LAWYERS - Voice for the Defense Online

8 1992 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

CO~IIIUIS 6 Jane Underwood, President of ERIENDS of TCDLA

7 Catherine Greene Burnett, Director, Advanced Criminal Law Course, Houston, 1992

10 In And Around T e a s Victories in the Pursuit of Justice by John Boston

21 Significant Recent Decisions EYy Catherine GmmeBumbt

27 FedePal Impact Decisions by Charles X Bkm

30 Granted Petitions for Mscretionaq Review

31 Ethics Notes Are We the Keeper of the Rep? bp Kaidh E. J a p i n

33 View From the Bench Petitions for Discretionary Review by Judge Charles F. (Chuck] Campb4 Tkws COUH of Crimiml AppeaLF and Wtlliwm P. O f e m , Research Assistant toJudge Campbell

Lawyer's Assistance Committee Members

DEFENSE

VOLUME 21, NO. 8

~~~t~~~~ 11 HOW to Conduct a Meaningful & Effecthe Voir Dire in Criminal Cases by Catby E. Bennett and Robert B. Himchbomz

13 The Rodney King Trial Revisited by John D. Baaett

14 Sentencing Reform and Prison Crmding in Texas: Facing the Tough Choices of the 1990s by Tony Fabelo

16 How to Use and Understand the Autopsy Report - Part 2 by Dr. Je@q B a m r d , M.D.

18 Search and Sebmm Under State and Federal Law - Part 7 by Jade Marie Meeker

25 Burning Down the Woodshed; Presenting Evidence Without Witnesses - Part 3 by Judge Wallace Bowman

News - 5 Continuing Legal Education

10 Fourth Annual Trial of a Drug Case

32 FRIENDS Membership Application

46 NewMembers

9, 47 Publications

--g* oface Ptm&w&s Eent Alan XhaB'er, Chairperma Aobrrt C. IIlntofl, &4rpnsos

AmfCuaGunIae N- Jim h v ~ , Chal~pem pavB E B m , Chalrpemn

EDITORIAL BOARD

ASSOCIATE DIRECTORS

PAST PRESIDENTS Richard Alan Aaderson Dallas (1991-19921 Tim Evans Fort Worth 11990-1991) Judge JA. m" Bob0 Odessa C1989-1990) Edward A. Mallett Houston (198889)

1 CharlesD.Butts San Antorno (1987 88) Knox Jones McAllen (1986 871 Louis Dugas, Jr. Orange (1985-861 Clifton I. *Scrappyn Hohnes Longnew 0984-85) Thomas G. S m e , Jr. Brownsville (198384) Clifford W. Brown Lubbock (1982-831 Charles M. McDonald Waco (1981-82)

Robert D. Jones Austin (1980-81) Viacent W a l k Perlni Dallas (1979-80) George F. Iuquettee Houston (1978-79) Emmett Calvin Dallas (1977-781 WelQn Holcomb Tvler (1976.77) C: David Evans* San Antonro (1975-761 George E. Gilkerson Lubbock (197475) Phil Burleson Dallas 0973-74) C. Aathony Friloux, Jr. Houston (1972-73) Frank Maloney Austm (1971-72)

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

CONTINUING LEGAL EDUCATION

Tentative Seminar Schedule 1993

January 1415,1993 CDLP Skills Course Westin El Paso

February 10-14,1993 TCDLA Winter Trip Inn at Aspen Aspen, CO

February 25-26,1993 TCDWNACDL Trial of a Drug Case (DoubleTree at Allen Center) Houston

February 27,1993 TCDLA Board Meeting TCDWCDLP Executive Committee Meetings FRIENDS Board Meeting TCDLEI Board Meeting

March 7-12, 1993 CRIMINAL TRIAL ADVOCACY INSTITUTE Sam Houston State University, Criminal Justice Center Huntsville

March, 1993 TCDLA Board Meeting Austin

April 22-23,1993 CDLP Cross Examination Course Arlington

May 20-21,1993 CDLP SKILLS COURSE Midland

June 17-19,1993 The Honorable M.P. llRusty" Duncan, III 6th Annual TCDLA ADVANCED CRIMINAL LAW SHORT COURSE $an Antonio

June 18,1993 TCDLA President's Ball

June 19,1993 TCDLA Annual Meeting TCDWCDLP Executive Committee Meetings FRIENDS Board Meeting TCDLEI Board Meeting The Plaza

July 1516,1993 CDLP Skills Course Denton

August 19-20,1993 CDLP Skills Course Tyler

September 30-October 1,1993 TCDLA Advanced Federal Law Short Course Santa Fe, NM

JOUBNAL OF TAE TEXAS CRJMINAL DEPENSE'Um@,WOma@S VOICE for the D e f m (ISSN 0364,2232) is published regularly by the T g a a Gtifiinal D,&fen!$ @Wy&$$$$&@pt~QO \W. Tafk, &&$&

Texas 78701, (512) 478-2514, FAX No. (512) 469-9107. Annual subscription rare for members ofth6:Wsotigti:ori ES $WQ, which isiilcfudeil in dues.

All articles, conuiburions and advertising inquiries shouldbe addressed to the ediwr, Kerry P.FitzGerald,Attomey at by T~~ioTude creek Village, Suite 1700 Dallas, Texas 752194537, (214) 528-0044.

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

Jane Underwood, President of FRIENDS of

TCDLA


The best way to descr~be Cathy Bumett? There isn't any. Lke so many of our troop, she IS a multifaceted individual

One beauty of the Vdce is that once in a while we inte~iew people we "know" and fmd out how much we really don't "know."

Cathy came on thescene many moons ago. She said she'd p~tch in w1thTCDI.A and she followed up with repeated offers to help. Fully redmng a gold mine when I see one, we enlisted her help in the Voice and she has been a permanent voice w~th the Vozce ever since

Cathy has been vial artorney and appellate advocate. Student and now professor. Frequent speaker at the Advanced Cnirmnal Law Course and Course Drrector in 1992. She is Board Certified and w11l some day (mark our words) write the examinatron.

Cathy was born in Thunder Bay, Canada. She moved to the U S at three so her father could attend law school while recovering frompneumonia. She came to Texas m the second grade, when her father agreed to complete the semester for a St. Maly's Law School professor who had died. The entre family fell in love with Texas and never left. She was educatedmostly in Catholic elementary and high schools. Cathy revised her plans to become a nun when she learned that she couldn't also be lawyer. She went to UT for college and couldn't tear herself away from Austin for 10 years

In 1979, after a stint with the Court of Criminal Appeals and the Enforcement

Contrnued on page45

Catherine Greene Burnett

Director, Advanced

Criminal Law Course

Houston, 1992

V O I C E FOR THE DEFENSE

i IN AND AROUND TEXAS

Victories in the

Pursuit Of Justice

by John Boston

A report on recent TCDLA members' accomplishments.

For the past few monthb we have received by mail, newspaper clrppings and by other means of communication, news of our members laboring in the vineyards of justice and so in this issue's column, we report some of those accomplishments. Of you sent me a notice of a win, or other satisfactory result, and it does not follow, please call or wnte me again, mea cu&).

In no parficular order here goes:

Don Higginbotham and J.B. Brookshire

In October, Georgetown TCDLA members Don Higginbokham and J. B.

state was seeking the death penalty. Williamson County District AttorneyKen Anderson, one of the tougher prosecutors in the state, agreed to life rather than seeking death after hearing the punishment evidence.

Past-President Louis Dugas, Orange, had a client with a true northern ex- posure in whlch the client, charged wlth environmental violations as a ci- vilian fuels officer for the U. S. Navy in Alaska, was charged with three felony and two rmsdemeanor violations of federal environmental law, whlch could have resultedrnup to six yearsin prison and $450,000 in fines. Lawyer Dugas' client was sentencedto tenmonths with recommendations for community service and work release.


Pat Bar& Cc$orado City member, is s true libatarkan, but he does not live up to his surname. Eie is not opposed to long hait, especirllly when the same is prohiited by the CoLorado School DMct and Barber's E-year-old a n , Austin, is the target of bar pmhitrition. Barba recently won a daxs action suit b e h visiting judge Jw Hollow who r ~ l e c ~ the S ~ ~ O O L distric* against wearing of earring$ and lang hair by 118 year old maIes is in violation of the Texas Constitution. The court also awamted M ~ F attorney's fees fur his effom. The district is sppealii.

Preident Goldstein and wx-cornsel, Pdwasd Mailetr, recent@ induced, ae- coldingtoLawyer Goldstein, the "$tin@ Government Ctd Blow . . . Giant Porn cutio ion." The Govement had brought a 5 4 p a s indiaent charging RICO and ~ ~ f o r f e i ~ r e of an est- mated $13.5 million woah of assets nationwide in what the Govemment d e d the "world's largest obscenity pmeeution." The Govemment, after spending $5 million on the as& bribed defendant's employees to steal video- tap" rather than having undercover agents rent them for $925 Cone quarter dollar each). All s m c h t~arrants were b a d o n theFBI'sviewUngthepur1oined films. Result; w i d trim courtppmed evidence,FBI embarrassed; privaeyand capitalism prevail.

JohnBostonhasLmentheExecufive D--or ofthe TCDLA anceJune 1%. From P&nmy 15x30 until cm?ng to TCDtAhewasingeneralpmdieeofIaw in Austin Mr. Boston's main areas of practice were criminal de£en6ea red etate and family law Also, br the past tpa years he has been an independent contractor hearing e m i m forvariows aateagemies, themostrecentbera.gthe %ate B w d of Public Acco- and the Teas Depatment of Commerce. Before entedog The Uniwemky o f T m Law School UD 1979, Mr. Boston gmdu;tt& from -hem Methodist Univerrity (HA 19711, and prior tu that hewas a p11otiRight engineerfmBratuEf Aimpa and 2( Mne aviator. He retired from the USMCR as a colonel in 19%.

Member and Diredor Kyle Welch gone8 Knrrx] & Welch, McAllaZ, effec- Pively debakd hisfant U. S. A t t m q Gxg Surovir: on the federal forfeinrre law, which allow seizure of citizens' propertyon little rnorethan the whimof a government agent. Tbe HcAUen MmEWO+, in a recent editorial, which fmrably ~trentionetd Welch role in the debate, said, 'If you see nothing wrong with the s e h m law'^ obvious violxition of due-process, then it3 probably okay pjith you that the anti-drug wahiors also don't mind deceiving the media. . . ." A reference to the quoted statistic that 54 pemnt of all cocairre s e w b y theMiami airbranch CCwtoms~ involved controlled deliveries - i.e. Governmentmoney, Gmemment dope. Funher, in detectfng flights &arrying drugs, the Hnmpr G%m2e:h repo-d that Customs oalCLals, who cited the effectiveness of the interdiction program, knew where the flights originated and where they were landing in the U.S. before they ever rook off, giuingthe fie tw the effectiveness of the CUS(.oms' detection and suneillanw program. I Lydia Clay-Jackson and Calvin GaMfe

Member.%Lydia Clay$aelcson CConmel and Calvin Gmie (BelIviUe3 obtained a two-word verdict fot W r client in a apitaI murder case tried111 Hempstead. J m n in Dim& Judge Dan Beck's court took about two houn to acquit he accused in a murder trial in which the state had electd to waive the dearh

David Botsford

death penalty. Due to less than happy dfktfting, the amendment left open an interpretation that&estatemustapptove defe-rs waiver of a jury in a misdemeanor case. Everyone, including the pfosecutots, knows the intepgofrhe legislation atas to afTect capital cases only, but irs hard not to be disingenu- ous when. there's much at stake. Terry Kirk, TCDLA Amicus Curiae Commit- tee Co-Chair, has prepared and filedan amicus brief to the Court of Criminal Appedswherehis case is onmotionfor rekeuing.

eo* up:

In comiig issues of the VuIcd we'll discuss the Tewas Punishment S m - dm& Qmmssion P d Code ievIsion and take a look at it 73d Legi&ture.

Every member get a member. Semper fi..

TCDLA Secretary-Treasurer David Edsfard recently got a $W5 &on judgment on behalf oft46 clientfor false imprisonrpwlt The case is on appeal.

Director Ma& W e 1 is rt?pmx@&& Tudae -Bmnt Carr, T m t ~~~ k

mandamus actkm arising our of P mi$: u~lerpretationotArt. 1.13, C.C.P., which ' 4 was xncndeicd t)v the kricbturc in 1991 I

NOTICE

XDLA is preparing a redera1 PreTrial Motions (otebook

?or publication at the Tederal Criminal Law ieminar

'lease send your federal notions to:

.. to allow waiver of jucry trial in capital% wsrs where the Stdle is nvt seeking the 1 '1

Ron Goranson 1 2515 McKinney, LB21

Dallas, TX 75202

Format -Word Perfed5.1 - Word

3.5" Disk


FOURTH ANNUAL T H E T R I A L OF A

DRUG CASE February 25-26 1993

THE DOUBLETREE HOTEL AT ALLEN CENTER 400 Dallas Street Houston, Texas 7 13-759-0202

P- : Your registration must

Address

V O I C E F O R T H E DEFENSE

How to Conduct a Meaningful and Effective Voir Dire in

Criminal Cases by Cathy E. Bennett and Robert B. Hinchhorn

t. Ifltroduction The Federal, State and local govern-

ment bodies have been conducting a constant "war on crme." Over the last three decades, the media's attention to crime issues has often been from a law enforcement perspecme. Thrs media barrage and the government's strength- ening arsenal of legal weapons has affected people's views and has had an impact onthedefenseof citizens accused Of committing a crime. Trying a criminal case in a wartime environment requires careful attention to jury selection.

Most attorneys put more energy into jury selection after the jury has been picked than they do during the actual sdectton of the jury that will hear and try to comprehend their case. Voirdim effectrvely and skillfully conducted is the most important ingredient in winning a trial; yet, goirdireis perhaps the most neglected and overlooked part of the tria1 by most attorneys.

A study by the Hearst Corporation entitled, "The American Public, the Media andtheJudicia1 System," showed that 45 percent of people with prior jury service wrongly believed that a person must prove his or her innocence. This statmtic regarding jurors with prior jug service shows that mstructions gven at the end of a trial donotadequarely help jurors deal with their misconcepuons as they relate to the law.

Merely instructing someone not to have any feeliqs about a case, merrfy instructing that publicity should not affect the jury, merely instructing that an accused citizen does not have to testlfy, is to ignore how human beings operate. Jurors are products of what they have been exposed to, and are thus mirrored reflections of the people, experiences and lifestyles they have

known. n. Preparing for VoIr Dire

Jury selection has three main goals. (1) to elicit information from jurors; C2) to educate jurors on the defense case and defuse the prosecutor's case; and, (3) to establish a relationship between the jurors, the defense attorney and his or her client. Before jury selection begins, however, the theory of the case must be thoroughly developed. If a case is not fully thought out, the attorney will not know the proper audience to choose for the play he or she puts on, nor will he or she know on what parts of the case to educate the jury Thus, the first step in preparing yvir dim is developing a theory of the case. There areanumber of ways to accomplish this goal. Pretrial surrey

One tool is the pretrial survey. This is done by interviewing a cross-section of the communiryto see what they have heard or feel about the case. This information can provide a jury profile and/or assist with a motion for change of venue However, this jury profile information should only be used as a guide. Counsel should not substitute sumy results for in-court observations, information and intuition.

If the survey is conducted for change of venue purposes, bad results should not necessarily Vanslate into a request to change the venue. For example, in the John D e L o ~ m case, tEre prejudg- ment of guilt was tremendous in each ol the jurisdictions surveyed (73 percent of people interviewed felt D e L o m was guikg). Mr. DeLorean's attorneys decided to not seek a change of vemq were able to addras the percepttion of guilt, m d he w a acquitted in both trials. These verdicts were the &a result of the herculean effort put forth

on the part of Mr DeLorean's lawyers, Juanita Brooks and Howard Weitzman. Mock Tnlal

A potent tool is the mock trial This is where you hire people from the community that have been randomly selected and demographically match your typical jury pool in your jurisdiction. You present your case to them to find out whether you are on the right track as to how best to present the facts, or whether you need to emphasize some other theory that you did not think was pattlcularly relevant but the citizens in the community think are significant.

An effective mock trial requres the lawyer to srt-earnlihe the prosecution and the defense so that the presentation takes no more than a day or two. Counsel must prepare and present every aspect of the case from Opening Statemenrs to jury instructions. Lawyers have told the authors that our mock trials have been the most effective tool to help them understand how to cam- rnmcate better with the jury. An attomey might think that idea =A" is the theory of the defense. Then, he or she presents the case to the mock jurors (who are not friends or spouses 6f lawyers an6 do not work for inIS&, only to find out W th* pick" up o& a differenttheom of rhe e m T&&&

V O I C E FOR T H E DEFENSE

tendency to gear the case presemtion to the shadow jtlmsand totally Forgets about the actual jwy.

The mock vial is something that must he done pit-jury seledon. In addition to just listening to what people have to say about yaur specific ease, the mock trial helps you determine what are the necessary questions that have to be asked of jurors during jwy selection, because the mock trial includes a d r &. The primary benefii to the mock Vial are: li) it foxes the lawyer to prepare and sirilplify every aspect of the case prior to mal from both the defense and prosecution perspectives; (ii) the lawyer gets substantial feedback on the themes, evidence and witnesses in the case; C i ) weaknesses and strengths of the m e are uncovered; and, (iv) the most impomnt areas for mir rlim are dmekoped P d i m h q B w i e w

Another tool in dweloping a case strategy is to review the preliminary

hearing and information learned there as well as in discovery. Some things to explore when looking at the evidence for the purpose of uoir dire are: the prosecutor'sev~dence, defenseevidence and the characteristics of the witnesses, attorneys and the defendants in the case. Questionnaires

There is a major movement in this country regarding jury questionnaires. It is being used in fedebal and sate courts. We have gotten them in felony and misdemeanor cases. Judges in rural areas and major cities have found the jury questionnaireto be informative, helpful and can save time. Before you run out and drop a 15-page questionnaire on your judge, be aswe of the following do's and don'ts.

If you have never used a jury questionnaire before, you must lay the foundation far in advance of trial. The questionnaire is designed to obtain information ftm the jurors on hardship,

Cathy E. Bennett, M.A., Pmsident of Cathy E BenneU & Woaates, Inc., which is located in Galveston, Texas, was Considered by may as the nation's leading jury and trial consultant. She assisted in numerous complex and cel- ebrated civil and crimitvdl cases, mclud- @the WoundedKnee, Howard Hughes WIU, John DeLo~gn and the W~Iliam

3iM.w segments. Her career was chron~cied in the New York Times, Washmmton Post, L.A. Times, Houston Post, PeooleMaeatme, The Nahond Law lawad and the American kwvef. %!et Pubiishine Commny wdl pubkh her bookonpry selectionwhich is avdiiable as of December of 1992

Rob&B.Htrschhorn, J.D., is a trial lawyer as well as the lead comultant to C a M E. Bennett 8r Associate& h.,

Criminal lawyers and selected for in- dusion in the 199lNaUonal Dlrecto~of Criminal law vet^. He, &ng with hrs wife, Cathy Bennett, have worked on the MCMartrn Dav Care case, C s l i f o r n r a v . and most lecentlyY the State of Florida v. W&am Kermedv Wth. Robert has been a member of the Faculty of the National Criminal Defense College since 1987 and has Lectured throughout the Un~ted States on the topic of jury selection.

chaueryles for cause and assist in the. intelligent exercise of your peremptory strikes. If you design the instrument properly, it should also benefit opposing counsel. If your questionnaire is one-sided, there is no reason for the promxtor to agree nor for the judge to allow its use.

In a typical Criminal case, you will want to include questions on the juror's anitude about the ctime problem 3n America, if the present punishment sys tem is too hash or too lenient, if the juror, family member or friend has been a victim of crime, good or bad expeii- ences mth law enforcement, and, if the juror has ever held a job or applled for a job with my law enforcement or government agennes. These questions are examples and not exhaustive. Each of these areas of inquiry are helpful to the prosecution. Depending on the defense you are Iunning, counsel should consider including questions that reveal the juror's views on informants, plea bargaining and electronic surveillance. Agafn, the m r s to these questions can benefit the prosecution and any intelligent prosecutor would agree to such a questionnaire. Our experience has genaaIly been that you have a greater likelihood in the court granting a questionnaire if the prosecution joins in your request If the prosecutor will not agtee, do not let that discamage you - many judges have allowed a questionnaire over the ohjection of the state attorney, district attorney, or U.S. attorney. Thus, attempt to reach an agreement with the prosecution. Itmay require you to add, delete or change some questions but this is a small price to pay in exchange for the mformation the questionnaire will yieId.

Let us briefly address some of the concerns defense lawyers raise about the questionnaire. 11 The questionnaire will flushout a loose cannon who could have made h i e r way on to the jury and hung it up. In our experience, most of the l m e cannon types are flushed out during ydr &re. In this day and age, the loose cannon is a rare exception. We seethe opposite benefit to the quesuonnaire. It will flush out the most ardent pro-law enforcement jurors who we could challenge for cause instead of having to use our precious peremptory su-ikes. 21 The questionnaire d leave me little or nothing to talk to the jurors

V Q l C E F O R T H E D E F E N S E

Rodney King Trial Revisited

fw a public h-, priw m-triaX. On lMarch 26, f%i, Officer B&en5

a i d I appured in Los Angclr~ Stqxriur (k~ur t to answer the Indictment. Uc- allse of death %eats aqd tbe genml public w e e that fo~wved the airing ofPhe~oIiids-yVideo, ~huidefendLtnw ware fJak j a c b d were m corn by ~ h ~ ~ a f a d guards %oin ehe Mem Division of the L.A.P.D. C m w d s , o f ~ ~ &&ens screm~~ed ~ i - thm as we entered &e courtroom.

As the pw&ing pldge read rha En- diCrment I wondmd w h ~ t m w y X

mh. Iwuldcksldysmtheflaaofthe InjtdSfatm of&enka and he B"rg OF ire Rate~f F a l f d a , but &e Fmmmp- ton of lmxmce was nowhere in wi- [enre. I Med XO t~ Officer Weno, a year street mp, with two rnatl cMdren, rh-dc we would &d a ~ayinge~bimaWzti.dL Iwmunable 3 convinw mysdE h u & 0ve1 the text f j maath~ I reviewed tew @f hous6~1ds of pages O f p i e d d h w w - q &p&btlc leaders daily pwhimed he guilt of the &a@& offimm md e n d e r e d t h e M a m w f W ~ r y ~ cedes sentencing, ttYe HoUiday tape uas &ced by the F.B.1, &ad I &- tined pham of that mpe, fi;une by mme. '&e photo6 m d elow mation onGnned wwhat: 0.Efim Bzisem later l s t i f r p d m ~ t ~ : Heuiedmstoptfit! tm& He gmbbed Officer Pawelf% mtan m d pushed him awey fmm Mr. ;in@. Im&Wy, we requested the W.dl

temsFemtdfmmLgs Anget= Calnq. To such motion had hem granted in a AngeIes County in the psior My can. 8 f m k motions fm &nge of erme? denied M cases Mwklag he Cbrb *Aafl~~n and sirhn Sirhajl. Xlr m a w was W e d . On June 6, 1991, wc petitioned thc

~ppelhtc (bun to gnnt tlle motion for hatlge of venue. @nJ~ly23~ 1991, thecotvt of A p p d

&re4 the case t r a d e d fmm Lop An$ebi "90 e%tmlgiweand pervasive hm been

t h e ~ ~ ~ c o v e q @ , andw 1ntenseb b t a e the poiiSIea1 falleup, penrial j u m have Ixxm infected to the ezk% there js P reawmble IildhOad that a fair and im&xr&l ~ i a l cannatbe had in IDS An$e1e6 Go&y.z

It it+ intenstlng m note that attached t4 . theCQwrta fAppLWmwma letter wdtten t~ the Coa ofAppz41 by the M&@n Amedw Pa1W k w chtionthreatentng vialenee ifthe Cowt a f A . p @ ~ k d o w p e t i t i a n & ~ aE venue. The Cam bf AppeEtl &ed rhat l e t t e k as &her evidence rhm &rrged&emc~uldnet~afatrtsiaI inlursAnge1es Gsunty.

Pursuant m the WrfcmB hies of Gollrt h e State ~ u d i d fmifd ltlade itxpicpf th 0 t h ~ cornties i n c . k w vh hiPd 9paee ~ d d A e to hegt our case. W e counties, Veatura, Orange and Alan& were amiable. The trial counhe ldahdg1:~ determinewhich af Chase t h e cwnties w d d receive ourm~e. The kmcamsid&hy the -1 wurt wae conm&ce of the pa& sad Me espams asaocir7d with the ttaasfa. The praseartion requested &am& Counw, whf& i~ fise h u n d r e d ~ e n o n h d ~ ~ e s .

Office, w h a t he tried <we, 100 criminal juq Onicer for t t ~ c ( h w d , Harhrx'and Swrh Or


Sentencing Reform and Prison Crowding in Texas:

Facing the Tough Choices of the 1990s by Tony Fabelo, Ph.D., Executive Director, C?+rninal Justice Policy Council

Introduction In 1983, the Texas Legislature estab-

lished the co~nmission on Sentencing practices and Procedures. The Com- mission was charged with, among others things, the examination of whether sentencing patterns were "realistic in light oC the cost of incarceration." The Commission made broad recommendations in 1985 that led to minor statutory changes to solve "inconsistencies and contradictions" in the sentencing code. However, no sentencing changes were proposed to make sentencing patterns "realistic" even though at the time state officials thought that prison cowding had reached crisis proportions. In the late 1980's only increased releases from prison and a backlog of state inmates in county jails kept the population and capacity balanced. New probation alternatives were also imple- mented in the hope that the prison population growth could be controlled through community "diversions."

Eight years have passed since the sentencing commission made their recommendations. In that time, the number of offenders sentenced to prison in Texas has more than doubled. In 1991 over 54,000 offenders were sentenced to prison compared to almost 26,000 in 1985. The doublingof the prison population has been fueled mostly by a Four- fold increase in the sentencing of drug offenders to prison and by an increase in recidivism. In 1991 almost 6 out of every 10 offenders sentenced to prison were convicted for new crimes while they were under klony probation or parole supervision. The increase in incarceration during the late 1980's also had a disproportional impact on Blacks. In 1991 the incarceration rate for Blacks was eight limes higher than the incarceration rate of Whites and five time higher than that of Hispanics. Much of

14

this increase in the incarceration rate of Black is accounted for by the increase in the number of Blacks sentenced to prison for drug offenses. Low Public Conf~dence in the Criminal Justice System

The increased rate of incarceration has crowded the prison system to the point that the prison sanction seems meaningless to the public and practi- tionex alike. Between 1985 and 1991

Yn August 1991, 3 out of

eve y 100 adults in the state

(or 3 75,068 people) were

under some form of cr-imi-

naljustice supervision."

median time served by state offenders released from prison or jails decreased by 27%. Spate inmates released from institutional custody in 1991 served a median time of 11.2 months of 13% of their sentence. This compares to 33%of sentence served in 1985. For violent offenders the percentage of sentence served declined from 38% in 1985 to 26% in 1991. For every year of their prison sentence, violent offenders released from prison in 1991 served a median time of 95 days, property offenders served 44 days, and drug offenders served 40 days of actual time.

AS more drug offenders have been sentenced to prison, andprisoncapacity has not kept pace, less prison space has been '"resenred for the most violent offenders. Parole releases have been

lsed as a safety valve to manage the xison crowding, resulting in a 260% ncrease in the number of parole r e eases between 1985 and 1991. Con- iequently, the amount of time served ,y many offenders decreased. Even ~ i t h this decease in time served - requently tenned "outrageous" by some xate officials and the public - and iespite a 35% increase in prison capacity it a cost of over one billion dollars and i 40% increase in the number of of- 'enders newly placed on probation, the xison system during this time could lot accommodate the demand forprison space. Convicted felons sentenced to xison who have not yet been admitted 3ecause of lack of space remain in a 'backlog" of inmates residing in county ails - a backlog that did not exist in 1985 and today represents over 17,000 zonvicted felons.

The number of inmates in prison and ails, and the number of offenders on probation and parole have made the Texas criminal justice system the largest in h e nation. In August 1991, 3 out of Every 100 adults inthe state (or 375,068 ~eople) were under some form of criminal justice supervision. The populationunder the supelvision of the criminal justice system in Texas is larger than the population of the metropolitan areas of Abilene, Amarillo, Beaumont, Brownsville, College Station, Corpus Christi, Galveston, Laredo, Lubbock, Midland, Odessa, San Angclo, Texarkana, Tyler, Waco or Wichita Falls. Still, with this larger population under some "control" by authorities, the violent crime rate in Texas between 1985 and 1991 increased by 53%. In 1991 there were 145,718 murders, rapes, robberies and assaults reported in the state. This was lhe largest number of violent crimes ever reported in the history of the state.

k-d cprfwdiig in clsnlW1 bti-rnab-edrparo1Pr retI&$ss, i n c r e a s ~ d cmmwtlfy mrrecxians wwklmds and inc~eased ukrlmt c r w have a@aivel~ affected fhe puZJ:~c's cerilzdepree in the ~~ kind hw khstmmd sac &&&IS and &M@l &&c& p m a m a . %dm, h e WWWS i-w txf the ceMnd jmfm mtem - IhR st.aa&g pm- tic&andpnrcedm-m*wclr,r egamin$tiOii tc, &aeon& if modifrcp-

arxt new- nt malne ctii~&all &@ee pnlwes xnm mpmh To con&@ Ghi;i wa&n&m arrd make recommendutiuns the Texas Iegisli~turc in 1991 created tho 'l'unishment .%an--

C@mn&sim.* Challenge: Mad Csalltfom to &ippm%BSfmm~R&

T k aLoisheq~ 3~mdaraS &&- slon is ch@xl vdth wising %he at p&mtR% a d pmile &s to enme d m " h e &%edanr$ c~ar ic izd of o f k ~ m t t r a t cmseIhe grwmt h t~ sect* BZ pose %be g s e a t a threat %rf fubmb@n tomcietymea- portisn af thejr sea- gn ~,chal m n m t " The impetus t&ts fime is mat d y t.0 make smtencf~ mdbtic bemusg of the cg;lt txfmm&a&w1 but to &e se&&ng ''hamast. * Hoimty in SentI?nCrng meam &a6 @son sen- t@lfX8- b a ~ WrW &eCL&&bl3 CQ &e time an offender is expected t~ mwekpf4mn. B y ~ . s e n m ~ mwm &r n & & m ~ a d bv

tu m c & k tlte impaa on thc system of proposed charges. The Ckimiml Justice

Policy thuncil was creatc~l by the kg- islature in 1CB3 and WAS ctiargfil with . . contluctingprugram evaluations, iniyact stuclics and long-tcm planning for thc

&ember; of thc p r ~ w n t ~ o k i s s i o n must feel that the sysccnl now is at t t~c brink of collapse. Uut to fulfill their stared goals the ptr:wa conunissiun must crcate broad ccnlilions Lh:u wiU support the lrgi~slature in theiradoption of what I cAl "sticker 6tax:k politics." l'hesearc policies that il'adoptcd would shock the puMc's apparent belief that "wugh" on crimcpolicicti c a n 1x:effcuive withour vastly inmasing comcti<m:~l

u) 10Wh of their scntcnc.es, prison sen- knees would have to Ix &creased to

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

How to Use and Understand The Autopsy Report

by Jefrey J. Earnard, M.D. Dallas County Medical Examiner's OfSice

Part 2

11. Wounds and Injunes A. Firems Lnjuries: Injuries created by firearms are due to the kinetic energy impacted by a bullet or projectile The kmetic energy is equal tomv2divided by 2g inwhich g is gravitational acceleration Ca constant), m is the mass of the bullet, and v is the velocity of the bullet. Velocity plays a greater role because if you double the weight, you double the kinetic energy, but if you double velocity, you qua- druple kinetic energy.

1. -d For practical purposes the term gum shot wound is used for wounds created by handguns. When no projectde is recovered from the body and there is no clear evidence that a nfle or shotgun was used, the wounds are called gunshot wounds.

a. Entrance wound: The entrance wound can be round, oval, or irregular. If round, then this suggests that the impact with the skin surface was nearly perpendicular. Thewoundmay be larger than the bullet

underlying bone or may be smaller than the actual bullet due to the elasticity of the skin. The wound may also be irregular due to the underlying bony structures, overlying clothing, or an mntermecliaty target. As the bullet stnkestheslrinsurface it scrapes (or abrades) the surrounding skin prior to perforation. If the bullet

strikes perpendicular to the skin, then the %brasion is symmetrical. If the bullet strikes the skin at an angle, then the abrasion is eccen- tric and is greatest on the side with the acute angle to the skin surface. The en- tiance ,wound should he measured in relatlon to the midline of the body and from the top of the head or soles of the feet Occasion- ally another anatomical landmark is also used. In addition to these features, it is necessary to describe whether the f i rems residues are present, adjacent to or surrounding the entrance wound. The rex- dues consist of soot lcarbon and vaporized metals) and gunpowder stippling or tattoomg. Gunpowder stippling consists of powder embedded into the skin surface and although tat- tooing practtcally u considered synonymous with stippling, it actually indicates punctate red-brown to orange discolored abm- sions in the skin created by the impact of gunpowder on the skin surface. Fi- a r m residues are important in the determination of the range of fire. b. Path: Following the description of the entrance wound, the next section shouldsequentdy describe the bullet's path and which organs or major vessels were injured. Additionally, any injuries or hemorrhages

mbquen t to ?he gunshot would should be included c. Exit womd+ When an exit wound is present it should be desaibed in a similar M m to the en- imnce wound (excluding residues) with measurrr. berm from the ~ o p d r h e head and to its location relarive to the midline. Generally the exit wo& irre@arandlargerthanthe entrance wound. The Thet wound may be skellallate, irregular, circular, or slit-like. The hegular appqiranrx is due todesWdization ofthe bullet in its path On other wmds, loss of kinetic energy) aild defomatiw of the bullet. Most exitwounds contain no abrasions, but mmsionally an abrasion is preseilt and is celled a s h o d exit wound. This WCUE because the skin is reinforced or "shorecl" by fmoverlying surfacewhen the bdler ex&. This isseen when the skin is braced against a floor, supported again= a wall Cchair, firm surface, e t d , or against tight supportive garments. The skineverts as thebullet exits and scmpesthe skinsurface ;yralnsc the f i oveflving s&ace. d. Bullet recovered: When a bullet is recovered, its locarionshouldbedesujlsed and measured when possible, but inmany cases it is anpractical to measure, e.9- pecially when the bullet is lodged within an organ or


within a body cavity. The general condition (deformed vs. non-deformed) of thebullet shouldbegiven andwhether the bullet does or does nor containa jacket. The bullet should be described generally as to caliber (small, medium, and large) and how and where the bullet a mscribed. Bul- lets should never be in- scribed on the sides of the bullet if nfling is present, but should be labeled on the base, nose, or deformed surface A general description of calrberincludessmall C.22 and .25 caliber), medium C.32, ,357, 9mm, and .38 caliber), and large call- ber C.44 and .45 caliber). e. Direction: Once the bullet track is idenufied, a direction should be given and generally described as to front vs. back, right vs left, and up vs. down. Angles: Measurement of angles is impractical and difficult to ascertain smce the surface is not flat and any deflectron along a bullet path changes the angle relative to the skin surface. f Range of fire. There are many subcategories of the range of fife which are too complicated for practical use - The following ranges are used by our office and the majority of offices in the country: Contact range: Soot is present on the skin surface or in depths of the wound track. The barrel ttp is in contact orverynear contact to the skm surface. Close range Soot and stipphng are present on the skin surface. The barrel tlp is within a few inches of the skin surface Medium (intermediate) range: Stipplmg or powder tattoomg alone 1s present on the skin surface. The barrel tip i$ seyeral inches to several feet from the skin surface. Distanf range: No soot or

stippling is preent on the skin surface. The barrel up is several feet from the skin surface Indeterminate range of fire: Either history orappearance of the wound suggests or Indicates interposed target. What must be remembered is that the specific range of fire is unique to each weapon and its specific ammunition. Deposition of residue on a wound is dependent on a multitude of factors including the actual range or distance, type of propellant, angle of the muzzle to target, barrel length, caliber of weapon,

" type of weapon, target ma- terial, and the state of the target. For a true range of fue m a speafic case, the suspect weapon with iden- tical ammunition should be test fired to create a similar resrdue pattern. The request Eor test fw is both the prosecutor and defense attorney's responsibility.

2 Shot- wounds a. Descriptions: Shotguns differ from handguns and rifles in both their constmc- tion and ammunition. Both handguns and rifles fire single projectiles through a

Dr.JeffreyBarnai4M.D. hassemed the Institute Of Forenstc Scienc~ tn Dallas hrst as Deputy Me&cal Exam- iner, then Senlor Mediral Exarmner and, smce Apnl 1991, as Chief Medlcal Ex- amner. Herece~vedhis B S. fromTelras A&M UniversltyandhsM D fromTexas ABrMCoUegeofMedlcme IIelsiicensed by the National Board of Medical &- amnersandmTexas andNewYmk He has received certificat~on from the Amencan Board of Pathology in Am- tormc and Climcal Pathology and the AnenaanBosrd ofPathologyin Forensic Pathology. Qr Barnard is currently semng as Assouate Professm in Pa- thology at the University of Tez Southwestern Medtcal Center at Dall HIS memberships inelu.de the A Texas and Dallas CounW Medi cilrivnb, llle TexJs 'iocivry of r . v . u u w gist, xal rhar orzxnijlation's Council uf I I Forensic pathology. I I

rifled barrel as compared to shotguns whrch have a smooth bore. Handguns and rifles f ~ e smgle projec- ules and although shotguns can fire a single projecttie (slug) they more commonly fire numerous projectdes (either b~rd shot or buckshot). b Gauge Th~s term ts used to describe the caliber of a shotgun and refers to the number of lead balls of a g~ven bore diameter necessary to equal a pound. A 12-gauge shotgun refers to the bore drarneter in which 12 lead balls of that bore equal one pound. Typical @uges Include 10- gauge, 12-gauge, 16-gauge, 20-gauge, 28-gauge, and ,410-gauge. The most popular shotgun is the 12- gauge The 410-gauge shotgun varies from the previous descriptron of gauges and spec$ica!ly m- dcates a bore diameter of 410 inches. c. Ammunition. Three main types of ammunition are commonly fwed from shotguns: bud shot, buckshot, and slugs. The different manufacturers have different wadding for each type of ammunitron The entrance wound pattern varies according to the


Search and Seizure Under State and Federal Law

by Judge Jade Marie Meeker

Part 7

B. "STOP AND FRISK'' CmRRY STOP) EXCEPXlON.

r. T~~ stops. The "stop and frisk" exception to the

w a r m requirement$ which applies when oEtcers briefly defain a suspect, vm establishedin Tenyu. Oh&, 392 US. I , @ SCt. 1868, 20 LEd2d 889 (19681. In that case, the Supreme Court rejected the notion that the Fourth Amendment didnot apply if officers stoppedshort of a fdl custodial a m t .

In Amores u. St~te, 816 S.W.2d 407 CTex.Cr.app. 19911, the Court of Criminal Appeals noted that the invwigative detention contemplated m Teny is one dwrng which the police are allowed to Mefly question a suspicious person respecting his or her identity, reawn for being in the area, or to make similar

' reasonable inquiries of atruly invatiga- m e nature.

A brief stop of a suspicious individual is permitted to determine identity or obtain more information. A d a m v. WEWS, 92 S Ct. at 1923, and Terry In order to justify the initial stop under both federal andstate law, officers must have specific, articulablefacts which, m light of their experience and personal knowledge, together with inferences wkch arise from those facts, would wan-ant the detention. T* and Adnms u. Williams, Aredemon u. St-, 701 S W.2d868 &x.Cr.App. 19851, G l m u State, 681 S.W.2d 599 mex.Cr.App. 1989; Meek !X&wu Stat6 588S.W.Zd 920 (Tex.CrApp. 1979); Blrrm, Adams v. State, 552 S.W.2d 812 (Tex..Cr.App 19m, and Milton

Probable cause, however, is not required to justify an investigatory stop since an investigation is a lesser intrusion than an arrest; rather, each case must be considered on its facts to determine whether the officer had "reasonable grounds to believe'' the stop was jusrified. Alabama u. UQire, 110 S.Ct. 2412 (19901, Teny, and Adams u. 18

W/iliumr, 407 U.S, 1113,92 S.Q. 1921,32 L.Ed.2d 612 (1972). See also Flo* u. Roy% 460 US. 491,103 S.Ct. 1319,75 L.Ed.2d 229 (1983). The test applicable to Tenystops is, therefore, basedupon reasonable suspicion

Mere suspicion for a R?ry stop is insufficient:

the facts must support a reasonable suspicion that:

1. Some agivity out ofthe ordinary is occurring or has pccurred,

2. The suspect is connected with the suspicious activity, and

3. The suspicious activity is related to crime.

Terry, and Unitsd&tes v. Corte~and Hwpadez-Loaa, 449 US. 411, 101 s.ct 6 9 ~ 6 6 L ~d zd 621 (lw), ~o a g 9. State, 728 S.W.2d 375 CTex.Cr.App. 19871, and Meek, 653 S.W.2d at 12.

In Cmcketb v Sfme, 8Q3 S.W.2d 308 CCexCr.App. 19912, the Court considered state and federal law and noted that the circumstances giving rise to a suspicion need not be criminal in themselves. Rather, they could include any facts which would increase the likelihood of criminal activity, citing UnitedStates u. Sokolow, 109 S.Ct. 1581 (19893. The degree of coadence necessary to believe that the evidence suppom a reasonable suspicion of

, . cmmal conduct varies according to the level of interference with the individual's liberty and the extent to which law enforcement relies on the interference.

2. TBny frisks for weapons. Under Teny, if an officer reasonably

believes, based on specific and articulable facts and not on mere unparticularized suspicion, that he or she is dealing with a person who may be armed and dangerous, the &cer may conduct a brief pat-down frisk of the person's outer d o b g to discover weapons. A frisk is not, however, permitted simply because a stop is jusrifled. T E ~ and M a y b n d v . M 110 S.Gr 1093 (19901.

The officer need not be absolurely certain that the individual is armed: the issue is whether a reasonable person m the same circumstances would be warranted in the belief that his or her safety, or the safety of others was in danger. Terry, 392 US. at 27

In Holladay w. Stde, 805 S.W.2d 464 (Tex.Cr.App. r99lJ,theCourtofCriminal Apperrls applied consrderedfederal law and noted that "reqonable suspicion" is somethhg more thanan inchoate and unparticularized suspieian or hunch, but is considembly less than proof of wrongdoing by a prepondemce, citing Cum'tedStetes~. Sokolow, 109 S.Ct. 1581 (19892 the Court held that the facts @tified the invemgative detention in this case.

In Spillinan u. State, - S W.2d - (Tex.App. - Austin No. 3-9141CR1, delivaed Feb~a ty 26, 19921, the appellate court upheld a frisk forweapons when the record reflected that the officer conducted the fnsk to search for weapons and that the search was conducted for the officer's safety.

3. Federal rules followed in Texas. These rules are followed in Texas.

Meeksv. SW, 653S.W.Zcl6 (Tst.Cr.App. 1983); Bmna u. State, 571 S.W.2d 314 (Tex.Cr.App. 197@, Fatemiu. State, 558 S.W 2d 463 Ueg.Cr App. i s m , Milton u. S$Qt6 549 S.W 2d 190 (Tex.Cr.App. 1977); and Mann u State, 525 S.W.2d 174 CTex.Cr.App. 1975).

4. Scope. The officer may conduct a brief pat-

down of the detainee's outer clathing. Teny The officer may also pat-down personal atticles, such as purses. In Wortbey u State, 805 S.W.2d 435 (rsr.Cr.App. 1990,the Courtof Criminal Appeals considered federal Fourth Amendment law and noted that under Teny, the relevant inquiries relate to whether the officer's actions m e jus- nfied and whether the actions were reasonably related m scope to the w- cumstailces. In that cgse, the officer searched the defendant's purse because


the mmt he offleern wdd, as a PPP cautionary matter a d without pmb- able cam or reasonde suspidon. look in closets and dthek spaces izo- mediare17 &jo6'qg thk. place of artesr fmm whieh an attack coutd be h e - a t & launched. IBm discurnion of search?= inckient to amas st@%% I Beyqnd &a& hwever, we Wd that thee must ke Wculable facts wh& taken W e r with the ratiorial inferences Prom&mfacts, wmldwarmnta reaso~i~b1y p ~ d e n t &er in hekxing that the a m m be wept hmbors an individual posinga daa$,er to those on the &rest scene. This is no more andno l e s s t h a n w w d i n Tqand-, a d ss in b e cases, we this b&ee is the prpper one."

TheSupreme Gouft, hs,wever,umited the scope of a hause "f~%k":

%e A d d emphasize that such a prokx&e sweep, aimed u prateaing the amting nfficws, E ju&W by z k drcumstances, is weaheless not ahl l @such ofthe pxemtm2 hut may extend only to a cursory hspctmn of those "pile where a person may he found. The sweep Iasta: no 10- than is net- w"y to dispel thermwdle suspicion of dan$er and ih wy event no longer than rt talces to complete the a&& anti depart the prelnh5."

Thus, the pmect+ve sweep ~nU6t he jmaed hy r$e facts, and is limitad in smpeb se;zrchofthatwhichisnweswy To protect officterrs' d e w .

7 . Pederal cases. a. Fats sufWenf to justify a T q

stop. Akh-una u %?me, 111g $.a. 2&2

C1990$. The Supremecourt: tgmredtbis a " c b e case."' Fofice recWed an ~nymoustipthat&defen& wauld leave a cemin a p a m a% a paakular tiraeinahtownFl~uth staci-onwagon with a bmkcn tdlight and go ta a ceaaiomotel. Shewouldbecanyingan &Xache &e mntainingrJOMjlle. Poiice went m the qsmnent, sm the ier, which the defenddnt got into, and fot lwdit tothemoteL Theystopped&he car and with rhe [email protected] c ~ w t , searched an atbfche tam, @iW.Qs , matijuana. The m n p m s ri%, wa~&I~, not akme be susufficfmt to @t@ _&', stop. Wtb cwoFi&nw&& <,I there were w@iciw _fag&

two others irnr~~cdiately The defendan1 rwricd n

$1 i~a~~o~rtainin~envclopcsof cmck eowmc, nrarijuana, and $1454 in cash.

- .

ce of the Peace R&nct-5 in Travis


The Court of Appeals rejected the State's clam of sufficient facts to pstify an investigative detention The Court of Criminal Appeals remanded the case to the appellate court to reconsider the case in light of Culifomra u. Hodad, D., Ill S Ct 1%7(19913, notingthatHodari implies that flight alone may be enough to justify a temporary detention.

a. Facts sufficient to jnstlfy a Terty stop.

Louis u State, -S W 2d- (Tex.App. - Houston 114thl No. B14-91-329CR, delivered February 13, 1992): Officers were informed about an armed robbery, and were given the suspects' descriptions and a description of the car Even though there were diuepancies between the radio dispatch's description of the car and the number of people mvolved, the stop was reasonable.

State u. Ha??tmitttt - S.W.2d - (TexApp -Beaumont, No. 9-91-12CR, delivered January 8, 1992): Officers were patrolling a hlgh-crime area at 1:00 a m and noticed two black males standing by a car parked in a public parking lot. When the two males saw the officers, they ran away. Officers pursued the men and radioed in the license plate number of the car. The dispatch informauon showed "no re- sponse," which indicated a newly reg- isteredvehicle, an unregistered vehicle, or an altered license plate When the officer shined a flashlight into the car to obtain the vehicle identification number, he saw contraband in plain view. The court held the stop was reasonAble because ofthe suspiciousdreunsances: "should the tnal judge . . be correct tn suppressing the contraband, then law enforcement may just as well turn in their badges hang up their weapons, abandon their cause, and slmply sur- render society to whatever."

Davis u State, -- S.W.2d -_ (Tea Cr app. No. 200-91, delivered February 19,1992): The defendant was one of three males standing in front of an apartment, as desutbed in a police dispatch regarding possible drug sales. The men attempted to flee when they saw the patrol car and the defendant was suspiciously wearlng a trench coat on a warm day.

Holladay u, State, 805 S.W.2d 464 (Tex.CrApp. 1991): The Court of Criminal Appeals considered only federal Fourth Amendment law in ruling the facts justified a Tery stop The defendtint deplaned with another man

from a flight from Miami, a known drug source city. Both men scanned the lounge area of the airport before wdk- ing to the monitor and appeared nervous. The defendant lied about arriving in Houston on a flight from Miam and about travelling wtth the other man Also, the defendant was nervous when he produced identification [The Court held that the officer's initial questtoning did not constitute a stop because "police are as free as anyone else to ask questions of their fellow citizens." Holkaday, slip op. at 11, citing Daniels u. State, 781 S.W.2d 702 (Tex.Cr.App. 1980. The defendant was officially "stopped" when the officer asked for consent to search the defendant's lug- -

gage.] Houg u. State, 728 S.W.2d 375

(Tex.CrApp 1987): Police saw the defendant oark his vehicle and walk to a neighb&hood two blocks away He approached a house, knocked on the door, and looked around suspiciously. He then walked around the side of the house to the backyard, returned and walked back to his car There were no signs of burglary at the house.

Marsh u. State, 684 S W.2d 676 (Tex Cr.App. 1984): A Texas Ranger was fishing on a ranch in Fort Bend County and noticed activity consistent with unloading cargo on the ranch's grass landing strip shortly before mid- night The officer knew that clandes- tme rende~vous with aircraft in remote locations in the dead of night were standard practices in the drug impom- tion trade.

Meeks u State, 653 S W 2d 6 (Tex.CrApp. 1983): Two officers were on routine patrol in a high crime area of Houston and saw the defendant walking toward a parked car and away from a vacant lot where a semi-tractor/trailer and a stake-bed truck were parked. The defendant appeared to be cahying a small gun tn his hand.

Brem ZJ State, 571 S.W.2d 314 CTex.Cr.App. 1978): The defendant ,was a suspect in several rapes. An officer received a radio call concerning a rape and drove to the defendant's house. The defendant arrived a few minutes later and fit the description of the assailant described in the radio call. He was wearmg jeans buttoned only at

App. 19771: A& informer told officers that he personally saw that the defen-

dant had heroin. He described how the heroin was packaged and said that the defendant could be located at the Yel- low Cab Cafe Within five minutes after surveillance was set up at the cafe, the defendant was seen walking toward the cafe. When the defendant apparently observed a marked patrol car turn the cornerthe comer, he entnedthe cafeas if to avoid detection

AmmlIa U . Sfute, 554 S.WZd 700 (Tex Cr.App. 1977): The defendant was seen at 130 a m in a high m e area standing by an open trunk of a car parked beside a Woolco Store that was dosed. As the officers drove by, the defendant closed the trunk, got into the car, and drove away.

Thompson u. State, 533 S.W 2d 825 CTex.Cr App. 19763: A male defendant was seen walking in a high crime area at 1.00 a m , carrying a suacase with a woman's name on the identification tag.

b. Insufficient facts to justify a Teny stop.

Viueros u State, - S.W 2d - (Tex Cr.Aoo. No 1228-90. delivered February %, 1992): T&O D.P S. officers were patrolling an Interstate highway using moving radar. The defendant drove past them at 65 m.p.h., then slowed to 45 m.p.h. and drove at that speed for nearly a mile, when officers stopped him One officer shined his flashli~ht into the defendant's car and

defendant's permissron to search the car and found cocaine and marijuana. The Court ofAppeals held that the plain view doctrine did not apply and the consent was invalid because it was tamted by the illegal stop. Thc Court of Criminal Appeals affrmed, holding first that officers lacked sufficient facts to justify the stop. the officer stopped the defendant because of "suspicious be- havior," which was nothing more than an inference that somethmg out of the ordinary was happening. Second, the plainview observation of the maujuana and the defendant's consent to search flowed from the illegal stop rendering the ev~dence discovered from the stop inadmissible.

The facts were deemed msuffinent to justify a Terry frisk in Horn u. State, - S.W.2d - (Tex.App. -Corpus Christi, No. 1S91-lOOCR, delivered January 30,


1 SIGNIFICANT RECENT DECISIONS I Editor: Catherine Greene Burnett

JWRY iMIW'amua BAIWFF CONWRF& TIoNwlTEpORt D FAILS TO SBOW mJuaIcB. mm, so, 7 0 , m JaaJIzuy 15,Ig9& o p m ljJT Judge Overstmet$ Judge MeCormlck eencms$ Ju%e

*his wscdernc~ls&es &&a pxmmp~mis rebnkb~e. In order to be entitled to a new M, D mmt be able to show he s & W s m z ~ u r y . FACTS: Duriag deliberation at the ,@It-Ihnmmce s t e e of D's capital murder M, &e jwy sent mr twa qu@sti~sls relating ta w e . Thls muW h addi(iQd im&n,s behg given t~ tke jury. %Me thaw immaiana were be&g prepared, BalliffXtoldJurorY (who was ovch the hallway, m%oIrin$) rhat X 'nad made b r reservariom for that evening for rhc jun~w. At 1)'s motion for new trial hearing, tlic bailiff also ttstifid that hc mizht havt: sxid "that there! was gomg te be a change. in 'the & c-e' and that the judge would talk t~ the jury abut it." The bailiff testlfred the hey Mnb3. he as!+& Jum Y was "8 they were ~etttw doser sotncthir~g or thc other like that t&re thcy ;&ht'wx~t to 80 to supper." Y xsponded that thc jury was still duliber~ting. luror Y did not tcsiifv :it the ~nc~tir~ti for 11c.w t r i l l l ~ e ~ r i n a . ", 'p6uanab1p because &f ari mmea-s d t q mipnmf. Errafmr, Dtesified to a dilfqxnt vesis,noftheronyer@atian betpreen the hem &juror Y. D stated k m % e ofrbe Icx.dtion of t l~c holding cell, he was d ~ l c KI overirhcar thLs wrivewtion. 0 restifid that ht: head thc 1)ailifT stx:cifiolJv & whether the iury '@had come dose to a mhct pa' kcording to a, fhe bairn &Q told the @or that if the j t q dkWE reti& a d-on by 7:00 that evening, he was @&g rake them M supper, a d "then they would come tadsand they w d d he here ontit they reached 8 dr&d@ia.#4 Dk in~astigator testifred that duriog: a flast-trial .latemime @f &z jurbs, 3% w w e m sewed w i~dieate hf no n~n~'%%fiDrri twk place WLW the WIH.

HELD: . m i d . M ~ N A L E : T& w i r ~ ~ r n d u e t v % o l ; r t ~ t d M d e 36-22 muE the Tmm Code af f3mhal Pmmdure. %at statute pmvieles h i t w pmwa &dl be p s d r t R d ta converse wbh a @or a b u t a e ase ace@ ia the prcsmeq and by the pem&m, of the W l a&. D-ite t b viol&icm, hem? there was no W i q to D caused by thiF, eonduct. A mwty d the COW mxmad &at the ody disputed fact c o r n e d tb@ mmfe of the comments, not wb&er the bailiffs cwnwnrs had been conwyedto the rwt of ofe jwy

This mse is significant for its claritkdtior~ of the tcst t o I-* used in detern~ining if a jury's di%:ussivn of p:trok: law is rcversiblc e m . In rme- D% s k t i o n , & a p e of 'the Cow m'eaed the State"* m t tkt Rule W 3 of t h ~ ?exas Rules of o f a 1 Evidence prevented the jursm 11.01~ im- pewhhg their verdicf in The ffice of a claim of jury tniscon- due. ThaC;ourr c~~lmledchat the five-prtrttet inSm&@3 S.W.2d 363, Is 6Wl. the prnp&-atlaly"id tool.

LEGAL WEG3OUND: According to the %wd testo in order to show that f x jury disms~ion of pmole law r m b l e axu; @ye faaors muat he mt: C13 a nlisstatentent of the law: (2 ) tlwt iuisstaterknt awned 3s ti:\ (3) by sorneonc profwring to know thc luw; (4) relied on hv other inmrs: and ( 5 ) who for th:it rcason cltanncd


statute, Article 40.03 of the Texas Rules of Criminal Procedure.

JURY SELECTION Batson continued to he the source of much litigation at the appellate level. In the five months from Janua y through May of 1992, the Cou~t of Criminal Appeals considered Batson- related issues in a variety of contexts - mnging fmnz the timeliness of a Batson motion through the standard of appellate review. Each of these cases is significufzt ,for its clai~j'?cution of Ratson as that decision continues toplay a ~t~qnificaizt role at the trial court level. Perhaps the most simzificant decisions in this area conceln the timeliness of a * Batson challenge (hqore the jury is sworn) and the role of "compamtiue analysis evideizce" as a n analytical tool on review rather than apmdicate forpreseivation of envr [Hill, Young]. During the same pen'od the Court of Criminal Appeals addressed critical questions concerning appliwtion of Batson in a capital murderprosecution. These decisions included the tinzeliness ofa Barson challengeIMcGee1 and the procednre to be used by the trial court in requiring an explanation for theproseculor's exercise ofperemptory chal- leizges [Rousseaul. Since decisions involving Batson issues so often tuna on theirfacts, only a britfdiscnssion ofthegeneral holding ispresented here. Hopefilly this overview willprovide reademwith theflavorofthe w~evarietyo@atson-mlatedic~ues still being litigated at the appellate couvt level. BATSON: CHALLENGE TIMELY WHEN MADE AFTER JURY PANEL DISMISSED BUT BEFORE JURY SWORN. HILL, No. 347-90; Janua?y8,1992; Opinion byJudgeMalonty; Judges Clinton, Miller, Baird, Overstreet, and Benavides concur.

C/A reversed conviction at 787 S.W.2d 74. The tuncliness of a Batson challenge is controlled by Article 35.261 of the Texas Code of Criminal Procedul-e. That statule specifies that ablatsoizchallenge can be timely made "after the parties have delivered their list . . . and before the court has empaneled thc jury." If trial occurs after the effective datc of

TION. McCEE, No. 044-92; March 18, 2992; Per Cu&m Opinion

C/A affirmed capital murder conviction and sentence of life imprisonment at 817 S.W.2d 810.

In a capilal murder prosecution, D may make his pel-emptory showing of the discriminatory effect of prosecutor's strikes at any time prior to the jury's being sworn.

Seealso, ROUSSEAIJ, No. 70,910; Februaly4,1992; Opinion by Judge Maloney; Judges Clinton and White concur. COMMEhT In a non-capilal case, by relying on Avticle 35.261 qf the lkxas Code of Criminal Procednre, it is easy to apply the requirement thut a Batson challenge nzust be made "after theparties have deliveied their list to the clerk . . . and before the court has empaneled the jury . . ." Howve7; owing to the uniquestructure ofjury selection in capital cases, it is difficult to establish the specific time that these.jnry listsare "delivered to theclerk." Typically, jury lists are "delivered" as each individual juror is either sttuck or accepted. Thejury itselfisnot "enzpane1ed"untililsme~nbers have been both selectedandswom. Tbeproblenz in applying the timeliness requirements of Article 35.261 to the capital murder scenario is the tp-ial couflpmctice of swearing in each individz~aljurorasthatjuror isaccepted. Hon~ever, ihe Court of C ~ i m i n d Appeals found that thispractice does not "change" the deteiwziization oj'whmz the jury is sworn. These decisions reflect a common sense based approach to the realities of capital murder prosecution. Certainly a capital murder defendant would have d?ficulty establish- ingpattern ofstrikes against minoidties were thut defendant required to raise a Batson challenge following the decision on each individual member of the ueiziw Application of "tiineliness"requirenzents in lhe context ofa capital murder care had posed an open, difficult question to trial leuel litigants. These decisioiasshonldgo a long way in c lanf ing at leust one troublesome aspect of Batson application.

BATSON: PRIMA FACIE CASE ESTABLISHED BY HIGH NUMBER OF PEREMPTORY STRIKES AGAINST MINORI- TIES. LINSCOMB, No. 0203-91; March 11, 1992; Opinion by Judge Benavide.~; Judge White concurs; Judge McConnick dissents. This decision reaffirms that D's burden of establishing a prima facie case should not be an onerous task. In this delivery or cocaine prosecution, the jury panel included six African Americans. Althoughtwo of these six panel members actually served as jurors, all of the remaining Af~ican American panel members (the other foul-) were excluded because of State strikes. When D raised a Batson challenge, the prosecutor refused toreveal her reasonsfor striking thosemembers of the panel by ckn~ing that D had not established a prima facie case of racial discrimination. HELD: Reversed. RATIONALE: Hel-e the prosecutor exercised pel-emptory strikes against African American venire members at more than twice lhe rate that would be expected from a random s e l e c t i o n 40% of available strikes to exclude members of an identifiable race which comprise 19% ol' the panel against whom peremptory challenges could be effectively exercised. Because of this suspiciously high rate, some explanation of the prosecutor's actual motives was required. A majority of the Court rejects any implication that the proportion of peremptory strikes used against members of a cognizable race never, standing alone, can give rise to an inference of purposeful discrimination.

. L ". 729 S.W.2d 732, is inapplicable.

LEGAL BACKGROUND: Under Henry, the Court of Criminal Appeals had held that a Batson objection had to he made after the composition of the jury had been made known, but before the jury had been sworn and the venire panel discharged.

The Henry time limits do not apply to cases tried after the adoption of Article 35.261. RATIONALE: By enacting Article 35.261, the Texas legislature elected to have only one remedy for a Batson violation: calling a new array. A majority of the court reasoned this remedy was chosen to climinate any impossible bias toward the State which,could exist if the remedy were to seat a panel member whom the State had just struck. Since thc only remedy is calling a new array, the panel is not needed, regardless of the decision of the trial court to sustain or ovcnule the ohjechn. Thus, there is no logical

' 1 reason to require that an objection to the strike must be

i

lodged before the venire is discharged. NOTE: A jury is "empaneled as soon as members of the jury have been selected and sworn. The effective datc of Article 35.261 is August 31, 1987.

BATSON: TIMELINESS; CAPITAL MURDER PROSECU-

22


claim of u right to u repw'senlutivc: cn~ssectwn <,ftha/xfit jury is dkjinct / inn tbaequalplec~iov claim ~mbudivd h Ikitwn. Ibus. I1 aot claw to l~wdicfinu the outconre in

tfial co& I m l &a6 to have this &vticaJ tmlised by a

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

ID]. He's black, he's male, and I didn't like the way he responded to my questions " Although the D.A." mention of race wa$ not conclusive in showing purposeful disnrmination, itwas asignificant factor. The prosecutor'svoir dm emmination of the struck juror was perfunctory. Nothing m the record suggested that the juror was hostile to the Smte. Thus a majonty of the Court concluded the s e e was improper.

CaUMEN7: The Court of Crimilacll A@e& has stated in prior decdsians that it could conceive ofscwarios where the race ofapanelmembercoulc be related to aparMculmcase in such a way so a7 to create a b W juzrry if trial l d parricipaais dzki not c o M e r r m in .nmis&g their@- mptory chaltmges. Hommq the Court found thrs case did notprese& such a scenmo. Hwe the only evzdence of similarity behueaz the defwdant and the challengedjumr vlns that both were black men. The Cosrt of Crimiml A p p d cautioned that wem other .HgnifimnP sintikzrtties betweeno and thefworsb~un, Itispms?ble that wGe m&ht ham been oneof thesimilaritiixrs whkh establishederrrpathy between the&rorandthe defendant- and this mlght have been the baszs for a le@timatepmmpto?y challenge. The bottom h e rspmhably thatifheprosecutor is adYanct"ng a "mixedm0tiv~"reason forsMkiqpafatt&Ijumr, andpart of the m o t h is pz~ce-relate4 &en there must be athershong son recka[facton which also show thepoteutiai forsuch an identity or empaby It abes nat appear that the Court of Crihzinal Appeals 1s per se rejecting "mixed motiven @a- mtlons aspermissible. Houkwer, this cme s e w to d p a l tbat m'ew5ng courts wtM fake a che , bard look at the pmecufor's mEiZILs when race is mentiodas a redson for the strike.

BATSON: SUPFlCIENT NEUTRAL REASONS GIVEN. HARRIS, No. 70,167, Apnl 22, 199% Qpilazcn by Judge Campbe& Judge Clinton concu~s. Here the Court of Criminal Appeals conduded that the trial court's fmding of no purposeful discrimination in the State's exercise of four peremptory challenges was supported by the record. Specifically, the proserutor explamed hls use of peremptory challenges in this capital murder prosecution as: (1) juror's brother was currently on eighr-year probation for burglary: C2) juror expressed an mmbdity to vote for the death penalty; (3) juror indicated "he would hold the State to prove beyond any and all doubt" in answering the pmihnenr issues; and c4) juror stated she could never an6wer "yes" to punishment issues. These cxplarlations were racially ueutral, logrcally relared to the case, and directly related tcrresponses by the individual juron in question. VOIRDIRlk IMPROPER -ON OND'S QUESTIONS CONCERNING REASONABLE DOUBT. WOOLRTDGE, No. 158-91; Febpsla~ 2% 299% Opinion by Judge Baird, Judges McCom~ck, Camphdl, White, and B 'des dissent. During jury selection at D'8 m u r d e I 3 defense counsel twice tried to ask potential jumrX about the term "reasanable doubt." The first time, when defense counsel asked w h t the term "reasonable doubt" meant tothe iuror, the prosecutor's objection to the question was sustained. Later, defense counsel told the pane1 that federal judges do give a definition of reasonable doubt and relayed that definition, returning tn ask juror X, '&Is that close to what you believe beyond a reasonable doubt means?" Once again, the prosecutor's objection was sustained.

24

HaD Reversed. RATIONALE: Defense counsel's inquiry of potential jurorX was proper becauseit sought to discover her views on an issue applicable to D's trial; moreover, the question was not repetitious, and it was not in an Improper fom. Thus, the trial judge abmed discretion in restticting D's voir dire exammation. A majority of the Court also took this opportunity to codtify its pitionlast year in Nunfio, 898 S.W.2d 982. Nunafiaheld that refusal of a proper question on voir dire should nothemewed under a harmless error analys~; rathet, it is reversible error. A majority of the Court stressed that the Nu@o reasoning remained sound because once anappellate murt determines that the question not allowed was proper, the issue must be t h D was denieda chanceintelligently to exercise peremptory challenges. Thus, a harmless error analys~swould be fruitless.

COMMEVZ Some pifor decisions of the Court ofCrim%nal Appe~~ls seemed to suggest t h a a ud7dire qusstion was not pmper~itsotght a@nd member* concept of a term that the trial judge would not define isl its chaxe to t h e m . N o w , those cases all &a& with cqital murder pros- ecutions. In a capual mwder care, W r dfre is conducted on an WdMdudl basis. Conseguently, ft may Iarzt week oY munths. For &is reason trialwges haw been alhwed to limzt mlr dire esarn~mtdon 0% thegroan& thaz it is takting an "unreasonable" length of time. Howew, everl those cases should not he read to bold that it ispmper for a Ma1 judge to impose mtricffons on m'r dzm questions based on the mereposslbilzry that qi&tions orhewiseproper might hgdbm the examtnafionprocess. 78epmperpiOeerzure~ such cases isforthe trialjudgetofimt allow tkeque;stkvz and then kster curt@l s i m i h questions Zf it appears that the mrnination wl becoming unduly long. Tbrs case is sigmficantfifor $& recognmon thatjust &awe no defl%irion will be given for a tam, that d m not mean that the potenaidZ jumfor's understanding of the term is irreleuant. Rather, that potential juror's understanding is crucial to counsel's we of peremptory chabges since withouta definition supplied by the ttdal court, ajumr with a s h d p e n e p f i o n of the ram bas noguidance. As -one is aware, the Court of C m n a J A.ppeals in Geesa, 820 S.K2d 154, m n d y held thad a definition of "reasonable do&'' w t k g d w in any ju y trial, How- e t q this requiremant is applied only pmspectiuely.

VOIR DWEI PRESEaVATION OF ERROR - OBJECTION- ABLE JUROR MUST BE IDE-. JONES, No. 71, W5; Mar& 18, 2992, Qbi1Mon b y M e Campbel[, J u d e C1is"tton and Mihr m c w : Judge M r e e t dissents m affirming this capital murder conviction, the Court of Criminal Appeals upholds its three-part test for preserving a claim of error when the trial court overrules a defense challenge for cause against a venire member The basis for this rule is that D is harmed only if he uses a perempmy svike to remove the panel m e m k and thus later "loses" a peremptory strike Preserving error for appeal requires thtee steps (1) D must use all of his peremptory sttkes; (2j D must ask for and be refused additionaI peremptory strikes, and (31 D must be forcedtotake an idenb;fiedobjectionable jurorwhom D would not otherwise have accepted 4


Burning Down the Woodshed; Presenting Evidence Without Witnesses

by Judge Wallace Bowman

Part 3

Rule 201 (9). Instructing Jury. The courtshall instruct theju y that it may, but is not required to, accept as conclusive any factjudzcially noticed.

COMMENT: Rule 201 (g) is the only portion of Rule 201 that dffers from the civil mle Rule 201 (g) of the Texas Rules of Civil Evidence requires a peremptory instruction to the jury that the jury shall accept as conclusive any fact judicially noticed Consequently, once a fact is judicially notlced in a civil case, no evidence is admissible to refute that fact. Obviously this is the logical result of the conclusive nature of Civil Rule 201 (g).

However, 201 (g) of the Rules of Criminal Evidence is oermissive in iB t e r n as to the conclusiveness of any fact judicially noticed. This is thought to be required in criminal cases so as to avoid the possibility of the court being able to direct a verdict against the defendant; which actionin all likelihood would be an unconstitutional violation of the 6th Amendment right ta jury trial.

The court in a criminal case is required by 201 (g) to instruct the jury that it may, but isnotrequired to, accept any judicially noticed fact as conclusive. The giving of the instruction then is mandatory, but the jury's acceptance of the judicially noticed fact as being conclusive is not mandatory.

b Presumably the trial court would

commit error if it failed to give the

0 requiredinstmction under201 (g), upon timely request, after the court had judicially noticed an adjudicative fact. But would the court commit error if it didnot give such an instruction and was not requested by a litigant to do so? Probably not. It appears that this is error that can be waived by failure to make a timely request fortheappropriate instruction.

In order to make the record clear regarding judicialnotice ofafact, counsel should have the court state into the record exactly what fact or facts are

being jud~cially noticed. Alternatively, an appropnate jury mstruction will plainly spell out what facts are established by judicial notice. This should be done by the courtslmply stating that the pertinent fact exists, for example, the City of Ft. Worth is located entirely within Tarrant County, Texas. Then, the court should appropriately instruct the jury as to the non-conclusiveness of thts stated fact, per the requrrements of 201 (6).

LEGAL AUTHORITY: 'yudiclal No- tice Under Article I1 of the Texas Rules of Evidence,'' Wellborn, supra

Letson v. State, 805 SW2d 801 flex App. - Houston 1990). Trial court took jud~cial notice that Astrodome is in Harris County, Texas and mstmcted jury orally that they were to consider that in their deliberatlorn - this action by the trial court was upheld on appeal. (NOTE: Better practice would be for the tnal court to grve only a written instmction in its jury charge that the jury '"may, but is not required to, accept as concluswe any fact judicially noticed.")

FEDERALRULE: Is a combmatron of both the Texas Civil Rule and the Texas Crirmnal Rule. Judicially notlced facts are conclusive in federal civil cases, but not conclusive in federal criminal cases

CIVILRULE: As noted above, in civil

Wallace Bowman is a 1973 graduate of Bavlor Law School He has been board. certified m cnm~nal law smce 1980

~r Bowman was engaged primarily m the practice of criminal law for 17 years prlor to being elected Judge of county Cnminal Court a4 in Tamant County, Texas He has sewed in that positlon smce January 1, 1991.

Whde engaged in pr~vate law prac- hce, Judge Bowman was a member of the Texas Cnminal Defense Lawyers bsocratlon, Tarrant County Criminal Defense Lawyers Association, and the Dallas CountvCrimmalBar Assodadon.

proceedmgs inTexas, judicially noticed facts are conclusive and the jury is so instructed. RULE 202 Determination of Law

of Other States A court, upon its own motion may, or

upon the motzon of a party may, take ~udzcialnoticeofthecomtitutionsgublzc statutes, rules, regulations, ordinances, wurt deciszons, and common law of euery other state, te&o y, or junsd%- tion of the United States. A party re- questzng thatjudicial notue be taken of such mattershallfurnish the court suf- ficzent mnformation to enable ztproperly to comply wzth the request, and shall giueallpartiessuch notice, zfany, as the court may deem necessary to enable all parhes fairly to prepare to meet the request. Aparty is entztled upon hmely request t o m opportunzty to be heardas to thepropriety of takngjudicial notice a d the tenor ofthe matter noticed In the absence of prior notification, tbe wquestmay hemadeafterjudicialnotice has been taken Judicral notice of such matters may betaken at any stage of the proceedings The courtkdeternzination shall be suhjsct to wuiau as a rukng on a question of law

COMMENT: Obv~ously, this rule is very broad in scope. It not only allows judicial notice of statutory law of other

Judge B o k n ' s hobbies rnclude hunting, fishmg, basketball and raquetball. I 1


states, but the common law of other states as well. Additionally, this rule permits judicial notice of coua decisrons, regulations, rules and ordinances of other states or territories.

Probably the two most cnacal part5 of thls rule are (1) the tuneliness of the request to rake jud~cial nouce and (2) the adequacy of the information fur- nished by the proponent of the infor- matlon to establish its accuracy and reltability. Ideally the request to take judlclal notlce should be made prior to trial because the opponent of the m- formation may need to do extensive research to test the accwdcy of the foreign law in question However, the request could be made at any ttme during the trial in the discretion of the judge Orthe tr~al judge, m his discretion, may sua sponte tdke judiual notlce of the lam of another state or territory at any tune during the tnal.

The request for judiual nouce of a foreign law should be accompanied by accurate copies ofthe law andadequate cttations so that the coua and/or the opponent can readily research the matter to determine whether or not it falls within the confines of this rule.

Unhke Rule 201LD, which has been construed to permit takmg of pdlcial notice on appeal, a different construc- uon applies to Rule 202. In the absence

1. of judicial notice of a sister states' law at the trial court level, the appellate court will presume the law of the sister state to be the same as Texas law

LEGAL AUTHORITY: 'Tudicial Notice Under Article 11 of the

Texas Rules of Ev~dence," Wellborn, supra.

Daugherty v Southern Pacific Transpoaation+ 772 SW2d 51 (Tex 1989). Tnal court erred m reFus~ng Plaintiff's request to take judicial notie of OSHA regulations. A pam is not required to plead the laws of another jurisdiction before jutficial notice can be taken of same.

Hawkinsv State, 745 SW2d 511 (Tex App. -I%. Worth 1988). In prosecutLon of Califomiabailbondsmenfor unlawful canyingweapon (a handgun) in Texas, Texas trial court properly took judicial nouce of California law which permits bondsmen to carry handguns For purposes of the Pre-Trial hearmg the Texas Court properly took judicial notice of Caltfornia statute for purpose of heanng Defendant's motionto suppress But Texas law controls offenses that

occur mTexas, andTexas court was not required to gtve full faith and credlt to Califomla statute. Therefore, trial court properly refused to take judicial notice of same Cal~fomia statute during trialon the merits.

Knops v. Knops, 763 SW2d 864 (Tex. App S a n Antonio 1988). Party must specifically ldent~fy which sister state statute he wishes the court to judic~ally notlce; failure tomake a specific request presents nothing for review

CEavin v Moloney, 773 SW2d 698 (Tex. App. - Corpus Chr~stl 1989). Pennsylvania law will be presumed to be the same as Texas law where party neverrequested Tsialcourtto takejudicial notice of Pennsylvania law, nor offered any documentation to support such a request.

FEDERALRULE: No corresponding federal rule.

CIVILRULE: Same. RULE 203 Deteimhation of the

laws of Foreign Countries Aparay who intends to raise an issue

conmingthelaw of a fmigncountry shall gtve notice in his pleadings or other reasonable wrtlten Zohce, artdat least 30 days pnor to the date of tnal suchparayshalrfumi.5 allpa~escopies of any W t e n mtendds orsources that he intends to use asproof of the foreign luw. If the mrrteriak or sources were originally wn'nen m a language other than Englsh, thepuny zntendf~gto =rely upon them shall fuwtt~b allpaflies both a copy of the foreign language text and an Englwh hanslutmn The court, in dertanaining thelawofa foreign nation, may conszder any matenal or source, whether or rwt submitted by aparty or admissible under the ndes of euidence, zncluding but not limited to afldavSts, testzmony, b iy j and t~atises. r f the court considerssou~f:es other than those submined by a partyY zt shall gzve all parties notice and a reasonable opportunity to comment on thesources andto submttfurther matedak for twiau by the court. The court, and not a jury, s$all detennzne the laas of f o q n countries. The c0urt"stemzination shall be subject to m e w as a d t n g on a question of luw.

COMMENT: Rule 203 requires pleadings or other written notice to support a request that the court take judicial notlce of the laws of foreign countries No such pleacling requirement i~ found in Rule 202 regarding judicial notice of laws of other states

Rule 203, again unlike Rule 202, requires that all documentation suppofi- ing a request to take juhcial notice of a foreignlaw be fumished to the opposmg party at least 30 days pnor to trtal. Other procedural aspects that control what matenals the court may consider in rulmg on this request, and what notice is requred to be gven to the parhes, is spelled out in some detail in the rule.

Rule 203 is similar to Rule 202 in that in the absence of a request to take judicial notice of a foreign country's law, or in the absence of proper docu- 111~1iLltioll Lo s~~pport t l ~ requcst, it will lx! ] ) I C S U I I I ~ Y ~ t t i : ~ ~ ~ t w I ; IW o f thc: forcigr~ country in question is the same as apphcable Texas law

Determmation of the laws of a foreign country is a question of kaw for the court, not a question of fact for the jury.

LEGAL AUTHORITY: 'Tudicial Notice Under Artrde I1 ofthe

Tcxas Rules of Evidence," Wellborn, supra.

Alvamdo v. Stare, 8804 SW2d 669 (Tex. App. -El Paso 1991). Oral testimony of Mexican police officer provided sufficiently reliable mfonnaaon upon which ma1 judge could take judicial notice of the portion of the Mexican Code of Criminal Procedure that gov- erned the takmg of confessions from criminal suspects in Mexlco

Davis Y. Davis, 521 SW2d 603 (Tex 1975)

FEDERAL RULE: See Rule 26 1 Federal Rules of Criminal Procedure.

CIVILRULE: Same. RULE 204 DeterminationofTexas

city and county ordinances, the contents of the Texas register, the rules of agencies published in the Administrative Code.

Judicial notice may he taken of the ordrnances of municipahtzes and counties of Tuxas, of the contents of the TexasRegister, and of the codzfied rules of the agencies publzshed in the Ad- nzinistraaweCode Anyparayrequesfing that judicial notice be taken of such mattershallj%mish the courts@kient znfannation to enable it profirly to coIlaply wrth the request, and shall gzve all partzes such notice, if any, us the court may deem necessa y, to enableall partz'es fairly to prepare to meet the request. A parry 2s entitled upon &me@ reyuest to an apportlcnzty to be heard as to thepropriety of taki7tg judzcial notlce

Continued on page 38

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

FEDERAL IMPACT DECISIONS by Charles W. Bluu

1. United States v. R. Enterprises, Inc, U S . , No. 89-1436 uanuary 22,1991).

ISSUE: What standards must a court apply when a party seeks to avoid compliance with a subpoena duces tecumissued in connection with a grand jury investigation.

DISCUSSION: A federal grand jury in the Eastern District of Virginia, investi- gating allegations of intersyate trans- portation of obscene materials, issued a series of subpoenas to three companies all owned by Martin Rothstein. The subpoenas sought corporate books and mcords and, in the case of one conl- pany, copies of 193 video tapes the company had shipped to retailers in the district. The companies moved to quash the subpoenas, arguing that they called for production of materials irrelevant to the grand jury's investigation. The District Court denied the motions to quash. On appeal, the Fourth Circuit Court of Appcals upheld the business records subpoenas, remanded the motion to quash the subpoena for the video tapes, and - of relevance to the Supreme Court's opinion - quashed the business records subpoenas issued to two of the companies, applying the Supreme Court's standard in 1Jnited Stute.7 v. Nixon, 418 U.S. 683 (1974). The Court oftippeals stated that Nixon, which dealt with a trial subpoena, was equally applicable to grand jury suh- poenas and, therefore, required the government to demonstrate ihe rel-

?vancy, admissibility and specificity of he information sought in order to en- orce the subpoenas. The Court of 9ppeals concluded that the subpoenas n question did not satisfy the Nixon s t . The Supreme Court reversed the iourth Circuit, noting the broad inves- igatory powers of the grand jury, and :oncluding that grand juiy proceedings ;hould be free of the procedural delays which would 1.esult from application of he Nixon test.

The Court then looked to the limits on he grand jury's powers imposed by 'ederalRule of CriminalProcedure 17(c), which permits a court on motion to p s h or modify a subpoena if com- diance would be "unreasonable or ~ppressive." The Court declined to ~pply the Nixon test of reasonableness, .e, a reasonably speciCic request for nformation that would be both relevant md admissible at hial, to grand jury ~roceedings. The Court noted that lecause the decision as to what offense d l be charged is g e n e d y not made mtil the grand jury has concluded its nvestigation, it would not always be ~ossible to determine relevance and ~dmissihility in advance. The Court tatedthat a grand jury subpoena issued hrough normal channels will be pre- umed to be reasonable and the burden )f showing unreasonableness will be )n the party seeking to avoid a com- )liance. Therefore, whena subpoena is :hallenged on relevancy grounds, a notion to quash must be denied unless he district court determines that thereis lo reasonable possibility that the cat- :gory of materials the government seeks vill produce infomatkmrelevant to the

general subject of the grand jury's investigation. (The Conlt did not reach the issues of whether the subpoena at issue was too indefinite or compliance would be overly burdensome, as those challenges were not raised.)

Because a party challenging a suh- poena may not know the general subject matter of the grand jury's investigation, the Court noted that there may be cases in which the goveinment will be required to reveal the general subject of the grand ju~y's investigation before a district court may require the challenging party to carry his burden of persuasion that the subpoena is unreasonable. The Court did not resolve thisquestion, however, becauseitfound that, in this case, the challenging party was clearly aware of the nature of the investigation.

In thase cases in which the party receiving the subpoena is aware of the nature of the investigation, the Court expressed its willingness to rely on district courts to adopt procedures that balance the interests of the recipient of the subpoena against the "strong governmental interests in maintaining se- crecy, preserving investigatory flexibil- ity, and avoiding procedural delays" in grand jury proceedings. As an example, the Court noted that in order to insure that subpoenas are not routinely cbal- lenged as a form of discovery, the district court may require the government to reveal, in camera, the subject of the investigation so that the court may determine whether the motion to quash has a reasonable prospect for success before it discloses the subject matter to tbe party challenging the

Charles W. Blau was born in New Albany, Indiana in 1944. He attended Indiana University (B.A. 1966). Charlie attended the University of Louisville Law. School (T.D. 19721 and Georgetown University (LLM. in Taxation 1987). Cl~arlie was an assistant prosecutor in Indiana for four years. Charlie was an Assistant United States Attorney for three vedrs. ran a ioint US. Tustice Devartment-Treasun, De~artment money launderina

"NO yearsLas Deputy Associate ~ttomiy Gene?dland one ycar as Associate Deputy Attorney General in the US. Department ofJustice. Charlie is a member of the Indiana, Florida and Texas Bars. Charlie is currently a partner atJohnson & Gibbs and specializes in white collar clime and criminal tax matters.


subpoena. 2. Arizona v. Fulminante, - US. - , No. 89-839 (March 26,1991).

ISSUE: Whether use of a coerced confession is subject to the harmless error analysis.

DISCUSSION: Fulminante's 11-year old step-daughter was murdered. Al- though he was initially a suspect, when he was not arrested, he moved from Arizona to another state where he was subsequently arrested and convicted of other federal charges. While in prison, he became friendly with another inmate, unbeknownst to him a paid FBI informant. The informant offered to protect him from other prisoners giving him a rough time because he was suspected of murdering the child, but only if Fulminante would confess his role in the crime. Fulminante did so, giving details about how he killed the child. Subsequent to his release from federal prison, Fulminate again confessed the crime to the informant's wife. In his subsequent arrest and trial for the murder, Fulminante moved to suppress the two confessions. His motion was denied by the trial court and he was convicted and sentenced to death. The Arizona Supreme Court initially held that the confession was coerced but that its use at trial was harmless error because of the overwhelming nature of

'.the evidence against Fulminante. On reconsideration, the Arizona Supreme Court ruled that its precedent precluded the use of the hannless error analysis to cases involving a coerced confession. The court reversed Fulminante's conviction and ordered a retrial without use of the confession to the paid informant. (The confession to the informant's wife was held not to be the "fruit of the poisonous tree" because it was made six months after the initial confession to the informant. Its use was not at issue before the Unitedstates Supreme Court.)

The U.S. Supreme Court affirmed the Arizona court's holding that Fulminante's confession was coerced. The Court noted that the informant had used his knowledge that Fulminante was in danger of physical harm from other inmates because he was an alleged child murderer and offered to protect Fulminante in exchange for a confession to the murder. The Court accepted the Arizona Court's findings that there was a credible threat of physical violence unless Fulminante confessed, and noted previous Supreme Court cases in

which it has stated that a finding of actual violence by a government agent is not necessary to a finding that a confession is coerced, and that a credible threat of violence is sufficient.

The Court divided 5 to 4 in it's decision that the harmless error analysis applies to use of coerced confessions. Under this analysis, the use of the coerced confession must be harmless beyond a reasonable doubt and the govemment has the burden of demon- strating that the admission of the confession did not contribute to the conviction. In this case, the majority of the justices who supported application of the harmless error analysis found that the m of Fulminante's confession to the FBI informant was not harmless error.

In his opinion adopting the hamless error analysis, Chief Justice Rehnquist called the admission of an involuntary confession a classic trial error markedly different from structural defects in the constitution of the trial mechanism itself which affect the conduct of the trial from beginning to end - such as total deprivation of the right to counsel at trial, or the presence of a judge who is not impartial. The Court concluded that admission of an involuntary confession is a trial error similar in degree and kind to the erroneous admission of other types of evidence. The Court found that the evidentiary impact of an involuntary confession was indistinguishable from a confession obtained inviolation of the S i h Amendment, evidence seized in violation of the Fourth Amendment, or a prosecutor's improper comment on defendant's silence at trial in violation of the FiFth Amendment, all subject to the harmless error analysis. The Court stated, in conclusory terms, that it was "impossible to create a meaningful distinction betweenconfessions elicited in violation of the Sixth Amendment and those in viol-ation of the Fourteenth Amendment," and that the inconsistent treatments of such statements could not be,supported by either evidentiary or deterrence concerns. While recogniz- ing that "an involuntary confession may have a more dramatic effect on the course of a trial than do other trial errors - in particular cases it may be devastating to a defendant" the Court concluded that such potential devastating effect was not reason for rejecting the harmless error test entirely, because defendants would be protected by a

.eviewing courtwhich would conclude, n such a case, that the admission of the nvoluntaly confession was not harm- ess error. 5. Powers v: Obio, -U.S. -, No. 89- 5011 (April 1,1991).

ISSUE: Whether a criminal defendant nay use the equal protection clause to 3bject to race-based exclusion of jurors hrough the prosecution's preemptory ~hallenges, even though the defendant md the excluded jurors do not share :he same race.

DISCUSSION: Powers, a white man, ~bjected to the state's use of its preemptory challenges to remove 7 ?lack persons from the jury. He appealed his conviction contendmg that h e state's discriminatory use of the preemptory challengesviolated his rights under the Fourteenth Amendment's Equal Protection Clause and that his 3wn race was irrelevant to his right to 3bject to the use of the preemptory challenges. The Supreme Court held that a criminal defendant may object to race-based exclusion of jurors by the government through it's preemptoly challenges, whether or not the defendant and the excluded jurors share the same race, because the EqualProtection Clause prohibits a prosecutor from using the state's preemptory challenges to exclude otherwise qualified and unbi- ased person from the jury solely by reason of race.

Noting the importance of jury service to the administration of justice and that preservation of democratic elements of the law, the Court heldthat an individual juror possesses the right not to be excluded from a jury on account of race and that race-based exclusions preclude a significant opportunity to partidpate incivic life. The Court further concluded that the defendant had standing to raise the Equal Protection rights of a juror excluded from service in violation of such rights because the discriminatory use of preemptory challenges by the prosecution case doubt on the integrity of the judicial process and places the fairness of a criminal proceeding in doubt. Noting that the jury acts as a vital check against the wrongful exercise of power by the state and it's prosecutors, the Court stated that the intrusion of -acial discrimhation into the jury selec- ion process damages both the fact and he perception of this guaranty, casting ioubt over the obligations of the par- k s , the jury, and that court to adhere to

V O I C E F 6 R SHE D E F E N S E

cases, thR Supreme Caurt held that the sraadard for arcusing a kitwe to msat a &.En at the appraplriate h e should tx the same in 1~1th context%, m r n d y that such ffiilun. will be ex~uscd urxm a showing of muse a a d p ~ w . '%e "wuw d pisju&e" &&aid would requima ~eritianettorihowficstthatthe failure to raise the .claim in the earlier writ was dw to *same objeaive &mr tmemal lo the Wease which impeded c a d s &om %a raise the claim." Objtxttvefactors canindudewch t R ' ! w intederm by officiak bi m&eg camp&nce wieh the pmeeduml rule imppdafazbie, a &owix tha~ the fas- ~ o r ~ h & s ~ w ; u R o t l y amtlalde to counsel & the: rznd 00mtituionaEyiaefifenive mistance of cgumel @oweve& abomey short of Mective w b m c e of eaunsel will mt constlure tame>. The p&bx?r thea must show acaJal prejudlcerdt- iiag from the error.

me cause and prefLldicre *sis adoptedbythe~fmnabuseofthe writein@ is tabe app14edwfn11m: The gaaemment bears a bu- or pleading abme ofthewsit. It will saw thisburdenlfit demonstrates wItb&i%y and ptkularlty thr: psfition&s @tX mi history:$ idenfifh a clgirn t b f a p paam for the E m time, and allegtu; thepki~nerhas a b u d the writ The burden then shifts to the petkticmer to d i ~ f a v e &use. TIie pedtioner must show cause for f&D.gto to thedah and prejudice wsulhg from the errors of which lie comolait~s. 'Il~e uetitiotler


GRANTED PETITIONS FOR DISCRETIONARY REVIEW

Since Ju& 17, 1985, the administra- ti2iestaflaftmeys ofthe Court qfcrimi- nal Appeals have compu'ed, 8% the nor- mu1 coune of b.&neq a 11% of cmes adlegul hum on whkh the Courthas grantedpetINm for mytm AlfhougA ongimI& prepmd @fhr lnternd llse only, $he Court has authorZzed release af the iIst forpublicaGon and for use by the h h and bur of Tam. The issues listed are mmmies as worded by the staz and do m t %ec~ssar+& mflect eC ther the reasoning or the phrmeology used by thepart1es or by the Court.

lBe followtng are the cusesmd issues on which the Court o f CriminalAppegk granted mtWIez0 hut which the Court kas notyet deltveIpd a wr&m opinion.

PDR 0680-92 09/3@92, DaD6 Co., (A 's PDR), Gaq Lukeitb Brown, Murder: 1 Does a defendant impliedly consent to a general search of hts home when he calls the police to his home to report a murder in the garage?

PDR 0709-92, 0708-92 09/.?0/92, Ha& Co., (A's PDR), Bl&ha G~nero Davis, D e l b q of Cocaine. 1. Did thc Court of Appeal3 apply the wrong standard to determine if statements against penal interest are sufficiently corroborated to be admissible pursuant to Tex. R. Crim. Evid. 803(24)? 2. Was Webb v. State? 766 S.W.2d 236 f lex. Cr. App. 19891 commly applied to exclude the testimony of a witness due to an inadvertent violation of the Rde, TEK. R. Wm. Evid, 6131

PDRO792-92,0793-92,079@2 09%' 92, Val Ve& Co , (A 'sFDRJ1 Rat@ W. Rod@=> Poss&m of ChildPmwg- raphp 1. Whether the Court ofAppeals erred in finding probable cause in a search warrant in which the &davit upon which the wamnt was based did not contain information showing how the confidential informant acquired his knowledge?

PDRO826-92,0827-92,0829-92,0830- 92 09&0!?2, DUIlas Co, (A"s PDII), S m m LouisIeppert, rlggxdvated S a u l h a u l t . 1. Whether the Court of Appeals erred in holding appellant waived his ex post fact0 claim under Texas and United States Constitutions by first raisingit in the Court of Appeals?

PD~0818-92 OY3@9ZZ Gt.m&&pCa, (A's PDRj, Gmgoq Va6 Paireft Resist- ingAmst: 1. Does defendant's specific assertion that he had never been in uouble in 1979 constimte a blanket assertion of nor-trouble such as to allow impeachment with non-1979 trouble?

PDR 0869-92 0MoJ9.2, Orange Go., (A's PDII), Jimmy Arfonso Autran, Pos- session of a ContmNedSubstance: 1. Is the search of the locked truck of petitioner's automobile and the un- opened containem therein located constitutionally permissibleundexArtide 1 Section 9 of the Texas Constitution? 2. Is the apening of the spare key container constitutionally permissible under Article 1, Section 9 of the Texas Constitution? 3. Did the Trial Court act pmpedy

under Article 1, Section 9 of the Tetras Constitution in denying petitioner's motion to suppress evidence?

PDRO875-92 09/3W92, HarrisCo., CA's PDR), Ckuyfm AIIen Maddux, Mn&r 1. Is there a distinction between com- plainants as witnesses and complain- ants as victims for purposes ofvoir dire? 2. Did the Trial Court err in admitting evidence of extraneous offenses when the evidence does not demonstrate that appellant was the perpetrator?

PDR 0891-92 (1SJaer/92, Collin Co., (SS PDN, AnthonyLkwayneBingham, Ar- son: 1 Whether the Court of Appeals erred m fmding the out-of-court statements of an unavailable witness as constitution testimony of an accomplice which reqyired an accomplice cor- roboration instruction to the jury?

PDa 0901-92 09/3or42, Tom Green (Change of Venuehm LubbocBS, (A's PDR), Damon Jmme Richandson, En- gaging in Oqanzzed ~3r+minn6Act3~~: Does a person have reasonable expectation of privacy in telephone numbers dialed, necessitating a bdmg of probable cause for the installation of a pen register?

PDR1081-92 09/30&2, Ha& Co., a ' s PDRI, Robert Totar, AggrawtedSexual Assault, 1. Whether defense counsel attempted to prolong vou dire unnec- essarily by covering martem already covered when counsel addressed those matters fwn the defense perspective? See McCarterNo. 847-91, deliveredJune


ETHICS NOTES

Are We the Keeper of the Keys? It has be& m m l mnths eince I

have w r i m an Ilttitlle For c o l ~ , I have emmuntemsd a dm-

that I oncc again & to front of the k e y M and 8p& to our bethen. If I seen to be on a soapbox, Eo~@ve ae. I h d , however, that the puhlc's 1-e of attorneys is conainually d e g s n e m , md I WQUM like@ seethc'jpremfd of k t maEg~nq slowed. I think we an would.

In spe.arking to orgaitations mdb as The Won6 Club md Rotarhis ar kn that matter LO people irn gmed, I have consistently Found nm-Iavyem heliwe we wlll do anything and ev- erything to prptect our awn f m dis- aplimy adiDnb thilt we ate a a- pctlitdng m that wl11 insulate our m m - bem from the c o m p u of the un- pro tedpubf i~ I lmowwe each wish people bel ied othem&. But, the heabng must begin within, much i%ke rhe axiom, "physidan, heal thy&.''

m the past-, I hstw b e hti01ved in =me dvil [email protected] I was ap- p r m M by a d i e t to defend hex a@M a claim for moneXaisy damagcs brought by an attorney an his o m behalf. When I mtd the OrigW Peti- tionon I was m e d by the atmey's c1ai.m~ as related to the code of Professianal ~espmsibilky.~

It is obvious fmm the bi&&hted

ortiom of Foamore No. 2 that the ~ ~ ~ ~ ~ y m t m d i n t o apartmx~bip Cpint m e ] with a ncmn4a'r"yey fgs the erfafpaance oflegal seniices, hut that e dfd not intend to provide, nm did he tovide, any p r o f e s W aversight of K work peikmed. Thus, the AEw- ey was assisting a mSawyer in the muthorited padice of lawqnder rhe uspiees of joint vemure agreement. ttomey'~fe&~ alohgwithtti insumme remimns inal -ow fees, wet% col- reted fmm fbe title cetmpny by the on-lawyer, &posited by the non- twyer to pnebank acc~unt, and then rithdmwathaefrom by thenm-lawyer nd re-depwired to sew& ac@unt rom the prcrceeds of the second a c aunt, whkh induded attemey's few, ie expenses of the fee attorney &ce rere paid and the net proceeds. split fxwcen the nm-lawyer and the Attm- ey m a 7S%2% ratio, %%peEtiVeb. luvefote, aa~tnefs Em we= sp1S npermissibiy. Pmlly, the services nmsrad @ the Asmney hy the title ompany (-his die& were wholly ne- lectedbyb. AI l lnaQ Rule8 1.011b), .MCaX S.O?Xa), 504fa1, 5.0&), and .OSM of the Texs Disciplinary Rdes leprofewianal ~ ~ u c f w e r e y i o h t e d ~

Bet w it may, 1 thought we were ble to resolve the e&cd problem in le caw!?* bhd eke m2M W*S ultimately &d "rhereaftar, howem, the At- xney ffled % Motion Ear New Trlal, &eh in w w a y a d ~ e l y impae€d vn .ty former &ent, Rat&, he $ought T6 npJ.ead a new defendant throzzgh the

allegation of * M y dis~owmd evi- d&11ce,R theMotimn being supp@sd by his flldavit.

His sWments concerning the "new- m" of the ev&m were false, %ad I @$vised him by way of let& the I could not ard would nat participate ins fmud of that &we 1011 the W coutt. He called me and angray told me tm keep my nqse out of s c x d d q that waa none of my busin&. %hat do you cmeIOi he asked, %a lmg as yow &t is not aEeaed? Tne coua,"he said, "can take c ~ e Of iW. Vbo did you think you prey he insujreded "The keepw of

~ W B t~ E& B:D$ e, in pertinent nart, h t :

*se~~~onof@elegalprofessian rrqyim that mernbe~s ofthe p r M m initiatedis<:ipliuaryinvesti~tions whcn tttcv tvavc krrowl~drre . . . Uiat a viula- tiad af w e des &s eccurred."

hntherwords, we twh have a d w , whether our client is injured or not, to we drattheefhidrule~ ofourprafession are upheld co the g m excent POS- sibte. If we wek the h e p a of t h m who we ~ ~ t , surely we must fi@t respect om profession, our nJeB df qanrluct, and oqrseh.es. To rb%t fBBf% we me all "lreepe~s oFfbe w."


FRIENDS OF TCDLA The purposes of FRIENDS OF TCDLA shall be:

To cooperate with, support andfirther the objectives and purposes of the TCDLA. To do law-related philanthropic and educational work. To promote social relations among the members of the TCDLA and their families.

APPLICATION FOR MEMBERSHIP (please type or print)

Applicant's Name:

Address:

City/State/Zip:

Telephone: Home: ( ) Office: ( 1 FAX: ( 1 1.

Occupation:

Specid Interests or Hobbies:

Children: (NamesiAges)

Names of Sponsor:

Applicant's Signature: Date:

MEMBERSHIP ONLY dues will be menty Five Dollars ($25.00) for the annual period beginning th f i rs t day of the annual convention each year:

Please complete md return to Joan Weinhetg, Membership Chair, 7431 Northaven, Dallas, Texas, 75230 together with your check made pttyahle to FRIENDS OF TCDLA.


/ VIEW FROM THE BENCH 1 Petitions for Discretionary Review

byJudge Char,& F. (Chuck1 Campbell, Texm Court of CrWinaEAppeals and WUlzarn P. Green, Resedrch Assistant toJUdge Campbell

"Okd lawyers never die, they just lsse tbr& appal. " - Prof. Myron Moskovitz

Excluding cases involving extraordi- nary writs or the death penalty, the only way a paay can bring a case before tht: Texas Court of CfMmal Appeals is by filing a petition for discretionaryreview CPDLU. Tex Const. an. 5 g 5; Tex. Code Crim. Pmc. art. 4.04; D k h v . Pulmq 697 S.W2d416,419 (Tex.Cr.App. 1985). Currently, about 1,500 PDR's per year are Ned in Teas' fourteen courts of appeals and then forwarded to the Court of Crimirral Appeals for its consid-

1 eration. See Tex. Code Grim. Proc. art. 44.45; Tex. R. App. Pmc. 202b). Ac- cording to statistics compiled by Court personnel, however, only abut fifteen percent of PDR's fded are actually gmnted. And, of the PDR's granted, fully a quaner are later &&ed by the Court as improvidently granted. See Tex. E App. Proc. 202Zk).

The purpose of this article is to sug- gesr a few key ways to impmve the odds ofgetting-and keeping -one% PDR granted. Thk artide will not address in any detail the technical requirements of the Texw Rules of Ap- pellateProcedure wlth respectto PDR'$, but an excellent discussion of those requirements can be found in K e q FitzGedd, et al., "Texas Criminal Ap- pellate Practice," State Bar of Texas Advanced CrintinalLawCome. volume 3 Ouly 1992).

Now the suggestions: 1. Complv scrugulouslv with

reauirements of the Rules of Appellate Pracedure. The practitioner may rest assured that any PDR not prrpared in strfct confarmity with the Rules will be summarily refused by the Court of

Cruninal Appeals. Tex. R. App. Proc. 202(d)C@; Pumphnyu. St&& 689 S.W.2d 466,467 (Tex.Cr.App. 19853. The Court just will not tolerate a failure to follow the dear requirements of the Rules. Every year, approximately twenlyper- cent of all PDR's fded are summarily refused bemuse ofthe petitioning party's fadure to abide by one or more requirements of the Rules.

2. A PDR should contain onlv the strongest ooints umed in the court of a e a s . Courts of appeals judges, being human, sometimes make mis- takes, but they are rarely wrong about evey point of error atgued to them in a case. Consequently, the judges of the Court of C r i m l Appeals will look askance at any PDR thar simply re- urges, as grounds forreview, all or most of the points of aror the peatiming party urged in the court of appeals. In such s~tuations, the Court will mume, quite reasonably, that the petitioning party is simply trying to "shotgun" his way to a grmt. A PDR will be more effective if it asserts as grounds for review only those one or two or (at most) rhree grounds that have an ob- jectively reasonable chance of being granted.

Determining which grounds have a reasonable chance of being granted IS not difficult ifthe petiuoningpartydoes her legal =search carefully and if she stays abreast of the issues in which the Court of Criminal Appeals is currently interested. The l a m is easfi~ a e m - plished by reading "Grahtd PeiriaBs for Discretionary RdleW," a ~ Q ~ Q that appears reguJarly in thia5joud.

3. Do not raiseuointsfor rhehFIzn in a PDR. Although fh6 &YIE criminal Appeals has them- p m ~ ~ t b gmt mv1w Qf @:& d e d forthe Fmt&n@ in 8-PBIF, 8@@ v. Sbafe, 708 O.V.ad 444, 349 (Tex,Cr.App. 198~0, tlYe Ccuurtgsndy limits its review to hue5 &id& first

by a court of appeals. Byaum v Sf~be, 767 S.W.2d 769,776 CTex.Cr.App. 1989). Of course, if counsel preparing the PDR didnot represent her chent at trialor on direct appeal, shemay havelittle choice but m raise some errors for the first time ~l the PDR. See, e.g., Rabb v. State, 730 S W.2d 751 CTex.O.App. 1987).

4. The mounds for review must be clear and specific. Aground for review shouldbeasimple, distinct daim, "stated in s h m ~ form w6tbthoub argument," Tex.R.App. Proc. 202(dKW leulphasis added), that the court of appeals erred in resolving a pomt of error. For example, a ground for review might read, "The court of appeals erred in holding appellant's written confessian admissib1eundertheFiFthAmendment " Whatever it claims, the ground for review must be stated in such a way thaf thereis na possibility of don1:usion. The Couff of CrLminal Appeals will be dis- inclmed to grant a ground for review if the court is uncertain what the ground is about.

Thus, two or more legal theories, whether based on constitution, statute, or rule, muat neverbeintefminsied in a sinde mound forreview. or &le,


5. The reasons for revlew must 1 brief but c o m ~ e h g . According legend, a discretionary review court another jurisdiction once denled revie ofa msewiththefollowiugexplanatio

Your case is touchimg. Your tale 1s sad. But we're too busy. So it's too bad! Myron Moskovitz, Winning an A,

pea1107 (rev. ed. 1985). The point he! is that, subjea to a few exceptions, disuetionaryrev~ew court like the Cou of Criminal Appeals does not have I accept a case for review on the m a t even if the court of appeals reached ti- wrong result. Discretionary revlew truly discretwnaty. Rather, to get a ca: grantedfor review> thepetitioningpar must persuade the Court that a soun reason exists why it should accept tk case for review.

Relevant here is Texas Rule of A1 pellate Procedure 200 (c), which prr vides:

"In determining whether to grant I-

deny d~scret~onaty review, the follov mng, while neither controlling nor full measuring theCourtofCriminalAppea1 discretion, indicates the character I-

reasons that will be considered. (1) Where a court of appeals h;

Judge Charles F. Campbell hes served on the Texas Court of Cmmal Appeals sinceJanuary 1983. He earned a B A from the Umversity of Texas at Arlington m 1966, a J D from Southern Methodst Univmty School of Law in 1969, andanLL M rnthe~ud~c~alprocess from the Umversity of Vuginia in 19% We is cenitied m u ~ m d law by the Texas Board of legd Speclaluation

endered a decis~on in confl~ct wrth the lecision of another court of appeals on he same matter;

(2) Where a court of appeals has lecided an important questlon of state )r federal law wh~ch has not been, but hould be, senled by the Court of :riminal Appeals (3) Where a court of appeals has

lecided an important question of state rr federal law in conflict with the a p Aicable decisions of the Court of kiminal Appeals or the Supreme Court )f the United States, (4) Where a court of appeals h a

leclared unconstitutional, or appears 3 have m~sconstrued, a statute, rule, egulation, or ordinance; (5) Where the justices of the court of

ppeals have disagreedupon amaterial [uestion oflaw necessary to its decision; nd (6) Where a court of appeals has so

xr deparced from the accepted and sual course of judicial proceedings, or o far sanctioned such a departure by a >wer court, as to call for an exercise of le Court of Criminal Appeals' power of - - upemlon." Relevant also is Rule 202(d)(5), whch

rovides that the "Reasons for Review" cction of a PDRmust contain "[a] direct

W~ainP.Greenhas served asJudge Campbell's research assistant since September 1990 He graduated magna cum laude, with a B A. in history and government, fmm the Umversity of Texas at Austin in 1977, and recewed a J.D from the Universttfs School of Law in 1983 Pnor to his current posltlon, Green clerked for Texas Supreme Corn Justlce C L. FUy and also served asa staff attorney at theTexas Supreme Court and Third Court of Appeals.

and concise argument, with suppomng authoritm, amplifying the reasons relied on for the granting of review See Rule 200(c)."

DO not confuse "grounds for review" w~th "reasons for review." They are not the same thing. As explained previously, grounds for review are the pet~tionlng party's claims of error on the part of the court of appeals. Reasons for renew, m conmst, arethepetitiomngparty's brief explanation to the Court of Criminal Appeals why it should grant review in her parucular case. The Court does not generally grant renew just because the court of appeals reached the wong result. Arcilu v. State, S.W.2d-, -, NO. 0382-90 (Tex.Cr.App. 1992). As the Court explamed in Degvate v. State, 712 S.W.2d755, 756-757(Tex.Cr.Apppp. 1986).

"The purpose of the pention For d s - cretionaiy revlew is to present cogent, concise reasons why this Court should exercise its discretionary jurisdictton These reasons are rej?ected by those set outinRulefZ00 {ell. The importance of the case to the jurisprudence of the Statemust, therefore, bemade apparent in the petition for review. ?heassem'on that the court of appeals was in e m r as to somepoint of law, standing done, may be im&zent to re$uire firther retim.

'To this end, the portion of of the petition designatedCReasonsforRevrew' should specifically address the court of appeal's opmion and its effect on our jurisprudence. Thispresentationshould not go &o a detailed analysis> but should bnefly set out relevant Lases and statutes, and note any alleged mis- statements or ommionof relevant facts."

(Emphasis added.) 6. The reasons for review should

ex~lainvervbnefly whv the error inthe trial court was not harmless beyond a reasonable doubt. The judges of the Court of Cnminal Appeals have heavy caseloads and may not be interested in grantlng review of a ground that relates to an error that may have been harmless anyway. SeeTex R. App. Proc. 81@)0. It behooves a petitlofling party, therefore to persuade the Court that the error of which she complains was not In fact harmless beyond a reasonable doubt

7. Avoid askme the Court to overrule precedent The traditional rule requiring adherence to precedent, known as stare dscisis ("let the prior decision stand"), has at least Four rationales. F~rst, if courts follow past decis~ons,

direction is provided to all (lower court judges, lawyers, legislators, etc.) who labor in the legal enterprise. Second, the workload of judges would be increased to the breaking point if every past decision could be reopened in every case. Third, "the very concept of the rule of law . . . requires such continuity over time that a respect for precedent is, by definition, indispens- able." Planned Parenthood u. Casty, 112 S.Ct. 2791,2808 (1992). Fourth, the continuity of the law helps preserve public faith in the judiciary as a source of impersonal and reasoned judgments. Thus, a petitioning party asking the Court to abandon a precedent must explainwhy the need to do so outweighs the very weighty considerations underlying stamdecisis. If the petitioning party is unable to make a convincing case in this regard, then she should focus her attention instead on distin- guishing her case from the opposing precedent.

8. Be candid with the Court about directlv adverse controllino authoritv. The Court will find such adverse authority eventually anyway, and if the petitioning party has not been candid, the Court will look with disfavor on her PDR. Moreover, Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct states that 'Yal lawyer shall not knowingly fail to disclose to [a1 tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."

9. Do not make ad hominem attacks on opposing counsel or lower court judgz. The Court of Criminal Appeals has no patience for personal attacks and takes a very dim view of PDR's that contain them. Besides, if opposing counsel or a lower court judge is less than a sterling member of the bar, the judges on the Court probably already suspect as much and do not need to he reminded.

10. Never misstate the law or the facts. The judges on the Court of Criminal Appeals are more likely to grant a PDR if they trust what it says. Therefore, a PDRmust never misstate a fact in the record, never cite a case for a proposition for which it does not really stand, and never make arguments that fly in the face of common sense. Conclusion

With the Caul-t of Criminal ADDeak . . granting approximately fifteen percent

/ O I C E FOR T H E D E F E N S E

of all PDR's filed, it is imperative that lawyers filing PDR's not lessen the already slim chance that they have of success. The authors hope that this article will assist lawyers in heating the odds..

fenders for a longer time. The chances are slim for accom-

plishing honesty in sentencing and for increasing sentences for the violent pl-edators or worst offenders if no consensus is achieved to implement the tough choices needed to restore a balance between policies and resources in the criminal justice system. Moreover, what looms on the horizon if the tough choices continue to be avoided is the routine acceptance of a continual level of dysfunction. This acceptance will occur because the choices will become tougherto make as the crisis deepens in the future. The system would reach a "pointof no returnm-itwould function like a Third World Country in which dysfunctions are routinely tolerated as part of the system.

Is the operational collapse of the Texas criminal justice system an exag- gerated possibility? You can decide for yourself by reviewing the facts. The present backlog of state prisoners in county jails is over 17,000 inmates - a backlog larger than the total prison population of 36 states. Even after nearly 25,000 correctional beds become operational by 1995 at a cost of almost $1 billion and additional annual operating costs of $500 million (not presently available under existing revenues), and assuming no significant decline in the number of offenders paroled, the pro- jected backlog of state prisoners in county jails in 1998 will be over 28,000.

Can more offenders just by "jammed" 'into prison and jails? If the state could meet its responsibility to house state felons hy increasing the crowdingin the state prison system (assuming this was legal) there are two choices to consider. One choice would require that the prison system operates at 238% overcapacity by 1998 (the equivalent of 192,834 prison beds). The other choice would require the diversion of thou-

sands of offenders presently released on parole from jails to community cor- rections and the operation of the prison system at 130% overcapacity by 1998 (the equivalent of 105,765 prison beds). New Thinking for the 1990's: A Blueprint for Action

It is essential to immediately achieve the broad consensus necessary to ad- just sentencing patterns and criminal justice resources for morr responsive policies to take effect. However, we are soon going to need to develop a new thinking to approach criminal justice issues. To effectively deal with the criminal justice crisis in the 1990's a systemic strategic perspective is needed which sees criminal justice not only as a law enforcement issue but as an issue intrinsically connected to other social and economic problems. The cl-eation of a broad coalition inside and outside the traditional criminal justice area is needed to promote this comprehensive approach. Some policies to consider:

Law enforcement policies directed at decreasing violent crime. This is a critical element in the effective utiliza- tion of other resources targeted at im- proving the social infrastntcture sup- posing a crimc-free environment.

Policies coordinating economic, educational and substance abuse treatment resour-ces in the state that can collectively have a positive long-term impact in reducing crime.

Policies that cut across agency boundaries that can be enacted to deal with the overlapping needs of the offender population like employment, adult education, substance abuse treatment and crisis internention.

Development of alternative facili- ties and services which integrate treatment, secure detention and public safety to be pan of a continuum of punish- ments and programs.

Increase fiscal accountability through strategic planning and evaluations of programs to routinely monitor the cost-benefit of initiatives adopted.

The Punishment Standards Commission's work can provide the first step to delineate the new approach needed in criminal justice in the 1990's. A vision for the 1990's is needed to achieve consensus and action. Without this vision and action we will enter the next century with a highly dysfunction criminal justice system held together by the thin-ice of ineffective policies and drowning in a sea of financial red-ink..

35

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

Ethics Notes Conti~~ldekZfim page 31

concern dvxl versus ain&d attornejs and their relative sense af or belief m attorney ethics It 1s about the Bar in general and the manner in which, in part through our own doing, we are v~ewed by the public

2. In pectment put, the OitginaI Pentton essennally read as follows:

1. AtfDmey was approached hy Jane Doe

thmgh an introducnon made by a mutual aquamtmce. Doe represented to Attorney that she owned and onemed a "fee attorney" office.

II Doe represented to Attorney that fee

attorney 0% must be sponsored by a licensed attorney. Doe sald t h a her prior spmoringattomey had~mindtedhis con- tmrt and, therefore, she needed a new attorney/sponsor to contmue operations She requested that Attomey become the new atrorney/sponsar.

m Doe represented to Attorney that under

the fee atromey agreement with XYZ Tstie Company, XYZ would pay one half of the Title premium recetved from commercial and residential real estate tramactions to the fee attornev office wkch ofirrinated the business. The fee attorney offi;e would be responsible fordrectins the uartiesro thes traisamons to XYZ foFrheh'title insurance

1. needs. In addition, the fee attorney o&e would be responsibk for legal document preparation and closing the tnjmaetions. For its work, the fee attorney office also m e d attorney and escrow agent tkes from buvers and sellers

N. Doe represented toAuomeytharshe had

the physical locahon,equpment, and cbent base to conduct the bwiness Doe explained that she had persody managed and operated the fee attomey office and would be responstble for the payment af salaries, payroll taxes, rent, overhead, and other operating expemes for the fee attorney offee.

v. Attorneytoldooethathe wouldhave

no opportunity to hccome invoked in the management or operation of the officr1,c~auw hv lud h~h~,wn~ull-rmw l :~w -

pracuce to operate. Doe said that it would not be neeeSSaT forAEmney to be tnvolved in the operation OF €be fee attomey office.

VI. Thereafter, Attomey and Doe reached an

agreement for Altaney to spansar the fee attomey bmce. The aforeatd expen- were to be solely the responstbiUty of Doe,

VII. Attorney and Doe iyFreed to operate / thefeeattorneyofficeasaiointventure.

Because of l e d iequiremenb, it was nc%r?isary ~ I I ~ X Y Z tomake Its payments for the fee attormy omre to Attorney. Therefore, ~?torm$ agreed that a badh aceountwonldbesetupUnaahlsname, andAttomeyandDoewouldbesigmtw riesontheaacnunt 'Ikesgreementwas that the title insurance eWlrms and attorney's fees fmmXY2?wouldbe sent to the fee attornev nfEce- Then. Doe would endorse & checks and d&sit them to sdd accoun+ A secoitd bank accountwas established by Doefmmwhmh exoenses of the fee attornev office were to

Although Attorney's narne was on the fimt account, to which ationlev's fcrs were deposited, Attorney did not sigfx anychecborhaveanydeahgsflrlth s& account. The agreement was &at all funds ~UectedfromXYZ wonld be deposited into said awouat by m e and then be transferred to the s e s W ac- MRmt by Doe. The ;tgreenent was that, afkrpaymentbyDoe0ftheexpea~esof the fee attoinw offlce. the Ofofit§ of the joint venture &hich&o& necessadly include attorney's fees1 would be dls Wmted 75% to Doe and 25% to Attor- ney. *,

M Doe seniedas$eneralmanager forthe Fee

attorney office. Doe had complete control of the inelnding the hiring of all employees, s w n g all checks, and inan- and supersising all of the &ces and work performed by the oface.

3. TEX. DISC. R. PROF. CON. 1 Ol(b), 1 0 4 0 , 5 Meal, 5.Wa7, 5 MhJ, 5.05(23

4. Id, 8 03, Comment 1 H

How to Conduct a Voir Dire Conttfzuedfiwzpage 12

about. This criticism generally comes from inflexible, inexperienced or ineffective lawyers. The questionnaireis a diving board and vofy dire is the swimming pool of fee*, attitudes and opinions. 33 The questionnaire wiU disclose my theory of the case to the pMsecution. An effective uair dim requires you to disclose your theory of the case so you can learn which jurors are most open to it. However, if this is amajor concern, simply leave your case theory questions out of the questionnaire. Our experience has univerdy shown that the advantages of a ques- tionnairedmnatically outweighany and all disadvantages.

The fmal decision on the question-

naire is obviously left up to the judge. Some judges favor long comprehensive questionnaires, some judges favor shat questionnaires, some judges have never been asked about a queslionnaire and some judges will never give a ques- timnaire. Lawyers think that most judges fall into the last categoty. Ttrese lawyers a x wrong. We all know judges who are too set in their ways M have had a bad experience with a questlon- naire. If you find yourself in such a court, youmust decideif you want to do battle over this issue. In most cases we recommend it is worth the fight. You will need to file the motion, attach the proposed questionnaire, examples of other questionmires given by state or federal district judges in your area, attachafFidavits from lawyers who have gotten quwtionnaires, affldav~ts Fmm jpryandtrialcomultants, psychologyor sociology' professors or wen affldavits from citizens that stare they wauld feel less embarrassed and could be more honest if sensitive or private questions were asked in writing as opposed to orally rn open court. Counsel should next request a hearing to present fur- therevidence tothe court. Again, when counsel has pushedfull steam ahead, at least 20% of the judges have reconsid- ered andagreed to the questionnaire or some abbreviated version of it If lawyers make the effort now, questionnaires will be the norm in the next 19 years.

To determine the l i k e l i d of the court &owing your questionnaire, you should contact other lawyers who ap- pea^ regularly before the judge, the murt clerk, c o w caordinator, law clerk, wurt reporter or even the bailiff. If the judge has used a questlomaire in another case, you should obtain a copy and you should try to find out d the judge felt it was helpful or disruptive. IF the judge had a negative experkme, findout all the problems and figure out a way to correct them. The primary &ticism judgeshave is twoEold: 1) Too burdensome on court staff; and, 2) It did not save time. Each of these can be easily remedied- yaushouldsupply a supficient number of questionnaires and pens so the clerkmerely has to hand the msuumeut out Once the questionnaire is completed, you should volunteer to have a lawyer, aaoeiate, paralegal or some other person assist with making the copies. encourage the prosecution to participate in the logisti-

VOICE FOR T H E D E F E N S E

01 aspects of copying and disseminat- ing the questionnaires. It is helpful if two copies are made for you and two for the pmBeation (if they want two copies). The reason you want m o copies of each questionnaire is so yau and the person assisting you with jury selection can both be raiewing the documenrs. You &wuld always agsee to bear the cost lor split the cost) of reproducing the questionnaire, even if you have to pay for it out of your own pocket. ALways remember the cardind ruleinquestionnaires -take the bassle out of it for the court staff - most of them are overworked and underpaid as it i~ -- --

With resped to the time consumption problem, this is handled rather easily. Virtually every criminal trial has some pre-trial matter (motion to $uppress, motions in lirnine, etc.1 that fnust be taken up before jury setection begins. Suggest to the judge that white the court and pntaies are hishing the pre-trial motions, the jurors are drawn from the jury pool and begin f i g out the qnestionn&e. The court is essentially killing m birds with one stone. The jury questionnaires are copied, the lawyers review the questionnaires over the lunch hour and jury selection is ready to begin Additionally, you must assure the judge that you will not ask any questiw coatahed in the questionnaire. YYOU wjlt only ask fonow-q questions, case specific questions and queaions that deal with possible challenges for cause. This procedure gm- esally eliminates the fudge's concern that time is being wasted.

It should be pointed out that most questionnaires are handed out the day of jury selection. However, thei'e are other methods available that are far more time &cient. The ideal way to handle the jury guetionnair-e is to send it out with the jury summons. Most jwm receive their summom 2 to 6 weeks in a d m e of their jury service. Included with the summons would be the questionnaire and a self-stamped, self-addressed envelope [to the clerk's office). The clerk sends a cover letter to the juror exp* the purpose of the questionnaire and that it must be returned to the clerkks &ice at least one week before their jury sewice. Our experience with this procedure has shown that well over $a% of the jurors return their completed questionnairein a timely fashion. Counsel should make

arrangements with the clerk's office to pickup the questionnairesas'they cane in orthe entiregtoup on the *turn date. Obviously the fomer option h heaer far the lawyem they can gradual1y &orb anddigesttheinformation rather than being ovemhehed by a large stack of completed questionnaires.

There is an aspect 10 this proems that many lawyers, prosecutors and judges have not considered. By nailing out the questionnairesufficiently in advanee of the trial to allow the lawyers to review the answers not only allows the parties t h e tn identify cause and hardship challenges &hereby saving the court more time when the paa.1es agree to excwe jurors) hut more irnpomtly it allows the parties to re-evaluate their respectivecases. Some cases, including patentially lengthy trials, have been resolved or setded when a glunpse of the pzaspeetive jurors has been provided to counsel. Courts have saved hugeexpenditures oftimeandmburces by maiBng questionnaires out ro the prospective jurors in advance of trial.

A hrrd alternative is to d l the jury panel in the week before trial, have them fill out the questionnme and mhet them to return the fnllowihg Monday. While some judges rrsist having the panel come to court before the trial date, the fact is that this can expedite the jury selection process. Hardship and cause challenges ran be agreed upon and the clerk simply contacts those jurors by telephone and excusesthem. The Iawym maybeable to res01ve the case, but at a bare mini- mum each side will have the time to review the information, write specific follow-up questions for ear& jumc and carefully prepare a thorough and effective yair dim. Few judges like a "reverse and remand for new trialtrial ordered by an appellate court. Getting reversed on a jury selection issue b like a race car that sralls on the he- lhe -10% of time and re~ources h b a - W n wasted Jury qvestQnqaires q?Uplz&, with &dent time tb revic?dr && :& 'formatqn and a& psqp,mwd&d

,.vl w>_ and relevam questim cm. $&?#@&

I

copy of a qu&1onnaffe we prepared in a recent ctiminal ca~se in state court as well as a copy of the standard jury questionnave used m f e d 4 court for the Southem Disttnct of Texas, Houston Division..

mey p d e d no facts or argument to support therr q u a s t except for the unsupported statement that the demo- graphic$ of Alameda County mare clasely mirmfed the dernographii of Los Angeles County than the other choices. There is no case law in Cali- fornia which supported such an argu- mefit and the argument was rejected. The trial court selected Ve- County and the ease was ultimately transferred to S k i Valley. Though, the case was heardinSimiValLey,jllrors were selected from the entire county of Ventura. Parenthetically, the prosecu&km made numerous publicst&~ementsbeforq and afta the transfer to hi Valley that they beheved they could receive a fair trial in my county in the State of Califom.

Of the three hundred and fifty pfo- spective jurors, six were black. Qn tha. fim day of jury selection, each of t h e six black jmms were conQcted by members ofthe N.A.A.C.P. In a healing to determine whether jury mpePing had occurred It was learned that members d t h e N.A.A.C.P. had m~km


televtsed gavel to gavel. Every word spoken was broadcasted and dmected by a variety of expert analysts and reporters. Televls~on viewers called regularly, called my office with mfor- matlon and suggestions, including background on the witnesses whose testimony they had observed. Some of the callers provtded invaluable impeachment of witnesses who were giving testimony. Televmon trucks and satelltte dishes httered the parlung lot. Numerous live reports were broadcast throughout the day and Into the n~ght Every movement of the attorneys and defendam was monitored and artalyted. Reporters from around the world attempted to put the case into some perspective. Every concewable aspect of the case was reported from the court reporter's new hair style to the lunch that was ordered by the jury and delivered to the court house

The prosecution elected not to call Rodney Ktng. The~r decision was doubtless based on the follow~ng factors 1. Mr King 1s an lmposlng figure, six feet four mches m height and two hundred and fiEty pounds in weight. 2 In the absence of his testimony the tnal cout excluded details of Mr King's crlminal record which included the fact that he was on parole for the robbery of a convenience store w~th a tire iron; a

1. . convictton for attempting ta run over his girlfriend wtth a car; and an attempt to run over two undercoverv~ce officers who tried to arrest him for soltc~tlng an act of prostitution from a transvestite. Addttionally, Mr King gave several taped statements regarding the events of his arrest which were demonstrably false. These mcluded statements that the had not been drinking or taking drugs, the truth being he had consumed a case of beer and had marijuana in his urine, he was beaten only after he had been handcuffed, a statement belied by the Holliday mdeo.

The defense of Officer Briseno was based on his belief that other officers used too much force and he attempted to stop the beating Thevideo showed hun grabbtng the baton of another officer who was delivermg power- strokes to Mr. King. This defense sepa- rated me from co-counsel. For obmous reasons there was lmle shared strategy or common ground.

After seven days of deliberdtion, the juryrenderednotguiltyverd~cts. Twenty years of criminal defense and hundreds

I 38

of jury trials d ~ d not prepare me for the public reaction Mayor Bradley bitterly complatned about the jury verdicts. He pronounced that defendants gutty after thew acquittal, even as he had pronounced them gully before their trfal. This dtsrespect for the jury process and the orderly determination of criminal accusabons was shockmg. The right to tnal by juy, not by kmg or commissar or any p u b l ~ offmal, is one of the most treasured and carefully guarded rights afforded to our citizens. It is what distmgu~shes our country from the tyr- anny of dictatorshtps. W~thLos Angeles m flamw and anarchy replacing order, elected ofic~als would do well to re- memberthe fundamental concepts upon which this country is based. The uni- versal castigation of the jury verdct is unprecedented and strkes at the very foundation of our ludidal system If jurors believe that their not guilty ver- d~cts will be used to authorize carnage andvrlification by most respected people m our country then we have reached the end of our form of government Many have asked What do I tell my chddren about this verd~ct?". They should be asking "How do I explam to my children the destruction of a system of juat'ce that their forefathers fought and died to protects

Burning Down the Woodshed Continued fmm page 26

and the tenor of the matternoticed. In the absence of pnor notfzcation, the request may be mude after ludicid notice has been taken m e court's de terninahonshall hesubject to review as a rultng on a questzon of law.

COMMENT: Rule 204 appears to be somewhat of a catch-all rule that ties up a few loose ends Although the ordinances and rules mentioned in Rule 204 could probably be proved up under l@le 201(b) (2), both Rule 201Cb) I21 and Rule 204 require that proponent of the evldence to sattsfy the court as to the accuracy of the proffered evidence. To this extent these two rules are very simllar.

Prior to the adoption of Rule 204 in the Texas Rules of Civil Evidence ~n 1984, it was widely accepted that none of the items mentioned in Rule 204 were subject to bemg jurllc~ally nottced.

Rule 204 now makes all of the listed items capable of beingpdtcially noticed. The rule applies only to ordinances and rules of the State of Texas Rule 204 does not apply to the Federal Register, but the terms of that act make its contents sublect to judicial nonce by the courts of the vanous states,

Even though Rule 204 appears to be intended to be somewhat of a catch-all rule, it does not mentlon the constltu- tlons, statutes, or case decisions of Texas or the Umted States These items could probably be made susceptible to judmal nonce under the terms of Rule 20l(bl (2).

The criminal verslon of Rule 204 appears to be permissive m that it says that court "may" take judiual notice, while the civd verslon appears mandatory by substltutmg the word "shall."

As with Rule 203, the court's determination onth~s subject is a question of law, not a question of fact.

LEGAL AUTHORITY: 'Yudlcial Notice Under Arttde U of the

Texas Rules of Emdence," Wellborn, supra.

Sparkman u. Stafe, supra Martinezu CQofSdnAntonio, supra. FEDERAL RULE: No corresponding

Federal Rule. CMLRULE. Same, except for use of

mandatory language as noted in comment above.

RULE 902 Self-Authentication Extrinsic euzdence of authentiaty us

a condttionprecedent to admmbrlity is not requwed with reqect to the following:

RULE 902 (1) Domestic public documents under seal. A document heanng a seal purporhng to he that of tbe Unitedstates, orofanystate, district, Cummoniueulth, terntory, or insular passession thereox or the Panama Ca- nal Zone, or the T m t Teprltory of the Pacific Islands, or of a polatcal suhdz- urnon, depaement, oficer, or agency thereox and a signature purporting to be an attestation or executzon

COMMENT: A document is admissible if it is a document from one of the ltsted governmental agencies, and that document bears the purported seal of that governmental agency and n bears a signature purporting to be an attesta- tton or execution.

LEGAL AUTHORITY: Reed u. State, infra. Tatom v. State, 786 SW2d 523 (Tex

App. - Austm 1990).


matchbox, he was looking for a razor blade or weapon that could hurt him, the Co~ut held that the officer's belief concerning the possible presence of a razor was nor reasonable. Thus, the matchbox shouldnot have been opened and the evidence was inadmissible undet- both the Texas and United States Con- stitutions.

9. Drug courier profile with regard to Terry stops.

a. Federal cases. In United States u. Sokolow, 109 S.Ct.

1581 (19891, the Supreme court considered application of the "drug courier profile" to reasonable suspicion deter- minations. The Court acknowledged that reasonable suspicion was not readily or usefully reduced to neat legal rules. The totality ofthe circumstances should be considered. Acts which would be legal if taken individually may warrant further investigation when considered collectively. Factors fitting a drug courier profile should be considered in the totality of the circumstances to determine whether reasonable suspicion was raised.

In Reid u. Geoqia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the Supreme Court noted that in an airport context, the drug courier profile could describe a large number of innocent travelers who could be subjected to random seizure.

In UnitedStatesv. White, 794F.2d 367 (8th Cir. 1989) the court held that the facts didnotjusufy detention of atraveller who fit a drug courier profile: suspect was traveling from a drug-source city, he arrived early in the morning, his flight had previously yielded other drug arrests, he had purchased a one-way ticket with cash, and he held his cany- on bag tightly with both hands instead of using the shoulder strap.

b. Texas cases. Drug courier profiles were discussed

in Valcarcel v. State, 765 S.W.2d 412 (Tex.Cr.App. 19891, where the Court held that the officer's testimony ,about the profile was not lholstering, but was inherently prejudicial and irrelevant to any issue in the case. In footnote 2,765 S.W.2d at 414, Judge Teague refers to several 11th Circuit cases, one in which the court held that profile testimony is inherently prejudicial because of the "potential it has for including innocent citizens as profiled couriers."

In Holladay v. State, 805 S.W.2d 464 (Tex.Cr.App. 1991), the Court discussed

the officer's special training in drug enforcement as a factor to consider in assessing whether there were sufficient facts to justify an airport detention.

In Grant u. State, 709 S.W.2d 355 (Tex.App. - Houston i14thl 1986, no pet.), the court held that profile information, in addition to observations from a non-coercive stop, justified a Terry stop.

In Curry u. State> 699 S.W.2d 331 (Tex.App. - Houston [14thl 1985, pet. reed), the court considered drug courier profile facts. Officers decided that the defendant fit the profile, andstopped and questioned her. When she started to leave, one officer grabbed her by the arm and asked if she would continue the investigation inside the terminal building. The defendantwas later found to be carrying drugs. The court held that officers had sufficient facts to justify a brief detention to ask the defendant her name. The court added, however, that the courier profile standing alone was of no legal significance in the determination of reasonable suspicion. In order to justify the further detention, officers needed probable cause or consent. Since the facts did not establish probable cause, an improper arrest occurred when officers grabbed the defendant's arm.

In Penhitti u. State, 659 S.W.2d 75 (Tex.App. - Houston i14thl 1983, no pet.), the court considered a non-border airport stop. The court noted that the drug courier profile was an administrative police tool, but had no legal significance in determining reasonable suspicion or probable cause. Since the defendant was arrested without probable cause, the subsequent search was invalid. C. SUSPICIONLESS SEARCHES.

1. Administrative searches. a. The federal rule. Administrative searches of private

residences to enforce housing, fire or sanitation standads are covered by the Fourth Amendment. Camara u. Mu- nicipal Courl ofSan Francisco, 387 U S 523,87 S.Ct. 1727,18L.Ed.Zd930 (1967). Warrants should generally be sought unless there is some other satisfactory reason for securing immediate entry A defendant has a constitutional right to insist that the inspectors obtain a warrant. Seeu. CiyofSeattle, 387 U S 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

Legislative schemes authorizing warrantless administrative searches of

commercial property are reasonable under the Fourth Amendment in some situations. Donovan u. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). Commercial premises are covered by the Fourth Amendment as well as a private home, but the expectation of privacy in the former is less than that applicable to the latter. New York u. Burger, 482 U.S. 691,107 S.Ct. 2636,96 L.Ed.2d 601 (19871. If the business is considered closely or pervasively regulated, such as firearm or liquor establishments, then the expectation of privacy is further attenuated. Collonnade COT. u. United States, 397 U.S. 72, 90 S.Ct. 774 (1970) and United States u. Biswell, 406 U.S. 311, 92 S.Ct. 1593 (1972).

Under Burger, a warrantless a&- istrative search will be reasonable only if:

1. There is a "substantial" government interest that gives rise to the regulatory scheme under which the searchis made,

2. The warrantless search is necessary to further the regulatory scheme, and

3. The certainty and regularity of the program's application provides an adequate substitute for a warrant.

In United States u. $124,570 United States Currency, 873 F.2d 1240 (9th Cir. 19891, the Court considered an airport security search. Seattle Airport had a working relationship between the security personnel and other law enforcement officials. Agents were en- couraged to report the presence of drugs and U.S. currency to the U.S. customs and port police and to work with them. Security officials were given monetary rewards for reporting pas- sengers with large sums of money and presumably contraband. Using an x- ray scanner, a security officer detected a dark mass in the defendant's briefcase. The officer asked the defendant to open the briefcase, found a large amount of money, andreported the find to customs agents and police officers. The court held that since the search exceeded the airport's interest in detecting weapons, the search could not be justified as a proper administrative search. Also, even though the passenger consented to the x-ray for weapons scan, he did not thereby consent to a search of his luggage for currency.

b. The Texas rule. New Yorku. Burger, 482 U S 691,107

S.Ct. 2636, 96 L.Ed.2d 601 (19871, applies to Texas administrative searches.


Crosby u. State, 750 S.W.2d 768 (Tex.Cr.App. 1987). With regard to Texas Alcoholic Beverage Code searches, a substantial government interest is advanced by the relevant regulations and The inspecttons are necessary for regulation of the liquor industry.

The third requirement - certainty and regularity of application as a substitute for warrant - is not always so easily shown Under Burger, a regulatory statute is an adequate substitute for a warrant if the statute sufFrcently no- tifies the owner of the regulated business that the search is authorized by law, and the statute limits the officers' discret~onaccording to time, place, and scope. Under these factors, the Texas regulatory scheme isacceptable, C70Sby.

Officers making administrative searches do not have unbridled &- creuon to search. The scope must be limited to further the purpose of the administrative search: to detect whether the hcensee s violattng the T.A.B.C. McDonald u Stute, 778 S.W.2d 88 (Tex.Cr.App. 1989)

The constitutionality of T.A.B.C. Sec. 101.04 was upheld in SantiEos u. State, - S W.2d - (Tex Cr.App. No. 923-88 delivered December 20, 1989, motion for rehearing granted]

1. 2. Permanent checkpomts.

. Vehicle stops at fixed border patrol checkpoints are constitutional andmay be used to stem the flow of undocumented workers movmg across the border. UnitedStatesu.Martinez-Fuerte, 428 US. 543 (1976) Limited detention for investigative purposes does not re- quue individualized suspicion, but the State's interest must be balanced against the individual's rights. Id. Three factors must be considered:

1. There must be evidence of a substantial pen& of judicial and public acceptance of the questioned govem- mental activity,

2. There must be no other means of effective law enforcement, and

3. The purposeofthesearch must not be aimed at the discovery of cnme.

Marlrnez-Fuate, and Camara u. Municzpal Court, 387 U S. 523 (1967).

Routme border searches of the persons and effects of people entering the United States are not subject to reasonable susprcion or probable cause requirements, Unzted States u. Ramsq, 431 US. 606, 97 SS.Ct. 1972, 52 L.Ed.2d

1 617 C1977) and Almei&&nchez u

United Stutes, 413 US 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (19731

Moreover, persons may be stoppedat fixed checkpoints near an mtemational border without individualizedsuspicion, even when the stop is based largely on ethnicity. United States u. Montnya de Hernundez, 105 S Ct. 3304 (1985) at 3309.

In United States u Bwisba, 930 F.2d 914 (5th Cir 19911, theFifth Circuit held that the Fourth Amendment principle which permits routine suspicionless border searches of persons entering the United States also extends to persons leaving the country. Routine searches of persons eximg the United States are made toregulate the expoaof monetary instruments in order to psevent the use of intemat~onalcurrency transactions to evade domestic criminal, tax, and regulatory laws. Given this substantial national interest, routine exit searches are permissible.

Detention and search beyond the scope of a routme customs inspection may be made if particularized and objective facts suppxt a reasonable suspicion that a person is smuggling contraband. Montoya de Hernandea, 105 S.Ct 3310. In Unitedstatesu. Camon, 872 F.2d 1436 (10th Cu. 19891, the court held that customs agent properly exceeded the scopeof a customs inspection by drilling a small hole in the camper wall, when the facts indicated a reasonable suspicion that the defendant was smuggling drugs: the defendant was nervous, the eamper shell had been recently removed, and the in- spector detected that the top part of the camper was hollow.

No probable cause or reasonable suspicion is required for searches at fxed checkpoints functionally equivalent to a border. Before a particular checkpoint merits consideration as a functional equivalent of the border, however, the government must show with reasonable certaintythat the traffic passing through the checkpoint IS in- ternational in character. Specifically, no more than a negligtble number of domestic travellers must intercept the checkpoint. Unzted States u. Jackson, 825 F 2d 853 (5th Cir. 19871, cert. denied, 484 US 1011,108S.Ct. 711 (1988).

3. Roving patrols. With regard to roving patrols, officers

may stop vehicles and question the occupants only if they have specific articulable facts, together with rational

inferences whlch arise from the fach, that reasonably warrant a suspicion that thevehicles contam ikgal aliens. Unzted States v Brgnonz-Ponce, 422 US. 873, 95 S Ct 2574, 45 L Ed.Zd 607 (1975). Officers may consider the characteristics of the area in which the vehicle was found, its proximity to the border, the usual patterns of traffic in the area, and the officers' previous experience with alien tdc. Id., 95 S.Ct. at 2582. Also, the facts must be viewed fkom the experience of the border officer. lhzrted Sfatesu. Cortez, 449 US. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1980).

4. Boarding open vessels Boats on inland waters, with ready

access to the seas, may be stopped and boarded withno suspicion. UnifedStatss u. I l l l l a e - M a 462 US. 579, 103 S.Ct. 2573, 77 L.Ed 2d 22 (1983)

5. Temporary roadblocks. a. The federal rule. DriMrs license roadbloch may be set

up to stop aU drivers to determine whether they have proper licenses: no particularized suspicion or probable cause is needed. Delaware u. Prouse, 440 U.S 648 (1979). The government's interests must be balanced against the individual's rights by considering the gravity of public concern sewed by the s e i m , howmuch theseizureadvances the public interest and the interference with the mdividual's rights Brow u Turn, 443 U.S 47 (1979).

In Mzchigan Department oystute Po- k e u Sitz, 110 S.Ct. 2481, I10 L.Ed.2d 412 (19901, the Supreme Court held that d.w.i. roadblocks are not unconsutu- tional if the roadblock detention passes the three-part B m n test. This bal- ancing test apphes to evidence seized from a roadblock, and the following must be weighed:

1. The interest of the State in pre- venting accidents caused by drunk drivers,

2. The effectiveness of d w.i. roadblocks in achieving such a goal; and

3 The level of intrusion on an individual's pnvacy caused by such a roadblock.

The Court in Sztz, however, addressed only the use of sobriety checkpoints and not whether detention of particular motorists requires individualized suspicion. The holding was based on US. u Martinez-Fu&, 428 U S . 543 (1970, which dealt with fixed checkpoints for detecting illegal aliens.

In Galbath u. Unitedstates, - F.2d

7


- (D.C.Ct.App. No. 89-382, delivered April 30,1991,49Cr.L. llm, theappel- late court reversed a defendant's weapons convictions stemming from his stop at a roadblock operated pursuant to the D.C. police department's highly publi- cized "Operation Clean Sweep." The court cited the applicable factors discussed in Sit3 and noted the trial court found the primary purpose for the roadblock related to "violence, drugs and guns." The appellate court held that the police could not use the roadblock in order to seek evidence of drug- related crimes. Roadblocks have never been upheld to promote general law enforcement purposes. Also, the government's general interest in deterring people from driving into the area to buy drugs was not suffciently substantial to outweigh the seized individuals' liberty. Also, there was no empirical evidence that the roadblock effectively promoted the government's interest in deterring drug offenses. The balance weighed in favor of the individual in this case and the conviction was reversed.

b. The Texas rule. Suspicionless license checks are au-

thorized under Art. 6687b, Sec. 13, V.A.C.S., which provides that any peace officer may stop any motor vehicle in order to determine whether the driver has a valid license. Such stops are prohibited if used as a subterfuge to cover up an unlawful stop based only on mere suspicion. McMillan v. State, 609 S.W.2d 784 (Tex.Cr.App. 19801, White 11. State, 574 S.W.2d 546 (Tex.Cr.App. 19781, Fatemiu. State, 558 S.W.2d 463 (Tex.Cr.App. 1977).

In Webb v. State, 739 S.W.2d 802 (Tex.Cr.App. 19871, the Court of Criminal Appeals held that a license check was in fact a d.w.i. check. Three factors were deemed relevant to suspicionless stops: the State's interest, the officers' discretion, and the intrusion effected upon the individual. Based upon these factors, the Webb d.w.i./license check was impermissible. Under proper circumstances, a roadblock set up solely to determine motorists' sobriety may be constitutionally permissible. The Webb roadblock, however, lacked proper constitutional safeguards and operational guidelines to protect motorists from unreasonable seizures, and was used as a subterfuge to conduct general investigations.

In Higbie v. State, 780 S.W.2d 228 (Tex.Cr.app. 19891, the Court held that

a d.w.i. roadblock violated the 4th Amendment because there was no individualized suspicion consisting of arkiculable and objective facts showing criminal activity. The d.w.i. roadblock could not be justified as a I-easonable suspicionless seizure because it failed to meet the three-part test in Camara v. MunicipalCourt, 387 US. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Much of the Court of Criminal Appeals' analysis in Higbie was rejected by the Supreme Court in Sitz. In King u. State, 800 S.W.2d 528 (Tex.Cr.App. 19901, the Court of Criminal Appeals held that Sitz overruled both the Court's plurality decision in Higbie, and the Court of Appeals' decision in Higbie v. State, 723 S.W.2d802 (Tex.App. -Dallas 19871. A plurality of the Court agreed to remand the King case to the Court of Appeals for reconsideration of the defendant's point of error that the evidence was seized in violation of the Fourth Amendment. A majority of the judges agreed to also remand the case for consideration of whether the evidence was improperly seizedunder Art. I, Sec. 9 of the Texas Constitution.

On June 27,1991, the Dallas Court of Appeals issued its opinion after the Court of Criminal Appeals' remand, and held that the d.w.i, roadblock violated both the Fourth Amendment and Art. I, Sec. 9 of the Texas Constitution. King v. State, - S.W.2d - (Tex.App. - Dal- las, No. 5-86-461CR, delivered June 27, 1991, pet. ref'd). The State presented no evidence that Texas had the type of administrative d.w.i. roadblock scheme discussed in Sitz. Even though the Court of Appeals noted that the Texas Con- stitution was to be treated the same as the federal constitution, which is now incorrect under Heitman, the holding is sound: once a violation of the federal constitution is found, the Texas Con- stitution is automatically violated as well since the latter provides greater protections to defendants. The State's petition for review was refused.

In State u. Wagner, 810 S.W.2d 207 (TexCr.App. 19911, the Courtof Criminal Appeals granted a State's petition for review from a Dallas Court of Appeals decision holding that a Dallas roadblock violated the Fourth Amendment. The Court remanded the case to the Dallas Court of Appeals for reconsideration of the roadblock issues in light of Sitz and King. Judge Miller filed a concurring opinion, which received a majority vote,

noting that the Court of Appeals cor- rectly noted that there was no administrative scheme permitting d.w.i. roadblocks under State law. In Sitz, the M i c h i g ~ legislature empowered its counterpart to this State's Department of Public Safety to set up a statewide administrative sobriety checkpoint scheme. Judge Miller observed that Texas has no such administrative scheme, which is a task best left to the legislature, and concluded that the issue presented in Wagner could be resolved without addressing whether the roadblock violated the Texas Con- stitution. Since the concurring opinion received a majority vote, this case may indicate that a statewide policy on roadblocks is required and local law enforcement departments lack authority to set up their own roadblock schemes.

In State v. Sanchez, 800 S.W.2d 292 (Tex.App. - Corpus Christi 1990, pet. granted Apid 4, 1990, No. 168-911, the Court of Appeals held thata defendant's rights were not violated when he was stopped by an officer to check his driver's license and proof of insurance pursuant to a checkpoint established under the Department of Public Safety guidelines. The Court of Criminal Ap- peals granted the State's petition for review to determine whether the checkpoint was proper and whether evidence seized after the defendant consented to a search was admissible.

The Court may also have an opportunity to discuss d.w.i. roadblocks if a petition is filed in State v. Van Natta, 805 S.W.2d 40 (Tex.App. - Fort Worth 1991, no pet.). In this case, the Court of Appeals considered a d.w.i, roadblock set up pursuant to a written plan. The trial court, acting under Higbie, 780 S.W.2d 228, found the roadblock unconstitutional. The Court of Appeals considered the case given the Supreme Court's holding in Sit3 ,and applied the three-prong test in Brown v. Texa , 443 U.S. 47 (1979), to determine whether the roadblock was proper. Since the State failed to offer any evidence regarding the second-prong on effectiveness, the trial court properly suppressed the evidence.

6. Immigration sweeps. ImmigrationandNaturalizationagents

may make immigration "sweeps" at a workplace without probable cause or reasonable suspicion in order to find undocumented workers. I.N.S. u.

43


DeJgudo, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

7. Drug testing in the workplace. Railroad personnel and Customs Ser-

vice agents may be subjected to blood or urinalysis tests without reasonable individualized suspicion. The privacy interests of the employees are minimal when compared to the government's interests in public safety on the railways and fighting drug traffic at the borders. Skinner u. RaiLway Lubor Executivas Associafion, 109 K t . 1402,103 L.Ed.2d 639 (19891, and National Treasury Employees Union u. Von Raab, 109 S.Ct. 1384 (1989).

In Dimeo u. Griffin, - F.2d - (7th Cir. No. 89-3025, delivered February 4, 1991,48 0.L. 14871, the court held that the problems associated with illicit dmg use by horse jockeys and other state- licensed racetrack employees are not sufficiently serious to justify subjecting such licensees to random urine drug testing. The court upheld a preliminary injunction against such testing, and distinguished Shoemakeru. Handel, 795 F.2d 1136 (3rd Cir. 19861, on the basis that Skinner and VonRaab "leave little leeway for revenue consideration" as a justification for such random testing.

The D.C. Circuit Court upheld pre- employment drug testing for Justice Department lawyer applicants in Willner u. Thurnbuqb, - F.2d - (C.A.D.C. No. 90-5156, delivered March 29, 1991, 49 Cr.L. 1024). The court noted that attorney applicants have a diminished expectation of privacy because the testing was "dignified and discreet," applicants had to divulge whether they used illegal drugs in the past five years, and applicants had to submit to "exhaustive" background checks. Appli- cants could avoid testing by not applying. The court also noted the "burgeon- ing" private sector use of such testing as evidence regarding what society con- siders reasonable in hiring. Last, the Department's interests in credibility as the leading law enforcement agency and compiling data about strangers (job- seekers) outweighed the applicants' diminished expectations of privacy.

The dissent noted the majority's failure to consider the nexus between a Justice Department antitrust lawyer and the threat the lawyer would pose if drug-impaired. He also stated that giventhe exhaustive background check, the majority "wink[sl" at reality when it concludes that the government's need

for informationsupports mandatorypre- employment testing. Finally, he stated "private employers' practices cannot become the yardstick by which we measure the government's compliance with constitutional mandates." D. ABANDONMENT.

If a person voluntarily abandons property and the abandonment is not merely the result of unlawful police conduct, then the taint of an illegal stop or arrest may be vitiated and the abandonedevidencemay be admissible. UnitedStatesu. Morin, 665 F.2d 765 (5th Cir. 1982), UnitedStatesu. Beck; 602 F.2d 726 (5th Cir. 1979).

This rule applies to abandonment in Texas. Hawkinsu. State, 758S.W.2d 255 (Tex.Cr.App. 1988); SaIcido v. State, 758 S.W.2d 261 (Tex.Cr.App. 1988). The defendant must intend to abandon the property, and must freely decide to do so not merely as the product of the police misconduct. In Hawkins and Salcido, the defendants' abandonment was invalid. See and cf., Calfornia u. HodariD., 111 S.Ct. 1547 (19911..

Thisartzcle will becontinued rn thenext issue of Voice

Autopsy Report Continued frompage 17

ammunition used. d. Entrance wound: The entrance wound may consist of a single defect (contact wound or slug) or multiple defects. The center of the defect, or pattern of defect, should be measured from the midline and from the top of the head or the soles ofthe feet. Ifany soot, stippling, or filler materialis present on the entrance wound it should be described and measured. When multiple defects are present the overall pattern size should be measured and if the impact is at an oblique angle to the h d y , the size of the overall pattern may be dispro- portionally large, and a line of trajectory pattern dianl-

eter must be determined. In many cases an incom- plete pattern is present because only a portion of the charge strikes the body surface and a hue pattem size and range of fire cannot be determined. e. Injuries (path): When a s h ~ g is fired a sequential trackcan be aseertainedand followed as in a gunshot wound. This differs, however, with bird shot or buckshot in which multiple projectiles enter the body sirnultaneoudy anddisperse radially away from the barrel. Also, as the shots. s& the skin surface, the initial shots are struck by subsequent shot creating a "bil- liard ball" effect. The NU- ries have to be described in aggregate rather than se- quence. f. Recovery: When dealing with btrd shot wounds a representative number of shots should be recovered Cat least 10) If possible. When dealingwith buckshot or slug wound cases, all the shot and slugs should be recovered. g. Exit wound: Bird shot rarely exit exceptwith shm- gun wounds to the head. Buelrshot and slugs may or may not exit dependent on the, location of the wounds and what organs or bones are stluck internally The exit wounds, if present, should be measured and described in a similar fashion to the entrance wound. h. Direction: Usually the front vs. back and light vs. left directtons can be determined, but the direction of up ys. down may be d f i d t due to the numerous shot and the normal radial dispersion of the charge. i. Range of fire: The range of fire m shotgun wounds is not as easily described as handguns. As the distance from the barnel tip to the skin surface increases, the


wound pattern also In- creases. The exception of this involves shotgun slugs which create a single defect and the only issueis whether residue is present on the skln surface, or if the wadding has entered the entrance wound. W~thbirdshotandbuckshot, individual shot may enter the body either as an aggregate or separately. When the barrel tip to the skin surface distance is approximately contact to 1-1/2 to 2 feet, there may be only a slngle circular defect At contact range soot may be deposited on the skin surface or d~scharged into the underlyingmusculature As the barrel t ~ p is withdrawn further, both soot and w- powder stpplin are vis- ible. Soot may ! e deposited on the slun surface when the barrel tip is sw- era1 inches away and the gunpowder may deposit out to several feet. The dm- tance at which both soot and gunpowder will be deposited on the skin surface is dependent on the type of ammunition, type of powder, barrel length, and type of choke. As the barrel tip is withdrawn further the defect changes from round to slightly irregular margms to individual pellet perfora- tiqns. The distanceatwhich these changes occur varies withbarrel length andother components but roughly occurs at approximaely 3 feet for the slightly irregular margins and 3-1/2 to 4 feet for the individual perforations surrounding the central defect. As the baml tip is further withdrawn the central defect becomes less prominent and is eventually completely replaced mth individual bird shot or buckshot perforations. A very broad rule of thumb is that for every one inch of pattern there is up to 3 feet of distance.

The wadding initially enters the central defect up to around 5 to 10 feet then drifts laterally impactingthe skin surface and causing an abrasion. The maximum distance that shotgun wads mark the skin varies but maybeas faras 15 to20feet depeqdent on the type of wadding (plastic vs felt), type of ammumtion, length of barrel, and type of choke. The best method to determine the range of fire is to take a suspect weapon with representative ammunition and test fue the weapon to duplicate the pattern.

3. Rifle wounds a, Description. Both handguns and 2 2 rimfire nfles fire bullets which possess relatively low velocity, av- eragmgbetween650 to 1400 feet per second (this does not include 357 Magnum and .44 Magnum). Centerfm rifles fre projectiles at high velocit~es, between 2400 and 4000 feet per second. This marked increase in velocity greatly increases the kmetic energy and therefore greatly increases the wounding po- tentlal. b. Entrance wound. En- trance wounds from centerfire rifles frequently appear similar to handgun entrancewounds inthatthey are often circular to oval and faxly unremarkable (This does not include rifle woundsof the headinwhich the head may be markedly distorted or nearly decapi- tated). c. Injuries: The Internal injmes of rifle wounds greatly vary from handgun wounds because of the variation in magnitude of kinetic energy. The wound track is much larger and'the temporary cavity from such a wound can be extlemely large. Organs may be pulpifled and there may be substantla1 injury remote from the direct track itself.

This 1s all due to the temporary cavity andthe increased klnefiic energy. d Exit wounds: Rifle wounds often have exit wounds, especially when f ~ g full metal jacketed ammunitmn. These wounds can be extremely large and irregular. When hunting ammunition is fired, however, the projectile may not exit but instead break up creating a "lead snowstorm" pattern on x-ray. e. Recovery: High powered nfle projecttles when retained in the body are often small irregular fragments of core and jacket and are difficult to retrieve.

f. Direction: The direction can usually be given with nfle wounds either because a clear entrance and exit wound are present or because the wound track is prominent..

Tbisanicle will be continued in the next ime ofloice

Division of the Attorney General's Office, Cathy decided to build a private crminal defense practice that focused primarily on appellate work. Her p m e r in this undertaking was another refuge from the Attorney Generals law enforcement division, Jan Morrow.

Ignorant about the magnitude of such an undertaking, they decided to open offices in both Austin CCathf) and Houstm(Ian). But Houston had more crime, or at least more trials that were appealed, and inevitably the bulk of their workoriginated inthe Bayoucity. Behg a confirmed Aust&nitete Cathy continued to commute for the &st year but soon [he logistics of two offices but one prfmary place ofbusiness dimmed the allure of Austin's city lights.

As luckwould have it, the first retained case from Houston For rhe fledgling partnership was motion workin a capital murder trial. Two of the lawyers with

45

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

Sharion Fisher Appiah Dallas Cnty. Puhlic Defender's Ofc 3421 Shady Hollow Lane Dallas, Texas 75233 Telephone; (214) 653-3550

Rohrn B Ardls 468 Shannon Square, Ste 5 Sulphur s p n w , 'T-s 75482 Telephone (9031 885- 9711 Fax (903) 885 7161

Ted Beaty P 0 Box 528 Wmshoro, Tcxas 75494 Telephone (903) 342-5296 Fax (903) 3424087

Thomas W Brady Pulncr & Bmdy 1317 Montana El Paho, Texas 79902 Telephone (915) 533-0504 M x (914) 532 0276

F Edward Brown P 0 Box 1782 Beltun, Texas 7651 Telephone. (817) 634-2587

Rachel Capote 1300 Ma,, Ste 1415 Houston. T-s 77002 Telephone 013) 222 6681 Fax (713) 6504960

Ronald E Dahhn, I1 P 0 Box 61508 Houston, Texas 77208 1508 Telephone (713) 220-2194 Fax (713) 220-2192

Sharon M. Easley 730 E. Park, Ste. 200 Plano, Texas 75074 Tesephone: (214) 5789597 Fax: (214) 516-0028

New Members corey scott.Gomel 5550 N Braeswood, #45 Houston, Texas 77090 Telephone (713) 888-7171

Kathryn K Hookcl 1424 K~plmg, #2 Houston, Texaa 77006 Telephone: (713) 524-0551

Robert Bnm Hunbdkw 777 E Hamson Brownsvdle, Texas 78520 Telephone U10) 541-3820 Fax (210) 541-7694

David G. Langenfeld P. 0. Box 140884 Ausdn, Texas 78714-0884 Telephone: (512) 835-1281

A. Mrchelle May P. 0. Box 1797 Belton, Texas 76513 Telephone (8171 939-2060

William A. Muzur, Jr. 726 nalwoah, Ste. 1006 Grand Prairie, Texas 75050 Telephone: (214) 262-5527

Jana K McCown 1717 W. 6th St. Ste. 350 Austin, Texas 78703 Telephone: (512) 472-7972 Fan: (512) 472-7978

Stan M~Murry Locke, Pumell, Ram & Harrell 2200 Ross Ave , Ste 2200 Dallas, Texas 75201 6776 Telephone (214) 740 8585 Fax (214) 740 8800

Stan M. Puman, Jr. 1717 W. 65h St., Ste. 350 Austin, Trxas 78703-47/8 Telephone (512) 472-7972 Fax: (512) 472-7978

Russell Rarmrrz 720 Bmzos, #lo13 Austm, Texas 78701 Telephone (512) 478-2744 Fax (512) 478-2744

R D (Doug) Readmg P 0 Box 524 Wahash, Indrana 469924524 Telephone (219) 563-8831

Joseph M Rumhaut P 0 Box 56122 Houston, Tenas 77256 Telephone (713) 771-7100 Fax (713) 9744961

Fnnk D. Sandoval, Jr. N~cholac & Barren 424 E N u o a San Antorno, Texas 78205 Telephone (512) 224-5811 Fm (512) 224-5890

Wdham L Sdrroeder 267 W Mdl New Braunfeis, Texas 78130 T e l e ~ h o e (512) 625-7381

Rohh Wm Shepherd 600 Congr-5, Ste I700 Austin, T-s 78701 Telephone (512) 473=3638

M k Smder Yzaguirre, Chapa & Assocmtes 821 Nalana

Francisco javier Montemayor McAllm, Texas 78501 Webb Cnty. Public Dcfendc?~ 0fc. Telephone: (210) 682-4308 202 Pdm Circle Fax: (2101 682-7854 laredo, Tcxas 78041 Telephone: C210) 721-2200

Catherine Bumett Continuedfrompage 45

whom Jan and Cathy worked on that case were Robert Morrow and Jay Bumett By 1980 the four lawyers decided to form a loose afiltation and mwed their practice to a big converted duplex tn the Montrose area. They

46

stayed there for six years. Jan married Roben, Cathy married Jay. Then Jay became a district judge and Robert a named partner in a 1960 area law firm; Jan and Cathy remained partners, however, andkeptthe old house inMontrose.

Texas politics being what they are, and Reagan coattails reaching deep,Jay soon rejoined the criminal defense bar This time Jay, Cathy and Jan dec~ded to take their practice to downtown Hous-

Jeffrey J S h n b 906 Bay O& Rd Houston, Taols 77008-6412 Telephone (713) 223-5301

Gary D Smrt 602 Matlock Cenm Cndr Arhngton, T e r n 76015 Telephone (817) 460-7377

Houston M. Smith 307 S Rodtwall T e n d , T-5 75160 Telephone (214) 328-8325

Cnarles Ceul Starcher 6162 Mtsty Meadow, #714 Carpus Chilsn, Texas 78414 Telephone C512) 992-6395

Deborah D Summers 1001 Texas Ave , Ste 600 Houston, Texas 77002 Telephone (713) 236-8093

Jeff L Thomas Thomas & Walker P 0 Box 4 Greenvllle, T a m 75403 Telephone (903) 454-2972 FAX (903) 455-2252

Richard E. Weaver 130-B S. Kentucky McKinney, Texas 75069 Telephone: (214) 548-7086 Fax: (214) 54&0994

Call& Whm 111 Soledad, #300 San Antonlo, Texas 78205 Telephone (512) 223-5333 Fm (512) 229-9742

ton. They found spacious, courthonse- convetllent offices in a small building Inhabited with other foimer Democratic incumbent judges. Although there were no longer Saturday pot roasts cooking in the Montrose oven as a br~ef deadline approached, there was a feeling of camraderie in the new locatron. POI a time it seemed as though the routine of the past decade had re-established itself, Jay drd the trial work, Cathy and Jan d d

a V O I C E FOR T H E D E F E N S E

the appeals; Mondays they arguedabout last week's slip opinions from the court of Criminal Appeals; and they traveled whenever they could fmd a criminal law seminar or out-of-town case.

But routlnes are destined to be bro- ken. Jay was elected to the district bench, and Jan and Cathy were at a crossroad Jan wanted to spend more time with daughter Kate, and Cathy found herself at loose ends. With Jay's position assured for four years, Cathy certamiy found herself bereft of hus- band and partner. Concerned that her

continued practice in criminal law migh compromiise pay's position, Cathy de cided to take one year and try her hanc at teaching.

That was in 1988, and she's still there When she began as an adjunct at Soutl Texas College of Law, Cathy taugh research and wnting - primarily ap peals. In 1989 she became Dlrecmr o Clinical Studies and clased her laa office (although she still gets involve( in the occasional appeal). Since tha trme she has developed clitllcs for dis ability issues, mediation, and capita

CBeck Desired Wcihase

0,Cash Sale

punishment defense. Now she's working on an AIDS clinic and revamping the externship program. She teaches a death penalty seminar twice a year, and

Appeals are in the same building as the law school, Cathy and Jan still visit frequently. Her concern that their different career path.. would jeopardize her marnage have evaporatedover time -Jay has her externs working in his court from time to time, some of the prosecutors and defense lawyers in her court are her former c r i m d procedure students, and Cathy's working on Jay to accept mediation as a viable punishment option.

They don't get to travel like they used to and scheduling conflicts often doom the hest la~d plans. But they spend several weekends a month working a small farm north of Houston and raising cattle. Or using one of the three grand- children as an excuse to do "kid things." And they stiU debate the m e m g of last week's slip opmions . Jane Underwood Contmed~ompage 6

towns as Alpine, Fort Stockton, Del Rio, Fon Davis, and Sonora.

They travel about 50,000 d e s pet year by car, as well as some air travel. They also do appellate work in Texas and the FAh Circuit. Since they can see Mouco from their front doox, Janie's fluency in Spanish is invaluable, while Martin can speak either redneck or liberal, as the occaslon demands. Janie was one of the First spouses to attend u i m i l law seminars (So what ifit was to keep Marfa out of trouble?). She functioned as a paralegal before that term became fashionable She has been appointed in two capital murder rials in heu of a second attorney to assist Martin, and has been in more West Texas fails than a habitual criminal. Martin does not mind as long as he gets his homemade tortillas every mormng.

While this lifestyle cannot work fop everyone, the Underwoods point out that it solves the problem of conflict hetween work and spending time mth the spouse; they do both at the same tune and enjoy it greatly..

A 7

rlll-111111----1- 1 1 TEXAS CRIMINAL DEFENSE LAWYERS 1 I ASSOCIATION

MEMBERSHIP APPLICATION I 1 (Plearepnnr or f y p ) 1 I I I 0 NEW MEh4BER APPLICATION I I 0 RENEWAL APPLICATIONI I M r . MS ~ r s -

I Name

I m o a p p ~ r "LMenhrrSh,," DYYdO'y)

I I I I LAW Ftm

- Mdng Address

I I city, state, ZIP I I Busmess Telephone ( 1 I I Fax No C 1 I I county I I Bar Card Number I I Bar Card Date Month Year 1 Date of Blrth.

I I

I Are you currently a member of NACDLl 0 Ye5 0 No I . 1 Please check comct category: Volmtary Sustaining

Q Afhliate -OM 1 Psustaining

$300 P Public Defender - $50 1 - P S t u d e ~ $20 I

Regular member Q Membcrs in the fum of

licensed to pranice; a sustaining or charter 1 U 2 ycar.9 or less, or member - $50 1 -

new member of TCDU - $75 O more than 2 yeas - $150 Cerufied Criminal law Spec~ahst Cl Yes O No 1

I - . I Have you ever been &sbarred or &saplined by any bar 1 associdhon, or are you the su ect of disciplinary action

1 now pendinn? Yes 0 No "a I - I-

Ds,r Fl&Tm,"*e of Appllnn, I

'State whetha new cemficate is &sued 1 I . ENDORSEMENT I

1 I, a current member of TCDLA, believe [ha applxcant to 1 1 be a person of profeslonal competency, integr~ty~ and I

good moral character The applicant is acuvely engaged tn the defense of criminal cases 1

I I I

I "" SiWIure oT Member I I

Some of the best legal minds . . . in this state already belong to the Texas Criminal De-

fense Lawyers Association. We believe we have now the best Criminal Defense Bar in the United States. We main- tain that level of excellence by continuously seeking out new minds, new energies. Therefore we want YOU . . . if your legal and personal philosophies are compatible with our purposes and objectives:

To provide an appropriate state otganization representing those lawyers who are actively engaged in the defense of criminal cases.

To protect and insure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases.

To resrst proposed legislation or rules which would curtail such rights and to promote sound alternatives.

TO promote educational activities to improve the skills and knowledge of lawyers engaged in the defense of criminal cases.

To improve the judicial system and to urge the selection and appointment to the bench of wellqualifkd and experienced lawyers.

To improve the correctionalsystemand to seek more effective rehabiIitation opportunities for those convicted of crimes.

To promote constant improvement in the administration of

ADVANTAGES FOR TCDLA MEMBERS a The monthly Voice for the Defme magazine.

The "Significant Decisions Report" of important cases decided by the Texas Court of Criminal Appeals and Federal Courts a TCDLA Memberslup Directory - referrals to and from Criminal Defense Lawyers tn over 100 Texas cities

Outstandmg educational programs -featuring recognized experts on practical aspects of defense cases. TCDLA and the State Bar annually present many seminars and courses m all parts of the state. a Avaihbiltty of Lawyers Assistance Committee, a ready source of information and asststance to members, and the Amicus Curiae Committee. a Organizational voice through which criminal defense lawyers can formulate and express their positlon on legislation, court reform, important defense cases through Anucus Cur~ae acunty. a Discounts and free offerings for publicattons of Interest to criminal defense lawyers a Limited messenger service in the Capitol area.

TEXAS CRIMINAL

M Y E R S AsOaATn-4

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 600 West 13th Street Austin, TX 78701

BULK RATE U.S. POSTAGE

P A I D Permit No. 2454

Dallas, Texas

Documents

LAWYERS - Voice for the Defense Online