Transcription
THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATIONVOLUME 8, NUMBER 2AUGUST 1978
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ARTICLEJail Time: An Important Conat Sentencing andPlea NegotiationsRobert Udasl errand K e l tAr deison. . . . . . . . . . . . . .27sidetationOFFICERSPresidentGeorge LuquetteEditor's Corner. . . . . . . . . . . . . . .4President's Report. . . . . . . . . . . . .5Minutes of Board Meetings:May 20,1978. . . . . . . . . . . . .2YJune 29, 1978. . . . . . . . . . . . .31Michael GibsonC. W. (Robbin) PearcyDollosSon MaromGrant HardewayLarry SauerHotmomHoustonOliver Heard, Jr.WiUis TaylorLubbockVincent PeriniSo,: AntonioJan HemphillMichael ThomasDoNasFirst Vice-PrmidentDollosFort WorthClifton HolmesR. L.WhiteheadHany NassXilgoreLong iewSon A n t o n hSecond Vice-PresidentHoustonRobert JonesL. J. (Boots) KmegerAustinSecretary-IZeosurerLibertyEdward MallettLMn JaworskiCharles McDonaldHou tonHoustonwncoAsrt. Secretory-lteosurerPat PriestLouie WdchSan AntonioHoustonGerald GoldsteinCharles RittenberryMoms JaffeySon AntonioAmon'lloDallasHoustonereside,, t-ElectDIRECTORSJack BeechFort WorthDavid BiresHoustonClifford BrownLubbockRussell BusbyAmatilloCharles ButtsSon AntonioNEWSREGULAR FEATURESLetter from Amerlcan Clvil Libert esFoundation of Texas . . . . . . . . .4More on Speedy Trial Acts-Letterfrom Joseph A. Connors 111 . . . .6Attorney Generdi's Opimons . . . . . 2 9Open Records Decisions-AttorneyGeneral. . . . . . . . . . . . . . . . .30Status of Federal Code Uncertain. . 3 0Executive Appointments. . . . . . . . 3 1ABA Survey Unsetthng. . . . . . . . . 3 1Clif HolmesMunaging EditorMarvin 0. TeagneEdiror, "Significant Decisions"Stuart KinardPRESJDENT'SADVISORY COMMlTTEERobert SalinasRoy ButlerMercedesAustin'Illomas SharpeNorman BrinkerBrownsvilleDollosRichard ThorntonGalvestonPAST PRESIDENTSDoug Tinkercorpt,s CllriStfPrank MaloneyStanley TopekAustin. 1971-1972HoustonAnthony P ilouxPeter Torres, Jr.Son AntonioStanley WeinbergHouston, 1972-1973Phil BurleaonDallas, 1973-1974Raymond CaballeroE l PasoAntonio CanhlDollosGeorge GilkersonFrancis WilliamsLubbock, 1974-1975HoustonDavid EvansSon AntonioRodger ZimmemanSon Antonio, 1975-1976David CarlockAustinWeldon HolcombDollasRonald ZippTyier, 1976.1977Wagoner CanEdhburgAustinm e n CzieierASSOCIATE DIRECTORSSox AntonioAnthony ConstantKeith AlanizCorpua CknStiSon AntonioEugene DeBuUetRichard AndersonFort IVonhDallasLouis DugasJames BoboOrangeOdemW. V. DunnamCharles BurtonWacoAustinP. R. (Buck) Files, Jr.Richard HamsonTylerDnllosKerry FitzGeraldEmmett CalvinDallas, 1977.1978VOICE for the Defenseis publiohed monthly by theTexas Criminal Defense LawyersAssociation, 314 West 11th Street,Suite 211, Austin, Texas 78701.Phone (512)478-2514.All articles and other editorialcontributions should be addressedto the Editor, Clif Holmes,Box 1073, Kilgore, Texas 75662.Business correspondence, advertiang, inquiries and contractsDick Dranrgoole, ARTFORMSAGENCY, Box 2242, Austin,Texas 78768, (512) 451-5588.Annual subscription rate formembers of the assoetation is 5, which is included in dues.Nonmember subscription- 10per year; smgle copy- 2.50.Second elau postage paid atAustin, Texas.r 1976 TEXAS CRIMINALDEFENSE LAWYERSASSOCIATION.Bennie HouseHoz stonTexasCriminal Defense LawyersAssociationAUGUST 1978
EditoR CornerSorry 'bout July. It seems, in spite ofall we do, that perennial Pest, procrastination, continues t o plague production.We hope t o compensate for our disposition t o dawdle by making 1978.1979 abanner year for TCDLA and the Voice.American Civd LibertiesFoundation of Texas, Iuc.600 West 7thAustin, Texas 78701May 4,1978Texas Criminal DefenseLawyers Association314 West l l th StreetAustin, Texas 78701To 'Jhom It May Concern:The enclosed order holding Art. 42.01(a)(f) of the Texas Penal Code unconstitutional was entered by Bellcounty Courtat Law Judge Bill Bachus. While his holding has n o preoedential authority beyondthe jurisdictional confines of Bell County,Texas, the decision merits publicizing.Disorderly conduct is an offense whichseldom goes beyond the lustice courtlevel. When it does make it to the countycourt level, au adverse ruling often imposes a fine which cuts off appeal t o theTexas Court of Criminal Appeals. Thus,, S.Ct. 1639 (1977)as in Acker v. T e a s97reversing a conviction under 42.01(a)(l),(41, appeal then lies only t o the U. S. Supreme Court.Given the importance of the First Amend-T o kick it off, we'd like to urge you toget involved with us. TCDLA can beamong the most influential specialtybars in Texas, if its membership willget concerned about what's going on inthe Bar, and make itself heard where itcounts. I've spoken on several occasionsin this column about the crisis the StateBar of Texas is facing. Each of us hasread, almost daily, of the attacks thathave been launched against our integratedbar system, and of the pending "SunsetCommission" determination. Brethren,this is serious business! No matter whichside of the issue you find yourself on,much serious consideration must be givento which direction the Bar mnst-shouldcau-wUl take from here. I'm afraid thatanother "perennial pest" afflicts ourprofession, and one much more danger-ous than procrastination-apathy.Wemust get concerned about what's happening in the State Bar, because what happensthere not only will determine the direotion and viability of TCDLA and thecriminal practice, but will largely determine the very content and direction ofeach of our professional lives. I don'tintend to be a-doomsday prophet-that%ballyhoo. But I do want t o impart thecritical nature of what's now goingon in Austin. We can't depend anylonger on the old standby bulwark of alawyer-dominated legislature t o handleour problems for us. We need to open aforum t o discuss these issues, to formulate positions, and to propose solutions.I'd like t o start it with the Voice. Pleasecomment-we'll put your views before alarge segment of the bar.ment concerns and the chllling effect ofthe enforcement of 42.01 (a)(5) againstpure speech (Messrs. Dickinson and Enander were sidewalk Baptist preachers),the enforcement of the statute raisedserious doubts as to the viability of a"good faith immunity" defense by a prosecutor or policeman who enforces thestatute against pure speech.The main authority for Judge Bachus'ruling is Uitiversity Committee to End theWar in Vier Nam v. Gunn, 289 F.Supp.469 (W.D. Tex. 1968) three judge court;appeal dismissed for want of jurisdiction,399 U.S. 383 (1970), holding the predecessor t o Art. 42.01 (Art. 474, formerPenal Code) unconstitutional.STATE OF TEXAS ) IN THE COUNTYV.)COURTJERALD ENANDER)1ANDSTATE OF TEXAS ) OF BELL COUNTY, TEXASv.1OTIS DICKINSON )ORDEROn the 16th day of February, 1978,came on to be considered the motion ofDefendants to quash the complaint. TheCourt having heard the arguments ofcounsel, it is the opinion of the Courtthat Article 42.01 (a)(5) of the TexasPenal Code is unconstitutional as i t applies t o speech. it is the opinion of theCourt that the term "unreasonable" isoverbroad and so vague that it falls t oplace the citizen on notice as t o what conduct is prohibited as t o free speech.It is therefore ORDERED that thecomplaints in this cause be and herebyare quashed.DONE AND ENTERED this the 13day of April, 1978.I would appreciate your consideringgwingthis decision the notice it merits. Pleasefeel free to contact me if you have anyquestions.Very truly yours,John BuckleyStaff CounselENCLOSURENo. 1171-KNo. 1172-KW. E. Baehus, Jr.Judge PresidingAugust 1978pOICE for the Defense
President5 ReportOn June 29, 1978, at our AnnualMeeting in Fort Worth, Texas, I becamethe eighth (8th) President of the TexasCriminal Defense Lawyers Association. Iaccepted this presidency with certainthoughts in mind. The first objective Ihave dedicated myself and my administration to is the increase in membership.This has two elements-one is to retrieveour lost brethren and one is to acquirenew members. So in the very nearfuture if a board member asks you tojoin in a membership drive, please re"yes." Your hdp isbyneeded. MembersOtherpartsthe state willtheir timeand effort to solicit new members as wellas old members in your town if youwill simply give them a helping hand. SoI ask you to net the suirit., become amember of the team and watch ourorganization grow.Secondly, we need to put moreemphasis on our budget. Not only dowe need t o be fiscally sound, but wemust spend more money toward servicesfor our membership. Soon you willreceive a questionnaire concerning theservices that TCDLA provides for you.We need your input so we can moreadequately serve you this coming year.Y o u ideas and suggestions are veryimportant t o us. We want to know howwe can better serve our members in amanner that is inspirational, educationaland rewarding.Thirdly, we need to become moreforceful in the area of political interests.Not o,,,y do we have an interest becauseof our profession hut the oriminaland our organization are thelast obstruction in the road our governments have a member, for the first thein thetaken t o render null and void those ten history af Texas, alawyercommandments of the Constitution, wodd not stand alone, I amdedOfmore cOmmonly known as theicated to that premise. For truly todayRights.as possibly never before in the history ofI can truly state that with your help our profession, lawyers must standall things are possible. I believe that we together or surely they will feu.can do just about anything we set ourminds to. When this organization wasGeorge h q e t t ein its infancy, we told criminal lawyersacross this state that this organizationwas dedicated to its members and that asTCDLAAPPROACHES TO JURY SELECTION: SCIENCE & LUCKMATERIALS AND TAPES AVAILABLETCDLA held a oneday intensive course in jury seiection on the 19th ofMay, 1978, in Dallas. The course materials are now available for 25.00from the Association office.Tapes of these lectures are also available* for all the lectures or for anindividual lecture. If you want the materials or are interested in the tapes,contact the Association office. A list of speakers and topics follow foryour information:Ray Walker, DaUas: Jury Selection Through Handwriting AnalysisFred Time, D a b : Jury Voir Dire, Body LofignogeRichard "Racehorse" Haynes, Houston: Voir DireDr. Robert Gordon, Dallas: A Psychological Strategy for Jury SelectionDoug Tinker, Corpus Christi: Jury Selection in Capital Murder CasesStuart Kinard, Houston: Individual & Croup Dyno nicsin Jury SelecfiotrWarren Burnett, Odessa: Voir Dire*Exact costs for set or individual tapes were not available at time of publication.VOICE for the Defense/Azfg ist1978
.MORE ON SPEEDYTRIAL ACTSThe accompanying letter and motionform were submitted by Joe Canners ofMcAllen. I t adds yet another practiceaid to our growing files on the SpeedyTrial Act. We appreciate Joe's contribu.tion and commend the suggestion t o youruse.THE STATE OF TEXAS1VS.1OF1COUNTY, TEXASJOSEPH A. CONNORS 111Attorney and Counselor nt LawIN THE -DISTRICTCOURTMOTION TO SET ASIDE CASEP. 0. Box4136425 W. NolanaMcAllen, Texas 78501rO THE HONORABLE JUDGE OF SAID COURTRe: Statutory Speedy TrialRight of the AccusedNOW COMES the accused defendant in the above numbered and styled cause inlerson and by and through his attorney of record and states the following:I.Hon. Clif HolmesAttorney at LawP. 0. Box 1073Kilgore, Texas 75662The Accused hereby respectfully requests the Court t o set aside the indictme lt/nformntion/complainr herein because the State was not ready for trial o n the nleritslereiu within the statutory time limits prescribed by Article 32A.02 of the Texas;ode of Criminal Procedure.Dear Mr. Holmes:11.As it may be of interest t o the membership of the TCDLA, enclosed is a copyt o you and the Voice for the Defense of aMotion to Set Aside Case.I call to your attention the potentialmalpractice liabiiity of any attorney whowaives the rights afforded his client bythe Speedy Trial Act. Section 3 ofArticle 32.4.02 of the Texas Code ofCriminal Procedure reads:"The failure of a defendant tomove for discharge under theprovisions of this article priort o trial or the entry of a pleaof guilty constitutes a waiver ofthe rights accorded by this article."Since a discharge under the authorityof Articles 28.061 and 32A.02 of theTexas Code of Criminal Procedure is a bart o any further prosecution for the offensedischarged or for any other offensearising out of the same transaction,Art. 28.061, T.C.C.P., any attorney whoPermits his client t o be convicted afterthe statutory time limits have passedcertainly is not serving his client t o thebest of his ability, nor is he serving hismalpractice carrier well.I hope the above thoughts and theenclosed motion may be of help t o othermembers of the association in the future.Sincerely,On or about,197-,the Accused was arrested.111.-197,the Accused was first detained inOn or aboutwstody to answer for the same offense charged herein or another offense which arose u oft the same transaction.IV.197,the Accused was released on bail orOn or about ersonalbond tq answer for the same offense charged herein or another offense, whichrose out of the same transaction.WHEREFORE, PREMISES CONSIDERED, the accused Defendant hereby moveshe Court to discharge him/her and t o set the charging instrument herein aside underbe authority of the pronsions of Article 32A.02 and Article 28.061 of the Texas!ode of Criminal Procedure, which became effective on July 1,1978.RESPECTFULLY SUBMITTED,Joseph A. Connors I11P. 0. Box 4136McAllen, Texas 78501ATTORNEY FOR THE ACCUSEDJoseph A. Connors 111August 1978/VOICE for the Defense
B YO&RECENT IMPORTANT DECISIONSFROM THE COURT OF CRIMINALM a i f0.l Teague: EditorJULY 1978VOLUME I V , N O . 1 1J. VOLLERS WRITES AN INTERESTING OPINION FOR PANEL 1i3, IST QUARTER, IN KNIGHTEN, 857,237,7/12/78, AND REVERSES ORDER OF REVOCATION OF PROBATION FOR INSUFFICIENCY OF THE EVIDENCE.Reversed.(Lubbock).Here, S t a t e alleged t h a t D v i o l a t e d h i s probation by i n t e n t i o n a l l y and knowinglyoperating a motor v e h i c l e without t h e e f f e c t i v e consent of t h e owner. Evidenceshowed t h a t D rented a car from Dollar Rent a Car Systems, whereby t h e agreementprovided t h a t he was t o r e t u r n i t by 6:00 O'clock P a . on t h e same day. Car found10 days t o 2 weeks l a t e r . Rental agent t e s t i f i e d t h a t D "did not have permissiont o use i t a f t e r 6 P.M. on t h e evening i n question."Held,h he evidence is i n s u f f i c i e n t t o show t h a t D operated t h e automobile i n questionwithout t h e permission of t h e owner." "The record simply w i l l n o t support t h econclusion t h a t D operated t h e automobile i n question a f t e r 6 p.m. on t h e d a t ei n question and t h e r e f o r e t h e t r i a l judge abused h i s d i s c r e t i o n i n revokingD ' s probation."Thus, even though t h e D did not r e t u r n t h e c a r , when he was supposed t o ,t h e r e was no evidence t o show t h a t he operated t h e motor vehicle a f t e r 6 p.m.on t h e day i n question.COMMENT:I f J. V o l l e r s continues t o w r i t e opinions l i k e t h i s between now and t h ef i r s t of t h e year, J. Clinton w i l l have h i s work c u t out f o r him t o maint a i n t h e pace.J. T.DAVIS, WRITING FOR PANEL #3, 2ND QUARTER, I N BROWN, 1/58, 542, 7/12/78, I N REVERSINGORDER OF REVOCATION, AGAIN POINTS OUT THAT "THE CRIMINAL ATTEMPT PROVISIONS SET FORTHI N V. T.C.A. PENAL CODE, SEC. 15.01, DO NOT APPLY TO THE CONTROLLED SUBSTANCES ACT (ART.4476-15, C.A.C. S.1, -A NSNO CRDfINAL ATTEMPT PROVISION. Reversed.(HarrisCounty). See a l s o Moore vvnes, 547 (20 531.Held, "The charge t o which D entered a p l e a of g u i l t y , attempted d e l i v e r y of ac o n t r o l l e d substance, to-wit:morphine, and received a probated sentencei s not an o f f e n s e and the conviction based thereon i s void."VOICE for the DefenseJAugmt 1978
ALWAYS, ON VOIR DIRE EXAMINATION, ASK THE FOLLOWING QUESTION FOR TWO CZ) REASONS:1) IT I S A GOOD QUESTION TO ASK THE PANEL AND 2) THE TRIAL JUDGE MIGHT BE NAPPINGAND WILL OVERRULE YOUR OBJECTION, THUS G I V I N G YOUR CLIENT ANOTHER OPPORTUNITY AT THEWELL I F HE IS CONVICTED."NOW, I S THERE ANY MEMBER OF THIS PANEL WHO REGARDLESS OF WHAT THE EVIDENCESHOWED I N ANY CASE COULD NOT BELIEVE THAT A POLICE OFFICER WAS INTENTIONALLYTELLING A LIE FROM THE WITNESS STAND?"I n FLORIO, #54,084, 7/12/78, J. Odom, with J. Douglas d i s s e n t i n g f o r reasonss t a t e d i n Hernandez, 508 (2) 853, t h e defense a t t o r n e y d i d ask t h i s question oft h e panel a s a whole, t h e t r i a l judge did s u s t a i n t h e S t a t e ' s objection, "I won'teven consider t h e question.""I'll s u s t a i n t h e objection," and t h e CCA d i d reverse.Reversed.(Tarrant County). Thus, D can go t o t h e w e l l again.JURY ARGUMENT GETS FT. BEND COUNTY'S PROSECUTOR I N TROUBLE I N VILLALOBOS, W54,666, 7/12/78Odom, Panel 1/3, 2nd Quarter, AND D GETS NEW TRIAL. Reversed.(Ft. Bend County).J.COMMENT:Prosecutor h e r e argued, among o t h e r things, a g a i n s t s e l f defense and"I b e l i e v ethen argued: "I a m going t o ask you t o f i n d him guilty."he is j u s t a s g u i l t y a s he can p o s s i b l e be."Objection t h e r e t o wasoverruled.Held, "The s t a t e ' s c a s e i n opposition t o t h e claim of s e l f defense was circumstantial.""In view of t h e i s s u e s a t t r i a l we a r e unable t o s a y t h e improper argument washarmless beyond a reasonable doubt.COMMENT:One should always be watchful when t h e prosecutor argues, and defensecounsel should always watch f o r those n i c e phrases such a s "I think," "Ibelieve,""I know," "I would n o t have f i l e d t h e charge a g a i n s t t h eDefendant but f o r , " "I wish you knew t h e Defendant l i k e I know him," wat heres i t s t h e man who conpnifted t h e crime," "I wouldn't ever t r y t o framean innocent man," "I am h e r e t o prosecute t h e g u i l t y , not t h e innocent,"etc., and, when t h e s e words a r e u t t e r e d , make l i k e a J e s s e Owens runningt h e 100 yeard dash and come out of your c h a i r objecting and h o l l e r i n g .But, d o n ' t f o r g e t t o g e t t h e judge t o r u l e on your objection a f t e r makingyour objection. I f sustained, a s k f o r i n s t r u c t i o n and then move f o r a m i s trial.LIKEWISE, I F YOU ARE DEALING WITH AN INFORMANT SITUATION, ALWAYS FILE A MOTION I N LIMINEPRE-TRIAL AND BE PREPARED DURING THE TRIAL TO START OBJECTING I F THe POLICE OFFICER COMMENCES TO RELATE THE HEARSAY TESTIMONY OF THE INFORMER BEFORE A JURY WHERE PROBABLECAUSF: I S NOT I N ISSUE BEFORE THE JURY.I N HAYNES, #55,074,7/12/78, 3 . T. Davis, Panel # 3 , 2nd Quarter, PANEL REVERSED TJBECAUSE HE ALLOWED INTO EVIDENCE THE FOLLOWING:9:A:A:Q:A:9.Without going i n t o what information you received, was t h e informationt h a t you received with regard t o a c e
Louis Dugas Orange W. V. Dunnam Waco P. R. (Buck) Files, Jr. Tyler Kerry FitzGerald Michael Gibson Dollos Grant Hardeway Hotmom Oliver Heard, Jr. So,: Antonio Jan Hemphill Dollos Clifton Holmes Xilgore Stuart Kinard Houston L. J. (Boots) Kmeger Liberty Edward Mallett Hou ton Pat Priest San Antonio Charles Rittenberry Amon'llo Robert Salinas
