Co-Director E. G. "Gerry" Morris Austin, Texas

Honorable M. P. "Rusty"Duncan ZZZPz@h Annual TCDLA Advanced Criminal Law Short Course,

June 11-13, 1992, Sun AmtonPo - see pages 6 and 7 for detaik-

Co-Director Jeff Kearney Fort Worth, Texas

I

APRIL 1992 - - - VOLUME 21, NO. 3 - - I FOR THE DEFENSE I ?

9107. A n m d subscription rate for members of the amxiation is $100, whrch is included in dues,

All amcles, com~butlons and advcdlshlg m- qunries h u l d ix addressed lo the editor, Keny P. PnzGeralrl, AttomeyatI;lw,'l*roTurtlc Creek Village, Suue 1700 Dallas, Texas 752194537, czi.t152x-w4

@ 1990 TEIEAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

CONTENTS Features -

3 Coming Soon to a Federal District Caurt in Your Neighborhood by RkhanI Alnn A~uIeysort

4 The Hon. M. P. "Rusty" Duncan I11 TCDLA Advanced Criniminal Law Short Cause . . . . by Kerry P. FitzGwaM

8 The Wolf at the Door by EdwinJ. Tomko 9 The Issue of "Dange~ousness" in the Rail Refornl Act of 1984

by Thomas S. Be% 10 Sea~ch and Sei-LW Under State and Federal Law - Part 2

by JudgeJde M&e Meeker 12 CroseExamination of Police Officers in D.W.I. Cases byJm Hutfon 13 The State's Right to Appeal - Part 2 by DaviciA. &h&rlmamt 15 Breaking Out of "Lock-Step": The Plain View Dactrine in Texas hlter

Heiunan v. State - Part 3 by Keiib S. Ha~npton uild Q~ztbia Latinin&Hanptom?

17 Use of die Texas Intermediate Sanctions Bench Manual - Pait 4 18 Summary of Significant Decisions of the Court of Appeals

by Roy E. Gwmrwood

5 In and h u n d Texas by Jobn Bwon

20 The Federal C o r n by F.R. WB~~k"FiIes

News - 21 DWI Practice Gents: Preparing

Defense Witnesses by Kimberly De Ln G u m

24 Gmnted Petitions for Discretionary Review

6 CLE-Hono~able M. P. "Rusty" Duncan 111 TCDLA Sho l~ Course

47 Publications, TCDLA Seminars

Lawyer's Assistance Committee Members

12221 Merit Dr , Ste. 850 Dllllas, Texas 75231 (216)931 OZorl

Jack SUrckland DlsMct 6: 500 Main St. Sre 201 Robert Yzasuirce Fort Wonh, Texas 76102 821 Nolam CSl7)338-1000 hlciylen, T c ~ a s 78501 D W c t 4: (512)6824308 F d R "Back" FUes, Jr. Darglas Tinker lW West Pergwon 622 S 'Cancahus Tyler, Texas 75702 Carpus Christi, Texas 78103 (214)595-3573 eimxaz-.~378 Dlsafct 5: Dlsma 7z Jadr Ztmmermann & Jim &vine Gerald H. Goldsteln, Chairman 770 5. Pmt Oak Lane, SIC. 620 29W Tower Life Buiidmg ffouston, Texas ~ / 0 4 6 San Antonto, Texas 78205 (7131552 0300 (512X266-1463 Keht Schaffer Dlsaict& 3000 Texas Commerce Tower Bm-te Bm GDO Travis Street 13% N u ~ m Houston, Texas 77002 Austin, T e s s 78701 (713122% 8500 (512)472 0144

V O I C E FOR T H E DEFENSE

Coming Soon to a Federal District Court

in Your Neighborhood by Richard Alan Anderson

While mendv Fmding myself in the - . enviable position of attempting to ne-

m6&grdAlanAm' P w h t ~ XBL.4 gotiate in the Federal District Court for P the Northern District of Texas a plea

PA%' PB&SIDl%TS bargain thatmightmitigate a substantial F&ral Sentencing Guidelines sentence [i.e., pre-indictment plea negotiationl, I was advised by the Assistant United States ~ttorney in charge of the case that I would need to explain to my

Y clientsome new language that, by order of the trial division of the United States Attomevs Office for the Northern Pi- trict of ?-as, was to be induded in every plea bargin agreement. The ostensible rrason fox the inclusion of the new language was to (a) provide uniform plea agreements for all plea in the Northern District of Texas [a nSc- tion to plea bargain agreements d r a m up by theBankEraudTaskEorcewhich, though slightly shorter than a Tolstoy novel, were more "Kafkesque" in their interpretation1 and (b) reduce frivolous appeals of federal Sentencing Guide- lines determinations by the Court. In the typical fashion of bureaucraticneck surgery to solve the problem 4f a nose wart, the folfowing language was to be included in all plea bargain agreements:

"The Defendant hereby waives any right to pursue any appeal or post- conviction writs From anv sentence imnosed under the sentencina guide- lines ifthatsentence is within, orbelow, the wideline range as determined by the Court." (emphasis added)

The language goes on to state that this waiver does not apply to the right o appeal from a departure from the pidelines. There is, of course, no

corresponding waiver of appeal by the Government in any instance. IOne can only assume thatappeal by the Govem- ment would never be frivolows.1

As the continued possession of a law license is a rather tenuous activity for most criminal defense practitioners in the first place, the thought of advlsing a

ciient that the only way he could partici- pate in a plea bargain is ta waive any right of appeal and just go ahead and swallow any errors that the probation depamnent or the judge might make in calculating the guidelines (after aU, mis- takes can happen) runs %gainst the grain of even the most conformi8t crimi- nal defense practitioner.

Representatives of the criminal de- fense bar in the Northern Distria such as Ira Kirkendoll of the Federal Public Defender's O f f ~ e andKelly Pace, Presi- dent of the Dallas County Criminal Bar Association have joined in registering their complainm of this practice as a predicate for a plea bargain. The fol- lowing letter wassent an behalf of your Association:

Hon Barefoot Sanders Chief Judge, United States District Court Northern District of Texas 1100 Commerce Street, Rm. 15D2W Dallas, Texas 75142

Re: Waiver of Appeals of the Federal Sentencing Guidelines as mndition precedent to plea bargains

Dear Judge Sanders:

1 write you to join correspondence that has already been forwarded to you by Ira Kirkendoll, ~ede ra l Public Defender's Wxefarthe Northern Dis- trict of Texas, and Kelly Pace, President of the Dallas County Criminal Bar Asso- ciation. The T a s Criminal Defense Lawyers Association, representing 1,500 criminal defense petitioners in the State of Texas, joins the concerns ex- pressed in those letters regarding the plea bargaining policy of the United Sktes Attorney'sOfflce for the W h e r n District of Texas.

continued o n m e 46 3

V O I C E F O R T H E D E F E N S E

The Hon. M e P. "Rusty" Duncan I11 TCDLA

Advanced Criminal Law Short Course . .

/ 2 -

Keny P. FinCemM, P&or E.G. "Gerry" o orris and Jeff obtain information about our menlbe~s

Keamey are featured in this issue for 1 and what each is doing so that we can F~trGerald, Keny P -Dallas

Editor, "Significant Decisions Repo~t"

Burnett. Catherine Green- Houston

EDITORIAL BOARD Chairman

Flles, F R "Butk", Jr.-Tyler

Vice Chairmen Jones, Knox

Past President 198687-McAllen Miller, Judge Churk-

Court of Crinunal Appeals Glst. Judge hrq-Bnlwont

Members iylison, WUIidm P.-Austin Blackwell, Ilelty-Austin Blnu. Charles \V.-Dallas

Ilatsfo~l, David I.,-Awtm Brown, Chff-Luhkk

Burnett, Judge Jay-Hollslon Butts, CharlesSan Antonio

Chdton, Judse Sam Houston- Court of Criminal Appeals

Gandy, Judge hlarshall-Dnllss Hannah, Jolm-ller

Heiskcll. Make- for^ Wonh Hlrsclrl~om, Roberr H --Galveston

McDomdl, Judge Pat-Dallas Moms, E. G. -Gerq"-Aushn

Ponton. Kod--El Paso RawtUdler, Jark-Housran

Srymore, Professor Alalwda- DallndForl \Vonh S e h ~ l of Ian.

Steele, Professor \Vlalter- ShlU Schwl of law

Stri~kland, Jack V.-Port m n h Sweeney,)oh-Fon Worth

Thomas, Judge Linda- Cotlrt of Appeals, Dallas Tomko, Edwin J.-Dallas

Wllllr. William A. 'Bs11'-Austm

-

I their respective work and direction in Editor, voice for *he ~~f~~ setting up theHon. M.P. "IPusty" Duncan IIITCDLAAdvanced Criminal Law Short ourse in San Antonio. The seminar is being held June 11th

, through 13th, 1992, attheSaintAnthony " Hotel. The entire schedule can be found on pages 6 and 7. The schedule is deliberately shortened to acconnnm date the aminal law practitioner wvho needs a substantial program within a short period of t h e .

Gerry Morris received his B.S. degree from Stephen F. Austin State University (with honors) and his J.D. degree fionl

I the University of Texas School of Law. Gerty is a pal'tw in the law fum of

1 Smith, Mot cis and Florey, in Austin. He is Board Certified in Criminal Law and is a frequent lectuter and author of numerous CLE articles. He is a director

' of the Texas Criminal Defense Lawyers Association and of the Crinlinai Justice Section of the State Bar of Texas. He was chairman of the TCDLA Legislative Somilittee in 198%

Jeff Kearney is a member of the firm of Casey & Kearney in Fort Worth, Texas. He is listed in the Best Lawyers of Amenca, 1331-1992 and Who's \Vho in American Law, 1992-1993, He is a fonner member of the Board of Direc- tors of the Texas Criniinal Defense Iawyels Association, 1985-1991, and past president of the Tanant County Criminal Defense Lawyers Association, 1985-1986. He is board certified in c~hninal law and is a frequent author -4 lectuter in the fiekl of criminal law.

* * * *

I \Vould you believe that no matter

how many times I beg (plca, grovel), one of the most difficult things to ac- complish within this organization is to

appropriately recognize theireffortsand accomplishments.

It is a little easier to do with the Tim Evans and the Jade Meekers of this world because I see them periodically. And I am aware of their respective contributions to TCDLA and the Voice.

But thereare a lot of other people out in the trenches doing service w o ~ k in one form or another, and I haven't a clue as to what is going on. Yon can really help. Please write or call Mark Daniel in Ft. Worth. Thanks to Ma~k, the Volcehasa new column designed to spread the wordabout our membeis for the benefit of our menlbers. Our intent is to ~ecognize our members for all of their work, TCDLA-wise and conmu- nity-wise. Please help.

In this vein, special recognition goes to Bill Wischkaemper. Bill ws re- cently selected as the Criminal Defense Practitioner of theyear by the Lubbock Criminal Defense L a w p s Association Bill was honored for his substantial influence on the practice of criminal defense law in Lubbock County; his frequency of and success fn trial; his many cont

r

ibutions to TCDLA and LCDLA; and his leadership qualities, his ethics, and his day in and day out service to the practie of criminal law. I also understand he has a vely loyal and competent legal secretary in Patti Andelson.

* * * * While I am at it, I want to also make

mention of Terry Kirk, a prominent Austin attorney. As you can tell, a very lengthy article on the law of search and seizure is no-w being published. This product is the result of substantial work byJudgeJadeMeeker. Afterher article

Co~ztfr~ueri on pnge 45

APRIL 1992

V O I C E FOR THE DEFENSE

IN AND AROUND TEXAS Death Penalty Committee

He$= in Austin at the home &ce hardly a weekgoes by that wcdon't get a call from someone seeking aJsistance in a rapid case. me Capital Murder Defense Manual, by Keith Jagmin, will be ready soon, pmbably by the time you are reading this. It isanoutstanding effort with excellent trial and appeals sectians, but nrore, much male, is needed indefense of capital cases. hntl TCDLA is t a m steps in that direction. At the Febnlary 1932 TCDLA Board of Ditectols meering in Houston, the Board

id,.. ,-.,, ~VCUfI642DiI%Cfor, TCDU created a neath pw&, ~ ~ ~ ~ ~ i v ~ ~ chaired by Carlton MCL&. Members of the Committee are McLafly; Eden Harringron, Texas Resource CenTer; David Cunningham; Keith Jagmin; Martin Underwood; Bill Habern; David

$&t 'M. bn&tinl @I& . :Banqj B,; Commission, Continued , kf6 ., -.&, :@$ ' p i i t i i i . oarv+i.:~ohe.@,; New at a rate ,&,st& . ~ m ~ ~ . & .:ijayfd ' much too ks€ for cornmunication by I

growing prlson population, which will not be alleviated even by the current additionalprisonco11~twctionpr0gran1, the Commission is charged with re- writing the Penal Code with a punisl- ment scheme which will be "resource sensitive." Therefore, sentencing guidelines and/or grids; with other aptions possible, but less Iikely in this writer's opinion; are very tnwh up for consideration by the twenty-five nrem- ber Conlmision. Amore definite trend as to what the Commission prefers to recommend to the Legislature should be established by the full Commission meetin$ on 12 June 1991)2inAuslin, after which a full report to the TCDLA nlembership, and Voicssubscribers, will be prepared for this nlagazine.

By the time you are leading this a report will have been made to the TCDLA Board of Directors in New Or- leans on 9May. Scheduled toattend are Dr. Tony Fabelo, Executive Director of theTexas Cri~ni~ial Justice Policy Council fhe'll have reprced on current and projected@sonsratistics); Commission members, Judge Prank Maloney and Secretaly of State John Hannah; Com- missionstaffer, aftorney Michele Dietch; andTCDLACo~~ectionsGommift~ Chait Bill Habern. KDLA Board Ditector Betty Blackwell,a Go~emr'sappinted member of the Commission, will also he at the New Orleans meeting. As this is written, TCDLA is on record with the Co~nmission in opposition to sentenc- ing guidelines, but at the request of the Commissionleadershipandst;df,TCDLA inembe=, officers and directorsinvolved in rhe process have ag~eed to "keep an open mind" on the subject. The staff and representatives f ipm both TCDLA and the District and Coutlty Attorneys Ass0~1ation went to Osegon to observe and cliscuss the Oregon grid syshm with officials and practitioners there. Rwiews were mixed, but of the sen- tencing guideline jurisdictions, includ- ing fede~d, Oregon was reported to be the least onesous. Under the Oregon schenle most trims against persons are punished with incarceration, but In

V O I C E FOR THE DEFENSE

CONTINUING LEGAL EDUCATION

THE HONORABLE M. P. "RUSTY" DUNCAN Ill FIFTH ANNUAL

TCDLA ADVANCED CRIMINAL LAW SHORT COURSE

The St. Anthony Hotel 300 East Travis Street

San Antonio, Texas 78205

June 11-13,1992

The Texas Criminal Defense Lawyers announces its fifth annual advancedcriminal law short course, named in honor of the late Honorable M.P. "Rusty" Duncan, 111. The course is designed to cover state law and will address topics which should be covered on the State Bar specialization examination in criminal law. The seminar will be held in conjunction with the Annual Meeting of the Texas Criminal Defense Lawyers and the TCDLAPresident's Ball and Annual Fund Raiser. 15.25 CLE hours, including 1 hour of ethics, will satisfy the minimum CLE requirements for all attendees.

PRE-REGISTRATION: $225 for TCDLA member and $250 for non-members DOOR REGISTRATION: $250 for TCDLA members and $275 for non-members

Course Pre-Registration Form PRE-REGISTRATION BENEFITS: Your registration must reach our office by Wednesday, June 3rd in order to guarantee receipt of course materials at the seminar. Be sure to include your $225/$250 registration fee. Make checks payable to TCDLA.

Name

Address City, State Zip Code

Telephone ( ) County Bar Card No.

Current Occupation I am 0 , am not 0 a member of the Texas Criminal Defense Lawyers Association.

RETURN TO: TCDLA 600 West 13th Street Austin, Texas 78701 (512) 478-2514

APRIL 1992

V O I C E FOR T H E DEFENSE

COURSE SCHEDULE

Course Directors: E. G. "Gerry" Morris, Austin -Jeff Kearney, Fort Worth

Thursday. June 11.1992: 8:00 - 850 a.m. Registration 850 - 9:00 Welcome and Opening Remarks 9:00 - 10:OO Ethics and Attorney Misconduct 10:OO - 10:15 Break 10: 15 - 10:45 Extraneous Offenses 10:45 - 11:30 DWI 11:30 - 12:OO Jury Charges 1200 - 1: 15 Lunch (on your own) 1:15 - 2:00 Recent Decisions

2:00 - 2:45 Evidence 2:45 - 3:00 Break 3:00 - 3:45 Defenses 3:45 - 4:30 Jury Selection 4:30 - 4:45 Break 4:45-530 p.m. Jury Argument

5:30 ADJOURN

Fridav. June 12.1992: 8:30 - 9:00 a.m. Writs of Habeas Colpus and

Extraordinary Remedies 9:00 - 9:45 Search &Seizure 9:45 - 10:15 Forfeiture 10:15-10:30 Break 10:30 - 11:15 Punishment

Prosecutorial Misconduct Lunch (on your own) Confessions Appeals Break Capital Murder Opening Statements Break Cross Examination ADJOURN

Saturday, June 13,1992: 8:45 - 9:15 a.m. B~rtson Issues 9:15 - 9:45 State Grand Jury Practice 9:45 - 10:45 Pre-Trial Motions 10:45 ADJOURN 11:OO a.m. TCDLA ANNUAL MEETING

Richard Alan Anderson, Dallas

Jack V. Strickland, Fort Worth Stuart Kinard, Austin David A. Botsford, Austin

Hon. Charles F. Baird, Austin Texas Court of Criminal Appeals Robert C. Hinton. Dallas

Keith E. Jagmin, Dallas Tim Evans, Fort Woah

Alan Levy, Fort Worth Asst. Criminal District Attorney

Brian W. Wice, Houston

J. Gary Trichter, Houston William A. "Bill" White, Austin

Judge Lawrence J. Gist, Beaumont Criminal District Court Randy Schaffer, Houston

Randy T. Leavitt, Austin Kerry P. FitzGerald, Dallas

Mark Stevens, San Antonio Rohert B. Hirschhorn, Galveston

Kent Alan Schaffer, Houston

George E. West, Dallas Edward A. Mallett, Houston Gerald H. Goldstein, San Antonio

APRIL 1992

V O I C E FOR THE DEFENSE

The Wolf At The Door How Does a Client Respond to

a Search Warrant? Government contractors are being

subjected to increasingly close criminal scrutiny. Until recently, the Government's access to company records generally has been limited to documents PI-oduced in response to subpoenas issued by either an inspec- tor general or a grand ju~y. In the past yeax-, we have seen increased use of search warrants, either alone o r in conjunction with subpoenas. This memorandum presents factors you should consider if you are required to respond immediately to the execution of a search wart-ant.

It is important to understand that there is vely little you can do upon receipt of a search warrant. The law allows for searches to be conducted and for any grievances to be raised by motions befol-e the coum at the ap- propriate time. A list of actions you should consider when confronted with a seal-cli is set fo~ th below. However, you cannot enforce any of the requests contained in tlie list.

Thel-e is no time that your company is inunune from a search, even after you all-eady have responded to a subpoena for documents. Discove~y of docu- ments during a search that were not properly produced pursuant to a sub- poena can lead not only to embarrass- ment but also to a charge of obstruction of justice. Obstniction charges often

have been included with substantive fraud char-ges in an indictment.

The fedenl rules d o provide an in- ventoly ninst be prepared in the pres- ence of the person whose premises are to be searched or another I-esponsible person. You are entitled to receive a copy of theseal-ch warrant anda receipt For the items seized from the agents before they leave. The warrant and inventoty niust be filed with the Mag- istrate after the search is conipleted. This filing (along with the affidavit used :o suppo~t tlie issuance of the warrant) jometitnes will be under seal. The sealing may be ordered for a finite 3eriod (usually a period long enough b r the warrant to be executed and -eturned) or indefinitely.

You should request that the agents ielay beginning the seal-ch until your cttorney arrives. However, they are not ,bligated to do so.

In circumstances where itenis easily :an be removed froni an area, the law xovides for the agents conducting the ;ear& to seal off theal-ea to he searched, ietain tlie persons located in that area mtil the search is completed, and :enerally contl-ol the ingress and egress o the area. Under ce~tain circumstances, he agents may even search personal

brief cases or purses that are in the area to be searched when they al-rive.

The seal-ch warmnt should identiFy the items to be seized with some pal-- ticularity. If your filing system is set up in such away that the items to be seized are segregated froni other business documents or materials, you should clearly make tbat point to the agents. \Vhile you cannot prohibit them from searching for or seizing non-responsive items, prior notice that the area or item is non-responsive may be material in a later nlotionbefore thecourt. However, insome instances, a properly supported warrant can authorize seizure of all your business records.

Finally, obstruction of tlie search is a subjective detennination. It is consid- ered to be obstruction if you refuse permission to enter the premises and make the search. It is also considered obstruction to impede or interfere with the search or to destroy or remove any property before, during, or after the search in order to prevent seizure of the property. The best posture is to advise all of your employees to cooperate in the search and attempt to follow the suggestions listed below.

Edwh -1. Tomko is a oartner in the Dallas law firm of Doke & Rilev where he specializes in litigation involving procurement fraud, and both criminal and regulatory niatters involvinn securities and bankinn. He received his law degree from Vanderbilt - - - University.

From 1973 until joming Doke & Riley in 1988, Mr Tomko held various positions in the Department ofJustice and the Securities and Exchange Commission. During tlie period from 1973 th~oough 1982, as Trial Attorney and S~ecial Counsel in the Denartrnent of Justice's ~riminaf~raud Section, Mr. ~ o m k o was iead counsel in numerous~major trials involvina banking, securities, commercial lendinn. and novernment mocurement fraud, - including unitedStates v. ~ . ~ e r t r a m Lance, et al:

Subsequendl: while serving as Assistant ChiefLitigation Counsel for the Securities and Exchange Commission, hIr.Tomko was the lead attorney in SEC v. First Jersey Securities, Inc. and Robert E. Brennen, among other cases.

Immediately prior to joining Doke & Riley, Mr. Tomko returned to the Depa~trnent of Justice as Deputy Chief of the Fraud Section, Criminal Division. As Deputy Chief, Mr. Tonlko supervised ail banking and securities investigations conducted by the Fraud Section, including the Dallas Savings and Loan Task Force.

Mr. Tomkolectures tovarbus federal government agencies and bar groups on criminal law matten.

APRIL 1992

V O I C E F O R THE D E F E N S E

The Issue of "Dangerousness" in the Bail Reform Act of 1984

by Zbornas S. Be~g, First Assistant Federal P~rblic Defendel; Southern District of Texas

Introduction The most significant change effected

by the Bail Reform Act of 1984 (the " ~ c t " ) ~ is the powel- given to the go\.- erntnent to seek detention of an un- convicted, and presumed-to-be-intio- cent person, based on a prediction that the person is likely to engage in serious criminal activity if released to bail.2 Section 3142 (e) of the Act PI-ovides that a judicial officer shall order the deten- tion of the person if he

"finds that no condition or combina- tionof co1lditionswil11-easo~lably assure the appearance of the person as re- quil-ed and the snfe[j, ofarty otherper- so11 m d the cor~zrnur~i[y (emphasis supplied) . . . .3

This liighlighted portion has com- monly colile to be known as the "dan- gerousness" prong of the detention statute as contl-asted to the "risk of flight" prong.4

The Supreme Court upheld constitu- tional challenges to the dangerousness PI-ong in UnitedStntes u. Srrlemo. 5 The defendants in S&wo convinced the United States Court of Appeals for the Second Circuit that, to the extent that the Act permitted pretrial detention on the ground that an arl-estee was likely to commit future CI-inies, tlie Act was un- constitutional on its face.6 The defen- dants in Snlemo contended, and the Second Circuit agreed, that tlie Act violated the due process clauses of the fifth and fourteenth amendments to the Constitution by pemlitting a "total deprivation of libwty" as a means of preventing anticipated future criminal- ity.7 The government petitioned for and was granted a writ of certioralj and the Supl-eme Court, in a 6-3 decision, ruled that tlie individual's "strong interest in 1ihe1ty"wasproperly subolrlinated to the government's legitimate regi~latory interests in prcvcnting crime by arrestees.8 The majority concluded that even a total deprivation of liberty for crimes that had not yet been conmitted did not necessarily constitute "punisli- tnent" or "excessive bail" in violation of the eighth arnendment.9 It further held

tliat the PI-ocedures of the Act by which the judicial officermas required to make the determination of "fnhlre danger- ousness" were specifically designed to ensure accuracy and conlplied with due process.10 What is Dangerousness?

Congress intended that tlie concept of "dan e~ousness" be interpreted broadly.' 'Clearly, the risk of contin- ued narcotics tt-afficking while released on bail constitutes a "risk to the com- ~ i i u n i t ~ . " ~ ~ The risk of assaultive be- havior by a defendant with nine prior convictions and a current charge in- volving a loaded firearm designed to maim or kill has been held to establish future dangerousness.13 A conibina- tion of priol- drug and weapons convic- tions may also demonstrate risk to the community.14 TIIC Supreme Court ohsewed in Snlerrro that evidence of the defendant's long-time direction of major organized crime activities in- volving extortion and mu^-dcr fairly predicted continued serious criminal involvcment.15 On the other hand, I-eliance on the mere allegations of the indictment for a serious offense without an adequate consideration of the other factors set out in the Act does not satisfy tlie test for dangerousness.16 What Offenses Trigger Detention for Dangerousness?

Section 3142 (0 (1) of the Act limits considel-ation hy the judicial officer of detention for dangel-ousness to a case tliat involves -

(A) a crinie of violence; (B) an offense for which the maxG

mum sentence is life imprisonment or death;

(C) an offense for which a maximutn term of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), ortheMaritimenrug Law Enforcement Act (46 U.S.C. App. 1901 et seq.); or

(D) any felony if the person has been convicted of two or more offenses de- scribed in s11bpa1-agraphs (A) thl-ough

(C) of this paragraph, or two or more State or local offenses that would have been offenses described in subpartagraphs (A) through (C) of this paragraph if a circi~mstance giving rise to Pederal jurisdiction had existed, or a cotnbination of such offenses; . . .I7

While the foregoing considerations are triggered only upon motion by the attorney for the the prosecutor or the judicial officer may also seek detention in any case which involves

"a serious risk that the person will obst~ula or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror."l9 Procedural Safeguards of the Act

The detention hearing contemplated by the Act must be held inlniediately upon the person's initial appearance absent a proper request for a continu- ance.20 A detainee has the right to counsel.21 He has the right to testify, to present witnesses, to profferi~lfonllation, and to cross-examine government wit- nesses.22 The facts supporting deteti- tion for clangel-ousness must be estab- lished by clear and convincing ev- dence.23

The judicial officer must consider all available information concerning four specific factors enumemted in section 3142 (gl

(I) the natul-e and cil-cumstances of the offense chal-ged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) theweight oftheevidence against the person;

(3) the histo~y and characteristics of the penon, including-(A) the person's character, physicaland nlentalcondition, family ties, employnient, financial re- sources, length of residence in the community, conlniunity ties, past con- duct, history relating to drug 01-alcohol abuse, criminal history, and record concerning appearance at court pro- ceedings; and (8) whether, at the time of the current offense or arrest, the

APRIL 1992

VOICE FOR T H E DEFENSE

Search and Seizure Under State and Federal Law

B. "Search" Defined. 1. Federal Definition Under the Fourth Amendment, a

sealrh may be defined as an intlusion into an area in which a person has a reasonableexpectation of privacy. Kata u. United States, 389 US. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967) and Smith u. Maiylmui, 442 US. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). A seizure occuls

Part 2 by Judge Jade Marie Meeker

property in a helicopter at a height ol 400 feet and saw, with naked eye, marijuana growing in a greenhouse. Because the sides and loof of the greenhouse were left partially open, whatever was gowing in the green- house could be secn f i ~ m the air. The helicopter was flying in public navi- gable ailspace when the officer looked into the greenhouse.

"Under the Fourth Amendment, a search may be defined m an intmion into an area in which aperson has a reason- able expectation ofpriuacy. "

when there is a meaningful inte~felence with a person's possessoly interest in property or freedom of movement. UnitedStates u. Jacobson, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

2. Texas definition. Similarly, the essence of a search

under Texas law is an intrusion into an a e a covered by a reasonable expeck- tion of plivacy. In Loug u. Stale, 532 S.W.2d 591 (Tex.Cr.App 19751, "search" was defined as a 'quest for, a looking for, or a seeking out of that which offends the law." In Chapa u. State, 729 S.W.Zd723(Tex.cl.App. 19871, thecourt of Criminal Appeals held that t ~ o fac- ton are ~elevant in detenninmg the existence of an expectation of privacy:

1. Did the defendant exhibit by his or her conduct an actual (subjective) ex- pectation of privacy; and

2. Was that expectation of privacy one that societyisprepwed tolecognize as reasonable.

See State u. Coniefltrx, 818 S.W.2d 46 C e x Cr.App. 1991).

3. Examples In the following cases, the Suprenie

Coul t held that there wvas no ieasonable expectation of privacy:

Florid2 u. It'ile~r, 109 S.Ct. 693 (1989): An officer circled over the defendant's

10

Calfornia u. Greenwood, 108 S.Ct. 1625 (1988): No legitimate expectation of pnvacy in garbage left outside the curtilago of a home. [NOTE: Colorado, Washington and New Jersey suplane coults have ruled that their state eon- stihltions impose mote constraint with regatd to garbagesearches. See People (Colorado1 u. Hillman, No. 90CA0718, dehve~ed Angust 1, 1991, 49 Cr.L.R. 1412.1

UititedStatesu. Dnnn, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987): No expectation of privacy in a barn located 50 yards from the fence sunounding the home and 60 yardsftom home itself where the barn was not within the cudage of honle.

Uotu Chemiwl Co. u. United Stntes, 106 S.Ct. 1819 (1986): No legitimate expectation of privacy in the open fieldssul~oundinganhdustrialconlplex.

Calfornia u. Ciraolo, 476 U.S 207 (1986): No legitimate expectation of privacy in a backya~dwhen suweillance was conducted ftom a p~ivate plane flying at an altitude of 1000 feet.

NewYorku. C h , 106S.Ct. 960(1986): N o leasonable expectation of privacy in the Vehicle Identification Number. The ofFicer conducted a reasonable search when he leached into the vehicle to

move papers on the dashboard which obstlucred the VIN. Conlpaie Woodu. State, 632 S.W.2d734 (Tex.Cr.App. 1982) (Officers had plobable cause to believe that two of three vehicles wele storen, so the mhimal intnision caused by opening the door of the third vehicle to check the VIN, where no damage was done and no other search took place, was autholiaed). Compare also United Statesu. $277,000 US. Czmw7cy- F.2d - (9th Cir. No. 89-56005, delivered August 8, 1991, 49 Cr.L. 1436) CSea~ch unconstitutional when officer, who had a hunch that a car parked on private property may have been stolen, lifted an opaque car cover to determine the V.I.N.).

Oliueru. UniteciStata, 104 S.Ct. 1735 (1984): No legitimate expectation of p~~vacy in unoccupied areas outside the cnrtilage of a dwelling, refeired to as "open fields". In Texas, however, ie- gatdlcss of the expectation of privacy, evidence seizedfrom an illegal trespass under I'enal Code Sec 30.05 (a) (1) would be inadnlissible according to AIT. - 38.23, V.A.C.C.P.

llndson u Palmer, 468 US. 517, 104 S.Ct. 1194 (19841: A~r i son shales none - . . , of the attributes of privacy of a home, automobile ox ofFice so the Fou~th Amendment has no application LaFave argues thatnot all prisonsearcheswould be perse reasonable, but the holding in Hzrdson seems clear. See 4 LaFave, Search aad Setzrr~e, Sec. 10.9 (a), p. 107.

Illinois u. A1tdten4 463 US. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983): No legitimate expectation of privacy in a container oncegovemnent agentshave lawfully opened the container and identified the contents as illegal. Clos- ing or ~esealing the container does not reestablish privacy rights.

United States u. Knottq 460 U.S. 276, 103 S.Ct 1081, 75 L.Ed.2d 55 (19831: Monlto~ing beeperwhich was placed in a container of a chemical used to nianu-

APRIL 1992

V O I C E FOR THE DEFENSE

facture illicit drugs and used to follow the tlansportation of the drugs did not invade a legitimate expectation of pri- vacy.

Unitedsfatesu. Paynet; 447 US. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980): No legitimate expectation of plivacy in bank account infolmation vohlntarily conveyed to banks.

The Eighth Circuit found no expecta- tion of plivacy in photographic film an individual left at a photo plocessor for development, when the processing company briefly exposed the devel- oped pictures to public view. WaDu17- Initziu. SeSSiom, 900 F.2d 1234 (8th Cir. 1990).

In the following cases, the Supreme Coul t held that there was a reasonable expectation of privacy:

Minizesota v. Olsott, 110 S.Ct. 1684 (1990): The defendant, an ovelnight guest in the upper part of a duplex, had anexpectation of pivacy in the prenlises and had standing to challenge officers' wat~antless entry to effect his arrest. Hosts will more likely than not respect their guests' privacy interests. See also Joizesu Uwitedstales, 362 US. 2570960).

O'Co~~nor u Otfega, 107 S.Ct 1492 (1987): Legitimate expectation of p i - vacy in desk and file cabinets kept in office.

Wlizston u. Lee, 470 US. 753,105 S.Ct. 1611,84 L.Ed 2d 665 (1985): Sulgely to retrieve bullet that would be used as evidence against the defendant was an intlvsion on the defendant's teasonable expectation of privacy in his body.

Oliuer v. U17ited States, 466 U S 170, 104 S.Ct 1735, 80 LEd 2d 214 (1984): Reasonable expectation of privacy in curtilage (the land ilnrnediately sur- roundiigandassociatedwiththe home).

Kqtzv. UltiteclStates, 389 US. 347,88 S.Ct. 505, 19 L.Ed.2d 576 (1967): Rba-

a

telephone booth. In Barloru v. G I Y I I I I I ~ , - F.2d - (9th

Cir. No. 980-55819, delivered Septem- ber 5, 1991, 49 Cr.L.R. 1537), the couit held that the warrantless, non-consen- sual raking of blood from a homosexual arrestee who had bitten officers duling a struggle, so that the sample could be tested For theA.1.D.S. virus, violated the Fou~th Amendment. The court distin- guished Scl,riier$er v. Calfur~&i, 384 U.S 757 (1966), on the basis that in that case, the blood alcohol level would decline over time; In the instant case, the A.I.D.S. virus antibodies would re- main in the blood for as long as the person lived. Even if the blood sample tested positive, no medical nleasures wele available to slow an infection once it was passed along. Officers should have, the~efore, obtained a warrant.

In United Stafes u. Pieme, - F.2d - (5th Cir No. 90-8277. delivmed Mav 21. i991), the Fifth ~ i G i t held that a box- der patrol officer who poked his head ~nside the open window of a vehicle stopped at a non-border checkpoint conducted a "search" under the Fourth Amendment

In the following cases, the Texas Court of C~itninal Appeals found that thete was no reasonable expectation of p m c y :

Spetrce v. Strife, 795 S.\V.2d 743 (Tex.Cr.App. 1990), cert. delzied : No constitutional ~rotections urohibitinr! - taking of dental impressions, citing Matqliez v. State, 725 S.W.2d 217 (Tex.Cr.App. 19871, and Pattemori u. State, 509 S.W.2d 857 (Tex.Cr.App. 197474).

Bo~uer v . State, 769 S.W.2d 887 (Tex.Cr.App. 1989): Officer viewed inside thedefendant'sgaragebywalking up the driveway and looking in the garage window. The office' did not deviate from the public pathway, and any member of the public could have looked inside the garage.

Voelkel v. State, 717 S.\V.Zd 314 (Tex.Cr.App. 1986): No reasonable expectation of privacy in hotel room when office~s were summoned to room atmanager's request toevict defendant.

M~rlder v. State, 707 SS.\V.2d 908 (Tex.Cr.App. 1986): No reasonable expectation in photographs of a defendant's wounds taken at the jall after the defendant was arrested.

Ma~rry v. State, 621 S.\V.2d 619 (Tex.Cr.App. 1981): No expectation of privacy in the public waiting room of a doctor's office.

GiNett u. State, 588 S.\V.Zd 361 (Tex.Cr.App. 1979). No reasonable expectation of p~ivacy in a dressing room in Foley's where posted sign indicated rhat the dressing roouls were under surveillance.

Green u. State, 566 S W.2d 578 (Tex.Cr.App 1978): No expectation of privacy in peep show booth where curtain covering exit of the booth was left paltially open.

The Court of Criminal Appeals held that t h e ~ e was a reasonable expectation of plivacy in the following cases:

State v. Conrenux, 818 S.W.2d 46 CTex.Cr.App. No. 318-90, delivercdJuly 3, 1991): A patient has a reasonable expectation of privacy in a blood sample

Judge Jade Marie Meeker received her IlA degree frmn 'l'rinity IJrliverSity~ t\nlcmiu (CLIIII lirude, n~athen~.rli~~ and pulitlrnl scicr~ce) nnd llcr J.1). d rg~ :e fro Ufiiversity of Texas at Austin Sthool of Law (1982).

Judge Meeker wss associated withHaynes and Fulienweider in 1983, after wlrich she became assistant city aftorney for she city of Austin until 1985, She seivedas mearch assistant to Judge Chuck Miller of the Court Of Crlnlinal Appeals from May, 1985 to February, 1988, at which time she became a staff attorney for the Court of Criminal Appeals until january of 1932. She is now the Justice of the Peace, Precinet 5 in Travb counh..

I Judic hleeker hausewedas vice-chail; \Vonwn in lhe I'wfesionCor~lraillcc, Slat(! I h r of Texas: and lras sen'ed OII the Selection (Z,rnr~~itlee for tla: t\dvanwd Criloincl lrw I tile aw;~r(l ufspccial n~erit for ;rull~nnhip uf "Search and Seizure undcr

law" nre;n.nt~~I bv the collwc of the Stare llar of'l'exas in IYX; and I .. thc Judges Special 1k:cognitiwr Award in Or~LswrrJing l'r~fwsionai I)evcI~~pnlc~~t presuwd by the Slalc Agc.ncy i.i:rison (;nrup lothe~,ouernor's O~rllrllission lilr Wolllen, 1Wfl -,,-.

Judge Meeker is Board CePtifled in Criminal Law by the Texas Board of Legal SpecialiUtion.

APRIL 1992 1 1

V O I C E FOR THE DEFENSE

Cross-Examination of Police Officers in D.W.I. Cases

by Jim Horton

As we have all discovered in t~ying criminal cases, and especially D.W.I. cases, a testifying officer is vely seldom interestedinseeing that justice prevails; but, rather in securing convictions. In view of that fact, I suggest that you handle the CI-oss-examination of a po- lice officer vely gingerly, and that you only do what youfeelconlfo~~able with. Never do anything you are uncomfort- able with, andnever beafraid notto ask questions. Through the years, I have discovered, as I am sure the rest of you have, that police officers are very re- luctant togive any sort of testimony that is going to be favorable to yo11 and yout- client. Consequently, it helps to be creative when cross-examining an oft- cer.

Several years ago,,with the encour- agement of seven1 people, pdrticularly Hollis Godfrey, I decided to start cross- examining the officers about the items that were 110t in their police report. As you know, most repom are prepared within a couple of days of the actual arrest, and most D.\V.i. cases do not go to trial until some time later. My expe- rience is that most police officers re- nlember vely little about the D.w.I. incident without the report.

The first thing I do on cross-examina- tion is ask for a copy of the written report, as well as any notes that he has made or documents thathe has reviewed prior to testifying. The next thing, obviously, is very carefully to review

the same. \Vhen I begin my cross-examination,

I try to have the officeradmit, especially if I know that he is an officer who conducts many arrests, particularly D.W.1. arl-ests, that, but for the written I-epo~t, he would remember very little about the D.\V.I. in question. I always make su~.e, however, that there was nothing extraorclina~y about my client and the arrest in question that would remind the officer of my client or the arrest. You need to be particularly :a~-eFul if your client had been arrested ~y the officer on other occasions, or if :he officer knew him otherwise, or if his was a particularly bad D.W.I. Gen- :rally speaking, most officers will admit hat they have a poor recollection of the 1.W.I. inquestion. If the officer refnses o admit it, then askabout the arl-est that le made either before or aftcr your :lientls. The officer~ill almostcertainly lot be able to remember those.

Next, I t~y to make the officer admit hat the report contains all the facts that le deemed important at the time (have IOU ever seen a repolt with anything :ood in it?). Once I establish that, I legin questioning the officer about any iyrnptoms that are not in the report that I pel-song~~ilty of D.\V.I. might exhibit. dally times, I find that an officer will eave out one or more of the symptoms hat usually indicxte D.W.I., e.g., red :yes, glassy eyes, slun-ed speech, etc. ily objective with these questions is to .sk the officer about the things that do lot appear in the report that would be ndicative of the fact that the defendant vas not intoxicated. For exanlple, if the arrest occurred at

light, an officer very rarely includes in

his report that fact that the defendant turned his car lights off. An.officer rat-ely I-eports that the defendant pulled safely and promptly onto the shoulder of the road when contacted. Similarly, an officer seldom I-epo~ts that the defen- dant put his car in park, that the vehicle did not roll, or that it was pxoperly parked.

\Vhat I find many times in asking these qnestions is that many officers do notwant to admit that the defendant did anything PI-operly. The officer cannot remeniber the event, but he has a hard tune admitting that it was doneproperly. This leaves the inlpression with the juty that the officer does not want to say anything that is not consistent with the defendant being very dlunk, and the the officer is, in essence, lying.

Other items that are often missing on D.W.I. reports are nhether the client had problems finding his driver's license, showing insurancc, or things of that sort. The officer seldonlreports that the client was issued a t~affic ticket, 01- that there .ivds not an acciclent.

One thing the officer iuillstate in the I-eport is that he gave the defendant his Miranda warnings and DIC 24 statutoly warnings. You will never see in a report that the defendant did not unde~.jtand his I-ights. Once the officer admits that your client understands his rights, ask him whether that is indicative of a person who does not have the normal use of his mental faculties i.e., a person guilty of D.W.I.

Another thing that I vely seldom see in a police officer's report is that he informed the client that he had the right

I

JlmHOffon is an attorney mitially licensed by the State Bar of Texas in November of 1978. He received a Bachefo~ of Arts fro~nTexasTech Universityin 1975 and hisJ.D. from Texas Tech in 1978.

His law practrce is loated ~n Denton where it has been since his graduation from law school. Alargepercentage ofh~spmctice is devotedtocrrm~nal law, particularly todefense on D.\V.I cases.

He is married to Kathleen IIorton and thev have one child. a danehte~. Alexandra - . Michele. I

APRIL 1992

V O I C E F O R T H E D E F E N S E

The State's Right to Appeal

11. The State May Not Appeal Every Adverse Ruling.

A. The State May not Appeal an O d e r \Vhich is, in Effect, not Final.

\Vhen a trial court issues an otherwise appealable, hut for purposes of the trial coult's d i n g isn't ripe, the issue is not ripe for appeal. For example, in St~rte u. Ale.wl~de~; 761 S.\V.Zd 125 (Tex.App.- San Antonio 1988, pet. I-efd) the defctl- dant was convicted of capital murder, I~u t his conviction was reversed and remanded for a new trial. In anticipa- tion of trial, he filed a "Motion to Exclude Evidence of Unarljudicated Extraneous Offenses at Punishment Phase of Trial." The trial coust treated the motion as a motion in liminc, and granted. At the time he granted the motion, the trial judge indicated he felt that the order had limited effect, sincc admission of evidence was governed by the rules of evidence. Further, he specifically advised defense counsel that he would have to raise it again during at the appropriate time, and ". . . we'll argue about the ~ules of evidence when we get to that point." The State appealed.

The Court of Appeals found that the State cannot appeal ~I-OIII an order pre- maturely. Id. at 126. Since the order gsanted a pre-trial motion purporting to affect the punishment stage, the State could, theoretically, later urge the ev- dence, and defense would again have the burden of demonstrating inadmissability in the record. A motion in limine is not a motion to suppress, nor did the trial court treat it as one.21

R. The State may not Appeal for Purpose of Correcting a Clerical E ' I-1-01- Made by the Trial Court.

In Creeks u. State, 773 S.\V.Zd 334 (Tex.App.-Dallas 1989, pet, refd), a defendant was convicted of mul-der, and the ply made a deadly weapon finding. The trialcoustused pre-printed form judgment, and entered "N/A" as to the deadly weapon finding. The defen- dantappealed hisconviction. Appointed counsel filed an Anden brief, and no prase brief followed. In a cross-point,

APRIL 1992

Part 2 the State's response asked the const of appeals to "reform" the judgment. The Court of Appeals found that this ques- tion is not covered by Art. 44.01 (State didn't appeal) and that "the od ina~y rule is that we cannot correct judicial errors that may be cotnplained ofby the State."22 Id. at 336. The Court of Ap- peals indicated, however, that the trial court had the authority to correct a "clerical error," and noted that the State has ". . . notfirst applied to the trialcourt for relief . . ." Id. at 336. Presumably, this means that if the trial court I-efked to correct the error by entering a rrrrrlc protlllrcjudg~~lent, the Srate couldhave sought mandamus.

C. The State May not Appeal Trial Cou~ts' Rulings inBond F01feitu1.e Cases.

In State u. Sellets, 766 S.\V.Zd 312 (Tex.App.-Houston [14thl 1989, pet. gl-anted), a trial coust forfeited an ap- pearance bond. All criminal charges were subsequently distnissed after the defendant was killed in a gun battle nit11 police in AI-izona. The bondsman brought a motion in the trial court pursuant to Tex.Rev.Civ.Stat. Ann., Art. 22.16, seeking release fl-on1 any liability on the bond, except court costs and

not believe that the legislature intended a final judgment in bond forfeiture case to be regarded as an order which modi- fies a final judgment, thus providing authority to appeal under Art. 44,01(a)(2). Smteu. Sellen-, 790 S.W.2d 316, 319 (Tex.Cr.App. 1990). 1II. Procedural Considerations.

A. Appellate Courts Have no Author- ity to Extend Filing Deadlines in Ap- peals Under Art. 44.01.

In State u. Denmret, 7664 S.\V.2d 857 (Tex.App.-Austin 1989, no pet.), the trial court granted a motion to suppress on October 19, 1988. The deadline for filing notice of appeal was November 3, 1988. The State filed the notice of appeal on November 10, 1988, along with a motion to extend deadline for filing pursuant to rule 41 (b)(2), stating that motion was filed within fifteen days of actual deadline. The COUIT of Ap- peals granted the motion and allowed late filing. The defendant lxought a motion to dismiss the appeal. After considering the motion, the Cou11 of Appeals found that it granted State's motion in error, and ordered theappeal dismissed. Id. at 858.

Likewise, it was held in Stflte u.

!A?t 44.01(d) does "Ilzore than nzerely prescribe a proce- dziral deadline for filing the State's notice of appeal. Rather, it limits the State's substantive authority to uppeal.'"

pre-judgment interest. The trial court granted the motion and the State ap- pealed. The Coua of Appeals found that b o d forfeiture PI-oceedings al-e criminal actions. The court reasoned that since the State's right to appeal in criminal cases isgoverned by Art. 44.01, wl~ich does not inclucle bond consider- ations in the list of appealahIe items. Therefore, only a defendant may ap- peal a judgment in a bond forfeiture ~roceeding. Accordingly, the appeal was ordered dismissed. The State then sought discl-etionary review. The Court of Q-iminal Appeals affirmed the Cou~t of Appeals opinion, saying that it could

ilkKir~iley, 803 S.\V.Zd at 377, that the State cannot correct jurisdictional de- fects in the notice of appeal by filing an amended notice of appeal. After being convicted in a mnunicipal court without record, the defendant in McKirl~rq~ prosecuted a de ~rouo appeal to the county court at law and sulxequently filed a motion to quash. The trial court notified the parties on April 17th that it was going to grant the motion, and signed order to that effect on May 7th. The State did not give notice of appeal until May 23rd, the sixteenth day, but filed a motion to extend time for filing notice of appeal with the notice. The

13

V O I C E FOR THE DEFENSE

court of appeals granted the motion, but in its opinion found that it elmed in doing so. Notice of appeal was filed untinlely, and State was without legal authority to appeal. Id.at 377. Fulther, the court noted in McKinizqr that Art. 44.0Kd) does "nm~e than merely pre- scribe a procedural deadline for filing the State's notice of appeal. Rather, it limits the State'ssubstantive authorityto appeal." Id. at 377. Notice of appeal must be filed within 15 days. If the notice isn't given, the appellate court has no jurisdiction.

An exception tothis rule, however, is that although for purposes of calculat- ing deadlines, the effective date of an order is that date it is signed, when the clear language of an order indicates it 1s to he "entered" on a different date, the coults will treat that day as the date of entry. State u. Rmeubmt~~t, - S.W.2d -@ex.Cr.App., No. 1005-90,delivered October 30, 1991).

In Rawibmrm, the defendant was charged wlth peju~y and filed a motion to quash alleginga lack of materiality in theallegedly pejuiiousstaternents. The trial court glanted the nlotion and en- tered findings offact and conclusions of law in which it found that there was not materialityin thesratements. The judgecl signed the quashing order on June 28111, but indicated in the body of the order that it was to be entered on July 2nd. The State gavenotice of appeal on July 16, the 18th day aftel the order was signed, but was the due date for notice to be given ifthe older was considered to have been entered on July 2nd. The State gave notice of appeal onJuly 16, the 18th day after the orderwas signed, but was the due date for notice to be given if the order was considnecl to have been carried on July 2nd. The Court ofAppealsaffirmed the trial cowt in an unpublished opinion?3 finding

hat the fifteen day tune limit began to un on the day the judge aclually signed he order. The Court of Criminal Appeals faund

hat the court of appeals had erred, and lthough the appellate timetable for tate to appeal from an order quashing n indictment under Art. 44.01Cd) nol- nally begins to lun from the date the rid judge actually signs his or her or- ler, since the order in question specifi- ally recited that it was to be entered on uly Znd, the only interpretation to give

would be to treat it as if it was ente~ed," as envisioned by Article 4.01(d) on the day the trial court idicated. 'l'raveling from the sublime to the

~diculous, the Court of Criminal Ap- teals has recently interpreted the stat- te in a manner which lequi~es notice f appeal to be given by the State within fteen days of the date the trial court igns anappealableorder-even if the tate docsn'tgct notice that the order as been signed. State ex- rel. Sutton u. rage, - S.W.2d - Uex.Cr.App. No. 1,227, delivered Janua~y 15, 1992). In zrttorz, the orderinquestion was signed n the 16th of November, 1990, and rasfiled by the diit~ict clerkon the 20th f November. Consistent wirh its deci- Lon in Rosenbauni, the Coult held that le order was "entered" on the 16th of lovetnber and notice of appeal w s uc on or before December 3rd, 1990. he State actually filed its notice of ppeal on the 4th of December. As ldge McCornuck pointed out in his issent, howcver, the State didn't even ud out that the order had been signed ntil the atlernoon of December 3rd, nd therefore didn't have sufficient time I which to prepare the notice.24 The problem with the Szrttoncase is lat it places an undue burden on the ate. Until the legislature has an op- ortunity to comect thissituation, it will e wise for the p

r

osecuting attorney in lalge of a case to actually check with LC clerk of the court to make sure that othing gets fded without notice. Nso, nless the legislatul*: changes the lan- lage of Art. 44.01, $ 5Cd), there is >thing to prevent a tnal judge from

"pigeon-holing" an order afterit is signed to keep fronlbeiug reversed onappeal.

B. The Appellate Timetable is the Same When Motion for New Trial is Filed, Regardless of \Vhether Piled by the State or Defendant.

In State v. Dmiels, 783 S.W.2d 691 (Tex.App.San Antonio 1989, pet. grant&, the defendant fded a motion for new trial The trial court g~anted the motion and the State appealed. In a State's appeal, the deadline for thestate to file Statement of Facts was 60 days after the Older granting new tlial was gmnted. In this case, they failed to do so. The niles permit late filing if a motion for extension is fied within 75 days after the appealable order was signed. The State sought to file the transcript (along with a motion for extension of time to file the t~ansctipt) on the 77th day. The State algued that underRule 54(b), the Statement of Facts is due on the 120th day.25 The Court of Appeals rejected this theory in refusing to grant the motion to extend, holding that Rule 54(b) is applicable only to defendants, and the State may not lely on the motion for new ttial filed by the defendant. Id. at 694. The Court of CrialAppealsthought athenvise and ruled the record on appeal is due in the appellate coutt within 120 days of con- viction whenever a motion for uew trial is filed, regardless of which party filed the motion. Statev. Daniels, 806 S \K2d 838 (Tex.Cr.App. 1991). As the defen- dant had filed a motion fornewtrial and the State had attempted to file recordon appeal in court of appeals on 77th day, the notice was timely filed in an appeal under All. 44.01(aX3), V.A.C.C.P.

C. Abandonment of the Appeal by the Prosecuting Attorney is Abandon- ment by the State, and the Appeal is D~smissed.

In Stafe u. Salcchez, 776 S.W.2d 920 (Tex.App.-Austin 1989, no pet.) the State appealed a tnal court's decision to dismiss a misdemeanor infotmation. Notice of appeal was timely filed, and the t~anscript was filed with the court of appeals, hut the State failed Lo timely

- David 4. Schwlman is a graduate of Texas Tea Univpmity School of Law an4 the

Univemity of Nevada, !As Vegas, He is an &pcrien&d M i 1 buyer, is Buard Certified in CrimioalLau~, and has been a Staff Attorney with the Court of Gin&mI Appe& since May of last year. prior to moving to ust tin he practiced in ~ubback, WAS a partfie in thelawfirm ofChappelI,lanehaa, Atdridge&Schulman, thentnaintainedasolopfMice from 1989 through 1331.

APRIL 1992

V O I C E FOR THE DEFENSE

Breaking Out of "Lock-Step": The Plain View Doctrine in Texas

After Heitman v. State Part 3

by Ketth S. H u w p o n and C'tzthiu Lunning-Humpton

w. Texas and Plain View Doctrine A. EarlyTexas Search andseizure

Cases Like federal l a y Texas search and

seizlur: jurisp~uclence evolved in the early tnrentieth cenhlry when police seized liquor or other contlaband. For an histortcal overview of its develop- ment du~tng this period, see Dix, It]- depe17cle?tcein TexasConsritrrtion~aISe~- Itzo'i~trlr?utioi~ and Search Lam, 31 S.Tex.L.Rev. 577,603-609 (1990). Two early cases which fmt analyzed and gave fo~re and meaning to A~ticle I, 5 9 of the Texas Constitution were D~ipwe u. State, 102 Tex. 455, 119 S.W.2d 301 (1909j, and IirPaiieGorrld, 60'r'ex.Crim. 442, 132 S.W. 364 (1910). In Dzrpree u. Stzrte, the Texas Supreme Court was asked to determine whethe1 certain provisions of a statute autho~izing sei- zure of intoxicating liquors was in con- flict with the Texas Bill of Rights, spe- cifically Art. I §§ 9 and 19. 'Ihe statute (referred to only as Laws 1907, p. 156, C. 77), provided for seizure of liquors upon an affidavit of any c~ed~ble person in the county, and p~rscribed certain requis~tes for the search warmnt. The constitutionality of this ptovision was challenged because the only probable cause required was a statenrent that the informec believed the facts statedin the affidavit. The Court held the statute unconstihltional because it conflicted with the p~obable cause lcqnirements of Ah I, § 9. It ~equired neithw the giving of the name or description of the owner or possessor of the liquor, nor any descriptionother than it was intoxi- caring liquor intended for sale in viola- tion of the law Such a description failed to desc~ibe the thing to be seized "as near as $nay be." The pulpose ofthis portion of k t . I, g 9 was to define and

limr "as near as may be" the power of police to mvade premises of the citizen by ~equirlng a specification of the ob- ject to be seized. Dripze, supra, at 307. This constluction of the statute was based solely on the Texas Constitution. Professor Dix notes that the 13rrpree Caul* made only passing reference to thefede~al couts'interp~etat~ons of the Fourth Amendment. Dix, supra, at 607. The Supreme Courr turned prinrarily to interpretations of orher state's coults when in need of assistance in constru- ing our COnStihltiOn. See Dtrlr,.ee, 119 S.W. at 304-05, 308.

A year later in EY Parte Gorrld, 60 Tex.C~im. 442,132 S.W. 364 (1910), the Conrt of C~iminal Appeals again con- strued Art. I § 9. In Gotrld, a grand jury investigating the ttansport of intoxicat- ing liquors issued a subpoena duces tecum, ordering the defendant to pro- duce telegraphic messages m his pos- session or cont~ol. When he ~efused to comply, the defendant was cited for contempt. He fled a writ of habeas corpus contending that the subpoena was unautholized underAl2. I, $9 of the Texas Constitution, as being toogeneral, and failing to describe the requested items sufficiently. The Cou~f agreed, citingnithapprovallanguageinDtrp~ee, supra, which discussed the pulpose of A t I, 6 9 as being restrictive of the gwelninent's power to search for and seize items found on citizens' premises. Id , 132 S.W. at 368. The Court expressed horm at the notion of a grand july with such wide autholity that it may search a person's papew for evidence of some crime committed, conlparing such a body to England's Sta~ Chamber, or Spain's Inquisitors. Gordd, supm at 367.

The GoirldCourt notedthat the Foi11~1i Amendment of "the Constitution of the United States embodies practically the

same language" on thesubject ofsearch and seizure as Art. I, § 9. Id., at 366. The Court obselved what has never been disputed: Art. I § 9 and the Fourth Amendment involve the same subject matter. However, the Court's obsewa- tion logically inlplies that the Texas section and the federal section are not identicsl. "I'ractically the same lan- guage" necessarilymeans "not identic-al," This early substantive analysis in Godd was ignoxdhy the Coua in Croruell, the dicta which was to later serve as a just~cationfortheradical subordination of Article I, $ 9 witlun the federal con- stituhon. There was no indication from the early cases that the Courtwas bound to intelprct Aticle I, 5 9, identically to the Supreme Court's interpretation of the Fourth Amendment; these opinions merely suggested that the Court con- side] ed decisions of the Supreme Coult, like those of other states, merely wo~thy of consultarion befo~e making a deci- sion about Texas law Dix, supla, at 60849.

B. Texas' Pre-Coolidge Cases Plain Viewvs. Open view- What a Mess!

Texas had no plain view exception befoje Coolidge. Early cases typically involved scenarios where p o k e ob- sewedthe defendantcornnit the offense ineopen view." Forexatnple, in CtntueN u. State, 147 Tex Ciim. 299, 180 S.W.2d 343 (1944), the defendant and his wife were known to be engaged in the business of opemting a brothel. An employee of a neighboring bar looked th~ough an open window, and saw the defendant in the same room where his wife was engaged in the act of prosti- hltion, and rumnlaging through the pockets of her client. The fellow summoned a deputy sheliff, who 013- selwd thesame scene, and arrested the

APRIL 1992

V O I C E FOR T H E DEFENSE

defendant for keeping a bawdy-house. In rejecting the defendant's argument that the officer's action had violatcd both the Foulth Amendment to the United States Constitutionand Art. I, $9 of the Texas Constitution, the Court of CruninalAppeals held that, eventhough the officer had trespassed onto the defendant's pmpeity, neither seatch nor seizure had taken place. The Court defined search as

"a quest for, a looking for, or a seekingout of, that whichoffendsagsinst the law. It implies a prying into hidden places for that which is concealed. It is not a seatch to obsewe that which is open to view.@] "

The Ctowell Court also gratuitously observed in now famous dicta that the Foluth Amendnlent and Art. I, s9arein all nlaterialaspects the same. Id., at 346.

A year lam, the Court held that no search occwred when police observed whiskey on the defendant's pelson, Mzolz?y u. State, 148 Tex.Crm. 21, 184 S.W.2d 476 (1945), involved a convic- tion for possession of whiskey for pulpose of sale in a dry area. Liquor Control b a r d agents watched the de- fendant make seve'ral deliveries of whiskey to persons at a gas station, and then asked to seaxh his car. Aftel obtaining his consent, the officers saw two pint bottles of the stuff stuck in his belt. They also searched the glove box and found an additional pint.

As to the two bottles on hts pelson, the rl11~mj~ Court held th-dt no search had occurred or was necessarybeca~tse

KeilhHampton pncticcs law in Aus- tin I I v rc~eivrd his I 3 A. in eovcrlmcnt

I ..

f r m t t l ~ c : linivcrsily of'Texas:il Ausun and his Inw dcm?e fro111 St. him's Llnivcrsitv I Scllool of Iaw, and is a former briefng attorney for the Honorable Sam Houston

they were visible to the agents. More over, that court reasoned that the de- fendant consented. Furthermore, be- cause the cal belonged to another, he had no standing to challenge its search If the contraband was visible to the police, the court mtionalized, then it was subject to seizure. The conviction was reversed on other g~ounds, but the search was upheld as reasonable

Consistent with Cmruell, his leason- ing fails to recognize any distinction between an "open view" observation, and what is now recognized as a "plain view" search, as the police had been watching the defendant make deliver- ies of liquor over the course of several hours. This discovery was certainly not inadvertent, not did the Court require it to be.

In the 196OS, forahadowings of a renewed "war"oncontraband fiunished feltile ground for the fu~ther evolution of an open view doctrine. As the federal courts had done, the Court of Criminal Appeals began justifying these searches as incident to a lawfill alrest, blunkg the distinction between an of- fense committed in "open view" and a search "incident to arrest." If police observed the defendant in the act of injecting drugs, for example, it was petniissible forthemto seize contraband found on his person or pelnisesG In Giacuno v. Stnte, 372 S.W.2d 328 (l'ex.Cr.App. 19631, two police offrcers were passing by a house. They went upon the porch of the apartment adja- cent to thedefendant'swhere they heard

loud talk and cursing, and smelled marijuana burning. They moved onto the defendant's porch and looked th~ough an open window where they saw the defendant and his friends smoking marijuana They also saw additional "joints" and "a quantity of green plant substances" on a table. One officer knocked on the door but re- ceived no response The officem then cut the ween door and entered the dwelling. They seized only what they had seen from outside the apartment. When the defendant challenged the legality of the search and seizurc, the Court ofCsiminal Appeals adhered to its lule in Crowell. It was perfectly per- missible for the police to enter into the premises if the defendant was foolish enough to leave his windows open.

On niotion for rehearing, the defen- dant taised federal constitutional is- sues. The Court distinguished the fed- eral cases he cited, and held the war- tantless atlest in Gimtzn was popes, as it was made by police for a felony offense committed m their presence, and seizure of the cont~aband was incident to a lawful anpsr. Unlike the casesargued by the defendant, this was not a situation in which evidence was obtained by virtue of an illegal anest. Giflcunfl, supra at 331. Judge Morrison mote a stinging dissent, wherein he ~hsetved that the question in the instant case was not whether the police had violated a state statute, but whether the :lefendant's rights under Fourth hnendmnent were violated, citing Mapp u. Ohio, 367 US. 643, 81 S.Q. 1684, 6 L.Ed.2d 1081 (1961). The~e was no showing of exigent circumstances - he defendant was not even aware of he officers' presence, and the office~s mew notlung of any offense until they xid set foot on his porch. There was lothing to justify b~eaking into the louse when there was plenty of time to xocule a warrant, as the dissent ob- :erved. One officer could have easily tayed and watched the house while he other went for the warrant, as the lissent observed id., at 334 (Molrison, ., dissenting). Pre-Cooltige Texas cases then, typi-

,ally involved the seizure of incritninat- ng evidence after the pelpetrators had Ben observed by police in the eonl- nission of the offense, as incident to otest. Although police were generally equired to be lawfully in place in older

Cbntrrrufd onp~fgo 26

APRIL 1992

V O I C E FOR T H E DEFENSE

Use of the Texas Intermediate Sanctions Bench Manual* - Part 4 5.11 PRETRIAL SERVICES

a) PI-etrial sewices encompass pro- grams for the release, supelvision and/ or diversion of defendants from local jails who have been arrested for an offense but have not yet gone to trial. I'retrial senices valy depending upon the population to be sewed, the cou~t's/ community's philosophy and available resources. 'She two primary types of pretrial programs are pretrial release and pretrial diversion.

b) Pretrial Release Pretrial release PI-ograms typically

include more than simply releasing a defendant on a personal recognizance bontl, although that may be one aspect of the p~.etrial release program. PL-etrial release programs are designed to pro- vide a wide range of services to I-e- leaseddefendants toensuresubsequent court appeamnces. ~ligibi&

Both FELONY and MlSDEirlEANOR oflendersareelieiblefor oretrial 1.elease - depending upon the standards and critelia established by the local juristlic- tion. Thepopulationse~vedisconip~ised of defendants not typically considered to be a good risk for unsupervised release f~-otn jail while awaiting trial. Additional criteria to consider are the defendant's:

current offense; criminal history; previous record for attending court

appearances; * psychological assessments; and,

ties to the conlniunity. Process

A defendant my be placed in a pre- trial release program through a written court ordel-/bond releasing the person from jail and specifying the I-elease conditions.

T l ~ e Tevns I~~ternfedinte Snnctio~~s Be~zcb ~ lk~r l r f f l l Septen~ber 1991, fucrs de~eloperl and prrblisbed 011 the CJAD of the R w ~ s Depnrlrnenf of Cri~~rinnlJ~istice with ngrnrlt

, f i ~ ~ l r r the Stnte Jlfstice Instifrrte. E~ce~pts from Cbq~fer One mzil Cbnptee,. Hue rq~e,.o- clrrced ruithpemissiox of G[m.

FAILURE TO SUCCESSFUZZ Y COMPLETE THE PRETRIAL RE- LEASE conditions, or failure to make conrt appearances, is a violation of the pretrial release agreement and/or a violation of personal bond reqnirenients. 'She results can include, but ate not limited lo:

additional, more stringent conditions added to the pretrial release agreement while awaiting trial; or,

bontl revocation and return to jail to await trial. k e a l Citations

Article 17.42 Home Cor!finement, Electronic Monitoring, rind Drug Testing as Cotidition pmvides that:

(a) A nragistrate may require as a condition of release on bond that the defendant snbnii~ to:

(1) home confinement and electronic monitoring under the supervision of an agency designated by the magistrate; or,

(2) testing on a weekly basis for the presence of a contl-olled substance in the defendant's body.

(c) if a defendant violates any of these conditions . . . the magistrate may revoke the bond am1 order the defen- dant arrested.

Ailicle 17.42 Conditions Requir- ing AZLW and HZV Znstruction pro- vides that a magistrate may require as a condition of bond that a defendant charged with an offense under Section 43.02, Penal Code (Prostitution), 1.e- ceive counseling and/or education re- lating to acquired immunodeficiency syndl-ome or human inun~~nodeficiency V~RIS.

Article 17.43 Home Cunfew and Electl-onic Monitoring a s Condition states that:

(a) "A magistrate may require as a condition of I-elease on personal bond that the defendant submit to home curfew and eIect1-onic monitoring un- der the supetvision of an agency desig- nated by the magistrate.

(b) Cost of monitoring may be as- sessed as court costs or onlered paid 3irectly by the defendant as a condition 3f bond."

CTAD Standards 321.5 Progra~ns (e) Seruices for offenders provides the design of pro- grams which will benefit offenders un- dersupervision and address their needs. Additionally, participation by the ol- fenders may be ordered as a condition of PI-obation or tenn of release at a time, place and manner which assists suc- cesshl adjustment. Puroose and Goals of Pretrial Re- lease

1'1-etrial Release programs offer the counties a method by which tomnnage tl~eirjaflpopzrlatiotrs while provid- ing for conu~innity protection. These programs also reduce the local costs of maintaining persons in jail, allowing eligible defendants to return to work, hire their own attorneys (ratherthan the county providing court appointed at- torneys) and to provide for their fami- lies while awaiting trial.

Pretrial release typically involves an interview and background check of defendants to determine which persons qualify for the program. Once released fl-om jail, the defendant is required to regularly repolt to the pretrial office to make sure the defendant is complying with conditions of release and is in- formed of all court appearances.

Pretrial releaseredzrces tl~enzrnzber of "no shows" for court appearances which in turn reduces local costs for issuing warrants and rearresting those who fail to appeal- in cou~T. 'I'his provides for a mo~-e efkicnt and cost elfective system of bringing persons to trial.

C) Pretrial Diversion Pretrial diversion programs are de-

signed to offer the criminal justice sys- tem greater flexibility in dealing with firsttimeoffende~~. Successfddive~-sion pa~zicipants can avoid prosecution and possible conviction of their oflense. Defendants may remain in diversion oroemns for a oeriod uo to one vear. jEli&ility

Both FELONY and MISDEMEANOR offenders are eligible for PI-etrial

Co~fti~rr~ed on page 40

17 APRIL 1992

V O I C E F O R THE D E F E N S E

Summary of Significant Decisions of the Courts of Appeals

bj, Roy E. Greenwood

Case Name Court # Offense County Disposition Cause No. Name

FERNANDEZ, GUADALUPE No. 14 4 Drug Brazoria Affiniled +14-90-00217-CR Houston Offenses as Mod.

1. SEIVIEi\TCES(CU1.lU~Oi\'OKnER)- Where A entered four pleas of guilty before a single j u ~ y for four drug offenses, and after jury convicted, trial court cun~ulated some of the sentences, A contends that the cunlulation order was improper under § 3.03, Penal Code; State contends these offenses wel-e not one single criminal episode, 01- that this action was not a "single criminal action" but CA quickly finds that State's argument is without merit, since clearly all offenses were conducted in a single criminal episode; State also contends that since they filed no separate written blotion To Consolidate, under Article 3.02cb) that the trial court had authority to cumulate, but CA notes that both the State and the defense wel-e in agreement on a consolidated trial, and the parties had filed papers in the case, more than 30 days prior to the trial ackno\vledging this consolidation, thus CA assumes that a consolidation was intended by the State, thus trial court erred in cumulating sentences. COhIMENT: CA's analysis of the case is, of course, perfectly reasonable and logical; however, it is in direct conflict with at least two opinions in other Houston cases that held that the State's failure to file tlie written notice allows the trial court to cumulate. I have commented upon this seemingly unfair pl-ocedure before, and it appears opinion shoulcl be the correct resolution.

BETHANY, ALLEN 14 1'01. Galveston Reversed #14-89-00973-CR Houston Manslaughter

1. IRD1L COZmY'(DE1W OPIC4IR 7RL4L- Where first trial ended in mistrial, and a visiting judge came in to hear second trial, and during the second trial, CA notes that trial judge improperly excluded medical records offel-ed by the defense, stated befox the ju~y that he thought A had commiaed pe~july, allowed and encoucaged the State to call one of A's attorneys to the stand as a witness against A, and then subsequently, srraspo~rte disqualified one of A's attorneys fro111 representing A at the punislunent phase of the trial, plus made numerous comments throughout the trial against A's attorneys, and even held one of them in an invalid contempt order, CA holds that tlie rrrll~rero~rsviolations of the judicial cannons of ethics slionred the trial cou~t was acting in a prejudicial and improper manner, and that the cumulative effect of these improper actions on the part of the State and the trial court dcnied A a fair trial in the effective assistance of counsel requiring reversal. COMMENT: CA writes 16 pages explaining trial court's improper actions, and states within the opinion that the list of errors was lrol eA/~szlsted. Appears to me that the judicial Qualifications Comnission has just been given a new case to investigate.

BEAN, LOUIS 14 Agg. Harris Affinned +14-90-00178-CR Houston Robbery

1. JURY(BAISOIIV)-CA makes lengthy analysis of A's Batson claim, and ultimately detenilines that they do no1 11me to ~vuieru the prosecutor's explanations as to the use of his pereniptories for four, black prospective jurors, primarily because A did not follon. the specific thl-ee-pal? test required in Batson to establish a prima facie case; CA holds that in order to establish a prima facie case, Amust show that he is a member of a cognizal~le racial gl-oup, which he didn't show, but notwithstanding that, even tllough Adid show that the prosec~~torexercisedperempto~)~ challenges on other blacks, that A ~lidrrotsbon~tliat these cliallenges were of a discriminato~y fashion, since two black jurors did serve on the jury, and since A did now show ndlether the victims and/or witnesses were black or white, or any other facts or circumstances which gave an indication of prior discrimination by the pmsecutos; thus, CA finds they do not have to review prosecutor's justifiable explanations. COMMENT: Probable PDR here, as this is the first case I can recall where a COUIT of Appeals has no1 nlel-ely reviewed the explanations on their merits, but has cut off the defendant because he has failed to show a prima facie case by failing to put on evidence concerning the prosecutor's prior discriminatoly patterns.

IMO, SIFT 6 I'oss. Marion Affirmed 690-099-CR Texarkana Drugs

1. SEARCHAND SEIZURE (SEARCH K'XRRAAT- CA recognizes that untler I-ecent CCA opinion of HeiI~?rarr u. Stale, #1380- 89, 6/26/91, the law of search and seizu~-es, as viewed under the Poult11 Amendment and under the Texas Constitution may be difhent; CA mpidly determines that the search warrant affidavit in the instant case didnotprouide i~ l fo r~~~a t ion concerning lul~en the informant's infonilation was gathered, and thus, under both federal and state constitutions that affidavit was defective for not having probablc cause; however, see next subject matter.

APRIL 1992

V O I C E FOR T H E DEFENSE

2. SEa7cffARTaSEZ~(~CLUSIONARYR-IITLE)- C4, havingfound that search warrant affidavit lacked probable cause and as defective, nevettheless concludes that under UizitedStrria u. I , n , 1104 S.Ct. 3405, the exclusionaly rule does not apply ifthe conduct would szotdete~'POs from the conduct, and he~e, CA finds there is not lack of "objective good faith" on the part of the offifem in preparing or executing the warrant, thus under the Fourth Amendment, the evidence, even though improperly ohtagned, need not be excluded; CA then holds that under Article I, Section 9, and the merit provisions of Article 38-23 V.A.C.C.P., eBecrive 9/1/87, a defective warrant does not require the exclusiohdry rule applying if the offier is acting in good faith reliance upon the magistrate's finding of probable cause; applying these provisims, CA finds that since A did not raise, in his Brief on Appeal, the issue of the exciiisio~ry rute under the Code of Criminal Procedure of Texas, that they will not review that issue, and thus they find that the exclusmnary rule is inapplicable KO this case COMMENT: Unbelrevable! The CA finds no probable cause, under eithorfede~zl or state constitutions but r i d s that since A did not raise, on appeal, the applicabitty of the Texas "exclusionary rule" rhat he has waived it, and thus finds that the exclusionaly rule does not apply. I think this d i n g clearly flies in the face of the Cmnt of Criminal Appeds recent decision in Curly v. Stahr, 808 S.W.2d 481, which is ??of cited in the CA opinion, and thus either a motion for a rehealing or a PDR appropriate here.

YOUNG, SCOT 5 Murder Dallas Affirmed #5-83-01374CR Dallas

1. CO~ION(YOSI ' INDICTMENT/RIG~TO COUM~J- Where A was indicted and then subsequently arrested, and when hewas an'ilignedhefore the magistrate, andA testified he requested connsel, and there was no euidmmro directly refute this testimony, and A was not appointed counsel unhl several days later, CA holds that A's objections were pdected, and since this was a post indictment case A was entitled to counsel to determine whether. or not he was going to waive counsel for the interrogalion period under Mlchign,f u. Jac&n, 472 U.S. 625, and CA holds that since State did not affirmatively show waiver of couhsel, admission of confession into evidence was error. 2. CONPeS51ON ( H A R M E S ERROR) - While not cited by CA, CA holds that the confession adniitted inm evidence was harmless error, in view of other witness3 testimony. COMMENT: Deceased was killed by .22 caf. pistol, A's confession indicates that A possessed a ,357 cal. pistol, and he admits that he did fire shots at deceased, but claims that another personwas the one wha fired the death shots. The State's eyavitnm contended that A fired all shots, froin a .22 cal. pistoI. COMMENT; I gather what the CA is holding that since A% cobfession is somewhat excuIpatory as to 11unFuhg the death bnllets that it is not haldul to him. However, it seems to me the utilization of a confession in a one witness Sfate's case isa shaky concept under the haimless error mle. Compare Fulmfni~~te u. Arjzwtm.

CUNNINGHAM. WAYNE 5 P m . Dallas Affimed #5-9040398-CR Dallas DN@

1. CRQSS-EMINA?~NIMPFACHMENT(pRTOR PROBA7ED SENl2iNCE)- I l % e A was impeached with prior probation which had been s e d out and not revoked, over A's objection, CA n o w that under Rule 609Cc) prior probations are not admissible if the ptobation has been sewed out ~lnless the defendant had been "convicted af a subsequent crime which is classified as afeiony or involved n~oral hzrpihtde"; CA notes that A had been convicted of additional felonies after the probation had been discharged, and thusunder the phinlanguageofthesratute, the probation was admissible forimpeachment; assuming that the trial court erred however, CA also finds hamdess enor.

GIDDINGS, GERRY 5 Attempted Dallas Affirnled #5-90-00595-CR Dallas Poss. W g s

1. SUFFICIENCY (il?%'MPlBD POSSBSIOWDRUG.X]- Where narcotics agents set up a WU&W sting, offering to sell iron- ex'istenf drugs to A, and A appeared for the meeting, with money to buy the dlugs, nrajodty of court holds that A stated intent to buy, al02Igwith his acts which amounted tomo~v thanmere prepa~ntion did sufficiently constih~ted an crtts~zptedpossession, thus evid~nrr sttfficimt - - . . - - . . - - - - - - - - -- - - . . .. NOTE: J. Baker dissents as he holds A should have been charged with illegal investment. COMMENT: To my recall, this is the fi~stpublished opinion upholding a conviction for ntten~ptedpossession of drugs, thus obvious PDR h a , mpeciatly with J. Baker's dissent.

~- . ";.- ~ .~ ~p~ .-., ._r ' . :: - .R&sc@&&@b,& $& ., , ,,

V O I C E F O R T H E D E F E N S E

THE FEDERAL CORNER What's there that I don't know about? Every lawyer who has prepared the

defense of a criminal case has spent sleepless nights anguishing over that question. With a Texas statute (Art. 39.14 VACCP) and a Federal mle (Rule 16 Fed.R.Crim.Proc.) that restrict dis- covuy, the defendant and his lawyer often find themselves relying on the good faith of the prosecutor - and those protections afforded defendants by the decision of the United States Supreme Court in Bradjt u. kIaryIar8rl, 373 US. 83, 83 S.Ct. 1134, 10 L.Ed.Zd 215 (1963).

Asof March 29,1992, Bradyhad been cited in 2737 opinions of the fedelal courts and in 3437 state court opinions. Even though many - if not most - of these Bra~(popinions ate "fact specific," it is, I would suggest, disheartening to read cases in which the lessons of Brffdj~ and its are still being ignored or, perhaps even worse, "writ- ten around" I>y appellate courts.

The United States Coun of Appeals for the 11th Circuit perceived just such an earlier ignored Bmdy issue in Jacobs 0. Sirgletciry, 952 F.2d 1282 (11th Cir. 1992) - and granted rehef to the pet+- tioner.

Jacobs is a death penalty case which originated in the State of Florida. The facts were a prosecutor's dream A Florida State Trooper, accompanied by a visiting Canadian law enforcement officer, came upon a car at a rest stop m whkb the Petitioner, her two children and two men were a11 asleep. After

by F.R. ' B z ~ k " Files

seeing a gun in the car and learning that one of the men was an ex-convict, the Trooper ordered the men to get out of the car. When one of them did not move quickly enough, the Trooper pulled him from the car. A struggle ensued, and theTrooper and his Cana- dian companion were shot and killed.

Eventually, Jacobs and her compan- Ions were captured and mlicted for numerous state offenses. One of her codefendants (Rhodes) pled guilty, co- operated with the prosecution and re- ceived a life sentence. Jacobs and the remaining co-defendant (Tafe~o) were tried separately. Tafero testified at Jacob's trial that Rhodes had shot and killed the officers. Rhodestestified that Jacobs was the first of the defendants to have a gun, and that the other co- defendant (Tafero) had taken it fiom her and shot the officers Jacob was convicted on all counts. Even though the ju~y reconmended a life sentence, the trial judgeinlposeda deathsentence.

Taferowas tliedsepaiately,convicted, sentenced to death and executed.

By this time, you should already be asking the question, "What was there that Jacobs and her lawyer didn't know about?"

Simply this: Her testifying-for-the- prosecution co-defendant Rhodes had taken a "confi~dential polygraph ex- amination" and had made statements du~ingthisexaminationwhich "differed in several material aspects from his tlial testimony."

According tothe polygclphexaminel's leport:

"[Rhodesl saw Tafero stnigglii with Trooper Black, head a loud report, and then saw Tafero go to the back seat of the Camslo, takeout agun and fire four times at Black, and two times at Invin. [Rhodesl could not be ssoe whether or not Sonia Uacobsl had fired at all. He further stated that no discussion con- cerning the shooting ever took place from tletime they left the c h l e scene,

until the time they were capturedat the road block."

Even though Rhodes was the state's most impoltant eyewitness, these in- consistent statenlents werenot divulged to the defense before trial and would never have come to light but for an inquity of the Flolida Supreme Court during their considelation of the case on appeal.

Srw @on@, that Court had ordered the trial judge to divulge whether or not he had considered any infomation not known to Jacobs when he imposed the death penalty. The judge revealed that he had considered a piwentence inves- tigation fepolt - unavailable to the defense-which containedinfomation about the polygraph examination and the prior inconsistent statements. But for the inquiry of the Florida Supreme Coutt, thisinfornlation woddhavenever have been nrade known to Jacobs and tier lawyer -and Jacobs would prob- ably be deader than a hammer.

It suffices to say that the procedural histo~y of this case is jaundiced at best.

After the contents of the presentence investigation leportwre made known to the defendant, the Florida Supreme Court tempo~arily relinquished its ju- risdiction to the tlial court for a deter- mination to be made as to whether the withholding of the polygraph report violated B~LIIQI, supra. Not surp~is- ingly, the trial judge had no difficulty in concluding that there was no Brffdjl violation because the testimony of Rhodes at trial was consistent with the polygraph i rpo~t .

The Florida Supreme Cot117 affirmed the conviction, but ieversed the death sentence [We can only