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HCCLA OFFICERS
2001 2002
PRESIDENT
Wayne Hill
PRESIDENT ELECT
W. Troy McKinney
VICE PRESIDENT
Cymhia
Henley
SECRETARY
Paul
SL John
TREASURER
Emily Munoz
PAST PRESIDENT
Richard Frallkoff
BOARD OF DIRECTORS
Mary Acosta
WinslOn
Cochran
Rick
DeTolO
Rosa A Eli.des
Robe , Fie/cman
Kevin Fine
Tucker Graves
Ron Hayes
David Jones
David Kiana
Jim leimer
Da.ina O 'Kane
Kyle Sampson
Gram
Scheiner
Norm
S i l \ ~ r m a n
Helen
Simotas
PAST
PRESIDENTS
1971-2000
C Anthony Frilioux
StUart Kinard
George Luquette
Marvin O.league
Dick DeGuerill
W.B. House, Jr.
David
R
Bires
Woody Densen
Will Gray
Edward A. Mallett
Carolyn Garcia
Jack B Zimmerman
Clyde
Williams
Robert Pc/too
Candelario
Elizondo
Allen
C
Isbell
David
Mitcham
Jim
E Lavine
Riel< Bras s
Mary
E
Conn
Kent A. Schaffer
Dan Cogdell
Jim Skelton
George J Pamham
Garland
D.
Mcinnis
Robert A.
Moen
lloyd
W
Oliver
Danny
Easterling
Contents
From the President
. . . . . . . . . . . . . . . . 2
Horizontal Gaze Nystagmis
3
Intoxication Drugs ofAbuse Testing .
5
Blood
.
. 9
Apprendi
.
1
Succeding in Probation . .
.
.
. . .
. . . . . . . .
1
Banquet Photos
. 1
How to Seal Juvenile Records
.. . . . . . . 1
Winning ~ r r o r s . . . . . . . . . . . . . . . . . . . . . 2
Let's Hear From You
Call us with
your
suggestions on this publication
The
efender
Publisher
Editor Emeritus
Editorial Staff
Advertising
Distribution
Design and Layout
HCCLA
@
(713) 227-2404
Allen Isbell
W Troy McKinney,
Cynthia Henley Emily Munoz
Jay Skelton
Jeffrey Tesch @ Vyvid Productions
ph: (713) 526-1484 • fax: (713) 526-1844
Distribution:
750
copies per issue. • For article and other editorial contribution,
contact W Troy McKinney at (713) 951-9555
or
Cynthia Henley at (713) 228-850
To place an ad, call Jay Skelton at (713) 524-2404.
ADVERTISING RATES: (Rates are subject to change)
Full Page: 300.00
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Business Card SiZe: 40.00
THE DEFENDER
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FROM THE
PRESIDENT
Awards rewards and challenges
y
W YNE
i l l
The
purely fun part
of
serving as president
ofHCClA
ended as quickly
as ir
began on
June 14,
2001,
the evening of the annual
banquet. On that evening, numerous awards
were presented, recognizing the outstanding
achievements
of
HCCLA members
as
well
as
others who have made significanr
contribu
tions to the
crim
inal justice sysrem.
In addition to the fabulous menu, Tony's
Ballroom was energized by the pulsating
musical sounds provided by Rick
The
Don
Detoto.
David Mitcham, a
past HCClA
president, was presented wirh the Arrorney
of
the Year Award in
recognition
of
the
ourstanding results he has achieved for his
clients, and
as
a tribure to a career marked
by professionalism and commirment to
excetlence in rhe practice of criminal
law.
Richard Frankoff, immediare pasr president,
received recognition for his rireless work and
devotion to service in
furthering
rhe goals
of HCCLA. Troy
McKinney
presented him
wirh a
beauriful plaque, while
Roberr
Fickman presented a rather unorthodox gift.
Richard
presented president -elect Troy
McKinney wirh rhe President's Award for
Troy's
leadership
role
in
aurhoring
and
promoring
rhe HCClA
resolurion
condemning
certain
bond
revocarion
pracrices in some Harris
County
courts.
I
had
the honor
of
presenting
Judge
WiJliam M.
Wild BiJJ Hatten
wirh the
Judicial Longevity Award in recognition of
his decades of service to the judiciary and
citizens of Harris
County
. On rhe lighter
side, Judge Hatten
graciously
permirted
(encouraged) me to share several humorous
stories
abour
him
wirh everyone in
anendance.
It was a real pleasure to have
my
long
rime friend
share
in
the
evening's
fesriviries.
Vice President
Cynthia
Henley presented
rhe Harris
County Community
Supervision
and Corrections Department's assistant
direcror, Mike Enax,
with
HCClA's
Educarional Scholarship Award given
annually to a deserving probationer.
Our Key Nore Speaker, famed San
Antonio criminal
defense
lawyer Gerald
Goldsrein, enterrained rhe audience with his
usual freneric and rheatrical approach to
2 • THE DEFENDER
speech making. Gerry delivered a rhoughr
provoking evaluarion on how individual
liberties are shrinking
as a
result of
governmental
encroachmenr
on the
consritutional prorections once rhought to
be guaranteed to everyone.
Finally, the annual Torch
of liberty
Award
was presented to Texas State Senator Rodney
Ellis in appreciation
of
his
continuing
effort
to
make
positive
changes
in the criminal
justice system. Senator Ellis, the principal
archirect of Senate Bill 7,
The
Texas Fair
Defense Act," provided rhe audience with
his perspectives regarding the difficult path
this bill took before being signed into
law.
He described several cases that epitomized
the need
for reform
bur none
was
more
compelling than the srory
of
Anthony
Robinson, Senator Ellis' special guesr ar the
banquet. Mr. Robinson served
10
years in
prison for a crime he did nor commit and
for
which
he was ultimately exonerared.
Senator Ellis concluded his speech by issuing
a challenge to the defense
bar
ro become
acrively involved in the implementarion of
rhe Fair Defense Act.
luckily for me (and for HCCLA) pasr
president Jack
Zimmermann
approached me
ar the conclusion
of
rhe
banquet
and gave
me some
advice.
He
suggested rhar I call
upon former presidents as a resource during
my renure
as
president. Realizing thar our
organization needed to take a leadership role
and be proacrive in the implementation of
the Fair Defense Act in Harris
County,
I
announced rhe formation of the Fair Defense
Acr - Senate Bill 7
Comminee
consisring
of
Michael Charlton, David Jones, David
Kiatta,
Cynthia
Henley, Jim
leitner,
Ron
Hayes as rhe HBA Criminal
law
&
Procedure secrion liaison, and me. I named
Jack
Zimmermann
to chair rhis
comminee
.
(Thanks for that advice Jack ) As wirh all his
undertakings, Jack's service
as
chair of the
Fair
Defense
Act
Commirree
has
been
exemplary.
After numerous
meerings and an
exhausrive review of Texas Fair Defense Act,
the
comminee
produced the HCCLA Fair
Defense Acr Plan.
Jack
and I
met
informally
wirh a
committee of
districr
court
judges
ro
discuss
our
anticipated proposals. Thereafter,
HCClA's
officers and board of
directors
unanimously approved rhe plan. On
August
15 h, the wrinen plan was provided to both
the
County
Criminal
Courr
at
law
and the
District
Court Judges. Jack and I presented
the
HCClA
Plan
at the Harris County
Criminal
Court
at law Judges' meeting at
Del
lago
. We also provided
our
proposal to
an assembly
of
district
court
judges. H
CCLA
presented a wrinen
request
to the Harris
County Districr Court Judges asking for a
vote on the HCClA Plan and for a public
vore on any plan considered; unfortunately,
our
requesrs were declined and
our
Plan was
not
submirred
for a vore by the dis trict court
judges and the plan ultimately adopted by
the judges was adopred in a secret meering.
The
interim plan ultimarely approved by the
district
court
judges
adopted many
of
the
principles contained in the
HCCLA
Plan,
but
retained
all of
rhe
current
merhods
of
appointment, including: term assignments
for up to a year (contracr sysrems), limired
term assignments for a day or week (limired
conrracrs), individual case assignments,
and
a combination
merhod permirring
rhe use
of
any
of the rhree methods.
An ongoing dialogue wirh rhe respective
court groups has continued in an effort
to
ensure rhar
rhe defense
perspecrive
is
recognized and adopred in any plan finally
implemented
. In rhis regard,
Jim leirner,
David Kiana and I spent several hours wirh
rhe Districr
Court Fee
Commirree discussing
ways
ro
revamp rhe
entire
paymenr
procedure.
Addirional
meerings wirh
rhis
commirree are anticipared.
While rhe
Harris
County
Courts ar law
have not yer published a plan, I anticipare
rhar ir will call for a modified wheel sysrem
to provide for the
random
assignment of
qualified lawyers.
All
members
of rhe Fair
Defense Act
Commirree are to be
commended
for rheir
hard work and dedicarion to rhis project.
Wirhour their unselfish participation, rhe
HCClA Plan would nor have been
developed.
Turning
to orher marrers, I would like
to
see more
members
take advantage
of
rhe
excellenr
continuing
legal
educa,rion
programming provided by
HCClA.
Cynthia
Henley and Troy McKinney
organized the "After
Hours lE
Program"
which takes place on rhe rhird
Thursday
of
ee President's Message
o
page 14
..
all
2001
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HORIZONTAL
G ZE CONTINUED)
...continued
rom
page 3
at the same two-second rate. In this phase,
each pass for each eye
must
take at
le
ast
eight seconds
and
the four passes together
must
take at
leas
t
32
second
s. When
the
stimulus is
at maximum
deviation, the
officer
mu
st observe distinct nystagmus
in
order
to score a clue for that eye. t is
insufficient to simply observe nystagmus
at
maximum
deviation since most peop le will
exhibit some visible nystagmus when the
eye is held at
maximum
deviation .
The
nystagmus
that must
be observed in this
phase must be distinct: that
is,
greater than
the natural nystagmus that will occur from
holding the eye at
maximum
deviation.
8. Passes -
On
set Angle
of
Nystagmus.
The
fourth
and
final set of four passes is
designed to
determine whether
the
onset of
nystagmus occurs prior
to
the eye's
moveme
nt
to a 45-degree deviation . In this
phase, the stimulus is moved very slowly
at
a rate
that
would take four seconds to
move the stimulus to the person's shoulder
or at a rate
of no
more than 10 degrees per
second. Once the officer thinks
that
he sees
nystagmus he is required to stop moving the
stimulus and hold it steady to confirm the
presence
of
nystagmus. The stimulus must
be
held sufficiently long to confirm the onset
of nystagmu s, sufficien rly long for the officer
t exa
mine
the a
lignment
b
etwee
n
the
stimulus a
nd
the
edge
of the shoulder
(approximately 45 degrees) so
that he ca
n
estimate the angle of onset , and sufficiently
long for the officer to
confirm
the presence
of some white remaining in the corner of
the eye. Ass uming an onset angle of 30
degrees
and
the stimulus being held for two
seconds
t
confirm th
e
continuation of
nystagmus, each of th e four passes in this
phase
mu
st take at least eight seconds (three
seconds out, two second hold, three seconds
back)
and
the four passes together
must
take
at least
32
seconds.
9.
Vertical
Nystagmus
. Although there
is
also a protocol for two passes for vertical
nystagmus
(VGN)
upon
completion of the
HGN, VGN was not examined
in th
e
NHTSA
validation research
of
the SFSTs
and it was not included in the SFST barrery
during
the original research.
Import
an tly, it
is
not
part of the HGN test a
nd
it is
not
admissible
under Emerson.
4 •
THE
DEFENDER
4 82 Litmus Test
When
the four phases
and 14
passes of
the HGN are
combined, administration of
the HGN from the time the stimulus first
begins moving must take NOT
LESS
THAN
82
seconds. Any HGN test that does
not
take
contain
at least
14
passes and take
at
least
82 seconds from
the time the
stimulus first begins moving
is not
admissible
because it has
not
complied with the third
prong of Emerson: that is,
the test was
not
administered in accordance with
NHTSA
protocol
and
requirements. As a practical
marrer, most
HGN
administrations
should
take
at
least
90
seconds. Since very few
people are 100 percent proficient
all
of the
time, since some
pauses
during
the
administration
are natural.
and
since
some
passes, such
as
the
onset
passes may actually
take longer than the theoretical minimum,
when
for instance, the onset
is at
40
degrees
instead of
30
degrees, any HGN
that
takes
less
than 90
seconds
is
suspect and
should
be
more
closely examined for compliance
with each individual phase of the test.
Other Common Mistakes
Other common
mistakes in the
administration
of
the HGN include moving
the
stimulus
too
quickly
-
or
less
commonly
toO slowly -
on individual
passes, holding
the
stimulus closer
than
12
inches
or
further away than 15 inches,
not
holding
the stimulus for
at
least four seconds
at ma ximum deviation,
and
curving
the
stimulus upward, downward, or around (also
called looping) as it is being moved through
the passes.
If
any of these mistakes are present
in the
administration of
the
HGN,
the test
and
its results
is
not admissible because the
officer
did
not comply with the third prong
of
Emerson that is, the test
was
not
administered in accordance with
NHTSA
protocol
and
requirements.
According to the NHTSA material, the
presence offour clues indicates a likely blood
alcohol level of at least .10. In Texas, however,
under Emerson it is improper for any witness
or
officer to testify to any correlation
or
relationship between
any number of
clues
and any quantifiable blood or breath alcohol
level.
Rather,
under Emerson all that is
admissible from the presence
of
at least four
clues is testimony
that
the administration of
the
HGN
indicated intoxication . In reality,
all
that the pre
se
nce of
gaze
nystagm
us
indicates is the presence of a central nervous
system
(CNS)
depressan t in the person's
system. While alcohol is a CNS dep ressa
nt
,
the
HGN
is
not
specific for alcohol. Indeed,
alcohol
doe
s not even cause nyst
agm
us.
Rather, its presence in a
person s system
simply exaggerates the
pr
ese
nc
e of the
nystagmus prese
nt
in all people.
More detailed
information
about th e
NHTSA
requirements
and
protocol for the
HGN as well as the
other
SFSTs can and
should
be obtained
from the
NHTSA
manuals
and
the studies
that have been
conducted regarding
them.
Every
practitioner handling
OWl
cases should have
and
learn the material
in
those manuals .
Manuals
There
are 3 different types
or
classes of
manuals:
(1) Student
Manuals for the
Student
Course; (2)
Instructor Manuals
for
the
Student
Course;
and
(3)
Instructor
and
Student
Manuals for the Instructor Training
Course
.
The
links and
NTIS Numbers
for
each follow. Everyone should have, at least,
the
1995 and
2000
Student
a
nd Instructor
Manuals
for the basic SFST course.
The
NHTSA
SFST manuals
ca n be
obtained
from :
US Dept. of Commerce
Technology
Administration
National
Technical
Information
Service
Springfield,
VA
22161
800-553-6847
for orders.
888-584-8332 customer
service.
http://www.ntis.gov.
The
current
manuals can also be obtained
from Texas
A M
since it
is the entity in
Texas
that
provides Texas law enforcement
officers with the material.
The manuals
are
available from:
Texas
A M University
Engineering Extension
Service
Law Enforcement Division
979-845-3211 (A M main number).
979-458-6850 (Engineering
Extension
Service).
800-423-8433
(Law
Enforcement
Division).
FaJl200I
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INTOXICATION
DRUGS
OF BUSE
TESTING FORENSIC APPLICATION
Y NACHMAN BRAUTBAR, M.D.
Recreational use, and a buse , of
prescription
and
illicit drugs has grown in
the last 15 years, and
become
a point of
concern
to
both
forensic
and
non-forensic
physicians. Various regulatory agencies,
insurance
companies, and
idiocolegal
processes, such as workers compensation and
personal
injury
defense, have been utilizing
the defense of intoxication (drugs of abuse
and
alcohol
or
a
combination
of either) in
order
to
prove
or
disprove liability for injury.
This
paper
attempts
to
address testing for
these areas.
Biological samples for
use in drug testing
Commonly,
three
types
of
biological
samples have
been
utilized:
1.
Blood.
2.
Urine
.
3. Hair.
In tests
that
are utilized
to determine if
a
patient
has used drugs as opposed to an
attempt to determine if
the patient
is under
the influence
),
the
following can be
expected. Hair
will
retain the drugs
for
several months, most commonly three
months
after the use. Urine will retain
drugs
or their metabolites for anywhere from
several
hours to
several days,
or
in
some
rare
instances, weeks. Blood will retain the
drugs
or
their metabolites for several
hours and
in
some instances longer.
To determine whether
the person is
impaired as a result of a drug abuse, blood is
the
most accurate
biological tissue
to
be
tested because the levels in (he blood or the
presence
of
the drug in the bloodstream are
very
importanr
objective determinanrs in the
process
of
diagnosing or ruling
out the
impairment
or under
the
influence of
drugs or the intoxication defense .
Does positive blood testing,
urine testing r hair testing
indicate impairment?
Positive hair samples for drugs of abuse
does
not equate
with
impairment.
A positive
result
on
a hair test can
only determine that
Fall 2001
in
the
past a
patient
has used
drugs with
a
given limit.
The
presence
of
drugs of
abuse
in the
urine
absolutely cannot be
equated
with impairment, bur rather
only with
use
in the last
day or
several days, and in
some
extreme
cases
the previous week. The
presence of
most
drugs or their metabolites
in the blood will
not
prove impairment
because there is no scientific data to
extrapolate the exact level
of drugs
in
blood
that
will
impair
a specific user. That type of
extrapolation
has
been made only
for
alcohol,
which has a legal definition in
driving
statutes, as well
as
medical forensic
extrapolation formulas.
Commonly
a toxicologist and forensic
physician will be asked to
determine
whether
urine testing positive for drugs indicates
that
a person
was
under
the influence
or
intoxicated when
an
accident occurred
on
the
job
or
when
a car accident
occurred on
the road. The presence
of drugs
of abuse,
prescription medications, or their
metabolites in the
urine cannot
be
equated
with
impairment.
Unless clinical
data
from
the site
of injury or
prior to
the injury can
indicate
that
the patient was
behaving
as
an
impaired person, it will
be
very difficult
to
es tablish impairmenr.
The
presence of drugs
or
their
metabolites
in
the
blood
may
suppOrt
impairment
based on the blood
levels
and
the clinical behavior.
Drug recognition expert program
Due
to
the problem with identifying
impaired
workers
and
drivers in relation to
drug/blood
concentration,
the Los Angeles
Police Department has developed a program
called the Drug Recognition Expert Program
(ORE)
.
This program
started initially
with
the
training
of officers to recogniz.e
behavior
and
psychological
symptoms
associated
with
psychoactive drugs.
Over
time, the
program
has attracted the
attention
of other agencies.
Based
on the
evaluation, a ORE forms
an
opinion as to: (I)
whether the suspect is
impaired; (2) if impaired, whether the
impairment is
related to drugs;
and
(3)
if
related to drugs, which drug
category
or
combination
of categories is causing the
Impairment.
In a recent
study (Governor's Office o
Highway
Safety), the police
department
and
ORE
program
utilized
data
software
developed by Southern
California
Research
Tnstitute under
National Institute on
Drug
Abuse funding to record and analyze data.
A
patient
bank
of 390 men and
108
women
drivers was analyzed. The OREs correctly
identified at least
one
drug
category
in 91
of 415 specimens
in
which
the laboratory
confirmed one
or more drugs. No drugs were
found in
specimens from 26 individuals
whom the OREs judged not
impaired
by
drugs.
The
ORE's
decisions were
supported
for 83.5% of 484 specimens,
and
not
supported for 16.5% specimens.
Tn
14
cases, the
ORE
entirely
missed the
drugs found in urine and in 47
of
the
specimens for
which
th e laboratory
confirmed
multiple substances, the ORE's
decisions were combinations
of
hits, false
positives,
and false
negatives
. The
ORE
missed marijuana more
often rhan
othe
drug
categories,
but
it
cannot
be
determined
whether the misses were ORE error or a
consequence of
the drug's time course. Since
the
drug
s
principal
metabolite
can be
detected in
urine
for days
to
weeks,
a
specimen
may test positive even though i
was obtained at a time
when
active marijuana
was not ptesent and affecting the individual
A
positive
result for
marijuana
in
urine
which is not supported with evidence o
behavioral
impairment,
cannot
and
does
no
speak to the question of drug intoxication.
This scientific fact
is commonly
forgotten
or is unknown to
some
forensic physician
who
have the
professional and ethica
responsibility to evaluate
whether
the patien
was under the influence of illicit drugs. Fo
instance
,
r
had a
patient who
was involved
in a
truck
collision while
on
the job, and his
urine test positive for marijuana. The
forensic
examiner opined that
the
patien
was
under the
influence, despite
the
fac
that
the emergency room notes and the
paramedic notes clearlystated the patient wa
alert x
4
(times four).
Tn
the study of
OREs
quoted above
cocaine misses occurred
with
the second
ontinued on p ge 6
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INTOXIC TION CONTINUED)
...
continuedfrom page
highesr frequency. Behavioral science
shows rhar
srimulanrs
are ofren difficulr ro
derecr, bur ir cannor be derermined
wirh
cerrainty
wherher
rhe misses are rru e
errors. Since rhe half-life
of
cocaine
is
approximarely
90
minures and
rhe
merabolire
(breakdown producrs of
cocaine) benzoylecgonine (BE)
is known
to have no psychoacrive effecr and can
usually be derecred for 24
or 48 hours,
urine
posirive for
BE does nor mean
rhar
rhe suspecr was
under
rhe influence
during rhe
evaluarion.
The dear message
from
these
studies is
1. The
presence
of
drugs of
abuse in rhe
urine
cannor
be used for rhe
inroxicarion
defense.
2. The presence
of
drugs
of
abuse in rhe
blood cannor
auromarically be exrrapolared
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6 •
THE
DEFENDER
ro rhe
inroxicarion
defense.
Each case
requires
careful analysis
of
rhe
medical
records
and rhe
clinical reliabiliry of rhe
blood
levels.
3.
The
presence
of
drugs of
abuse
in
hair
has no
meaning
wharsoever
and
can nor
supporr rhe intoxicarion defense. The
only
exrrapolarion
ro be made
is
(har drugs were
used
somerime
in rhe pasr.
Medi«:ations And Substan«:es
Causing False ositives
There
are 161
prescriprion
and over-rhe
counrer
medicarions
rhar have
been srudied
and
resulred in
65
false posirive resulrs in
rhe
commonly adminisrered urine
resr for
drugs.
According
ro rhe Los Angeles
Times
reporr, Siegel, a
psychopharmacologisr
ar
UCLA, said, ''The widespread resring
and
reliance
of
rell-rale rraces
of
drugs in rhe
urine
is
simply
a
panic
reacrion
invoked
because
rhe
normal rechniques
for
conrrolling drug
use have
nor
worked
very
well. The nexr
epidemic
will be resring
abuse
.
The mosr commonly used urine resring
merhodology is AMIV Ir has
been shown
rhar over 250 over-rhe-counter medicarions
and prescriprion drugs can cause
fal se
posirive resr resulrs
using
rhis
merhodology.
The
following Table I lisrs rhe
drugs
rhar
have
been
reporred as causing false posi rive
resrs.
Table
Marijuana
Pain relievers
such as Advil, Nuprin ,
and
Morrin.
Mensrru
al
cramp
medicarions
like
Midol and
Trendar. All
drugs containing
Ibuprofen
. Passive marijuana
smoke.
Passive
marijuana
inhalarion
ar a rock concert
can
re
sulr in a posirive urine resr
despire
rhe facr
rhar rhe person has
nor
used
marijuana
.
Amphetamines
Drisran Nasal
Spray,
Neosynephren,
Vicks
Nasal Spray, Sudafed, and other
medicines conraining ephedrine or
pnenypropanolamine.
Opiates
Vicks
Formula
44M conraining
Dexrromerhorphan. Primarene-M
conraining perylamine. The pain
reliever
Demero] and prescriprion anti-depressanr
Elavil. Quinine
Warer
Fall 2001
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INTOXICATION
CONTINUED)
Methadone
NyQuil Nigh [ime Cold Medicine
Cocaine
Antibiotics
such
as Ampicillin
and
Amoxicillin.
PCP
Diazepam, as well as some ingredients in
cough medicines. Dexuomethorphan.
Poppy seeds such as
on
a Burger King roll
or on
a bagel roll (according
to
the
Journal
of Clinical Chemis try, Volume 33,
No.6,
1987). Quantities of
poppy
seeds ingested
in thi s study, 25 and 40 gra ms,
may
be
expected
to
be contained in one
or
tWO
servings
of
poppy seed cake.
Therefore,
poppy
seeds represent a potentially se rious
source of falsely positive resu lts in resting
opiate
abuse. The paper in Clinical
Chemisuy also concludes:
Not only
is it
difficult ro distingui sh heroin or morphine
abuse from codeine, bur dierary
poppy
seeds
can give a s trong positive
re
sul ts for
urinary
opiares for several days du rarion thar
is
confirmed by GC/MS analysis.
The
I
sr of age
nts
rhat can cause false
posirive results in rhe urine has also been
described
for
endogenous excretion of
enz ymes in rhe urine. For instance, a study
from
Emory University
by
Dr.
James
Woodford, has
shown
that a percentage of
persons of African origin, Orientals , and
Pacific Islanders
may
be
re
sting positi ve for
marijuana
secondary
to a mechanism rhat
involves the
pigment
melanin , which
protects the skin from sun; it a
ppro
ximates
rhe molecular
structure
of the
T H C
merabolite
which
causes la
boratory
cross
reaction wirh mari juana.
What this means
is that
if you have used
any of these
over-the-counter
medications,
you may be accused (arrested ) based on a
false posirive urine test. If your expert does
not pi
ck
this
up you may
be in serious,
irrevers ible trouble .
Methodology Of Drug
Screening In
Urine
There are several
method
s to
detect
drugs
in the urine. The
mo
st frequent ones are
e nzyme Immunoassay EIA),
radioimmunoassay
(RIA), and florescence
polarization immunoassay (FPJA). There are
more sophisticated methodologies that are
Fall 2001
performed on extracts of urine
using
thin
layer
chromarography
TLC),
gas
chromarography GC),
high perfo
rmance
liquid
chromatography HPLC),
and
gas
chromatography/mass spectrometry GS/
MS). The
only
accepted procedures based
on the definition of the
National
Institute
of Drug Abuse NIDA)
and
the Department
of Defen se DOD) are immunoassays
followed
by
gas chromatography/mass
spectrometry
confirmation.
The
confirmation
utilizing gas chromatography/
mass spectromerry is required since the
methodology of immunoassay can give false
positive resu lts due to cross re activity.
This
is due to the
fact
that
this methodology
cannot specifically identify the drug, but
rather the
antibodies
recognize substances
that may have the same suucture chemically,
immunologically,
or
enzymologica ll
y
other
than
the drug of interest.
Immunoassays
for
amphetamines will show reactivity
with drugs structurall y related to
amphetamines, such as over
t
he-co
u n
ter sym
pa to med icoam ines,
phenylpropanolamine and eph edrine, over
the-counter
legal medications used for nasal
congestion
and cold
a
nd
appetite
suppressant.
Confirmation
therefore is a
must utilizing
gas
chromatography/mass
specrrometry.
The use
of
gas
chro ma
tograp
hy/
mass
s pecrrometry
provides an ex tr e mely high index of
reliability when
properly
performed and
applied.
Gas chromatography/mass s
pectromeuy
is a
superb methodology
if
done
correctly.
For instance,
if
the equipment has not been
cleaned
prop
erly, the runs from the previous
testing will
contaminate
the sample,
and
give
erroneous, inaccurate, and incorrect results .
Th erefore, ir is mandatory to look into the
methodology that was
used
for
specific
res ults on
gas
chromatography/mass
spectrometry in given case. On ma ny
occasions a deposition of th e lab technician
will
reve
a l that the sa m ple was
conraminated.)
Whar this means to you
is that if
your
utine is
tested utilizing rhe immunological
method only,
without
confirmation with
GS/MS, there
is
a high
probability
that the
result ma y be a false positive and irrelevant
to your SituatIon.
Forensic Accuracy Of Gs Ms
Gas chromatography/mass spectrometry
is
exrremely and
highly accurate
if done
correctly. A laboratory
that perform
s the
te
s
must
be
NIDA
certified
or CAP
(College
o
American
Pathologists) certified. All of the
labs rhat perform the gas chromatography
ma ss specrromeuy on site can be
NIDA
certified. Labs that send samples to anothe
laboratory for gas chromatography/mas
s
pecrrometry confirmation
are ineligible fo
NIDA certification .
Therefore
one
must
b
very careful when looking at the test result
to see whether the laboratory is
NI
DNCAP
continued o page 8
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S
DOUBT
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is
now the proud
co-sponsor
of
REASONABLE
- DOUBT -
a local access channel show
which
airs live
each
Thursday
night
from 8:00 - 8:30 p.m.
The show
is
co-hosted with
Dan Gerson
and
Cynthia Henley
HCClA s
representative
and Vice President.
The show hosts
a
guest
each week
and
topics
related to the criminal
justice system are discussed.
Tune into
hannel 7
and
call in with
your
comments at
713-807-1794
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DEFENDER • 7
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INTOXIC TION CONTINUED)
...continuedfrom page 7
certified. Furthermore,
some
labs
do
nor
properly and
rhoroughly
clean rhe GC/MS
equipment
.
Some
labs do nor even
conducr
GC/MS
conflrmarion;
ins read rhey use
cheap alrernarive merhods ro increase profirs
and reduce expenses .
Therefore
you
mu
sr be
in a posirion ro aggressively cross-examine
rhe laborarory direcror
and
rechnician .
Drug
f
buse nd Hair Testing
Hair
resring for drugs
of
abuse has become
exrremely
popular
among employers. There
have been several scientific forensic
doubrs
raised
abour
rhe use of rhis
merhodology
for
proof of
abuse. For example, rhe Sociery of
Forensic Toxicologisrs in
1990
srared:
The
usc
of
hair analysis for employees in pre
employment drug resring is premarure,
and
cannor be
supporred
by
rhe currenr
inform
arion
on
hair analysis for
drugs
of
abuse. A 1997 srudy by
rhe Narional
Insrirure
of Drug
Abuse
concluded and
indica red rhar significant erhnic bias
may
be
rhe resulr of resrs for cocaine. Analyrical
Toxicology, in irs
Marchi
April 1998 issue,
indicared rhar removal of melanin from hair
a merhodology
used ro remove rhe e
thnic
bias) does nor eliminare rh e hair color bias
when interprering
cocaine
concentrarions.
Co ngression al records from
May
14, 1999,
indicared
rhar
rhe Secrerary
of
rhe
Department
of
rhe
Army
raised questions
about the
Army's use
of
hair resting in a
specific case
and members
of Co ngress were
expressing
rheir
discomfort
wirh
the
procedure's reliabi liry. Indeed, Representative
Cynrhia McKinney, a
Democrar
from
Georgia, advised Defense Secrerary William
Cohen rhar she
is exploring a
possible
legislarive remedy ro
prohibir
human hair
re
sring for drugs in
the
milirary, given thar
hair resring has
been proven
by forensic
roxicologisrs
ro
be racially biased .
Indeed
, rhe paper
by
Kinrz , er.
al.,
published in rhe Journal of Forensic
Scie
n
riflc In
rernarional ,
January
19 9
7,
Volume 17, pages 84 ro 123
and
151 ro
156
,
indicared rhar false posirives are found even
ar low
concentrarions
. Tissue hair analysis
in good hands with
good laboratory
technology
may
give an idea about
habitual
use
of
some
of
rhe
drugs;
however, it is
preferable rhar rhese
should
be
combined
8 •
THE
DEFENDER
wirh urinalysis urilizing eirher screening or
berrer
confirmarion
merhodology.
Practical pplication
to
a Case nalysis
A case
scenario can help
to make the
above data understandable.
A 32-year-old
female
parient was rhe
driver of a vehicle who was involved in a car
collision and
suffered
inrernal bleeding
(ruprured spleen) and a fracrure of a bone
of
rhe lower extremiry. She had requesred
medical benefirs from her insurance carrier
for medical expenses
as
well
as
rime lost from
work and
had filed a lawsuir since rhese were
denied
. The physician
who examined
the
parient
on behalf
of
rhe insurance carrier,
and whose report was rhe basis for rhe denial,
nored in his reports rhar upon admission ro
the
emergency room on
the
date of
injury, a
urine screening rest for toxicology was
done,
and
was positive for
amphetamines.
The
physician who examined the patient on
behalf of the insurance
carrier failed to
note
the
time
of the testing, the
time
the
urine
was
obtained
from the parient,
and wherher
the patient was taking any medications that
contained ampheramines,
such as
ephedrins
or
pseudoephedrines. The medical records,
however,
contained
notes from the
house
doctor who
arrended
the patient
ar rhe
time
of her admission. The house doctor took a
detailed hisrory, which clearly stated
that
the
patient is an
allergic
individual and that she
had for the previous two weeks been
using
compounds containing borh ephedrine and
pseudoephedrine. The medical records
further
showed
that
ll examining
physicians
clearly stated
that
rhe
patient
was alert x 4
on admission
to the hospiral - despite her
pain
and despite
medications
received from
the paramedics and emergency room
physicians . There was
no
clinical evidence
of impairment, rhere was no hisrory
of
drug
abuse,
and
there was
no
evidence
of
drug
impairment.
The
problem with
rhis case is
that rhe urine screening
test
was a false
posirive because of
rhe patient's use
of
over
rhe-counter
ephedrine
and pseudoephedrine
containing medications to treat a cold and
nasal congestion.
Had
a follow-up been
done
on
that sample with
gas chromatographyl
mass
specrrometry showing
a specific rype
of
amphetamine,
the
story
might have
been
different if indeed rhe
patient
was a user
(which was not the case here) .
This case further illusrrates: (I) rhe need
for a very in-depth evaluation
of
rhe chart
and
notes , as far as
ro the patient
's
mental
capaciry before and afrer rhe collision ; (2) a
derailed
analysis
of past and present
prescription
and over-the-counter
medications;
and
(3) the need
ro
follow-up
on urine screening rest if it is positive fot
drugs
of
abuse in a case where suc h suspic ion
is indicared.
Gas
chromatography/mass
specrrometry
is
rhe ultim
a
te tool to
eventually follow-up
on
such a suspicion .
In summaty, while drug abuse and
intoxication is a problem , the diagnosis of
inroxicated
is
a scientific
one and
can
nor
be based
on
personal beliefs
or
feelings
of an
examiner.
Dr Brautbar is board-certified in internal
medicine, forensic medicine, and nephrology,
with a specialization in toxicology Dr Brautbar
has
provided
expert
medical
opinion and
scientific evidence in product liability, personal
injury, medical nursing home standards,
and
toxic tort
cases
throughout the United
States Dr
Brautbar is a Clinical Professor ofMedicine at
USC
School
o Medicine
, Department
of
Medicine,
and
is
Vice-Chairman
o
the
Department
of
Medicine at the Queen
of
Angels
Hollywood Presbyterian Medical Center He has
published
over 230 journal manuscripts,
abstracts, and book chapters in the fields of
internal medicine, toxico logy, and nephrology.
His resume includes past andpresent membership
in
25
National and International Scientific
Societies including the Collegium
Ramazzini
.
Dr. Brautbar has been on the faculty
o
the
National}udicial College,
and
lectured to Judges
on the issue ofScientific Evidence, and was a
peer reviewer for the Federal Judicial Center
(Reference Manual on Scientific Eviden
ce
,
Second Edition, 2000 . Dr Brautbar
has also
been a peer-reviewer for the ATSDR. Dr
Nachman Brautbar can be reached at:
Nachman
Braurbar,
M.D.
6200
Wilshire Blvd, Suire 1000,
Los Angeles, CA
90048
Telephone: (323)
634-6500
Facsimile: (323) 634-6501
E-Mail:
Websi re:
www.environmentaldiseases.com
Fall
2 1
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PERCEPTION AND MISCONCEPTION
All blood
is not
created equal
BY W. TROY MCKINNEY
While knowledge
may be
power
and
ignorance may be bliss, ignorance
of
available
knowledge gives one's clients neither power
nor
bliss. In the context
of
criminal cases
where blood analysis forms an integral
part
of
the case,
whether of
the State's
proof or as
part
of
the defense, most defense arrorneys,
judges, and prosecutors have large doses of
ignorance and have seldom stopped by the
trough
of
available knowledge .
This
article,
the first in a series, will describe and
debunk
some of
the
mi sconceptions abou t
the
sanctity of blood test result
s.
Simply, all blood, blood
tem,
and results
are not created equa
l.
Initially,
one must
know
what
substance was tested.
The
test
could have been done on
whole blood,
serum, or plasma
and
depending
on what
was tested, the results could differ by
as
much
as
thirty percent.
In
simplest terms, whole blood
is
everything that is drawn from the person.
Plasma is whole blood less the solids in the
blood . Plasma is separated from whole blood
by centrifuging (spinning) the whole blood
sample.
As
the sample spins, the heavier
solids in the blood go to the
bottom
of
the
test tube; the liquid
remaining
on
top is
plasma. Serum is plasma less the coloring
agents. For purposes
of
this article and for
purpo
ses of
comparison
to whole blood,
there
is
little difference between plasma
and
serum.
Th
e
re is
, however, a significant difference
between plasma
or serum
a
nd
whole blood.
Depending
on the study
and source,
variations
ranging
from 9
percent
to
30
percent have been found and
documented:
that
is,
an
analytical result
on serum or
plasma will overstate the true whole
blood
alcohol concentra tion by between 9
and 30
percent. While many experrs will indica te
th
at they feel comfortable
with
a
more
narrow range
of
potential variance, say 15
to
20
percent, it
is
simply
not
possible to
know the precise relationship
on
any given
person at any given t ime since it varies
both
between people
and within
the same person
at different times.
The
importa
nt
difference between whole
blood, plasma, and s
erum,
for purposes
of
this article,
is
the result
of
alcohol's affinity
Fall 2001
for water.
Not only is
alcohol soluble in
water, it has an affinity for water. That is
alcohol is attracted to and thus more likely
to reside in water than in solids.
t
is
for this
reason th at if
one
administered the exact
same
quantity
of alcohol
to
a
man and
a
woman of
the same weight, the vast majority
of women
would have a higher blood alcohol
level since
women
have a lower percentage
of
body mass accounted for by water.
In
its
simplest terms, since a
woman
has
less
liquid
in
her body in which to distribute a given
quantity of alcohol, the relative
concentration in the liquid that is present is
going to be greater than in a man . Stated
differently, 10 grams
of
alcohol in 100 liters
of
water,
as
in a man,
is going to
be less
relatively concentrated (.10)
than
the same
ten grams
in 80
liters
of
water,
as
in a
woman
(.125).
When viewing alcohol's affinity for water
in the cont
ext
of
a
blood specimen,
it
is
useful to
think of
it in relative term
s.
F
example, assume
that
a person has .10 gram
of alcohol in 100 ml of whole blood. If th
whole blood
is
converted
to plasma
(th
solids are removed), the remaining quanti
of plasma may only be
60
ml. Because
alcohol's affinity for water, however, a great
portion
of the
.10
grams of
alcohol wi
remain in the plasma. Thus a plasma resul
on
a weight to volume basis, may be .0
grams in the
remaining
60 ml, or
whe
converted
to
a 100 ml equivalent, would b
.13 grams per 100 ml. Mathematically,
there are .08 grams in 60 ml, the equivale
quantity
in 100 ml
of
plasma
is .13
gram
Of
course , this .13 result
on
plasma wou
be
30
percent higher
than
the
known
valu
of .10
grams in the
whole
blood specimen
Even though the
quantity
of whole bloo
to plasma was decreased by
40
percent (fro
100 ml to 60 ml), the
quantity of
alcoh
continued on page
1
DAVID
W.
KIATTA
IS PLEASED TO ANNOUNCE
THE FORMATION OF
CARAWAY e
KIAlTA, L.L.P.
Bill Caraway was formerly with Baker Botts and Helm Pletcher Bowen &
Saunders, where he practiced personal injury trial law. In the last 4 years,
Bill
has
secured more than 11.4 Million Dollars
in
verdicts or settlements for his clients.
Caraway Kiatta,
L.L.P. will
practice
in
the areas
of
general civil
litigation (with
emphasis
on the representation of Plaintiffs in
personal
injury
cases,
including
medical malpractice,
wrongful
death,
catastrophic injuries,
and product
liability)
and
criminal defense.
We proudly
honor referral fees to
referring
lawyers in civil cases.
CARAWAY e KIAlTA, L.L.P.
ATTORNEYS AT LAW
6363 Woodway,
Suite
710
Houston,
Texas 77057
Office
713-785-8005
bcaraway@justice com
Facsimile
713-785-8535
dkiatta@justice com
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MISCONCEPTION
CONTINUED)
continuedfrom page
remaining
in the plasma did
not
decrease by
the same
40
percent. Rather, for purposes
of
this example, the weight
of
alcohol
decrease from the whole blood to the plasma
was
only 20 percent
(from
.10
grams to .08
grams).
While
alcohol has an affinity for
water, some
of
the alcohol that was in the
original whole blood sample will remain in
the solids
that
are removed
when
separating
plasma from whole blood. If one were to
measure the weight to
volume
ratio
of
the
solids, based
on
the above
example, one
would get
.02
grams
of
alcohol in
40 ml of
sqlids, which when
converted
to a
100 ml
eqllivalent
would
be .05 grams
per 100
m .
The
blood
alcohol level in the solids
would
substantially understate the true blood
alcoholleve .
Typically, medical facilities and
other
non
forensic facilities will
conduct
blood alcohol
analysis
on serum or
plasma while forensic
facilities,
such
as police
laboratories
and
medical examiners,
will
conduct
blood
alcohol
analysis
on whole blood. Some
medical and non-forensic
facilities will
automatically convert
a plasma or serum
alcohol level and report it as a whole blood
equivalent.
In such
circumstances, it is
important
to
determine
the factor used in
such conversion
as
it may be higher
or
lower
than reality
or
what
is recognized as
an
acceptable relationship.
Additiona lly, medical facilities will typically
use tests, such as an enzymatic immunoassay
(EIA), that
have never been recognized as
forensically acceptable
by
the
scientific
community
for reliably
quantifying
specific
blood alcohol levels. Rather, in the medical
context, these tests ate typically intended as
little more than rough screening tests. By
comparison, most forensic
facilities will
typically use tests,
such
as GC-MS (gas
chromatograph
- mass spectroscopy),
that
SCHNEIDER McKINNEY
P.C.
STANLEY
G
SCHNEIDER
W TROY
McKINNEY
THOMAS D
MORAN
Are Pleased to Announce
KEVIN D FINE
Has Joined the Firm as an Associate
Kevin Fine, born in Midland, Texas, March 15, 1967; admitted to bar 1994;
also admitted to practice before the U.S. Court of Appeals, Fifth Circuit;
U.S. District Courts for the Northern, Southern and Eastern Districts
of
Texas.
Preparatory Eductaion, Southeastern Louisiana University B.A. 1990); Legal
Education,
Texas Tech
University
School of
Law O s
1994),
American
Jurisprudence
Award. Member:
National
Association
of
Criminal Defense
Lawyers; Texas Criminal Defense Lawyers Association
(Death
Penalty
Committee);
Harris County Criminal Lawyers
Association (Board of
Directors); State Bar of Texas (Criminal Law Section).
1 • THE DEFENDER
have
much wider
forensic acceptability as
reliable methods for quantifying specific
blood
alcohol levels.
Other
things to look for,
that
should
be
considered, and that may affect the
meaningfulness of an analytical result in each
case include the person's hematocrit level
and
whether
the person
was
given IV
fluids
(lactate ringers) prior to the taking
of
the
sample.
Hematocrit
is one of the levels commonly
measured as part
of
a routine CBC
(complete blood
count). It measures
the
quantity of
solids in a person's blood.
An
elevated hematocrit level would
indicate
a
greater
than
normal
amount of
solids, which
when
removed from the
whole
blood would
reduce
the remaining quantity of
plasma,
and will frequently result in a higher than
normal overstatement
of the
blood alcohol
level
relative
to the whole blood level.
Importantly, a normal
hematocrit
level does
not
indicate that a plasma analytical result
is
equivalent to a whole blood result by the
hematocrit relationship. Rather, an elevated
hematocrit level
indicates
a
greater
than
normal
overstatement.
A sample from a petson who has been given
lactate ringers (an
IV
fluid
containing sodium
lactate)
and
whose
blood
is
subsequently
analyzed by an enzymatic immunoassay (ElA)
(which is the kind
of
analysis commonly
performed in hospitals) may, because
of
the
presence
of the lactate,
result in an
erroneously high blood alcohol result.
This
result occurs because as the enzyme lactate
dehydrogenase converts
the
lactate to
pyruvate, there
is
a secondary reaction where
NAD (nicotinamide adenine dinucleotide)
converts
to
NADH (the
reduced
form of
NAD with the
addition
of high energy
hydrogen, biologically
known
as
Coenzyme
1). The rate of
production
of NADH from
NAD,
however,
is
also
the
process by
which
the
quantity
of alcohol
is
measured in an
ElA
analysis.
Thus,
the additional NADH
that
results from
the
lactate reaction
is not
the
result of the a lcohol - even though it will
be
reported as alcohol in the test result.
Future articles on
blood testing will
concern gas chromatography, a more detailed
examination
ofElA testing, and
other
factors
and considerations in blood sampling , testing,
and
analysis.
FalI 2001
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PPRENDIIN
TEX S
Does it kill the Texas murder statutes?
Y
WINSTON E COCHRAN JR
In
the last issue, Mark Bennett discussed
the use
of
Apprendi
v
New jersey _
U.S.
_ , 120 S.Ct. 2348 , _ L.Ed.2d _ (2000),
in federal cases. While no Texas state appellate
courts have yet applied Apprendi the decision
also could be of great use in Texas courts on
at least three issues : (I) the mitigation issue
in TEX.
CODE
CRIM . PROC. art.
37 .07 1(2)(e)(1); (2) the sudden passion
issue in TEX. PENAl CODE § 19.02(d); and
(3 ) the safe release issue in TEX.
PENAl
CODE
§20.04.
These are issues
on
which
we all should be raising new challenges, based
on Apprendi at every opportuniry. More oars
in the water definitely will help.
A
What the Supreme
Court Did in
pprendi
In Apprendi the Supreme
Court
reviewed
a New Jersey state prosecution where a judge
had increased the maximum punishment for
possession
of
a fire
arm
under a
New
Jersey
statute which
allowed
an increased
punishment
if a defendant acted with a
purpose ro intimidat e an individual or group
of
individuals because
of
race , .. The Court
framed the question
as
follows:
Whether
the
Due Process Clause of the Fourteenth
Amendment require s that a
factual
determination authorizi ng an increase in
the
maximum prison sentence for an offense from
10 ro 20 years be made by a jury on the basis
of proof beyond a reasonable doubt. 120
S.Ct. at 235
Apprendi
drew upon an earlier decision in
jones
v
United States 526 U.S. 227, 119
S.Cr.
12 15 , 14 3 L.Ed.2d 311
(1999),
although jones was an exercise in federal
statutory interpretation. Due process became
part of the
backdrop
for decision in
jones
bec
ause
of
a
principle
of statutory
construction: Given competing staturory
interpretations, courts should prefer the
interpretation that
avoid
s constitutional
problems. Apprendi focused on a footnote in
jones stating that under the Due Process
Clause of the Fifth
Amendment
and the
notice
and
jury trial guarantees
of the
Sixth
Amendment, any fact
(other than prior
conviction)
that
increases the
maximum
penalty for a crime
must
be charged in the
indictment,
submitted to
a jury,
and
proven
Fall 2001
beyond a reasonable doubt. Apprendi 120
S.Cr. at 2355, citingjones 526 U.S. at 243,
n. 6,119
S.Ct. at 1215, n. 6 .
Whilejoneswas
a federal prosecution, and
therefore
was concerned
with Fifth
Amendment due process, Apprendi tOok the
next step of applying the rule from the jones
footnote to Fourteenth Amendment due
process, which applies in state prosecutions.
Apprendi stressed that it was dealing with
constitutional
protections of surpassing
importance .
120
S.Cr. at 2348.
After
a
lengthy histOrical discussion ,
Apprendi
stated:
Other than the fact of a prior conviction,
any fact that increases the penalty for a crim e
beyond the prescribed statutory maximum
must
be
submitted
to a jury,
and
proved
beyond
a reasonable doubt. With that
exception,
we
endorse the
statement of
the
rule set forth in the concurring opinions in
Uones]: [Ilt is unconstitutional for a
legislature to remove from
the
jury the
assessment offacts that increase the prescribed
range of penalties to which a criminal
defendant is exposed . t
is
equally clear that
such facts
must
be established beyond a
reasonable doubt. 526 U.S. at 252-253, 119
S.Cr. 1215 (opinion
of
Stevens, J .); see also
id at 253, 119 S.Ct. 1215 (opinion of Scalia,
J ).
120 S.Cr. at 2363. Thus Apprendi created
three requirements:
inclusion in an
indictment of
the
punishment-enhancing
factOr, submission of the factor
to
a jury, and
the allocation of
proof
beyond a reasonable
doubt to the prosecution . Arguably, the first
requirement was
not
necessary to the decision
in Apprendi
but
it
is
in
the
text of the
oplOlon.
Four dissenters fretted that Apprendi was
effectively overruling Walton v. Arizona 497
U.S.
639
, 110 S.Ct.
3047,111
L.Ed.2d
511
(I990), concerning factors used to support
the
death
penalty. See
Apprendi
120 S.Ct.
at 2387
-2388 (O'Connor,
J., dissenting) .
Justice
Thomas
' concurring opinion
responded that the continuing viability
of
Walton is a
question
for
another
day.
Apprendi 120 S.Ct at 2380 (Thomas,
].,
concurring) .That other day, when
the
thin
ice supporting
Walton
finally melts away, may
be a day
on
which the Texas capital murder
statute
is
before the Court. The dissenters in
Apprendi
also noted the tension
berween
Apprendi and Patterson v. New York 43
U.S. 197,97 S.Ct. 23 19, 53 L.Ed.2d 281
(1977). The
Apprendi
majority really onl
returned
to a
common-sense
reading
o
Mullaney
v
Wilbur 421 U.S. 684, 95 S.C
1881,
44 L.Ed
.
2d
508 (1975), whic
Patterson
had attempted to limit. In shor
Walton
and
Patterson
survive simply becaus
the
facts
of Apprendi
did not require eithe
of them to be overruled in Apprendi itself.
B
pplication
to th
Texas Mitigation Issue
The first place where Apprendi should b
applied in Texas law
is
TEX.
CODE
CRIM
PROC.
ar t
. 37 .071
(2)(e)(I). Under tha
statute, a
jury
is
asked
to
decide:
Whether,
taking into consideration all o
the
evidence, including the circumstances o
the offense, the defendant's character an
background , and the personal
mora
culpability of the defendant, there is
sufficient mitigating circum s tance o
circumstances
to warrant that
a
sent
ence
life imprisonment
rather
than a
deat
sentence be imposed .
f
ten
or
more
jurors answer in
th
affirmative, life imprisonment
is
imposed
TEX. CODE
CRIM
. PROC. ar
37 .071 (2)(f)(2). If the jurors stalemate an
cannot
agree, life imprisonment
is
impose
TE X . CODE CRIM. PROC. ar
37 .071 (2)(g). Only if
all
rwelve jurors answ
in the negative may
the
death penalty b
imposed. Article 37 .071 (2)(0(2). Thu
subsection (2)(e)(I) plainly fits the mold
an issue on which a factual determinatio
raises the
maximum
punishment
that
available. The factual issue
is
a comparativ
one,
but that does
not alter its factu
character.
The
Court
of
Criminal Appeals has he
that there
is
no burden of
proof
with respe
to the mitigation issue, at least on the
face
the statute.
Lawton
v
State
913 S.W.2d 54
557
(Tex.
Crim.
App. 1995). In
Lawton
th
Court
recognized
that the
burden
implicitly placed upon appellant
to
produ
and
persuade the jury
that
circumstances ex
that mitigate against the imposition of dea
in his case . Id.
The
Court went on to sta
that it was unaware
of
any constitution
requirement
that
the
burden
of pro
continued on page 2
THE
DEFENDER·
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APPRENDI
CONTINUED)
... cont inued rom page
11
regarding mitigating evidence
be
placed on
either party. and ro the extent that the burden
is
on
appellant.
we
note that
it
is
not
unconstitutional
ro
so place the burden. The
authority cited for that conclusion was
Walton
v
Arizona If Apprendi trumps Walton. then
it follows that lAwton and its progeny should
fall as well.
The Courr of
Criminal Appeals has not
yet addressed the effect of
Apprendi on
the
mitigation issue. At least two Housron
lawyers are raising the issue on direct appeal
in capiral murder cases tried beforeApprendi
was decided. which is permissible with
respect ro charge error even without a trial
objecrion.Almanza
v
State.
686
S.
W2d
157
(T
e
x. Crim.
App. 1984). Other Housron
anorneys raised Apprendi prior
ro
erial in a
recent capital
murder
case. In the wake of
Apprendi. counsel in a death-penalty case
should not
only be
asking for a jury
instruction based
on
Apprendi. but should
also be asking ro question potenrial jurors
on
the marrer as well.
Apprendi
should be
considered pan of the law applicable ro the
case upon which the defense is enrirled ro
rely underTEX. CODE CRIM. PROC. an .
35.16(e)(2). This is especially handy now that
the
Coun of
Criminal Appeals has resrored
a meaningful harm review for the denial of
defense challenges for cause. See Johnson
v
State. 43 S.W 3d I . (Tex. Crim . App. 2001) .
What about post-conviction writ
applications in
capital
murder cases?
Apprendi
seems ro fit the new rule category
under Teague v lAne. 489 U.S. 288. 109
S.Cr. 1060. 103 L.Ed.2d 334 (1989).
but
it
is possible that it could fit within the Teague
exception
for bedrock procedural
principles. Teague
489
U.S. at 311.109
S.Ct
. at 1076.
The
limitation in
28
U.s.c.
§2254 poses a similar problem.
On
the other
hand. an issue which faces a new rule
problem on the federal side is also the kind
of
issue most likely ro be accepted in a second
application ro the
Courr
ofCriminal Appeals
under TEX.
CODE
CRIM. PROC. an.
11.071.
C
The Sitting Duc k
ection 19.02(d)
Apprendi
also alters the landscape for the
defense of plain vanilla murder.
After
12
•
THE DEFENDER
Apprendi.
a statute that explicirly imposes a
burden of proof on the defense as ro a factual
marrer that determines
the
maximum
punishmenr
available would
have ro be
unconstirutional. Texas has such a sutute in
TEX. PENAL CODE §19.02(d):
At the punishment stage of a trial. the
defendanr may raise the issue as ro whether
he caused the death under the immediate
influence
of
sudden passion arising from an
adequate cause. If the defendanr proves the
issue in t he affirmative by a preponderance
of he evidence. the offense is a felony of the
second degree.
The
way
Section
19.02(d) is worded.
it
appears ro refer ro a reduction of the
maximum
rather
than
an increase.
but that
semanric distinction will not save the starute.
Whether
the finding
of
some fact reduces
th
e maximum punishment from life ro
twenty years. or whether the failure ro find
that fact increases the maximum punishmenr
from twenty years to life. the difference in
terms of years is the same.
Which maximum
penalty applies ultimately depends on
whether
the answer is yes
or
no
to
a
specific
facrual
question. Thus. secrion
19.02(d)
is
unconstitutional in light of
Apprendi. for (WO reasons.
First. Apprendi requires a jury finding with
respect ro a fact that leads ro a higher
maximum. Yet . in Texas. the
sudden
passion
adequate cause factual issue probably will n ot
be submirred ro the jury. and hence the jury
will not consider it. unless a
de f
endanr makes
an
effon
ro raise the issue.
Th i
s violates the
jury
trial clause of the Sixth Amendmenr.
applicable through the
Fourteenth
Amendmenr.
Second. pprendi
requires that
the
prosecution
carry
the burden of
proof
beyond a reasonable
doubr. This
statute does
not permit a
jury
finding that will cap the
maximum at
twenty ye a rs unless
the
de fendanr proves the issue in the affirmative
by a
preponderance
of the evidence. The
statu te's allocation of the burden of proof is
a due process violation.
A
possible
third issue. as previously
suggested. is the indictmenr itself.
There
is
language in Apprendi. though not a holding.
that might
suppOrt an argumenr
that
a
murder indictm
ent now needs ro negate
either sudden passion or adequate cause. or
both. Since an indictmenr
is
still valid for
jurisdictional purposes even
if
it omits an
element.
the
main function
of a motion ro
quash would
be
notice.
In
most
murder
cases. formal notice
that
the State will seek
more than twenty years probably does not
tell counsel anyrhing new. A pretrial
motion
should be filed. but
it
should arrack
the
statute
under
Apprendi rather than merely
asking that the indictmenr include
negation
of sudden passion and adequate cause.
Several assaults
on
Section 19.02(d). using
Apprendi. have been made in Harris
County
courrs by various lawyers.
and
the starute has
been arracked in a Galvesron County murder
appeal, but no
judge
has yet relied on
pprendi
and
found
Section
19 .
02(d)
uncon
stitutional as wrirren. Nevenheless .
every arrorney
wi
th a mu rder case should be
filing an
Apprendi
motion.
Sooner
or later.
someone will have the
right
set
of
facts ro
make the rough decision palatable. and a
rising tide could lift all the boats .
D. Safe Release
Secrion
(d)
of TEX. PENAL CODE
20.04. the aggravated kidnapping statute.
provides:
At the punishment stage of a trial. the
defendanr may raise the issue as ro whether
he volunrarily released the victim in a
sa f
e
place. If the
defendanr
proves the issue in
the affirmative by a preponderance of rhe
evidence. the offense is a felony of the second
degree.
This
provision often
is
called the safe
release issue for short. as in Buchanan
v
State. 91 1 S.W.2d 1 1 (Tex. Crim.
App.
1995).
In Buchanan and in Williams
v
State. 851
S.W
.2d 282 (Tex.
Crim.
App. 1993). the
Court
of
Criminal
Appeals
held
that
subsection (d) actually created a
shifting
burden. similar ro the situation with regard
ro defenses:
In Williams . we held that . the
accused has the threshold
burden
of
production
as
to whether he voluntarily
released the
compl
a
inanr
alive and in a safe
place. i.e .
if
evidence from
any
source does
raise the issue the burden of production
is
mer. Thereafter. the burden of persuasion
shifts to the State. which must convince the
continued on page 14
Fall 2001
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APPRENDI
CONTINUED)
... continued
tom
page 12
factfinder that the place where the accused
left the complainant was not safe; and the
factfinder must find the place unsafe to a
level
of
confidence beyond
a reaso
nable
doubt for the felony punishment level
to
be
for a first degree felon y."
Buchanan,
supra
at 13-14 . That's good,
but not good enough after
Apprendi.
The
State now has the burden of ptoofbeyond a
FT
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HO URS C
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DiscOIICI
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Judges
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14·
THE
DEFENDER
reasonable
doubt
on
the "safe release" issue
even if the defendant produces no evidence
on the issue.
E.
Other
possibilities
There could be many additional uses of
Apprendi in other contexts. One interesting
qu e stio n is whether an increase in a
minimum punishment,
such as the "open
container enhancement
for
OWl.
is
Judicial Happenings
Congratulations
To
Judge Mark Atkinson, who has
been elected Chair
of
the
Judicial
Section of the State Bar of Texas.
Approximately 1,500 active and
retired judges comprise the State
Bar s Judicial Section. Atkinson
was
also
elected
to
head
the
Texas
Center for the Judiciary, the
organization in charge
of
the
state s judicial education. Judge
Atkinson
has
served
as
the judge
of
Harris County
Criminal
Court
at
Law
No. 13 since January 1
1987.
He
graduated
from
South
Texas College of
Law
and earned
his undergraduate degree
from
the University ofTexas at Austin.
governed by Apprendi. Logically, it should
be .
The only thing
Apprendi
explicitly
excluded from its rule was the fact of a
prior
conviction. Keep in
mind that
the Harris
County
charge bank
and
rhe various
manuals on jury charges were developed
before Apprendi. In all cases, couns el should
keep an eye our for possible charge
error
in
lighr of Apprendi.
Finally, yo u will
nore
when
you
read
Apprendi
thar
Justice Scalia and Justice
Thomas not
only were part of the majority,
but
a
lso
wrote strong concurring opinions.
It is a rare pleasure for defense counsel to be
able to say
that
Justice Scalia
and
Justice
Thomas both say rhe defense is right and
the prosecu tor is wrong.
Presidenes Message
...continuedftom page 2
eac h
month.
Participants receive 1. 5 hours
of free
lE
credit. In addition, Troy,
Cynthia
, and
T put together
the
Second
Annual
Coping with the
Pracrice of law
Seminar, which
is
scheduled for November
16
, . This symposium began last year in
response to the tragic loss of our friend and
colleague, Donald Davis. Once again, this
program will be
free
and offers atrendees
3.75
hours of lE credit.
Special rhanks to the officers and the board
ofdirectors for their suppOrt and th e valuable
contributions they mak e at board meN; ngs,
Some deserving special recognition for their
daily
effom on
behalf of HC
ClA
include
Emily
Munoz,
Paul Sf.
John,
Mark Benne[[,
and
Grant Scheiner. My hope
is
that the
work burden of rhis
organization,
currently
shouldered by a relatively small group of
members, will be more evenly shared by
other members coming forward and
volunteering
their time.
Th i
s
would
greatly
aid the association in its goal of increas
ing
our presence and imp acr in the Harris
Co unty C riminal Justice Sysrem . Co ntact
any memb er to become more
involved
,
HCClA should always strive to make a
po sitive difference
in
the co
urthouse
environment and in rhe community at large,
I look forward
to
seei ng everyone at the
an nual holiday party in December. If you
attended last year, you know rha( (his is a
big event that you should not miss
Fall
2001
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SUCCEEDING ON PROB TION
(And proving it )
BY
CYNTHI
HENLEY
How many times have your clients sworn
to you
rhar
rhe
probation departmenr's records
are
wrong - rhar they did not fail
to
appear
for particular appoinrments? Have they
provided copies of receiprs showing rhar rhey
paid money on
rhe
day that they are alleged
to
have
failed to appear) (Maybe it was a day
the client
's
officer was out sick and rhe
substitute meant
to
get the file Out later
to
note
the
appearance and insert the paperwork
but it just never happened and the paperwork
became lost.)
Ever have
a client tell you rhey
had done more community service hours rhan
had been credited? Did
he
bring his mom
who drove him to the location and picked him
up every time and did she
tell
show you where
she had been docked pay from work
for
raking
off time to take J r. to do the community service
one a month?
We know that many errors occur in record
keeping.
You
can help your client avoid a
revocarion or adjudication with a few tips on
probation record keeping.
I
always advise
clients who
receive
probation
to immediarely obtain a spiral norebook,
which is dedicated strictly to probarion
maners , and rake rhe following sreps:
1.
Write the name, address, and telephone
number
of
your probation officer in the
norebook. If the officer changes, make a note
of it.
2. Make a copy of all documents wh ich relate
to probation, including the sheets of rerms and
conditions and any amendments; referral sheets
to community service, rrearment, etc.; money
orders given
to
the department for payments
of fees and restitution; receiprs from the
department for payments made; paycheck
stubs (especially if paying high restitution
amounts), erc. The originals should be stapled
into the notebook on the date
of
receipt. The
copies should be kept in a separate file in rhe
event the notebook is lost.
3.
Every
time you meer with anyone
for
any
reason related
to
your probarion, wrire down
who (name); what probarion meeting,
communiry service work done; trearment
provider, etc. ), when (dare and time), where
(address), why (if there is no documentarion ,
wrire down who told you to be ar rhis place) ,
and how, if rhere is a witness such
as
a spouse
or parent who went with you or provided
rransportarion .
Fall
2001
4. All the information thar is included in
the notebook must be stapled or written in on
the day that
it
occurs. The srapled items should
not be removed and re-srapled . The notebook
musr be a spiral , not a binder or folder,
to
enable
you to
demonstrate time sequence.
You
will
nor be able
to
add information in the
future.
f
you report to community service and
wtite in detailed information on day one, rhen
write relevant information about day two, and
continue this practice, when
an
issue arises in
month fifteen or year eighr
about
the
community service that was not credited for
day one, the notebook
will
serve
as
persuasive
evidence substantiating your assertion that
you participated in communit), service work
that
day.
The notebook may also
be
admissible
as a hearsay exception under Rule 803 (5), as a
recorded recollection, or under Rule 803 (6),
as
a record
of
regularly conducted activity.
Regardless of irs admissibility, it
will
certainly
refresh a client's memory abou t exactly what
s/he did.
Unrelated to
rhe
notebook, I
tell my
clients
that there is
no
sick me or sick child excuse.
If the probationer is
sick
but not in the hospital,
take a bag to barf in bur report
as
scheduled.
If the probationer's child is sick and requires
care, find someone ro watch the child but
report
as
scheduled. Technically, the probation
officers have no
authority
to permit re
sc
heduling and if they forget
to
record that they
gave permission for re-scheduling and an
issue
arises in the future, which causes them to
review the records, guess what gets reported to
rhe
court as a failure
to
appear.
JUSt
report:
and if they forget the barf bag, borrow the
officer's trash can.
Some clients tell me that probation officers
tell them that it is okay to drink a beer or two
bur no
gerring drunk or doing drugs. Wrong.
t is not okay to drink on the majority, if not
all,
of the probations. Is a beer worth going
to
prison?
Finally, for some clients the financial
inability to
pay
restirurion is an issue ftom rhe
beginning
of
the probarion. Probationers who
anticipate difficulty in paying their probation
obligations should keep a monthly balance
sheer recording income and expenditures.
Expenses such
as
dry cleaning, smaller car
maintenance or repairs, children's school
lunches, clothing, etc., are often forgorren
months in the furure, especially if they
are
paid
in cash. If the probationer is making less tha
full payments on restitution and/or fees, h
may
be required
to
explain why in the future
The bottom line is that probationers nee
to
be aware of the need
to keep
independen
records and not rely on the record keeping o
the probation department. Further, most o
the courts are at an all-time high for n
tolerance of violations and the client needs r
decide from day one where his/her prioririe
are. The key to success is
to
do what they
ar
told, when they
are
told, how they are told
and to record thar th ey
have
done
it.
A probation officer can be a probationer
best friend or worst enemy. If a probatione
makes the probation officer's job easy, th
probation officer
is
likely to try and mak e
li
easy
for
the probationer.
On
the other hand
if a probationer makes a probation officer's jo
difficulr, the probarion officer also has th
ability to make the probarioner's life hell. Th
choice of
how
a probationer is created by
h
probation officer is frequently made by
rh
choices the probationer makes about how
seriously
he
will rake his probation obi igation
and commirments.
M RKY NIS
Former
briefing
attorney with
the
14th Court of Appeals
Announces
the
opening
of his law practice
focusing on
criminal
appeals
1628 SuI
Ross
Houston,
Texas
77006
ph (713) 526-6282
fax: (281) 966-1626
e mail:
THE
DEFENDER • 1
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HCCLAANNUAL MEETING
P
tchen,
JerI)
a
f the year.
·d Mitch
aOl
AAttorney 0
Da
v
HCCl
·d
Mit
chaOl
,
Da
v
. Vice president ike
fnax,
CynthIa Henley,
C nty
supervisor.
Harris
County ommu .
500 HCCLA scholarshIp.
6·
THE
DEFENDER
Wayne
Hill HCClA
President Sen t
Rod l ' a or
ney IS, Sen.
Ellis
Torch
of
Liberty A d
war
Richard Troy MCKinney.
Thanks to Richard for 1999-2000 Presidency.
Fall 2001
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NNU L
M TING CONTINUED)
Fall 2001
Gerry Goldstein,
Randall
Ka ,m
en
er
Goldstein,
2000
Grant Schemer. G ry k
Keynote
Spea
er
dent-Elect
M Kinney pre
s
McKinney
W.
TroY F ~ a n k o f f W. ~ r y Member.
Richard
0 outstandlrlg
1999 200
THE EFEN ER· 1
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HOW TO SEAL
JUVENILE RE ORDS
Y
EMILY
UNOl
Under certain c i r c u m ~ t a n c e s a juvenile
respondent whose case has been disposed of
is eligible to have his files
and
records sealed
pursuant to Tex. Fam. Code, Section 58.
00 3
.
The
applicable
statute
reads in
pertinent
part:
" a) Except as provided by Subsections (b)
and
(c),
on
the application of a person
who
has
been
found
t ·
have
engaged
in
deJinquen t
conduct or conduct
indicating a
need for supervision,
or
a person taken
into
custody to
determine whether
the person
engaged in
delinquent conduct or conduct
indicating a need for supervision, on the
juvenile court's own motion
or
on receipt of
a ce
rtification
from
the Department of
Public Safety
of
the State of Texas
that
the
records of a person are eligible for sealing
under
this section, the
court
shall order the
sealing of the records
in
the case
if
the court
finds
that
:
(1) two years have elapsed since final
discharge
of
the person or since the last
official action in the person's case
if
there
was no adjudication;
and
(2) since the time specified in Subdivision
(1), the person has
not
been convicted of a
felon y
or
a
misdemeanor
involving moral
turpitude or
found to have
engaged
in
delinquent conduct
or
conduct
indicating a
need for supervision
and
no proceeding
is
pending seeking conviction
or
adjudication.
(b) A COurt may
not
order the sealing of
the records of a person who has received a
determ
i
nate sen tenc
e
for engagi ng in
delinquent condu
ct
that
violated a penal law
listed in
Section 53
.
045 or engaging
in
habitual
felony
conduct
as
described
by
Section
51.131.
c) Subject to Subsection (b), a
court
may
order the
sealing of records
concerning
a
person
adjudi
cated
as
having engaged in
delinquent conduct that violated a penal law
of the grade of felony
only if:
(1) the person
is
21 years
of
age
or
older;
(2) the person was
not
transferred
by
a
juvenile
coun under
Section
54.02
to
a
criminal
court
for prosecution;
(3)
the
records have not been used
as
evidence
in
the punishment phase
of
a
criminal proceeding under
Se
ction 3 a),
Article
37
.
07, Code
of
Criminal
Procedure;
and
(4) the person has
not
been convicted of a
penal law of
the grade
of felony after
becoming
age 17.
d) The
court may grant the relief
authorized in Subsection
a)
at any time after
final discharge of the person
or
after the last
official
action
in the case
if
there was
no
adjudication.
If
the child
is
referred to the
juvenile
court
for
conduct constituting
any
offense
and
at the adjudication hearing the
child
is
found to be not guilty of each offense
alleged, the court shall immediately order the
sealing
of alJ
files
and
records relating to the
case.
Sealing the records
The
following a
re
my
suggestions
of
how
to seal a juvenile's records. I have successfully
used this procedure in
the
313th
and 314th
Juvenile
Courts
:
I . Filing: File your original application in
the
courtroom
with the
court
clerk.
There is
no filing fee.
Stamp as many
copies as there
are parties
and
a few extras "just in case. "
Obtain a
hearing
date
from the
court
coordinator or
the judge. The date
must
be
sufficiently in the future to permit y
ou
to
send out notice and obtain confirmation of
the parties' receipt
of
the notice.
Forensic Science ssociates
CriminaUCivil Con sultinG • Crime Scene Reconstruction • Firearmsffool Mark Exams
Complete Laboratory Analysis • Lab Accreditation
Consulting·
Forens
ic
Training Classes
FS
Edward
E
Hueske
541
Halifax Lane Coppell,
Texas
75019
Phone:
(972) 304-8668 • Fax: (972) 393-3612
www.forensic-xprt.com
18·
THE DEFENDER
2.
Notice: Send out the file-stamped
copies of y
our
application along with
the
order setting the hearing date to every agency
you have listed on your application .
These
must
be sent certified mail ,
return
receipt
requested, to
permit
you to prove service at
the hearing.
3. Proof
of
Service: Keep the
returned
"green cards" in a safe place in
your
file.
These cards will be
turned
into the
court
on
the
hearing
date
and
become
part
of the
court'S file.
Make
sure
and
keep a
copy
for
your file.
4 .
At the hearing you must:
a. Bring all the green cards and provide
them as proof of service.
b. Bring a proposed order sealing records
so that
the
judge may sign it.
c. Have the judge sign the order.
The "hearing"
is
very informal. It consists
of conferring with the prosecutor to make
sure
they
are in
agreement.
You
and the
prosecutor then approach the bench and
inform the
judge
that all
parries were
notified.
You
then
hand
the
judge your
proposed order for signature.
d.
Obtain enough
certified copies of the
order to send one to each agency you
made
a party to the application.
5.
After the
hearing: Send a certified
copy
of the
order
to each agency.
These must
also
be
sent certified mail,
return receipt
requested.
This
order directs those agencies
to send the juvenile's records directly to the
court.
6
In a couple
of
weeks: You should receive
letters from each involved agency indicating
their compliance with
the Court
's order. You
should
call
the court
to
ensure that the
agencies are complying. If n·
ot
, go down to
court
with the green cards to show that the
non-complying
agency
re
ceived notice and
that
they
are failing to comply.
7.
If
you have any
que
stions, please feel
free to call Emily Munoz at
713-227
-2244.
Good
luck
Below
s
a
sample pplication
for ealing Records
1
I Special thanks to Wendell
Odom
and
Molly
Odom
for provid ing
me
with a sample
Application for
Sealing
o ecords I use their
sample application as a templat e each time I
attempt
to seal a juvenile's files
and
records.
Fall
2001
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JUVENILE RECORDS
(CONTINUED)
Ci\lISr. /\0.
_____
IN
THF.
MAITER or IN
Tin:
OISTRK
T
CO URT
HARRIS COUNTY. TlXAS
J ,,
E nrVF.N1I.£
JI 4
1H
J lIOiClA L OlSTRKT
~ ~ L l C T I O N rOR SlALIN li RECORDS
TO TI-tE I- ONORABI.E .JlIOCr. o r SAIO COURT:
t - : JI I
Vl:]IiI
ILE. l · I l l i l
) ~ r .
PUrsUJJ11 10 f
XilS ~ 3 n l l l
Code 9 58.UO.\ applies for en ordrr
: o < a l i n ~
aJllik
'. 4 1 ~ J r ~ L o f ( h in
t
h..-..: . d ~ ' . . . . . . : r i b l . J bdov, '
I.
Peillioner
cllrrenl l)
i " ' ;iT 1000
Anyslre":I.
H U l l
In
l - 1 i 1 r r l
( o u n l ~ . Tcxa.
On Fehruary '- ::'0:)0 :<;Ot . . < [liken inlO t u : - ; o d ~ and charged wilh
l o n of
marijllJntL nn
Alln l 5, ~ 1 l ( J ( ) . l h ("llUrl ( l P P ' 0 ~ l
,lfId
siiln\ d:.. O('fcrrt'd r o s c c u l i o n Ag.rcctnenl. P('lllioner
~ 1 J C l ' ,
. .
: ; f l l l l y n'm
rklrtl
luld"IT
nl
.
i I::..ch
l'Ondil;OIl
o . . I f ~ ; J ~ I t ' ~ ' ~ n l
while
u1llkr
sU
Xr.i
slon of her
propall{)n
LourJIO ,lIor rhl're ha.-.; he n IlI.l adjl ldietlion
hCOlfinf On
April 5. 2 0 ( J ) , l h i ~
11onorable
CO
liri
Hpprm
cd t h ~ Non-Sut
has rea.wn 10 tJclkw thai The fo lklwing oflicillis and 3J,cnc i
c',i
hold
Ii
Ie:"
:
md
rc,;,")rds
R
l
alin : 10
lhc abt}\c·d. ii,::ribotd
illoJcnl'
I. 1 ;uTI:o.( ·
ll lJn
t) I ~ . t r
' : 1 <\
lI
mllq - )O
fli :l:
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..
b.
7.
JU\l'nllc D I \ ' I
1
20)
F r o n ~ 1 1 n
Huuston. )
l 'U , 77(}o2
Harm ( c lIn l ) l)i lml cr"r l
11cll
rr
.lnliln
j-klu ,slon.
1
ex-as
r
; ) f T ~
("
oullty
ramll
)
jtH'en iit
Oi
sl
ri..:
1
('o
url N
l
).
J
I
)
( I ~ r ~
l l i lhe
CU
lln
Han i .. JU"<:lIIk Pr"h,l lil'n [h:plIlmcnl
Uc(crrc.J Pro';Cculion
' J ' a ) l l
3540 \V e$ [)"lIas
Hnus[(In.lcx /l.s 7701 9
lIousl
on
P o ~ '
J A : p a n m ~ ' l l i
. . I ~
lllliJ 'lI\O Il. I X
77(10:
l liUTis
County SherHl s Ollicl'
I
"lUI Franklin
1 :1( lk p
;lTl
lnl n l
(,I' Puhli(; Sokr
y
P (J. 60:\ - I ( )
rA
I ISF:NO, _ _ _ _
IN TIlE \1A TER
or
IN THE DIHRICT COURT
HARRJS CO , l
i'lTY
.
TEXAS
J AI\,£ .n.f\
'ENll,.f
J14
TII
JUDI
C IAL ()1STAI<T
ORDER SEALING FILES AND RECORDS
On
11m
II'K: da y
CI
UTl e 10 Pc heard
PCl
ilioT)Cro.s I\ppt ica lioll for Scollng
F i l c
and Records
It appears 10 lh..: court lhal Ihi
:)
p f ' ) j ~ ) 1 1 should be gronl cd .
11 IS I"HE REFORE ORDERE D hO
Th
e fl i t' :)
il
nd
ft'(;urJs
In Ih
l'..:asc:: of JA
NE JlJVEN ILE. l'llnC1:mint (hI. m Jl l a fo r
\\h i th ~ h C " \>ta5 r laced
[lllh\ l:>t:f..:rrcrl
~ C U l l ( l n Prog,r<lln on Apn
l : ()Ou
. and
. hit-h .... a.,. n(ln-SUi ll"(l o n April -'. "20(1 1. sha ll be <;cakd
hll 'h o r u f l i ~ i a
li"'I",J
bd ow .. lIall :ol nJ I
t)
Ihi, nlur t ,I II lik:"i and ~ ' o , , ; o r
nrJcrcd '>( :lk (l
E,a..:h
il ;.(; tK:)'
or
otTlcial
hSh:d tll: lo :,
hil ll ddt'll:
frolll ll" n
.O.")m
a ll iude)(
r c f c l c
n c ~ : o .
1(1
Ilk'
file:.
anJ reco n:t ii ordereJ sea led
4.
L
id
, ~ l ' l l c ,
or
L l n i c i a l l l ~ l d
belo s hall l<ply
upon inquiry
lhal 110
rc.:ord : x i s
s.
Fall
2001
. j
lh
rcspl C
tl
o Petiliorli:· r.
Tll1: clelk
nfthc
court Shilll 'iicnd [l et:rtifi cd (If thi s order 10
lho:
following:
I. Harm Co unl y Oistricl t
\llorncy
os Olli ce
JU\l'nik D,
.
ision
2.
1"20) rrallkllfl
lJolI:<;lon.
TC'( I$;
770112
County 0ls1ri('1 CierI-.
l:WI franldil1
~ l u n . T
,,-as
170m
Han
is
C(llinly Famil\' Juvenile DISlricl Court No.
J
I";
Cle
rk
(If rllc Court
1115
C , \ I I ~ r e ~ s
HouSlOn.
n
ls
77002
4. Ila
ni,;
Co unr y Juvenile Prooo i on
Dl,p..
H1menr
Ddi.'rred p T ( ' l c " , : u l i Program
3540 \\ 'l':.1
HousrOll. T . . : ~ a 770 1Q
5. H O l l ~ l n n Po lice
Dcparrmcnl
J': OO
lra vis
Houslon. TX 77002
6. Clll tnl)' Shc
ril"f -s
OIl'll: :
1)0 1 Franklin
Houston. Tex as 77002
.. uslln, T(:I:\JS 78772
J.
Pur.;(IOMIIIO
TO:
li:lS F a m j J ~ Code
§
58.00J(J). P t : l l l a ) ~ ' r is r u l , k x l l u M\ <:
anJ
record s [;onc
c:
rninB lhe
: l ~
. ~ a l e d hecause Since Aflril 5.
l OCli P ~ · t i l i o n c r
h . l ~ not;
Ca l O
ttO
con\ 'lcled
of
a fel on), or :t misdeme:mor In\'ol" ing room lu rpilude;
(b)
B\Cn
found 10 havc
cnlYtScd
in delinquent COf'llJUC I
orcooduclindic31M
Q i MCd
fur
s.upt"n;islon: or
(e)
(h.-conH: Inc s u b , ( . ~ , of a pendmg proce.:.-ding ~ " ' t ' ' ' ' m g (, lIwiction or
adJud icalion.
WHEREPORE. Ptillion..::r pra} s the coun gr.ln
llhl
)
a.p
plio.::alloo and:
1. Sellnis m ~ l I c r fOJ
h
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HNEIDER & Md.:l\ 'NE'l. P C
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TIlE: MATIER or IN
THE
DISTRJCT COURT
HARRJ \ ( ·OllNT\'. TEX.AS
.114TH
Jl
·
mC I
AL.
DISTRI
CT
A,'FIJ)AVIT OF CHILO
BEfOR.E ME. lhc- undersigneJ a U l h o r l 1 on J 3 ~ p . : r ~ o n a l l ~ appeared JANE
JU
VENILE,
who afler I x i n ~ duly .,.\.tto m slllIed:
I am
rI
le
cbild
,no
is ,he SU
tlil'Cl
of the' n b o w n L l m ~ r e d cause.
loo
n.' rl-ad lhe A p p l l ~ l l l i o n
for s.,·n l ing Rc..:ords
and
\>IcaT
1J\a'
:\UalJegwions
of
faci contained hertin Ink' Ill\d ..:one .: .
Affiant
SU
BSCRIBED /
IoND SWORN TO
B(;FO
RE Yt
E
Oll lnt _ d3
)
ot .
2001
7.
Te"as Departrm;111 of
Public
S < l f e ~
P.O. Oox '087
Austin.
~ X i l i 78772
NO lal ' PubhC'
S ' : l h ; ~ of T o.: ..;as
Signed Ihis ,h.;, _
a
)"
of______
2001.
JUDGE
PRE SI
DI
NG
CAUSE NO. _
_ _
IN
THE
M TIEROr IN THE DISTRICT CO l 'RT
HARRIS COUNTY, TEXAS
JANEJ, tvENllE
ORDERSETfING H["RlNG
DATE
IT IS
ORD EREU
that the
ht"
urin@on the Appli(,Rlion fOI S C 3 1 i n ~ Records is here-hy SoeT ror
_n m p.m, on tilt' _ day of _ _ . 200 1. in the courtroom
of
lhc 31-1
110
DI :o.I O..:1 ('our .
J u d ~ e
Pl\;S
idin( ,
THE
DEFENDER
•
19
8/11/2019 2001 Fall Defender
http://slidepdf.com/reader/full/2001-fall-defender 22/24
WINNING
WARRIORS
Tribute to the Warrior o the Quarter Danny Easterling
BY CYNTHIA
IkNUY
Danny served
as
rhe
H ~ C L
President in
1999-2000 and worked diligently in matters
regarding the courthouse. He has continued
to
serve rhe organization and rhe defense bar
with his efforts on committees and projects
sponsored by HCCLA.
Danny has also continued his hard work
in rhe courtroom. He succeeded in·a-bench
trial in
the
315'b by ·
providing enough
SODDI
(some
other dude done it)
information rhat Judge Kent Ellis found
Danny's client not guilry of assault (bottle
rocket to the face of the complainant.)
Danny tried a
OWl
(combination drugs
and
alcohol)
and Carrying
A Licensed
Handgun While Intoxicated in
CCCL
# 9.
Client s
doctor
said
client
had natural
nystagmus
so
Danny had Officer e . D. Allen
(a
ORE)
give
him the
HGN in
court.
Luckily, he agreed
with
the
good
doc's
conclusion. The jury acquitted
on
borh cases
and Judge Wilkerson allowed the client to
leave rhe courthouse wirh his gun.
Recently in project court, Danny defended
a juvenile certified
as
an adult in a car jacking
where his client was the drivet while the car's
owner was raped in the back seat by the co
defendant. Danny got a not guilry on the
aggravated sexual assault
and
10 years
probation
on
the aggravated robbery.
In addition, Danny, with assistance from
Casey Kiernan, represented a man charged
wirh capital murder. The client and his cohort
had intended
to rob a drug dealer. However,
they went
to
rhe wrong apartment and ended
up killing an innocent person. Danny and
Casey were able to garher heartbreaking
evidence of rhe extreme physical and mental
abuse their client had suffered at rhe hands
of his parents. The jury rejected rhe State's
ry
for rhe dearh sentence and assessed a life
sentence.
Danny has also been successful in keeping
felony cases from going forward .
Client
charged in the
262
Dd
with possession of
cocaine in rhe glove box
of
a car rhe client
did nor own.
n
grand jury package, Danny
provided an affidavit from the client and
summary of rhe law on uaffirmative links."
Result? No bill And in rhe 313'" his client
was
charged with aggravated sexual assault
of a child. After going through 3
ADAs
20 •
THE
DEFENDER
Danny
was finally able
to
convince rhe
4'h to
dismiss
by pointing
out
the many
inconsistencies and lack
of
medical evidence.
HCCLA is
proud of
our
former president,
Danny
Easterling, and congratulates him
on
his recent successes.
other warriors have
lso ac hieved suc c ess on
behaH
o
their dients
Following
five
not guilry jury verdicts in a
row mentioned in a previous o c k ~ t
Call
David Milcham has continued his success
wirh
five
more -
OWl
in CCCL # 9, assault
in
CCCL #
8, deadly conduct
in CCCL #
15, and two co-defendants in burglary
of
a
coin operated machine in
CCCL
#
I. His
successes and hard work on behalfofcit.izens
accused prompted HCCLA to honor him
as
their Anorney of rhe
Year.
Congratulations
David, and thank you for your hard work
and dedication.
David Cunningham
won a
motion to
suppress evidence in the 174'h in front of
Judge Jon Hughes
in
a drug case.
David Kiana represented a man charged
with assault on
a public
servant and
arrempted
sexual assault, same
incident,
where client attacked a jail guard at 61
Reisner after
she
got off
work
.
Judge
instructed on lesser Class A assault because
guard
was off
work. Jury found guilry
of
assault
but
not guilry of anempted sexual
assault.
Randy McDonald and George Murphy
prevailed in obtaining a life sentence where
the State soughr dearh in the 337" District
Coun.
Michael
Turner
has been kicking
butt
in
Chambers
Counry. He
got
a
218
pound
marijuana case dismissed based
on
a bad
"traffic" stop, and in a second Chambers
Counry
case. an
18
pound marijuana charge
was dismissed
as
rhe jury
was
being seated.
(Cops held
dient
for 40 minutes
at
scene of
rhe traffic stop waiting for a drug dog.
The
State had already learned that Mike knew
what he was doing )
Daina O Kane
put our the fire on an arson
case in the 262
nd
with a "nor guilty" verdict.
Daina also had a c1iem charged with failure
to comply wirh
sex
offender registration laws.
Client was originally offered 25 years TOe.
(He was 15 years into 35-year sentences on
2 agg.
sex
assaults on children; paroled in
1999).
On
2
nd
trial date, client accepted
sweerheart
deal-
6 monrhs state jail (where
he had 9 monrhs credit.)
Mark
Bennen
gets to boast of one
of
rhe
few appellate wins occurring these days.
He
tried (and obviously lost) a discharge
of
a
firearm wirhin
ory
limirs case. He appealed
(pro bono ) and won. And this time rhe
COA
did not hide a defense win in an unpublished
opinion - read it at
Garza
v.
State. #
01-00-
922-CR. Congratulations
J.e. Castillo's client walked away wirh a
not guilry verdict in a jury trial in
CCCL #
14
where rhe
cI
ient
was
charged wirh evading
detention. J.e. raised
doubt
in rhe jurors'
minds about the reasonable suspicion
of
rhe
officer to chase the client
on
foot.
J J Paul rried a case ro Judge Janice
Law
in
which the State had charged a combi nation
OWLS and a
MRP
based on the DWLS.
Issue was "mistake oflaw," because the term
of rhe suspension had expired. Judge Law
found the client NG
(but
revoked
the
probation based
on
technicals.) He also got
a big
uNG
in
CCCL #
14
on
a
OWl
.17
In a
county court
in Ft.
Bend.
Troy
McKinney taught an officer the proper way
to administer field sobriery tests - judge
agreed the cop did not understand the "how
to's" before that date and kept
out
the video
and testimony
regarding
the
tests. Troy
convinced the jury
that the
prosecutor's
evidence was definitel.y lacking
and
they
returned a
not-guilty
verdict. (Boy, you
should have seen rhe video ). Troy and
Gary
Trichter also got a
OWl
not guilry in Waller
Counry
on
a case that Troy had previously
convinced rhe judge
to
gram rhe motion for
new rrial after a jury had convicted - with
another lawyer trying,rhe case.
Judge
Ned
Richardson had a reasonable
doubt
in
ruJing on a domestic violence assault
case Kent Schaffer and I tried.
Norm
Silverman returned
to
rhe 337"
to
try another large
dope
case. His client
was
arrested
with 18.5 kilos
and the State
generously offered 45 years pre-trial,
and life+
by the rime of trial.
While
the jury did not
whoUy buy the duress defense
Norm
asserted
because rhey convicted, rhey rhought enough
of it to give rhe client only a 20-year sentence
Norm also had a murder case in rhe I76'h in
which
his
client declined a 30-year offer. Case
Fall
2001
8/11/2019 2001 Fall Defender
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WINNIN W RRIORS CONTINUED)
became a crim. neg.
hom.
after a
motion
ro
quash was
granted and
lerter
ro grand jury
resulted in a no-bill.
Punishment
assessed at
20 months SJE
Dennis Smith tried a sexual assault of a
child case for three days before the
jury
hung
John
Perry
won
a case in the
Supreme
Cou
rr: United States v Bobby Joe Burton,
M
r. Burton
had been given a federal life
sentence following his conviction in a
drug
conspiracy. The Supremes vacated the
sentence and remanded because the
judge
and not the jury had decided rhe quantity
is
sue. (ala pprendi v
New
Jersey M r.
Burton
was
re-sentenced
ro the
staturory
maximum
of30
years.
John
has the case back
on
appeal for a
determination
of
whether the
quantity must
be decided by a
jury
when the
sentence does
not
exceed the starurory max.
Keep
us
posted
Scott Shearer gOt
a
motion
for new trial
granted
in
the
263'd on the basis of an
involuntary
plea,
overrurning
a 30-year
aggravated sentence. In addition, SCOtt
and
Bill Howel l gor a motion ro suppress granted
in a
child pornog(3phy
case in
Madison
County.
Jim
Sullivan was
court-appointed
on a
P
CS
case,
which
was dismissed juSt before
voir dire began
in
the
232nJ.
He
also
had
a
robbery by
threat
case reduced
ro
a Class A
theft
For
4/2/$1000
where the complainant
was an undercover narcotics officer.
The
offer
was
made
JUSt
as
voir dire was about to starr
in the 351".
Nancy
Botts won a suppression hearing
on
a "consent to search" case involving 6.5
Ibs of marijuana
in the 248'h.
Jerald Crow
tried 3 separate aggravated
35sault indictments in
one
trial in Coldspring,
·/cxas.
The numbers did not
add
up
and
the
jury
acquirred
on
all charges.
Brian
Wlce and Ned Barnett
succeeded
in a
motion for
new trial in
Galvesron
County on the issue of ineffective assistance
ofcounsel. Instead ofdoing 10 years as a first
offender, client is gerring a second chance.
Brian also chalked
up
another win , this
time
in Btazoria county. C lient, charged with
aggravated sexual assault and indecency, was
convicted of indecency. Btian files
and
wins
a morion for new rrial, and client is back ro
start,
but
this time
the
odds are berrer because
of the lesser charge
Fall
2001
Stanley
Schneider
demonstrated
that we
aren't losing '
em
all
on
appeal. The
court
ruled that the admission of extraneous
offenses after the State's failure to give notice,
along
with
the admission of back
door
hearsay warranted
reversal, albeit
in
an
unpublished
opinion.
This case was special
as
Stanley
was representing Brad Crow, son
of
the late John Crow,
without
compensation.
Thanks
for
your
dedication,
Stan.
Troy McIGnney has been kicking burr in
Fr. Bend. After
hearing
45 minutes of
evidence, a jury
rook
3.5 hours
to
flild his
client
not
guilty of
OWl
- after
they
sent
out
a
question
of
whether
Troy
had the
video
suppressed
l
Ft
Bend
got
the
message
and
dismissed another, easier defense case weeks
later.
Cynthia
Cline
used information she
discovered in her investigation for a juvenile
charged with sexual assault of a 5-year-old
to
convince the
State ro
back off
their
demand
for determinative sentencing,
and
ro
offer a
reduction
ro assault
with one
year
of probation.
Poppy
Northcutt
convinced Judge
Kroeker
to gtant
a motion
to
suppress on a
possession of 16 grams.
This
was after Poppy
had
convinced the
prosecuror
to
dismiss
the
companion
aggravated assault case
when
her
thorough search of
the
medical records
showed that the officer
reported
that his
injury
resulted in a substantially
different
manner than that
charged
Ricardo Rodriguez kept another client off
of
death row. Against Ricardo's advice, client
rejected offer of life
semence in
a drive-by
gang shooting that left 2 dead and
wounded
.
Although the juty
rejected the
no
guilty plea, Ricardo
convinced them that
th
c1iem
should not
be executed despite th
State's demand otherwise.
Great
job
Abby
Keenan and
Norm
Silverman
gOt
"not
guilty"
on
a
multi-kilo cocaine
case i
Judge
David Hittner's courr. Abby
and Norm
had to really
work
on this one to get "up-ro
speed" for their c1iem as they were hired onl
days before
the
trial began (and were denied
a request for
continuance) and the
trial bega
the same day as the WTC tragedy.
Michael Gillman victoriously defended hi
c1iem against a charge of aggravated assau
by shooting
the complainant,
an
acquaintance,
in the leg.
Belinda
Chagnard
earned
a
not
guilt
verdict after 6 days
of
trial in
the
185 h
on
an
aggravated sexual assault of a child case.
Finally, Bo
Hopmann got the
big
NG on
a DWl in which an officer "mistakenly" tol
the jury that he was HGN certified (B
helped
him
remember
that
he was not),
an
they brought
in "the crew" (you know -
officers ro try to stack
up
the
opinions an
make
a little
$ -
arresting, intoxilizer,
an
video). The foreperson was a me
mber
o
MADD, and
after
hearing what
she did, sh
was a little mad
Congratulations
ro all rhese
Winnin
Wauiors
If you have information about your wi
or a fellow warrio r
s
win
that
you would Ek
included
in rhe next edition of The Defende
please e-mail meatcynthiahenlq@yahoo.
co
m
or
call
me
at
713-228-8500. If
you wish r
nominate someone
for
recognition
in th
Tribute To The Warrior
Of
The Quarter
contact
me with details.
THE DEFENDER·
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