CONFLIC!? - 1NEFFM)TIVE FSSISTAMlE - Cbnzales (53,890; 9-17-80; rev'd; Clinton): Counsel represented three defendants i n a joint pssession of marijuana case. Counsel put one of them on the witness stand and el ici ted testimny that incriminated the other tm. One Defendant objected to oounsel's decision to put amther on the stand to the extent that "we a l m s t got into a fight." Counsel had never warned his cl ients of any p t e n t i a l conflict of interest. Held: Where there is an actual conflict of interest , the accused need not demnstrate "actual prejudice" because harm is p r e s d . An actual and significant conflict of in teres t exists when "one Defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of the Co-Defendant whom counsel is also representing." "A lawyer may represent multiple cl ients i f it is obvious that he can adequately represent the interest of eacxand i f each consents to the representation after f u l l disclosure of the p s s i b l e effect of such representation on the exercise of his independent professional judgment of each," citing DR 5-105 (A) and (B) .

October 1980IVOICE for the Defense

COUEISEL - WAIVER - INADWATE \YARNIN(T; - Campbell (59,219; 9-10-80; rev'd; Phillips; Atty., Glen H. Shelton, Jr .) : In a misdemeamr assault case, Defendant was told to get an attorney and that the t r i a l muld be held on the scheduled date whether he had an attarney or not. The Defendant intended to represent himself .until he encountered some problems i n diswvery, and the t r i a l judge, after asking some questions about Defendant's age, education, profession and financial status, proceeded to t r i a l . - Held: (1) The Defendant's r ight to wunselattachedbecause "the punisbent actually assessed included a term of imprisonment, "Swtt v. I l l inois, 440 U.S. 367. (2) The record ref lects no warnings to Defendant by 'KT of the dangers and disadvantages of self-representation. Geeslin v. State, 600 + 309.

LWNSEL - WAIVER - FAILURE 'PO NARN - Hawkins (62,534; 9-10-80; rev'd; W.C. Davis; Attys; Selden Hale, mbert H. Ozer) : I n a capital murder case the record failed to reflect an adequate warning to the Defendant of the dangers and disadvantages of self-representation. A kmwing and intel l iqent waiver of w u n s e l was not sbwn. See Faretta v.

COUNSEL - COURT-APPOINTPD - SPONSORING PERJURY - SELF FEPRESENTATION - Mdddox (56,695; 9-24-80; mberts, rev'd) ; The Defendant told court-appinted wunsel he was going to take the stand and l i e . The attorney sowht to disassociate himself, i n a l i m i t e d manner, from spnsoring that perjury. The c l ient then sowht to have new counsel appinted and, u p n denial of that mtion, ultimately c b s e to represent himself. Held: The t r i a l judge failed to determine knowing waiver of wunse l - by fai l ing adequately to warn t h e Defendant of the consequences of self-representation (1) generally or (2) specifically as to the impact, on the jury, of suddendly switching to self-representation i n th is case. When an attorney sits si lently while h i s c l ient examines a witness, th i s conveys to the jury that the attorney is a t odds with his c l i en t and that he attaches l i t t l e significance or credibility to the witnesses, which has the effect of denying a fair t r ia l ."

Counsel's duty: Tbugh there is not a definitive answer, there are some r e m e n d e d courses of action from th i s opinion: (1) Where counsel is not told directly of contenplated per jury, a mtion to withdraw is Kt justified by mere conjecture; (2) where counsel is told of osntemplated perjury by Defendant before t r i a l , he may seek to withdraw, but the Qurt shDuld - not be advised of the attorney's reason for doing so either directly, or indirectly, by a mt ion to withdraw based on vague "ethical considerations;" (3) where counsel learns of contemplated perjury during t r i a l , for h i s own protection, and, simultaneously, to preserve the attorney-client privilege, he should make a confidential notation ideally signed by c l ient and witnessed by amther attorney of attempts to dissuade the c l ient from such course of action. Counsel should - not inform the t r i a l cow t of the situation because of the attorney-client privilege. [Appp-llate Atty., John Allison] .

VOICE for the RefenselOctober 1980

DISCOVERY - DmfAC OF NON-TESTIFYING OFFICER'S RIPOW - Iness (855612; 9-10-80; a f f 'd 5-4; muqlas) : During the t r i a l it became apparent tha t unavailable of f icer had made a r e p r t which contained statements o f the complainant i n a rape case, a request for which was denied. Held: it is mt reversible error to deny defendant o p p r t u n i t y to see r e t for cross-examination where there is no sbwing tha t defense counsel had not seen r e p r t and did mt ta lk to the nurse w b had made the statement to the of f icer .

Dissent - (mm Davis) Of the three categories, (1) where the prosecutor knew or s b u l d have kmvm of perjured t e s t imny (2) where a request is made for evidence and it is withheld from the defendant (3) and where no request is made, each category having a different standard o f reversible error, this case c lear ly f a l l s i n t o category m. (2) i n tha t prior statements o f the complainant might have affected her c red ib i l i t y a t trial and, thus, might have had an a f fec t on the o u t m e o f the t r i a l , c i t i n g bore v. I l l i n o i s , 408 U.S. 786; Ransonette v. State , 550 S.W. 2d 36. The mater ial i ty of the r e p r t was shown by the jury 's request for the re-reading o f the t e s t imny on the issue of penetration about which the r e p r t aontained statements o f the complainant indicating m penetration.

Dissent - (Clinton with Fbberts and Phi l l ips ) The matter f a l l s i n t o category (2) but: actual prejudice to the accused need m t be found; therefore, he does mt at tach to the jury 'notes the significance given them by 'Ibm Davis. "Reversible error is also carrnnitted where the prosecutDr negligently or inadvertently f a i l s to disclose evidence which may exonerate the accused or which may be of material imprtance to the defense. .. ." c i t ing Means v. State , 429 S.W.2d 490, 493, 495.

PE - Under this opinion, i n order to preserve error where the reprt of an absent pl ice off icer or other witness, which may contain statements of the complainant or other defensive information, comes to l i g h t during the t r i a l one m u s t (1) a s k for recess or continuance (2) subpena duces tecm instanter or otherwise secure the r epr t (3) ask to see r ep r t (4) i f denied, ask judge to inspect it incamera for mater ial i ty (5) ask again for the r e p r t (6) i f denied, a 2 t h a t it be sealed £or the appellate record; (7) ask for a mntinuance to gain the absent witness' attendance a t trial; (8) establ ish on r e a x d tha t counsel has not talked to the of f icer w b made the r epr t or a n p n e w b counsel k m w s made statements to tha t of f icer which are contained i n the r e p r t (this almst requires a sbwing o f some lack of diligence, but t h a t does mt waive discovery r ights . mans v. S ta te , 429 S.W.2d 490, 493 - 495; (9) object to lack of confrontation under Tex. and Fed. Const. I f , a f te r closing, counsel learns o f new defensive evidence during the t r i a l , even by v i r tue o f a newspaper article, he s b u l d m v e to re-open h i s evidence, C.C.P. 36.16. (Pbtion for Rehearing is pending.)

EVIDENCE - HEAIEjAY - STATE OF MIND - Byrd (59,824; 9-10-80; a f f 'd, 'Ibm Davis): The Defendant offered t e s t imny of the deceased's s t a t e of mind sbwing his aversion to l e t t ing Defendant i n the house a s cor robra t ion o f Defendant's t e s t imny t h a t he did not enter the house. The evidence was excluded. - Held: The evidence was a

October 1980/VO/CE for the Defense

statement made by the deceased to the witness who had m prs3nal krpwledge of its truth. The statement could m t show s ta te of mind unless "taken a s true"; therefore, the statement was indmissible hear say.

Ooncurrence - (Phillips) : It is "incorrect" that to s h w s ta te of mind the statement mus t be true. '%bore's statement would serve to s b w his s ta te of mind i f he believed the statement to be true, even i f it were m t true." It was aMss ib le , mt for its truth, but to s b w s ta te of mind. bwever, the evidence was "of limited probative value and did mt prejudice Defendant."

PE - Not being hearsay and being defensive evidence, which Defendant has a "fundamental" r ight to present, Chanbers v. Mississippi, 410 U.S. 284 (1973), the Defendant is here being deprived of a fundamental right without an express holdiw under the constitutional standard that deprivation is harmless be$d a reamnable doubt. Harrington v. California, 395 U.S. 250 (1969).

EVIDENCE - DEFENSIVE -EXCLUDED - McCarron (59,190; 9-17-80; aff 'd; Tbm Davis) : In a prosecutioh for theft by the bookkeeper where the evidence showed 411 shortages of cash i n the company's "books," the cash shr tages were based on discrepancies between the daily sales figures i n the ledger and the correspnding bank d e p s i t slips. The Defendant wished to present defensive evidence of cash sales, which did not appear on the sales ticket and where the owner of the store simply put the cash i n h i s wallet. Held: A t r i a l court does m t err i n excluding proffered evidence t h a t i s not inconsistent with a Defendant's gui l t , ci t ing Florio v. State, 532 S.W.2d 614. Here, that evidence "wuld have mt accounted for the discrepancies" and was rpt inconsistent with the Defendant's guil t .

PE - Here the evidence wuld have shwed casual reoord-keeping by the owner. abject on the basis of the Defendant's "fundamental" r ight to present defensive evidence under the Sixth Amendment. C M e r s v. Mississippi, 410 U.S. 284 (1973) . I f relevant, whether evidence was "mt inconsistent" goes to the weight to be given the evidence by the jury, m t its aclmisibility.

ZiL1,YINING TRIAL - TRANSCRIPT BED AT TRIAL - PROPER CERTIFICATION - Russell (57,906; 9-10-80; rev'd; Clintbn; Attys., Randy Schaffer, C. C. Divine) : The State attempted to introduce examining t r i a l testimny of a deceased witness. Testimny sbwed that a t the examining t r i a l defense lawyers were mt generally permitted to cross-examine beyond probable cause and that th i s defense lawyer had m t delved into a f u l l cross-examination. Held: The State has "mt met [ i t s ] burden "in s W n g (1) that theaccused had adequate oppr tuni ty to cross- examine or (2) that the transcript was propr ly authenticated under 16.09 CCP (authenticated by either a l l witnesses or State and defense counsel and then approved by the presiding magistrate).


EXTRADITION - FAILURE m SERVE COPIES - EX p a r k Sanchez (65,001; 9-17-80; rev'd; O%m; Atty., Sue a s son Tejml) : I n a habeas wrpus proceeding wntesting the remanding of the petitioner to custody for extradition to t h e State of Indiana, the evidence revealed that neither the petitioner nor his attmney was ever given wpies of $he documents supprt ing the Govermr of Indiana's warrant of extradition, even tbugh request was made. Held: Th i s violated A r t . 51.13 S3, C.C.P. and was reversible error, E x a r t e mlmes, 397 + 458.

HTFWEOrr; OFEWEE - Rubio (58,370; 9-24-80; aff'd; mm Davis): In a rape prosecution;75i5fh the offense charged and the extraneous offense were comnitted about 30 minutes apart and were mnnnitted by the Defendant pulling mmen over to sbulder of road near the Gulf Freeway i n Houston by bnking and indicating a f l a t t i r e then, with a gun, taking them to h is truck. The Defendant test if ied to "wnsent." Held:

---7-- ''Where the Defendant i n a prosecution for rape raises the defensive theory of consent, he places intent i n issue. The State may then offer extraneous offenses which are relevant to that wntested issue," overruling Jackel v. State, ("the fact that one m a n was raped has no tendency to prove that amther mman d i e not mnsent").

PE - In t h i s case, the State 's error of proving t h e extraneous offense i n its case-in-chief was rendered "harmless" by the Defendant's testimny. Under such c i r ~ ~ s t a n c e s one could r e s t and close with the State.

FIET - EMPIXBEE SOLICITATION I N TAWRN - Allen (64,559; 9-10-80; aff Id; mber ts) : A Defendant c h a l l e n g e d ~ . 01 (4) of Alwblic Beverage Code which prohibits employee solicitation of any customer to buy drinks for mnsumption on the grounds that it "prohibits and restrains freedom of speech, " Held: There are numerous examples where cormnunication is regulatedwitbut offending the Firs t Amend- ment, a s i n securities w r p r a t e proxy statements and "in-person solicitation" by lawyers, Ohralik v. Ohio State Bar Assxiation 436 U.S. 447, 456 (1978). These examples of the Sta te ' s pwer to regulate wmercia l act ivi ty are strengthened i n the case of Alcobl, by the 21st Amendment, even when speech is affected. California v. La Rue, 409 U.S. 111 (1972). Reliance on Dubisson v. State, 572 S.M.2d 694, which struck down an ordinance prohibiting and solicitating by employees of restaurants is misplaced because it did rat involve a lcobl .

FORGERY - SUF'FICIECY - Wilson (59,221; 9-17-80; aff 'd; Phillips) : The Defendant cashedapaycheck drawn on the account of mwn and Country m p t a . When asked for identification the Defendant replied that he had l o s t h i s driver 's license. When the check was determined to be stolen, the @ice were called. when they arrived, a plice officer found the Defendant's driver 's license on the front seat of his car. The wesident of %wn and Cbtmtry Toyota test if ied that the signature

October 1980lVOiCE for the Defense

on the check was u n a u t h i z e d and not by anpne w b had ever wxked for m p t a . Held: By attempting to cash the paycheck made ou t to Charles ~ a l d w e r t h e Defendant fa l se ly held himself o u t a s Caldwell. The Defendant fa l se ly s tated tha t he had lost his dr iver ' s license. These circumstances s b w a fraudulent intent .

PE - The evidence is insuff icient when the S ta te merely proves tha t the check was forged and the Defendant passed it w i t b u t any evidence to indicate tha t the Defendant knew t h a t the check was forged. Stuebgen v. State , 547 S.W.2d 29. 572 S.W.2d 517.

GUILTY PLEA - SEWI'ENCING - IbPFCPER EWAKEMENT - Sanchez (56,847 h 8; 9-10-80; remanded for sentencing; Lbuglas) : One prior wnvict ion was used for enhancement on three indictments. Adrranishments a s to the minimum punishment were incarrect, bu t the punishments were within the wrrect range. - Held: H a r m l e s s error. Defendant must s b w he was harmed or mislead by improper adhnonishments; remanded for proper assessment of punishment, i.e. to drop the tw3 improper enhancement paragraphs .

GUILTY PLEA - IMPRCIPER ACMONISHMFNT - Taylor (62,924; 9-17-80; rev'd; Clinton; Attys., F o r m a n J. tbppenstein, Ibland H. H i l l , Jr .) : On a pleas o f gui l ty , the Defendant was admnished tha t the range o f punishment for delivery of marijuana was 2 to 20 years when, as a th i rd degree felony, it s h u l d have been 2 - 10 years. The jury gave the Defendant 10 years. Held: Although the punishment is within the correct range, the Defendant need m t s b w harm af te r an improper adhronishent i f there is - not substantial wmpliance. Whitten v. State , 587 + 156, 158. Because the jury was set t ing punishment, the s i s h e n t a s to the oourt 's m t being bound by the r e m e n d a t i o n was m t germane. Therefore, the only admmishment which was required was the range of punishment. When tha t is the only adnwnishent and it s t a t e s a range of punishment one grade higher than the offense on t r i a l , it does m t substantially comply with Art. 26.13 C.C.P.

HUSBAND AND WIFE PRIVILEGE - Young (58,669; 9-10-80; a f f 'd 9-0 on SMRH; Clinton): In a s s a u m t h car where wife was i n the car but not the camplainant - held: it was rot a "case for an offense inmlv- ing.. .violence wmnitted by one [ spuse ] against the other "under A N . 38.11 C.C.P. Neither does Tramnel v. U.S. , 100 S.Ct. 906, a f t e r this re su l t .

IDEM S- - CDX (59,385; 9-17-80; rev'd and acquitted; l b m Davis; Atty.! . R X l s J . ) : In the indictment the wmplainant's name was given a s Emna Durn. A t t r i a l , she t e s t i f i ed tha t her name was Erma Dunn, m t lhm Dunn. Held: The names do rat sound alike. The iden t i ty of sound is r e g a r d e d a s a surer metW o f measuring the s imilar i ty of names than ident i ty o f spelling. So long a s the names can be sounded a l ike


" w i t b u t doing violence to the pwer of the l e t t e r s , " variation i n spelling is inanaterial. Although an appellate m u r t w i l l m t usually dis turb a jury determination t h a t the names i n question had similar sounds, i .e., were idem sonans, reversal is required i f the names a re patently incapable o f being sounded the same a s they a r e here. Escobar v. S ta te , 578 + 139.

IMPEACHMENT - COLLATERAL DWI - Shipnan (59,458; 9-10-80; rev'd; Dally; Attys., Clifford Brown, Ralph Brock) : In DWI t r i a l the Defendant was asked on cross-examination i f he knew the defini t ion o f intoxication and i f he had ever been intoxicated before. He repl ied, 'When I was a pungster . " The S t a t e then proved over objection t h a t Defendant had plead gu i l ty to a DWI tm years ear l ie r . Held: The prior DAI mnviction was a m l l a t e r a l i ssue because theprosecutor muld m t have proved it a s p a r t of his case. Because it was col la te ra l , the cross-examining party, the S ta te , may m t mntradic t the witness' answer. Further, the S t a t e may m t on cross-examination, t r y to g e t the Defendant to create a "false impression" on a m l l a t e r a l issue i n order ta mntradic t the witness' answer.

INDICTMENT - CAUSING DEA?H WHILE IXVI ( Phi l l ips ) : Held: Indictment alleging causing death "by accident or mistake" wme I3TI need mt al lege mental state of "recklessly" because such w u l d be "redundant and mnfusing. " Guerro (58,711; 9-10-80; a f f Id;) .

INDICR?ENT - FAILUE3 ?O ALLEGE COUNTY - E k Pa r t e Hunter (63,092; 9-10-80; a f f 'd 8-1; Tbm Davis) : The indictment alleged i n pa r t "Asst. D.A. of Harris Qunty, Texas.. .presents i n and to the Dis t r i c t Qurt of Harris Qunty, Texas," Held: It suff ic ient ly ident i f ied the place o f - the offense a s having occurred i n Harris Qunty because the "then and there" "relate back" to Harris County.

Dissent - (Onion) without opinion.

INrJICIlWJT - ATTEMPTED BURGLARY - NECESSARY ELEMENTr - McCravy (64,033; 9-10-80; rev'd and dism'd 7-2; Cl inbn; Atty. A. White) : On plea o f gu i l ty indictment alleged "did.. .attempt to enter a building owned by Martin H. Ayers by turning o f f e l ec t r i ca l Fower to said building and clinbing to the roof of said building to gain access, having at the time specif ic in t en t to aomnit the offense o f burglary. Held: The indictment f a i l s to al lege an offense because the - requirements o f attempt under $15.01 P.C. are " [ l ) a person (2) with specif ic i n t e n t to mmnit an offense (3) does an act m u n t i n g to (resulting i n ) mre than mere preparation t h a t (4) tends, but f a i l s ,

October 1980lVOICE for the Defense

to e f fec t the commission o f the offense intended." Here " c l i h i n g to the roof" and "turning o f f the e l ec t r i ca l pwer" does not indicate whether the Defendant "did, or did mt, do an act which tended to" enter the builing a s defined i n 530.02 P.C.

INDICIMENT - CAPITAL ivlURDER - Silguero (65,026; 9-10-80; rev'd. 8-1; Tbm Davis; Attys. , L. &on Rena, Wm. J. Quackenbush) : The indictment alleged t h a t the Defendant "causeId] the death of b s a Marie Sier ra by strangling.. .and the said Reyes Silguero did then and there ED cause the death o f the said Wsa Marie S ie r ra i n the course o f comni t t i n g and attempting to commi t kidnapping.. .and attempting to d t aggravated rape.. . ." Defendant f i l e d a m t i o n to quash for f a i lu re to have notice o f the ident i ty o f the victim o f the attempted kidnapping and aggravated rape. Held: It was error to overrule the m t i o n to quash. When criminal wst, constituting an aggravated feature o f an offense % be directed a t a person other than the ultimate victim o f the crime alleaed. the accused is ent i t led to kmw it to bar subsequent pros&ution for the sane offense and to give h i m suf f ic ien t mtice o f the offense charged. See American Plant Rmd Cbrp. v. S ta te , 508 + 598. -

INDIcIF.lEW - BKMXARY OF AN AUTCPI10BILE - EX Parte Billey (67,174; 9-10-80; relief granted; Odom) : The indictment alleged breaking and entering a mtor vehicle without the effect ive consent o f the owner and with i n t e n t to exercise control over the property of the owner. g: The fa i lu re to allege t h a t the Defendant entered the vehicle "with the i n t e n t to commit any felony or thef t , " fa i led to state an offense. - Ex Parte Cannon, 546 S.W.2d 266.

INDICTTlIENP - CCCNNE - Taylor (62,924; 9-17-80; rev'd; Clinton; Attys., Mrman J. Ibppenstein, b l a n d H. H i l l , Jr .) : Held: An indictment which, omitting the formal ,oarts~, s t a t e s tha t th=fendant delivered "a controlled substance, namely: cocaine," is fundamentally defective for its f a i l u r e to allege why [cocaine], a substance not listed by name i n a penalty group, i s a c o n t r o l l e d substance. Growl v. State , (64,101; 7-2-80).

VOICE for the Defenseloctober 1980

IbSTRUCPICNS M THE JURY - NOT M I F H R INDICI@lENT - Tinmas (58,234; 9-17-80; on SMRH aff 'd; l b m Davis): The inZi83Ent charged the Defendant with wgrvated robbery alleging "whi l e i n the w u r s e of conwitting theft . . .with in ten t to obtain and maintain control o f the property.. . . " The charge to the jury instructed on a l l the elements except t h a t it charged "mw i f you find from the evidence bepnd a reasonable doubt [ that the Defendant zcted] with the in ten t then and there to deprive [the owner o f said property]. . . ." Held: Althugh it is fundamental error to f a i l to charge the jury on-%i-allegation i n the indictment tha t is required to be proved, Cmbie v. State , 578 S.W.2d 732, it is m t "always necessary t h a t every allegation tha t is proved be mirrored i n the charge, May v. State , 171 S.W.2d 488, 490- 491." We f ind tha t i n this case the substi tution of language i n the charge is "the equivalent o f the legal theory alleged i n the indictment" and does m t present fundamental error , absent an objection.

IXSTRUCPIW M THE JURY - ROBBERY - ICvans (61,447; 9-17-80; rev'd; Rxn Davis; Atty., Early Andrew ~ e n n e t t n e l d : In aggravated robbery the charge must in s t ruc t the jury tha t theymust find tha t the Defendant acted w h i l e i n the wurse o f corranitting kheft. There a re tm ways to do that. The Trial Court can define t h e f t and "in the course o f oonwititq thef t" and then charge the jury tha t they m u s t find tha t the Defendant acted i n the murse o f comniting the f t a s defined. The second way is to charge the jury on the actual elements of a thef t . Here the Trial B u r t attempted the second method but omitted one element of the f t , which was f a t a l to the wnviction. There are tm ways to cornnit t he f t , one of which requires £our elements and the other which requires s i x elements. Hughes v. S ta te , 561 + 8:

(1) a person (1) a person (2) with the in t en t to deprive (2) with the i n t e n t to deprive

the owner o f property the owner of property (3) appropriates p r o p r t y (3) appropriates property (4) w i t b u t the owner's effect ive (4) which is stolen property

wnsent; or (5) knowing it was s tolen ( 6 ) by amther .

INSWICIENT EVIDECE - DISBELIEF BY TRIAL COURT - Wright (58,000; 9-10-80; rev'd o n AMRH and acquitted; W. C. Davis): The S t a t e ' s evidence showed t h a t only the deceased and Defendant were present and t h a t death was from a " m u d ei ther self- inf l ic ted or in f l i c t ed by [Defen- dant] . " The !ET concluded tha t Defendant's exculpatory version of the stabbing was f a l se and the only other explanation was tha t Defendant k i l l e d h i s wife, thereby rendering the evidence suff ic ient . Held: That the KT disbelieved Defendant's version "does m t mean tha-e missing elements of the offense are supplied by reject ing his test imny. "

October 1980JVOlCE for the Defense

JKPARDY - DEM% PENALTY PUNISHMEWT QUESTICtE - Sane (63,254; 9-10-80; judgment reforned to l i f e and aff 'd; Atty. Allen C. Lee) : In prior t r i a l , the jury answered "mu to punishnent question nmber two regarding future violent acts. Defendant f i l e3 pre-trial mt ion of former jeopardy. Held: A s to that question, the jury had determined an ultimate i s s u e o f f a c t i n Defendant's favor and it a u l d m t be relitigated to make Defendant run the r i sk of death a second time, Brasfield v. Sta te 600 + 288.

JM)PARDY - JURY - EXCL6ING JURORAFTERSVJEARING I N - Sane (63,254; 9-10-80; aff 'd; Odorn): In death penalty t r i a l , afte-or was selected and swrn she was excused for illness. Held: No error and tm jeopardy because the &, as a whole, had =been sworn in. Overruling Ellison v. State 12 Tex. App. 557, 580.

JMX,ARDY - JLJRY DISCHARGE - Bowles (59,178; 9-17-80; aff 'd; Odom) : The Defendant complainZ3XGt the t r i a l cour t erroneously overruled his plea of former jeopardy. The Defendant argued that a t an earlier t r i a l the jury was discharged too soon in violation of Art. 36.31 CtT, even tbugh counsel actually requested that the jury be discharged. Held: Altbugh the statute provides tw instances when the jury may beiszharged, (1) when it c m t agree and both parties consent to its discharge and (2) when the court decides that it is "improbable" that it can agree, where counsel requests the discharge, there is m error i n the court 's granting that request. When such a request is made, the Defendant need m t personally consent to the discharge.

Dissetit - (Clinton) The court is creating a third situation, w i t h u t any statutory basis, for the discharge of the jury. This is flagrant legislating by the oour t.

MANDAME - ORRL ORDER DISMISSING INDIClM3?l' - Haley v. Lewis (65,019; 9-10-80; Mandamus granted 9-0; Onion): The f i r s t indictment was dismissed for fai lure to comply with the Speedy Trial Act, A r t . 3211.02, and the second indi'ctment, arising out of the same transaction, was dismissedorallyby the t r i a l wur t . Adocketsheet entry was made, and an entry i n the minutes of the cvurt was made. Thereafter the t r i a l court refused to sign a formal order of dismissal pending an evidentiary hearing. - Held: Petitioner is entitled to mandamus directing the t r i a l wurt to s e t aside the order setting the matter for an evidentiary hearing because, the court has l o s t jurisdiction of the case by dismissal of the indictment, Garcia v. Dial, 596 S.W.2d 524. -

VOICE for the DefemelOctober 1980

MNT - NEWLY DISCOVERED EVIDENCE - ACQUITTAL I N C O M P ~ C N CASE - Menefee 58,634; 9-10-80; rev'd; 'Ibm Davis; Atty., Russell D. Davis) : A t Defendant's t r i a l , &-Defendand told WT that he wuld inwke 5th Amend. i f called by Defendant. Defendant was tried and mnvicted and sentenced and &-Defendant was then tried and acquitted. bWC on newly discovered evidence, i .e. , @-Defendant's testimny , denied. Held: I t was an abuse of discretion to deny untimely MEPP based on newly disoovered evidence, citing IYhitrrore v. State, 570 + 889. Defendant satisfied the five requirements: (1) evidence unavailable to Defendant before t r i a l (2) fai lure to dismver evidence was r a t due to lack of diligence (3) new evidence wuld "probably" bring about a different resul t (4) evidence was a m p t e n t and (5) m t merely cumulative, corroborative, collateral or impeaching [mery a s to "impeaching. " See Davis v. Alaska, 415 U.S. 308 (1974) . PE - Where Defense, as i n this case, was alabi, and &-Defendant's testimny m i m i have fal len into "merely mrroborative" category (5) above, this p i t f a l l was amided by the Defendant's m t testifyinq a t - - his t r i a l . gut even i f "wrrobr>tive," see Chanbers v. Mississippi, 410 U.S. 284 (1973).

IQJT - NEWLY DISCOVERED EVIDBKE - B d (59,824; 9-10-80; af f Id; m Davis) : -2% Third party inwked the t Amendment a t Defendant's t r i a l . After Defendant was convicted, third party pled guilty to s h t i n g a single sbtgun blast accidentally a t the deceased and a l m test if ied that the Defendant was m t present at the scene. On that basis Defendant made a mtion for newly dismvered evidence which was denied. Held: Beeause the T 3 was faced with conflicting evidence a s to whethe-e testirmny was "probably true" i n l ight of an eyewitness placing the aefendant and m t h e r a t the scene, and because the WT must determine "credibility," which it did adversely to Defendant, it was m t an abuse of discretion to deny MNT.

PE - Ask Trial Court to s t a t e reasons into the remrd for denial of MNT. See ABA Standards Relating to Function of the e i a l Judge.

October 1 Q80lVOICE for the Defense

OBJEXXIW - NO RULING - Van Sickle (57,009; 9-10-80; on Sl.IRH aff 'd 5-4 Dally) : T?hen the prosecutor asked, "Have p u ever been mnvicted of a felon," Defense counsel asked to have a hearing. He then apprised the E C and the prosecutor that the Oklahoma judge who had heard the case had told the attorney that the prior offense was an unadjudicated probation. The imnediately produced a case which seemed to se t t l e the matter adversely to Defendant. The D.A., without further objection from Defendant, then asked questions about the "conviction" to which the Defendant did m t k m w how to respnd. - Held: There was m specific objection and m adverse ruling; and m bad fa i th of the prosecutor because Defendant produced la evidence that the mnviction was a deferred adjudication.

Dissent - (Clinton, with Onion, mber ts, Phillips) : "'Where are p u r papers?' heretofke alien to th i s country, is made a proper question i n a wurt of law. Kafkaesque, the majority mw requires a citizen to be prepared to demnstrate that he is m t a mnvict by imwdiately producing papers of an event that has been ordered obliterated from the pages of history of h i s permnal l i fe ."

PROBATION - NO EVIDENCE TOSUPPOW AiUNT OF RFSTITUI'ION - Cartright (64,721; 9-17-80; appa l abated; Clinton; Atty., James A. h b r e ) : The Defendant pled nolo mntendere to the offense of aggravated assault and was placed on probation for ten years. A s a condition of that probation, restitution i n the a u n t of $36,000 was impsed. The Defendant appealed on the basis that there was rr, probative evidence to s u p p r t that a u n t . - Held: Due Process considerations require that there m u s t be evidence i n the record to show that the a u n t of rest i tut ion by the court has a factual basis. Tbmpson v. State, 557 + 521, 525-26. Here, the court had only a pre-sentence investigation "which, aside from being hearsay," did m t recormend that particular munt or explain 1-aw the m u n t was calculated. The appeal is abated, the m u n t of rest i tut ion se t aside, and the cause remanded for an evidentiary hearing to determine the a u n t of rest i tut ion to be ordered and paid by appellant.

VOICE for the DefenselOctoher 1980

PROEATION REXWATICN - INSANITY - Martin (64,369; 9-17-80; BlRH overruled; Onion) : The Defendant wa-ced on probation. When the State f i led a mtion to rewke for a subsequent offense, the probationer asserted the defense of insanity. The Trial Court held a hearing and revoked probation. On appeal, the Defendant objected that the remcation order " i s against the great weight and ,prepnderance of evidence." Held: The Defendant admits that there was evidence to s u p p r t the Court's finding of insanity. In White v. State, 591 + 851, we were faced with a similar question a s to competency of a Defendant. Ne stated we had no jurisdiction to "unfind a v i ta l fact-finding by a jury." Although this t r i a l was b e k r e a court, we adhere to the same reasoning i n th i s case.

PE - The decision i n White, supra, is arguably, seriously flawed: Mrst , regarding m p e w , the U. S. Supreme Court has stated that "the fai lure to observe procedures &equate to protect a Defendant's right mt to be tried or convicted while incompetent to stand t r i a l deprives h i m of his Due Process r ight to a fa i r t r ial ." Drope v. Missouri, 420 U.S. 162, 172 (1975). Whether i n a competency proceeding the standard of prepderance of the evidence, rather than "clear and convincing evidence, " is a :procedure [ally] adequate" safeguard is o p n to question. Because of the "liberty" interest a t stake, the federal constitution dictates that "the individual should not be asked to share equally with society [by a prepnderance of - evidence stardardl, the r i s k of error when the p s s i b l e injury to the individual [of incarceration in a mental hospital] is significantly greater than any possible harm to the State." Pddington v. Texas, 99 S.Ct. 1804, 1810 (1979) . The bracketed phrases below show the analogy to criminal confinement:

" [TI he State also has authority under its police pwer to protect - the cornunity from the dangerous tendencies OF m e who are mentally ill.. . .Since the prepnderance standard creates the r isk of increasing the nwber of individuals erroneously wmi t t ed [or put to t r i a l ] , . . . [wle conclude that the individual's interest i n the

outcome of a c iv i l m d t m e n t [or competencyl proceeding is of such weight and gravity that Due Process requires t h e State to justi£y confinement [or t r i a l a d then confinement] by proof m r e substantial khan a mere pre- pnder ance of the evidence. "

Addington v. Texas, 99 S.Ct. 1804, 1810 (1979).

Sewnd, a s to the State Court's pwer to review, i f the federal constitution protects a Defendant from being convicted on insufficient evidence, Jackson v. Virginia, 99 5.Ct . 2781 (1979), doesn't the lack of any a p p l l a t e review of competency constitute a "failure to observe procedures adequate to protect a Defendant's r ight m t to be tried or convicted while incompetent to stand t r i a l , " &ope v. IGssouri, 420 U.S. 162, 172 (1975)?

October 1980/VOICE for the Defense

Because Due Process implications are present i n both the criminal t r i a l and the mpetency hearing, what is the pr incwed distinction between the B u r t of Criminal Appeals being - able to '"unfindl a v i ta l fact-finding by a jury1' when it reverses for insufficiency of evidence and, on the other hand, being unable to "unfind" a fact found by a jury at the competency hearing? That is, what is the principled distinction between the B u r t ' s being able to find there was an insufficient basis £or the jury to have fa the - fact of gu i l t and, on the other hand being unable tm find an insufficient basis for the jury to find the - fact of competency? Both gu i l t and mpetency are factual determinations. Melvin Carson Bruder was consulted regarding this argument and he saw ID principled distinction. IIowever , he said that he does mt deal with nuts because they do mt pay their fees.

Finally, it is d i f f icu l t to see why the B u r t i n Martin did m t a t leas t review the insanity evidence i n the revocation hearing to determine i f there was an abuse of discretion. MDnald v. State, 442 + 386.

PROBATION FSKCATION - ETGIBILITY - PRIOR WID CXNWcPICN - Tbmpson (58,982; 9-10-80; rev'd; W. C. Davis; Atty., H. Deloyd Bailey): The Defendant's prior theft conviction was u p n a fundamentally defec- t ive indictment. After felony conviction i n th i s case for delivery of a controlled substance, he applied for probation. @: It was error for the to refuse to submit the issue for probation to the jury. I f a Defendant is eligible for probation when his prior mnviction is on appeal, Baker v. State, 520 + 782, he is eligible for probation when the prior conviction is void.

PE - In examining the B u r t ' s papers of the prior mnviction to determine p u r c l ient ' s e l ig ibi l i ty for probation, i n addition to checking the indictment of h i s prior conviction(s), did he have counsel? Was there fundamental error i n the jury charge? Was there a 10-day waiver, i f a p ~ i n t e d counsel?


PROBATION m T I C N - STATE LWJITED TO ALLEGATIONS - Caddell (62,902; 9-10-80; rev'd; Clinton; Attys., Jane M a t t y a m Probationer was found outside tavern vomiting and snelling o f a l c o h l . The Sta te alleged public intoxication a s the basis to revoke and then fai led to prove the element "endanger himself and others." Held: 'KT erred i n revoking on the bas is t h a t such evidence was also p a o f a d i f fe rent violation, i.e., to m i d places where alcohol is sold. Probationer is ent i t led to due process notice of the charge. "A probation may not be remked u p n a finding of any violation o f any probationary condition other than tha t alleged or necessarily included within the allegations contained i n the S ta t e ' s m t i o n to revoke. " Cleland v. S ta t e 572 + 673; Chacon v. S ta t e 558 + 874; Picket t v. S ta t e 542 + 868. -

PROBABLE CAEE FOR SEARCH P?ARRANT - E . ~ A ~ OF MEEWIPHFPAMINE - (64,718; 9-17-80: a f f 'd ; Phi l l ips ) : Seven fac t s were re l ied u p n to s u p p r t the issuance o f the warrant. (1) Washington was a known manufacturer o f methamphetamine; (2) Washington purchased, under suspicious circumstances, 11-1/2 liters of phenylacetone , a substance used i n the manufacture of methamphetamine; (3) Washington took the phenylacetone to appellant 's residence i n muston; (4) Appellant was seen i n Washington's company a t the storage warehouse; (5) According to the informer, wbse information had proved correct the previous day, Washington ordered a case of.methylamine, a substance used i n conjunction with phenylacetone to manufacture methamphetamine, a d then l e f t muston; (6) Appellant's and Washington's cars , a s well a s appellant, himself, were then seen a t appellant 's r u r a l resident; and (7) The sinhll of e ther , another substance used i n the manufacture of

methamphetamine, emanated from the residence.

Held: These f a c t s were suf f ic ien t to jus t i fy Judge [Gus] Mutscher 's conclusion t h a t the Defendant and Nashington were manufacturing methamphetamine i n the Defendant's ru ra l residence, and tha t a search of the residence muld l i k e l y lead to the seizure o f t h a t drug. See U. S . v. Ventresca, 380 U S - 1 0 2 ; U. S. v. IIayles, 471 F.2d 788 (5th Cir.); Turner v. State , 543 + 629.


SEARCH AND SEIZURE - BAD TERRYSTOP - Baldwin (59,052; 9-17-80; rev'd; 'Ibn Davis; Atty., Ed Mason) : A p l i c e officer received a "suspicious person's" ca l l from the dispatcher and proceeded to I&. M Fbod Store. There he found the Defendant and a oompanion s i t t ing i n a car parked directly i n front of the store. The officer parked his car behind the one i n which the Defendant was s i t t ing and asked him what he was doing. Defendant told the officer that he wxked a t the store and was waj iing for it to open. In response to further questioning, the Defendant told the p l i c e officer he had previously been arrested for carrying a pistol. The Defendant produced a driver 's license but was unable to s t n w any identification that he wrked a t the store.

The p l i c e officer ordered the Defendant and his ampanion to get out of the car and, when they were a t the rear of the car, searched under the driver 's seat and found tw sticks attached by a chain, referred to as "nun-chucks." A t the hearing on the mtion to suppress, the plice officer stated that a t the time he in i t i a l l y approached the Defendant he thught that an offense was a b u t to be mmi t t ed because the store was i n a high crime area and had been burglarized i n the past. Held: Although the officer received a "suspicious person's" ca l l from the dispatcher, rn circumstances were given the officer which wuld give r i s e to mre than a "mere hunch" that the Defendant's activity was related to crime. "There were m s p i f i c articulable facts sbwn which wuld have justified the i n i t i a l detention of appellant. The p l i c e officer "was acting only on suspicion." Because the detention was improper, the "club" r a v e r e d as a result of the searah is inadmissible. Vhng Sun v. U.S., 371 U.S. 471.

SEARCH AND SEIZURE - BUGING A ROCXl WITHOUT AUJXORITY - Ibvinsky (59,546; 9-10-80; aff 'd; muglas) : The Defendant and tw others met i n a hotel room to discuss a payment to Defendant i n return for h i s rot implicating a third party. The third party gave his consent to police to have the hotel room blagged, which they did without a warant. w. There is m difference between messages being intercept& by a person w h is "wired for sound" and the a b v e scenerio because both the body "mike" carrier and the third party have consented to the electronic interception.

Dissent - (Clinton) : The difference between wiring a person and "bugging" a b t e l room, as recognized in U.S. v. Padilla 520 F.2d 526 (1st Cir.) , is that under the majority's .Siew, "bugs" could be ,prmanently installed i n hotel rooms, or even entire hotels, without prior authority "with the hope that =me usuable wnversations w i t h agents wuld occur. "


SELF-INCRIMINATION - EMEKfNX ROOM - Guerro (58,711; 9-10-80; aff 'd; Phillips) : After a ~ t o m b i ~ i d e n t officer went to h s p i t a l emergency room and inquired, generally, as to who was dxiving the car that had been i n the accident. Defendant answered that he was. Held: A t the time the statement was made, the investigation had m t sh-ed from the investigatory to the accusational or custodial stage, i.e., Defendant was not yet the focus of suspicion, a d there£ore staterent was admissible.

THEFT - INSUFFICI~CY OF ACE$fPLICE CORROBORATION - Sheets (58,971; 9-17-80; rev'd and acquitted; 'IbmDavis; Atty., Philip Zeigler): Ambile home was on a parking l o t one day and gone the next. On the day that it was taken, the Defendant was heard to have requested assistance from the accomplice i n m v i w a t ra i le r , but whether it was that day or same future date for mving a t ra i ler h u s e or farm t ra i ler was not clear. Someone saw a " w h i t e colored" truck pulling a mbi le bme the same color a s the stolen one and the Defendant had a similar white truck. The mbi l e home was found on the property of a person who was heard to have told the Defendant that he liked the t ra i ler house. The Defendant called the accomplice on the day the t ra i ler was stolen and told h i m to c a l l the person on whose propr ty the t ra i ler house was eventually found to tell them to be a t home because "somekdy" was on their way to v i s i t him. That day the property owner paid $1,900 .OO to Defendant who, i n turn, gave $900.00 to the ammplice. On two previous occasions the Defendant and the accomplice had mvedmbile homes. - Held: The corroboration is insufficient because the mn- a m p l i c e testimny showed that the mb i l e hme was stolen from one place and found on amther place. The evidence does m t s b w that appellant's truck'hauled the mb i l e hme; the Defendant was mt sho~m to have been i n the company of the accomplice on the day the mb i l e h e was taken; the Defendant was never seen with the mb i l e home a t either the place where it was taken or the place where it was delivered or any place i n between.

VEIIDICT IQFM - SPECIAL ISSUES - Gant (59,034; 9-17-80; aff'd; Clinton): The Defendant was charged with felony theft under the ''recently created" §31.03(d) (4) (C) PC, providing that even i f the value is less than $200.00, the case may be f i led as a felony i f the "Defendant has been previously convicted tm or m r e times of any grade of theft. " The verdict fora submitted the issue of g u i l t / i m e n c e and the special issue of whether the jury found that the Defendanthad been twice convicted before of bu thefts. Held: The "enhancement" provisions of 531.03 are jurisdictional and-was error for the question of prior convictions to be submitted separately. Ilowever, absent an objection, i t was m t fundamental error.

October 198OlVOICE for the Defense

PE - The S t a t e is not permitted to al lege tm prior misderreamr t h e f t convictions for jurisdictional pu rpses , and then add tvm prior felony convictions for general enhancement pu rpses under S12.42 WJ. Rawlings v. S t a t e (59,375; 7-16-80).

mIR DIRE - CAPITAL MtJRDW - Evans (60,016; 9-10-80; rev'd 8-1; Onion) : Jurors were excusedunder 12.31 (b) P.C. i n violation o f W i t h e r s p n v. Illimis, 391 U.S. 510, and Adam v. Texas, 100 S.Ct. 2521. Held: Judgment is remanded a s to both g u i l t and death.

Dissent - (mberts) The judgment s b u l d be reversed only as to death; to give the state amther sbt a t the death penalty is to give it an appeal i n violation of the Texas Constitutional bar against appeals by the S ta te i n a criminal case.

WIRDIRE -CAPITAL blURDW - Grijalva (65,174; 9-10-80; rev'd. 8-1; Odom): There was error under Adams v. Texas, 100 S.Ct. 2521 i n the jury selection process by excusing a p t e n t i a l juror under S12.31 (b) P.C. , but the S t a t e argued tha t because the S ta t e had not used a l l its peremptory challenges, error was "cured" on appeal. - Held: The S t a t e may mt reserve its peremptory s t r i k e s i n a death p n a l t y case, so tha t on appeal, when error is found it can, "with the benefi t o f the ruling of this court a s its guide ... maximize the accuracy o f the s t r ikes mt used a t t r i a l . " This is giving the S t a t e an o p p r t u n i t y to have "20-20 hindsight," overruling Chambers v. S ta te , 568 + 313.

VJIR DIRE - CAPITAL filURDER - Hartfield (59,343; 9-17-80; rev'd; Atty., Fobert A. Scardim) : Held: Selection o f jury under $12.31@) P.C. is a violation of Mams v. Texas, 100 S.Ct. 2521.

VOIR DIRE - CAPITAL MURDER - lourdes (63,676; 9-10-80; rev'd 8-1; Dally; Attys., E'rank Cof fey, Marvin D. Smdgrass) : Potential jurors were excluded under §12.31(b) P.C. Held: Adams v. Texas, 100 S.Ct. 2521 (1980) was violated. By excluding jurors w b could mt state t h a t they imuld m t be "affected" on three "factual" issues o f sentencing by their kmwledge tha t the death y n a l t y muld be impsed i f they answered a l l three yes, the e f f ec t was to exclude p p l e w b muld simply be "affected" by being mre conscientious i n their answers. Excluding these people r e s u l t s i n a jury uncomnly willing to hang.

[Same] - Fearance (63,342; 9-17-80; rev'd; 'lbm Davis; Attys., J. Timmas Sullivan, Preston DeShazo) : - Held: Juror excused under S12.31 (b) P .C. was i n violation o f Adms v. Texas 100 S.Ct. 2521 (1980).

ISax?] - Pier son (63,437; 9-17-8080; rev'd; Phi l l ips ; A t t y . , Kelvin C. Bruder ) : Hel(d: - Jurors excused under 512.31 (b) P.C. was i n violation o f - Mams

v. Texas, 100 S.Ct. 2521.


VOIR DIRE - CAPITAI,PII[]RDER - RESERVING PZEEPP!lORY CHALLFNGES - Ski l le rn (63,255; 9-10-80; a f f Id. 6-2; e m ) : I n voir d i r e , Defendant was denied o p j g 3 m i t y to reserve peremptory challenges u n t i l a f t e r examination of e n t i r e panel. Held: W i t b u t reaching the merits, the Defendant fa i led to show h a r m e i t h e r by requesting additional peremptory challenges for objectionable jurors or declining to use (reserving) his peremptories and, at the end of voir d i r e , making a re t roact ive request to use s t r ikes at the wnclusion o f voir d i re .

Dissent - (Phi l l ips with a b e r t s ) : Reserving s t r i k e s w u l d v io la te Ant, 35.17 and 35.20 C.C.P. In t h i s case, the Defendant needed three peremptory s t r ikes ; since he was given only one, he has showed su f f i c i en t harm.

WIR DIRE - RANGE OF P U N I S M - Pierce (62,782; 9-10-80; rev'd en banc; Dally; Attys., Bruce V. G r : m h s , T. Michael Askins) : The De£endant i n a death penalty case challenged a p t e n t i a l juror for cause because he s ta ted t h a t he could m t consider l i f e imprisonment as a punishment for robbery-murder . Held: Failure of the 'JET to sustain t he challenge was error under 35.16 (c) (2) C.C.P. (bias or prejudice against any of the law including punishent ) .

PE - Wr error p u must, a s was done here, (1) challenge the p t e n t i a l juror (2) have to use a s t r i k e on h i m (3) use up all s t r i k e s (4) ask for additional peremptory s t r i k e s and (5) be denied t h a t request.

~I'INESSFS - UNQUALIFIED "FLPPURE VIOLEKE" EXPERT - DWlU PENALTY - HAR?%ESS ERROR - Skil lern (63,255; 9-10-80; aff 'd . 6-2; Odom): Pathologist w b t e s t i f i e d about Defendant's future probabili ty of violence soley on bas i s of the autopsy of deceased was shown m t to be q u a l i f i n t e s t i f y a s to Defendant's predi l ic t ion £or futureviolence because he was mt shwn to "have such s k i l l , kmwledge o r expr ience" about human behavior " tha t it was probable t h a t h i s opinion muld be of assistance to the jury. . . . " Held: H i s t e s t i m n y was never theless harmless error because "the evidence.. . .was abundant i n demnstrating" Defendant's ant i -mcial per sonali ty.

Dissent - (Phi l l ips with Igherts , Clinton m t part ic ipat ing) : It was undisputed t h a t the Q-Defendant, mt Defendant, sbt deceased [the Q-Defendant go t l i f e i n the 1st t r i a l ] . Jurors have answered "m" to Question M. 2 i n mrse cases, see D. Crump and B. Jacobs, Capital Murder, especially Defendant's Griff in and Sier rar i n the book. It simply canmt be wncluded with the required degree o f cer ta inty, i .e., beyond a reasonable doubt, t h a t the admission of this evidence fa i led to contribute to - one juror 's voting "yesU instead of "m" on special i s sue 82.


Either af te r p u r breakfast has been ruined by reading the opinion i n your case and a m t i o n for Rehearing s t a re s p u i n the face, or a f t e r p u receive the white card from the Texas Court o f Criminal Appals docketing p u r a p a l i n a case which you believe has an i ssue o f par t icular merit, contact an Amicus Corrani ttee &lerrber. I f it is (1) one of f i r st impression (2) w i l l have a s ign i f icant and widespread impact on the pract ice of criminal law or (3) w i l l provide an o p p r t u n i t y for the Court to c l a r i f y c l ea r ly oonflicting opinions, we're interested. Send to a member of the Amicus Comnittee i n p u r area f i v e copies o f h t h the cover page of p u r br ie f and - the ground -- of error which you believe to be w r t h y o f a 7CDI.A Amicus br ief . S t a t e why p u believe it f a l l s within one of the categories listed a b v e and write the Cornf o f Criminal Appeals docket number on the wver page of p u r br ief .

These oopies w i l l be sen t by the Amicus member you contacted to the other menbers of the chapter of the Amicus Cormrittee for circulat ion and review. The Cbnnittee believes it wise to comply s t r i c t l y with the a b v e c r i t e r i a to avoid d i lu t ing the impact of a E D L A br ie f . For pur convenience an (incomplete) list of Comnittee members with the i r addresses and t e l e p b n e nunbers is provided below.

Under the procedure outlined i n the 'ICDLA Amicus "Interim R e p r t , " the Amicus attorney you contact i n your area has the ultimate r e s p n s i b i l i t y to see t h a t your request is acted u p n timely.

ALETIN AND MEMEEK3 I N FZSTERN DISTRICP

David Chapnan, 504 West 8 th S t ree t , Austin 78701 512/476-9215 iby E. G r e e n d , 822 West Sixth S t r ee t , Austin 78703 512/477-5971 David H. Reynolds, 505 W. 12th S t r ee t , Austin 78717 512/476-8700 John A. Yeager, 505 West 12th S t ree t , Austin 78717 512/476-8700

D W AND I@NBES I N N O W DISTRICT

Richard Anderson, 3012 Fairmunt S t r ee t , Dallas 75201 David L. Botsford, 2812 Fairmunt S t r ee t , Dallas 75201 W i l l i a m A. Bratton, 111, 2425 Cedar Springs, Dallas 75201 Elizabeth U. Carlyle, One Turt le Creek Village, Dallas 75219 Gay G. a x , 1801 N. Lamar, Sui te 101, Dallas 75202 Fonald Goranson, 555 Griff in Square, #968, Dallas 75202

* Arch C. W11, 111, 701 ICaty 31&., Sui te 302, Dallas 75202 Edgar A. Elason, 3131 Turt le Creek Blvd., Dallas 75219 l b m Mills, One Turtle Creek Village, Dallas 75219 Lawrence B. Mitchell, 3524 Fairmunt St . , Dallas 75219 Stanley I. Weinberg, 810 &lain S t r ee t , Dallas 75202

*Chairman, TCDLA Amicus Committee

VOICE for the DefensetOotober 1980

Allan Lee Levy, 302 Texas Building, Denton, 76201 817/382-8622 George A. Preston, Jr., Post Office Bsx 428, Denton 76201 817/382-8622 W i l l i a m R. \W, 611 - 1st S ta t e Bank Bldg., Denton 76201 817/3S7-9551

O'Keefe Berry, P. 0. Drawer B, McKinney 75069 214/542-0191

HCiS'ION AND M E T B E 5 I N 'IHE SCWllEW DISTRICT

David R. Bires, 210-A Stratford, b u s t o n 77006 Elurry B. Qhen, 2290 M Shel l Plaza, b u s t o n 77002 W i l l Gray, 914 Main S t ree t , s u i t e 1101, Houston 77002 Albert S. b w e , J r . , 3401 bu i s i ana , 11410, Houston 77002 mnald Ftgers, 705 Pbin S t ree t , Sui te 609, Houston 77002 Leonard H. m t h , 3401 Louisiana, #410, Houston 77002 Stanley Schnieder, 2225 LaBranch, b u s t o n 77002 Randy Shaeffer, 3401 b u i s i a n a , #270, b u s t o n 77002

Joseph A. Comrs, 111, P. 0. Bsx 4136, McAllen 78501 512/587-8217 SAN ANKNIO AND ~ ~ E S I N 'IFE WES!FEiW DISTRICT

C e c i l W. Bain, 1665 Frost Bank mwer, San Antonio 78205 512/226-0311 Samuel Bayless, 115 E. Travis St. , San Antonio 78205 512/227-1496 Allen F. Cazier, mwer Life Bldg., San Antonio 78205 512/224-5505 Gerald H. Qldstein, 2900 mwer life Bldg., San Antonio 78205 512/226-1463 Rusty Guyer, 442 Dwyer Ave., San Antonio 78204 512/224-2100 Terrence mmna ld , 442 Dwyer Ave., San Antonio 78204 5 : 2/224-2100 Marvin B. zimnerman, 200 Main Plaza, San Antonio 78205 512/227-8111

ODESSA

John C l i f f , 307 Ebrth Qant, Odessa 79751

October 1980/VO/CE for the Defense

TEAGUE INTERVIEW from p. 10 now, are you going t o feel bound by the opinions you wrote?

Marvin: I'll have to go back and see what I wrote.

Pamela: 1 wonder i f your opinions are to have the same informal char-

acteristic as the S.D.R. Will you continue to write in the same style?

Marvin: I think opinions should have a little color to them, rather than be drab, academic-type opinions. One of my favorite appellate judges, as far as his writing of opinions, is Judge John Brown. He makes an opinion interesting whether it's aff~rmed or reversed as he puts a little color in his opinions. If you are going to grind out an old, staid opinion day in and day out, week in, week out, I don't think you're going to accomplish a great deal, because the opinions that we remember are those that had a little color in them.

Pamela: I understand that the Texas Court of Criminal Appeals enacted something they call the Teague Rule, or Rule 13 about voluminous briefs. Are your opinions going to have this same characteristic, or are you going to cut down the length of your opinions?

Marvin: What brought that on i s that one day at the office I came up with the idea that it would be nice if the judge had everything in the brief that he needed to resolve t h e issue. So, I would put my ground of error and have that part of the record in that part of the brief. It did get a little unwieldy, and they decided to put a stop to that. I suppose when I started putting out briefs that consisted of several hundred pages, I was a frustrated Louis Brandeis. However, after reading Judge Clinton's opinions, I am almost convinced there is no way that I can match him for quantity. One of my trial judge friends has made me promise that I will put the holding in the f~rst paragraph. "And then, Marvin, you can write whatever the hell you want to write." That may be good advice.

Pamela: Tell me what you think is your greatest asset as an attorney.

Marvin: Oh, I think that I have a certain amount of respect from all sectors at the trial level. This i s not to say they all agree with me or I with them, but I think we have an open line of communication.

Pamela: Which of all the cases you've handled really sticks in your mind?

Marvin: I think that every case a defense lawyer handles is, or should be, his

most important case. The one that really comes to mind never got any publicity. The defendant was Alfred Don Richard- son. I had just started practicing law and somehow ended up representing Alfred Don Richardson IA.D., as I called him). A.D. simply couldn't conform to society or to society's rules. I was convinced of his Innocence in this case, and I made a vow that AD. would never go to the penitentiary. I think I ran through half of the Harris County District Attorney's staff back then, because they would try AD., convict him, then I would appeal it and the C.C.A. would reverse it. I would go back, get new prosecutors and they'd try him again, convict him, and I would appeal again. I think we got three reversals out of A.D.3 case. Unfortunate- ly, the last I heard, A.D. was still in the pen~tentiary. (Ed. note: A.D. never went to the pen while Marvin was his lawyer.) Which brings to mind a thought I have about some of the younger lawyers. For representing A.D. and appealing his case. I received not one dollar in compensation. I wonder today how many lawyers would do the same thing. Some- times I think we forget that satisfaction in practicing law comes not from money but in carrying out our responsibility t o the profession. I personally feel if one practices law for money, he or she would be better off as a psrson selling used cars. real estate, or vacuum cleaners. Interestingly, the trial judge in A.D.'s case was Judge Odom. who also taught me criminal law in law school.

Pamela: How do you think jurors are affected by cases that generate lots of publicity, like Kleasen and O'Bryan?

Marvin: Oh, you feel that you have a lot of responsibility because everybody. just about, is against your client. Through notorious publicity, your client has few friends as a general rule. Outside of the family and a few close friends you're almost out there on a deserted island. It's you against them.

Pamela: Do you argue this to the jury and remind them of how much bad publicity there has been?

Marvin: No, I usually don't try to make that argument. I hope they all live in a cave. However, the more notorious a case, publicitywise, the less chance the individual will get a fair trial. Keep in mind that in the more notorious cases you are usually dealing with an individual who is financially bankrupt. His family has no money. He is an in-

digent and has a court-appointed lawyer. Where the crime has become notorious. it is rare that the person charged will actually escape conviction. T. Cullen Davis is an exceptioo in that regard. In the ordinary case that receives publicity, fhe defendant just doesn't have the re- sources to pay for investigators and you usually don't see the better defense lawyers appointed to handle these notorious cases.

Pame!a: How did Kleasen and O'Bryan hire you?

Marvin: O'Bryan's uncle i s a lawyer in Oklahoma and he contacted Richard Harrison's firm in Dallas and Richard ended up with the case. One day Richard called me and asked if I would be interested, so that's how I got involved in the O'Bryan case. The Kleasen case was rather interesting in that Kleasen had a difficult time getting along with any lawyers who represented him. He wrote Judge Tom Blackwell a letter and made known his dissatisfaction with his then lawyers, and Judge Blackwell told him that i f he could find any lawyer in the state who would take his case, he'd appoint him. One day 1 got either a phone call or a letter from Judge Blackwell that I had been appointed to the case.

Pamela: What do you think has most changed in criminal law in the 18 years you have been practicing?

Marvin: Pam, I think the greatest change we have seen in criminal law has been in the pre-trial area of criminal cases, rather than the trial or post-trial. Twenty years ago it was a rarity to see a lawyer file a pretrial motion, whereas today a lawyer may file too many motions. The defendant had very few rights in 1960. In fact, he didn't even have the Constitutional right to counsel. We are seeing in many quarters a desire to cut back. Ten years ago a lawyer would file a motion to suppress and a judge would hold a pre-trial hearing on the motion. Today. it is not unusual to hear a judge say, "Well, we'll do that during the trial." There's a great cry for expediency and sometimes this can be good, sometimes not. For example, the C.C.A. has handed down a decision stat- ing, in my opinion, that a judge can ar- bitrarily or capriciously tell the defense anorney he has 30 mintues to voir dire a felony case. You have 30 minutes to ask everybody if they can be fair. This is ridiculous. but many of the trial judges love it, because voir dire examination is

VOICE for the DefenselOctober lQ8O

TEAGUE INTERVIEW (continued) a conviction, assessing the death penalty on an individual is really going to affect

usually very boring or tiring. One judge the system. In Houston, for example, said to me, just chit-chatting, "Boy, I in July four defendants were tried and like to try cases, but I don't like to mess four defendants got the death penalty. with all those motions." Yet, this morning you can pick up the

Pamela: What are your thoughts on Houston Post and see where there's the death penalty? been another capital murder.

Marvin: The question that I always Pamela: What do you think about raise when it comes to the death penalty people who s i t on death row for years is whether we can afford it. If the judge and years and do not know i f they are appoints a good lawyer to represent going to live or die? somebody in a death penalty case, it's Marvin: We run into the problem of going to take about six weeks to dispose appeals. We are talking about five or six of that case. I think any ~ ~ w ~ e r will years. We know there has not been an tell you that his fee should be in the execution in Texas since 1964, 16 years, neighborhood of $25.000. Yet. what although I'm not sure we're not going happens in many instances is that judges to see some executions in the future. In appoint lawyers based on economics. f968, when Witherspoon was decided, They know if they appoint a Richard we had literally hundreds of people on Haynes, he will want a lot of money. death row whose sentences were com- which is going to cost the State of Texas muted and then in 1972, hen F~~~~~ or the County; whereas. if they appoint was decided, the same thing happened. some nim, young lawyer fresh Out of law Literally hundreds of people had their school, You can give him a couple of sentences commuted. Interestingly, a hundred dollars. He or she may not do a rather large number of the people in

good fob, but he's going to be Texas who were then under the death happy. He's not soins to screw UP the sentence are now out on parole and doing system. He's going to have the jury in real about two days and be through with the ~~t I think we are seeing another trial at the end of the week. I don't pyramid in the death row cases. We have think that's what it's all about. But back hundreds of people on death row. 1trs to my thoughts. We've lost the use of going to get down to the nitty-gritty, the courtroom for six weeks, because and some appellate is going to de. that's all that one judge can do for six tide if these people live or die. I think weeks and we've got literally hundreds there's a very good likelihood that we of cases to be tried. I don't think setting are qoinq to see some executions. ~h~

having second thoughts about whether I wanted to spend the next 40 or 50 years trying to sell vacuum cleaners in the summer. I was terrible at it; I never sold a single vacuum cleaner. I went t o Washington, D.C., to kill some time, and it seemed to me that everybody who was anybody was a lawyer. I was about to lose my GI Bill of Rights if I didn't return to school, so I dropped in one day at the University of Houston Law School and signed up. I must confess I was not the little kid who sat on the courthouse steps waiting to grow up and be a lawyer.

Pamela: Do you have any words of advice for aspiring young lawyers, or aspiring old lawyers, for that matter?

Marvin: We have such a large legal profession today that I wonder how we are going to take care of the demands of those lawyers. In Harris County, often there are more lawyers in the courtroom seeking court appointments than there are defendants. We also have a problem In criminal law, unlike civil law, of lawyers trying cases without any training in trial work. A lawyer, fresh out of law school, can be appointed to defend someone, and he will usually be opposed by a more experienced lawyer. Usually. the young lawyer will get his or her lunch eaten . . . along with the client. I f there's one complaint that people convicted of a crime have about the system, it's the ineffectiveness of their lawyer during their trial. Unfortunately,

PROFESSIONAL BONDSMEN OF TEXAS.

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For a name of a member in your area, or t o report bail bond grievance, call

GERALD P. MONKS. President

4189 Beflaire, No. 203 Houston, Texas 77025

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- - Texas law right now is screwed up. The Supreme Court handed down Adarns; the Fifth Circuit handed down Jurek and Burns; and there's another one, Sfnith, pending in the Supreme Court. Unfortunately, the C.C.A. did not do a very good job when Jurek was decided.

Pamela: Marvin, did you always want to practice criminal defense law or did you just get tired of teaching school?

Marvin: I was drafted in 1954 after I graduated from Southwest Texas and spent two years in Germany. The Korean War had just ended. Although I didn't see any action, I get to call myself a Korean War veteran. I was stationed near Karlsruhe, the site of Germany's Supreme Court, but I never went there. I had no interest in the law at that time. When I returned, I received a master's degree and taught school for a year in Needville. I quickly discovered that one of the problems with the teaching profession is that it's seasonal work. I was

many of them are right. The question is whether we are willing

to spend the time and money to correct the problem. There is a system in Hous- ton where a person will be in court within 48 hours after arrest. I f the person is in jail, many judges will appoint a lawyer and the case will be disposed of right on the spot. The lawyer knows, or is told, that if he disposes of the case after fifteen minutes discussion with the client, he will get the huge sum of $150. On the other hand, if the case is not disposed of, then the lawyer will get only $75 for that day. I seriously question the validity of many of those pleas. However, the judge and the prosecutor appear to be gambling that years down the road, we may have a problem with this conviction, but that it's better to get rid of 2,000 cases than to worry about this one.

Pamela: It would be nice if we could give justice first priority without any

(Continu~d on p. 4 11

October 1Q80NOICE for the Defense

TEXAS LAW ON DEFENDANT'S MOTION TO DISCLOSE INFORMANT'S IDENTITY AND LOCATIO

Joe Connors is a 1973 graduate of the University of Texas Law School. He is i n solo practice in McAllen, Texas.

The seminal cases in this area are Roviaro v. United States, 353 US. 53.77 S.Ct. 623, 1 L.Ed. 2d 639 (1957) and James v. State, 493 SW2d 201 (Tex.Crim. App. 1973). In Texas. the State need not disclose the identity or location of the confidential informant, unless there is evidence, not merely conjecture or specula- tion, Gaffney v. State, 575 SW2d 537, 542 (Tex.Crim.App. 1978). that the informant: (1) participated in the offense; (2) was present at the time of the offense or arrest; or (3) was a material witness to the transaction or as to whether the defendant knowingly committed the act charged. Barber v. State, 51 1 SW2d 937, 939 [Tex.Crim.App. 1974). I f there is such evidence the State must disclose the informant's name or face the dismissal of the charges against the defendant.

For failure to comply with this disclosure rule. the following Texas cases have been reversed: James v. State, 493 SW2d 201 (Tex.Crim.App. 1973); Stein v. State, 548 SW2d 61 (Tex.Crim. App. 1977); Ex Pane Turner, 545 SW2d 470 (Tex.Crim.App. 1977); Andrew v. State,. 558 SW2d 876 (Tex.Crim.App. 1977); Wilder v. State, 560 SW2d 676 fTex.Crim.App. 1978); Bernard v. State, 566 SW2d 575 (Tex.Crim.App. 1978). See also Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed. 2d 887 (1964); McCray v. Illinois, 386 US. 300, 87 S.Ct. 1056, 18 L.M. 2d 62 (1967). Most officers are aware of this problem and will not have the informant present at the negotiations for or the delivery or the possession. See Cartnouche v. State, 540 SW2d 701 (Tex.Crim.App. 1976).

In Kenner v. State. 589 SW2d 403, 408 (Tex.Crim.App. 1979). the court ruled that the accused was not entitled to have the identity of the informant disclosed to him. There a reliable informant employed by Texas International Airlines informed D.E.A. agent Powell that the accused had just checked a large blue suitcase containing marihuana on

Texas International Airlines flight 994 bound from McAllen, Texas to Dallas, Texas. The court said that at al l times the informant was in McAllen, Hidalgo County, Texas. The arresting officer, and not the informant, was the only one able to testify that the accused was in possession of a suitcase contairiing approximately 31 pounds of marihuana in' Tarrant County, Texas, as alleged in the indictment. Thus, the informant was not a material witness on the issue of accused's cupable mental state.

In Brewer v. State, 572 SW2d 719, 721 -722 (Tex.Crim.App. 1978). the court held that the accused was not entitled to obtain disclosure of the informant's name. The court held that the informant's knowledge of defendant's possession of marihuana would be cumulative of the officer's. Thus. the informant was not a material witness to the guilt or innocence of the accused or as to whether the defendant knowingly committed the crime. This is so even though the confidential informant reported to the arresting officer that the defendant possessed marihuana and the officer proceeded to arrest the defendant in actual possession of marijuana.

There is no error in the trial court's denying the defense Motion to Disclose Informer's Identity when the defendant or his counsel already knew the informer. Lopez v. State, 574 SW2d 563, 565 (Tex.Crim.App. 1978). Once the State fully discloses the informer's ~dentity and any knowledge of his whereabouts, its only other duty is to issue process and exercise due diligence in a good faith attempt to secure service of process. Varela v. State, 561 SW2d 186, 788 (Tex.Crim.App. 1978).

Joseph A. Connors 111 McAllen

In search warrant cases, the information received from the undisclosed informant and relied upon in part by the officers to establish probable cause for the issuance of the warrant often only provides the reason for the officer's presence at the accused's premises. It does not cause the accused's arrest when the officers, w~thout any search of the accused's person or premises while legally on the premises by virtue of the search warrant, observe a felony when they see the narcotic in plain view. Bos/ey v. State, 414 SW2d 468 (Tex.Crim.App. 1967), or smell the contraband. Article 14.01, T.C.C.P.

James v. State, 493 SW2d 201 (Tex. Crim.App. 1973) i s the leading Texas case where the court required disclosure, reversing and remanding the case. There like in Roviaro v. United States, supra, the informant was: (1) present with the accused at the occurrence of the alleged crime; (2) a material witness to the transaction; and (3) a material witness as to whether or not the accused knowingly committed the crime. In James, the court found that Roviaro was dispositive, saying:

In the case at bar, as in Roviaro, supra, the informant helped set up the criminal occurrence and played a prominent part in it. The informant told Hunter where they were driving to and who they would meet. When they met. appellant greeted both the informer and Agent Hunter. He created an atmosphere of confidence during critical moments and he wouldhave been able to testify directly about the very transaction constituting the crime.

We conclude, as the court did in Roviaro,supra, that:

Petitioner's opportunity t o cross- examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction.


I TCDLA LEGISLATIVE PACKAGE continued

(b) The notice required by Subsection (a) of this section is sufficient if:

(1) it states: (A) the date, hour, and place of the

hearing; (B) that the bond is to be reconsidered

at the hearing; and (C) the cause for reconsideration of

the bond; and (2) the notice is delivered by: (A) personal service on the defendant

or his attorney a t least seven days before the hearing date; or

(B) mail to either the defendant or his attorney deposited in the mail at least seven days before the hearing date.

(0) I f the notice is mailed, the defendant has no attorney. and the bond shows the defendant's address, the notice shall be addressed to the defendant at the address shown on his bond. I f the defendant has no attorney and the bond does not show his address, the notice may be addressed to one of the sureties on his bond. If the envelope containing the notice is properly addressed, stamped, and mailed, the state is not required to show that the notice was received.

(d) The notice and hearing requirements of Subsection (a) of this section do not apply if, after the defendant has given bail:

(1) the defendant i s charged with an offense other than the offense for which the bail was granted; or

(2) the defendant is indicted or charged by information as a repeat or habitual offender under Section 12.42 or 12.43, Penal Code.

SECTION 3. This Act takes effect September 1,1981.

SECTION 4. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutionai rule requiring bills to be read on three several days in each house be suspended, and this ruie is hereby suspended.

A BILL TO BE ENTITLED AN ACT

relating to a defense to the offense of compounding.

BE IT ENACTED BY THE LEGISLA- TURE OF THE STATE OF TEXAS:

SECTION 1. Section 38.06, Penal Code, is amended to read as follows:

complaining witness commits an offense Criminal Procedure, 1965, is amended to if, after criminal proceedings have been read as follows: instituted, he solicits, accepts. or agrees Art. 24.01. ISSUANCE OF SUBPOE- to accept any benefit in Consideration of NAS. (a) A subpoena may summon one abstaining from, discontinuing, or delay- or more persons to appear: ing the prosecution of another for an (1) before a court to testify in a offense. criminal action at a specified term of the

(b) It is a defense to prosecution court or on a specified day; or under this section that the benefit re- (2) on a specified day: ceived was: (A) before an examining court;

(1) reasonable restitution for dam- (B) at a coroner's inquest; ages suffered by the complaining witness (C) before a grand jury; asa result of the offense; and (Dl a t a habeas corpus hearing; or

(2) the result of an agreement (El in any other proceeding in which negotiated with the assistance or acquies- the person's testimony may be required cence of an attorney for the state who in accordance with this code. represented the state in the case. (b) The person named in the subpoena

(c) fWj An offense under this section to summon the Person whose appear- i s a Class A misdemeanor. ance is sought must be:

SECTION 2. This Act takes effect a peace

September 1,1981. (2) at least 18 years old and not a

SECTION 3. The importance of this Party to the proceeding for which the a p

legislation and the crowded condition of is sought.

the calendars in both houses create an (c) A person who is not a peace of-

and an imperative public ficer may not be com~eiled to accept the

necessity that the constitutional rule re- duty execute a but if he

quiring bills to be read on three several agrees in writing to accept that duty and

days in each house be suspended, and this "egiects Or refuses to serve Or return the

rule is hereby suspended. subpoena, he may be punished in accordance with Article 2.16 of this code.

A BILLTO BE ENTITLED (dl A court or clerk issuing a subpoena AN ACT shall sign the subpoena and indicate on

relating to motions for continuance in it the date it was issued, but the subpoena criminal cases. need not be under seal.

BE IT ENACTED BY THE LEGISLA- p. . . . TURE OF THE STATE OF TEXAS: ,, ,, ,, . . .

SECTION 1. Article 29.Q8, Code of Criminal Procedure, 1965, i s amended to read as follows:

Art. 29.08. MOTION SWORN TO. All 7 motions for continuance . . . . ' h . 1 must be sworn to by . . a person having personal knowledge of the facts relied on for the continuance ~ ~ 1 .

SECTION 2. This Act takes effect September 1,1981.

SECTION 3. The importance of this . .

. . legislation and the crowded condition of the calendars in both houses create

. .

an emergency and an imperative public -1 necessity that the constitutional rule re- SECTION 2. This Act takes effect quiring bills to be read on three several September 1,1981. days in each house be suspended. and this SECTION 3. The importance of this rule is hereby susuended. ieqislation and the crowded condition of . .

the calendars in both houses create an A BILL TO BE ENTITLED

... emergency and an imperative public

criminal cases. days in each house be suspended, and this BE IT ENACTED BY THE LEGISLA- rule is hereby

TURE OF THE STATE OF TEXAS: 8 . .

Ootober 1980NOICE for the Defense

Criminal Lawyer Lester L. May Dies at 60

Reprinted from the Dallas Morning News.

Longtime Dallas criminal lawyer and former assistant U.S. attorney Lester L. May died Tuesday morning, [August 5, 1980). apparently of a heart attack.

May, 60, of Terrell, apparently suffered a heart attack Saturday while driving west on 1-20 near Mesquite. He died at Rutherford General Hospital in Mesquite.

May's car crossed both eastbound lanes and hit a parked trailer on the access road. A motorist followed May over two median strips and began resuscitation until help arrived.

Services were held at 11 :30 a.m. Thursday at Sparkman-Hdlcrest Funeral Chapel. 7405 W. Northwest H~ghway. Entombment was in Hillcrest Mausoleum.

Born in McKinney, Collin County, May received a bachelor's degree in business administration from Southern Methodist University in 1942 before serv- ing as a Navy lieutenant in World War II.

May graduated from SMU Law School in 1946 and joined the law firm of Clark, Coon, Holt and Fisher before becoming an assistant US. attorney in the Dallas office in 1950.

After three years as a federal prosecutor, May began a private law practice in Dallas. He was the senior partner of May and Herridge, a firm he founded with Kenneth Herridge eleven years ago.

He defended several colorful clients, including Dallas stripper Candy Barr on a 1958 marijuana possession charge. Ms.

Barr was convicted, spent four years of a 15-year prison term and was paroled before the discovery that illegal wire. tapping had been used to gather testimony in the case.

May also represented organized crime kingpin Joseph Civelio.

Known for presenting the defense in a booming voice, he convinced a trial judge in 1967 to declare a computer a witness, the first known case in US. court history.

He was a member of the Dallas Bar Association. American Bar Association, State Bar of Texas and was a charter member of the Texas Criminal Defense Lawyers Association.

He is survived by his wife; five daugh- ten, Leslee Mayes-Anyesworth, Frances Watson, Sylvia Norton. Lisa Lloyd and Jeanine Schilling; a son, Chester Lee May II; his mother, Mrs Chester Lee May, and nine grandchildren.

TEAGUE INTERVIEW from p. 36 other considerations, but it may not be possible.

Marvin: Pam, I think we've got to look in the future to see where our priorities lie. Are we going to spend our time prosecuting persons who have drinking problems, the kid who possesses small quantities of marijuana or drugs, the person who likes to go into dirty movie houses, the prostitute, the pimp, or just what? Or, are we going to spend our time prosecuting persons who commit criminal wrongs that could have been comm~tted against you or me as well as the complainant? I think we need more diversionary programs. Somewhere in the past we got sidetracked and started prosecuting and enacting criminal laws that revolve around moral judgments. If some

turkey wants to go into a dirty movie house near the courthouse and watch dirty movies, should we prosecute him or her? Interestingly, prosecutors of obscene movies are using a new scare tactic, saying that pornography is controlled by the Mafia. Everything is attributed to organized crime these days. In some quarters in Houston, the definition of organized criminal prostitution is one pimp and two whores.

We've simply got to decide what we are going to use our courtrooms for. I personally would prefer we use them for the prosecution of victim- rather than victimless-type crimes.

Back to your question as to what advice I might have for an aspiring young or old lawyer. I would suggest that he or she find an area of the law where there is a demand for legal services by

the public that nobody else wants to handle, work to become the best lawyer in that field, don't quit learning, and never forget you are a part of a great profession.

I do not know what tomorrow will bring. However, I hope and pray that as a judge on the C.C.A., I will always subscribe to my utopian definition of a "fair trial": It is when the defendant, the defense lawyer, the prosecutor, the trial judge, the jurors, the witnesses, the court personnel, and the public all leave the courtroom feeling and be- lieving they were fairly treated.

In conclusion, I want the public, the bench, and the Bar to know that my door will always be open and I will be happy to listen to both praise and criticism. See you at the swearing-in ceremonies.

Garland Wier's - TEXAS CRIMINAL TRIAL MANUAL - More than 3500 synopsized cases arranged by topic. Order your copy from the TCDLA office now. See next month's VOICE for more details.

.......... TCDLA members $35.00 . . . . . . . . . . . . . Nonmembers $40.00

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DIALOGUE from Daae 6 that Mr. Harper had received a telephone call from a Caucasian female from Savan- nah, Georgia, regarding the trial of this case. Specifically, the caller inquired as to the jury's impression of Mr. Gold stein's presentation and whether the pres ence of the thirteenth juror in the jury room had affected the jury's verdict.

It is likely that other similar contacts with jurors have been made.

No notice of intention to contact jurors has been received by this office. This office is unaware of any such notice being provided to the Court.

It is the undersigned's recollection that the Coyrt told the defense counsel that he was not going to allow them to in- terrogate the jurors as to the matter of the thirteenth juror, after the reading of the verdict.

Further, in light of the Court's own questioning of the jurors regarding the thirteenth juror, the jurors' unanimous answers that the presence of the alternate juror did not influence their verdict in any way, and several jurors' statements that they had not begun to deliberate a t the time the alternate juror was re- moved, the recent contacts with one or more jurors constitute "a vexatious or harassing investigation of . . . a juror."

The United States would remind the Court that Mr. Goldstein retained the services of Sam Weatherly, a private investigator from Savannah. Georgia. Some- one acting on behalf of one or more defendants caused Mrs. Virginia Wolking and at leas t one other member of the venire to be investigated to such an extent as to cause extreme annoyance.

During the trial of this case, the home of Patrick and Deborah Campbell, key Government witnesses, was burglarized on two occasions. The home of Phillip Robbins, another Government witness, was burglarized on one occasion.

It is clear that a person or persons acting on one Or more of the defendants' behalf have been violating state criminal laws. the Code of Professional Responsi- bility, and the direct order of the Court. All of the information of which the Government i s aware, and the apparent source of finances behind the defense effort, suggests that this i s Mr. Goldstein andlor persons acting at his direction. Accordingly the United States respect- fully requests:

1. That further contacts with members

of the trial jury by defendants, defendants' counsel, and any agents, employees, investigators, and persons acting on their behalf be prohibited by order of the Court; 2. That a hearing be held to determine the full nature and extent of contacts already made; and 3. That Mr. Goldstein be ordered to appear a t that hearing and to show cause why he should not be held in contempt.

SUPPLEMENT TO MOTION AND MEMORANDA

The United States has learned through conversation with James Jenkins, defendant Parker's cocounsel at trial, that at least some of the contacts with jurors referred to in the Government's previous motion were made by Mr. Jenkins' investigator, Sam Weatherly andlor his wife.

Mr. Jenkins said this was his firm's standard practice after trial and that the thrust of the telephone interviews was to determine the effectiveness of the attor- neys, weak and strong points in the case, etc. He said that some, but not all of the jurors had been asked about the presence of the thirteenth juror.

Mr. Jenkins said that he read the Rules of this Court, but not the Code of Profes- sional Resonsibility incorporated thereby, and that he was unaware of any im- propriety in the interviewing of jurors. He was, however, aware that at least one United States District Court in Georgia forbids any contact with jurors after trial.

Mr. Jenkins said he did not know whether any other defense counsel had contacted any jurors.

Mr. Jenkins called back and said that he had instructed Mr. Weatherly to dis- continue these interviews.

The United States would supplement i t s prior motion and request that Mr. Jenkins and Mr. Weatherly be required to appear and show cause why they should not be held in contempt of Court for violation of the provisions set out in the Government's prior motion. The United States would also request that inquiry be made of other defense counsel as to any contacts they may have had with jurors, post-trial.

Nickolas P. Geeker United States Attorney

Michael T. Simpson Assistant United States Attorney

Northern District of Florida Post Office Box 1308

Tallahassee, FL 32302 9041224-3186

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICTOF FLORIDA PANAMA ClTY DIVISION

THE UNITED STATES X OF AMERICA, X PANAMA Plaintiff. X CITY vs. X CRIMINAL WALTER ARTHER X NO. MCR PARKER, X 80-00207 Defendant X

REQUEST FOR AMENDMENT The United States requests leave to

amend its memoranda in support of Motion for Restraining Order and For Order to Show Cause of July 17, 1980. Specifically, the third paragraph on page 4 and the words, "state criminal laws" in the fourth paragraph on page 4 should be deleted.

The United States is not aware of any evidence which would indicate that Mr. Goldstein participated in or directed or was in any way responsible for the bur- glaries of witnesses' homes. Any sugges- tion to the contrary is grossly unfair to Mr. Goldstein.

The undersigned sincerely regrets any embarrassment or other discomfort which he has caused Mr. Goldstein by the im- plication that Mr. Goldstein was involved in the buralaries. "

Nickolas P. Geeker United States Attorney

Michael T. Simpson Assistant United States Attorney

Northern District of Florida Post Office 1308

Tallahassee, FL 32302 9401224-31 86

FINGERPRINTS, COURT TESTI- MONY. Fingerprint examiner with 28 years experience in large police department. Have testified in many State and Federal courts. Can answer any questions you have regarding fingerprints. Carl Day, 3722 Shady Hollow Lane, Dallas 75233. 2141337-2919,

October 19801VOICE for the Defense

IN THE BRIEF BANK

We solicit appellate briefs prepared by members of the Association which achieved success in getting convictions overturned by the Texas Court of Crimi- nal Appeals. Briefs received in the pre. ceding month will be synopsized in each issue of the VOICE (along with the author's name). Requested copies will be provided only to members of the Associa- tion, at a nominal charge.

Ex Parte Leone1 Gutierez Defendant's Petition for Writ of Habeus Corpus [with supplemental documents] , which was filed on March 7, 1980, and ruled on favorablv bv the Court of Criminal

case where the petitioner was indicted for aggravated kidnapping. At the guilt1 innocence stage of the trial, the jury was charged on the offenses of aggravated kidnapping, kidnapping and misdemeanor false imprisonment. The jury convicted him of the latter offense. However, at the punishment stage of the trial, the court authorized his punishment for felony false imprisonment.

In granting the petitioner's requested relief, the court ruled that the rationale of Wright v. State could not be extended to permit the charge on punishment to authorize punishment as a felon for a defendant convicted for a misdemeanor [Martin Underwood; Comstock, Tx; l5ppl.

Holcomb v. State TCOLA amicus filed Aoril. 1980 in the Texas Court of Crimi-

Fifth Amendment rights bars the state from indicting the defendant for having a forged check and requiring him in the indictment, to bring the check to court or suffer the consequences. The amicus also argues that this practice shifts the burden of proof t o the defendant to pro- duce evidence for the government. [Elizabeth v. Carlyle; Arch C. McColl; IOppl.

Ford v State, The Attorney for the Appellant achieved a reversal (per curiam) of a forgery conviction. He argued, initial- ly, that the indictment failed to properly charge an offense because it did not elect one of the three theories of forgery (a Minnix argument). Second, he argued that this was a fundamental error which did not need to be raised for the first time at the trial. [Frank Robin, Jr., . .

Appeals'on july 16, 1980, deals with a nal Appeals argues that a defendant's The Woodlands;S PP].

1 Great rnnments in cnc~rtrnnm hktnrv A: If a subiect had a .9% blood al-

I -~ -. . . . .. .. . .. .. . .. -. .. - . ,

should be shared. The VOlCEwill publish cohol, he'd be dead.

excerpts from courtroom transcri~ts THE COURT: You're going to give a 0 : OK, Maybe we're using different lwhose outrageousness demand presen'ta. f ~ c k in this Court, YOU hear me? You phraseology. Point nine percent.

tion. Submissions should be sent to bug off. A: Point nine percent is a fatal level Pamela Lancaster, Managing Editor, of intoxication. VOICE for the Defense, 314 W. 11 th, IDENTITY CRISIS 0: OK. Let me draw i t on the board.

Suite 21 1, Austin. TX 78701. reprinted from rhe Maybe I'm just not seeing it right. If it

WITNESS: Well. I was her husband n ~ o x e the r,,,,t we'll mlt it nn n-5 in F."""" ... " ., ..- .. r-- . - - - .~~ before, but now I've been dissolutioned. the left.hand corner, zero and point ~~ ~

I believe. zero nine; what is that called? ' WAR OF WORDS I'M A LAWYER, NOT A A: That's 0.09%.

reprinted from the Forum MATHEMATICIAN Q: I'm sorry. It's a terminology prob- THE COURT: Raise your voice a

little, please. submittedby Joe Connors lem that I've got'

McAllen, Texas THE WITNESS: I t is always soft. I Q: OK, Let,s see; on the green check.

am a t peace, submission to the world. COOLING IT list, in step number 6, where it reads on reprinted from the Forum THE 'OURT: We are all in peace. the checklist, "Set the blood alcohol Q: ~ , d in fact, part of that decompo. Try to not have so much peace; speak

a little louder. I have to hear. pointer arrow on the start line. .00 line. ,ition process would be the production of for the Simulator test"-let's just talk alcohol through the hood itself, through about the start line instructions. If the the sugar content? officer giving the test-in this case, it A: ~ h ~ ~ ~ , ~ that possibility, yes,

ELEGANT REPARTEE would be Stadler-had failed to set it Q: it has been proven scientifical- reprintedfrom the Forum at 00 and had set i t at, say, .07, at the ly that refrigeration retards decomposi.

THE DEFENDANT: Can I ask her beginning of his test, and then he ran ton of an orgasm, some questions? the test and the man had .9%-the suspect

THE COURT: Just one moment. had .9% blood alcohol by weight in his THE DEFENDANT: This bitch don't blood, his reading would have been .l6; HOW QUIET WAS IT?

know me. She don't know who I am. is that correct? reprinted from the Forum THE COURT: Just one minute, sir. A: The-if he had .9% in his blood, WITNESS: He said we was making

Please, when we direct our attention to he would have been- noise, you know. Because, see, where

human beings, we use different phrase- Q: Hold on. He actually had .99, Willie lived at there was a hallway; and ology, okay? but Stadler put the machine wrong, you go through that hallway. You can

THE DEFENDANT: I don't give a when he started, and he put i t at .07 hear a fly fart 20 miles away. you know.

fuck. This is my fucking life. when he started. It's an echoing-type place, you know.

VOICE forthe DefenselOctober 1980

TCDLASUSTAINING MEMBERS

Sustainmg members make a substantial f~nancial commitment to the arganizat~on. not only out of concern for TCOLA'r fiscal rtabtllty, but out of dedication to the work and goals o f TCOLA.

to omvide a state oraan~zatian remesentino crlmmal defenre lawerr: to protect and insure those individual rishts

lawyers: to improvc the skills of criminal defense lawyers; to omprove the correctional system and seek effective re- habilitation of those convicted of crimes; to reek constant improvement in the administration of crlminal justice

JOSEPH ABRAHAM. JR.. E l Paso C. ANTHONY FRILOUX, JR., Houston TOM MILLS, JR.,Dailas WILLIAM F. ALEXANDER, Dallas JESSE GAMEZ.San Antonio GEORGE R. MILNER,Daliar TIM ALTARAS, Cl#&urne MICHAEL GIBSON,Oailas ROY 0. MINTON,Austin RICHARD ALAN ANDERSON. Dallas GEORGE E. GILKERSON. Lubbock JAMES A. MORRIS,Orange CECIL W. BAIN. San Antonio JAMES R. GILLESPIE,San Antonio JAMES S. MOSS, Dallas E. PAUL BANNER.Gmenville BILL M. GLASPY Mmwrte M. GABRIEL NAHAS, JR.,Houston JACK W. BEECH, Fort wonh GERALD H. GOLDSTEIN, San Antonio HARRY A. NASS,JR.,J$nAnronio DAVID R. BIRES, Houston OSCAR C. GONZALEZ, San Antonio WILLIAM A. ORR, JR., Bay City KENNETH BLASSINGAME, Dallas JOE B. GOODWIN, Beaumont JOHN J.C. O'SHEA, Lubbock JIM BOBO. O d m RONALD L. GORANSON, Dallas BILL PEMBERTON, Greeoville JIM OEWITT BOWMER ~ e m l s J.R. "BILLY" HALL. Littlefield VINCENT PERlNl Dallas ~

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RICHARD "RACEHORSE" HAYNES, Homtnn ~~~

DENNIS E. HENORIX. Edinburg ROLAND H. HILL.JR., FOR Wonlr WELDON HOLCOMB, Tyler CLIFTON L. HOLMES, Kilgore

,io REX HOUSTON. Henderson FRANK JACKSON. Dal1.w JAMES R. JENKINS. II. Wax~n,xhie

MARCH. RICHMAN, Dallas CHARLES L. RITTENBERRY. Amarillo JAMES J. ROBERTSON, Richardson SAM SALEH, Lamesa CHARLES SCARBOROUGH.Abilene CLETUS C. SCHENK, Wichita Falls THOMAS G. SHARPE. JR., Bmwnsvills TRAVIS D.SHELTON, Lubbock FLOYD A. SHUMPERT, Kaufman C. BRUCE STRATTON. Libenv

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Christi ~ ~~

JERALD 0. CROW, Conroc MALCOLM OADE, Uallar SAM DAUGHERTY. T)allar BUDDY M. DICKEN, Sherman MILTON E. DOUGLASS, JR., Wichita

Falls- LOUIS OUGAS. JR., Orange . M.P. DUNCAN. Ill Decatur

BOB KUHN.Austin FRED TIME. Dallas ARTHUR L: LAPHAM. ~ ic tor ia DOUGLAS TINKER, ~orpr ,s ~ l r r i s r i JOHN R. LEE, Kermit ABEL TOSCANO, JR.. Harlingm JACK PAUL LEON.%" Antonio NED WADE, JR.. llo~,r,ston GEORGE F. LUQUETTE, Houston JAMES V. WEDDING. Marshall CHARLES M. MCDONALO. Warn STANLEY I. WEINBERG. Dallas ~ -

JOHN B. MCOONALO. ~ah;line GORDON R. WELLBORN, ~ l c ~ ~ l d ~ ~ ~ ~ , ELMEH MCVEY, Brym JOEL W. WESTBROOK, Sn Antonio WILLIAM H. MAGNUSSEN. Fon Worth DON R. WlLSON.ABilmc EDWARD MALLETT. Houston ROY WINGATE. Orane

WILLIAM V. DUNNAM. JR., WJCO FRANK MALONEY, Austin RODGER M. ZIMMER'MAN.A~,SI~,, C. DAVID EVANS. Suo Antonio PAT MALONEY. Sari Antonio RONALD DUANE ZIPP, E,linburg FRED R. FILES, JR., Tyler LESTER L. MAY, Ddllas

Return to TCDLA. 314 W. 11 th, Sum 21 1. Austin. TX 78701.

Pleaw enter me as a sustaining member of TCOLA. I have paid $ in dues to TCDLA within the past six monthsand enclose a check for an additional $ to total $200. Enclosed is a check for $200 to cover my upcoming dues renewal and place me in the sustaining member categow.

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